State of New South Wales v Bouffler

[2017] NSWCA 185

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

State of New South Wales v Bouffler [2017] NSWCA 185

Hearing dates:

20 February 2017

Decision date:

27 July 2017

Before:

Beazley ACJ;
Ward JA;
Gleeson JA

Decision:

(1)   Grant leave to appeal and cross-appeal;

 

(2)   Appeal allowed;

 

(3)   Set aside the orders of the trial judge;

 

(4)   Order judgment for the State of New South Wales;

 

(5)   Cross-appeal dismissed;

 (6)   The respondent to pay the costs of the State of New South Wales at first instance and 70 per cent of its costs on the appeal.

Catchwords:

TORTS – trespass to land – whether entry of police officers authorised by law – six police officers entered house occupied by the respondent without his consent – eight officers entered respondent’s property without consent – officers relied on ss 9 and 10 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – whether officers had requisite state of mind to satisfy ss 9 and 10 – whether officers must each individually have state of mind – whether officers can enter to assist other officers engaged in an arrest – circumstances in which state of mind can be inferred

 

STATUTORY CONSTRUCTION – Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – whether each officer must individually have state of mind required under ss 9, 10 and 99 – whether context and purpose indicates that meaning is to be given that is different from or qualifies plain meaning – meaning of “reasonable grounds”

 

STATUTORY CONSTRUCTION – Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – relationship between ss 10 and 99 – whether entry to a premises pursuant to LEPRA, s 10 requires a lawful arrest under s 99 – whether s 10 operates as a derivative of s 99

STATUTORY CONSTRUCTION – Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 9 – meaning of “breach of the peace” – whether breach of the peace requires actual or threatened violence – whether threat of harm must be to third person

Legislation Cited:

Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 7, 14
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 4, 9, 10, 99, 201, 230, 231
Law Reform (Vicarious Liability) Act 1983 (NSW), s 8(1)
Police Act 1990 (NSW), s 6, 201

Cases Cited:

Adams v Kennedy (2000) 49 NSWLR 78; [2000] NSWCA 152
Alderson v Booth (1969) 2 QB 216
Attorney General of New South Wales v Perpetual Trustee Co (Ltd) (1952) 85 CLR 237
Australian Federation of Islamic Councils Inc v Farrell [2016] NSWCA 256
Bhattacharya v State of New South Wales [2003] NSWSC 261
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Bushby v Dixon Holmes du Pont Pty Ltd [2012] NSWCA 90
Bulsey v State of Queensland [2015] QCA 187
Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69
Christie v Leachinsky [1947] AC 573
Collier v Lancer (No 2) [2013] NSWCA 186
Enever v The King (1906) 3 CLR 969
George v Rockett (1990) 170 CLR 104
Halliday v Nevill (1984) 155 CLR 1
Hanninfield v Chief Constable [2013] 1 WLR 3632
Hayes v Chief Constable [2012] 1 WLR 517
Holloway v McFeeters (1956) 94 CLR 470; [1956] HCA 25
HP Mercantile Pty Ltd v Clements [2015] NSWCA 212
Hyder v Commonwealth (2012) 217 A Crim R 571; [2012] NSWCA 336
Kuru v State of New South Wales (2008) 236 CLR 1; [2008] HCA 26
Lee v New South Wales Crime Commission [2012] NSWCA 262
Li v Chief of Army (2013) 210 FCR 299; [2013] FCAFC 20
Li v Chief of Army (2013) 250 CLR 328; [2013] HCA 49
Luxton v Vines (1952) 85 CLR 352; [1952] HCA 19
New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 37
Nilsson v McDonald (2009) 19 Tas R 173
O’Hara v Chief Constable of Royal Ulster Constabulary [1997] AC 286
Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales v State of New South Wales [2014] NSWCA 116
R (Laporte) v Chief Constable of Gloucestershire Constabulary [2006] UKHL 55; (2007) 2 AC 105
R v Chief Constable of the Devon and Cornwall Constabulary, ex parte Central Electricity Generating Board [1982] QB 458\
R v Howell (1982) QB 416
R v Van Bao Nguyen (2002) 139 NTR 15; [2002] NTSC 38
Rickard v State of New South Wales [2010] NSWSC 151
Rodi v Gelonesi [2012] NSWCA 424
State of New South Wales Landini [2010] NSWCA 157
State of New South Wales v McCarthy (2015) 251 A Crim R 445; [2015] NSWCA 153
State of New South Wales v McMaster (2015) 91 NSWLR 666; [2015] NSWCA 228
State of New South Wales v Robinson [2016] NSWCA 334
State of New South Wales v Tyszyk [2008] NSWCA 107
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418
The Entrance Plaza Pty Ltd v Davids [2016] NSWCA 362
Tomarchio v Pocock [2002] WASCA 156
Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118,
XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448

Texts Cited:

Clayton and Tomlinson, Civil Actions Against the Police (3rd ed, 2005, Sweet & Maxwell)

Category:

Principal judgment

Parties:

State of New South Wales (Applicant)
Stephen James Bouffler (Respondent)

Representation:

Counsel:
J E Maconachie QC; G Bateman
D Toomey SC; D Woodbury

  Solicitors:
Crown Solicitor’s Office (Applicant)
Toby Tancred Solicitor (Respondent)

File Number(s):

CA 2016/188633

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Civil

Date of Decision:

23 May 2016

Before:

C O’Connor QC ADCJ

File Number(s):

2014/158752

Headnote

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

On 21 October 2013, the respondent was arrested by officers of the New South Wales Police Force who entered his house following a two hour standoff during which the respondent refused to come out. At the time, the respondent’s two young children were inside with him. Earlier that day, the respondent had attended at his former partner’s place of employment and engaged in harassing and intimidating conduct in breach of an Apprehended Domestic Violence Order (ADVO).

A total of 17 police officers attended at the respondent’s premises, nine of whom entered his house.

The respondent brought proceedings against the State, pursuant to the Law Reform (Vicarious Liability) Act 1983 (NSW), alleging that he had been unlawfully arrested, and wrongly imprisoned and that the police officers had trespassed upon his property and his person. The case was conducted at trial on the basis that the conduct of the officers was governed by the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA).

The trial judge held that all officers who entered the house were “arresting officers” and that six of those officers did not hold the state of mind required by LEPRA, s 99 in effecting the arrest. However, as his Honour found that the respondent had been lawfully arrested by three officers who had entered the house, he held that the respondent was not entitled to damages for wrongful imprisonment. His Honour found that two of the officers who had entered the house committed an assault. His Honour also held that the six officers and seven of the eight officers positioned on the property outside the house had trespassed upon the respondent’s property.

His Honour awarded the respondent $5,000 for each of the trespass to property and the trespass to the person. His Honour also awarded $2,500 by way of aggravated and exemplary damages in respect of both torts.

The State sought leave to appeal and the respondent sought leave to cross-appeal. Leave was granted in both respects.

The parties raised numerous issues on the appeal and cross-appeal. In essence the issues raised challenged his Honour’s findings that the arrest was lawful, that the six officers who entered the house were “arresting officers”, that the police had trespassed upon the respondent’s property and that the respondent had been assaulted. These issues raised the proper construction of LEPRA ss 9 and 10 and s 99, in its form as at the date of arrest. In particular, central to the State’s argument in respect of the six officers who entered the house was that they were not “arresting officers” but were there to assist other officers engaged in the arrest of the respondent, and that their entry into the house was permitted by the legislation. The same argument was raised in respect of the officers on the perimeter of the property.

The State also challenged the award of aggravated and exemplary damages.

Held:

(i)   On their proper construction, ss 9, 10 and 99 require that each individual officer who exercises a function under those sub-sections have the state of mind stated in those sub-sections. [47], [63]

Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales v State of New South Wales [2014] NSWCA 116; State of New South Wales v McCarthy (2015) 251 A Crim R 445; [2015] NSWCA 153; Bulsey v Queensland [2015] QCA 187; Halliday v Nevill (1984) 155 CLR 1; Kuru v State of New South Wales (2008) 236 CLR 1; [2008] HCA 26

(ii)   When a statutory provision requires that a state of mind be based or held on reasonable grounds, the question whether there are reasonable grounds is to be determined objectively at the time when the relevant power or function is exercised. [87]

George v Rockett (1990) 170 CLR 104; Hyder v Commonwealth of Australia (2012) 217 A Crim R 571; [2012] NSWCA 336; O’Hara v Chief Constable of Royal Ulster Constabulary (1997) AC 286

(iii)   There were reasonable grounds for the challenged officers’ suspicion that (i) the respondent had breached the ADVO by attending at his former partner’s place of employment, and (ii) it was necessary to arrest the respondent to prevent the repetition of the offence, being a further breach of the ADVO. [94], [96], [106]-[107]

(iv) The trial judge did not err in his finding that the arrest of the respondent by three of the officers was lawful. All three officers satisfied the requirements of s 99(2), as well as s 99(3). [94], [106]-[107], [120], [122], [124], [132]

(v)   The trial judge was correct in finding that it was inappropriate to deal with the matter by way of a Court Attendance Notice. [137]

(vi) The notion of a “breach of the peace” is multifaceted and includes a wide range of actions and threatened actions that interfere with the ordinary operation of civil society. A threat or realistic apprehension of self-harm could constitute a breach of the peace. The provisions of LEPRA, ss 9(1)(a) and 9(1)(b) are not limited to harm to a third person. [164], [167]

State of New South Wales v Tyszyk [2008] NSWCA 107 applied.

R v Howell (1982) QB 416; Li v Chief of Army (2013) 210 FCR 299; [2013] FCAFC 20; Li v Chief of Army (2013) 250 CLR 328; [2013] HCA 49; R (Laporte) v Chief Constable of Gloucestershire Constabulary (2007) 2 AC 105; [2006] UKHL 55; R v Chief Constable of the Devon and Cornwall Constabulary, ex parte Central Electricity Generating Board [1982] QB 458; R v Van Bao Nguyen (2002) 139 NTR 15; [2002] NTSC 38; State of New South Wales v McMaster (2015) 91 NSWLR 666; [2015] NSWCA 228 considered.

(vii) The trial judge did not err in finding that Superintendent Driver’s entry into the house was authorised by LEPRA, s 9(1). There was a reasonable basis for his belief that a breach of the peace was likely to be committed. There was also evidence that he determined it was necessary to enter the house immediately to prevent significant personal injury. [169]-[170]

(vii)   “Arrest” in the context of arrest without a warrant retains the common law hallmarks of bringing a person into the custody of the law and, to be effective requires, that the person to be arrested submit to the arrest. [197]-[198]

Christie v Leachinsky [1947] AC 573; Alderson v Booth (1969) 2 QB 216

Richard Clayton and Hugh Tomlinson, Civil Actions Against the Police (3rd ed, 2005, Sweet & Maxwell)

(ix) The trial judge erred in finding that the six officers who entered the respondent’s house entered with the purpose of arresting the respondent. As they did not enter to arrest the respondent, they did not enter pursuant to LEPRA, s 10. [206]-[210], [227]

(x) Entry to a premises pursuant to LEPRA, s 10 does not require a lawful arrest for the purposes of ss 99(2) or 99(3). [224]

(xi) Whether or not a person has a state of mind involves a finding of fact. Facts may be proved directly or by drawing inferences from proved facts. In this case, there was sufficient evidence upon which to infer that each officer who entered the house had the relevant state of mind for the purposes of LEPRA, s 9. [231]-[232], [238]-[243]

Luxton v Vines (1952) 85 CLR 352; [1952] HCA 19; Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1; Holloway v McFeeters (1956) 94 CLR 470; [1956] HCA 25

(xii) The trial judge erred in finding an assault on the respondent. The force used by the officers in question was reasonably necessary within the meaning of LEPRA, s 230. [253]-[255]

(xiii) There was sufficient evidence upon which to infer that the officers who entered the property but remained on the perimeter had the relevant state of mind under LEPRA, s 9. [279]-[280]

(xiv)   Even if the police officers had committed trespass to property or trespass to the person, there was no basis for the trial judge’s award of aggravated or exemplary damages. [295]-[297]

Judgment

1. THE COURT: On 21 October 2013, the respondent was arrested after officers of the New South Wales Police Force had forcefully entered his home. In the two hours prior to the arrest, police officers had been negotiating with the respondent to come out of the house for the purpose of being arrested for breaching an Apprehended Domestic Violence Order (ADVO) earlier that day, but he refused to do so. The person in need of protection under the ADVO was EB, the respondent’s former partner and mother of their two children. The breach of the ADVO was alleged to have occurred at EB’s place of employment.

2. Throughout the time that the police were at the respondent’s premises, the respondent had drawn the blinds and “barricaded” himself inside the house. The respondent’s two young children were with him inside the home. During the course of the incident, the respondent was described as “shouting and ranting”, acting “irrationally” and “not being in a capable state of mind of caring for the children”.

3. The respondent brought proceedings in the District Court against the State of New South Wales (the State) for trespass to his person and his property. The State is vicariously liable for tortious conduct of police officers pursuant to the Law Reform (Vicarious Liability) Act 1983 (NSW), s 8(1). The case was conducted at trial on the basis that the conduct of the police officers was governed by the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA). The State placed no reliance on any common law right of entry.

4. The trial judge found, at [329], that the respondent had been lawfully arrested by three police officers, Constable Tolhurst, Inspector Atkins and Superintendent Driver, each of whom had satisfied the requirements of LEPRA, ss 10 and 99. His Honour further held that Superintendent Driver had lawfully entered the premises pursuant to LEPRA, s 9.

5. His Honour held that another six officers (the other six officers) who had entered the respondent’s home had done so for the purpose of arrest but had acted unlawfully, as none of those officers had the state of mind required by LEPRA, s 99(3). On his Honour’s findings, those officers had trespassed upon the respondent’s property. His Honour also held, at [345], that two of those officers, Senior Constable Webster and Constable Simpson, had committed a trespass to the person, when the officers became involved in a struggle or wrestle with the respondent.

6. Another eight officers were also on the respondent’s premises, either in the garden or around the side or back of the house, essentially securing the perimeter. One of the officers, Detective Senior Constable Justine Priest, was at the front door for a period trying to negotiate with the respondent. None of these officers entered the house, nor did they play any active role in the arrest of the respondent.

7. His Honour held that, other than Constable Bennett, who had accompanied Constable Tolhurst when he went to EB’s place of employment, the entry of these officers on the respondent’s property was unlawful as none of them had formed a belief on reasonable grounds that a breach of the peace was being or was likely to be committed: see LEPRA, s 9; nor were they on the property to arrest the respondent: see LEPRA, s 10.

8. His Honour awarded the respondent $5,000 for trespass to property and $2,500 by way of “aggravated and/or exemplary damages” in respect of that trespass. His Honour further awarded the respondent damages in the sum of $5,000 for “trespass to the person”, together with “aggravated and exemplary damages” in respect of the trespass to the person, also in the sum of $2,500.

9. Although his Honour found that a number of officers “participated unlawfully as arresting officers”, he did not award damages for false imprisonment in light of the finding that Constable Tolhurst, Inspector Atkins and Superintendent Driver had lawfully arrested the respondent.

10. The State sought leave to appeal from his Honour’s orders. Leave is required as the amount in issue by way of damages does not exceed the minimum statutory threshold of $100,000 for an appeal as of right: Supreme Court Act 1970 (NSW), s 101(2)(r). The respondent opposed the grant of leave but, in the event that leave were granted, sought leave to cross-appeal. The summons for leave to appeal and cross-appeal were heard concurrently with the appeal and the cross-appeal.

11. Leave to appeal will only be granted where there are substantial reasons to allow an appellate review: Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69; Rodi v Gelonesi [2012] NSWCA 424 at [24]; Collier v Lancer (No 2) [2013] NSWCA 186 at [7]. In Lee v New South Wales Crime Commission [2012] NSWCA 262, Bathurst CJ (Macfarlan and Barrett JJA agreeing) said, at [12], that in the usual case:

“… it is only appropriate to grant leave concerning matters that involve issues of principle, questions of general public importance or where it is reasonably clear there has been an injustice in the sense of going beyond it being reasonably arguable that the primary judge was in error: Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69; Zelden v Sewell [2011] NSWCA 56 at [22]; Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; GKD v Director of Department of Family & Community Service [2012] NSWCA 219 at [10]; Be Financial Pty Ltd v Das [2012] NSWCA 164 at [32]-[34].”

12. The quantum of damages awarded is also relevant to the question whether the Court will grant leave, the Court being disinclined to do so where the amount at issue is significantly below the statutory threshold: see Bushby v Dixon Holmes du Pont Pty Ltd [2012] NSWCA 90; The Entrance Plaza Pty Ltd v Davids [2016] NSWCA 362; Australian Federation of Islamic Councils Inc v Farrell [2016] NSWCA 256; HP Mercantile Pty Ltd v Clements [2015] NSWCA 212. Where there is no question of principle and the amount at issue is small, leave to appeal will usually be refused: Rodi v Gelonesi at [25].

13. The State submitted that leave to appeal should be granted. It contended that the conduct of the police officers on this occasion was lawful and that, notwithstanding the small amount of damages awarded, the question of the lawfulness of the conduct of police officers was a matter of public interest. The State, in support of the grant of leave, tendered a newspaper article that referred to the extent of domestic violence in the local area. The article was said to be admissible pursuant to the Evidence Act 1995 (NSW), s 144. The Court has determined that the article was not admissible. It neither proves, nor could it prove, whether or not the statutory requirements of LEPRA were satisfied in respect of the arrest of the respondent and hence was irrelevant to any issue in the proceedings.

12. The respondent pointed out that LEPRA, s 99, in its form which governed the conduct of the police at the time of the incident, has been amended and so far as was known, there were no pending cases relating to the application of s 99 in the form it was at the time of the respondent’s arrest. He contended, therefore, that there was no ongoing question of public interest involved. He submitted that this Court in its recent decision of State of New South Wales v Robinson [2016] NSWCA 334 had considered s 99 in its form prior to the recent amendments so that no question arose for determination. The respondent also relied upon the small amount of damages involved as pointing against the grant of leave.

13. The Court is of the opinion that the matter raises important questions of public interest in relation to the lawfulness of the conduct of police officers, who, whilst not present to arrest, attend a location to support those officers engaged in the arrest. State of New South Wales v Robinson was not directly concerned with the point raised in this appeal. That case was concerned with the meaning of “necessary” in s 99(3), as opposed to the state of mind required under the section. There is no authority which has considered the state of mind required on the proper construction of s 99(3) in the form it was at the time of the incident subject of the proceedings. More particularly, the proper application of LEPRA, ss 9 and 10 to the conduct of police officers is of continuing importance. In addition, for reasons which we explain, his Honour’s award of aggravated and exemplary damages was without any proper foundation.

14. Accordingly, leave to appeal should be granted.

15. Given that the issues on the cross-appeal are intertwined with the appeal, leave to cross-appeal should also be granted. The reasons which follow relate to the determination of the appeal and the cross-appeal.

The appeal

18. The State raised 10 grounds, which included a number of sub-grounds in its notice of appeal. The respondent raised seven grounds in its notice of cross-appeal. (It should be noted that due to a typographical error, two separate grounds were numbered as ground 2.)

19. As the issues raised on the appeal and cross-appeal intersect in certain respects, it is convenient to deal with the appeal and cross-appeal together and by reference to the issues raised, rather than by a seriatim consideration of the grounds of appeal and cross-appeal. The issues are considered in the order in which their determination most logically affords the resolution of the appeal and cross-appeal.

20. On the appeal, as was the position at trial, the State did not rely on any common law point of entry.

Issues raised by the grounds of appeal and cross-appeal

21. The combined issues raised by the grounds of appeal and cross-appeal were, therefore, as follows:

1. Whether the trial judge misconstrued or misapplied LEPRA, ss 9, 10 and 99: ground 1 of the appeal.

2. Whether the trial judge erred in finding that the respondent had contravened the ADVO: ground 2 of the cross-appeal (where secondly appearing).

3. Whether the trial judge erred in finding that Constables Tolhurst and Bennett and Inspector Atkins correctly concluded that the respondent had contravened the ADVO: ground 1 of the cross-appeal.

4. Whether the trial judge erred in finding, implicitly, that Constables Tolhurst and Bennett and Inspector Atkins’ suspicions that the respondent had contravened the ADVO were held on reasonable grounds: ground 2 of the cross-appeal (where first appearing).

5. Whether the trial judge erred in finding that Constable Tolhurst’s suspicion that the arrest of the respondent was necessary to prevent the repetition of a breach of the ADVO was held on reasonable grounds: ground 3 of the cross-appeal.

6. Whether the trial judge erred in finding that the arrest was lawful: ground 5 of the cross-appeal.

7. Whether the trial judge erred in finding that it was “inappropriate” to deal with the matter by way of a Court Attendance Notice: ground 4 of the cross-appeal.

8. Whether the trial judge erred in finding that Superintendent Driver was justified in entering the respondent’s property pursuant to LEPRA, s 9: ground 6 of the cross-appeal.

9. As to each of the other six officers who entered the house:

1. Whether they purported to arrest the respondent under LEPRA, s 99: grounds 4(a) and (c) of the appeal;

2. If so, whether each officer failed to comply with LEPRA, s 99(3) such that they unlawfully arrested the respondent: grounds 4(d) and (e) of the appeal;

3. If so, whether each officer had unlawfully arrested the respondent in circumstances where the respondent “retained no right or interest in his freedom to go at large”: ground 7 of the appeal;

4. If there had been an unlawful arrest, whether each officer was liable for the tort of unlawful arrest: ground 5 (in part) of the appeal; or

5. Whether the officers acted lawfully in response to the direction of senior officers to assist with the arrest: ground 6 (in part) of the appeal.

10. Whether the other six officers who entered the house acted in purported exercise of the power of entry under LEPRA, s 10 or whether they committed a trespass in entering upon the land: grounds 4(b) and 5 (in part) of the appeal. This ground raised the sub-issue of whether the officers acted lawfully in response to the direction of senior officers to enter the house: ground 6 (in part) of the appeal.

11. Whether the trial judge erred in finding that Senior Constable Webster and Constable Simpson assaulted the respondent: grounds 2 and 3 of the appeal.

12. Whether the officers positioned outside the premises committed a trespass upon the respondent’s property: ground 8(c) of the appeal. This ground raised the following sub-issues:

1. Whether those officers were reliant on LEPRA, ss 9 and 10 to justify entry upon the property: ground 8(a) of the appeal;

2. Whether those officers had the relevant state of mind for the purpose of those sections: ground 8(b) of the appeal;

3. Whether the entry of those officers on the respondent’s property was justified by orders given by another police officer to do so: ground 9 of the appeal.

13. Whether his Honour erred in awarding aggravated and exemplary damages: ground 10 of the appeal.

22. After identifying the relevant legislation, it will be appropriate to focus first on the proper construction of LEPRA, ss 9, 10 and 99, and upon the factual challenges to the trial judge’s findings in relation to the breach of the ADVO, as the resolution of the other issues will depend to greater or lesser degree on the determination of those challenges. Before doing so, however, it is necessary to determine whether the case as argued on the appeal was run at first instance and, in particular, whether any question had been raised at trial regarding whether a police officer who provided assistance to an officer who effected an arrest was entitled to enter premises other than pursuant to ss 9 or 10.

What case was run at trial?

23. The respondent point to the State’s pleaded defence that each of the officers who entered upon the respondent’s property did so pursuant to the provisions of LEPRA, ss 9 and 10. The respondent acknowledged, but complained, that the only time that the State argued at trial that the police officers were present on the property to assist the officer or officers who arrested the respondent was in the course of the State’s closing address, where the submission was advanced that the officers who entered the home “were not the arresting officers; they were assisting in the arrest which had already been initiated”. He submitted that the State, on the appeal, ought to be confined to the case run at trial: see generally Suttor v Gundowda Pty Ltd (1950) 81 CLR 418, although the matter had been raised in the closing address, this did not mean that it had been “in issue” at the trial.

24. The State submitted that the question whether the officers who entered the house were providing assistance to Constable Tolhurst, Inspector Atkins and Superintendent Driver, had been in issue in the court below and had been ruled on, albeit rejected by the trial judge: see at [187]. It is also relevant to record here that the State submitted that when Constable Tolhurst, Inspector Atkins and Superintendent Driver formed a state of mind which engaged s 99 and/or ss 9 and 10, that state of mind could be imputed to the police officers who were assisting.

25. The State, in its argument on the appeal, also relied upon the Police Act 1990 (NSW), s 6 and LEPRA, s 230. The State acknowledged that these provisions had not been pleaded, nor had they been raised in argument below, but argued that they were relied upon in support of the State’s construction of ss 9 and 10 and not an independent argument.

26. The Court is of the opinion that the case argued on the appeal was at least one of the ways in which the matter was conducted at first instance. That case, in essence, was that the police officers, other than Constable Tolhurst, Inspector Atkins and Superintendent Driver, who were on the property and who entered the house, were not present to arrest the respondent but had acted lawfully in response to directions and/or for the purposes of assisting Constable Tolhurst, Inspector Atkins and Superintendent Driver.

Legislation

Police Act 1990

27. The Police Act provided, as at the date of the respondent’s arrest, relevantly:

“6   Mission and functions of NSW Police Force

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

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

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

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

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

(3)   In this section:

police services includes:

(a)   services by way of prevention and detection of crime, and

(b)   the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way, and

(c)   the provision of essential services in emergencies, and

(d)   any other service prescribed by the regulations.

…

201   Neglect of duty etc

A police officer who neglects or refuses to obey any lawful order or carry out any lawful duty as a police officer is guilty of an offence.”

LEPRA

28. The right of a police officer to enter premises to arrest a person is governed by LEPRA. The relevant provisions as at the date of the respondent’s arrest were as follows:

“4   Relationship to common law and other matters

(1)   Unless this Act otherwise provides expressly or by implication, this Act does not limit:

(a)   the functions, obligations and liabilities that a police officer has as a constable at common law, or

(b)   the functions that a police officer may lawfully exercise, whether under an Act or any other law as an individual (otherwise than as a police officer) including, for example, powers for protecting property.

(2)   Without limiting subsection (1) and subject to section 9, nothing in this Act affects the powers conferred by the common law on police officers to deal with breaches of the peace.

…

9   Power to enter in emergencies

(1)   A police officer may enter premises if the police officer believes on reasonable grounds that:

(a)   a breach of the peace is being or is likely to be committed and it is necessary to enter the premises immediately to end or prevent the breach of peace, or

(b)   a person has suffered significant physical injury or there is imminent danger of significant physical injury to a person and it is necessary to enter the premises immediately to prevent further significant physical injury or significant physical injury to a person.

(2)   A police officer who enters premises under this section is to remain on the premises only as long as is reasonably necessary in the circumstances.

10   Power to enter to arrest or detain someone or execute warrant

(1)   A police officer may enter and stay for a reasonable time on premises to arrest a person, or detain a person under an Act, or arrest a person named in a warrant.

(2)   However, the police officer may enter a dwelling to arrest or detain a person only if the police officer believes on reasonable grounds that the person to be arrested or detained is in the dwelling.

…

(5)   In this section:

arrest of a person named in a warrant includes apprehend, take into custody, detain, and remove to another place for examination or treatment.

…

99   Power of police officers to arrest without warrant

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

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

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

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

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

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

…

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

201   Supplying police officer’s details and giving warnings

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

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

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

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

…

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

(a)   a power to search or arrest a person …

(4)   If 2 or more police officers are exercising a power to which this section applies, only one officer present is required to comply with this section.

…

230   Use of force generally by police officers

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

231   Use of force in making an arrest

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

29. The offence allegedly committed by the respondent on 21 October 2013 was a breach of an ADVO: see the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (Domestic and Personal Violence Act), s 14. The relevant provisions of that Act for the purposes of this matter are as follows:

“7   Meaning of ‘intimidation’

(1)   For the purposes of this Act, intimidation of a person means:

(a)   conduct amounting to harassment or molestation of the person, or

(b)   an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for his or her safety, or

(c)   any conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has a domestic relationship, or of violence or damage to any person or property.

(2)   For the purpose of determining whether a person’s conduct amounts to intimidation, a court may have regard to any pattern of violence (especially violence constituting a domestic violence offence) in the person’s behaviour.

8   Meaning of ‘stalking’

(1)   In this Act, stalking includes the following of a person about or the watching or frequenting of the vicinity of, or an approach to, a person’s place of residence, business or work or any place that a person frequents for the purposes of any social or leisure activity.

(2)   For the purpose of determining whether a person’s conduct amounts to stalking, a court may have regard to any pattern of violence (especially violence constituting a domestic violence offence) in the person’s behaviour.

…

14   Offence of contravening apprehended violence order

(1)   A person who knowingly contravenes a prohibition or restriction specified in an apprehended violence order made against the person is guilty of an offence.

…”

First issue

Whether the trial judge misconstrued or misapplied LEPRA, ss 9, 10 and 99: ground 1 of the appeal

30. The provisions of LEPRA, ss 9(1), 10(2), 99(2) and (3) require that a police officer exercising a function to which the respective section refers must have the particular state of mind specified in the subsection, being a belief or suspicion based on “reasonable grounds” as to the matter referred to in the subsection. It should be noted that s 10(1), which authorises the entry of a police officer onto premises “to arrest” a person and s 99(1)(b), which authorises arrest without a warrant where a person has just committed an offence, do not require that a police officer have a particular state of mind in relation to the entry onto the premises or the arrest.

31. A central issue on the appeal was whether, on their proper construction, ss 9(1), 99(2) and 99(3) required each police officer, exercising a function to which those sections relate, to have the state of mind prescribed in the relevant subsection. There was also an issue as to the meaning and application of the phrase “may enter” in s 10(1). There was also a further issue as to the relationship of s 10(1) with s 99. That issue is dealt with as part of the tenth issue. There was no issue in respect of s 10(2), the respondent having conceded at trial that all police officers who entered the house had the relevant state of mind for the purposes of that section, namely, a belief on reasonable grounds that the respondent was inside.

State’s submissions

32. The State submitted that, on their proper construction, there was nothing in the provisions of LEPRA, ss 9 and 10 which prohibited police officers being on the respondent’s premises for the purpose of assisting those officers who were there to arrest the respondent. This submission had two aspects. First, the State contended that those officers who were present in an assisting capacity did not need to have the state of mind prescribed in any of the sections. Secondly, the State submitted the phrase “may enter” in ss 9(1) and 10(1) did not constrain entry onto the premises of those officers present in an assisting capacity.

33. The State submitted that the proper construction and/or application of ss 9 and 10 was to be undertaken against the background of the provisions of the Police Act. The State submitted that given the functions entrusted to the New South Wales Police Force, it was necessary that operational decisions be made hierarchically, having regard to the exigencies of any situation which arises: see Hayes v Chief Constable [2012] 1 WLR 517 at [40]; Hanninfield v Chief Constable [2013] 1 WLR 3632.

34. In support of its submission, the State referred to the Police Act, s 6, which specified the mission and functions of the New South Wales Police Force. Although the provisions of s 6 have been described as “aspirational”: see Rickard v State of New South Wales [2010] NSWSC 151 at [49], and as not giving rise to a statutory duty, s 6 nonetheless, on the State’s submission, provided “a powerful basis for understanding the role and function of police in New South Wales”. The framework established by the Act was said to be made effective by the provisions of the Police Act, s 201, which provided that neglect, refusal or disobedience of any lawful order or duty by a police officer constituted an offence.

35. The State further submitted that that it was apparent from LEPRA, s 230 that LEPRA recognised that a police officer could be assisted in the execution of any particular task that was being undertaken in the execution of the police officer’s functions and duties.

32. As we have indicated, the State accepted that it had not pleaded, nor had it relied upon at trial, the Police Act, s 6 and LEPRA, s 230, to establish that the conduct of the police officers in entering the house was lawful. However, it argued that those provisions supported its submission that on their proper construction, ss 9, 10 empowered the six officers who entered the house to enter in order to assist those engaged in or tasked with the arrest of the respondent.

33. The State submitted that “may enter” in s 10(1) does not mean “may enter alone and unassisted”. This submission involved a constructions of s 10 having regard to its context and purpose so as to give it a much wider application than its text. According to the State, in the context of a hierarchical and disciplined force, someone who has formed the requisite state of mind and is empowered by ss 9 or 10 is entitled to enter with assistance.

34. In this regard, the State submitted that the words “may enter” in ss 9 and 10 should be construed purposively to extend to subordinates, assistants and amanuenses of whatever kind, provided that the purpose for which they were directed to enter was consistent with those provisions. In other words, there was no prohibition on entry onto premises for the purpose of assisting another officer. Thus, by way of example, on this construction, an officer who entered premises to assist an officer who had entered to arrest a person was not personally required to have the belief or suspicion required in s 99(3).

35. This submission required the State to disavow the construction given to ss 9(1)(a) and 10(2) in State of New South Wales v McCarthy (2015) 251 A Crim R 445; [2015] NSWCA 153, at [25], that each police officer must have the state of mind prescribed in those sections. According to the State, the Court was not bound or compelled to follow State of New South Wales v McCarthy in circumstances where the construction of ss 9(1) and 10(2) had been the subject of a concession by the State. The State also sought to distinguish State of New South Wales v McCarthy on the basis that it was not concerned with officers acting in an assisting role.

36. The State submitted, therefore, that in this case the effect of the statutory provisions that govern the conduct of police officers, in combination with the hierarchical and disciplined constitution of the police force, was that all police officers, whether they entered inside the house or remained outside on the perimeter of the property, acted lawfully in response to a direction given by another police officer.

37. The State submitted, alternatively, that there was to be imputed to each of the officers who were on the premises or who entered the house under the direction and control of Superintendent Driver and others, the state of mind of those officers under whose direction they acted. This argument is considered below as part of the tenth issue.

38. The State advanced the same submission in respect of the construction of ss 99(2) and (3).

Respondent’s submissions

43. The respondent submitted that, as has long been established, each officer, entrusted with specific powers and specific duties, must exercise those powers and execute those duties “as a matter of independent responsibility”: see Attorney General of New South Wales v Perpetual Trustee Co (Ltd) (1952) 85 CLR 237 at 252. See also State of New South Wales Landini [2010] NSWCA 157; Enever v The King (1906) 3 CLR 969. The respondent submitted that the concession made by the State in State of New South Wales v McCarthy was thus properly made and accorded with principle.

44. The respondent accordingly took issue with the State’s submission that it was sufficient for the purposes of the legislation for a police officer to be acting under the orders of a superior officer or for an officer to assist another police officer, unless the first police officer also had the relevant state of mind: see Bulsey v State of Queensland [2015] QCA 187.

45. The respondent submitted that the effect of the State’s approach to the lawfulness of the conduct of the police officers, other than Constable Tolhurst, Inspector Atkins and Superintendent Driver, was to require the recognition of a “derivative right” to exercise a function and that was not in accordance with authority or principle. The respondent argued, therefore, that the justification for entry had to be established by proof of the state of mind of each individual officer who entered upon the respondent’s premises or into his house.

Principles of statutory construction

46. The principles of statutory construction, stated by the High Court in recent years, were comprehensively summarised by Bathurst CJ in Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales v State of New South Wales [2014] NSWCA 116, at [45], as follows:

“In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27, the plurality emphasised (at [47]) that construction must begin with a consideration of the text itself and while the language employed is the surest guide to legislative intention, the meaning of the text may require consideration of the context which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy …”

47. In our opinion, the words and syntax of ss 9(1), 99(2) and 99(3) make it plain that each individual officer who exercises the function must have the requisite state of mind. The use of the indefinite article in the first phrase of each provision, viz: “a police officer may”, or “a police officer must not … unless”, combined with the use of the definite article in the second phrase, viz: “the police officer”, makes this clear.

48. In this regard, we consider the statement of Meagher JA, Gleeson JA and Adamson J agreeing, in State of New South Wales v McCarthy, at [25], relating to ss 9(1) and 10(2), that the requirements of each provision “must be satisfied in relation to each officer who relies upon the power as having authorised his entry” to be correct. It is apparent from Meagher JA’s construction of the provisions that this conclusion was arrived at independently of the concession made by the State in that case.

49. The same conclusion applies in respect of the words and syntax of s 99(3) in its form at the time of the incident involving the respondent. Section 99(3) provided that a police officer “must not arrest a person … unless the police officer suspects” one of the matters specified in the paragraphs of the subsection. It is not sufficient that a police officer arrest a person on the instruction of another officer, even if that other officer had the state of mind specified in the subsection.

50. In this regard, Bulsey v Queensland supports the construction which we consider to be correct. That case involved similar but not identical provisions to LEPRA, ss 99 and 230: see the Police Powers and Responsibilities Act 2000 (Qld), ss 198(2) and 376(1).

51. In Bulsey v Queensland the first appellant was arrested following the Palm Island riots when six armed members of the Special Emergency Response Team forcibly entered the appellants’ house. The decision to arrest the first appellant had been made by a senior officer in Townsville and he had given a direction to the officers on Palm Island to effect the arrest. The first appellant was taken into custody and charged. He was later discharged at committal proceedings, when the State conceded that it did not have a case against him. He then sued for damages for trespass to the person and malicious prosecution. The State conceded that the torts alleged would be made out unless the conduct of the police was authorised or excused by law.

52. The Court held that the legislation was indistinguishable from the provisions considered in O’Hara v Chief Constable of Royal Ulster Constabulary [1997] AC 286 and Hyder v Commonwealth (2012) 217 A Crim R 571; [2012] NSWCA 336. Fraser JA (Atkinson and McMeekin JJ agreeing) stated, at [16]:

“Under the respondent’s construction, an order by a superior officer has substantially the same effect as an arrest warrant even though it lacks any of the statutory protections of personal liberty …”

53. His Honour concluded, at [20], that:

“Rejection of the respondent’s construction of s 198(2) is required by its language, the statutory context supplied by the provisions for arrest under warrant, and the rationale for the requirement in s 198(2) that a police officer who arrests a person must reasonably suspect the person has committed or is committing an indictable offence. If a police officer who makes an arrest does not hold that suspicion, s 198(2) does not render the arrest lawful.”

54. That leaves the question whether the context of LEPRA, ss 9, 10 and 99 and their purpose indicates that meaning is to be given to the words of the sections different from, or in some way qualifying, their plain meaning.

55. The context in which ss 9 and 10 operate includes the common law principles contained in the authorities to which the respondent referred. These include that a police officer, as is the case with any citizen, may not trespass upon a person’s property. As Brennan J observed in Halliday v Nevill (1984) 155 CLR 1 at 10:

“A police officer who enters or remains on private property without the leave and licence of the person in possession … commits a trespass and acts outside the course of his duty unless his entering or remaining on the premises is authorized or excused by law.”

56. The same point was made Kuru v State of New South Wales (2008) 236 CLR 1; [2008] HCA 26, where the plurality (Gleeson CJ, Gummow, Kirby and Hayne JJ) stated, at [43], that there were two related propositions:

“… First, a person who enters the land of another must justify that entry by showing either that the entry was with the consent of the occupier or that the entrant had lawful authority to enter. Secondly, except in cases provided for by the common law and by statute, police officers have no special rights to enter land.” (citations omitted)

57. In Halliday v Nevill, the plurality (Gibbs CJ, Mason, Wilson and Deane JJ) observed, at 6-7, that an occupier may grant an implied licence for a person to enter upon land, such as where there is an unobstructed means of access such as a pathway or driveway leading to the entrance of a dwelling and no notice forbidding entry. Their Honours stated, at 8, that as a matter of “common sense, reinforced by considerations of public policy” a police officer has an implied or tacit licence to enter upon a driveway, “for the purpose of questioning or arresting a person whom [the officer] had observed committing an offence on a public street in the immediate vicinity of that driveway”. However, their Honours added the following qualification:

“That conclusion does not involve any derogation of the right of an occupier of a suburban dwelling to prevent a member of the police force who has no overriding statutory or common law right of entry from coming upon his land.”

58. As their Honours explained:

“Any such occupier who desires to convert his path or driveway adjoining the public road into a haven for minor miscreants can, by taking appropriate steps, preclude the implication of a licence to a member of the police force to enter upon the path or driveway to effect an arrest with the result that a police officer’s rights of entry are restricted to whatever overriding rights he might possess under some express provision or necessary implication of a statute … of the common law.”

59. It will be a question of fact in each case whether a police officer, absent authorisation by statute or common law, has an implied licence to be on premises and or whether any such implied licence had been withdrawn.

60. Accordingly, as a question of statutory construction, there is nothing in the context of the provisions in question, including the common law principles as to trespass, which would qualify the plain meaning of the words of these sections.

61. That then leaves the question whether the purpose of the statutory provisions with which the Court is concerned, when read in the context of the Act as a whole, is such that a police officer may enter property for the purpose of assisting another police officer who is lawfully exercising a function under LEPRA. As discussed, the State placed considerable emphasis upon the provisions of the Police Act, ss 6 and 201, as well as on LEPRA, s 230 in support of this submission.

62. As already explained, those provisions underpin the nature of the functions that police officers perform and the necessity for that work to be carried out as part of a disciplined and hierarchical structure, whilst recognising that force may need to be used in doing so. However, there is nothing in those provisions that permits an activity to be carried out that is not lawful.

63. Accordingly, there is nothing in the context or purpose of the legislation read as whole which points to a construction different to that which is indicated by the plain meaning of the text of ss 9, 10 and 99. Indeed, to attribute such a purpose to the legislation would be in direct contradiction of the express terms of those provisions.

64. The alternative position argued by the State was that the state of mind of those police officers who, on the trial judge’s findings acted lawfully, namely, Constable Tolhurst, Inspector Atkins and Superintendent Driver, could be imputed to each of the other officers present. That argument is considered below when examining the position of each officer in the tenth and twelfth issue.

65. We note for completeness that there is nothing in the amended s 99 that supports the State’s argument: see Law Enforcement (Powers and Responsibilities) Amendment (Arrest without warrant) Act 2013 (NSW). Accordingly, ground 1 of the appeal is rejected.

Second and third issues

Whether the trial judge erred in finding that the respondent had contravened the ADVO: ground 2 of the cross-appeal (where secondly appearing)

Whether the trial judge erred in finding that Constables Tolhurst and Bennett and Inspector Atkins correctly concluded that the respondent had contravened the ADVO: ground 1 of the cross-appeal

66. On 6 June 2013, an ADVO was made against the respondent in respect of which EB was the person in need of protection. The terms of the ADVO relevantly prohibited the respondent from harassing, intimidating or stalking EB. The ADVO also prohibited the respondent from “approaching or contacting” EB except in specified circumstances, none of which were in play at the time the respondent allegedly contravened the ADVO.

67. The trial judge was of the view that the respondent’s conduct in attending at EB’s place of employment constituted stalking. We understand this “view” to be a finding to that effect. His Honour stated, at [72], that accordingly, he was satisfied that Constables Tolhurst and Bennett and Inspector Atkins correctly concluded that the respondent had breached the ADVO. These findings were the bases for his Honour’s findings in relation to s 99(1). His Honour held that that section, which permits an arrest without warrant where a person “has just committed an offence”, was satisfied, relevantly, in respect of Constable Tolhurst and Inspector Atkins: see judgment at [266], [271] and [296]. The findings are also relevant to s 10, which authorises entry onto premises to arrest a person.

68. The respondent, in ground 2 (where first appearing) and ground 1 of the cross-appeal respectively, challenged both of his Honour’s findings. However, the respondent did not direct any submissions to either of these grounds of the cross-appeal. Rather, his submissions were directed to s 99(2), which was the subject of cross-appeal ground 2 (where first appearing), which is the subject of the fourth issue. Reference was also made in this context to s 9(1). However, as we have explained, his Honour’s findings in respect of the ADVO directly relate to s 99(1)(b), which was not the subject of any express challenge. However, as we understand the point of the challenges raised in each of these grounds of the cross-appeal, it is that if successful, the arrest would not have been lawful pursuant to s 99(1)(b).

69. Intimidation in its statutory context in s 7 of the Domestic and Personal Violence Act includes “harassment”. “Stalking” includes an “approach to a person’s place of business”. In determining whether conduct amounts to stalking, regard may be had to any pattern of violence, including violence constituting a domestic violence offence, in the person’s behaviour. The question whether there had been a breach of the ADVO is determined on the civil standard of proof.

70. The background to the incident at EB’s place of employment was as follows. The respondent had formerly been in a relationship with EB for about three years. They had two children, who, at the date of the incident at the respondent’s premises, were aged three and four years of age. The children resided with EB but she and the respondent shared custody.

71. EB was employed in Orange. On the morning of the arrest, EB had taken the two children to the home of the respondent’s mother to be minded whilst she was at work. The respondent’s mother told the respondent the children were with her. At the respondent’s request, his mother, accompanied by the respondent’s sister-in-law, took the children to the respondent’s home. The respondent told his mother that he intended to go to EB’s work to tell her she could not leave the children with his mother any time she wanted. The respondent then drove to EB’s place of employment with the two children in the car. His mother and sister-in-law followed.

72. At 1:12pm, the police received an emergency call from a person at EB’s place of employment, who told the police they were needed “now … it’s an emergency”. The following message was then broadcast over the police radio system:

“Details: Workers ex-partner has shown up at LOC. POI [the respondent]. Weapons NK,. Firearms NK, Nil injuries, 2 children under 4 old with POI. Previous history. Nil custody orders in place – Vict [EB], currently is safe in office inside building.”

73. Constables Tolhurst and Bennett responded and were assigned to the incident at 1:20pm. They were provided with details of the ADVO over the police radio. Constable Tolhurst had previously arrested the respondent for breach of an ADVO in respect of which EB was also the person in need of protection. By the time the two officers arrived at EB’s place of employment, the respondent had left. Constable Tolhurst spoke to EB and the respondent’s sister-in-law, while Constable Bennett spoke with EB’s supervisor.

74. EB told Constable Tolhurst that the respondent’s sister-in-law had come into the workplace to warn her of the respondent’s presence, at which point EB went outside. She went back inside and spoke with her supervisor, before going outside again, this time accompanied by the supervisor. EB said that on going outside she heard the respondent yelling and:

“… as soon as I heard [the respondent] yelling I turned back around as I did not want to see him as I believe he would ‘go off’, because it has happened before and I know his temper”

Constable Tolhurst in his evidence said that EB appeared “visibly upset”.

75. When EB heard the respondent yelling she was so concerned that he would “go off”, as she described it, that she went into her supervisor’s office where she stayed until the police arrived. The abusive nature of the respondent’s conduct was corroborated by EB’s supervisor, as was EB’s distress and upset. The context in which this happened was not only the fact that there was an ADVO in place but there had been past violations of ADVOs made to protect EB, at least one of which had involved the threat of violence, the respondent on that occasion being armed with a knife.

76. Constable Tolhurst obtained a statement from EB’s supervisor “sometime” after the respondent was arrested. The trial judge noted “a degree of uncertainty” in Constable Bennett’s evidence as to the events leading up to the police being called.

75. EB’s supervisor gave evidence at trial. She said that EB had come into her office “very distressed crying and said that [the respondent] had her children or their children in the car out in the car park”. She offered to accompany EB to the car park. EB’s supervisor said that as the two women began to walk outside, EB went ahead, but returned saying, “no he’s going off, call the police”. EB’s supervisor said she heard the respondent “raise his voice and sing out ‘fucking hurry up’”.

76. It is clear that the respondent attended at EB’s workplace in circumstances where there was no reason for him to do so. There were no arrangements in place for him to take the children there. Although the respondent had shared custody, EB had not made any arrangements for him to have the children that day. She had left them with the respondent’s mother. Nor were there any arrangements for the respondent to take over their care from his mother. Whilst in the car park, the respondent was heard calling out and using abusive language. It was suggested in argument that this abuse may not have been directed at EB but rather that the respondent was calling out to his sister-in-law.

77. To argue, as the respondent did, that there was no evidence of direct contact between the respondent and EB such that there could not have been a breach of the ADVO not only ignored the terms of the ADVO, but also misapprehended the nature of the respondent’s conduct. This was not a chance meeting or encounter between the respondent and EB. There can be no doubt that the respondent’s conduct in going to EB’s workplace, intentionally doing so for the purpose of letting her know that she could not leave the children with his mother when she felt like it, yelling out in abusive terms sufficient to cause EB to describe his conduct as “going off”, constituted intimidation, involved stalking and a breach of the terms of the ADVO which prohibited the respondent from approaching or contacting EB.

78. It follows that ground 2 of the cross-appeal (where secondly appearing) must be rejected.

79. Having concluded that his Honour was correct in concluding that the respondent had breached the ADVO, his Honour’s finding that Constables Tolhurst and Bennett and Inspector Atkins were correct in concluding that the respondent had contravened the ADVO was clearly available. Indeed, no other conclusion could have been reached.

80. It follows that ground 1 of the cross-appeal should also be rejected.

81. Although not the subject of direct challenge, given the above conclusions, it is appropriate that we record that his Honour’s finding that the arrest by Constable Tolhurst and Inspector Atkins was authorised by s 99(1)(b), which permits a police officer to arrest a person without a warrant where that person has just committed an offence, was correct, being well based in the evidence. We also note that his Honour made the same finding in respect of Superintendent Driver.

Fourth issue

Whether the trial judge erred in finding, implicitly, that Constables Tolhurst and Bennett and Inspector Atkins’ suspicions that the respondent had contravened the ADVO were held on reasonable grounds: ground 2 of the cross-appeal (where first appearing)

84. Ground 2 (where first appearing) of the cross-appeal is directed to whether, as required by s 99(2), there were reasonable grounds for Constables Tolhurst and Bennett and Inspector Atkins to suspect that the respondent had committed an offence so as to be authorised to arrest the respondent without a warrant. As we have pointed out, s 99(2) provides a different basis upon which a person may be arrested without a warrant from that found in s 99(1)(b). Section 99(1)(b) permits an arrest when a person has just committed an offence, hence proof of that fact is required if the arrest is challenged. Section 99(2), however, does not require that it be established that a person has committed an offence. Rather, a police officer may arrest a person on a suspicion which is held on reasonable grounds.

85. Given that we have rejected ground 1 of the cross-appeal, it is not strictly necessary to resolve this issue. In our opinion, the arrest was properly effected pursuant to s 99(1)(b), although whether the arrest was lawful also required that s 99(3) be satisfied. That is dealt with below in the sixth issue. However, as the question whether s 99(2) had been satisfied was a central focus of the respondent’s case, and against the unlikely possibility that the arrest was not lawful pursuant to s 99(1), we have proceeded to deal with this issue. The question of whether a belief is held on reasonable grounds is also relevant to the respondent’s challenges to his Honour’s findings in respect of ss 9 and 99(3).

86. Before considering what “reasonable grounds” entails, we note that the respondent accepted that it was sufficient for the purposes of establishing “reasonable grounds” within the meaning of ss 9, 10 and 99 that information be conveyed to a police officer, for example, over the police radio, as was the case for most officers here.

Meaning of “reasonable grounds”

87. When a statutory provision requires that a state of mind be based or held upon reasonable grounds, the question whether there are reasonable grounds is determined objectively at the time when the relevant power or function is exercised: George v Rockett (1990) 170 CLR 104; Hyder v Commonwealth of Australia; O’Hara v Chief Constable of Royal Ulster Constabulary.

88. In Hyder v Commonwealth of Australia, at [14], McColl JA observed:

“In determining whether the arresting officer had the relevant state of mind (be it suspicion or belief), the court is considering a preliminary stage of the investigation, rather than one requiring evidence amounting to prima facie proof: O’Hara v Chief Constable of Royal Ulster Constabulary (at 293) per Lord Steyn, citing Shaaban Bin Hussien v Chong Fook Kam (at 949).”

89. In O’Hara v Chief Constable of Royal Ulster Constabulary, the plaintiff was arrested at his home under anti-terror legislation. The officer who effected the arrest had been briefed that the plaintiff was involved in a murder, but had no information to suspect that the plaintiff was involved in terrorist activities. The plaintiff was later released without charge and claimed damages for wrongful arrest.

90. In a passage that was cited with approval in Hyder v Commonwealth, Lord Hope (Lord Goff, Lord Mustill and Lord Hoffman agreeing) observed, at 298, that the legislative provision which permitted an arrest could be effected if a constable had “reasonable grounds for suspecting” an involvement with an act of terrorism was:

“… [i]n part … a subjective test, because he must have formed a genuine suspicion in his own mind that the person has been concerned in acts of terrorism. In part also it is an objective one, because there must also be reasonable grounds for the suspicion which he has formed.”

91. His Lordship observed, in respect of the objective requirement, namely that there be reasonable grounds for so suspecting, that this test did not require looking beyond what was in the mind of the officer who effected the arrest. As his Lordship explained:

“All that the objective test requires is that these grounds be examined objectively and that they be judged at the time when the power was exercised.

This means that the point does not depend on whether the arresting officer himself thought at that time that they were reasonable. The question is whether a reasonable man would be of that opinion, having regard to the information which was in the mind of the arresting officer. It is the arresting officer’s own account of the information which he had which matters, not what was observed by or known to anyone else. The information acted on by the arresting officer need not be based on his own observations, as he is entitled to form a suspicion based on what he has been told. His reasonable suspicion may be based on information which has been given to him anonymously or it may be based on information, perhaps in the course of an emergency, which turns out later to be wrong.”

92. His Lordship, at 301-302, then turned to consider the operation of this test in light of the structure, practices and operation of the police force, noting that the action of an officer who effected an arrest will be:

“… the culmination of various steps taken by other police officers, perhaps over a long period and perhaps also involving officers from other police forces. For obvious practical reasons police officers must be able to rely upon each other in taking decisions as to whom to arrest or where to search and in what circumstances. The statutory power does not require that the constable who exercises the power must be in possession of all the information which has led to a decision, perhaps taken by others, that the time has come for it to be exercised. What it does require is that the constable who exercises the power must first have equipped himself with sufficient information so that he has reasonable cause to suspect before the power is exercised.”

Consideration

93. We have already referred to the factual circumstances in which the respondent came to be arrested, including the matters of which Constables Tolhurst and Bennett were aware. In summary, the relevant facts were that the two officers had responded to an incident broadcast on the police radio; they were apprised of the terms of the ADVO; Constable Tolhurst had previously participated in the arrest of the respondent for breach of an ADVO in respect of which EB was also the person in need of protection; Constable Tolhurst and Bennett had observed EB, whom Constable Tolhurst described as “visibly upset”. Constable Tolhurst also spoke to EB and the respondent’s sister-in-law whilst at EB’s place of employment and Constable Bennett spoke to EB’s supervisor.

94. In our opinion, insofar as Constables Tolhurst and Bennett are concerned, the call-out to EB’s place of employment, the knowledge each had of the terms of the ADVO, Constable Tolhurst’s knowledge of a breach of a previous ADVO and the matters which they observed and were told when they were at EB’s place of employment, viewed objectively, constituted reasonable grounds for the suspicion each had that the respondent had breached the ADVO by going to EB’s place of employment.

95. Inspector Atkins did not attend at EB’s place of employment. However, he was informed that the respondent was “wanted for breaching an AVO”. On arrival at the respondent’s premises, Inspector Atkins was told that the respondent was wanted for breaching an ADVO earlier that day and that there was a recent history of domestic violence involving him and EB. He was told that one such recent incident involved the use of a knife. This detail “heightened” his concern regarding the nature of the incident. He was also told “certain things” about what had happened at EB’s place of employment by Constables Tolhurst and Bennett, namely, that:

“[The respondent] had breached the order by going to the linen service, his wife had been there, she had become upset, police got some statements, some details, went to the house to arrest him.”

96. Inspector Atkins said that a decision had been made to arrest the respondent prior to his arrival, however, based on the information supplied to him during the briefing, he was satisfied that there had been a breach of the ADVO. The information provided to Inspector Atkins was detailed. In our opinion, based on the briefing he received and his own observations, Inspector Atkins also had reasonable grounds on which to suspect that the respondent had breached the ADVO.

97. Ground 2 (where first appearing) of the cross-appeal is rejected.

Fifth issue

Whether the trial judge erred in finding that Constable Tolhurst’s suspicion that the arrest of the respondent was necessary to prevent the repetition of a breach of the ADVO was held on reasonable grounds: ground 3 of the cross-appeal

98. Pursuant to s 99(3)(b), a police officer who arrests a person without a warrant must suspect on reasonable grounds that it is necessary to do so for the purposes of preventing the repetition or continuation of an offence or the commission of another offence, in this case the breach of the ADVO.

99. In State of New South Walesv Robinson the Court explained the manner in which s 99 operates and the function of s 99(3) within the legislative scheme required for an arrest to be lawful as follows:

“34 Section 99(3), unlike subs (1) and (2), does not confer a power of arrest upon a police officer. It operates as a constraint on the powers conferred by subs (1) and (2). A police officer is prohibited from arresting a person for a particular purpose, namely, the purpose of taking proceedings against the person for an offence, unless the conditions stated in s 99(3) are satisfied. Those conditions are:

●the police officer must have a suspicion that it is necessary to arrest the person to achieve at least one of the purposes specified in (a)-(f);

●the police officer must have reasonable grounds for forming that suspicion.

35 … Section 99(3) is enlivened when a police officer has arrested a person for the purpose of taking proceedings against that person for an offence. In that situation, the arrest is not lawful unless the State establishes that the conditions specified in s 99(3) are satisfied.”

100. His Honour was satisfied that Constable Tolhurst was an “arresting officer” and that he had complied relevantly with the requirements of s 99(3)(b). His Honour found, at [83]:

“Constable Tolhurst’s desire to prevent a repetition of the offence would seem, from an objective point of view, reasonable bearing in mind that [the respondent] was probably angry; was prepared to breach the ADVO as he had done in the past; had not resolved the issue with which he intended to confront [EB], raising the prospect of a further attempt at confrontation.”

101. The respondent accepted that Constable Tolhurst held a “suspicion” for the purposes of s 99(3). However, he challenged his Honour’s finding that the suspicion was held on reasonable grounds. In essence, the respondent’s submission, which appeared to be directed to all those found by his Honour to be “arresting officers”, was that any suspicion that was held was not based on reasonable grounds in circumstances where it could not be said that there was any imminent or proximate threat or likelihood of a repetition of the breach of the ADVO. However, given the terms in which ground 3 of the cross-appeal is expressed, at this point we consider the submissions only as they relate to Constable Tolhurst.

102. Reference has already been made to the circumstances in which Constable Tolhurst attended at EB’s place of employment with Constable Bennett. The respondent having left there by the time they arrived, the two officers drove to the respondent’s house to arrest him. Constable Tolhurst knocked on the front door, stated that police were there in relation to a breach of the ADVO and that they needed to arrest him and take him back to the station. The doors of the house were closed and the respondent pulled the blinds across the windows. He told the two officers to “fuck off”.

103. Constable Tolhurst gave evidence that he was aware that the respondent had breached previous ADVOs and had, in fact, participated in the respondent’s arrest for one such breach in August 2013. In answers in cross-examination as to why he believed that it was necessary to arrest the respondent to prevent a repetition of the offence, Constable Tolhurst said that he knew that the respondent was a repeat offender but could not say that he suspected that repetition of the offence, that is, a breach of the ADVO was “imminent”. He then gave the following evidence:

“Q. If it wasn’t imminent how was arresting [the respondent] going to prevent the repetition of the offence?

A. Arresting him would – he wouldn’t have the chance of breaching that [ADVO] in the interim while he was in police custody.”

104. This cross-examination was not entirely on point insofar as it purported to be directed to s 99(3) as that section does not require a police officer to suspect that a repetition of an offence is imminent. Rather, the reference to “imminence” in the provisions under consideration is in s 9.

105. The cross-examination to which reference has just been made was followed by an exchange between his Honour and counsel and the following evidence:

“[COUNSEL FOR THE RESPONDENT]: Your Honour, I’m examining the state of mind of the officer when he formed the intention to arrest.

HIS HONOUR: I think it follows … that whilst [the respondent’s] in custody obviously he is prevented from committing any further offence but if released on bail there’s no prohibition instantly upon him committing the offence again, that’s just he’s available to do it, if he does it he can be breached again, it’s as simple as that isn’t it?

Q. That’s the situation, isn’t it, constable? I mean if he’s released on bail there’s nothing to prevent him from committing the offence if he chooses to breach the ADVO again?

A. That’s correct.

Q. He would be guilty of yet another breach of the ADVO?

A. That’s right.

…

[COUNSEL FOR THE RESPONDENT]: Can I put it to you again given that that is so that you would have to have been satisfied in order to be satisfied that it was necessary to arrest [the respondent] for that purpose that the further breach of the [ADVO] was imminent?

A. I was satisfied to arrest [the respondent] because he was a repeat offender.”

106. We have referred above, at [87]-[92], as to what is involved in establishing that reasonable grounds exist for the holding of a belief or suspicion. The evidence here supported the finding that there were reasonable grounds for a suspicion that an arrest was necessary to prevent the repetition of an offence. The respondent had breached an ADVO that morning and, importantly for Constable Tolhurst, the respondent was a repeat offender. The context in which the arrest took place, as known to Constable Tolhurst, was that the respondent had the children locked inside the house with him and he was angry and was yelling and ranting.

107. All of those factors constituted reasonable grounds for Constable Tolhurst to have a suspicion that unless the respondent were arrested, he might commit another breach of the ADVO. In the Court’s opinion, the trial judge correctly concluded that Constable Tolhurst held a suspicion on reasonable grounds for the purposes of s 99(3)(b). Accordingly, ground 3 of the cross-appeal is rejected.

Sixth issue

Whether the trial judge erred in finding that the arrest was lawful: ground 5 of the cross-appeal

108. The trial judge found that three officers lawfully arrested the respondent, these being Constable Tolhurst, Inspector Atkins and Superintendent Driver.

109. The respondent contended, in ground 5 of the cross-appeal, that the trial judge erred in finding that the arrest of the respondent was lawful. In support of this challenge, the respondent directed his submissions to the alleged unlawfulness of the arrest pursuant to ss 99(2) and 99(3). The nub of the respondent’s argument, with which we deal in more detail below, was that:

“… none of the bases relied upon by [the State] to satisfy s 99(2) was made out by the evidence, and, it is unnecessary to proceed to consider whether any of the officers could reasonably have suspected it therefore to be ‘necessary’ to arrest [the respondent] to achieve the statutory purpose contained in s.99(3)(b).”

110. The respondent further submitted that if s 99(2) was satisfied, there was “a fundamental difficulty with the State’s contention that the arrest was justified on the propounded basis”.

Trial judge’s reasons

111. At [265], his Honour found that Constable Tolhurst was an “arresting officer”, having decided to arrest the respondent in light of the information obtained at EB’s place of employment. His Honour then found, at [266], that Constable Tolhurst satisfied the requirements of ss 99(1)(b), 99(2) and 99(3)(b) and that his arrest of the respondent was therefore lawful.

“… these types of incidents can go south very quickly sometimes and obviously it’s a concern when there are young children involved.”

260. When asked to explain the term “go south”, he explained that:

“… events can sometimes turn very quickly. Violence can be applied to other people in the house. There is any number of different scenarios that can develop that the incident could become a suicide prevention, lots of things.”

261. On the advice of Superintendent Driver, Detective Sergeant Maclean rang the respondent’s solicitor whilst the police were at the premises and explained to the solicitor that the respondent was wanted in relation to a breach of an ADVO and that the police were intending to arrest him. Detective Sergeant Maclean said his intention in ringing the solicitor was to have the respondent come outside the house peacefully. In another telephone call with the solicitor, the solicitor advised Detective Sergeant Maclean that he had advised the respondent that the police had no power to enter or remain on the property and that he had made an arrangement with the respondent to attend at the police station later that day provided the police left the property.

Detective Senior Constable Justine Priest

262. Detective Senior Constable Justine Priest responded to the radio call for police assistance in circumstances where she knew the respondent personally and thought she may be able to assist. She knew that the respondent was wanted for breach of an ADVO earlier that morning and was aware that the respondent suffered mental health issues. As a result, she was:

“… concerned for [the respondent] and the children and … I needed to make sure the children were safe.”

263. She was on the premises for about 45 minutes to an hour. She asked the respondent to come out but he said “No”. She acknowledged that as long as she could see the children, she was not concerned for their welfare. However, she described her role as being:

“… there to make sure that [the respondent] was okay and the children were going to be okay.”

Sergeant White

264. Sergeant White, like Detective Sergeant Maclean, was a trained police negotiator whose attendance was requested by Inspector Atkins. Sergeant White was told by Inspector Atkins that “police were at [an] address to arrest a person for a breach of an [ADVO] and that he was refusing to come out of the premises” and that “there [were] also two children in the house at the time”.

Detective Senior Constable Brian Priest

265. Detective Senior Constable Brian Priest was with Detective Senior Constable Perry when they received a radio broadcast requesting their attendance at the address. They were notified that:

“… there was a concern for welfare at the address … and … also there was a breach of an [ADVO] that had occurred.”

They were also told that “a male had two children inside the house”.

266. When they arrived at the property, Detective Senior Constable Brian Priest went up to the side of the house where he remained for about for five or ten minutes. He was then directed to go and find the respondent’s mother and bring her back to the property. On his return to the property with the respondent’s mother, he remained in the car until the children were brought out to them.

Detective Senior Constable Perry

267. Detective Senior Constable Perry gave evidence, in addition to that of Detective Senior Constable Brian Priest, that on arriving at the house, he was standing on the eastern side of the front yard and that:

“… after a short time of being there there was yelling coming from within the house and Detective Justine Priest was trying to speak to the occupant within the house and ascertain the safety of some children that were in the house as well.”

Senior Constable Ferrier

268. Senior Constable Ferrier gave evidence that he had been called to the respondent’s address due to “[s]ome sort of domestic” and could not recall “the exact circumstances of the offence”. However, he travelled with Leading Senior Constable Morgan in the police vehicle which broadcast the message that the respondent had breached ADVOs in the past and “was armed last time with knives”.

Constable Pratten

269. Constable Pratten did not give evidence, but in his statement, tendered by consent, he explained that he was asked to attend “to assist police in relation to an alleged breach of an ADVO”. He was informed that the respondent was inside, along with his children, and he heard the respondent refusing to leave.

Constable Bennett

270. Constable Bennett was one of the officers who, along with Constable Tolhurst, was assigned to investigate the incident at EB’s place of employment. She attended EB’s place of employment with Constable Tolhurst and spoke to one of EB’s co-workers. She did not take a statement from the co-worker, but gave evidence at trial of their conversation. She formed the understanding that the respondent had “yelled at or yelled to” EB in the car park. She went to the property with Constable Tolhurst with the intention of arresting the respondent but did not go to the front door, nor did she enter the house. She heard the respondent say that “he was not going to be arrested”. She agreed that it was fairly clear from an early point that the respondent did not want the police on his property.

Trial judge’s reasons

271. His Honour held, at [310]-[313], in respect of Detective Sergeant Maclean, Sergeant White, Detective Senior Constables Justine Priest, Brian Priest, and Perry, Senior Constable Ferrier and Constable Pratten, that each was guilty of trespass to the respondent’s property in circumstances where the respondent had not agreed to their presence on the property. In making that finding, his Honour noted that each was subject to the direction of Superintendent Driver, who had deployed them to set up a perimeter around the property.

272. His Honour, at [312], accepted the respondent’s submission that none of these officers had given an account of what they had been told had occurred at EB’s place of work and that:

“… [s]imply to state that they had been told there had been a breach of an [ADVO] went no way towards establishing that each of the officers, him or herself, suspected that there had in fact been a breach, or more importantly that each was aware of material on which they could reasonably have come to that view.”

273. Accordingly, his Honour held that their entry onto the property was not authorised pursuant to either LEPRA, ss 9 or 10(1).

274. His Honour held at [314] that Constable Bennett had complied with ss 99(1) and 99(2) but that there was no evidence that at any time she directed her attention to s 99(3). Accordingly, his Honour found that if she did arrest the respondent, the arrest was unlawful. His Honour accepted, at [314], that her presence at the property was justified. We understand that to be a finding that her entry was authorised pursuant to LEPRA, s 10(1).

Submissions

275. The State submitted that those officers who were on the property were not each required to satisfy ss 9 or 10 and that his Honour’s finding, at [184], that each officer who entered the property was required personally to form a belief in the terms of those sections, was in error. This submission was based on the State’s submissions as to the proper construction of the phrase “may enter” in ss 9 and 10. We have already rejected that submission.

276. Otherwise, the respondent relied on the same matters as he relied upon in respect of entry inside his home.

Consideration

277. His Honour’s acceptance of the respondent’s submission that it was necessary for each of the officers who entered the respondent’s property but remained on the perimeter to have formed a belief in respect of a breach by the respondent of the ADVO was not to the point. Section 9(1)(a) requires a belief in relation to an actual or likely breach of the peace and the necessity to enter premises to end or prevent the breach. The necessary belief in respect of s 9(1)(b) relates relevantly to a belief of imminent danger.

278. His Honour having failed to address the correct question, it is open to this Court, on an appeal by way of rehearing to draw appropriate inferences: see Supreme Court Act, s 75A. We have discussed above the circumstances in which a court may make inferential findings of fact. This issue raises the same question and we have come to the same conclusion.

279. Constable Bennett aside, each of the officers gave evidence, some in more detail than others, including Constable Pratten in his statement, that they had been directed to go to the property because there was an incident or a domestic incident and that there had been a breach of an ADVO. Some were aware of previous ADVO breaches, including with the use of a knife. Some gave direct evidence of hearing yelling and shouting. Added to this was the respondent’s behaviour in refusing to come out of the premises for over two hours, despite attempts to persuade him to leave, and the fact that he had two children with him.

280. In these circumstances, we conclude that there is sufficient evidence upon which to infer that the officers who entered the property but remained on the perimeter had the relevant state of mind under s 9(1). On the evidence an inference is available and should be drawn that each believed that a breach of the peace was being or was likely to be committed or there was an imminent danger of significant physical injury.

281. Accordingly, we find that the entry of the seven officers who remained on the perimeter of the respondent’s property was authorised pursuant to LEPRA, ss 9(1)(a) and/or 9(1)(b). Grounds 8(b) and (c) of the appeal are therefore allowed inasmuch as they relate to LEPRA, s 9. Having regard to our conclusion on the construction issue, ground 8(a) is rejected. Ground 9 of the appeal is also rejected, as it is based on the construction of ss 9 and 10 which we have rejected. The trial judge’s finding that Constable Bennett entered lawfully pursuant to LEPRA, s 10 remains undisturbed.

Thirteenth issue

Whether his Honour erred in awarding aggravated and exemplary damages: ground 10 of the appeal

282. Having regard to our conclusion that the trial judge erred in finding that there was a trespass to property and a trespass to the person, his Honour’s award of damages must be set aside. Accordingly, the State’s challenge to his Honour’s award of aggravated and exemplary damages does not arise for determination. However, as we have done with other issues, we have proceeded to consider it in the event we are wrong in the conclusions at which we have arrived.

283. His Honour’s reasons for the award of aggravated and exemplary damages are not apparent. Such reasons as he gave in respect of damages related to the award of ordinary damages. In those reasons, his Honour explained that the respondent, in refusing to submit to a lawful arrest, created the environment in which the trespasses occurred. His Honour, at [342], awarded damages “at the lower end of the scale” for this reason. In relation to trespass to the person, his Honour repeated that the respondent had created the circumstances in which the assault occurred. His Honour added that the respondent was not entitled to resist Constable Tolhurst and Inspector Atkins, but was entitled to resist Senior Constable Webster and Constable Simpson. The State appealed against both awards.

284. There was no error in the trial judge awarding a single sum for aggravated and exemplary damages. The question is, however, whether there was any basis for the award. This calls for a brief description of each type of damages and the circumstances in which such damages may be awarded.

285. Aggravated damages were described by the High Court in New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 37, at [31], as:

“… a form of general damages, given by way of compensation for injury to the plaintiff, which may be intangible, resulting from the circumstances and manner of the wrongdoing”.

286. Exemplary damages are different, although as Taylor J observed in Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118, at 130, “the same set of circumstances might well justify either an award of exemplary or aggravated damages”. Exemplary damages are not compensatory. Rather, they are essentially punitive in nature: see XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448. In Uren v John Fairfax & Sons, Windeyer J explained, at 154:

“… there must … be evidence of some positive misconduct to justify a verdict for exemplary damages. There must be evidence on which the jury could find that there, was, at least, a ‘conscious wrong-doing in contumelious disregard of another's rights’.”

287. This was echoed by Brennan J in XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd, where, at [9]-[10], his Honour said:

“… an award of exemplary damages is intended to punish the defendant for conduct showing a conscious and contumelious disregard for the plaintiff's rights and to deter him from committing like conduct again …

… The social purpose to be served by an award of exemplary damages is, as Lord Diplock said in Broome v Cassell & Co … ‘to teach a wrong-doer that tort does not pay’.” (citations omitted)

See also Adams v Kennedy (2000) 49 NSWLR 78; [2000] NSWCA 152, especially at [35].

288. In New South Wales v Ibbett, the High Court observed at [38], that:

“An action for trespass to land and an award of exemplary damages has long been a method by which, at the instance of the citizen, the State is called to account by the common law for the misconduct of those acting under or with the authority of the Executive Government”.

State’s submissions

289. The State submitted that the trial judge failed to make findings of fact sufficient to satisfy the threshold for awarding these “exceptional” remedies of aggravated and exemplary damages and failed to give reasons to support their award.

290. The State drew attention to the fact that aggravated damages are directed to conduct, not causes of action. On this basis, it submitted that the Court must consider the particular conduct of the respondent and whether that justifies an award of aggravated damages. The State submitted that the trial judge did not make “one, single, solitary finding of fact” to the effect that the respondent’s conduct caused a degree of harm that justified the making of such an award. The State submitted that exemplary damages are even more exceptional than aggravated damages.

291. The State further submitted that in a case involving multiple torts, such as this, the damage caused by each of the torts must be considered individually. It did, however, acknowledge that this proposition was qualified by what was said by the New South Wales Court of Appeal in Adams v Kennedy and the High Court in New South Wales v Ibbett.

292. The applicant also challenged the trial judge’s reasoning in making the award of damages, arguing that:

“… [u]nless the basis of the ordinary compensatory damages award is articulated, the trial court is in no position to determine whether aggravated or exemplary damages are available, and if so, in what amount.”

Respondent’s submissions

293. The respondent accepted that the trial judge did not consider the separate bases on which he awarded damages, including aggravated and exemplary damages. Nevertheless, he characterised the award of damages as “exceedingly modest” and submitted that an award of $15,000 in circumstances where there were numerous trespasses to the respondent’s property, if not his house, ought not to be disturbed.

294. The respondent rejected the applicant’s contention that the trial judge made no findings of fact that supported an award of exemplary or aggravated damages. In particular, the respondent argued that any use of force by Senior Constable Webster and Constable Simpson was unjustified and therefore excessive.

Consideration

295. In our opinion, had either of the respondent’s claims in trespass been made out, there was no basis for the award of aggravated or exemplary damages.

296. As to aggravated damages, if some police officers trespassed upon the property, they did so in circumstances where the initial concern was that this was a high risk incident. Although Superintendent Driver subsequently downgraded this risk assessment, the respondent refused throughout the time that the police were on the premises to come out so that the arrest could be effected in an orderly fashion, and there were concerns for the welfare not only of the children, but also of the respondent himself. The police officers’ conduct in entering the house should be assessed in the same context.

297. Nor was there any basis to award exemplary damages. There was no contumelious disregard of the respondent’s rights. Even assuming a deficiency in each officer giving attention to the reason that they were on the premises, so as to have the requisite state of mind required by the provision of LEPRA discussed above, there was no basis for finding that the officers were on the property or that they assaulted the respondent in contumelious disregard of his rights.

298. We would therefore have allowed ground 10 of the appeal, should it have been in issue.

Costs

299. The State has succeeded in establishing that the six officers who entered the house but did not do so to arrest the respondent, as well as the officers on the perimeter, had not committed a trespass, and that the respondent had not been assaulted so that there was no trespass to the person. Accordingly, the orders made by the primary judge must be set aside and judgment entered in the State’s favour.

300. There were also issues in the case which it became unnecessary to decide because of the State’s success on the issues to which we have referred, but which were argued and in respect of which the Court considered it appropriate to express its view. These included whether the arrest was lawful and whether the six officers who entered the house (but not to arrest the respondent) had the relevant state of mind for the purposes of ss 99(2) and 99(3).

301. However, the State was not successful on all the challenges it brought to the primary judge’s reasons. In particular, the State’s challenge to the proper construction of ss 9 and 10 failed comprehensively and, in respect of its challenge to the construction of s 9(1), its case was advanced in the face of a recent decision of this Court to the contrary. Moreover, that argument was advanced notwithstanding that the State in State of New South Wales v McCarthy had conceded the construction of the section that the State put in issue in this case.

302. The State also failed in its argument that the conduct of the police officers in being on the property and in entering the house was authorised, either on the basis that they were entitled to be there to assist the officers whose task it was to arrest the respondent or because the state of mind of those officers could be imputed to them.

303. For his part, the respondent failed entirely on his cross-appeal. He also failed in his opposition to the grant of leave and in his argument that the State had raised on the appeal a case that was not run at trial.

304. Although the State has succeeded on the appeal, there is a question as to whether it should have its costs of the appeal. There are two reasons which militate against the award of costs. The first is that the State, in seeking leave, emphasised the public importance in upholding the lawfulness of the conduct of police officers in circumstances such as this. This submission was made notwithstanding that LEPRA, s 99 had been amended in a way which puts the lawfulness of conduct of the kind that occurred here effectively beyond question. The second is that the State had mixed success on the issues it raised in its appeal.

305. On the other hand, the respondent brought an unmeritorious claim, which we have found ought not have succeeded. The orders we will make in entering judgment for the State reflect this.

306. In the circumstances, we consider that an appropriate order can be made which reflect these competing considerations by ordering that the respondent pay a percentage of the State’s costs of the appeal. Having regard to the State’s ultimate success and the issues on which it succeeded, we consider that the appropriate percentage is that the respondent pay 70 per cent of the State’s costs on the appeal. We see no reason why the State should not have its costs at first instance.

Orders

307. Accordingly, the Court makes the following orders:

(1)   Grant leave to appeal and cross-appeal;

(2)   Appeal allowed;

(3)   Set aside the orders of the trial judge;

(4)   Order judgment for the State of New South Wales;

(5)   Cross-appeal dismissed;

(6)   The respondent to pay the costs of the State of New South Wales at first instance and 70 per cent of its costs on the appeal.

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Amendments

23 May 2018 - Typographical errors corrected throughout

Decision last updated: 23 May 2018