Hypotheticals by Manny Wood Published in the Coffs Coast Advocate on 9 March 2019.
Andy attends the local police station, in response to the police having attempted to contact him earlier in the day.
Andy is immediately arrested, without warrant, for breach of an apprehended violence order (AVO). He agrees to participate in a recorded interview with the police, which lasts approximately 80 minutes. At the conclusion of the interview, Andy is released without charge.
Andy commences legal action against the State of NSW, seeking damages for wrongful arrest and false imprisonment.
During the Trial, the arresting officer gives evidence that when he arrested Andy, he had not yet decided to charge him for the AVO breach. The decision to lay charges depended on the answers Andy gave during the interview.
The trial judge accepts the arresting officer’s evidence but dismisses Andy’s claim.
Andy appeals the decision and the Court of Appeal finds that, because the arresting officer had not decided to charge Andy at the time of the arrest, Andy was not arrested for the purpose of commencing criminal proceedings. Therefore, the arrest was unlawful.
The Trial judge’s decision is thrown out and Andy is awarded $5,000 in damages. The State of NSW is also ordered to pay Andy’s legal costs for the Trial and the appeal.
Prior to Andy’s Court of Appeal decision, it was thought that the decision to arrest, and the subsequent decision to charge were two separate processes. However, the Court of Appeal affirmed that an arrest is unlawful if the police do not have a positive intention to charge the person before arresting them.
If you would like Manny to address a particular legal issue, send your request to manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.
