By Paul Gregoire and Ugur Nedim
Callum McLaughlin was arrested by NSW police on 2 May 2020 and taken to Surry Hills police station. And that day’s custody manager, Sergeant Stanton, placed the intoxicated man in a holding cell, due to his state.
McLaughlin was then charged at 1 pm with one count of common assault, contrary to section 61 of the Crimes Act 1900 (NSW), which carries 2 years imprisonment and/or a $5,500 fine, and another of intentional chocking, contrary to section 37 of the same Act, which carries up to 5 years.
And the relevant court attendance notice (CAN), which details charges and a requirement to appear in court, was produced by Stanton, as is required on charging.
Stanton then notified Corrective Services NSW that McLaughlin was ready to be transferred to the court holdings cell facility next door, prior to going before a magistrate to make a bail application.
However, the corrective officers didn’t show up to transfer McLaughlin until around 5 pm, at which time Stanton handed them the CAN and other relevant documents. And as Bail Courts work regular hours over the weekend, McLaughlin couldn’t make his bail application until the following day.
So, McLaughlin’s bail application wasn’t considered by the magistrate presiding over Parramatta Bails Court until after 10.35 am on the Sunday morning, at which point, the man, who appeared via video link, was granted bail.
The standard go-slow approach
McLaughlin then began proceedings against NSW, filing a statement of claim on 18 March 2021. And the document outlined that NSW was “vicariously libel” for the actions of NSW police, and the man listed a range of torts, which are infringements of rights that lead to legal liability.
And the tort that stuck was false imprisonment, as McLaughlin claimed that from at a point after 1 pm on the Saturday until 10 am the next morning, his being made to spend the night in a Corrective Services NSW cell was unlawful.
Indeed, there was a clear legal basis for making this claim, as under section 46(1) of the Bail Act 2013 (NSW), officers must ensure a person refused bail by police “is brought before a court or authorised justice as soon as practicable to be dealt with according to law.”
So, on 13 December 2023, NSW District Court Judge David Russell ruled that false imprisonment had occurred and the state had to compensate McLaughlin to the sum of $10,000.
His Honour did so on the basis that Stanton, instead of filing or printing the CAN himself, which would have provided the court with the jurisdiction to deal with the case, he held onto the document until Corrective Services appeared, and he then passed on the paperwork to them.
“There was no power to delegate this obligation to Corrective Services,” Judge Russell ruled. “It was not a discharge of his obligation to simply notify Corrective Services that Mr McLaughlin had been processed fully” and then leave the rest of the work up to the other agency.
However, Stanton had further told the court that he’d never progressed a CAN in any other manner, and he didn’t know of any other officer who’d done so.
But to this his Honour responded, that by “simply saying… this is the way we always do it” did not correspond with “as soon as practicable”.
Appealing false imprisonment
NSW sought leave to appeal this decision to the NSW Court of Appeal. And the state asserted that Judge Russell had misconstrued the Bail Act rule, and the outcome raised an issue of principle that was of public importance.
The lawyer for NSW put it to the court that there were a number of other stipulations in different legislation that call into question the interpretation of section 46 of the Bail Act the primary judge had applied, and this rule had never been scrutinised by a higher court previously.
Other key arguments included that Judge Russell had no idea about the CAN process and standard operating procedures, his consideration that Stanton filing the CAN would have sped up the process was unfounded, and further, he really had no idea whether the timings could have been expedited.
Leave to appeal dismissed
Using provisions of the Local Court Rules 2009 (NSW) and the Criminal Procedure Act 1986 (NSW), Justice Christine Adamson set out the process that requires an officer to produce a CAN on charging a person, and that it must then be filed with the Local Court, which can be done so electronically.
In terms of the Bail Act 2013 (NSW) and the Bail Regulations 2014 (NSW), they require a sergeant or a more senior police officer to make a decision on bail, and if it is refused, then the reasons for this must be recorded on an approved form and that must be sent to the Local Court “immediately”.
And while the law is that the individual who’s been refused bail is to be handed over to correctional officers, this has no bearing on the requirement upon police to see the individual, in this case McLaughlin, brought before the court “as soon as practicable”.
“It may be that, even had that been done, it would not have been possible for Mr McLaughlin’s bail application to be heard and determined at the Parramatta Bails Court on the afternoon of Saturday 2 May 2020,” her Honour said.
“However, I am not persuaded that there is an arguable error in the primary judge’s finding that the state bore the onus on this question and had not adduced any evidence to show that it could not have been heard that afternoon,” she continued.
Justice Adamson also pointed out that Stanton refused bail and notified Corrective Services, but then did nothing prior to 5 pm when the correctional officers arrived, even though he was dutybound to be expediting this process, and he could have at least filed the CAN during this time.
“In these circumstances,” her Honour ruled on 27 May this year, “I concurred in the refusal of leave as I was not satisfied that the proposed appeal against liability and quantum of damages gave rise to any issue of principle, any matter of public importance or any reasonably clear injustice.”
Justice Adamson ordered NSW to pay McLaughlin’s court costs. And Justice Roddy Meagher agreed with her decisions.
