Mr Hamilton is suing for damages for personal injury arising out of an incident which occurred on 12 December 2009. The plaintiff alleges that a serving police officer, Jarrod Mildenhall assaulted him by using unreasonable force in arresting him for an alleged assault on a taxi driver. He also claims that thereafter he was wrongfully imprisoned and subjected to a malicious prosecution. In the alternative, as I understand it, Mr Mildenhall's alleged part in these matters is said to constitute the tort of misfeasance in public office.
Mr Hamilton has tendered extracts from evidence given by Mr Mildenhall in proceedings in the Local Court. The State of New South Wales objects to the tender, two objections are advanced. First, as Mr Mildenhall is not a party to the proceedings previous representations by him which may be against his interests or the interests of the State in these proceedings are not admissible as an exception to the hearsay rule under the Evidence Act 1995 (NSW). Secondly, the State says that in any event many of the statements relied upon are not capable of being understood as adverse to Mildenhall's interests. This judgment concerns the first ground of objection.
In pressing the tender Mr Hamilton relies upon the provisions of s 87 Evidence Act. If the conditions of that provision are satisfied a previous representation made by a person who is not a party is also taken to be an admission by a party. Mr Hamilton relies upon paragraphs (a) and (b) of s 87(1). They state the conditions of admissibility with which they deal in the following terms:
(a) When the representation was made, the person had authority to make statements on behalf of the party in relation to the matter with respect to which the representation was made; or
(b) When the representation was made, the person was an employee of the party or had authority otherwise to act for the party, and the representation related to a matter within the scope of the person's employment or authority.
Mr Hamilton's principal argument is that Mr Mildenhall had lawful authority to act on behalf of the State as a police officer and that statements he made and evidence about the circumstances of his arrest of Mr Hamilton related to a matter within the scope of that authority.
It is common ground that under the general law a police officer is neither the agent nor the servant of the Crown. (See the excellent statement of the legal position under the general law contained in the defendant's submissions at paras 18 to 26 and also pithy submissions of the plaintiff at paras 2 to 8). I will not multiply the authorities referred to by learned counsel. I think it sufficient to quote from the decision of the High Court of Australia in Jarratt v Commissioner of Police (NSW) [2005] HCA 50; 224 CLR 44 at 119:
Historically, even though police officers are paid and appointed by the state, the state is not, in the absence of statutory mandate, vicariously liable for their actions: a police officer is not an agent or a servant of the Crown.
Mr Hamilton argues that for present purposes the general law position has been altered by the Law Reform (Vicarious Liability) Act 1983 (NSW). He says the legislation provides the necessary statutory mandate referred to by the Justices in Jarratt. The State joins issues on this submission.
Prior to the enactment of the 1983 Act, proceedings of the type maintained by Mr Hamilton here could only be brought against the police officer personally. The Crown was not vicariously liable for his tort. It follows from this, that statements against interest made by the police officer were admissible as an exception to the common law hearsay rule as statements made by a party against interest.
The 1983 Act made significant changes to the substantive and procedural law. First s 6 creates a legal fiction. It provides:
For the purposes of this Act, a police officer shall be deemed to be a person in the service of the Crown and not a servant of the Crown.
Secondly, s 8 as a matter of substantive law creates a new form of statutory vicarious liability. So far as is material it is in the following terms:
(1) Notwithstanding any law to the contrary, the Crown is vicariously liable in respect of the tort committed by a person in the service of the Crown in the performance or purported performance by the person of a function (including an independent function) where the performance or purported performance of the function:
(a) is in the course of the person's service with the Crown or is an incident of the person's service (whether or not it was a term of the person's appointment to the service of the Crown that the person perform the function).
Section 5 defines the term "independent function" as "… a function conferred or imposed upon ... the person, whether or not as the holder of an office, by ... statute independently of the will of the servant's master or the Crown, as the case may require."
I interpolate that the exercise of the statutory power of arrest by a police officer is an independent function of him or her imposed upon him or her as a person in the service of the Crown by statute and independently of the will of the Crown.
Thirdly, the provisions of Pt 4 of the 1983 Act make important procedural changes. Section 9B(1) creates a category of claim referred to as a "police tort claim" being a claim for damages for a tort allegedly committed by a police officer in the performance or purported performance of the officer's functions (including an independent function) as a police officer. By s 9B(2) such a claim must be brought against the Crown and not the police officer unless the Crown denies vicarious liability, presumably on the basis that the tort was not committed in the performance or purported performance of the police officer's function.
The Crown has not denied vicarious liability in this case. If the Crown denies vicarious liability that matter is to be determined as a separate question in advance of other questions in the case: s 9C of the 1983 Act. Save for other limited exceptions (s 9E) a police tort claim brought against the police officer personally is defeasible by operation of s 9D of the 1983 Act.
The issue which separates the parties is whether the provisions of the 1983 Act render a police officer an agent or employee of the Crown for the purpose of s 87 of the Act. However, I emphasise that s 87 does not use the technical expression "agent" rather it refers to a person's authority either to make statements or to otherwise act for a party. The 1983 Act, as I have attempted to demonstrate, alters the previous substantive and procedural law. Although s 6 is conditioned by the phrase "for the purpose of this Act", the Act extends to tort claims against police officers and regulates those claims in significant ways. For what it is worth, in a police tort claim I would regard the fiction that the police officer is a person in the service of the Crown as extending to all aspects of proceedings brought in respect of that police tort claim. Indeed, the State accepts this to the extent to which it argues that the police officer is not a party and therefore his statements cannot be admissions.
The question is whether being taken to be a person in the service of the Crown renders the police officer either a person who had authority to make statements on behalf of the Crown in relation to circumstances surrounding Mr Hamilton's arrest for the purpose of s 87(1)(a); or a person who was either an employee of the State or a person who had authority otherwise to act for the State and the representations tendered relate to a matter within the scope of the person's employment or authority.
It seems to me that the effect of the 1983 Act, in contradistinction to the common law, is that a police officer is deemed to be in the service of the Crown. In that capacity, the officer has authority to act otherwise for the Crown because by s 8 the Crown is vicariously liable in respect of any tort committed by the police officer in the performance or purported performance of his independent function. There can be no question in the present case that the arrest of Mr Hamilton and the acts taken in consequence of that arrest were in the performance or purported performance of Mr Mildenhall's function as a police officer in the course of his deemed service with the Crown. It cannot be gainsaid that exercising powers of arrest, initiating prosecutions, preparing briefs of evidence and giving evidence in the prosecution are all matters within the scope of a police officer's employment or authority within the meaning of s 87 Evidence Act.
19 I raised with counsel the question of whether having regard to the breadth of the concept of vicarious admissions at common law, the expressions "employee" and "employment" within s 87(1)(b) Evidence Act should extend beyond the scope of what is often referred to as a contract of service; that is, whether the expression "employment" should be taken to include the performance of service on behalf of another whether or not the relevant legal relationship, leaving aside deeming provisions or other legal fictions, is one which the law of contract would characterise as a contract of service as opposed to, for example, a contract for services. By way of simple example, one may speak of a client "employing" a solicitor, an accountant, an engineer or other professional. Usually such an arrangement would be characterised as a contract for services where the professional is an independent contractor. However, the engagement or retainer of such a professional may be covered by the ordinary meaning of the word "employs" and "employment". It is clear that s 87(1)(b) extends the range of representations by an employee or other person having authority that would be admissible at common law against that person's "employer". As is pointed out in J D Heydon Cross on Evidence (10th ed, 2013, LexisNexis) p 1202‑3 para 33545 admissibility at common law generally depended upon having authority to speak on behalf of a party, not just authority to act. In answering the question posed, I think it fair to say that counsel for the plaintiff really reiterated their primary submission that I should find, as I have, that the interaction of the 1983 Act and the Evidence Act should be taken as constituting, if I may put it that way, Mr Mildenhall as a person who had authority to otherwise act on behalf of the State within the meaning of s 87(1)(b).
Counsel for the defendant, whilst reiterating their primary submission, also drew my attention to the decision of Barrett J (as his Honour then was) in Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 657 where his Honour at [8] proceeded on the basis that the reference to employee in s 87(1)(b) was a reference to an employee in the general law sense, in particular under the law of master and servant. It was argued that such an approach was supported by the rule of construction that where there is ambiguity or possible ambiguity, one should choose the option which is consonant with the common law.
I allow myself the observation that one can generally find a rule or canon of construction to support whatever argument one wishes to advance about the meaning of legislation, with no disrespect. There are plenty of observations in decisions of high authority that it can be a mistake to proceed on the assumption that Parliament did not intend to change the common law when it enacts legislation.
As I have said, it is unnecessary for me to decide whether the words "employee" and "employment" have any broader meaning than their general law meaning for the purpose of s 87 Evidence Act, because I have come to the conclusion that s 87(1)(b) applies to the statements made by Mr Mildenhall in the purported performance of his office as a police officer because in performing that office he is deemed to be in the service of the Crown.
I should point out that in coming to that decision, in addition to the reasons I have already expressed, I have been influenced by what is written at p 1204 para 33555 in Cross on Evidence where the learned author suggests that the main categories of reception of vicarious admissions depends upon the substantiative law. And given the significant change in the substantive law made by s 8 of the 1983 Act, I think, as I have said, it should be taken that Mr Mildenhall had authority to act otherwise within the meaning of s 87 on behalf of the Crown and that the representations he made in giving evidence related to a matter within the scope of that authority.
My ruling is that the putative admissions are admissible against the defendant subject to being satisfied that it is open to find individual statements are adverse to the interest of the defendant and the outcome of the litigation.
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Decision last updated: 17 February 2015