Dear Colleagues;

My apologies for the repetition, but on re-reading yesterday’s hurried post about Robinson there were a couple of errors which changed the sense of what I wanted to say, so I am imposing on your email inboxes again with a corrected version, just so you have it for future reference if needed. (Thanks to Lionel for the fascinating cases raising similar issues from the SCC!)

 

The High Court of Australia, 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 not lawful, and a person detained in such circumstances (as Mr Robinson was for about 1 ½ hours) is the victim of 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

 

 

NEIL FOSTER

Associate Professor, Newcastle Law School

Acting Program Convener, Master of Laws, Master of Environmental Law

Faculty of Business and Law

409 Hunter St

Newcastle

 

T: +61 2 49217430

E: neil.foster@newcastle.edu.au

 

Further details: http://www.newcastle.edu.au/profile/neil-foster

My publications: http://works.bepress.com/neil_foster/ , http://ssrn.com/author=504828 

Blog: https://lawandreligionaustralia.blog

 

 

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