State of NSW v Dennis [2025] NSWCA 118

State of NSW v Dennis [2025] NSWCA 118 · Read the judgment on AustLII

Catchwords: Police Powers – State of mind to exercise arrest – Power to impose bail without arrest

This is a civil appeal, but readers of this column need not fear – the consequences of the decision are wide-reaching and important for police powers in criminal matters. The Court of Appeal has found that for the purposes of the power to arrest a person without a warrant, it is the actual, subjective, knowledge of the police officer which is the focus. However, that state of mind is reviewable provided it is legally unreasonable. The Court has also found that there is no power to impose bail conditions on a person without first arresting them.

The respondent was arrested and charged with provided pink slips for car registration which were alleged to be the result of manipulation. He was found not guilty in the Local Court. After the charges were dismissed, he sued the State of NSW for the five hours he spent in custody. The District Court judge hearing the claim for damages found that the predominant reason that the police had arrested the respondent was so that they could impose bail conditions on him, with the ultimate objective of preventing him from issuing further defective pink slips. The primary judge found that this did not comply with Law Enforcement (Powers and Responsibilities) Act 2002 (‘LEPRA’) s 99(1)(b); the arrest was unlawful because there were alternatives available to the officer which were short of arrest. The respondent was awarded $10,000 in compensation. The State of NSW sought leave to appeal, arguing that the primary judge had incorrectly characterised the state of mind required by s 99(1)(b) of LEPRA, and that the primary judge was wrong to conclude that police can impose bail conditions where a person has been charged but not arrested.

The Court (Kirk JA, Mitchelmore JA agreeing; Basten AJA also agreeing, with additional reasons) allowed the appeal. Section 99(1) of LEPRA provides a two-part test for arrest without a warrant. First, per s 99(1)(a), the officer must suspect on reasonable grounds that the person is committing or has committed an offence. Secondly, per s 99(1)(b), the officer must be satisfied that the arrest is reasonably necessary for one or more of nine enumerated reasons (at [23]). Section 99(1)(b) requires that the arresting officer actually – that is, subjectively – is satisfied that the arrest is reasonably necessary. It is not necessary that the facts are sufficient to satisfy a reasonable person – but that does not mean that the issue depends only upon the officer’s own view (at [28]). It is well-established that the officer’s satisfaction referred to in s 99(1)(b) must not be legally unreasonable. The availability of alternatives to arrest can be relevant to the assessment of whether that implied requirement is satisfied, and in some cases it may be so clear in all the circumstances that alternatives to arrest should have been pursued, so that the officer’s subjective satisfaction would be regarded as manifestly unreasonable, arbitrary, capricious, or not bona fide. Such an unreasonable view would not be a sufficient satisfaction for the purposes of the section (at [59]). In summary, s 99(1)(b) requires that the arresting police officer is subjectively satisfied that the arrest is necessary for one or more of the identified reasons. Reasonably necessary connotes appropriate and adapted to achieve one or more of the identified reasons. The arresting officer’s satisfaction must not be manifestly unreasonable, arbitrary, capricious, irrational, or not bona fide. The existence of alternatives to arrest might in some cases be relevant to assessing that issue. But the provision does not require police officers subjectively to consider alternatives to arrest in every case as a condition of validity. And it is not for the courts to substitute their own view as to whether alternatives should have been pursued (at [60]).

Additionally, the notion of bail as encapsulated in the Bail Act 2013 involves a person being permitted to go free on conditions. Sections of the Bail Act which acknowledge that a person might not be in custody when a bail decision is made are a reflection of the fact that a person might be in the community when a detention application is made to a court by a prosecutor. Other sections are indeed suggestive of an assumption that the person is in custody when the bail decision is made, but overall the better view is that police are only empowered to grant bail with respect to a person in custody (at [106]).