Hutchinson v State of New South Wales

[2019] NSWCA 91

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Hutchinson v State of New South Wales [2019] NSWCA 91

Hearing dates:

27 November 2018

Decision date:

01 May 2019

Before:

Gleeson JA at [1];
Leeming JA at [2];
Simpson AJA at [105]

Decision:

1. To the extent necessary, grant leave to appeal in terms of the existing notice of appeal filed 28 June 2018.
2. Appeal dismissed.
3. Summons seeking leave to appeal filed 24 September 2018 dismissed.
4. Mr Hutchinson to pay the State’s costs of the appeal (including the costs of the summons seeking leave to appeal and the notice of motion as to competency).

Catchwords:

POLICE – powers and duties – power to prevent persons entering onto closed road – power to arrest – authorisation to use reasonable force – obligation upon police officers to provide identification and information – Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 99, 186, 201 and 230 considered

 

ROADS – power to close road – power to prevent persons entering onto closed road – whether all exercises of power required identification and information to be provided by police officers

TORTS – intentional torts – assault, battery and false imprisonment – whether steps taken to prevent persons entering closed road amounted to directions to which Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 201 applied – whether factual findings of primary judge that plaintiff was resisting police inconsistent with incontrovertible evidence or glaringly improbable – limitations on photographic evidence – malicious prosecution – whether plaintiff established absence of reasonable and proper cause

Legislation Cited:

Crimes Act 1900 (NSW), s 58
District Court Act 1973 (NSW), s 127
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 4, 99, 185, 186, 201, 230, 231
Law Enforcement (Powers and Responsibilities) Amendment Act 2014, Schedule 3
Law Reform (Vicarious Liability) Act 1983 (NSW), s 8
Limitation Act 1969 (NSW), s 50C
Police Act 1990 (NSW), s 6
Road Rules 2008, r 304
Road Rules 2014, r 304
Road Transport Act 2013 (NSW), ss 148A, 148B
Road Transport (Safety and Traffic Management) Act 1999 (NSW)
Roads Act 1993 (NSW), s 5

Cases Cited:

Aubrey v The Queen (2017) 260 CLR 305; [2017] HCA 18
Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29
Commissioner of Police v Eaton (2013) 252 CLR 1; [2013] HCA 2
Goode v Angland (2017) 96 NSWLR 503; [2017] NSWCA 311
Loulach Developments Pty Ltd v Roads and Maritime Services [2019] NSWSC 438
Nakhl Nasr v State of New South Wales [2007] NSWCA 101; (2007) 170 A Crim R 78
Poidevin v Semaan (2013) 85 NSWLR 758; [2013] NSWCA 334
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Robinson v State of New South Wales [2018] NSWCA 231
State of New South Wales v Cuthbertson [2018] NSWCA 320
Waugh v Kippen (1986) 160 CLR 156; [1986] HCA 12
Zhang v Andrew Pine Furniture Pty Ltd [2004] NSWCA 250

Category:

Principal judgment

Parties:

Bryn Simon Hutchinson (Appellant)
State of New South Wales (Respondent)

Representation:

Counsel:

 

M Neil SC and A Canceri (Appellant)
M Hutchings and N Oreb (Respondent)

 

Solicitors:

  O’Brien Criminal & Civil Solicitors (Appellant)
Norton Rose Fulbright Australia (Respondent)

File Number(s):

2018/127720

Publication restriction:

None

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Citation:

None

Date of Decision:

28 March 2018

Before:

Balla DCJ

File Number(s):

2016/67143

Judgment

1. GLEESON JA: I agree with Leeming JA.

2. LEEMING JA: Mr Bryn Simon Hutchinson appeals from a judgment dismissing his proceedings in the District Court of New South Wales for false imprisonment, assault, battery and malicious prosecution. The events giving rise to the litigation occupy less than three minutes. They led to a trial lasting some eight days between 5 and 15 March 2018, following which the primary judge promptly produced detailed reasons for judgment (unreported, District Court of NSW, Balla DCJ, 28 March 2018).

3. Mr Hutchinson, his partner Mr Sweeney, his sister Ms Kate Hutchinson and a friend attended the Mardi Gras Parade in central Sydney on 2 March 2013. After the parade had finished, shortly before 11.30pm, Mr Hutchinson attempted to cross Oxford St at the intersection with Crown St, from south to north. He came into contact with police when attempting to do so. What precisely occurred in that three minute period was the subject of conflicting testimonial and CCTV evidence, and much of the substance of this appeal challenged the findings made at trial. Mr Hutchinson was arrested and charged with assaulting an officer in the execution of duty, contrary to Crimes Act 1900 (NSW), s 58. He was served with a Court Attendance Notice at 12.05am, and released. On 2 May Mr Hutchinson was issued with a further Court Attendance Notice charging him with a second count of resisting an officer in the execution of duty. Both charges were dismissed in November 2013 after a hearing occupying parts or all of four days in the Local Court.

4. Mr Hutchinson commenced civil proceedings on 2 March 2016 in the District Court, within the three years for “personal injury actions” prescribed by s 50C of the Limitation Act 1969 (NSW). The State was the sole defendant. The statement of claim described the events of the evening in narrative form, and then alleged “By reason of the matters pleaded in paragraphs 3 to 19 above, the Plaintiff was falsely imprisoned, assaulted and battered”. That is an unsatisfactory way of identifying the causes of action and their constituent elements on which he sued, however, no complaint was made about it in this Court. By his written submissions in this Court, it was said that the causes of action arose as follows:

1. first, Mr Hutchinson claims he was battered when two officers (Sgt Ludkin and Cst Hedayat) physically prevented him from crossing Oxford St;

2. secondly, Mr Hutchinson claims he was struck several times by those officers while on Oxford St;

3. thirdly, Mr Hutchinson claims that there was a further assault (strictly, a battery) because the handcuffs applied to him were too tight, amounting to an unreasonable use of force;

4. fourthly, Mr Hutchinson claims he was falsely imprisoned for the approximately 35 minutes until he was released after being charged, and it was for the State to justify the lawful exercise of physical force.

5. The pleading separately alleged that Mr Hutchinson had been maliciously prosecuted, asserting that Sgt Ludkin was the prosecutor.

6. The State admitted that it was vicariously liable in respect of any torts committed by the police officers involved, pursuant to s 8 of the Law Reform (Vicarious Liability) Act 1983 (NSW). It said that police officers had lawfully closed Oxford St pursuant to s 186 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”) and were exercising power to prevent Mr Hutchinson from crossing. It relied on s 186 of LEPRA and s 6 of the Police Act 1990 (NSW) as the source of power to physically prevent Mr Hutchinson from crossing the street. It alleged that Mr Hutchinson threw himself onto the ground, and that Mr Hutchinson then raised his legs and wrapped them around Sgt Ludkin’s right leg in a scissor-type action, which led to physical force being used to cause him to cease assaulting Sgt Ludkin and to cease resisting police. It alleged that “Ludkin used no more than two hammer-strikes against the plaintiff’s left thigh and Hedayat used two knee strikes against the plaintiff’s left outer thigh”, and alleged that that was no more than reasonable force in the circumstances. At that time, the State alleged that Sgt Ludkin informed Mr Hutchinson that he was under arrest and handcuffed him, with the assistance of other officers, and escorted him from the street. Once he was no longer on the street, Sgt Ludkin said words to the effect, “My name is Sergeant Jeff Ludkin from Parramatta Police Station. You are under arrest for assaulting police.”

7. Mr Hutchinson filed a reply. A reply is regularly helpful in cases of intentional torts, where commonly the real issue is a challenge to a defence of lawful authority which is said to justify the application of physical force, the entry onto land, the interference with chattels or an incursion into the plaintiff’s liberty. The reply alleged among other things that any exercise of the power under s 186 of LEPRA was not lawful because of non-compliance with s 201, and also that the exercise of the power was not reasonably necessary, contrary to s 230.

The CCTV footage

8. It is convenient to follow the approach adopted at trial and when the appeal was heard, and commence with what emerges from the CCTV footage of the incident.

9. The CCTV footage was taken from a single camera on the south side of Oxford Street facing north west, and capturing parts of all six lanes of the street. It will be convenient to denote lanes 1, 2 and 3 as the eastward bound lanes on the north side of the street, with lane 1 being on the kerb, and lanes 4, 5 and 6 as the westward bound lanes on the south side of the street, with lane 6 being on the kerb. Reference is also made in the evidence to the north side of the street as the “harbour” side, and the south side as the “Columbian” side, the latter being a reference to a hotel on the south eastern corner of Oxford St and Crown St.

10. The asphalt on lane 6 is coloured pink and labelled as a bus lane. Vision of the street is obscured by the trunks of three plane trees. The left two trees obscure parts of lane 6. The right-most tree obscures parts of the whole street. Very little of the footpaths on either side of the street can be seen.

11. The intersection of Oxford St with Crown St is shown, but lane 6 where it proceeds through that intersection is obscured by the left two trees, and much of lanes 2 and 3 where they pass through the intersection is obscured by the right tree.

12. The portion of the footage which was tendered shows the aftermath of the Mardi Gras Parade that evening. There are no longer any floats or participants walking on the road. There are no private vehicles on the street at all. There are two vehicles, a garbage truck and a street sweeper. (Later in the footage, two other utility trucks are may be seen.) The garbage truck is stationary, or nearly so, on the wrong side of the road heading west in lane 1 or 2, and men may be seen apparently emptying garbage receptacles into it. The video footage commences with the street sweeper heading west in lane 5, with around ten uniformed police officers standing in the middle of lane 6 (the bus lane), facing the southern footpath, on which large numbers of pedestrians (some clad in party costumes, mostly in casual clothes) are walking in both directions. Some pedestrians are seen to be walking in lane 6 between the gutter and the row of police officers. The street sweeper goes out of the field of vision behind the two plane trees, but then performs a U-turn, to the east side of the garbage truck, and proceeds eastwards in lane 1 against the gutter. Numerous police officers (five are visible) are standing in the middle of lane 1 facing the footpath, just as they are on the other side of the street. As the street sweeper proceeds along the gutter, the police officers step backwards from the middle of lane 1 into lane 2 to let it pass.

13. Prior to Mr Hutchinson's attempt to cross the road, two men are seen crossing, from south to north, at the eastern side of the intersection. They are walking at a normal speed. They are stopped by police, and indeed an officer puts his right arm on the back of one of them (23:28:13). After a short exchange, the men proceed across the intersection (23:28:23-23:28:34). Mr Hutchinson comes into vision a few seconds later (at 23:28:40), following much the same path as the two men. At that time, the street sweeper has almost completed its U-turn and is very close to the intersection. Mr Hutchinson is shown moving faster than the two men, and continues to proceed through lane 5 and into lane 4 despite one and then a second officer seeking to prevent him from doing so. Evidently he is stopped (at 23:28:50) in lane 3, but what precisely happens then is obscured by the tree trunk. In the meantime, the street sweeper enters the intersection in lane 1 at around 23:28:47. An officer dragging Mr Hutchinson back towards lane 4 from behind the tree trunk emerges at 23:29:05. After a few seconds, Mr Hutchinson’s body is seen, being pushed back into lane 4, when at 23:29:17 he appears to fall. The street sweeper crosses into the pedestrian crossing zone on the eastern side of the intersection, in lane 1, at 23:29:08.

14. While Mr Hutchinson is on the ground, officers may be seen striking him, although the images are not clear. A small police vehicle with a flashing siren arrives at the scene at 23:29:54. Mr Hutchinson is lifted to his feet at 23:30:26. The vehicle drives off at 23:30:36. Mr Hutchinson re-emerges from behind the tree at 23:30:52 and is seen being taken across lanes 3 and 2 until 23:30:59. He appears to struggle against the officers guiding him back to the south side of Oxford St (especially, at 23:30:58).

15. It will be necessary when dealing with some of the grounds of appeal to deal with the limitations upon the use of photographic evidence. The principles were discussed by Beazley P in Goode v Angland (2017) 96 NSWLR 503; [2017] NSWCA 311 at [89]-[96], by reference to earlier authorities, although for present purposes what can and cannot be taken from the footage does not give rise to much controversy.

16. The following three points are entirely uncontroversial.

17. First, Oxford St was patently closed to ordinary traffic. Even if Mr Hutchinson did not know that it was Mardi Gras night, there were no private vehicles on the street, there was a garbage truck in the wrong lane and a street sweeper doing a U-Turn across the street. And even if he did not notice those, he could not but have noticed that there were at least 15 police officers in the small area of the road captured by the CCTV footage all of whom were standing in lanes which were normally full of traffic.

18. Secondly, there were six people who crossed the street behind the garbage truck at around 23:28:24, and three others who ran across the road at 23:28:34. No one is seen crossing Oxford St on the eastern side of Crown St at all, save for the two men who seem to have been permitted to do so, and a man in a white shirt who jogs across while officers are dealing with Mr Hutchinson.

19. Thirdly, it is quite plain that the police officers indicated to Mr Hutchinson (when he was in lane 6 or 5) that he must not cross Oxford St, and applied force to prevent him from doing so (when he was in lanes 4 and 3).

20. However, the precise circumstances in which Mr Hutchinson came to fall to the ground, and officers came to be striking him, cannot clearly be seen from the footage. I will return to this below.

Testimonial evidence

21. In the plaintiff’s case, evidence was adduced by Mr Hutchinson, Mr Sweeney and Ms Hutchinson (the friend did not give evidence). Ms Hutchinson said that Oxford St was open as usual, there were no barriers and no police officers lining the sides of the road. She accepted she had been drinking but denied she had been intoxicated. It was put to her that that her denial of intoxication was inconsistent with her case in defending separate criminal proceedings brought against her arising out of her conduct on the same evening, as to which she said “I’m confused. Are you asking – I can’t even remember.”

22. The primary judge regarded this and other aspects of Ms Hutchinson’s evidence as entirely inconsistent with the evidence of all other witnesses and the CCTV and rejected it. No part of Mr Hutchinson’s case on appeal sought to rely on her evidence, which need not further be summarised.

23. The other witnesses identified the following aspects of the events of the three minutes.

1. First, one or more unidentified officers conveying to Mr Hutchinson that he must not cross Oxford St and as he continued to cross the street, officers physically sought to prevent him doing so.

2. Secondly, Mr Hutchinson’s progress stopped at lane 3; it was at around this point that Sgt Ludkin and Cst Hedayat approached from their positions on the north side of Oxford St. Sergeant Ludkin’s evidence was that he initially did not intend to get involved, but that as he saw the street sweeper approaching in lane 1, he perceived a danger to Mr Hutchinson and the police.

3. Thirdly, Mr Hutchinson maintained that while being held by the police officers, he lost his balance and placed both legs around Sgt Ludkin’s leg to stabilise himself (he described this as an “instinctual” response). It was common ground that Sgt Ludkin had said, “Let go of my leg”, and that he did not do so immediately. The police officers maintained that Mr Hutchinson placed his legs around Sgt Ludkin’s leg, regarding this as an attack, and leading to Sgt Ludkin applying one or two hammer strikes with his fist and Cst Hedayat applying two knee strikes to Mr Hutchinson’s legs.

4. Fourthly, Mr Hutchinson was restrained on the ground, told he was under arrest by Sgt Ludkin, and handcuffed. Mr Hutchinson said that he complained that the handcuffs were too tight, but that nothing was done.

5. Fifthly, Mr Hutchinson was taken from the street. At this point, Sgt Ludkin identified himself and his station and said he was under arrest for assaulting police. He was so charged and handed a court attendance notice shortly after midnight.

24. It will be convenient to deal to the extent necessary with the detail of the conflicting evidence of Mr Hutchinson and Mr Sweeney on the one hand, and the police officers, on the other hand, when addressing the grounds of appeal.

Reasons of the primary judge

25. The primary judge summarised the pleadings and evidence at pp 1-18 of her reasons. Her Honour rejected the evidence of Ms Hutchinson, giving reasons for doing so of which, as noted above, no complaint is made.

26. The essential findings of the primary judge were as follows.

Preventing Mr Hutchinson from crossing Oxford St

27. The primary judge made this finding:

“I am satisfied that almost as soon he as he stepped on to the road, Mr Hutchinson had been told by, and Mr Hutchinson understood that he had been told by a police officer, not to cross Oxford Street.”

28. Her Honour rejected a submission that Mr Hutchinson was entitled to keep crossing because he was “negotiating” with police: “To simply keep repeating ‘Can I cross Oxford Street’ while continuing to walk across Oxford Street as a police officer continues to make clear to him that he should go back, is not a negotiation.” Relying on the CCTV footage, her Honour found:

“I am satisfied that it was obvious to Mr Hutchinson that police officers, as he made his way across Oxford Street up until and including the time the police officers took hold of him in the centre of Oxford Street, were continuing to try to prevent him from crossing Oxford Street and he nevertheless continued crossing.

...

[T]he initial interaction in the centre of Oxford Street is not seen on the CCTV footage because it is masked by the tree. However I am satisfied that the footage of Mr Hutchinson and the police officers emerging from behind the tree and heading to the Colombian side of Oxford Street does not show Mr Hutchinson being pulled while he is otherwise trying to co-operate but rather shows him strongly resisting being led by the police officers.”

29. After addressing the street sweeper and its U-Turn while Mr Hutchinson and the officers were obscured by the tree, her Honour said:

“However it is clear it is a dynamic situation and at one point part of Mr Hutchinson’s body can be seen on the harbour side of the tree. The street sweeper continues along Oxford Street and crosses Crown Street. While it does stay in lane 1, it nevertheless continues to progress towards Taylor Square. Sergeant Ludkin had seen the driver concentrating on where he was cleaning rather than looking around for obstacles in his path. I decline to find that Sergeant Ludkin must have appreciated there was no risk to any person on the road from that street sweeper. I accept that he believed there was a danger to the group from the street sweeper.”

30. The primary judge proceeded on the basis that the police officers were authorised under s 186(1) and there was no requirement to comply with s 201:

“It is common ground that Mr Hutchinson was not and has not since been informed of all of the various matters required by the section, for example, the name of the first police officer who followed him across the road.

However I am not persuaded that the submission has any application to the circumstances of this case. Mr Hutchinson was never charged with an offence under s 186 (2). I have found that the actions of the police officers up to the leg incident were authorised by 186 (1). Ss (1) does not require a police officer to give a member of the public a warning or direction before becoming empowered to prevent that person from remaining on a closed road. Hence, in the circumstances of this case, there is no requirement for such a direction to comply with s 201.

If I am wrong I and Mr Hutchinson should have been given that information, I decline to find that all the subsequent conduct of the police officers on Oxford Street became unlawful. Mr Hutchinson was arrested for and charged with a separate offence - assaulting Sergeant Ludkin.”

31. Her Honour also found that s 6 of the Police Act provided “an additional power for Sergeant Ludkin to take Mr Hutchinson in hand for his protection”.

The leg incident

32. Relying on the rejection of part of Mr Hutchinson’s evidence, and his statement on 5 March 2013 to a journalist that he “did not have any memory of putting his legs around any officers”, her Honour addressed the “leg incident” as follows:

“Mr Hutchinson says he lifted one leg as he was falling to maintain his balance, However he was being held by both arms by two police officers. The CCTV footage shows that he is being dragged across Oxford Street and as he starts to raise his first leg he is almost upright. As Senior Constable Hedayat continues to drag him, Mr Hutchinson’s body starts falling backwards with the first foot remaining at the height of and next to Sergeant Ludkin's knee. As his body moves lower, Mr Hutchinson raises his second leg so that his second foot appears to touch Sergeant Ludkin’s leg even higher up than his first leg. At that time his body is wholly off the ground.

The CCTV footage is not consistent with Mr Hutchinson moving either of his legs because he has lost his balance. Further it is not clear why he would ‘instinctually’ respond to a loss of balance by wrapping his legs, one at a time around a police officer's leg when he was being held by both arms.

The evidence is also consistent with the evidence of Sergeant Ludkin that pressure was applied around his knee area. Mr Hutchinson admits that he applied some pressure. Mr Hutchinson, Ms Kate Hutchinson, Inspector Ainley Detective Senior Constable Jennings and Senior Constable Hedayat all heard Sergeant Ludkin call out to Mr Hutchinson to let go of his leg. This is consistent with Mr Hutchinson applying pressure to the leg with his legs. The CCTV footage shows Mr Hutchinson’s legs wrapped around Sergeant Ludkin's leg when Mr Hutchinson is wholly off the ground.”

33. After giving reasons for not accepting the evidence of Mr Sweeney as corroboration, her Honour said:

“I accordingly prefer the general effect of the evidence of the police officers. I decline to find that, at any time while Mr Hutchinson was on Oxford Street before the leg incident he was voluntarily trying to return to the Colombian side of the road. I find that Mr Hutchinson was resisting while being pulled back to the Colombian side. Mr Hutchinson was being dragged by Senior Constable Hedayat and Sergeant Ludkin. Mr Hutchinson did not lose his balance because he was being pulled by those police officers. As part of his resistance Mr Hutchinson applied a leg lock to the legs of Sergeant Ludkin. The effect of that leg lock was to place pressure on Sergeant Ludkin’s knee and cause Sergeant Ludkin pain. Mr Hutchinson failed to comply with more than one request to let go of Sergeant Ludkin’s leg. Mr Hutchinson was then handcuffed and arrested for applying that leg lock to Sergeant Ludkin. In the course of that arrest, police officers applied hammer strikes and knee strikes to Mr Hutchinson until Sergeant Ludkin was able to extricate his leg from the leg lock. Sergeant Ludkin moved Mr Hutchinson’s head while he was lying face down on the ground in the manner he described and did not punch Mr Hutchinson in the head.”

The arrest and handcuffing

34. Dealing with the arrest, the primary judge accepted that Mr Hutchinson was arrested under s 99(1)(a) of LEPRA, based on the assault which had just been committed upon Sgt Ludkin by performing the leg lock. The primary judge accepted the evidence of Sgt Ludkin, who said that he had elected to use the power of arrest rather than any other process because he considered Mr Hutchinson had committed a serious offence, and was concerned to prevent anything else from occurring because Mr Hutchinson’s behaviour had been unpredictable. The primary judge found that the sergeant suspected on reasonable grounds that it was necessary to arrest Mr Hutchinson to prevent a repetition or continuation of the offence or the commission of another offence.

35. One of the deficiencies of the pleading became apparent when the appeal was heard. There was some confusion during the hearing as to whether there was an arrest when Mr Hutchinson was handcuffed in lane 4 of Oxford St. It seems plain that there was: that was what he was told when he was handcuffed. However, any deficiency in the exercise of the power of arrest then (as opposed to when he was escorted to the southern side of the street) did not arise for determination (I should not be understood as impliedly suggesting there was any deficiency). That was because of the commendably candid concessions made during the hearing of this appeal:

“SIMPSON AJA: Was it put to Sergeant Ludkin that there was an arrest at that time as distinct from assault and battery?

NEIL: No, and we didn’t plead it as an arrest as such, we pleaded it as a battery.

SIMPSON AJA: You now say it’s an arrest.

NEIL: I withdraw that word. We say it’s a false imprisonment and a battery at that time, and we say the later purported arrest was invalid.

SIMPSON AJA: Why was it not an arrest when he was taken hold of by two police officers?

NEIL: It was, but we didn’t formally plead it, but it was.

SIMPSON AJA: You said it was, you said it wasn’t, now you say it was. It might be important because the next question is was Sergeant Ludkin ever asked what was the reason for the arrest at that time?

NEIL: In fact, it was an arrest, but it wasn’t pleaded as such. That issue didn’t arise.”

36. On the handcuffing of Mr Hutchinson, her Honour said:

“Counsel for the plaintiff submitted that the injuries inflicted to Mr Hutchinson’s wrists by the application of the handcuffs establish that the handcuffs were applied too tightly. Accordingly, the application of the handcuffs constituted a use of force which was unreasonable. In circumstances where he was restrained by several police officers, there was no need for a tight application of the handcuffs.

I accept the submission made by counsel for the defendant that this is a matter which must be proven by Mr Hutchinson. The Court of Appeal has held in Nakhl Nasr v State of New South Wales [2007] NSWCA 101 at [104] that the injury alone does not necessarily mean excessive force was used.

In circumstances where the submission was made solely on the basis of the injury to Mr Hutchinson, I decline to find that the handcuffing was an unreasonable use of force.”

Malicious prosecution

37. Her Honour addressed malicious prosecution at pp 29-30 of her reasons. Her Honour identified the four elements of the tort: that a prosecutor instituted criminal proceedings against the plaintiff, which were terminated in the plaintiff’s favour, which were brought without reasonable and probable cause, and with malice. Her Honour was not satisfied that Sgt Ludkin was the prosecutor. Her Honour also noted that the police brief had not been tendered, “so it would not have been possible to make a finding as to the evidence considered by the prosecutor when deciding to proceed with the prosecution” and added “Sergeant Ludkin was not asked any questions in cross-examination about his assessment of the material in that brief of evidence”.

38. Her Honour made no finding one way or the other as to malice.

39. It will be seen below that some of the grounds of appeal give rise to pure questions of law, relating to the closure of Oxford St and the application of physical force by the police officers. Others turn on the resolution by the primary judge of the conflicting evidence. The most efficient course is to address the relevant statutory regime, which is not free from complexity, following which it will be possible relatively concisely to resolve the various grounds of appeal.

Applicable statutory provisions

40. Part 12 of LEPRA formerly was titled “Powers relating to vehicles and traffic”. Division 1 comprised ss 185 and 186. Those sections provided:

“185 Police may give reasonable directions for traffic regulation

A police officer may give reasonable directions for the safe and efficient regulation of traffic to any person driving a motor vehicle or riding a motorcycle on or near a road or road related area.

Note. Rule 304 of the Road Rules 2008 makes it an offence to fail to obey a reasonable direction for the safe and efficient regulation of traffic given to a person by a police officer.

186 Police may temporarily close road or road related area to traffic (cf Road Transport (Safety and Traffic Management) Act 1999, s 74)

(1) A police officer may:

(a) close any road or road related area to traffic during any temporary obstruction or danger to traffic or for any temporary purpose, and

(b) prevent the traffic of any vehicles, persons or animals in or on any road or road related area closed to traffic under paragraph (a) or under the authority of any other Act.

(2) A person must not, without reasonable excuse, fail or refuse to comply with any direction of a police officer given in pursuance of a power conferred by this section.

Maximum penalty: 20 penalty units.”

41. These provisions are now ss 148A and 148B of the Road Transport Act 2013 (NSW) (this was effected by the Law Enforcement (Powers and Responsibilities) Amendment Act 2014, Sch 3 item 54, with effect from 1 September 2016). Although their text is materially identical, the relocation is not without consequences. It is clear today that the obligations in s 201 of LEPRA do not apply to exercises of the powers conferred by s 148B (see current form of s 201(3) which provides that this Part does not apply to the exercise of a power that is conferred by an Act or regulation specified in Schedule 1, and one of the statutes in Schedule 1 is the Road Transport Act 2013). It will be necessary to consider below and in some detail the inter-relationship of (former s 186) and (former) s 201 of LEPRA in the form both took in March 2013.

42. It will be seen that s 185 was directed exclusively at vehicular traffic. It did not create an offence to drivers who did not obey such a direction, but an offence was created by the r 304 of the (former) Road Rules 2008 made under the Road Transport (Safety and Traffic Management) Act 1999 (NSW) (see now r 304 of the Road Rules 2014 made under the Road Transport Act 2013 (NSW)).

43. Section 186 was a much more complex provision than s 185. The starting point is s 186(1)(a). That provision empowered a police officer to close a road. The power is subject to a temporal qualification (“during any temporary obstruction or danger” or “for any temporary purpose”). The effect was to extinguish, for the time being, the rights of passage and access that existed in relation to the road. By s 5(1) of the Roads Act 1993 (NSW), a member of the public is entitled as of right to pass along a public road “whether on foot, in a vehicle otherwise”, and by s 5(2) that right does not derogate from any right of passage conferred by the common law, although such rights are subject to such restrictions as are imposed by or under this or any other Act or law.

44. On the last day of the trial, an affidavit of a senior retired police officer was read without objection, following which senior counsel for Mr Hutchinson conceded that “that at the relevant time, Oxford Street was closed by order of officer Murdoch, made pursuant to s 186 of LEPRA”. It seems likely that the closure was confined to the six lanes of the vehicular road, and did not extend to the footpaths on the northern and southern sides of the street (which are ordinarily part of the land dedicated as a road – see for example what was said in Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29 at [50]-[51]; for a rare example of a privately owned footpath, see Loulach Developments Pty Ltd v Roads and Maritime Services [2019] NSWSC 438 at [2]). The affidavit was not in the appeal books, but the argument in this Court proceeded on the assumption that only the six lanes were closed.

45. There were three distinct and legally significant consequences while Oxford St was closed:

1. first, Mr Hutchinson had no right at common law or under statute to cross the street;

2. secondly, police officers had power under s 186(1)(b) to “prevent” the traffic of any vehicles, persons or animals on the street, and

3. thirdly, it was an offence for a person to fail or refuse to comply with any direction given by a police officer pursuant to a power conferred by s 186(1).

46. It will be seen that s 186 thereby conferred two quite distinct powers upon police officers: (a) a power to close a road temporarily, and (b) a power to “prevent” vehicles, persons and animals from using a road that is closed. The latter power might be exercised in a number of ways. For example, a physical obstacle (such as a police vehicle) blocking a road might be installed by police. Or an officer might place a “Road Closed” sign on the road which fell short of physically blocking access to the road. But for the exercise of the power to close the road, placing an obstacle on the road would be unlawful (it would constitute a public nuisance). There are further possibilities. Officers might form a human chain preventing access to a road. Or, falling short of a human chain, but as happened on Oxford St on 2 March 2013, officers might themselves stand in a line blocking access, highly suggestively communicating that pedestrians not cross the street without obtaining permission from the police.

47. Those possibilities illustrate one aspect of the difficulties of the section, which underlies some of the grounds of appeal. Section 186(2) expressly contemplated that at least some exercises of the s 186(1) powers will amount to a “direction”. One possibility is that every exercise of power under s 186(1)(a) or (b) was a direction for the purposes of s 186(2). Another is that any exercise of power under s 186(1)(b) was a direction for the purposes of s 186(2). A third possibility is that some but not all exercises of power under s 186(1)(b) were “directions” for the purposes of s 186(2).

48. This in turn informs the analysis of the extent to which LEPRA s 201 applied to exercises of power under s 186. Section 201 made provision for the timing and content of giving of information when police officers exercise powers. Subsection (3) specifies when the obligations in s 201 apply. In March 2013, subs (3) relevantly provided:

“(3) This section applies to the exercise of the following powers (whether or not conferred by or under this Act):

...

(f) a power to stop or detain a person (other than a power to detain a person under Part 16) or a vehicle, vessel or aircraft,

...

(i) a power to give a direction to a person,

...”

49. The information which must be given is stated in s 201(1), but the time at which such information is required to be given depended upon the nature of the power which was exercised, as provided by subsections (2)-(2D):

“201 Supplying police officer’s details and giving warnings (cf Crimes Act 1900, s 563, Police Powers (Vehicles) Act 1998, s 6)

(1) A police officer must provide the person subject to the exercise of a power referred to in subsection (3) with the following:

(a) evidence that the police officer is a police officer (unless the police officer is in uniform),

(b) the name of the police officer and his or her place of duty,

(c) the reason for the exercise of the power.

(d) (Repealed)

(2) A police officer must comply with subsection (1) in relation to a power referred to in subsection (3) (other than subsection (3) (g), (i) or (j)):

(a) if it is practicable to do so, before or at the time of exercising the power, or

(b) if it is not practicable to do so before or at that time, as soon as is reasonably practicable after exercising the power.

(2A) A police officer must comply with subsection (1) in relation to a power referred to in subsection (3) (g), (i) or (j) before exercising the power, except as otherwise provided by subsection (2B).

(2B) If a police officer is exercising a power to give a direction to a person (as referred to in subsection (3) (i)) by giving the direction to a group of 2 or more persons, the police officer must comply with subsection (1) in relation to the power:

(a) if it is practicable to do so, before or at the time of exercising the power, or

(b) if it is not practicable to do so, as soon as is reasonably practicable after exercising the power.

(2C) If a police officer exercises a power that involves the making of a request or direction that a person is required to comply with by law, the police officer must, as soon as is reasonably practicable after making the request or direction, provide the person the subject of the request or direction with:

(a) a warning that the person is required by law to comply with the request or direction (unless the person has already complied or is in the process of complying), and

(b) if the person does not comply with the request or direction after being given that warning, and the police officer believes that the failure to comply by the person is an offence, a warning that the failure to comply with the request or direction is an offence.

(2D) In addition, if a police officer exercises a power that involves the making of a direction under section 198 on the grounds that a person is intoxicated and disorderly in a public place, the police officer must provide the person the subject of the direction with a warning that it is an offence to be intoxicated and disorderly in that or any other public place at any time within 6 hours after the direction is given.

Note. See section 9 of the Summary Offences Act 1988.”

50. Other subsections dealt with multiple exercises of powers by the same officer, and the exercise of powers by more than one officer.

51. The Act is of course to be construed as a whole. The practical operation of the carefully delineated regime in s 201 impacts upon the approach to be taken to s 186.

52. If all of the ways in which the powers conferred by s 186 constitute “directions” to which s 201 applies, large questions of impracticability may readily be seen to arise. Take for example a sign placed on a road saying “Road closed”. On one view, the installation of a sign amounted to the giving of a “direction” to persons who might otherwise be inclined to use the road. However, if it were a “direction” for the purposes of s 201(3)(i), then it would be necessary for the matters in s 201(1) to be given, and there would be further difficulties in construing s 201(2A) and (2B). But the default position imposed by s 201(2A) that compliance with subs (1) occur before exercising the power tends to confirm that the installation of a sign cannot be a direction for the purposes of the section. The same analysis is applicable to the installation of a physical barrier preventing access to the road, or indeed to any acts which are apt to convey an instruction but without a police officer necessarily being present. It seems clear that such acts, while they may unequivocally communicate that access to the road is not available, cannot be “directions” for the purpose of s 201.

50. That is not the end of the difficulties. Take a familiar case of a police officer at the scene of an accident directing traffic and pedestrians to take a different route. It may be that there are other sources of power available (if so, they were not explored in submissions); however, even if there were, that would not necessarily be an end to the question of construction. It is plainly not physically possible for the officer to comply with s 201(1) in relation to every individual passing motorist and pedestrian, and there is no reason to construe a provision which confers an important qualification upon police power in a way which means compliance is impossible.

51. That is not too far distant from the facts of the present case, as was raised in oral submissions:

“NEIL: Yes. He was told to stop and go back.

GLEESON JA: So you say the police can’t say that?

NEIL: No, they can say that, but if they say that, particularly in this type of situation, if they say that and before they can imprison him or take hold of him or force him to go back, they have to give him the warning that it’s an offence if he doesn’t do what they’ve told him, and they have to give him a reason.

GLEESON JA: How was that practicable in the present case when even on the CCTV footage one can see the appellant proceeding across the road, notwithstanding people seem to be suggesting, police were suggesting he shouldn’t do that?

NEIL: In this situation where there are no obvious barriers, where the police are in bunches or sort of in lines from the left side, not on the right side, they’re more in line, where people are crossing regularly, where there’s vehicles on the road, and where there’s room for some misunderstanding, we say the provisions must be applied. That’s what they’re there for, and it would be practicable to do it. He’s the only person on that night on this evidence who's been arrested or taken hold of for crossing the road.”

55. Further, s 201 also applies to powers to “stop or detain” a person: s 201(3)(f). One could imagine exercise of the power to prevent which might answer the description of “stop or detain”. Unlike a power to give a direction, where the default position is that s 201(1) is to be complied with before the power is exercised, the default position for compliance with s 201(1) in the case of a power to stop or detain is “before or at the time of exercising the power” unless it is not practicable to do so, in which case it is as soon as is reasonably practicable.

56. Finally, it is to be borne in mind that s 186(2) creates an offence of failing without reasonable excuse to comply with a direction. It is no longer customary to seize upon the fact that a statute creates an offence in order to give to it a narrow construction: see Waugh v Kippen (1986) 160 CLR 156 at 162-164; [1986] HCA 12 and Aubrey v The Queen (2017) 260 CLR 305; [2017] HCA 18 at [39]; the former approach is now regarded as a rule of last resort. Nonetheless, s 186(2) favours the conclusion that not all exercises of the power to prevent conferred by s 186(1)(b) will be “directions”, noncompliance with which will prima facie be an offence.

57. Contrary to Mr Hutchinson’s submissions, not every exercise of the power to prevent conferred by s 186(1)(b) amounts to a direction for the purposes of s 201. The construction advanced by Mr Hutchinson is contrary to the textual differentiation between the “power to prevent” and the words “any direction” in s 186 itself. That construction also gives rise to the severe problems of practicability referred to above. Adopting settled principles of construction as stated in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [70], the statute is to be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals, and where they conflict, “the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions”.

58. The proper construction of these provisions, sufficient for the purposes of this appeal, is as follows. If a road has been closed pursuant to s 186(1)(a), then police officers are empowered pursuant to s 186(1)(b) to prevent vehicles and pedestrians from going onto the road. Police may exercise that power in a range of ways. Some (such as physically obstructing the road) will not amount to a direction. Some – such as directing one or more individuals withdraw from the road, are capable of amounting to a direction. Much will turn on the precise facts. A formal statement “You are directed to return to the footpath” may be different from a hand signal indicating that the pedestrian or vehicle must stop. The offence created by s 186(2) only applies to directions in this narrow sense, to which the obligations under s 201 also apply. It is not necessary to delineate its precise metes and bounds in order to determine this appeal. After all, Mr Hutchinson has never been charged with the offence created by s 186(2).

59. Mr Hutchinson sought to cross Oxford St. The street was closed. Mr Hutchinson had no authority to go onto the street; the authority he would have had under statute and at common law was withdrawn while the street was closed. He was, in short, trespassing. He was told, verbally and non-verbally, not to proceed. The words and gestures of the police officers telling him to withdraw to the footpath were not directions to which s 186(2) applied.

60. Mr Hutchinson continued to walk across the lanes of Oxford St. Police officers were empowered by s 186(1)(b) to prevent his doing do. That power is to be read with Pt 18 of LEPRA, headed “Use of force”. It comprised ss 230 and 231, which in March 2013 provided:

“230 Use of force generally by police officers

It is lawful for a police officer exercising a function under this Act or any other Act or law in relation to an individual or a thing, and anyone helping the police officer, to use such force as is reasonably necessary to exercise the function.

231 Use of force in making an arrest

A police officer or other person who exercises a power to arrest another person may use such force as is reasonably necessary to make the arrest or to prevent the escape of the person after arrest.”

61. Accordingly, police officers were empowered to do that which would otherwise constitute a trespass to the person, namely, use physical force to prevent Mr Hutchinson from crossing the road. The power conferred by s 186(1)(b), read with s 230 and if necessary the police officers’ powers at common law authorised the officers to apply force falling short of arrest: see Poidevin v Semaan (2013) 85 NSWLR 758; [2013] NSWCA 334 at [19] and [34].

62. It was an offence to assault, or to resist or wilfully obstruct any of those officers while in the execution of their duties: Crimes Act, s 58.

63. A police officer has a power to arrest at common law and pursuant to s 99 of LEPRA (s 4 makes it plain that statute does not impliedly supplant the former). The inter-relationship between common law and statute is considered in Robinson v State of New South Wales [2018] NSWCA 231, but it is sufficient for the purposes of this appeal to follow the parties’ approach and confine attention to s 99. In the form it then took in March 2013, s 99 of LEPRA relevantly provided:

“Power of police officers to arrest without warrant (cf Crimes Act 1900, s 352, Cth Act, s 3W)

(1) A police officer may, without a warrant, arrest a person if:

(a) the person is in the act of committing an offence under any Act or statutory instrument, or

(b) the person has just committed any such offence, or

(c) the person has committed a serious indictable offence for which the person has not been tried.

(2) A police officer may, without a warrant, arrest a person if the police officer suspects on reasonable grounds that the person has committed an offence under any Act or statutory instrument.

(3) A police officer must not arrest a person for the purpose of taking proceedings for an offence against the person unless the police officer suspects on reasonable grounds that it is necessary to arrest the person to achieve one or more of the following purposes:

...

(b) to prevent a repetition or continuation of the offence or the commission of another offence”.

64. Although disavowed on appeal in light of the way the matter had been pleaded and the trial had been run, there was the exercise of a power of arrest when Mr Hutchinson was handcuffed and told he was arrested. Nothing turns on that; it was conceded, properly, that the delay between arrest on the street and compliance with s 201(1) on the kerb did not matter. (“If needs be, they could do it later at the kerbside. We’re not going to argue trivial points.”) However, neither s 231 nor the common law authorised the arresting police officers to use more force than was reasonably necessary.

65. Finally, s 6 of the Police Act provided:

“6 Mission and functions of NSW Police Force

(1) The mission of the NSW Police Force is to work with the community to reduce violence, crime and fear.

(2) The NSW Police Force has the following functions:

(a) to provide police services for New South Wales,

(b) to exercise any other function conferred on it by or under this or any other Act,

(c) to do anything necessary for, or incidental to, the exercise of its functions.”

66. The primary judge accepted that s 6 of the Police Act 1990 (NSW) was an alternative source of power. On the view I take this does not arise on appeal. However, it may very much be doubted that s 6 is relevant. That section identifies the “mission” of the NSW police force, and identifies certain “functions” which the force has. The “NSW Police Force” is established by s 4 of the Police Act 1990 (NSW) but it is not a separate legal person. Instead, it is a group of natural persons: the Commissioner, NSW Police Force senior executives, and all other police officers and non-executive administrative employees employed under the Act: s 5 and see Commissioner of Police v Eaton (2013) 252 CLR 1; [2013] HCA 2 at [51]. To say that a numerically large group of persons has a “function” is not ordinarily apt to confer powers and immunities upon the individual members of that group. Indeed, the generality of s 6 stands in marked contrast with the specific authorisation later LEPRA. It would be remarkable if, in some case, where the specific provisions were insufficient to give rise to a defence of lawful authority to an individual police officer, the general provision of s 6 conferring a “function” upon the NSW Police Force would do so.

67. It is now possible relatively concisely to address the grounds of appeal.

Grounds 2 and 4

68. Ground 1 was abandoned at the hearing. Grounds 2 and 4 were related.

“Ground 2: (a) The trial judge erred in failing to find that an unnamed police officer had directed the appellant to stop crossing Oxford Street.

(b) The trial judge erred in failing to find that such a direction was given pursuant to s186 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) (as amended).

Ground 4: The trial judge erred in finding that there was no requirement on the part of the police officers to comply with s 201 of LEPRA.”

69. The primary judge found that Mr Hutchinson understood that he had been told by a police officer not to cross Oxford St as soon as he stepped onto the road. No challenge was made to that finding. However, ground 2 seeks to characterise that as a “direction”. For the reasons given above, that is not so. Rather, it was the exercise of the power to prevent conferred by s 186(1)(b) falling short of a direction.

70. Ground 4 maintains that the original statement by a police officer not to cross the street attracted the operation of s 201. For the reasons already given, that is not so.

71. Ground 4 also extends to the exercise by officers of the power to prevent Mr Hutchinson from continuing to cross the road, by physically restraining him. That conduct was, subject to reasonableness, authorised by s 186(1)(b) read with s 230, and did not engage s 201. It was not suggested that the physical force applied by officers as Mr Hutchinson crossed lanes 6, 5 and 4 of Oxford St was unreasonable.

Ground 3

72. Ground 3 was as follows:

“The trial judge did not take into account, or give proper weight to:

(a) the fact that Sergeant Ludkin’s evidence that the appellant was sitting on Oxford Street when the Sergeant initially took a hold of him, was contradicted by the evidence of Inspector Ainley and Mr Sweeney;

(b) The CCTV footage, which contradicted Sergeant Ludkin’s evidence that he collapsed to the ground as a result of experiencing pain in his knee;

(c) The CCTV footage, which was inconsistent with Sergeant Ludkin’s evidence that after freeing his leg from the appellant's grasp the Sergeant took some "steps around" to assess the damage to his knee.

(d) The CCTV footage, which showed that the appellant lost his balance and raised his leg to help guide his fall;

(e) The CCTV footage, which showed that the appellant was assaulted by police kicking and punching him.”

73. The gravamen of this ground is to challenge the findings of primary fact made by the primary judge. Thus Mr Hutchinson submitted in writing:

“The appellant drew the trial judge’s attention to the fact that Sergeant Ludkin’s evidence that the appellant was sitting on the road when he took hold of the appellant’s arm was contradicted by the evidence of Inspector Ainley, denied by the appellant when briefly put to him in cross-examination and rejected by Mr Sweeney. Mr Sweeney said that the Plaintiff was lifted up from a standing position. It was actually put to Mr Sweeney in cross-examination that the Plaintiff was taken hold of by the police officers ‘and he dropped to the roadway’. Mr Sweeney rejected the proposition. The contradictory evidence was relevant to the assessment of the evidence, including Sergeant Ludkin’s credit, yet nowhere in her reasons does the trial judge deal with the contradictory evidence identified by the appellant in his written submissions. There is an overwhelming inference to be drawn that the trial judge overlooked the contradictory evidence or failed to give consideration to it and in that way fell into error” (citations omitted).

74. Grounds 3(b), (c), (d) and (e) are based on the CCTV footage. But the CCTV footage was equivocal on these issues. For example, contrary to ground 3(d) it is entirely unclear from the CCTV footage whether Mr Hutchinson lost his balance or threw himself to the ground. It is clear that Mr Hutchinson was struck by police officers (which the State admitted in its defence), but contrary to ground 3(e) it is unclear whether that was an “assault” or a reaction to Mr Hutchinson’s assault on Sgt Ludkin.

75. More importantly, it is plain that the primary judge did not fail to take into account the CCTV footage. Her Honour summarised it between pp 16 and 18, rejected Ms Hutchinson’s evidence in part because it conflicted with the CCTV footage, and repeatedly relied upon it in making findings (see at p 19.28, p 20.2-4, p 21.21-23, p 24.8-10, 12-14, 19-20, 27-29, p 25.2). It has not been shown that any of her Honour’s findings are vitiated because of some failure to give “proper weight” to the CCTV footage.

76. Ground 3(b) maintains that the CCTV footage contradicted Sgt Ludkin’s evidence that he collapsed to the ground. That is not so. The tree obscured Sgt Ludkin while he was seeking to prevent Mr Hutchinson from crossing Oxford Street.

77. Ground 3(a) seeks to build upon a conflict of evidence when there is none. Inspector Ainley said that Mr Hutchinson dropped his weight to the ground while officers were holding him. Sergeant Ludkin said that Mr Hutchinson was already on the ground by the time he reached him. To the extent that there was a dispute, it was not necessary for the primary judge to resolve it. As the State submits, by reference to what was said by Giles JA in Zhang v Andrew Pine Furniture Pty Ltd [2004] NSWCA 250 at [30], not every factual matter in issue need be dealt with, unless “resolution of [that factual] dispute is significant to the decision”.

78. No case has been made out to interfere with the factual findings of the primary judge.

Ground 5

79. Ground 5 was that the primary judge erred in finding that Sergeant Ludkin believed that the presence of a street sweeper was a danger to the appellant and to the police officers near the appellant.

80. Mr Hutchinson’s challenge based on this ground included the following submissions in writing:

“The CCTV footage clearly shows a slow moving street sweeper up against the kerb moving in an easterly direction at a time when the appellant and other police officers are in the middle of Oxford Street. At no time did the appellant or other police officers block its path. The CCTV footage was compelling and objective evidence showing that the street sweeper posed no danger to the appellant and the police officers. The finding by the trial judge that Sergeant Ludkin believed that the street sweeper was a danger to the appellant and other police officers is a finding that is glaringly improbable in light of the CCTV footage: Fox v Percy (2003) 214 CLR 118.

Further, the trial judge’s finding that Sergeant Ludkin believed there was a danger posed by the street sweeper was no doubt based on an acceptance that Sergeant Ludkin was a credible witness. The implicit finding as to credit cannot stand in light of the contradictory objective evidence in the form of CCTV footage. The footage demonstrates that the trial judge has failed to use, or palpably misused, her advantage as a trial judge: Fox v Percy (supra).”

81. The State maintained that this ground could not be made out because it was not put to Sgt Ludkin in cross-examination. Whether or not that be so, it is sufficient to reject it on its merits. I have no difficulty whatsoever in accepting that there was a real chance that Mr Hutchinson would, if unrestrained, come close to the path of the street sweeper. The “dynamic” situation to which the primary judge referred understated the small number of seconds separating Mr Hutchison’s attempts to cross the road and the approach of the street sweeper to the intersection on the far side of the street. In the space of a few seconds, he had proceeded from lane 6 to lane 3 despite the verbal and physical attempts by police officers to restrain him. If he had proceeded two or three metres further northwards, both he and the officers who were holding him would be in danger of coming into contact with the street sweeper, in circumstances when it is plain that Mr Hutchinson was disobeying directions and resisting physical force from police officers.

82. It was amply open for Sgt Ludkin to form the view that there was a risk to safety if he were not restrained. The primary judge’s conclusions are not glaringly improbable; far from it. This ground is not made out.

Ground 6

83. Ground 6 was that the primary judge erred in finding that the appellant did not lose his balance and fall backwards at a time when Sergeant Ludkin and Constable Hedayat had a hold of the appellant.

84. Mr Hutchinson once again relies on the CCTV footage and the evidence of Mr Sweeney. Thus, he submitted in writing:

“The CCTV footage shows that the appellant had lost his balance. The footage corroborates the evidence of the appellant and Mr Sweeney. The trial judge’s finding that the appellant had not lost his balance was against the incontrovertibly established facts and was against the compelling inference to be drawn from the evidence of the appellant, Mr Sweeney and the CCTV footage that the appellant had indeed lost his balance and in that context had wrapped his legs around the right leg of Sergeant Ludkin in order to break his fall.”

85. But this is precisely what cannot confidently be taken from the CCTV footage, and falls far short of being the incontrovertible or compelling evidence which would entitle this Court to interfere with the findings of the primary judge who saw the evidence being adduced and tested in cross-examination.

85. This ground is not made out.

Grounds 7 and 8

87. These grounds are as follows:

“Ground 7

(a) The trial judge erred in failing to find that an unreasonable use of force was used in the application of the handcuffs to the appellant.

(b) The trial judge erred in not holding that the onus of proof that use of force was reasonable was on the respondent.

Ground 8

In determining whether or not the various blows delivered to the appellant by Sergeant Ludkin, Constable Hedayat and other unidentified police officers amounted to a use of force which was reasonable, the trial judge failed to consider, or give proper consideration to, the CCTV footage and also the photographic evidence depicting injuries to various parts of the appellant’s body.”

88. The State accepted in its written submissions that if the primary judge had placed the onus on Mr Hutchinson to prove that the use of force was unreasonable, then that was erroneous. However, in answer to ground 7(b), the State submitted that that was not how the reasons of the primary judge were to be construed.

89. The relevant passage of the reasons of the primary judge is:

“Counsel for the plaintiff submitted that the injuries inflicted to Mr Hutchinson’s wrists by the application of the handcuffs establish that the handcuffs were applied too tightly. Accordingly, the application of the handcuffs constituted a use of force which was unreasonable. In circumstances where he was restrained by several police officers, there was no need for a tight application of the handcuffs.

I accept the submission made by counsel for the defendant that this is a matter which must be proven by Mr Hutchinson. The Court of Appeal has held in Nakhl Nasr v State of New South Wales [2007] NSWCA 101 at [104] that the injury alone does not mean excessive force was used.”

90. I accept the State’s submission. The passage from Nakhl Nasr v State of New South Wales [2007] NSWCA 101 at [104]; (2007) 170 A Crim R 78 to which the primary judge referred is:

“Evidence about any injuries actually sustained by the arrested person can sometimes be relevant to the amount of force that was applied, or to the types of stresses or contortions his or her body would have had to undergo to sustain injuries of that type. In the present case, however, there was no medical evidence to the effect that a rupturing of a biceps tendon could only occur if some particular degree of force was applied, or some unusual bodily manipulation engaged in.”

91. Mr Hutchinson tendered photographs show marks on at least one of his wrists, which could have been caused by handcuffs, and gave evidence that he complained about their tightness at the time. However, there was an issue whether those marks were caused by the handcuffs being applied too tightly, or by Mr Hutchinson’s own continuing efforts to resist arrest. Mr Hutchinson bore the onus of establishing that the injuries of which he complained were caused by the force applied by the police officers rather than by his own unlawful resistance to them. That is the proper reading of the passage of her Honour’s reasons of which complaint is made.

92. Grounds 7(a) and 8 overlap. There is no error in the primary judge failing to find that Mr Hutchinson had shown that any injury had been caused by the police officers applying handcuffs, in light of her Honour’s earlier findings and what is evident from the CCTV footage. The onus rested with him to do so. On the findings made by the primary judge, in the time immediately preceding the handcuffs being applied to him, Mr Hutchinson was not cooperating with police and it was at least open to conclude that that is how the marks on his wrists were caused. Nor has it been shown that there is a proper basis to interfere with her Honour’s findings as to the blows (concededly) delivered to Mr Hutchinson while his legs were wrapped around Sgt Ludkin’s leg and Mr Hutchinson had (concededly) failed to desist after being told to let go.

93. These grounds are not made out.

Malicious prosecution

94. Grounds 9 and 10 address the rejection of Mr Hutchinson’s claim for malicious prosecution. They allege error in the primary judge’s finding that there was no evidence leading to a conclusion that Sergeant Ludkin was the prosecutor, and in holding that it would have been impossible for her to make a finding as to whether there was reasonable and probable cause in the absence of the police brief of evidence.

95. The primary judge made no finding as to malice. Mr Neil said that his cross-examination had “put various things to Sergeant Ludkin which covered the position that he had an animus towards the appellant”. However, there was no attempt to identify the evidence which are said to support a finding of malice, and indeed the factual findings for which Mr Hutchinson contended did not include a finding of malice. Without having seen Mr Ludkin give his evidence, not to mention without there being full submissions on the matters on which such a finding would be based, I would not do so.

96. The State took this even further. The absence of a finding of malice was the first point upon which the State relied in its written submissions, saying “That is really the end of the enquiry”. However, in the absence of a notice of contention, these grounds cannot be decided on the basis that no finding of malice could have been made.

97. This aspect of the appeal, which occupied relatively little space in written submissions, and relatively little time in oral submissions, may be decided by reference to the onus bore by Mr Hutchinson to establish that the prosecution was commenced and maintained without reasonable and probable cause.

98. Mr Hutchinson received two Court Attendance Notices. The second, dated 2 May 2013, charged Mr Hutchinson with resisting a police officer in the execution of duty. The evidence established that there were statements and other records in existence at that time, some two months after the Mardi Gras parade. Sergeant Ludkin was not asked questions about what was reviewed at the time the second notice was issued. These points were made in the State’s written submissions on appeal. There were no written submissions in reply, and no submissions were made on this aspect of the tort in oral address. Insofar as these grounds are based upon the second Court Attendance Notice, the primary judge was correct to find that an absence of reasonable and probable cause could not be established, having regard to the failure to adduce what was in the police brief at the time.

99. Mr Neil QC confined his oral submissions to the first Court Attendance Notice as to which it was conceded that there had been no police brief. But the short answer to the balance of ground 10, insofar as it is based upon the Court Attendance Notice which was issued immediately after the incident was that on the findings made by the primary judge, there was reasonable and proper cause to commence and maintain the prosecution. In particular, there was no real challenge to the finding that Mr Hutchinson wrapped his legs around Sgt Ludkin’s leg. It follows, as the primary judge stated, that Mr Hutchinson had failed to establish the absence of reasonable and proper cause.

100. Ground 9 cannot alter the outcome unless ground 10 succeeds. It is not necessary to go further and address the way in which Sgt Ludkin instituted proceedings which were subsequently undertaken by a police prosecutor (Sgt Warren). The claim for malicious prosecution was correctly dismissed.

Orders

101. Until now, these reasons have followed the course constructively followed in the parties’ oral submissions, deferring the question of leave. The parties exchanged submissions on the question of leave following the State objecting to the competency of the appeal.

102. Mr Hutchinson was detained for some 35 minutes, and there was no evidence of any serious injury. The State accepted that but for the claim for malicious prosecution, his damages would not approach the $100,000 threshold for an appeal as of right: District Court Act 1973 (NSW), s 127. Grounds 9 and 10 were attended with a number of difficulties, not all of which have been explained above. In particular, insofar as the claim sought to recover the costs incurred in his successful defence of the criminal proceedings, the recent decision of State of New South Wales v Cuthbertson [2018] NSWCA 320 (determined after this appeal was heard) now precludes that head of damages. It is far from clear that an appeal lies as of right.

103. But nothing turns for present purposes on whether an appeal lies as of right. I am satisfied that (a) there having been an eight day trial, (b) the questions as to the inter-relationship of ss 186 and 201 of LEPRA amounting to questions of principle (notwithstanding the repeal of the former and the amendment of the latter), and (c) the general importance of the lawful exercise of coercive power by police officers to Mr Hutchinson, to the officers themselves, and more generally to the public, if leave be necessary, there should be a grant of leave. There is no reason in those circumstances to take the issue any further.

104. I propose the following orders:

1. To the extent necessary, grant leave to appeal in terms of the existing notice of appeal filed 28 June 2018.

2. Appeal dismissed.

3. Summons seeking leave to appeal filed 24 September 2018 dismissed.

4. Mr Hutchinson to pay the State’s costs of the appeal (including the costs of the summons seeking leave to appeal and the notice of motion as to competency).

105. SIMPSON AJA: I agree with Leeming JA.

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Amendments

04 July 2019 - [23](3) - "let to stabilise" changed to "leg to stabilise"

[23](3) - "leading Sgt Ludkin" changed to "leading to Sgt Ludkin"

[57] - "s 186(2)(b)" changed to "s 186(1)(b)"

Decision last updated: 04 July 2019