Wang v State of New South Wales

[2019] NSWCA 263

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Wang v State of New South Wales [2019] NSWCA 263
Hearing dates:	27 August 2019
Decision date:	22 November 2019
Before:	Macfarlan JA at [1]; Meagher JA at [2]; McCallum JA at [3]
Decision:	1. Grant leave to appeal. 2. Dismiss the appeal. 3. Refuse leave on the cross-appeal.
Catchwords:	TORTS – false imprisonment – wrongful arrest – assault and battery – arrest pursuant to a warrant – whether primary judge erred in preferring the evidence of police officers to the evidence of the plaintiff – whether primary judge erred in finding that the plaintiff was lawfully arrested whether primary judge required to consider all submissions made during hearing – whether police required to consider alternatives to arrest – whether police required to give reasons for arrest – whether primary judge erred in failing to award exemplary damages – false imprisonment found to be unintentional
Legislation Cited:	Civil Liability Act 2002 (NSW), ss 3B(1)(a), 21, 43A Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 31, 22(5) Criminal Procedure Act 1986 (NSW), s 239 District Court Act 1973 (NSW), s 127(2)(c) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 99, 101, 201(2)
Cases Cited:	Be Financial Pty Ltd (as trustee for BE Financial Operations Trust) v Das [2012] NSWCA 164 Benn v State of New South Wales [2016] NSWCA 314 Croucher v Cachia (2016) 95 NSWLR 117; [2016] NSWCA 365 Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 New South Wales v Smith (2017) 93 NSWLR 280; [2017] NSWCA 194 Poidevin v Semaan (2013) 85 NSWLR 758; [2013] NSWCA 334 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 271 State of New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57 State of New South Wales v Le [2017] NSWCA 290 State of New South Wales v McCarthy [2015] NSWCA 153; (2015) 251 A Crim R 445 State of New South Wales v Robinson (2016) 93 NSWLR 280; [2016] NSWCA 334 State of New South Wales v Smith (2017) 93 NSWLR 280; [2017] NSWCA 194 State of New South Wales v Zreika [2012] NSWCA 37 Zaravinos v State of New South Wales (2004) 62 NSWLR 58; [2004] NSWCA 320
Category:	Principal judgment
Parties:	Jia Nong Wang (appellant/cross-appellant) State of New South Wales (respondent/cross- respondent))
Representation:	Counsel: M Robinson SC, M McAuley (appellant/cross- appellant) D Villa SC, B K Nolan (respondent/cross-respondent)   Solicitors: Blake Lawyers (appellant/cross-appellant) Crown Solicitor’s Office Sydney (NSW) (respondent/cross-respondent)
File Number(s):	2018/3938492018/389492019/160203
Publication restriction:	None
Decision under appeal	Court or tribunal: District Court, Sydney Jurisdiction: Civil Citation: [2018] NSWDC 375 Date of Decision: 7 December 2018 Before: Levy DCJ SC File Number(s): 2014/253035

Headnote

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

In May 2013, Mr Wang was the subject of a complaint to police that he had made threats of violence against a man and his family over an unpaid debt. Acting on that complaint, police commenced proceedings for an apprehended personal violence order against Mr Wang. A provisional order was made and Mr Wang was required to attend the Local Court on 22 May 2013. Following a number of unsuccessful attempts to serve the relevant documents and a number of adjournments of the proceedings, police obtained a warrant from the Local Court for Mr Wang’s arrest.

The warrant was executed on 2 August 2013 but Mr Wang was not brought before the Court until late the following day, when he was granted bail. He claimed his arrest and detention were unlawful and brought proceedings in the District Court against the State of New South Wales claiming damages for wrongful arrest, assault and battery and false imprisonment. The primary judge (Levy DCJ SC) rejected the claims of wrongful arrest and assault and battery but found that Mr Wang had been falsely imprisoned from about three hours after the time of his arrest until he was released on bail the following afternoon. The judge assessed damages in the sum of $48,598.89. Mr Wang appealed from that decision.

The State sought leave to file a cross-appeal concerning the finding of false imprisonment.

The issues on appeal were:

1.    Whether the primary judge erred in finding that Mr Wang could adequately communicate with the police officers in English in August 2013.

2.    Whether the primary judge erred in preferring the evidence of the police officers including Constable Leahy and Senior Constable Wild to that of Mr Wang.

3.    Whether the primary judge failed to address written submissions filed on behalf of Mr Wang.

4.    Whether the primary judge erred in finding that Mr Wang was lawfully arrested.

5.    Whether the primary judge erred in finding that there had been no assault or battery at the time Mr Wang was arrested.

6.    Whether the primary judge erred in finding that the ongoing psychological effects of Mr Wang’s wrongful imprisonment are likely to abate within the relatively short term.

7.    Whether the primary judge erred in finding that there should be no award in respect of exemplary damages.

The State’s proposed cross-appeal sought to challenge the primary judge’s findings on liability for false imprisonment and the availability of aggravated damages.

The Court held per McCallum JA (Macfarlan JA and Meagher JA agreeing), dismissing the appeal unanimously:

In relation to the first issue

(i) The evidence available to the primary judge was sufficient to support his finding regarding Mr Wang’s capacity to communicate in English: [46], [49], [52], [54]-[55].

In relation to the second issue

(ii) The primary judge was entitled to form his own impression as to the reliability of witnesses at the trial and no basis was established for interfering with those conclusions: [57], [58], [61].

In relation to the third issue

(iii) The primary judge was not required to address every submission advanced during the course of the hearing and the alleged omissions do not establish a constructive failure to exercise jurisdiction: [64]-[66].

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, applied.

In relation to the fourth issue

(iv) Section 101 of LEPRA confers authority on a police officer to act in accordance with a warrant and requiring a police officer in that circumstance to consider alternatives to arrest would subvert its command. Police exercising the power to arrest under s 101 are required to give reasons for the exercise of the power but no further explanation is required beyond a statement that there is an arrest warrant: [74]-[75], [79],[81].

State of New South Wales v McCarthy [2015] NSWCA 153; (2015) 251 A Crim R 445, referred to.

In relation to the fifth issue

(v) The evidence provided some support for the trial judge’s assessment of the evidence as to the alleged assault and battery and there is no proper basis for interfering with the trial judge’s findings in relation to the force used during the process of the arrest and detention: [83]-[84].

In relation to the sixth issue

(vi) The primary judge outlined the medical evidence and made his finding based on the evidence of Dr Brown and no persuasive argument was made for disturbing that finding: [87]-[88].

In relation to the seventh issue

(vii) the Court held that as the primary judge found that the wrongful imprisonment had occurred unintentionally, and no cogent basis was provided for interfering with that finding, there was no reason to interfere with his Honour’s conclusion as to exemplary damages: [92]-[94].

In relation to the cross-appeal

(viii) The issues for determination on the cross-appeal would ultimately turn on minute and complex questions of fact and did not justify a grant of leave to appeal in the circumstances of the case: [97]-[100].

Be Financial Pty Ltd (as trustee for BE Financial Operations Trust) v Das [2012] NSWCA 164, applied.

Judgment

1. MACFARLAN JA: I agree with McCallum JA.

2. MEAGHER JA: I agree with McCallum JA.

3. McCALLUM JA: In May 2013, Jia Nong Wang was the subject of a complaint to police that he had made threats of violence against a man and his family to enforce an unpaid debt. Acting on that complaint, police commenced proceedings for an apprehended personal violence order against Mr Wang for the protection of one Brandon Lee. A provisional order was made ex parte with a direction to Mr Wang to attend the Local Court on 22 May 2013. Following a number of unsuccessful attempts to serve the relevant documents and a number of adjournments of the proceedings, police obtained a warrant from the Local Court for Mr Wang’s arrest.

4. The warrant was executed on 2 August 2013. In circumstances I will explain, Mr Wang was not brought before the Court until late the following day, when he was granted bail. He claims his arrest and detention were unlawful and brought proceedings in the District Court against the State of New South Wales claiming damages for wrongful arrest, assault and battery and false imprisonment. The primary judge (Levy DCJ SC) rejected the claims of wrongful arrest and assault and battery but found that Mr Wang had been falsely imprisoned from about three hours after the time of his arrest until he was released on bail the following afternoon. The judge assessed damages, including an unspecified component for aggravated damages, in the sum of $48,598.89. Mr Wang appeals from that decision. The State seeks leave to file a cross-appeal concerning the finding of false imprisonment.

5. I have concluded that both the appeal and the application for leave to file the cross-appeal should be dismissed, for the following reasons.

Requirement for leave to appeal

6. Mr Wang contends that his appeal lies as of right because the matter at issue is of a value of greater than $100,000: s 127(2)(c) of the District Court Act 1973 (NSW). In support of that contention, he relied upon an affidavit dated 11 April 2019 sworn by his solicitor, Mr Paul Blake. In short, Mr Blake asserts that the errors allegedly made by primary judge, if corrected, would result in an assessment of damages in excess of $100,000.

7. Against the risk that the Court would not accept that assessment, Mr Wang also filed a summons seeking leave to appeal. Without determining the correctness of Mr Blake’s opinion, I am of the view that leave to appeal, if required, should be granted because the appeal raises a question of general public importance concerning powers of arrest.

Circumstances in which the proceedings were brought

8. The incident that prompted Mr Lee’s complaint to police occurred on 9 May 2013. The provisional apprehended personal violence order was granted the following day for a period of 28 days. The provisional order was required to be served personally on Mr Wang as soon as practicable after it was made. [1]

   1. Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 31.

9. As already noted, the provisional order included an endorsement directing Mr Wang to attend the Local Court on 22 May 2013. The order incorrectly nominated an address for Mr Wang at Marsfield but police held a record of his correct address at Beecroft. An attempt on 19 May 2013 to serve the order before the court date was unsuccessful, apparently because police attended the incorrect address specified on the order rather than the Beecroft address.

10. When the matter came before the Local Court on 22 May 2013, an interim apprehended violence order was made in Mr Wang’s absence. The order was stated to remain in force until revoked or until further order. Under the terms of the relevant Act, the Court had to require Mr Wang to appear at a further hearing of the matter as soon as practicable after that order was made. [2] The matter was stood over to 12 June 2013.

    2. Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 22(5).

11. Three attempts were made to serve the interim order. It was Mr Wang’s case that those attempts were unsuccessful because police negligently used the wrong address. The evidence of the relevant police officer or officers as to those attempts was not reproduced in the Appeal Books. However, according to the documentary exhibits, at least two of those attempts at service were made at the correct address at Beecroft. They were unsuccessful because there was no one home. A further attempt was made on 12 June, when police were told Mr Wang did not reside at that address. The police records do not specify which address was attended on that date.

12. In any event, at the fourth listing of the matter in the Local Court on 24 July 2013, the police prosecutor sought and obtained the warrant for Mr Wang’s arrest. She notified the officer in charge of the matter that warrants had been issued for both Mr Wang and Mr Kim and that, once they were located, the AVOs could be served and charges could be laid.

13. The warrant was in the following terms:

“To all Police Constables in the State of New South Wales.

This is a warrant to arrest the defendant in relation to an apprehended violence order application.

I command you to apprehend and bring the defendant before the Court.”

14. Section 101 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) confers authority on a police officer acting in accordance with a warrant to arrest or deal with the person in accordance with the warrant. It will be necessary to return to the effect of that section.

15. Section 239 of the Criminal Procedure Act 1986 (NSW) provides that a person arrested under a warrant must be brought before a judge, a magistrate or an authorised officer (as provided in the warrant) as soon as practicable.

16. The warrant was executed on 2 August 2013. The officers who arrested Mr Wang were not those involved in the investigation and did not know the reasons for the arrest, other than that there was a warrant. Mr Wang was taken in a police van to Ryde Police Station. One of the arresting officers, Constable Leahy, explained that, in order to execute the warrant, it was necessary to complete paperwork including the preparation of a Court Attendance Notice.

17. Mr Wang arrived at the police station shortly after midday and was placed in the dock at 12.25pm, where he remained until 2.19pm. At 12.47pm a request was made for the attendance of an interpreter, apparently on the understanding that Mr Wang was to be invited to participate in an interview in respect of the incident of 9 May 2013 with a view to laying criminal charges. However, the request was cancelled at 1.58pm. The custody management record explains that, upon further inquiry, it was revealed that Mr Wang “would only need to have warrant served on him and nothing else”. The period from 12.48pm to 1.58pm was recorded in the custody management record as a period of waiting (for the arrival of the interpreter). Shortly after that, Mr Wang was transferred to a cell at the police station.

18. He was then seen by a bail officer, Sergeant Tighe. Sergeant Tighe had the role of mobile supervisor for the entire Gladesville Local Area Command that day. It is not clear what time he attended Ryde Police Station. After reviewing the documents, he took the view that, as Mr Wang had been arrested on a warrant commanding that he be brought before the court, bail could not be granted by him. According to the primary judgment, exhibit 12 (not reproduced in the appeal books) established that Sergeant Tighe made that decision shortly after 3pm. The effect of his evidence was that, after making inquiries as to the next available court date, he approved the issue of a court attendance notice for the following day (rather than the same day, as he said would usually be the case).

19. As a consequence of being refused bail and issued with a court attendance notice for the following day rather than the same day, Mr Wang had to spend the night in custody. At 3.30pm, he was conveyed to the Sydney Police Centre at Surry Hills where he was transferred into the custody of Corrective Services at about 4.30pm. The following day (a Saturday), his matter came before the Court at about 5.30 pm when he was granted bail. According to an endorsement on records maintained by Corrective Services, he was discharged at 6.20pm that day.

20. The statement of claim alleged that the arresting police officers assaulted, battered and wrongfully arrested and detained Mr Wang. However, the pleading was unhelpful in identifying any sound basis for those allegations. The case was expanded upon to some extent during the hearing. The principal complaint according to the pleading was that, had police conducted any reasonable enquiries as to Mr Wang’s whereabouts prior to 24 July 2013, he would have been located and the provisional apprehended personal violence order could have been served on him without the need for his arrest. However, there was no challenge to the validity of the warrant. The State contended that, once obtained, the warrant served as a command to all police officers in New South Wales to arrest Mr Wang, as authorised by s 101 of the Law Enforcement (Powers and Responsibilities) Act.

21. The statement of claim contended alternatively that the officers who arrested Mr Wang “failed to properly inform [him] of his entitlement or eligibility for bail”. Alternatively, it was alleged that the bail officer unreasonably determined that bail should be refused. Finally, in the alternative, the pleading alleged that the officers failed to bring Mr Wang before a court in a timely manner.

22. On the strength of those allegations, damages were claimed for economic loss, injuries (increased blood pressure and psychological damages), disabilities (anxiety, worry and sleep interference) and aggravated and exemplary damages.

23. The claim for aggravated damages had three limbs. First, it was contended that police “maliciously and unnecessarily” failed to grant bail; failed to inform Mr Wang of his entitlement or eligibility for bail; unreasonably determined that bail be refused and failed to bring him before a court in a timely manner so that he could be granted bail by the court.

24. Secondly, it was contended that the need for the arrest “was due entirely to the negligence in police performing their duty to enquire as to the residential address of [Mr Wang]”.

25. Thirdly, the claim relied on 23 particulars as to the circumstances of Mr Wang’s arrest and detention.

26. The claim for exemplary damages repeated the particulars of aggravated damages and further alleged that police acted in contumelious disregard of Mr Wang’s rights and detained him “by assaults, malicious and menacing acts and pretended performance of police duty”. Notwithstanding the existence of the warrant, it was contended that this occurred in circumstances where Mr Wang’s arrest was “entirely unwarranted” and alternatively where his continued detention after arrest was unwarranted. It was further contended that police acted in contumelious disregard of Mr Wang’s rights and detained him “without giving consideration to serving the AVO and immediately releasing [Mr Wang] on bail”. Finally, it was contended that police acted in contumelious disregard of Mr Wang’s rights by making an application for an arrest warrant in circumstances where they had no reason to believe that they could not locate Mr Wang for the purposes of serving the order and that, in so doing, police misled the court (as already noted, however, there was no challenge to the validity of the warrant).

The hearing before the primary judge

27. The hearing proceeded over 12 days in March and May 2016. At the conclusion of the hearing, the primary judge granted leave to the parties to file further written submissions. Mr Wang’s further submissions dated 21 June 2016 ran to some 45 pages and prompted a complaint from the State that they exceeded the scope of the leave granted. The State provided submissions in response dated 26 August 2016.

27. On 13 December 2016 the primary judge invited the parties to provide further written submissions as to the decisions of this Court in Benn v State of New South Wales [2016] NSWCA 314 and State of New South Wales v Robinson (2016) 93 NSWLR 280; [2016] NSWCA 334. That round of submissions was completed by 13 February 2014. Mr Wang’s submissions in this Court note that neither decision was ultimately referred to in the primary judgment.

28. On 25 August 2017 the primary judge invited further written submissions as to this Court’s decision in State ofNew South Wales v Smith (2017) 93 NSWLR 280; [2017] NSWCA 194. That round of submissions was completed by 18 September 2017.

29. On 23 February 2018 the matter was relisted on the instigation of the primary judge following which there was a further round of submissions (concluding on 13 March 2018) as to the decisions of this Court in Croucher v Cachia (2016) 95 NSWLR 117; [2016] NSWCA 365 and State of New South Wales v Le [2017] NSWCA 290. Neither of those decisions is cited in the primary judgment.

30. The primary judgment was published on 7 December 2018, more than two and half years after the conclusion of the main hearing.

31. The notice of appeal includes “delay” as a ground of appeal (ground 1). However, it was accepted at the hearing in this Court that delay is not a ground of appeal in itself. The significance of the delay is considered, to the extent relevant, in respect of the other grounds.

The primary judge’s decision

33. Based on his review of the pleadings, the evidence and the submissions, the primary judge distilled the issues for his determination as follows (primary judgment at [13]):

“(1)   The plaintiff’s ability to communicate in the English language and the extent and the adequacy of communications that occurred between the arresting police officers and the plaintiff in the course of his arrest and detention. My findings on this issue appear between paragraphs [224] to [232] of these reasons;

(2)   The circumstances of the arrest of the plaintiff and whether this amounted to a wrongful arrest, or an unlawful assault and battery upon him. In final submissions the plaintiff no longer pressed the claim of wrongful arrest. My findings on this issue of whether there had been an assault or a battery appear between paragraphs [233] to [242} of these reasons;

(3)   The timeliness of the plaintiff being presented before the Court pursuant to the terms of the warrant under which he had been arrested , and the reasons for him not being released before about 6.15pm on Saturday, 3 August 2013 , some 30 hours and 30 minutes after his arrest. My findings on this issue appear between paragraphs [243] to [290] of these reasons;

(4)   Whether the detention of the plaintiff from some time after his arrest and until he was ultimately released pursuant to a court order amounted to wrongful imprisonment. My findings on this issue appear between paragraphs [291] to [299] of these reasons;

(5)   Whether significant aspects of the plaintiff's adverse health issues are causally related to his detention such that these matters should be reflected in an assessment of damages in his favour. My findings on this issue appear between paragraphs [300] to [303] of these reasons;

(6)   The assessment of the plaintiff's entitlement to damages. My findings on this issue appear between paragraphs [304] to [336] of these reasons.”

34. As to Mr Wang’s ability to communicate in the English language and the adequacy of communications that occurred between him and police in the course of his arrest and detention, the primary judge accepted the evidence of Constable Leahy and Constable Wild that Mr Wang was sufficiently proficient in the English language that they could understand him and he could understand them as to “the pertinent matters that were discussed on the day of his arrest”: primary judgment at [224]. Specifically, his Honour found that Mr Wang’s understanding of English was adequate to enable him to know that he had been arrested pursuant to a warrant and why that was so: at [226].

35. As to the alleged wrongful arrest, assault and battery, the primary judge rejected Mr Wang’s claims, holding that police were “duty bound” to arrest Mr Wang as directed by the terms of the warrant: at [233] to [234]. As to the claim of assault and battery, his Honour rejected Mr Wang’s account of having been physically and forcefully pushed against a wall and later pushed towards the police vehicle and manhandled out of his home into the police vehicle: at [238]. His Honour rejected the claim of assault and battery.

36. As to the timeliness of Mr Wang’s being brought before the court, the primary judge held that Mr Wang should have been presented before the court some time shortly after 2.30pm on the day of his arrest: at [285]. His Honour accordingly held that Mr Wang was wrongfully imprisoned from that time until his release on bail at about 6.15 pm on the Saturday: [291]-[292].

37. As to the cause of Mr Wang’s adverse health events, the primary judge accepted that Mr Wang has become anxious and depressed as a consequence of his period of wrongful imprisonment. However, in assessing damages, his Honour found that Mr Wang’s psychological reaction to his arrest and detention was based on an amalgam of factors commencing with the arrest itself, which could not be reflected in damages as his Honour had rejected the case for wrongful arrest: at [311].

38. His Honour assessed damages by reference to three factors: first, the prolonged deprivation of Mr Wang’s liberty in the period between 2.30 pm on 2 August 2013 and 6.15 pm on 3 August 2013; secondly, the ongoing consequential effects of the exacerbation of Mr Wang’s underlying hypertensive condition whilst he was without his anti-hypertensive medication; and thirdly, the issue of aggravated damages: at [313]. His Honour assessed general compensatory damages, including aggravated damages, in the sum of $40,000: at [325]. He rejected the claim for exemplary damages: at [326] to [329]. He allowed out-of-pocket expenses for future treatment in the amount of $3,500 and past out-of-pocket expenses in the amount of $1,621.89. The total assessment including interest at 2% on the pre-judgment portion of the general damages award was $48,598.89.

Ground 2: Mr Wang’s facility for communicating in English

39. Ground 2 asserts that the trial judge’s finding that Mr Wang could adequately communicate with the police officers in English in August 2013 was plainly wrong. Mr Wang submits that this erroneous finding “infected every aspect of the case”.

40. It was submitted that the finding was wrong for four reasons. The first was that the judge ignored the affidavit of Stephanie Chiu. Ms Chiu is a solicitor employed by Mr Blake. She was born in Hong Kong and migrated to Australia at the age of two. Her parents are Chinese and the family speaks Chinese Cantonese at home. She is also “conversant” in Chinese Mandarin and has an advanced proficiency in reading and writing in Chinese. Mr Wang speaks Mandarin.

41. Ms Chiu stated that she met Mr Wang several times in person in conference and spoke to him many times over the telephone. While the affidavit is not explicit on this issue, the suggestion is that they spoke in a Chinese language. However, Ms Chiu stated that in nearly all of the conferences there were non-Chinese speakers (including Mr Blake) doing much of the talking.

42. The critical part of the affidavit was the description of those conferences in pars 8 and 10, as follows:

“8.   In all of these meetings that involved Jia Nong Wang and non-Chinese speakers, it was obvious to me that he had and continues to have almost no ability to understand spoken English and to reply or comment in response to English that is spoken in his presence.

10.   In these conferences, it was clear to me by his reactions and responses that Jia Nong Wang understands nothing of English beyond the most basic of single words and phrases. And of these, there are only a small number of phrases in English that he understands, such as for instance, ‘okay’, ‘thank you’ and ‘Merry Christmas’.”

43. The State objected to those paragraphs. The primary judge responded by asking whether the objection would “disappear” if counsel had the opportunity to cross-examine Ms Chiu. His Honour indicated that he thought the paragraphs were “admissible subject to weight”. In the face of that indication, counsel appearing for the State indicated that she did not wish to cross-examine Ms Chiu.

44. That left the evidence as it stood in the affidavit. It may be accepted, as Mr Wang submits, that it was uncontested but the question is what it proved. In the form in which it was presented, it is doubtful whether the affidavit was admissible. It was certainly of little weight. Leaving aside the inherent difficulty of assessing another person’s ability to understand a language, the critical paragraphs amounted to opinion or conclusion but the affidavit provided no basis for the primary judge to assess the basis for or reliability of that opinion, particularly in circumstances where the alternative of conversing with native speakers in Chinese Mandarin was available to Mr Wang during the conferences in question. Ms Chiu did not descend to any detail as to the length or subject matter of the conferences in question or the extent to which each participant spoke or responded.

45. A second and related complaint is that the primary judge failed to refer to Mr Wang’s written submissions dated 19 May 2016 addressing Ms Chiu’s affidavit. The content of the affidavit was set out in full in that document. However, only two short submissions were made about it. The first (at par 4) was that Ms Chiu’s evidence was “consistent with Mr Wang’s presentation in the witness box where he relied on the interpreter and showed no evidence of understanding questions until those were interpreted”. The second (at par 71) was to the effect that, for the same reasons, Constable Leahy’s evidence that Mr Wang seemed to understand what was said to him in English should be rejected.

46. Although the primary judge did not expressly refer to Ms Chiu’s affidavit or the written submissions, he did consider the substance of the submission in language that echoed its terms. His Honour noted at [229] that Mr Wang had given his evidence through a Mandarin interpreter and remarked that that was a reasonable step to take to ensure accuracy and clarity of communication on matters of formal and significant importance in the proceedings. However, his Honour observed at [230] that there were “several occasions in the plaintiff’s evidence when he chose to by-pass the assistance of the interpreter and he answered questions directly in English, thereby indicating that he had a sufficient grasp and understanding of the English language to enable him to appropriately respond to questions that were directed to him in a formal setting, including when he needed to ask for some water”. His Honour gave five transcript references to support that observation. Within the limited scope of that small sample, the examples are certainly capable of supporting the judge’s impression.

47. As submitted by the State, the fact that the primary judge did not refer to Ms Chiu’s affidavit or the submissions does not mean that material was ignored. The State further submitted that, in any event, Ms Chiu’s evidence was not necessarily inconsistent with the primary judge’s finding. The relevant finding at [226] was in the following terms:

“Whilst I accept that the plaintiff had a relatively limited capacity in the English language, I do not accept his evidence that such limitation was to the degree that he could not make himself understood on basic matters in conversations he had with those officers or other police officers on the day in question.”

48. That finding related to a very different circumstance from that observed by Ms Chiu, in which there was no need for Mr Wang to demonstrate his understanding of English or indeed to speak English at all.

49. Separately, the State submitted that, to the extent that Ms Chiu’s evidence was to the effect that Mr Wang’s capacity to speak English was limited to the most basic of single words and phrases, it was demonstrably wrong, Mr Wang having extended beyond that limited vocabulary in his evidence in the proceedings. I agree, and would add that a review of the custody records (which the primary judge also undertook) suggests that, at least while he was in the dock at Ryde police station, Mr Wang appears to have been able to understand police and be understood by them in relation to a number of matters.

50. Mr Wang’s third complaint in respect of the judge’s finding as to Mr Wang’s capacity to communicate in English concerned his Honour’s treatment of a Corrective Services record. The document, headed “New Inmate Lodgement & Special Instruction Sheet” was evidently completed when Mr Wang was brought from Ryde police station to the Police Centre at Surry Hills. The form recorded that an “Inmate Identification & Observation form” had not been completed and nominated the following reason: “inmate doesn’t understand Eng”. It incorrectly recorded that Mr Wang required a Korean interpreter. The form also recorded “limited English. Couldn’t understand any questions”.

51. The primary judge did consider that document but did not consider it to be reliable, particularly having regard to the erroneous note that Mr Wang required a Korean interpreter. His Honour considered the record to be an unreliable indication of Mr Wang’s ability to communicate in English.

52. As submitted by the State, those annotations on the form are consistent with the primary judge’s finding that Mr Wang had a relatively limited capacity in the English language. The form provides no indication as to the questions asked by Corrective Services or the way in which they were asked. A better guide was the judge’s own observation of Mr Wang in the witness box assessed against the evidence of the relevant police officers and the records those officers created.

53. The fourth complaint is that the primary judge failed to refer to the transcript of the proceedings in the Local Court at Parramatta by audio-visual link on Saturday 3 August 2013. The submission does not specify what the primary judge ought to have made of that transcript, which consists entirely of exchanges between the magistrate and two lawyers. The only reference to language is a request by one of the lawyers that a Mandarin interpreter interpret the orders. As already noted, the primary judge had regard to the fact that Mr Wang had required the assistance of interpreters in court at [226]. That fact was not inconsistent with the primary judge’s finding that Mr Wang’s English was limited but adequate to enable him to know that he had been arrested pursuant to the warrant and why that was so.

54. Mr Wang asserts that the judge’s flawed findings as to Mr Wang’s ability to communicate in English “infected other matters” such as the judge’s rejection of Mr Wang’s reliability compared with that of the police officers. However, it was not explained how or why that would be the case. Mr Wang gave evidence (with interruptions) over five hearing days with the assistance of an interpreter. The primary judge had ample opportunity to assess his credibility.

55. For those reasons, I would reject ground 2.

Ground 3: Rejection of Mr Wang’s reliability as opposed to that of police officers

56. Ground 3 contends that the primary judge wrongly found the evidence of Mr Wang “histrionic”, preferring the evidence of the police officers including Constable Leahy and Senior Constable Wild. I would not characterise what his Honour said on that topic as a finding proper. At [23] of the primary judgment, his Honour said: “my impression was that the plaintiff gave his evidence in a histrionic manner”.

57. As noted by the State, it is not made clear in Mr Wang’s submissions why it is said that the trial judge was not entitled to form that impression. The State noted, and I agree, that there is nothing objectively inconsistent with it and nothing that makes such an impression inherently unlikely. Indeed, it finds some support in the transcript. However, as submitted by the State, this Court is simply unable to form a firm view as to whether the impression was justified.

58. In any event, the primary judge made plain that he drew no adverse conclusions as to Mr Wang’s credit or as to the reliability of his evidence based on that impression. His Honour explained that he considered it appropriate to make allowance for the fact that Mr Wang’s evidence was almost entirely given through a Mandarin interpreter, raising the possibility that “there may have been expressive or cultural factors at play that may have influenced his gestures and his manner of giving evidence”.

59. Mr Wang’s submissions on this ground of appeal otherwise consist of a series of assertions of error in the findings of the primary judge (nine in all) with no explanation as to why those findings are said to be erroneous. For example, the submissions assert that the primary judge failed to analyse the significance of differences in the evidence of the four police officers but the submissions themselves fail to identify the differences or to explain why they were significant in the context of the issues in the case. Mr Wang’s reply submissions dated 1 August 2019 said, unhelpfully, that in order fully to appreciate the unreliability of the police evidence, it would be necessary for the Court to read the transcript of the four police officers carefully.

60. The principal complaint appears to be that the judge’s rejection of Mr Wang’s reliability was flawed by reason of his Honour’s finding as to Mr Wang’s ability to communicate in English. For the reasons already stated, I am not persuaded that finding was flawed but, even if it was, it does not follow that his Honour could not make reliable findings as to the matters addressed in the submissions.

61. For those reasons, I would reject ground 3.

Ground 4: Failure to address the plaintiff’s submissions

62. Ground 4 contends that the primary judge failed to address the written submissions on behalf of Mr Wang dated 19 May 2016 and subsequent submissions filed on his behalf. It was submitted that the judge failed to respond to substantial, clearly articulated arguments relying on established facts on behalf of Mr Wang, particularly the submissions as to his inability to communicate in English.

63. The submission invoked the decision of the High Court in Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 in which it was stated that a failure to respond to a substantial, clearly articulated argument relying on established facts was a constructive failure to exercise jurisdiction: at [24] to [25] per Gummow and Callinan JJ. The decision is not authority for the proposition that any failure to refer to any argument put to a trial judge amounts to error. It is necessary to engage with the nature and materiality of the argument in the context of the issues in the proceedings. In Dranichnikov, the Refugee Review Tribunal, in considering whether Mr Dranichnikov had a well-founded fear of persecution on the grounds of his status as a member of a particular social group, overlooked or misconceived the particular social group to which he claimed to belong. That was the central question in the proceedings.

64. The approach taken in the present case was to list every submission put on behalf of Mr Wang to which the primary judge did not refer in his judgment and to assert error on that basis. That reflects a wrong approach. The primary judge was not required to address every submission advanced during the course of the hearing: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 271.

65. As noted in the State’s written submissions, Mr Wang’s written submissions appear to identify only two particular submissions advanced by him which were material to the outcome and which were not addressed by the trial judge, namely, the submissions relating to Mr Wang’s capacity in the English language (addressed above) and the submissions in relation to wrongful arrest (addressed below). Otherwise, the table of alleged omissions does not articulate any cogent basis for challenging the judge’s findings. Nor does it establish a constructive failure to exercise jurisdiction.

62. I am not persuaded that there is any substance in ground 4.

Ground 5: Wrongful arrest

67. Ground 5 raises an important question concerning the execution of an arrest warrant. Mr Wang contends that the finding that he was lawfully arrested was wrong. In my respectful opinion, this ground misconceives the authority conferred on police by the warrant, as did the case put by Mr Wang in the primary proceedings. In response to the allegation of wrongful arrest, the State pleaded lawful justification pursuant to s 101 of the Law Enforcement (Powers & Responsibilities) Act. That section provides:

(1) A police officer acting in accordance with a warrant issued under any Act or law may arrest or deal with the person named in the warrant in accordance with the warrant.

(2) The police officer may take action whether or not the warrant is in his or her possession.

68. The State noted in its written submissions that Mr Wang did not plead any factual allegation that would make the defence not maintainable. In particular, no reply was filed to plead the matters now relied upon in support of the claims of wrongful arrest and assault and battery. As revealed by the summary of the pleading set out above, those allegations were made only as particulars of aggravated damages.

69. The case as opened on behalf of Mr Wang expanded the claim to some extent. However, during the course of closing address on 20 May 2016, counsel for Mr Wang said that he did not press the claim for wrongful arrest. Indeed, in response to a question from the primary judge, he acknowledged that, whatever might be said about the process that led to the issue of the warrant, the warrant itself was lawful and open to be acted upon through the arrest.

70. In written submissions filed with leave after the conclusion of the hearing, it was then contended for the first time that the arrest was unlawful due to a failure by the arresting officers to consider whether there was a reasonable alternative to arresting Mr Wang or because of a failure to inform him of the reason for the arrest. The State submits that, in circumstances where that aspect of the claim had previously been abandoned, the primary judge was correct to disregard a belated attempt to assert a differently-framed claim for the first time by way of written submissions filed (in that respect) without leave.

71. There is much force in that submission. Even if the claim was properly resurrected, it is plainly misconceived.

Failure to consider alternatives to arrest

72. The argument concerning the alleged failure by the arresting officers to consider whether there was a reasonable alternative to arresting Mr Wang appears to be based on the provisions of s 99 of the Law Enforcement (Police & Responsibilities) Act. At the time of Mr Wang’s arrest, that section provided:

Power of police officers to arrest without warrant (cf Crimes Act 1900, s 352, Cth Act, s 3W)

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

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

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

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

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

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

(a)    to ensure the appearance of the person before a court in respect of the offence,

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

(c)    to prevent the concealment, loss or destruction of evidence relating to the offence,

(d)    to prevent harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence,

(e)    to prevent the fabrication of evidence in respect of the offence,

(f)    to preserve the safety or welfare of the person.

(4)    A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person, and any property found on the person, before an authorised officer to be dealt with according to law.

73. In the written submissions, Mr Wang relied on the decision of this Court in Zaravinos v State of New South Wales (2004) 62 NSWLR 58; [2004] NSWCA 320 at [37] to support the contention that the availability of an alternative course is relevant “where the validity of the power to arrest is in question”. That decision was concerned with a statutory power to arrest without warrant. The Court’s discussion in that context of the existence of a discretion to arrest a person (and the relevance of the exercise of that discretion to the lawfulness of the arrest) has no relevance to the case of arrest in accordance with a warrant.

74. The State submitted that Mr Wang’s assertion (that the requirement to consider alternatives to arrest applies to an arrest pursuant to a warrant) is unsustainable as a matter of statutory construction. I agree. Section 99 plainly confers a discretion the exercise of which is closely constrained. The section expressly requires the police officer to consider whether the arrest is necessary to achieve one of the purposes specified in the section.

75. The arrest in the present case was authorised under s 101, which confers authority on a police officer to act in accordance with a warrant and to take that action even if the warrant is not in his or her possession. To require a police officer in that circumstance to consider alternatives to arrest would subvert its command.

76. In oral submissions, Mr Robinson gave the following answer as to why s 101 was not complete authority to arrest a person pursuant to a warrant:

“The answer is, of course, the power to arrest comes with two limbs to it. One is the reason for the arrest, and two is to be taken before a justice as soon as possible. In the absence of those two other factors, the arrest is unlawful. We can't say that the second that they put their hands on him, or they don't say they even did that. He says that they pinned him against the wall and frisked him, that was the arrest. We can't say that that, at that second, was a wrongful arrest. What was wrongful was, it was an arrest for a purpose which was never fulfilled. That is, they didn’t tell him the reason for the arrest. They didn’t know the reason for the arrest. They didn’t take it before a magistrate until the next day.”

77. Mr Robinson expanded upon that submission by saying that the arrest was wrongful because the reason for the arrest was never “made good” and therefore it was wrong from the outset. The submission echoed the language of s 99 but that was not the source of authority to arrest in the present case.

Failure to inform Mr Wang of the reason for the arrest

78. Separately, Mr Wang submitted that the arresting officers ought to have informed Mr Wang of the reason for his arrest. The primary judge made a finding at [236] that they did and that “this was also confirmed at Ryde Police Station in compliance with s 201(2) of LEPRA”. Although that finding is challenged, as with ground 3, no basis for the challenge has been articulated. The judge cited “Exhibit 12, p 59” to support the finding. Exhibit 12 was a chronological bundle of documents shown to witnesses but it is not reproduced in the appeal books. It can be inferred that some of its contents appear elsewhere in exhibits that are included in the appeal books. The judge may have been referring to a note in the custody management record which indicates that the custody manager read Mr Wang “part 9” (a reference to LEPRA) with the use of the telephone interpreter service.

79. In any event, the State accepted that, in accordance with s 201(2) of LEPRA as it then stood, police exercising the power to arrest under s 101 were required to inform Mr Wang of the reason for the exercise of the power. However, it was submitted that they fulfilled that requirement by telling him there was a warrant for his arrest. It was submitted that no further explanation is required beyond a statement to that effect. In the case of an arrest in accordance with s 101, I agree. Mr Wang identified no authority for the contrary proposition. Indeed, in the case of arrest in accordance with a warrant where police do not have possession of the warrant (a course expressly authorised by the statute), it is difficult to think what additional reason they could provide. The existence of a warrant is, as the word “warrant” indicates, reason enough. The reason for the exercise of the power in that instance is to obey the command of the warrant.

80. Mr Robinson submitted, however, that in order to fulfil the requirement to provide the person subject to the exercise of the power with the reason for the exercise of the power, it is necessary that the person understand what he or she is told. He accepted that a person can be lawfully arrested without being informed of the reason “where necessity justifies that omission”, so long as an explanation is provided as soon as is reasonably practicable: cf s 201(2); Poidevin v Semaan (2013) 85 NSWLR 758; [2013] NSWCA 334 at [25] per Leeming JA (applied in State of New South Wales v McCarthy [2015] NSWCA 153; (2015) 251 A Crim R 445 at [76] per Meagher JA). Mr Robinson argued that, in Mr Wang’s case, that meant the reason had to be explained in Mandarin by an interpreter.

81. In circumstances where no cogent basis is established for disturbing the primary judge’s finding that the reason was explained both in English at the time of arrest and through an interpreter (by telephone) at Ryde Police Station, it is not necessary to determine what would have been the significance on the lawfulness of the arrest of any failure to comply with s 201(2). However, it may be noted that there is authority to support the proposition that, where it is impracticable to comply with the requirement at the time of arrest (here, as it was argued, because Mr Wang did not understand the information), failure to provide the information subsequently does not invalidate the arrest: McCarthy at [78] per Meagher JA, Gleeson JA and Adamson J agreeing at [82] and [83].

Ground 6: Assault

82. Ground 6 asserts that the primary judge wrongly found that there had been no assault or battery at the time Mr Wang was arrested. The submission identified three findings alleged to involve error. However, the only reason identified for the contention that those findings were wrong was the “flawed finding” as to Mr Wang’s ability to communicate in English.

83. As submitted by the State, it is not clear why, independently of that finding, the primary judge was not otherwise entitled to prefer the evidence of the arresting officers to the evidence of Mr Wang. The State noted the judge’s finding at [235] that Mr Wang’s honest recollection of his arrest and the physical contact it involved was “magnified and distorted by the emotions generated by those events, and what followed”. The judge remarked that that thought process was reflected in Mr Wang’s evidence. The State identified examples where the transcript records that Mr Wang became upset or tearful during his evidence. Those parts of the evidence provide some support for the judge’s assessment.

84. I am not satisfied that any proper basis for interfering with the trial judge’s findings in relation to the force used during the process of the arrest and detention of the plaintiff has been established.

Ground 7: Abatement of ongoing psychological effects

85. The primary judge found at [319]:

“In assessing the appropriate sum for damages I have taken into account Dr Brown’s opinion stating that, with the vindication that the plaintiff will now obtain from the result of these proceedings, and with mitigatory treatment for which he will now receive damages, the ongoing psychological effects of the plaintiff’s wrongful imprisonment are likely to abate within the relevantly short term of a year or so, as stated by Dr Brown. The plaintiff’s entitlement to compensatory damages must be assessed on that basis.”

86. Mr Wang submits that the finding was made without any “significant analysis of the evidence” including evidence from Mr Wang’s treating practitioner as well as Dr Marcello Rodriguez, Dr Andrew Ellis and Associate Professor Richards. Mr Wang acknowledges that the primary judge provided an outline of the medical evidence at [164] to [215] but contended that his Honour failed to provide an analysis justifying the conclusion that the ongoing psychological effects were likely to abate within a year or so. As with other grounds, it was submitted that the finding was flawed by reason of his Honour’s alleged error as to Mr Wang’s ability to communicate in English.

87. The State submitted that this complaint is “both brazen and unfair” because the primary judge received virtually no assistance from Mr Wang as to what should be made of the medical evidence. It was noted that the judge’s finding was based on the evidence of Dr Brown, whom the plaintiff chose not to cross-examine.

88. The State further noted that Mr Wang had not articulated what in the several reports referred to in the submissions warranted a finding different from that which his Honour made. The State’s submissions addressed the detail of that evidence. However, in circumstances where Mr Wang’s submissions did not, I do not think it is necessary to engage with the detail. Mr Wang’s submissions have not persuaded me that his Honour’s finding on that issue was wrong.

Ground 8: Damages

89. Ground 8 contends “the trial judge’s assessment of damages was erroneous, including his assessment that there should be no award in respect of exemplary damages”.

90. It was submitted that the primary judge failed to engage with the submissions dated 19 May 2016 as to exemplary damages, suggesting that his Honour did not read those submissions.

91. The submissions to which that argument refers provided a summary of the relevant legal principles and authorities to be considered in assessing exemplary damages but otherwise gave no meaningful assistance to the primary judge. All that was said in relation to the circumstances of this particular case was that the matters relied upon at paragraphs 55 to 78 of the submissions relating to aggravated damages were also relevant to the assessment of exemplary damages.

92. The burden of the submission at paragraph 182 of the submissions of 19 May 2016 was that Mr Wang’s imprisonment was not only unlawful but involved a deliberate, intentional or reckless disregard of his interests. The primary judge expressly considered that issue at [326] to [329] of the primary judgment and rejected the argument. Specifically, his Honour found that Mr Wang’s wrongful imprisonment occurred unintentionally due to systemic and cumulative processing errors and consequential delays compounded by the fact that the events occurred at the time of the annual Local Court Magistrates’ Conference. Special arrangements were in place during the conference which complicated the process of bringing arrested persons before the court. Mr Wang’s submissions have identified no cogent basis for interfering with those findings.

93. Mr Wang complains that the primary judge failed to consider the two authorities cited in the submissions, State of New South Wales v Zreika [2012] NSWCA 37 and State of New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57. However, as submitted by the State, those authorities do not dispense with the requirement, before awarding exemplary damages, to find that the conduct in question was conscious or intentional wrongdoing in contumelious disregard of a person’s rights. In light of his Honour’s finding that the conduct was unintentional, the occasion to consider those authorities did not arise.

94. I am not persuaded that any basis is established for interfering with the primary judge’s conclusion as to exemplary damages.

The State’s proposed cross-appeal

95. The proposed cross-appeal challenges the primary judge’s findings on liability for false imprisonment and the availability of aggravated damages. Three errors are asserted, as follows:

1. The bases for finding that Mr Wang’s detention was not in accordance with the terms of the warrant issued were erroneous: primary judgment at [243] to [290], [321] to [322];

2. The basis for finding that the State was liable for Mr Wang’s detention beyond 4.30 pm on Friday 2 August 2013 was erroneous: primary judgment at [293]; and

3. Despite making findings inconsistent with the exclusion of the application of the Civil Liability Act2002 (NSW) by the operation of s 3B(1)(a) of the Act (primary judgment at [327]), the trial judge’s failure to consider the operation of provisions such as s 21 and s 43A of the Act was erroneous.

96. The State acknowledged that leave is required to bring the cross-appeal because it is from a final judgment that involves a matter at issue of the value of less than $100,000: s 127(2)(c)(i) of the District Court Act 1973 (NSW).

97. In accordance with the principles stated by Basten JA in Be Financial Pty Ltd (as trustee for BE Financial Operations Trust) v Das [2012] NSWCA 164 at [33], it is ordinarily appropriate to grant leave to appeal only in matters involving issues of principle, questions of general public importance or an injustice which is reasonably clear in the sense of going beyond what is merely arguable. It is necessary also to have regard both to the quantum of damages involved and the degree to which the decision below is or is not attended by doubt.

98. The determination of proposed grounds 1 and 2, assuming they raise questions of principle, would ultimately turn on minute questions of fact as to a complex series of events involving a number of statutory and administrative regimes. As the primary judge put it at [287], there were “no bright lines” in the time line. The primary judge concluded at [285] that there was no reason to delay Mr Wang’s departure from Ryde police station after “say 1.30pm”. While aspects of that conclusion might be contestable, there is equally a real question as to why Mr Wang could not have been brought before the Court later that day. Further, it is not reasonably clear (beyond being merely arguable) that the primary judge erred in holding at [293] that the transfer of custody to Corrective Services was a natural consequence of the earlier conduct of police. Indeed, the judge’s conclusion on that issue appears to me to be right. From the point where bail was refused and the Court Attendance Notice was issued specifying 3 August as the next court date, Mr Wang’s detention overnight was inevitable.

99. The proposed ground raising the Civil Liability Act similarly raises complex factual questions as to whether the exercise or failure to exercise various powers by police was unreasonable within the meaning of s 43A of the Act. The State accepted that the application of the Act was not pleaded and was raised only in submissions filed after the conclusion of the hearing. Mr Robinson submitted to this Court that, had the issue been raised in a timely way, the case would have been conducted very differently. That is a powerful reason for refusing leave.

100. For those reasons, I would refuse leave on the cross-appeal.

101. The orders I propose are:

1. Grant leave to appeal.

2. Dismiss the appeal.

3. Refuse leave on the cross-appeal.

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Endnotes

Decision last updated: 22 November 2019