Morris v State of New South Wales

Texts Cited: Nil

Category: Principal judgment

Parties: Plaintiff: Raymond Morris
Defendant: State of New South Wales

Representation: Counsel:
Mr D. Woodbury (Plaintiff)
Mr M. Gollan (Defendant)
Solicitors:
Johnson Defence Lawyers (Plaintiff)
McCabes (Defendant)

File Number(s): 2024/00132918

Publication restriction: Nil

Judgment

1. Mr Morris (the plaintiff) is a young aboriginal man. He seeks damages from the State of NSW (the defendant) for false imprisonment and battery arising out of what he alleges was an unlawful arrest carried out by Senior Constable Micati at Bourke in northwestern New South Wales on Friday 9 December 2022.

A. What happened?

2. At around 3 pm on Friday 9 December 2022, Senior Constable Micati was patrolling in Bourke in a fully marked police vehicle with Constable Booth. They were both in full police uniform. As they were driving, they saw a maroon-coloured Holden Commodore. They didn’t know who was driving it. They activated their warning lights for the Commodore to pull over. It did, although for a short time it did not slow down and in fact increased speed. The car stopped in Mitchell Street, next to a playground in a park. Mitchell Street is a main thoroughfare in a well-populated part of the town. The driver stayed in the car with the engine running and his window slightly open. Constable Booth walked up to the driver’s window with an alcometer in his hand, introduced himself, told the driver he had been stopped for a random breath test and asked to see his licence. The driver held his mobile phone to the window, showing Constable Booth his digital driver’s licence. Shortly afterwards, Senior Constable Micati joined Constable Booth at the driver’s window. He recognised the driver and asked to see his licence. The driver held his phone out the window for Senior Constable Micati to see. The licence showed that the driver was Mr Morris. Having confirmed Mr Morris’ identity and (it would appear) checking his MobiPol device, Senior Constable Micati decided to arrest Mr Morris for breach on 23 November 2022 of an apprehended domestic violence order (the details of which I will come to later). But he did not want to carry out the arrest while the engine was still running. Senior Constable Micati asked Mr Morris a number of times to turn the car off. Eventually Mr Morris did. He left the key in the ignition. As soon as the engine was off, Senior Constable Micati said to Mr Morris “All right. My name is Senior Constable Micati from Bourke Police”. As he said this, in quick succession, Mr Morris put his right hand on the key in the ignition, Senior Constable Micati said “Don’t” and reached through the window, Mr Morris said “I’m not doing nothing. Fuck, move your hand, get your hand away.”, Senior Constable Micati said “Don’t, don’t.”, Mr Morris said “I’m not doing nothing mate.”, Senior Constable Micati said (at 15:09:18) “Mate you’re under arrest ok.”, Mr Morris said “What for?”, Senior Constable Micati said “You’re under arrest.”, Mr Morris said “What am I under arrest for?”.

3. Most of what happened next, before Mr Morris emerged from the car, is shown on the bodycam video footage recorded by Senior Constable Micati and by Constable Booth. The footage does not show everything however because all 3 people were in motion and things happened very very quickly. Without attempting to be comprehensive, in quick succession: Mr Morris took the key out of the ignition and moved across to the passenger seat - the key to the car was on a lanyard with some other keys; Senior Constable Micati ran to the front of the car; Constable Booth ran around the back of the car to the passenger side; Senior Constable Micati went back to the driver’s window; Mr Morris went back into the driver’s seat and put the key back in the ignition; Mr Morris and Senior Constable Micati fought over the key; the key broke off in the ignition; Senior Constable Micati sprayed Mr Morris with capsicum spray; Mr Morris went across to the passenger side, then to the back seat; Senior Constable Micati opened the rear driver’s side door; Senior Constable Micati took hold of Mr Morris to pull him out of the car; he used pepper spray again. While these events were happening, at various points Senior Constable Micati said to Mr Morris “You’re under arrest mate stop resisting”, “You’re under arrest mate” and “You’re under arrest”. While Mr Morris was in the back seat Senior Constable Micati also hit him 3, maybe 4, times.

4. Within a minute (by 15:10:00) of first telling him (at 15:09:18) he was under arrest, Senior Constable Micati was dragging Mr Morris out of the back seat of the car.

5. By 15:10:33 Mr Morris was in handcuffs on the ground. At this time Mr Morris said “Fucking hell man. You've fucking done a person for no reason. What the fuck's your problem?”, Senior Constable Micati said to Mr Morris “My name is Senior Constable Micati from Bourke police. You’re under arrest okay for domestic assault all right and breach AVO**.**”, Mr Morris said “What do you mean domestic assault?”, Senior Constable Micati said “And resist arrest.”. Mr Morris said the words “Breach AVO?” twice and asked senior Constable Micati three times “How did I breach AVO?”. Two other police officers got Mr Morris to his feet and walked him to the back of the police four-wheel-drive. As they went past Senior Constable Micati he said to Mr Morris “Breach AVO mate breach AVO and resist arrest” and Mr Morris responded “How did I breach AVO. You don’t know me.”.

6. Mr Morris was taken to Bourke Police Station where he was charged with 4 offences: contravene provision or restriction in an apprehended domestic violence order; assault police officer in execution of duty and occasion actual bodily harm; hinder or resist police officer in execution of duty; and use/possess or attempt/threaten to use offensive weapon etc to prevent unlawful detention/apprehension. The custody management record shows that the charging process started at 17:33 and ended at 20:58.

7. Constable Micati prepared the “Facts Sheet” attached to the Court Attendance Notice given to Mr Morris. He did that on the day, that is, on 9 December 2022.

8. The Custody Management Record shows that Mr Morris remained at Bourke Police Station overnight and that he participated in a bail hearing in Dubbo Local Court via audio visual link the next morning. The hearing took place at some time between 9.35 am when Mr Morris was taken to the AVL room and 9.50 am when he was returned to his cell with “bail formally refused”.

9. Mr Morris subsequently pleaded guilty to the charge of contravene provision or restriction in an apprehended domestic violence order and a conviction was entered under s.10A of the Crimes (Sentencing Procedure) Act 1999 with no other penalty. He was found not guilty of the other charges and they were dismissed after a hearing in Bourke Local Court.

B. The issue is about the requirement to give reasons under s.202 of LEPRA

10. The burden of proof of the lawfulness of Mr Morris’ arrest and continued detention rests on the defendant: Zaravinos v State of New South Wales (2004) 62 NSWLR 58 at [37] and [38] per Bryson JA (Santow JA and Adams J agreeing).

11. The power of a police officer to arrest a person without a warrant is provided for in section 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”).

12. A police officer who exercises a power to arrest under section 99 must also comply with section 202 of LEPRA: section 201.

13. By the time of closing submissions, counsel for Mr Morris conceded that once he realised it was Mr Morris inside the vehicle, Senior Constable Micati formed the intention to arrest Mr Morris because he suspected on reasonable grounds that Mr Morris had committed the offence of breach of apprehended violence order on 23 November 2022. Counsel conceded that Senior Constable Micati was satisfied that the arrest was reasonably necessary for one or more of the reasons stated in section 99(1)(b) and that he also intended to commence a criminal prosecution of Mr Morris. In short, counsel for Mr Morris conceded that the requirements for a lawful arrest provided for in section 99, and in particular sub-sections (1)(a) and (b) and (3), had been met.

14. The sole ground upon which counsel for Mr Morris submitted that the arrest was unlawful was that Senior Constable Micati had failed to comply with his obligation under section 202 of LEPRA to provide to Mr Morris “the reason for” his arrest “as soon as it (was) reasonably practicable to do so”. This represented a considerable narrowing of the issues raised on the pleadings and addressed in the evidence.

C. Legal principles

15. Section 202 of LEPRA provides as follows:

202 Police officers to provide information when exercising powers

(1) A police officer who exercises a power to which this Part applies must provide the following to the person subject to the exercise of the power—

(a) evidence that the police officer is a police officer (unless the police officer is in uniform),

(b) the name of the police officer and his or her place of duty,

(c) the reason for the exercise of the power.

(2) A police officer must comply with this section—

(a) as soon as it is reasonably practicable to do so, or

(b) in the case of a direction, requirement or request to a single person—before giving or making the direction, requirement or request.

(3) A direction, requirement or request to a group of persons is not required to be repeated to each person in the group.

(4) If 2 or more police officers are exercising a power to which this Part applies, only one officer present is required to comply with this section.

(5) If a person subject to the exercise of a power to which this Part applies asks a police officer present for information as to the name of the police officer and his or her place of duty, the police officer must give to the person the information requested.

(6) A police officer who is exercising more than one power to which this Part applies on a single occasion and in relation to the same person is required to comply with subsection (1)(a) and (b) only once on that occasion.

16. Sections 201 and 202 in their current form were introduced into the Act by the Law Enforcement (Powers and Responsibilities) Amendment Act 2014. According to the Minister’s Second Reading speech, the amendments were designed to restructure and simplify the former provisions: NSW Legislative Council Hansard 28 May 2014.

17. The former provisions were considered by the Court of Appeal in a number of cases, including Poidevin v Semaan (2013) 85 NSWLR 758, State of New South Wales v Abed (2014) 246 A Crim R 549 and State of NSW v McCarthy (2015) 251 A Crim R 445.

18. Some points from those cases relevant for present purposes are:

19. The requirement to give reasons for the exercise of the power to arrest without warrant, in effect provided for in section 201 and 202 of LEPRA, has its foundation in the common law, especially as articulated in the decision of the House of Lords in Christie v Leachinsky [1947] AC 573.

20. The rationale underlying the requirement that reasons for the arrest be provided is as described by Ipp JA in New South Wales v Delly (2007) 70 NSWLR 125; 177 A Crim R 538 at [9], being that the person arrested “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”: McCarthy at [71] per Meagher JA (Gleeson JA & Adamson J agreeing); and Abed at [88] per Gleeson JA (Bathurst CJ & Macfarlan JA agreeing).

21. There is a further underlying rationale that a person is not to be deprived of her or his liberty without lawful cause: Abed at [89].

22. The former provisions were construed to mean that where it is not practicable to provide the information before or at the time of exercising the power, there is still a lawful exercise of the power notwithstanding the absence at that time of the information required by the section: Poidevin at [25] per Leeming JA (Ward & Emmett JJA agreeing); McCarthy at [77]. In other words, “The lawfulness of the exercise of the power was not expressed to be contingent on the subsequent provision of information where that information could not reasonably have been provided earlier. To construe the provision as having that consequence would make the lawfulness of the conduct of the police officers uncertain.”: McCarthy at [78]. In my opinion, section 202 in its present more simplified form should be construed in the same way.

23. It is not necessary for the arrested person to be told the precise charge at the time of the arrest. Rather, the arrested person must be told why they are being arrested in terms that disclose why the person’s liberty has been restrained. This requirement is sometimes described in terms that the arrested person be told the “true reason” for the arrest, or the “substance of the reason” for the arrest: Abed at [91].

24. 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. The law does not require that the arrested person be given detailed particulars of why he or she is arrested. How much detail is required depends upon the circumstances of the particular case: Abed at [92].

D. Refining the issues

19. Most of the parties’ submissions can be addressed by asking the following 2 questions:

20. Did Senior Constable Micati provide to Mr Morris “the reason” for his arrest as soon as it was reasonably practicable to do so?

21. Was “the reason” Senior Constable Micati gave at the scene sufficient for the purposes of section 202?

22. The reasons for arrest that Senior Constable Micati gave Mr Morris at the scene were: firstly, after Mr Morris had been handcuffed and was lying on the ground Senior Constable Micati told him that he was being arrested for “domestic assault … and breach AVO”, he then added “and resist arrest”; and secondly, shortly after, as Mr Morris was being taken to and put into the police four-wheel-drive, Senior Constable Micati told Mr Morris that he was being arrested for “breach AVO … and resist arrest.”.

E. Did Senior Constable Micati provide to Mr Morris “the reason” for his arrest as soon as it was reasonably practicable to do so?

The plaintiff’s submissions

21. Counsel for the plaintiff submitted that it was reasonably practicable for Senior Constable Micati to tell Mr Morris that he was being arrested and why he was being arrested when he was speaking to Mr Morris at the driver’s window. Counsel submitted there was every opportunity for him to do so, and he was invited to do so by the plaintiff on numerous occasions and made a conscious decision not to.

22. Counsel submitted that when Senior Constable Micati went to the driver’s window he should have had in his mind his previous interactions with Mr Morris, which were “non-eventful”. Counsel referred to 2 previous interactions. The first was at the Bowling Club a few months prior, when it seems the police arrested Mr Morris. Counsel submitted that Senior Constable Micati gave no evidence whatever that there was any difficulty with the plaintiff complying with any directions that night, and the only inference that can be drawn was that there wasn’t any difficulty. Counsel submitted that in terms of Senior Constable Micati’s interaction with Mr Morris on that occasion, Mr Morris appears to have been nothing but “compliant” because there was no evidence to the contrary. The second previous interaction was on 23 November 2022 in the early hours of the morning, around 2 AM. Counsel submitted that Mr Morris was “compliant” in that he stopped the vehicle, provided his identification details, got out of the car and spoke with Senior Constable Micati when he did not have to; was strip-searched and exposed his genitals to Senior Constable Micati as directed. Counsel submitted that there was no evidence that he had not been “compliant”.

23. Counsel submitted that in light of those prior “non-eventful” interactions with Mr Morris it was reasonably practicable to tell him that he was going to place him under arrest and what the allegation was, and he did not do that.

24. Counsel submitted that it was reasonably practicable to tell Mr Morris when he asked repeatedly “Why do I have to turn the car off?” and asked “Am I under arrest?”.

The defendant’s submissions

25. Counsel for the defendant acknowledged that Senior Constable Micati made a deliberate decision about not telling Mr Morris that he was under arrest until the car was turned off. Counsel submitted that the reason why he did that was so that the members of the community, and himself, and I assume Constable Booth, were not put at risk. Counsel submitted that Senior Constable Micati saw that it was necessary for him to have the car disengaged, so it removed the capacity for the plaintiff, having been sought to be put under arrest, to leave the scene.

26. Counsel submitted that once Mr Morris decided to put his hand back on the key in the key barrel, looking to engage the car, the response from Senior Constable Micati was to intervene to stop that. Counsel submitted that there was only one logical conclusion to take from Mr Morris’s actions in seeking to engage the car, and that was that he was seeking to escape. Counsel submitted that these conclusions were consistent with Senior Constable Micati’s own evidence and the video footage.

27. Counsel submitted that proposition (5) stated by Viscount Simon in Christie v Leachinsky [1947] AC 573 at 588 was applicable. Viscount Simon said “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, e.g., by immediate counter-attack or by running away.”.

28. Counsel submitted that once the actions of Mr Morris had intervened in the process commenced by Senior Constable Micati of arresting him, section 231 of LEPRA “advocated” Senior Constable Micati’s response. Section 231, which is headed “Use of force in making an arrest” provides that “A police officer or other person who exercises a power to arrest another person may use such force as is reasonably necessary to make the arrest or to prevent the escape of the person after arrest.”.

29. Counsel submitted that the court should not accept that Mr Morris had been cooperative in all of his previous interactions with Senior Constable Micati. Counsel submitted that the evidence showed that Mr Morris had “hoodwinked” and lied to Senior Constable Micati on 23 November 2022 about who was with him in the car and Senior Constable Micati was aware of that as at 9 December 2022, especially having regard to the facts he set out in the Fact Sheet he prepared on 9 December 2022.

30. Counsel submitted that the court should find that once the engine had been turned off and Senior Constable Micati started to give his name, rank and station, Mr Morris knew that this was the start of being told that he was going to be placed under arrest. Counsel submitted that the court could infer from Mr Morris’ criminal record that he had been arrested many times before and had heard the same “spiel”, as Senior Constable Micati called it, so that he knew what was about to happen. Counsel also submitted that the court could more confidently draw that inference because Mr Morris had chosen not to give evidence.

31. Counsel drew attention to Woodley v Boyd [2001] NSWCA 35 where Heydon JA (Davies AJA and Foster AJA agreeing) referred to the necessary duties and considerations that apply where a police officer is deciding how to effect an arrest, and said that in evaluating the police conduct the matter must be judged by reference to the pressure of events and the agony of the moment, not by reference to hindsight, quoting with approval McIntosh v Webster (1980) 43 FLR 112 at 123 where Connor J sitting in the Supreme Court of the ACT had said:

“[Arrests] are frequently made in circumstances of excitement, turmoil and panic [and it is] altogether unfair to the police force as a whole to sit back in the comparatively calm and leisurely atmosphere of the courtroom and there make minute retrospective criticisms of what an arresting constable might or might not have done or believed in the circumstances.”

Plaintiff’s submissions in reply

32. In response to the submission that Mr Morris knew that he was about to be arrested once he had turned off the engine and Senior Constable began to give his name and station, counsel submitted that exercising the power to arrest was just one of the many circumstances in which section 201 required those details to be given. The words may just as well have been a precursor to “I’m going to search your vehicle” as “you’re under arrest”.

My analysis and findings

33. At the hearing, Senior Constable Micati gave the following evidence in chief about what happened after he started his “spiel” to arrest Mr Morris (Transcript p.42 & 43):

Q. What happened then?

A. As I went through the spiel that I usually do, explaining my rank, name, he's put his hand back on the keys and I thought he was going to try and start the car and flee.

Q. At that stage, you'd told him that he was under arrest?

A. Short - shortly after that, when I've told him not to do it.

Q. Then what happened?

A. So I've seen him try to start the car. I've put my hand down in the window, I could feel him trying to turn the key, and I explained to him that he was under arrest.

Q. What did he do then?

A. He screamed and yelled at me, pushed my hand away. He's taken the keys out, and then, jumped across or started to jump across the passenger side.

Q. When you say, "taken the keys out", he took the key out of the ignition on a bunch of keys?

A. The key out of the ignition, but I think there was keys on a lanyard.

Q. He jumped to the other side?

A. Yes.

Q. What did you do?

A. I went to run around the other side; he kept screaming at me, telling me to, "Get away, get away". He's then jumped back into the driver's seat and I've run back around. Again, he was screaming at me, and he's tried to put the key in the ignition which is - he succeeded, and so I've - fearing that he was going to take off - put my hand in and grabbed it, and there was a struggle which the key then snapped off.

34. In cross-examination, Senior Constable Micati denied that it was “reasonably practical” to tell Mr Morris he was under arrest when he was sitting in the car and asking if was under arrest. He denied that he should have told Mr Morris at that time. He accepted that once Mr Morris was in the backseat he was not about to drive anywhere. He agreed that he struck Mr Morris three or four times whilst Mr Morris was in the back seat and Mr Morris was “lashing out” at him. When asked why at that point he didn’t tell Mr Morris why he was under arrest, Senior Constable Micati said “Don't have time to tell someone they're under arrest when I'm fighting with them. I had told him he was under arrest.”. His evidence continued:

Q. You're fighting with him, aren't you?

A. We were fighting together to try and get him out of the car.

Q. But you're only fighting because you've opened the rear car door; correct?

A. No.

Q. He's inside the car, isn't he?

A. Yes.

Q. He's in the back seat.

A. At that point, but I spray him and strike him, yes.

Q. The key is already broken?

A. At that point, yes.

Q. Right, so he's not about to drive anywhere, is he?

No.

Q. You open the back seat and you punch him and capsicum spray him, don't you?

A. I spray him first.

Q. Then start punching him?

A. Yeah, because he was striking out at me.

Q. For three or four times?

A. Mm-hmm.

Q. At that point you didn't think just to take a step back and say, "You're under arrest for a reason"?

A. No.

Q. There was nothing preventing you from doing that, was there?

A. I needed to secure him.

Q. You could have taken a step back at that point, because he couldn't have driven off anywhere because the key is broken, and he's in the back seat, and said to him, "Mr Morris, you're under arrest for" whatever reason you're arresting him for.

A. No.

Q. You could have done that, couldn't you?

A. No.

Q. There was nothing preventing you doing that, was there?

A. There was. I needed to secure him. He's already tried to show that he was trying to get away, and I wasn't going to let him get away.

35. It was then put to Senior Constable Micati that Mr Morris never tried to get away and Senior Constable Micati was making that up.

36. I accept Senior Constable Micati’s evidence on these matters. It was consistent with the video footage recorded on his own and Constable Booth’s body worn cameras. It was also consistent with Senior Constable Micati’s contemporaneous account of the events, set out in the Fact Sheet he prepared on the day. The footage from Constable Booth’s camera in particular shows that Mr Morris put his right hand on the ignition key once Senior Constable Micati began his “spiel”. The natural inference is that he did that with the intention of starting the engine to drive off. All the more so when Mr Morris chose not to give evidence on the matter.

37. Events progressed from there. Mr Morris putting his hand back on the key after he had turned off the engine provided the catalyst for what happened after that.

38. I accept the defendant’s submission that in the circumstances the actions of Mr Morris himself produced a situation which made it practically impossible for Senior Constable Micati to inform Mr Morris of the reason for his arrest.

39. In my view, and I find, it was not reasonably practicable for Senior Constable Micati to provide Mr Morris with the reason for his arrest before he was pulled out of the car and handcuffed.

F. Was “the reason” Senior Constable Micati gave Mr Morris at the scene sufficient for the purposes of section 202 of LEPRA?

40. Immediately after handcuffing Mr Morris and shortly after, Senior Constable Micati told Mr Morris that he was under arrest for “breach AVO” and “resist arrest”. Senior Constable Micati’s initial reference to “domestic assault” was obviously a mistake made in the heat of the moment.

The plaintiff’s submissions

41. Counsel for Mr Morris submitted that merely saying “you’re under arrest for breach AVO” would not be a lawful arrest because Senior Constable Micati needed to give the facts of the allegation in order to give “the reason for the exercise of the power” in accordance with s.202(1)(c) of LEPRA.

42. Counsel submitted that each case turned on its own circumstances.

43. Counsel submitted that in the present case it was 17 days since the interaction between Senior Constable Micati and the plaintiff. The AVO had many terms, the details of which were set out in the Fact Sheet. There was not a blanket no contact provision between Ms Knight and the plaintiff. There are some exceptions where they can contact each other, and in those circumstances Senior Constable Micati could not just simply say “breach of AVO”. Counsel submitted there may have been other AVOs on the plaintiff.

44. Counsel cited Murphy v The State of New South Wales [2023] NSWSC 407 (Davies J). Counsel submitted that in that case Davies J found that the arrest was unlawful because there were no further particulars or the facts of the offence provided was just a sexual assault. Counsel submitted that it should not be assumed that a person knows what the police officer is talking about.

45. Counsel also referred to State of New South Wales v Abed (2014) 246 A Crim R 549.

46. Counsel submitted that it was simply not enough to say “breach AVO”, particularly when Mr Morris had asked a number of times what the breach was and Senior Constable Micati had not answered him.

47. Counsel submitted that Senior Constable Micati should have told Mr Morris “what the allegation was” or “the details” of the offence.

The defendant’s submissions

48. Counsel for the defendant submitted that proposition (3) stated by Viscount Simon in Christie v Leachinsky [1947] AC 573 at 588 was applicable. Viscount Simon said “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.”.

49. Counsel cited State of New South Wales v Randall [2017] NSWCA 88 at [12], where Basten JA (dissenting in the result) referred to proposition (3) as one of two qualifications of the requirements of common law. His Honour said that whether this qualification “still operate(d)” under the then s.201 of LEPRA was not an issue addressed in the case (i.e. in Randall).

50. Counsel submitted that Mr Morris knew “the content of” the reasons for his arrest with respect to the AVO because Senior Constable Micati was the person who detected the breach when Mr Morris was in the company of his partner on 23 November 2022. Counsel submitted that, in the absence of Mr Morris giving evidence to the contrary, Mr Morris must have known he was wanted for an AVO in respect of his partner because he was “detected by the exact same police officer“ his partner and he had deceived. Counsel submitted that he well knew he was being breached for his AVO and arrested for his AVO. Counsel submitted that he must have known the general nature of the alleged offence.

51. Counsel also submitted that Mr Morris must have known he was wanted for an AVO in respect of his partner because of what had been said by Senior Constable Micati with respect to having seen Mr Morris in a white utility. This was a reference to Senior Constable Micati’s evidence that just a week after 23 November 2022 he and Mr Morris drove past one another in the street and “he looked at me“ and “I’ve looked at him”.

52. Counsel submitted that because Mr Morris knew why he was being arrested for breach of AVO, there was no need to say anything more to comply with section 202.

53. It is not clear whether counsel submitted that in the event the court was satisfied that Mr Morris had made it practically impossible to inform him of the reason for his arrest, then there was no need to give him a reason at all. If that was the submission, then I would reject it because of the express terms of section 202. The requirement is to provide the person being arrested with the reason for the arrest “as soon as it is reasonably practicable to do so”. If it is not “reasonably practicable” to provide the reason immediately, the reason must still be provided “as soon as it is reasonably practicable” to provide it.

The plaintiff’s submissions in reply

54. In response to the submission that Mr Morris must have known he had breached the AVO, his counsel submitted that it was clear he did not know because he asked a number of times “How did I breach AVO?” after he had been handcuffed, and did not receive a reply.

The facts about Mr Morris’ encounter with Senior Constable Micati at the Bowling Club

55. In his evidence in chief, Senior Constable Micati said that the first time he had any interaction with Mr Morris was when he dealt with him at the Bowling Club in Bourke in September. He said the police received a phone call from the Bowling Club saying that someone had been assaulted by someone that was banned, and they were too scared to go and remove him because of how violent he was and had been in the past. Senior Constable Micati went to the Bowling Club. When he got there he was told that Mr Morris was the person concerned. Senior Constable Micati said that Mr Morris was in the company of his partner, but he did not know that there was an apprehended violence order in place at the time. He said they took Mr Morris away.

56. He was not asked about this in cross-examination.

The facts about Mr Morris’ encounter with Senior Constable Micati on 23 November 2022

57. In his evidence in chief, Senior Constable Micati said that the 2nd time he had anything to do with Mr Morris was when he stopped him at about 2 AM on 23 November 2022. Senior Constable Micati said that Mr Morris was driving the car and there were 3 passengers: 2 males and Mr Morris’s partner. He said that when Mr Morris got out of the car it looked to Senior Constable Micati like Mr Morris put something down his pants. He therefore “requested him to pull his pants forward and lift up his testicles” as he believed there was something there. He said that was “the contents of the strip search”. He agreed that Mr Morris gave him his identification details. Mr Morris told him who the 2 males in the car were. He said that the female gave him a name. When they got back to the station they checked the details the female had provided. Senior Constable Micati said “there was some suspicion that it wasn’t who she was – telling us she was. I did some checks, and – which revealed that it was, in fact, the person that was on, listed on the AVO.”.

58. In cross-examination, Senior Constable Micati agreed that he asked Mr Morris to get out of the car and Mr Morris complied, although he said “eventually”. He agreed that Mr Morris stopped and talked to him even though he didn’t have to tell him anything, except for who he was, which he did. Senior Constable Micati agreed that he complied with the request to give him identification. He agreed that he asked Mr Morris to expose his testicles and penis, and he did. When asked how long the interaction went for, Senior Constable Micati said that he was not sure but captured it all on his body worn camera. He said he was not sure how long it went for, 20 minutes, maybe 30 minutes. He did not agree that Mr Morris had been “nothing but compliant” with him on that night, but his reason for saying that was left unexplored.

59. Senior Constable Micati also described what had happened on 23 November 2022 in the “Full Facts” he prepared on 9 December 2022, attached to the plaintiff’s Court Attendance Notice. He said there:

“About 2am on Wednesday the 23rd of November 2022 police stopped a white LDV utility due to defects on the vehicle. Police approached and sighted the accused in the drivers seat. Seated next to the accused was the victim. Police spoke to the accused for a short time. During which he was extremely anxious and nervous.

Police requested the accused to step out of the vehicle where they had a short conversation with him. Police asked who else was in the vehicle where he named two males in the back but couldn't name the female who was in the front passenger. He stated it was just someone.

Police then spoke to one of the passengers where they stated the female's name was the victim's.

Police spoke to the victim where she provided police with the name Kelly KNIGHT and stated she had no identification documents on her. Police were unsure whether the information provided was accurate and were of the opinion that the female was in fact the victim. Police asked if she was the accused's partner which she denied and stated they were just "Friends".

Police attempted to view photos of the victim to confirm her identity but were unable to at the time. As such police left the scene. Police returned to the police station where relevant checks were conducted which confirmed the identity of the female to be the victim and as such the accused was in breach of his ADVO.”

60. Mr Morris did not give evidence about any of these matters.

My analysis and findings

61. I set out the relevant legal principles earlier, see paragraphs 18.2, 18.5 and 18.6 in particular. What is required to provide “the reason” to comply with s.202(1)(c) will depend on the particular circumstances.

62. In Murphy v The State of New South Wales [2023] NSWSC 407, referred to by counsel for Mr Morris, the plaintiff claimed damages for what was said to be 2 wrongful arrests resulting in his false imprisonment and malicious prosecution. The arrests and prosecutions arose out of 2 sexual encounters the plaintiff had with 2 separate women. The plaintiff’s arrest and charging arose out of activities of persons interested in bondage, domination/discipline and sadomasochism. The factual setting was quite complex and complicated. Davies J found that merely telling the plaintiff that he was being arrested for “sexual assault” did not satisfy the requirement in s.202(1)(c) of LEPRA. His Honour made that finding and gave his essential reasons for it at paragraphs [92] – [94]. His Honour said that the plaintiff was entitled to know what the facts were that was said to constitute the crime for which he was told he was being arrested. His Honour said “(t)hat was particularly the case when, to the knowledge of the arresting officer, the plaintiff had been involved in sexual and other activities with a number of women through the Fetlife website. … Any of the women with whom the plaintiff had been involved might have made an allegation of sexual assault against him. Moreover, the police officer knew that the particular complainant AC had engaged in sexual and other activity with the plaintiff on a number of occasions prior to the incident at the Mecure Hotel on 24 August 2015 for which he was being arrested.”. As to what was required, his Honour appears to have concluded that the reason for arrest could have been provided “by identifying the complainant, the date and perhaps the location of the alleged offending”.

63. In State of New South Wales v Abed (2014) 246 A Crim R 549, referred to by both parties, Mrs Abed was arrested at her home. She was told by the arresting officers that she was under arrest for assault, but no further explanation was provided to her at that time. The essential reasoning of the Court of Appeal in upholding the primary judge’s finding that more detail was required as to the reason for the arrest was set out by Gleeson JA at [101]-[105]. At [102], his Honour said “on no view had Constable Ling told Ms Abed the ‘true reason’ for her arrest, namely, that they suspected that a person had broken into the home of Ms Younis and threatened her using a knife, and that they further suspected that Ms Abed was the person who had committed that offence. The first time this explanation was given was at about 11 pm, when the police interviewed Ms Abed.”. At [103]-[105], his Honour said:

103 Thirdly, it is of particular significance that the primary judge found that Ms Abed had not attempted to run away when confronted by the police. Indeed Ms Abed complied with the commands of the police on each occasion when she was told to drop the “pole”, which his Honour found was a curtain rod. It is also significant that his Honour found that the police were not under any threat from Ms Abed. She did not show aggression to the police. There was nothing remarkable or out of the ordinary in her holding a curtain rod and a curtain.

104 Fourthly, whilst it may be accepted that the arresting officers were on high alert and acting on limited information from the alleged victim, Ms Younis, they had already secured the knife on Ms Younis’ side of the property, and as his Honour found, they were not under any threat from Ms Abed.

105 Taking into account all of the above circumstances of (in particular, that Ms Abed did not flee when confronted by police, she did not show aggression, she complied with the commands of the arresting officers, and although not fluent in English, she communicated to the arresting officers that she had been engaged in her household activities) in my view, no error has been demonstrated in the primary judge’s finding that more detail was required as to the reason for the arrest at the time of the exercise of that power by the arresting officers. The challenge to his Honour’s finding of trespass to person must fail.

64. The circumstances in the present case were quite different to each of those cases.

65. In the present case, the circumstances included the following:

66. The events of 23 November 2022 had occurred only a little over 2 weeks earlier. Mr Morris is very likely to have remembered them still on 9 December 2022. That is for a number of reasons: firstly, because they happened at 2 AM in the dead of the night; secondly, because Mr Morris and his partner had in fact “hoodwinked” and deceived Senior Constable Micati about the identity of Mr Morris’s partner, who was protected by the ADVO; thirdly, and perhaps more memorably, Mr Morris had been asked to expose his penis and testicles to Senior Constable Micati.

67. For the same reasons, Mr Morris is very likely to have recognised Senior Constable Micati when he saw him again on 9 December 2022. This is all the more so given his prior encounter with Senior Constable Micati at the Bowling Club in September. In all the circumstances I would attach little if any weight to the fact that Mr Morris is recorded as saying “You don’t know me” as he was put into the back of the Police four wheel drive.

68. It follows that when Senior Constable Micati referred to “breach AVO” Mr Morris would have understood that he was referring to the breach he himself (Senior Constable Micati) had witnessed.

69. There was no evidence that Mr Morris was the subject of any other AVOs or ADVOs as at 9 December 2022.

70. Although it was of short duration, Senior Constable Micati and Mr Morris had just had a reasonably strenuous physical confrontation brought about by Mr Morris putting his hand back on the key in the ignition and giving every indication he was going to attempt to drive off. Senior Constable Micati had been injured in the process. According to the Fact Sheet, he sustained a deep 3 cm gash to his right palm which caused moderate bleeding, amongst other injuries. The gash to his hand can be seen very clearly on the bodycam footage. Mr Morris was still recovering from being sprayed with pepper spray. According to the Fact Sheet he was treated by Ambulance officers for a cut to his head and capsicum spray exposure at the Police Station. Neither person was likely to have been thinking too clearly or carefully. The situation was hardly ripe for clear thinking or good communication following the confrontation.

71. In my view, in all the circumstances it was sufficient compliance with s.202(1)(c) for Senior Constable Micati to tell Mr Morris he was under arrest for breach AVO.

G. My conclusions on liability

67. For the above reasons, I have concluded that in all the circumstances Senior Constable Micati complied with his obligation under section 202 of LEPRA to provide to Mr Morris “the reason for” his arrest “as soon as it (was) reasonably practicable to do so”.

68. This means that Mr Morris has not succeeded on the sole ground his arrest was ultimately said to be unlawful.

69. It follows that his case should be dismissed and the defendant is entitled to have judgment in its favour.

H. Damages

70. I proceed to assess damages on a contingent basis in case I am wrong about liability.

71. Both parties filed schedules of damages prior to the hearing.

72. In his schedule of damages:

73. Mr Morris sought general, aggravated and exemplary damages for assaults and batteries during the arrest in the amounts of $30,000, $10,000 and $25,000 respectively.

74. Mr Morris sought general, aggravated and exemplary damages for wrongful arrest and false imprisonment (from arrest) in the amounts of $20,000, $10,000 and $25,000 respectively.

75. He also sought general damages of $15,000 for wrongful arrest and false imprisonment (after arrest).

76. The difference between “from arrest” and “after arrest" was not explained.

77. Counsel for Mr Morris submitted that the above sorts of figures were “very middle of the road” and pointed to the sums allowed by the primary judge, Judge Fitzsimmons, in Madden v The State of New South Wales [2022] NSWDC 647 as an appropriate guide. I say primary judge because his Honour’s decision was upheld on appeal: State of New South Wales v Madden (2024) 113 NSWLR 509.

78. In its schedule of damages, the defendant submitted that any general damages awarded “would be minimal” and there was no justification for the award of aggravated or exemplary damages.

79. Counsel for Mr Morris submitted that the records showed that Mr Morris was in Police custody from the time of his arrest at 3.05 pm until the next morning when he appeared before a judicial officer at about 9.30 am. Based on those times his period of detention would be 18.5 hours. That timing is materially consistent with the timing of the events as I set them out at the start of these reasons.

80. Counsel for Mr Morris also submitted that the court could infer that at the end of the charging process Mr Morris was provided with his Court Attendance Notice, which included a full statement of the facts. From that time, about 20:58, counsel accepted that Mr Morris would have known the true nature of the charges against him. Counsel for the defendant did not submit otherwise. I therefore infer that by no later than 20:58 that evening Mr Morris had been given detailed reasons for his arrest. That would apply to both “breach AVO” and “resist arrest”.

81. The bodyworn camera video footage shows that events were frenetic and violent, although they lasted only a little over a minute between the time Mr Morris put his hand on the ignition key and when he was handcuffed. The defendant submitted that he was “dumped on his head” when he was dragged out of the car. I do not accept that submission. What happened was recorded on the video footage from Constable Booth’s bodyworn camera. It shows that Senior Constable Micati rolled Mr Morris out of the back seat and Mr Morris made contact with the ground with the left side of his body before he was forced onto his stomach and then handcuffed. Whilst he was being handcuffed, Constable Booth held his right knee against Mr Morris’ upper back. The Custody Management Record shows that Mr Morris was assessed by the NSW Ambulance Service at Bourke Police Station between 15:45 and 16:00, that Panadol was administered and “Stated small laceration to head with nil further treatment required”. I have already found that Senior Constable Micati hit Mr Morris 3, maybe 4, times and sprayed him with capsicum spray twice. There is no doubt that the whole episode would have been stressful and traumatic to Mr Morris. The capsicum spray would have been painful.

82. A complication concerning the assessment of damages arises, however, as a result of the fact that Senior Constable Micati gave 2 reasons for the arrest: breach of AVO and resist arrest.

83. Counsel for the defendant submitted that if I were to find that the first interaction fell foul of sections 201 and 202, being the desire to arrest Mr Morris for his AVO, and if the defendant failed in its defence in that regard, then once Mr Morris started to hinder and resist, “it terminates any exposure to damages because he’s told that’s also one of the reasons why he’s being arrested”. Counsel submitted that the moment Mr Morris continues to behave in the car in the fashion he does after he's been told, again, that he's under arrest, that grounds the charge hinder or whatever it might be ultimately formulated as, it doesn't really matter, and that was a valid reason for him being arrested; it was a valid reason that was disclosed to him and it couldn't be said there are any particulars that are required for that purpose because he's participating in the activity at the time. Counsel submitted “that would limit the damages to moments”.

84. Counsel for the plaintiff submitted that if I were to find that the initial arrest was unlawful, the plaintiff’s actions in defending himself or doing whatever he does cannot then ground a charge or provide a reason for arrest because it is not an offence to resist an unlawful arrest.

85. This argument was raised by counsel for the defendant at the very end of submissions. It was not developed or explored in any more detail than I have described it above.

86. Neither counsel addressed the implications of the decisions in Poidevin v Semaan (2013) 85 NSWLR 758 and State of NSW v McCarthy (2015) 251 A Crim R 445 to the effect that where it is not practicable to provide the information before or at the time of exercising the power, there is still a lawful exercise of the power notwithstanding the absence at that time of the information required by the section – see paragraph 18.4 above. Applying that principle, if I was found to be correct in finding that it was not reasonably practicable for Senior Constable Micati to have provided a reason before Mr Morris was out of the car and handcuffed, but wrong in finding that the reason he then gave was sufficient to comply with s.202(1)(c), then it may be arguable that because the arrest for breach of AVO was lawful up to that point Mr Morris could potentially have committed the offence of resisting arrest during that time leading to his arrest and continuing detention being lawful for that reason.

87. Other possibilities or permutations may well arise or be sought to be argued depending in what respects I may be found to be wrong.

88. Because these questions were not addressed by the parties, in my view it is not appropriate to proceed to assess damages on a contingent basis.

I. Costs

85. Costs should follow the event.

J. Orders

86. For those reasons I make the following orders:

87. Judgment for the defendant.

88. Plaintiff to pay the defendant’s costs.