The test for lawful arrest without warrant (reasonable suspicion under s 352 of the Crimes Act 1900 (NSW)) is distinct from and lower than the test for reasonable and probable cause in malicious prosecution; a finding of absence of reasonable and probable cause does not automatically establish that an arrest was unlawful. A party cannot advance on appeal a case based on absence of reasonable excuse for non-disclosure under s 316 where that case was not pleaded, particularised, opened, put to the relevant witness, or the subject of submissions at trial. The question whether an arresting officer must suspect the absence of a reasonable excuse under s 316 was left open but doubted.
The full text is available to signed-in members, including the 1 later case that cites this judgment.