Robinson v State of New South Wales [2018] NSWCA 231

Robinson v State of New South Wales [2018] NSWCA 231 · Read the judgment on AustLII

Catchwords: Police powers – arrest without warrant – arrest to investigate is not a lawful purpose

In this decision (which, admittedly, deals with the tort of wrongful arrest), the Court of Appeal has determined that an arrest is only lawful if it is exercised for the purpose of commencing criminal proceedings. It is not a legal exercise of the power to arrest a person in order to investigate whether charges should be commenced.

An Apprehended Violence Order was taken out against the appellant. Subsequently, the Person In Need of Protection made an allegation that the appellant had made a threat by emailing one of her employees and falsely alleging that her company was being wound up. A Police Officer read the complaint, tried to locate the appellant, and initially failed. The appellant turned up voluntarily at the Police Station, at which point the police officer arrested him. The appellant voluntarily participated in an interview, and was released without charge, having been detained for about an hour and a quarter. The Police Officer conceded in evidence that at the time he arrested the appellant he had not decided to charge him, that he did not believe there was enough to charge him at that point, and that the decision to charge hinged on what the appellant said in the interview. The central issue in this appeal was whether an arrest without warrant is lawful if no decision has been made to charge the person.

By majority (McColl and Basten JJA in separate judgments; Emmett AJA dissenting), the Court held that the power to arrest exists, and must be exercised, for the purpose of bringing the person arrested before a justice as soon as reasonably practicable (at [95] per McColl JA; at [154] per Basten JA). General law constraints on the power to arrest are embedded in the language of the Law Enforcement (Powers and Responsibilities) Act (‘LEPRA’) s99, which provides the statutory power of arrest. Given that no decision about whether to charge the appellant had been made at the time of arrest, the arrest was not for the purpose of commencing the criminal process, and was accordingly unlawful (at [124]-[129] per McColl JA; at [194] per Basten JA). In dissent, Emmett AJA held that the legislation provides a distinction between the power to arrest and the power to investigate, so that a positive decision to arrest is not a necessary precondition of a lawful arrest (at [257]).

It follows from the majority decision that in matters where an arrest has been made speculatively, but evidence subsequently comes to light as a result of the arrest (for example, admissions in a recorded interview) which were the basis for a charge, then the evidence might have been obtained illegally (the initial detention having been unjustified). On the other hand, in this decision the Police Officer was forthright about the fact he hadn’t made a decision to charge at the time of arrest; plainly, not every officer will be quite so forthcoming. Whether by way of appeal or by way of legislative amendment, it would also seem unlikely that this is the last word on this issue.