Fletcher v State of New South Wales

Judgment

1. BEAZLEY P: I have had the advantage reading in draft the reasons and proposed orders of Basten JA and the additional observations of Payne JA.
2. I agree with Payne JA that the matter proceeded before this Court on the basis that the law was correctly stated in State of New South Wales v Bouffler (2017) 95 NSWLR 521; [2017] NSWCA 185. In that regard, contrary to the observation of Basten JA, at [11], I do not consider that there is any ambiguity in the statement in Bouffler at [164], which is set out in the observations of Payne JA. As that statement makes clear, it will be a matter of evaluation of the factual circumstances in each case whether there has been conduct which entitles a police officer in New South Wales to exercise the powers conferred by the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).
3. I otherwise agree with Basten JA and with the orders his Honour proposes.
4. BASTEN JA: On the night of 8 September 2013 the appellant, Daniel Fletcher, was travelling with a group of friends by train from Central Station (Sydney) to the Central Coast. Shortly before the train stopped at Eastwood, Mr Fletcher was spoken to by two police officers on transport duty. He was drinking alcohol. Senior Constable Walker took the can from him, at which point Mr Fletcher began to swear. He was warned, and then directed to leave the train at the next stop. He was escorted to the vestibule, accompanied by a friend, Drew Cuthbertson.
5. There were words spoken between the officers and Mr Cuthbertson in the vestibule. Senior Constable McArthur described Mr Cuthbertson's attitude of that of a "smart arse" and said that his conduct "wasn't aggressive, but it was certainly confrontational and provocative." When the train arrived at Eastwood station, Senior Constable Walker pushed Mr Fletcher off the train, though by no means violently.
6. Both Mr Cuthbertson and Mr Fletcher brought proceedings in the District Court for damages for assault and battery. The judge, following a 12 day trial, concluded that Senior Constable Walker had acted unlawfully in pushing Mr Fletcher off the train. [1]
7. The present appeal by Mr Fletcher does not concern that finding; rather, it is concerned with events which occurred on the platform thereafter. These events were precipitated by Mr Fletcher's girlfriend, Erin Spence, following Mr Fletcher onto the platform.
8. Mr Fletcher gave evidence that he had told Ms Spence to stay on the train and that he would see her at home. Nevertheless she followed him onto the platform; he asked her to get back on the train and then manhandled her onto the train. She then alighted again. Both Senior Constable Walker and Mr Fletcher appeared to have tried to persuade her to re-enter the train. Constable Walker was at that point restraining Mr Fletcher, with a hand holding his shirt at his shoulder. Mr Fletcher then sought to break free from the officer's grasp. Mr Fletcher reached out and took hold of Ms Spence's arm at the elbow and strained to get away from the officer. The officer grabbed Mr Fletcher around his torso and got him off balance so that Mr Fletcher fell onto the platform. That act constituted a further assault which the State sought to justify.
9. The trial judge set out the evidence in some detail, including a meticulous description of what could be seen on the CCTV footage of the event. He concluded: "[200] The evidence is overwhelmingly supportive of reasonable grounds for SC Walker to have believed that he was restraining Mr Fletcher in order to protect Erin and indeed Mr Fletcher from injury in the way he described. [201] I accept that he held that subjective belief and I find that it was reasonably held for those reasons. Specifically, in relation to his belief of his duty to restrain Mr Fletcher from committing a breach of the peace (s 230 LEPRA)."
10. Mr Fletcher suffered a minimally displaced fracture of the distal radius of his right arm in falling to the platform. [2] The present appeal is limited to the question of whether the trial judge was in error in failing to award compensation for that injury.
11. It was not in dispute that a police officer in New South Wales has the powers of a constable at common law, as preserved by s 4(1)(a) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ("Law Enforcement Act"), also referred to as "LEPRA". At common law, the constable was entitled to take such steps as were reasonably necessary to prevent a threatened breach of the peace, a power now found in s 230 of the Law Enforcement Act, as referred to by the trial judge. In State of New South Wales v Bouffler [3] this Court held that a breach of the peace includes "a wide range of actions and threatened actions that interfere with the ordinary operation of civil society". [4] There is an element of ambiguity in that description of a breach of the peace: the breach should refer to an action, rather than a threatened action. (Of course, there will be cases where threats will be sufficient themselves to constitute breaches of the peace.)
12. A police officer has power to intervene to prevent a breach of the peace. As explained in R v Howell: [5] "We entertain no doubt that a constable has a power of arrest where there is reasonable apprehension of imminent danger of a breach of the peace, so for that matter has the ordinary citizen. … We hold that there is power of arrest for breach of the peace where: (1) a breach of the peace is committed in the presence of the person making the arrest or (2) the arrestor reasonably believes that such a breach will be committed in the immediate future by the person arrested although he has not yet committed any breach or (3) where a breach has been committed and it is reasonably believed that a renewal of it is threatened. The public expects a police officer not only to apprehend the criminal but to do his best to prevent the commission of crime, to keep the peace, in other words. To deny him, therefore, the right to arrest a person who he reasonably believes is about to breach the peace would be to disable him from preventing that which might cause serious injury to someone or even to many people or to property. The common law, we believe, whilst recognising that a wrongful arrest is a serious invasion of a person's liberty, provides the police with this power in the public interest. In those instances of the exercise of this power which depend upon a belief that a breach of the peace is imminent it must, we think we should emphasise, be established that it is not only an honest albeit a mistaken belief but a belief which is founded on reasonable grounds."
13. The grounds of appeal were not entirely transparent as to the precise challenge brought to the finding of the trial judge set out above. In the course of oral submissions, senior counsel for the appellant stated: [6] "The issue for the primary judge, therefore, in relevant respects to this appeal was whether the restraint of the appellant and his being taken to ground … was justified on the basis that Senior Constable Walker (a) apprehended or believed that a breach of the peace was …, or was about to be, committed, (b) held that belief on reasonable grounds and (c) used only such force as was reasonably necessary to prevent it. The primary judge found for the respondent on each of those questions. The appellant challenges his Honour's findings in respect of (b) and (c) only in this appeal, that is to say the appellant does not here challenge his Honour's finding that Senior Constable Walker, in fact, believed or apprehended that a breach of the peace was about to be committed or was being committed."
14. This formulation of the appellant's case encompassed all of the grounds in the Notice of Appeal. Grounds 1-5 addressed the reasonableness of Senior Constable Walker's expressed belief, being issue (b) identified above; ground 6 addressed the force used, being issue (c).
15. Counsel also submitted that: [7] "Senior Constable Walker believed that a breach of the peace was about to be committed or was being committed. We accept that, his Honour found that we have not challenged that finding. What we do challenge is that [his] belief was held on reasonable grounds and we say that in the circumstances of this case it could not have been held on reasonable grounds because the true basis of that belief, on a proper reading of his evidence … was [that] Mr Fletcher, having strained against his restraint, his unlawful restraint by Senior Constable Walker."
16. There some ambivalence in this position: the evidence of the officer, accepted by the trial judge, was that the apprehended breach of the peace involved Mr Fletcher repeating his earlier unsuccessful attempt to force Ms Spence back onto the train by physically pushing her onto the train. The first submission appeared to be that, prior to forming that belief, the officer had restrained Mr Fletcher so that any subsequent attempt to restrain him was impermissibly directed to continuing what was an unlawful restraint.
17. To the extent that the appellant challenged the finding as to the subjective belief of the officer at the relevant time, that challenge can be adequately dealt with in considering the judge's finding with respect to the reasonableness of the officer's belief. That requires a review of the evidence critical to the finding, which falls within a short compass.
18. The findings of the trial judge commenced with an analysis of the CCTV footage over a period of less than a minute, when it appeared that both the officer and Mr Fletcher were seeking to persuade Ms Spence to get back on the train. In the course of cross-examination, counsel for Mr Fletcher suggested: [8] "Q. You were asked by the prosecutor, when you were in the Local Court 'Could you describe your movements with Fletcher?' and your answer was as follows, 'Fletcher was trying to get back on the train, and the two females with them were being vocal in relation to what had happened. I do not recall what they were saying, they weren't swearing or being aggressive'. I would ask you to accept, for the time being, that when you talked about Fletcher trying to get back on the train, at that point, you were talking about the point at which he had come back into the vestibule when there had been an interaction between Senior Constable McArthur and Mr Cuthbertson. Would you just accept that from me, for the time being? A. Yeah, Okay, yep, sure."
19. He was cross-examined as to his suggestion that he was detaining Mr Fletcher because he feared either Ms Spence, or indeed Mr Fletcher, might suffer harm. He was taken to the regulation which provided that a person who had been directed to leave a train could not re-enter it, noting that there was an exception for a "reasonable excuse". The following exchange then occurred: [9] "Q. Yes, but they could also put their girlfriend on the train, couldn't they, when it was the police officer's desire, who had given the direction, that the girlfriend get on the train as well. That would be a reasonable excuse, wouldn't it? … Q. That would be a reasonable excuse, wouldn't it, if that was the person's only reason for getting on, and was going to get back off? A. No, she's an adult, she was of her own mind, she could have easily hopped back on the train herself, she could have stayed on the platform. I had given him a direction to stay off the train, and I was holding him back, as one of the reasons was to not go back on the train. … Q. Why could it not be a reasonable excuse, in those circumstances, if all Mr Fletcher was attempting to do was to put her on the train in accordance with the instruction you had given to her? A. Because, as I have said previously, I couldn't be certain that's all he wanted to do. It was in my mind that he would have been also trying to get back on the train himself. All the other train doors were closed, and the people standing at the train door were keeping this one open. If Mr Fletcher and Erin had got back on the train, and those doors had shut, they can't reopen unless a guard opens them, and the train would have moved off. So I was keeping him back so he wasn't getting on the train."
20. The judge, who heard the lengthy evidence in this matter, dealt with this evidence in the following manner: "[194] … The sequence of events seen [on the CCTV] is entirely consistent with SC Walker's evidence. The train doors were closed except for the vestibule in front of them which were open because they were being blocked by persons in the way of the sensors. SC Walker said that he restrained Mr Fletcher because: [10] '… he then started going back towards the train himself, and at that time I'm holding him by his right arm, and he's trying to get towards the train doors and towards where the woman was standing. I think he's tried to get back towards her on the train about three times. The first time, I thought I'd better keep hold of him by his arm, with one arm, I had one arm down on his lower arm and the other up near his shoulder. He's then gone towards her again, and I've held him, and then I believe it to be on the third time, he has lashed out towards her, pushing and trying to grab towards the female, and I've pulled him back from her, and then, I believe it to be the third or fourth time, he's leapt towards her, and at that time I've put my arms around his torso and used somewhat of a police manoeuvre of getting a person off balance using their body weight to get him away from something or someone, and I've taken back away from where the train was, and then onto the ground.' [195] There is no exaggeration in SC Walker's evidence that Mr Fletcher 'leapt toward her'. It is plain that Mr Fletcher used his full strength against the restraint of SC Walker. … [198] SC Walker said he still believed that Mr Fletcher was going to get back onto the train and he was not sure what Mr Fletcher's intentions toward Erin in that physical action were. He described the risk to Erin and to Mr Fletcher which he perceived as: [11] 'Q: What, if anything, did you apprehend at that time might happen if you had not pulled Mr Fletcher back? A: I believe that Mr Fletcher and/or the young lady, could have fallen into the train doors, or between the train platform and the train itself. I couldn't be sure that their safety was, you know, being expected an injury if it wasn't for, if I hadn't held him back.' [199] The CCTV shows the behaviour of Mr Fletcher remaining on the platform, to be quite inconsistent with the reasonable factual basis for SC Walker to have suspected that he was attempting to reboard the train. In any event, the defendant did not plead clause 55(4) of the Passenger Transport Regulation 2007, which is the subclause making it an offence to re-enter a train once directed to leave."
21. There can be no doubt that the trial judge directed his mind to Mr Fletcher's case, as presented at trial and on the appeal. Indeed, on the appeal Mr Fletcher relied upon the finding that he could not reasonably have been suspected of attempting to reboard the train. However, there was no inconsistency between the rejection of that position, and the conclusion set out at [9] above that the officer had the subjective belief that he was seeking to protect both Mr Fletcher and Ms Spence from injury. In other words, the officer could suspect that a person is about to act in a way which might constitute two separate offences. The fact that the suspicion as to one offence could not be justified as reasonable does not prevent reliance being placed on the belief as to the other offence, which, if reasonably held, would be a sufficient justification for the officer's actions. The appellant's submissions to the contrary should be rejected.
22. There remained the question as to whether the judge was correct to conclude that the evidence overwhelmingly supported the reasonableness of the belief that Mr Fletcher might cause a breach of the peace, in the form of harm either to Ms Spence or himself. The challenge was based on the proposition that, in setting out the evidence at [198] the trial judge had failed to have regard to the preceding four questions and answers. There are three responses to that proposition. First, the judge had, in the passage from [194] set out above, extracted a lengthy statement from the evidence in chief of Senior Constable Walker, which occurred one page before the later extract said to be taken out of context. As a matter of principle, it is never necessary for a court to repeat evidence in support of a proposition which is otherwise properly addressed in the reasons for judgment. It is implausible to suggest that the judge disregarded evidence which occurred between two passages a page apart, both of which he had in fact extracted. There was no suggestion that the judge had misunderstood the evidence in any respect; if there had been, there would have been difficulty in persuading this Court to intervene, given the judge's advantage in hearing the evidence in the context of the whole of the trial.
23. Secondly, the four previous questions, said to have been disregarded (also in the examination in chief) merely sought further detail of the passage which had already been extracted.
24. Thirdly, the basis of the complaint is that in the passages not extracted, the officer reiterated his belief that Mr Fletcher "was going to get back on the train." [12] As already noted, that proposition was expressly addressed by the judge at [199].
25. It follows that the judge's findings that (a) Senior Constable Walker believed that, if not restrained, Mr Fletcher would engage in conduct that was potentially dangerous, both to himself and to Ms Spence, and (b) his belief in that regard was a reasonable apprehension, have not been shown to be erroneous. Further, there can be no doubt that the conduct the subject of the belief, if carried out, could reasonably be seen as a threatened breach of the peace.
26. There is no substance in the appellant's challenge to the judge's finding that the force used by Senior Constable Walker in restraining the appellant was reasonably necessary. The appellant's case was that the initial application of force was resisted and that this resistance escalated. This escalation can clearly be seen on the CCTV footage. No error has been shown in the judge's conclusion that the force applied was no more than was reasonably required.

Conclusions

1. There is much to be said for the view expressed by senior counsel for the State in written submissions that at least in respect of the initial restraint of the appellant on the platform, the challenge raised by the appellant constituted an "artificial and reductionist approach to fact finding". It may also be said that the approach on appeal to the carefully structured and comprehensive reasons of the trial judge demonstrated no basis for doubt as to the correctness of the findings which were challenged.
2. There is no occasion to consider the contingent findings of the primary judge about causation and damages. No ground of appeal addressed those findings and the State did not file a notice of contention.
3. The appeal should be dismissed; the appellant should pay the costs of the respondent in this Court.
4. PAYNE JA: I have read the decision of Basten JA in draft. I agree with the orders proposed by his Honour and, save in one limited respect, with his Honour's reasons.
5. In State of New South Wales v Bouffler (2017) 95 NSWLR 521; [2017] NSWCA 185, this Court said, at [164] that: "…a breach of the peace includes 'a wide range of actions and threatened actions that interfere with the ordinary operation of civil society'. In particular, a threat or a realistic apprehension of self-harm could constitute a breach of the peace. Each case will be fact dependent."
6. It may be, as Basten JA suggests, that there is an element of ambiguity in this description of a breach of the peace. In this case, however, it was common ground that Bouffler correctly stated the law. Accordingly, I would reserve to a case where the issue is necessary to determine the question of whether the test for breach of the peace described in Bouffler is ambiguous or requires further explanation. In any event, I agree with Basten JA, for the reasons his Honour gives, that it is dispositive in the present case that a police officer has power at common law to intervene to prevent a breach of the peace.

Endnotes

1. Cuthbertson v State of New South Wales; Fletcher v State of New South Wales [2017] NSWDC 367 at [164]-[165] ("Fletcher").
2. Fletcher at [267].
3. (2017) 95 NSWLR 521; [2017] NSWCA 185 (Beazley ACJ, Ward and Gleeson JJA).
4. Bouffler at [164].
5. [1982] QB 416 at 426-427 (Watkins LJ, Cantley and Hollings JJ).
6. Tcpt, 09/08/18, p 4(5)-(15).
7. Tcpt, p 5(20).
8. Tcpt, 09/05/17, p 600(35).
9. Tcpt, pp 602(35)-603(45).
10. Tcpt, p 545(7)-(21).
11. Tcpt, p 546(42)-(47).
12. Tcpt, p 546(20).

Amendments 26 February 2019 - Headnote: adding (per Beazley P): before holding 3 [12] amending quote "arrest or" to "arrestor" and "on" to "in". 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: 26 February 2019