District Court New South Wales

• Medium Neutral Citation: Carey v State of New South Wales [2013] NSWDC 213
• Hearing dates: 3, 4 September 2013
• Decision date: 05 September 2013
• Before: Neilson DCJ

Decision

I give verdict and judgment for the defendant against the plaintiff

Application for indemnity costs is refused

I order the plaintiff to pay the defendant's costs on the ordinary basis

• Catchwords: TORTS - Wrongful imprisonment - Plaintiff arrested and detained at Grafton Police Station for 86 minutes - Whether arrest was lawful - As part of a police operation warrants were obtained to intercept telecommunications - Plaintiff identified speaking with head of a drug syndicate - Police obtained search warrant and executed on plaintiff's property - Police found and seized a large number of items including cash and illegal drugs but plaintiff not present - A week later police again attended and plaintiff signed Property Seizure / Exhibit form - Police told plaintiff he could come down to the Station with a solicitor to make a statement but if he did not he would eventually be "picked up" - A few months later police attended plaintiff's premises with intention of charging him with supplying drugs - Plaintiff not present but police made contact and instructed him to attend the Station to be fingerprinted, photographed and released on bail - When plaintiff arrived he was arrested, cautioned, charged and released on bail - Question of whether Police can impose bail if person is not arrested
• Legislation Cited: Law Enforcement (Powers and Responsibilities) Act 2002 s 99
• Cases Cited: Ferguson v Jensen (1920) 53 DLR 616; Hyder v Commonwealth of Australia [2012] NSWCA at 336; R v Le [2005] NSWCCA 40; R v Rondo [2001] NSWCCA 540; Zaravinos v State of New South Wales [2004] NSWCA 320
• Category: Principal judgment
• Parties: Patrick Carey (Plaintiff); State of New South Wales (Defendant)
• Representation: Mr R di Michiel (Plaintiff); Mr G Bateman (Defendant); Foott Law & Co (Plaintiff); Sparke Helmore (Defendant)
• File Number(s): 2012/142981

Judgment

1 The plaintiff, Patrick Joseph Carey, brings an action for damages in the tort of wrongful imprisonment. The wrongful imprisonment is alleged to have occurred on 5 June 2009. There is no dispute that at 2.40pm on that day he was arrested by then Senior Constable Graeme Bourke, who is now a detective sergeant, and was detained in the Grafton Police Station until being released on bail at 4.06pm. There is no dispute that the plaintiff was detained at the Grafton Police Station for 86 minutes.

2 Essentially, the question for my determination is whether the arrest of the plaintiff by Detective Senior Constable Bourke was lawful. There is very little factual dispute in this case. If there be any factual dispute I prefer the evidence of now Detective Sergeant Bourke because he has a clear recollection of the events of his interaction with the plaintiff, whilst the plaintiff has a very poor memory of many of those interactions. The plaintiff's inability to remember a number of things is consistent with his being affected by prohibited drugs at relevant times and having an addiction which he needed to overcome.

3 The evidence gives me very little background information about the plaintiff. He was born on 5 April 1981. He is currently 32 years old. In 1999 he commenced working at the South Grafton abattoir where he worked as a slaughterman. He would have then been 18 years old. I do know that since 1999 the plaintiff has been living in Grafton and I know that in 2009 the plaintiff's parents were living in Grafton, and an inference could be drawn that the plaintiff was born and grew up in Grafton but it is not necessary to decide that. Suffice it to say that the plaintiff has spent all his adult life in Grafton.

4 The plaintiff developed an illegal drug habit. When he developed that habit the evidence does not disclose. In October 2007, a police operation named Foxe was initiated by Grafton detectives. Operation Foxe was later referred to as Strikeforce Weemabah. It was concerned with the investigation of drug supply in Grafton and the Clarence River Valley.

5 On 12 November 2007, Assistant Commissioner Parsons gave authority to the Grafton police to conduct a controlled operation. As part of that operation and the work of the strikeforce, warrants were obtained to intercept telecommunications. One warrant was issued on 12 February 2008 to intercept communications from a man identified as Paul Kruger. According to the evidence given by Detective Sergeant Bourke, Kruger appears to have been the head or linchpin of the drug syndicate that the strikeforce was investigating. As a result of the interception of Kruger's telecommunications, police identified the plaintiff as a person with whom Kruger was dealing. That led the police to identify the plaintiff's name, his address and his telephone number.

6 On 20 February 2008, police obtained seven search warrants as a result of information obtained from the intercepted telecommunications. Those seven search warrants were simultaneously executed on 21 February 2008. One of the premises at which a search warrant was executed was the premises occupied by the plaintiff and by his housemate, Mr Damien Armstrong, but neither the plaintiff nor Mr Armstrong was at home at the time the police called to execute the search warrant.

7 The police found and seized a large number of items. Exhibit B is two and a half pages of Property Seizure / Exhibit form itemising 29 items seized by police at the plaintiff's premises at 1 Bawden Street, Grafton. Significant items seized were cash amounting to $12,150, a series of plastic bags containing various powders, a large amount of vegetable matter which has been identified as cannabis leaf, and eight cannabis plants which were growing in the back yard. The first items that were seized by the police were seized at 11.25am. The last items seized were the eight cannabis plants growing in the back yard. They were seized at 2.05pm. Accordingly, it would appear that the police were at the premises for over two and a half hours.

8 The plaintiff on 21 February 2008 was at the Woolworths Supermarket in Grafton. He saw there a friend, identified as Mr Rick Campbell, who spoke to him and clearly advised the plaintiff that the police were at his house. The plaintiff elected not to return to his house but went to a friend's house, in accordance with an earlier plan, where there was to be a barbecue. The plaintiff attended the barbecue, at which alcohol was consumed and perhaps other substances, and he elected to stay the night at his friend's house because there was no person sober enough to drive, the plaintiff himself not having a driver's licence.

9 On 22 February 2008, the plaintiff returned to his house at 1 Bawden Street and found that the front door had been kicked in and the house was a "bit of a mess". When the plaintiff arrived at the house, Mr Damien Armstrong was already there. A week later Detective Senior Constable Bourke attended the plaintiff's house. The plaintiff was then present as was Mr Armstrong.

10 The detective senior constable provided to the plaintiff the Occupier's Notice that ought to have been given to the plaintiff and/or his housemate at the time of the execution of the search warrant. The plaintiff was shown the Property Seizure / Exhibit forms and he signed them and dated them 28 February 2008. As the occupier of the premises he acknowledged receiving a copy of the Property Seizure / Exhibit forms from Senior Constable Megan Sommerlad, who was accompanying Detective Senior Constable Bourke.

11 Detective Senior Constable Bourke had taken with him a portable recording device, which could be used to obtain a statement from either the plaintiff or Mr Armstrong or both. The Detective Senior Constable sat down and talked to the plaintiff and his housemate over the coffee table and told them that drugs had been seized, that serious criminal offences had occurred and that they would eventually be charged in relation to the drugs that had been found. Both the plaintiff and his housemate showed concern about the information that was given to them by the Detective Senior Constable. They asked if they ought obtain legal advice and the Detective Senior Constable advised them that they would be well advised to do so and in those circumstances he elected not to seek to interview either the plaintiff or Mr Armstrong, because he thought it would be unfair. He told the pair that they could come down to the Grafton Police Station with their solicitor and make a statement, but if they did not do so they would eventually be "picked up".

12 The concept of the police "picking up" a suspected person is hardly a description of the police offering a free taxi service from one place to the police station. The concept of "being picked up" is consistent with the police taking a person into custody. When the plaintiff was asked about that, he acknowledged that that would be a fair inference to be drawn from those words if they were used, which he could not remember. In the meantime, it is to be noted that at the time of the execution of the seven search warrants on 21 February 2008, five people were arrested and four of those persons were refused bail.

13 The only person admitted to bail was the "de facto" of one of the principals and the inference to be drawn is that was a reference to a de facto wife. The four actually arrested were principals in the drug supply syndicate involving Mr Kruger. There was significant media coverage of the "drug raids" in Grafton on 21 February 2008 as well as of the arrest of five persons. The Detective Senior Constable, as he then was, assured me that the police advised the media that they would expect heavy gaol sentences to be imposed upon the principals in the drug syndicate, if they were convicted.

14 As the Detective Senior Constable pointed out, Grafton is a relatively small city and the news rapidly spread throughout the local community. In those circumstances, one can understand why the plaintiff may have elected not to return to his house when he knew the police were there, presumably executing a warrant, knowing, as he must have known, that there were drugs at his house. One can also understand his reluctance to return to the house until 22 February 2008 and one can clearly understand his concern when interviewed by then Detective Senior Constable Bourke on 28 February 2008.

15 However, the press of business and short-staffing at the Grafton Police Station and in the Local Area Command did not permit now Detective Sergeant Bourke from again dealing with the plaintiff until 5 June 2009. For a few months prior to that date, the Detective Sergeant intended to charge the plaintiff with supplying drugs, an offence contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985, which offence carries a maximum penalty of 15 years imprisonment and/or a substantial fine.

16 The amount of methylamphetamine seized on 21 August 2008 was 32.3 grams in the plastic bags but, according to the facts sheet, I am told it was 28.43 grams. The largest sample of drugs assayed by the Department of Analytical Laboratories was 24.7 grams, which only had a purity of 2%. The amount of methylamphetamine seized by the police amounted to both an indictable quantity and a trafficable quantity.

17 On 5 June 2009, the then Detective Senior Constable Bourke went to 1 Bawden Street, Grafton, but the plaintiff was not there. Detective Senior Constable Bourke spoke with a man whom he now knows to be Jamie McLoughlin [my spelling] who was either then resident there or was a visitor there. Mr McLoughlin advised the Detective Senior Constable that the plaintiff was not at home but he invited the Detective Senior Constable to use the house's land line to speak to the plaintiff. The Detective Senior Constable does not now remember whether the number was dialled by Mr McLoughlin or himself, nor does he recall what number was used. One would not expect any police officer, in particular a detective, to remember such details from four years ago. The Detective Senior Constable told the plaintiff, to whom he spoke on the telephone, that that was the day on which he was going to be charged. He asked the plaintiff to go to Grafton Police Station for that purpose. He explained to the plaintiff that he would be fingerprinted, photographed and released on bail.

18 The plaintiff inquired of the Detective Senior Constable for how long he would be at the police station and the Detective Senior Constable told him for one or two hours depending on what happened, but that he would go to the police station straight away and commence attending to the necessary paperwork in order that the period of time at which the plaintiff would be at the police station would be minimised.

19 It is clear from exhibit 1, the COPS event, that the Detective Senior Constable started attending to paperwork concerning the plaintiff at 2.20pm on 5 June 2009. It is to be recalled, from what I earlier said, that the plaintiff was not arrested until 2.40pm. The Detective Senior Constable started the COPS entry 20 minutes before the plaintiff arrived at the police station. The plaintiff did not go directly to the police station. He went and visited a local solicitor, Mr Neil Johnson. The visit was probably brief and the plaintiff clearly was given advice, that advice being not to agree to give an interview. Between 2.20 and 2.40pm, Mr Johnson rang the then Detective Senior Constable and advised that the plaintiff would not participate in a record of interview with the police.

20 The plaintiff arrived in the foyer of the Grafton Police Station at 2.40pm. The Detective Senior Constable was then on the first floor of the police station, the foyer being on the ground floor. When he was advised that the plaintiff was in the foyer he went to the foyer and told the plaintiff that he must now act formally. The Detective Senior Constable then gave his name, office and advised the plaintiff that he was under arrest for one count of supplying a prohibited drug. The plaintiff was then formally cautioned. The Detective Senior Constable asked the plaintiff to accompany him into the area of the police station not open to the public, that is, to accompany him out of the foyer into the police station itself. The plaintiff did so.

21 He was taken to the charge room and entered into the dock. The custody records show that the plaintiff was placed in the dock at 2.42pm and was introduced to the custody manager, Leading Senior Constable Michael McGrath. The evidence before me seems to suggest that the plaintiff was in the dock for the whole of the 86 minutes, but I find that difficult to accept. However, it is likely the plaintiff remained in the charge room or custody management area of the police station until he was given a Court Attendance Notice and admitted to bail by Leading Senior Constable McGrath, who was the authorised officer at the Grafton Police Station at the time, probably because he was also the custody manager. The plaintiff signed his bail undertaking at 4.45pm on 5 June 2009. That is the time and date he placed on his bail undertaking, although the custody management records indicate that the plaintiff was released from custody at 4.06pm.

22 The plaintiff's bail was conditional. It required him to report to the Officer-In-Charge of Police at Grafton commencing on 6 June 2009, a Wednesday, and on each Wednesday thereafter at some time between 8am and 8pm. The reasons for imposing that condition are contained in Exhibit E. The reasons given by Leading Senior Constable McGrath are these:

"Probability that Accused will not Appear if Granted Bail due to

- circumstances of offence (nature & seriousness)

- strength of case

- severity & probable penalty."

23 The Court Attendance Notice had been generated at 4.03pm. It was returnable before the Local Court at Grafton on Monday 20 July 2009 at 9.30am. The plaintiff appeared at the Grafton Local Court in obedience to that Court Attendance Notice. There were clearly a number of appearances at court. The plaintiff clearly pleaded guilty to the indictable offence under s 25(1) and was committed for sentence. He was sentenced by my colleague, Judge C E O'Connor QC, who imposed a sentence of imprisonment of two years but suspended it pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999. I do not know the exact date on which that sentence was imposed; only that it was in March 2010.

24 I hazard the observation that the plaintiff must have been well represented at the hearing before my colleague as the law generally requires any person who is actively involved in drug trafficking to have imposed upon him a full-time custodial sentence. The plaintiff told me - and I wholly accept - that he observed the conditions of the bond under s 12 during the two-years that it bound him.

25 Section 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 ("LEPRA") governs the power of police officers to arrest without warrant. Subsection (1) permits a police officer to arrest a person without a warrant if a person has committed a "serious indictable offence" for which he has not been tried. A "serious indictable offence" is defined in LEPRA as an offence carrying a sentence of imprisonment of five years or more. Clearly, the plaintiff had committed an offence carrying a penalty of more than five years imprisonment. I should indicate that the powders seized by the police on 21 August 2008 had been analysed on 12 April 2008, identifying them as methyl amphetamine, so the Detective Senior Constable, as he then was, knew, as at the time that he arrested the plaintiff, that the plaintiff had committed a "serious indictable offence" as that term is defined in LEPRA. In the alternative, of course, subsection (2) provides that a police officer may, without a warrant, arrest a person a police officer suspects on reasonable grounds to have committed an offence under any Act or statutory instrument. Either way, the arrest without warrant was justified under either subsection (1) or (2).

26 However, subsection (3) limits the general width of the power provided by subsections (1) and (2). Subsection (3) is in the following terms:

"A police officer must not arrest a person for the purpose of taking proceedings for an offence against the person unless the police officer suspects on reasonable grounds that it is necessary to arrest the person to achieve one or more of the following purposes:

(a) to ensure the appearance of the person before a court in respect of the offence,

(b) to prevent a repetition or continuation of the offence or the commission of another offence,

(c) to prevent the concealment, loss or destruction of evidence relating to the offence,

(d) to prevent harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence,

(e) to prevent the fabrication of evidence in respect of the offence,

(f) to preserve the safety or welfare of the person."

The present defendant relies upon the provisions of the subsection (3)(a) to justify the arrest of the plaintiff.

27 The legislative predecessor of s 99 of LEPRA was s 352 of the Crimes Act 1900. The equivalent provision under federal law is the Crimes Act 1914 s 3W. In the common law world there are many similar enactments. Some enactments require a police officer to have a belief; other provisions such as s 99(3) merely require the policeman to have a suspicion, "suspicion" being the noun cognate with the verb to suspect. A suspicion is not as demanding a test as a belief. In R v Le [2005] NSWCCA 40 it was held that the term "reasonably suspects" was not substantially different from "with reasonable cause to suspect". In R v Rondo [2001] NSWCCA 540 the Court of Criminal Appeal held of the former term this:

"(a) A reasonable suspicion involves less than a reasonable belief but more than a possibility. There must be something which would create in the mind of a reasonable person an apprehension or fear of one of the state[s] of affairs covered by [the then] s 357E [of the Crimes Act 1900, which is the equivalent of s 36 of LEPRA]. A reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence.

(b) Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be shown. A suspicion may be based on hearsay material or materials which may be inadmissible in evidence. The materials must have some probative value.

(c) What is important is the information in the mind of the police officer stopping the person or the vehicle or making the arrest at the time he [or she] did so. Having ascertained that information the question is whether that information afforded reasonable grounds for the suspicion which the police officer formed. In answering that question regard must be had to the source of the information and its contents seen in the light of the whole of the surrounding circumstances."

28 There can be various formulations of the same concepts. The plaintiff relies in particular in the principles set out by McColl JA in Hyder v Commonwealth of Australia [2012] NSWCA at 336. That case concerned s 3W of the Crimes Act 1914. That Act requires not a suspicion but a belief. Ten relevant principles are set out by her Honour in [15] of her reasons. Subject to the realisation that her Honour was dealing with the Federal provision and not the State provision, the relevant principles which her Honour stated that are here applicable are those numbered by her (1), (4), (5), (6), (7), (9) and (10). If I may be permitted to do so, I shall abbreviate them:

(1) When a statute prescribes that there must be "reasonable grounds" for a belief, it requires facts which are sufficient to induce that state of mind in a reasonable person;

(4) There must be some factual basis for either the suspicion or the belief ... the state of mind may be based on hearsay material or materials which may be inadmissible in evidence; the materials must have some probative value;

(5) The objective circumstances sufficient to allow a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities the subject matter in fact occurred or exists; the assent of belief is given on more slender evidence than proof;

(6) Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce the inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture;

(7) What constitutes reasonable grounds for forming a suspicion or belief must be judged against "what was known or reasonably capable of being known at the relevant time" ... whether the relevant person had reasonable grounds for forming a suspicion must be determined not according to the subjective beliefs of the police at the time but according to an objective criterion;

(9) The identification of a particular source, who is reasonably likely to have knowledge of the relevant fact, will ordinarily be sufficient to permit the Court to assess the weight to be given to the basis of the expressed [state of mind] and, therefore, to determine that reasonable grounds for [it] exist;

(10) ... the principles Lord Greene MR enunciated in Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 [as it applies in this State, that is, that an executive discretion has been given to the police and it cannot be questioned in any court of law except under the principles outlined by his Lordship in that case].

29 What was available to Detective Senior Constable Bourke at the time? The first thing is that he himself had listened to the plaintiff speaking to members of the drug syndicate in the lawfully intercepted telecommunications. He had listened to the plaintiff talk to, amongst others, Paul Kruger. The Detective Senior Constable told me that the plaintiff was heavily involved in drug supply in Grafton. The Detective Senior Constable was accordingly aware of the extent of the plaintiff's involvement in drug trafficking and the seriousness of his involvement in the drug trafficking, and therefore the possible and likely outcome if the plaintiff was charged. The Detective Senior Constable made it very clear that, as far as he was concerned, the plaintiff would, if charged and convicted, receive a lengthy custodial sentence. The Detective Senior Constable was therefore well aware of the seriousness of the offence, the strength of the case against the plaintiff and the likely serious consequence for the plaintiff if charged and convicted.

30 The telecommunications intercepts also allowed the Detective Senior Constable to know something about the plaintiff's employment and lifestyle. He told me that the plaintiff was little interested in his job. That is wholly consistent with what the plaintiff told me. Although he commenced working at the south Grafton abattoir as a slaughterman in 1999, he lost that job in 2008 shortly after the "police raid" - that is, 21 February 2008 - because he had not attended work for a number of days and when he phoned his employer he was told that the work was no longer available to him. He told me that his attendance record prior to February 2008 had been erratic. The plaintiff told me that he was then without a job for a year until returning to work at the abattoir 12 months after he lost the job. One infers, therefore, that he got his job back in about March 2009 but for 12 months shortly after 21 February 2008 he was unemployed, having lost the job because of poor attendance. One can also accept that somebody who was affected by drugs could not be seen as a "good worker" in an abattoir, whether he worked as a slaughterman, a slicer, a boner or a labourer because work in an abattoir can be extremely dangerous and is not a job which one ought do if affected by alcohol or drugs.

31 The Detective Senior Constable told me that the plaintiff was living a drug-fuelled lifestyle and the lifestyle of one supplying drugs. One would expect a person living a drug-fuelled lifestyle to be living erratically, to be seeking highs, to be at times hungover, to be making poor decisions and to be concerned only about obtaining a "fix" to maintain the "high" and to do that probably supplying to others to make the money with which to buy the drugs to maintain the drug addiction. The Detective Senior Constable also told me that there were numerous parties going on at the plaintiff's house and, at parties for people in their 20s, one might expect not only the drinking of alcohol but the smoking of certain substances and perhaps other dangerous or risky behaviour. The Detective Senior Constable also pointed out that the residence in which the plaintiff was living was a rented property and that the man with whom the plaintiff was living, his flatmate, Damien Armstrong, was unemployed and at relevant time the plaintiff was on sick leave as far as the Detective Senior Constable knew.

32 There is no suggestion that the plaintiff had any dependents or any stable relationship which might tie him to the local community, other than the presence of his parents in the city, and there is no suggestion that he had any children. One salient piece of information obtained from the intercepted telecommunications was that at one stage Paul Kruger had offered the plaintiff work on the Queensland Gold Coast. Whether that work was lawful or unlawful the evidence does not disclose. However, the fact that the plaintiff could be offered work interstate is also a significant factor in ascertaining whether the plaintiff might stay in Grafton to answer a Court Attendance Notice.

33 Another thing that the Detective Senior Constable relied upon was his experience in dealing with "young men" in a position such as the plaintiff's, who faced serious charges and serious penalties. It was his experience that a number of such young men had decamped, left not only the city but the district, often to go interstate and, therefore, sometimes evading court and of there being a reluctance on the part of the New South Wales Police to seek extradition from interstate other than for very serious crimes.

34 In other words, the Detective Senior Constable put the plaintiff into a category of young men who, in the past, to his certain knowledge, had fled from justice. He put the plaintiff in a category of young persons who could be flight risks. That caused the Detective Senior Constable to suspect that there was a risk that the plaintiff, if charged, would not attend court, that he was a flight risk and, therefore, that it was necessary to arrest him in order to impose bail conditions which would minimise the prospects of the plaintiff's seeking to avoid appearing before the court to answer the charge against him.

35 In my view, the grounds held by the Detective Senior Constable for suspecting that the plaintiff was a flight risk were all reasonable. It was argued on behalf of the plaintiff that he had not, in the past, failed to co-operate with the police or failed to comply with obligations and that therefore the Detective Senior Constable was not justified in suspecting that the plaintiff might be a flight risk. However, the fact is that antecedent to 5 June 2009 the plaintiff had not had any interaction with the police or the legal system other than on 28 February 2008. This was not a case where, for example, in the past charges had been laid against the plaintiff and he had turned up to court and answered the charges either without being arrested or granted bail or after having been arrested and granted bail. There was no prior "form" which might have led the Detective Senior Constable from the belief that the plaintiff was a flight risk.

36 Furthermore, when the Detective Senior Constable interviewed the plaintiff and his housemate on 28 February 2008, the plaintiff was offered a choice either to see a solicitor and attend with him at the police station in order to participate in an interview or, alternatively, be "picked up". The plaintiff did not avail himself of the first opportunity. He did not avail himself of an opportunity which would have avoided the necessity of the Detective Senior Constable "picking up" the plaintiff.

37 The only other relevant interaction, of course, is the fact that on 5 June 2009 the plaintiff and the Detective Senior Constable spoke on the telephone. The Detective Senior Constable asked the plaintiff to attend at the Grafton Police Station and the plaintiff did so. That is one piece of co-operation.

38 However, a contrary consideration is that, once at the police station and given a Court Attendance Notice for an offence that was indictable - that is, triable by judge and jury in this Court rather than summarily by a magistrate sitting in the Local Court, a Court Attendance Notice for a crime carrying a maximum penalty of 15 years imprisonment - seeing the writing was on the wall, so to speak, that might have caused the plaintiff to act irrationally, as those with a drug addiction often do.

39 In other words, I do not believe that such co-operation as the plaintiff had given to Detective Senior Constable Bourke countermanded the other information available to the Detective Senior Constable which led him to suspect the plaintiff might be a flight risk. The Detective Senior Constable still had reasonable grounds for his suspicion.

40 The remaining argument, as far as the plaintiff is concerned, is that it was not necessary to arrest the plaintiff in order to place him on bail conditions because of the provisions of s 15 of the Bail Act 1978. Section 15 is in Pt 2 Div 5 of the Bail Act 1978. Part 2 provides for general provisions respecting bail and Div 5 is heading "Miscellaneous Provisions". The section is this:

"(1) An accused person may be granted or refused bail in accordance with this Act, notwithstanding that the person is not in custody.

(2) Nothing in this Act requires the grant of bail to an accused person who is not in custody."

41 Significantly, the work of Howie and Johnson, Criminal Practice and Procedure New South Wales, provides no commentary on this curious provision. That indicates, as far as I am aware, that there have been no decisions made concerning s 15. I refer to the provision as "curious" because I was always of the belief that it was only necessary to admit persons to bail if they had been arrested and were in custody. However, my attention was only drawn to this provision when it was raised in evidence in a matter called Tilse v State of New South Wales, which is yet to be finalised. I understand that the solicitor for Ms Tilse is the solicitor for the current plaintiff.

42 The Detective Senior Constable, as he then was, was asked in evidence whether he considered admitting the plaintiff to bail without arresting him and the now Detective Sergeant was bemused by the question because, as far as he was aware, there was no provision which would enable him or any member of the police force to grant bail to somebody who had not been arrested. The detective sergeant was not pressed in evidence as to his understanding of the provisions of the Bail Act 1978 and this particular provision.

43 The argument advanced by the plaintiff is that because of s 15 it was not necessary to arrest the plaintiff: he could have been given a Court Attendance Notice and a bail restriction, but that may have raised in the plaintiff himself the question, "Why are you putting me on bail if I have not been arrested?" That could promote from him a refusal to sign a bail undertaking and then, of course, it would have been necessary to proceed to arrest in any event.

44 The plaintiff told me that whilst in custody for about one and a half hours, he felt "very scared, shocked, surprised". However, it became clear in cross-examination that his feelings were largely caused not by the interaction between himself and the Detective Senior Constable on 5 June 2009 but by the fact that he was charged by a very serious offence; the case against him was very strong and that the maximum penalty was 15 years imprisonment, and he could well expect to be serving a full-time custodial sentence.

45 However, turning to the provisions of s 99(3) of LEPRA, it is clear that the then Detective Senior Constable genuinely suspected on reasonable grounds that it was necessary to arrest the plaintiff in order to ensure his appearance before the Court. If he believed it to be necessary to arrest the plaintiff in order to impose a bail condition then it should have to be squarely put to the Detective Senior Constable that it was not necessary for him to arrest the plaintiff in order to impose the bail condition. The questioning in that regard was perfunctory. It was not drawn to the Detective Senior Constable's attention the fact that he may have had, or that perhaps one should say that, Leading Senior Constable Michael McGrath had the power to impose bail conditions without arrest.

46 However, Pt 3 of the Bail Act 1978 governs Police Bail. Section 18 commences thus:

"(1) Where a person is charged by a police officer with an offence and the person is in custody, the proper officer shall, as soon as reasonably practicable:

(a) give the accused person such information in writing respecting the person's entitlement to or eligibility for bail as is prescribed by the regulations and sign an acknowledgment in the prescribed form that he or she has given the accused person the information, and

(b) if the proper officer is:

(i) authorised to grant bail - determine whether or not bail should be granted to the person or bring the person, or cause the person to be brought before a court, or

(ii) not authorised to grant bail - bring the person before a court or an authorised officer.

(2) The authorised officer before whom a person is brought pursuant to subsection(1)(b)(ii) shall, as soon as reasonably practicable, determine whether or not bail should be granted to the person or bring the person or cause the person to be brought before a court."

47 The authority for police to grant bail is given by s 17 of the Act. Section 19 deals with procedure following the determination as to bail, s 20 deals with procedure where there has been no release on bail and s 21 provides for facilities to be provided at the police station. In other words, the ability of police to grant bail is, in fact, governed by s 18(1), which requires that police can grant bail only where a person is in custody. That is a provision specific to police bail and clearly the general provision of s 15 does not override the special provision in s 18. Therefore, it was necessary for the Leading Senior Constable to arrest the plaintiff in order that he could impose a bail condition. Absent an arrest, police had no power to grant bail.

48 For those reasons it appears to me that the arrest by Detective Senior Constable Bourke, as he then was, of the plaintiff on 5 June 2009 was lawful and his detention for 86 minutes at the Grafton police station was therefore lawful and therefore the plaintiff has failed to make out his action for the tort of wrongful imprisonment.

49 Before I go on to consider the question of damages I should discuss a defence raised by learned counsel for the defendant. The defendant relied upon the decision of the Court of Appeal of Saskatchewan in Ferguson v Jensen (1920) 53 DLR 616. Mr Bateman relied upon that decision as authority for the proposition that a person can consent to being arrested and, when there is consent to an arrest, there can be no wrongful imprisonment. However, I do not read the decision in that fashion, despite what some commentators have said about it. It is clear from the judgment of Haultain CJS that there was no actual or constructive imprisonment in Ferguson v Jensen. At the time in question, Jensen was not a justice of the peace and had no authority to take information from an informant and issue a warrant for the arrest of the accused/defendant. After the issue of the "warrant", the Saskatchewan police telephoned the plaintiff and asked him to attend the police station at Saskatoon. When he arrived at the police station the inspector showed the plaintiff the warrant that had been issued by the defendant. The inspector of police then took the plaintiff's recognisance and a surety, and granted the plaintiff bail. The Chief Justice pointed out that there was no actual or constructive imprisonment, there was no detention or loss of freedom, merely voluntarily attending at the counter of the police station and attending to the paperwork did not amount to false imprisonment.

50 Here, the plaintiff was told that when he attended at the police station - which he did voluntarily - he would be charged, he would be fingerprinted, he would be photographed and he would be granted bail. He knew all those things. However, he was not told that he would be arrested. That is common ground. Any person with any inkling of the law, any little knowledge of the law, would know that taking someone's photograph or fingerprinting him without consent amounted to assault and would perceive that to be admitted to bail one would have to be first taken into custody. One would also garner from the fact that the Detective Senior Constable had, in 2008, told the plaintiff that if he did not attend at the police station voluntarily with his solicitor to make a statement he would be "picked up", which is but a euphemism for being arrested.

51 The plaintiff also said that had he not been arrested he would have stayed at the police station in any event whilst things such as the compilation of the Court Attendance Notice and other necessary paperwork were done. But his attendance - if not by compulsion of law - would have happened voluntarily in any event. The defendant argues accordingly that his detention at the police station was, in fact, by consent and therefore no complaint can be made about it.

52 However, arrest is a serious affair. The most serious penalty that our law now knows is imprisonment. The essence of imprisonment is the deprivation of liberty. The most heinous felon can only be penalised with imprisonment for life. The vilest traitor can only be kept in prison for life. Any imprisonment that is not justified by law is one that the law looks upon harshly. The dicta in cases concerning false imprisonment clearly show that. For the plaintiff to have consented to being arrested and imprisoned that would have had to have been firmly and bluntly drawn to his attention so that he could perceive the full consequences of it and give true assent to his being arrested. The plaintiff, I accept, was not aware of his legal rights, was not fully conversant with the law, and perhaps did not draw a logical inference that he would be arrested when he went to the police station. Absent full knowledge and full appreciation of what is involved, I could not categorise the consent that the plaintiff here gave to be consent to his actual arrest. The consent would have to be with full knowledge and appreciation of what was involved and I am not persuaded here that the plaintiff was fully aware of what was involved in being arrested and perhaps may not have even twigged to the idea that he would be arrested.

53 In other words, I am not persuaded that the defence has made out a case for consent and, in my view, in light of principle, the consent would have to be very well informed before it could be an answer to an action for false imprisonment.

54 Finally, I should say that the defendant pleaded a defence under s 54 of the Civil Liability Act 2002 and also relied upon s 3B(1)(a)(ii) of the same Act, but Mr Bateman, to whom I am eternally grateful, did not mention those provisions because it appears to me, as it probably appeared to him, that the pleas were not well-founded at all.

55 May I just say this on the question of damages. It was hard to see any compensatory damages that the plaintiff would recover other than something purely nominal. The points made by Mr Bateman on the question of consent are directly applicable to the quantum of damage. The plaintiff would have stayed at the police station, in any event, for the 86 minutes while the paperwork was being attended to. It appeared from the fact that he was told that he was to be fingerprinted and photographed that he was willing to consent to being photographed and fingerprinted. There is no evidence as to what he was doing on the Friday of his arrest but clearly he had not been at work. There is no suggestion that he lost any wages or the like or that it interfered with any pre-planned activity. There is no evidence, for example, that he was dragged from the luncheon table or from a cinema or the like and lost the price of admission to the cinema or what he had laid out for a meal. There is merely the loss of 86 minutes of his time and the 86 minutes of his time were not otherwise explained. It is hard to see anything but purely nominal, compensatory damages. In this matter, also, I cannot see any need why there ought be an award of either exemplary or punitive damages.

56 The behaviour of the now Detective Sergeant Bourke to the plaintiff was without any complaint at all at any time by the plaintiff himself. There is no evidence that the Detective Senior Constable, as he then was, even tapped the plaintiff on the shoulder in the formal act of arresting him. He was merely told that he was under arrest and asked to accompany the Detective Senior Constable to the charge room, which he did.

57 There is no evidence of his actually suffering from any embarrassment or the like. The plaintiff did attend at the police station with his father. His father waited outside. Later he was admitted into the police station and permitted to visit his son in the custody area, the custodial management record showing the visit to the plaintiff by his father occurring at 3.30pm.

58 This case is very different to many to which I have been referred. One of those cases was Zaravinos v State of New South Wales [2004] NSWCA 320. In that case, the plaintiff attended a police station by appointment for interview and was arrested successively by two different officers on different but related charges. He was interviewed, charged, fingerprinted, photographed, bailed and released. He was detained for about three hours. Eventually, the cases against him were dropped. That was a man who was innocent who went through those various indignities. The present plaintiff was not innocent; he pleaded guilty to the charge offered against him and the period of his detention was short and without any unnecessary actions or unseemly behaviour.

59 Of course, in a case of this nature where I have found the arrest to have been lawful there can be no question of punitive damages. Even if the arrest had not been lawful it appears to me that this is hardly the sort of case where the State of New South Wales should be punished in order to cause criticism of the behaviour of Detective Senior Constable Bourke, who appears to have acted throughout in a gentlemanly and caring fashion. He frankly conceded that the plaintiff himself was drawn to the position in which he was found; that is, into the drug supply syndicate in Grafton as "collateral damage", which is often the case with those who use these drugs, and that in order to maintain the habit turn to the supply of them. Any further reasons for judgment required?

BATEMAN: No, your Honour.

DI MICHIEL: No, your Honour.

60 HIS HONOUR: I have inquired of counsel for the parties if any further reasons for judgment are required and I am told that none are so required. For those reasons I give verdict in judgment for the defendant against the plaintiff. Do you seek costs, Mr ---

BATEMAN: I do, your Honour, and I seek costs pursuant to an offer of compromise served upon the plaintiff's solicitor by letter dated 29 November 2012.

EXHIBIT #5 LETTER FROM MESSRS SPARKE HELMORE DATED 29/11/02 WITH OFFER OF COMPROMISE TENDERED, ADMITTED WITHOUT OBJECTION

HIS HONOUR: An offer of compromise has to be a real compromise, not an invitation to surrender.

BATEMAN: I would submit it is a compromise in the sense that it invites both parties to walk away and pay their own costs rather than enter into the two days of litigation. The compromise in it is that the defendant will pay its own costs and the expectation of a verdict for the defendant would be the defendant would be awarded costs against the plaintiff. There lies the compromise, your Honour.

HIS HONOUR: I trust your client will not take what I am about to say amiss, Mr di Michiel, but I mean, the prospects of your getting your costs paid are remote anyway, are they not?

DI MICHIEL: Well, as a practical matter, that may be so.

HIS HONOUR: Yes. Mr Bateman, why should I give you the benefit of an offer of compromise which has got an awful grammatical error in it? "Each party to pay their own costs."

BATEMAN: Well, that ---

HIS HONOUR: Each party is singular; it cannot be qualified with a plural pronoun "their". It should have been each party to pay his or its own costs.

BATEMAN: Your Honour, nowadays that is an acceptable grammatical error I find in-

HIS HONOUR: Not in my court it isn't.

BATEMAN: In newspapers, radio, television-

HIS HONOUR: Ignorance is pervasive. Linguistic ignorance is even more pervasive.

BATEMAN: Yes, and there is linguistic-

HIS HONOUR: I mean, now you get grammatical errors in Acts of Parliament. It is just mind-boggling.

BATEMAN: Yes, you do, but your Honour there is nothing in the rules that invalidates a document for grammatical error.

HIS HONOUR: I know. Unfortunately. Otherwise I could get rid of every statement of claim and every defence because they have all got grammatical errors in them. Yes.

61 HIS HONOUR: The defendant seeks indemnity costs from 29 November 2012 when it served upon the plaintiff's solicitors an offer of compromise. The compromise was an offer that there be a verdict for the defendant and that each party was to pay his or its own costs. Offers of compromise are governed by Pt 42, Div 3 of the UCPR.

62 The basic purpose of an offer of compromise is to encourage genuine compromise of proceedings by specifying the conditions in which special costs orders may be made. Consistent with the purpose of the offer of compromise procedure, both under the present rules and at common law, the offer must involve "a real and genuine element of compromise": Herning v GWS Machinery Pty Limited (No. 2) [2005] NSWCA 374, which concerned a Calderbank letter, Anderson Group Pty Limited v Tynan Motors Pty Limited (No. 2) [2006] NSWCA 120 and Leichhardt Municipal Council v Green [2004] NSWCA 341.

63 Consequently, where a plaintiff offers in substance merely a demand for payment of the full amount claimed or formal offer merely designed to simply trigger the entitlement to indemnity costs, wholly exceptional circumstances are required to justify an indemnity costs order. Such was held in Tickell v Trifleska Pty Limited (1990) 25 NSWLR 353 and in Hobartville Stud Pty Limited v Union Insurance Company Limited (1991) 25 NSWLR 358 at 368.

64 Likewise, a defendant's offer involving dismissal of the claim and the payment of the defendant's costs also lacks the necessary element of compromise to justify an indemnity costs order; Shorten v David Hurst Constructions Pty Limited [2008] NSWSC 609. Even a defendant's offer to bear its own costs or contribute only a proportion of a claim may lack the element of compromise to comply with UCPR 20.26. Such was held in Leichhardt Municipal Council v Green [2004] NSWCA 341 and is also referred to in Herning v GWS Machinery Pty Limited, which I have already cited.

65 Here we have an offer of compromise which falls into the last category to which I have referred. It must be remembered that here we have a young man of little substance taking on the might of the State of New South Wales. The plaintiff would gain nothing by accepting the offer of compromise other than minimising his potential for further costs. He would still be liable to pay his own solicitor's costs, in any event, and he is unlikely, in my view, to be a man of any great substance.

66 In the circumstances, an offer to "surrender" would involve little compromise. It may be that if, for example, an offer had been for a verdict for the defendant but that the plaintiff pay the defendant's costs, limited to $5,000, it may have been a different proposition. The application for indemnity costs is refused. However, I order the plaintiff to pay the defendant's costs on the ordinary basis.

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Decision last updated: 06 November 2013