Johnstone v State of New South Wales

The appeal concerned the lawfulness of an arrest and the subsequent use of force. The appellant, Mr Johnstone, alleged he was unlawfully arrested and assaulted by police officers on railway land. He also contended that he was on the land under an implied licence and that the trial judge erred in her findings of fact and in her use of evidence. The case was heard in the Court of Appeal of New South Wales.

The primary legal issues before the court were whether the arrest of Mr Johnstone was lawful, considering both the common law requirement to inform an arrestee of the true reason for their arrest and the provisions of section 352 of the Crimes Act 1900. Further issues included whether excessive force was used in effecting the arrest, whether Senior Constable Munn committed a separate assault, and whether Mr Johnstone had an implied licence to be on railway land. The court also had to determine if the trial judge erred in preferring the evidence of the police officers over Mr Johnstone's, particularly in her use of medical evidence to make adverse credit findings.

The Court of Appeal found that the trial judge had erred in her findings regarding the lawfulness of the arrest and the use of excessive force. The court held that the arresting officer, Senior Constable O’Neil, did not adequately inform Mr Johnstone of the true reason for his arrest, which was for failing to provide his name and address when required under the relevant legislation, not for trespassing. The court also found that the evidence did not support the conclusion that Mr Johnstone was on the railway land without an implied licence. Furthermore, the court determined that the trial judge had improperly used medical evidence concerning Mr Johnstone's injuries to make adverse credit findings against him, contrary to the principles of procedural fairness and the Evidence Act 1995.

Consequently, the Court of Appeal allowed the appeal in part, setting aside the trial judge's orders regarding the lawfulness of the arrest and the use of force. The matter was remitted to the District Court for a determination of damages and the specific question of whether Senior Constable Munn assaulted the appellant. The respondent was ordered to pay the appellant's costs of both the first instance hearing and the appeal.