State of New South Wales v McCarthy

[2015] NSWCA 153

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	State of NSW v McCarthy [2015] NSWCA 153
Hearing dates:	28 October 2014
Decision date:	03 June 2015
Before:	Meagher JA at [1]; Gleeson JA at [82]; Adamson J at [83]
Decision:	Appeal allowed. Set aside the verdict and judgment ordered by the District Court on 20 December 2013. Order the appellant pay the respondent’s costs of the appeal.
Catchwords:	TORTS – trespass to land – whether entry authorised or excused by law – where four police officers entered property occupied by the respondent without his consent – where relied on ss 9 and 10 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – whether trial judge erred in not finding officers had reasonable grounds to believe it was necessary immediately to enter the premises to prevent imminent and significant physical injury under s 9(1) – whether trial judge erred in not finding officers had reasonable grounds to believe that the person to be arrested was inside the premises under 10(2) TORTS – trespass to land – where four police officers entered property occupied by the respondent without his consent – where officers satisfied the requirements of ss 9 or 10 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – where s 201(1) (as in force in May 2010) required police to provide person subject to the exercise of a power with information – where not practicable to provide information before or at the time of exercising the power – whether lawful exercise of power under ss 9 or 10 conditional on later compliance with s 201(1)
Legislation Cited:	Crimes Act 1900 (NSW), s 546C Crimes (Appeal and Review) Act 2001 (NSW), s 52 Crown Proceedings Act 1988 (NSW), s 5 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 9, 10, 201 Law Enforcement (Powers and Responsibilities) Amendment Act 2014 (NSW) Law Enforcement (Powers and Responsibilities) Amendment (Arrest without Warrant) Act 2013 (NSW) Law Reform (Vicarious Liability) Act 1983 (NSW), s 8(1) Police and Criminal Evidence Act 1984 (UK), s 28(3)
Cases Cited:	Adams v Kennedy [2000] NSWCA 152; 49 NSWLR 78 Christie v Leachinsky [1947] AC 573 Director of Public Prosecutions v Hawkins [1988] 1 WLR 1166 George v Rockett [1990] HCA 26; 170 CLR 104 Halliday v Nevill [1984] HCA 80; 155 CLR 1 Johnson v Staskos [2015] WASCA 32 Johnstone v State of New South Wales [2010] NSWCA 70; 202 A Crim R 422 Kuru v New South Wales [2008] HCA 26; 236 CLR 1 Lippl v Haines (1989) 18 NSWLR 620 McCarthy v State of New South Wales [2013] NSWDC 247 Poidevin v Semaan [2013] NSWCA 334; 85 NSWLR 758 R v O’Neill [2001] NSWCCA 193; 122 A Crim R 510 State of New South Wales v Delly [2007] NSWCA 303; 70 NSWLR 125
Texts Cited:	Second Reading Speech, New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 17 September 2002
Category:	Principal judgment
Parties:	State of New South Wales (Appellant) Paul James McCarthy (Respondent)
Representation:	Counsel: P Bodor QC with M S Spartalis (Appellant) T Molomby SC with L W Nicholls (Respondent) Solicitors: Henry Davis York (Appellant) Danny Eid Lawyers (Respondent)
File Number(s):	2014/83821
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Civil Citation: McCarthy v State of New South Wales [2013] NSWDC 247 Date of Decision: 20 December 2013 Before: Mahony DCJ File Number(s): 2013/49797

Judgment

1. MEAGHER JA: The issue in this appeal is whether the primary judge (Mahony DCJ) erred in holding the appellant liable for damages for a trespass to land committed in May 2010 when four police officers entered premises occupied by the respondent. The respondent was awarded damages in the sum of $30,000: McCarthy v State of New South Wales [2013] NSWDC 247.

2. On 13 May 2014 this Court granted leave to appeal from that judgment. That leave was limited to the question of liability and on condition that the State did not seek to interfere with the costs order made at first instance and would pay the respondent’s costs of the appeal in any event.

Overview

3. On 6 May 2010 shortly after 17:02 (the times referred to are from the police radio transcript relevantly extracted in [21]) four police officers entered residential premises in Larien Crescent, Birrong. The respondent was the occupier as tenant of those premises. The police entered following a complaint made earlier that evening that the respondent had assaulted his estranged wife, a 27 year old woman, who was then 38 weeks pregnant, and advice that their two year old child had been left with the respondent.

4. That complaint was broadcast over the New South Wales police radio network at 16:50 and was followed by further broadcasts which initially indicated that the respondent and the child were alone in premises on Powell Street, Yagoona. Subsequently, it was broadcast that the victim had given police the wrong address and that the correct address was in Larien Crescent. That broadcast was made at 16:59 after police vehicles had arrived at the Powell Street premises. Those vehicles then proceeded to the Larien Crescent address. The first arrived at 17:02. The vehicles occupied by the four officers arrived within the next minute.

5. The four officers entered the premises through the front door which was open. They announced their presence before entering and were in the house for just over a minute. They did not find the respondent or the young child.

6. At about 17:17 on the same day, the respondent attended Bankstown Police Station with the intention of alleging an assault upon him by his estranged wife. His presence at the station became known to one of the four officers (Sergeant Barakat) who requested that the respondent be arrested on suspicion of having assaulted his wife and breached an apprehended violence order. On the following day the respondent was released on bail and returned to Larien Crescent. At that time he found signs of entry and damage, including to the laundry door at the rear of those premises.

The proceeding at first instance

7. The respondent sued the Crown in right of the State of New South Wales alleging that it was vicariously liable for a trespass to land committed by the officers in the purported performance of their policing function: Law Reform (Vicarious Liability) Act 1983 (NSW), s 8(1). The State of New South Wales was correctly named as a party against whom those proceedings could be commenced: Crown Proceedings Act 1988 (NSW), s 5.

8. A police officer who enters private property without the consent of the person entitled to possession of it commits a trespass (and acts outside the course of their duty) unless the entering of the premises is authorised or excused by law: per Brennan J in Halliday v Nevill [1984] HCA 80; 155 CLR 1 at 10. In Kuru v New South Wales [2008] HCA 26; 236 CLR 1 at [43] the position is stated by the plurality (Gleeson CJ, Gummow, Kirby and Hayne JJ) slightly differently and so as to suggest that the absence of consent is not an element of the tort but a defence by way of justification for the wrong committed by the intentional entry onto the land of another. That difference is not relevant in this case because the absence of consent was admitted. Accordingly, the only issue at trial was whether the entry of the four officers was lawfully authorised. By its defence the State contended that they were so authorised, either pursuant to ss 9(1)(a) or (b) or 10(1) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) or the common law.

9. Sections 9 and 10 of LEPRA relevantly provide:

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.

…

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.

(3)   A police officer who enters premises under this section may search the premises for the person.

…

10. Although in its defence the State pleaded lawful entry by the exercise of the officers’ common law power to enter to prevent a breach of the peace or an apprehended breach of the peace, its case before the primary judge was confined to reliance on ss 9 and 10: [2013] NSWDC 247 at [169]. That is understandable because s 9(1)(a) sought to codify and clarify the existing common law power to enter where a breach of the peace is being or is likely to be committed and it is necessary to enter immediately: Second Reading Speech, New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 17 September 2002 at 4846. Although ground 5 of appeal also asserts error in failing to find that the officers were lawfully authorised pursuant to that common law power, the appellant’s submissions focused only on the statutory provisions. That makes it unnecessary to consider the scope of the common law right to enter in the face of an imminent breach of the peace and the considerations referred to in Kuru v New South Wales at [49] – [51].

11. The primary judge concluded at [170] that the entry of the officers into the premises was not justified pursuant to ss 9 or 10 of LEPRA. He also held, no doubt so as to address fully the State’s defence, that the entry was not justified at common law.

12. The respondent’s argument in support of that conclusion included that none of these powers was lawfully exercised because of the failure of the officers to give the reason for its exercise in accordance with s 201(1) of LEPRA, as it was then in force. (That section is in Pt 15 of the Act. That Part as originally enacted was omitted and a new Pt 15 inserted by Sch 2 of the Law Enforcement (Powers and Responsibilities) Amendment Act 2014 (NSW). That new Part came into force on 1 November 2014.)

13. The relevant provisions of s 201 as in force in May 2010 are set out in [68] below. They provided that a police officer exercising specified powers, including a power of arrest or of entry, whether arising under the Act or the common law, must, if it is practicable to do so before or at the time of exercising the power, provide to the person who is the subject of the exercise of power, information including “the reason for the exercise of the power”. If it is not practicable to do so at that time the information must be provided “as soon as is reasonably practicable after exercising the power”: s 201(2)(b).

14. Whilst the respondent was being held at Bankstown Police Station on the evening of 6 May 2010, he was interviewed by Senior Constable Heard and Constable Wakefield, two of the four officers who entered his premises. At no time during that interview was he advised that they or any other officers had exercised any power to enter his premises an hour or so earlier. It was not controversial that by the time of that interview it was “reasonably practicable” for one of those officers to have informed him of the exercise of the power and of the reason for it. In view of s 201(4), which provides that where two or more officers are exercising a power only one officer present is required to comply with the section, it was accepted that this would have constituted compliance with s 201(1) in relation to the exercise of any power of entry by each of the four officers.

15. The respondent relied upon an alleged failure to comply with s 201(1) in two ways. First, it was submitted that non-compliance after the exercise of the power had the consequence that it was not exercised lawfully with the result that there was no statutory authority to engage in what was otherwise accepted to have been tortious conduct. In support of that argument reference was made to this Court’s decision in Poidevin v Semaan [2013] NSWCA 334; 85 NSWLR 758. The primary judge rejected that argument. Secondly, it was submitted that the absence of compliance was consistent with the position being, as the respondent asserted, that the officers had not at the relevant time purported to exercise lawfully any power to enter.

The questions in the appeal

16. There are two questions in the appeal. The first is whether the primary judge erred in failing to find that each of the officers satisfied the requirements in ss 9 or 10 of LEPRA relating to the exercise of a power to enter. Although the primary judge rejected the appellant’s justification defence based on those sections, his Honour did not completely and separately address the appellant’s reliance on these different provisions in relation to each of the four officers. This first question is raised by grounds of appeal 1, 2, 3, 4 and 6.

17. The second question is whether the primary judge should have held that any entry by the officers in purported exercise of a power under ss 9 or 10 was not lawfully authorised because of the failure of any of the officers to provide the information required by s 201(1) after exercising the power. This question is raised by the respondent’s notice of contention.

18. When addressing the first of these questions, it is convenient to consider the arguments made in relation to each of the officers, commencing with Sergeant Barakat. Before doing so reference must be made to the transcript of the police radio recording, which was the primary evidence relied upon by the State, and to aspects of the reasoning of the primary judge, so as to explain how his Honour dealt with the issues raised by ss 9 and 10 of LEPRA.

The police radio recording

19. The significant entries from the transcript of this recording are extracted below by reference to the item number, time, speaker and record of what was broadcast. The references to speakers, other than to the radio operator, are to police vehicle radio call signs. Sergeant Barakat was in the vehicle identified as Bankstown 14, Senior Constable Heard and Constable Wakefield were in Bankstown 38 and Senior Constable Sands was in Bankstown 400. The vehicle MEOC 37 was used by the Middle Eastern Organised Crime Squad. Bankstown 300 was the call sign of Senior Constable Mikatai, a Domestic Violence Liaison Officer.

20. The trial was conducted on the basis that each of the four officers had heard all of the relevant transmissions over the police radio network (which uses the call sign VKG) and remembered them at the time the premises were entered.

Extract from transcript of VKG recording

21. Those broadcasts included the following. The notation “two beeps activated” indicates that the “job” required an urgent response. That indication was given by two beeps over the radio network:

Item No	Time	Speaker	Broadcast
1	Thurs 6 May 2010 16:50:31	Radio Operator	Bankstown 16 go ahead to [xx] Powell Street, cross of Emery Avenue, Yagoona. 27 year old female [xxx] was assaulted by her ex-husband. She's 38 weeks pregnant. She's suffering abdominal pain. The Offender’s decamped. Ambos on the way.
4	16:51:00	Bankstown 300	Just in regards to the last job broadcast, I've got the victim in the back of the ambo right now. Just turning up to Bankstown Hospital. Just stand by. We've got a different address for the actual offence
6	16:51:20	Bankstown 300	Copy that radio, can you get cars to go to that job as a matter of urgency. The child is left in the care of this offender and I'll have a DOCS team sent up to them real quick to pick up the child
8	Bankstown 300	That’s correct radio. The female that's pregnant is with me right now at Bankstown Hospital. I've escorted the ambulance there just by chance and if you can have a car crew attend the Powell Street address as a matter of urgency as the 2 year old child is there alone with the offender.
9	16:52:00	Radio Operator [two beeps activated]	Bankstown crew thanks, Bankstown crew, [xx] Powell Street, Yagoona cross Emery. Any Bankstown crew thanks there's a 2 year old child that's there with the offender where the victim has been conveyed to hospital. The 2 year old child is there with the offender. Any Bankstown car, thanks.
12	Bankstown 16	Bankstown 16, I believe you just gave us that job. We'll go there. Does the POI need to be arrested at all?
14	Bankstown 300	Yeah Bankstown that’s correct radio, he's breached his AVO and assaulted the PINOP on the AVO
15	Radio Operator	Copy, 16 yes, he needs to be arrested. There is a current AVO
23	Bankstown 300	Yeah 300 radio. The name is Paul McCarthy, M, double C, A-R-T-H-Y
25	Bankstown 300	Warning for aggression towards police and he was a disqualified driver till 2011. If the first car that gets there could confirm if that child is there so I know where to send the DOCS crew
31	16:55:00	Bankstown 225	Copy, code red to Powell. If you could cut the sirens before you get there so it doesn't alert the offender. There is a 2 year old child inside the premises
64	16:58:40	Bankstown 14	Off in Powell Street radio, no further cars, the POI doesn't look like he's gonna … he is here ahh, we might have a possible address we're going to check out, I'll keep you advised
65	Radio Operator	Just confirming the POI is there and he was armed did you say?
66	Bankstown 14	Negative radio, the POI is not here but we may have another possible address he may be at, I'll advise shortly
70	16:59:20	Bankstown 300	I've just been informed by the DOCS staff that our victim has initially given us the wrong address. But she's probably trying to protect him. It's actually [xx] Larien Crescent, Birrong, If you want to check with 14 that's the address that he was given
72	Bankstown 14	Yeah apparently that's what … 400 has given me, we're just going to make our way up that way. Everyone's gonna be code blue at this stage
80	17:01:40	MEOC 37	Yeah thanks radio, can we get the number of Larien Crescent please for this concern for welfare
82	17:02:00	MEOC 37	MEOC 37 mark us off there now thanks
84	Bankstown 38	Yeah radio, can you mark BK38 off there as well
89	17:02:20	Bankstown 35	Bankstown 35 we’re off there also
91	17:02:40	Bankstown 14	Bankstown 14 I’m off there also.
93	Bankstown 400	Bankstown 400
97	17:04:20	Bankstown 400	l just need, information for 300, this house is unlocked and unsecured, we're just going to go through the house and just secure it. Is there any information in relation to the vehicle this guy may be driving
100	17:04:40	Radio Operator	In relation to that other address for Larien Crescent the premises is unlocked and unsecured. Is there any information regarding a vehicle that possibly decamped in
101	17:05:00	Bankstown 400	My offsider's just checking that now. The victim's in treatment, I'll interrupt and see what we can find out from her
103	Bankstown 400	Copy, it looks like this place is pretty empty
112	17:08:20	Bankstown 400	Negative, no further cars, it looks like this guy's done the Houdini, We're just going to do a canvas of some of the neighbours to see if they've seen anything. But at this point in time no further cars, he's not here.

The reasoning of the primary judge

22. The respondent’s evidence was that when he left the Larien Crescent address to go to Bankstown Police Station, the front door of those premises was closed. The primary judge accepted that evidence. However, his Honour did not make any findings as to how the door subsequently came to be open. He addressed the circumstances of the officers’ entry on the basis that immediately before they entered, the front door was open: [158]. This made it unnecessary to consider the movements of the police officers in the other vehicles - Bankstown 35 and MEOC 37 - who according to the radio recording notified their arrival in Larien Crescent at around 17:02: [157]. It was not part of the respondent’s case that those officers had entered the premises and the primary judge did not find that they had or that they might have communicated knowledge of the absence of any person in the premises to the other officers before they entered.

22. The primary judge focused upon the position as it presented itself to the four officers immediately before they entered. He found at [159] that the following information had been disseminated via the police radio:

(1)   That a 27 year old female, [XX], had been assaulted by her ex-husband and she was 38 weeks pregnant.

(2)   The victim was suffering abdominal pain and was being taken to Bankstown Hospital by ambulance.

(3)   The offender had decamped.

(4)   He had a two year old child with him.

(5)   He was to be arrested for breach of an Apprehended Violence Order.

(6)   His name was Paul McCarthy.

(7)   There was a warning for aggression by Mr Carthy [sic] towards Police and he was an unlicensed driver.

(8)   DOCS staff advised that the address given by the victim at first was incorrect, and she was probably trying to protect Mr McCarthy.

(9)   The address of the premises.

24. This last reference to the “premises” must be understood as being to the Larien Crescent premises. The earlier finding numbered (3) that the “offender” had decamped is controversial, if it is to be understood as suggesting that, before the officers entered those premises, there had been a broadcast that indicated that the respondent had already “decamped” from them. Item No 100 in the radio transcript shows that a communication in similar terms was not made until after officers had entered the premises and found them to be empty.

25. The primary judge then turned to the questions as to belief on reasonable grounds arising under ss 9(1) and 10(2). It was accepted by the State, correctly in my view, that those requirements must be satisfied in relation to each officer who relies upon the power as having authorised his entry. That position is to be contrasted with s 99(2) (as later enacted by the Law Enforcement (Powers and Responsibilities) Amendment (Arrest without Warrant) Act 2013 (NSW)) which provides in relation to the exercise of a power of arrest that one officer may do so under another’s direction without having separately formed the requisite belief.

26. The questions arising under s 9(1) were whether at the time he entered each officer believed on reasonable grounds that it was necessary to do so immediately to prevent a breach of the peace which was likely to be committed, or to prevent significant physical injury to the child in circumstances where it was believed that there was an imminent danger of such injury. His Honour considered these questions by reference to the position of Sergeant Barakat, taking account of the evidence as to his belief and the grounds for it. He then separately addressed Sergeant Barakat’s reliance upon the power of entry in s 10, which required that he believe on reasonable grounds that the person to be arrested was in the dwelling; and that his entry was for the purpose of making that arrest.

27. Having found that each of the officers was aware of the matters referred to in [23] above, the primary judge continued:

[160]   I further find that there was no indication of any person being present in the premises, as there was no noise or movement. Based on that information, no Police officer present could believe, on reasonable grounds, that a breach of the peace, as defined above, was being or was likely to be committed on the premises and it was necessary to enter the premises immediately to end or prevent that breach of peace pursuant to s 9(1)(a). There were no grounds for believing that the child was in imminent risk of danger on the basis of the information given, although Constable Wakefield was the only Police officer to acknowledge that.

[161] In respect of the power to enter pursuant to s 9(1)(b), the information provided to the Police may have amounted to reasonable grounds for a belief that the victim had suffered a significant physical injury. However, as she at Bankstown Hospital [sic], there could be no belief formed on reasonable grounds that it was "necessary to enter the premises immediately to prevent further significant physical injury or significant physical injury to a person" as required by the section. Nor was there any basis for such a belief in respect of the child.

[162] I do not accept Sergeant Barakat's evidence that he was relying on the second part of s 9 to ground his entry into the premises. That evidence amounted to a rationalisation constructed by Sergeant Barakat some three and half years following the incident to justify his entry onto the property. There was no evidence supporting his concern for the welfare of the two year old child being in imminent danger of significant physical injury. If in fact, it was genuinely held, it was not a belief held on reasonable grounds. There was no response to the Police announcing their presence at the front door of the premises, and no noise emanating from inside the premises. The Police had heard no sound of a child in distress, and, given the circumstances, did not even know if the offender or the child were there.

…

[165] To the extent that Sergeant Barakat relied on the whole of s 10 to authorise his entry, that section permits a Police officer to enter a dwelling to arrest a person only if the officer believes "on reasonable grounds that the person to be arrested or detained is in the dwelling". On the same analysis as outlined above, and for the same reasons, once there was no response to the Police announcing their presence at the front door, given the information then available to them, there was no reasonable grounds for Sergeant Barakat to believe that the plaintiff was inside the dwelling.

28. His Honour relied on the reasoning in these paragraphs in support of his conclusion that none of the officers was authorised to enter the premises. Critical to that conclusion was the finding that the absence of any response when the police first announced their presence, together with the absence of any apparent movement from inside the premises, meant that there were no reasonable grounds to believe that the respondent and the child were inside.

29. That conclusion was fatal to the State’s reliance on ss 9 and 10 in relation to each of the officers. Because there were no reasonable grounds to assume their presence in the house, none of the officers could reasonably have believed that it was necessary to enter to prevent significant physical injury to the child (s 9(1)(b)) or that the respondent was there and able to be arrested: s 10(2).

30. It is necessary to consider separately the challenges made to the primary judge’s conclusions in relation to each of the officers.

Sergeant Barakat’s reliance on ss 9 and 10

Evidence as to entry

31. Sergeant Barakat said that he believed when he entered the premises that the respondent was hiding inside. His evidence was that he entered for two reasons. One was to arrest the respondent. The other was his concern for the welfare of the child.

32. He gave the following evidence as to that belief and concern (tcpt 11/12/13, p 79):

A.   … and then when we had no response I believed the accused person was hiding inside because the house was just wide open and left like that.

Q.   What made you believe that he was hiding inside?

A.   There were several things that sort of led me to believe, first of all the fact that Bankstown 300 had asked us to respond urgently which sort of implied that the offences of the assault and breach of AVO had just occurred, and then upon our arrival we see the house wide open, like this was - it was uncommon, we worked in the Bankstown Local Area Command which is one of the probably more violent, more undesirable locations within Sydney when it comes to theft and break and enter and things like that. It was just an uncommon practice for people to leave their house wide open like that.

Q.   All right. And what happened then?

A.   Once there was no response, again we announced our office. I went into the residence to search for the accused person and to try and find this two year old child who I believed could've been at risk of physical harm.

Q.   Why did you believe that?

A.   Again there were several factors that led me to believe that in the sense that the information received that a heavily pregnant 38 week mother of the child was in hospital. There was an AVO already in existence for her protection. The warnings' given in relation to aggressive [sic] towards police, to me it just showed a propensity of violence and the fact that Bankstown 300 what I didn't - it's just come to me now that I remembered was there was mention of the DOCS team [sic] that led me to believe that if DOCS had been involved, there could’ve been harm occasioned to this child at a previous time so based on all those factors, I thought that that child was in need of - you know - I needed to remove that child from that situation.

Challenge to the finding as to absence of reasonable grounds for a belief that the respondent and child were inside

33. The appellant submits that the fact that there was no response to the police announcing their presence and the fact that there was no sign of movement inside the house did not mean that there ceased to be reasonable grounds for a belief that the respondent and the child were inside, and that the child was in imminent danger of physical injury. The respondent supports the primary judge’s contrary conclusions. He submits that his Honour was justified in relying upon the reference in the radio transcript (Item No 1) to the offender having “decamped” as being “a pretty good explanation for an open door”. It was also submitted that the fact that the door was open and that there was no response was a “very strange way for someone to hide inside a house” (tcpt 28/10/14, p 27, 30).

34. Three of the four officers explained why it was believed that the respondent was inside the house notwithstanding that the door was open. The primary judge does not deal with that evidence which is inconsistent with his challenged findings. In the passage extracted above, Sergeant Barakat described it as an “uncommon practice” for people living in the Bankstown area to leave their house wide open and that he thought this was an indication that the respondent was inside. In cross-examination Sergeant Barakat did not agree that it would be “unusual” for a person trying to hide from police to leave their front door open (tcpt 12/12/13, p 149).

35. Senior Constable Heard gave the following evidence, which was not challenged (tcpt 12/12/13, p 169 - 170):

Q.   I’ve asked you about your concerns for the child. I take it that your concerns are still the same at this stage?

A.   Yes, more. An open front door in a house in Birrong concerns me even more.

Q.   Why does that concern you more?

A.   Because that area is a known area for break and enters and I don’t believe people in Birrong leave their doors open during the day.

Q.   And did that have any effect on you?

A.   Yes.

Q.   What kind of – what --

A.   I was more concerned for the welfare of the child and fearing that it was, he was still or at – was still with his father inside that house. There was no response.

Q.   Why did that make you think he was inside the house?

A.   Well I hadn’t been, hadn’t been updated with any other radio responses saying that he’d been located or found anywhere else so I still believed that he was inside that house with his child.

36. Constable Wakefield said that he believed that the respondent and child were inside the house (tcpt 13/12/13, p 255). It was not suggested to him in cross-examination that the absence of any response to someone saying the words “Police, police” or of “sounds or anything of the like” indicated that there was no one inside (see tcpt 13/12/13, p 259 - 260).

37. Finally, Senior Constable Sands gave the following evidence (tcpt 16/12/13, p 282), which again was not challenged:

Q.   What is the significance of that entry?

A.   The fact that the house was unlocked and unsecured.

Q.   And what was the significance of the house being unlocked and unsecured?

A.   I believed somebody was home.

Q.   Why did it make you believe someone was home?

A.   Because most people lock their houses if they leave the home. If the house is unlocked, there's a reasonable cause that somebody would be home.

Q.   Who did you believe was home there at that time?

A.   The male occupant.

Q.   Anyone else?

A.   And the child.

38. The primary judge did not find that upon their arrival and before the police had announced their presence there were not reasonable grounds for their believing that the respondent was inside. The police radio record makes plain that the reason the police went to that address was because the respondent may have been there. At 16:58 (Item No 66) the officers were told that the respondent was not at the Powell Street address but that there was “another possible address he may be at”. They were then given Larien Crescent as the address “he may be at” and told the source of that information was the “victim” (Item Nos 66, 70). The only reason for the police descending on that house was to find the respondent (and the child). The subsequent radio broadcasts of Senior Constable Sands (Item Nos 97, 103 and 112) requesting information as to the vehicle he “may be driving”, and advising that “it looks like this place is pretty empty” and that “he’s not here” show the purpose of the entry to have been to find the respondent.

39. The respondent relied on the statement that he had “decamped” (Item No 1), maintaining it meant that he was not at the Larien Crescent address. That statement was broadcast at 16:50 and having regard to the subsequent broadcasts (particularly Item Nos 8, 9, 31, 66, 70 and 72) was not to be understood as a reference to his having at some time left either of the Powell Street or Larien Crescent addresses. If the primary judge is to be understood to have found otherwise in [159], that finding is inconsistent with a fair reading of the radio transcript.

40. Contrary to the primary judge’s findings at [160] and [165], in my view there were reasonable grounds for Sergeant Barakat and the other officers to believe at the time they arrived at Larien Crescent that the respondent and the child were inside. The radio broadcasts were sufficient to induce a belief that that was likely to be the fact. It was not necessary that they establish on the balance of probabilities that he was there: see George v Rockett [1990] HCA 26; 170 CLR 104 at 116 where the Court said belief “is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture”.

41. The fact that there was no response or noise when the police announced their presence at the open door did not reasonably call into question the situation thought to be likely: George v Rockett at 112. The evidence of three of the officers (Sergeant Barakat, Senior Constable Heard and Senior Constable Sands) was that the fact that the door was open did not call into question their belief that someone was inside. That evidence was plausible and not seriously challenged. In my view the primary judge erred in not being satisfied that there were reasonable grounds for the officers to continue to believe that the respondent and child were inside the house.

Was Sergeant Barakat’s entry authorised by s 10(1)?

42. The primary judge did not make any finding as to whether Sergeant Barakat believed that the respondent was inside the premises and had entered to arrest him because it was suspected that he had committed an assault and breached an apprehended violence order. However, he recorded at [73] Sergeant Barakat’s evidence that his main focus “was to try and arrest the accused and locate the child”. The radio broadcast (by Item Nos 14 and 15) was that the respondent had committed each of those offences and needed “to be arrested”. Sergeant Barakat also asserted (tcpt 11/12/13, p 96) that he had relied upon the power in s 10. The primary judge rejected that claim as “a rationalisation of his conduct constructed some three years after the event”: [166].

43. Sergeant Barakat did not make a record of the events of 6 May 2010 in his Police notebook: [57], [58]. Nor did he have an independent recollection of much of the detail of what had happened: [66], [67], [69]. Although the primary judge later recorded at [143] that his evidence was “somewhat unimpressive”, his Honour’s conclusion at [166] that arresting the respondent was not a purpose for which the officer entered the premises was based on the “complete absence of any contemporaneous note” of that being the position and his subsequent non-compliance with s 201(1).

44. So described, that conclusion is not based upon an assessment of Sergeant Barakat’s credibility. It fixes upon two respects in which Sergeant Barakat’s version of events might have been, but was not, supported by contemporary materials and action. It does not, however, take account of other such materials and action, namely, the content of the radio transcript and the fact that when he became aware that the respondent was at Bankstown Police Station the Sergeant requested that he be arrested. Nor in considering what significance might be given to the non-compliance with s 201(1) does it take into account that Sergeant Barakat was not asked in cross-examination why he did not later provide any required information. His reasons for not doing so may have included that he was not the officer in charge, that officer being Senior Constable Heard, who had interviewed the respondent in the evening of 6 May 2010 with Constable Wakefield.

45. Accepting that Sergeant Barakat had little independent recollection of the events of that evening, the radio transcript – an objective and contemporaneous record of the relevant events – and Sergeant Barakat’s uncontroversial later conduct were completely consistent with the position being, as he asserted, that he believed the respondent was in the premises and that he entered for a purpose which included arresting him. That evidence established that Sergeant Barakat was aware of facts justifying the arrest of the respondent, that he had been instructed to affect his arrest, that the respondent was believed to be in the premises and that he had acted on that instruction to arrest the respondent after finding the premises were empty.

46. In my view the primary judge erred in not finding that Sergeant Barakat believed the respondent was inside and entered to affect his arrest. Those findings and a finding that there were reasonable grounds to induce that belief were sufficient to satisfy the requirements for the exercise of the power in s 10(1).

Was Sergeant Barakat’s entry authorised by s 9?

47. The appellant also submits that the primary judge erred in not finding that Sergeant Barakat believed at the time of entry, and on reasonable grounds, that there was an “imminent danger of significant physical injury” to the child and that it was “necessary to enter the premises immediately to prevent” such injury (s 9(1)(b)). His Honour dealt with these issues in [162] and concluded that there was no evidence supporting Sergeant Barakat’s “concern for the welfare of the two year old child being in imminent danger of significant physical injury”. His Honour considered that if that concern “was genuinely held, it was not a belief held on reasonable grounds”.

48. I understand this conclusion to be that there was no evidence supporting Sergeant Barakat’s asserted concern that the child was in imminent danger of significant physical injury. (The officer’s concern is that referred to by the primary judge at [54]). His Honour did not make a finding that this asserted concern or belief was not held. That is implicit in the qualified finding that if such a concern was “genuinely held”, it was not held on reasonable grounds. This makes it necessary to consider whether his Honour’s finding that there was no evidence providing reasonable grounds for a belief that the child was in imminent danger of significant physical injury was justified. If there was evidence sufficient to induce that belief in a reasonable person it would also support the existence of Sergeant Barakat’s asserted concern.

47. As MEOC 37 proceeded to Larien Crescent it described the job as involving a “concern for welfare” (Item No 80). The matters broadcast earlier provided a reasonable basis for significant concern. The respondent was said to have assaulted the child’s mother, who was 38 weeks pregnant (Item Nos 1, 14) and who had been conveyed to hospital (Item No 9). He was also said to have been the subject of an apprehended violence order that had been breached (Item No 14) and the subject of a warning as to previous aggression towards police (Item No 25).

48. In argument it was submitted for the respondent that the “urgency” concern in the radio broadcast (Item No 8) was as to the need to make arrangements for the child in the event that the respondent was arrested. When pressed counsel for the respondent accepted, correctly in my view, that the concern included that of the risk presented by “somebody who was willing to inflict … serious violence to his wife” (tcpt 28/10/14, p 23).

49. These factors were sufficient to cause a reasonable person to believe that there was a risk that the child could be physically harmed by the respondent and, having regard to the child’s age and inability to protect itself, that any harm which might be inflicted could be significant and occur at any time. The primary judge’s conclusion otherwise does not take account of the matters communicated by radio to the officers.

50. The fact that there was no response to the police announcement at the premises did not mean that there were no longer reasonable grounds for that belief. Obviously enough the respondent could have been hiding somewhere in the house and preventing the child from making any noise. A reasonable person in the position of the officers could not sensibly have walked away on the basis that there was no one in the house.

51. The respondent submitted that the circumstances could not reasonably have induced a belief that the child was in “imminent danger” of significant physical injury because they did not show that injury was likely to occur immediately. Something is imminent if it is likely to happen at any time. Here the circumstances justified a belief that it was necessary to enter the premises to prevent such injury and that perceived risk could only be eliminated by recovering the child from the respondent.

52. Finally, the respondent submitted that even if there were reasonable grounds for a belief in the terms of s 9(1)(b), Sergeant Barakat’s evidence was not of a belief answering that description (tcpt 28/10/14, p 24). In my view, as the primary judge appears to have accepted, Sergeant Barakat did assert a concern that the child was in imminent danger of physical harm. In the passage extracted above at [32] Sergeant Barakat identified the factors which caused him to believe that the child could have been at risk of physical harm. Based on those factors he considered the child had to be removed from the respondent’s custody. He also gave evidence that when he entered the house he had relied upon s 9 and the fact that “someone [being the two year old child] was in imminent danger of physical harm” (tcpt 11/12/13, p 96). That is the concern that the primary judge said at [162] was not supported by evidence.

53. There being that evidence and reasonable grounds for the officer to hold such a belief, the primary judge also erred in not concluding that Sergeant Barakat satisfied the requirements for entry in s 9(1)(b).

Senior Constable Heard’s reliance on ss 9 and 10

Evidence as to entry

56. Senior Constable Heard’s evidence in chief (tcpt 12/12/13, p 179) included the following:

A. I entered under s 9 for a breach of the peace - at the bottom section of s 9. So I believed that the child was in imminent risk of serious injury being left with the father. ...

Q.   Did you have any other power in mind?

A.   Yes. On the advice that Leading Senior Constable Mikati [sic] had broadcast that I had listened to, McCarthy had to be arrested for assaulting his 38-week pregnant wife, therefore breaching the apprehended violence order.

Q.   Were you intending to arrest him?

A.    Yes. I believed he was in that house.

Q.   Why did you believe he was in the house?

A.   Because all I could go on was the radio broadcast that there were serious concerns for the welfare of the child that was in the house and that’s the last known address of McCarthy, that's his residential address. I believed he was in that house at the time.

Findings as to Senior Constable Heard

57. The primary judge accepted Senior Constable Heard’s evidence that he believed that the child, having been left with the respondent, was at imminent risk of serious injury but found that there was no basis for that belief: [153]. He concluded that, because there was no reasonable basis for that belief, the Senior Constable’s “reliance on s 9 [was] a rationalisation of his actions taken some years after the event”: [163].

58. The primary judge’s general finding that there were not reasonable grounds for believing that the respondent was in the Larien Crescent premises applies equally to Senior Constable Heard: [160]. He did not, however, make any specific finding with respect to Senior Constable Heard’s reliance on s 10(1).

Was Senior Constable Heard’s entry authorised by ss 9 or 10?

59. The requirements relating to the exercise of the powers in ss 9(1)(b) and 10(1) were satisfied in relation to Senior Constable Heard’s entry. For the reasons appearing above there were reasonable grounds for a belief that answered the description in s 9(1)(b) and that the respondent and child were inside the house. The primary judge’s contrary conclusions did not take account of incontrovertible evidence, being the radio transcript, and for that reason involved error. Senior Constable Heard gave evidence that he entered with the intention of arresting the respondent. That evidence was not challenged and was consistent with the primary judge’s finding that the officers had been told that the respondent needed “to be arrested”: [159].

Constable Wakefield’s reliance on ss 9 and 10

Evidence as to entry

60. Constable Wakefield was in the vehicle Bankstown 38 with Senior Constable Heard. His evidence (tcpt 13/12/13, p 259) was that as they were driving to Larien Crescent they discussed why they were “going there”. The primary judge set out the relevant evidence at [105]:

Q.   What was said?

A.   We were going there to arrest the offender and check on the child.

Q.   Check on the child?

A.   Yes. That's the information we had at the time.

Q.   To check on the child?

A.   Yes.

Q.   There was nothing to indicate that the child was in immediate danger, was there?

A.   No, there wasn’t. We had no information.

Q.   None whatsoever. When you arrived outside the house you didn't hear any child screaming or anything to indicate that harm was being done at that very moment -

A.   No.

Q.   - inside the house?

A.   No.

Findings as to Constable Wakefield

61. On the basis of Constable Wakefield’s statement that there was nothing in the information he had which indicated that the child was in “immediate danger”, his Honour concluded that he did not purport to be entering the premises because he believed that there was an imminent danger of significant physical injury to the child and that it was necessary to enter to prevent that injury: [164]. The primary judge did not make any finding as to whether Constable Wakefield believed on reasonable grounds that the respondent, as the person to be arrested, was in the Larien Crescent premises. However, his reasons for concluding that Sergeant Barakat had no such grounds applied equally to Constable Wakefield: [165].

Was Constable Wakefield’s entry authorised by ss 9 or 10?

62. In his evidence in chief Constable Wakefield identified as one of the reasons that he entered the house that there was “a concern for a child” (tcpt 13/12/13, p 255). He did not give more specific evidence of the nature of that concern, although in cross-examination he accepted, as recorded above, that there was nothing to indicate the child was in “immediate danger”. That being the extent of his evidence, the primary judge is not shown to have erred in not being satisfied that he had a belief which answered the terms of s 9(1)(b).

63. The officer did however give evidence that he believed the respondent was inside the house and that a purpose for his entering was to arrest the respondent. His evidence in those respects was not challenged and accorded with the broadcast instructions. As there were reasonable grounds for a belief that the respondent was inside the house, the primary judge ought to have concluded that the requirements of s 10 were satisfied in relation to Constable Wakefield’s entry.

Senior Constable Sands’ reliance on ss 9 and 10

Evidence as to entry

64. Senior Constable Sands had no independent recollection of attending or entering the Larien Crescent premises: (tcpt 16/12/13, p 275). That was not surprising as the relevant events had occurred three and a half years earlier. After he was shown the radio transcript he gave evidence that involved reconstruction based on that transcript rather than evidence of any present recollection. That he did so emerges clearly from the following exchange in cross-examination (tcpt 16/12/13, p 289):

Q.   But if you've got no recollection of having a belief in relation to even attending the job, how was it that you were able to answer those questions?

A.   Because that's a transcript of what I said on the day and that would be my belief.

65. The broadcasts recorded in the transcript included, as the trial judge found at [159], that it was necessary to arrest the respondent for assault and breach of a court order. Senior Constable Sands gave evidence that at the time he entered the premises he believed that the respondent and the child were inside. That evidence is extracted in [37] above. That he entered expecting to find the respondent inside was corroborated by the radio transcript which establishes that he was aware by 17:04 that the house was unlocked and that officers were going through the house to secure it (Item No 97). After that had occurred he reported that it “looks like this place is pretty empty” (Item No 103), “like this guy's done the Houdini” and that “he’s not here” (Item No 112).

Findings as to Senior Constable Sands

66. The primary judge recorded that Senior Constable Sands “believed” that the respondent and child were in the premises when he entered: [156]. He made no further findings as to the officer’s belief as to the child being in imminent danger of significant physical injury or as to the officer’s purpose in entering the premises. However, the general findings that there were no reasonable grounds for a belief as to the child being in such danger and as to the respondent’s presence in the house, applied equally to Senior Constable Sands: [162], [165].

Was Senior Constable Sands’ entry authorised by ss 9 or 10?

67. The officer gave evidence that there were concerns for the child’s welfare, those concerns being that the respondent may assault the child (tcpt 16/12/13, p 277). In the absence of any other more specific evidence as to that belief, I am not persuaded that the primary judge erred in not finding that the requirement in s 9(1)(b) was made out in relation to this officer. The position was different, however, in relation to s 10. Senior Constable Sands gave evidence that he believed the respondent was inside when he entered; that there were reasonable grounds for such a belief; and that the fact of the instruction that the respondent be arrested justified a conclusion that he had entered for a purpose that included the respondent’s arrest. The primary judge erred in not concluding that the requirements of s 10 were satisfied in relation to Senior Constable Sands: [170].

The application of s 201 of LEPRA

68. Having concluded that the entry of each of the officers was lawfully authorised under ss 9 or 10 and that the primary judge erred in finding otherwise, the operation of s 201 falls for consideration. In circumstances where it was not practicable to provide the information in s 201(1) before or at the time of the exercise of the power, the question which the notice of contention raises is whether the conditions which had to be satisfied for the lawful exercise of those powers included the later compliance with s 201(1). The answer to this question turns on the proper construction of s 201, the directly relevant provisions of which are set out below:

(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. …

(2)   A police officer must comply with subsection (1) in relation to a power referred to in subsection (3) (other than subsection (3)(g), (i) or (j)):

(a)   if it is practicable to do so, before or at the time of exercising the power, or

(b)   if it is not practicable to do so before or at that time, as soon as is reasonably practicable after exercising 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,

(b)   a power to search a vehicle, vessel or aircraft,

(c)   a power to enter premises (not being a public place),

(d)   a power to search premises (not being a public place)

…

69. The powers referred to in subs (3) include powers conferred under the common law. The operation of LEPRA in relation to those powers was described by Leeming JA in Poidevin v Semaan [2013] NSWCA 334; 85 NSWLR 758 at [21]:

LEPRA expressly presupposes the continued existence of the police officer's powers at common law. … Section 4(1) states that the Act does not limit the functions, obligations and liabilities that a police officer has as a constable at common law, unless it otherwise provides expressly or by implication. Section 4(2) provides that without limiting subs (1), nothing in the Act affects the powers conferred by the common law to deal with breaches of the peace. It is clear (and it was common ground on the appeal) that the effect of s 4 and s 201 was to impose an obligation on a police officer exercising a power to seize property, and (as is confirmed by the opening words of s 201(3)), that obligation applies even when the power to seize property derives from the common law. …

70. Under the common law (but subject to exceptions) an officer lawfully exercising a power of arrest without a warrant is required to inform the person being arrested of the reason for their arrest prior to or at the time of exercising that power. Viscount Simon summarised the general principles in Christie v Leachinsky [1947] AC 573 at 587 – 588:

(1.) If a policeman arrests without warrant upon reasonable suspicion of felony, or of other crime of a sort which does not require a warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the reason to himself or to give a reason which is not the true reason. In other words a citizen is entitled to know on what charge or on suspicion of what crime he is seized. (2.) If the citizen is not so informed but is nevertheless seized, the policeman, apart from certain exceptions, is liable for false imprisonment. (3.) The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained. (4.) The requirement that he should be so informed does not mean that technical or precise language need be used. The matter is a matter of substance, and turns on the elementary proposition that in this country a person is, prima facie, entitled to his freedom and is only required to submit to restraints on his freedom if he knows in substance the reason why it is claimed that this restraint should be imposed. (5.) The person arrested cannot complain that he has not been supplied with the above information as and when he should be if he himself produces the situation which makes it practically impossible to inform him, e.g., by immediate counter-attack or by running away. There may well be other exceptions to the general rule in addition to those I have indicated, and the above propositions are not intended to constitute a formal or complete code, but to indicate the general principles of our law on a very important matter. [emphasis added]

71. That common law rule was applied by this Court in Adams v Kennedy [2000] NSWCA 152; 49 NSWLR 78 at [25]; and was said to apply in Western Australia until modified by statute in 2006. See Johnson v Staskos [2015] WASCA 32. The rationale underlying the requirement that reasons for the arrest be provided was described by Ipp JA in State of New South Wales v Delly [2007] NSWCA 303; 70 NSWLR 125 at [9] as being that the person arrested “should be put in a position to be able to give an explanation of any misunderstanding, or to call attention to others for whom they may have been mistaken, or to give some other exculpatory reason, and to assert that further inquiries may save them from the consequences of false accusation”. See also Johnstone vState of New South Wales [2010] NSWCA 70; 202 A Crim R 422 at [41] – [46] (Beazley JA).

72. Under the common law an officer authorised to arrest a person without warrant may also engage in conduct that would otherwise amount to a trespass and forcibly enter premises provided two conditions are satisfied. Gleeson CJ described the second of those conditions in Lippl v Haines (1989) 18 NSWLR 620 at 622:

Secondly, save in what the Supreme Court of Canada [Eccles v Bourque (1974) 50 DLR (3d) 753] described as “exigent circumstances”, there must be a proper announcement prior to entry so that the occupier of the premises is made aware that a police officer claims authority to enter and is given an opportunity to permit entry without force.

In Lippl and in R v O’Neill [2001] NSWCCA 193; 122 A Crim R 510 forcible entries by police officers were held not to be “lawful” because of a failure to satisfy this condition.

73. Under these principles the requirement to provide information concerning the exercise of the power had to be complied with before or at the time of its exercise and a failure to do so meant the power was not lawfully exercised with the result that conduct that was otherwise tortious was not excused or justified in law.

74. In the second reading speech for the Law Enforcement (Powers and Responsibilities) Bill 2002 (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 17 September 2002 at 4849), it was accepted that police would not always be able to comply with the “generic” safeguards introduced by Pt 15 prior to the exercise of the powers to which they applied:

Part 15 of the bill incorporates generic safeguards applicable to the majority of powers exercised under the Act. When, for example, police exercise powers of entry, search and arrest, they must, before exercising the power, provide a person subject to the exercise of the power with evidence that the officer is a police officer, his or her name and place of duty; provide the reason for the exercise of the power; and warn that failure or refusal to comply with a request of the police officer in the exercise of the power may be an offence.

The bill recognises, however, that police may not always reasonably be able to comply with the safeguards prior to using their powers, such as in an emergency situation. Accordingly, the clause requires in such circumstances that the safeguards should be exercised as soon as reasonably practicable after the power has been exercised. Even in emergency situations, however, police should strive to comply with all safeguards set out in the bill.

75. It was also said of those safeguards and the powers of arrest conferred by what became Pt 8 of LEPRA:

The application of the safeguards contained in part 15 of the bill represents the [codification] of the common law requirement that persons must be told of the real reason for their arrest and a clarification of the additional requirements that officers must provide their name, place of duty and a warning.

76. Turning then to the language of s 201, in connection with the exercise of a power referred to in subs (3), subs (1) identifies information and the person to whom it must be provided. Subsection (2) states when subs (1) must be complied with. Where it is not practicable to do so before or at the time of exercise, subs(1) is to be complied with “as soon as is reasonably practicable after exercising the power”. That reference in subs (2)(b) to “exercising the power” must be understood as being to a lawful exercise of the power, because it is only in that circumstance that the s 201(1) obligation is engaged. As Leeming JA observed in Poidevin v Semaan at [25] it is an “explicit premise of the section … that there will be some occasions when a compulsive power referred to in s 201(3) may be exercised without being preceded or accompanied by the provision of [the] information”.

77. That construction of subs (2)(b) was adopted in Poidevin v Semaan. There Mr Semaan had resisted Sergeant Poidevin’s attempts to seize his mobile phone and was charged with and convicted of resisting a police officer in the execution of his duty contrary to s 546C of the Crimes Act 1900 (NSW). Whether the offence charged was committed depended on whether the officer was acting in the lawful exercise of his duty at the time Mr Semaan resisted Sergeant Poidevin’s attempts to seize the phone. An appeal under s 52 of the Crimes (Appeal and Review) Act 2001 (NSW) was upheld by Rothman J, including on the ground that the Crown had not proved that the exercise of the power of seizure was lawful because there was no evidence that Sergeant Poidevin had complied with s 201(1). A question in the appeal to this Court was whether, for there to have been a lawful exercise of the power to seize property at the time of arresting, the information had to have been provided, either before, at the time of or after the exercise. The Court answered that question in the negative. Where it is not practicable to provide the information before or at the time of exercising the power, there is a “lawful exercise … notwithstanding the absence at that time of the information required by s 201(1)”: per Leeming JA at [25].

78. The language of s 201(2)(b) expressly provides that in a case like the present the information in s 201(1) must be provided after the exercise of the power. The lawfulness of that exercise is not expressed to be contingent on the subsequent provision of information where that information could not reasonably have been provided earlier. To construe the provision as having that consequence would make the lawfulness of the conduct of the police officers uncertain. That uncertainty could continue for some time, depending on subsequent events. (In Director of Public Prosecutions v Hawkins [1988] 1 WLR 1166, similar considerations informed the construction of s 28(3) of the Police and Criminal Evidence Act 1984 (UK), which concerned the provision of information in relation to the exercise of a power of arrest.)

79. The construction adopted reflects the position under the common law in relation to the provision of information as a condition of the lawful exercise of police powers of arrest and entry. In doing so it gives effect to the rationale for such a requirement, being that the person who is the subject of the exercise have the opportunity to respond, explain and, where appropriate, co-operate.

80. The argument made by the notice of contention should be rejected.

Proposed orders

81. The appeal should be allowed and orders otherwise made in accordance with the terms of the grant of leave. Accordingly, I propose the following orders:

1.   Appeal allowed.

2.   Set aside the verdict and judgment ordered by the District Court on 20 December 2013.

3.   Order the appellant pay the respondent’s costs of the appeal.

82. GLEESON JA: I agree with Meagher JA.

83. ADAMSON J: I agree with Meagher JA.

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Decision last updated: 03 June 2015