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[2011] NSWSC 630
Supreme Court of NSW
2011-06-23
Fullerton J
Original judgment source is linked above.
Judgment 1By a fourth amended statement of claim the plaintiff brings proceedings against the State of New South Wales for damages (including damages for psychiatric injury) resulting from what she alleges to be her unlawful arrest and false imprisonment on 25 October 2003 and a malicious prosecution after she was served with a Court Attendance Notice alleging a breach of s 156 of the Crimes Act 1900 on 16 August 2007. 2At the close of the plaintiff's case the defendant sought an order pursuant to Part 29 r 10 of the Uniform Civil Procedure Rules 2005 ("UCPR") for judgment in respect of the claim for malicious prosecution on the ground that the claim could not be supported. The defendant also sought an order that the plaintiff pay the defendant's costs of that claim. 3Detailed submissions were directed by both parties to the evidence and to the applicable law. 4On 22 June 2011 I gave judgment for the defendant. I also ordered that the plaintiff pay the defendant's costs of that claim as assessed or agreed. I published reasons for coming to that conclusion ([2011] NSWSC 629). In that judgment I set out the factual matrix which gave rise to the plaintiff being prosecuted for larceny as a servant. Those facts are also relevant to the circumstances relating to her arrest.
The application that the claim for wrongful arrest and false imprisonment be dismissed under Part 29 r 9 of the UCPR, or that judgment be entered in the defendant's favour under Part 29 r 10 5On the resumption of proceedings and before the defendant went into evidence, Mr Menzies QC made an application that the plaintiff's claim that she was wrongfully arrested and falsely imprisoned be dismissed under Part 29 r 9 of the UCPR on the ground that a judgment in favour of the plaintiff could not be supported. Mr McAuley elected not to be heard on the question. Mr Menzies then applied under Part 29 r 10 for judgment on the same basis. As I observed in the earlier judgment the operation of this rule mirrors an application at common law that there is no case to answer. 6In a short ex tempore judgment delivered after lengthy argument the defendant's application for judgment was dismissed. I indicated at that time that I would publish reasons at a later date if required. 7On the following day the defendant made a fresh application for judgment under Part 29 r 10. Given the nature of the argument that ensued at that time it is convenient that I now set out my reasons for refusing the first application and granting the second application.
The pleadings 8The plaintiff's claim as particularised in the fourth amended statement of claim (and prior to an amendment which was made in the course of argument) is as follows: WRONGFUL ARREST AND FALSE IMPRISONMENT 2 At or about 8:35am on 15 October 2003, the plaintiff was in her unit at 22/600 Military Road, Mosman, when three police officers, Detective Cosgrove, Detective Young and Constable Berthon, knocked on the door of the unit. 3 The plaintiff opened the door, and three police officers walked into the plaintiff's unit. 4 The plaintiff was then wrongfully arrested by Detective John Cosgrove. PARTICULARS 4.1 There was no reasonable grounds to suspect the plaintiff had committed an offence. 4.2 There was no warrant for the plaintiff's arrest. 4.3 The plaintiff was not arrested in the act of or having committed an offence. 4.4 The plaintiff was not taken before an authorised Justice to be dealt with according to the Crimes Act 1900, s 352(2). 4.5 The plaintiff was not a prisoner unlawfully at large. 4.6 The plaintiff was not arrested and detained for the purpose of investigating whether the plaintiff had committed an offence, or for the purpose of participating in an investigative procedure, or to enable investigation of the plaintiff's involvement in the commission of the offence. 5 The plaintiff was, subsequent to her wrongful arrest, falsely imprisoned by the said Detective Cosgrove. PARTICULARS 5.1 There was no reasonable grounds to suspect the plaintiff had committed an offence. 5.2 There was no warrant for the plaintiff's arrest. 5.3 The plaintiff was not arrested in the act of or having committed an offence. 5.4 The plaintiff was not taken before an authorised Justice to be dealt with according to the Crimes Act 1900, s 352(2). 5.5 The plaintiff was not a prisoner unlawfully at large. 5.6 The plaintiff was not arrested and detained for the purpose of investigating whether the plaintiff had committed an offence, or for the purpose of participating in an investigative procedure, or to enable investigation of the plaintiff's involvement in the commission of the offence. 9In broad outline, the circumstances of the arrest were not the subject of contest. It was common ground that at about 8.30am on 25 October 2006 three plainclothes police officers attended at the plaintiff's home. After identifying themselves as police officers, they were invited by the plaintiff to enter. She then left in their custody and was transported to North Sydney Police Station from where she was released at 9.45am. 10However, there was a divergence between the plaintiff's evidence as to what was said to her at the time of her arrest and Detective Cosgrove's and Detective Young's narrative accounts of the arrest given in answer to questions they were required to answer under direction from a senior officer pursuant to clause 9(1) of the Police Service Regulation 2000 in 2006 as a consequence of the plaintiff commencing these proceedings. The narrative accounts of the police officers were tendered by the plaintiff in her case. 11There is a more substantial divergence between the evidence of the plaintiff and the narrative account of the police officers as to what occurred after she was taken to North Sydney Police Station before she was released. 12Ordinarily, when an application is made for judgment in the defendant's favour at the close of the plaintiff's case, any conflict in the evidence is resolved in the plaintiff's favour. However, because of the basis upon which the plaintiff ultimately sought to maintain the claim that her arrest was unlawful, and after her counsel abandoned reliance on many of the particulars of unlawfulness originally pleaded, the divergence between the plaintiff's evidence and account of the arresting officer at the point of arrest becomes irrelevant. 13In order to ensure that my reasons for judgment are delivered in the context of the concessions made by counsel on the plaintiff's behalf, I propose to set out the evidence in some detail.
The evidence relating to the plaintiff's arrest 14According to the plaintiff, Detective Cosgrove informed her that police were at her home "in relation to the robbery at the post office" and that she was then placed under arrest and informed that she was going to be taken to North Sydney Police Station. She said that she was cautioned at that time and advised of her right to seek legal advice but that when she asked whether she could ring her lawyer Detective Cosgrove refused. She said she was then asked whether she could contact somebody because she was a psychiatric patient. That request was refused and she was refused access to her medication. She then said that she was told to get dressed and that she was accompanied into a bedroom by the female officer. Whilst in the bedroom she called Jamie Young and asked that he contact her lawyer on her behalf. After she was dressed she was removed from the premises to the police car in handcuffs. On arrival at the police station her handcuffs were removed and she was processed into custody in accordance with the protocols provided for in Part 10 of the Crimes Act by Sergeant Haste. She said that some time later she was taken to an interview room where she saw on a notepad that her solicitor had already placed a call through to the police station. When she enquired whether that was so she said in her evidentiary statement as follows: [113] Detective Cosgrove replied saying the following words, or word to the following effect: "Let's not worry about that. We are going to have a friendly chat, Janet. You were involved in the robbery at the Spit Junction Post Office in March 2003. You knew all about it beforehand. You agreed beforehand to hand over the money. If you admit this, we will just take you down the road. You will be before a Magistrate, not in the District Court. Nothing serious will happen to you." [114] I said the following words, of words to the following effect: " I wasn't involved. I didn't do anything wrong." [115] At some stage Detective Cosgrove place three unopened tapes on the table. [116] I said to Detective Cosgrove, the following words or words to the following effect: "Are you going to tape this?" [117] Detective Cosgrove replied saying the following words, or words to the following effect: "Not yet." [118] I then said to Detective Cosgrove, the following words, or words to the following effect: "I want to speak to my solicitor." [119] I kept repeating the following words, or words to the following effect: "I want to speak to my solicitor" [120] I said to Detective Cosgrove the following words, or words to the following effect: "I didn't do this. I don't know why you are doing this to me. I know that David Thompson has already called." ... [127] At some point in time Detective Cosgrove slammed his hand on the table and said the following words, or words to the following effect: "Janet, we know about telephone calls." [128] Detective Cosgrove said the following words, or words to the following effect: "We know how you planned it. We know what you did with the money. This is just a small matter of stealing. Let's leave it in the Local Court, otherwise it is armed robbery and a mandatory 20 years. You don't want to put yourself through that. It has been a 7-month investigation. Our job is that we will find you out Janet. Janet your friend came in and you gave him the money. We are going to keep digging. We are going to find out it is you. We know about the phone calls. We know how it was planned. You just handed it over. That is all you did. We know what you did with the money. You made a small mistake. We had a technician look at the video machine that afternoon. There was nothing wrong with it. [129] Detective Young said the following words, or words to the following effect: "It all adds up. The money, the phone calls. Come on, Janet, it is as plain as day. The evidence we have points that there was no robbery, just you and a friend. The evidence is as plain as day, the amount of money you had in the drawer." [130] Detective Young said the following words, or words to the following effect: "Let's leave this as a stealing charge, and if you tell us anything we will help you. We have enough evidence to say that you did it. It all points to you." [131] I said the following words, or words to the following effect: "I understand what you have said. I am not stupid and I want to speak to my lawyer." [132] I do no recall at any time when I was in the room, the female police officer, Constable Berthon speaking. [133] The conversation with the police was not recorded. 15Under cross-examination concerning the sequence of events at the police station the plaintiff maintained that in the interview room she was invited to participate in "a friendly chat" and that although there were audio tapes on the table they were still in their packets when police officers were speaking to her. She said that she asked if the conversation was going to be recorded and that Detective Cosgrove said words to the effect "We'll see, later on". She said she was not invited at any time to take part in a recorded interview prior to ultimately being permitted to speak with her solicitor after which she declined to be interviewed on legal advice. She also confirmed that the so-called "friendly chat" was not in her view friendly at all. She said she felt bullied and that the interview started to get out of hand with Detective Cosgrove belting his hands on the table and saying "You did it. We know you did it. What about the phone calls?". She said eventually she said, "Enough is enough. I'm not saying anything until I speak to my solicitor". 16In the narrative account Detectives Cosgrove and Young provided under the Police Service Regulation 2000, both officers gave an account of what occurred at the plaintiff's house and the circumstances of her arrest. 17Although Detective Cosgrove supplied a detailed account of the course of the investigation leading up to the plaintiff's arrest, on the basis of which he stated that he formed the opinion that the plaintiff was not the victim of an armed robbery but a principal or accessory to a theft, he does not assert that he arrested the plaintiff in exercise of his power to arrest without warrant on the basis of a reasonable suspicion under s 352 of the Crimes Act . There is no explanation for why he did not take that course. He said that after he informed the plaintiff that she was a suspect in relation to a theft rather than a victim of a robbery, and after he cautioned her in conventional terms, she expressed her willingness to participate in an interview. He claimed that it was only at that time that he informed the plaintiff that she was under arrest for stealing. He went further and said that had she declined or expressed an unwillingness to be interviewed he would not have arrested her, being conscious that there was no provision to arrest a person only for the purposes of an interview. 18Detective Young also told his superiors that the attendance at the plaintiff's home with other officers was to further investigate the offence by putting the allegation of complicity with the alleged robber to her. He also said that the plaintiff said she would be willing to be interviewed about the matter and should she have indicated to the contrary she would not have been arrested. 19Although it is not free from doubt, it appears that despite what was unquestionably a sufficiency of evidence to ground a reasonable suspicion that the plaintiff was in a joint criminal enterprise with the alleged robber and therefore guilty of a criminal offence sufficient to ground a lawful arrest without warrant under s 352(2), and that Detective Cosgrove actually had the belief that she was guilty of theft, he apparently did not arrest her in reliance of that belief but because he wished to interview her electronically in order to ensure that any admissions she made were in compliance with the law. That much is gainsaid by his unambiguous statement that if she had declined to be interviewed he would not have arrested her. 20In so far as what occurred at the police station both officers maintained that after the plaintiff was presented to the custody manager and the protocols under Part 10 of the Crimes Act attended to, Detective Cosgrove contacted the plaintiff's solicitor at her request. After being afforded an opportunity to speak with him, she then declined to participate in a recorded interview on legal advice and was released from custody.
The submissions of counsel 21On the second application for judgment under Part 29 r 10, Mr Menzies submitted that since in the course of argument on the first application Mr McAuley conceded that at the time the plaintiff was arrested there was evidence to ground a suspicion which warranted further investigation (including putting the allegation of collusion to the plaintiff in the course of police questioning), and since he made the further concession that the evidence established that the plaintiff was in fact arrested on suspicion of having committed the offence of larceny, he must be taken to have had abandoned any reliance on Particular 4.1 pleaded in support of the plaintiff's claim of wrongful arrest and Particular 5.1 pleaded in support of the claim of false imprisonment. 22On enquiry, and despite some prevarication on Mr McAuley's part as to the adequacy of the evidence to ground the relevant suspicion, he confirmed the position that it was no longer to be asserted that the arrest was unlawful because the police officer did not in fact suspect, and on reasonable grounds, that the plaintiff had committed a criminal offence. He went further and conceded that she was in fact arrested on suspicion of having committed a criminal offence. 23That concession must have been made by counsel in light of the evidence that was available to the police officer at the time of arrest and the plaintiff's evidence as to what was said to her at the time of her arrest. Were it the plaintiff's case that Detective Cosgrove did not exercise the power to arrest without warrant on the basis of reasonable suspicion but for the unlawful purpose of questioning her, I can only assume the concession to which I have referred would not have been made and counsel would have placed unqualified reliance upon the police officer's narrative account as supporting an improper basis for arrest, namely for questioning. 24Since this was not a case that Mr McAuley sought to maintain, the apparent discrepancy between the plaintiff's evidence of the circumstances of the arrest and the police officer's narrative account is forensically redundant. 25Mr McAuley also conceded that for practical purposes Particulars 4.2, 4.3 and 4.5 had no material bearing on lawfulness of her arrest in the circumstances. Accordingly, the plaintiff's case depended upon the sufficiency of proof in the remaining two particulars (or either of them) to support her claim that the arrest was unlawful. 26Understood in this way Mr Menzies submitted that reliance on the provisions of s 352(2) of the Crimes Act as particularised in 4.4 (namely that the arrest was unlawful because the plaintiff was not immediately taken before a justice to be dealt with according to law) was insufficient to make out the plaintiff's case and that 4.6 does not take the case any further. He submitted that the arrest must be considered in the context of the investigative powers afforded the police officer under Part 10A of the Crimes Act and that the plaintiff's case, as re-particularised, suffers from an apparent failure to appreciate that s 354 of the Crimes Act (within Part 10A) expressly provides 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, despite any requirement imposed by law to bring that person before a justice, magistrate or court without delay. Under s 356D, an investigation period of four hours is specified within which a person arrested may be detained. The purposes of investigation in s 356C expressly include detention for the purpose of investigating whether the person committed the offence for which the person is arrested. The defendant relied upon the analysis given to this very question in Director of Public Prosecutions v Nicholls [2001] NSWSC 523; 123 A Crim R 66 where Adams J reasoned in the following way: [11] It is clear that an arresting officer may well, and should, have in mind the possible use of the powers to investigate after arrest provided by Part 10A of the Act and to the object of that Part to authorise detention for the specified period for the purpose of such investigation "despite any requirement imposed by law to bring the person before a justice": s 354(b). It is not altogether easy to reconcile s 356B with the other provisions of Part 10A, having regard to the expanded meaning of the phrase "under arrest" in s 355(2) of the Act. Paragraph (c) of that definition comprehends restraint on a person's liberty which would not necessarily be lawful under the common law, whilst paragraphs (a) and (b) are satisfied if there is no restraint of any kind at all. Thus, paragraph 355(2)(a) has the effect that, "a person who is in the company of a police officer for the purpose of participating in an investigative procedure" that person is "under arrest" for the purpose of Part 10A, even where nothing more is done and there is no actual restraint or even an intention to restrain, merely if the officer "believes that there is sufficient evidence to establish that the person has committed the offence" that is to be investigated. (I pass over the great difficulty in understanding the actual nature or extent of the belief contemplated, especially in light of the apparently lesser degree of certainty required for arrest without warrant under s 352(2)(a).) ... [15] It was submitted that the arresting police officer must, at the time of arrest, intend to take such a suspect before a justice to be dealt with according to law, even though, in the meantime, he could be detained for the statutory period for the purpose of investigation. I do not accept this submission. It is clear that the investigation envisaged by Part 10A following arrest might have, not only the effect of confirming the suspicions of the arresting officer, but of dispelling them. If the suspicions were dispelled it is obvious that the suspect must be released. This is specifically envisaged by s 356C(4) which provides that, within the investigation period, the suspect must either be released, unconditionally or on bail, or brought before a judicial officer. In the first instance, he would not have been charged; in the second and third instances, formal charge would have been necessary. Information might well be obtained in the investigation that would make it appropriate or preferable to proceed by summons rather than charge. Again, this would justify release rather than charge and release on bail. If the suspect is charged, an authorised or proper police officer can grant bail under Part 3 of the Bail Act 1978, so that, even in that event, the arrested person is not literally taken before a justice by the arresting officer. If the possibility, even the likelihood, that enquiries can lead to this result does not make the detention unlawful, I cannot see how the detention is made unlawful because the arresting officer considered from the time of the arrest itself that, if no additional evidence is forthcoming confirming the suspicions which gave rise to the arrest, it would be right to release the suspect, even if it is intended (as here) to continue inquiries with a view to proceeding in due course by way of summons if they were productive. [16] Having regard to the objects of Part 10A as set out in s 354, the specific regime as to release or other disposition provided in s 356C(4) and the Bail Act 1978, an officer who arrests a person under s 352 must do so in circumstances provided in paragraphs 352(1) (a) and (b) and 352(2)(a) and (b) but may do so with the intention of taking the arrested person before an authorised justice or otherwise in accordance with the Bail Act 1978 (in which events, there can be no detention for the purpose of investigation and the officer must choose whichever procedure most expeditiously deals with the arrested person's liberty) or of dealing with the person under the provisions of Part 10A of the Act (in which event, the person must ultimately be dealt with in accordance with s 356C(4)). 27Mr Menzies addressed comprehensive written submissions in support of the first application for judgment under the UCPR. Mr McAuley was invited to state, with precision, the case the plaintiff sought to maintain, and the evidence he relied upon to support the sufficiency of that case in light of the defendant's submissions. The luncheon adjournment afforded him time to consider his position. 28After considering the evidence and the argument advanced by Mr Menzies, on resumption I directed Mr McAuley's attention to a basis upon which his client's case might be maintained, a case which I regarded as entirely consistent with the evidence that had been by that time tendered in the plaintiff's case. I put it in the following way. Were he to submit that the plaintiff's evidence that she was subjected to techniques of harassment and bullying while in custody supported an inference that her arrest was for the improper or collateral purpose of utilising those techniques to extract oral admissions which would then be confirmed electronically for evidential purposes, then Particular 4.1, when read in conjunction with 4.6 (albeit with what I described as a generous interpretation), supported a judgment in the plaintiff's favour and the defendant's application would fail. 29After Mr McAuley appeared to embrace that case on the plaintiff's behalf, the defendant's first application for judgment was withdrawn. That position, taken by Mr Menzies on behalf of the State of New South Wales as a model litigant, was entirely appropriate in light of him accepting that the plaintiff's case, put in the way I outlined, was open on the evidence and was capable of supporting a judgment in her favour. 30At the close of proceedings on 22 June I gave an ex tempore judgment in which I refused Mr Menzies' application to withdraw the first substantive application and refused the substantive application. Given the inadequate state of the pleadings, in particular the wholesale failure to particularise the wrongful arrest on the basis of an arrest for a collateral or improper purpose, I granted leave for the defendant to call evidence to meet that case. 31At the commencement of proceedings the following day Mr Menzies sought confirmation of the case the defendant was to meet before going into evidence. In particular, he sought confirmation as to whether the plaintiff's case on unlawful arrest was limited to the assertion that she was arrested for the collateral purpose of bullying or harassing her into making admissions. Given the course of proceedings the previous day, and the lateness of the hour when judgment was delivered, this request was entirely understandable. 32Mr McAuley was invited to confirm that Mr Menzies' understanding of the plaintiff's case was correct. He did not do so. 33He particularised the plaintiff's case in support of both the claim that the arrest was unlawful and the subsequent false imprisonment in a materially different way. His articulation of her case was that she was arrested for the purpose of interviewing her and for the purpose of obtaining admissions from her, and not for what he submitted was "the bona fide purpose" of taking her before an authorised justice to be dealt with according to law, a purpose which he contended governed the entitlement to arrest under s 352. He went on to submit that it was following her arrest, namely when she was at the police station, that she was bullied and harassed. He did not submit that any treatment she claims to have been subjected to at her home invalidated the arrest (see Zaravinos v State of New South Wales [2004] NSWCA 320; 62 NSWLR 58 at [28]). Even were the assertion of bullying and harassment borne out by the evidence, which it may well have been subject to what the police officers might have said in their evidence, at no time did Mr McAuley seek to make the case that at the time of arrest it was the intention of the police officer to question the plaintiff informally in the intimidating environment of detention with a view to extracting admissions from her, and that for that reason her arrest was affected for the improper purpose of questioning her in that particular way. 34After being given every reasonable opportunity to maintain the claim for wrongful arrest on what I had assumed were settled terms at the conclusion of proceedings the previous day (a case which I have said on repeated occasions was a case that would have grounded an entitlement to pursue a damages claim for wrongful arrest and false imprisonment), Mr McAuley did not articulate, or articulate with sufficient clarity, that his client's case of wrongful arrest was to be maintained on the basis that at the time of arrest police used their powers for an improper or collateral purpose. The closest he came to putting his client's case in a way that was consistent with her arrest (and subsequent detention) being unlawful was in the context of my enquiring of him as to how Particular 4.6 should be read and understood in light of his submissions that she was arrested for questioning. Mr McAuley submitted as follows: She wasn't arrested bona fide for the purpose of investigating if [she] committed an offence. She was arrested for an extraneous purpose, not bona fide purpose, namely for the purpose of questioning her with a view to obtaining admissions. And that's not a purpose which comes within section 352(2). 35It was on the basis of this further refinement of the plaintiff's case, which Mr McAuley assured me was the case he put on his client's behalf after careful consideration, that Mr Menzies then made a fresh application for judgment under Part 29 r 10. 36He restated the submission that he had advanced the day before, namely that to arrest on the basis of a reasonable suspicion that an offence has been committed, and thereafter to detain the person arrested within the statutorily prescribed investigative period for the purposes of questioning before determining whether to take that person before a justice after charge or to discharge that person without charge, was not contrary to law. The correctness of that submission is beyond doubt. Whatever misconduct might be alleged against police after a person is taken into lawful custody does not invalidate the arrest. It may, of course, support an action for false imprisonment were the person's detention to become unlawful because of police misconduct. Mr McAuley did not seek to maintain the course of action for false imprisonment on the basis that her lawful arrest became unlawful in the course of the interview. 37I am compelled to the conclusion that Mr McAuley abandoned the contention that the plaintiff's arrest by Detective Cosgrove was for the collateral or improper purpose of ensuring she would be vulnerable to being harassed and bullied into making admissions, and that on her instructions, and on his advice, she would seek a verdict on the basis that the arrest was unlawful because she was not taken before a magistrate to be dealt with according to law. 38Mr Menzies submitted that in circumstances where it was conceded that the arrest was on the basis of the police officer's reasonable suspicion that the plaintiff had committed the offence of larceny, and where it was common ground that upon her arrival at the police station she was entered into formal custody in accordance with the protocols provided by Part 10A of the Crimes Act for the express purpose of investigating her involvement in the offence for which she was arrested by formally questioning her, the arrest was entirely lawful and in complete accordance with Part 10A of the Crimes Act . 39In the context of the application for judgment under the UCPR he submitted that in these circumstances there was no evidence capable of supporting the plaintiff's case that the arrest was unlawful, or that she was falsely imprisoned consequent upon an unlawful arrest, and that judgment should be entered in the defendant's favour. 40I repeat, despite what may be my view as to the way in which the plaintiff's case might have been sustained, and despite affording counsel every opportunity to clarify his re-particularised case on her behalf consistent with that approach, he elected not to do so. The defendant's application for judgment must succeed. 41Accordingly, the orders I make are as follows:
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 August 2011
Clyne
State of New South Wales