State of New South Wales v Robinson [2019] HCATrans 76 (12 April 2019)

Last Updated: 15 April 2019

[2019] HCATrans 076

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S289 of 2018

B e t w e e n -

STATE OF NEW SOUTH WALES

Applicant

and

BRADFORD JAMES ROBINSON

Respondent

Application for special leave to appeal

GAGELER J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 APRIL 2019, AT 10.14 AM

Copyright in the High Court of Australia
MR J.K. KIRK, SC: May it please the Court, I appear with my learned friend, MR P.D.HERZFELD, for the applicant. (instructed by McCabe Curwood Pty Ltd)

MR D.R.J. TOOMEY, SC: If it please the Court, I appear with my learned friend, MR D.J. WOODBURY, for the respondent. (instructed by Foott, Law & Co Solicitors)

GAGELER J: Now, Mr Toomey, do not sit down. Why should not special leave to appeal be granted in this matter?

MR TOOMEY: Your Honours, fundamentally, this application is concerned with a question of statutory construction. The relevant provision is unique to New South Wales. And the interpretation adopted by the adopted by the majority in the Court of Appeal, we would submit, was not only open to it but ultimately compelling.

That interpretation involved an acceptance first that the underlying purpose of an arrest must always be to take the arrested person before a court, so that they can be made answerable under the criminal law. We submit that once that purpose is recognised, that creates a fundamental right which is simply the other side of the coin of the fundamental common law right of personal liberty, which required that the clearest of words be used in section 99 as amended in order to deprive the respondent in this case of that right.

Here we assert that Mr Robinson was arrested and, indeed, Justice McColl made this finding in the Court of Appeal that Mr Robinson was arrested for the purpose of investigating whether or not he had committed an offence.

EDELMAN J: We get that underlying reason or implication from the word “arrest”?

MR TOOMEY: Yes, your Honour.

EDELMAN J: In its history and context?

MR TOOMEY: Yes, that is as we put it.

GORDON J: How does that sit with subsection (4) of 99?

MR TOOMEY: Subsection (4), in our submission, is entirely consistent with our position, because it is predicated on a lawful arrest having occurred before the provisions of Part 9 are invoked. The question remains primarily whether the arrest is lawful. We submit that an arrest that is effected, for the purpose of investigating whether or not the offence has been committed, is plainly unlawful because an arrest for an extraneous purpose. And that is not a new proposition; it was recognised by this Court in Williams.

GAGELER J: So you say this legislation is unique to New South Wales, and you say the construction placed upon it was correct. Is there anything else you say against the grant of special leave?

MR TOOMEY: We say also, your Honour, that the appeal runs against the finding of Justice McColl, that indeed the arrest was effected for the purpose of investigation, and we do not understand it to be asserted by the applicant that were that so the arrest would be lawful.

GAGELER J: Thank you.

MR TOOMEY: Does your Honour wish me to expand further? Those are our primary reasons as to why.

GAGELER J: Yes. I think we understand your position. It is up to you if you wish to expand.

MR TOOMEY: Your Honours, we are not here concerned with whether a charge actually laid was laid without reasonable and probable cause. What we are here concerned with is whether an arrest is effected with a prospective view, that is, with the intention of invoking the processes of the criminal law.

Much is made by the applicant of the apparent inconsistency, the asserted inconsistency, we should say, between the state of mind applicable to questions concerned with the tort of malicious prosecution and, more particularly, the element of reasonable and probable cause, and that of reasonable suspicion, which is the test laid down by section 99.

In our respectful submission, that socalled inconsistency is illusory when one is considering the question of the law of arrest. That is so, as Sir Frederick Jordan recognised in Bales v Parmeter, because such reasonable and probable cause as constitutes a defence to a police officer accused of wrongful arrest, such reasonable and probable cause may be established by proving that he, with reasonable cause, suspected the person whom he arrested of having committed a crime or offence.

What we would suggest Sir Frederick Jordan was there doing was to assimilate the two tests when it comes to the question that is raised in this application and that is the approach, as we read her Honour Justice McColl’s reasons for judgment, which her Honour took, and we would seek to support it.

It is also said against us that the critical starting point that was adopted by the majority in the court below, namely, that there is a fundamental right which is touched upon by this particular statutory provision, of being a right to remain free of arrest and subsequent detention unless for the purpose of taking the person before a court and making them answerable under the criminal law.

We submit that that is an entirely orthodox starting point and, indeed, this Court recognised in the North Australian Aboriginal Justice Agency Case that the principle of legality is appropriately applied to circumstances such as these. Once that is accepted, we would submit that the language used in section 99 goes nowhere near as far as it would have to have gone in order to make unambiguous some abrogation of the principle, long recognised, that arrest is for the purpose of taking a person before a court and conducting a criminal proceeding.

We refer in our written submissions to the practical unworkabilities of the State’s approach to the interpretation of section 99. We understand the State’s approach to be that section 99 ought be read as a code and, more particularly, that the reasons set out in section 99(1)(b) are to be understood as standalone reasons for arrest, independently of the longrecognised purpose of arrest.

EDELMAN J: Not quite. I think the State accepts that there must be some implication that is made outside the purposes of 99(1)(b)(i) to (iv). It is just they say the implication is one of good faith or, more properly, absence of bad faith.

MR TOOMEY: The difficulty with that proposition is that, in our submission, even in good faith, serial arrests could be made by the same officer, each time arresting the person because he or she suspects the person on reasonable grounds of having committed an offence, and for any one of the reasons under (1)(b) – and on each occasion, despite the best of faith, never coming to a decision one way or the other to prefer a charge. That, in our submission, is an absurd unworkability of the construction that the State would have put upon section 99. May it please the Court.

GAGELER J: Thank you, Mr Toomey. We do not need to hear from you, Mr Kirk. There will be a grant of special leave to appeal in this matter.

MR KIRK: If it please the Court.

GAGELER J: Is it a oneday matter, gentlemen?

MR KIRK: I think it is a oneday matter, it was argued in one day before the Court of Appeal, subject only to this possible qualification. It is not impossible, I think, that there may be applications for intervention from one or two other States. I do not know that, I am just saying it is possible. That, if it occurs, might push it into a second day but it would not push it much into a second day if that occurred at all.

GAGELER J: We were told that the legislation is unique to New South Wales. Is that almost true?

MR KIRK: It is unique as formulated, but if your Honour looks at our reply on page 177 of the application book, in footnotes 2 and 3 – footnote 2 is from the Crimes Act 1914 (Cth), and footnote 3 is from the Crimes Act 1958 (Vic).

GAGELER J: Yes.

MR KIRK: Now, they are not identical, but they are similarly structured.

GAGELER J: Yes.

MR KIRK: Hence, the point that I made.

GAGELER J: Thank you.

MR KIRK: But I think in substance it is a one day, with a possibility of going into a second.

GAGELER J: Good, thank you.

AT 10.25 AM THE MATTER WAS CONCLUDED