Australia, June 30 -- New South Wales Land and Environment Court issued text of the following judgement on May 29:

1. MITCHELMORE JA: I agree with Kirk JA.

2. KIRK JA: Mr Christopher Dennis, the respondent, operated a motor mechanic business in Wagga Wagga. One service provided by the business was inspecting and testing motor vehicles and issuing "pink slips" for the purposes of vehicle registration. He was arrested by an officer of the New South Wales Police Force - for whom the appellant State is legally responsible - following suspicions that his testing equipment was dysfunctional and that he was manipulating vehicle testing. He was charged with 10 offences. The charges were later dismissed. He then sued the State in the District Court for false imprisonment in relation to the brief period he spent in custody.

3. The primary judge, Newlinds DCJ, found that the police officer's predominant reason for arresting the respondent was to prevent him, by imposition of bail conditions, from committing further offences by issuing pink slips based upon a defective testing procedure. His Honour held that the arrest did not comply with s 99(1)(b) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) and was therefore unlawful because there were alternatives available to the arresting officer short of an arrest which would have met his purpose. A premise of this reasoning was that police can grant bail on conditions with respect to a person not in custody. Damages of $10,000 were awarded: Dennis v State of New South Wales [2024] NSWDC 252.

4. The State has sought leave to appeal. Leave is required given the amount at stake: District Court Act 1973 (NSW), s 127(2)(c). It is clear that the case raises issues of principle and public importance, militating in favour of a grant of leave. Those issues have ongoing significance for the police and the community. However, they are of no particular consequence to the respondent beyond his own, small claim. In that context the State accepted that an appropriate condition of leave to appeal should be that regardless of the result it would not seek to disturb the costs order made below and it would pay the respondent's costs of the appeal. Leave to appeal should be granted on that basis.

5. Various matters were raised by the State in its submissions but it is sufficient to focus upon whether the primary judge erred in relation to two core issues:

1) in concluding that the officer's state of satisfaction under s 99(1)(b) was vitiated because it was necessary for the arresting officer to consider available alternatives to arrest in order for the officer to form the requisite state of satisfaction;

2) in proceeding on the basis that police can grant bail and impose bail conditions pursuant to the Bail Act 2013 (NSW) (the 2013 Act) where a person has been charged with an offence but not arrested.

6. The second issue had not been raised by the State in its written submissions, although it was capable of falling within its grounds of appeal. The State had not disputed the issue in the Court below. Prior to the hearing the Court requested that both parties be prepared to address the Court on the point. The State then embraced the issue arguing that there was no such power and that this sufficed to uphold the appeal. The respondent sought to resist the issue being agitated but accepted that it raised a pure point of law. He could identify no prejudice once it was accepted that the parties should be given the chance to provide further written submissions, and taking account of the fact that the State will pay his costs in both courts in any event. The respondent took up the opportunity to provide further written submissions (the State did not). The issue is indeed one of law. It is important. This Court should address it.

7. The primary judge erred with respect to both issues. They will be addressed in turn after first setting out the context in which they arise and then summarising the reasons of the primary judge.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/196f5d2933d32d341b3c929c)

Disclaimer: Curated by HT Syndication.