Thompson v Vincent

Case [2005] NSWCA 219

NEW SOUTH WALES COURT OF APPEAL

CITATION:      THOMPSON v VINCENT [2005]  NSWCA 219

FILE NUMBER(S):
40440/03
40441/03

HEARING DATE(S):               15, 16, 17 March 2005

JUDGMENT DATE: 30/06/2005

PARTIES:
Barbara Morag THOMPSON v Senior Constable Andrew VINCENT & Ors
Ronald Lance THOMPSON v Senior Constable Andrew VINCENT & Ors

JUDGMENT OF:       Mason P Handley JA Pearlman AJA   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          DC 163/01, 83/01

LOWER COURT JUDICIAL OFFICER:     Twigg DCJ

COUNSEL:
Appellant: A B Shand QC/ B Kensella/ M McCall
Respondents: J Maconachie QC/ P Sternberg

SOLICITORS:
Appellant: James Fuggles Solicitors
Respondent: I V Knight, Crown Solicitor

CATCHWORDS:
TRESPASS - trespass to land - trespass to goods - lien agreement - dispute over amount of debt - seizure of chattels - police in attendance - police duty to prevent a breach of the peace - non-interference in a civil dispute  - trespass by arresting police officers - invitation of police onto premises - implied licence to enter - aiding and abetting acts of trespass - negligent failure to prevent a breach of the peace - ASSAULT - common assault - assault occasioning actual bodily harm - lawfulness of arrest - s352 Crimes Act 1900 - legislative history of s352 - interpretation of ss352(1)(b) and s352(2)(a) - reasonable suspicion - occupier's right to protect property - serious indictable offence -  notification of grounds of arrest - false imprisonment - dismissal of assault charge - malicious prosecution - exclusion of evidence.   NEGLIGENCE - performance of police duties - whether duty of care to prevent breach of the peace (D)

LEGISLATION CITED:
Crimes Act 1900, s352
Crimes (Amendment) Act 1924
Law Reform (Miscellaneous Provisions) Act 1983
Crimes Legislation Amendment (Sentencing) Act 1999
Fleming on Torts, 9th ed

DECISION:
Appeal dismissed with costs

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40440 of 2003
CA 40441 of 2003

MASON P
HANDLEY JA
PEARLMAN AJA

Thursday 30 June 2005

Barbara Morag THOMPSON v Senior Constable Andrew VINCENT & Ors
Ronald Lance THOMPSON v Senior Constable Andrew VINCENT & Ors

JUDGMENT

  1. MASON P:  The appellants were the joint owners and occupiers of premises at 25 Acacia Street, Byron Bay.  There is a residence, a factory building and a yard, much of which was used for storing partly-built boats, trailers and building equipment.  There was no fence to impede entry from the street, although the words “PRIVATE PROPERTY” were painted on the concrete driveway that led from the footpath up to the entrances of the residence and factory building.

  2. Separate claims brought by each appellant against the six respondents were tried together in the District Court, resulting in verdicts for the defendants with costs.  By leave previously granted each appellant appeals against these orders.  The respondents have filed defensive cross-appeals that challenge the assessment of exemplary damages made contingently by the trial judge against the possibility that he was wrong in entering verdicts for the defendants.

  3. The first to fifth respondents were members of the New South Wales…

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Thompson v Vincent [2005] NSWCA 219
Case
[2005] NSWCA 219
Decision Date

CaseChat Overview and Summary

In *Thompson v Vincent*, the plaintiffs, Mr and Mrs Thompson, brought proceedings against police officers and a Mr McLeod. The dispute arose from the seizure of chattels from the Thompsons' property. The Thompsons alleged a conspiracy between McLeod and the police to unlawfully enter their property, remove McLeod's goods, and arrest Mr Thompson on a false charge, thereby hindering the Thompsons' efforts to protect their property and obtain police assistance against McLeod. The matter was heard in the Supreme Court of New South Wales.

The court was required to determine several legal issues, including whether there was a conspiracy between McLeod and the police to commit unlawful acts, whether the police officers committed trespass to land or goods, whether the arrest of Mr Thompson was lawful, and whether the police were negligent in their duty to prevent a breach of the peace. The Thompsons also raised claims of assault, false imprisonment, and malicious prosecution.

The trial judge, Judge Twigg QC, found that the Thompsons had not established a conspiracy between McLeod and the police. He accepted the police officers' evidence that they were present to prevent a breach of the peace and rejected the assertion that they acted in concert to assist McLeod in an unlawful trespass. The judge found that Mr Thompson's call for police assistance implicitly invited them onto the property. Regarding the arrest of Mr Thompson, the judge found that an assault occasioning injury had occurred and that the arresting officers, McDonald and Vincent, held a reasonable belief, based on reasonable grounds, that a serious offence had been committed, thus authorising the arrest under s352 of the *Crimes Act 1900* (NSW). The judge also found that police entered the residence at the invitation of Mrs Thompson.

The appeal brought by the Thompsons was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On top of all this, the trial judge had the opportunity to observe the testimony of McLeod and the police witnesses.Trial judge’s conclusions The trial spanned several weeks. In a reserved judgment, Judge Twigg QC observed that the plaintiffs’ basic complaint was that there was a conspiracy to do an unlawful act, namely assist McLeod in wrongfully entering the property and recovering goods to which he had no right. The early part of the judgment contains general discussion as to the legal principles concerning conspiracy, breach of the peace, unlawful arrest, trespass and malicious prosecution. Under the heading Credibility, the judge stated that it had not been shown that there was a concerted action in the manner alleged by the plaintiffs. His Honour indicated that he rejected the submission that McLeod was not a credible witness, adding that there was nothing in his evidence to suggest that there was a concerted action nor that any of the police defendants assisted him to remove his goods. The critical facts were then outlined. His Honour noted, correctly in my view, that Mr Thompson’s phone call asking police to remove McLeod from his property contained an implicit invitation to go onto that property. His Honour also observed that when Senior Constable Rann entered the residence after Mr Thompson’s arrest she did so at the invitation of Mrs Thompson in order to speak to the appellants’ solicitor by phone. Otherwise the officer stood either in the street or the forecourt of the property, as did Senior Constable Parish. When Inspector Fitzsimmons arrived at the property at about 4.25pm he entered the residence at the request of Mrs Thompson. His Honour then addressed the plaintiffs’ central submission that there were facts from which the Court could infer that there was a conspiracy between McLeod and the police to deliberately hinder Mr Thompson (and perhaps also his wife) at the site, to enable McLeod to remove his goods more easily. This unlawful agreement was said to extend to deliberately arresting Mr Thompson on a false, or at least unsustainable, charge of assault. The conspiracy alleged also extended to refusing to assist Mr Thompson in his endeavour to get police assistance against McLeod, the alleged trespasser. His Honour was not satisfied that there was a conspiracy to do any of the things alleged. In support of this conclusion, he provided a detailed consideration of the credibility of the key witnesses (Red 25-28). His Honour formed the impression that each of the police witnesses were doing their best to tell the truth accurately. He accepted their evidence that they were present for the purpose of performing their duties of preventing a breach of the peace. He rejected the submission that he should find or infer that they were acting in performance of an agreement to assist McLeod in an unlawful trespass. As to the arrest in particular, the judge found that there had been an assault by Mr Thompson that occasioned injury (see Red 26) and that officers McDonald and Vincent had reasonably believed that a “felony” had been committed. Specifically, he found that s352 of the Crimes Act authorised the arrest because the officers formed, on reasonable grounds, a belief that a serious offence had been committed which warranted police intervention (Red 30). Earlier in his reasons the judge had observed that the onus of proving that the police were justified in arresting Mr Thompson lay on the defendants (Red 18).

Ratio Decidendi

Legal Principle Established

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