Drage v State of Western Australia
[2015] WADC 20
•6 MARCH 2015
DRAGE -v- STATE OF WESTERN AUSTRALIA [2015] WADC 20
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WADC 20 | |
| Case No: | GER CIV:5/2012 | 18 AUGUST, 12 & 19 SEPTEMBER, 8 DECEMBER 2014 | |
| Coram: | STAUDE DCJ | 6/03/15 | |
| GERALDTON | |||
| 37 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiff's claim dismissed | ||
| PDF Version |
| Parties: | PHILIP NEIL DRAGE STATE OF WESTERN AUSTRALIA David Michael MINNERVINI ASHWORTH PREECE |
Catchwords: | Tort False imprisonment and other trespass Arrest of plaintiff by police on suspicion of traffic offences Plaintiff arrested on private property Whether police empowered to enter property to effect arrest Whether s 31 Criminal Investigation Act 2006 complied with Whether arrest justified Turns on own facts Practice and procedure False imprisonment and other trespass Application for dismissal of plaintiff's claim allowed Court not addressed on onus of proof Fact of imprisonment admitted Orders for judgment recalled before judgment perfected |
Legislation: | Criminal Investigation Act 2006 |
Case References: | Calabro v The State of Western Australia [No 3] [2014] WASC 84 Clowser v Chaplin; Finnigan v Sandiford [1981] 1 WLR 837 De L v Director General, NSW Department of Community Services [1997] HCA 14; (1997) 190 CLR 207 Dobie v Pinker [1983] WAR 48 Hume v R [1999] WASCA 64 McFadzean v Construction, Forestry, Mining & Energy Union [2007] VSCA 289; (2007) 20 VR 250 Minister for Education v Klein [2005] WASCA 185(S) Murray v Ministry of Defence [1988] 1 WLR 692; [1988] 2 All ER 521 Myer Stores Ltd v Soo (1991) 2 VR 597 Norilya Minerals Pty Ltd v Ireland [No 2] [2010] WASC 265 Oakley v Insurance Manufacturers of Australia Pty Ltd [2008] VSC 68 Plenty v Dillon (1991) 171 CLR 635 Trobridge v Hardy (1955) 94 CLR 147 Whittaker v Child Support Registrar [2010] FCA 43; (2010) 264 ALR 473 Young v Cooke [2013] NSWCA 79 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
STATE OF WESTERN AUSTRALIA
First Defendant
David Michael MINNERVINI
Second Defendant
ASHWORTH PREECE
Third Defendant
Catchwords:
Tort - False imprisonment and other trespass - Arrest of plaintiff by police on suspicion of traffic offences - Plaintiff arrested on private property - Whether police empowered to enter property to effect arrest - Whether s 31 Criminal Investigation Act 2006 complied with - Whether arrest justified - Turns on own facts
Practice and procedure - False imprisonment and other trespass - Application for dismissal of plaintiff's claim allowed - Court not addressed on onus of proof - Fact of imprisonment admitted - Orders for judgment recalled before judgment perfected
Legislation:
Criminal Investigation Act 2006
Result:
Plaintiff's claim dismissed
Representation:
Counsel:
Plaintiff : In person
First Defendant : Mr D E Leigh (18 August 2014), Mr J F O'Sullivan (12 and 19 September 2014), Mr D E Leigh and Mr E Ferris (8 December 2014)
Second Defendant : Mr D E Leigh (18 August 2014), Mr J F O'Sullivan (12 and 19 September 2014), Mr D E Leigh and Mr E Ferris (8 December 2014)
Third Defendant : Mr D E Leigh (18 August 2014), Mr J F O'Sullivan (12 and 19 September 2014), Mr D E Leigh and Mr E Ferris (8 December 2014)
Solicitors:
Plaintiff : Not applicable
First Defendant : State Solicitor for Western Australia
Second Defendant : State Solicitor for Western Australia
Third Defendant : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Calabro v The State of Western Australia [No 3] [2014] WASC 84
Clowser v Chaplin; Finnigan v Sandiford [1981] 1 WLR 837
De L v Director General, NSW Department of Community Services [1997] HCA 14; (1997) 190 CLR 207
Dobie v Pinker [1983] WAR 48
Hume v R [1999] WASCA 64
McFadzean v Construction, Forestry, Mining & Energy Union [2007] VSCA 289; (2007) 20 VR 250
Minister for Education v Klein [2005] WASCA 185(S)
Murray v Ministry of Defence [1988] 1 WLR 692; [1988] 2 All ER 521
Myer Stores Ltd v Soo (1991) 2 VR 597
Norilya Minerals Pty Ltd v Ireland [No 2] [2010] WASC 265
Oakley v Insurance Manufacturers of Australia Pty Ltd [2008] VSC 68
Plenty v Dillon (1991) 171 CLR 635
Trobridge v Hardy (1955) 94 CLR 147
Whittaker v Child Support Registrar [2010] FCA 43; (2010) 264 ALR 473
Young v Cooke [2013] NSWCA 79
- STAUDE DCJ:
Introduction
1 This action is a claim for damages for trespass to the person. It arises from the arrest of the plaintiff on suspicion of certain traffic offences at Worree, Geraldton, on 3 February 2010.
Statement of claim
2 The plaintiff's claim is based on facts which are alleged in pars 4 and 5 of the statement of claim as follows:
4 On or about the 3.2.2010 at about 4.25 am the plaintiff was falsely arrested by the defendants for no breach of the peace at number 9 Piping Lane in WOREE GERALDTON (the false arrest):
PARTICULARS OF THE FALSE ARREST:
4.1 DETENTION WITHOUT AUTHORITY OF THE LAW
4.1.1 The second named defendant together with two other police officers entered 9 Piping Lane 'unlawfully' at [p36 par 3] and is therefore trespassing on the property (the trespass).
4.1.2 The police prosecutor agreed to the trespass when he said that the first named defendant did not state the reason why he was there to the occupier of the property at [p 33 par 1] (the admission of trespass).
4.1.3 By virtue of the Trespass and the Admission of Trespass the plaintiff was unlawfully arrested without the authority of the law (the unlawful arrest of the plaintiff).
4.1.4 The Unlawful Arrest of the plaintiff fulfils the following three requirements of the law:
4.2 WILFUL DETENTION:
4.2.1 The second named defendant did not know that the plaintiff was the driver of the Toyota Hilux Ute bearing Rego 1BEW245 at the time before he arrested the plaintiff at [p 33 par 1] (the Ignorance of the Arrestor).
4.2.2 The second named defendant did therefore maliciously cause the wrongful false arrest and the subsequent false imprisonment of the plaintiff (the Wilful Detention).
4.3 DETENTION WITHOUT CONSENT
4.3.1 John Maxwell Drage objected vehemently to the arrest of the plaintiff by the second named defendant on the ground that he was trespassing on the property at [p 5 pars 1, 2, 3 and 4] (Lack of Consent of Plaintiff's Brother).
4.3.2 The plaintiff also expressed his dissent to his arrest by the second named defendant at [par 33] and at [par 42].
PARTICULARS OF THE FALSE IMPRISONMENT:
5.1. The Second-named Defendant caused the Plaintiff to be falsely imprisoned:
5.1.1. he directly caused or effected the Unlawful Arrest of the Plaintiff as indicated above (the Causal Connection).
5.1.2. despite the Causal Connection, he knows at [p.12 para.17] and [p.26 para.2 and 3] that he does not possess at [p.35] the necessary warrant of arrest, occupiers consent and the fulfilment of statutory requirement of a serious offence for the Unlawful Arrest of the Plaintiff as provided for under ss. 23, 31, 32 and 133 of the CRIMINAL INVESTIGATION ACT 2006 WA (Non Compliance with Statutory Requirements).
5.1.3. he caused the total deprivation of the freedom of movement (the Psychological Imprisonment) of the Plaintiff, without lawful justification:
PARTICULARS OF PSYCHOLOGICAL IMPRISONMENT:
5.2 The stress and trauma of the False Arrest caused the Plaintiff to suffer a heart attack on 3.2.2010 whilst he was in police custody (the Heart Attacks).
5.3. The Heart Attacks resulted in the Plaintiff being incarcerated at the Geraldton District Hospital and the Fremantle Hospital on the same day until the Plaintiff was discharged on 9.2.2010 (the Incarceration at the Hospitals).
5.4. The restriction of movement of the Plaintiff at his own home during the period from the 9.2.2010 till his acquittal on 27.9.2011 whilst he was preparing his case with his defence counsel in defending his charges for the False Arrest. False imprisonment does not entail physical imprisonment as it can be a form of psychological imprisonment (the Psychological Imprisonment).
5.5. The Heart Attacks, the Incarceration at the Hospitals and the Psychological Imprisonment lasted for 602 days (the Duration of the False Imprisonment).
5.6. The Second-named Defendant was given due notice of the peculiarity of the Plaintiff or his egg-shell skull vulnerability by Lynnette Drage on 3.2.2010 at the time of the False Arrest at [p.7 at para.4] (the Vulnerability of the Plaintiff).
5.7. The Psychological Imprisonment of the Plaintiff and the Trespass on Motor Vehicle by the Defendants through its Police Service (the Executive) of which the Second Defendant is representative, was without any clear statutory mandate and it therefore represents an attempt by the Police Service to compromise on the integrity of the judiciary and is unconstitutional on the ground that the core function of the judicial branch is to rule on the legality of the executive action (the Executive acted without Authority).
3 The plaintiff goes on in par 6 to plead a claim for general and other damages as follows:
6. By reason of the False Arrest and the consequent False Imprisonment of the Plaintiff by the Defendants, the former suffers General Damages, which includes Aggravated Damages and Exemplary Damages (the General Damages Claim):
PARTICULARS OF THE GENERAL DAMAGES CLAIM:
6.1. damages of injury to liberty to be assessed by this court in the sum of $1.08m (Injury to Liberty Damages).
6.2. Injury to Liberty Damages includes:
6.2.1. the trespass to property including the Plaintiff's Home and the Plaintiff's Motor Vehicle.
6.2.2. the trespass to the person of the Plaintiff including his physical incarceration while in police custody and the subsequent psychological imprisonment.
6.2.3. the Aggravated Damages suffered by the Plaintiff being his non-pecuniary loss that was caused by the Second-named Defendant despite the fact that the latter was given due notice of the special vulnerability of the Plaintiff. It includes the pain, anguish, grief, humiliation, wounded pride, damaged self-confidence or self-esteem, loss of faith in friends or colleagues, and similar matters that are caused by the conduct of the defendant including the heart attacks.
6.2.4. the Special Damages in terms of the pecuniary loss of the Plaintiff in the estimated 1,000 man-hours wasted by the Plaintiff in fighting the malicious prosecution.
6.2.5. the Exemplary Damages for the purpose of expressing the court or the Jury's outrage at the improper interference or the high-handed, malicious, vindictive and oppressive conduct of the Second-named Defendant against the Plaintiff and is also for the purpose of appeasing the Plaintiff and to achieve sufficient deterrence of future wrongdoing of the Police.
6.2.6. The Costs of the Claim for the Plaintiff.
6.2.7. Any other Relief which the Court thinks fit.
Causes of action
4 The statement of claim pleads a cause of action in tort for false imprisonment. False imprisonment is an intentional tort. It is actionable without proof of special damage: Murray v Ministry of Defence [1988] 1 WLR 692, 701 - 2; [1988] 2 All ER 521, 528 - 9; Myer Stores Ltd v Soo (1991) 2 VR 597.
5 It is explained in McFadzean v Construction, Forestry, Mining & Energy Union [2007] VSCA 289; (2007) 20 VR 250, in terms that were approved in Young v Cooke [2013] NSWCA 79 [11] and applied in Calabro v The State of Western Australia [No 3] [2014] WASC 84 [44]:
The essence of the action of false imprisonment is the compelling of a person to stay at a particular place against his or her will. Accordingly, where a plaintiff has full knowledge and comprehension of the defendant's coercive conduct amounting to total restraint, the action depends upon proof that, were it not for the defendant's conduct, the plaintiff would not have submitted to the restraint. Consequently, it is not sufficient in law that the conduct of the defendant has contributed to or influenced the plaintiff's decision to remain unless the conduct has overborne the plaintiff's will. It must be shown that, but for the defendant's conduct, the plaintiff would not have yielded to the total restraint …
6 In Calabro, Kenneth Martin J observed that false imprisonment may be established by a plaintiff without needing to establish malice or any improper motive or purpose on the part of the alleged tortfeasor: [46]. See also Whittaker & Anor v Child Support Registrar & Anor [2010] FCA 43; (2010) 264 ALR 473 [177] (Lindgren J).
7 Although the claim for false imprisonment is pleaded on the basis of an express allegation of unlawful arrest, as a matter of law the plaintiff does not have to show that the imprisonment was lawful. Where imprisonment is proved, it is for the defendant if it wishes to escape liability to show that the imprisonment was justified: Trobridge v Hardy (1955) 94 CLR 147, 152; Myer Stores Ltd v Soo.
8 In Trobridge, Fullagar J said (153):
Nothing in the argument before us turned on the pleadings in the action, but the pleadings call for some comment. The plaintiff did not sue, as he might also have done, for malicious prosecution, but for trespass to the person and false imprisonment. It was unnecessary for him to allege in his statement of claim, as in fact he did, that the defendant was 'acting in his office as a member of the police force'. The mere interference with the plaintiff's person and liberty constituted prima facie a grave infringement of the most elementary and important of all common law rights. It was for the defendant to justify, if he could, by reference to his office or otherwise.
9 The plaintiff's pleaded contention is that he was arrested by the second defendant and others unlawfully and that his detention pursuant to his arrest was therefore wrongful and amounted to false imprisonment.
10 The statement of claim also alleges psychological imprisonment as a wrong which the plaintiff allegedly suffered by reason of being subject to a bail undertaking until the charges on which he was arrested were dismissed. Under the heading 'Particulars of Psychological Imprisonment' the plaintiff alleges, firstly, that by reason of stress and trauma occasioned by his arrest he suffered a heart attack on 3 February 2010 whilst in police custody, and secondly, that his movements were restricted whilst he was on bail from 3 February 2010 until his acquittal on 27 September 2011.
11 The allegation of a heart attack suffered as a result of the stress and trauma occasioned by the alleged wrongful arrest I understand to be the basis of a claim for trespass to the person in the form of assault.
12 There is no express allegation of malicious prosecution, although in the prayer for relief (par 6.2.4) the plaintiff purports to claim 'special damages' for 'the estimated 1,000 man-hours wasted by the plaintiff in fighting the malicious prosecution'. No claim for malicious prosecution is made out on the evidence. Although the plaintiff was prosecuted and the charges dismissed, there is no evidence of lack of reasonable cause and no evidence of malice, or from which malice can be inferred. No claim of malicious prosecution was submitted by the plaintiff at trial.
The defence
13 The defendants' position is set out in a lengthy defence which I will not reproduce, but rather summarise as follows:
1. No action in tort lies against the second and third defendants by reason of s 137(3) of the Police Act 1892 as their actions in relation to the plaintiff were done in the performance of their functions as police officers without corruption or malice.
2. The first defendant is liable for the actions of the second and third defendants in the course of the performance of their functions as police officers pursuant to s 137(5)(a) of the Police Act.
3. The allegations of false imprisonment and trespass to the person are denied. Further, it is alleged (paraphrasing):
(a) The second defendant and others, whilst on patrol, observed the plaintiff driving his vehicle along Flores Road, Wonthella.
(b) A registration check revealed that the vehicle was registered in the name of the plaintiff and that the plaintiff did not have a licence to drive the vehicle at that time. The police sought to stop the plaintiff's vehicle. The plaintiff refused to stop and drove away from the police.
(c) The plaintiff turned into 9 Piping Lane, Worree, and drove down the driveway to the rear of the property.
(d) The second defendant drove the police vehicle onto the driveway and stopped just inside the boundary of the property.
(e) The second defendant was prevented from proceeding further because an unidentified male person (in fact the plaintiff's brother, John Maxwell Drage) stood in front of the police vehicle and told the police that they were trespassing and to get off his property.
(f) The second defendant then exited the police vehicle and ran down the driveway towards the rear of the property with another officer, approached the plaintiff's vehicle and observed the plaintiff to be sitting in the vehicle. He asked the plaintiff to turn off the engine and get out of the vehicle.
(g) The plaintiff refused. The second defendant said that he was required to submit to a licence check and a breath test. The plaintiff attempted to drive away. The second defendant tried to remove the keys from the ignition of the plaintiff's vehicle. He was resisted by the plaintiff. The plaintiff eventually complied and exited the vehicle.
(h) The second defendant requested the plaintiff's name and address which the plaintiff refused to provide.
(i) The second defendant then informed the plaintiff that he was under arrest for refusing to provide his name and address.
(j) The plaintiff was then escorted by the second defendant and another officer to the police vehicle. As they did so, the plaintiff struggled and at one point escaped briefly.
(k) The plaintiff was taken to Geraldton Police Station. The third defendant met the police vehicle. The plaintiff was escorted to the lock up.
4. Prior to entering the property the second defendant reasonably suspected that the plaintiff had committed the offence of driving without lawful authority, contrary to s 49(1)(a) of the Road Traffic Act 1974,and the offence of failing to stop a vehicle when called upon to do so by a member of the police force, contrary to s 53(1)(b) of the Road Traffic Act.
5. After entering the property, the second defendant reasonably suspected that the plaintiff had committed further offences, namely, the offence of failing to provide a sample of breath for analysis when required to do so, contrary to s 67A(1) of the Road Traffic Act, and the offence of refusing to provide his name and address when requested to do so, contrary to s 53(1)(a) of the Road Traffic Act.
6. The second defendant had statutory authority to arrest the plaintiff pursuant to s 128(3) of the Criminal Investigation Act 2006 on the basis that if the plaintiff were not arrested it would not be possible to obtain and verify his name and other personal details.
7. Prior to entering the property, the police officers had statutory authority to enter the property to arrest the plaintiff pursuant to s 129 and s 132(2)(a) of the Criminal Investigation Act on the basis that the plaintiff was an arrestable person.
8. The police officers acted consistently with their statutory duty in entering the property on the basis that compliance with s 31(2) of the Criminal Investigation Act would jeopardise the purpose of the proposed entry and that at no time prior to the plaintiff's arrest was it practicable to comply with s 31(3).
9. The time between the entry onto the property by the police and the arrest of the plaintiff was a matter of minutes. The police were concerned that the plaintiff would attempt to flee or otherwise avoid identification and apprehension.
10. Throughout the time the police were on the property the plaintiff and the other male person continued to act in a belligerent and obstructive manner such that it was not practicable for the police to communicate with the plaintiff or the other person whilst securing the plaintiff's arrest.
11. The second defendant had statutory authority to enter the plaintiff's vehicle in order to arrest him pursuant to s 129 and s 132(2)(b) of the Criminal Investigation Act.
12. The second and third defendants acted without corruption or malice.
13. Psychological imprisonment is not a tort recognised by the law of Australia.
14. The plaintiff received lawful medical treatment following his detention.
15. The plaintiff was charged with the traffic offences to which I have referred and with obstructing public officers pursuant to s 172(2) of the Criminal Code.
14 The defendants deny that the plaintiff was acquitted of these charges and says that they were withdrawn by the prosecution. In fact, the charges were dismissed on 27 September 2011 after the prosecution offered no evidence, its application for an adjournment due to the non-availability of witnesses having been refused.
The course of the trial: the plaintiff's case
15 The trial of the action commenced on 18 August 2014. It took an unusual course which I will set out in detail.
16 At the commencement of the trial, I explained to the plaintiff the procedure to be followed. He told me he was aware of it. He stated that he did not intend to call evidence. As I understood the plaintiff, he accepted that if the arrest was lawful, then his claim in tort could not be sustained. His case was that the police failed to comply with s 31 of the Criminal Investigation Act which deals with the rights of occupiers of property and applies to the entry of a place where the entry is made under s 23 of the Criminal Investigation Act and pt 12, div 3.
17 When the plaintiff opened he referred to a number of documents which, he submitted, established his case. At first, he declined to tender the documents. He was informed that they could not be treated as evidence unless they were tendered and any objection to their admissibility determined.
18 The plaintiff then tendered one by one, seven documents, each of which was objected to. I ruled on the objections, receiving as exhibits those documents which I held to be admissible and marking for identification those which were not. It is appropriate that I reiterate my rulings:
1. Prosecution notice (summons to an accused) to Philip Neil Drage dated 12 February 2010 detailing an alleged offence of obstructing Constable Minervini in the performance of the officer's functions on 3 February 2010 and attached statement of material facts (MFI 1).
The defendants objected on the basis of relevance. Although it was not in issue that the plaintiff was charged with the offence set out in the prosecution notice, the statement of material facts was not evidence of those facts and the document was not relevant to any fact in issue. The objection was upheld.
2. Official Prosecutions (Accused's Costs) Act 1973 s 9 certificate (exhibit 2).
This document certified that on 27 September 2011 at the Magistrates Court in Geraldton the plaintiff was successful in his defence of five charges details of which are annexed to the certificate and was awarded costs. The five charges detailed were endorsed 'not guilty'. It was objected to on the basis of relevance. The defence raised an issue with respect to the circumstances in which the charges in question were dismissed. Although I did not consider that the issue was material, I allowed the tender.
3. Bail undertaking signed by Philip Drage dated 27 May 2010 (MFI 3).
This document is a bail undertaking in respect of the plaintiff's appearance in the Geraldton Magistrates Court on 10 June 2010. It was not in issue that the plaintiff was on bail until the dismissal of the charges. The bail undertaking signed on 27 May 2010 was not relevant to any fact in issue with respect to false imprisonment or other trespass to the person. The objection was upheld.
4. Copy letter Dr Edmund Lee, cardiologist, 14 February 2014 (MFI 4).
This letter addressed 'To Whom It May Concern' purports to be written with respect to the plaintiff and states that he had a heart attack in February 2010. The date of that event is not given nor is the source of the author's information. The letter states that the author saw the plaintiff in April 2010, but not subsequently. It expresses no opinion as to the cause of the heart attack. Indeed, it is not apparent that the report was made for the purpose of this litigation.
The defendants objected to the letter on the grounds of relevance and on the basis that the letter was not admissible except through the author whom the defendants would wish to cross-examine. The plaintiff informed the court that he could not afford to call Dr Lee as a witness.
I reserved my ruling on the objection and indicated that I would mark the letter of Dr Lee for identification on the basis that there may be evidence yet to be given that might ground the admission of the letter pursuant to s 79(c) of the Evidence Act.
5. Fremantle Hospital records (exhibit 5).
The bundle of Fremantle Hospital records was given no meaning by the plaintiff except as evidence that on 3 February 2010 he was transferred to Fremantle Hospital by Royal Flying Doctor Service from Geraldton with a diagnosed acute coronary syndrome. The records indicate that the plaintiff was discharged on 9 February 2010. Over the objection of the defendants I admitted the records pursuant to s 79C of the Evidence Act.
6. Transcript of proceedings in the Geraldton Magistrates Court on 27 September 2012 between the police and Philip Neil Drage (MFI 6).
This document is a transcript of the hearing to which exhibit 2 relates. The transcript is not relevant to any fact in issue. It merely records the dismissal of the charges against him, a fact which is admitted. I upheld the defendants' objection.
7. Transcript of proceedings in the Geraldton Magistrates Court on 1 March 2011 between police and John Maxwell Drage (MFI 7).
This is the transcript of a hearing of a charge of obstruction of the second defendant in the performance of his functions on 3 February 2010. It includes the evidence of the second defendant and Constable Kate Gregory, the submissions of defence counsel and the prosecutor with respect to a 'no case' submission and the learned magistrate's ruling that the accused had no case to answer.
There was no issue as to the outcome of that matter. The plaintiff wanted to rely on the transcript of the evidence in that case to prove that the police did not comply with s 31 of the Criminal Investigation Act which, on his submission, meant that his arrest was unlawful.
I upheld the defendants' objection to the tender on the basis that evidence given in another matter to which the plaintiff was not a party could not, without more, prove any fact in issue in this action and was therefore irrelevant.
I did, however, permit the plaintiff in his closing address to refer to and read from, by way of argument, the reasons of decision of the learned magistrate for dismissing the charge against his brother. The learned magistrate found that the evidence in that case did not satisfy the court that the entry of John Maxwell Drage's premises was made in accordance with s 31 of the Criminal Investigation Act.
20 The plaintiff's response to the defendants' submission was that by ruling inadmissible the transcripts on which he relied as proof of his wrongful arrest and imprisonment I had effectively struck out his case. He thought his case could be proved by the transcripts.
21 I upheld the application, indicating that I would publish reasons at a later date. The court dismissed the action with costs.
Judgment recalled
22 Subsequently, on or about 28 August 2014, I formed the view that an important point of law had not been addressed in the submissions made in relation to the no case submission, namely, the effect of the defendants' admission in the defence that the plaintiff had been arrested. In a claim for damages for false imprisonment the plaintiff has only to prove his detention, whereupon the burden of proof shifts to the defendant to show that the detention was lawful.
23 Although the defendants' no case submission proceeded on the basis that there was no evidence adduced in the plaintiff's case of the material facts on which his claim was based, including his alleged detention, the submission did not address the law regarding the onus of proof, or on the effect of the apparent admission in the defence that the plaintiff was arrested and detained, albeit lawfully.
24 Having ascertained that the orders made on 18 August had not been perfected, I issued a direction in chambers to the registrar at Geraldton not to seal the orders pending a further direction by me. (As to the court's power to re-open an unperfected judgment: see De L v Director General, NSW Department of Community Services [1997] HCA 14; (1997) 190 CLR 207; Minister for Education v Klein [2005] WASCA 185(S) [7]).
25 I then invited further submissions and set the matter down for a further hearing on 12 September 2014. The defendants lodged written submissions dated 9 September 2014 arguing that the no case submission was correctly upheld.
26 The defendants contended that the material facts of the plaintiff's cause of action for false imprisonment were denied and that the positive case pleaded in the defence based on a lawful arrest did not constitute an admission of the fact of arrest on which the plaintiff could rely. The defendants relied on Norilya Minerals Pty Ltd v Ireland [No 2] [2010] WASC 265 to argue that a fact pleaded in support of a positive defence of justification could not be relied upon by the plaintiff as an admission.
27 This argument, irrespective of its merits (which I considered doubtful in the circumstances of this case), was a technical one: there was no issue at all that the plaintiff had been arrested as a matter of fact. I indicated my concern that it should be raised by the State.
28 It was also contended that the plaintiff's allegations of 'psychological imprisonment' during the period he was on bail did not disclose a cause of action. Further, it was submitted that the allegation of trespass to land was not sustainable where there was no evidence of any ownership or occupation of the land in question.
29 After hearing from the parties I adjourned the hearing to 19 September 2014 in order to enable the defendants to give further consideration to their position on the pleading point.
30 The defendants lodged supplementary submissions dated 18 September 2014 indicating that the no case submission was withdrawn with respect to the claim for false imprisonment against the first defendant (the State), but maintained in relation to the claims against the second and third defendants on the basis that the plaintiff could not succeed against them without evidence of malice, and in relation to the claims for 'psychological imprisonment' and trespass to land.
31 It was argued on the authority of Oakley & Anor v Insurance Manufacturers of Australia Pty Ltd [2008] VSC 68 that on a 'no case' submission the judge cannot draw an inference against the party making the application based upon the absence of evidence from that party. In other words, the court should deal with the application on the basis of the evidence so far adduced. The plaintiff adduced no evidence of malice.
32 After hearing from the parties on 19 September 2014 I upheld the submission in relation to the claims for 'psychological imprisonment' and trespass to land.
33 The plaintiff's allegation in par 5.4 that he was psychologically imprisoned for the period during which he was on bail does not disclose a cause of action against the defendants. There is no tort of psychological imprisonment. The essence of the tort of false imprisonment is involuntary detention. The plaintiff was not detained by being granted bail. Furthermore, and in any event, the granting of bail was a matter for the court in which the plaintiff was charged. It is impossible to conceive of any wrong being done by the defendants by reason of the plaintiff being admitted to bail.
34 The claim for trespass to land was not sustainable in the absence of evidence of an infringement of a possessory right. The cause of action serves 'to vindicate the plaintiff's right to the exclusive use and occupation of his or her land': Plenty v Dillon (1991) 171 CLR 635, 654. There was no evidence in the plaintiff's case by which such a right could be demonstrated.
35 On the question of whether the surviving claims against the second and third defendants should be dismissed in the absence of evidence of malice, I exercised my discretion in favour of the plaintiff. While the principle in Oakley can be accepted as a general rule, I doubt its application in this case where the onus of proof has shifted to the defendants (pursuant to an admission of the plaintiff's arrest), to show that the arrest was lawful. Accordingly, I did not uphold the second and third defendants' submission. Malice is in issue, being alleged in par 6.2.5 of the statement of claim and expressly denied in the defence.
36 The following orders were made:
1. The orders made on 18 August 2014 be vacated.
2. The plaintiff's claims for damages for psychological imprisonment and trespass to property be dismissed.
3. The issue of the plaintiff's liability for the costs of the claims which have been dismissed be reserved pending final judgment.
4. The trial of the plaintiff's claim for damages for false arrest and false imprisonment be re-listed on 8 and 9 December 2014 at Geraldton.
The trial resumes: claim against third defendant dismissed
37 Prior to the trial resuming, the plaintiff filed an affidavit sworn 20 November 2014 attaching a number of documents. Although the affidavit purports to provide evidence of matters of which the court should take judicial notice, it does not in fact contain any evidence relevant to the plaintiff's claim. Rather, it is in the nature of a legal submission. I have considered it as such, but it does not address any issue requiring my determination.
38 Upon the recommencement of the trial on 8 December 2014 counsel for the defendants made an application for dismissal of the plaintiff's claim against the third defendant Mr Preece on the basis that there was no evidence that would support a finding of any civil wrong by him against the plaintiff. The third defendant at the material time was a sergeant of police. He was not involved in the arrest or detention of the plaintiff.
39 The plaintiff submitted that the third defendant had twice required him to provide a sample of breath for analysis, a fact of which there was no evidence, and which was not relevant to the plaintiff's claim. The plaintiff accepted that this was the case. The statement of claim did not allege false imprisonment or any other wrong by the third defendant.
40 I allowed the application on the basis that the evidence in the plaintiff's case did not disclose a basis for any tortious claim against the third defendant.
The defendants' case
41 Prior to the first defence witness being called, counsel for the defendants sought to tender a certificate issued pursuant to s 98(1b) of the Road Traffic Act 1974 as a business record pursuant to s 79C(2a) of the Evidence Act 1906. The certificate is described as an extract of the driver's licence register maintained in accordance with s 42 of the Road Traffic Act.
42 The certificate sought to be tendered was issued on 10 May 2010 by an officer of the Department of Transport pursuant to the authority of the Director General. It was issued for the purpose of the prosecution of the plaintiff for driving without lawful authority pursuant to s 49(1)(a) of the Road Traffic Act. The certificate stated that as at 3 February 2010, being the date in question, the plaintiff's motor driver's licence was suspended.
43 Section 98(1b) of the Road Traffic Act provides that such a certificate may be issued 'for the purposes of any prosecution or proceedings for an offence under this Act or verifying the accuracy of information provided under pt IVA to another Australian driver licensing authority'. It is submitted by the defendants that this provision regulates the purpose for which the certificate may be issued, but does not restrict its use.
44 The defendants contend that the certificate is relevant to prove as a fact that at the material time the plaintiff was driving without authority, notwithstanding the fact that the charge of this offence was dismissed when the prosecution offered no evidence pursuant to the refusal of an application to adjourn the trial. It is said to be relevant to the issue of damages should the plaintiff's claim succeed.
45 Section 79C(1) of the Evidence Act 1906 relevantly provides that in any proceedings where direct oral evidence of a fact would be admissible, any statement in a document tending to establish the fact shall be admissible as evidence of that fact if the statement was made by a qualified person or directly or indirectly reproduces or is derived from either information in one or more statements made by a qualified person or information from one or more devices designed for the purpose of recording information.
46 Section 79B provides that a qualified person is a person who at the time of making the statement may reasonably be supposed to have had personal knowledge of the matters dealt with by the statement.
47 Section 79C(2a) provides that:
Notwithstanding subsections (1) and (2), in any proceedings where direct oral evidence of a fact or opinion would be admissible, any statement in a document and tending to establish the fact or opinion shall, on production of the document, be admissible as evidence of that fact or opinion if –
(a) the statement is, or directly or indirectly reproduces, or is derived from, a business record; and
(b) the court is satisfied that the business record is a genuine business record.
48 Section 79C(2b) provides:
Where a statement referred to in subsection (2a) is made by a qualified person that person shall not be called as a witness unless the court orders otherwise.
49 Whilst the certificate was issued for the purposes of the prosecution of the plaintiff for driving without authority on 3 February 2010, it stands as a statement which directly or indirectly reproduces or is derived from a business record, as that expression is defined by s 79B, namely:
A book of account or other document prepared or used in the ordinary course of a business for the purpose of recording any matter relating to the business.
50 'Business' is defined to include the business of any governmental body or instrumentality.
51 I am satisfied that the issue and registration of motor drivers' licences pursuant to the provisions of the Road Traffic Act is a business carried on by the Director General of the Department of Transport and that the records of motor drivers' licences, including records of suspensions, is a genuine business record for the purposes of the Evidence Act.
52 The plaintiff objected to the tender of the certificate on the grounds that the certificate was not relevant as the charge of driving without authority was dismissed. I am satisfied that it is relevant, but only to the issue of damages.
53 I am satisfied that the certificate marked MFI 8 is admissible. It is received as exhibit 8.
Evidence of witnesses
54 The second defendant gave evidence. Constable Minervini's evidence was to the effect that on the day in question at about 4.30 am he was on patrol with Constable Kate Gregory and Constable Roland Pace in a marked police vehicle.
55 On Flores Road, Webberton, he observed a white utility, registration 1BEW245, travelling in the opposite direction. He directed Constable Pace to check the registration using the police onboard computer. The computer signalled an alert for a Philip John Drage, the registered owner of the vehicle, indicating that his motor driver's licence was suspended. Constable Minervini did a U-turn and followed the utility catching up to it at the traffic lights at Place Road where the utility then turned right, heading east on Place Road.
56 At the intersection of Anderson Street he activated the emergency lights on the police vehicle. The utility failed to stop. The police vehicle followed about 20 m behind the utility which continued in an easterly direction through the suburb of Strathalbyn. He then began to flash his high beam headlights in order to attract the attention of the driver of the utility. He also sounded the horn of the police vehicle. He said he could see his vehicle's headlights flashing in the rear vision mirror of the utility and could observe one male person in the car who had greyish hair. The utility did not stop. The siren was activated. The utility continued east until turning right into Jenark Street before making a left turn into Piping Lane. Constable Minervini observed it to turn left into the driveway of the house at number 9.
57 Constable Minervini said that he followed the utility for at least 3 km with police vehicle siren and flashing lights on. There were no other cars that he observed. He was unsure of the speed limits, but he did not exceed them as he followed the utility. All he could see of the driver was the back of his head in the headlights of the police vehicle. The utility showed no signs of braking or stopping at any point.
58 He intended to stop the vehicle to ascertain the driver's identity, conduct a licence check and do a random breath test. He was concerned to ascertain whether the driver was the person whom the computer alert indicated did not have a driver's licence.
59 The failure of the vehicle to stop in response to his signals caused him to suspect that it may have been involved in the commission of a more serious offence.
60 After turning the police vehicle into the driveway of 9 Piping Lane, Constable Minervini observed a person to run in front of the police car. He braked heavily. He exited the vehicle. The male person, who was identified as the plaintiff's brother, John Maxwell Drage, told him to get off the property and accused him of trespassing. Constable Minervini said he told him to get out of the way. He then pushed him out of the way and ran down the driveway to the rear. He said he could see the taillights of the utility going around to the right.
61 He said he did not deal with the person who ran in front of the police vehicle 'because I would have had an identity issue if the driver of the vehicle exited the car, ran off to another property or ran inside or ran into a house or something'.
62 He said at that stage he did not know who the driver was and feared not being able to identify that person. He said his main focus was on trying to apprehend the person before that person evaded the police. Constable Minervini said he could see the vehicle the whole time. If he had stopped to deal with John Maxwell Drage at the front of the property he would have lost sight of the vehicle.
63 He followed the vehicle to the back of the house. The vehicle started to reverse. He asked to speak to the driver and told him to turn the car off and to get out which he refused to do. He said:
I spoke to the driver and asked him to turn the car off and get out, and he refused. He continued to say to me 'I don't have to'. He said to me 'What for?' I said 'I need to conduct a licence check and a breath test. He told me that he didn't have to do any of those things at all. He didn't have to listen because the police were a corporation and had no control over him.
64 Constable Minervini said that he reached in to turn off the keys to the car as the driver was reversing. The driver slapped his hand. He then drew his Taser device. When the car stopped it was facing the rear of the house.
65 Constable Minervini identified the person driving the utility as the plaintiff.
66 The plaintiff was yelling and being extremely aggressive towards him. The plaintiff got out of the vehicle. There was less than a metre between them. He told him that he needed to supply him with his personal details. He refused. He described the situation as volatile. The person who was at the front of the property, John Maxwell Drage, came around and was also remonstrating with him. Constable Minervini said:
I don't know where Constable Pace or Constable Gregory are at this time. It was just me and these two men that are yelling and screaming at me. I withdraw my Taser again because I am in fear that - that my welfare and safety is in jeopardy.
67 He then saw Constable Gregory and re-holstered his Taser. He told the plaintiff that he was under arrest for failing to supply his personal details and for failing to stop. He restrained the plaintiff by grabbing hold of his right arm, Constable Gregory grabbing his left. Constable Minervini recalled the plaintiff's brother saying 'Get off the property, you're trespassing. You have no powers to be here'.
68 Constable Minervini was dealing with the plaintiff and his brother when he saw Constable Gregory. As he and Constable Gregory tried to walk the plaintiff back to the police vehicle the plaintiff resisted and struggled. Constable Pace then took the plaintiff's left arm from Constable Gregory. As Constable Minervini was walking the plaintiff along the driveway towards the parked police vehicle he was slammed into a limestone wall which ran along the driveway on the boundary of the property. The plaintiff was eventually placed in the police vehicle.
69 Constable Minervini did not know the plaintiff or his brother and had not been to the property before. He said the plaintiff said to him:
I don't have to tell you anything. Police are a corporation. Police don't have any powers. I don't believe in police. Police have an ABN.
70 He said these phrases were iterated over and over during the incident. He described the plaintiff as extremely belligerent and aggressive.
71 In cross-examination Constable Minervini said that he had been a police officer for close to nine years. He accepted that he was the person who charged the plaintiff. He did not know why the charges were dismissed.
72 Constable Minervini acknowledged that when he followed the utility he did not know that the driver was the plaintiff. He ascertained that later.
73 It was put to him that his evidence in the trial of John Maxwell Drage was that he lost sight of the utility down the driveway, yet in his evidence in this case he said that he did not do so. Constable Minervini agreed that he lost sight of the vehicle briefly, as it went around the corner of the house. He denied that he lied in that respect. He denied changing his evidence. He said it was a long time since he had been involved in the matter. What he said was to the best of his memory.
74 Constable Minervini said he did not know why the case against John Maxwell Drage was dismissed. He admitted that he served a prosecution notice on the plaintiff at 9 Piping Lane and that the plaintiff at the time had refused service and said that he did not live there. Constable Minervini said he was not told where the plaintiff lived.
75 It was put to him that he had been told by the plaintiff's sister-in-law that the plaintiff lived at the residence. Constable Minervini said that to the best of his recollection he served a summons at the address, but he could not recall if it was served on the plaintiff or his brother. He could not recall a conversation with the plaintiff's sister-in-law by which he was informed that the plaintiff lived in a granny flat beside the house.
76 Constable Minervini did not accept that he had no authority to enter the property. He said, 'If you had stopped when I activated my emergency lights we would never have gone on the property'.
77 The plaintiff put to Constable Minervini that he had wrongly assumed that he was the driver of the vehicle he pursued. Constable Minervini said that the plaintiff was the person he saw in the vehicle at the back of the house. He admitted that on the previous occasion he said that the person was about 50 years of age. The plaintiff put to the witness that he was 64. The witness said that he was not an expert as to age.
78 In re-examination Constable Minervini said that when he drove onto the property his vehicle was 5 or 10 m behind the other vehicle. As he pursued the vehicle down the driveway he said there was a gap of 5 to 10 seconds from when the vehicle went behind the house until he himself had turned the corner. At that point he said the car was still moving, still turning around. He said he saw no-one else on the property at that time. The person he saw sitting in the car was the plaintiff. His appearance matched that of the person he had seen from the rear driving the vehicle during the pursuit. He said that person wore a blue T-shirt.
79 The plaintiff was allowed to put the witness that it was in fact his brother who was wearing a blue shirt. Constable Minervini said that the plaintiff's brother was wearing a blue singlet. He denied that the plaintiff's brother was wearing a blue shirt with 'John Drage & Sons Plasterers' printed on it.
80 Constable Kathryn Jane Gregory gave evidence that she was on patrol in company with Constables Minervini and Pace at 4.30 am on 3 February 2010. She also gave evidence of a white utility which was followed on Flores Road, Place Road, Anderson Street, Jenark Road and into Piping Lane where it turned into the property at number 9. She recalled that the police emergency lights were on, that the sirens were on intermittently and that Constable Minervini was tooting the horn and flashing high beam at the utility which did not stop.
81 She estimated the pursuit to be at least 2 km and said that the siren was on for about 800 m. She said that the police vehicle was just a car length behind the utility. She described the police siren as being very loud. The pursuit took three or four minutes.
82 When the utility turned into the driveway of 9 Piping Lane she saw a male person come from the front of the house waving his arms in the air and running towards the front of the police vehicle, in the path of where the other vehicle had gone. She said Constable Minervini stopped the police car suddenly, jumped out of the car and ran to the male person. She followed him. She saw Constable Minervini run down the driveway. She told the person who was in front of the police car not to interfere or he would be arrested. That person, John Maxwell Drage, yelled at her that they were trespassing and to get off his property. He also said that he had been assaulted. Constable Gregory said that her attention was drawn to the rear of the property where she could see Constable Minervini near the driver's door of the car. She pushed the male person out of the way and ran down to where Constable Minervini was near the vehicle.
83 She said that she was engaged with John Maxwell Drage, for 5 or 10 seconds. Down the driveway she could see Constable Minervini next to the driver's door. She ran to the vehicle. She saw the driver get out of the car. She identified him as the plaintiff in court.
84 She heard Constable Minervini tell the plaintiff he was under arrest. She could not remember if he said anything else. She then grabbed his arm. Constable Pace then came and took the plaintiff's arm from her. Constable Gregory gave evidence of what happened after that point, but it does not, in my opinion, bear on the issues in this case.
85 In cross-examination Constable Gregory said she had been a police officer for four years. She agreed that the person she identified as John Maxwell Drage had told her to get off the property and that she was trespassing, but she did not know who the owner of the property was at that time. She presumed that he lived there.
86 It was put to Constable Gregory that she could not see the utility at the rear of the house from where she was speaking with John Maxwell Drage. It was put to her there was a verandah along the side of the house under which there were two cars. She said that she did not remember seeing any such cars. She maintained that she could see the utility from where she was standing and she could see Constable Minervini standing by the driver's side door speaking to the plaintiff. She said that she was 4 or 5 m in front of the police car and had a clear line of sight down the driveway. She indicated, with reference to the diagonal of the courtroom, about 15 m, the distance from the front of the house to where the utility was parked. It was put to her that it was over 30 m. She disagreed. When asked again, the witness said it was probably 20 m. She could see the other vehicle because the police vehicle headlights were on. On Constable Gregory's evidence she got to the utility before the plaintiff's brother. Gregory said that she did not recall speaking to John Drage's wife. She accepted that she may have said that on a previous occasion, but could not recall that she spoke to her.
87 In re-examination she said that she thought John Maxwell Drage followed her down the driveway. She recalls him being there.
88 Constable Roland Pace was also called and gave evidence that he was on patrol with Constables Minervini and Gregory on 3 February 2010. He gave evidence of doing a registration check on the plaintiff's vehicle which indicated that the driver's licence of the registered owner was either suspended or cancelled. He said that the police vehicle did a U-turn and headed north on Flores Road to catch up with the plaintiff's vehicle. The police vehicle caught up to the vehicle which then turned onto Place Road and headed east. As the vehicles approached Anderson Street the police emergency lights were activated. The other vehicle was being driven at 60 km per hour and in a normal manner. After some time the sirens were activated. The other vehicle kept heading east along Place Road. At one point the police vehicle came alongside the other vehicle on the driver's side. Pace was in the passenger seat of the police vehicle. He looked at the driver who did not look towards him. The driver kept driving normally. The other vehicle turned right onto Jenark Road and then left into Piping Lane.
89 When the police vehicle was alongside the utility Constable Pace said that he was only a few metres from the driver and was waving at him to get him to pull over but the driver did not look towards him. He did not know the driver, but recognised the plaintiff in court as that person.
90 Constable Pace recalled that the speed limit along the roads over which the plaintiff's vehicle was followed was 60 km per hour. He saw no other vehicles. He considered that the pursuit lasted two minutes or so and was over a distance of about 2 km.
91 His evidence of what occurred at 9 Piping Lane was generally consistent with the evidence of Constables Minervini and Gregory. He got out of the police car with the others and encountered John Maxwell Drage on the driveway. Constable Minervini told him to call for backup. He returned to the police vehicle to do so. He then went down the driveway to where the plaintiff's vehicle was parked and saw Constables Minervini, Gregory, the plaintiff and John Maxwell Drage by the vehicle, the plaintiff and his brother arguing with Constable Minervini. He then heard Constable Minervini ask the plaintiff for his details which he refused to give and observed him arrest the plaintiff. He said John Maxwell Drage was yelling at Constables Minervini and Gregory to get off his property. He described the plaintiff and his brother as agitated and mildly aggressive. He then assisted Constable Minervini to walk the plaintiff to the police vehicle. He estimated that the incident lasted for about three minutes. He also recalls the plaintiff saying that the police being a corporation and having an ABN. He agreed that there was a point where the plaintiff's vehicle went out of sight as it drove around the back of the house on the property.
92 He was cross-examined as to his evidence that the plaintiff was the driver of the utility. He said he did not know the plaintiff, but when he saw him at the rear of the property at 9 Piping Lane he recognised him as the same person he had seen in the utility when the police vehicle was alongside it. He agreed that he had not said that in any prior statement. It was put to him that he was wrong, that the plaintiff was not the driver of the vehicle. Constable Pace said that he could safely say that the plaintiff was the person he saw driving the vehicle.
93 Constable Pace's recollection was that Constables Minervini and Gregory both went to the back of the property with John Maxwell Drage. He agreed that John Maxwell Drage had told the police that they were trespassing and to get off his property. His estimate of the length of the driveway to the rear of the house was 20 m, but he accepted that it could have been 30. He was not sure of the distance. Constable Pace admitted that he lost sight of the vehicle when it went to the back of the house, but he recognised the plaintiff as the driver who was in the vehicle when he saw it at the rear of the house.
94 Constable Pace was referred s 31 of the Criminal Investigation Act. He denied that the police went beyond their powers when they entered the property.
95 In re-examination Constable Pace said that when his statements were made the identity of the plaintiff was not in issue.
Issues
96 The issue in this case is whether the arrest was lawful. The questions that arise in that respect are whether Constable Minervini was entitled to exercise a power of arrest under s 128(3) of the Criminal Investigation Act, and whether he was entitled to enter the place of 9 Piping Lane, as he did, in order to do so.
Findings of fact
97 The three defence witnesses gave their evidence honestly, to the best of their recollection. Where, in the cross-examination of Constables Minervini and Gregory, inconsistencies were demonstrated as between their evidence and prior statements or testimony, they were not material in my view, having regard to the factual issues in this case.
98 Apart from the identification of the plaintiff as the driver, there is really no controversy as to what took place in the lead up to, and in the course of, the arrest of the plaintiff by Constable Minervini on suspicion of refusing to give his name when requested (contrary to s 53(1) of the Road Traffic Act) and failing to stop his vehicle when called upon to do so (contrary to s 53(2A)).
99 I am satisfied on the balance of probabilities of the following facts, which are proved directly by the evidence of the witnesses or can be inferred:
1. At 4.30 am on 3 February 2010 the plaintiff was driving a motor vehicle, registration number 1BEW245, on Flores Road, Webberton.
2. The vehicle was observed by Constables Minervini, Gregory and Pace, who were on mobile patrol in a marked police vehicle. None of them knew who the driver was. A routine check using the police computer system alerted them to the fact that the motor driver's licence of the registered owner of the vehicle, the plaintiff, Philip Neil Drage, was suspended.
3. The driver of the police vehicle, Constable Minervini, pursued the plaintiff's vehicle and signalled the driver to stop for the purposes of a licence check by driving closely behind and alongside the plaintiff's vehicle and operating the emergency lights, sirens, high beam headlights and horn.
4. The driver was aware of the direction to stop, but ignored it. On roads that were otherwise empty of traffic, he could not have failed to be aware of the presence of the marked police vehicle or to understand that he was being called upon to stop.
5. The driver of the utility was the plaintiff. He proceeded to 9 Piping Lane, the residence of his brother, John Maxwell Drage, with whom he lived at that time.
6. The plaintiff ignored the police direction to stop the vehicle in order to avoid detection of an offence contrary to s 49(1) of the Road Traffic Act which prohibits a person from driving a motor vehicle on a road while not authorised under pt IVA of the Act to do so, and an offence contrary to s 53(2A) which provides that a driver of a vehicle who refuses or fails to stop his or her vehicle when called upon to do so by a member of the police force commits an offence.
6. The plaintiff assumed that the police would not be able to enter the property of his brother. He drove down the driveway into the rear of the property to elude the police.
7. Constable Minervini drove the police vehicle onto the driveway of 9 Piping Lane, but was prevented from following the plaintiff's vehicle down the driveway by John Maxwell Drage who, upon the plaintiff's arrival, ran from the front of his house into the path of the police vehicle, causing Constable Minervini to bring it to a stop. The three officers alighted from the vehicle. The plaintiff's brother then stood in their way and told them to get off his property.
8. Constable Minervini pushed the plaintiff's brother away and, followed by Constable Gregory, pursued the utility down the driveway to the back of the house, while Constable Pace called for back-up. The plaintiff was still in the vehicle when he was approached by Constable Minervini and required to give his personal details. When he refused he was arrested. By that point, the plaintiff's brother was by the utility and both he and the plaintiff were remonstrating in a hostile manner with Constable Minervini. The situation was volatile.
9. At the time of making the arrest, Constable Minervini suspected that the driver he was pursuing had committed the two offences referred to above and believed that if he were not arrested his identity would not be ascertained.
Relevant legislation
100 Section 7 of the Criminal Investigation Act provides:
(1) Subject to this section, a police officer has the powers, duties and responsibilities that a constable has under the common law.
(2) If this Act confers a power, duty or responsibility on a police officer that the officer also has by reason of subsection (1), the power must be exercised and the duty or responsibility must be performed in accordance with this Act.
(3) If there is an inconsistency between a provision of this Act and a power, duty or responsibility that a police officer has by reason of subsection (1), the provision of this Act prevails.
101 Section 28(3) provides:
A police officer or a public officer may arrest a person for an offence that is not a serious offence if the officer reasonably suspects –
(a) that the person has committed, is committing, or is just about to commit, the offence; and
(b) that if the person is not arrested –
(i) it will not be possible, in accordance with the law, to obtain and verify the person's name and other personal details; or
(ii) the person will continue or repeat the offence; or
(iii) the person will commit another offence; or
(iv) the person will endanger another person's safety or property; or
(v) the person will interfere with witnesses or otherwise obstruct the course of justice; or
(vi) the person will conceal or disturb a thing relevant to the offence; or
(vii) the person's safety will be endangered.
104 Section 132 provides:
(1) In this section —
arrestable person means a person who may be arrested —
(a) under a warrant issued under Part 9; or
(b) under section 88(3) or 96(3); or
(c) under an approval given under section 98; or
(d) under section 128; or
(e) under an arrest warrant; or
(f) under the Criminal Investigation (Identifying People) Act 2002; or
(g) under the Criminal Investigation (Extra-territorial Offences) Act 1987.
(2) For the purposes of arresting an arrestable person a police officer or a public officer —
(a) may enter a place where the officer reasonably suspects the person is and search it for the person; and
(b) may stop and enter a vehicle in which the officer reasonably suspects the person is and search it for the person.
(3) If the officer reasonably suspects that an arrestable person is in a building that consists of 2 or more dwellings then the power in subsection (2)(a) is limited to entering and searching —
(a) the parts of the building that the occupiers of the dwellings use in common with each other; and
(b) any individual dwelling where the officer reasonably suspects the person is.
(4) The power in this section to search is limited to searching for the arrestable person.
(5) If an officer doing a search under this section finds a thing relevant to an offence, the officer —
(a) may, subject to section 146, seize it; and
(b) whether or not the officer seizes it, may do a forensic examination on it.
106 Section 31 provides:
(1) This section applies to and in respect of the entry of a place where the entry is to be made under section 20(3), this Part or Part 12 Division 3.
(2) If the occupier of a place is present when it is proposed to enter the place, an officer must, before any officer enters the place —
(a) identify himself or herself to the occupier; and
(b) inform the occupier that it is intended to enter the place; and
(c) if the place is to be entered under a search warrant, give the occupier a copy of the warrant; and
(d) if the place is to be entered under some other statutory authority, inform the occupier of the reason, and the statutory authority, for the entry; and
(e) give the occupier an opportunity to give informed consent to the place being entered,
unless the officer reasonably suspects that to do so will endanger any person, including the officer, or jeopardise the purpose of the proposed entry or the effectiveness of any search of the place.
(3) If subsection (2) is not complied with before a place is entered, then as soon as practicable after the place is entered an officer must —
(a) identify himself or herself to the occupier; and
(b) if the entry was under a search warrant, give the occupier a copy of the warrant; and
(c) if the entry was under some other statutory authority, inform the occupier of the reason, and the statutory authority, for the entry.
(4) If the occupier of a place is present in the place when it is being searched, an officer doing the search must not prevent the occupier, or a person nominated by the occupier, from observing the search, unless —
(a) the officer reasonably suspects that the occupier or person might be endangered if he or she were to observe the search; or
(b) the occupier or person obstructs the search; or
(c) it is impracticable for the occupier or person to observe the search.
(5) If a place that is entered by one or more officers is unoccupied, the officer in charge must leave the following in a prominent position in the place before leaving the place —
(a) a notice stating —
(i) the officer's official details; and
(ii) that the place has been entered;
and
(b) if the entry was under a search warrant, a copy of the warrant completed in accordance with section 45(3); and
(c) if the entry was under some other statutory authority, the reason, and the statutory authority, for the entry.
(6) The copy of a search warrant given under subsection (2)(c) or (3)(b) or left under subsection (5)(b) must omit the name of the judicial officer who issued it.
107 Section 11 provides:
(1) If this Act requires an officer to identify himself or herself to a person the officer must —
(a) if the officer is a police officer —
(i) give the person the officer's official details; and
(ii) if the officer is not in uniform, show the person evidence that the officer is a police officer;
(b) if the officer is a public officer —
(i) give the person the officer's official details; and
(ii) show the person evidence that the officer is a public officer.
Application
108 By the time the plaintiff's vehicle had reached 9 Piping Lane, Constable Minervini had formed a reasonable suspicion that the driver of the vehicle was committing an offence contrary to s 53(2A) of the Road Traffic Act, and believed that if he were not arrested it would not be possible, in accordance with the law, to obtain and verify his name and other personal details.
109 Accordingly, Constable Minervini was empowered to arrest the driver of the plaintiff's vehicle pursuant to s 128(3) of the Criminal Investigation Act. The driver of the plaintiff's vehicle was, therefore, an arrestable person for the purposes of s 132(1).
110 For the purposes of arresting that person, Constable Minervini was empowered by s 132(2) to enter the place at 9 Piping Lane where he reasonably suspected the person was and to search the place for that person. He was also entitled to stop and enter the plaintiff's vehicle.
111 As to the application of s 31, I have found as a fact that the plaintiff was the driver of the vehicle and that the plaintiff intended by driving to the back of the house at 9 Piping Lane to elude the police. To interrupt the pursuit in order to deal with John Maxwell Drage's objections would have jeopardised the purpose of the proposed entry. It was necessary, in order to identify the driver, not to lose continuity of observation of the utility. In the circumstances, the second defendant was not required to take any of the steps set out in s 31(2) before following the vehicle onto the land.
112 In this situation s 31(3) applied so as to require Constable Minervini and the other officers, as soon as practicable after entering the place, to identify themselves to the occupier and, as the entry was under the authority of s 132, to inform the occupier of the reason, and the statutory authority, for the entry.
113 I am satisfied that it was not practicable for Constable Minervini or any other police officer to do any of the things set out in s 32(2)(a) to (e) prior to the actual arrest of the plaintiff. Accordingly, I am satisfied that the plaintiff's arrest was lawful.
114 The legislative provisions contained in the Criminal Procedure Act relating to entry of a place may be taken to have been enacted in the light of the common law which was summarised by Lord Scarman in Clowser v Chaplin; Finnigan v Sandiford [1981] 1 WLR 837 (HL), 842 - 843:
It is that, as a general rule, the courts will not construe an enactment conferring a power of arrest without warrant as impliedly authorising a power of entry into private premises for the purpose of effecting the arrest. If it be parliament's intention to confer a power of entry, the draftsman must ensure the power is expressly conferred. Parliament is not to be presumed, in the absence of express words, so to intend, unless the implication is irresistible, which would be rare indeed.
115 This dictum was cited by Wallwork J (Kennedy & Ipp JJ) in Hume & Anor v R [1999] WASCA 64 [26], by reference to Dobie v Pinker [1983] WAR 48. Dobie v Pinker was concerned with the operation of s 66 of the Road Traffic Act in circumstances where two police officers pursued the respondent's vehicle to the point where the respondent brought it to a stop on his residential property. It was held that the police officers were entitled by s 66 to enter upon private property in order to require a suspected driver of a motor vehicle to undergo a preliminary test. On the evidence the respondent did not expressly or impliedly revoke the police officers' implied authority to be upon his property. It was held for the purposes of s 66 that the police officers had an implied right of entry to private premises to effect an arrest or for other lawful purposes until the same was revoked by the occupier (Wallace & Kennedy JJ).
116 It is the plaintiff's case that any implied licence to enter the property for the purposes of the Road Traffic Act in this case was revoked by the actions of John Maxwell Drage in placing himself in front of the police vehicle and telling the police when they alighted from the vehicle that they were trespassing.
117 The plaintiff adopted in his submissions the reasons for decision of his Honour Magistrate Gluestein who ruled that John Maxwell Drage had no case to answer on a charge of obstructing a public officer by reason of the fact that the police upon entering his property did not comply with s 31 and were thereafter without statutory authority to be on the property.
118 The submission made to the learned magistrate was that the provisions of the Criminal Investigation Act empowering a police officer to enter upon private property were subject to the rights of the occupier. Hume & Anor v R was cited as authority for the proposition that whilst the police had an implied licence to enter property for lawful purposes, that licence could be revoked. If such licence was revoked the police had no power to remain.
119 The power of a police officer to enter a place is now provided by s 132. It is no longer to be found in an implied licence, revocable at the occupier's will. Where, for the purposes of exercising a power of arrest pursuant to s 128, a police officer enters a place pursuant to s 132(2), s 31 applies to require the officer to identify himself or herself in accordance with s 11 to a person who appears to have the control or management of the place and to inform that person of the purpose of the entry unless to do so would, amongst other things, jeopardise the purpose of the entry, in which case the police officer must as soon as practicable after entry, identify himself or herself to the occupier and, relevantly, inform the occupier of the reason, and the statutory authority, for the entry.
120 The plaintiff argued for an outcome consistent with the decision of the learned magistrate who reasoned that the evidence in the case against John Maxwell Drage demonstrated that he was the occupier at the material time. The police were required to identify themselves to him, to inform him of the intention to enter the place and the statutory authority for the entry and to give him an opportunity to give informed consent to the entry. His Honour found that Constable Minervini's evidence in that case did not enliven the proviso in s 31(2) applied.
121 His Honour concluded, after having referred to the decision in Hume, that Constable Minervini's evidence did not show that compliance with s 31(2) might jeopardise the pursuit in which he was engaged. Accordingly, his Honour reasoned, the police could not be regarded as being lawfully on the property after being asked by John Maxwell Drage to leave. Mr John Maxwell Drage would not therefore be guilty of obstructing a public officer in the performance of the officer's functions contrary to s 172(2) of the Criminal Code.
122 On the evidence before this court, Constable Minervini did reasonably suspect that if before entering the place of John Maxwell Drage he stopped to do the things set out in s 32(2)(a) – s 32(2)(e), the purpose of the proposed entry, being the identification of the driver of the plaintiff's vehicle, or indeed the effectiveness of any search for the driver might have been jeopardised.
123 In my view the lawfulness of his arrest of the plaintiff is not put in doubt by any of the circumstances of his and the other police officers' entry of 9 Piping Lane.
124 In the circumstances I conclude that the arrest was justified and therefore no claim for false arrest or imprisonment is maintainable. The other claims of the plaintiff have been disposed of.
125 I would add for completeness that there is no basis in the evidence for a finding of fact that there was any malice on the part of Constable Minervini in relation to his dealings with the plaintiff and none is suggested. Accordingly, no claim against the second defendant personally could ever have been maintained. The case against the first defendant fails because it has discharged the burden of proving justification of the plaintiff's arrest.
126 The plaintiff's action is dismissed.
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