[2006] HCA 57
Coyle v State of New South Wales [2006] NSWCA 95
State of New South Wales v Delly (2007) 70 NSWLR 125
Source
Original judgment source is linked above.
Catchwords
[2006] HCA 57
Coyle v State of New South Wales [2006] NSWCA 95
State of New South Wales v Delly (2007) 70 NSWLR 125
Judgment (2 paragraphs)
[1]
JUDGMENT
On 8 April 2013 at approximately 6.45 p.m., the plaintiff, her mother, and the plaintiff's friend, Ms Trojak, attended City Central Police Station, Sydney, in order to co-operate with police. The plaintiff had shortly beforehand been contacted on her mobile phone and invited by Senior Constable Rutter (then Constable Rutter) to come to the police station for a "chat", concerning an incident earlier in the day (the Incident).
Upon informing the desk officer at the police station of her attendance, the plaintiff, her mother and Ms Trojak as they were directed to do, took a seat and waited. After some minutes, Senior Constable Rutter approached the plaintiff with Constable Howell whereupon, Constable Howell informed the plaintiff that she was under arrest and would be charged with assault occasioning actual bodily harm. Senior Constable Rutter being the senior of them had directed Constable Howell to voice the arrest (Day 1, Transcript page 45, line 46). The case was conducted on the basis that the arrest was made by Senior Constable Rutter.
By her Statement of Claim and as confirmed at hearing (Day 1, Transcript page 16, lines 11 to 30), the plaintiff proceeded only for breach of s 99 (3) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) in her claim for damages including aggravated and exemplary damages for false imprisonment and trespass/assault to person. The sole defence raised by the State of New South Wales (the State) is that pursuant to s 99 (3) (a) LEPRA, the plaintiff was lawfully arrested by Senior Constable Rutter, he having reasonable grounds to suspect that it was necessary to arrest the plaintiff in order to ensure her appearance before a Court in respect of the offence.
Houston Moran v State of New South Wales [2017] NSWDC 19 | Case summary | Zoe
The question for determination is whether the arresting officer, Senior Constable Rutter, had reasonable grounds for suspecting that it was necessary to arrest the plaintiff in order to ensure her appearance before a Court in respect of the offence: State of New South Wales v Robinson [2016] NSWCA 334 at [35] and [47].
There was no issue that the State bore the onus of establishing that the condition specified in s 99 (3) (a) LEPRA was satisfied.
Pursuant to s 99 (3) LEPRA, arrest was "necessary", only if it was a step which Senior Constable Rutter needed to take and something which he could not dispense with in order to satisfy that condition: State of New South Wales v Robinson [2016] NSWCA 334 at [43].
Unlike in that case (see [70]), in this case it was suggested to Senior Constable Rutter in cross-examination that he should have proceeded by other means than by arrest.
Senior Constable Rutter's suspicion and belief are to be objectively assessed on the basis of whether the information known to him would have induced the state of mind of a reasonable police officer to the same belief, and was therefore a suspicion achieved on reasonable grounds: Hyder v Commonwealth of Australia [2012] 217 A Crim R 571; [2012] NSWCA 336 at [15] to [18] and [90].
Only circumstances preceding the arrest may be considered for this review. Events unfolding consequent upon or immediately following arrest are irrelevant for the purposes of determining whether or not the arrest was lawful or improper: Hyder v Commonwealth of Australia (supra); Director of Public Prosecutions (NSW) v Mathews-Hunter [2014] NSWCA 843 at [54]. Civil liberty being preciously protected in our society, arrest is an exercise of last resort: Director of Public Prosecutions (NSW) v Mathews-Hunter (supra) at [59].
The pleaded parameters of contest and principles set out above bring into focus a narrow realm of fact and virtually no significant contest of fact, in considering this case.
Late on the morning of 8 April 2013, Senior Constable Rutter and Constable Howell, responding to a radio call, attended the premises of Mr Ahmad Alhasan, where they were informed by him that a dispute over $50.00 initially between he and Ms Trojak escalated into a physical struggle between him, Ms Trojak and the plaintiff's mother. He informed Senior Constable Rutter that he grabbed Ms Trojak's mobile phone and snatched the plaintiff's mother's bag, whereupon the plaintiff grabbed him from behind around the neck pulling him away from her mother. According to Mr Alhasan, the struggle left him with a number of bleeding scratches across his chest and neck. Photographs taken by Senior Constable Rutter show bleeding scratches at those locations. When Senior Constable Rutter and Constable Howell arrived at Mr Alhasan's premises, the plaintiff, her mother, and Ms Trojak were not present.
Mr Alhasan did not give evidence. The plaintiff's evidence was that she, her mother and Ms Trojak were aware that Mr Alhasan had called the police. The plaintiff, her mother, and Ms Trojak waited with their baggage for the police to arrive. They were intending to leave Mr Alhasan's premises. The plaintiff said that they left when Mr Alhasan informed them that the police were no longer coming. The three of them moved to a friend's residence at 2/81 Alexandria Street, Drummoyne.
The plaintiff was a young United Kingdom female adult who originally arrived in Australia on a holiday visa and subsequently remained on a tourist visa. She had been in Australia for two years before the incident.
The total of the information relevant to the plaintiff's "flight risk" known to Senior Constable Rutter at the time of his decision to arrest, as given in his evidence in Chief, was as follows (Day 1, Transcript page 40, lines 11 to 45):
Q. Whilst you were at the premises at Piermont, what inquiries, if any, did you make as to background details in relation to Ms Moran?
A. So I was asking, like, while there at the time, I asked Mike a number of questions about where she may have gone, where she may have come from and any details that he may be able to provide in regards to her for us to be able to pursue the matter.
Q. Were you provided with information by Mike in response to your questions?
A. I was provided with a mobile number of Houston. He also told me that he was not aware of where she may have gone and that he didn't know how long she'd been around for, that she'd only been staying at his apartment for about two to three days, approximately.
Q. Whilst you were at the premises, were any further inquiries made whether by way of computer records or otherwise as to the plaintiff, Ms Moran?
A. So while there Mike told us that he'd be able to show us a photo of Houston. He logged onto his Facebook on his laptop and he managed to pull up her Facebook account where he showed me a photo of her profile photo and two or three other photos from her account which said that she was from the UK.
Q. After talking to Mike and trying to ascertain this information you've told us about, what information did you have that would have assisted you in issuing a court attendance notice to her without the need to arrest her?
A. We had no further information to be able to ‑ to be able to pursue in a matter of ‑ in the way of a future court attendance notice or a field CAN or anything along those sort of lines as Houston was no longer at the scene when we arrived, so we weren't able to speak to her about any future addresses or current addresses or even any possible addresses where she may stay.
Q. Were you aware at the time when you were talking to Michael after looking up her Facebook record on the computerised system, were you aware as to whether she was a citizen of any country?
A. He told us that she was from the UK and, yeah.
[Mike is Mr Alhasan]
In fact, the plaintiff was staying with Ms Trojak at Mr Alhasan's premises whilst looking for a property in Sydney to rent, having just returned from travel "up the coast".
At the time of the arrest, police had not acquired any further information concerning residence, contact details or anything else relevant to risk of flight of the plaintiff. Police had not obtained any witness statement or evidence other than the statement of Mr Alhasan.
At the time of arresting the plaintiff, she being in the police station with her mother and Ms Trojak, in response to Senior Constable Rutter's telephone invitation to her mobile number; the information upon which he determined arrest was "necessary" was, as he described in his evidence in Chief:
Q. I want to go from there, if I may: prior to her arrival at the police station later that evening, what, if any intention did you have as to whether she should be arrested or not?
A. So I pretty much formed the intention that she would be arrested due to the fact from what I understood she had no ‑ no fixed place of abode. She ‑ from my understanding, she'd only just recently been in Australia for a short amount of time. She'd only been in Sydney for a very short amount of time and I believed that if she wasn't arrested at the time, that she may not appear at Court, as well as Mike had concerns for his safety if she wasn't ‑ if she wasn't arrested.
[Evidence crossed through was rejected on the basis of case not pleaded]
That evidence plainly describes the suspicion held by Senior Constable Rutter that it was necessary to arrest the plaintiff as being based on her being from the United Kingdom and he not knowing of addresses and contacts for her except for her mobile phone number. Senior Constable Rutter exercised his discretion to arrest knowing that Mr Alhasan did not know of the plaintiff's residential situation or of her status in Australia. The only conclusion available is that Senior Constable Rutter determined to arrest the plaintiff because he assumed her to be a tourist who had been in Sydney for a very short amount of time. He had no other basis for suspecting, as he did, that the plaintiff was a person of "no fixed place of abode" as he put it.
What is particularly disappointing in the evidence of Senior Constable Rutter is that as the earlier quoted passage of his evidence in Chief shows, after interviewing Mr Alhasan and before telephoning the plaintiff to come to the police station for a "chat", he was aware of the procedure of issuing a Court Attendance Notice or a Field Court Attendance Notice, and that he might obtain information of her addresses and contacts for that purpose by asking her. At the moment he and Constable Howell approached her in the police station, Senior Constable Rutter forewent that earlier recognised opportunity to make inquiry of her, and proceeded immediately to arrest.
In my opinion, Senior Constable Rutter's suspicion was not based on reasonable grounds but merely on the bald assertion of Mr Alhasan, who was after all the Informant, that the plaintiff was from the United Kingdom and had stayed in his premises for only two to three days. That was not a sufficient factual basis to establish on the balance of probabilities, a reasonable suspicion that it was necessary to arrest her to ensure her appearance before a Court.
My having so found, means that the plaintiff must succeed in this case.
The exercise of discretion required by s 99 (3) LEPRA dictating that arrest be a power of last resort; is in my opinion to be reviewed with practical consideration of the nature of the criminality involved, and of the circumstances in which the police officer arrests. In this case, the State does not defend Senior Constable Rutter's discretion to arrest on the basis of preventing repetition or continuation of offence or otherwise an identified concern for the prevention or detection of further crime. In this case, on Senior Constable Rutter's own evidence, a fact which was known to him was that details of the plaintiff's presence in Australia, whether as a short term tourist, Australian citizen or resident, or other, and of her domestic address and contact details were matters reasonably to be expected to be available to him on inquiry of her. That was a fact he failed to take into account. In saying this, I do not believe that I run foul of the principle that the arresting officer is not expected to impracticably, in the exercise of his discretion, conduct further investigation so as to hamper his responsible and reasonable exercise of his power of arrest: Hyder v Commonwealth of Australia [2012] NSWCA 336 at [15] to [18].
In the present case, had Senior Constable Rutter proceeded to ask the plaintiff for information relevant to his concern for her flight risk, as it had been his intention to do had she been at the premises of Mr Alhasan when he attended with Constable Howell; he would have been informed at the police station of the following facts:
1. the plaintiff was not a tourist of transience but had been in Australia for two years pursuant to tourist and student visa status;
2. she had come to the police station with her United Kingdom driver's licence, being a proper and usual document of proof of identity and address; and
3. not only was she contactable, as he knew by her mobile telephone number, but was staying temporarily at 2/81 Alexandria Street, Drummoyne, until she was able to find a more permanent residence to rent.
That this information was available is, in my opinion, relevant to review of the reasonableness of the suspicion of flight risk held by Senior Constable Rutter in this case because, as explained above, his expectation was that had he asked the plaintiff, he would have been provided with those details (Day 1 Transcript, page 40, lines 35 to 40 quoted above).
Senior Constable Rutter exercised his discretion not on the basis of facts which he did know, but on the basis of the fact that he was aware of what he did not know. What he did not know was fact upon which he might more regularly have made an assessment of flight risk. It was information he knew to be available by speaking to the plaintiff and having a "chat" according to the invitation for which she, with her mother and friend Ms Trojak, had attended the police station.
During closing submissions, I raised with counsel for the State that Senior Constable Rutter's evidence supported a finding that the plaintiff was arrested purely because she was a tourist, and that he considered that to be sufficient for him to arrest her to ensure her appearance before a Court. I posed that her circumstances were not significantly different to an Australian student of (as is not uncommon) informal accommodation circumstances and whose driver's licence gave a home address elsewhere. Counsel for the State agreed, and argued that in exercising the power of arrest, that such student address and contact circumstances were sufficient to "raise the antenna of any police officer" in the exercise of his discretion under s 99 (3) LEPRA: Transcript Day 2, page 92, lines 03 to 43. In my opinion, the discussion highlights the point just made above that indeed Senior Constable Rutter's "antenna" had been raised such that he was aware of the fact that the plaintiff's address and contacts were available, but he did not, as he ought reasonably to have done, act on that knowledge. He did not ask the plaintiff, her mother or Ms Trojak. To use counsel's metaphors, he refused to tune in.
There is a further and separate reason which, in my opinion, leads inevitably to the finding that Senior Constable Rutter did not have reasonable grounds for his suspicion that arrest was necessary as required by s 99 (3) LEPRA. That is because his suspicion was based on an inadequate understanding of alternative courses of action available to him to ensure the plaintiff's attendance at Court, when exercising his discretion whether or not to arrest.
The evidence was that he spoke to the officer issuing the bail conditions. The conditions relevant to flight risk were that the plaintiff was required to surrender her United Kingdom passport, and to notify police of any changes of address within 24 hours. Senior Constable Rutter was not aware (this was conceded by counsel for the State during closing submissions) as he ought to have been as a New South Wales police officer, that the plaintiff did not have to be arrested in order for those bail conditions to be imposed: Bail Act 1978, ss 15 (1) and 17 (1). Plainly a police officer either, as officer in charge of the police station or otherwise, was present for the purposes of the Bail Act 1978 as the bail undertaking and conditions were in fact issued: see Tilse v State of New South Wales (2013) NSWDC 265 at [151]. The plaintiff properly put these propositions to Senior Constable Rutter in cross-examination: Transcript, Day 1, page 58, lines 25 to 45.
The objective review is a review of reasonable suspicion held by a police officer. In my opinion, that necessarily infers that the police officer had an understanding of the lawful alternatives for ensuring the appearance of the person before a Court (s 99 (3) (a) LEPRA). Without that knowledge, he could not understand or appropriately apply the restraint in the exercise of his discretion on the basis of suspicion that arrest is "necessary" dictated by s 99 (3) LEPRA. In this case, it is apparent that Senior Constable Rutter's exercise of discretion was inadequate because he did not understand the other means of achieving s 99 (3) (a) LEPRA alternative to the exercise of arrest. The bail conditions imposed upon the plaintiff were equally available without arrest. The evidence does not identify to me that arrest was reasonably necessary.
In fact, the plaintiff was issued a Field Arrest Form which recorded her address as 2/81 Alexandria Street, Drummoyne, New South Wales, and her mother (Kelly Hadfield) of the same address as next of kin. Ultimately the charges were withdrawn in Court.
I have identified two principal bases upon which Senior Constable Rutter failed to satisfy the requirements of the restraint imposed by s 99 (3) LEPRA on police power of arrest without warrant.
I observed Senior Constable Rutter, during cross-examination, to give inconsistent evidence as to whether prior to the arrest he had an intention to charge the plaintiff. He had sought guidance from his superiors who had recommended that he invite the plaintiff in for a chat to make inquiries before that determination (Transcript, Day 1, page 4, lines 23 to 29).
At Transcript, Day 1, page 60, line 49, he conceded that he was going to make a determination as to charges after he had heard the plaintiff's version of the incident, and at Transcript, Day 1, page 61, lines 9 to 11, he gave the following evidence:
Q. No determination had been made as to whether or not she'd be charged. That's what you just told us, didn't you?
A. Yes.
After interjection of counsel for the State, he gave what might be contrary evidence at Transcript, Day 1, page 62, lines 35 to 40:
Q. There's a few propositions in the question, so if you don't understand, let me know and I'll try and break it down. A decision as to charging Ms Moran had been made; that's correct?
A. Yes.
I say contrary because the determination referred to might have been a plan to interview before formally charging as his superiors had advised.
However, in evidence in Chief, Senior Constable Rutter gave the following evidence in which he appeared to give a considered answer that the decision to charge had not been made prior to the arrest: Transcript, Day 1, page 42, lines 11 to 16:
Q. Do you know where you were in that answer? Do you want to continue on? I will ask the question again. What guidance, if any, were you given by your supervisor in terms of what to do next in terms of the investigation?
A. Okay. So we were advised to call up Houston and bring her into the station for a chat, offer her the opportunity for an interview and going off what was said, to make a determination on whether she would be charged or not.
The significance of this evidence is, in my opinion, that Senior Constable Rutter proceeded to arrest the plaintiff when failing to exercise an adequate plan toward charge, arrest and bail, which inadequacy stemmed from his inadequate understanding of Police powers. That led to his wrong belief that arrest was necessary when it was not.
The evidence does not on the balance of probabilities support that it was necessary to arrest the plaintiff rather than to release her on the bail conditions without arrest, if indeed those conditions were necessary at all.
By these references to his evidence, I do not intend to suggest any dissatisfaction with the truth or accuracy of the evidence given by Senior Constable Rutter. The objective review of exercise of the power of arrest by a police officer pursuant to s 99 (3) LEPRA is made in a Court room without the opportunity of full appreciation of that which a police officer going about his or her duties in the course of a day may have experienced. Section 99 (3) LEPRA imposes upon the police officer a great responsibility for the protection of civil liberty. Such is the obvious counterweight in balance of the significant powers given to police. In my opinion, Senior Constable Rutter clearly failed in the subject instance of his exercise of his power of arrest. Nothing in these reasons is intended to be read as criticism of his otherwise performance as a police officer.
The State has failed to satisfy its civil burden of proof establishing that Senior Constable Rutter arrested the plaintiff suspecting on reasonable grounds that it was necessary to do so pursuant to the provisions of s 99 (3) LEPRA. There will be judgment for the plaintiff.
The plaintiff's evidence was that when arrested she was shocked and her mother began to cry as she was led away and through a door, where after, under the control of the Custody Manager, she was placed within a cell having been pat down searched by Constable Howell. The plaintiff participated in a ERISP, and remained in custody whilst her mother and Ms Trojak provided statements to police. The plaintiff was formally charged and released on bail at 10:40 p.m., having remained in custody for nearly 4 hours. The plaintiff's evidence is that she was treated with courtesy throughout the whole of that procedure.
There can be no doubt the plaintiff suffered significant shock on being arrested, she having attended the police station with the expectation of being interviewed about her version of the incident, and with no expectation of being arrested. The arrest took place in front of her mother and her friend, Ms Trojak. She would have suffered humiliation and a degree of distress arising from that surprise. She was not handcuffed. There is no suggestion on the evidence that at any stage she was physically forcibly treated. She co-operated throughout the regular procedure following arrest, and the police officers conducted themselves with appropriate courtesy according to their duty. There was no evidence of damage to reputation or of on-going sequelae of the shock. The onus of proving damages was upon the plaintiff.
Counsel for the State properly pointed to there being no evidence of loss of reputation or of disturbance or inconvenience in the plaintiff's life other than that suffered during the period of her wrongful imprisonment whilst she was in the police station, commencing with the arrest in front of her mother and friend, Ms Trojak. He submitted that damages would be nominal. A submission of a similar nature in Coyle v State of New South Wales [2006] NSWCA 95 received the following judgment from Tobias JA, which I respectfully apply:
"[99] It is difficult to imagine for a person who is otherwise generally a law abiding citizen, a more humiliating experience, or a greater shock to one's equilibrium than being forcefully deprived of one's liberty for even a relatively short period of time in circumstances which are entirely unjustified. This is all the more so where that curtailment of liberty is accompanied, as in the present case, by the detained person being handcuffed and marched through a crowd of onlookers, and then incarcerated in a police paddy wagon, locked in a cell at the police station, and fingerprinted and photographed as a criminal. Not surprisingly, the whole experience must have been both humiliating and highly embarrassing."
His Honour's above quoted consideration of compensatory damages in Coyle v State of New South Wales [2006] NSWCA 95 illustrates by application on the very different facts here, three things:
1. deprivation of liberty and wrongful imprisonment consequent of unlawful arrest is a serious matter entitling the plaintiff to damages even in the absence of pecuniary loss;
2. damages in this case are to compensate the plaintiff who was treated courteously and did not suffer physical forceful, and if I may call it, "rougher" treatment at the hands of police as was suffered in Coyle's case, and damages are to be assessed in an appropriate proportion to her experience; and
3. the indignity and humiliation suffered by the plaintiff in the presence of her mother and of her friend Ms Trojak causing her surprise and shock is to be compensated.
The elements of unlawful procedure identified in these reasons gave rise to the police action of arrest and imprisonment personally offending the plaintiff's rightful expectation in our society of liberty under the law, which law is enforced by and which liberty she was entitled to trust was protected by the authority of the police. They are the unlawful causes of the plaintiff's shock. The breach of s 99 (3) LEPRA in that way escalated the affront and disequilibrium suffered by the plaintiff in consequence of which escalation she is entitled to aggravated damages, and in addition the breach must earn the Court's approbation entitling the plaintiff to an award of exemplary damages. In this must be contemplated the arrest, the wrongful imprisonment and trespass to her person of the search conducted by Constable Howell: State of New South Wales v Delly (2007) 70 NSWLR 125; [2007] NSWCA 303 per Ipp JA at [20] and [24].
The arrest not only infringed the plaintiff's right to liberty and offended her entitlement to a sense of personal security, but it affronted her mother, causing her distress, when she was at the police station in support of her daughter and in order to co-operate with the police investigation of the incident. The interest of the plaintiff against invasion of her liberty, dignity and sense of personal security extended to freedom from disturbance of her mother present at the police station. That affront aggravated the infringement of right of the plaintiff to enjoy her entitlement to liberty in the sense of personal security. On that account also, she is entitled to aggravated damages: NSW v Ibbett (2006) 229 CLR 638; [2006] HCA 57 at [31]. In that paragraph, the High Court stated:
"Aggravated damages are a form of general damages, given by way of compensation for injury to the plaintiff, which may be intangible, resulting from the circumstances and manner of the wrongdoing."
At [33], the High Court recognised that whereas aggravated damages fix upon the circumstances and manner of the wrongdoing of the defendant, contrasted with the function of exemplary damages as punishment and deterrent of the wrongdoer; nevertheless, it can be difficult to differentiate between aggravated damages and exemplary damages.
In my opinion, in this case, the exercise of the power of arrest deserves the disapprobation of the Court particularly because I have found that the failure to exercise the restraint imposed by s 99 (3) LEPRA resulted from:
1. Senior Constable Rutter changing course from his earlier determined sensible approach which was to inquire of the plaintiff of those matters relevant to flight risk, to his unlawful decision to immediately arrest when approaching the plaintiff at the police station; and
2. that the power of arrest was exercised by him as a police officer unaware of the lawful opportunity to obtain the bail conditions against flight risk without proceeding to arrest.
In the circumstances of this case, the matters justifying an award of exemplary damages are also pertinent to an award of aggravated damages.
The High Court in New South Wales v Ibbett (supra) at [35] stated:
"In cases where the same circumstances increase the hurt to the plaintiff and also make it desirable for a Court to mark its disapprobation of that conduct, the Court may choose to order one sum which represents both heads of damage and no element more than once."
Mindful of the conceptual differences between aggravated and exemplary damages and of the danger of an excessive overall award where some or all of the factors supporting one head of damage also support the other, I intend to allow one sum for both heads of aggravated and exemplary damages.
Taking into account the duration of just less than four hours as well as the courteous treatment of the plaintiff during her wrongful imprisonment, I award compensatory damages for wrongful imprisonment in the sum of $5,000.00.
The plaintiff described no actual injury consequent of the pat down search. Her counsel conceded that but for it being unlawful in that it followed an arrest made in breach of s 99 (3) LEPRA, the plaintiff maintained no separate cause of action in regard to it. The pat down search was a trespass upon the person of the plaintiff and in the legal form of an assault. In my opinion, the plaintiff is entitled to additional compensatory damages in the sum of $1,000.00.
For the reasons already given, I award the single sum of $2,000.00 for aggravated and exemplary damages in total compensation of the offence of the plaintiff's right to liberty, dignity and sense of personal security, as well as to express the Court's disapprobation for the arrest; and in relation to all of these matters, contemplating the continuance of the deprivation of liberty and the experience of being searched by pat down.
In total, I award $8,000.00 for compensatory, aggravated and exemplary damages.
I allow interest for the intervening 3.8 years pursuant to CPA s 100; UCPR 36.7 rounded to 9%. This calculates to $2,736.00.
[2]
ORDERS
1. Judgment for the plaintiff against the defendant in the sum of $10,736.00.
2. Defendant to pay the plaintiff's costs.
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Decision last updated: 17 February 2017