The High Court has recently confirmed that without a warrant, police cannot arrest an individual unless they have an intention to charge the person. The case of The State of New South Wales v Robinson [2019] HCA 46 concerned the arrest of Mr Robinson.


The Facts

Mr Robinson was alleged to have breached an AVO. When he voluntarily presented to the police station, he was promptly arrested. At the time of arrest, however, the arresting Constable had no intention of charging Mr Robinson unless it later emerged that there was sufficient reason to do so. The Constable told the court that at the time of the arrest he “did not believe there was enough [evidence]” to charge Mr Robinson. He said the decision whether to charge depended on what Mr Robinson said in his interview. Following the interview, Mr Robinson was released without charge.

Mr Robinson, arguing that his arrest was unlawful, brought a claim for damages for wrongful arrest and false imprisonment. The case, following multiple appeals, was heard by the High Court in September 2019. In the High Court, the State of NSW submitted that it was not necessary that the arresting officer must have formed a positive intention the charge a person with an offence at the exact time of the arrest.


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The Law

The case primarily concerned s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), which outlines when police can arrest a person without a warrant. Police can only arrest someone without a warrant is an officer suspects on reasonable grounds that the person is committing or has committed an offence, and is satisfied that the arrest is reasonably necessary:

  • to stop the person committing or repeating the offence or committing another offence,
  • to stop the person fleeing from a police officer or from the location of the offence,
  • to enable inquiries to be made to establish the person’s identity if it cannot be readily established or if the police officer suspects on reasonable grounds that identity information provided is false,
  • to ensure that the person appears before a court in relation to the offence,
  • to obtain property in the possession of the person that is connected with the offence,
  • to preserve evidence of the offence or prevent the fabrication of evidence,
  • to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence,
  • to protect the safety or welfare of any person (including the person arrested),
  • because of the nature and seriousness of the offence.

If a person is arrested under this section, the police officer must take the person before an authorised officer to be dealt with according to law (i.e. to charge them) as soon as reasonably practicable.

However, a police officer may discontinue the arrest at any time.

What did the High Court say?

Ultimately, the majority of High Court dismissed the State’s appeal. The court found that a police officer only has the power to arrest a person without a warrant if the officer has, at the time of arrest, formed the intention to charge the person. According to the Court, bringing a person before a court to be dealt with according to law is the true purpose of arrest. This requirement takes effect immediately upon arrest. Therefore, the intention required at the time of arrest is an intention to charge, unless it emerges after the arrest that the circumstances do not justify such a decision. Police cannot, without a warrant, arrest a person merely for the purpose of asking questions or making investigations to see whether it would be appropriate to charge the person with a crime. An arrest in such circumstances, without an intention to bring the person before an authorised officer, is unlawful.

Key Takeaways

What is the take away?

Simply put, arrest cannot be justified where it is merely for the purpose of questioning. An arrest without a warrant under s 99 ‘can only be for the purpose, as soon as is reasonably practicable, of taking the arrested person before a magistrate (or other authorised officer) to be dealt with according to law to answer a charge for that offence.’

It is usually in your best interests to obtain legal advice before answering police questions. You can contact the team at Hamilton Janke Lawyers 24/7 by calling 4038 1666.

Written By
Picture of James Janke
James Janke

James Janke is founding partner at Hamilton Janke Lawyers, and has more then decade of experience as a Criminal Defence Lawyer. Admitted to both the Supreme Court of New South Wales and High Court of Australia