Andrew PINFOLD v STATE OF NEW SOUTH WALES

Supreme Court of NSW|2009-11-18|Before: Howie J

CITATION : Andrew PINFOLD v STATE OF NEW SOUTH WALES [2009] NSWSC 1240 This decision has been amended. Please see the end of the judgment for a list of the amendments.

DECISION : I strike out so much of the plaintiff's statement of claim that is based upon an allegation of negligence. Costs of the motion shall be costs in the cause.

CATCHWORDS : Procedure - miscellaneous procedural matters - application for summary dismissal under UCPR r 13.4 - whether pleadings disclose a reasonable cause of action - application for statement of claim to be struck out under UCPR 4 14.28 - Torts - negligence - duty of care - whether a police officer owes a duty of care to a member of the public being investigated for a criminal offence - extent of immunity of police - false, misleading or inaccurate statements to justice on application for search warrant - continuation of search despite evidence to suggest no offence commited.

Search Warrant Act 1985 (now repealed) LEGISLATION CITED : Crimes Act 1900 - s 91H(3) Crown Proceedings Act 1998 Uniform Procedure Rules 2005 - Part 13 r 4, Part 14 r 28

Wilson v New South Wales [2001] NSWSC 869; 53 NSWLR 407 Cran v State of New South Wales [2004] NSWCA 92; 62 NSWLR 95 Sullivan v Moody (2001) 207 CLR 562 Tame v New South Wales (2002) 76 ALJR 1348 Makucha v Richardson [2008] NSWSC 945 CASES CITED : Duke v New South Wales [2005] NSWSC 632 Darker & Ors v Chief Constable of the West Midlands Police [2001] 1 AC 435 State of new South Wales v Knight [2002] NSWCA 392 State of New South Wales v Spearpoint [2009] NSWCA 233 State of New South Wales v Tyszyk [2008] NSWCA 107 Sullivan v Moody (2001) 207 CLR 562

PARTIES : Andrew Pinfold v State of New South Wales

COUNSEL : D T Kennedy SC/G Smith - Plaintiff M Hutchings - Defendant

SOLICITORS : Lough Wells Duncan - Plaintiff Henry Davis York - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

2008/20251 Andrew PINFOLD v STATE OF NEW SOUTH WALES

JUDGMENT 1 HIS HONOUR: On 28 June 2005 a police officer obtained a search warrant from an authorised justice under the provisions of the Search Warrants Act 1985 (now repealed). The warrant authorised the police officer to search for items connected with an offence of possessing child pornography contrary to s 91H(3) of the Crimes Act 1900. Relying upon the warrant, on 29 June 2005 the police officer and others conducted a search of the premises of the plaintiff including searching a computer and other electronic devices. The plaintiff tried to persuade the police officer during the search that the allegation was wrong and produced material to support his innocence. It is alleged that during the search the police officer confined the plaintiff to a certain part of the house. 2 Arising from these facts the plaintiff has commenced proceedings in this Court by statement of claim filed on 26 June 2008. The defendant's liability arises under the Crown Proceedings Act 1998. The plaintiff seeks a declaration that the search warrant is invalid and claims damages, including aggravated and exemplary damages, for injuries allegedly occasioned by the conduct of the police officer. There are allegations made of misfeasance in public office, negligence, false imprisonment, abuse of process and trespass. 3 On 9 September 2008 the solicitor for the defendant wrote to the plaintiff's solicitor seeking further and better particulars. On 23 October 2008 the plaintiff's solicitor replied to the solicitor for the defendant and included copies of a large number of documents. On 6 January 2009 the defendant's solicitor wrote to the solicitor for the plaintiff expressing the view, with stated reasons, that the statement of claim "is deficient with respect to all nominated causes of action". On 25 February the plaintiff's solicitors replied and enclosed an amended statement of claim "which addresses the matters outlined in your correspondence". 4 On 9 April 2009 the defendant filed a notice of motion seeking to have the statement of claim struck out pursuant to Part 14 r 28 of the Uniform Procedure Rules 2005 or summarily dismissed pursuant to Part 13 r 4. 5 The notice of motion came before me on 3 August 2009. The plaintiff sought leave to file a further amended statement of claim as a result of the written submissions prepared on behalf of the defendant. Many of the problems with the pleadings identified by the defendant continued in the document the plaintiff sought to file. I expressed the view that there seemed to me to be more fundamental problems in the allegations contained in the pleadings and they related to what was said to be the status of the search warrant. However, it was unnecessary to reach a concluded view on those matters. 6 With admirable fairness and no doubt fully cognisant of what is expected from his client, Mr Hutchings, counsel for the defendant, notwithstanding what he identified to be particular errors in the further amended statement of claim, was prepared to concede that the statement of claim should not be struck out in its entirety provided it were further amended. Mr Kennedy SC for the plaintiff indicated that his side had taken on board the criticisms made by the defendant and they were prepared to rectify the most recent draft of the statement of claim to meet them. 7 At the end of the day the only issue upon which the parties required a ruling was whether the allegation of negligence alleged against the police officer could be sustained. The argument concerned the availability of a claim for damages based upon the negligent conduct of a police officer in purported exercise of his statutory and common law rights and duties. 8 The allegation raised by the proceedings is that the police officer, in applying for the search warrant, made a number of statements that he knew to be false, misleading or inaccurate. The plaintiff also relies upon an allegation that, during the search, the plaintiff attempted to show the police officer bank statements and other documents for the purpose of proving that he had not accessed the site on the Internet. 9 In effect the police officer alleged to the justice issuing the warrant that the plaintiff had accessed an Internet webpage containing child pornography by using an ANZ credit card to pay for access to the site. Access to the webpage was alleged to have been between 6 May and 5 July 2002. The police officer alleged that the card used had not been reported as lost or stolen. It was also alleged that records of the relevant government department showed that the holder of a passport in the name of the plaintiff had travelled to Bangkok in the last three years and that this city was considered by police to be a destination for child sex tours. Based upon these allegations the police officer asserted that there were reasonable grounds to suspect that there was child pornography in the plaintiff's premises. 10 It is unnecessary to consider the factual basis of the plaintiff's claim but it is obvious that at least some of the allegations made by the police officer were in fact true. For example, it is common ground that the plaintiff had never reported his credit card as lost or stolen. 11 The claim in negligence asserts that the police officer acted negligently in his application to the justice for the issue of a search warrant and that he and others acted negligently in exercising the powers purportedly given under the warrant. The particulars given under this cause of action allege that the police officer made a number of "negligent misstatements" to the justice being those to which I have earlier referred. Again I note that some, if not the majority, of these statements appear to be true. Yet it is alleged that "each of these statements is materially misleading and/or inaccurate". 12 One of the statements alleged to be misleading and/or inaccurate is that the police officer asserted that there were reasonable grounds to suspect that there was on the premises child pornography downloaded from the website. I do understand how that can be a statement that is either misleading or inaccurate: either there were reasonable grounds for the officer to hold that suspicion or there were not. 13 However, the following particulars of negligence are provided:

Detective Senior Constable Southgate was under a duty to make truthful and accurate statements to the authorised justice.

At the time of making the statements to the authorised justice, Detective Senior Constable John Southgate knew or ought reasonably to have known that the authorised justice would rely on representations made by him in issuing the search warrant, and intended for the authorised justice to so rely on those statements.

In the circumstances the Defendant owed the Plaintiff a duty of care when making those representations as Detective Senior Constable John Southgate knew or ought to have known that the Plaintiff would suffer harm as a result of the misrepresentations being made.

In breach of its duty to the Plaintiff the Defendant failed to take care in making the representations to the authorised justice.

In reliance on the representations of Detective Senior Constable John Southgate a search warrant was issued on the 28th of June 2005 and executed on 29 June 2005.

As a consequence of the misrepresentations made the Plaintiff sustained injury, loss and damage. At all material times there was a risk of harm to the Plaintiff, as a result of improperly obtaining and executing the search warrant, which was foreseeable. 14 The plaintiff further alleged as particulars of negligence:

31(a) During the execution of the search warrant the Plaintiff advised Senior Constable Southgate that he was innocent of any wrongdoing and indeed produced documentary material showed (sic) established that there had been no credit card transaction in respect of [the website] or in the amount of US$5,995 and that he had reported a credit card transaction to the ANZ and that it had been investigated by the ANZ and the Plaintiff was able to show Senior Constable Southgate the documentation that showed that the ANZ had reversed the record of the transaction. The Plaintiff says that at that point the search warrant, to the extent if any that it was valid, was spent, however Senior Constable Southgate and officers acting at his direction remained at the premises for a further hour continuing the unauthorised search.

(b) Once Detective Senior Constable Southgate had been provided by the Plaintiff with the material referred to in (a) above the officer knew or ought to have known that there would not and could not be any material relevant to the search warrant and that he no longer had any further legitimate purpose for continuing to search the Plaintiff's premises or to carry out any further investigation at the said premises or of the Plaintiff at all.

(d) The Defendant's servants or agents including Senior Constable Southgate failed to carry out any or any adequate inquiries to ascertain that the material referred to in paragraph 9 in order to ascertain the authenticity of the said material and the authenticity of the information supplied to the judicial officer at the time that the search warrant was obtained. 15 Paragraph 10(e) of the statement of claim was as follows:

10(e) The Plaintiff has not visited Bangkok. He has been to the transit lounge of Bangkok airport en route to and from London. The application for the search warrant detailed the Plaintiff's travel records since 2002 which showed that he had travelled in the relevant period once to London on Qantas via Bangkok and returned following the same route. The assertion by Detective Senior Constable Southgate to the authorised justice that the Plaintiff had travelled to Bangkok in the last 3 years, immediately followed by the statement that "this country is considered by police as a destination for child sex tourism related activities" is a deliberate falsehood designed to mislead the authorised justice. Detective Senior Constable Southgate knew or ought to have known that the Plaintiff did not leave the transit lounge at Bangkok airport. The said representations were in breach of s 12A of the Search Warrants Act , 2002 in that it was knowingly false in a material particular and the search was the illegal and illegal in its execution. 16 The "material referred to in paragraph 9" as stated in paragraph 31(d) above is the various statements that the police officer is alleged to have made to the justice in order to obtain the search warrant and referred to earlier in this judgment. 17 There are a number of allegations that seem to me to be irrelevant to a pleading of negligence even if, as I doubt, they are correct. For example, the plaintiff did not, and apparently could not, produce any authority to the Court to sustain the proposition that the search warrant was invalid simply because the applicant may have knowingly made a false or misleading statement to the justice. Nor could he take the Court to any authority or statutory provision to support the proposition that a search warrant is "spent" simply because the owner of the property attempts unsuccessfully to convince the person authorised to search the premises that there were no reasonable grounds for the suspicion that justified the issue of the warrant. It seems on its face to be a curious proposition that a police officer should be required to abandon a lawful search simply because the occupant wishes to dispute the correctness of the suspicion reasonably held at the time the warrant was issued. 18 The plaintiff in effect alleges that the police officer was negligent in one of two ways. First that he knowingly made false statements to the justice or that he failed to carry out any or sufficient inquiries to determine whether the information was true. As to the former of those allegations it should be noted that the Act provided in s 12B for an offence of providing a justice with false or misleading information. The second way in which it is said that the police officer was negligent is that he refused to discontinue the search notwithstanding the material provided to him by the plaintiff. 19 The plaintiff asserts that he is not prevented from proceeding on an allegation of negligence against a police officer notwithstanding decisions that at least restrict when it is that a police officer owes a duty of care to a citizen in relation to the performance of his duties to investigate crime. In particular he points to the fact that this was a specific aspect of the investigation, being the obtaining of a search warrant rather than simply the investigation of a crime or crimes generally. 20 The defendant relies upon a line of authority that he submits stands in the way of this Court finding a duty of care in the circumstances of this case. In Wilson v New South Wales [2001] NSWSC 869; 53 NSWLR 407, O'Keefe J was concerned with an allegation that police had failed properly to carry out investigations into allegations of child sexual abuse. He stated:

[44] There are questions of public policy that militate against the extension of the law of negligence to investigations, prosecutions and other actions taken for the suppression of crime in the community. Some of these are the same as or analogous to the questions of public policy that militate in favour of a barrister's immunity for negligence in the conduct of a case in court. Giannarelli v Wraith (supra at 555 per Mason CJ; at 573 per Wilson J; at 579 per Brennan J; at 592 per Dawson J; at 600 per Toohey J with whom Deane and Gaudron JJ agreed).

[45] There is also high authority which weighs heavily against an action for negligence being allowed in connection with the performance of police functions of the kind referred to in the Statement of Claim in the present matter. 21 His Honour then considered a number of decisions in various common law jurisdictions and concluded:

[63] The foregoing line of authority in my opinion strongly supports the conclusion that an action for negligence under the common law does not lie in respect of the exercise by police of their investigative functions on the basis that the investigations conducted were inadequate and that no action for negligence under the common law lies in respect of the performance of police prosecutorial functions, whether in the initiation of the prosecution, in its conduct or in respect of its continuance to the time of decision by a curial body. This conclusion is consonant with what in my opinion is the correct affirmative answer to question 6 posed by McHugh J in Crimmins v Stevedoring Industry Finance Committee (supra). It is also consonant with what, in my opinion, is the correct negative answer to the third question posed by Kirby J in that case. In my opinion the same conclusion flows from the approach adopted by the other members of the High Court in both Pyrenees Shire Council v Day (supra) and Crimmins v Stevedoring Industry Finance Committee (supra). It is also a conclusion that is consonant with the law as stated in England.

[64] For these reasons I am of opinion that the claim of the plaintiffs against the defendant based upon actions by police officers in investigating, prosecuting and continuing the prosecution of the plaintiffs must fail. 22 Cran v State of New South Wales [2004] NSWCA 92; 62 NSWLR 95 was a case concerned with a claim by a prisoner for injuries alleged to have resulted from his incarceration that, it was asserted, was prolonged by the failure of the police and the prosecutor to carry out certain procedures in the investigation of the offences charged against him. During the course of dismissing the claim the members of the Court of Appeal considered the immunity of police to claims of negligence. 23 Santow JA referred to the decisions of the High Court in Sullivan v Moody (2001) 207 CLR 562 and Tame v New South Wales (2002) 76 ALJR 1348 and pointed to statements in the latter case to the effect that a police officer is under no duty of care to the person being investigated: see at [35] to [39]. His Honour ultimately concluded:

[63] Regrettably for the appellant in the unfortunate circumstances that were inflicted upon him, I consider that on present authority, the greater public interest accorded unimpeded investigation by Police and, so far as relevant, the DPP in carrying out its prosecutorial function, precludes any duty of care to the appellant. The current state of the law, and the policy which underlies it, gives paramount weight to those considerations even overriding the factors of vulnerability and entire dependency. This is so though the decision is itself ministerial. As Ipp JA explains, there is no bright line between the functions of disclosure and investigation, or between administrative and investigative tasks. Their efficient performance may be put at risk by the very prospect of civil action designed to provide sanctions against inefficiency; that, any rate, is the policy consideration reinforcing the immunity.

[64] The precise formulation of the asserted duty of care varied in the course of argument. But, however it is formulated, it is inconsistent with authority. It would create tensions in the law if not impair its coherence. The law recognises custodial liability to a prisoner on the gaoler's part as well as the distinct tort of false imprisonment. But it steadfastly denies civil remedy in relation to the police investigative function, save where there is an assumption of responsibility. I should add, so far as the office of the DPP is concerned, that while I do not suggest there that breach of the prosecutorial guidelines was deliberate, there was clearly a significant breach. One may hope that these unfortunate circumstances lead to greater attention by the authorities to the importance of providing the analyst's report promptly, particularly when delay can so injure the interests of someone in custody like the appellant. 24 Ipp JA in agreeing with the judgment of Santow JA stated:

[69] In a novel case such as the present, policy considerations are paramount; they will determine whether a duty of care is to be recognised.

[70] In my view, the policy factors identified by Steyn LJ in Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335 at 349 preclude the recognition of a duty of care owed by the police to persons in custody to take care in carrying out their duties. Although his Lordship was there dealing with the duty of care owed by prosecution authorities to those who are being prosecuted, the policy factors he identified apply equally to the police.

[71] To paraphrase Steyn LJ (at 349), the recognition of a duty of care of the kind contended for by the appellant would tend to have an inhibiting effect on the discharge by the police of their central functions of investigating and preventing crime and apprehending offenders. It would in some cases lead to a defensive approach by police to their multifarious duties. It would introduce a risk that police would act so as to protect themselves from claims of negligence. The police would have to spend valuable time and use scarce resources in order to prevent law suits in negligence against them. It would generate a great deal of paper to guard against the risks of law suits. The time and energy of the police would be diverted from concentrating on their prime functions. That would be likely to happen not only during the investigative and preventative processes, and the administrative tasks ancillary thereto, but also when the police are sued in negligence by aggrieved defendants. The police would be constantly enmeshed in an avalanche of civil proceedings and civil trials. That is a spectre that would bode ill for the efficiency of the police and the quality of the services they provide.

[74] Finally, as regards the police, what was said in Tame v New South Wales (2002) 191 ALR 449 concerning a duty of care owed by police officers militates against the recognition of a duty of care in the circumstances obtaining in this case.

The third member of the Court, McColl JA agreed with the judgments of both Santow and Ipp JJA. 25 This line of authority has been applied where, rather than damages, relief in the nature of a declaration was sought in relation to the alleged failure of a police officer to exercise his functions and powers to investigate a matter as a result of which the plaintiff was named as a person of interest in police records: Makucha v Richardson [2008] NSWSC 945. 26 In Duke v New South Wales [2005] NSWSC 632 Hidden J was concerned with a statement of claim seeking damages for negligence, false imprisonment, malicious prosecution, and misfeasance in public office based upon an allegation that police officers had secured the conviction of the plaintiff of a drug offence by "planting" evidence and fabricating evidence of admissions. His Honour was not prepared to strike out the cause of action alleging negligence, however he did indicate that the plaintiff might wish to reconsider that part of the claim having regard to the other causes of action pleaded. 27 His Honour referred to the decision of Darker & Ors v Chief Constable of the West Midlands Police [2001] 1 AC 435. That was a case concerned with proceedings for damages for conspiracy to injure and misfeasance in public office arising from an allegation that police officers had fabricated evidence. Hidden J pointed out that Santow JA in Cran had at [62] stated:

Finally I should refer to the exception, recognised in Darker v Chief Constable of the West Midlands Police …, that where the police had committed criminal acts by fabricating evidence and conspiring to give false evidence no immunity is conferred. 28 Hidden J also referred to State of New South Wales v Knight [2002] NSWCA 392 and the statement by Meagher JA at [16] to the effect that the State could be vicariously liable for both an intentional tort and negligence arising from the one incident. 29 Of course I am, like Hidden J, considering this matter at a very preliminary stage and I am conscious of the limitation imposed upon a judge in determining an application such as the present. 30 After reserving in this matter Senior Counsel for the plaintiff brought to my attention the decision in State of New South Wales v Spearpoint [2009] NSWCA 233. That was an application for leave to appeal by the State against the refusal of a judge to dismiss two statements of claim brought against the State based upon the alleged failure of a police officer to act to protect the plaintiffs. The allegation was that the police officer had failed to take action against a person who, allegedly in breach of an apprehended violence order, came to the plaintiffs' home and caused injury and damage. This was despite complaints made by the plaintiffs to the police officer about the conduct of this person and notwithstanding that they were told that a warrant had been taken out for his arrest. 31 The application for leave was dismissed on the basis that there was an arguable case. Ipp JA who gave the principal judgment stated

9 There are many cases in which it has been held that police officers and the police service as a whole do not owe a duty of care to a plaintiff in the particular circumstances of each of those cases but so far there is no authoritative decision in Australia which holds that there is an absolute immunity afforded to police for their conduct in the course of their duties.

10 In State of NSW v Tyszyk [2008] NSWCA 107 Campbell JA observed (at [128]) that what was said in Hill in no way suggests that in all their activities police have immunity from action for negligence and his Honour made it plain that in his opinion each case would depend on its own facts.

11 In Lord Bingham's dissenting judgment in Van Colle v Chief Constable of the Hertfordshire Police [2009] 1 AC 225 his Lordship expressed a cogent argument supporting the proposition that police could owe a duty of care to a private individual arising out of a failure to arrest or otherwise protect that person from harm and again, as Campbell JA did in Tyszyk , stressed that each case depends on its own facts. 32 Of course Spearpoint can be distinguished from the present case because it was not concerned with an allegation of negligence arising in respect of the investigation of crime. Tyszyk, referred to in that passage, was similarly not a decision concerned with police duties in respect of the investigation of crime, a matter noted by Campbell JA at [84] of that judgment. 33 The plaintiff contends that the present case is unique because there has been no other decision based upon the duties of a police officer when applying for a search warrant. But it does not seem to me to matter what procedure is being adopted for the purpose of investigating an alleged offence. If the duty of care does not arise because of the public policy considerations expressed in Hill and applied in Cran, it does not seem to me to make a difference that the investigation involves the obtaining of a warrant and then executing that warrant. So too I do not accept the argument that the plaintiff can rely upon negligence arising in the execution of the warrant regardless of how it is alleged that the negligence arises. In particular I do not believe that an allegation of negligence can be pursued on the basis that the officer should have ceased the search because of information provided to him by the occupant and the person alleged to be committing an offence. 34 I appreciate that the plaintiff alleges that the police officer in obtaining the search warrant made statements that were either knowingly false or negligent in that the officer failed to investigate their reliability. Insofar as the claim of falsity is concerned the plaintiff is making a claim on the basis of misfeasance in public office and there is nothing to bar that claim proceeding on the basis of Darker. But insofar as he is alleging that the officer was negligent in either obtaining the warrant or in executing it, then the immunity applies. I do not understand that there is any exception recognised to the immunity that arises in the investigation of crime from proceedings based upon negligence nor that such an immunity has to be determined on a case by case basis. 35 The reference in Cran to an exception to the immunity where the allegation is that evidence was fabricated or false evidence was given, is not in my opinion a reference to an exception to immunity from proceedings based upon negligence. It simply recognises that there is an exception from the immunity that arises to acts committed in the course of the investigation of crime where it is alleged that there was fabrication of evidence. Such an allegation will support a claim based upon misfeasance. 36 I do not believe that the plaintiff can seek to pursue a claim in negligence simply by alleging in the alternative that the statements made to the justice were either knowingly false or negligent. He can pursue the claim based upon the first alternative by way of misfeasance but not the second. 37 Senior Counsel for the plaintiff asserted that this case could be distinguished from the line of authorities to which I have referred, because it was alleged in this case that a legal right was infringed and, therefore, a case in negligence could be sustained. Reliance was placed upon the following passage from Sullivan v Moody (2001) 207 CLR 562:

[64] A final point should be noted. The appellants do not contend that any legal right was infringed. And, once one rejects the distinction between parents and everybody else, they can point to no relationship, association, or connection, between themselves and the respondents, other than that which arises from the fact that, if the children had been abused, the appellants were the prime suspects. But that is merely the particular circumstance that gave rise to the risk that carelessness on the part of the respondents might cause them harm. Ultimately, their case rests on foreseeability; and that is not sufficient. 38 As I understand the submission, it was contended that the legal right infringed was the plaintiff's right not to have a search warrant issued in respect of his property as a result of information that was false or misleading. I do not accept that such a right exists. But in any event, I do not understand the passage quoted from Sullivan v Moody to be suggesting that there was an exception from immunity where a legal right is infringed, nor did any of the authorities referred to by the High Court acknowledge such an exception. 39 Therefore, I strike out so much of the plaintiff's statement of claim that is based upon an allegation of negligence. 40 Because the whole of the claim was not dismissed, although it has to be repleaded, it seems to me that the proper order to be made on the question of costs is that costs of the motion shall be costs in the cause. **********

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Cases Cited (10)