Unlawful Arrest: Police Decides to Charge After Arrest

If you are arrested and then make admissions during this arrest which is then deemed to be unlawful, the evidence you have already given can be readily excluded at the court’s discretion. This is what effectively happened in the radical case of Robinson which was handed down by the NSW Court of Appeal on the 16th of October 2018, radically altering the interpretation of the law as it relates to arresting someone without a warrant.

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


Mr Robinson attended a Sydney police station in response to attempts by police to contact him. Upon his attendance he was immediately arrested, without warrant, for breach of an apprehended violence order. He then was offered, and accepted, the opportunity to participate in a record of interview. He was released without charge at the conclusion of the interview. The appellant then commenced proceedings against the State of New South Wales under s 8(1) of the Law Reform (Vicarious Liability) Act 1983 (NSW) claiming damages for wrongful arrest and false imprisonment. The District Court judge dismissed his claim for several reasons, that Robinson did not dispute he had breached the AVO, that the officer had ‘reasonable grounds of suspicion’ that an offence was committed, that the officer was satisfied Mr Robinson’s arrest was necessary to ensure his appearance before a court due to the nature and seriousness of the offence.

Instead, the District Court judge accepted the arresting officer’s evidence that a decision whether to charge Robinson depended on what he said in the interview and that, during the time he was arrested, the officer had not decided to charge him. Additionally, s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) as it relates to the ‘power of police officers to arrest without warrant’ was significantly amended by the Amendment Act, just six days before Mr Robinson’s arrest.


Mr Robinson relied upon only one single ground of appeal which affirmed that the District Court Judge had erred in finding his arrest lawful in circumstances where there was no positive intent to lay charges at the time of the arrest. Mr Robinson sought to challenge whether his arrest was reasonably necessary to ensure he had appeared before a court, was due to the fact the arresting officer, Constable Smith had conceded he had not determined at the time of the arrest whether he would charge Mr Robinson.


This decision was handed down on 16th October 2018. It was effectively and successfully argued that if Constable Smith believed Mr Robinson might not be charged, the Constable could not be satisfied that an arrest was necessary to ensure that Mr Robinson appeared in court since his appearance in court might never be necessary. The power to arrest exists for the purposes of bringing the person arrested before a justice and conducting a prosecution. “Arrest…’ may be called the beginning of imprisonment.’ More significantly, those who arrest a person must justify the whole imprisonment and not its beginning alone (Robinson v State of New South Wales). As it stands, common law as substantially reflected in s 99 of LEPRA, confers on a constable a power to arrest without warrant on suspicion on reasonable grounds of commission of a felony, however, the authority to keep the person arrested in custody is limited, ‘till he can be brought before a justice of the peace.’

From the textual analysis of the LEPRA, in particular s 99, nothing in the LEPRA expressly requires the police to charge a person arrested without a warrant. But that must occur at some stage. Nothing in s 99 expressly permits the police to interview a person arrested without a warrant to then determine they committed the offence referred to in s 99(1)(a). Firstly, the intention to charge the arrested person must have been formed at the time of the arrest as per s 99 of LEPRA, secondly, the arrested person cannot be interviewed in relation to the offence. You can only detain and interview an arrested person to ‘investigate’ their involvement in the commission of an offence, however, s 99 outlines this can only be done on the premise the arrest was lawful to begin with.

Since the decision of Robinson was handed down, it is crucial to cross-examine every arresting officer to assess whether during the time of the arrest they had made a decision to charge. If the decision to charge was made after the arrest, the arrest was unlawful.

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Peter O'Brien

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O’Brien Criminal & Civil Solicitors
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Sydney NSW 2000

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