Johnstone v State of New South Wales

The trial judge's factual findings 12 The trial judge was not persuaded that Mr Johnstone was a reliable witness. Whilst her Honour acknowledged that there were some inconsistencies in the evidence of the officers, she did not consider that those matters were of sufficient importance, or went to any substantial issue, so as to cause her to prefer the evidence of Mr Johnstone over that of the officers. Accordingly, preferring the evidence of the officers, her Honour made the following findings (which I have numbered for ease of reference): "[1] [Mr Johnstone] walked off the end of the railway platform onto the area around the tracks intending to walk to Wollongong;

[3] the transit officers decided to leave the train and speak to him because he was down the southern end of the platform which was unusual, he was carrying a duffel bag and they were aware that there had been theft of copper from the railway lines.

[4] as they left the train and walked towards [Mr Johnstone] they saw him walk from the platform onto the area around the tracks and then walk across the tracks;

[6] they asked him to show them the contents of his bag and he did. They did not find anything unusual in the bag;

[7] [Senior Constable] O'Neil asked [Mr Johnstone] for identification because he had not yet fully established what was in [Mr Johnstone's] bag, his purpose for being on the railway line, his concern that [Mr Johnstone] may have been going to commit some offence on the railway line and because he had already committed an offence under the railway by laws by being on railway land.

[8] when [Mr Johnstone] had confirmed his identity [Senior Constable] O'Neil intended to undertake a check by police radio. He informed [Mr Johnstone] that if the check showed he had no prior history or problems with the railways he was going to give him a caution but if he had had he was going to give him a fine.

[9] [Mr Johnstone] handed [Senior Constable] O'Neil a Medicare card which disclosed his name. [Senior Constable] O'Neil asked for identification which showed his name, date of birth and address. [Mr Johnstone] refused and asked for his Medicare card to be returned. [Senior Constable] O'Neil refused to return it because he had not completed his inquiries and had not finished noting down the details on the card.

[10] [Mr Johnstone] did not provide his address or any information about where he was living at the time. [Senior Constable] O'Neil told [Mr Johnstone] that if he did not supply his name and details he would have to be arrested. [Mr Johnstone] wanted to leave and tried to snatch the Medicare card from [Senior Constable] O'Neil. He started to become defiant, hostile and agitated. [Mr Johnstone] pushed [Senior Constable] O'Neil and shaped up in a fighting stance.

[11] [Mr Johnstone] was handcuffed after a struggle in which all three of them fell to the ground. In the struggle, [Senior Constable] O'Neil tried to hit [Mr Johnstone] with his baton but missed. [Mr Johnstone] headbutted [Senior Constable] O'Neil twice, tried to headbutt [Special] Constable Fitzpatrick and scratched [Special] Constable Fitzpatrick. [Mr Johnstone] was kicking and spitting.

[12] a number of police officers arrived after [Mr Johnstone] had been handcuffed.

[13] [Senior Constable] O'Neil assisted [Mr Johnstone] by picking him up by his arms.

[14] the officers walked [Mr Johnstone] up towards the railway station. He was not taken along the same path as he had used when he had left the platform. When they reached a white metal fence [Mr Johnstone] was lifted, rolled over and caught by other police and lowered to the ground. He was then walked to a police caged vehicle.

[15] [Mr Johnstone] was taken to a police station and charged.

[16] on the following day he was taken to hospital for the treatment of an injury to his knee."

(Findings numbered [1]-[4], [7], [9], [10] and [11] (in part), and [13] and [14] (in part) are challenged by Mr Johnstone.)

First issue: was the arrest lawful? 13 Two questions arise for consideration in determining whether the arrest was lawful. First, whether Mr Johnstone was informed by the arresting officer of the true reason for his arrest in accordance with the common law principles stated in Christie v Leachinsky [1947] AC 573. Secondly, whether Senior Constable O'Neil was entitled to arrest Mr Johnstone without a warrant: the Crimes Act 1900, s 352 (now repealed but in force at the time). Section 352 provided, inter alia, that a constable may apprehend without a warrant any person whom the constable had reasonable cause to suspect had committed an offence.

Compliance with the common law principles 14 Senior Constable O'Neil's evidence was that the reason for the arrest was Mr Johnstone's failure to supply his full name and residential address in contravention of the Regulation, cl 41. Clause 41 was in the following terms: "41(1) An authorised person who suspects that a person who is on a train or on SRA property has contravened a provision of this Regulation may direct the person to provide his or her full name and residential address to the authorised person.

(2) A person to whom such a direction is given must comply with it.

(3) A person is not guilty of an offence under this clause unless the person was warned, when the direction was given, that it is an offence to fail or refuse to comply with such a direction."

The maximum penalty for the offence was two penalty units. (At the time of the offence that equated to a fine of $220.) 15 The State's case at trial was that Senior Constable O'Neil suspected that Mr Johnstone had contravened the Regulation, cls 14 and 29 and that he was thereby entitled to act under cl 41 and direct Mr Johnstone to provide his name and residential address. Clauses 14 and 29 provided: " Entry to and exit from SRA premises

14(1) A person must not, without reasonable excuse, enter or leave a station, platform or other work or premises connected with a railway, otherwise than by a place designated by the SRA for entry or exit.

29(1) A person must not cross or drive a vehicle over a railway line except by means of a level crossing, bridge or subway constructed for that purpose." 16 The appellant challenges that there was a breach of either provision. However, it is convenient for the purposes of the present question, that is, whether Senior Constable O'Neil complied with his common law obligation to tell Mr Johnstone the true ground of his arrest, to proceed on the findings made by the trial judge, which were based on an acceptance of the officers' evidence. However, the following matters bear noting. 17 There was no dispute on the appeal that Senior Constable O'Neil and the other officers present at the time of the arrest were authorised persons within the terms of cl 41(1). (This matter was in dispute at trial.) At trial, Mr Johnstone did not concede that the events occurred on railway land. This was not in issue on the appeal. However, Mr Johnstone maintained his contention that he was on railway land pursuant to an implied licence, as people frequently walked along the railway tracks to the knowledge of state transit officers. It was argued that if there was such an implied licence, there would not have been a breach of cl 14(1). 18 There was also a dispute before the trial judge as to whether Mr Johnstone had walked across the railway lines. The trial judge resolved that dispute in favour of the arresting officer, who said he saw Mr Johnstone walk across the railway lines. That finding is challenged on the appeal. However, assuming for present purposes that her Honour's finding is correct, Mr Johnstone had thereby contravened cl 29(1). On that basis, Senior Constable O'Neil was entitled to act under cl 41(1) to direct Mr Johnstone to provide his full name and residential address. 19 Mr Johnstone refused to give his residential address. To that extent, there was a failure to comply with the direction given by Senior Constable O'Neil. However, that failure only constituted an offence if Mr Johnstone had been warned at the time the direction was given that non-compliance was an offence: see cl 41(3). Senior Constable O'Neil did not tell Mr Johnstone, in express terms, that it was an offence not to comply. However, he did tell Mr Johnstone he would have to arrest him if he did not give his name, address and date of birth. There was no statutory permission to ask for the date of birth. However, it was not suggested that that, of itself, meant there was no contravention of cl 41. The exchanges between Senior Constable O'Neil and Mr Johnstone at the time of his arrest are considered below. 20 Her Honour found that Mr Johnstone was informed of the true ground of his arrest, that is, that he had not provided his name and details. Her Honour held, therefore, that Mr Johnstone was lawfully arrested.

Trial judge's reasons in finding that the officers had complied with their common law obligations 21 The question of the lawfulness of the arrest arose both in the context of the Crimes Act, s 352 and at common law. In the context of considering the lawfulness of the arrest pursuant to the Crimes Act, s 352, her Honour said it was unnecessary to determine whether Mr Johnstone had contravened cl 41, as she was satisfied that the officers had reasonable cause to suspect that Mr Johnstone had contravened cls 14 and 29. Her Honour held that a breach of those regulations constituted " 'offences … punishable by summary conviction under any Act' for the purposes of s 352". Accordingly, her Honour held that there were grounds on which Senior Constable O'Neil could proceed to arrest Mr Johnstone. 22 Her Honour acknowledged, correctly, that in addition to the requirements of s 352, an arresting officer was obliged to comply with the common law principle that a person must be told the true ground of his arrest: see Christie v Leachinsky. 23 Her Honour recorded that Mr Johnstone had been told that if he did not supply his name and details he would have to be arrested and that Senior Constable O'Neil believed that a failure to do so was a contravention of the Regulation, cl 41. Her Honour also noted that Senior Constable O'Neil was of the view that Mr Johnstone had committed an offence by being on railway land and by crossing the running lines. Her Honour next observed that: "Accordingly [Mr Johnstone] was informed of a reason for his arrest. He was convicted. His appeal was upheld because the warning did not comply with subsection (3).

[Mr Johnstone] was also charged in relation to an offence which was not mentioned as a reason for his arrest at the time." 24 As I understand this part of her Honour's reasoning, the reference to Mr Johnstone being told "a reason for his arrest" was a reference to being told that if he did not supply his name and details he would have to be arrested. On this basis, her Honour's additional comment, that Senior Constable O'Neil was also of the view that there had been a contravention of cls 14 and 29, was superfluous. I will return to this later, as the State contends that Senior Constable O'Neil also told Mr Johnstone he was being arrested for breaching cl 29. 25 Her Honour then set out various passages from Christie v Leachinsky, to which I make fuller reference below, including Viscount Simon's third proposition, that a person need not be told the true ground for his or her arrest if the person must know the general nature of the alleged offence for which he or she is detained. Her Honour also referred to State of New South Wales v Delly [2007] NSWCA 303; 70 NSWLR 125 at [10] (which is also set out below), where Ipp JA endorsed the view that it is not necessary for the arresting officer to specify the charge in respect of which the person was being arrested, but that the officer was required to inform the person of the facts which had given rise to the arrest. 26 Her Honour held that "the qualifications to the general principle apply in this case". 27 Her Honour then said: "In particular I find:

[Mr Johnstone] was informed of the true ground of arrest i.e. that he had not provided his name and details;

[Mr Johnstone] was informed of the substance of the reason for his arrest;

Sergeant O'Neil was not required, at the time he arrested [Mr Johnstone], to formulate any charge at all much less the charge which [Mr Johnstone] ultimately faced.

Sergeant O'Neil was not required to inform [Mr Johnstone] of all the matters with which he was ultimately charged.

Sergeant O'Neil was not obliged to charge [Mr Johnstone] with every offence that he believed [Mr Johnstone] had committed.

I find that [Mr Johnstone] was lawfully arrested." 28 Having regard to these findings, it appears that her Honour's conclusion that "the qualifications to the general principle apply in this case", is a reference to the passage from Ipp JA's judgment in State of New South Wales v Delly, at [10], that it is not necessary for the arresting officer to specify the charge for which a person is arrested. I say this because her Honour's finding that Mr Johnstone "was informed of the true ground of arrest i.e. that he had not provided his name and details" sits uncomfortably with the notion that it is not necessary to tell a person of the true ground of the arrest if the circumstances are such that the person must know the general nature of the alleged offence for which he is detained.

Principles governing arrest at common law: Christie v Leachinsky 29 I will assume for the purposes of this issue that the preconditions for arrest without a warrant prescribed by the Crimes Act, s 352, were satisfied in this case. However, s 352 (and any present statutory equivalent) is not the sole determinant of whether an arrest is lawful. In addition, the arresting officer is required to inform the person arrested of the true ground on which the arrest is being made: Christie v Leachinsky. (This principle is now reflected in the Law Enforcement (Powers and Responsibilities) Act 2002, s 201.) 30 In Christie v Leachinsky Viscount Simon summarised the principles that govern a lawful arrest in the following propositions, at 587-588: "(1) If a policeman arrests without warrant upon reasonable suspicion of felony, or of other crime of a sort which does not require a warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the reason to himself or to give a reason which is not the true reason. In other words, a citizen is entitled to know on what charge or on suspicion of what crime he is seized.

(2) If the citizen is not so informed, but is nevertheless seized, the policeman, apart from certain exceptions, is liable for false imprisonment.

(3) The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained.

(4) The requirement that he should be so informed does not mean that technical or precise language need be used. The matter is one of substance, and turns on the elementary proposition that in this country a person is, prima facie , entitled to his freedom and is only required to submit to restraint on his freedom if he knows in substance the reason why it is claimed that restraint should be imposed.

(5) The person arrested cannot complain that he has not been supplied with the above information as and when he should be, if he himself produces the situation which makes it practically impossible to inform him, eg, by immediate counter-attack or by running away."

His Lordship observed that there may be exceptions (other than those stated in propositions (3) and (5)) to the general rule that a person is entitled to know the substance of the reason he is being deprived of his personal liberty. His Lordship also indicated that the propositions he had enunciated were not intended to constitute a formal or complete code. Rather, they indicated " the general principle of our law on a very important matter ". 31 Viscount Simon considered, at 586, that according to "text books of acknowledged weight and in cases actually decided" it was established that: "… in normal circumstances an arrest without warrant either by a policeman or by a private person can be justified only if it is an arrest on a charge made known to the person arrested." 32 The terminology used in these old authorities varied somewhat and may be the cause of some variation of the language used by their Lordships. This in turn raises a question whether there is a difference in the statement of principle amongst their Lordships, a matter considered by Ipp JA in State of New South Wales v Delly, to which I return below. However, some reference to Viscount Simon's resort to the old writings is appropriate at this point to demonstrate the different language used. 33 One of the texts to which Viscount Simon referred was Burn's Justice Of The Peace, (described by his Lordship as "a work of acknowledged authority which has gone through more than thirty editions", having first appeared in 1755), where the author (at Vol 1, 302) stated: "… where a constable acts without warrant by virtue of his office of constable, he should, unless the party be previously acquainted with it, notify that he is a constable, or that he arrests in the Queen's name, and for what ." (emphasis original)

His Lordship also referred to Hale's Pleas of the Crown (Vol II, c 10, 82), where the authors state that where a person is arrested on suspicion, the arresting person " must acquaint the party with the cause of his arrest " (emphasis added). Viscount Simon considered that in the more modern text, Archibald's Metropolitan Police Guide (7 th ed), at 713, the same: "… general rule was affirmed [it should be noted at this point that his Lordship's language changes so as to make reference to 'the charge' for which the arrest is made] that the person making the arrest should, at the time, state on what charge the arrest is being made." 34 Viscount Simon, at 587, then referred to a number of old authorities, including Mackalley's Case (1611), 9 Co Rep 65b, Cro Jac 279, 14 Digest 313, 3288, where it was held, relevantly, that the arresting officer ought to show "for what cause he made the arrest". His Lordship then summarised the principles which he considered were established in the old authorities in the passage reproduced at [30], above. 35 The next major opinion was that of Lord Simonds, who approached the consideration of whether an arrest was lawful first by looking at the position where a person was arrested upon a warrant. His Lordship observed that in that case, "the warrant should state the charge upon which the arrest is made". His Lordship continued: "I can see no valid reason why this safeguard for the subject should not equally be his when the arrest is made without a warrant. The exigency of the situation, which justifies or demands arrest without a warrant, cannot as it appears to me, justify or demand either a refusal to state the reason of arrest or a mis-statement of the reason ." (at 592; emphasis added)

(Having regard to the facts of Christie v Leachinsky , it is likely that his Lordship's comment as to the misstatement of the reason was directed to the circumstances where a person was purportedly arrested without warrant for one offence, when in fact the arresting person had in mind another offence altogether. This statement has importance to the matters before the Court for reasons to which I will return.) 36 At 593, his Lordship stated that "the arrested man is entitled to be told what is the act for which he is arrested", although it was not necessary for there to be any technical precision in the words used. As his Lordship observed, at 593: "… it is not an essential condition of lawful arrest that the constable should at the time of arrest formulate any charge at all, much less the charge which may ultimately be found in the indictment. But this, and this only, is the qualification which I would impose upon the general proposition. It leaves untouched the principle, which lies at the heart of the matter, that the arrested man is entitled to be told what is the act for which he is arrested. The 'charge' ultimately made will depend on the view taken by the law of his act. In ninety-nine cases out of a hundred the same words may be used to define the charge or describe the act, nor is any technical precision necessary: for instance, if the act constituting the crime is the killing of another man, it will be immaterial that the arrest is for murder and at a later hour the charge of manslaughter is substituted. The arrested man is left in no doubt that the arrest is for that killing. This is, I think, the fundamental principle, viz., that a man is entitled to know what…are 'the facts which are said to constitute a crime on his part.' If so, it is manifestly wrong that a constable arresting him for one crime should profess to arrest him for another. Of what avail is the prescribed caution if it is directed to an imaginary crime? And how can the accused take steps to explain away a charge of which he has no inkling? " (emphasis added; citation omitted) 37 Lord du Parcq, after reviewing the old authorities, stated, at 598: "The principles established by the authorities are agreeable to common sense, and follow from the governing rule of the common law that a man is entitled to his liberty, and may, if necessary, defend his own freedom by force. If another person has a lawful reason for seeking to deprive him of that liberty, that person must as a general rule tell him what the reason is, for, unless he is told, he cannot be expected to submitted to arrest, or blamed for resistance. The right to arrest and the duty to submit are correlative." 38 His Lordship considered, at 599-600, that the following cross-examination of the arresting officer correctly stated the duty imposed by the common law: "(Q) When a man is arrested, immediately on arrest he is told what he is arrested for, is he not? - By me; I always tell him what he is arrested for. (Q) The law is, even if you be a police officer of the highest rank, you cannot detain a man without telling him why he is detained, can you? - He should be told why he is detained. (Q) At once? - Yes. (Q) Meaning by "at once" the earliest reasonable moment? - The earliest reasonable moment." 39 His Lordship then stated, at 600: "The omission to tell a person who is arrested at, or within a reasonable time of, the arrest with what offence he is charged cannot be regarded as a mere irregularity. Arrest and imprisonment, without a warrant, on a charge which does not justify arrest, are unlawful and, therefore, constitute false imprisonment, whether the person making the arrest is a policeman or a private individual." 40 Finally, Lord du Parcq observed, at 601: "If when a charge which does not justify arrest has been expressly made the person charged is entitled to resist apprehension, I find it impossible to suppose that the law will hold the arrest good if it subsequently appears that the officer had in his own mind an unexpressed suspicion that a felony had been committed … But, if a reason has been stated which is, on the face of it, insufficient to justify arrest without warrant, no man could safely defend his liberty if some other ground for the arrest, which the officer had deliberately chosen to conceal from him, could subsequently be brought forward by way of justification."

(Lords Thankerton and Macmillan each agreed with the opinions of the other members of the House of Lords.) 41 The rationale for the principle stated in Christie v Leachinsky was explained by Ipp JA in State of New South Wales v Delly at [9], where his Honour said: "The rationale underlying the rule that persons are entitled to know why they are being arrested is that they should be put in a position to be able to give an explanation of any misunderstanding, or to call attention to others for whom they may have been mistaken, or to give some other exculpatory reason, and to assert that further inquiries may save them from the consequences of false accusation: see, for example, Christie (at 588) per Viscount Simon and (at 591-592) per Lord Simonds; [ Taylor v Chief Constable of Thames Valley Police [2004] 1 WLR 3155] (at 3162, [21]) per Clarke LJ." 42 In a case such as the present, one could add to the factors referred to by his Honour above, the proposition that if a person is sufficiently informed that a failure to comply with an official direction is an offence, the person may have an opportunity to conduct herself or himself in such a way that no offence is committed. 43 Ipp JA's observation that persons are entitled to know why they are being arrested, itself has an underlying rationale, namely, that a person is not to be deprived of her or his liberty without lawful cause. Indeed, a person's personal liberty has been described as the most basic human right or freedom: Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 per Gleeson CJ at [19]. The corollary is that "arrest is the deprivation of freedom": Donaldson v Broomby [1982] 40 ALR 525; (1981) 60 FLR 124 per Deane J at 126: 44 That this fundamental entitlement to personal liberty underpins the principles stated in Christie v Leachinsky,is apparent from the observation of Viscount Simon, at 585, that: "… a citizen who is prima facie entitled to personal freedom should know why for the time being his personal freedom is interfered with". 45 His Lordship stated that this principle was a "matter of substance". 46 The question whether an arrest was lawful in accordance with the common law principles discussed in Christie v Leachinsky arose in State of New South Wales v Delly. In that case, Ms Delly was arrested for murder in circumstances where a person had been killed in her apartment. She was in another room of the apartment when the murder occurred and, upon seeing the deceased's body, she told those responsible to get rid of it. She then cleaned up the lounge room. Police attended the apartment early the next morning and arrested her. She was not informed that she was under arrest and it followed, was not informed of any reason for her arrest. 47 At trial, the arresting officer was asked what Ms Delly was arrested for. He answered: "A. Well, the information that we had was that she had removed the wallet from Paul Harris after he was deceased, so therefore she was under arrest as either one of the principals or an accessory to that murder." 48 The Court was constituted by Ipp, Tobias and Basten JJA. Each wrote separate judgments. 49 Ipp JA, at [7], observed a difference in the language of Viscount Simon and Lord du Parcq on the one hand, and Lord Simonds on the other, as to what a person must be told by an arresting officer for the common law principle to be satisfied. His Honour considered that Viscount Simon and Lord du Parcq required that the person arrested be told of the 'charge', or 'crime', or 'offence' for which the arrest is made, whereas Lord Simonds stated that the person arrested is entitled to know the facts for which he is arrested and that it is not necessary that the arresting officer formulate a charge at the time of the arrest, let alone the charge which may ultimately be preferred. 50 Ipp JA at [8], stated that both approaches accommodated the proposition that it was not the law that an arrested person must be given detailed particulars of the case against him or her. The person must be told why they are being arrested. How much information the person needs to be given will depend on the circumstances: Taylor v Chief Constable of Thames Valley Police at 3166, [35] per Clarke LJ (with whom Sedley LJ and Sir Andrew Morritt VC agreed). His Honour noted that Lord Simonds' approach had been followed in this State in R v Kane [2001] NSWCCA 150 and by Weinberg CJ of the Supreme Court of Norfolk Island in R v McNeill (Ruling No 1) [2007] NFSC 2 (at [205]). This approach is consistent with that of Martin CJ of the Supreme Court of the Northern Territory in Clark v Trenerry (1996) 125 FLR 260. 51 For myself, I would not read the opinions of Viscount Simon and Lord du Parcq as requiring that a person should be told the charge, or crime, or offence for which he or she is arrested. Whilst both make reference to the need for a statement of the "charge", it is apparent from their Lordships' opinion overall that what is required is a statement in non-technical language of "the substance of the reason" for which it is claimed the freedom of the arrested person is to be restrained: see especially the fourth proposition stated by Viscount Simon, set out above, and the statement of Lord du Parcq, at 598 (reproduced at [37] above). It is likely that the word "charge" was used in the sense explained in other parts of their Lordships' opinions as set out above. 52 At [10], Ipp JA endorsed the approach of Lord Simonds (and implicitly rejected what he considered to be the narrower approach of Viscount Simon and Lord du Parcq). His Honour continued: "The notion that the lawfulness of the arrest depends on the police officer specifying the charge (and not on informing the person being arrested of the facts which have given rise to the arrest) goes further than is necessary to protect the position of the person arrested. Further, in my view, the notion is impractical and ignores the practical reality that the arresting officer may not be qualified or in a position to formulate the appropriate charge."

(This is the paragraph to which the trial judge referred in her judgment.) 53 Tobias JA based his reasons on Viscount Simon's third and fourth propositions. His Honour said, at [63]: "Viscount Simon's third proposition is that it is only if the person arrested 'must know' the general nature of the alleged offence for which he or she is being detained that the requirement that that person be informed of the reason why he or she has been arrested ceases to apply. True it is, as his Lordship's fourth proposition makes clear, that it is unnecessary that the arrestee be informed by the use of technical or precise language but he or she is still required to be informed in substance of the reason why he or she is required to submit to a restraint on his or her freedom. That reason must be sufficiently precise as to make it clear to the person arrested as to why the arrest is taking place which, in turn, requires the arrestor to notify the arrested person, at least in general terms, of the alleged offence or charge for which the arrest is being made: [ Adams v Kennedy (2000) 49 NSWLR 78] at 84 [24]; Abbassy v Commissioner of Police of the Metropolis [1990] 1 All ER 193 at 197-198." 54 His Honour considered that the police had failed to satisfy those requirements. He said that at the very least, the police would only be discharged of their obligation to inform Ms Delly "of the reason why she was being arrested" if she must have known that it was for some criminal offence connected with the murder (see Viscount Simon in Christie v Leachinsky). The highest the evidence went was that Ms Delly thought she "could be in trouble" when her de facto partner was arrested for the murder, because of what she had seen and what she had done in cleaning up the blood in the flat. His Honour said that concession fell short of what was necessary for Viscount Simon's third proposition to come into play. 55 Basten JA, at [102], referred to the police officer's evidence that, as Ms Delly had removed the deceased's wallet after he was killed, she was under arrest either as a principal or as an accessory to the murders. His Honour considered it was that information which should have been conveyed to Ms Delly, in order for the arresting police officer to have complied with his common law obligation. His Honour continued: "The other judgments in this Court consider in some detail the nature of the information to be conveyed by the police officer to the person being arrested. Ipp JA, adopting the language of Lord Simonds in Christie , concludes that it is not necessary for the arresting officer to 'formulate any charge at all, much less the charge that may ultimately be found in the indictment': at [7] above. The distinction sought to be drawn is between notification of a charge and notification of the act or conduct which forms the reason for the arrest. However, the use of explanatory language to define the parameters of the requirement should not be understood as drawing a distinction between two different categories of information. The information to be supplied by the arresting officer is his or her reason for carrying out the arrest. Pursuant to s 352(2) of the Crimes Act 1900 (NSW), as then in force, the arresting officer was required, with reasonable cause, to suspect the person of having committed a particular kind of offence. Unless Superintendent Little had such a suspicion, he was not entitled to arrest the Respondent. If he did have such a suspicion, it must have been with respect to an offence of the kind identified in the section. It was that suspicion which needed to be conveyed. As the authorities make clear, technical language is not required (such as reference to being an accessory after the fact) and identification of conduct will often be sufficient (I believe that X was murdered and that you stabbed him). In the present case, Superintendent Little gave evidence as to his suspicion … it was that information which should have been conveyed." 56 In my opinion, Basten JA's comment that the common law requirement as to arrest does not involve drawing a distinction between two different categories of information is correct. What must be determined is whether what a person was told was sufficient, so as to be informed of the true reason for the arrest. What is required will depend on the particular circumstances and will range from not needing to be told anything to being told both the facts which have given the police officer cause for suspicion that an offence has been committed, as well as what that suspected offence is. 57 The question whether what the person was told was sufficient "has to be assessed objectively having regard to the information which is reasonably available to the officer": Abbassy and another v Commissioner of Police of the Metropolis [1990] 1 All ER 193 per Woolf LJ at 197. His Lordship referred to Taylor v Chief Constable of Thames Valley Police at 3164. In Taylor, Clarke LJ considered that the "best statement" of these principles was to be found in Fox v UK (1991) 13 EHRR 157, where the European Court of Human Rights stated: "… any person arrested must be told in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness … Whether the content … of the information conveyed [is] sufficient is be assessed in each case according to its [own] special features."

A similar approach had been taken by Manse LJ in Wilson v Chief Constable of the Lancashire Constabulary [2000] All ER (D) 1949. 58 The reference in Fox v UK to the need to state the "legal grounds" for arrest undoubtedly derived from the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, art 5(2), which provides that a person must be told the reason for the arrest and any charge against him. The common law principle does not require a statement of the charge. Nonetheless, there may be circumstances in which the crime has to be indicated. Thus, in State of New South Wales v Delly, each of their Honours considered that the respondent needed to be told that she was being arrested in relation to the murder and why that was so.

Was Mr Johnstone informed of the true reason for his arrest? 59 The question whether Mr Johnstone was informed of the true reason for his arrest depends upon two matters: first, what was the offence for which he was arrested; and, secondly, whether what Mr Johnstone was told was sufficient compliance with the officer's common law obligation to tell him the true ground for his arrest.

Senior Constable O'Neil's evidence 60 In his evidence in chief, Senior Constable O'Neil said that after Mr Johnstone showed him the contents of his bag, he gave Senior Constable O'Neil "some identification". He was asked by counsel why he had asked for "identification" and replied that Mr Johnstone was "on an unauthorised area of the railway land". He was again asked what his intention was in asking for the identification and he responded: "A. My intention was to establish who he is and then from there make some inquiries. If I found out more details to make me more suspicious of him as a person I'd probably then would have insisted to have a bit better look inside in his bag.

Q. Otherwise what would you have done? A. Well, when I spoke to him I asked him for his name and address and he asked me what was I going to fine him. I said, look, I just want to get his name and address and basically I will do a check on him, if he has no prior histories or problems with the railways I was going to give him a caution but if he had I told him, yes, I was going to give him a fine.

Q. When you asked for identification did Mr Johnston [sic] produce any identification? A. Yeah, Mr Johnston handed me a Medicare card.

Q. Did you see a name on it? A. Yes, it had the name - I read it and it was his name he supplied Paul Johnston.

Q. When you received the Medicare Card, were you satisfied with the extent of that identification? A. No, I wasn't. I saw that he had a wallet. I was quite interested - was there any other further supporting documentation to say who he is.

Q. What sort of further information did you require, sergeant? A. I required him to supply his name and his date of birth and his address.

Q. Was the date of birth or address present on the Medicare Card you received? A. No, it wasn't.

Q. Did you ask for any further identification? A. Yes, I did.

Q. What, if anything, happened when you asked for further identification? A. He refused. He said, 'I've given you my identification,' meaning he'd given me his Medicare Card.

Q. Do you recall the word that he used when refusing to provide more identification? A. No, he said, 'You've got my identification,' and he's not giving anything else.

Q. What, if anything, did you do about that? A. Well, the reason I have had dealings in the past with people supplying identification, not knowing the person, I don't know if the identification was his or someone else. I said I needed to get his name and date of birth and address so I can verify if this is in fact who it is. He said, 'That's me.' I said, 'I don't know you. So I need to basically verify that,' and I just wanted that information so I could make some inquiries.

Q. At that point what, if anything, did you notice about Mr Johnstone's demeanour? A. Well, let's say he became a lot more defiant; a bit more hostile. He was no longer compliant. He was a bit more agitated. He wanted to go. He said, 'I want to go.'

Q. What did he say to you? A. He said, 'Give that back.' He said, 'I want to go home.' He tried to snatch the Medicare Card from me. I took my hand away so he couldn't get it.

Q. Did Mr Johnstone say he had somewhere to go, some appointment? A. No, he didn't.

Q. You told her Honour that he tried to snatch the card back. A. That's correct, yeah.

Q. Did he retrieve the card from you? A. No, I managed to keep the card from him. At that stage he did push me.

Q. What, if anything, did you say or do when Mr Johnstone pushed you? A. I said to him slightly before that basically, you know, if he didn't supply me with his name and details he would have to be arrested . Then he wanted to go, so basically --

Q. Sorry, pausing there for a moment, sergeant. When you told Mr Johnstone that if he didn't give those details he would be arrested, what offence was it your intention to arrest him with? A. He committed the offence by crossing the rail lines. Basically the offence is not supply name and address, to not supply his particulars .

Q. After you told Mr Johnstone … that he would be arrested, what, if anything, did he say or do? A. He then pushed me a further two times. I stepped back and told him that he'd be under arrest. That's when he sort of shaped his fists up. And he started like he was - like I thought okay - he knew - he'd been told he was understand [sic] arrest. But he put his fists up in a fighting stance; he was bouncing around like - I got the impression - I knew then for a fact that he wasn't going to be arrested easily." (emphasis added) 61 Charges, including a breach of the Regulation, cl 41, were laid at Wollongong police station at 3.45 pm, approximately two hours after his arrest. The cl 41 charge was in the following terms: "That Paul Henry JOHNSON [sic] on the 25 th day of August 1997, at TOWRADGI, in the State of New South Wales failed to comply with a direction under clause 41(1) of the Transport Administration regulation 1994 to supply his full name and residential address, after having been warned it was an offence to fail or refuse to comply with such " (emphasis added) 62 Senior Constable O'Neil was cross-examined as to the state of his knowledge of the elements of the offence under cl 41 at the time the charges were preferred. "Q. You knew when you preferred that charge against him that at no stage had he ever been warned by you that it was an offence to fail or refuse to comply with such a request. Is that right? A. I told him that he'd be arrested if he didn't supply his name and address. I did not use the word 'offence'.

Q. You preferred a charge against him in circumstances where you knew he had not been warned that it was an offence on his part to refuse to comply with a request for the provision of his name and address. Isn't that correct? A. That's what the charges - that would be correct.

Q. You knew that a person could not be guilty of any offence of failing to provide his name or residential address unless he had been firstly warned that it was an offence to fail to do so. Isn't that correct? A. I told him he'd be arrested if he didn't supply his name and address.

Q. You knew that if in fact he had not been warned that it was an offence, then he could not be guilty of any offence of failing to provide his name and address. Isn't that correct? A. … I wasn't aware of that at the time, but I did tell him that he'd be arrested if he didn't supply his name and address." 63 Senior Constable O'Neil reiterated that he had not used the word "offence", but that he had told Mr Johnstone that he would be arrested if he did not supply his name and address. He said, "I warned him that if he didn't give me his name and address he'd be arrested". 64 There was some difficulty with Senior Constable O'Neil's evidence, in that he gave his evidence in indirect speech and often in a summary or conclusory way. There is also confusion in his evidence as to the order in which he made various statements. The evidence of Mr Johnstone and Special Constable Fitzpatrick also requires consideration so as to obtain a complete picture of what was, or was not, said. However, given the trial judge's adverse credit finding against Mr Johnstone, I propose to consider his evidence only to the extent that he agreed with questions put to him by the respondent's counsel (on the basis that those questions must have been asked on instructions), or where his evidence did not contradict Senior Constable O'Neil's evidence. Otherwise, any dispute between Mr Johnstone and Senior Constable O'Neil will be noted.

Mr Johnstone's evidence 65 Mr Johnstone said that after the officers had searched his bag, they "asked me for ID". He said that he showed them his Medicare card, which had his name on it. He said he was then asked for more identification, so he handed his wallet to Senior Constable O'Neil, which had in it a Mine Rescue card. Mr Johnstone said that the officers kept the wallet "for a bit and then they handed it back". However, they did not hand back his Medicare card. He said that one of the officers said to him: "'I'm going to check on you and see if you've got any outstanding fines or warrants and, if not, we'll let you go.'" 66 Mr Johnstone then asked for the return of his Medicare card. There is no dispute that Senior Constable did not return the Medicare card. Mr Johnstone's evidence then differs from Senior Constable O'Neil's as to what followed. Mr Johnstone said, "When I went for it, he grabbed me." He was not able to identify which of Constables O'Neil or Fitzpatrick grabbed him, although he thought the officer was Senior Constable O'Neil. He said the officer "took hold" of his shoulder and he "pulled back", whereupon the officer gripped him in a headlock. Mr Johnstone then described a significant physical attack on him by the officers. 67 In his cross-examination, Mr Johnstone was asked: "Q. Did the police officers ever say to you, about the Medicare card, 'That's not good enough. You're going to have to come with me.' A. No, it wasn't like that.

Q. O'Neil then asked you, 'I'll record your name and details. If you have no record for railway fines, I'll caution you. If not, I'm going to fine you.' Do you remember O'Neil saying that to you? A. Yes.

Q. O'Neil said to you, 'You're not allowed on railway property. Have you any identification in your wallet with your date of birth or address on it to verify who you are?' Do you remember him saying that to you? A. No.

Q. Do you remember him saying words to that effect? A. No, he asked for ID.

Q. O'Neil then asked you, 'How do I know this is you? Have you got something else with your name on it?' A. Yes, he did.

Q. O'Neil then said, 'I'll use the radio to check out who you are. What is your date of birth and address?' Isn't that what he asked you? A. Yes, possibly, yes.

Q. At that point, can I suggest to you, you became agitated. A. No.

Q. You said, 'Give me my Medicare card. I'm going.' A. No.

Q. O'Neil, I suggest, said to you, 'If you give me your name, your address and date of birth so I can check it out, then you can go.' Isn't that what he said to you? A. Yes, he did.

Q. To which you replied, I suggest, 'Give it back. I'm going now.' A. No.

Q. Can I suggest to you that, after O'Neil stepped back - which I know you've denied - O'Neil said, 'No, if you don't give me your name, date of birth and address, I will have no option but to arrest you.' Isn't that what he said to you? A. No, he didn't say that at all. It wasn't like that."

The evidence of Special Constable Fitzpatrick 68 Special Constable Fitzpatrick said that after Mr Johnstone's bag was inspected: "A. As procedure, we just went to get some name, date of birth, just some details and just do a quick check which we always did and yeah, that's when things started to get a bit heated.

Q. Who was it that asked Mr Johnstone to produce that form of identification? A. That was [Senior Constable O'Neil. Senior Constable O'Neil] was dealing with him from the start so he was the one dealing --

Q. Was there, in your presence, any discussion between Senior Constable O'Neil and the and [Mr Johnstone] as to the adequacy of the information provided by [Mr Johnstone]. A. I'm pretty sure whatever the ID handed over was acceptable as ID but we'd still do the check because it's not a photo ID …

A. … It's just that [Senior Constable O'Neil] started taking his details and that's when Mr Johnstone started to get upset.

Q. When you say 'started to get upset', what do you mean? A. He just turned around and all of a sudden he said, 'Give me back my ID.'

Q. What happened then? A. [Senior Constable O'Neil] said, 'Hang on, I'm not finished yet. I need to get your details and do a check,' and that's when things really started to escalate.

Q. What do you mean by 'really started to escalate'? A. Mr Johnstone became more aggressive, tried to snatch the ID back. [Senior Constable O'Neil] stepped back and then from there, I can't - we ended up going hands-on. I can't remember the exact sequence of how it came to that but we both ended up going hands-on with him and that's when he ended up in a struggle." 69 Special Constable Fitzpatrick said that he knew of the requirements of cl 41, including the requirement in cl 41(3), that a person had to be warned that it was an offence to refuse to comply with a direction given under cl 41(1). He said that the Regulation was part of the three month training course provided to transit police at that time.

Was it sufficient for Mr Johnstone to be told that unless he supplied his name and details he would be under arrest? 70 I have already indicated that I understand her Honour's finding that this case fell into the qualifications to the "general principle" was a reference to Ipp JA's statement in State of New South Wales v Delly that a person does not need to be informed of the charge in respect of which he is arrested. I have also indicated my view that, depending on the circumstances, whilst a formal charge does not have to be articulated at the time of the arrest, a person may have to be told the substance of the offence for which the arrest is being made. The finding of Basten JA in State of New South Wales v Delly as to what Ms Delly needed to be told in the circumstances illustrates this. 71 It is also necessary to keep in mind that the "true reason" for an arrest has to relate to an offence or offences which the person either committed or was suspected of having committed. Senior Constable O'Neil gave evidence that the offence for which he arrested Mr Johnstone was "not supply his name and address … not supply his particulars". In other words, he arrested him for a purported breach of cl 41. It is what Mr Johnstone was told in respect of that offence which, therefore, must be considered. 72 The present case is complicated by the fact that there is no offence under the Regulation of failing to provide details to an officer when asked. A contravention of cl 41 only occurs if a person who is given a direction to provide his or her details is warned, at the time the direction is given, that it is an offence to fail to comply and the person then fails to do so. 73 Although the point was not argued, I do not see that a person can be lawfully arrested for an offence not known to the law. If I am correct in that, then for the arrest in this case to be lawful, Senior Constable O'Neil's statement to Mr Johnstone, that he would have to arrest him if he didn't give his details, had to be sufficient both to inform him that it was an offence if he did not do so and to inform him of the true reason for his arrest. That was the way the matter was argued by the State. That argument did not deal with the requirement that a warning must be given at the time that a person is directed to provide his or her details, but, for the reasons which follow, that matter can be put to one side. 74 In my opinion, the State's submission that the arrest was lawful for the reasons found by the trial judge fails for the following reasons. A person is only liable to arrest if he or she has committed an offence, or is suspected of having committed an offence. Whilst no particular form of words is required, a statement, in the context of what was happening here, that if he did not give his name and address he would be arrested, is qualitatively different from being warned that it was an offence if he did not do so. 75 This was not simply a case of Mr Johnstone being asked for his name and address and being told that he would have to be arrested if he did not supply them. Rather, he was told the officers wanted identification so that they could "check up on him" and see if he had previously been fined for railway offences. The officers informed him that if he had not previously been "in trouble" for railway offences, they would not take any action against him other than by way of a warning on this occasion. Mr Johnstone became impatient with the further demands for additional identification and details and particularly impatient when Senior Constable O'Neil refused, without any lawful basis for doing so, to return his Medicare card. It was in the course of this deteriorating situation that he was told that he would be arrested if he did not supply his details. 76 At this point, there were other possibilities why Mr Johnstone might be arrested. It might have been because the officers suspected that Mr Johnstone had crossed the railway lines, or for being on railway property (matters upon which the State relied, and which her Honour found in the State's favour). It might also have been because they suspected he had stolen copper bond, being the matter that had first excited the police officers' interest. Looked at objectively, the failure to give the additional identification and particulars might rather have been viewed as a withdrawal of co-operation and thus have simply been the catalyst for Senior Constable O'Neil to decide to arrest him on one of these other grounds. 77 Therefore, in the overall circumstances, informing Mr Johnstone that "if he didn't supply … his name and details he would have to be arrested" might have amounted to no more than telling him that if he did not co-operate and supply his details they would not go as lightly on him as they had previously intimated. Put another way, it was not self-evident from Senior Constable O'Neil's statement that the failure to provide his details was the reason, that is, the criminal conduct, for which Mr Johnstone would be arrested. Words which are equivocal or which do not self-evidently refer to the true ground for the arrest, as was the case here, would, in most circumstances, be inadequate to satisfy the common law requirements for an arrest and, being equivocal, did not bring the case within the qualifications to the general principle, as found by the trial judge. In my opinion, the words used here were inadequate to inform Mr Johnstone of the true reason for his arrest. 78 There is another reason why I consider that the State's submission fails. It overlooks what happened after Mr Johnstone was told he would be under arrest if he didn't provide his details. On Senior Constable O'Neil's evidence, Mr Johnstone pushed him. Although not entirely clear, the sequence of events appears to be that it was after Mr Johnstone pushed him that Senior Constable O'Neil told him he would be arrested if he did not provide his details. Mr Johnstone pushed him twice more. Senior Constable O'Neil stepped back and told him "he'd be under arrest". Mr Johnstone then put his fists up in a fighting stance. Senior Constable O'Neil explained, "He'd been told he was understand [sic] arrest" and it was at that point that the officers grabbed Mr Johnstone. As I understand this evidence, it was when Mr Johnstone pushed him on the second occasion that Senior Constable O'Neil told him he was under arrest. 79 By this stage, Senior Constable O'Neil's earlier statement, that Mr Johnstone would be under arrest if he did not provide his details, was rather remote. Even if that was what Senior Constable O'Neil intended, things had moved on. Mr Johnstone was told he was under arrest after he pushed Senior Constable O'Neil. How a person would reasonably connect the earlier statement with the arrest, which followed Mr Johnstone pushing Senior Constable O'Neil, is elusive. In my opinion, a reasonable connection cannot be made. 80 Accordingly, for the reasons I have given, I am of the opinion that what Mr Johnstone was told was not sufficient to inform him of the true reason for his arrest. It follows, in my opinion, that the arrest was unlawful. 81 My conclusion that the arrest was unlawful is sufficient to dispose of the appeal. However, should I be in error in this conclusion and as the other issues were argued by the appellant, it is appropriate that consideration be given to these further issues.

Issue 1(b): compliance with the Crimes Act , s 352 82 At the time of the alleged commission of the offences, s 352 conferred on an officer of police a power to arrest without warrant in the following circumstances: " 352 Person in act of committing or having committed offence

(1) Any constable or other person may without warrant apprehend, (a) any person in the act of committing, or immediately after having committed, an offence punishable, whether by indictment, or on summary conviction, under any Act, (b) any person who has committed a felony for which he has not been tried, and take him, and any property found upon him, before an authorised Justice to be dealt with according to law.

(2) Any constable may without warrant apprehend, (a) any person whom he, with reasonable cause, suspects of having committed any such offence or crime, (b) any person lying, or loitering, in any highway, yard, or other place during the night, whom he, with reasonable cause, suspects of being about to commit any felony, and take him, and any property found upon him, before an authorised Justice to be dealt with according to law." 83 The trial judge considered that there was no need to decide whether Mr Johnstone had contravened cl 41, as the transit officers had reasonable cause to suspect that Mr Johnstone had contravened cls 14 and 29 and that those were offences for the purposes of s 352. There is no issue as to this latter finding. 84 However, Mr Johnstone challenges her Honour's factual findings that he was on the platform and walked off the southern end (where there was no passenger exit) and then crossed the railway lines. If that challenge succeeds, there was no breach of cl 41, because the officers were not entitled to direct Mr Johnstone to provide his name and address, unless they suspected that he had committed an offence in breach of the Regulation. It followed on that argument, that neither provision of s 352 had been satisfied and, accordingly, that there was no lawful basis upon which the officers could arrest Mr Johnstone without a warrant. 85 However, if I am correct that the arrest was not lawful because Senior Constable O'Neil failed to comply with his common law obligations in respect of the arrest, this question does not arise. Further, the success of this argument on Mr Johnstone's case substantially depends on the essential factual findings made by her Honour being overturned. As I explain below, this matter will have to be remitted to the District Court for retrial. Accordingly, this Court ought not to enter into the determination of the factual matters that Mr Johnstone puts in issue, which depend entirely on whose evidence is accepted. However, there is an aspect of this particular issue upon which I propose to comment. 86 Her Honour held that the officers had reasonable cause to suspect that Mr Johnstone left the platform in contravention of cl 14 and crossed the railway line in contravention of cl 29. Her Honour was satisfied, therefore, that there were grounds on which Senior Constable O'Neil could proceed to arrest Mr Johnstone. This was a determination that the arrest was lawful pursuant to the Crimes Act, s 352(2). 87 In my opinion, that aspect of her Honour's reasoning was in error. 88 Section 352(2) provided that an officer may arrest a person without warrant, if, "with reasonable cause", the officer suspects the person of having committed "any such offence or crime". The words "any such offence or crime" refer back to the terms of subs (1), which refers to "an offence punishable whether by indictment or on summary conviction under any Act". However, Senior Constable O'Neil's evidence was that the reason for the arrest was a breach of the Regulation, cl 41. 89 In my opinion, s 352(2) is directed to an arrest for the crime the person is suspected of having committed. Otherwise, its link with the common law requirements discussed above, and part of a police officer's statutory obligation, is not only undermined, but completely negated. It is a nonsense to assert that a police officer could lawfully arrest without warrant for one cause and at the same time tell the person that the reason for the arrest is some other cause. Significant portions of the opinions in Christie v Leachinsky were directed to explaining that such a result is not permissible. 90 Accordingly, in order to find that the requirements of s 352 had been satisfied, her Honour needed to be satisfied that Senior Constable O'Neil had reasonable grounds to suspect Mr Johnstone had contravened cl 41, not that he had reasonable grounds to suspect that Mr Johnstone had contravened either or both cls 14 or 29. Whether Senior Constable O'Neil's ignorance of the requirements of cl 41(3) enabled him, with reasonable cause, to suspect that an offence under that clause had been committed, was not argued on the appeal. Whilst I doubt that there would be "reasonable cause" in such circumstances, I express no concluded view on the matter. 91 The State sought to support the trial judge's determination on the basis that it was sufficient that there was a crime which the arresting officer, with reasonable cause, suspected of having been committed and, that the contravention of cl 29 was one of the matters that Senior Constable O'Neil had considered when deciding to arrest Mr Johnstone. The evidence to which reference is made is that set out above at [60], but which for convenience I set out again: "Q. Sorry, pausing there for a moment, sergeant. When you told Mr Johnstone that if he didn't give those details he would be arrested, what offence was it your intention to arrest him with? A. He committed the offence by crossing the rail lines. Basically the offence is not supply name and address, to not supply his particulars." 92 In my opinion, the State's submission involves a wrong reading of this evidence. As I understand this part of Senior Constable O'Neil's evidence, the reference to crossing the railway lines was a slip, immediately corrected in the following reference to Mr Johnstone's failure to give his name and address. The reason for the arrest was the suspicion of a contravention of cl 41, not a breach of cl 29. However, if the State's understanding of this evidence is correct, then there was a failure to comply with the common law obligation discussed above, as Mr Johnstone was not told that he was under arrest for a contravention, or suspected contravention, of cl 29. 93 The effect of my reasoning is that I find her Honour did not determine the matter that called for determination on this issue, namely, whether the arrest was authorised under s 352(2) in respect of the suspected contravention of cl 41. However, in circumstances where I have concluded that the arrest was unlawful in any event, I would not propose that this issue be remitted for redetermination.

Other issues 94 There are two further issues which are appropriate to consider. The first is whether Mr Johnstone was entitled to move off the railway platform onto and/or be on railway land, because of the existence of an implied licence. The second is whether her Honour was entitled to take the medical reports into account in determining credit questions. Both issues involve a question of principle and do not require this Court to engage in factual findings.

Issue 4: implied licence 95 Mr Johnstone contended that he was on the railway land pursuant to an implied licence. He relied upon the following evidence to support this claim: "Q. Was there any sort of sign on the fence where the hole was indicating you shouldn't have access to - A. I didn't notice any.

Q. When one proceeded down towards Fairy Meadow, which is to the south, and ultimately Wollongong, was there some track or roadway or laneway? A. Yes, there was a roadway.

Q. Had you seen people walking along that before? A. Yes." 96 Whether an occupier of land has granted a licence to another is essentially a question of fact. However, a licence may be implied as a matter of law. In Halliday v Nevill [1984] HCA 80; (1984) 155 CLR 1 Gibbs CJ, Mason, Wilson and Deane JJ said, at [6], 7-8: "While the question whether an occupier of land has granted a licence to another to enter upon it is essentially a question of fact, there are circumstances in which such a licence will, as a matter of law, be implied unless there is something additional in the objective facts which is capable of founding a conclusion that any such implied or tacit licence was negated or was revoked (cf. Edwards v. Railway Executive (1952) AC 737, at p 744). The most common instance of such an implied licence relates to the means of access, whether path, driveway or both, leading to the entrance of the ordinary suburban dwelling house. If the path or driveway leading to the entrance of such a dwelling is left unobstructed and with entrance gate unlocked and there is no notice or other indication that entry by visitors generally or particularly designated visitors is forbidden or unauthorized, the law will imply a licence in favour of any member of the public to go upon the path or driveway to the entrance of the dwelling for the purpose of lawful communication with, or delivery to, any person in the house. Such an implied or tacit licence can be precluded or at any time revoked by express or implied refusal or withdrawal of it." 97 Brennan J, at [18], 19, observed that such a licence is "fairly to be implied in the generality of cases as an incident of living in society". It is apparent from the High Court's description of the circumstances in which a licence will be implied, that the licence, so implied, is likely to be general and unrestricted. 98 There are two considerations, in my opinion, which deny Mr Johnstone's claim that he was on railway land pursuant to an implied licence. First, the evidence upon which he relies is not sufficient to establish a licence implied by law. Secondly, any such licence would have been in direct conflict with the terms of the Regulation. 99 On Mr Johnstone's own case, he had entered onto the railway land through a hole in the fence. The existence of the fence contradicts the likelihood of there being a licence. The fact of there being a hole in the fence bespeaks an absence of repair and perhaps a lack of maintenance, not a permission to enter. Nor does the fact that other persons might have entered upon railway land create a licence in favour of persons generally, or Mr Johnstone in particular. A tolerated trespass does not give rise to an implied licence. Nor can estoppel be relied on in the face of the provisions of the Regulation: see St Alder & Ors v Waverley Local Council & Anor [2010] NSWCA 22.

Issue 5: the credit findings 100 Mr Johnstone submitted that the trial judge erred in using the medical evidence to find: "(a) that [Mr Johnstone] was suffering from a psychiatric condition as at 26 August 1997; and

(b) that such a condition made his version of events untenable." 101 In my opinion, this submission should be rejected. The Evidence Act 1995, ss 55 and 56 provide as follows: " 55 Relevant evidence

(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

(2) In particular, evidence is not taken to be irrelevant only because it relates only to:

(a) the credibility of a witness, or (b) the admissibility of other evidence, or (c) a failure to adduce evidence.

(1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.

(2) Evidence that is not relevant in the proceeding is not admissible." 102 In ASIC v Vines [2003] NSWSC 995; 48 ACSR 282 Austin J said, at [22]: "It is notable that both s 55 and s 56 address the question whether evidence is admissible in a proceeding . Where a plaintiff seeks to make out separate cases against several defendants in a single proceeding, the question to which the Evidence Act provides an answer is whether evidence is admissible in the proceeding, not whether evidence is admissible to prove the plaintiff's case against a particular defendant. The answer it gives is that if the evidence is relevant, it is admissible. Once it is admitted, it is evidence in the proceeding, and therefore available to be used for any purpose, unless one of the exclusionary rules of the Act or any surviving general law exclusionary rule applies, or the Court makes use of its statutory discretions to exclude admissible evidence or limit its use."

This statement was approved by Bergin J (as her Honour then was) in Mark Silbermann v CGU Inusrance Limited; John Huyshe Greaves v CGU Insurance Limited; John David Rich v CGU Insurance Limited; One.Tel Limited (In Liq) v Rich & Ors [2003] NSWSC 1127; 48 ACSR 231 at [17]. 103 The Court retains a discretion to limit the use to which evidence may be put if there is a danger that a particular use of the evidence might be unfairly prejudicial to a party, or be misleading or confusing: the Evidence Act, s 136. No application was made under s 136, nor was it suggested that there was a breach of procedural fairness in her Honour using the evidence in this way. 104 In my opinion, subject to an application and ruling made under s 136, the evidence of the medical experts was available for her Honour to utilise in the way she did in respect of her credit findings.

Consequences of finding that the arrest was unlawful: extent of the retrial 105 My conclusion that the arrest was unlawful means that Mr Johnstone was wrongly arrested, wrongly imprisoned and was assaulted. It is not necessary, therefore, to determine whether the officers used excessive force in effecting the arrest. The trial judge did not provisionally assess damages. Both parties recognised that, given the substantial credit issues involved in this case, the matter would have to be remitted to the District Court for the determination of damages. Given that there is to be a remittal, it is inappropriate for this Court to embark upon a consideration of the challenged factual findings of the trial judge, many of which are relevant to the extent of Mr Johnstone's injury. It is also inappropriate to determine whether Senior Constable Munn engaged in a separate assault upon Mr Johnstone, as that matter is interwoven with what happened in the immediate aftermath of the purported arrest. 106 Thus, I consider that there should be a retrial limited to the question whether Senior Constable Munn assaulted Mr Johnstone and the question of damages. In proposing this course, I am conscious of the decisions of the High Court in Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 and CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 224 ALR 1. However, as I have determined the question whether the arrest was lawful based on Senior Constable O'Neil's evidence, and thus on the most favourable basis to the State, I consider it would be an injustice to set aside the matter at large. 107 Accordingly, I propose the following orders:

2. Set aside orders (1) and (2) made by the trial judge;

3. Remit the matter to the District Court for determination of the question of damages and the question whether Senior Constable Munn assaulted the appellant;

4. Order that the respondent pay the appellant's costs both of the first instance hearing and of the appeal. 108 McCOLL JA: I have read Beazley JA's reasons and, subject to what appears below, I agree with her Honour's reasons and with the orders her Honour proposes. 109 The appellant complained (Ground 6) that the primary judge impermissibly used evidence adduced in support of a medical issue in the case to make adverse findings and, in particular, as a reason for preferring Senior Constable O'Neil's evidence to his. The medical issue, prima facie relevant only to the question of damages, was whether the events of 26 August 1997 had caused the appellant to suffer from psychiatric conditions, the symptoms of which included a fear of police, feelings of anger, frustration, depression, hyper vigilance, post-traumatic stress disorder and specific phobia (situational type). 110 The primary judge did not address the issue of damages. However, in dealing with liability she devoted close attention to the appellant's psychiatric condition, commencing with consideration of the fact that he had been scheduled to Long Bay Hospital on 28 August 2006, some nine years after his arrest. Her Honour then considered what she described as the appellant's counsel's submission that the appellant's pre-disposition for paranoid delusional disorder was precipitated or exacerbated by the arrest (a submission undoubtedly made to address the damages issue) and, in turn, the respondent's submission that the appellant had a constitutional disorder which pre-dated the incident, progressed over time and accounted for the appellant's "irrational and violent reaction to the transit officers who then arrested him" - a submission which appeared to be intended to go to liability (and possibly damages as well, insofar as it addressed the appellant's psychiatric condition as the time of the incident). 111 The primary judge considered the psychiatric evidence, She said she preferred the opinions of Dr Pickering, who was qualified by the appellant's solicitors and Dr Champion, who was qualified by the respondent's solicitors to that of Dr Clark (also qualified by the appellant's solicitors) where they conflicted. Both Drs Pickering and Champion, according to her Honour's reasons, were of the opinion that the appellant had a paranoid condition which predated his arrest. Her Honour concluded that she was: "… satisfied that the behaviour of the plaintiff in the years leading up to August 1997 is consistent with the emergence of the first symptoms of a paranoid psychotic illness, in particular a perception that he was being persecuted. Further the behaviour of the plaintiff on the day can, even on the plaintiff's own evidence, be characterised as an overreaction to being asked for his address and date of birth and a refusal to return his Medicare card. This is again consistent with the plaintiff perceiving the transit officers as persecutors and consequently resisting their attempt to obtain information and then arrest him." 112 The appellant complains that her Honour's conclusion was not one which emerged from the evidence. In particular he submits that none of the psychiatrists who were called were asked to comment on the possibility, or indeed probability, that an explanation for the appellant's behaviour on the day was that he was suffering from a psychotic illness, in particular a perception that he was being persecuted. 113 Neither the appellant's nor the respondent's submissions in this Court drew attention to any evidence which touched on this issue. However, in his address at the end of the trial, Mr Giagos, who appeared for the respondent, drew the primary judge's attention to the following evidence of Dr Pickering and Dr Clark. 114 Mr Giagos first drew her Honour's attention to Dr Pickering's answer to the following question: "Q. People who suffer from paranoia in the various shades that it manifests itself, from a disorder all the way though to the psychosis, is it the case that those people, when confronted by people they perceive as persecutors, tend to react in an aggressive or agitated way? A. They may react with fear; they may react with aggression; they may react with suspicion, hostility, but certainly there is an increased likelihood that such people will react to lower levels of threat as it they were high levels of threat, to relatively innocuous things as if they were some kind of threat. So with those perceptions, the risk of an actual violent or resistive response - if one perceives that police officers are there to persecute, then an arrest is much more likely to be resisted, and resisted perhaps even violently." 115 The primary judge summarised Dr Pickering's answer, commenting that in her opinion "this describes the behaviour of the plaintiff if the evidence of the officers is accepted." 116 Mr Giagos also read to her Honour the following passage in Dr Clark's evidence: "Q. You would not be surprised if a person suffering from that condition approached by police officers in these circumstances - walking on railway land - may react aggressively or in an agitated way? A. Yes.

Q. Indeed irrational? A. Indeed, yes." 117 Mr Giagos submitted that what happened during the incident between the appellant and the officers was consistent with the medical evidence, inferring, I gather, that the officers' evidence was to be accepted because the appellant's reaction to the events of the day could be attributed to his psychiatric condition. 118 The primary judge did not expressly refer to Dr Clark's evidence, save perhaps to the extent her Honour described the appellant's behaviour on the day as an "over-reaction". 119 In reply, Mr Kennedy SC disputed that the appellant's reaction to the officers' approach was consistent with a pre-existing psychiatric condition. Rather, he pointed out the appellant had behaved reasonably until Senior Constable O'Neil refused to return his Medicare card, and, indeed, had put it in his pocket, which Mr Kennedy submitted was "a most provocative thing to do in all the circumstances." He drew her Honour's attention to an observation which appears to have fallen from Phelan DCJ when dismissing the charges against the appellant, that the appellant was entitled to seek to recover the Medicare card. 120 As Young JA has explained, the officers exceeded their lawful authority in requiring the appellant to hand over his Medicare card, let alone in Senior Constable O'Neil placing it in his pocket. This was indeed, as Mr Kennedy submitted, a provocative act. 121 As the primary judge's factual findings set out above (at [12]) make plain, the appellant cooperated with the officers, save to the extent that he refused to produce identification showing his name, date of birth and address, a request that went beyond that which they were authorised to make, assuming cl 41 otherwise applied. It was only after Senior Constable O'Neil told the appellant that if he did not supply his name and details he would have to be arrested that the appellant, first, sought to retrieve his Medicare card becoming "defiant, hostile and agitated" and then, accepting as has Beazley JA the respondent's evidence at its highest, "pushed Senior Constable O'Neil and shaped up in a fighting stance." 122 It was then that a struggle ensued. 123 It is difficult, with respect, to apply, as the primary judge appears to have done, the evidence from Drs Pickering and Clark to these circumstances and, in doing so, to reach a conclusion that the officers' version of events was to be preferred. 124 Both Dr Pickering's and Dr Clark's evidence contemplated a scenario in which, with no intervening circumstances, a person suffering from paranoia may react hostilely to police officers. It does not appear the answers by either of the doctors on which Mr Giagos (and, in turn, her Honour) relied was elicited by specific reference to the circumstances of this case. When viewed in that context I would not conclude that the appellant's response, at least to the extent that he sought to recover his Medicare card, was either unduly hostile or irrational. Not having been properly informed why he might be about to be arrested, it may be thought, as the following discussion reveals, that he was seeking to defend his liberty. 125 In my view the primary judge could not rely on Dr Pickering's (and, if she did, Dr Clark's) evidence to make an adverse liability finding. In so doing, her Honour appears to have impermissibly made use of general medical opinions given without specific reference to the facts. 126 The other concern I have about the primary judge's use of the medical evidence to make findings of fact about what occurred in the critical incident lies in her Honour's failure to consider Mr Kennedy's submission that, in the circumstances, the appellant was entitled to react as he did. 127 In my view, in considering the circumstances surrounding the arrest, her Honour ought to have taken into account the fact that the "governing rule of the common law [is] that a man is entitled to his liberty, and may, if necessary, defend his own freedom by force": Christie v Leachinsky [1947] AC 573 (at 598) per Lord du Parcq; see also Lord Simonds (at 591): "every citizen … should be entitled to resist arrest unless that arrest is lawful." It was for this reason that the House of Lords regarded it as mandatory that police officers inform a person being arrested of the reason for their apprehension, for it was only if that information was conveyed that the person could determine whether they had a duty to submit: see, in addition to the above citations, Lord Simonds (at 595), Viscount Simon (at 587). 128 While it might be accepted, as Lord du Parcq also said (at 599), that the law "does not encourage the subject to resist the authority of one whom he knows to be an officer of the law"; nevertheless as a general rule a person subject to an unlawful arrest is entitled to use reasonable force to free him or herself: Police v Dafov [2008] SASC 247; (2008) 102 SASR 8 (at [90]) per Vanstone J; White J agreeing (at [95]). 129 As Beazley JA has concluded, the appellant's arrest was unlawful and he was entitled, accordingly, to use reasonable force to free himself. (It is unnecessary to determine whether such force as he did use was reasonable.) The primary judge did not take this into consideration when she preferred the respondent's account of the incident on the basis of her opinion about the appellant's psychiatric condition. This was, in my view, an error. 130 Even assuming the primary judge's inference about the appellant's psychiatric condition was correct, an equally available inference was that the appellant was reasonably resisting an unlawful arrest. Her Honour ought to have considered both possibilities in seeking to make findings of fact. 131 YOUNG JA: I agree with Beazley JA, but would add some additional comments. 132 Traditionally, arrest in respect of a relatively trivial offence, including one where the maximum penalty is a fine in the lower range of penalties, is a measure of last resort. The community expects good police officers not to be over ready to arrest people, especially for minor offences. Whilst this may be irrelevant to the question of the lawfulness of an arrest, it is worth repeating. 133 In the instant case one suspects that the altercation came about because the police retained the appellant's Medicare card. The appellant was a person of no fixed abode in ill health and that card may have been his most valued possession. The police apparently were oblivious of this. 134 On the other hand, the police had a standard procedure of checking identity, a process which also would probably call up for them prior offences. The police considered that this was a normal and necessary procedure. The evidence suggested that there had been occasions where they had been given a false name and address or a stolen identity card. 135 Unfortunately for the police, the legislation did not authorise retaining the Medicare card nor detaining the appellant while they made further enquiries. 136 The Regulation merely compelled the appellant to state his full name and residential address. It did not authorise an officer to compel the production of identification. Further, if the citizen produced identification, all that he would need to do would be to hold onto it and display it sufficiently for the police to inspect it. There would be no need to hand it to the police: see R v Longman [1988] 1 WLR 619. **********

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