Wilson v State of New South Wales

[2010] NSWCA 333

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Wilson v State of New South Wales [2010] NSWCA 333

FILE NUMBER(S):
2009/298497

HEARING DATE(S):
30 September 2010, 1 October 2010

JUDGMENT DATE:
9 December 2010

PARTIES:
David WILSON  (appellant)
STATE OF NEW SOUTH WALES  (respondent)

JUDGMENT OF:
Hodgson JA McColl JA Young JA   

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 5036/05

LOWER COURT JUDICIAL OFFICER:
Peter Johnstone DCJ

LOWER COURT DATE OF DECISION:
30 April 2009, 31 July 2009, 2 September 2009

COUNSEL:
D CAMPBELL SC/ J SHELLER  (appellant)
P BODOR QC/ M HUTCHINGS  (respondent)

SOLICITORS:
Greg Walsh & Co  (appellant)
I V Knight, Crown Solicitor  (respondent)

CATCHWORDS:
TORT – Trespass to land – Implied licence to go to door of property for legitimate purposes – Revocation of licence – Requirement of notice of revocation – Requirement that notice be such as to convey to licensee or to a reasonable person in the position of the licensee both that the notice comes from a person with authority to revoke the licence and that it does revoke it. 
TORT – Wrongful arrest and false imprisonment – Requirement of s 352(1)(a) of the Crimes Act 1900 that an arrest be effected “immediately after” commission of offence – Process of arrest commenced immediately after commission of offence, not then concluded because alleged offender withdraws inside his house, and concluded afterwards when alleged offender emerges from his house – Whether arrest lawful. 

LEGISLATION CITED:
Civil Liability Act 2002, ss 52 and 54
Crimes Act 1900, s 352, Pt 10A, s 354, s 355
Fines Act 1996, s 72, s 76
Law Enforcement (Powers and Responsibilities) Act 2002, s 100

CATEGORY:
Principal judgment

CASES CITED:
Alderson v Booth [1969] 2 QB 216 at 220
Christie v Leachinsky [1947] AC 573
Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427
Cowell v Rosehill Racecourse Co Limited [1937] HCA 17; (1937) 56 CLR 605
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Griffith v Taylor (1876) 2 CPD 194
Halliday v Nevill [1984] HCA 80; (1984) 155 CLR 1
Hanway v Boultbee (1830) 1 Mood & R 15; 174 ER 6
Hatzinikolaou v Snape (1989) 97 FLR 86
R v Howarth (1828) 1 Mood CC 207; 168 ER 1243
R v Hoar [1965] NSWR 1167
Jones v Dunkel [1959] HCA 8; (1958-1959) 101 CLR 298
R v Jones (EJM) [1970] 1 WLR 211
Kuru v State of New South Wales [2008] HCA 26; (2008) 236 CLR 1
Mifsud v Campbell (1991) 21 NSWLR 725
O’Halloran v Roth [2008] NSWCA 65
Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635
Pollard v RRR Corporation Pty Limited [2009] NSWCA 110
Sakhuja v Allen [1973] AC 152
Sangha v Baxter [2009] NSWCA 78
Shackleton v Chief Constable of Lancashire Constabulary [2001] EWCA Civ 1975
State of New South Wales v Koumdjiev [2005] NSWCA 247; (2005) 63 NSWLR 353
Woodley v Boyd [2001] NSWCA 35

TEXTS CITED:

DECISION:
(1)  Appeal dismissed. 
(2)  Leave to cross-appeal granted and cross-appeal allowed. 
(3)  Orders below set aside. 
(4)  Verdict and judgment in the proceedings for the State. 
(5)  Mr Wilson to pay the State’s costs of the proceedings, and of the appeal and cross-appeal, including the application for leave. 
[The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system.  Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18.  Parties should in particular note the time limit of fourteen days in Rule 36.16.] 

JUDGMENT:

- 47 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

2009/298497

HODGSON JA
McCOLL JA
YOUNG JA

9 DECEMBER 2010

David WILSON v STATE OF NEW SOUTH WALES

Headnote

Facts

At 9am on 25 February 2004, two sheriff’s officers (Mr Davies and Ms Lomas) went to the home owned by the appellant and his wife (Mr and Mrs Wilson) in order to enforce a Property Seizure Order for outstanding traffic fines owed by the appellant. The sheriff’s officers went on to the land and upstairs to a covered verandah leading to the front door.

The appellant answered the front door, and the officers said they were looking for the appellant, and asked to speak to the owner of the premises. The appellant replied by calling out to Mrs Wilson that the officers wanted to speak to her, and asking her to tell the officers to get off her property. Mrs Wilson came to the front door, and confirmed that she owned the premises and that the person standing next to her was the appellant. The appellant indicated that he wanted the officers to leave the property. The screen door was opened, and there ensued a struggle between the appellant and Mr Davies. Mr Davies said, “you assaulted me and you’re under arrest”. The appellant then went back inside the house, and the officers went to their car in the street to arrange for Police to be called.

Soon after, the appellant came out of the house and got into a car on the driveway in front of the house.  Mr Davies went on to the driveway, removed the keys from the car, and said, “Sir, I told you, you're under arrest and you're not going anywhere. The Police are on their way." There was a physical altercation between Mr Davies and the appellant.  During this altercation, Ms Lomas came on to the driveway and sprayed the appellant with capsicum spray. The appellant was subdued.

Under s 76 of the Fines Act 1996, as in force at the material time, a person executing a property seizure order was permitted to enter any premises for the purposes of executing the order, but not any part of the premises used solely for residential purposes (in which case a search warrant or the permission of the occupier was required).

As in force at the material time, s 352(1)(a) of the Crimes Act 1900 provided that a constable or other person may without warrant apprehend any person in the act of committing, or immediately after having committed, an offence, and take the person before an authorised Justice.

The appellant sued the State of New South Wales for damages for trespass to land, trespass to person, trespass to land and goods, detinue, wrongful arrest and false imprisonment, and malicious prosecution. The primary judge gave verdict for the appellant and awarded damages of $15,000. In a further judgment, the primary judge awarded $3,300 interest to the appellant and made various costs orders.

The appellant appealed from those decisions and orders. The State sought leave to cross-appeal.

Issue arising on appeal:

(i)Whether the implied licence in favour of Mr Davies and Ms Lomas for entry on the appellant’s land was revoked.

Issue arising on cross-appeal:

(ii)Whether Mr Davies’ re-entry on to the appellant’s driveway constituted trespass to land.

HELD (dismissing the appeal, granting leave to cross-appeal and allowing the cross-appeal):
In relation to (i)—Revocation of licence

(Per Hodgson JA, McColl and Young JJA agreeing)

(1)The licensee must first have notice that the licence is revoked. That requires a communication to the licensee, which the licensee understands as a revocation of the licence or which a reasonable person in the position of the licensee would understand as a revocation of the licence.

Cowell v Rosehill Racecourse Co Limited [1937] HCA 17; (1937) 56 CLR 605, referred to.

(2)The communication must be such that the licensee did understand it, or a reasonable person in the position of the licensee would understand it, both as coming from a person with authority to revoke the licence and as having such content as to constitute such a revocation.

(3)If the communication comes from a person apparently in occupation of the land in question, this will generally be enough to convey to a licensee or to a reasonable person in the position of the licensee that it is from a person with the authority to revoke the licence.  But in some cases, more particular facts may need to be considered.

(4)In the present case, the communications from Mr Wilson were such as to convey to the officers, or to a reasonable person in their position, that he did not have authority to revoke their implied licence; and accordingly, the licence was not revoked.

In relation to (ii)—Lawfulness of re-entry

(Per Hodgson JA, McColl and Young JJA agreeing)

(5)There was not a completed arrest of Mr Wilson on the verandah because there was no physical act of arrest or of submission.

Christie v Leachinsky [1947] AC 573, R v Hoar [1965] NSWR 1167, Woodley v Boyd [2001] NSWCA 35, Alderson v Booth [1969] 2 QB 216, Hatzinikolaou v Snape (1989) 97 FLR 86, referred to.

(6)If following a sufficient communication of intention to arrest and of the reason for arrest, the person in question flees, the person attempting to make the arrest can pursue that person and can complete the arrest if after a time the person attempting to make the arrest catches up with the other person, even if the time of that completion could not be considered to be immediately after the offence.

Hanway v Boultbee (1830) 1 Mood & R 15; 174 ER 6, R v Howarth (1828) 1 Mood CC 207; 168 ER 1243, Griffith v Taylor (1876) 2 CPD 194, R v Jones (EJM) [1970] 1 WLR 211, Sakhuja v Allen [1973] AC 152, Shackleton v Chief Constable of Lancashire Constabulary [2001] EWCA Civ 1975, referred to.

(7)The principal purpose of Mr Davies re-entering the property was to give effect to the process of arrest that had commenced on the verandah.  The implied licence to the officers to enter the front yard of the property for legitimate purposes had not been revoked; so that, if giving effect to a process of arrest that had commenced on the verandah was a legitimate purpose, then this was not a trespass.

Halliday v Nevill [1984] HCA 80; (1984) 155 CLR 1, referred to.

(8)The re-entry by Mr Davies onto the land was not a trespass, and the removal of the keys from the car did not amount to unlawful detention and false imprisonment. What Mr Davies did when Mr Wilson emerged from the house was the completion of an arrest that had commenced immediately after the commission of the offence but had not been completed because of the conduct of Mr Wilson, was not discontinued, and was concluded at the first opportunity when Mr Wilson re-emerged from the house. This whole process can be considered as “one transaction”; and it was as a whole justified as an arrest taking place “immediately after” the commission of the offence, within s 352.

R v Howarth (1828) 1 Mood CC 207; 168 ER 1243, R v Jones (EJM) [1970] 1 WLR 211, Sakhuja v Allen [1973] AC 152, Shackleton v Chief Constable of Lancashire Constabulary [2001] EWCA Civ 1975, referred to.

IN THE SUPREME COURT

OF NEW SOUTH WALES
COURT OF APPEAL

2009/298497

HODGSON JA
McCOLL JA
YOUNG JA

9 DECEMBER 2010

David WILSON v STATE OF NEW SOUTH WALES

Judgment

1. HODGSON JA:  On 30 April 2009, Johnstone DCJ gave the principal decision in proceedings in which the appellant Mr Wilson had sued the State of New South Wales for damages for trespass to land, trespass to person, trespass to land and goods, detinue, wrongful arrest and false imprisonment, and malicious prosecution.  By that decision, the primary judge determined questions bearing on the liability of the State for damages. 

2. On 31 July 2009, the primary judge gave his decision concerning damages, giving rise to a verdict for Mr Wilson for $15,000 subject to any claim for interest. 

3. On 2 September 2009, the primary judge gave a further judgment, and made orders including judgment for Mr Wilson for $18,300 and various costs orders. 

4. Mr Wilson appeals from those decisions and orders.  The State has sought leave to cross-appeal. 

   Outline of facts 

5. The proceedings arise out of events that commenced on Wednesday 25 February 2004. On that day at about 9am, two sheriff’s officers Mr Davies and Ms Lomas went to the home of Mr and Mrs Wilson in Leonay with a Property Seizure Order (made under s 72 of the Fines Act 1996) relating to Mr Wilson’s unpaid traffic fines of over $2,000.

6. The officers went on to the land, and went upstairs to a covered verandah leading to the front door.  There was a conversation between the officers and the Wilsons through a screen door, following which the screen door was opened by Mr Wilson and there was an episode on the verandah that was the subject of conflicting evidence.  Following this episode, Mr Wilson went back inside the house, and the officers went to their car in the street and arranged for the Police to be called.

7. Soon after, Mr Wilson came out of the house and got into a BMW car which was on the driveway in front of the house.  Mr Davies went on to the driveway and removed the keys from the car, following which there was a physical altercation between Mr Davies and Mr Wilson.  During this altercation, Ms Lomas came on to the driveway and sprayed Mr Wilson with capsicum spray. 

8. Various other persons then arrived at the scene, including police officers, other sheriff’s officers, and ambulance officers.  Mr Davies and Mr Wilson were taken to hospital in separate ambulances. 

9. Then, the recently-arrived sheriff’s officers went on to the verandah and had a conversation with Mrs Wilson at the front door.  The sheriff’s officers then entered the house and seized and took away certain goods pursuant to the Property Seizure Order. 

10. Next day, 26 February 2004, Mrs Wilson used a credit card to pay the outstanding traffic fines; but she was unsuccessful then in an attempt to recover the goods, which were returned on about 16 March 2004. 

11. On 28 February 2004 at about 7.50pm Mr and Mrs Wilson attended Penrith Police Station, where Senior Constable Janovsky and another police officer formally interviewed Mr Wilson by way of an ERISP, between about 8.30pm and 10.30pm.  Mr Wilson left the police station just after midnight. 

12. About three weeks later, Senior Constable Janovsky instituted criminal charges against Mr Wilson, alleging that he assaulted Mr Davies on 25 February 2004.  The charges were heard in the Local Court, and were dismissed on 9 November 2004. 

13. There was subsequently a police investigation into a complaint by Mr Wilson concerning the events of 25 – 28 February 2004, during which Senior Constable Janovsky was, on 14 February 2006, interviewed by Inspector Bisset. 

    Statutory provisions 

14. The case requires some reference to s 352(1) of the Crimes Act 1900, as in force at material times, which provided as follows:

    352   Person in act of committing or having committed an offence

    (1)Any constable or other person may without warrant apprehend,

    (a)any person in the act of committing, or immediately after having committed, an offence punishable, whether by indictment, or on summary conviction, under any Act,

    (b)any person who has committed a serious indictable offence for which the person has not been tried,

    and take the person, and any property found upon the person, before an authorised Justice to be dealt with according to law.

    There is provision to similar effect in Law Enforcement (Powers and Responsibilities) Act 2002, s 100(1).

15. Also of some relevance is Part 10A of the Crimes Act 1900, as in force at the material time. The objects of that Part are specified in s 354 as follows:

    354   Objects of Part

    The objects of this Part are:

    (a)to provide for the period of time that a person who is under arrest may be detained by a police officer to enable the investigation of the person’s involvement in the commission of an offence, and

    (b)to authorise the detention of a person who is under arrest for such a period despite any requirement imposed by law to bring the person before a Magistrate, authorised officer or other person or court without delay or within a specified period, and

    (c)to provide for the rights of a person so detained.

16. A definitional provision in s 355(2) provides as follows:

    355   Definitions

    …..

    (2)A reference in this Part to a person who is under arrest or a person who is arrested includes a reference to a person who is in the company of a police officer for the purpose of participating in an investigative procedure, if:

    (a)the police officer believes that there is sufficient evidence to establish that the person has committed an offence that is or is to be the subject of the investigation, or

    (b)the police officer would arrest the person if the person attempted to leave, or

    (c)the police officer has given the person reasonable grounds for believing that the person would not be allowed to leave if the person wished to do so.

17. Also of relevance is s 76 of the Fines Act 1996, which at material times provided as follows:

    76   Power of entry to execute property seizure order

    (1)The person executing a property seizure order may, at any reasonable time of the day or night, enter any premises for the purposes of executing the order.

    (2)Subsection (1) does not authorise any such person to enter any part of premises used only for residential purposes without the permission of the occupier of the premises or the authority of a search warrant under this section.

    (3)Any such person may apply to an authorised justice for the issue of a search warrant if the person believes on reasonable grounds that there may be property liable to seizure under the property seizure order in any premises.

    (4)An authorised justice to whom any such application is made may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising any person who is executing the property seizure order to enter the premises and seize property in the premises in accordance with that or any other property seizure order.

    (5)Part 3 of the Search Warrants Act 1985 applies to a search warrant issued under this section.

    (6)Without affecting the generality of section 18 of the Search Warrants Act 1985, a police officer:

    (a)may accompany a person executing a search warrant, and

    (b)may take all reasonable steps to assist the person in the exercise of the person’s functions under this section.

    (7)This section does not authorise a person to seize property under any warrant of execution or order (other than a property seizure order) while the person is in premises in pursuance only of the authority conferred by this section.

    (8)In this section:

    authorised justice has the same meaning it has in the Search Warrants Act 1985.

    premises includes any structure, building, aircraft, vehicle, vessel or place (whether built upon or not).

    Claims made by Mr Wilson 

18. In his proceedings against the State, Mr Wilson made the following claims: 

    (1)that Mr Davies and Ms Lomas committed trespass to land when they did not comply with a direction to leave the land on the occasion of their first entry on to the land; 

    (2)that Mr Davies assaulted Mr Wilson, on the occasion of his first entry, by kicking the flyscreen door and causing it to hit Mr Wilson’s face, and placing his face and shoulder physically into Mr Wilson;

    (3)that Mr Davies and Ms Lomas committed trespass to land by their second entry on to the land;

    (4)that Mr Davies and Ms Lomas assaulted Mr Wilson on the occasion of the second entry, with Mr Davies grabbing Mr Wilson’s hair and dragging him from his motor vehicle, punching Mr Wilson in the face and attempting to place handcuffs on him; and by Ms Lomas spraying Mr Wilson with capsicum spray; 

    (5)that Mr Davies and Ms Lomas unlawfully arrested Mr Wilson, and falsely imprisoned him, detaining him for about 45 minutes at his property;

    (6)that other officers committed trespass to land by entering Mr and Mrs Wilson’s house, and also committed trespass to goods by seizing and removing goods from the house; 

    (7)that the State committed detinue of goods by retaining them after Mrs Wilson had paid the fine;

    (8)that Senior Constable Janovsky unlawfully arrested Mr Wilson on 28 February 2004, and falsely imprisoned him for about four hours 20 minutes at Penrith Police Station; and

    (9)that Senior Constable Janovsky maliciously prosecuted Mr Wilson in respect of alleged assaults on Mr Davies. 

    Decision of primary judge

1. The primary judge found that the evidence of Mr Wilson was unreliable on matters of dispute; that he was unable to accept Mrs Wilson’s evidence on any disputed matter unless independently supported or otherwise corroborated; that Mr Davies was an essentially reliable witness; and that Ms Lomas was the most reliable of all the witnesses. 

2. In respect of claims (1) and (2), the primary judge made the following findings as to facts relating to the initial entry by the officers on to the Wilsons’ premises: 

   16.Upon arriving outside the premises, the two Sheriff's officers, Davies and Lomas, parked their Sheriff's car in the street. They wore the uniforms of their office with the relevant insignia. They then entered the premises via the driveway and proceeded up the flight of steps leading to the front verandah. Mr Wilson, who at that stage was inside the house, saw the officers ascending the stairs through the closed mesh flyscreen door across the opening of the front doorway, and walked up to the screen. Officer Davies, who was leading, approached the knee high wire gate at the top of the steps and rattled it. Mr Wilson then said something like, "What the fuck do you want?" or "What the fuck do you cunts want?" Officer Davies replied, “I’ll let the officer here tell you." The officers went through the gate and crossed the verandah towards the mesh door, where Officer Lomas knocked on the door and then said, "Hi, we're from the Penrith Sheriff's office." Mr Wilson replied, "What the fuck do you want?" Ms Lomas replied, "I'm looking for David Wilson". He said, "What the fuck for? She said, "Is that you?" He said, "Maybe, what's it for?” Ms Lomas replied, "Under the Privacy Act I can't tell you."

   17.It was at this point that Officer Davies took over from Officer Lomas, taking the PSO from her and saying to Mr Wilson, "Can I please speak to the owner of the house?"  Mr Wilson then turned his head and called to Mrs Wilson who was further inside the house, "These fucking Sheriffs want to speak to you. Tell them to get the fuck off your property."  Mrs Wilson then came up to the screen door, stood beside Mr Wilson and confirmed that she was the owner of the premises. A discussion then ensued with Mrs Wilson during which it was made it clear the officers were looking for David Wilson to recover money for unpaid fines.  Mr Wilson interjected at various points, still using foul and offensive language, saying things like,  “Tell these fucken cunts to get off your property".  Officer Lomas recorded in her statement that in one of these interjections Mr Wilson said words like, "You have no right to be here" and, “Get the fuck off my property", but I consider it improbable that he used the possessive pronoun having regard to the lengths he was going to assert that he was not the property owner, and to avoid identification. 

   18.Ultimately, Officer Davies said to Mrs Wilson, "Is that David Wilson standing next to you?" and she said, "Yes, it's him". This was the trigger for Mr Wilson to fly into a rage, whereupon he reached down and opened the screen door, pushing it outwards, saying, "Fuck you, you cunts aren't getting anything."  He charged out onto the verandah straight at Officer Davies who was standing some distance from the door, running into him with his chest.  Officer Davies did not kick the door or otherwise impede it from opening by placing his foot against it.  This version was a complete fabrication. I do not accept the evidence of the Wilsons in this regard.

   19.The impact of the initial contact by Mr Wilson knocked Officer Davies backwards a few feet.  Officer Lomas had to step sideways to avoid being knocked over.  There followed a scuffle on the verandah, in which Officer Davies was initially forced back to a verandah railing.  This part of the episode was described by Officer Lomas in the following way (T 717.6ff): 

   "Mr Wilson came up close to Officer Davies and pushed Officer Davies, like, back, like, making - stepping back, onto the balcony railing, and Officer Davies tried to create space in between them by just putting his hand in between the gap and asking him to step away... Officer Davies then pulled out his OC spray and held it in between them, and asked him to step back."

   20.Officer Davies had grabbed Mr Wilson by the shirt, around the collar region, and managed to force him back towards the door. He was able to create some space between them and pull out his OC (capsicum) spray, which he pointed at Mr Wilson and said, "Step back, sir, I don't want to use this, step back". Mrs Wilson, who was still at the screen door, said, "David", but still Mr Wilson did not move away. Officer Lomas also pulled out her OC spray and said to Mr Wilson, "Step back, sir" whereupon he turned around and went inside. Mr Wilson then said, "You've assaulted me", Officer Davies replied, "No sir, you assaulted me and you're under arrest." Mr Wilson then went further into the house. Both officers said he was so agitated they feared he may have been going to get a knife or other weapon to attack them. Officer Davies then took out his extendable baton, looked at Officer Lomas and said, "Let's go". The officers then proceeded to leave the premises. As they did so, they heard the doors of the house being shut and locked, and Officer Davies made a radio call ("Code 18") to alert his base that there had been a disturbance and to stand by. They went to their car in the street where Officer Davies contacted his Officer in Charge, Inspector Butler, and reported to him what had occurred, as a result of which the Police were called. The two officers then proceeded to wait for the Police outside the premises at their car.

3. The primary judge found that the officers did not enter any part of the premises used only for residential purposes, and that the restrictions imposed by s 76(2) of the Fines Act were not applicable.  He further held that at common law they were entitled to go to the front door pursuant to an implied licence; that this implied licence was not withdrawn (because Mrs Wilson did not ask the officers to leave, and Mr Wilson disavowed ownership and thus disavowed authority to revoke the licence); and that in any event Mr Wilson’s immediate attack left the officers no time to withdraw.  Accordingly, he rejected claim (1). 

4. The primary judge found that the assaults alleged to have occurred on the verandah by Mr Wilson did not occur, and accordingly he rejected claim (2). 

5. The primary judge found that Mr Wilson assaulted Mr Davies on the verandah, and that Mr Davies was entitled to arrest Mr Wilson immediately thereafter; that Mr Davies then informed Mr Wilson that he was under arrest and informed him of the reason for the arrest; but that there was not a sufficient act of arrest, because there was neither touching nor submission.  He further held that, if Mr Davies had effected an arrest, it would not have been wrongful. 

6. In respect of claims (3), (4) and (5), the primary judge made the following findings of fact: 

   56.While waiting at their car for the arrival of the Police, Officers Davies and Lomas saw Mr Wilson exit the front door of the house and proceed down the outside stairs to a BMW car in the lower driveway. He had changed his clothes. Officer Davies called out to him, "Sir, stay where you are, you are under arrest. The Police are on their way." Mr Wilson, however, proceeded to the BMW, got into the driver's seat, placed the keys in the ignition and started the engine. Officer Davies then re-entered the premises and proceeded up the driveway towards the BMW, saying, "Sir, you are not going anywhere. The Police are on their way. You can't drive, you're suspended."

   57.Officer Davies went up to the driver's door and said, "Stop". Mr Wilson replied, "Fuck you." Officer Lomas had by this stage moved to the bottom of the driveway and she observed Officer Davies open the car door, reach in and pull his hand out holding a set of keys. Officer Davies had reached in, grabbed the keys, turned the motor off, pulled out the keys, and placed them in his pocket. I am satisfied that he did not touch Mr Wilson at this stage, let alone grab him by the hair or otherwise forcibly drag him out of the car. This was another fabrication on the part of Mr Wilson. Officer Davies then said, "Sir, I told you, you're under arrest and you're not going anywhere. The Police are on their way." At this point, while still sitting in the car, Mr Wilson punched Officer Davies in the chest, striking him on the left side and knocking him off balance. Officer Lomas moved onto the driveway and moved towards them. She observed Mr Wilson emerge from the car and scream, "I'm not under fucken arrest." Officer Davies moved towards the rear of the car, whereupon Mr Wilson charged at him and punched him on the left cheek. His head jerked back and his upper body turned to the left, but he did not fall over, and Mr Wilson then struck him with a series of further punches to the head and body.

   58.Officer Davies then managed to grab Mr Wilson's arms and smother his punches,  and the two men then struggled together for several minutes, in the course of which Officer Davies punched Mr Wilson on the chin and pushed him against the side of the car. Even then Mr Wilson kept struggling and trying to punch Officer Davies. Officer Lomas, who had come up to the two struggling men got out her OC spray and sprayed Mr Wilson. She gave the following account:

   "I got my OC spray out and ran towards Officer Davies. Mr Wilson did not stop fighting, they were both standing but leaning against the car. I said to Mr Wilson "Sir get back," He did not acknowledge what I said. I said "I am going to spray you now," I sprayed Mr Wilson. The stream hit him on his forehead. It did not seem to have any effect, I had to keep moving to keep out of the way of the struggle. Mr Wilson was still throwing punches and was hitting Officer Davies on his head and chest. I sprayed him a second time. This still had no affect, I think I may have got him on the side of his face. Mr Wilson continued with his struggle.  I heard Officer Davies yell "Spray him, spray him," I spray him again and said "l am, I am." I got Officer Davies on the back of his shirt, some of the splash came back and got me on the left side of the face, I bent down for a few seconds then got back up and saw the fight was still going on. I sprayed Mr Wilson again until there was no spray left... The spray appeared to start to take effect, I could hear Mr Wilson screaming "What's this shit you put in my face, it's burning." Officer Davies was now able to push Mr Wilson's head into the vehicle and place his right arm into a wrist lock..."

   59.Officer Davies was then able to propel Mr Wilson onto the front seat of the car, and lie him face down across the seats, and use his body weight to keep him wedged there. He did not punch Mr Wilson while he was in the car, and specifically, he did not at any time strike Mr Wilson on the side of the face. Officer Davies then grabbed his radio and made a Code 1 call for urgent assistance. He then told Mr Wilson he was under arrest and advised him of his rights, to which Mr Wilson responded, "Fuck off."

   60.It was at this point that Mrs Wilson appeared on the scene and approached saying, "What the fuck's going on?" Officer Lomas warned her to stay where she was. She stopped and said, "What the fuck has happened to my husband?" Mr Wilson began to scream out asking for medical attention because his face was burning, saying, "Get this fucking shit off me." Officer Davies, however, made it clear that he required Mr Wilson to submit to handcuffs before help was rendered.

   61.But Mr Wilson continued to resist and said, "No fucking way are you getting handcuffs on me." Mrs Wilson said, "Do something, he's in pain." Officer Lomas said to her, "Mam if you tell him if he lets us hand cuff him, we'll give him medical attention." But Mr Wilson told her, "No way, fuck off”, followed by a direction to his wife to the effect, ”Arrest the cunts, arrest these Sheriff's officers for assaulting me and refusing to treat me." 

   62.Mrs Wilson went back upstairs and some minutes later she returned with a container of water and a cloth. But Mr Wilson still refused to be handcuffed and so treatment could not be rendered and Officer Davies continued to hold Mr Wilson down until assistance arrived.  The first arrivals were two other Sheriff's officers, Memory and Robson, and they then took over control of Mr Wilson, who continued to scream and yell abuse.

   63.Mrs Wilson then attended to her husband and washed him. Officer Davies was taken to a tap in the garden. Other officers then arrived, including Inspector Butler and Mr Termucuglou, and various policemen: Inspector Fox, Senior Constable Janovsky and Constables Willson and Small. There were various conversations that then took place between the protagonists and the newly arrived officers.

   64.Lest there be any doubt as to the nature and extent of the vicious attack launched by Mr Wilson on Officer Davies, the evidence is that afterwards he was totally distraught. Inspector Butler described him in these terms (T 831.10):

   "He was, as I said, very distraught. He was actually – basically in my arms crying. Said words to the effect of, "He smashed me, boss; he hammered me. I didn't deserve this. I was just trying to do my job. I got smashed," and he was crying profusely." 

   65.Both Officer Davies and Mr Wilson were taken away to hospital, in separate ambulances. 

7. The primary judge found that the second entry by Mr Davies on to the land was not made for the purpose of executing the Property Seizure Order (and so was not authorised under s 76(1) of the Fines Act, and could not be justified at common law by that legitimate purpose); and that since the arrest of Mr Wilson was not then authorised by s 352 of the Crimes Act (because it would not be “immediately after” the commission of the assault), the entry could not be justified as being for that legitimate purpose; and that the purpose of preventing Mr Wilson driving while his licence was suspended did not justify entry on to the land.  Accordingly, he found claim (3) established, as against Mr Davies. 

8. As regards Ms Lomas, the primary judge found she did not re-enter the premises until after Mr Wilson had assaulted Mr Davies at the car, and that her entry was in order to help and protect Mr Davies and did not constitute trespass. 

9. The primary judge found that the acts of Mr Davies (attempting to handcuff Mr Wilson and one punch) were in self-defence, involving no more force than necessary; and that the use of capsicum was a use of no more force than necessary to help subdue Mr Wilson; and accordingly he dismissed claim (4). 

10. As regards claim (5), the primary judge held that the arrest and detention of Mr Wilson after he had assaulted Mr Davies was lawful; but that removal of the keys from the car by Mr Davies gave rise to an unlawful detention and false imprisonment, albeit of short duration.  To that extent, the primary judge upheld claim (5) against Mr Davies. 

11. In respect of claims (6) and (7), the primary judge made the following findings of fact: 

    99.Following the events on the driveway and the arrival of various Police officers and other Sheriff’s officers, various conversations took place between the protagonists and the newly arrived officers. One of these conversations was between Mr Wilson and Inspector Fox, a senior Police officer. There was no criticism of his evidence and he was clearly a reliable witness. He spoke to Mr Wilson about the Sheriff’s officers and the execution of the Property Seizure Order. As to the cars in the driveways of the premises, Mr Wilson disavowed ownership. As to the house and its contents, he also disavowed ownership. Inspector Fox gave this account (T 698):

    Q.And he responded with, "It's not my house. Nothing in there belongs to me. My wife owns it all."?

    A.That's correct.

    Q.Did you say, "I believe that if they remove any item that you dispute, you should have recourse to lodge same type of appeal"?

    A.Yes, I did say that. 

    QDid he say, "All right"?

    A.That's correct.

    Q.Was that the last word, “All right," coming from Mr Wilson?

    A.Yes, it was. 

    100.Inspector Fox then went onto the verandah with another Police officer, Senior Constable Somerville, and several of the newly arrived Sheriff’s officers: Inspector Butler, Officers Cleary, Rhodes and Robson, and Mr Termucuglou. Inspector Butler had a conversation with Mrs Wilson at the front door. Inspector Fox described the events as follows:

    "The sheriff’s officers who spoke to Mrs Wilson said, "We have an order here to come into the home to remove some property." She said, "I would like to get some legal advice in relation to that," They – the sheriff's officer said, "That's okay. We will wait here until you get that legal advice.” I then saw Mrs Wilson go off… She left the front door area and was gone for a period of time... It was at least half an hour. Sorry - the period of time I was there was at least half an hour, my apologies. The period of time she - it's my recollection she was seeking legal advice at the time, and that she was sort of in the middle of getting that advice, coming back to the door, and then going again…

    101.Inspector Fox was asked whether Mrs Wilson made any complaint to him: 

    Q:When on the verandah, in the presence of the woman who we're calling Mrs Wilson, did she make any complaint that you heard?

    A.I don't recall her making a complaint.

    102.In an extensive conversation with Mrs Wilson at the front door, mostly through the fly-screen mesh, Inspector Butler told her that the Property Seizure Order still had to be executed, but she had a legal right to decline entry to the Sheriff's officers to execute it, but if that occurred they had the right to go and obtain a search warrant and come back with the Police. Mrs Wilson then said that all the furniture in the house was hers, which was untrue, and indicated she wanted to speak to a lawyer. She went back inside. She first rang a local Penrith solicitor who was unable to help her, but recommended she speak to a service known as Legal Access. She then rang Legal Access and spoke to a person called Sarah Neilsen.

    103.Following an initial conversation with Ms Neilsen from Legal Access, Mrs Wilson went back to the front door and handed the phone, a portable handpiece, to Inspector Butler, saying, “My solicitor wants to talk to you." He then spoke to Ms Neilsen and explained to her that he was executing a Property Seizure Order, but that if entry was refused, it would be necessary to obtain a search warrant and return with the Police. He handed the phone back to Mrs Wilson who then had a further conversation with Ms Neilsen.  According to Mrs Wilson, the Sheriff’s officers then simply walked in without her permission, while she was still on the phone to Ms Neilsen. That was simply not true. It is highly improbable that the Sheriff’s officers would have spent considerable time talking to Mrs Wilson and allowing her to get legal advice, then barged in uninvited while she was still in the process of obtaining that advice. I reject Mrs Wilson's evidence and prefer that of Inspector Butler. His evidence was that after Mrs Wilson spoke to Ms Neilsen, she voluntarily allowed access to the officers to enter and execute the Property Seizure Order. She said words I to the effect (T 836.40).

    "My solicitor has advised me to let you do what you've got to do, otherwise I'm going to have to go through this all over again, and I don't want you back in my house."

    104.The Sheriff's officers then went inside and executed the Property Seizure Order in satisfaction of the outstanding fines. They identified certain goods, and removed others. They gave Mrs Wilson a receipt for the goods taken, then left. The goods taken included a television, stereo system, video player, DVD player speakers and a synthesiser. It is not now disputed that these goods were the property of Mr and Mrs Wilson.

    105.The next day, Thursday 26 February 2004, Mrs Wilson went to the Penrith Court House with the receipt given to her where she used a credit card to pay the fines and received a Tax Invoice and a receipt (Exhibit U). This was taken to the Sheriff's section at the Courthouse, where they were told that the goods were at the Blacktown warehouse. Later that day she and Mr Wilson went to the Blacktown warehouse. She described what occurred there as follows:

    We went into the office. We spoke to one of the ladies there and showed her the paperwork and said we'd come to pick up the goods.

    Q.And did the lady say or do anything in response to that?

    A.She said we couldn't pick them up. 

    Q.Did she give a reason why you couldn't pick them up?

    A.She said that the funds weren't cleared. 

    Q.And what did you do after that?

    A.Well, we tried to argue the point that we'd actually paid by credit card; it was an electronic transaction, it was paid for, they've got the money, I wanted my goods back.

    Q.And what was the response to that?

    A."No". 

    Q.So what did you do after that?

    A.Went home.

    106.The goods were not recovered until 16 March 2004, over two weeks later (Exhibit 7). No further demand was made in the meantime for the return of the goods.

1. On the basis of these findings, the primary judge rejected claim (6). 

2. As regards claim (7), the primary judge said this: 

   118.Once the goods had been lawfully seized, the detention of them by the Sheriff was lawful until there was a categorical refusal to return them that was not qualified by some reasonable and legitimate purpose. The defendant says that the goods were not released on 26 February 2004 because of a government policy that seized goods cannot be returned after payment of fines by cheque or credit card until the expiry of an inflexible, minimum waiting period of 10 working days. There was no assertion of dominion inconsistent with the plaintiff’s rights, nor any intention of retaining the goods beyond the period stipulated by reason of the policy.

   119.Reliance for the existence of this policy was placed on the evidence of Inspector Butler (T 840 - 844). He said that it was based on regulations under the Public Finance and Audit Act 1983 (NSW). It was submitted that no copy of these regulations was produced and that the plaintiff's legal advisers could not locate any such regulations. Accordingly there is no proper basis for finding that the Sheriff was authorised to retain the goods after payment.

   120.There was no evidence to refute the evidence of the existence of the policy, and I am satisfied that there was such a policy. I am further satisfied that a ten day clearance policy for payments made other than in cash was reasonable having regard to the reason why the goods were seized in the first place. The issue is in any event not justiciable: Graham Barclay Oysters Pty Limited v Ryan [2002] HCA 54.

   121.For these reasons I am satisfied that the goods were not wrongfully detained by the Sheriff for the period from 26 February 2004 until 16 March 2004.

3. In respect of claims (8) and (9), the primary judge made the following findings of fact: 

   123.Mr and Mrs Wilson attended at the Penrith Police station on Saturday 28 February 2004 to give their statements. There had been two prior attempts to do so.  The first was at about 4.20pm on the afternoon of the episodes at their premises on 25 February 2004 when the Wilsons went to the Penrith Police station to see Senior Constable Janovsky. But he was based at St Mary's and in any event he was then engaged somewhere else, investigating a motor accident, and unavailable that day. Mr Wilson was told to seek legal advice in anticipation of an electronic interview. The second attempt was at the instigation of Senior Constable Janovsky, when he tried to arrange for the Wilsons to come for interview on the Friday evening, but they were unavailable. It was then arranged, by telephone, that they would go to the Penrith Police station on the Saturday evening because there was no recording facility for an ERISP at St Mary's. Senior Constable Janovsky repeated the advice that Mr Wilson should seek legal advice.

   124.The Wilsons arrived at the Penrith Police Station at about 7.30pm on the Saturday evening and met Senior Constable Janovsky in the foyer. He explained the process to them, including the need to interview them separately. He said he would first take Mr Wilson to meet the Custody Manager, after which he would take him to the interview room where he would be electronically interviewed. 

   125.The Wilsons maintain that before leaving the foyer, Mrs Wilson proffered to Senior Constable Janovsky a handwritten statement she claims she prepared on the day of the events in question, 25 February 2009 [sic 2004], but he declined to take it. Senior Constable Janovsky says there was no discussion with Mrs Wilson about a statement from her at this stage of the evening and denies that Mrs Wilson offered him a handwritten statement then or at any stage. It now seems that Mrs Wilson prepared a handwritten statement but what is disputed is when she prepared it. The existence of a document only emerged well into the trial, and even then it was a copy and the Wilsons were unable to say where the original now is. It was suggested at one stage by Mrs Wilson that the original had been sent to someone during the Wilsons' subsequent letter writing campaign, but could not remember when or to whom. One thing was clear, no one in the defendant's camp had seen it before the trial. The handwritten statement was not tendered. I am satisfied that Mrs Wilson did not proffer a handwritten statement to Senior Constable Janovsky at the Penrith Police Station on the evening of 28 February 2004, either in the foyer before Mr Wilson went off for his interview or after he returned, or at any other stage. I prefer the evidence of Senior Constable Janovsky on this issue.  It is improbable that if he had been offered such a statement that he would not have taken it. I find accordingly. 

   126.After Senior Constable Janovsky had explained the procedure he took Mr Wilson from the foyer into the secure area of the Police Station to the Custody Manager, Sergeant Brown. Mrs Wilson stayed in the foyer, where she remained until later when her husband returned. Her daughter joined her at some stage to keep her company.

   127.Mr Wilson was taken along a corridor to an open area where the Custody Manager, Sergeant Brown, was located, and introduced to him. Senior Constable Janovsky says there was no conversation between them on the way to Sergeant Brown. Mr Wilson maintains that while they were walking along the corridor Senior Constable Janovsky tapped him on the shoulder and said, "You’re under arrest." (T 78.10). Mr Wilson says he asked, "What for?” and Senior Constable Janovsky said, "Assault on a Sheriff's officer”. Senior Constable Janovsky denies that he arrested Mr Wilson then or at any other point of time during the evening. He neither touched him nor used any words of arrest. I am satisfied that such an episode did not occur as asserted by Mr Wilson, and I prefer the evidence of Senior Constable Janovsky. I will say more about the assertion of arrest in due course, but at this point I record that I consider it improbable, and totally contrary to his character and style, that Senior Constable Janovsky would have arrested Mr Wilson in this way, at this point and at this time. Whatever else might be said of him, he presented at all stages of the events involved in these proceedings as a careful, conscientious, and methodical policeman.  It is inconsistent with everything else he did that evening that he would have undertaken something as serious as an arrest so casually, so informally, and so perfunctorily, in the corridor, on the way to the Custody Manager. If there was to be an arrest, it would have occurred in the presence of the Custody Manager.

   128.The improbability of arrest is also evidenced by the continuous case record (COPS), in which there is no entry. Senior Constable Janovsky explained why (T 801 -2):

   Q.Had you arrested him, was that something that you could have or should have included in that document? 

   A.Yes, it would have been in there. 

   Q.It's your choice what goes in.

   A.That’s right. If he was arrested it would have said he was arrested. 

   Q.Why would you need to record that in that document as opposed to any other document?

   A.Because this is the case, this is where our actions are viewed by our supervisors, and it's the event which - it's where we record what's happening and where our investigation is up to at any given stage.

   Q.Would you arrest a person and not record that fact, at least in the COPS records? 

   A.No, if they were arrested it would be created definitely on COPS.

   Q.Why? 

   A.Because it's a record, it's accountable, and it's - if you arrest someone it should be on the system, and you've taken action, it's a result of your action and what you've done. It's a decision that you've made, and that's where you record what you've done. 

   129.I am satisfied that Senior Constable Janovsky did not arrest Mr Wilson at the Penrith Police Station on the evening of 28 February 2004 either in the corridor on the way to see the Custody Manager, or at any other stage. I prefer the evidence of Senior Constable Janovsky on this issue. I find accordingly.

   130.Mr Wilson was introduced to Sergeant Brown and they had a conversation in which Sergeant Brown explained to Mr Wilson his rights, which he did by reference to what was known as a Part 10A document (see Exhibit 9). There was no suggestion throughout this conversation that Mr Wilson was under arrest, nor did Mr Wilson make any complaint about having been placed under arrest.

   131.The independent role of a Custody Manager was explained by Senior Constable Janovsky as follows:

   Q.In the environment that Sergeant Brown was in the police station, as at that time of your career - that is, in February 2004 - was it the case that the custody manager was seen to be independent of any police investigation, or was he part of the police investigation?

   A.No, he was independent.

   Q.His function, as you understood it, in February 2004, was to be an independent source of information for the person that the police officer was dealing with?

   A.Yes.

   Q.And an independent recorder of activities involving the person that you, the investigating police, were dealing with?

   A.Yes.

   Q.So, in other words, Mr Wilson was there at your request?

   A.Yes.

   Q.Voluntarily?

   A.Yes.

   Q.He was not your prisoner?

   A.No.

   132.The evidence as to what Sergeant Brown said to Mr Wilson was given by Senior Constable Janovsky, as Sergeant Brown was not called to give evidence. The evidence established that he was unable to do so as he is now on permanent stress leave. Nevertheless, I accept the evidence of Senior Constable Janovsky that Sergeant Brown did not say anything to Mr Wilson to the effect that he was under arrest. Sergeant Brown did, however, tell him he could contact a lawyer.

   133.After the conversation with the Custody Manager, Senior Constable Janovsky took Mr Wilson into the interview and together with Constable Small conducted an electronic interview. This involved a question and answer procedure that was recorded in full, the certified transcript of which is Exhibit D (the ERISP). At the commencement of the interview Senior Constable Janovsky confirmed the purpose of the interview and that Sergeant Brown had explained to Mr Wilson his legal rights (Q 4), which was acknowledged. There was no suggestion at that point that Mr Wilson had been arrested. Senior Constable Janovsky says that if Mr Wilson had been arrested for any reason, he would have referred to the arrest and recorded the reason for the arrest as one of the opening questions in the ERlSP.

   134.At the conclusion the interview, Senior Constable Janovsky and Constable Small left the room and an independent police officer, Sergeant Kornacki came into the room. His role was to ensure fairness and that Mr Wilson's rights had been fulfilled during the interview. Mr Wilson made no complaint to Sergeant Kornacki about having been arrested. The interview concluded at about 10.32pm, but Mr Wilson was not escorted from the interview room back to the foyer until shortly after midnight. Part of the plaintiff’s case is that he was not allowed to leave the interview room.  Senior Constable Janovsky denies this, and explained what happened:

   Q.I think Mr Wilson ultimately left the custody area somewhere around midnight or shortly after midnight.

   A.Yes.

   Q.What was the delay between 10.32 and that time, after he'd finished all the processes of the interview, that you recollect?

   A.Basically, I was making inquiries in relation to the interview and what course of action that I should be taking.

   Q.When you say you were making inquiries, what did that involve? 

   A.It involved speaking to senior police about what evidence I had, what inquiries I had left to fulfil, and what the most appropriate course would be from there.

   Q.This was a Saturday night, sometime after 10.30pm, on the face of it?

   A.Yes.

   Q.During that period of time, that is, between somewhere around 10.30 and somewhere around midnight, were you engaged in any other task than trying to find out where to go to next, after you had given information about what you had? In other words, did you go off on a dinner, go and do another investigation, or go out to a traffic accident, or anything like that?

   A.No. 

   Q.Where you engaged on the--

   A.I was engaged in this incident. 

   Q.Where was Mr Wilson?

   A.Mr Wilson was in the interview room when I started my enquiries. He was taken back to the dock area at some point in time; I'm not sure exactly long--

   Q.In this period, 10.30 to 12.10, where was he? I mean, after you left the interview, this tape ends.  What happened?

   A.The tape ends, I go and speak to, I think it was, Sergeant Kornacki at that stage,

   Q.You left Mr Wilson in the interview? 

   A.I left Mr Wilson in the interview room with, I believe, Constable Small and, yeah, at some stage – I'm not exactly sure how much later - he is taken to Sergeant Brown, and I think he's put in the dock area to be released from custody. That's the point that he's put through. 

   Q.What do you mean by the expression "placed" - I think you said "in the dock" or "the dock area to be released from custody"? What does that mean to you in the context of this man on this night?

   A.Basically anyone behind the secure door is considered in custody, because you're in a secured area. They're recorded in a part of the police system that's called the custody management. That's where you enter them up, and that's where they're released from...

   Q.At any time during that night, when you first encountered Mr Wilson in the foyer to the time that you last saw him that night, was he not free to leave your company?

   A.He was free to go whenever he wished.

   Q.Throughout the time that you were with him - that is, from the time that you encountered him in the foyer area until you said your goodbyes - did Mr Wilson raise any issue with you about being at the police station in any form?

   A.No. 

   Q.Like saying--

   A.No, he raised no issues. He wanted to be there. He wanted to give his side of the story. 

   135.After Senior Constable Janovsky had completed his further enquiries and taken Mr Wilson out of the secure area back to the foyer he was asked, "What happens now?" He told Mr Wilson, "I will continue my investigation and make a report. It is possible that you will be summonsed for assault." Mr Wilson responded, "I don't think that’s right, I came in tonight to have them charged with assaulting me"? Senior Constable Janovsky then said, "You've asked me a question. I've tried to answer it; as I said, the matter is still being investigated."

   136.Senior Constable Janovsky also spoke to Mrs Wilson in the foyer area, and asked her if she wanted to give a statement then, because it was late. She seemed hesitant so he told her she didn't have to give it then and could do it later. She then said she was about to go overseas on business, so arrangements were made for her to be interviewed after her return, at 7.00pm on 9 March 2004 at the St Mary's Police Station. The interview could occur at St Mary's because an ERISP was not required. An ERISP was only required for 'a person of interest'. 

   137.The Wilsons assert that at the end of the evening Mrs Wilson again attempted to give Senior Constable Janovsky the handwritten statement. He denies that she did and for the reasons already given I prefer his evidence to theirs. If there was such a statement, no further attempt was made to provide it to Senior Constable Janovsky. In fact, thereafter Mrs Wilson declined to be interviewed by the police at all and cancelled her appointment with Senior Constable Janovsky. His evidence on this was:

   "At Penrith Police Station on the night I spoke with Mr Wilson and done the interview, I made arrangements to speak with Mrs Wilson on 9 March. I explained to her that, basically, she didn't have to give a statement. But she seemed keen to give one, so that's why we made the arrangements of 9 March, which was after she'd returned from overseas. When she returned from overseas, she rang me on the ninth, which was the date she was supposed to come and give me a statement, and said she's obtained legal advice and wouldn't be giving me a statement now... She said, "I've spoken to a solicitor, and I won't be coming in to give a statement."

   138.By that time Senior Constable Janovsky had completed his investigations, and when Mrs Wilson declined to give a statement corroborating Mr Wilson, he considered that "offences had been revealed" on the basis of the material he had gathered, and that it was appropriate to proceed against Mr Wilson. He then went through the standard process of preparing a Court Attendance Notice and a Facts Sheet (Exhibit 17).

   139.There were three charges. as set out in the Court Attendance Notice (CAN): 

   001Crimes Act 1900, Section 58 - T2

   Assault officer while in the execution of his or her duty
   at 9:23 am on 25/02/04 at Leonay.
   did assault Greg Davies being a sheriff’s officer in the execution of his duty. 

   002Crimes Act 1900, Section 59(1) – T2

   Assault occasioning actual bodily harm
   at 9.23 am on 25/02/04 at Leonay.
   did assault Greg Davies thereby occasioning actual bodily harm to him. 

   003Crimes Act 1900, Section 61 -T2

   Common assault
   at 9.23 am on 25/02/04 at Leonay.
   did assault Greg Davies.

   140.Senior Constable Janovsky then went through the standard approval process and the Court Attendance Notice was issued and then served on Mr Wilson, on 20 March 2004.

   141.The criminal proceedings then took their course and were mentioned before the Local Court at Penrith on 7 May 2004. Before they came on for hearing, a letter dated 9 September 2004 was sent by the solicitors then acting for Mr Wilson, Coode & Corry, making submissions seeking withdrawal of the proceedings against Mr Wilson (Exhibit K), which I will set out in full below. 

   142.Following receipt of the letter from Coode & Corry a process of review occurred as a result of which Senior Constable Janovsky decided to maintain the prosecution.

   143.That process included the preparation of material by way of a report for reviewing officers, which was first submitted to the Crime Manager, Inspector Glasheen, for approval. He read and noted the report without comment (see Exhibit 24). The report was then sent to the Legal Services Section at Penrith where it was reviewed by a senior Police prosecutor. There were no requisitions or recommendations in respect of the proceedings, nor any suggestions that they were misconceived, inappropriate or otherwise ought to be withdrawn.

   144.The proceedings then continued to their conclusion before the Magistrate who ultimately dismissed the charges on 9 November 2004 (see Exhibit J). 

4. The primary judge rejected claim (8), giving the following reasons: 

   145.The plaintiff's case is that he was wrongfully arrested by Senior Constable Janovsky at the Penrith Police station on the evening of Saturday 28 February 2004 (at paragraphs 33 to 35 of the Second Further ASC [Amended Statement of Claim]). Specifically it is alleged that he was arrested when the officer tapped him on the shoulder and used words of arrest in the corridor on the way to the Custody Manager at about 7.30pm, and that he remained under arrest and wrongfully detained, and falsely imprisoned, until he left the Police station later that night at about 12.05am. It is further alleged that the purpose of the arrest was for the questioning of Mr Wilson. It is not disputed that if he was arrested at this time in this way, that would be a wrongful arrest. 

   146.Apart from the evidence of Mr Wilson as to the assertion of arrest, which I have rejected, it is contended that there is other evidence he was in fact arrested. The first submission is that the Custody Management Record (Exhibit C) proves the arrest, because it uses that term on numerous occasions. The second submission is that Senior Constable Janovsky admitted to Inspector Bisset in cross-examination some two years later that he had arrested Mr Wilson (Exhibit 26). 

   147.On its face, the Custody Management Record might, without more, give rise to an inference that Mr Wilson was indeed arrested. That is no doubt why the lawyers who drafted the original Defence admitted the arrest. I allowed that admission to be "withdrawn at the commencement of the trial pending an explanation of the references to the word arrest in the Custody Management Record. Similarly, the use of the word "arrest" by Inspector Bisset when questioning Senior Constable Janovsky might, without more, be indicative of arrest. But both these references are understandable once explained in the light of the vagaries of the custody management system and the ambiguous and interchangeable terminology involved when a person is placed in custody, but not formally arrested, after entering the secure area of a Police station.

   148.Sergeant Piet gave this evidence. He is the Principal Tutor Site Custody, attached to the education and training Field Support Command. He regularly conducts tutoring activities and is regarded as an expert in relation to custody management. His evidence was cogent, and very helpful in reaching an appreciation of how the Custody Management Record can, on its face, create confusion. It was evident to me, having heard the totality of his evidence, that it was in the nature the prevailing system in 2004 that when witnesses or persons of interest were taken into the secure area of a police station and became the subject of the custody management system, the terminology became confused and interchangeable. 

   149.Some relevant extracts from the evidence of Sergeant Piet are:

   "Q.Those people could not be described, with perhaps one or two minor exceptions, as being people who are in custody? 

   A.That is actually an anomaly because there are circumstances where a person is free to leave, but because the – and then they come under the provisions of the then Part 10A, and because they come under the provisions of the 10A there is a legislative requirement to create a custody record.

   Q.But those are the people under the section 355(2) - I think - which you've described before. Is that correct?

   A.Yes.

   Q.But is that the people you've just described?

   A.Yes.

   Q.People who are, in a sense, if they've said - sorry, I will try that in the singular -"Look, I've had enough of this questioning, I'm now leaving." Those sort of people can sometimes be detained if it was anticipated that if they left they would be arrested?

   A.No, a person can be present at a police station, participate in an investigative procedure, be free to leave, and come under the provisions of Part 10A.

   Q.Which part of Part 10A?

   A.All of it except for the provision - the detention provisions because the detention provisions of Part 10A only come into effect after there has been a lawful arrest.

   Q.So if there are parts outside - within Part 10A - which do not relate to detention as such, these are the people you are describing. Is that right?

   A.Yes.

   Q.And the - if the person is free to go as a result of voluntarily attending an interview or giving a statement, in what respect does Part 10A play a role?

   A.It plays a role that the person must be provided a caution and summary verbally, and in writing, and a custody management record is to be created, and all the rights and privileges of someone in accordance with 10A are available for the individual…” 

   "Q.So that seems to be a unique section dealing with particular types of persons who have come into the station. In particular, people who, if they do try and leave, will be apprehended. 

   A.If you're referring to - there's in 355(2), there is three classes of person.

   Q.That's right. 

   A.One class is a person who can leave, the second class is a person who cannot leave and the third class is the person who feels they cannot leave.

   Q.And thereafter, the balance of Part 10A deals with procedures in relation to those people who are in the station?

   A.Exactly. Rights and procedures, yes. 

   Q.And the word "arrest" appears obviously liberally throughout the part to accordance with its heading, being Detention after arrest for purposes of investigation? 

   A.This is problematic inasmuch as when it refers within that part to the word "arrest", it also encompasses those people who are free to leave..."

   150.In the result, one can only conclude that the Custody Management Record is a totally unreliable record, and that the COPS record is a better record of what truly occurred. The essence of the situation was, therefore, what someone who was in the custody management system was told. Mr Wilson was never told he was not free to leave, indeed he was there of his own free will to give his version of events. More importantly, as I have already found, he was not told he was under arrest.

   151.A satisfactory explanation of the secondary evidence in the Custody Management Record having been given, and the word "arrest" as used by Inspector Bisset when questioning Senior Constable Janovsky having been put in context, the more compelling evidence is that relating to the alleged event itself. As already explained, I prefer the evidence of Senior Constable Janovsky as to what actually occurred. I am, therefore, satisfied that an arrest is neither proved nor corroborated by the secondary documentary evidence to which I have referred

   152.For these reasons I find that Senior Constable Janovsky did not wrongfully arrest Mr Wilson at the Penrith Police station on the evening of Saturday 28 February 2004 

   Did Senior Constable Janovsky wrongfully detain Mr Wilson? 

   153.The plaintiff's case is that even if he was not arrested at the Penrith Police station on the evening of Saturday 28 February 2004, he was nevertheless wrongfully detained and therefore falsely imprisoned by Senior Constable Janovsky. Strictly, this case was not pleaded, but the case was run on the basis of this alternative to arrest, and no point was taken when I formulated this as an issue for determination. 

   154.Specifically, it was submitted (at 166 - 168) that:

   "Even if the Court finds that Mr Wilson was not arrested at the Police Station, and was therefore objectively "free to leave" for the entirety of his attendance there, the Court should nonetheless find that Mr Wilson was falsely imprisoned for the duration of the period that followed the termination of the ERISP if it is satisfied that:

   (a)Mr Wilson subjectively believed that he was not free to leave; and 

   (b)that subjective impression had been induced by acts of Senior Constable Janovsky.

   The acts that caused Mr Wilson subjectively to apprehend that he was restrained from leaving that station need not be shown to have included any physical force or restraint. It is enough that the plaintiff believes that any attempt on his part to move other than as directed will result in an application of physical force.

   As with other trespasses to person, the mental element required is at most an intention merely to do the act or acts that caused Mr Wilson's confinement i.e. in the present case, the acts that caused Mr Wilson to apprehend that he was not free to leave and therefore to remain at the police station, after the ERISP had concluded. On a view that Balkin & Davis [The Law of Torts, 4^th ed] suggest is more likely to be accepted in Australia than elsewhere, even if the conduct on the part of Senior Constable Janovsky that caused Mr Wilson to apprehend that he was no free to leave can be characterised as no more than negligent, that is still sufficient to constitute the tort."

   155.I find it very hard to accept that a man as robust as Mr Wilson has been shown to be could be considered too meek to assert his right to leave whenever he wanted. He simply did not want to leave. He was there to put his side of the story and, as was evident at the end of the night, when he said, "I don't think that's right, I came in tonight to have them charged with assaulting me"? 

   156.I am satisfied, and find accordingly, that Mr Wilson was not wrongfully detained by Senior Constable Janovsky at the Penrith Police station at any time on the evening of 28 February 2004.

1. The primary judge rejected claim (9), being satisfied that there was material on which Senior Constable Janovsky was entitled to form the honest belief that the officers were lawfully on the premises, and he did form an honest belief, justifying the prosecution; and that Senior Constable Janovsky did not act maliciously. 

2. The primary judge considered ss 52 and 54 of the Civil Liability Act 2002, and held that they did not assist the State in relation to his findings concerning claims (3) and (5); and he rejected the defence of ex turpi causa.

3. The primary judge awarded damages of $5,000 for claim (3) and $10,000 for claim (5). 

   Issues on appeal 

4. Mr Wilson relies on the following grounds of appeal: 

   1His Honour erred in law in using general credibility findings about the Appellant to reject his evidence even when it was objectively supported. 

   2His Honour erred in law in finding that the evidence of the appellant's wife self-evidently partisan and tailored without giving reasons.

   3His Honour erred in law in having regard to paragraph 11 of the statement of Officer Lomas which was not in evidence. 

   4His Honour erred in fact in finding that Officers Davies and Lomas were reliable witnesses but rejecting or ignoring their unchallenged evidence that they were told to leave the Appellant's premises but remained on the premises. 

   5His Honour erred in law in misstating the circumstances in which an entrant becomes a trespasser following the withdrawal of permission or licence to remain on the premises. 

   6His Honour erred in law in finding that the Sheriff’s Officers were entitled to be on the premises pursuant to s76 of the Fines Act in circumstances where:

   (a)The right of entry under that section was not pleaded by the Respondent; and

   (b)It was expressly disavowed by the Respondent.

   7His Honour erred at law in finding that a necessary element of the ability of a party in possession of property to revoke an implied licence to enter was for that party to display apparent authority to revoke the licence.

   8His Honour erred at law in finding that the appellant did not act lawfully in attempting to remove Officer Davies from his property. 

   9His Honour erred at law and fact in rejecting the Appellant's claim that he was assaulted by Officer Davies.

   10His Honour erred in fact in finding that the Appellant resisted arrest.

   11His Honour erred in fact in finding that the Appellant punched Officer Davies in the chest after Officer Davies had pulled out the car keys in circumstances where the person whose evidence he found the most reliable, Officer Lomas, and who had a clear view at the time, gave a different version of events. 

   12His Honour erred in fact and law when determining what reasonable force could be used by the Appellant in resisting trespass to land and his wrongful arrest and detention. 

   13His Honour erred in the absence of evidence in finding that there was a policy which permitted the Sheriff’s Officers to detain goods for two weeks or more after payment of fines and that the matter was not justiciable.

   14His Honour erred in fact in finding that Senior Constable Janovsky would only have arrested someone in the presence of the custody manager. 

   15His Honour erred in finding that Senior Constable Janovsky did not arrest the Appellant at the Penrith Police Station on 28 February 2004. 

   16His Honour erred in fact in finding that Inspector Bisset was the only person to use the word arrest when questioning Senior Constable Janovsky. 

   17His Honour erred in law in admitting the evidence of Sergeant Piet in circumstances where his Honour found that evidence to be expert evidence and the Respondent had satisfied none of the requirements for the adducing of expert evidence. 

   18His Honour erred in fact in accepting the explanation of Sergeant Piet as to the terms of the custody management report kept for Appellant in circumstances where Sergeant Piet had never seen the report. 

   19His Honour erred in his assessment of damages. 

   20His Honour erred in his order for costs.

5. The State seeks to rely on the following grounds of cross-appeal: 

   1.That his Honour Judge Johnstone erred in finding that the plaintiff was not arrested by Sheriff’s Officer Davies and/or the arrest of the plaintiff was not complete. 

   2.That his Honour Judge Johnstone erred in finding that the re-entry to the land by Sheriff’s Officer Davies was unlawful.

   3.That his Honour Judge Johnstone erred in finding that Sheriff’s Officer Davies wrongfully detained and falsely imprisoned the plaintiff. 

   4.That His Honour Judge Johnstone erred in his assessment of damages.

6. I will consider in turn the following issues: 

   (1)Credibility (grounds 1 – 3, 10).

   (2)Revocation of licence (grounds 4 – 9).

   (3)Lawfulness of re-entry (cross-appeal, grounds 1 – 3).

   (4)Events at the car (grounds 11 – 12).

   (5)Detinue (ground 13). 

   (6)Events at the police station (grounds 14 – 18). 

   (7)Damages and costs (grounds 19 and 20). 

   Credibility (grounds 1 – 3, 10)

7. It was submitted for Mr Wilson that the primary judge erred in the following respects: 

   (1)Having made adverse credit findings against Mr Wilson, the primary judge disregarded the evidence of Mr Wilson and others supporting Mr Wilson’s claims:  cf Sangha v Baxter [2009] NSWCA 78 at [155] – [156].

   (2)He made an adverse credit finding against Mrs Wilson, without giving reasons for doing so:  cf Pollard v RRR Corporation Pty Limited [2009] NSWCA 110 at [65].

   (3)He made findings concerning credit based on evidence not before him, namely so much of a statement of Ms Lomas as asserted she was concerned that, when Mr Wilson went back into his house, he may have been searching for a knife or weapon:  judgment of primary judge [13] and [20], and see O’Halloran v Roth [2008] NSWCA 65.

   (4)He made a finding that the conduct of Mr Wilson on the verandah amounted to resisting arrest (judgment [52]), when this was not pleaded or otherwise asserted by the State, and the unchallenged evidence was that Mr Davies directed Mr Wilson back into the house (judgment [51]). 

8. As regards (1), it is necessary to consider this, where it arises, in connection with other grounds of appeal. 

9. As regards (2), the primary judge did give reasons for his adverse credit finding in relation to Mrs Wilson: 

   [12]As will also emerge in the course of these Reasons, the evidence of Mrs Wilson was self-evidently partisan and tailored to conveniently accommodate the version of events sought to be established by Mr Wilson.  She effectively conceded as much in cross-examination.  There were so many instances of prevarication on her part that I am unable to accept her evidence on any disputed matter unless independently supported or otherwise corroborated. 

10. It was submitted that he did not give reasons as foreshadowed in the first sentence; but there were places where he did do so, for example in judgment [102] and [103].  Further, concessions as asserted and instances of prevarication appear plainly from the transcript. 

11. For example, Mrs Wilson asserted she had never seen Mr Wilson violent, and shortly afterwards, when referred to a particular incident, conceded she had seen him violent (Black 461); and she admitted (Black 422 – 5) to agreeing to have forwarded in her name to a member of parliament a letter making the assertions that “sheriff’s officers forced their way into my house and committed larceny” which were not true; that she told the officers that all the goods in the house were hers, which was not true; and that the sheriff’s officers did not know her husband was the correct David Wilson or if they were at the right premises, when she knew that the fines in respect of which enforcement was to be levied were fines which her husband had not paid. 

12. As regards (3), there was an error by the primary judge in that the particular passage of the statement by Ms Lomas had been excluded; but in my opinion, there is no reasonable possibility that this error affected the primary judge’s decision on credit or otherwise. 

13. As regards (4), the order of events as found by the primary judge was that Mr Wilson assaulted Mr Davies; Mr Davies said, “step back Sir”; Mr Wilson then turned round and went inside; Mr Davies said, “you assaulted me and you’re under arrest”; and then Mr Wilson went further into the house.  In my opinion, this did not amount to Mr Davies directing Mr Wilson back into the house; and the action of Mr Wilson in not submitting to the arrest is not inappropriately described as resisting arrest.  The fact that this was not pleaded as such is in my opinion immaterial; and the circumstance that an expression such as “not submitting to arrest” might have been more apposite than “resisting arrest” is also immaterial. 

14. Accordingly, these grounds do not succeed as independent grounds.  The question whether adverse credit findings were misused will be considered where it arises in relation to other grounds. 

    Revocation of licence (grounds 4 – 9)

15. It was submitted for Mr Wilson that the primary judge erred in the following respects: 

    (1)Having accepted Mr Davies and Ms Lomas as credible witnesses, nevertheless the primary judge failed to find there was a clear direction to leave the premises given by Mr Wilson well before the altercation on the verandah, following which the officers remained on the premises and thereby committed trespass. 

    (2)The primary judge failed to apply High Court authority to the effect that once his or her licence to be on property is revoked, a person must leave as soon as is reasonably practicable, and otherwise becomes a trespasser:  Halliday v Nevill [1984] HCA 80; (1984) 155 CLR 1, Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635, Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 and Kuru v State of New South Wales [2008] HCA 26; (2008) 236 CLR 1.

    (3)The primary judge found there was a statutory entitlement on Mr Davies and Ms Lomas to enter the Wilsons’ land under s 76 of the Fines Act, when this had not been pleaded and reliance on it was disavowed. 

    (4)The primary judge erred in law in holding that a necessary element of the revocation of the licence is for the person revoking the licence to reveal an apparent authority to do so; and erred in fact in not holding that Mr Wilson had directed the officers to leave “my” property, thereby in any event revealing his apparent authority to revoke the licence. 

    (5)The primary judge erred in finding that Mr Wilson was not entitled to remove Mr Davies from the verandah, and in not finding an assault by Mr Davies on Mr Wilson at this time, by his pulling out a canister of capsicum spray and pointing it at Mr Wilson. 

16. As regards (1), (2) and (4), consistently with submissions made for Mr Wilson, it was appropriate that the primary judge not automatically apply credibility findings to every issue of fact, but rather consider all evidence concerning each relevant fact and come to a conclusion based on all the evidence, albeit aided by his credibility findings.  This is what the primary judge did here.  He gave a pertinent reason for not being satisfied that Mr Wilson at any time told the officers to get off “my” property; and there is no reason to hold he was in error in doing so. 

17. Also, in my opinion, the formulation relied on by Mr Wilson, namely that once his or her licence to be on a property is revoked a person must leave as soon as is reasonably practicable, should not be considered as displacing the principle adopted by Dixon J in Cowell v Rosehill Racecourse Co Limited [1937] HCA 17; (1937) 56 CLR 605 at 631 that a “licensee does not become a trespasser until he has received notice that the licence is countermanded and until a reasonable time has elapsed in which he may withdraw from the land and remove whatever property he has brought in pursuance of the licence”. That is, I would not understand the formulation relied on by Mr Wilson as imposing any different and more stringent requirement than that adopted by Dixon J.

18. Thus, in my opinion, the licensee must first have notice that the licence is revoked; and consistently with the general legal position in relation to the giving of notice, that requires a communication to the licensee, which the licensee understands as a revocation of the licence or which a reasonable person in the position of the licensee would understand as a revocation of the licence.  This means in turn that the communication must be such that the licensee did understand it, or a reasonable person in the position of the licensee would understand it, both as coming from a person with authority to revoke the licence and as having such content as to constitute such a revocation.  If the communication comes from a person apparently in occupation of the land in question, this will generally be enough to convey to a licensee or to a reasonable person in the position of the licensee that it is from a person with the authority to revoke the licence.  But in some cases, more particular facts may need to be considered. 

19. In the present case, on the facts found by the primary judge, the communications from Mr Wilson were such as to convey to the officers, and/or to a reasonable person in their position, that Mrs Wilson was the owner of the property and that Mr Wilson was not; and there was no communication from Mrs Wilson suggesting that the implied licence was revoked by her.  On the contrary, by not acceding to Mr Wilson’s request that she revoke the licence, Mrs Wilson conveyed to the officers that, for her part, the licence was not revoked but rather continued.  In my opinion, the communications from Mr Wilson were such as to convey to the officers, or to a reasonable person in their position, that he did not have authority to revoke their implied licence; and accordingly, the licence was not revoked. 

20. I would further comment that, where there is an implied licence from co-owners, the question whether this can be revoked by one of them is a difficult one:  see State of New South Wales v Koumdjiev [2005] NSWCA 247; (2005) 63 NSWLR 353. In that case, I (with the concurrence of Beazley JA and Hislop J) expressed at [51] a tentative view that an implied licence granted by all tenants-in-common of the common property of a block of units to police to come to the front door of the block could not be revoked by one tenant-in-common. It is not necessary in this case to consider whether that view is correct, or whether it would apply in the facts of this case.

21. As regards (3), it was pertinent for the primary judge to refer to s 76 of the Fines Act, because Mr Wilson had argued that it displaced the implied licence at general law, and that by going on to the verandah the officer had gone beyond what was authorised by s 76. The primary judge rejected both contentions; and while it is correct to say the State did not rely on s 76, this does not matter, because on the primary judge’s findings the implied licence at general law meant that the officers were not trespassers on the verandah.

22. As regards (5), on the facts as found by the primary judge, Mr Wilson was not entitled to remove Mr Davies, but rather assaulted him without justification.  The pulling out of a can of capsicum spray was in those circumstances no more than reasonable self-defence. 

23. For those reasons, I would reject grounds of appeal (4) to (9). 

    Lawfulness of re-entry (cross-appeal)

24. It was submitted for the State that Mr Davies had lawfully arrested Mr Wilson on the verandah, and was entitled to re-enter the property to effect the detention of Mr Wilson pursuant to that arrest, or (in the alternative) that there was a process of lawful arrest of Mr Wilson commenced on the verandah, and Mr Davies was entitled to re-enter the property to complete that process. 

25. It was submitted for Mr Wilson that Mr Davies had not arrested Mr Wilson on the verandah, because there had not been either an act of arrest (such as touching) or submission by Mr Wilson, referring to Hatzinikolaou v Snape (1989) 97 FLR 86; and that the occasion of the second entry was not “immediately after” the alleged assault by Mr Wilson, and so could not be justified by s 352(1)(a) of the Crimes Act. 

26. In my opinion, there was not a completed arrest of Mr Wilson on the verandah.  The requirements for an arrest are (1)  communication of intention to make an arrest, and (2)  a sufficient act of arrest or submission. 

27. As regards (1), if the arrest is to be lawful, this should normally include informing the person that he or she is arrested and informing the person of the reason for the arrest:  Christie v Leachinsky [1947] AC 573 at 587 – 593. However, this is not necessary if the circumstances make these things obvious, or if the person arrested prevents it: Christie at 587 – 593, R v Hoar [1965] NSWR 1167, Woodley v Boyd [2001] NSWCA 35 at [38].

28. As regards (2), a touching on the shoulder can be a sufficient act of arrest, and even this is not necessary if the arrested person submits:  Alderson v Booth [1969] 2 QB 216 at 220, Hatzinikolaou, Woodley at [38].

29. In this case, on the findings of the primary judge, on the verandah Mr Davies clearly conveyed to Mr Wilson his intention to arrest him and the reason for the arrest, telling him “you assaulted me and you’re under arrest”.  However, by this time Mr Wilson was inside the house.  There was no physical contact that could amount to an act of arrest, and no submission.  Rather, Mr Wilson then went further inside the house.  In my opinion, in the absence of a physical act of arrest and of submission, there was not an arrest completed at this stage. 

30. However, a question arises whether what happened could be considered as the commencement of a process of arrest immediately after the commission of the offence, which could later be completed.  The Court was not referred to any authority directly on this point. 

31. In my opinion, if following a sufficient communication of intention to arrest and of the reason for arrest, the person in question flees, the person attempting to make the arrest can pursue that person and can complete the arrest if after a time the person attempting to make the arrest catches up with the other person, even if the time of that completion could not be considered to be immediately after the offence:  Hanway v Boultbee (1830) 1 Mood & R 15; 174 ER 6, R v Howarth (1828) 1 Mood CC 207; 168 ER 1243, Griffith v Taylor (1876) 2 CPD 194, R v Jones(EJM) [1970] 1 WLR 211; and see also Sakhuja v Allen [1973] AC 152, Shackleton v Chief Constable of Lancashire Constabulary [2001] EWCA Civ 1975.

32. In Jones (EJM) at 216, Sachs LJ delivering the judgment of the Court of Appeal said this:

    In that behalf Mr. Williams, moreover, cogently referred us to a line of decisions in relation to powers of arrest and to the rule, often referred to as that of fresh pursuit, which has been part of the law of this country for well over a century. For instance, in Hanway v. Boultbee (1830) 4 C. & P. 350 and again in Griffith v. Taylor (1876) 2 C.P.D. 194 the courts had to consider powers of arrest given by statutes which contained provisions worded even more strictly than the above section 30. The relevant words were in each case “Any person found committing any offence punishable… by virtue of this Act… may be immediately apprehended without warrant” (cf. Larceny Act, 1861, s. 103). The courts in each instance insisted on giving a reasonable construction to the statutes (see the judgment of Lord Cockburn C.J. in Griffith v. Taylor, 2 C.P.D. 194, 202) although “immediately” was such a strong word. In one case [Hanway v. Boultbee, 4 C. & P. 350] an arrest a mile from the scene of offence was upheld. In the earliest case, Rex v. Howarth (1828) 1 Moody C.C. 207, the judges spoke of all the material matters being part of “one transaction” — a convenient phrase.

1. The situation in this case is not dissimilar.  There was sufficient communication of the intention to arrest, and Mr Wilson did not submit but went further into the house.  The decision of Mr Davies not to pursue Mr Wilson into the house was a reasonable one; and he did not abandon the process of arrest, but rather went and waited in his car and arranged for police to be called.  When Mr Davies saw Mr Wilson enter his car on the driveway, he went back on the property, plainly with a view to preventing Mr Wilson leaving.  On the findings of the primary judge, Mr Davies called out to Mr Wilson that he was under arrest before he got into the car on this occasion, and also said this again immediately after Mr Davies had taken the keys from the car.  In my opinion, the principal purpose of Mr Davies entering the property on this occasion was to give effect to the process of arrest that had commenced on the verandah.  In my opinion, the implied licence to the officers to enter the front yard of the property for legitimate purposes had not been revoked; so that, if giving effect to a process of arrest that had commenced on the verandah was a legitimate purpose, then this was not a trespass: Halliday v Nevill. 

2. In my opinion, the analogy with cases such as Hanway and Howarth is sound.  Mr Wilson knew Mr Davies intended to arrest him, as Mr Davies was then entitled to do.  Mr Wilson made it impracticable for Mr Davies to complete the arrest by not submitting and retreating further into the house.  Mr Davies did not abandon the arrest, but was waiting outside the house for the police.  What he did when Mr Wilson emerged from the house is in my opinion properly considered a continuation and completion of a continuous process of arrest that had commenced a little earlier on the verandah, and had not been terminated.  It was the completion of an arrest that had commenced immediately after the commission of the offence but had not been completed because of the conduct of Mr Wilson, was not discontinued, and was concluded at the first opportunity when Mr Wilson re-emerged from the house.  In my opinion, this whole process can be considered as “one transaction” (see Howarth, Jones (EJM) at 216, Sakhuja at 166, Shackleton at [20]); and it was as a whole justified as an arrest taking place “immediately after” the commission of the offence, within s 352.

3. In my opinion, it follows that the re-entry by Mr Davies onto the land was not a trespass; and also that the removal of the keys from the car did not amount to unlawful detention and false imprisonment.  It is not necessary to consider whether removal of the keys from the car, without otherwise confining Mr Wilson, could in any event amount to unlawful detention or false imprisonment. 

4. These questions raised by the application to cross-appeal are of some significance, and although the application was late (by reason of non-advertence to the necessity for leave), there is no suggestion of any prejudice from this.  There is a very close connection between the issues raised by the appeal and by the proposed cross-appeal.  In my opinion, leave to cross-appeal should be granted, and the cross-appeal should succeed. 

   Events at the car (grounds 11 – 12) 

5. It was submitted for Mr Wilson that there were significant conflicts in the evidence for the State concerning what happened at the car, and that the reasoning of the primary judge was vitiated by his failure to address these conflicts.  In particular, the version of Mr Davies, asserting that Mr Wilson had punched him while still seated in the car and thereby propelled him back, was accepted by the primary judge, even though this was contradicted by a contemporary statement made by Mr Davies to Constable Small (Blue 630) that Mr Wilson hit him with the car door, and by the evidence of Ms Lomas that Mr Davies was first hit by Mr Wilson after Mr Wilson had got out of the car (Black 742); and the primary judge did not address that conflict. 

6. It was submitted for Mr Wilson that the primary judge erred in finding that the assaults by Mr Davies and Ms Lomas on Mr Wilson were justified as self-defence, when self-defence was not raised by the State (as distinct from lawful arrest, which was raised); and when Mr Wilson was entitled to use reasonable force to defend his land against trespass and to defend his person against false imprisonment.  In circumstances where the force actually used by Mr Wilson did not succeed either in removing the trespasses or in preventing his arrest, it could not be said that this force was excessive. 

7. In my opinion, the conflict referred to was not such as required explicit consideration by the primary judge, in accordance with the principles stated in Mifsud v Campbell (1991) 21 NSWLR 725. Mr Davies had no recollection of speaking to Constable Small on the day, Mr Davies said he was in a lot of duress at the time and was clearer later as to what happened (Black 681-2), and Constable Small did not give evidence supporting the accuracy of his record; and in those circumstances, in my opinion, the primary judge was not required to accord substantial weight to Constable Small’s statement. Ms Lomas was in the street at the relevant time, and her view of what happened to Mr Davies at the car door must have been obscured by Mr Davies (who was facing away from the street, on the driver’s side of the car, which was also facing away from the street); so that the primary judge could reasonably give greater weight to the evidence of Mr Davies. As put for the State, the primary judge could reasonably regard Mr Davies as giving substantially accurate evidence of a punch as he felt it, while at the same time regarding Ms Lomas as giving substantially accurate evidence of events as she saw them. Further, all three accounts were consistent in identifying Mr Wilson as the aggressor on this occasion, which was the most significant matter.

8. There appears to be no ground of appeal raising the point about self-defence; and in any event, the primary judge treated self-defence as available (Black 1277).  Further, although the finding of justification was made by the primary judge in relation to Mr Davies in terms of self-defence, the finding in relation to Ms Lomas (that she used no more force than necessary to subdue Mr Wilson) is applicable equally to the effectation of a lawful arrest.  In my opinion, the factual findings made in respect of Mr Davies equally support a finding of reasonable force to effect or maintain a lawful arrest. 

9. The submission that Mr Wilson was entitled to use reasonable force to defend his land and his person is irrelevant, on my view that Mr Davies did not trespass and was entitled to complete an arrest commenced on the verandah.  In any event, the primary judge did not find that what Mr Wilson was trying to do at this time was to use reasonable force to remove a trespasser or to defend himself from unlawful arrest:  on the findings of the primary judge, Mr Wilson was attacking Mr Davies by throwing punches, not attempting to remove him from the land. 

10. I would reject grounds 11 and 12. 

    Detinue (ground 13)

11. It was submitted for Mr Wilson that once the fines had been paid by credit card, there was no basis on which the goods could be withheld; and accordingly, retention of the goods thereafter was detinue. 

12. In my opinion, while the approval of a credit card transaction by a credit card company may be accepted as a highly reliable indication that appropriate payment will be made, it has not been established to be the same as a payment in cash or as an unconditional credit to the payee’s own bank account.  In my opinion, the primary judge is not shown to have been wrong to hold that the State had a policy not to return seized goods in such circumstances until after ten working days, and that for the State to give effect to that policy did not constitute detinue. 

13. There was no evidence of any demand after the expiry of this period and before the actual return of the goods. 

14. I note that in any event, it is difficult to see that damages for detinue could be significantly more than nominal. 

15. I would reject ground 13. 

    Events at Penrith Police Station (grounds 14 – 18) 

16. It was submitted for Mr Wilson that, in finding that Mr Wilson was not arrested and falsely imprisoned at Penrith Police Station, the primary judge erred in a number of respects: 

    (1)in finding that Senior Constable Janovsky would only have arrested Mr Wilson in the presence of the Custody Manager (judgment [127]), when there was no evidence that this was Senior Constable Janovsky’s practice;

    (2)in disregarding the evidence of Mrs Wilson that Mr Wilson told her while departing from Penrith Police Station that he had been arrested; 

    (3)in accepting that evidence that Sergeant Brown was on permanent stress leave established that he was unable to give evidence (judgment [132]), and in not applying Jones v Dunkel [1959] HCA 8; (1958-1959) 101 CLR 298 for that reason;

    (4)in disregarding the contemporary record of arrest provided by the Custody Management Record (Blue 617 – 622), which was given to Mr Wilson; and in making no mention of a document entitled Caution and Summary of Part 10A of the Crimes Act 1900 (Exhibit 9, Blue 489), which was apparently read to Mr Wilson at 7.53 pm and given to him at 8.03 pm on 28 February 2004 (Black 764 – 5);

    (5)in allowing evidence to be given by Sergeant Piet concerning the effect of Part 10A of the Crimes Act, when the requirements for expert evidence were not satisfied and the judge ruled that the evidence was not expert evidence; and in then describing that evidence as expert and acting on it (judgment [148]); and

    (6)in disregarding the admission by Senior Constable Janovsky that he had arrested Mr Wilson (Blue 546 – 8), on the basis that only his interview of Sergeant Bisset had used the word arrest (judgment [151]), whereas Senior Constable Janovsky himself said, “I arrested Wilson”. 

17. In assessing these submissions, it is to be kept in mind that Mr Wilson attended Penrith Police Station voluntarily to give his version of events, apparently having an expectation that he would be considered as being the victim of assault by the sheriff’s officers.  The venue was Penrith Police Station, because there was a recording facility for an ERISP there, but not at St Mary’s Police Station.  That facility was within the secure section of Penrith Police Station. 

18. I accept the submission that Sergeant Piet’s evidence was not admitted as expert evidence, and that the primary judge could legitimately rely on it only to the extent that it was probative as non-expert evidence. However, where the existence or otherwise of a practice is relevant to an issue in a case, non-expert evidence can be given concerning the existence of the practice by a person in a position to do so. In my opinion that was the nature of Sergeant Piet’s evidence; and although the primary judge referred to him as “an expert in relation to custody management”, in my opinion this did not mean that the primary judge was treating his evidence as expert evidence, as distinct from evidence of a person familiar with a relevant practice. In my opinion, the primary judge could and did legitimately draw from Sergeant Piet’s evidence (along with that of Senior Constable Janovsky: Black 763 – 764) that, at relevant times, when persons were interviewed in the secure area of a police station, documentation required by Part 10A of the Crimes Act was created, referring to arrest, whether or not persons had been arrested and whether or not they were free to leave. 

19. That practice drew some support from s 355(2) of the Crimes Act, which made it clear that the rights given by Part 10A extended to persons who had not been arrested, when any one of the three alternatives mentioned in that subsection was satisfied.

20. I accept that the evidence that Sergeant Brown was on permanent stress leave did not establish that he was unable to give evidence; but in circumstances where Mr Wilson did not give evidence that words of arrest were spoken to him by Sergeant Brown or in the presence of Sergeant Brown, in my opinion the only possible relevance of this would be to support an inference, which I refer to below, that Sergeant Brown read Exhibit 9 to Mr Wilson, including words which I will quote below. 

21. The evidence of Mrs Wilson as to what Mr Wilson said to her could carry very little weight, because she accepted that Mr Wilson may have said that he had been charged, and that to her this meant the same as having been arrested. 

22. In my view, the view of the primary judge that it was unlikely that Senior Constable Janovsky would have said words of arrest and performed an act of arrest in the corridor is a reasonable commonsense view, not needing any support from evidence as to his practice. 

23. In my opinion, the primary judge gave appropriate reasons for holding that the Custody Management Record did not require a finding that some act of arrest must have occurred, particularly having regard to the circumstance that the ERISP contained no reference to arrest and no protest by Mr Wilson about arrest or about being detained.  In my opinion the treatment by the primary judge of this issue discloses no error. 

24. In my opinion also, there was no error by the primary judge in his consideration of the alleged admission to Sergeant Bisset.  Although Senior Constable Janovsky did use the words “I arrested Wilson”, this occurred about two years after the event, in response to questions by Sergeant Bisset “What information did you have … to place Wilson under arrest?” and “Mr Wilson claims the reason you arrested him was … What is your response to Mr Wilson’s claim?” 

25. In my opinion, the strongest argument supporting an arrest at the police station is the contention that it can be inferred that prior to 8pm on 28 February 2004 Sergeant Brown read Exhibit 9 to Mr Wilson, including the assertion in it “You have been arrested by police and they can keep you in their custody for a reasonable time to conduct their investigations”; and that Mr Wilson was actually given this document and signed it just after 8pm:  Mr Wilson signed an acknowledgement that he had been given the information in that form, and had received a copy.  These circumstances raise the question whether these matters conveyed to Mr Wilson that he had been arrested and whether (even without any act of touching) Mr Wilson’s compliance with directions of the police and his waiting at the police station until after midnight constituted a submission by him that completed the arrest. 

26. However, that contention does not appear to have been put in those terms to the primary judge, and I do not think the primary judge’s failure to address the point can be considered as such to be an error that justifies appellate intervention.  The question is whether this point, either on its own or in combination with all the other points, justifies the intervention of this Court on the basis that the finding of the primary judge was so contrary to the evidence as to justify intervention consistently with Fox v Percy [2003] HCA 22; (2003) 214 CLR 118.

27. In my opinion, the answer is no.  It does not appear that the Custody Management Record was given to Mr Wilson until after midnight, so this document could not have conveyed to him that he was under arrest.  The Exhibit 9 document was, I would infer, read to him, and it was given to him and signed by him about 8pm, and that could have conveyed to him that he was then under arrest.  But having regard to all the circumstances, and in particular the lack of any evidence from Mr Wilson that he understood from this document that he was under arrest, the lack of reference in the ERISP to arrest (as distinct from the legal rights explained by Sergeant Brown) and the lack of protest by Mr Wilson in the ERISP, I would not infer that this was in fact conveyed to him.  In my opinion, his giving of the ERISP was entirely motivated by his wish to give his account of the events, and his remaining at the police station until midnight was with a view to co-operating with police in order to do whatever he could to get his account across to them, and was not due to any perception by him that he was actually under arrest, or to any submission by him to an arrest that he understood had taken place. 

28. For those reasons, I would reject grounds 14 – 18. 

    Damages and costs (grounds 19 and 20) 

29. The result of my decision is that Mr Wilson is not entitled to any damages, and in my opinion there is no utility in addressing the question of damages. 

30. It also follows that Mr Wilson’s proceedings against the State fail, and I see no reason why costs should not follow the event. 

31. Similarly, Mr Wilson’s appeal has been unsuccessful and the State’s cross-appeal has been successful, and again I see no reason why costs should not follow the event. 

32. The result is most unfortunate for Mr Wilson.  However, it should be kept in mind that his difficulties have arisen from his own disregard of the law in not paying substantial parking fines, and then (on the findings of the primary judge, not shown to be erroneous) most unreasonably resisting the legitimate attempt by sheriff’s officers to collect those fines, grossly abusing them, assaulting one of them on two occasions, on the second occasion violently, and violently resisting arrest.  The law does protect private property against wrongful violation by officers seeking to enforce the law, but on the findings of the primary judge there was no such violation in this case. 

    Conclusion

33. For those reasons, I propose the following orders: 

    (1)Appeal dismissed. 

    (2)Leave to cross-appeal granted and cross-appeal allowed. 

    (3)Orders below set aside. 

    (4)Verdict and judgment in the proceedings for the State. 

    (5)Mr Wilson to pay the State’s costs of the proceedings, and of the appeal and cross-appeal, including the application for leave. 

34. McCOLL JA:  I agree with Hodgson JA's reasons and with the orders his Honour proposes. 

35. YOUNG JA:         I agree with Hodgson JA. 

36. However, I need to make two comments.  First, I too would reserve my definitive view on the question as to whether one tenant in common may revoke an entrant’s licence to be on premises (vide [53]).

37. Secondly, as to [77], my tentative view is that if payment by credit card is proved to be the same as payment in cash and if the State is only entitled to retain goods until the unpaid fines and holding charges are paid, then upon demand after such payment, the goods need to be released and there is no justification for a 10 day period based on a need to “clear” the payment.

38. However, the evidence in the present case did not go far enough to establish the pre-conditions.  In any event, as Hodgson JA has said, the damages for detention would only be nominal.

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LAST UPDATED:
10 December 2010