State of South Australia v Holder

[2019] SASCFC 135

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Civil)

STATE OF SOUTH AUSTRALIA v HOLDER

[2019] SASCFC 135

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Stanley)

31 October 2019

DAMAGES - GENERAL PRINCIPLES - EXEMPLARY, PUNITIVE AND AGGRAVATED DAMAGES

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - EXCESSIVE OR INADEQUATE DAMAGES

The appellant was found liable in tort for the assault, battery and false imprisonment of the respondent by two South Australia Police officers.  The trial Judge found that the authority the police had for entering the respondent’s home was limited to arresting the respondent’s half-brother, who was unlawfully at large.  Once the respondent’s half-brother had been arrested and removed, the police had no power to remain on the property for any other purpose.  The Judge found that the police did not have the authority to direct the respondent to leave his house and that the force used by police to detain and search the respondent was unlawful.  The respondent was awarded damages in the amount of $135,185.90 which included $35,000 awarded by way of exemplary damages.

The appellant does not dispute liability but appeals against the award of exemplary damages, complaining that the Judge did not provide any or adequate reasons for awarding exemplary damages, or for the quantum of exemplary damages, and that the Judge erred in awarding exemplary damages in circumstances where his earlier factual findings did not support such an award or the quantum.

Held, per Kelly J (Kourakis CJ and Stanley J agreeing), dismissing the appeal:

1.  There has been no error demonstrated in the approach of the trial Judge.  The reasons of the Judge show that the award of exemplary damages was made because the assaults were committed in the course of conduct which constituted a grave and frightening abuse of their powers of entry, search and detention.

2.  Consistent with the need to mark the Court’s disapproval of this type of conduct, the award of damages made by the Judge in all of the circumstances was appropriate.

Firearms Act 1977 (SA) s 32; Correctional Services Act 1982 (SA) s 37C(3); Summary Offences Act 1953 (SA) s 75, referred to.
Attalla v State of New South Wales [2018] NSWDC 190, applied.
State of New South Wales v Riley (2003) 57 NSWLR 496, distinguished.
Holder v State of South Australia [2018] SADC 83; Kuddus v Chief Constable of Leicestershire Constabulary [2001] 3 All ER 193; Whitfield v De Lauret & Co Ltd (1920) 29 CLR 71; State of New South Wales v Delly (2007) 70 NSWLR 125; Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; Fontin v Katapodis (1962) 108 CLR 177; New South Wales v Ibbett (2006) 229 CLR 638; Adams v Kennedy (2000) 49 NSWLR 78, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"exemplary damages"

STATE OF SOUTH AUSTRALIA v HOLDER
[2019] SASCFC 135

Full Court:   Kourakis CJ, Kelly and Stanley JJ

1. KOURAKIS CJ:       I would dismiss the appeal for the reasons given by Kelly J.

   KELLY J.

   Introduction

2. The appellant makes one complaint in relation to the quantum of damages awarded to the plaintiff in this matter, Steven Herbert Holder (‘the respondent’), after a trial in the District Court.

3. In an action brought against the appellant by the respondent, the trial Judge found the appellant liable in tort for the assault, battery and false imprisonment of the respondent.  The Judge found the police officer involved in the incident, the subject of the respondent’s claim, had no lawful authority to search and detain the respondent.  The respondent was awarded damages in the amount of $135,185.90, which included an amount of $35,000 awarded by way of exemplary damages.

4. On this appeal, it is the award of exemplary damages in the amount of $35,000 which the appellant challenges on the following grounds:

   ·The Judge erred in not providing any or any adequate reasons as to why exemplary damages were awarded or the basis for the award of exemplary damages, and the quantum of exemplary damages awarded.

   ·The Judge erred in awarding exemplary damages in circumstances where his earlier factual findings did not warrant or support an award of exemplary damages.

   ·The Judge erred in awarding damages in circumstances where the Judge’s earlier factual findings did not warrant or support the quantum of exemplary damages awarded.

   Factual background

5. It is necessary to set out the facts found by the Judge.  They are not in dispute. 

6. Late in the evening of 8 January 2009, armed members of the police Special Tasks and Rescue Group (‘STAR Group’) attended the respondent’s home to arrest his half‑brother Kym Bean, (‘Bean’) who was, at that stage, unlawfully at large. 

7. Police had received information that Bean may have had access to a firearm or multiple firearms and had indicated a willingness to shoot it out with police.  Bean may also have been using amphetamines, potentially rendering him more aggressive.  Bean’s criminal history included offences of driving a stolen motor vehicle at four or five police officers, injuring one of them seriously. 

8. Police considered the arrest of Bean to be a high-risk operation and STAR Group were briefed to assist in the arrest.  Bean was placed under surveillance and observed attending several addresses suspected of being occupied by drug users before being followed to the respondent’s house.

9. When Star Group arrived at the respondent’s house, the respondent was inside with Bean, Bean’s friend and the respondent’s daughter.  Bean fled out the back of the house into the backyard when he became aware of the police presence outside.  He was quickly arrested following restraint.

10. The respondent was then directed to vacate the premises by a statement from one of the police officers: “Will the tenant of 36 come out with your hands on your head, or we’ll throw a percussion grenade, a stun grenade, we’ll throw that in and we’ll drag you fucking out”.  When the respondent replied, “You can come in”, the officer stated that he, the respondent, would be dragged out if he did not immediately come out walking backwards with his hands on his head.  The respondent then walked backwards through the rear door with his hands behind his head.

11. The respondent failed to respond to a direction to get down onto the ground which caused an officer (Bowman) to run up to the respondent from a position the respondent could not see and forced him to the ground by sweeping his legs out from underneath him.  Bowman attempted to pull the respondent’s arms behind his back while the respondent probably struggled.

12. Another officer, (Phillips) stood on one of the respondent’s knees and then forcefully on the back of the respondent’s legs, to prevent him getting up and to help Bowman restrain the respondent.  The respondent’s face may have been pushed into the concrete by a boot or a hand causing a graze over his cheekbone.  The respondent received accidental blows or knocks resulting in a contusion on the left side of his head and bruising to his right ribs.

13. The respondent was detained by police at the premises for between 20 and 30 minutes until after they completed a search of the house.  During that time, he was taken from the backyard and made to sit facing the western wall of the house.  He was told he was not allowed to look around.  He remained in that position until the police completed the search of the house.

14. The appellant does not appeal in relation to the issue of liability.  The appellant submits that this Court should set aside the award of exemplary damages or, in the alternative, reduce the amount awarded for exemplary damages.

    The trial Judge’s findings

15. The key matter in issue at the trial was whether the police had lawful authority to detain and search the respondent after his half‑brother Bean had been arrested. The police relied upon the power contained in s 32 of the Firearms Act 1977 (SA) (‘Firearms Act’) to search and detain the respondent. The trial Judge held that the power in the Firearms Act had not been properly invoked because there was no reasonable suspicion that there was a firearm at the premises in light of the imprecise and unspecified information received by police.

16. The trial Judge found that the authority the police had for entering the respondent’s home was limited to arresting Bean under either s 37C(3) of the Correctional Services Act 1982 (SA) (‘CSA’) or s 75 of the Summary Offences Act 1953 (SA) (‘SOA’). Once Bean had been arrested, the officers were only allowed to remain on the property for as long as was reasonably necessary to remove Bean. They had no power to remain on the property for any other purpose.

17. In the course of reaching his conclusion, when considering whether the police had the authority to direct the respondent to exit the house, the trial Judge made the following observations as to the behaviour of the police: [1]

    [267]In the present case, Phillips failed to make proper announcement. He can be excused for not identifying himself and his colleagues as police officers because the plaintiff was aware of that. However, Phillips failed to give notice of purpose by stating a lawful reason for entry. The plaintiff was not even informed that the police wanted to search the house. Phillips simply demanded that the plaintiff exit the house and provided no reason for his demand.

    [268]Where the police depart from the required approach there is an onus on them to explain why they thought it necessary to do so. In the present case, the defendant did not argue that there were exigent circumstances justifying Phillips’ failure to give proper announcement, and I cannot see any. If Phillips and his colleagues suspected, albeit unreasonably, that a firearm was on the premises, that circumstance was not exigent. Proper announcement is likely to have enhanced the safety of the police officers and those inside.

    [269]The failure to give proper announcement, absent exigent circumstances, constitutes a further reason for determining that the directions given by Phillips were unlawful.

    [270]Another reason is that the exercise of the incidental power to direct a person to exit premises for the purposes of conducting a search must be exercised in a manner that is reasonably necessary. The threats made by Phillips were not reasonably necessary. Such a tactic might be appropriate in some cases, but this was not one of them. The plaintiff had armed police officers in his backyard. They had just arrested his half-brother following a violent struggle. They had provided no reasons for demanding that he leave the house. In the circumstances, the plaintiff was naturally reticent about coming outside. Resorting to threats of violence to induce the plaintiff to leave the privacy and protection of his home cannot be regarded as reasonably necessary in the circumstances.

    [Citations omitted]

    [1]    Holder v State of South Australia [2018] SADC 83, 67 [267]-[268].

18. In summary, the trial Judge found: [2]

    (i) The STAR team did not suspect on reasonable grounds that there was a firearm on the property. The officers had no lawful authority to remain on the plaintiff’s property after Bean had been arrested pursuant to s 37C(3) of the CSA or s 75 of the SOA.

    (ii) In any event, at the stage Phillips gave the direction for the house to be vacated, the officers lacked the requisite suspicion to search the house for a firearm under s 32(3)(a) of the [Firearms Act]. Accordingly, Phillips’ direction was unlawful.

    (iii) Even if the officers possessed the requisite suspicion to conduct a lawful search under s 32(3)(a) of the [Firearms Act] Phillips’ direction was unlawful because (i) it did not constitute a proper announcement, and (ii) it included threats of violence that were not reasonably necessary.

    [2] [2018] SADC 83, 68 [272].

19. In considering whether police had the authority to detain and search the respondent, the trial Judge made the following further relevant findings: [3]

    [277]The force used by Bowman to take the plaintiff to the ground was unlawful. The plaintiff was entitled to use reasonable force to resist Bowman.  The resistance he offered did not extend beyond being reasonable. Accordingly, the further force used by Bowman and Phillips to overcome the plaintiff’s reasonable resistance was unlawful. So too was the plaintiff’s detention. 

    [278]Even if it could be said that Bowman had lawful authority to detain and search the plaintiff, it was not reasonably necessary for Bowman to grab the plaintiff and force him onto the ground. On my findings, the plaintiff, up until that point, had been largely co-operative. Despite some initial hesitation he exited the house and did so in the manner demanded of him. Nothing had been done by the plaintiff to warrant Bowman treating him in that manner.

    [3] [2018] SADC 83, 69 [277]-[278].

20. The Judge then gave the following reasons for awarding exemplary damages in the sum of $35,000:[4]

    [360]In my opinion the plaintiff is entitled to an award of exemplary damages. The assault, battery and wrongful detention of the plaintiff was high handed and showed a contemptuous disregard for the plaintiff’s rights. The assault, battery and false imprisonment of the plaintiff manifested at the very least a reckless misuse of invasive statutory powers. As Mildren J stated in Majindi v The Northern Territory of Australia and Others:

    There needs to be an amount to punish and deter, and to bring home to the officers concerned and to their superiors responsible for overseeing the police force ‘that police officers must be trained and disciplined so that abuses of the kind which happened in the present case do not happen’.

    [361]The plaintiff did not engage in any conduct that would constitute a relevant mitigating factor. An award of $35,000.00 exemplary damages is appropriate.

    [Citations omitted]

    [4] [2018] SADC 83, 85 [360]-[361].

    Discussion

21. On appeal, the appellant submits that the Judge did not identify the factual basis for his conclusion that the plaintiff was entitled to exemplary damages and gives no guidance or insight into why such a significant award, i.e. $35,000, for exemplary damages was made out.

22. The appellant contends that the reasoning of the trial Judge suggests that the Judge’s reasons were simply that the fact of the police exceeding their lawful authority was the basis of the exemplary damages award.  As that was a necessary element of the basic tort he found, the appellant submits that this is not enough to justify an award of exemplary damages.

    Exemplary damages

23. The principles underpinning an award of exemplary damages are as follows.

24. Subject to any statutory prohibition, exemplary damages may be awarded for any tort that is committed in circumstances involving a deliberate, intentional or reckless disregard of a plaintiff’s interests.[5]

    [5]    See Kuddus v Chief Constable of Leicestershire Constabulary [2001] 3 All ER 193.

25. Broadly, an award of exemplary damages will be justified where there is conscious wrongdoing in contumelious disregard of another’s rights,[6] however an award of exemplary damages is not confined to contumelious conduct.[7]  The defendant’s conduct must be of such a character that it merits punishment, so that it must have been knowingly wanton, fraudulent, malicious, violent, cruel, insolent, high-handed or an abuse of power.[8]  The conduct must be such that an award of compensatory damages does not sufficiently express the court’s disapproval or (in cases where the defendant stood to gain more than the plaintiff lost) demonstrate that wrongful conduct should not be to the advantage of the wrongdoer.[9]

    [6]    Whitfeld v De Lauret & Co Ltd (1920) 29 CLR 71, 77 (Knox CJ).

    [7]    State of New South Wales v Riley (2003) 57 NSWLR 496, 530 [138] (Hodgson JA).

    [8]    See State of New South Wales v Delly (2007) 70 NSWLR 125, 143 [88]; Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118, 122 (McTiernan J); Fontin v Katapodis (1962) 108 CLR 177, 187.

    [9]    State of New South Wales v Riley (2003) 57 NSWLR 496, 530 [138].

26. Furthermore, it is well established that an award of exemplary damages may serve a valuable purpose in restraining the arbitrary and outrageous use of executive power and oppressive, arbitrary or unconstitutional action by the servants of the government.  To award exemplary damages in such cases serves to uphold and vindicate the rule of law because it makes it clear the court will not tolerate such conduct.[10]

    [10]   New South Wales v Ibbett (2006) 229 CLR 638, 648 [38]-[40].

27. Exemplary damages may also be awarded for the purpose of deterring the wrongdoer and others who may be in his or her position from a repetition of the kind of conduct under scrutiny.[11]  The quantum of exemplary damages in the case of police misconduct should be such as to bring home to the officials of the State, who are responsible for overseeing of the police force, that police officers must be trained and disciplined so that abuses of power do not happen.  The figure of exemplary damages arrived at should indicate the court’s view that the conduct of the police officers involved was reprehensible and should mark the court’s disapproval of it.[12]

    [11]   State of New South Wales v Delly (2007) 70 NSWLR 125, 149 [116].

    [12]   Adams v Kennedy (2000) 49 NSWLR 78, 87.

    Inadequate reasons

28. The appellant complained that although the Judge made findings of contumelious behaviour in respect of the police conduct, he did not otherwise identify or particularise what conduct he in fact relied on to justify an award of exemplary damages in the sum of $35,000.

29. After examining the trial Judge’s reasons, I cannot accept that submission.  The trial Judge’s findings were highly critical of the actions of the police officers in a number of material respects.  He found:[13]

    [148]It is common ground that following Bean’s arrest that SC Phillips directed the persons remaining inside the house to exit the premises. The plaintiff contends that the direction went beyond a direction to merely vacate the premises and involved the following: ‘will the tenant of 36 come out with your hands on your head, or we’ll throw a percussion grenade, a stun grenade, we’ll throw that in and we’ll drag you fucking out’.  When he replied: ‘You can come in’, the officer stated that he would be dragged out if he did not immediately come out walking backwards with his hands on his head. 

    …

    [150]… The plaintiff did not expressly state that he feared imminent violence against his person, but that is the obvious implication of his evidence. He said that he was reluctant to leave the house and only exited after the officer repeated his threatening direction. The reasonable inference to be drawn from his evidence, if accepted, is that he left the house only because he feared that a grenade would be used and that he would then be forcibly dragged outside. His apprehension in that regard would have been was objectively reasonable [sic].  Furthermore, I am satisfied that if the direction was given, it was administered with the intention of causing the plaintiff to fear imminent violence against him. 

    [13] [2018] SADC 83, 36 [148]-[150].

30. Contrary to the appellant’s submission that the police officers were involved in a high pressure and evolving situation which required quick decision‑making on the basis of imperfect information, the trial Judge found that, by that stage, the danger was already over.  His findings at [270], as set out above, make that clear.

31. The reasons of the Judge show that the award of exemplary damage was made because the assaults were committed in the course of conduct which constituted a grave and frightening abuse of their powers of entry, search and detention.

    The award of exemplary damages

1. The appellant sought to equate the circumstances of this case to those which confronted the Court in State of New South Wales v Riley.[14]  In Riley, the New South Wales Court of Appeal set aside an award of exemplary damages on the basis that the trial Judge’s factual findings did not support such an award. 

   [14] (2003) 57 NSWLR 496.

2. The facts in Riley are in some respects unusual.  They are not, in my view, relevantly similar at all to the facts in this case.  In Riley, there was a history of police intervention prior to the date of the incident as a result of neighbours reports of gunshot sounds and loud music coming from the respondent’s premises.  On the night of the incident, the police were faced with a difficult and potentially dangerous situation created by the respondent’s provocative conduct in either discharging a firearm or acting in a way as to give rise to a reasonable apprehension that he had discharged a firearm.  Ultimately, the Court set aside the award of exemplary damages on the basis that the police conduct in that case did not go beyond ordinary human fallibility so as to justify an increment to the ordinary compensatory damages for the assaults. 

3. By contrast, the respondent in this matter did nothing at all to warrant the aggressive and high‑handed approach of the police officers.  To my mind, the facts in this case have more in common with another New South Wales case cited in argument, Attalla v State of New South Wales,[15] in which an award of exemplary damages was made following the strip search of a 53-year-old man by police without the slightest justification. 

   [15] [2018] NSWDC 190.

4. Here, the respondent did nothing at all to warrant the response of the police.  He co‑operated with all demands and exited the house as instructed.  It was not reasonably necessary, as the trial Judge found, for the police to then grab him and force him to the ground.

5. The incident itself lasted for approximately half an hour.  The respondent was taken from the backyard and made to sit facing the western wall of his house and was not allowed to look around.  There has never been any explanation proffered for that treatment.  In my view, an award of exemplary damages in such circumstances was justified.

   The quantum of damages

6. In the circumstances set out above, whilst I accept that an award of $35,000 is at the higher end for this type of conduct, I am not prepared to say that the quantum awarded is so high as to exceed the proper exercise of the Court’s discretion. 

   Conclusion

7. There has been no error demonstrated in the approach of the trial Judge.  In my view, the reasons his Honour gave were detailed and thorough.  Consistent with the need to mark the Court’s disapproval of this type of conduct, I consider that the award made by the Judge in all of the circumstances was appropriate. 

8. I would dismiss the appeal.

9. STANLEY J:         I would dismiss the appeal.  I agree with the reasons of Kelly J.