Lule v State of New South Wales

[2018] NSWCA 125

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Lule v State of New South Wales [2018] NSWCA 125
Hearing dates:	11 May 2018
Decision date:	15 June 2018
Before:	Beazley P at [1]; Macfarlan JA at [6]; Barrett AJA at [109]
Decision:	(1)   Grant leave to appeal. (2)   Set aside the orders made by Cowdroy ADCJ on 7 November 2017. (3)   Judgment for Mr Lule against the State of New South Wales in the sum of $30,000. (4)   Order the State of New South Wales to pay Mr Lule’s costs of the proceedings at first instance and on appeal.
Catchwords:	TORTS – false imprisonment – whether arrest of appellant unlawful – whether there were reasonable grounds for the arresting police officer’s suspicion that the appellant had committed an offence – whether victim’s description of offender a reasonable ground for police officer’s suspicion – Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 99(1) considered   DAMAGES – false arrest and false imprisonment – compensatory damages – appellant’s experience was traumatic, humiliating, frightening and embarrassing – $30,000 awarded
Legislation Cited:	Crimes Act 1900 (NSW), s 357E Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 99 Supreme Court Act 1970 (NSW), s 101(2)(r)
Cases Cited:	Adams v Kennedy (2000) 49 NSWLR 78; [2000] NSWCA 152 Browne v Dunn (1893) 6 R 67 Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 George v Rockett (1990) 170 CLR 104; [1990] HCA 26 Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70 Hyder v Commonwealth [2012] NSWCA 336; (2012) 217 A Crim R 571 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Lamb v Cotogno (1987) 164 CLR 1; [1987] HCA 47 Lyons v Chief Constable of West Yorkshire (CA (Civ D), 24 April 1997) McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; [2006] HCA 45 Mulvaney v Chief Constable of Cheshire (CA (Civ D), 8 March 1990) O’Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286 Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118; [1968] HCA 62 Prior v Mole [2017] HCA 10; (2017) 91 ALJR 441 Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266; [1966] HCA 21 R v Rondo [2001] NSWCCA 540; (2001) 126 A Crim R 562; Ruddock v Taylor (2005) 222 CLR 612; [2005] HCA 48 State of New South Wales v Robinson (2016) 93 NSWLR 280; [2016] NSWCA 334 State of New South Wales v Smith [2017] NSWCA 194 State of New South Wales v Zreika [2012] NSWCA 37 University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481 Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12 Zaravinos v State of New South Wales (2004) 62 NSWLR 58; [2004] NSWCA 320
Category:	Principal judgment
Parties:	Musa Kanyanja Lule (Applicant) State of New South Wales (Respondent)
Representation:	Counsel: C A Evatt / L Teoh / W Evatt (Applicant) M S Spartalis / G Mahony (Respondent)   Solicitors: Michael Vassilli Barristers and Solicitors (Applicant) Makinson d’Apice Lawyers (Respondent)
File Number(s):	CA 2017/362795
Decision under appeal	Court or tribunal: District Court Jurisdiction: Civil Date of Decision: 7 November 2017 Before: Cowdroy ADCJ File Number(s): DC 2016/5042

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 21 December 2014 the applicant/appellant, Mr Musa Lule, was arrested by an officer of the NSW Police Force, Senior Constable Matthew Thomas, following a break and enter that had occurred at an apartment nearby. The victim had provided a possible description of the offender to Constable Thomas and her partner had pointed out a person (in fact Mr Lule) who was seated in the rear of a car driving past the victim’s apartment block and said “that car has driven past several times, that is him in the car”. Constable Thomas and Probationary Constable David Tranter noted the car’s registration number and quickly ascertained that the registered owner, Mr Lule’s uncle, Mr Isaac Kasiyre, lived nearby.

Constables Thomas and Tranter arrived at Mr Kasiyre’s apartment soon after. When Mr Kasiyre opened the door, Constable Thomas saw Mr Lule in the room and formed the view that he matched the victim’s description. That led to Mr Lule being arrested at 6.25pm, handcuffed, transported in a caged police vehicle to the local police station, strip-searched and confined in a police cell. There were a number of witnesses to the arrest. Mr Lule was not released until about 8.45pm that night. On his release, he received no explanation or apology for his arrest.

Mr Lule brought proceedings in the District Court against the State claiming damages for unlawful arrest, false imprisonment and assault. In its Defence, the State alleged that Mr Lule’s arrest was lawful by reason of authority conferred on Constable Thomas by s 99(1) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). In his Honour’s judgment of 7 November 2017, Cowdroy ADCJ rejected Mr Lule’s claim and directed the entry of judgment for the State.

Mr Lule sought leave to appeal, and to appeal, from that decision.

On appeal Mr Lule did not challenge the primary judge’s findings concerning the allegations of assault. However Mr Lule sought to contend that his arrest was unlawful because, in addition to the arguments he had put at first instance, he was not properly informed of the reason for his arrest at the time it occurred. He was not allowed to raise this point however as it was not raised as a separate issue before the primary judge: [15]-[17].

University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481; Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33; Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12 applied.

Mr Lule therefore argued the following on appeal:

(i)    That there were no “reasonable grounds” for Constable Thomas’ suspicion that Mr Lule committed the break and enter; and,

(ii)   That Constable Thomas could not have been satisfied that the arrest was reasonably necessary.

Held, granting leave to appeal and allowing the appeal:

In relation to (i):

(1) The only possible reasonable ground for suspicion that Mr Lule committed the offence was the victim’s description of the offender, as the victim’s partner had only seen the offender from behind when he was running away: [76]-[84].

(2) There is no rule that precludes a witness’ description of an offender being, without more, sufficient to constitute reasonable grounds for a suspicion that a person who matches that description is an offender. The sufficiency of such a description and whether further enquiries are necessary before the required level of satisfaction can reasonably be attained however depends upon the particular circumstances of the case: [85].

Mulvaney v Chief Constable of Cheshire (CA (Civ D), 8 March 1990); Lyons v Chief Constable of West Yorkshire (CA (Civ D), 24 April 1997) considered.   

(3) The source of information held by the police needs to be evaluated and “the broader and less specific the description” the less likely it will be that a match with the description on its own constitutes reasonable grounds for an arrest: [65], [89].

George v Rockett (1990) 170 CLR 104; [1990] HCA 26 applied.

(4) The issue of reasonable grounds is to be “judged against what was known or reasonably capable of being known at the time”. In light of both the generality and uncertainty of the victim’s description of the offender, the police officers should have asked those present at Mr Lule’s arrest where he had been at the time the offence was committed: [87]-[94], [109].

Ruddock v Taylor (2005) 222 CLR 612; [2005] HCA 48 applied. State of New South Wales v Zreika [2012] NSWCA 37 referred to.

In relation to (ii):

(1) For an arrest to be lawful pursuant to s 99 of LEPRA, both paragraphs (a) and (b) of subsection (1) need to be satisfied. As paragraph (a) (reasonable grounds for suspicion) was not satisfied, Mr Lule’s arrest was unlawful and it is unnecessary to determine whether paragraph (b) was satisfied (whether the arrest was reasonably necessary): [95]-[96].

(2) (Per Beazley P) There is considerable doubt that that s 99(1)(b) would be satisfied in this case: [2]-[5].

Damages:

This Court rejected Mr Lule’s claim for exemplary damages as the evidence did not indicate that Constable Thomas engaged in conscious wrongdoing or acted in contumelious disregard of Mr Lule’s rights, or that any other circumstance existed which would warrant the rarely adopted course of awarding exemplary damages being taken: [98]-[99].

Lamb v Cotogno (1987) 164 CLR 1; [1987] HCA 47; Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70 applied.

Having regard to the circumstances of the arrest and the false imprisonment of Mr Lule, the Court found that he was entitled to a substantial award of compensatory damages for what was an undoubtedly traumatic, humiliating, frightening and embarrassing experience. Compensatory damages were assessed at $30,000: [1], [100]-[106], [109].

State of New South Wales v Smith [2017] NSWCA 194; State of New South Wales v Zreika [2012] NSWCA 37 considered.

Judgment

1. BEAZLEY P: I have had the advantage of reading in draft the reasons of Macfarlan JA and the additional observations of Barrett AJA and record my agreement with both and with the orders proposed by Macfarlan JA.

2. I would only add that, were it necessary to determine whether the arrest was unlawful under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 99(1)(b), I have considerable doubt that that provision was satisfied in that case. Section 99(1)(b) is concerned with a state of satisfaction that the police officer must have, namely, that the “arrest is reasonably necessary” for one or more of the reasons specified in para (b). The police officer’s state of satisfaction is a subjective matter and must exist as a matter of fact at the time of the arrest.

3. The only basis upon which the State of New South Wales sought to contend that the arresting police officer was satisfied that the arrest was reasonably necessary was the protection of the welfare of the victim of the robbery: see s 99(1)(b)(viii). The police officer said that he was so satisfied because the “person of interest”, that is, the appellant, “may have got someone to attempt to recover the mobile phone putting [the victim] at risk”.

4. However, the victim’s home unit was on the second floor of an apartment block. The intruder had somehow got onto the balcony of the victim’s apartment and then leaned into the bedroom. Although it is correct, as Macfarlan JA’s review of the facts reveals, that the intruder dropped his mobile phone in the grounds of the apartment block after he had jumped off the balcony, and that the intruder would not have known that the police had found it and taken possession of it, those facts could hardly be said to be enough for a police officer to form a satisfaction that it was “reasonably necessary” to arrest a person without a warrant. Whilst it is conceivable that the intruder might have sought to recover the mobile phone, it is highly unlikely that the intruder would have again attempted to climb onto the victim’s balcony or sought to enter the apartment in circumstances where the intruder had been frightened away by the victim’s screams, indicating that he had not expected to find the apartment to be occupied.

5. With respect to the police officer’s evidence, based only on these facts, the statement that the arrest was for the protection of the victim, has the appearance of no more than a convenient justification for, or one might even say ‘label’ to justify, the arrest, rather than the formation of a state of satisfaction that the arrest was necessary for that reason.

6. MACFARLAN JA: At about 5.05pm on Sunday 21 December 2014 a young woman (“the victim”) was in the bedroom of a second floor apartment in Merrylands, which she occupied with her partner and child, when a male person (“the offender”) opened the door to the balcony and leaned in. When the victim screamed the offender retreated over the balcony and ran away. The victim’s partner ran into the bedroom but the offender had by then left the bedroom. The partner saw him climbing over the balcony and running away below. He also saw a mobile phone on the ground that the offender appeared to have dropped.

7. The victim called the triple-0 emergency line and provided a description of the offender that is recorded in the Police Incident Log, as “POI DESC AFRICAN AMERICAN APP, POSS WHITE T-SHIRT, BLUE SHORTS”. (“POI” refers to a “Person of Interest”, “DESC” to “description”, “APP” to “appearance” and “POSS” to “possible”.) Senior Constable Thomas and Probationary Constable Tranter received this Incident Report at approximately 5.21pm on that day and attended the premises soon after.

8. Whilst Constable Thomas was standing outside the apartment taking and recording in his notebook the victim’s statement, he overheard the victim’s partner say to Constable Tranter, “that car has driven past several times, that is him in the car”, and turned around and saw the victim’s partner pointing at a vehicle that was driving slowly. The vehicle contained three black men of Ugandan heritage, including the present applicant, Mr Musa Lule. The police noted the car’s registration number and almost immediately ascertained that the registered owner (the applicant’s uncle, Mr Isaac Kasiyre) lived close by.

9. Constables Thomas and Tranter arrived at Mr Kasiyre’s second floor apartment soon after. When Mr Kasiyre opened the door, Senior Constable Thomas saw the applicant in the room and formed the view that he matched the description that Constable Thomas had been given by the victim. That led to Mr Lule being arrested (at 6.25pm), handcuffed, transported in a caged police vehicle to the local police station, strip-searched and confined in a police cell.

10. Shortly after Mr Lule was taken away Mr Kasiyre and a friend who had been at the apartment, Mr Duncan Kayanja, attended the police station and asked why Mr Lule had been arrested. When told, they indicated that they had been in his company for some time and that, shortly after 5.00pm, Mr Kasiyre had made a brief trip with Mr Lule in Mr Kasiyre’s car to the nearby Merrylands shopping centre. Whilst driving there and back, they had passed the victim’s apartment and had slowed down to attempt to see why police officers were present. Constable Tranter then went with Mr Kasiyre and Mr Kayanja to the shopping centre where they inspected CCTV footage. This confirmed Mr Lule’s presence there earlier, as they had described.

11. On their return to the police station, Mr Lule was released (at about 8.40 to 8.50pm). He was not given any reason for his release, nor any apology for his arrest.

12. That same night at approximately 9.50pm, the offender was arrested and charged with breaking and entering the victim’s apartment. He had attended the police station to surrender himself after a friend of his had visited the victim’s apartment block to attempt to retrieve the mobile phone that he had dropped.

13. Mr Lule subsequently commenced an action in the District Court claiming damages for what he alleged were his unlawful arrest and consequent false imprisonment. In its Defence, the State alleged that Mr Lule’s arrest was lawful by reason of authority conferred on Constable Thomas by s 99(1) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”). This subsection is in the following terms:

“99 Power of police officers to arrest without warrant

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

(a)   the police officer suspects on reasonable grounds that the person is committing or has committed an offence, and

(b)   the police officer is satisfied that the arrest is reasonably necessary for any one or more of the following reasons:

(i)   to stop the person committing or repeating the offence or committing another offence,

(ii)   to stop the person fleeing from a police officer or from the location of the offence,

(iii)   to enable inquiries to be made to establish the person’s identity if it cannot be readily established or if the police officer suspects on reasonable grounds that identity information provided is false,

(iv)   to ensure that the person appears before a court in relation to the offence,

(v)   to obtain property in the possession of the person that is connected with the offence,

(vi)   to preserve evidence of the offence or prevent the fabrication of evidence,

(vii)   to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence,

(viii)   to protect the safety or welfare of any person (including the person arrested),

(ix)   because of the nature and seriousness of the offence.”

14. The action was heard by Cowdroy ADCJ who, by judgment of 7 November 2017, rejected Mr Lule’s claim and directed the entry of judgment for the State. His Honour found that Constable Thomas had “reasonable grounds”, within the meaning of s 99(1)(a) of LEPRA, for arresting Mr Lule and was seemingly satisfied that Mr Lule’s arrest was “reasonably necessary” within the meaning of s 99(1)(b), although he did not make any express finding as to the latter point. His Honour also rejected Mr Lule’s contentions that, even if his arrest was lawful, undue force was used against him, such that he should be found to have been assaulted.

15. On appeal, Mr Lule does not challenge his Honour’s findings concerning the allegations of assault but relies upon the facts upon which his contentions of assault were based as relevant to the quantum of damages that should be awarded to him in the event that the Court finds that his arrest was unlawful.

16. On appeal, Mr Lule sought to contend not only that his arrest was unlawful because there were no reasonable grounds for it, and it was in any event not necessary in the circumstances, but also that it was unlawful because he was not properly informed of the reason for his arrest at the time that it occurred (see Adams v Kennedy (2000) 49 NSWLR 78; [2000] NSWCA 152). This ground was not however raised as a separate issue at first instance, with the result that the primary judge did not make any specific finding as to what Mr Lule was told at the time of his arrest as to the reason for the arrest.

17. I do not consider that Mr Lule should be allowed to raise this new point. It is fundamental to the appellate process that, save in exceptional circumstances, parties are bound by the case they conducted below (University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481; Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33; Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12). The new point Mr Lule seeks to raise is not a point of law but a factual issue upon which the lower court has not made a finding. Moreover, it is conceivable that if prior notice had been given then the other party might have conducted its case differently.

18. I add that, although the absence of a specific finding by the primary judge presents difficulties, what the police officers told Mr Lule concerning the reason for his arrest is relevant to the question of whether they had “reasonable grounds” for making it, this being a question that was raised at first instance.

19. For the purpose of determining the issues arising on appeal, it is sufficient to make the following limited references to the evidence given at first instance.

THE EVIDENCE AT FIRST INSTANCE

Mr Lule’s evidence

20. Mr Lule was born in Uganda in 1970. He is an Australian citizen. At the time of the hearing below, he was in his mid-thirties and a psychologist employed by NSW Health.

21. On the afternoon of Sunday 21 December 2014 Mr Lule visited his uncle at his apartment in Merrylands with his five year old daughter. Mr Malik Kariyre and Mr Steven Mutoomba were also present.

22. At about 5.20pm Mr Lule, his uncle and another man drove to a nearby shopping centre. Mr Lule was seated on the rear seat behind the front seat passenger. The car slowed down as they passed police activity nearby (as it transpired, at the victim’s apartment). They travelled past the same place a short while later when returning from the supermarket.

20. When the police officers came to his uncle’s apartment soon after, Senior Constable Thomas beckoned Mr Lule to come forward and he said, “[y]ou are black, you are male, you are wearing a white shirt, you are wearing blue shorts and you have a shaved head”. Mr Lule was in fact of that description, save that he was wearing a white, short-sleeved shirt rather than a t-shirt.

21. The police officers led Mr Lule down to the ground floor and, when outside the building, Constable Thomas told him he was under arrest “because there has been a break in down the road”. He was told to turn around and face the wall, and was handcuffed and cautioned. In effecting the arrest, Mr Lule said that Constable Tranter pushed him in the back with his knee, causing considerable pain. Mr Lule found the handcuffs very tight and uncomfortable. He was frisk searched and, when outside the building with the police officers, saw his daughter returning with a friend from the local park. There were also a number of other people watching what occurred.

22. Mr Lule was embarrassed, in shock, shaking and weak in the legs. Mr Lule was asked for his name but responded by saying that he wanted a lawyer. He did however point to his car which was parked nearby and Constable Tranter appeared to take down the registration number. The police did not ask for his identification whilst inside the apartment building. The first time they did so was after he had been handcuffed and cautioned.

23. At the police station, Mr Lule was strip searched and the cord holding up his pants was “forcefully” removed, “tearing” the fabric. He found this demeaning and shameful. He gave the following description of what occurred after Constable Tranter asked him to take his clothes off:

“Q.   All clothes off?

A.   Yes, take all your clothes off completely, put your clothes on the metallic bench that was in that cell. So I take my clothes off. Then when I take my clothes off the first I could see Officer David behind – not see, I – because I was facing this way, in facing the toilet, but you could feel somebody behind you. So he had put on black gloves, then Officer Matthew next to him and then Glen Shepherd at – behind him as well in that order. Then when I’ve got my clothes off the first instruction was squat, so I squat, then stand up, bend over, spread – hold your bum cheeks and spread them, so I do that. Then they tell me turn around now to face Officer David who was right behind me. He goes, lift your leg up or lift your legs up, one at a time. So I do that, and then after that they tell me turn around, Officer David is the one giving the instructions, turn around.

HIS HONOUR

Q.   While you were asked to squat, stand up, spread buttocks, they were all behind you, were they?

A.   They were all behind me.

Q.   Then they told you to turn around?

A.   Turn around and face them. That’s--

EVATT

Q.   How did you feel when you were doing all of this?

A.   At this point I’m not making eye contact with them. I’m quite embarrassed.

Q.   Not eye contact, how did you feel, happy?

A.   No. Demean.

Q.   Pardon?

A.   Demean. I’d never had to take my clothes off in public for anyone. Not alone people I don’t know strangers, so it was demeaning, shameful, and I could not make eye contact with them at that point. I was just more in remote, just going by their instructions what they tell me to do.”

27. Throughout Mr Lule’s time in the police cells, Sergeant Shepherd gave Mr Lule directions in a manner that Mr Lule found “[v]ery, very intimidating”.

28. Subsequently, at about 8.45pm, he was released without explanation. He was simply told “we’re letting you go” and given his belongings.

29. Mr Lule said he was traumatised, angry and shocked by what occurred and suffers anxiety stemming from the incident. He was embarrassed that the incident occurred in front of his friends and daughter, in particular that they had seen him handcuffed.

Ms Maria Nakirijja

30. Ms Nakirijja is a friend of Mr Lule. On the afternoon of 21 December 2014, she took her six month old son and Mr Lule’s daughter to the park. On their return to the apartment, she saw Mr Lule, outside the front door of the apartment building, handcuffed with a police officer holding him and “asking why he was being arrested”.

Mr Isaac Kasiyre

31. On the afternoon of 21 December 2014 Mr Kasiyre was in his apartment with Mr Lule and two other men. He, Mr Lule and one other of those present drove to the supermarket, with Mr Lule sitting in the back of the car. The car slowed down as they passed police activity nearby, and when they returned some time later the police were still present.

32. After they returned to Mr Kasiyre’s apartment, the police arrived, beckoned Mr Lule out of the apartment, arrested him outside of the apartment building and took him to the police station.

33. Mr Kasiyre gave evidence that Mr Lule asked for a lawyer immediately before being handcuffed. Moreover, he said that the police did not ask for Mr Lule’s identification when they entered the apartment, and that Mr Lule pointed out his car to Constables Thomas and Tranter when they asked for his identification after Mr Lule had been arrested.

34. Soon after, Mr Kasiyre went with at least one of his friends to the police station and told the police that Mr Lule had been with them from 3.00pm and that they had made a trip to the shopping centre. As a result, they went with Constable Tranter to the shopping centre to look at CCTV footage. According to Mr Kasiyre, the police did not inform him of the reason for Mr Lule’s arrest until after he attended the police station.

Senior Constable Matthew Thomas

35. Constables Thomas and Tranter received the Incident Report referred to in [7] above at about 5.21pm on 21 December 2014. They took five to 10 minutes to arrive at the scene of the break in.

36. Constable Thomas commenced to record the victim’s statement in his police notebook. The description he recorded was as follows:

“male, Black African appearance, 175cm tall, shaved hair, slim build to Medium, white t-shirt, baby blue shorts … leaning into my room from the balcony.”

37. In cross-examination, he agreed, in relation to the victim’s description of what the offender was wearing, that:

“She wasn’t too sure, but he possibly wore a T-shirt, a white T-shirt and blue shorts” (emphasis added).

38. His taking of the statement was interrupted by the victim’s partner saying, in relation to a passing car, “[t]hat car has driven past several times, that is him in the car”. Constable Thomas agreed in cross-examination that the partner had not seen the offender “in the unit”. Later in the cross-examination, he accepted that only the victim, and not her partner, saw the offender.

39. The police obtained the address of the registered owner of the vehicle and attended his apartment close by. When the door was opened, Constable Thomas said “[w]e are here investigating an incident up the road”. When he observed in the room a man (in fact Mr Lule) who matched the description he had been given, he asked him to come outside the apartment and “have a chat with us”. He told him that he “matched the description that we have been given in relation to an incident that happened up the street”. His evidence continued:

“Q.   Mr Lule’s moved out of the apartment, what’s happened at that time?

A.   So as he’s moved to walk outside of the apartment I’ve said, sir, what’s your name, and he’s said, I’m not saying anything, then he’s moved outside the apartment, got fully outside the apartment and I’ve – I said to him words to the effect of, my name’s Constable Thomas from Merrylands police, at this point in time you’re under arrest in relation to a break and enter on Addlestone Road. We’ve been given a description that matches you by a witness. You do not have to say or do anything if you do not want to, anything you say or do may be recorded and that recording may be used in Court, do you understand that, and he said yes.”

40. After he arrested Mr Lule, Mr Lule and another male “were both asking questions, ‘why, why has he been placed under arrest’, as we’re then moving down the stairs”. Constable Thomas replied to them, “[y]ou’ve been explained [sic] why you’re under arrest, it’s in relation to a break and enter”.

41. In response to repeated requests to Mr Lule to give his name and for identification, Mr Lule said, “I’m not saying anything, I’m not saying anything”. Constable Thomas said he wanted Mr Lule’s name “so I could establish who he was and to put a name to the person that I’d arrested”.

42. Once down the apartment building stairs, and while still in the apartment building, Mr Lule was searched and handcuffed. Mr Lule was handcuffed “because he was very hesitant with his actions coming down the stairs”, he was “fidgety”. In the process of handcuffing Mr Lule, Constable Tranter did not use his legs. After some delay, Mr Lule was taken in a caged police vehicle to the police station. Constable Thomas informed Mr Lule’s friends that Mr Lule would be taken to the Merrylands Police Station.

43. Constable Thomas gave the following evidence as to his grounds for arresting Mr Lule:

“Q.   Turning to the arrest of the plaintiff at the door of the apartment on Addlestone Road, can you just inform his Honour why you performed an arrest at that point in time?

A.   Again, saying what I said before, I’d been given a description by the victim which matched the POI I also had concerns as to the victim protection.

Q.   What were those concerns?

A.   Those concerns were that the POI may have himself or have got somebody else to go back to that location to try and recover that mobile phone, putting the victim’s safety at risk.

Q.   Could you just summarise what your concerns were, because I interrupted you. So could you just please set out the basis as to why you arrested the plaintiff?

A.   The description I had from them being him, I did not have his identification so appearance in Court and also victim protection.

HIS HONOUR

Q.   You said you were concerned that the person of interest may have got someone to attempt to recover the mobile phone putting someone at risk. Who would be at risk?

A.   The victim.

MAHONY [Counsel for the State]

Q.   In your mind why would you say there would be a risk to a person associated with an alleged offender or the alleged offender revisiting the site where the offence took place?

A.   To recover his mobile phone.

HIS HONOUR

Q.   But am I correct in saying by this time the mobile phone had already been secured?

A.   Correct. I knew that, but the person suspected of committing that offence would not have known that I had secured that mobile phone.”

44. Constable Thomas also said however that he would still have arrested Mr Lule even if Mr Lule had given his name as requested.

45. At 10.30pm that evening, after the release of Mr Lule and the arrest of the offender, Constable Thomas wrote a COPS report. It stated that when he arrested Mr Lule at 6.25pm, he told him that the arrest related to a break and enter that had occurred nearby at “about 5pm this afternoon” and that Mr Lule was being arrested “as you match the description given by a witness”. In cross-examination, Constable Thomas agreed that he had not asked Mr Lule where he was at 5.00pm. His explanation for not doing this was that Mr Lule matched the description he had been given and “I suspected that he was the person that had committed that offence”.

46. In cross-examination, it was put to Constable Thomas that he did not tell Mr Lule that the offence occurred at 5.00pm but Constable Thomas said that he did. Earlier in the cross-examination however he said that he had told Mr Lule that there had been an incident “that’s occurred up the road” and had not “at that time” told him when the incident occurred.

47. In the COPS report prepared some days after the incident, apparently by Constable Thomas, the following appears:

“Police attended that unit and knocked on the front door [where] they were met by the PN who matched the exact description of the offender given by the victim. This gave Police a reasonable suspicion to believe the PR was the outstanding offender who committed the break and enter offence.”

Constable David Tranter

48. Constable Tranter confirmed that he and Constable Thomas were notified of the incident in the manner described by Constable Thomas.

49. The victim’s partner told Constable Tranter that he ran into the room and saw the offender jumping off the balcony, dropping his phone and running down the street. He gave a similar description of the offender’s clothing to that given by the victim to Constable Thomas.

50. Whilst Constable Tranter was speaking to the victim’s partner, he noticed a car drive past, “well below the speed limit”, on three occasions within a minute or two. The victim’s partner saw the vehicle and said, “That’s him in the back seat”. In cross-examination, Constable Tranter said that he could “recall the face of [Mr Lule] who was sitting in the back right-hand side as they were driving past me when they first went past”. He said that Mr Lule “almost got his head out the window to try and look at what was going on”.

51. Upon entering Mr Kasiyre’s apartment, Constable Tranter noticed that one of the men in the apartment was wearing clothing that matched the victim’s description. According to Constable Tranter, Constable Thomas then asked Mr Lule for his name and, once Mr Lule refused to provide it, Constable Tranter asked the other people in the apartment whether Mr Lule had any means of identification. They declined to assist.

52. When arresting Mr Lule, inside the apartment building, Constable Tranter said that Constable Thomas told Mr Lule that he was “under arrest in relation to a break and enter that occurred down the road”. Constable Tranter agreed in cross-examination that Mr Lule was not arrested because he had failed to give his name but Constable Tranter did state that he could have been.

53. Constable Tranter said that when he and Constable Thomas advised Mr Lule that they were going to search him before putting him into the caged police vehicle, Mr Lule “started to get aggressive, pulling his arm away, saying, no, and just trying to move away from us”, with the result that the police handcuffed him. Constable Tranter also gave evidence that he did not use his legs to effect the handcuffing.

54. Mr Lule was strip searched at the police station Constable Tranter described the strip search as follows:

“Q.   What does that involve in terms of what’s requested and what procedure was followed on that day?

A.   On that day his clothing was removed so the white T-shirt he was wearing, his shorts and his underpants were removed and then he was advised to lift stuff at the front all up so we’ve ensure that nothing was under there and he was advised to turn around and squat and then pulled his butt cheeks apart, I suppose, and then he was advised to put his clothes back on.”

55. Moreover, a cord was taken out of Mr Lule’s pants. He was also fingerprinted.

THE STATE’S CASE AT FIRST INSTANCE

56. In its Defence, the State alleged that Mr Lule was lawfully arrested pursuant to s 99(1)(a) of LEPRA as police “suspected on reasonable grounds that [he] had committed an offence of aggravated break and enter and failure to provide identification”. This pleading implicitly acknowledged, correctly, that the burden of proving that the arrest was lawful lay on the State. As a result, it should have pleaded the facts that it alleged rendered the arrest lawful (Zaravinos v State of New South Wales (2004) 62 NSWLR 58; [2004] NSWCA 320 at [12]). It did not do so. The State did not press its pleaded contention that Mr Lule’s arrest was lawful because he failed to provide identification.

57. In its closing written submissions, the State identified the following as being the “reasonable grounds” that justified Mr Lule’s arrest:

“(a)   Victim protection;

(b)   The offence was a serious indictable offence – a court attendance notice or a field court attendance notice was insufficient as no bail conditions or conditions stopping that person from going back to that address were attached;

(c)   The victim’s statement in relation to the description of the POI. That description was of ‘a male, Black African appearance, 175cm tall, shaved hair, slim build to Medium, white T-short [sic], baby blue shorts’;

(d)   A motor vehicle had driven past on several occasions in circumstances where the offender was believed to have dropped a mobile phone in the surrounds of the victim’s residence;

(e)   A person thought to be the offender was observed by the victim’s partner, shortly after the offence, being driven in a car near to where the offence occurred;

(f)   The plaintiff was located shortly after being identified by the victim at the residence to which the car was registered;

(g)   The plaintiff matched the description of the offender” (references omitted).

THE JUDGMENT AT FIRST INSTANCE

58. The primary judge stated that “all of the witnesses were witnesses of credit” but noted that there were inevitable discrepancies in their evidence.

59. His Honour noted the following “[u]ndisputed facts”:

“1.   The first undisputed facts [sic] is that when the police arrived at Isaac’s home unit and inquired of the plaintiff’s name, he declined to give it. All attempts by the police to establish his identity at the scene were unsuccessful.

2.   The description of the plaintiff matched in all respects the description that had been provided to the police by the complainant of the offence.

3.   The white vehicle in which the plaintiff was travelling past the site of the crime was, on the evidence of both the plaintiff and the defendant, travelling very slowly as it passed the building.

4.   The complainant’s partner pointed to the defendant whilst he was sitting in the back seat of the car as it was driving past, and identified the plaintiff as the person who had entered the unit.

5.   Because the plaintiff refused to provide his name, it engendered suspicion in the minds of the police. At the time they left the site of the arrest, they did not know the identity of the plaintiff.”

60. The following were amongst the findings that his Honour made in relation to disputed questions:

1. Mr Lule made “at least one request” for a lawyer at the site of the arrest “which was probably repeated on at least two or more occasions” and he “repeated his requests” at the Merrylands Police Station;

2. Mr Lule was handcuffed outside the building in which Mr Lule’s uncle’s apartment was situated, near the balcony of a ground floor unit;

3. Mr Lule was handcuffed “in sight of persons approaching the apartment building, at least for a short time. There is, however, no evidence that the children saw the plaintiff at that stage”;

4. Mr Lule made “some mention” of his motor vehicle that was parked outside the building for the purpose of providing some identification to the police;

5. At the time that he was arrested, Mr Lule received “a blow to the back when the police officer applied force from his thigh, that is, his upper thigh”;

6. The police mentioned Mr Lule’s identification whilst he was still inside Mr Kasiyre’s apartment; and

7. At the police station, Mr Lule was treated in a “rude and aggressive” manner by the station sergeant, Sergeant Shepherd.

61. The primary judge’s conclusions in relation to Mr Lule’s claim were as follows:

“The Court has come to the view that because [1] the description of the plaintiff provided to the police at the crime scene was identical to that of the plaintiff; because [2] the police had seen the plaintiff driving past in a very slow manner after the mobile phone had been lost; because [3], according to the evidence of the police, the plaintiff appeared to be un-cooperative by refusing to provide his name; because [4], according to the police evidence, which the Court accepts, before he was arrested, he appeared to become, as Constable Thomas said, fidgety; and because [5] Constable Tranter observed, [he] started to become aggressive, the police officers had determined, on reasonable grounds, to arrest the plaintiff.

In relation to the assault by reason of the plaintiff being struck in the back, the Court accepts that the plaintiff felt force in his back from Constable Tranter. The Court considers that on the evidence, Constable Tranter probably applied his thigh to the plaintiff’s back to ensure that the handcuffs were placed on him, lest the plaintiff abscond.

Constable Tranter did say that he placed his thigh on the plaintiff’s back only after the plaintiff appeared to become aggressive. He noticed that the plaintiff started to pull away. The force applied by Constable Tranter, on the evidence, does not appear to have been such as to constitute an assault. As provided by the LEPRA Act, the police may undertake various actions in the course of an arrest (see s 231 of the LEPRA Act) and a person may be detained in accordance with the Act.

With respect to the plaintiff’s refusal to identify himself, that of itself constitutes an offence under s 11 of the Act. However, the plaintiff was not arrested for this purpose, although he could have been. He was arrested because of a fear that there may have been a repetition of the incident at the site of the crime.

In relation to the plaintiff’s alleged assault, because of the words of Sergeant Shepherd, the Court accepts the evidence that Sergeant Shepherd spoke in an aggressive tone and that the plaintiff felt intimidated. On this basis, it is submitted by the defendant that an intimidatory tone is insufficient to constitute an assault.

There is no evidence that the plaintiff was actually placed in fear of an assault, rather he was affronted by the tone, which was both rude and aggressive, of Sergeant Shepherd. However, the Court has concluded that such is insufficient to constitute an assault.

The plaintiff knew what fingerprinting involved, as he had been fingerprinted for the purpose of his employment more than two years earlier. That of itself did not involve a violent physical activity and the LEPRA Act specifically authorises the police to fingerprint.

The cause of action therefore in false imprisonment and in assault, does not succeed.

The Court accepts that the plaintiff felt shocked, bewildered and puzzled by his arrest.

The Court accepts that such shock and disbelief may have led to him declining to provide his identity. However, had he done so, it is most unlikely that further action would have been taken. His refusal to provide his identity no doubt heightened the suspicion of the police. When he was taken to the police station, the Court accepts that he was subjected to humiliating treatment of being strip searched and being imprisoned and fingerprinted.

Again, as is evidenced by the police record, he refused to say anything unless he was provided a lawyer. To obtain the services of a lawyer on a Sunday evening would have been unusual. The plaintiff was imprisoned for a little more than two hours. Nevertheless, the experience must have been a shocking one for him. However, it does not give rise to a cause of action, nor damages.

Accordingly, the plaintiff’s action does not succeed and there must be a verdict for the defendant” [numbering added].

RELEVANT LEGAL PRINCIPLES

LEPRA s 99(1)(a)

62. As pointed out by the High Court in George v Rockett (1990) 170 CLR 104 at 110-1; [1990] HCA 26, statutory provisions permitting the issue of search warrants or, I add, the arrest of individuals, “authorise the invasion of interests which the common law has always valued highly and which, through the writ of trespass, it went to great lengths to protect”. The High Court indicated that in those circumstances strict compliance with the conditions on the exercise of the powers is required.

63. Section 99(1)(a) of LEPRA requires the arresting police officer to have a subjectively held suspicion that the person to be arrested is committing or has committed an offence (George v Rockett at 112). It is common ground that in the present case the arresting officer, Constable Thomas, had this state of mind. The section also requires that the suspicion be held “on reasonable grounds”. This involves an objective test; that is, whether a reasonable police officer in the position of the arresting officer would, or perhaps could, have held that suspicion. As stated in George v Rockett at 115, “[t]he facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown”. Their Honours at 115 referred with approval to Kitto J’s statement in Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266 at 303; [1966] HCA 21 that:

“A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to a ‘slight opinion, but without sufficient evidence’, as Chamber’s Dictionary expresses it ...”

See also Prior v Mole [2017] HCA 10; (2017) 91 ALJR 441 at [4], [24], [73] and [98]-[100].

64. “Reasonable grounds” must be determined objectively by undertaking “an evaluation of the known facts, circumstances and considerations which may bear rationally upon the issue in question” (McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; [2006] HCA 45 at [10]-[11]). The existence of reasonable grounds for a belief (and therefore of a suspicion) “depends on the source of the information and its context, seen in the light of the whole of the surrounding circumstances and, having regard to the source of that information, drawing inferences as to what a reasonable person in the position of the independent observer would make of it” (Hyder v Commonwealth [2012] NSWCA 336; (2012) 217 A Crim R 571 at [15(8)] per McColl JA, referring to O’Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286 at 298, 310 and 303).

65. The statutory provision in George v Rockett referred to both suspicion and belief. The High Court at 115 described these as different states of mind. The following observation at 117, concerning belief in relation to the identification of an object, is equally applicable to the suspicion to which s 99(1) refers:

“Where the object is identified by description, the broader and less specific the description, the more difficult it is likely to be to satisfy the requirement of reasonable grounds for believing that a thing answering the description will afford evidence of the commission of an offence.”

66. In Ruddock v Taylor (2005) 222 CLR 612; [2005] HCA 48 at [40], the plurality observed that “what constitutes reasonable grounds for suspecting a person to be an unlawful non-citizen must be judged against what was known or reasonably capable of being known at the relevant time”. This observation is also equally applicable to the “reasonable grounds” to which s 99 refers.

67. Some examples of cases in which these principles have been applied are as follows.

68. In Mulvaney v Chief Constable of Cheshire (CA (Civ D), 8 March 1990), Mr Mulvaney’s arrest on suspicion of having committed robberies was found to be lawful. The police “found that his dimensions were consonant with those of one of the robbers as described by the eye witnesses” but, presumably more importantly, a motor cycle used in the robberies was found close to the flat in which he lived and a local resident indicated to the police that their enquiries about the motor cycle should be directed to Mr Mulvaney. The Court rejected a proposition put on behalf of Mr Mulvaney that an arrest could never be lawful if the police, as in that case, did not make any enquiry of the suspected person before effecting the arrest.

69. In Lyons v Chief Constable of West Yorkshire (CA (Civ D), 24 April 1997), police arrested Mr Lyons for the theft of a handbag snatched from a Mrs Fisher. The thief was pursued by a witness who failed to catch him but returned and stated that he recognised the thief as Mr Lyons, with whom he had recently worked for some months. The witness made a written statement to the police to that effect. This also included details of the clothing worn by the thief. Mr Lyons was not home when police officers attended to arrest him but a Mr Ineson who was present said that Mr Lyons could not have committed the offence because he had been working in Leeds all day with Mr Ineson and others. Without making any further enquiries, other police officers arrested Mr Lyons the next day. The Court held that the arrest was lawful. Hutchison LJ observed:

“It seems to me that the attitude of the two officers to Mr Ineson’s observation can fairly be summarized by saying that, though they heard and understood it, they unhesitatingly concluded that it did not undermine their reasonably held suspicions to a significant or any extent. It is easy to understand why this should be so having regard to the strength of the evidence in their possession and the circumstances in which the observation was made. They were, as the authorities show, under no obligation at that stage to investigate the matter further: and in any event had good reasons for not doing so. In my view, so far from the judge’s conclusion that their continuing suspicion of the plaintiff was reasonable being demonstrably wrong, it was plainly correct.”

70. R v Rondo [2001] NSWCCA 540; (2001) 126 A Crim R 562 considered s 357E of the Crimes Act 1900 (NSW) which is in the following terms:

“357E A member of the police force may stop, search and detain:

(a)   any person whom he or she reasonably suspects of having or conveying any thing stolen or otherwise unlawfully obtained or any thing used or intended to be used in the commission of an indictable offence; or

(b)   any vehicle in which he or she reasonably suspects there is any thing stolen or otherwise unlawfully obtained or any thing used or intended to be used in the commission of an indictable offence.”

71. The Court held at [51] that the following circumstances did not warrant the conclusion that the police officers “reasonably suspected” any of the relevant matters:

“The evidence that the police had to support stopping the vehicle was that a young fresh faced man was driving a smart fast open coupe with some panel damage along Epping Road and when asked if the car was his, he replied ‘No’. He was not asked to whom it belonged. The mere fact that the appellant was driving a car which he did not own or lease or hire is not sufficient to give rise to a reasonable suspicion. Many late teenagers and young adults drive cars belonging to a parent or a sibling. Alternatively, the car may be that of an employer or a friend. At the time of stopping the appellant and the Supra Cons Barnes did not have any material on which he could form any of the reasonable suspicions referred to in s 357E. Nor did Cons Gautier.”

72. In Hyder v Commonwealth, this Court, by majority, found that a police officer had had reasonable grounds for arresting the appellant where he had based his belief that the appellant had committed an offence on affidavits sworn by an officer of the Australian Taxation Office and a Statement of Facts prepared by that officer.

LEPRA s 99(1)(b)

73. For an arrest without warrant to be lawful under s 99(1) of LEPRA, not only must the police officer have the suspicion, based on reasonable grounds, referred to in subsection (1)(a) but also the police officer must be satisfied that the arrest is “reasonably necessary” for one or more of the reasons specified in s 99(1)(b) (see [13] above).

74. In State of New South Wales v Robinson (2016) 93 NSWLR 280; [2016] NSWCA 334 at [43], this Court concluded that the word “necessary” in the then current provision of LEPRA (in this respect comparable to the present s 99(1)(b)) meant “‘needed to be done’ or ‘required’ in the sense of ‘requisite’, or something ‘that cannot be dispensed with’”.

75. The present form of s 99 refers in s 99(1)(b) to the police officer being “satisfied that the arrest is reasonably necessary for any one or more of the following reasons”, whereas its predecessor (in s 99(3)) required that “the police officer suspects on reasonable grounds that it is necessary to arrest the person to achieve one or more of the following purposes”. It was unnecessary in Zavarinos v State of New South Wales to identify the precise circumstances in which a challenge could be made to an arrest under the predecessor provision. Likewise, it is unnecessary to do that in the present case in relation to the current provision.

DETERMINATION OF THE APPEAL

Whether there were “reasonable grounds” for Constable Thomas’ suspicion – LEPRA s 99(1)(a)

76. Before considering the significance of the description of the offender given by the victim to Constable Thomas, it is convenient to refer to a number of other matters identified in the State’s Defence and in the primary judgment which were in my view not capable, whether considered individually or together, of constituting reasonable grounds for Constable Thomas’ suspicion that Mr Lule was the offender.

The State’s closing written submissions

77. Using the paragraph letters referred to in the State’s closing submissions (see [57] above), I make the following observations about the matters that the State relied upon:

(a) “Victim protection” might have been relevant to whether the arrest was “reasonably necessary” (under s 99(1)(b)) but was not capable of providing support for Constable Thomas’ suspicion as to the identity of the offender.

(b) That the offence was a serious indictable offence and that a court attendance notice was arguably insufficient in the circumstances was likewise only relevant to s 99(1)(b), and not to s 99(1)(a).

(c) and (g)   Both these paragraphs refer to the victim’s description of the offender. This will be addressed below.

(d),(e) and (f)   These paragraphs refer to the victim’s partner’s identification of Mr Lule as the offender, whilst Mr Lule was present in his uncle’s car as it drove past the scene of the offence. This “identification” was not capable of supporting the existence of “reasonable grounds” for the arrest because Constable Thomas knew that only the victim, and not her partner, saw the offender’s face (see [38] above). The partner had only seen the offender running away and his purported identification of Mr Lule could, to Constable Thomas’ knowledge, only have been based on the colour of the offender’s skin, his shaven head, build and clothing: in other words, the partner did not provide any more assistance than was provided by the victim.

Moreover, neither Constable Thomas nor Constable Tranter at any time sought to justify his suspicion on the basis of this “identification” or the fact that Mr Lule was in a car that drove past the scene of the crime (see paragraphs [38]-[45], [51]-[52] above).

The primary judgment

78. In the first of the paragraphs from the primary judgment quoted in paragraph [61] above, his Honour gave five reasons (each preceded by the word “because”) why the police officers had reasonable grounds for arresting Mr Lule. In giving these, his Honour did not distinguish between matters that he considered constituted reasonable grounds for Constable Thomas’ suspicion that Mr Lule was the offender (s 99(1)(a)) and those matters that rendered the arrest “reasonably necessary” in accordance with s 99(1)(b).

79. The first matter (that is the victim’s description of the offender being “identical to that of the plaintiff”) related to s 99(1)(a) and will be addressed below.

80. The second matter, (that is, that Mr Lule was seen “driving past in a very slow manner after the mobile phone had been lost”) could not rationally support a suspicion that he was the offender. Nor did Constable Thomas at any time seek to justify his suspicion on that basis. Police activity commonly provokes curiosity in passers-by. That they might slow down to see what is happening could not support a suspicion that they were offenders.

81. The third matter to which the primary judge referred was that Mr Lule “appeared to be uncooperative by refusing to provide his name”. The primary judge found, contrary to the evidence of Mr Lule and Mr Kasiyre, that the police officers asked Mr Lule for identification whilst he was still inside Mr Kasiyre’s apartment, and therefore before Mr Lule was arrested (see [60(6)] above). However his Honour also found, as would have been apparent to the police officers, that Mr Lule “felt shocked, bewildered and puzzled by his arrest” and that “such shock and disbelief may have led to him declining to provide his identity” (see [61] above). In these circumstances and because the subsequent requests to him for identification were made after he was cautioned, and therefore told that he was not obliged to say anything, his failure to provide his name could not rationally support a suspicion that he was the offender. Moreover, neither of the police officers said in evidence, or otherwise asserted, that it did (see the references given at the end of [77](d)-(f) above). His Honour’s observation that Mr Lule’s refusal to identify himself “no doubt heightened the suspicion of the police” was therefore not well-founded.

82. The fourth matter to which the primary judge referred was that Mr Lule became “fidgety” before he was arrested. On the police evidence, this would have occurred after Mr Lule was arrested because, on that evidence, he was arrested immediately outside the door of Mr Kasiyre’s apartment, rather than after being taken down the stairs to ground level. Any arguable resistance on his part was shown on the way down the stairs and at ground level. On this basis Mr Lule becoming “fidgety” could not have contributed to the existence of reasonable grounds for Mr Lule’s arrest because that occurred after his arrest. Even if it occurred before the arrest, becoming “fidgety” in the extreme circumstances in which Mr Lule was suddenly and rudely embroiled could not rationally suggest his possible guilt of the offence.

83. The same observations apply to the fifth matter mentioned by the primary judge: that is, that, according to Constable Tranter, Mr Lule “started to become aggressive [after?] the police officers had determined, on reasonable grounds, to arrest” him. On the police evidence, any such aggression only occurred after Mr Lule’s arrest and could not therefore have provided grounds for his arrest. In any event, some resistance by Mr Lule was hardly surprising considering the circumstances in which he was placed. It was not an indication of his guilt of the offence in question. Moreover, Constable Thomas did not at any time call any aggression by Mr Lule in aid to support his suspicion of Mr Lule’s guilt of the offence.

The victim’s description of the offender

84. For the above reasons, the only possible reasonable ground for suspicion that Mr Lule committed the offence was the victim’s description of the offender. This conclusion accords with the repeated description by the arresting officer, Constable Thomas, of the victim’s description as the basis for his suspicion.

85. There is of course no rule that precludes a witness’ description of an offender being, without more, sufficient to constitute reasonable grounds for a suspicion that a person who matches that description is an offender. The sufficiency of such a description however depends upon the particular circumstances of the case. Whether further enquiries are necessary before the required level of satisfaction can reasonably be attained similarly depends upon the circumstances. In Mulvaney to which I have referred in [68] above, police relied upon a description but had significant additional information that obviated the need to make any enquiry of the suspected person before effecting his arrest. Similarly, in Lyons, the police were found to be justified in not making any further enquiries (see [69] above). Although they received information about an alibi, the evidence identifying Mr Lyons as the thief was strong, much more so than in the present case.

86. Circumstances that were relevant in the present case are as follows.

87. First, there was uncertainty in the victim’s description of the offender. The Police Incident Report by which Constables Thomas and Tranter were informed of the offence used the term “POSS” to indicate that the clothing description was not definitive. Likewise, in cross-examination, Constable Thomas said that the witness “wasn’t too sure” but the offender “possibly wore a t-shirt, a white t-shirt and blue shorts” (emphasis added – see [37] above).

84. Secondly, the offender’s clothing, as tentatively described by the victim, was far from distinctive. T-shirts, particularly white T-shirts, and blue shorts are not at all uncommon in the community, especially on the weekend in mid-summer. Furthermore, the offender’s described height and build were not unusual and the colour of his skin could not have provided a proper basis for identification of Mr Lule as the offender. Mr Kasiyre’s unchallenged evidence was that there were many black people in the Merrylands area.

85. Moreover, Mr Lule did not precisely match the victim’s description because he was wearing a short sleeved shirt (albeit white) rather than a T-shirt. As noted above, the source of information held by the police needs to be evaluated and “the broader and less specific the description” the less likely it will be that a match with the description on its own constitutes reasonable grounds for an arrest (see [65] above).

86. Thirdly, the police officers did not avail themselves of an obvious opportunity to obtain further information. As noted in [66] above, the issue of “reasonable grounds” is to be “judged against what was known or reasonably capable of being known at the relevant time”. The police officers came to Mr Kasiyre’s home while he was peaceably gathered with three other men of similar heritage. Mr Lule was a professional man in his mid-thirties. In these circumstances, and particularly in light of both the generality and uncertainty of the description they had been given by the victim, they should have asked those present where Mr Lule had been at the time the offence was committed.

87. When describing in evidence what was said on arrival at Mr Kasiyre’s apartment, neither Constable Thomas nor Constable Tranter said that either indicated when the offence had occurred. This was consistent with Mr Lule’s and Mr Kasiyre’s evidence. It was only when shown the COPS report, which Constable Thomas had prepared after the release of Mr Lule and the arrest of the real offender, that Constable Thomas asserted that he had said that the offence had occurred at 5.00pm. The primary judge did not make a finding as to whether that was correct but if it had been necessary to do so I would have found that, in light of the overwhelming evidence to the contrary, that it was not. It is not necessary to make that finding because, even if the time was identified, the police officers clearly did not seek to ascertain where Mr Lule had been when the offence was committed a short time earlier or whether those present in the apartment had been with Mr Lule at that time.

88. Constable Thomas said in evidence (see [40] above) that Mr Lule and another male “were both asking questions, ‘why, why has he been placed under arrest’ as we’re then moving down the stairs”, to which Constable Thomas replied “[y]ou’ve been explained [sic] why you’re under arrest, it’s in relation to a break and enter”. This response indicated that Constable Thomas had an unjustifiably closed mind and failed to take a reasonable opportunity to obtain information that may have assisted Mr Lule to dispel any suspicion that had arisen. As Sackville AJA found in State of New South Wales v Zreika [2012] NSWCA 37 at [56] in relation to the police officer there concerned, “[f]urther investigations conceivably might have explained the apparent inconsistencies or, more likely, definitely ruled out the respondent as a suspect. But the obvious enquiries were never made because [the police officer] had closed her mind to the exculpatory evidence”.

89. The utility of putting questions to those present in the apartment is demonstrated by the ready recognition by the police that, when Mr Lule’s friends attended the police station, examination of CCTV footage at the shopping centre would provide valuable information as to whether Mr Lule should reasonably be suspected of being the offender.

90. I do not consider that the fact that information as to Mr Lule’s identity was not forthcoming exempted the police officers from making further enquiries. They did not suggest that they thought it pointless to make such enquiries and it cannot be imagined that those present would have remained silent if they had been given details of the offence for which Mr Lule was being arrested. Their questions to the police officers indicated that they would not have.

Whether Constable Thomas was satisfied that Mr Lule’s arrest was reasonably necessary – LEPRA s 99(1)(b)

95. For an arrest to be lawful pursuant to s 99 of LEPRA, both paragraphs (a) and (b) of subsection (1) need to be satisfied. As I have found that paragraph (a) (reasonable grounds for suspicion) was not satisfied, Mr Lule’s arrest was unlawful and it is unnecessary to determine whether paragraph (b) was satisfied.

96. I refrain from expressing views as to compliance with (b) because the primary judge made no explicit finding about it and the requirement was given little attention in argument on appeal.

Damages

97. In his Statement of Claim Mr Lule sought compensatory, aggravated and exemplary damages for his unlawful arrest and consequent false imprisonment, as well as for alleged assaults of him by police. As noted earlier, the assault claim is no longer pressed. Further, counsel for Mr Lule indicated on the appeal that Mr Lule did not press his claim for aggravated damages for his wrongful arrest.

98. The claim for exemplary damages may be disposed of at the outset. Exemplary damages “go beyond compensation and are awarded ‘as a punishment to the guilty, to deter from any such proceeding for the future, and as a proof of the detestation of the jury to the action itself’” (Lamb v Cotogno (1987) 164 CLR 1 at 8; [1987] HCA 47). Further, “[t]he object, or at least the effect, of exemplary damages is not wholly punishment and the deterrence which is intended extends beyond the actual wrongdoer and the exact nature of his wrongdoing” (ibid at 9). Usually an award of exemplary damages will be founded upon “conscious wrong doing in contumelious disregard of another’s rights” (Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70 at [14]).

99. Whilst I found that reasonable grounds did not exist for Constable Thomas’ suspicion that Mr Lule was the offender in question, the evidence did not indicate that Constable Thomas engaged in conscious wrongdoing or acted in contumelious disregard of Mr Lule’s rights, or that any other circumstance existed which would warrant the rarely adopted course of awarding exemplary damages being taken.

100. Mr Lule’s damages should accordingly be confined to compensatory damages. The following circumstances to which I have referred in more detail earlier are relevant to the assessment of those damages.

101. Whilst gathered with friends on a Sunday evening at the home of a family member, Mr Lule was confronted by two police officers who arrested him without giving him an opportunity to respond to their suspicion that he had committed a break and enter offence. He was peremptorily arrested in front of his uncle and friends, and taken down the stairs of the apartment building. He was handcuffed outside the building in the view of people approaching it. The handcuffs were very tight and uncomfortable. He received a “blow to the back” when one of the police officers applied force from his thigh. Mr Lule was then taken in a caged police vehicle to the police station where he was strip searched. He found this demeaning and shameful. He was treated in a “rude and aggressive” manner by the station sergeant and was kept in a cell until his release at about 8.45pm, having been in custody for over two hours. Understandably, he was traumatised, angry and shocked by what occurred and suffers anxiety stemming from the incident. On his release from custody, he received no explanation or apology for his arrest.

102. By reason of these circumstances, Mr Lule is entitled to a substantial award of damages for what was an undoubtedly traumatic, humiliating, frightening and embarrassing experience.

103. In assessing the damages to be awarded, little, if any, assistance can be derived from an examination of amounts awarded in other cases. As the High Court said in Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 at 125; [1968] HCA 62 in relation to awards of general damages for personal injuries, they are “to be proportionate to the situation of the claimant party and not to the situation of other parties in other actions, even if some similarity between their situations may be supposed to be seen” and “[t]he judgment of a Court awarding damages is not to be overborne by what other minds have judged right and proper for other situations”. These observations are equally explicable to an assessment of damages in a context such as the present. In these circumstances, I will simply refer to two decisions of this Court concerned with damages claims for wrongful arrest.

104. In State of New South Wales v Zreika [2012] NSWCA 37, the plaintiff was arrested at his place of work on charges of shooting with intent to inflict grievous bodily harm, malicious wounding and common assault. He remained in custody for about two months. The primary judge awarded him damages on a number of bases, including compensatory damages of $50,500 for his wrongful arrest and imprisonment. That award was not challenged on appeal.

105. In State of New South Wales v Smith [2017] NSWCA 194, the plaintiff was arrested at his home. He was subjected to a pat-down search and was taken in a police wagon to a police station where he was placed in an enclosed lock-up area within the single room of the station. He was placed under arrest at 9.30pm and released from police custody at about 1.00am the next morning. The primary judge awarded the plaintiff $20,000 for his wrongful arrest and imprisonment. This Court rejected the State’s challenge to the award.

106. The assessment of the amount of damages to which Mr Lule is entitled is necessarily subjective and impressionistic. As the circumstances I have described earlier indicate that his wrongful arrest and consequent imprisonment constituted a severe infringement of his rights, I assess his compensatory damages at $30,000.

Other matters

107. In light of the conclusions that I have stated above, it is unnecessary to address submissions put on behalf of Mr Lule concerning the rules in Browne v Dunn (1893) 6 R 67 and Jones v Dunkel (1959) 101 CLR 298 at 320; [1959] HCA 8. None of the factual matters to which those submissions related have proved significant to the determination of the appeal.

108. A final matter is that Mr Lule needed leave to appeal as his challenge to the primary judgment did not concern an issue involving $100,000 or more (Supreme Court Act 1970 (NSW), s 101(2)(r)). I would grant leave to appeal as, for the reasons I have given, the primary judgment has been shown to be erroneous. Mr Lule has suffered an injustice as a result of the rejection of his claim. A grant of leave should be made to enable his rights to be vindicated.

ORDERS

1. Grant leave to appeal.

2. Set aside the orders made by Cowdroy ADCJ on 7 November 2017.

3. Judgment for Mr Lule against the State of New South Wales in the sum of $30,000.

4. Order the State of New South Wales to pay Mr Lule’s costs of the proceedings at first instance and on appeal.

109. BARRETT AJA: I agree that orders should be made as Macfarlan JA proposes for the reasons he gives. As his Honour’s detailed and careful review of the evidence makes clear, the only matter that the arresting officer put forward as grounding a suspicion that it was Mr Lule (rather than someone else) who had entered the home unit occupied by the victim and her partner was the description the officer received over the police radio and subsequently from the mouth of the victim. While the two versions were consistent (which is not surprising, since it was the victim who provided the report that resulted in the radio message), neither was by any means definitive. In each case, the description of the clothing was qualified by the word “possibly”. That element of qualification, coupled with the circumstances that there is a significant black African population in the relevant locality and that the particular mode of dress could not have been in any way distinctive on an early Sunday evening in mid-summer, caused a suspicion based solely on the description received by radio and repeated by the victim to be a suspicion that was not formed on reasonable grounds.

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Decision last updated: 15 June 2018