State of New South Wales v Delly [2008] HCATrans 226 (13 June 2008)

Last Updated: 25 June 2008

[2008] HCATrans 226

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S583 of 2007

B e t w e e n -

STATE OF NEW SOUTH WALES

Applicant

and

JOANNE ROSE DELLY

Respondent

Application for special leave to appeal

GUMMOW ACJ
HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 JUNE 2008, AT 11.03 AM

Copyright in the High Court of Australia

MR J.E. MACONACHIE, QC: If your Honours please, I appear with MR P.D.A. MALLON for the applicant. (instructed by Crown Solicitor’s Office)

MR C.A. EVATT: May it please the Court, I appear with MR G.I. FOSTER for the respondent. (instructed by Andrea Jane Turner)

GUMMOW ACJ: Yes, Mr Maconachie.

MR MACONACHIE: Two short, but significant and important points arise. The first is whether or not the rules, if I can call them that, in Christie v Leachinsky are the law of this country or whether there should be an extension of them, a clarification of them, as Viscount Simon himself observed might be possible in Christie v Leachinsky [1947] UKHL 2; [1947] AC 573 at 588 where his Lordship said:

There may well be other exceptions to the general rule in addition to those I have indicated, and the above propositions –

the five well-known propositions –

are not intended to constitute a formal or complete code, but to indicate the general principles of our law on a very important matter.

Christie v Leachinsky itself was a case quite different from the present. In that case, Mr Christie, the police officer, knowingly, deliberately and falsely told Mr Leachinsky that he was being arrested for a breach of the Liverpool Act for an offence quite different and distinct from that which he suspected Mr Leachinsky and it was found that he suspected Mr Leachinsky of being guilty of, and that is larceny. But that was a larceny that had occurred in Leicester and the police officers, given the structure of the police force at that time, and it may be well today, had no jurisdiction to act.

So he lied in order to give the Leicester police time to get to Liverpool and arrest him and charge him with the offence for which he was truly suspected. It was in that context that the words of Viscount Simon were formulated and the quite different test suggested by Lord Simonds. In the Court of Appeal there was a division between Justice Tobias and one other judge whose name presently escapes me - Basten were of one view as to the proper test to apply.

GUMMOW ACJ: You have had a senior’s moment.

MR MACONACHIE: I have, your Honour. But Justice Ipp took the Lord Simonds’ approach, that is, concentrating on the act that needed to be established. If I can take you to the way in which it was approached at paragraph 92, page 62 of the application book by Justice Tobias – no, it is page 54, I beg your Honour’s pardon. I will take you to paragraph 92 shortly. He said:

In my opinion the respondent’s submissions should be accepted. That there must be a correlation between the uncommunicated reason for the arrest and the arrestee’s knowledge of that reason is made plain by Viscount Simon’s own words.

He refers to the first proposition of Viscount Simon in Christie v Leachinsky. The proposition embraced by Viscount Simon in Christie v Leachinsky is that he is not entitled to keep the reason to himself. In Christie v Leachinsky that is precisely what Christie did. He told him that he was under arrest for X when he believed he was under arrest for Y. That is quite different on the facts of this case.

Ms Delly was present when the victim was assaulted. Ms Delly was told to leave the room and to go into the bedroom. She was in the bedroom when the victim was beaten to death. She came out of the bedroom, saw the body, blood and other material, as it is gently described in the evidence, directed that the body be removed from the flat and then took a mop and cleaned up the blood and other material. She knew when the police came that it was in connection with the murder of the victim. She knew that, not only because of the events that had occurred, but because the police said to her partner in bed with her, “You are under arrest for murder”.

She knew it was so found by the trial judge that she might be in trouble for what she had done. She was never told she was under arrest. That is a given. She was never told the reason why she was under arrest. That is a given. She knew that she might be in trouble because of what she had done.

If ever there was a case, we would respectfully submit, where it was necessary to examine this question of the formality of words of arrest, this is it. The public interest, and the interest of each and every one of us, in the detection and punishment of crime is of very significant importance. Of course, so is the private individual’s right against arbitrary detention in some of the high-sounding words outlined in Christie v Leachinsky about other places where the rule of law that Britain has enjoyed was not to be found is to be understood because of the offence alleged against Mr Leachinsky was in 1942 and the judgment of the House of Lords was in 1947 and the references were plainly to Nazi Germany.

HAYNE J: Now, is this is in support of the first of the grounds in your draft notice?

MR MACONACHIE: Yes, it is. It is, your Honour.

HAYNE J: That draft ground is couched in terms that seem to invite attention only to the question of fact.

MR MACONACHIE: We would submit not, your Honour.

HAYNE J: What is the point of principle that you say emerges? It is the last sentence in the first ground.

MR MACONACHIE: Indeed, your Honour. A principle of law, particularly in this area of discourse, must be informed by the facts upon which it is determined. What is said in Christie v Leachinsky is informed by and relates to the facts of that case, which involved deception. The facts of this case involve something quite different. In cases like Mackalley’s Case from the Court of Exchequer, that involved a resistance to arrest and whether or not it was then necessary to utter words of arrest - - -

HAYNE J: But does the argument in the end, if leave were granted to come to this Court, would the argument come down to any more than that the facts and circumstances were such that Ms Delly should have known why the police took her into custody.

MR MACONACHIE: With respect, your Honour, it boils down to something more important than that and that is what is the level of particularity at which there must be a meeting of minds. The old cases dealt with in Christie v Leachinsky speak of the arrested person knowing the reason for the arrest. The words of this judgment from the Court of Appeal speak of having a meaningful understanding of the charge that might be preferred. There is a world of difference between those. Equally, the words of Lord Simonds picked up by Justice Ipp that he or she has to be aware of the act for which he is being arrested.

The older cases on careful examination and, indeed, Christie v Leachinsky itself, speak of the person arrested knowing the reason for his or her deprivation of liberty. That is a mile away from the formulae that were employed by the two camps in the Court of Appeal. That is why it is a matter of importance and a matter of law, we say. Can I go to the secondary point?

GUMMOW ACJ: Exemplary damages?

MR MACONACHIE: Yes, your Honour. There is little to be said for it other than that which we have said in our written submissions. At 62 in the application book, paragraph 92, Justice Tobias said:

However, I would agree with the appellant’s submission that not only was there no finding of malice against the police but also there was no evidence that Superintendent Little’s failure to inform the respondent that she was no longer under arrest was due to a conscious attempt on his part to seek some advantage such as keeping the respondent at the police station until the police officers had the opportunity to interview her.

There was no such finding of fact. Justice Ipp asserts that it was a conscious and deliberate act. He was wrong. Justice Basten says he cannot understand – he says it in more delicate and polite terms than perhaps I might – how one can come to the conclusion that Justice Tobias did, but still find that there ought to be an award of exemplary damages. In our submission, the best – the highest that Superintendent Little’s wrongdoing, if there be wrongdoing, can be put is a negligent oversight for which traditionally this exceptional and rare remedy, as this Court put it in Gray’s Case, is not available.

It may seem like a small point at one level - only $10,000 I think - but it is a remedy that is being dealt with, in particularly the District Court of this State, on the basis that everybody gets a bag of lollies if there is a finding of fault of whatever kind on the part of the police. It is a matter of considerable importance, not only to the Police Service, but to the people of New South Wales who have to fund it. They are the reasons for a grant of special leave, in our respectful submission.

GUMMOW ACJ: Thank you, Mr Maconachie. We do not need to call on you, Mr Evatt.

This application arises from an action for damages tried in the New South Wales District Court by judge alone for the alleged wrongful arrest of the respondent by New South Wales police officers.

The trial judge, Judge Balla, rejected the applicant’s argument before her Honour that there was no need for police officers to give reasons for the arrest because in all the circumstances the respondent must have known the general nature of the offences for which she was detained. The primary judge found that the arrest was unlawful because police officers had not told the respondent that she was under arrest or given her the reasons for the arrest.

The New South Wales Court of Appeal upheld the findings of the primary judge in respect of liability, but the court reduced the total amount of damages awarded by the primary judge from $60,000 to $35,000.

On the issue of liability the applicant has not raised any question of principle which would justify a grant of special leave. In particular, while there may be variations in the terms used in the speeches in Christie v Leachinsky [1947] UKHL 2; [1947] AC 573, the facts and circumstances of this case do not provide an appropriate occasion to consider their significance for the law in Australia.

As to the proposed ground of appeal in respect of exemplary damages, the relevant principles have been clarified recently by this Court in New South Wales v Ibbett [2006] HCA 57; (2006) 229 CLR 638 at 648-649 [38]- [40].

Errors alleged in the application of these principles to the facts of this case do not warrant a grant of special leave. Further, the result reached in the Court of Appeal is such that the interests of justice do not require a grant of special leave. The application for special leave therefore is refused with costs.

AT 11.17 AM THE MATTER WAS CONCLUDED