Hage-Ali v State of NSW [2009] NSWDC 266

At 7.15am on 22 November 2006 Iktimal Hage-Ali was arrested at her family home at Punchbowl. She was then 22 years of age. She was arrested allegedly on suspicion of supplying cocaine.

She was transported to Bankstown Police Station where she arrived at approximately 7.35am. She was interviewed from 9.00am onwards. She was released at 10.39am and was not charged.

Ms Hage-Ali asserted that her arrest was unlawful and her subsequent imprisonment false. If the arrest was unlawful, it followed that the imprisonment was false. The basis of the assertion of the unlawfulness of the arrest was that it was non-compliant with the mandatory requirements of s.99 Law Enforcement (Powers & Responsibility) Act, 2001 (NSW).

Ms Hage-Ali asserted that the events surrounding her arrest and detention represented aggravating circumstances of the wrongful arrest and false imprisonment. She claimed compensatory (including aggravated) and exemplary damages arising from her arrest and imprisonment. She was successful in receiving an award of damages of $18,705 on 14 October 2009 after an 18 day trial.

In the period between August/November 2006 Ms Hage Ali purchased or received on credit small amounts of cocaine (either 0.5 or 1 gram) from Mr B. Her purchases in the period were recorded by telephone intercepts undertaken by police on the mobile phone of Mr B. These intercepts were obtained during the course of the operation of Strike Force Kirban which was established in July 2006 within the Middle Eastern Organised Crime Squad. The principal police officers working with the strike force were Detective Sergeant Patton and Detectives Phillips and Dale.

The strike force simultaneously arrested and executed search warrants on three persons, Mr B, Mr K and Mr D. Ms Hage-Ali was arrested at the same time without a warrant. An authorised officer declined to issue two search warrants including one in respect of Ms Hage-Ali.

The practices of Detective Phillips led to the unfounded assertion in the search warrant application for Ms Hage-Ali and the association between her and an unlicensed firearm. The State accepted that this was an error derived from the cutting and pasting of the same contents between the search warrants.

Between 6.00am and 7.00am on 27 November 2006, a meeting took place involving the participation of a large number of police officers charged with the responsibility of executing search warrants, arresting persons of interest and other associated tasks connected to the operational orders. Inspector Patton was the only person to address the meeting. He stated that all persons of interest were to be arrested.

Detective Phillips believed that the order had not been made that persons were to be arrested, the proposed arresting officers would proceed to do so rather than applying their own mind as to whether they should do so. Detective Dale and Sergeant Dyson followed what was a direction to arrest by Detective Patton.

Four police officers attended Hage-Ali’s residence. She was asleep when the officers arrived and she was arrested. She was transported to Bankstown Police Station. She was met by Inspector Patton and Detective Phillips at around 7.45am. Inspector Patton made a large number of phone calls before the commencement of the voluntary interview with her at 9.00am. Various discussions were had between the officers and Ms Hage-Ali including about her pending employment with the Attorney-General’s Department.

A recorded interview took place which lasted one hour in which Ms Hage-Ali participated with Inspector Patton and Detective Phillips. No lawyer was present. Ms Hage-Ali admitted cocaine use but denied supply. Her denial was accepted and no charges were laid.

Ms Hage-Ali was released at 10.39am. She reported her arrest to her employer, the New South Wales Attorney-General’s Department. Ms Hage-Ali asserted that Inspector Patton had leaked her arrest based on some peculiar behaviour of his towards the end of the interview. This formed part of a sustained attack by Ms Hage-Ali on the credit of Inspector Patton.

Ms Hage-Ali saw Mr Talbot from the Deputy Director General of the NSW Attorney-General’s Department later in the day and detailed mistreatment at the hand of police whilst in detention. She left Australia on 17 December 2006 and has not returned to Australia to live.

Judgment on liability

The State bore the onus of proving the lawfulness of the arrest. Zaravinos v State of New South Wales; State of New South Wales & Anor v Zaravinos (2004) 62 NSWLR 58 at [12]. It was common ground that the State required factual findings in its favour to succeed in its defence by reference of the requirements set out in s.99(3) of LEPRA. The necessary factual findings for the State to succeed in its defence were that the two arresting officers, Detective Dale and Sergeant Dyson:

a) turned their mind to whether it was necessary to arrest Ms Hage-Ali;

b) had the requisite suspicion to justify the arrest for any of the reasons specified under s.99(3); and

c) whether the suspicion, if held at all, was based on reasonable grounds.

His Honour Judge Elkain SC did not make any of the necessary factual findings in favour of the State. The State failed to prove its case. He found that Detective Dale and Sergeant Dyson did not have the requisite suspicion as required by s.99(3) and if they did, any such suspicion was not reasonably held; judgment at paras [205],[206],[210] and [211]. The suspicion was not held because they did not turn their minds to whether they needed to arrest Ms Hage-Ali; judgment at [168(b)].