(a) Questions as to the vicarious liability of the Crown in respect of the actions of police officers before 28 October 1983
74 The Crown at common law enjoyed an immunity in respect of the exercise of the independent discretion of a constable of police officer in the exercise of powers incidental to his or her office. The relevant principle underpinning this position was that, if the law charges a public officer with a discretion and a responsibility in the execution of an independent legal duty, that public officer is solely responsible for tortious acts which may be committed in the course of the office. The government or body, which he or she serves or which appointed the officer, incurs no vicarious liability for such acts: The Laws of Australia, 33.6.610. This doctrine was enunciated by the High Court in Enever v The King (1906) 3 CLR 969.
75 The relevant police officers in respect of the 1980 charge were constables appointed under s.6 of the Police Regulation Act 1899. Section 6 of that Act provided as follows:-
"6(1) The Commissioner may, subject to disallowance by the Governor, appoint so many sergeants and constables of police, of such grades as are specified by rules made under this Act, as he deems necessary for the preservation of the peace throughout New South Wales.
(2) Such constables shall, unless and until their appointments respectively are disallowed by the Governor, have all such powers, privileges, and advantages and be liable to all such duties and responsibility as any constable duly appointed now has or hereafter may have either by the common law or by virtue of any statute now or hereafter in force in New South Wales."
76 The State relied upon the principle in Enever (supra) in support of its contention that it was not vicariously liable at common law.
77 In Enever (supra), the appellant was wrongfully arrested in a public street in Hobart by a police constable purporting to act in discharge of his duty and detained by him upon a false charge that he had committed a breach of the peace.
78 The appellant brought an action against the Government of Tasmania and a jury returned a verdict in his favour.
79 In determining whether or not the Government was responsible for the police officer's wrongful act in arresting a person without a warrant pursuant to the Police Act 1865, it was necessary for the Court to consider the nature of the office of a constable and what, according to the law of Tasmania, was the nature of the relationship between a constable and the Executive Government by whom he was appointed.
80 In his judgment in Enever, Griffith CJ observed that at common law the office of constable or peace officer was regarded as a public office and the holder of it as being, in some sense, a servant of the Crown. The Chief Justice held that the Full Court of the Supreme Court of Tasmania, had been correct in holding that the constable, in effecting the arrest, was not acting as an officer, agent or servant of the Government of Tasmania, so as to make the Crown responsible for his act.
81 The analysis that led to this conclusion was based, firstly, upon the nature of the office and, secondly, on the relationship between the Government and the police officer. At common law, constables had large powers that were necessarily incidental to the discharge of their functions as peace officers or conservators of the peace, amongst which the most important was the authority to arrest on suspicion of felony. Griffith CJ observed (at 976), that it was settled law that, although a peace officer was himself responsible for unjustifiable acts done by him in the intended exercise of his lawful authority, no responsibility for such acts attached to those by whom he was appointed.
82 As to the second aspect, Griffith CJ considered the general doctrine of the law of agency applied in the case of a constable. That was said to lead to the same conclusion as the first of the two bases for his analysis. The Chief Justice observed that the powers of a constable, qua peace officer, whether conferred by common law or statute, are exercised by him by virtue of his office, and cannot be exercised on the responsibility of any person but himself. If he arrests on suspicion of felony, the Chief Justice stated, the suspicion must be his suspicion, and must be one that is reasonable to him.
83 Accordingly, Griffith CJ concluded that a constable, when acting as a peace officer, is not exercising a delegated authority. His authority is an original one, and the general law of agency has no application.
84 In the same case, Barton J (at 982), dealt with the argument that the appellant police officer was, on the occasion in question, acting as the servant of the Government in such a sense that the maxim respondeat superior applies. His Honour rejected the proposition and dealt with the question as to the responsibility residing in a superior based upon that maxim. His Honour stated that for it to apply, it was plain that the person to whose act it is sought to attach responsibility to the superior "… must have been under the control of that superior at the time of the doing of the act … It appears to me that in order to establish that position, it must be shown that the control, if any, under which the person acted was that of the Executive Government of the State. The difficulty of sustaining that position was obvious …" (at p.982).
85 The question of "control" was raised in the submissions for the plaintiff in the present case, in that it was argued that "… from the hierarchical structure of the NSW Police Force, that junior officers were, in preparing statements of evidence in preparing the matter for hearing, were under the direction and control of superior officers. The superior officers were Knox and Ross, with Knox being the superior officer. The planting of the evidence, the planning of the operation, the arrest, the charging, the preparation of witness statements and the prosecution was all done under the direction and control of the superior officers, Knox and Ross, but particularly Knox …" (p.19).
86 It was submitted on behalf of the State that it had no control, power or authority over the police officers in question in these proceedings for any of the acts that they were alleged to have carried out such as to give rise to vicarious liability.
87 It was also submitted on behalf of the State that the fundamental proposition as expressed by Lee J in Griffiths v Haines [1984] 3 NSWLR 653 was that a constable of police performed a public duty and exercised an original authority which was not subject to the control of the Government. It was observed in submissions that that independent authority came from the common law and from s.352(1) and (2) of the Crimes Act 1900 (relating to the power to apprehend without a warrant in circumstances referred to in each sub-section).
88 The State also relied upon dicta of the High Court in New South Wales v Ibbett (2006) 229 CLR 638 in which (at paragraph [4]) reference was made to Enevers case and Griffiths v Haines (supra) and wherein it was stated:-
"In former times, the circumstance that police officers often acted in the exercise of common law or statutory powers and according to 'independent' discretions would have taken an action such as that of [the appellant] outside the scope of the vicarious liability of the Crown."
89 It was, accordingly, argued on behalf of the State that, for there to be vicarious liability, the State must be "the master exercising control over the police officer and not the 'superiors of the police officers' (Plaintiff's Submissions of 25 June 2007, pp.19 and 20) …" (First Defendant's Outline of Submissions, paragraph [61]).
90 I accept the State's submission on his aspect. The control as alleged by the plaintiff by Messrs Knox and Ross is not, in my opinion, control of a kind that, at common law, would make the State liable under the maxim respondeat superior. For that principle to apply the control under which the police officer or officers acted must be that of the Executive Government of the State. There is, of course, no suggestion of such control in the present case.
91 In the final submissions for the plaintiff, it was accepted that, where a police officer exercises an independent discretion, the State is not vicariously liable for the wrongful exercise of that discretion (p.19). However, reliance was placed upon what were said to be the observations of Yeldham J in Oriental Foods (Wholesalers) Co Pty Limited v Commonwealth (1983) 50 ALR 452.
92 However, the passage relied upon by the plaintiff in Oriental Foods (supra) was, in fact, an extract from the text, Liability of the Crown (1971) by Professor Hogg at p.104 to 106 which text was quoted by Yeldham J in his Honour's judgment.
93 Oriental Foods (supra) involved an application for summary disposal of the plaintiff's claim against the Commonwealth of Australia for damage to and loss of food stuffs imported into Australia. Certain goods were opened and examined by Customs officials under the Customs Act 1901 (Cth). It was held that there was no question of the exercise of an independent authority but rather the performance of a purely ministerial and somewhat menial task and this did not involve "special duties' and discretions of the type considered by the High Court in Baume v Commonwealth (1906) 4 CLR 97. I do not consider that Oriental Foods (supra) is of any assistance to the plaintiff's case on the question of vicarious liability of the Crown at common law.
94 On the facts of the present case, even if it be assumed for the purpose of analysis that there were acts by police officers by way of fabricating evidence and otherwise acting improperly in relation to the arrest and charging of the plaintiff at the direction of superior officers, those superior officers, like other officers were themselves subordinate officers, albeit of a higher rank. As I have earlier noted, there is no evidence that any such acts were performed under or by reason of any form of control exercised by the Executive Government.
95 In Attorney General for NSW v Perpetual Trustee Co Limited (1951-1952) 85 CLR 237 (a case involving injury to a member of the Police Force of New South Wales sustained in a road accident, in which it was alleged that the Crown was thereby deprived of his services by reason of his disability), Dixon J observed at 252 that:-
"… in most respects, a member of the Police Force is subject to the direction and control which is characteristic of the relation of master and servant. It does not matter that there is a chain of command. That is necessary in some degree in all organisations military and civil, public and private. It is only when, in the course of his duties as a servant of the Crown, he is confronted with the situation involving the liberty or rights of the subject, that the law places upon him a personal responsibility of judgment and action."
96 The alleged actions of the police officers in fabricating evidence leading to the plaintiff's arrest, would involve the liberty or rights of the subject. The power of arrest and charging the plaintiff with a criminal offence in such a case would involve the personal responsibility of judgment and action of the individual officers responsible for the exercise of such powers.
97 Professor Hogg, in his text quoted by Yeldham J in Oriental Foods (supra), footnoted (footnote 45) a number of cases concerning with the commission of torts by policemen performing general police duties under the direction and control of superiors. That footnote cites a South African article entitled The Vicarious Liability of the State for the Delicts of the Police (1967) 84 SALJ 25 by J L R Milton. The learned author of the article considered the question of control exercised by the State over police officers. Two types of "control" are identified. The first is the control which a master exercises over his servant. The legislature may lay down circumstances in which police officers may be said not to be acting as servants. The other source lay in State control of police by virtue of the fact that they are members of the relevant police force. The South African Police Acts of 1958 and the Regulations thereunder were said to create an obligation in a member to obey all lawful orders given by superiors in the Police Force. The learned author continued quoting from a South African case, Union Government (Minister of Justice) v Van der Vlies [1931] OPD 79 at 85 to 86 in which it was stated:-
"Here is a servant who is acting under a legal duty of such a nature as to deprive the Crown of the power to direct or control the carrying out of the duty, but, in spite of that, the Crown intervenes by means of a direct order to the servant (who is still a servant in the Crown's employ even though acting under a legal duty) … now it seems to me, if the Crown intervenes and … issues a direct order to the servant and if the servant then acts under that order , in obedience to that order, and not in obedience to his legal duty , then the Crown becomes liable under the ordinary principles of the law of master and servant." (emphasis added)
98 That analysis, in my opinion, emphasised the distinction between "control" of the Executive Government and "control" as exercised by superior officers over subordinate officers in the performance of police functions.
99 Although, as earlier noted, the written submissions for the plaintiff relied upon the abovementioned passage which has been attributed to Yeldham J (but, as I have said, was in fact an extract from Professor Hogg's text) an examination of the authorities referred to by Professor Hogg does not support the proposition contended for the plaintiff in this case, namely, that, at common law, if superior police officers at an intermediate level in the hierarchy, direct or involve other officers in unlawful activity or misconduct in the arrest and charging of a citizen, that that thereby constitutes an exception to the principle enunciated by the High Court in Enever's case.
100 It is clear from the authorities to which Professor Hogg refers that an exception to the Enever principle at common law may arise where there is a lawful order issued by the Crown requiring police officers to act in obedience to the direction or order given. However, as I have stated above, that is not the case here.
101 In Griffiths v Haines (supra), Lee J similarly observed that, in terms of vicarious liability, "control" referred to control by the Government as distinct from any control exercised by subordinate officers. See also, in this respect, the observations of O'Connor J in Enever (supra) at 993 to 994 wherein his Honour referred to the arrest made by a police officer in the discharge of his duties as a holder of the officer of constable and "… not by the direction or under the control of the Government".
102 As earlier indicated, the submissions for the plaintiff, with respect, incorrectly proceeded upon the basis that, for the purposes of applying the abovementioned common law exception, those alleged to have fabricated incriminating evidence was acting under the orders of "superior officers", namely, Messrs Knox and Ross. Even if it could be said those two officers, who were higher in the police hierarchy, gave such "orders" it could not be said, for the purposes of the common law, that they did so as agents of the Government or State of New South Wales.
103 Finally, as to the submission made on behalf of the plaintiff in the Plaintiff's submissions in reply, paragraph 5, to the effect that the State "through the Attorney-General, could have no billed the prosecution at any time" any action taken in that respect by the Attorney-General could not provide a basis for retrospectively converting the earlier alleged actions of the police officers involved in the plaintiff's arrest and prosecution into actions for which the State can then be said to be vicariously liable. Any failure to exercise the power to no bill, in my opinion, could not, in law, create a basis for such vicarious liability. A failure to exercise the power to no bill a prosecution could not, in other words, impose either a direct or an indirect liability in the State.
104 Accordingly, I am of the opinion that prior to the Vicarious Liability Act, there could not arise at common law in the State of New South Wales liability in respect of the alleged fabrication of evidence leading to the plaintiff's arrest on 15 January 1980.