State of New South Wales v Randall

[2017] NSWCA 88

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	State of New South Wales v Randall [2017] NSWCA 88
Hearing dates:	23 February 2017
Decision date:	05 May 2017
Before:	Basten JA at [1]; Sackville AJA at [63]; McDougall J at [80]
Decision:	Summons for leave to appeal be dismissed with costs.
Catchwords:	APPEAL – leave to appeal – wrongful arrest and false imprisonment – construction and application of s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – construction and application of s 201 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – whether arrest reasonably necessary – whether it was reasonably practicable for the arresting officers to inform the arrested person of the reason for his arrest at the time of the arrest – whether the arrest was prospectively validated – whether non-compliance with s 201 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) was technical – whether damages excessive – inadequate reasons for damages – where a new trial would be a misuse of public and private resources – where outcome modest – where applicant’s complaints stem from the way in which it conducted its case at trial – application for leave to appeal dismissed
Legislation Cited:	Civil Liability Act 2002 (NSW), ss 52, 53, 54; Pt 7 Civil Procedure Act 2005 (NSW), s 56 Crimes Act 1900 (NSW), ss 58, 352 District Court Act 1973 (NSW), s 127 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 99, 201, 202, 204A, 204B, 230, 231; Pt 16 Police Act 1990 (NSW), s 213 Supreme Court Act 1970 (NSW), s 101 Uniform Civil Procedure Rules 2005 (NSW), r 51.53
Cases Cited:	A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10 Adams v Kennedy (2000) 49 NSWLR 78; [2000] NSWCA 152 Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 Carolan v AMF Bowling Pty Ltd t/a Bennetts Green Bowl [1995] NSWCA 69 Christie v Leachinsky [1947] AC 573 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Holgate-Mohammed v Duke [1984] AC 437 Hyder v Commonwealth of Australia [2012] NSWCA 336; 217 A Crim R 571 Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 Lamb v Cotogno (1987) 164 CLR 1 Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627; [2009] HCA 37 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 Prior v Mole [2017] HCA 10; 91 ALJR 441 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; [2005] HCA 24 State of New South Wales v Delly [2007] NSWCA 303 State of New South Wales v Koumdjiev (2005) 63 NSWLR 353; [2005] NSWCA 247 State of New South Wales v Riley (2003) 57 NSWLR 496; [2003] NSWCA 208 The King v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 Zaravinos v State of New South Wales (2004) 62 NSWLR 58; [2004] NSWCA 320
Category:	Principal judgment
Parties:	State of New South Wales (Applicant) Wayne Anthony John Randall (Respondent)
Representation:	Counsel: M J Windsor SC / D Hume (Applicant) DRJ Toomey SC / DJ Woodbury (Respondent)   Solicitors: McCabes Lawyers (Applicant) Foott, Law & Co (Respondent)
File Number(s):	2016/147428
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Date of Decision: 06 May 2016 Before: McLoughlin DCJ File Number(s): 2014/246907

Judgment

1. BASTEN JA: This case involved an application for leave to appeal and a proposed appeal heard concurrently. Leave was required because the amount of the damages awarded (and therefore the highest possible amount in dispute) was $34,500. [1] The trial proceeded over four days in September 2015, with written submissions being filed over the subsequent five months; there appears to have been a further day of oral submissions on 22 February 2016, although no transcript or summary of the submissions is before this Court.

   1. District Court Act 1973 (NSW), s 127(2)(c).

2. The likely disproportion between the costs involved and the outcome for the plaintiff provides a basis upon which it might have been appropriate to refuse leave without listing the matter for a concurrent hearing. However, that did not occur. There is therefore a live issue as to what steps this Court should take in the event that it is satisfied that the judgment below was affected by error.

3. The purpose of a civil trial in respect of a claim for tortiously inflicted injury is to resolve a dispute between the party injured and the party responsible for causing the injury, in accordance with law. The claimant must establish a cause of action known to law, in a manner which is not answered by the defence. To the extent that a judgment given following a trial departs from established legal principle, and an appeal (or an application for leave to appeal) is brought to this Court, the function of this Court includes maintaining the regularity of the administration of justice.

4. If, upon the hearing of an appeal (or application for leave) the court is satisfied that a significant error has occurred, it will be an unusual case in which the court will not grant leave to appeal. That is because, in a case such as the present, to require a defendant to pay damages otherwise than pursuant to an order made in accordance with law is apt to bring the administration of justice into disrepute. (The situation is different where there has been no full hearing and the application for leave has been dealt with separately from the hearing of the prospective appeal.)

5. Where error is established, it is necessary for the court to determine whether it can resolve the dispute itself, or whether the matter must be remitted for a further trial. The court is not permitted to order a new trial unless it appears that “some substantial wrong or miscarriage” has been occasioned. [2] Depending on the nature of the case, it is open to the court to remit part only of the controversy for a new trial. [3]

   2. Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), r 51.53.

   3. UCPR, r 51.53(3).

6. Application of this rule may appear to give rise to a dilemma in some cases. Because the rule only applies where error has been identified, if the precondition to a new trial is not satisfied, does the court leave the erroneous judgment on foot, or does it set the erroneous order aside, leaving the successful party at trial without a remedy? The Court will usually be astute to avoid the dilemma; where this Court can dispose of the appeal, even if that course is not ideal, it is sometimes the preferable option in circumstances where the amount at stake does not warrant the cost of a retrial, but established error makes it unattractive to let the judgment stand.

7. In the present case, that approach would allow this Court to reassess damages, that part of the decision being clearly flawed, if it were the only part subject to error. However, that is not the case. As explained below, the finding on liability is founded on a legally erroneous approach; in my view it should not stand and the question of liability should be disposed of by this Court. However, where the appellant is an institutional litigant with broader interests in establishing correct legal principle, it can be required to bear the costs of the appeal, or at least not recover its costs.

Nature of cause of action

8. The events giving rise to the claim occurred on the evening of 21 December 2013, shortly before 9pm, at the Grafton Racecourse. Senior Constable Bird and Constable Manusu approached a small group of persons suspected of possessing drugs. The plaintiff, who was not a member of the group (although he knew them) sought to intervene. With the exception of an initial push by Senior Constable Bird to the chest of the plaintiff, the conduct the subject of the claims occurred in the course of arresting the plaintiff and conveying him to Grafton police station. There were in effect three causes of action, namely (i) assault/trespass to the person; (ii) wrongful arrest, and (iii) false imprisonment. The false imprisonment was consequent upon the arrest and the alleged assaults, other than the push to the plaintiff’s chest, involved conduct in carrying out the arrest. There was no case pleaded in terms of excessive force; in substance the case turned entirely upon the legality of the arrest.

9. It is then necessary to turn to the scope of the powers relied upon by the police officers in carrying out the arrest. Those powers were to be found in ss 99, 201, 230 and 231 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“Law Enforcement Act”), as in force in December 2013. [4] The last two sections may be disposed of briefly; they provide that a police officer may use such force as is reasonably necessary to make an arrest, or to exercise any other function under the Act.

   4. The text of the key provisions is set out by McDougall J at [89] below. Section 201 has since been replaced, the key elements now being found in ss 201 and 202.

10. The validity of an arrest without a warrant turns on the satisfaction of three criteria. First, the officer must suspect on reasonable grounds that the person is committing or has committed an offence. [5] Secondly, the officer must be satisfied that it was reasonably necessary to arrest the person for any one of a number of reasons, including (i) to stop the person committing or repeating the offence or committing another offence, (iv) to ensure that the person appears before a court in relation to the offence, and (viii) to protect the safety or welfare of any person (including the person arrested). [6] Thirdly, s 201 (as then in force) required that a person arrested be informed of the reason for the arrest. It was assumed that satisfaction of each criterion was a condition of the validity of the arrest.

    5. Law Enforcement Act, s 99(1)(a).

    6. Law Enforcement Act, s 99(1)(b)(i), (iv) and (viii).

11. The relevant parts of s 201 of the Law Enforcement Act then stated:

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.

(d)   (Repealed)

(2)   A police officer must comply with subsection (1) in relation to a power referred to in subsection (3) …:

(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,

…

12. The application of this requirement is to be understood against its general law background. In New South Wales, the common law was explained in Adams v Kennedy,[7] being an authority concerned with the predecessor to s 99(1), namely s 352(2) of the Crimes Act 1900 (NSW). Section 99 is expansive in the functions to which the obligations to supply information under s 201 apply, and as to the information to be supplied. However, the common law requirement contained two qualifications. First, as explained by Viscount Simon in Christie v Leachinsky, the obligation to inform a person arrested of the reason for the arrest “naturally does not exist if circumstances are such that he must know the general nature of the alleged offence for which he is detained.”[8] Viscount Simon further stated: [9]

“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, eg, by immediate counter-attack or by running away.”

The second qualification, though not the first, applies with respect to an arrest pursuant to s 201(2). Whether the first still operates was not an issue addressed in this case.

7. (2000) 49 NSWLR 78; [2000] NSWCA 152 at [26] (Priestley JA, Sheller and Beazley JJA agreeing); see also State of New South Wales v Delly [2007] NSWCA 303 at [3] (Ipp JA), [51] (Tobias JA) and [100] (in my judgment).

8. Christie v Leachinsky [1947] AC 573 at 587 (principle (3)).

9.    Christie at 588 (principle (5)).

13. There is a further important distinction to be drawn between the nature of the three requirements. The first has two elements, namely the suspicion held by the arresting officer and, secondly, there being “reasonable grounds” for the suspicion. Most challenges to the validity of arrests turn on whether or not there were reasonable grounds for the suspicion, the grounds being a matter for assessment by the court. [10] By contrast, both the first limb and the second requirement involve a precondition to the exercise of the power of arrest which depends, not upon objectively verifiable circumstances, but on the state of satisfaction of the officer. Accordingly, unlike the requirement for reasonable grounds, a challenge to the existence of a suspicion or state of satisfaction will only be available where it can be shown that the suspicion or state of satisfaction was manifestly unreasonable,[11] or “arbitrary, capricious, irrational, or not bona fide”,[12] as explained by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu. [13]

    10. See with respect to similar (though not identical) Northern Territory legislation, Prior v Mole [2017] HCA 10; 91 ALJR 441 at [4] (Kiefel CJ and Bell J); [24]-[27] (Gageler J); and [98]-[101] (Gordon J).

    11. Holgate-Mohammed v Duke [1984] AC 437 at 443 (Lord Diplock), adopted in Hyder v Commonwealth of Australia [2012] NSWCA 336; 217 A Crim R 571 at [15](10) (McColl JA).

    12. The King v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 432 (Latham CJ).

    13. (1999) 197 CLR 611; [1999] HCA 21 at [131]-[137].

14. A similar, though not identical, constraint applies with respect to the time at which the reason for the arrest is conveyed. The validity of the arrest should not turn on nice questions as to whether it was “reasonably practicable” to give a reason at a particular point in time, so long as the purpose of the requirement is fulfilled. It is often not practicable to tell a person the reason for an arrest in a confrontational situation before the arrest is completed. It would be unfortunate if the validity of each arrest depended on the view of a court based on evidence given months or years later, although precisely how the section should be construed was not addressed and the language has since been varied. The question must be left for another case.

15. The conduct of police in arresting and detaining the plaintiff was undoubtedly tortious, unless it was justified in accordance with the provisions set out above. As justification constitutes a defence under the general law, the burden of establishing the elements of the defence fell upon the State,[14] which was sued pursuant to the terms of the Law Reform (Vicarious Liability) Act 1983 (NSW), as liable for any tortious conduct undertaken by the arresting officers. The officers themselves would have had immunity from civil action. [15]

    14. Zaravinos v State of New South Wales (2004) 62 NSWLR 58; [2004] NSWCA 320 at [37] (Bryson JA, Santow JA and Adams J agreeing).

    15. Police Act 1990 (NSW), s 213.

Validity of arrest – reasoning of trial judge

16. Because the present matter involves both an application for leave to appeal and the appeal itself, heard concurrently, it is necessary to outline the reasoning of the trial judge in concluding that the arrest was unlawful.

(a)   justification for arrest

17. First, the judge outlined the claims made in the statement of claim filed on 18 August 2014, together with some brief explanation of the underlying facts. [16] The events occurred on the evening of 21 December 2013, shortly before 9pm, in an underpass between the grandstand and the betting ring at the Grafton Racecourse. Senior Constable Bird and Constable Manusu approached a small group they suspected of being in possession of drugs. At the request of Senior Constable Bird, the group moved away from other people, with the officers. At that stage the plaintiff, who was walking past, approached the group and called out to police. There followed an exchange of words, after which the arrest took place.

    16.    Judgment, pp 1-3.

18. The matters which led to the arrest were in dispute; the conduct involved in the arrest and detention of the plaintiff were not. As the trial judge noted, the State admitted, and the evidence supported findings, that “both the police officers touched, grappled with the plaintiff, handcuffed him with Senior Constable Bird admitting to performing some kind of leg [sweep] manoeuvre to bring the plaintiff to the ground and kneeing the plaintiff in order to subdue him.” [17] (The judge later rejected a claim that the plaintiff had been kneed in the chest. [18] ) They then led the plaintiff, by a handcuff, to the police vehicle and took him to the police station where he was charged. He was released at about 1.10am the following morning, although he appears to have been held in custody because of his state of intoxication for some two hours of that time. [19]

    17.    Judgment, p 8.

    18.    Judgment, p 13.

    19.    Custody management record, p 3.

19. Before outlining the defence case as pleaded, the judge noted: [20]

“Of some moment is that the plaintiff was initially charged by the police officers with (1) resisting one of the police officer[s] in execution of duty, pursuant to s 546C of the Crimes Act; (2) resisting the police officer in execution of duty, pursuant to s 546C of the Crimes Act; (3) refusal/fail to comply with police direction; (4) assault police officer in the execution of duty; (5) resist police officer in the execution of his duty pursuant to s 58 of the Crimes Act; and (6) resist police officer in the execution of his duty pursuant to s 58 of the Crimes Act.”

(Section 58 of the Crimes Act 1900 (NSW) includes offences of assaulting, resisting and wilfully obstructing an officer in the execution of his or her duty, and assaulting any person with intent to resist a lawful arrest.) The judge then noted that the plaintiff ultimately entered a plea of guilty to the first charge at Grafton Local Court, and was convicted and sentenced; the other charges were withdrawn and dismissed. It will be necessary to return to the significance of the conviction.

20.    Judgment, p 2.

20. The trial judge then outlined the defence pleaded by the State, including the denials and the reliance on s 99(1)(a) and (1)(b) of the Law Enforcement Act. Pleadings based on ss 52, 53 and 54 of the Civil Liability Act 2002 (NSW) were also noted. Those sections relate to conduct by way of self-defence, whether or not self-defence was a reasonable response, and to injury or damage caused by a person engaged in a serious offence. The judge held that those provisions in Pt 7 of the Civil Liability Act were not engaged and there was no challenge to those findings.

21. Having summarised the pleading, the judgment set out in full the terms of both s 99(1) and s 201 of the Law Enforcement Act. [21]

    21.    Judgment, pp 6-7

22. In turning to the question of the arrest, the judge noted the plaintiff’s submission that it was central to the State’s case with respect to the evidence of both officers that “the plaintiff threw a punch at Constable Bird, which justifies the physical arrest that follows.” [22] The judge then referred to the evidence of both officers that a punch had been thrown, an allegation denied by the plaintiff. On questions of credibility, the judge stated that he found “the plaintiff’s evidence on its own not readily acceptable in that he was under the influence of alcohol to some degree and his evidence I only readily accept when there is supportive evidence to that which he says.” [23] On the basis of the evidence of two witnesses who had been in the vicinity and saw at least parts of the events as they unfolded, the judge found that the assault did not take place. [24] In a critical passage for present purposes, the trial judge continued: [25]

“The question that then flows [follows?] was whether the conduct of the police officers, where it is supported by the video extracts from the phones used to record, was a proper exercise of power when one looks at the matter to which the plaintiff ultimately pleaded guilty, and one has regard to s 99 of [the Law Enforcement Act].

I am of the view that under s 119 of LEPRA [s 99 of the Law Enforcement Act?] there was no proper basis for the police officers to arrest. The only offence that the plaintiff had committed was that to which he has pleaded guilty. He was making no attempt to flee from the police officers. There were no inquiries made as to establish the plaintiff’s identity. There were no doubts at that time that the plaintiff would not appear before a court.”

22.    Judgment, pp 8-9.

23.    Judgment, p 9.

24.    Judgment, p 9.

25.    Judgment, pp 9-10.

23. The last three sentences in this passage, together with further matters which have not been recounted, indicated that the judge was referring to the elements of the second requirement, set out in s 99(1)(b) of the Law Enforcement Act.

24. The judge then referred to the seriousness of the offence as disclosed by the fine imposed by the Local Court ($600) and turned to what appeared to be factors which may have influenced the police in taking the course that they did, namely that they were performing general duties, were understaffed, were only two in number at the racecourse, where there was a large number of young people drinking alcohol and some evidence that they had been dealing with “smartarses”. The judge continued: [26]

“I am of the view, that to use a little of the vernacular, … the plaintiff was being a smart alec to some degree at that time and that is what, with that background, brought about a police over reaction to the circumstances as I perceive it, and that the police have no basis on the question of assault to arrest the plaintiff and should not have arrested the plaintiff in relation to the matter ultimately proceeded with, being the resist, hinder police officer in the execution of duty as that matter could have been dealt with by any of the other methods available for police to have people attend Court, such as the CANS and the Court attendance, there being Court attendances [sic] notices of various forms.”

26.    Judgment, pp 10-11.

25. The plaintiff stated in this Court that it had been his case at trial that the evidence of Senior Constable Bird that a punch had been thrown at him “had been concocted.” [27] The submissions continued:

“The primary judge, who can have been under no misapprehension as to the case of fabrication being put by the plaintiff, accepted that case, thereby necessarily finding Constables Bird and Manusu to have concocted that assertion. In those circumstances, it is, with great respect, absurd to suggest, as the respondent does, that the question for the primary judge was not whether in fact a punch had been thrown but whether it was ‘open to Bird to form the view that’ it had.”

27.    Written submissions, par 2.

26. Those submissions should be rejected for a number of reasons. First, unless a reasonable suspicion of hindering the police could not form the basis of an arrest, the claim as to the assault was not determinative of the unlawfulness of the arrest. Secondly, despite rhetorical flourishes in the submission, there was no passage identified in the judgment which could be construed as an acceptance of a claim of “fabrication” or “concoction”, despite suggestions in cross-examination of Senior Constable Bird that the evidence of an assault was “fabricated”. [28]

    28.    Tcpt, 24/09/15 at 286; see also at 291-293.

27. Although the judge acknowledged that, in the view of senior counsel for the plaintiff, the State’s case turned upon the alleged assault, it is clear that the judge did not consider that the case turned only on that issue. Having addressed the matters set out above, he then turned to consider whether the plaintiff was informed of the reason for his arrest, to which much of the cross-examination of Senior Constable Bird was directed. [29]

    29.    Tcpt, 23/09/15 at 264-280.

(b)   informing as to reason for arrest

28. The mandatory terms of s 201 raise two questions as to its scope and operation. The first is whether it applies universally, thus removing the qualification that no reason need be given if it is obvious because of the circumstances of the arrest, as explained by Viscount Simon in Christie. [30] The second question is whether non-compliance necessarily leads to unlawfulness, and if not, in what situations it will do so.

    30. See [12] above.

29. With respect to the first question, there may be a degree of absurdity in requiring a statement of the obvious, especially if non-compliance renders the conduct unlawful. On the other hand, it is clear that s 201 expands the operation of the common law principle in a number of respects. For example, it extends the requirement beyond the exercise of the power of arrest without a warrant, to numerous law enforcement functions identified in s 201(3). Further, it requires, expressly, that the officer give his or her name and place of duty.

30. With respect to the second question, the State relied upon the approach adopted by the High Court in Minister for Immigration and Citizenship v SZIZO. [31] There the Court departed from aspects of the reasoning in an earlier decision[32] in which the majority had taken an uncompromising position that a statutory procedural requirement expressed in mandatory language inexorably led to the conclusion that want of compliance would render the consequent decision invalid. [33] At least in relation to a requirement, albeit expressed in mandatory terms, which went only to the manner of giving certain notices, where non-compliance had no practical consequence in the nature of procedural unfairness, “the use of imperative language” did not indicate “inviolable restraints conditioning the Tribunal’s jurisdiction to conduct and decide a review.”[34] The State contended for a similar approach to s 201.

    31. (2009) 238 CLR 627; [2009] HCA 37.

    32. SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; [2005] HCA 24.

    33.    SZIZO at [29] and [30].

    34. SZIZO at [36].

31. In circumstances where a statute prescribes specific matters in mandatory terms, apparently conditioning the exercise of an administrative or executive power, but does not identify the consequence of non-compliance, the effect of non-compliance must be a question of statutory construction to be determined in accordance with principles outlined in Project Blue Sky Inc v Australian Broadcasting Authority. [35] In short, it is necessary to identify a legislative purpose in respect of invalidation, which is to be “ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.”

    35. (1998) 194 CLR 355; [1998] HCA 28 at [91] (McHugh, Gummow, Kirby and Hayne JJ).

32. Applying those principles, there is much to be said for the view that it would be absurd if an arrest were rendered unlawful merely because the arresting officer failed to give his or her name and station. It might also seem absurd (and therefore an unlikely construction) if a reason were not given in circumstances where the reason was obvious and the officer had a sound basis for believing that the suspect knew the reason.

33. Despite the importance of the issues raised and the express articulation of the issues in written submissions, the questions noted above should not be determined in this proceeding. [36] That is for two reasons: first, it does not appear that they were addressed at the trial. Secondly, although the trial judge considered whether there had been compliance with s 201(1), and appears to have found that there had not been, he did not expressly find that the arrest was unlawful for that reason. His conclusion was expressed, relevantly, in the following terms: [37]

“It follows from what I have said that I am satisfied that the police, bearing in mind s 99 of LEPRA and s 201 of LEPRA legislation did not have a proper basis to arrest the plaintiff and the matter could well have been dealt with by way of a Court attendance notice or such other ways to ensure his attendance at Court. It follows on my finding that the arrest was an unlawful arrest and it follows from my finding that the conduct of the police officers, in furtherance of the arrest, amount[s] in these circumstances to an assault.”

36. The answer under the current legislation may be affected by an express reference to the consequence of non-compliance in defined circumstances, but not others: Law Enforcement Act, ss 204A and 204B.

37.    Judgment, p 17.

Challenge to finding of unlawful arrest

34. Although the judge noted that senior counsel for the plaintiff suggested that the case turned on whether or not the plaintiff had thrown a punch at Constable Bird before he was arrested, it is clear that the trial judge did not consider that that was determinative of the claim. Nor was there any suggestion that the defences raised by the State had been abandoned. That is demonstrated by the consideration given to the terms of s 99(1) and s 201(1) and to the provisions of the Civil Liability Act relied upon in the amended defence. However, in applying those provisions, the trial judge erred in two fundamental respects.

(a)   whether officer held a reasonable suspicion

35. Despite the terms of s 99(1)(a), which reflects principles established and applied over many decades under many similar statutes, at no stage did the judge determine either that the arresting officer had no relevant suspicion or that such suspicion as he harboured was not supported by reasonable grounds. Of particular significance in this respect was the fact that one of the charges, to which the plaintiff entered a plea of guilty and of which he was subsequently convicted, was the charge of hinder police. In that regard, the judge found that the plaintiff “did not deny he had been told that [he had] ‘stuck his nose into something that had nothing to do with him’ and that was hinder.” [38]

    38.    Judgment, p 14.

36. The passage to which the judge may have been referring was in the cross-examination of the plaintiff and was in the following terms: [39]

    39.    Tcpt, 21/09/15, pp 62-63.

“Q. … Is it because Constable Bird had said to you you’re under arrest that you were making the inquiry as to why you were under arrest?

A. No.

Q. At that stage you had been told to stop resisting?

A. Yes, I was being told to stop resisting.

Q. You knew by that stage that what you had done had interfered with the police, didn’t you?

A. Yes. To a degree I guess.

Q. To be fair to you, that was the charge to which you pleaded guilty, correct?

A. The hinder.

…

HIS HONOUR

Q. Why was it that – you have told us that you accept that you were interrupting the police?

A. Well, given the situation, like, yeah, I – yes and no, like I was having a joke but it was in the back of my head that that could be the reason, if that makes sense.

Q. What could be the reason, that your friend may have drugs on him?

A. That – with the joke.

Q. And there might be a drug search?

A. What was that?

Q. That your friend may have drugs on him and it may be a drug search?

A. Yeah.”

37. If, as the trial judge accepted, the plaintiff had been “at best belligerent in relation to their own investigation” [40] and had a fair idea that that was why he was being arrested, it is tolerably clear that Senior Constable Bird had a reasonable suspicion as to the commission of that offence. As the judge said, “[t]his case was run on whether or not it was the appropriate method of arrest where the only charge to be ultimately relied upon was the resist, hinder police in execution of their duty.” [41]

    40.    Judgment, p 17.

    41.    Judgment, p 14.

(b)   whether arrest reasonably necessary

38. This last passage in the reasons, read in the context of the passage set out at [33] above, makes it clear that the judge accepted that the arresting officer did suspect on reasonable grounds that the plaintiff was hindering his investigation, thereby satisfying s 99(1)(a). With respect to the second requirement, the judge was not satisfied that the course of arresting the plaintiff was “reasonably necessary” in relation to that offending. However, the correct question with respect to the second requirement was not what the judge thought, but what the officer thought was reasonably necessary in the circumstances; s 99(1)(b) refers to the officer being “satisfied”. The precondition to the exercise of the power is the officer’s state of mind.

39. To resolve that issue the judge was required to address the cross-examination of Senior Constable Bird in relation to the alleged assault. The thrust of the cross-examination was that, in earlier Local Court proceedings on 29 April 2014 with respect to the plaintiff, the officer had accepted that it was the attempted assault which justified the arrest. He had agreed on that occasion, that “the other matters” did not require an arrest. [42] However, in his cross-examination in this proceeding he did not agree that the assault was the only basis warranting arrest, but rather the plaintiff continuing to commit offences justified arrest. [43] He was then asked: [44]

“Q. You are now telling the Court that there was an ongoing offence of hinder?

A. That’s correct. And had he gone away when I requested him to do so and not continue to commit offences, I would not have had cause to arrest him.”

Unless that evidence were to be rejected, it constituted evidence of the officer’s state of mind at the time of the arrest. There was no finding that that evidence was rejected, nor, understandably, was such a finding sought by the respondent on the appeal.

42.    Tcpt, 24/09/15, p 288.

43.    Tcpt, pp 287-288.

44.    Tcpt, p 289.

(c)   relief – validity of arrest

40. In effect, the judge made two errors in this regard: first, in finding that the assault did not take place, he failed to address the question as to whether the arresting officer suspected that an assault had taken place and then determine whether such a suspicion (of which the officer gave evidence) was or was not based on reasonable grounds. Having accepted that the officer in fact had a suspicion based on reasonable grounds (as to the offence of hindering), the second error was to approach the further requirement on the basis of his own view of what occurred on the evening in question, rather than by reference to the state of satisfaction of the officer. As noted above, that state of satisfaction could only properly be challenged on the basis that it was arbitrary, capricious or manifestly unreasonable. That test was not applied, no doubt because there was no finding as to the underlying state of mind.

41. For these reasons, the finding as to the unlawfulness of the arrest cannot stand. In my view, the errors of principle in the approach of the trial judge raise matters of considerable importance in relation to the operation of the Law Enforcement Act, and would warrant a grant of leave to appeal, unless it be thought that the amount in issue precludes such a course. I accept that the amount in issue is relatively small, given the statutory requirement for leave in relation to any matter involving an amount less than $100,000, but it is commonplace that issues of principle can arise in cases which involve little or no monetary amount. I would give leave to appeal and set aside the judgment on this basis. I would not, however, interfere with the costs order made below.

Assessment of damages

42. Whether or not the matter is to go back for a retrial, it is nevertheless appropriate to deal with the grounds relating to the assessment of damages. If the matter is remitted, a second court should not feel constrained by the award determined by the trial judge; if the finding on liability is not set aside, the award of damages should be and this Court should substitute its own award.

43. The judge awarded the sum of $31,000 by way of damages, to which was added the sum of $3,500 by way of interest. The reasons were, as the plaintiff accepted on the appeal, at best exiguous. The only element which was the subject of reasoning was determined erroneously. It is convenient to deal with that element first.

44. The plaintiff sought to recover by way of damages for unlawful arrest an amount of $10,000, being the costs of representation by solicitors and counsel with respect to his criminal prosecution. The costs were entirely separate from the costs of the civil proceedings. The trial judge accepted that they were recoverable by reference to the authority of this Court in State of New South Wales v Koumdjiev [45] and allowed an amount of $6,000 on account of the legal costs of the criminal proceedings. Why he chose that amount is not revealed.

    45. (2005) 63 NSWLR 353; [2005] NSWCA 247.

45. The passage in Koumdjiev said to support a right of recovery in these circumstances was to be found in the judgment of Hodgson JA and was in the following terms:[46]

“I accept that, where a person is wrongfully arrested on a charge that arises separately from the circumstances of the arrest, there are generally no damages awarded in relation to the progress of the charges after the time of remand or bail, unless malicious prosecution is proved. However, I do not accept that this applies where the charges themselves arise from the circumstances of the wrongful arrest and associated assaults by the police. But for the police assault and wrongful arrest of the plaintiff, there would not have been any charges against him. In my opinion, the charges against the plaintiff were directly caused by the police assaults and wrongful arrest, and that accordingly the costs incurred in defending them can be included in the damages.”

46. Koumdjiev at [68].

46. The reasoning in this passage is not entirely transparent. It appears to commence with a distinction between a charge that arises separately from the circumstances of the wrongful arrest and a charge which arises from the circumstances of the wrongful arrest. It may be that the distinction is being drawn between the suspected offence which gives rise to the arrest (such as possession of drugs) and charges which are intimately connected with the process (such as resisting arrest). In the present case, the unrelated charges, namely the charges which led to the arrest, were both hindering police and assault. Applying that distinction would therefore require a division of the costs between the costs incurred with respect to those charges, to one of which the plaintiff pleaded guilty and the other of which was dismissed, from the costs relating to resisting arrest. That is not an exercise which is possible on the evidence and was not an exercise undertaken by the trial judge.

47. There are further difficulties in applying such a principle. In Koumdjiev, the arrest arose when police sought to deliver an intoxicated person to an apartment building where the police believed her boyfriend and brother to be. [47] The plaintiff refused to open the door, although it was opened remotely by another resident. The police then pushed in and there was a scuffle with the plaintiff in the course of which he was arrested. When charged with resisting police, he was acquitted on appeal in the District Court. It is not clear whether that was on the basis that the arrest was unlawful. In any event, the Court did not have to consider the factual circumstances which arose in the present case.

    47.    Koumdjiev at [5]-[8].

48. A difficulty in identifying the principled basis of Koumdjiev lies in the absence of any other authority to justify the principle in respect of damages, and the absence of any reasoned authority applying that principle. In terms of causation, it is at least arguable that the costs of defending criminal charges arose from the laying of the charges and not from the antecedent conduct of the parties. A tortious claim based on the consequence of laying criminal charges depends on the proceedings having been commenced without reasonable and probable cause and for a purpose other than the due enforcement of the law. [48] It would introduce a degree of incoherence into the law of torts if damages could be awarded on a claim of unlawful arrest for criminal defence costs on the basis outlined in Koumdjiev.

    48. A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10.

46. There is a further consideration which casts doubt on the award, even if the foregoing arguments are not accepted. It is that the causal connection between the unlawful arrest and the costs of defending the criminal proceedings should depend upon those costs having been incurred in an attempt to challenge the validity of the arrest. There was no finding that that was so in the present case. Nor was there any evidence as to why the police agreed to proceed with only one charge.

47. In these circumstances, no amount should have been allowed on account of the costs of the criminal proceedings, if only because the element of causation was not established on the evidence.

48. The judge allowed compensatory damages, including aggravated damages and exemplary damages, in the sum of $25,000. Each head of damages must be justified on different grounds. Except by saying that he bore in mind “the matter to which I have found” no explanation was given as to the basis for the awards, or the amounts involved.

49. So far as exemplary damages are concerned, it is necessary to make a finding that the behaviour of the officers was contumelious in disregard for the plaintiff’s rights. [49] No finding was made in those terms and, for the reasons explained in relation to the allegation of “concoction”, it is not apparent that any finding could properly have been made in those terms. It may be assumed that exemplary damages would not have been awarded in an amount of less than $10,000. The award should be reduced by that amount.

    49. Lamb v Cotogno (1987) 164 CLR 1 at 12-13.

50. With respect to aggravated damages, as explained by Hodgson JA in State of New South Wales v Riley [50] (and affirmed in Koumdjiev [51] ), where a court has included in an award of compensatory damages an amount on account of hurt feelings, the award of aggravated damages should only be such as “is necessary to bring the damages up to the upper end of the available range.”[52]

    50. (2003) 57 NSWLR 496; [2003] NSWCA 208 at [126]-[133].

    51. Koumdjiev at [65].

    52. Riley at [133].

51. As the State submitted on the appeal, allowance should be made in considering aggravated damages for the fact that the arrest arose from the provocative behaviour of the plaintiff and any damages awarded should be reduced accordingly. Further, the provocative behaviour continued after the arrest, with the plaintiff abusing the female officer in derogatory sexual language. It was also relevant that he appears to have been held for at least half the time at the police station as an intoxicated person,[53] for his own safety.

    53. Law Enforcement Act, Pt 16.

52. If the matter is not to go back for a retrial, and the finding of liability is allowed to stand, in my view this Court should determine the appropriate damages. For the reasons noted, there can be no award of exemplary damages, nor should the costs of the criminal proceedings be included. The behaviour of the plaintiff precluded an award of aggravated damages. Compensatory damages should awarded in an amount of $12,000.

Relief

56. The principles enunciated in this Court as to the circumstances in which leave to appeal may be granted or refused are generally to be found in applications for leave, heard separately from the proposed appeal and subject to the procedural constraints which apply to such applications. Even the starting point for such an analysis in recent years, Carolan v AMF Bowling Pty Ltd t/a Bennetts Green Bowl,[54] was such a case, although it was listed before three judges. More recently, contending applications for leave to appeal were listed before a three judge bench in Jaycar Pty Ltd v Lombardo. [55] As Campbell JA stated (with the agreement of Young and Meagher JJA), summarising the principle stated in Carolan:[56]

“… Sheller JA said that an applicant for leave must demonstrate something more than that the trial judge was arguably wrong in the conclusion arrived at. Cole J relied on a principle that where small claims are involved, it is important that there be early finality in determination of litigation, otherwise the costs that will be involved are likely to swamp the money sum involved in the dispute. Kirby P recognised that ordinarily it was appropriate to grant leave to appeal only concerning matters that involve issues of principle, questions of general public importance or an injustice which is reasonably clear, in the sense of going beyond what [was] merely arguable.”

54. [1995] NSWCA 69.

55. [2011] NSWCA 284.

56. Jaycar at [46].

57. Those principles are regularly applied in cases where the application for leave to appeal has been heard separately and before the proposed appeal. [57] In such cases the concern that costs will swamp the amount in dispute (where leave is required because the amount in dispute does not exceed the statutory floor) is often a significant factor. However, in the present case, those costs have already been incurred and that consideration carries little weight.

    57. See, eg, Be Financial Pty Ltd v Das [2012] NSWCA 164.

58. In other respects, the general principles are satisfied in this case. For the reasons set out above, the case does involve issues of principle and questions of general public importance, and it is (and was on a first consideration of the judgment below) reasonably clear that the trial judge had proceeded on an erroneous basis, in more than one respect.

59. The only basis for not granting leave at this stage and setting aside the finding of liability is that this Court may not be satisfied that the expense of a retrial is warranted, particularly if the amount of damages is likely to be in the order of the award indicated above. On the other hand, it would do no service to the administration of justice to leave a judgment on foot which wrongly awards damages in an amount approximately three times the amount proposed above, and in circumstances where the findings on liability cannot be supported.

60. Recognising the difficulty created by this dilemma, I would set aside the judgment and not remit the matter for a new trial. There are two principal reasons for accepting that such a course is open. First, it is clear that the arresting officer suspected on reasonable grounds that the plaintiff had committed the offence of hindering police in the execution of their duty and was continuing to interfere. At least his evidence to that effect was not rejected. The basis upon which the trial judge found the arrest invalid appears to have been a conclusion that it was not reasonably necessary to arrest the plaintiff in those circumstances. The challenge to that criterion required that the arresting officer himself was not satisfied that it was reasonably necessary to carry out the arrest. The case does not appear to have been run on that basis, with the result that it is open to this Court to conclude that the plaintiff failed to prove that the arrest was unlawful.

61. Secondly, for reasons explained above, the trial judge appears not to have concluded that the arrest was unlawful because the plaintiff was not given the reason for the arrest as soon as reasonably practicable. However, assuming that there was such a breach and that it invalidated the arrest at the time it took place, the breach was rectified by the giving of a reason when the plaintiff was placed in the rear of the police vehicle. It was common ground that, if the arrest were not otherwise invalid, it was validated at that stage. There would be no purpose in remitting the matter in order to determine that the arrest had been invalid for a matter of minutes.

62. Accordingly, I would make the following orders:

1. Grant the applicant leave to appeal from the judgment and orders made in the District Court at Grafton on 6 May 2016.

2. Direct that, within 14 days of the date of this judgment, the State file a notice of appeal in the form of the draft notice of appeal contained in the red appeal book.

3. Allow the appeal and set aside the judgment in favour of the plaintiff given by the District Court on 6 May 2016.

4. In place thereof, give judgment for the defendant on the plaintiff’s statement of claim.

5. Let any order for costs made in the District Court stand and make no order as to the costs in this Court.

63. SACKVILLE AJA: As McDougall J has pointed out, there are a number of difficulties with the judgment of the primary Judge. [58]

    58.    Randall v State of New South Wales, unreported, 6 May 2016, District Court.

64. First, his Honour appears to have assumed that if, contrary to the claims of the police officers, Mr Randall did not “throw a punch” at Senior Constable Bird, there could not have been a lawful basis for Mr Randall’s arrest. His Honour did not apply the test mandated by s 99(1)(a) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA). That is, his Honour did not consider whether Senior Constable Bird suspected on reasonable grounds that Mr Randall was committing an offence.

65. Secondly, assuming the correctness of his Honour’s finding that it was practicable for Senior Constable Bird to provide Mr Randall with the reason for his arrest when he was arrested (LEPRA ss 201(1)(c), 2(a), (b)), his Honour did not address the State’s argument that the arrest was prospectively validated from the time Mr Randall was in fact informed of the reason.

66. Thirdly, his Honour did not give adequate reasons for the award of exemplary and aggravated damages of $25,000.

67. Fourthly, there seems to be no discernible basis for his Honour to have included a component of $6,000 in the damages award for “the costs of defending the matter to which [Mr Randall] pleaded guilty”.

68. Ordinarily, these difficulties would provide more than adequate grounds to grant the State leave to appeal, even in a case where the judgment awarded in favour of Mr Randall was only for the sum of $34,500 inclusive of interest. [59]

    59. Cf Supreme Court Act 1970 (NSW), s 101(2)(r), requiring leave to appeal unless (relevantly) the appeal involves a matter at issue amounting to $100,000 or more.

69. I agree, however, with McDougall J that the parties chose to fight this protracted case at trial on the basis that the critical issue on liability was whether Mr Randall assaulted one of the police officers (as the State contended). This factual issue was hotly contested. Its resolution depended on the Primary Judge’s assessment of the credibility of Mr Randall and the police officers, taking into account the evidence of bystanders who witnessed at least part of the incident. While there are aspects of his Honour’s reasoning on the critical factual question that are perhaps not entirely convincing, the State has not established grounds on which this Court would be justified in interfering with the primary Judge’s credit-based findings. [60] I am therefore not persuaded that the State has demonstrated that the primary Judge erred in his finding on the factual question the parties considered to be virtually decisive of Mr Randall’s claim.

    60. See Fox v Percy (2003) 214 CLR 118; [2003] HCA 22.

70. If this Court granted leave to appeal and allowed the appeal because of the errors I have identified, the result would be a new trial. The parties would presumably be free to relitigate all issues, including those given scant attention at the original trial. The additional costs would be wholly disproportionate to the amount at stake in the litigation.

71. The Uniform Civil Procedure Rules 2005 (NSW) r 51.53, provides that the Court should not order a new trial unless it appears that “some substantial wrong or miscarriage” has been occasioned. As Basten JA pointed out in Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das,[61] r 51.53 “reflects a principle of parsimony in requiring that the parties be put to the expense of a second trial”.

    61. [2012] NSWCA 164 at [36] (Tobias AJA agreeing).

72. The following factors in my view militate against granting leave to appeal:

• the manner in which the parties conducted the trial and, in particular, their identification of the factual question said to be critical to the outcome;

• the failure of the State to establish appellable error in the primary Judge’s credit-based finding of fact on the critical issue;

• the small award of damages to Mr Randall;

• the very substantial and disproportionate costs already incurred by the parties;

• the very large costs that would inevitably be incurred if a new trial were to take place; and

• the fact that errors made by the primary Judge have been identified so that the decision can have no significance as a precedent.

73. Since writing the above I have had the opportunity to read the judgment of Basten JA. I do not agree, with respect, that the listing of an application for leave and a proposed appeal concurrently inhibits the Court in determining, in accordance with established principle, that leave to appeal should be refused.

74. I also do not agree, with respect, that the proposed appeal involves significant issues of principle or that to refuse leave to appeal “is apt to bring the administration of justice into disrepute”. As has been explained, the State elected to fight the claim on the factual issue of whether Mr Randall assaulted one of the police officers. Some of the issues the State wished to raise on an appeal were not raised at the trial. Had they been, they may have involved issues of principle.

75. Having regard to the orders Basten JA proposes, reference should be made to an exchange that occurred in this Court between senior counsel for the State and the Bench (Ts 8):

“BASTEN JA: How could this Court possibly make findings of fact on the basis of a case where no witness has been seen and there are findings missing from the findings of the primary judge?

WINDSOR: Your Honour, the position, in my respectful view, is that this case, in the event that my client is successful, has to go back.

BASTEN JA: But you don't seek remittal.

WINDSOR: Well, for the purposes of the application before this Court, we would submit that a proper course to adopt would be leave be granted, appeal be allowed and the matter be remitted to the District Court for the purposes of a re-hearing.

BASTEN JA: Well, that sounds very sensible to me, but it doesn't confirm to the draft notice of appeal.

WINDSOR: I appreciate that, your Honour.”

76. A further reference was made later to the draft notice of appeal (Ts 49-50):

“BASTEN JA: … Mr Windsor, can I just say before you start that I think if you do, as seems to be common ground, seek remittal, as the respondent acknowledges is the appropriate order if the appeal is allowed, you need to file an amended draft notice of appeal.

77. The State duly filed a draft Amended Notice of Appeal seeking the following orders:

“1   Appeal allowed.

2   The orders below as to liability, damages and costs be set aside.

3   The matter be remitted to the District Court for a retrial by such judge of the District Court to whom the matter may be assigned in that Court.

4   There be no order as to the costs of the application for leave to appeal or the appeal.”

78. In light of the exchanges during the hearing and the filing of the amended draft Notice of Appeal, the orders proposed by Basten JA are:

• inconsistent with the concession made by the State that if the appeal were to be allowed, the matter would have to be remitted to the District Court;

• outside the orders sought in the amended draft Notice of Appeal; and

• reflect the orders originally sought by the State but specifically deleted from the amended draft Notice of Appeal.

For these reasons I consider that the application for leave to appeal must be considered on the basis that a successful appeal would require the matter to be remitted to the District Court.

79. I agree with the orders proposed by McDougall J.

80. McDOUGALL J: In the evening of 21 December 2013, the respondent (Mr Randall) was involved in an altercation with two police officers at the Grafton Racecourse. As a result of the altercation, Mr Randall was arrested, conveyed to Grafton Police Station, charged with a number of offences, and detained for approximately four hours. Ultimately, during the course of a contested hearing, five of the charges were withdrawn and dismissed, and Mr Randall pleaded guilty to the remaining charge (a charge of hindering police in the execution of their duty).

81. Mr Randall claimed that in the circumstances I have briefly recounted, he was assaulted, wrongly arrested, and falsely imprisoned. He sued the applicant (the State) for damages, on the basis (conceded by the State) that it would be vicariously liable for any wrongdoing on the part of the police officers.

82. After a contested hearing that lasted some five or six days, the primary judge found in favour of Mr Randall. He assessed damages at $31,000 together with interest. With interest later agreed at $3,500, the primary judge entered judgment in favour of Mr Randall for $34,500.

83. The State seeks leave to appeal from the judgment of the primary judge. The application for leave to appeal was heard on the basis that the submissions on the application would be treated as submissions on the appeal, were leave to be granted.

84. For the reasons that follow, I am of opinion that the application for leave to appeal should be dismissed with costs.

Background

85. Apparently, there had been a “Santa pub crawl” in Grafton in the afternoon of 21 December 2013. Perhaps not surprisingly, a large number of people appear to have participated. They finished up at Grafton Racecourse, where the merriment continued.

86. The police officers concerned, Senior Constable Bird and Constable Manusu, were on duty at Grafton Racecourse. They received information which led them to suspect that a group of people in a particular place at the Racecourse were either dealing in or in possession of prohibited drugs. They went to speak to those people.

87. It is common ground that Mr Randall intervened while the police officers were speaking to those persons. Whilst the evidence as to the precise language used by Mr Randall varies, it is clear that he invited those to whom he spoke to give him their “gear” or their “shit”: whatever it was that was in their possession that had attracted the suspicions of the police. Mr Randall said that this was done in jest. Senior Constable Bird and Constable Manusu did not find it funny. They took the view that it was hindering them, and asked Mr Randall to desist.

88. After an exchange of vulgar language, the altercation to which I have referred commenced. The evidence of the police officers was that they attempted to move Mr Randall on, whereupon he clenched his fist and threw a punch, which failed to connect, at Senior Constable Bird. They said that Senior Constable Bird pushed Mr Randall back, and that Mr Randall then behaved in a way that suggested that he was preparing to launch another punch. The police officers thereupon tackled him, forced him to the ground, and after a struggle applied handcuffs to him. He was then escorted to a police “truck”, placed in it and taken to Grafton Police Station.

Relevant provisions of the Law Enforcement (Power and Responsibilities) Act 2002 (NSW)

89. The State’s defence raised issues under s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA). The facts proved before the primary judge also raised issues under s 201 of LEPRA. I set out those sections:

99 Power of police officers to arrest without warrant

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

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

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

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

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

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

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

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

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

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

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

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

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.

(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 that 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.

(2A)   A police officer must comply with subsection (1) in relation to a power referred to in subsection (3) (g), (i) or (j) before exercising the power, except as otherwise provided by subsection (2B).

(2B)   If a police officer is exercising a power to give a direction to a person (as referred to in subsection (3) (i) by giving the direction to a group of 2 or more persons, the police officer must comply with subsection (1) in relation to the power:

(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, as soon as is reasonably practicable after exercising the power.

(2C)   If a police officer exercises a power that involves the making of a request or direction that a person is required to comply with by law, the police officer must, as soon as is reasonably practicable after making the request or direction, provide the person the subject of the request or direction with:

(a)   a warning that the person is required by law to comply with the request or direction (unless the person has already complied or is in the process of complying), and

(b)   if the person does not comply with the request or direction after being given that warning, and the police officer believes that the failure to comply by the person is an offence, a warning that the failure to comply with the request or direction is an offence.

(2D)   In addition, if a police officer exercises a power that involves the making of a direction under section 198 on the grounds that a person is intoxicated and disorderly in a public place, the police officer must provide the person the subject of the direction with a warning that it is an offence to be intoxicated and disorderly in that or any other public place at any time within 6 hours after the direction is given.

(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),

(e)   a power to seize any property,

(f) a power to stop or detain a person (other than a power to detain a person under Part 16) or a vehicle, vessel or aircraft,

(g)   a power to request a person to disclose his or her identity or the identity of another person (including a power to require the removal of a face covering for identification purposes),

(h)   a power to establish ha crime scene at premises (not being a public place),

(i)   a power to give a direction to a person,

(j)   a power under section 21A to request a person to open his or her mouth or shake or move his or her hair,

(k)   a power under section 21A to request a person to submit to a frisk search or to produce a dangerous implement or metallic object.

(3AA)   Despite subsection (3), this section does not apply to the exercise of a power to enter premises or to search premises or a vehicle, vessel or aircraft that is conferred by a covert search warrant.

(3A)   If a police officer is exercising more than one power to which this section applies on a single occasion, and in relation to the same person, the police officer is required to comply with subsection (1)(a) and (b) in relation to that person only once on that occasion.

(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.

90. In brief, the State pleaded and argued that the arrest was justified under s 99(1)(a), because of the circumstances set out in s 99(1)(b)(i), (iv) and (viii).

91. Mr Randall contended that the arrest was unlawful because, in contravention of s 201(1)(c), he was not told before or at the time of his arrest why it was that he was being arrested. The State contended that it was not reasonably practicable for the police officers to inform Mr Randall of those reasons at the time he was arrested, and that he was informed of them as or immediately after he was placed in the police truck.

92. Both Senior Constable Bird and Constable Manusu gave evidence that Mr Randall was informed of the reasons for his arrest when he was placed in the police truck. Mr Randall was cross-examined on this point. He did not deny that aspect of the police officers’ evidence.

93. It was common ground on the hearing of the application for leave that, assuming Mr Randall had been informed thus of the reason for his arrest (and I see no reason why this aspect of the evidence of the police officers should not be accepted), the arrest thereupon became prospectively lawful. Mr Windsor of Senior Counsel, who appeared on the hearing of the application for leave with Mr Hume of Counsel for the State, submitted that in those circumstances the period of any unlawful detention was very brief. Mr Toomey of Senior Counsel, who appeared with Mr Woodbury of Counsel for Mr Randall, did not suggest otherwise.

The proposed grounds of appeal

94. There were six proposed grounds of appeal.

95. Ground 1 contends that the primary judge erred by misconstruing s99(1)(a). It contends that his Honour did so, in effect by holding that, because (as his Honour found) the assault that Mr Randall was alleged to have committed on Senior Constable Bird had not occurred, it followed, in terms of s 99(1)(a), that the police officers had no reasonable grounds to suspect that he was committing or had committed the offence of assault for.

96. Ground 2 contends that the primary judge had asked the wrong question in respect of s 99(1)(b). The State said that his Honour had asked himself whether, on the evidence, it had been shown that the arrest was reasonably necessary for one or other of the particularised purposes. The correct question, the State contended, was whether the arresting officer was satisfied that an arrest was reasonably necessary. By extension, the State said that the primary judge erred by failing to consider, or failing to provide reasons for rejecting, the arresting officer’s evidence on that question.

97. Ground 3 contends that the primary judge erred “by failing to explain, or otherwise give reasons as to, why [his Honour] rejected the police officers’ evidence” of Mr Randall’s assault on Senior Constable Bird.

98. Ground 4 contends that the primary judge erred:

1. by holding (it is said) contrary to the evidence and without adequate reasons, that it had been reasonably practicable for the police officers to inform Mr Randall, at the time he was arrested, why it was that he was being arrested;

2. by failing to consider the proposition that in any event the arrest had been prospectively validated from the time, when Mr Randall was placed in the police truck, that he was so informed; and

3. in any event, in failing to recognise that “any non-compliance with s 201… was technical and did not invalidate the exercise of power”.

99. Ground 5 attacks what the State said were the inadequate reasons that the primary judge gave for his award of damages, and his Honour’s failure to consider the impact of what was said to be Mr Randall’s “provocative conduct” on aggravated and exemplary damages (both of which seem to have been swept up in the figure of $31,000.00).

100. Ground 6 does no more than restate the previous grounds and assert that, but for those errors, the primary judge should have found for the State.

Ground 1: s 99(1)(a)

101. I accept that the question posed by s 99(1)(a) is whether the particular police officer, not the court, “suspects on reasonably grounds” that an offence is being or has been committed. I accept, further, that the approach that the primary judge took was, at the level of principle, incorrect. In effect, his Honour, having found that the assault did not occur, concluded that Senior Constable Bird and Constable Manusu could not have suspected on reasonable grounds that it had.

102. However, I would not grant leave for this reason. The simple fact is that the fundamental factual dispute at trial, as to the circumstances of and reasons for the arrest, was whether (as the police said) Mr Randall had assaulted Senior Constable Bird or whether (as Mr Randall said) he had not. The parties ran the case on the basis that a decision on that fundamental issue would resolve, one way or another, the s 99(1)(a) issue.

103. When the trial commenced, Mr Steirn of Senior Counsel, who then appeared with Mr Woodbury for Mr Randall, opened on the basis that Mr Randall had not assaulted the police, and that the police had assaulted him when they forced him to the ground and arrested him. In those circumstances, he said [62] :

… the assault upon the plaintiff was unlawful and the defendant barings [sic] the onus of proving that their actions were lawful at the material time.

62. T36-37; Black 2R.

104. Mr Steirn thereafter referred to s 201 of LEPRA. He did not, at any stage during his opening, refer to s 99.

105. Mr Spartalis of Counsel, who appeared for the State at the trial, put the matter this way when opening the State’s case [63] :

Now, the plaintiff pleads guilty to a hinder. Mr Steirn says to you the assault of the plaintiff was unlawful. That is going to cause your Honour to have to consider if and when an assault occurred because it will call upon your Honour to determine whether the force that was used by the plaintiff in the initial arrest was lawful. Then if your Honour finds that, there’s this minute or so that your Honour has to consider also. What happens in the minute between the time that he is taken to the ground because of his conduct and when he is finally subdued. They’re two different areas.

63. T5.27-34; Black 5N-Q.

106. That statement of the ambit of the factual disputes said nothing as to s 99 of LEPRA. Nor did Mr Spartalis’ opening otherwise refer to it.

107. Mr Steirn replied briefly at the conclusion of Mr Spartalis’ opening and said [64] :

Given what my friend just said, let me make it quite clear to my friend and to the Court: we are saying that at no time did the plaintiff posture, throw a punch or shape up in any way.

64. T6.23-.25; Black 6L-N.

108. Thereafter, over the four days of evidence, Mr Randall, two independent witnesses and the police officers were cross-examined up hill and down dale over the facts of the altercation.

109. At the conclusion of the hearing, the primary judge directed the parties to file written submissions. Mr Spartalis provided some 45 pages of submissions, comprising 303 paragraphs, to the primary judge. Most of those submissions regaled the primary judge with lengthy extracts from the transcript, presumably with a view to persuading his Honour that the facts should be found as the State contended.

110. When, eventually, those submissions turned to the topic of “Resolution of the Conflict”, their references to s 99 (or to matters relevant to s 99) were brief. At para 246, the submissions stated [65] :

The police version is that they were conducting an investigation, the plaintiff was interrupted, he was told to leave. He didn’t. He was pushed away, he returned, assaulted Bird and was then arrested.

65. Black 404T.

111. Thereafter, Mr Spartalis’ written submissions devoted some seven paragraphs to contending that the police officers’ evidence as to Mr Randall’s alleged assault on Senior Constable Bird should be accepted. The submissions then stated, at para 254 [66] :

The evidence reveals that the police complied with section 9 [sic] of LEPRA. That is they suspected on reasonable grounds that the plaintiff committed an offence(s) and that they were satisfied that it was necessary for arrest for the plaintiff to stop him from committing or repeating an offence(s) or committing another offence(s), to enable enquires [sic] to be made to establish his identity, to ensure he is appearance [sic] before the court and the [sic] protect the safety and welfare of any person including the plaintiff.

66. Black 405P-R.

112. That is the only paragraph of Mr Spartalis’ written submissions that refers to s 99. In the context in which that paragraph appears, it is obvious that the “offence(s)” that the police officers suspected on reasonable grounds that Mr Randall had committed, so as to justify his arrest, was the offence of assault. That reading is confirmed by para 265 [67] :

Despite the fact the plaintiff had hindered both Bird and Manusu in the execution of their duty, it was not until the plaintiff lunged towards Bird and swung his fist towards Bird’s head that Bird placed him under arrest for assault. The plaintiff was told on numerous occasions to move along but would not comply. He was given every opportunity to leave but he did not. This left Bird with no other alternative, particularly in circumstances where he did not know the identity of the plaintiff, but to arrest the plaintiff to prevent the repetition of the offence or to prevent him committing another offence. Further Bird thought it was necessary to arrest the plaintiff to protect the safety or welfare of the plaintiff in circumstances where he appeared to be, intoxicated, unresponsive, irrational and acting in a manner dangerous to himself.

67. Black 408G-K.

113. Mr Steirn’s submissions likewise conflated the s 99(1)(a) question with the factual issue, whether Mr Randall had assaulted Senior Constable Bird. Mr Steirn said at para 4 [68] :

Central to the defendant’s case is the evidence from both Bird and Manusu that the plaintiff threw a punch at Bird which justified the physical arrest which followed. Thus, the defendant’s contention is that it was the plaintiff who initiated the encounter by engaging in serious criminal conduct by assaulting Bird…

68. Black 417N-R.

114. The theme was continued in para 10 of the same submissions [69] :

Essentially the evidence of both Constables Bird and Manusu was to the effect that the reason the plaintiff was arrested was because the plaintiff ran at Constable Bird and attempted to throw a punch at the Constable thereby justifying a lawful arrest. However, the evidence adduced in cross-examination of the two constables together with the objective evidence completely destroys the defendant’s case.

69. Black 420I-N.

115. Mr Steirn’s submissions proceeded on the basis, as put in para 18, that the State case was that “the reason for the arrest of [Mr Randall]” was “a charge of assault Police” [70] .

     70. Black 4240-P.

116. Mr Spartalis thereafter made what he called “supplementary submissions”. Their sole topic was “the meaning of suspicion on reasonable grounds”. Those submissions comprised the regurgitation of several paragraphs of the decision of this court in Hyder v The Commonwealth [71] . The submissions made no attempt to show how it was that the principles explained in Hyder related to the facts of the case before the primary judge. Nor was any attempt made in those submissions to rebut the theme, emerging consistently from Mr Steirn’s submissions, that the arrest was justified, if at all, because the offence that was reasonably suspected of having been committed was the assault; and that there had been neither an assault nor (in its absence) any basis to suspect one.

     71. (2012) 217 A Crim R 571, [15] to [19].

117. It seems that there was at least one day, and perhaps more, of oral submissions. The transcript of those oral submissions was not contained in the material placed before this court. With that qualification, the clear picture emerging from the parties’ submissions is that they were content to treat the question of reasonable suspicion, for the purposes of s 99(1)(a), as depending on whether in fact the assault that Mr Randall was alleged to have perpetrated on Senior Constable Bird had taken place. The submissions for the State conspicuously failed to put to the primary judge the proposition that even if he rejected the contention that there had been such an assault, nonetheless it was open to him to find (and he should find) that Senior Constable Bird (and/or Constable Manusu) had reasonable grounds for suspecting that an assault had been or might be committed.

118. In substance, ground 1 would seek to reopen the case, and to argue a question that, whilst raised on the pleadings, was not opened or argued before the primary judge. For the reasons I give at [138] and following below, I would not grant leave to appeal to permit the State to run its case as it now sees it should have done, and wishes it had done. It would be inconsistent with the interests of justice, and inconsistent with the objectives stated in s 56 of the Civil Procedure Act2005 (NSW), for the State to have an opportunity of re-running the case on a basis that was never put to the primary judge in its opening or closing submissions.

Ground 2: s 99(1)(b)

119. It is not correct to say that the primary judge did not deal with s 99(1)(b). He did. The context of his Honour’s doing so was that he had concluded that Mr Randall had not assaulted Senior Constable Bird. It followed from that conclusion, from his Honour’s rejection of this aspect of the evidence of the police officers, and from the way the trial had been conducted, that in his Honour’s view the arrest could not have been seen as reasonably necessary to prevent Mr Randall from committing further assaults.

120. That analysis reflects the way in which the parties put the case. I have referred already to para 254 of Mr Spartalis’ closing submissions. He did not identify the “offence(s)”, other than that, from the immediately preceding paragraphs, it is clear that attention was most closely focused on the alleged offence of assault. The submissions did not descend to explaining why, on the evidence, it might have been possible for Senior Constable Bird and Constable Manusu to be satisfied that the arrest was reasonably necessary for any of the particularised purposes. In fact, the primary judge gave this issue more attention in his reasons for judgment than Mr Spartalis had given it in his written submissions.

121. The primary judge dealt with s 99(1)(b) in two distinct paragraphs of his reasons, separated by a paragraph dealing (in a way which is a little difficult to follow) with the significance of the amount of the fine that the Local Court had imposed for the one offence that was established (by Mr Randall’s plea of guilty). His Honour said:

I am of the view that under s 99 [sic] of LEPRA there was no proper basis for the police officers to arrest. The only offence that the plaintiff had committed was that to which he has pleaded guilty. He was making no attempt to flee from the police officers. There were no inquiries made as to establish the plaintiff’s identity. There were no doubts at that time that the plaintiff would not appear before a court. There was no property in the possession of the person that needed to be obtained by the police officers. There was no need to preserve evidence, no suggestion of the harassment or interference with any person able to give evidence and no suggestion there was a need to protect the safety and welfare of any person including the person arrested or because of the nature of the seriousness of the offence.

…

I am of the view, that to use a little of the vernacular, that the plaintiff was being a smart alec to some degree at that time and that is what, with that background, brought about a police over reaction to the circumstances as I perceive it, and that the police have no basis on the question of assault to arrest the plaintiff and should not have arrested the plaintiff in relation to the matter ultimately proceeded with, being the resist, hinder police officer in the execution of duty as that matter could have been dealt with by any of the other methods available for police to have people attend Court, such as the CANS and the Court attendance, there being Court attendances notices of various forms.

122. I am by no means persuaded that, as ground 2 contends, the primary judge did substitute his own view for that of the police officers. I think, read fairly, the first of the paragraphs that I have quoted should be taken to say that his Honour simply did not think that there was any basis upon which the police, acting reasonably, could have thought that the arrest was necessary. But regardless, in, dealing with the question in the way he did, the primary judge gave the issue more attention that the submissions for the State had suggested it required.

123. If there were some technical failure of reasoning (or expression of reasoning) it is not, in the circumstances to which I have referred already, sufficient to warrant the time and cost that would be incurred in a new trial.

124. I add that it is correct to say, as Mr Windsor submitted, that there is an element of retrospectivity in one part of his Honour’s reasons. That occurs where his Honour said:

In relation to the evidence of Senior Constable Bird and Constable Menasu [sic] I reject their evidence in relation to assault, not that their other evidence is inconsistent with what occurred in the taking of the plaintiff to the ground and the forcibly removing him to the caged truck. This case was run on whether or not it was the appropriate method of arrest where the only charge to be ultimately relied upon was the resist, hinder police in execution of their duty.

125. The second sentence of that paragraph certainly involves hindsight analysis. But it is not the only aspect of his Honour’s reasons that deal with s 99(1)(b). I might add that Mr Windsor did not challenge the proposition that the case was run on the basis that his Honour stated.

Ground 3: reasons for rejecting the police officers’ evidence as to an assault

126. The State’s submissions proceeded on the basis that it was implicit in his Honour’s conclusion, that Mr Randall had not assaulted Senior Constable Bird, that the police officers must have “concocted” their evidence. Mr Windsor submitted that in those circumstances it was incumbent on his Honour to explain why this was so. Mr Windsor submitted, further, that it was not open to his Honour to reach that implicit conclusion when the suggestion of concoction had not been put directly to Senior Constable Bird or Constable Manusu.

127. That submission does not reflect the way that the trial was conducted. It was made abundantly clear, time and time again, to each of Senior Constable Bird and Constable Manusu that their evidence was under challenge. It was put, time and time again, that aspects of their evidence were false. It was put, time and time again, that they were not telling the truth. I simply do not understand why it was necessary, for reasons of fairness or otherwise, to put, as well, that their evidence had been concocted.

128. Moving away from the question of concoction, the thrust of ground 3 is that the primary judge did not explain his findings. I do not agree. The explanation is not found in one place. But when one considers the whole of his Honour’s reasons, there are several passages which make it perfectly clear, for reasons that his Honour gave, that he had grave doubts as to the credibility of key parts of the evidence of the police officers. I might add that there were other aspects of the evidence, to which his Honour did not refer, that could have supported the same conclusion.

129. No doubt, it would have been better if his Honour had collected together his views on credibility under one neat heading, and dealt with the credibility of each witness individually. But the necessity of the reader’s having to gather together several passages in the reasons to understand (as the reasons overall make clear) why his Honour reached the conclusion that he did cannot be a basis for ordering a new trial.

Ground 4: s 201

130. The first paragraph of ground 4 contends that the primary judge did not give proper reasons for his conclusion, that it was reasonably practicable for the police officers to inform Mr Randall of the reason for his arrest at the time of the arrest. That ground involves a reagitation of hotly contested evidence. There is nothing in the submissions to bring the case within coo-ee of the principles explained in Fox v Percy (2003) 214 CLR 118.

131. The second paragraph of ground 4 relates to the “prospective validation” argument. I agree that the primary judge did not consider this question, although it was fairly and squarely raised in the State’s submissions. I agree, further, that had his Honour taken it into account, it must have had a significant impact on his assessment of damages. However, for the reasons I shall give after dealing with grounds 5 and 6, I would not send the case back simply for a reassessment of damages.

132. The third paragraph relates to the “technical” character of any non-compliance with s 201. It is not necessary to decide whether the underlying proposition is correct. No such submission was put to the primary judge, in either the opening or the closing submissions for the State.

Ground 5: reasons for assessment of damages

133. His Honour’s reasons are, I regret to say, deficient. They do not explain how he selected the figure of $25,000, which it appears was a component of the award of damages “including all damages, including aggravated and exemplary”, apart from the separate allowance of a sum for legal costs. His Honour’s reasons give no indication of why that figure was appropriate. More significantly, had his Honour reminded himself that the period of unlawful detention was brief, it is highly likely that he would have come to some different, and much lesser, figure.

134. Further, in my view, the award of damages representing expenditure on legal costs is unjustifiable. It appears that Mr Randall’s total costs of defending the case in the Local Court were $10,000. The primary judge allowed some $6,000. The hearing seems to have lasted a day. As I have noted, five of the charges were withdrawn and one only proceeded: the one to which Mr Randall pleaded guilty.

135. There could be no justification for allowing the costs of a plea of guilty. Perhaps, that is what his Honour intended to recognise by allowing $6,000 of the total of $10,000 that was charged. However, as is apparent from the judgment of Hodgson JA in State of New South Wales v Koumdjiev [72] , it will only be where “the charges against the plaintiff were directly caused by the Police assaults and wrongful arrest [that]… the costs incurring in defending them can be included in the damages”[73] .

     72. (2005) 63 NSWLR 353 at [67], [68]; Beazley JA and Hislop J agreed with Hodgson JA.

     73. Hodgson JA at [68].

136. In the present case, the offence of hindering Police, to which ultimately Mr Randall pleaded guilty, was committed before the arrest, and was quite independent of any wrongdoing in the circumstances of the arrest.

Ground 6

137. There is no need to give separate consideration to this ground.

Reasons why leave should not be granted

138. I accept, as will be clear from what I have said, that there are errors in the reasoning of the primary judge, including errors of principle as to the application of ss 99 and 201 of LEPRA, and errors in relation to the assessment of damages. However, correction of those errors would require this court to set aside the judgment in favour of Mr Randall, and send the matter back for a new trial. That is what the State seeks.

139. If there were to be a new trial, it would be unlikely that the damages recovered would be as high as those awarded by the primary judge (I say this because a proper assessment of damages must take into account the matters to which I have referred when dealing with ground 5). It would be an extraordinary misuse of public and private resources for there to be a new trial, presumably of the duration of that which took place before the primary judge, for such a modest outcome. In my view, it would be quite inconsistent with the dictates of s 56 of the Civil Procedure Act to burden the parties with the costs, both financial and personal, of a new trial.

140. Equally importantly, and contrary to Mr Windsor’s submissions, there is no question of principle to be clarified. Accepting, as I do, that the primary judge did not deal correctly with s 99(1)(a), or with the State’s case of prospective validation of the arrest, the principles are well established. The importance of those principles has been vindicated sufficiently by emphasising the failure of the primary judge to recognise and deal with them.

141. The third factor which, in my view, tells against the grant of leave is that the State’s complaints in relation to s 99(1)(a) (and, to a large extent, s 99(1)(b)) stem largely from the way in which the State put its case at trial. As I have tried to explain, acceptance of the submissions now put by the State on s 99(1) would have the effect of permitting it another opportunity to argue the same point, and to improve the presentation of its case. Again having regard to the amount at issue and the likely duration of any new trial, that exercise cannot be justified.

142. Since writing the foregoing, I have had the opportunity to read in draft the judgments of Basten JA and Sackville AJA. As will be apparent from what I have said already, I agree with Basten JA that the primary judge erred, both as to liability and as to damages. However, I remain of the view that there ought not be a grant of leave. I agree with what Sackville AJA has said at [73]-[78] of his Honour’s reasons.

Conclusion

143. For those reasons, I propose that the summons for leave to appeal be dismissed with costs.

******

Endnotes

Decision last updated: 23 March 2018