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Court of Appeal of New Zealand |
Last Updated: 13 December 2011
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IN THE COURT OF APPEAL OF NEW ZEALAND
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CA 101/00
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BETWEEN
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BRUCE JAMES NEILSEN
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Appellant
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AND
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THE ATTORNEY-GENERAL
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Respondent
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Hearing:
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12 March 2001
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Coram:
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Richardson P
Gault J Thomas J Keith J McGrath J |
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Appearances:
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I G Hunt and L A M Holloway for Appellant
W G Liddell and C Geiringer for Respondent |
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Judgment:
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3 May 2001
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JUDGMENT OF THE COURT DELIVERED BY RICHARDSON P
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[1] This appeal concerns the exercise of the power conferred on police officers by s315 of the Crimes Act 1961 to arrest without warrant.
The background
[2] Mr Neilsen, the present appellant, was formerly a police officer. He was dismissed from the Police on 29 March 1991, which led to his bringing a personal grievance against the Police. In May 1991 he obtained work with B M & Associates Limited, private investigators, whose principal was Mr B Doherty, also a former police officer. In November 1992 he was dismissed from that employment on the ground of redundancy. He brought a personal grievance against the company which was heard in the Employment Tribunal in mid December 1993. On 20 January 1994 the Tribunal upheld his personal grievance and awarded him damages. In cross-examination at the December hearing, counsel for the company alleged Mr Neilsen had carried out certain work and kept cash payments he received without authority. Mr Neilsen claimed he was entitled to receive and keep the money. In its decision the Employment Tribunal said it did not accept his explanation.
[3] On 28 January 1994 Mr Doherty complained to Senior Sergeant Kench, an officer concerned with such matters at Christchurch Police, and whom he had known during his time in the Police. Essentially, Mr Doherty's complaint was that Mr Neilsen was paid an hourly rate or a percentage of the fee for completed jobs and that in October 1992 he had carried out work for a client without entering details in the company job book and had deposited cheques to cash for $80 and $30 respectively in his own bank account.
[4] A police investigation ensued, carried out by Sergeant K W Jones. On 8 February 1994 Sergeant Jones completed a report, concluding there was sufficient evidence to support two charges of failing to account, which was endorsed by Senior Sergeant Kench, recommending prosecution, and subsequently by the Regional Legal Adviser.
[5] On 12 March 1994 Sergeant Jones and another police officer went to Mr Neilsen's home. After reviewing evidence before the High Court at some length, John Hansen J concluded:
[38] In this case, two officers arrived at the plaintiff's home unannounced. At an early stage he made it quite plain that he was not adding anything to what he had told the Employment Tribunal. Sergeant Jones advised that if he did not accompany he would arrest, and he issued the standard form of caution. It is apparent that the plaintiff's wife became emotional, and, indeed, may have become somewhat hysterical. She was urging him not to go. Both the plaintiff and his wife maintain that he made the statement that he had to go, or he would be arrested, and there was no indication from either police officer that he was not under arrest.
[39] While I am conscious Mr Neilsen was a former police officer and would be aware of his rights in this regard, and what the position was, I am satisfied that viewed objectively the conduct of the police, particularly Sergeant Jones, at the house induced the plaintiff into a reasonably held belief he was no longer free to go.
[6] Accordingly, he was to be considered as having been arrested at that point at approximately 2 pm. He was taken to the Police Station where Sergeant Jones sought to interview him. He was allowed to telephone a lawyer, who advised him not to make a statement to the Police and he declined to do so. He was charged, photographed and fingerprinted and then allowed to call his wife, who collected him from the Police Station about 3.30 pm.
[7] On 14 March 1994 Mr Neilsen appeared in the District Court on two charges of theft by failing to account. Following the depositions hearing he was committed for trial. Subsequently, the Crown Solicitor did not oppose an application his counsel made for a s347 discharge and he was formally discharged by the High Court on 25 August 1994. These proceedings followed. Although they were instituted in 1995, they did not come on for hearing in the High Court until February 2000 under an amended statement of claim dated 26 January 2000.
The judgment under appeal
[8] Mr Neilsen claimed damages under two causes of action. The first was that he was unlawfully arrested and detained, the arrest not satisfying the requirements of s315 of the Crimes Act. The second was that the arrest was arbitrary and thus in breach of s22 of the New Zealand Bill of Rights Act 1990. In essence, it is a claim of false imprisonment.
[9] Those sections respectively provide:
- Arrest Without Warrant
(1) No one shall be arrested without warrant except pursuant to the provisions of—
(a) This Act; or
(b) Some other enactment expressly giving power to arrest without warrant.
(2) Any constable, and all persons whom he calls to his assistance, may arrest and take into custody without a warrant—
(a) Any person whom he finds disturbing the public peace or committing any offence punishable by imprisonment:
(b) Any person whom he has good cause to suspect of having committed a breach of the peace or any offence punishable by imprisonment:
(3) The foregoing provisions of this section shall be read subject to the express provisions of any enactment imposing any limitations, restrictions, or conditions on the exercise of any power to arrest without warrant conferred on any constable by that enactment in respect of any specified offence or class of offences.
...
Everyone has the right not to be arbitrarily arrested or detained.
[10] Mr Neilsen pleaded that the arrest was unlawful because (1) Sergeant Jones did not have good cause to suspect because he had not made proper inquiry; (2) Sergeant Jones failed properly to exercise the discretion conferred under s315 to arrest and detain without warrant, including allegations (i) that Senior Sergeant Kench's continuing involvement with the investigation breached Police General Instruction A294 and, in arresting Mr Neilsen, Sergeant Jones was acting under the Senior Sergeant's direction; (ii) that, in arresting rather than summonsing Mr Neilsen, Sergeant Jones breached Police General Instruction A291.
[11] The relevant part of A294 reads:
Members, Relatives or Friends as Complainants.
Where members of the Police, their relatives or friends are complainants in any matter, any related arrest or investigation should, wherever practical, be carried out by a member with no personal involvement. Every effort must be made to avoid any allegation that the power of arrest was used to resolve a private matter.
We shall discuss A291 and the more detailed Manual for Detectives later in this judgment (paras [35] and [36]).
[12] Under the second cause of action Mr Neilsen pleaded that the arrest was arbitrary and in breach of s22, essentially for these same failings.
[13] For the reasons he gave, John Hansen J found that Sergeant Jones did have good cause to suspect. That is not in issue on the appeal and nothing further needs to be said as to that.
[14] Next, the Judge rejected the contention that the relationship between Senior Sergeant Kench and Mr Doherty was close enough to breach A294: at most Mr Doherty was an acquaintance and former colleague of Senior Sergeant Kench; the Senior Sergeant had quite deliberately avoided any involvement in the investigation; and no criticism in that regard could be directed at him. Again, that is not an issue on the appeal.
[15] John Hansen J went on to reject the argument that Sergeant Jones went to the Neilsens' home having decided to arrest Mr Neilsen without a proper investigation and believing he was acting on instructions from Senior Sergeant Kench to arrest him. As to that last point, in depositions Sergeant Jones said he was instructed by the Senior Sergeant to arrest Mr Neilsen. However, Senior Sergeant Kench was on leave at the time Sergeant Jones arrested Mr Neilsen and Sergeant Jones said he must have assumed what he said in depositions because the report from the Regional Legal Adviser had been addressed to Senior Sergeant Kench. The Judge considered that was a completely innocent explanation and, having heard both officers concerned, accepted it. As a credibility finding there is no basis on which this court could differ from that conclusion.
[16] On the main argument that Sergeant Jones was unwilling to seek an explanation from Mr Neilsen and had decided before the police officers went to the Neilsen home to arrest him regardless of what he said, the Judge referred to the Sergeant's evidence that a satisfactory explanation from Mr Neilsen would have dissuaded him provided it was reasonable; and he continued:
[81] The difficulty with this submission is that it overlooks what occurred when Sergeant Jones and Detective Hamilton arrived at the plaintiff's house. I am quite satisfied on the evidence that the plaintiff made it quite plain that he was going to proffer no additional explanation, other than to say the matter had been dealt with at the Employment Tribunal, and he had authority to do cash jobs. That left Sergeant Jones in a position where he had one statement from Doherty saying the Connelly job had not been approved, and he knew the Connelly cheques were deposited in the plaintiff's bank account. All the plaintiff would say was that he was entitled to do cash jobs. In my view, there was sufficient evidence based on that to give Sergeant Jones good grounds to suspect, and warranted the arrest, which, as I noted earlier, I accept occurred at the house.
[17] That left the question whether the decision to arrest could on the facts of the case be impugned.
[18] In his brief of evidence Sergeant Jones stated his reasons for arresting Mr Neilsen in this way:
- I made the decision to arrest Mr Neilsen based upon the belief he may re-offend in the future in a similar fashion involving fraud and the use of documents. I therefore considered it necessary that his fingerprints be placed on Police records in the event he did, in fact, commit further fraud, and evidence of fingerprints may have been left on documentary exhibits. A second factor influencing my decision to arrest Mr Neilsen was as I saw it the seriousness of the charges given that they were offences under the Crimes Act 1961. Further, the offences involved a breach of trust, which is traditionally regarded by the Courts and Police alike as being a particularly serious offence.
[19] In cross-examination Sergeant Jones accepted that there was nothing in the conversation he had with Mr Neilsen at his home to indicate he was intending to commit any further fraud offences - before the Sergeant went to the house "it was a suspicion, not a conclusion". To further questions relating to Police General Instruction A291, and the Manual for Detectives, the Sergeant said he never accepted that the charges were a minor matter but agreed that if the nature of the offending was not grave that would be a factor suggesting a summons rather than an arrest was warranted: that he had no evidence Mr Neilsen might commit further offences; that there were no accomplices and no question of witnesses being interfered with as far as he knew; that he already had as evidence, actual cheques for $80 and $30 and the deposit slips and Mr Neilsen's bank statement for their payment into Mr Neilsen's bank account so there was no question of destruction or concealing of evidence; that there was no suggestion Mr Neilsen was likely to abscond and he was in regular employment, had lived in that house for some time and was married; and that Mr Neilsen did not have a criminal history or a reputation for fraud. The Sergeant said he knew of nothing to indicate Mr Neilsen might not answer bail - and Mr Neilsen was in fact granted police bail once he had been fingerprinted and photographed. Sergeant Jones also accepted that he did not get any of the documents checked for Mr Neilsen's fingerprints and did not need to because he already had Mr Neilsen's deposit slips and bank statement.
[20] Referred by the Judge to the statement in his brief of his reasons for arresting Mr Neilsen, Sergeant Jones said that obtaining fingerprints where he suspected the possibility of future offending was a benefit from the arrest, that it was unfortunate perhaps that he put it as the first reason and then, in answer to a direct question from the Judge, "What was the primary reason for arrest?", the Sergeant answered, "to put him before the court to face two serious Crimes Act charges".
[21] John Hansen J rejected the suggestion that the arrest was arbitrary and that Sergeant Jones could have and should have issued a summons. The Judge cited from Thomas v Attorney-General, (CA 136/96, judgment 14 August 1997) where the court accepted on the facts the explanation why the police officer had decided to arrest rather than going back to the Police Station and issuing a summons. The passage in the judgment in Thomas cited by John Hansen J continued:
On the law, we were referred to Holgate-Mohammed v Duke [1984] AC 437 and in particular to the statement by Lord Diplock (at 443) that the exercise of a power of arrest could be questioned by reference to the standard of unreasonableness under Wednesbury principles. The principle that was relevant in that case was that the arresting officer “must exclude from his consideration matters which are irrelevant to what he has to consider”. That is of course not the present case where the argument rather is that there had been a failure to have regard to a relevant consideration. The exercise of a power of arrest for an improper purpose is more readily the subject of censure and review than failing to have regard to some relevant purpose. In the latter case the failure must be a failure to have regard to a mandatory purpose. We were not referred to any case in which such an argument had succeeded in respect of a power of arrest. As well, we are not aware of any requirement that that choice between arrest and other possibilities, when arrest is available, must as a matter of law always be made. While we would accept that that could well be good police practice, we see no support for it in the words of s315 or in the relevant cases. In any event in this case the argument fails on the facts: the sergeant has indicated why the alternative course of a summons was not pursued at the time.
[22] Reverting to the present case, the Judge said he was satisfied that the primary reason for Sergeant Jones' decision to arrest rather than proceeding by summons was the seriousness of the charge. The Judge accepted that the alleged offending was on the lower end of the scale for the particular offence but it carried a maximum sentence of 7 years imprisonment and was serious; and the collateral evidence relating to the fingerprints was acceptable. He held that at the end of the day it would be a quite unreasonable fetter on the Police to say that for serious offending they had an obligation to specifically consider whether or not to arrest or to summons, and then to determine which course to adopt, adding that each case will depend on its own peculiar facts.
[23] The Judge dealt briefly with damages in the event of his conclusions on liability being held to be wrong. He considered it would have been inappropriate to award exemplary damages and said he would have awarded Mr Neilsen general damages of $10,000.
The Police Act 1958
[24] The statute reflects the functioning of the Police as a command service. The Commissioner, a statutory office holder, is given "the general control of the Police" (s3). Section 4 provides for Deputy Commissioners and by s5(1), (2), (5) and (6):
(1) The Commissioner may from time to time appoint such sworn and non-sworn members of the Police as the Commissioner thinks necessary for the efficient exercise of the functions, duties, and powers of the Police.
(2) Where the Commissioner thinks it is necessary to do so for the efficient exercise of the powers, functions, and duties of the Police, the Commissioner may designate any position within the Police that may be filled by any member of the Police.
(5) Except as otherwise expressly provided in this Act, the Commissioner shall have all of the rights, duties, and powers of an employer in respect of all members of the Police.
(6) Nothing in subsection (5) of this section shall limit or affect the powers and duties conferred or imposed on the office of constable by common law or any enactment.
[25] Section 30 provides for the issue of general instructions and s64 for the making of regulations. By s64(1), the Governor-General is empowered to make all such regulations as may in the Governor-General's opinion be necessary or expedient for giving effect to the provisions of the Act and for its due administration, including by subs (2)(a) provisions for the government, maintenance, duties, discipline, and control of the Police. Clearly, those provisions are intended to cover operational matters (see para [28] below). To the same purpose, s30(1) and (3) provide:
(1) The Commissioner may from time to time issue general instructions, not inconsistent with the provisions of this Act or regulations made thereunder, and all members of the Police shall obey and be guided by those instructions.
(3) A general instruction is deemed to have been communicated to a member of the Police when the instruction has been—
(a) Published in the Police Gazette; or
(b) Published in a Police magazine that is published under the authority of the Commissioner and distributed to all members; or
(c) Published in a manual of general instructions issued by the Commissioner to all members; or
(d) In the case of a member of a particular group of Police, published in a manual of instructions issued by the Commissioner to members of that particular group; or
(e) Brought to the personal notice of the member.
[26] It is implicit in these provisions, and particularly s30(1)(d), that a manual of instructions directed to a particular group of police, e.g. detectives, is a general instruction.
[27] In relation to individual officers, s37(1) provides for the oath to be taken under which the officer swears that he or she "will well and truly serve our Sovereign Lady the Queen in the Police, without favour or affection, malice or ill-will, until I am legally discharged; that I will see and cause Her Majesty’s peace to be kept and preserved; that I will prevent to the best of my power all offences against the peace". And by s37(2) a person who has taken the oath is "bound to serve Her Majesty as a member of the Police, in whatsoever capacity he [or she] may, in accordance with the provisions of this Act, be required to serve".
[28] The Police Regulations 1992 reg 3(2) requires the Commissioner to "take all reasonable steps to ensure that all members of the Police discharge their duties to the Government and the public satisfactorily, efficiently, and effectively". By reg 5(1)(b), every member of the Police is required to obey the lawful commands of a supervisor and clauses (2) and (5) then provide:
(2) Every member shall obey and be guided by -
(a) General instructions; and
(b) The Commissioner's circulars.
(5) Every Police party, regardless of its size, shall have a responsible supervisor when the party is proceeding on duty and, when there is no commissioned officer or non-commissioned officer to take charge of the party, the member sending the party on duty shall name a member for the purpose who shall be responsible for the proper performance of the duty and be obeyed for the time being as if he or she were a supervisor. In default of special appointment, the longest serving member shall take upon himself or herself the command and be held responsible for the discharge of the duty.
Regulation 9 goes on to create offences of misconduct or neglect of duty on the part of any sworn member, including:
(22) Failing to take due and prompt measures for the investigation of any matter requiring to be investigated or for the arrest of any offender
And:
(40) Negligence in the discharge of the member's duties.
Modern policing
[29] There are two relevant features of modern policing in New Zealand. The first is that police officers are not independent isolates. They belong to a command service. The Police Act itself reflects the obvious need for organisation and control and for the proper discharge of duties required of officers with disciplinary sanctions for deficient performance. Effective policing will often require the pooling of information obtained from different officers from various sources and the deployment of numbers of police officers with individual officers searching premises and arresting suspects in accordance with a predetermined plan of operations where each performs the role assigned to him or her.
[30] The second relevant feature of modern policing is that the decision to arrest without warrant where the threshold requirement of good cause to suspect is satisfied is a constrained discretion. It is constrained by the purposes underlying s315. It follows that it would be an abdication of discretion, and so an improper exercise of the power conferred by s315, for a police officer to say "I always arrest when I have good cause to suspect that an offence punishable by imprisonment has been committed". An analogous case is Attorney-General v Hewitt [2000] 2 NZLR 110. Two police officers who attended a domestic violence incident arrested the plaintiff. Randerson and Neazor JJ at paras [43]-[46] found that the constables had reasonable grounds to suspect the plaintiff of having committed an offence but found that they had failed to exercise their discretion. The officers arrested the plaintiff because they believed that they were obliged to do so as a police policy known as the "Kapiti Abuse Intervention Programme" required arrest in domestic violence cases where an assault was committed. The court held that the policy placed an unlawful fetter on the s315 discretion because departure from the policy was not permitted.
[31] In its terms s315 confers the power to arrest without warrant directly on the arresting constable. The threshold requirement is that there be good cause to suspect. Where that requirement has been satisfied the arresting officer must decide whether or not to arrest. It is at that step that the discretion he or she is considering exercising is constrained by the purposes underlying the section. How these requirements are satisfied in modern policing where large numbers of Police may be involved may require consideration in other cases but that is not in issue in this case. (But see R v Grace [1989] 1 NZLR 197; and O'Hara v Chief Constable of the Royal Ulster Constabulary [1996] UKHL 6; [1997] AC 286).
[32] Thus, in Hussien v Chong Fook Kam [1969] UKPC 26; [1970] AC 942, where the relevant provision empowered Police to arrest without warrant where the test of reasonable suspicion was met, Lord Devlin said at p948:
Suspicion arises at or near the starting-point of an investigation of which the obtaining of prima facie proof is the end. When such proof has been obtained, the police case is complete; it is ready for trial and passes on to its next stage. It is indeed desirable as a general rule that an arrest should not be made until the case is complete. But if arrest before that were forbidden, it could seriously hamper the police. To give power to arrest on reasonable suspicion does not mean that it is always or even ordinarily to be exercised. It means that there is an executive discretion. In the exercise of it many factors have to be considered besides the strength of the case. The possibility of escape, the prevention of further crime and the obstruction of police inquiries are examples of those factors with which all judges who have had to grant or refuse bail are familiar.
[33] There is no tension in this regard between s315 of the Crimes Act and s22 of the Bill of Rights. They are congruent. Section 22 affirms the fundamental principle of our law that no person should be arbitrarily arrested or detained by agents of the State. It applies as much to a short deprivation of liberty as to a long term deprivation.
[34] Whether an arrest or detention is arbitrary turns on the nature and extent of any departure from the substantive and procedural standards involved. An arrest or detention is arbitrary if it is capricious, unreasoned, without reasonable cause: if it is made without reference to an adequate determining principle or without following proper procedures. Read together, s22 affirms and infuses values underlying s315 that are reflected, too, in the relevant General Instructions issued by the Commissioner to all members of the Police and in the Manual for Detectives.
[35] General Instruction A291 states:
ARREST WITHOUT WARRANT A291 INTERPRETATION
(1) The power to arrest without Warrant, especially for minor offences, is to be exercised with discretion. Where persons can be brought before the Courts by way of Summons, this course should be followed.
(2) The question uppermost in the mind of a member considering arresting a person without Warrant should be whether the Prosecution is the best way of resolving the matter, or if there is a more appropriate alternative such as a warning, caution, counselling or referral to another Agency.
[36] Further and more detailed guidance is given in the Manual for Detectives, Second Edition, issued by the Commissioner on 7 November 1983. Chapter 3 is directed to arrest and referring to the discretion under s315 the Manual provides at 3.6 to 3.7:
Use of Discretion
(a) Bring an offender to justice, or
(b) Prevent -
(i) A breach of the peace, or
(ii) The commission of further offences.
Unnecessary arrests damage the reputation of the Police and cause ill feeling and antagonism.
(a) The nature and gravity of the offence
(b) The likelihood of -
(i) Further offences being committed
(ii) Accomplices being warned
(iii) Witnesses being interfered with
(iv) Evidence being destroyed or concealed
(v) The offender absconding to avoid Court
(c) Offender's -
(i) Character, reputation and criminal history
(ii) Family circumstances, place of abode, and employment
(iii) Condition - it may justify an arrest in his own or the public interest.
And as to procedure, at 3.12:
The exercise of the discretion: a principled approach
[37] Police officers considering the exercise of a discretion to arrest in circumstances where the condition precedent of good cause to suspect is met are required to "obey and be guided by" A291 of the General Instructions and Chapter 3 of the Manual for Detectives. The approach taken there by the Commissioner properly recognises that the discretion is ultimately that of the arresting officer but, to fulfil the statutory purposes underlying s315, the officer concerned must give appropriate consideration to the values of individual liberty and public order which are necessarily involved in the decision.
[38] Sir Thaddeus McCarthy explained the rationale for discretion and its constraints in this way ("The Role of the Police in the Administration of Justice", Clark (ed), Essays on Criminal Law in New Zealand at p182):
In the administration of a system of criminal justice such as we have in New Zealand, it is inevitable that the officials who become involved at the various stages in the procedure, have some discretion as to how they will act. Most people accept these discretions as necessary for a reasonably flexible system, one which is capable of dealing with individual cases rather that stereotypes. However, it is a general principle in the administration of justice that discretions should be exercised within a legal framework; that they be not unfettered but limited - discretions ought to be exercised upon proper grounds and ought to be open to review by competent authorities. A fortiori that is so, some might think, in police discretions, for they have an unusually profound affect upon the lives of the people.
and cited the President's Crime Commission, The Challenge of Crime in a Free Society, 106:
It is incumbent on police departments to define as precisely as possible when arrest is a proper action and when it is not.
[39] Terence Arnold, in his illuminating contribution to the essays, "Why Arrest?", with particular focus on the discretion under s315 said at 214:
[T]he law should allow the individual police officer some flexibility, some room for manoeuvre in unusual fact situations; but it should not go so far as to concede him an unfettered discretion. In the exercise of an unfettered discretion there is the potential for abuse; and surely part of the idea of doing justice lies in attempting to treat people who are alleged to have committed similar offences in similar ways. Thus what is required is some guideline, some reasonable standard which will promote the establishment of consistent policies, but which is sufficiently flexible to allow for unusual or special cases. Thus, arrest would be used, not at the whim of a particular officer, but because there was some sensible reason for its use.
[40] Acting under his statutory responsibilities the Commissioner has sought in the instructions he has issued to provide guidance to police officers in the use of the discretion. We add three comments. The first is that s315 is neutral as to the exercise or non-exercise of the power. As a matter of interpretation it does not warrant the conclusion that Parliament intended that arrest should be the usual response and provide the usual method of bringing people within the criminal justice system.
[41] Second, equally, there is no basis for concluding that the police officer should be satisfied that arrest is necessary in the particular circumstances. Legislatures and law reform bodies in other jurisdictions have not been unanimous. In Australia the Commonwealth Parliament, responding to the report of the Law Reform Commission of Australia, Criminal Investigations (ALR 2, 1975), amended the Crimes Act 1914 which now provides in s3W that a constable may arrest without warrant where he or she believes on reasonable grounds that an offence has been or is being committed and that arrest is necessary; and the Crimes Act 1900 s349W (ACT) is to the same effect. But none of the Australian States has introduced a universal necessity requirement, even though the New South Wales Law Reform Commission recommended the introduction of a necessity requirement in its 1987 discussion paper, Police Powers of Arrest and Detention (DP 16) and Victoria has a qualified requirement (Crimes Act 1958 ss458 and 459).
[42] In the United Kingdom under the Police and Criminal Evidence Act 1984 ss24 and 25, a necessity principle applies only to offences which are not arrestable offences. And in Canada, a necessity type requirement applies only in respect of specified categories of offences and with the power to issue an appearance notice where arrest does not take place (Criminal Code ss495(2) and 496). In terms of s495(2), the police officer concerned shall not arrest a person without warrant in any case where:
(d) he believes on reasonable grounds that the public interest, having regard to all the circumstances including the need to
(i) establish the identity of the person,
(ii) secure or preserve evidence of or relating to the offence, or
(iii) prevent the continuation or repetition of the offence or the commission of another offence,
may be satisfied without so arresting the person, and
(e) he has no reasonable grounds to believe that, if he does not so arrest the person, the person will fail to attend court in order to be dealt with according to law.
[43] The third important consideration is that there must be a range of serious crime where a police officer could ordinarily be expected to arrest in order to bring the arrestee publicly within the criminal justice system with the courts then assuming the responsibility for bail and like matters. In that regard s316(5) of the Crimes Act 1961 provides that "Every person who is arrested on a charge of any offence shall be brought before a Court, as soon as possible, to be dealt with according to the law", a right further affirmed by s23(3) of the Bill of Rights. See, too, R v Te Kira [1993] 3 NZLR 257.
The exercise of the discretion in this case
[44] The exercise by a police officer of the discretion whether or not to arrest where the condition precedent of good cause to suspect is satisfied is clearly reviewable in false imprisonment cases. As this court noted in Thomas (para [21] above), the exercise of the power of arrest can be questioned by reference to the standard of unreasonableness under Wednesbury principles. For reasons we can state quite shortly, we are satisfied, applying conventional, narrow, Wednesbury principles, that the decision to arrest in this case was unreasonable.
[45] Sergeant Jones deposed to the matters that led him to arrest Mr Neilsen. There is, too, the confusing overlay that Sergeant Jones said at depositions that he went to the Neilsens' home believing, wrongly as he recognised in his oral evidence at trial, that he was instructed by Senior Sergent Kench to arrest Mr Neilsen.
[46] The first reason stated was a belief that Mr Neilsen might re-offend in the future in a similar fashion involving fraud and the use of documents and that it was necessary to have his fingerprints on record in that event (para [18]). That was an irrational and illegitimate basis for arresting. The alleged offending had occurred 14 months earlier. The sums involved were small. The sergeant agreed that Mr Neilsen did not have a criminal history or a reputation for fraud. He accepted he had no evidence that Mr Neilsen might commit further offences. Police have no authority under s315 to arrest and hold people against the possibility that they may offend at some unspecified time in the future.
[47] Next, at one point in the oral evidence it was suggested that the fingerprints of Mr Neilsen might have been required as identifying particulars in respect of these charges. But the sergeant accepted that he already had the necessary evidence, the actual cheques for $80 and $30 and the deposit slips and Mr Neilsen's bank statement for their payment into his account and that he did not need to have any of the documents checked for Mr Neilsen's fingerprints. Further, the fingerprinting power under s57 of the Police Act arises only where and when the person concerned is in lawful custody on a charge of having committed an offence. The existence of that fingerprinting potential would not be a rational basis for an earlier decision to exercise the power to arrest without warrant. Accordingly, it is significant that in the instructions concerning use of the discretion under s315 in the Manual for Detectives there is no suggestion that the potential for fingerprinting is a relevant consideration (see para [36] above).
[48] The second stated reason, which he eventually said at the end of his oral evidence was his primary reason for arresting Mr Neilsen, was to put him before the court to face two serious Crimes Act charges. In cross-examination Sergeant Jones agreed that, if the nature of the offending was not grave, that would be a factor suggesting a summons rather than arrest was warranted. With respect to John Hansen J's acceptance of the sergeant's stated reason for arresting, we are satisfied that it was an irrational decision on the sergeant's part and that the arrest was an improper exercise of the discretion under s315. On any view of the facts, failing to account for these small sums in which the profit element to Mr Doherty was very modest could not be stigmatised as serious crime; the complaint to the police had only been made belatedly after Mr Doherty's firm had been ordered to pay Mr Neilsen damages for unjustifiable dismissal; and criminality had been and was disputed by Mr Neilsen.
Damages
[49] The Judge noted that, if his findings as to liability were wrong and Mr Neilsen had succeeded, he would have awarded $10,000 general damages and that it would not have been appropriate to award exemplary damages.
[50] Given his findings as to liability, the Judge was not called on to determine the illegality involved and its impact on Mr Neilsen's rights. There is no indication in the Judge's brief remarks as to what factual findings he might have had in mind. In terms of our conclusions, Mr Neilsen was properly required to face a public charge of dishonesty (albeit he was ultimately acquitted) and is not entitled to compensation for his feelings of aggrievement over the prosecution. The liability of the police and the claim to general damages arises from the unlawful arrest and detention. The police officer had good cause to suspect and that requirement of s315 was satisfied. But the ensuing arrest and detention was unlawful. Mr Neilsen was detained for around 1½ hours. He is entitled to damages for that injury to his liberty and for the injury to his feelings reflecting the indignity, mental suffering and humiliation involved. In that regard there are no aggravating features accompanying his treatment while in custody.
[51] The authorities indicate the modest levels at which New Zealand courts have traditionally assessed general damages for false imprisonment. We are satisfied that in accordance with the general pattern of awards in a case such as this, involving a brief period of detention where there are no other aggravating features, the appropriate award of general damages is $5,000. And on the facts there is nothing in the nature of outrageous conduct on the part of the police to warrant an award of exemplary damages.
Result
[52] The appeal is allowed, the orders made in the High Court are quashed, and judgment is given in favour of Mr Neilsen in the sum of $5,000. As well, he is entitled to the declaration sought in the amended statement of claim that he was unlawfully arrested and detained on 12 March 1994. Costs in this court are reserved and counsel may submit memoranda if they are unable to agree. The question of costs in the High Court is remitted to that court for determination.
Solicitors
Young Hunter, Christchurch, for
appellant
Crown Law Office, Wellington, for respondent
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URL: http://www.nzlii.org/nz/cases/NZCA/2001/143.html