Criminal law: December 2018

Robinson v State of New South Wales [2018] NSWCA 231

Intentional  torts – false imprisonment and wrongful arrest – statutory interpretation  – principle of legality

In this decision (which, admittedly, deals with the tort of wrongful arrest), the Court of Appeal has determined that an arrest is only lawful if it is exercised for the purpose of commencing criminal proceedings. It is not a legal exercise of the power to arrest a person in order to investigate whether charges should be commenced.

An Apprehended Violence Order was taken out against the appellant. Subsequently, the Person In Need of Protection made an allegation that the appellant had made a threat by emailing one of her employees and falsely alleging that her company was being wound up. A police officer read the complaint, tried to locate the appellant, and initially failed. The appellant turned up voluntarily at the police station, at which point the police officer arrested him. The appellant voluntarily participated in an interview, and was released without charge, having been detained for about an hour and a quarter. The police officer conceded in evidence that at the time he arrested the appellant he had not decided to charge him, that he did not believe there was enough to charge him at that point, and that the decision to charge hinged on what the appellant said in the interview.