McCarthy v State of New South Wales

[2016] HCATrans 88

[2016] HCATrans 088

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S228 of 2015

B e t w e e n -

PAUL JAMES McCARTHY

Applicant

and

STATE OF NEW SOUTH WALES

Respondent

Application for special leave to appeal

BELL J
NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON FRIDAY, 15 APRIL 2016, AT 9.31 AM

Copyright in the High Court of Australia

MR T.A. GAME, SC:   If the Court pleases, I appear for the applicant.  (instructed by Danny Eid Lawyers)

MR M.J. WINDSOR, SC:   If the Court pleases, I appear with MR M.T. HUTCHINGS, for the respondent.  (instructed by Henry Davis York)

BELL J:   Thank you, Mr Game.

MR GAME:   Thank you, your Honour.  The first thing is, we are seeking an extension of time which is not opposed, so ‑ sorry your Honour ‑ can I proceed directly to the argument?

BELL J:   You say it is not opposed.  In paragraph 2 of the respondent’s summary of argument, I must say I had read that as some opposition but is that the case, Mr Windsor?

MR WINDSOR:   Your Honour has read it correctly but the situation is, my clear instructions are, the question of leave is not opposed.

BELL J:   Yes, thank you.  Yes, Mr Game.

MR GAME:   Thank you, your Honour.  Now, could I take your Honours directly to the statutory provisions in question and they are found in various places, but at page 124 and 125 of the application book you will see the power in question which is the same, or maybe it is not precisely the same but it has got a parallel in the common law, and in this legislation there are other powers, for example, arrest without warrants, search with and without warrant and they come from various places, including the Crimes Act and some from the common law.

If you go then to section 201, 201 is a mandatory provision that applies to all of these powers, and if you go to subsection (3) on page 126 you will see the kind of powers that they relate to, for example:

(a)       a power to search –

and that will include without warrant or arrest without warrant, and arrest without warrant is an example that comes from section 352 of the Crimes Act originally.

Some of these things in subsection (3) were things that happen, shall I say, in a moment of time.  Some of them are a continuum such as a search or detention and some of them, perhaps most of them, have ongoing and legal consequences such as seizure of property.  In addition, it is not difficult to imagine how these provisions can become litigated in tort in criminal law; for example, the kinds of cases we see in Hawkins and the New South Wales case that we have referred to, assaulting police and the like, or discretionary exclusion in evidence. 

One could also see how these could become relevant in administrative law with respect to validity of the same Acts.  So, legality and validity, we would say, are closely related and pretty much the same in this context.  So, just before I leave that, if you turn over to page 128, you will see the amended provision subsection (2) and a point is taken against us that it has changed but we say the outcome would be the same that:

(a)       as soon as it is reasonably practicable to do so –

picks up present ongoing and future.  Now, if you come back to section 201(2), those words ‑ the argument that is put against us is effectively that things that happen after, the power is spent and the failure to comply has no legal consequences.

We say that one cannot split the provision in this way.  First of all, I have already given the example, and we have given it in the written submissions, of things that do not happen in a moment in time, that things happen over a duration and, clearly enough, it may not be practicable at the first moment in time but that may change.  For example, it may become practicable during the execution of a power.

That may well be a situation that comes within (b), or (b) may feed into (a).  Subsection (b) may mean after exercising the power, may actually mean by engaging in the exercise of the power.  Once one accepts that, one can see that the provision has bite in terms of legality and validity with respect to both (a) and (b) and I would add, it is not unusual.  For example, in administrative law ‑ and I am thinking of Bhardwaj here ‑ acts on the basis that things may have a provisional character.

BELL J:   Mr Game, before we move into Bhardwaj could I just take this up with you?  You seek to, in the orders in your draft notice, that the orders of the New South Wales Court of Appeal be set aside and in their place the appeal to that court be dismissed, leaving in place the determination of the trial judge, that being compensatory damages of $10,000 were awarded, together with exemplary damages of $20,000.

Now, I understand your argument is to accept in light of the Court of Appeal’s findings that the entry, at the time it was effected, was lawful and you take a Michaels v The Queen point that subsequently it ceased to be lawful but that, one would think, would have some consequences in terms of the determination below.  It could hardly simply be restored, could it?

MR GAME:   Well, your Honour, what we say is this to that ‑ can I answer that by reference to what ‑ sorry, practically, it may be that if we are right that might result in a remittal to the Court of Appeal but, your Honour, can I answer that by reference to what was done in the Court of Appeal and in this way.  If you go to pages 92 and 93, we see the court relies on Poidevin v Semaan ‑ the name of which I forgot a moment ago ‑ Poidevin v Semaan and DPP v Hawkins.

Now, those cases are cases about assaulting police and it is said that the act at the time it was performed was lawful because it was not practicable to inform the person for the reason for the arrest at the time, and that is understandable, but that is a moment in time and that is a temporal aspect to the lawfulness of the act at the time but that is not to say ‑ and this seems to have been accepted in DPP v Hawkins and we set out the two passages in which it is said ‑ that is not to say that this has different consequences in terms of lawfulness of everything that happened after that moment.

So, it was described in Hawkins as the detention being in limbo and that is really what we say, the whole thing has a conditional character.  So that lawfulness, if it subsequently becomes unlawfulness, that undermines the lawfulness of the entire process but it does not mean that the act at the time it was done, at the time it was done, at that moment, was unlawful, therefore it is kind of like a report back provision.

If one thinks about it in terms of conditions of validity, it depends on it being complied with so that, take for example a situation where a person is never informed of the reason, then we say that invalidates the whole of the lawfulness of the act but it does not mean that in criminal law, at the moment say when a person was arrested, that they can rely on that to say it was not in the lawful execution of the officer’s duty because it was not practicable at that moment although it became practicable later.

So we say that once you accept the idea that a thing can change in its character, then you have to grapple with the idea that the lawfulness of the thing in tort ‑ and I have to say in Poidevin v Semaan Justice Leeming was at pains to point out that this was about liability of the criminal act, not for the tortious act of the police ‑ so we say that the character of the act of the entry and search remains provisional, subject to compliance with section 202.

BELL J:   That would seem to involve something of a shift from the statements of the principle in Hawkins, would it not

MR GAME:   Not really, your Honour, because in Hawkins it appears to have been accepted that the acts ultimately turned out to be unlawful and that seems to have been accepted in the passages we cited.

BELL J:   Looking at the passages you cite at application book 108, paragraph 33, the concluding two sentences – in particular, the concluding sentence:

But that is not to say that all the earlier steps taken during the course of events leading to the ultimate position must themselves be regarded as unlawful –

That seems inconsistent with the position you are putting.

MR GAME:   No, your Honour, because 108 ends by saying:

I recognise of course that by virtue of section 28(3) the arrest ultimately proved to be unlawful. 

BELL J:   Yes.

MR GAME:   And, in a passage from Lord Justice Parker, when it does become practicable he fails to do so then the arrest is unlawful.

BELL J:   But it is more what ‑ ‑ ‑

MR GAME:   So that does not mean – sorry, I am interrupting.

BELL J:   But, Mr Game, it is more what Lord Justice Parker went on to say ‑ ‑ ‑

MR GAME:   Yes.

BELL J:   ‑ ‑ ‑in the concluding portion of that quotation.

MR GAME:   My argument can absorb that, your Honour, because that is a proposition about what happened at that moment in time so it justifies the acts of the police but it does not mean that the detention itself is lawful if subsequently the person does not comply with the condition for its exercise.  So, what his Honour is talking about in terms of the criminal act is something different which is the criminal act of the person resisting the police officer who, at that moment, is not in a position to inform the person for the reason for their arrest.  So, I am not doubting that the arguments that are put involve nuances but nuances do require to be drawn in these situations, as one can see from Michaels.

BELL J:   So, the difficulty that you face is that you are seeking special leave in relation to a provision that has been amended to delete the words that, on a view, are material to the point that you raise and you would need to succeed on your nuanced argument not to inevitably require not a remittal back to the Court of Appeal but orders, ultimately, that the matter would have to go back to the District Court, would it not?

MR GAME:   Yes, your Honour.

BELL J:   Damages would be assessed on a different basis.

MR GAME:   They may or may not be, your Honour.  My argument is that they would not.  That depends on how section 202 bites – whether it only bites prospectively or whether it invalidates the entirety of the acts.  We say that it invalidates the entirety of the acts.

NETTLE J:   So, Mr Game, even though what was done was done lawfully up to the point where it became practicable to inform, you say that because it was not then informed there was not then the information given, what was done lawfully becomes eo instanti retrospectively unlawful.

MR GAME:   Yes, your Honour.

NETTLE J:   That is the argument.

MR GAME:   Yes, that is our argument.  But we say that that argument can absorb effectively the decisions in Hawkins and Poidevin v Semaan because that is directed to a completely different question which is about the lawfulness of the acts at the moment at which they were done because at that moment the police officer was not in a position to inform a person and they are two different questions.

BELL J:   Why, in point of principle, would one – accepting that at the point the police entered the premises their conduct was lawful – why, in point of principle, would one assess damages, assuming there is a basis of liability, looking at your argument at its best, but on the basis that the District Court judge did?

MR GAME:   Your Honour, my argument is that the whole thing is provisional.  So, for example, if subsection (2) is never complied with, then all of the acts retrospectively become unlawful.  That is not to say at all that the decisions in Poidevin v Semaan and Hawkins are wrong because, as I have said more than once – and I apologise for that – that that is directed to a different question.

Can I also say this?  One thing is I cannot see your Honours’ reactions to what I am saying which may be a benefit but it is a very strange form of communication.  Anyway, the new section 202 – my argument is that you come up – that is on page 128 ‑ my argument is that it makes no difference, the language of section 202(2)(a), because as soon as it is reasonably practicable to do so picks up present and the exercise during or after – now, during or after are all caught by that.

So, it makes no difference and, in fact, it does away with the awkwardness in subsection (2)(a) and (b) about which are you talking about, is it (a) or (b) when it becomes practicable during the exercise of the power because, conceivably, at the time could be extended to that in (a) or (b), it could become before or at the time after exercising the power really means after engaging in the exercise of the power.

May I say this, your Honours?  This question, I would have to accept, is not without difficulty but it does raise a question of some significance in terms of the validity and legality of acts in this context.  It is important in tort, just as a case like Bhardwaj is important in administrative law.  Although it is a small amount of damages and it is a relatively short invasion of property, it does, in our submission, raise a question of considerable importance.  If you go back to the Court of Appeal’s judgment – and this is really all one has – that I referred to, back at 92 and 93.  All that appears between 76 and 78, in my submission, is a mix‑up about time.  It is a mix‑up about what Poidevin v Semaan and DPP v Hawkins really stand for.  I think that beeper tells me that time is running out but ‑ ‑ ‑

BELL J:   I think that is so.

MR GAME:   Anyway, paragraph 79 – I hope there is no ejector seat – but paragraph 79 says that is all the provision does.  The respondent is forced to fall back on that and say that, effectively, the power is spent which means that there is no obligation – there is no legal effect on the failure to comply with subsection (2) on the respondent’s case.  So, that really is our argument.

BELL J:   I think we have the argument.

MR GAME:   Thank you, your Honours.

BELL J:   Yes, we do not need to hear from you, thank you, Mr Windsor.

In our view, there is no reason to doubt the correctness of the conclusion of the Court of Appeal.  For that reason, special leave is refused.  The application is dismissed with costs.

AT 9.50 AM THE MATTER WAS CONCLUDED