Riley v New South Wales

NEW SOUTH WALES COURT OF APPEAL

CITATION: Riley v State of New South Wales [2000] NSWCA 64 revised - 20/07/2000

FILE NUMBER(S):
40324/99

HEARING DATE(S): 15/03/00

JUDGMENT DATE: 15/03/2000

PARTIES:
Anthony John Riley (By His Next Friend Nola Ann Riley) (Claimant)
State of New South Wales (1st Opponent)
John Henderson (2nd Opponent)
Gregory Shot (3rd Opponent)

JUDGMENT OF: Meagher JA Fitzgerald JA Heydon JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 9617/97

LOWER COURT JUDICIAL OFFICER: Cooper DCJ

COUNSEL:
C. Evatt / M. Fraser (Claimant)
P. Johnson S.C. / V. Hartstein (1st, 2nd & 3rd Opponents)

SOLICITORS:
Friend & Hazard (Claimant)
I.V. Knight - Crown Solicitor (NSW)

CATCHWORDS:

LEGISLATION CITED:

DECISION:
Application for leave to appeal granted. Appeal dismissed with costs

JUDGMENT:

- 9 -

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40324/99
DC 9617/97
MEAGHER JA
FITZGERALD JA
HEYDON JA
WEDNESDAY 15 MARCH 2000

ANTHONY JOHN RILEY (BY HIS NEXT FRIEND NOLA ANN RILEY) v STATE OF NEW SOUTH WALES & 2 ORS

JUDGMENT

FITZGERALD JA: The claimant was a young Aboriginal man,
aged 15 at all material times, and the opponents Henderson and Shot were at all material times police officers. Henderson was a Constable and Shot was a Probationary Constable.
On the night of 11 January 1996, Henderson and Shot were on foot patrol in the Redfern area. After receiving a complaint from security officers at the Redfern Railway Station, Henderson and Shot saw the claimant and another Aboriginal youth in Eveleigh Street at about 8.30pm. The claimant had had prior dealings with police and was known to Henderson.
Later that night at about 11.30pm, Henderson and Shot again saw the claimant in Eveleigh Street. Henderson subsequently arrested the claimant, who was taken to the Redfern Police Station in a caged vehicle. Because he was injured, an ambulance was later called and he was taken to the Prince Alfred Hospital where he was treated. Henderson and Shot then took him to Newtown Police Station.
At the Newtown Police Station, Henderson preferred three charges against the complainant, which were described in the District Court judgment referred to below as:
"(1) Using a prohibited weapon to wit a slingshot under s 5(1)(b) of the Prohibited Weapons Act;
(2) Resisting a member of the Police Force in the execution of his duty under s 546C of the Crimes Act;
(3) Failure to comply with bail undertakings under subs 50(1) of the Bail Act."
The claimant was held in custody until the morning of 12 January 1996, when he appeared at the Bidura Children's Court, where he was remanded until 29 January 1996 and released on bail. On 29 January 1996 the claimant was further remanded to 6 March 1996. On both those dates he was in custody on other matters.
On 6 March 1996, the third charge, failure to comply with bail undertakings, was either withdrawn or dismissed without evidence in the Children's Court.
After hearing evidence from Henderson and Shot, the Children's Court Magistrate pointed out that the description of the sling shot which the claimant was alleged to have used did not satisfy the definition in the schedule to the Prohibited Weapons Act, and the first charge, using a prohibited weapon, was also dismissed.
After argument, the remaining charge, resisting a member of the Police Force in the execution of his duty, was also dismissed by the Children's Court. The material portion of the Magistrate's judgment was as follows:
"On the third occasion which was at 11.35 the officers saw (the claimant) standing at the corner of Eveleigh Lane and Caroline Street. At that time he was not in possession of the sling shot. Up until this point in time neither officer had spoken to (the claimant) and he had not spoken to them.
Constable Henderson and Constable Shot at that point in time commenced to run towards him and (the claimant) seeing the police started to run., He was crash tackled to the roadway. That is agreed to by both police. (the claimant) was informed that he was under arrest. The police attempted to handcuff him and following this he attempted to break the hold of the police.
...
...in view of the relatively minor nature of the offence ... probably the prudent course in this instance was to proceed by way of summons.
... there was no attempt on the third occasion for (the claimant) to run away that in fact the police ran towards him.
... (the claimant) is not a well built young man and is quite small in stature. ...The attempt to handcuff him ... would appear to be the immediate impetus for his attempting to break the police hold. It is my view that he may well have been in a state of confusion at the time given the events that had occurred on the two prior conversations when he had come into contact with the police.
... he suffered some injury ... that injury was sustained at some alter stage in the proceedings when he arrived at Redfern Police Station.
... in view of all the circumstances ..., the police did act excessively in the circumstances, not only because of the option of issuing a summons but by virtue of their own conduct towards this young person on the evening in question and taking into account his age and his build it may well have been that they over-reacted quite understandably in a situation where there was a large group of people surrounding them throwing bottles. ... but I do feel that there was some excessive use of force and for that reason
This charge will ... be dismissed."
The claimant subsequently sued Henderson and Shot and the State of New South Wales in the District Court, claiming damages for alleged unlawful assault, unlawful arrest, false imprisonment and malicious prosecution. That action was dismissed on 8 April 1999.
The claimant has applied for leave to appeal, and the matter was listed for hearing on the basis that, if leave was granted, the appeal would also be heard and determined by the same Court.
The District Court judge rejected the claimant's argument that he was bound to accept the Children's Court findings. His Honour held that "... issue estoppel does not apply and ... the findings of fact of the Magistrate are not binding upon this Court."
The claimant's proposed grounds of appeal are:
"1. His Honour erred in not finding issue estoppel and that he was bound by the findings of fact made by the Magistrate.
2. His Honour erred in making findings of fact contrary to those made by the Magistrate.
3. His Honour erred in not finding that the Police acted excessively in the circumstances and there was some excessive use of force.
4. In view of the facts determined by the Magistrate his Honour erred in not finding a verdict in favour of the (claimant)."
The application for leave to appeal was fully argued as though it were an appeal. The District Court judge held that, although the claimant did not have a sling shot when he was arrested at about 11.35pm, Henderson and Shot had seen him fire a sling shot in Eveleigh Street at about 8.30pm and again at about 11.30pm, when he fired a piece of brick from the sling shot. The piece of brick, which was described as similar to the corner of a brick, about 3 inches long and pyramid shaped, struck the wall of the railway station close to Henderson and Shot, who felt threatened. Henderson considered that the claimant was a danger to the public, and decided to arrest him. After Henderson called for a caged truck by radio, he and Shot searched for the claimant and detained him.
The District Court judge also held that, although the sling shot used by the claimant was not a prohibited weapon for the purpose of the Prohibited Weapons Act, the claimant had committed offences for which Henderson and Shot were entitled to arrest him without a warrant.
There is nothing in the Children's Court judgment which is inconsistent with those conclusions, which were not challenged by the claimant in this Court, or with the District Court judge's further conclusions that the matters known to Henderson and Shot gave them "reasonable and probable cause" to arrest and prosecute the claimant. In this court the claimant did not argue that it was material that Henderson subsequently laid inappropriate charges. Nor was it argued by the claimant that he was falsely imprisoned if he was lawfully arrested.
Different considerations apply to the claimant's action for unlawful assault. The District Court held that Henderson and Shot "... used no more force than was necessary..." The Children's Court had earlier stated that "...there was some excessive use of force ..." The two propositions are inconsistent. The claimant submitted that the earlier finding by the Children's Court was binding upon the District Court by reason of "issue estoppel".
Shot was not a party to the Children's Court proceedings in which the charges were laid by Henderson. The claimant's action cannot succeed against Shot or the State of New South Wales unless it can succeed against Henderson. It is therefore convenient to consider the position initially between the claimant and Henderson, who, technically, were the parties to the Children's Court proceedings. It is unnecessary to consider whether Henderson was a party in the Children's Court in his own right in some representative capacity.
The claimant's case in the Children's court was that Henderson and Shot were not acting in the execution of their duty when he resisted them, not because his arrest was unlawful, but because they were exceeding their authority by the use of excessive force. In this Court the claimant did not dispute that in the Children's Court the burden of proving that he and Shot did not use excessive force was on Henderson. It was unnecessary in this Court to discuss whether the standard of proof on Henderson was proof beyond reasonable doubt.
When the Magistrate's judgment is read in the context of the issues before the Children's Court, the only potentially material issue necessarily decided by the Children's Court was not that Henderson and Shot used excessive force but that Henderson did not prove to the requisite standard that they did not do so.
Other considerations aside, the Children's Court judgment could not give rise to an issue estoppel in favour of the claimant that Henderson and Shot used excessive force because that was a matter which was not "legally indispensable" to that judgment, (see Blair v Curran, (1939) 62 CLR 464, at 532).
Reliance was placed by the complainant upon the judgment in Schneller v Green (NSW Court of Appeal 10/11/97 40582/97 unreported) a judgment of Acting Justice Finnane, which was the subject of an application for leave to appeal to this Court. That application was refused on the basis that an appealable error had not been shown in respect of the judgment of Acting Justice Finnane. In Schneller v Green, Ms Schneller had sought and obtained an apprehended violence order against Mr Green from a Magistrate under s 562 of the Crimes Act. Despite granting the apprehended violence order sought by Ms Schneller, the Magistrate rejected some of her allegations, including her allegation that Mr Green had thrown soil and sewerage over her.
Strictly speaking it was unnecessary for the Magistrate to do more than find that he was not satisfied that the soil and sewerage had been thrown, if it was necessary to make any finding in relation to that matter at all, having regard to his satisfaction that other matters which warranted the granting of the apprehended violence order had been made out.
Nonetheless in a subsequent proceeding between Ms Schneller and Mr Green, Acting Justice Finnane held that the Magistrate had judicially determined that Mr Green had not thrown soil and sewerage over Ms Schneller and that there was an issue estoppel in respect of that matter in any proceedings between them. It is unnecessary on this occasion to consider the correctness of that judgment or to comment further upon the refusal of leave by two judges of this court on the basis of which I have indicated.
On a quick perusal of the transcript of the hearing before of the for leave to appeal in Schneller v Green, little if any reference was made to the necessity that a finding by the Magistrate has been a finding which was necessary, or in the words of Blair v Curran, legally indispensable, to the Magistrate's judgment. Certainly nothing was said by either Acting Justice Finnane or by this Court, which casts doubt on anything which was said in Blair v Curran, which has been frequently referred to with approval, including in the judgment of this court in Cachia v Isaacs, (1985) 3 NSWLR 366, and more recently by the High Court in Rogers v The Queen, (1994) 181CLR 251.
It follows that in my opinion the District Court was correct in holding that it was not bound by "findings" made in the Children's Court and, while the application for leave to appeal should be granted, the appeal should be dismissed with costs.
MEAGHER JA: I agree with Fitzgerald JA.
HEYDON JA: I agree with Fitzgerald JA.
(APPLICATION FOR COSTS)
MEAGHER JA : The order of the court is to dismiss the application, with costs.
oOo

LAST UPDATED: 21/07/2000

[2000] NSWCA 64

15 March 2000

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Civil Procedure

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