Hunter v State of New South Wales

The Proceedings in the District Court

1. In his amended statement of claim, Mr Hunter made, relevantly for present purposes, allegations that may be restated as follows:
2. At all material times, the Police Officer was a police officer and, as such, was deemed to be a person in the service of the Crown pursuant to s 6 of the Vicarious Liability Act.
3. At all material times, the State was vicariously liable for the actions of the Police Officer pursuant to s 8 of the Vicarious Liability Act.
4. At approximately 12 noon on 17 June 2012, Mr Hunter was at an address at Menai when the Police Officer and another police officer attended the Menai address and words to the effect of "you are under arrest for breach of bail" were said to Mr Hunter.
5. Mr Hunter protested and advised that he had already notified Sutherland Police Station that he had changed his address.
6. Mr Hunter was handcuffed and conveyed to Sutherland Police Station.
7. Mr Hunter was subsequently released from custody at approximately 12.45 pm on 18 June 2012.
8. By reason of the above matters, Mr Hunter was unlawfully arrested and falsely imprisoned.
9. By reason of the above matters, Mr Hunter has sustained loss and damage.
10. In its defence filed on 24 March 2015, the State admitted that, on 17 June 2012, Mr Hunter was at the Menai address, that the Police Officer and other police officers attended the Menai address, that Mr Hunter was arrested for breach of bail, that Mr Hunter protested about his bail conditions, that Mr Hunter was conveyed to Sutherland Police Station and that Mr Hunter was released from custody on 18 June 2012. The State did not admit the other allegations made in paragraphs 7, 8, 9 and 13 of the statement of claim.
11. In answer to para 14 of the statement of claim, the State asserted that:

• at the time of the arrest of Mr Hunter, the arresting officers held a belief on reasonable grounds that he was at liberty on bail and that he had failed to comply with his bail undertaking, and
• Mr Hunter's arrest was lawful by reason of s 50 of the Bail Act. Nothing else was said as to the operation of s 50 of the Bail Act. The State also denied that Mr Hunter has suffered any loss or damage.

1. The trial commenced on 15 February 2016. In the course of the opening of the plaintiff's case, no mention was made that there was a question as to whether any of the police officers had turned a mind to the possibility of making an application to an authorised justice for the issue of a warrant or summons, as provided in s 50(1)(b), rather than exercising the power of arresting Mr Hunter, conferred by s 50(1)(a).
2. The Police Officer gave evidence that, when Mr Hunter was arrested, he believed that the residential condition required Mr Hunter to reside at the Cronulla address, that Mr Hunter was not residing at the Cronulla address and that, accordingly, Mr Hunter was in breach of that condition. The Police Officer said that he believed that a court imposed bail condition could only be changed by a person making an application to the court, and that, if the court agreed to the change, the person would be given a "Notice of Continuation of Bail" slip setting out the change, which the person would then be able to take to a police station. At no time did Mr Hunter produce any such slip.
3. The possibility of adopting the alternative course, of asking an authorised justice to issue a summons or warrant, was not the subject of any evidence-in-chief from the Police Officer or from any other police officer. The only tangential reference to that matter was in cross-examination of the Police Officer as follows: Q. On 17 June, because you had grounds to believe that he was in breach of his residential bail condition you must arrest him, correct? A. I placed him under arrest, yes. Q. You had to arrest him in other words I'm suggesting to you? A. I placed him under arrest. Q. That was the only way you could proceed was to arrest him, correct, for breach of bail? A. Yes. Mr Hunter contends that, in giving that evidence, the Police Officer was agreeing that he believed that he had no alternative to arresting Mr Hunter and that an inference should therefore be drawn that he did not turn his mind to the alternative. It is by no means clear that the cross-examiner was suggesting to the Police Officer that he had failed to turn his mind to the possibility of adopting the alternative course. However, as will become clear, it is not necessary to resolve that issue.
4. The evidence finished at the end of the second day of the trial. On the third day of the trial, counsel for Mr Hunter provided the primary judge with a written outline of submissions. In that outline, for the first time, the question was raised as to whether the Police Officer had "effectively" exercised "the discretion" to arrest Mr Hunter conferred by s 50. The written submission asserted that it was not enough for the Police Officer to hold a belief on reasonable grounds that Mr Hunter had failed to comply with the residential condition of his bail, but that there must be an "effectual" exercise of the discretion conferred by s 50.
5. The written submission asserted for the first time that, for there to be an "effectual" or "real" exercise of the discretion by the Police Officer, he was required to consider "the very clear alternative" to arresting Mr Hunter mandated by s 50, being to have an authorised justice issue a summons for Mr Hunter's appearance before a Court. The submission asserted that it was clear from the evidence of the Police Officer that he only focused on whether he had reasonable grounds to believe that Mr Hunter had breached his residential condition and did not consider the alternative to arrest, namely, to have an authorised justice issue a summons. The submission placed reliance on the answers in cross-examination quoted above.

• The grounds for the Police Officer's believing that Mr Hunter had failed to comply with the residential bail condition; and
• The effective or effectual exercise of the discretion under s 50, which, in terms, called for evidence from the Police Officer that he had turned his mind to the relevant considerations in the exercise of his discretion, the most important of which was the alternative to arrest, namely, the issuing of a summons by an authorised justice. Mr Hunter asserted that the State focused only on adducing evidence in relation to the first of those two matters and, "for reasons known only to it", did not call any evidence in relation to the second matter. He asserted that there needed to be evidence from the Police Officer that he turned his mind to the alternative course and that it was not for him, as plaintiff, to second guess or anticipate the State's case on lawful justification and, thereby, plead speculatively matters that might be dealt with by such a defence.

1. The primary judge accepted all of the Police Officer's evidence as to his belief at the time of the arrest of Mr Hunter. Her Honour was satisfied that there were reasonable grounds for the Police Officer's belief that Mr Hunter was required to reside at the Cronulla address, because that was the address shown in the COPS system. Her Honour was also satisfied that there were reasonable grounds for the Police Officer's belief that Mr Hunter was not residing at the Cronulla address. In addition, her Honour was satisfied that there were reasonable grounds for the Police Officer's belief that the residential condition had not been changed.
2. Specifically, the primary judge accepted the evidence of the Police Officer that he had arrested Mr Hunter for the purposes for which the power to arrest under s 50(1)(a) of the Bail Act exists, namely, to bring him before a court to have his bail re-determined. Her Honour observed that that evidence was not challenged and that it was not suggested that the Police Officer had arrested Mr Hunter for some other purpose. Her Honour held that, while arresting a person to question him and investigate the circumstances of an offence or arresting him in an unnecessarily high handed and humiliating manner, where the arrest was not reasonably necessary for the effective conduct of a prosecution, might constitute extraneous purposes, there was no evidence to suggest that Mr Hunter was arrested for such a purpose. Her Honour declined to find that the conduct of the Police Officer was unnecessarily high handed or an officious use of arbitrary power, as Mr Hunter had asserted.
3. The primary judge accepted that the State's contention that Mr Hunter should not be permitted to advance the proposition that the State had failed to prove, on the balance of probabilities, that there was an "effectual" exercise of the discretion conferred by s 50. She did so on the basis that the failure of the pleadings to challenge the exercise of discretion explained the State's failure to adduce relevant evidence, if there was any, from the Police Officer. Her Honour declined to hold that there must be express evidence from an arresting police officer that the officer turned a mind to the alternative of arrest, namely, asking an authorised justice to issue a warrant or a summons.
4. The primary judge considered that that evidence of the Police Officer quoted above was equivocal. Her Honour observed that it was not put to the Police Officer that he should have applied to an authorised justice for the issue of a summons as an alternative to arresting Mr Hunter. Her Honour concluded that, had it been necessary for her to do so, she would have declined to find that the State had failed to show that the Police Officer had effectively exercised the discretion to arrest Mr Hunter.

The Grounds of Appeal

1. If leave is granted, Mr Hunter proposes to rely on two grounds of appeal:
2. The primary judge erred in holding that Mr Hunter, as plaintiff, was not permitted to submit that the State had failed to prove that there had been an effective exercise of the discretion under s 50 of the Bail Act because he contravened rr 14.14(1) and 14.14(2) of the UCPR by failing to plead that the Police Officer had not effectively exercised the discretion.
3. The primary judge erred in holding that there is no requirement that the discretion under s 50 be exercised in good faith and that it was sufficient to make the decision to arrest in good faith. It is desirable to say something about the substance of those questions before dealing with the question of leave to appeal.

UCPR r 14

1. Under UCPR r 14.14(1), the plaintiff must, in a statement of claim, plead any matter that, if not pleaded specifically, may take the defendant by surprise. Under UCPR r 14.14(2), in a defence or subsequent pleading, a party must plead any matter that:

• if not pleaded specifically, may take the opposite party by surprise, or
• the party alleges makes any claim, defence or other case of the opposing party not maintainable; or
• raises matters of fact not arising out of the preceding pleading. Under UCPR r 14.14(3) certain matters are specified that must be pleaded under UCPR r 14.14(2). However, the matters that must be pleaded are not limited to those specified in UCPR r 14.14(3).

1. The question of substance now raised by Mr Hunter is that, on its true construction, s 50 confers a discretion on a police officer, when certain pre-requisites are satisfied. The pre-requisites are that a police officer must believe, on reasonable grounds, that a person who has been released on bail:

• has, while at liberty on bail, failed to comply with the person's bail undertaking or an agreement entered into by the person pursuant to a bail condition, or
• is, while at liberty on bail, about to fail to comply with that person's bail undertaking or an agreement entered into by the person pursuant to a bail condition.

1. Once one of those pre-requisites has been satisfied, a discretion arises for a police officer. That discretion is either to arrest the person without warrant or to follow the alternative course, by which an authorised justice may issue a warrant or a summons. Mr Hunter contends that the language of s 50(1) is such that a police officer may not exercise the power to arrest without warrant unless the police officer has first turned his or her mind to the possibility of following that alternative course.
2. The State accepts that such discretion arises under s 50(1). Further, the State also accepts that, where arrest and imprisonment is alleged by a plaintiff to be wrongful or false, the State has the burden of proving under the defence of justification that the arrest and detention were lawful. [1] The question, however, is whether, in the state of the pleadings in the present case, it should have been apparent to the State that there was an issue as to whether the Police Officer had turned his mind to the alternative course under s 50(1)(b), of applying to an authorised justice for a warrant or summons to be issued, before taking the step of arresting Mr Hunter.
3. By failing to file a reply, Mr Hunter joined issue with the allegations made in the State's defence. Thus, effectively, the State had the onus of proof of all matters necessarily raised by its pleading of s 50 of the Bail Act. Further, it is clear that no evidence was adduced from the Police Officer as to whether or not he turned his mind to the possibility of asking an authorised justice to issue a summons or warrant. The question is whether Mr Hunter can rely on the absence of such evidence in circumstances where no attempt was made by him or by those representing him in the conduct of the proceedings in the District Court to raise that matter as an issue in the proceedings before the evidence had closed.
4. It would not be practicable for Mr Hunter, as plaintiff, to anticipate a defence based on s 50 in his statement of claim. However, it would have been open for him to file a reply in response to the State's defence. He failed to do so. The form of the State's defence did not purport to assert all of the factual matters that Mr Hunter now contends should have been in issue. Rather, as I have said, having asserted that the pre-requisites of the power conferred by s 50(1)(a) had been satisfied, the defence simply asserted that the arrest was lawful by reason of s 50. It was clear from the State's defence that it was relying on s 50 as an answer to Mr Hunter's claim, in the sense that it asserted that the Police Officer had acted in accordance with s 50 so as to render lawful Mr Hunter's arrest and imprisonment. In so far as Mr Hunter wished to rely on any failure of the Police Officer to exercise "effectually" the discretion conferred by s 50, it was incumbent upon him, and those advising him, to raise that matter at an appropriate time rather than to take the State by surprise by raising the matter after the taking of evidence was complete.
5. It would have been open to Mr Hunter to file a reply by which he did not admit that the Police Officer had turned his mind to the question of whether the alternative course was an appropriate one in the circumstances. At the very least, it would have been appropriate, in the absence of a reply, for counsel for Mr Hunter, in the course of opening, to point out that that was a requirement for the enlivening of s 50. Neither course was adopted. Whether that was deliberate or an opportunistic afterthought does not much matter. The result is the same, namely, that the State was taken by surprise and the issue was not fairly litigated.
6. Not having raised the question in the pleadings, it was incumbent upon Mr Hunter to have raised the matter in the course of his opening at the latest, given the requirements of s 56(3) of the Civil Procedure Act 2005 (NSW) that a party to civil proceedings is under a duty to assist the Court to further the overriding purpose of the just, quick and cheap resolution of the real issues in the proceedings. In the circumstances, the State was entitled to rely on s 50 by establishing the prerequisite to the exercise of the power. The case was litigated on the basis that that was the issue. It was therefore open to the primary judge to conclude that Mr Hunter could not rely on the matter for the first time after the evidence was closed. There was no error on the part of her Honour in rejecting Mr Hunter's response to the State's reliance on s 50.
7. That is sufficient to dispose of the appeal, assuming leave to appeal were to be granted. Therefore it is not necessary to deal with the substantive issue. However, it is desirable to say something briefly about that question.

Exercise of Power under s 50

1. As I have said above, the State accepts that s 50 confers a discretion on a police officer, once the pre-requisites in the preamble of s 50(1) are satisfied. It may be that, assuming the question were fairly raised for the purposes of a trial, it would be incumbent upon the State to prove that a police officer turned his or her mind to the possibility of the alternative course being appropriate. It is at least arguable that failure to do so may have constituted a failure in the proper exercise of the discretion. However, in circumstances where the question was not fairly litigated there could be no finding one way or the other in the present case.
2. The question of whether the exercise of the discretion was reasonable did not arise in the circumstances of this case. That is to say, the contention advanced on behalf of Mr Hunter is that the discretion was not in fact exercised. The question of whether, had the Police Officer turned his mind to the alternatives, it would have been reasonable in the circumstances to exercise the power to arrest rather than apply to an authorised justice, simply did not arise.

Leave to Appeal should be refused

1. As Mr Hunter contends, the right to personal liberty is a most elementary and important of all common law rights. Personal liberty is an absolute right vested in the individual by the immutable laws of nature and has never been abridged by the laws of England without sufficient cause. It is of great importance that that personal liberty be preserved. Further, it is of critical importance to the existence and protection of personal liberty under the law that the restraints that the law imposes on police powers of arrest and detention be scrupulously observed. The right to personal liberty cannot be impaired or taken away without lawful authority, and then, only to the extent and for the time which the law prescribes. [2]
2. Nevertheless, Mr Hunter chose to conduct the proceedings in the District Court in the fashion described above. He elected not to raise specifically the question that he now seeks to complain about in this Court. There is no justification for giving him a second chance.
3. No question of public policy is raised by the appeal. It is arguable that, but for the pleading point addressed above, the failure by the State to adduce evidence that the relevant Police Officer turned his mind to the alternative to arresting Mr Hunter may have been fatal to the State's defence based on s 50. However, for the reasons indicated above that question did not arise. Accordingly, it would be inappropriate for the Court to embark on a consideration of the hypothetical question raised by these proceedings.
4. Leave to appeal is required because the amount in issue is less than $100,000. On the State's case, the amount in issue would be less than $8,000, although Mr Hunter claimed damages in the order of $70,000. That claim was made on the basis of facts rejected by the primary judge, namely, that the actions of the Police Officer had the hallmarks of a heavy handed and officious use of arbitrary power. Thus, on the findings made by the primary judge, the damages would probably be significantly less than those claimed by Mr Hunter.
5. In all of the circumstances, I am not persuaded that this is a case where leave to appeal should be granted. The application for leave should be refused. Mr Hunter should pay the State's costs of the application for leave.

Endnotes

1. See Zaravinos v State of New South Wales [2004] NSWCA 320 at [37].
2. See Williams v the Queen (1986) 161 CLR 278 at 292 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: 28 March 2017