Peter Shaw v Detective Senior Constable P Donaldson [1988] ACTSC 3 (4 February 1988)

SUPREME COURT OF THE ACT

PETER SHAW v. DETECTIVE SENIOR CONSTABLE P. DONALDSON
S.C. No. 529 of 1988
Appeal - Wrongful arrest and false imprisonment

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Gallop J.(1)

CATCHWORDS

Appeal - action for damages for wrongful arrest and false imprisonment - nature of appeal

Wrongful arrest and false imprisonment - reasonable grounds for belief of the commission of an offence - reasonable grounds dissipated by further inquiry after arrest - duty of the arresting police officer.

Crimes Act 1914, s.8A

Magistrates Court Ordinance 1930, s.50

Magistrates Court (Civil Jurisdiction) Ordinance 1982, Part XIXA, ss.282G, 282J(1)

Justices Act 1959 (Tas), s.34A(1)

Criminal Code, s.303(1)

Webster v. McIntosh [1980] FCA 128; (1980-81) 32 ALR 603; 49 FLR 317

Donaldson v. Broomby (1982) 40 ALR 525

Holgate-Mohammed v. Duke (1984) AC 437

Selleys Chemical Company Pty Limited v. Graham (unreported, 8 October 1986)

Uranerz v. Hale (1980) 30 ALR 193

The Queen v. Iorlano (1983) 50 ALR 291

Williams v. The Queen [1987] HCA 36; (1986) 66 ALR 385

Dallison v. Caffery (1965) 1 QB 348

John Lewis & Co Limited v. Tims (1952) AC 676

Wiltshire v. Barrett (1966) 1 QB 312

Viro v. The Queen [1978] HCA 9; (1978) 18 ALR 257

Skelton v. Collins [1966] HCA 14; (1966) 115 CLR 94; (1966) ALR 449

Piro v. Foster & Co. LTd. (1943) 63 CLR 313

Wright v. Wright [1948] HCA 33; (1948) 77 CLR 191

Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Parker v. The Queen [1963] HCA 14; (1962-1963) 111 CLR 610

Houston v. Stone (1943) 43 SR(NSW) 118

HEARING

CANBERRA
4:2:1988

ORDER

The appeal be dismissed.

DECISION

On 3 August 1984 the appellant instituted proceedings against the respondent for damages for wrongful arrest and false imprisonment. By his defence dated 10 September 1984 the respondent admitted that he was at all material times a member of the Australian Federal Police attached to the City Criminal Investigation Branch in the Australian Capital Territory, but otherwise put in issue every allegation of fact alleged by the appellant, including the allegation of fact that the respondent had no lawful warrant to arrest the appellant and had no grounds, reasonable or at all, to arrest him.

2. The matter came on for hearing before Magistrate J.J. Dainer on 11 July 1985 and continued on 3 and 23 December 1985. Judgment was delivered on 14 March 1986. The present appeal was instituted by Notice of Appeal dated 4 April 1986. For some reason the appeal did not come on for hearing in this court until 30 October 1987 when I reserved my decision.

3. The grounds of appeal are variously stated in the Notice of Appeal, but in effect they challenge the Magistrate's finding that the respondent had reasonable grounds to believe that the appellant had committed an offence against a law of the Commonwealth or of a Territory; erred in relying on the evidence of the respondent and witnesses called on his behalf when that evidence was in conflict with the appellant's evidence; failed to make a finding on the submission that the arrest was unlawful because the respondent did not tell the appellant the nature of the charge for which he was being arrested; and was wrong in law in declining to find that the arrest was not valid because the respondent failed to comply with the requirements of s.50 of the Magistrates Court Ordinance 1930.

4. It was common ground on the hearing of the action in the Magistrates Court that the appellant was arrested by the respondent shortly after 12.00 noon on 3 April 1984 at the Woden Shopping Square in Canberra and under arrest accompanied police, including the respondent, to the Woden Police Station. The Magistrate does not appear to have made a finding of fact about the length of time during which the appellant was detained at the Police Station. He referred in his judgment to the evidence of the appellant that the period between the appellant being placed under arrest and his release from the Police Station was three-quarters to one hour. Whatever the period involved, it was common ground on the hearing of the action that after further conversation between the appellant and the respondent, during which the appellant gave full and accurate details of his identity and that of his daughter, those particulars were verified by telephone and the respondent then released the appellant without charging him with any offence and without bringing him before a Magistrate pursuant to s.50 of the Magistrates Court Ordinance 1930.

5. In accordance with the decisions of the Federal Court in Webster v. McIntosh [1980] FCA 128; (1980-81) 32 ALR 603; 49 FLR 317 and Donaldson v. Broomby (1982) 40 ALR 525, it was accepted by both parties before the Magistrate that the power of arrest by a constable in the Territory is governed by s.8A of the Crimes Act 1914. Section 8A reads:

"8A. Any constable may, without warrant, arrest

any person, if the constable has reasonable ground to
believe -

(a) that the person has committed an offence against a
law of the Commonwealth or of a Territory; and

(b) that proceedings against the person by summons
would not be effective."

6. It was also mutually agreed that the duty upon the respondent after taking the appellant into custody was as provided for in s.50 of the Magistrates Court Ordinance 1930. Section 50 reads:

"50.(1) A person taken into custody for an offence
without a warrant shall be brought before a Magistrate
as soon as practicable after he is taken into custody.

(2) If it is not practicable to bring him before
a Magistrate within twenty-four hours after he is so
taken into custody, a Clerk or a police officer who is
in charge of a police station may and shall inquire
into the case, and, except where the offence appears to
the Clerk or police officer to be of a serious nature,
shall discharge the defendant upon his entering into a
recognizance with or without sureties, for a reasonable
amount to appear before the Court at the day, time, and
place named in the recognizance."

7. After considering all the evidence the Magistrate found that the respondent had reasonable grounds for believing that the appellant and his daughter were the persons referred to in a New South Wales Police Crime Report, which was Exhibit 4 before him, and accordingly that the appellant had committed an offence of abduction in the State of New South Wales. The Magistrate also held that the respondent was justified in using the period of detention to establish whether his suspicions were justified and also to seek further material evidence, relying upon Holgate-Mohammed v. Duke (1984) AC 437.

8. The appeal is brought pursuant to the provisions of Part XIXA of the Magistrates Court (Civil Jurisdiction) Ordinance 1982. Section 282G provides that in an appeal this court shall have regard to the evidence given in the proceedings out of which the appeal arose and has power to draw inferences of fact and, in its discretion, to receive further evidence. By s.282J(1) this court may, on appeal:

"(a) affirm, reverse or vary the judgment or order
appealed from;

(b) give such judgment, or make such order, as, in all
the circumstances, it thinks fit, or refuse to
make an order;

(c) set aside the judgment or order appealed from, in
whole or in part, and remit the proceedings to the
Magistrates Court for further hearing and
determination, subject to such directions as the
Supreme Court thinks fit; or

(d) award execution from the Supreme Court or remit
the proceedings to the Magistrates Court for the
execution of the judgment or order of the Supreme
Court."

9. In my opinion the nature of an appeal from the Magistrates Court in its civil jurisdiction to this court is by way of rehearing. I agree with the observations of Miles C.J. in Selleys Chemical Company Pty Limited v. Graham (unreported decision of this Court, 8 October 1986 at p 3 of the roneod judgment). In such a case the High Court has laid down that if a rehearing is conducted solely on written material, the appellate court should generally defer to the conclusion on a question of credibility formed by the tribunal from whome the appeal is brought, and whose members saw and heard the witnesses. The appellate court is not entitled to reverse the finding of that tribunal unless it was seen clearly to be wrong on grounds which did not depend merely on credibility - for example, on the ground that the evidence which was accepted was inconsistent with established facts or was so improbable that no reasonable person could accept it, or that the judgment of the tribunal disclosed that its conclusion was affected by some error of law or fact (Uranerz v. Hale (1980) 30 ALR 193 per Gibbs C.J. at p 198-199).

10. It is clear from the Magistrate's reasons for judgment that on the issue of whether the respondent had reasonable ground to believe that the appellant had committed an offence, he accepted in full the evidence of the respondent and where that evidence was in conflict with that of the appellant, he rejected the evidence of the appellant. The evidence of the respondent on that issue was that he received a telephone call from Mrs Wrixon, a member of the public, who alerted the respondent to the fact that the appellant appeared to answer the description of the person who was alleged to have abducted a five year old girl in the Bega area of New South Wales in early 1984.

11. Having received the phone call from Mrs Wrixon, the respondent procured a copy of a Crime Report containing an identikit and photograph regarding the abduction of that child and proceeded to the Woden Shopping Square via the Woden Police Station. He there saw the appellant and his daughter. They matched the description given to him by Mrs Wrixon. He said that the appellant was holding the girl in his arms with her head over his shoulders so that the child's face was not visible and the appellant had his hand on the back of her head. The respondent formed the view that the appellant's appearance was very similar to that of the adult person shown in the identikit. Two other police officers expressed the opinion to him that there was a strong resemblance between the identikit picture and the appellant. One of those police officers, Senior Constable Bock, told the respondent that the only identification the appellant had on him was a bank book in the name of Shaw.

12. The Magistrate also accepted the respondent's evidence that the appellant appeared to be attempting to prevent him from seeing the child's face. The Magistrate set out in his reasons the evidence of the respondent about his interrogation of the appellant. The grounds for the reasonable cause to believe that the appellant had committed an offence, as advanced by the respondent, were the appellant's similarity with the identikit picture, his unreasonable attitude, his attempts to prevent the child's face from being seen, and his belief that the child was the child allegedly abjucted.

13. The Magistrate was also impressed by the evidence of Mrs Wrixon that the appellant and the child both fitted the descriptions of the missing girl and her suspected abductor. He concluded that the respondent had reasonable grounds for believing that the appellant and his daughter may be the persons named in the New South Wales Crime Report. In prefering the evidence of the respondent to that of the appellant, the Magistrate said that such discrepancies may have been in large measure attributable to the emotional state in which the appellant undoubtedly was at the time of the incident and the effect that had on his powers of recollection. Accordingly he concluded that the respondent was justified in arresting the appellant pursuant to the power conferred by s.8A of the Crimes Act 1914.

14. The Magistrate had the advantage of seeing and hearing the witnesses and of forming his conclusions as to which of those witnesses were credible. He preferred the evidence of the respondent and the witnesses called on the respondent's behalf. The evidence upon which the Magistrate acted was not inconsistent with established facts, or so improbable that no reasonable person could accept it. The Magistrate did not apply the wrong test as to whether the grounds for reasonable cause to believe existed. Accordingly this court is not entitled to reverse the findings of fact made by the Magistrate and his conclusion based upon those facts. The test is, of course, an objective and not a subjective one (Donaldson v. Broomby, supra, per Deane J. at p 527).

15. Admittedly, the evidence of identification was not perfect, the two women in the shop were somewhat equivocal as to whether the appellant resembled the person depicted in the New South Wales Crime Report and the appellant's emotional state at the time of his arrest was, of course, explicable. Other criticisms of evidence were advanced on behalf of the appellant. In all the circumstances, however, this court would not be justified in finding that the evidence did not support the Magistrate's conclusion, based as it was on the respective credibility of the appellant on the one hand, and the respondent and his witnesses on the other.

16. The next submission on behalf of the appellant was that on the whole of the evidence it is clear that at all times the respondent wanted the appellant to go to the police station for questioning, that the respondent was annoyed with the appellant because he refused to accompany him without being arrested and that in exasperation the respondent arrested the appellant for the purpose of questioning only. A person cannot be arrested solely for the purpose of questioning (The Queen v. Iorlano (1983) 50 ALR 291 and Williams v. The Queen [1987] HCA 36; (1986) 66 ALR 385). In support of the submission counsel for the appellant relied upon the passage in the cross-examination of the respondent as follows:

"At what stage of the conversation did you say 'I then
ask you to accompany me to Woden Valley Police Station
where I can make quick inquiries'? --- As I recall, it
was after I asked for the bank book and identification
and where he lived, and when I was unable to ascertain
that, well, obviously I had to make those inquiries
elsewhere, and the only place I would be able to do
that is where - you know, the normal methods of
communication that are open to you to be able to do it,
and to ascertain whether he was who he believed he was,
or whom I believed he was at the particular time, was
to take him back to the police station.

Did you say the words, 'make quick inquiries'? --- Yes, I
would have done, because once - if he had have given me
the information at that particular time, well then, I
would have been able to make very quick inquiries. As
it was, after we returned back to the police station,
and I did have those details, it was only a matter of
two phone calls and a conversation with his wife, whom
I had intended to ring after the other two ladies, and
then he was free to go.

Yes. And that was always the situation, was it not,
detective, after you made your inquiries he was free to
go, if you were satisfied he was not the right
person? --- If I was satisfied he was not the person the
New South Wales police wished to speak to, and also if
the child that he was holding was not the missing
person, Renee Aitken, of course he would be free to go.

Yes. Why could not those inquiries have been made from
the Woden shopping square? --- I had no information to be
able to do that.

You knew that he had handed over a bank book? --- Yes,
but a bank book at that particular time, and to make
those inquiries then and there at the time would be
inopportune. The fact that he had a bank book in the
name of Shaw does not necessarily mean that he is a
person by the name of Shaw."

17. It is necessary to put that evidence in the overall context of the respondent's evidence. He said in chief that when he arrived at the health food shop in the Woden Plaza he explained to the appellant the nature of the inquiry at hand. The appellant denied that he was the person concerned and said that he did not have to put up with that sort of harrassment. There was then some discussion about whether the appellant resembled the person depicted in the New South Wales Crime Report and the respondent asked the appellant whether he could have a look at the child. The appellant refused and maintained his left hand on the back of the child's head. There was then some discussion between the respondent and the two ladies working in the shop. The respondent returned to the appellant and asked about a bank book in the name of Shaw. He asked to see it and the appellant refused. He asked the appellant's name but the name was not given. He asked where the appellant lived, the appellant replied, "In Mawson". The respondent asked, "Whereabouts in Mawson". The appellant replied, "I don't have to tell you that".

18. In answer to further questions the appellant said that the child was his lawful daughter but would not let the respondent look at the child. He declined an invitation to accompany the police back to the Woden Police Station and challenged them, saying, "I am not going anywhere with you. You will have to arrest me to take me to any police station". The respondent told the appellant he would prefer that the appellant accompany him of his own free will but the appellant maintained the necessity for an arrest. The respondent said that he then decided to arrest the appellant on the grounds previously mentioned.

19. The same submission had been made to the Magistrate by counsel for the appellant. The Magistrate did not decide whether the arrest had been solely for the purpose of questioning. He dealt with the submission by reference to the authority of Holgate-Mohammed v. Duke (1984) AC 437 where the House of Lords held that arrest for the purpose of using the period of detention to dispel or confirm a reasonable suspicion by questioning the suspect, or seeking further evidence with his assistance, is well established as one of the primary purposes of detention upon arrest.

20. Holgate-Mohammed v. Duke has not been followed in Australia. In Williams v. The Queen [1987] HCA 36; (1986) 66 ALR 385, which, it must be pointed out, was not delivered by the High Court until after the Magistrate had given his decision the subject of this appeal, Mason and Brennan JJ. (at p 398) held that Dallison v. Caffery (1965) 1 QB 348, which was cited in argument in in Holgate-Mohammed v. Duke ought not to be followed in this country, preferring the speech of Lord Porter in John Lewis & Co Limited v. Tims (1952) AC 676 at 691:

"Those who arrest must be persuaded of the guilt of the
accused; they cannot bolster up their assurance or the
strength of the case by seeking further evidence and
detaining the man arrested meanwhile, or taking him to
some spot where they can or may find further evidence".

Later, at p 400, their Honours expressly rejected the principles laid down in Holgate-Mohammed v. Duke that an arrest on reasonable suspicion of guilt of an arrestible offence may be lawfully made for the purpose of using the ensuing period of detention to dispel or confirm the suspicion by questioning of the suspect or seeking further evidence with his assistance. They held that that proposition is opposed to the view which has been taken of the common law in this country.

21. Wilson and Dawson JJ. (at p 410) held that the law has not developed in this country in the way which appears to have been accepted in England following Dallison v. Caffery, supra. They held that there is no real protection for the individual in any formula which says that the police may not detain an arrested person longer than is necessary to enable them to prefer a charge. Obviously there must be reasonable time to formulate and lay appropriate charges for the purpose of bringing a person before a justice. The common law allows for this and it is covered in the statutes by the words "as soon as is practicable".

22. It is now clear law in Australia that no person has power to arrest a person merely for the purpose of questioning him and that any delay in bringing a person under arrest before a justice, even if it is to effectuate some other purpose such as the questioning of that person in order to dispel or confirm the suspicion which was the basis of the arrest, is to defeat, however temporarily, the true purpose. The law is certainly clear, but the submission on behalf of the present appellant is not supported by the facts proved in evidence or reasonably to be inferred from that evidence.

23. In my opinion, it would not be correct to conclude on the whole of the evidence that the sole reason for arresting the appellant and taking him to the police station was for the purpose of further questioning. It is a fact that further questioning and other inquiries at the police station established the appellant's true identity and that of the child, but it was not the sort of situation to which the High Court adverted in The Queen v. Iorlano, supra.

24. As previously stated, at the time of the arrest the respondent believed that the appellant had committed an offence. He held that belief on reasonable grounds viewed objectively, namely, the appellant's similarity to the identikit picture, his unreasonable attitude, his attempts to prevent the child's face from being seen and the resemblance of the child to the child allegedly abducted. It was, of course, prudent for the respondent to afford the appellant one final opportunity at the police station to establish his true identity and that of the child, but if the appellant had failed to do so, it is a reasonable inference that the appropriate charge would have been preferred against the appellant.

25. In The Queen v. Iorlano, supra, the High Court was asked to construe s.212 of the Customs Act 1901 (Cth) so as to authorise an officer of customs or of police to detain an arrested person for the purpose of questioning him. It was conceded correctly that a person could not be arrested for the purpose of questioning. The High Court declined to extend the power to detain an arrested person as provided by s.212 beyond the limits that exist at common law. That is a vastly different situation to the set of circumstances where the arresting officer intends to charge the arrested person but also to afford a last opportunity for the person to exculpate himself.

26. I turn to the final submission on behalf of the appellant that the arrest was not valid in that the respondent failed to bring the appellant before a Magistrate as soon as practicable after he was taken into custody as required by s.50(1) of the Magistrates Court Ordinance 1930 and, indeed, never took the appellant before a Magistrate at all. In effect, as I understand this submission, it is that although the original arrest may have been lawful because the respondent had reasonable grounds for believing that the appellant had committed an offence against a law of the Territory, the arrest became unlawful because of the failure to bring the appellant before a Magistrate as soon as practicable.

27. That sort of submission was roundly rejected in England by the Court of Appeal in Wiltshire v. Barrett (1966) 1 QB 312. The particular statute under consideration was in similar terms to s.50(1) of the Magistrates Court Ordinance 1930. It provided that where a person is taken into custody for an offence without a warrant and is retained in custody, he shall be brought before a Magistrates Court as soon as practicable. A motor car driver had been taken into custody on the grounds that he was unfit to drive, but upon being examined at the police station by a doctor, the officer in charge of the police station released the driver without charging him or requiring him to enter into a bail recognizance. The driver brought an action for damages for assault against the arresting police officer.

28. Lord Denning M.R. dealt with the submission that an arrest without warrant was only lawful if it was carried through to its conclusion either by bringing the man before a Magistrate or by his being granted bail at the police station. Lord Denning said that such a proposition is contrary to the general rule that an act which is lawful at the time is not to be rendered unlawful afterwards by the doctrine of relation back. He referred to ancient authority.

29. Davies L.J. likewise rejected the submission, describing the argument as "a remarkable one" and contrary to principle as laid down in authorities, both ancient and modern, for hundreds of years. He said:

"It is also contrary to common sense. For, if it is
right, this consequence must follow. A man is arrested
without a warrant by a police officer, say, on
suspicion of felony. He is taken to the police
station. Inquiries there satisfy the officer in charge
that the man is innocent. According to Mr. Fay's
argument, the man cannot be released without further
ado; and if he is so released, the original arrest
becomes unlawful. So far from this being right, it is
in my view plain that, once the officer in charge has
satisfied himself that the man is innocent, any further
detention in custody would be false imprisonment. In
any event, it is impossible to see how a failure so to
detain him could render unlawful the arrest which ex
hypothesi was originally lawful.

30. Later (at p 330) Davies L.J. posed the question, where the man is innocent and no charge is to be made, what purpose there would be in taking the man before a Magistrates Court. He said:

"I shudder to contemplate the reaction of a busy
metropolitan magistrate if a man were brought before
him, whether on bail or in custody, and, upon inquiring
what the charge was, the magistrate were told by the
police 'None.' And again if the man is innocent, what
right have the police to require him to enter into a
recognisance to appear at court? And what happens if
he refuses to do so?"

31. He concluded that the argument does not bear examination and said the police are perfectly entitled, and indeed bound, to release a man whom they believe to be innocent, or against whom they consider there to be insufficient evidence.

32. Salmon J. was just as scathing in his rejection of the argument. He described the point as so obviously bad as to be virtually unarguable.

33. The leading Australian authority on police powers of arrest is Williams v. The Queen, supra. The question in that case was whether a policeman has any power to defer bringing before a justice a person whom he has arrested in order to use the time to question the person or to investigate in some other way the offence or offences upon suspicion of which the arrest was made, or any other offence or offences which the arrested person may have committed. The applicant for special leave had been arrested for crimes giving rise to three counts in an indictment presented to the Supreme Court of Tasmania. He was taken to Launceston and questioned on these and other crimes giving rise to a further 26 counts. The interviews concluded some 22 1/2 hours after his arrest and he was taken before a Magistrate another 23 1/2 hours after that. At the trial the judge, though satisfied that confessions in the records of interview were voluntary, excluded the records relating to the further 26 counts. He did so having found that it had been practicable to have brought the applicant before a Magistrate at least 24 hours earlier and that he had subsequently been unlawfully detained. Following the judge's ruling the Crown offered no evidence on these counts and verdicts were brought in by direction.

34. All the judges of the High Court discussed the Tasmanian provision comparable to s.50(1) of the Magistrates Court Ordinance 1930. Section 34A(1) of the Justices Act 1959 (Tas) requires a person in custody to be brought before a justice as soon as practicable after he has been taken into custody. Section 303(1) of the Criminal Code provides:

"(1) It is the duty of any person who has arrested
another on a charge of any offence to take him, or to
cause him to be taken, before a justice without delay
to be dealt with according to law."

35. The High Court did not directly deal with a situation where the original arrest was justified on reasonable grounds but no charge brought and the suspected person released because of some exculpatory information obtained by further investigation of the suspected offence. Gibbs C.J. said at p 389:

"In considering the scope of the questioning that
may be permitted before the accused is taken before a
justice, it is not right to draw an arbitrary
distinction between questions which relate to the crime
for which the arrest was made and questions which
relate to other crimes. The investigations which the
police may make subsequent to an arrest may reveal that
the person arrested has committed a different crime
from that for which he was arrested - for example,
murder and not manslaughter, or vice versa - or that he
has committed crimes additional to those for which he
was arrested - eg, a man arrested for robbery may be
found to have committed murder as well or a man
arrested for one burglary may be found to have
committed many others. There is no rule that
artificially restricts the nature of the investigations
which the police may conduct. It is not wrong to
arrest and detain a man upon a charge, of which he is
reasonable suspected, with a view to further
investigations of a second charge upon which
information is incomplete: Christie v. Leachinsky
[1947] UKHL 2; (1947) AC 573 at 593. The critical question is whether
the arrested person was detained any longer than was
reasonably necessary to enable him to be brought before
a justice. If he is detained for the purpose of
enabling him to be brought before a justice, the fact
that he is questioned, whether about the offence for
which he was arrested, or about other offences, will
not necessarily mean that there has been a failure to
bring him before a justice as quickly as was reasonably
practicable. On the other hand, if he is detained, not
for that purpose, but solely for the purpose of
questioning him, the detention will be unlawful. The
line may be a fine one, as it often is when a
discretion has to be exercised in sensitive matters."

36. Mason and Brennan JJ. observed (at p 401) that there is nothing to prevent a police officer from asking a suspect questions designed to elicit information about the commission of an offence and the suspect's involvement in it, whether or not the suspect is in custody. But if the suspect has been arrested and the inquiries are not complete at the time when it is practicable to bring him before a justice, then it is the completion of the inquiries and not the bringing of the arrested person before a justice which must be delayed.

37. The High Court has not said that the police officer must take the arrested person before a justice in circumstances where the reasonable grounds for the arrest have been dissipated by further inquiries. On the other hand, Wiltshire v. Barrett, supra, was approved by the House of Lords in Holgate-Mohammed v. Duke (per Lord Diplock) at p 443. Should this Court follow English authority in the absence of any express pronouncement by the High Court or other Australian superior court? The answer is not discoverable from the leading authority on the role of the High Court as the ultimate Court of Appeal in Australia i.e. Viro v. The Queen [1978] HCA 9; (1978) 141 CLR 88; (1978) 18 ALR 257. In Viro the question for the court was whether it was bound to follow a previous decision of the Privy Council, which is not precisely the question which has to be resolved in the present appeal. It is to be noted, however, that Gibbs J., as he then was, said in Viro (at p 121):

"We no longer treat ourselves as bound by the decision
of the House of Lords but we nevertheless continue to
recognise 'their peculiarly high persuasive value'
(Skelton v. Collins [1966] HCA 14; (1966) 115 CLR 94 at 104; (1966)
ALR 449)."

38. The stance by the High Court that it would not regard itself as bound by decisions of the House of Lords was only arrived at after careful review of its own previous dicta in earlier cases. In Piro v. Foster & Co. Ltd. (1943) 63 CLR 313, Latham C.J. said at p 32):

"This court is not technically bound by a decision of
the House of Lords, but there are in my opinion
convincing reasons which lead to the conclusion that
this Court and other courts in Australia should as a
general rule follow decisions of the House of Lords.
The House of Lords is the final authority for declaring
English law, and where a case involves only principles
of English law which admittedly are part of the law of
Australia, and there are no relevant differentiating
local circumstances, The House of Lords should be
regarded as finally declaring that law: See Robins v.
National Trust Co. Ltd. (1927) AC 515, at p519. As
was said in Trimble v. Hill (1879) 5 App Cas 342, at
p 345 (a decision of the Judicial Committee of the
Privy Council): 'It is of the utmost importance that
in all parts of the Empire where English law prevails
the interpretation of that law by the courts should be
as nearly as possible the same'. In Webb v. Federal
Commissioner of Taxation [1922] HCA 27; (1922) 30 CLR 450, at
p 469, Isaacs J. referred to the passage from Trimble
v. Hill as a 'clear suggestion' that a relevant
decision of the House of Lords should be accepted by an
Australian court as decisive: See also Davison v.
Vickery's Motors Ltd [1925] HCA 47; (1925) 37 CLR 1, at p 13. In
Waghorn v. Waghorn [1942] HCA 1; (1942) 65 CLR 289 this Court
referred to the desirability of uniformity of decision
with the English courts. In my opinion it should now
be formally decided that it will be a wise general rule
of practice that in cases of clear conflict between a
decision of the House of Lords and of the High Court,
this Court, and other courts in Australia, should
follow a decision of the House of Lords upon matters of
general legal principle".

39. The decision was regarded as remarkable, not so much for the readiness of the High Court to follow the House of Lords, but for its direction to the State courts to follow such decisions rather than its own decisions.

40. In 1948 the question came up again for consideration in the High Court in Wright v. Wright [1948] HCA 33; (1948) 77 CLR 191. In that case the High Court refused to follow the English Court of Appeal and endorsed its own earlier view on the standard of proof of adultery. Dixon J., as he then was, stated that the court ought to adhere to its own decision in Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 CLR 336 and not abandon it in favour of a decision of the Court of Appeal.

41. He returned to the subject in Parker v. The Queen [1963] HCA 14; (1962-1963) 111 CLR 610 where he said at p 632:

"Hitherto I have thought that we ought to follow
decisions of the House of Lords, at the expense of our
own opinions and cases decided here, but having
carefully studied Smith's Case (1961) AC 290 I think
that we cannot adhere to that view or policy. There
are propositions laid down in the judgment which I
believe to be misconceived and wrong. They are
fundamental and they are propositions which I could
never bring myself to accept. I shall not discuss the
case. There has been enough discussion and, perhaps I
may add, explanation, to make it unnecessary to go over
the ground once more. I do not think this present case
really involves any of the so-called presumptions but I
do think that the summing-up drew the topic into the
matter even if somewhat unnecessarily and therefore if
I left it on one side some misunderstanding might
arise. I wish there to be no misunderstanding on the
subject. I shall not depart from the law on the matter
as we had long since laid it down in this Court and I
think Smith's Case should not be used as authority in
Australia at all."

42. The change in the stance of the High Court was quite dramatic. Dixon J. had been amongst those willing in the interests of uniformity of decision to follow not merely the House of Lords but also the Court of Appeal, even when not wholly convinced of the correctness of the decision followed.

43. Skelton v. Collins, supra, was the next step in the development. The High Court in that case did not follow English precedent, striking out for itself in the decision it gave on the question of precedent. Kitto J. said at p 104:

"The position of this Court in relation to decisions of
the House of Lords does not seem to me to need
clarification. The Court is not, in a strict sense,
bound by such decisions, but it has always recognized
and must necessarily recognize their peculiarly high
persuasive value. Moreover the reasoning of any
judgment delivered in their Lordships' House, whether
dissenting or concurring, commands and must always
command our most respectful attention. The Court is,
of course, bound by directly apposite decisions of the
Privy Council. Other courts in Australia are bound by
such decisions of the Privy Council, and, subject to
that, are bound by decisions of this Court. I should
perhaps add, though it has become obvious enough in
recent years, that nothing in the judgments in Piro v.
W. Foster & Co. Ltd. [1943] HCA 32; (1943) 68 CLR 313 can have the
effect of a general charter to Australian courts to act
upon an assumption that this Court will treat itself as
if technically bound by decisions of the House of
Lords, or should be treated as having in any degree
diminished the binding force of decisions of this
Court."

44. Owen J. at p 137-139 adopted what had been said by Jordan C.J. in Houston v. Stone (1943) 43 SR(NSW) 118 to the effect that the High Court is the ultimate court of appeal for Australia and until it is ruled that a Supreme Court of a State is at liberty to follow the House of Lords in preference to the High Court it is its duty to follow the High Court. Owen J. went on to say, in approving that decision:

"Where, however, there is no decision of the High Court
on a question that arises in some other Australian
court and a decision of the House of Lords is directly
in point, the court which is called upon to decide the
question will no doubt follow the decision".

45. There is nothing in Viro which detracts from the authority of Skelton v. Collins, supra, and indeed that decision seems to have the High Court's approval. Accordingly, if it were necessary to do so, in scrutinising the High Court's decision in Viro, it seems more likely that the approach in Skelton v. Collins would find acceptance in the High Court. Accordingly this Court should follow the decision of the Court of Appeal in Wiltshire v. Barrett, supra, approved by the House of Lords in Holgate-Mohammed v. Duke, supra.

46. I reject the applicant's final submission.

47. The order of the Court is that the appeal is dismissed. I shall hear counsel on the question of costs.

48. I wish to add to my reason for judgment in this matter, delivered on 4 February 1988. Since then I have discovered that s.352 of the Crimes Act 1900 (NSW) in its application to the Australian Capital Territory has been amended by the Domestic Violence (Miscellaneous Amendments) Ordinance, No. 53 of 1986 so as to add, inter alia, sub-s.(2A), which reads:

"(2A) Where -

(a) a person has been arrested under sub-section (2) in connection
an offence;

(b) before the person is charged with the offence, the police
officer in charge of the investigation into the offence does
not have, or ceases to have, reasonable ground to believe that-

(i) the person committed the offence; or

(ii) holding the person in custody is necessary for achieving
any of the purposes referred to in paragraph (2)(b),

the person shall forwith be released from custody in respect of the
offence."

49. The amendment does not affect this appeal as the action was based upon the arrest of the appellant on 3 April 1984. The above amendment came into operation on 4 February 1986.