I like this decision. It discourages the practice, rather prevalent here, of arresting someone who can technically be said to be suspected of an offence simply in order to put the frighteners on them -- e.g. where they have said or tweeted something which someone else objected to, and the police feel they need shutting up.

Andrew.

Dear Colleagues;

The High Court of Australia today, in New South Wales v Robinson [2019] HCA 46 (4 December 2019) http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA//2019/46.html holds by majority that in NSW a police officer may only arrest a citizen if they have an intention, at the time of the arrest, of bringing the person before an authorised officer to be dealt with according to law (see para [116] for the summary of the joint judgement of Bell, Gageler, Gordon and Edelman JJ). Hence an arrest where there is no such intention at the time of the arrest (such as an arrest to make further inquiries) is now lawful, and a person detained in such circumstances (as Mr Robinson was for about 1 ½ hours) is an act of false imprisonment and a wrong. The dissenters (Kiefel CJ, Keane and Nettle JJ) take a different view of the relevant NSW legislation.

I thought it was very interesting that, apart from the details of the changes to the NSW law over the years and the fine details of the wording, the majority referred to the fact that this view had been laid down by one of Australia’s most respected common law judges (Jordan CJ) and had been acted on for a very long time; see

 

1                     [63] In Bales v Parmeter[1], Jordan CJ provided a clear statement of the law in New South Wales: an arrest can only be for the purpose of taking the arrested person before a magistrate (or other authorised officer) to be dealt with according to law to answer a charge for an offence. An arrest merely for the purpose of asking questions or making investigations in order to see whether it would be proper or prudent to charge the arrested person with a crime is an arrest for an improper purpose and is unlawful. That straightforward, single criterion has been repeatedly cited with approval in New South Wales and elsewhere[2]. In making that statement, Jordan CJ was expressing the effect of s 352 of the Crimes Act 1900 (NSW)[3]. Nothing done in LEPRA (in its original or amended form), or for that matter in any of the intervening legislative amendments which will be examined, has displaced that single criterion.

Jordan CJ is probably second only to Dixon CJ in terms of the respect that his decisions are given in Australia, especially in NSW.

 

Regards

Neil

 

 

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[1]       (1935) 35 SR (NSW) 182 at 188-190.

[2]       Ex parte Evers; Re Leary (1945) 62 WN (NSW) 146 at 147; R v Jeffries (1946) 47 SR (NSW) 284 at 287-288; Drymalik v Feldman [1966] SASR 227 at 233-234; R v Banner [1970] VR 240 at 249-250; R v Clune [1982] VR 1 at 10-11, 18; Williams v The Queen (1986) 161 CLR 278 at 283, 293-294, 306-307. See also R v Stafford (1976) 13 SASR 392 at 400-401; R v Larson and Lee [1984] VR 559 at 568-569; Dowse v New South Wales (2012) 226 A Crim R 36 at 46 [27].

[3]       Bales (1935) 35 SR (NSW) 182 at 189.