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.
That provision appears to reflect the common law.
68 The judge's failure to consider that defence was, of course, a direct result of the course adopted by counsel then appearing for the defendants not to plead these defences, but again I do not believe that the defendants themselves should suffer as a result of that conduct. The two remaining police officers have their reputations to uphold, whatever may be the financial arrangements between them and the third appellant (the State of New South Wales). There is, moreover, considerable force in the submission made by the defendants that the judge misdirected himself in relation to the issue of self-defence raised by them which he had rejected, as he erroneously appeared to believe that the defence was restricted to what was said in the police handbook as to the use of capsicum sprays. That handbook would have been directly relevant to a claim based on negligence in the use of the spray, but it did not necessarily limit what was reasonably necessary by way of self-defence to a perceived attack.
69 The plaintiff has submitted that there should be no new trial because, whatever the state of pleadings at the trial, he was still necessarily entitled to succeed on all three causes of action pleaded - trespass, assault and false imprisonment - because the three police officer defendants were trespassers. That submission requires an examination of the plaintiff's challenge to the judge's finding that the police officers had authority to enter into the car park of his hotel to carry out a breath analysis on the driver of a motor vehicle parked there, and to remain there after being asked to leave in order to complete the breath test (see par [21] supra ). This was ground of cross-appeal 1(a). Counsel for the plaintiff accepted during the hearing of the appeal that the trespass alleged relates to the period from when the police officers failed to leave the car park on being ordered to do so.
70 The incident has already been referred to briefly (at par [8] supra ). The plaintiff gave evidence that, after his previous argument with Sgt Hunt in which the plaintiff accused the sergeant of harassing him (see par [7] supra ), he saw the three police officer defendants had returned in the police vehicle and were performing a breath test on the driver of a motor vehicle in the car park. He spoke to the defendant Det Sen Const Davis (who had died before the trial) and said:
Peter this is looking like police harassment. I want you to get out of here, this is over the top.
It was at that stage, the plaintiff said, that the defendant Const Pringle had shouted at him alleging that he had been assaulted by the plaintiff. This led to him being sprayed with capsicum the first time.
71 It is accepted by all parties that, in the absence of notice of any express reservation or limitation, the occupier of a hotel car park grants an implied licence to persons to enter that car park to carry out any lawful activity in association with the premises: Barker v The Queen (1983) 153 CLR 338 at 364-365, 347; Halliday v Nevill (1984) 155 CLR 1 at 6-7; TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 at [29], [31]. Such an implied licence may, however, be withdrawn by the occupier at any time. The plaintiff relies on the statement quoted in the last paragraph as constituting such a withdrawal. The judge found that, rather than demand that the police officers leave the car park, the plaintiff was challenging them to fight. Such a finding was perhaps open to the judge on the evidence, although the effect of what was said appears to me to be an express withdrawal of the implied licence to the police officers to remain in the car park. Be that as it may, the issue has turned not on the effect of what was said, but rather on whether the police officers were, as the judge went on to hold, entitled by the Road Transport (Safety and Traffic Management) Act to remain in the car park in order to complete the breath test being administered there.
72 The plaintiff has also submitted that the implied licence was for the benefit of patrons only, and not for the benefit of police officers who wished to breath test patrons or prospective patrons in the car park. I do not accept the limitation which the plaintiff seeks to impose on the implied licence. In the present case, it may safely be assumed that the driver being breath tested by the police - whom they had seen drive into the car park and noticed the manner of her driving - was a prospective patron. In my opinion, in the absence of notice of any express reservation or limitation, the implied licence extends to those persons who have a legitimate reason associated with the hotel or its business (including its patrons and prospective patrons) either to gain access to the hotel or to park their vehicles there for that purpose. The implied licence would, for example, extend to persons doing or wishing to do business with the publican (otherwise than purchasing alcohol), such as food suppliers. If a crime were committed or threatened in the hotel or its car park, the implied licence would extend to persons such as police and ambulance officers.
73 Turning now to the Road Transport (Safety and Traffic Management) Act , s 13(1) gives power to a police officer to require the driver of a motor vehicle on "a road or road related area" to undergo a breath test if that officer has reasonable cause to believe that a person was such a driver. This permits random breath testing. A breath test is defined by the Dictionary in Sched 2 of the Act as a test for the purpose of indicating the concentration of alcohol present in the driver's blood. Section 14 permits the police officer to arrest the driver without warrant where the breath test indicates a blood alcohol content of not less than 0.05 g in 100 ml of the driver's blood (I leave out of account provisional and special category drivers). Section 15 then permits the officer to require the driver to submit to a breath analysis, usually performed in a police station, which ascertains the precise level.
74 Two definitions in the Dictionary to the Act are relevant here. A road means, effectively, an area that is open to or used by the public for the driving of motor vehicles. The definition of a road related area needs to be quoted in full:
road related area means:
(a) an area that divides a road, or
(b) the footpath or nature strip adjacent to a road, or
(c) an area that is open to the public and is designated for use by cyclists or animals, or
(d) an area that is not a road and that is open to or used by the public for driving, riding or parking vehicles, or
(e) a shoulder of a road, or
(f) any other area that is open to or used by the public and that has been declared under section 15 of the Road Transport (General) Act 2005 to be an area to which specified provisions of this Act or the regulations apply.
Paragraph (f) has no application in this case. It is accepted by all parties that the only paragraph which could be relevant to the present case is par (d), which must nevertheless be seen in the context of the whole definition.
75 The plaintiff has submitted that this paragraph of the definition is insufficient to permit entry on private property, as such a right must be expressly authorised by the statute. The High Court has held that, at common law, a police officer is not authorised, without the consent of the person in possession or entitled to possession of the property and without any implied leave or licence, to go on private property in order to serve a summons, and that, if he does go on to the land to do so, he is liable in trespass: Plenty v Dillon (1991) 171 CLR 635 at 644-645, 653-654. A statutory authority to engage in what would otherwise be tortious conduct must be clearly expressed in unmistakable and unambiguous language: Coco v The Queen (1994) 179 CLR 427 at 435-436. See also TCN Channel Nine Pty Ltd v Anning at [24]-[28]. There is a presumption that, in the absence of any express provision to the contrary, the legislature did not intend to authorise such conduct, but that presumption is rebuttable and will be displaced if there is a clear implication that authority to enter or remain on private property was intended - for example, where such tortious conduct is a necessary implication in order to prevent the statutory provision from becoming inoperative or meaningless, bearing in mind nevertheless that mere inconvenience in carrying out an object authorised by statute is not a ground for eroding fundamental rights: Coco v The Queen at 635-636.
76 Although each of the other paragraphs in the definition of a road related area refers to public land, par (d) necessarily contemplates a person being required to undergo a breath test on private property. An area that is not a road and that is open to or used by the public for parking vehicles would include, for example, large shopping complex car parks, where the risk of injury caused by drivers with a blood alcohol content higher than permitted is obvious. The statute expressly provides (by s 17(d)) that a person may not be required to undergo a breath test at that person's place of abode. Such an express restriction would not have been necessary if the legislature had not intended to authorise entry on to private property for the purpose of administering a breath test. Section 17(d) of the Act also provides that a person may not be required to undergo a breath test after the expiration of two hours from driving the vehicle. That restriction sufficiently demonstrates why the common law presumption upheld by the High Court was intended to be displaced in this statute. To interpret the statute otherwise would permit a driver whose blood alcohol percentage is higher than permitted to drive his vehicle around a shopping complex car park during that period of two hours, which clearly would render inoperative one of the purposes of the statute, which is to improve safety on roads and road related areas (s 3(c)). The rebuttable presumption that the statute does not authorise trespass is necessarily displaced.
77 In the present case, of course, the issue is not whether the police officers were entitled to enter the car park in order to perform a breath test. Pursuant to the implied licence to enter, they were already in the process of requiring the driver of the vehicle they had seen drive into the hotel car park to undergo a breath test before the plaintiff ordered them to leave. The issue is therefore whether they were entitled to remain in the car park in order to complete that process notwithstanding the withdrawal of the implied licence to enter.
78 The police officers had performed a breath test, but had then been informed by the driver that she had recently consumed some alcoholic liquor, vitiating the results of that test. In accordance with the usual procedure, the police officers had permitted the driver to wait a short period so that a further test would not be affected by "mouth alcohol". This evidence was accepted by the trial judge. There was no challenge to the evidence of Const Pringle that he had returned to the police vehicle to obtain another "tube" for that purpose at the time when the plaintiff ordered them to leave. In my opinion, the breath test contemplated by the statute is one which produces a valid result, so that the whole procedure should be regarded as the one breath test. That test was therefore incomplete when the plaintiff ordered the police officers to leave.
79 The "clear implication" in the statute for which the defendants have argued is that they were lawfully entitled to remain on private property notwithstanding that their implied licence had been withdrawn, because the test had to be completed to enable the purpose of the statute to be fulfilled. The plaintiff has replied that the defendants could have required the driver to leave the car park and move into the public laneway running alongside to complete the breath test. Counsel for the plaintiff pointed out that the statute focuses its attention on the place where the vehicle is being driven, not on the place where the breath test is to be undertaken. Nevertheless, the place where the breath test is undertaken will almost inevitably be where the vehicle was stopped by the police, which must ordinarily be on either a road or a road related area. Counsel for the plaintiff conceded that a police officer would have no power, for example, to direct a driver to leave his place of abode in order to undergo the breath test. It is also relevant to note that, before directing a driver to submit to a breath analysis (which is usually conducted at a police station) following an unfavourable breath test, the police officer has power to arrest the driver (see par [73] supra ).
80 The driver of the vehicle had in fact left her vehicle, and the first part of the breath test had taken place near to her vehicle but inside the car park. Whilst there may have been no difficulty, if the driver of the vehicle was willing to do so , for the driver and the police to leave the car park for the purposes of the administering the remainder of the breath test, I do not accept that the availability of a different course of conduct destroys a police officer's authority to remain on private property in order to complete a breath test notwithstanding that the implied licence to the police to be in the car park had been withdrawn. In any event, the plaintiff did not seek to raise such an issue at the trial. Indeed, his counsel's cross-examination of the driver appears to have been based in part on the suggestion that the police officers had determined to breath test her simply because she had cut-off their unmarked vehicle when she entered the car park, which would appear to contradict any willing cooperation on her part. It is unnecessary in the present case to determine whether a police officer has the power to direct a driver to move from a road related area to another place in order to undergo a breath test.
81 In my opinion, based on the findings of fact the judge made, the only conclusion open to him as a matter of law was that, notwithstanding the plaintiff's order to leave, the three police officer defendants remained lawfully in the car park whilst completing the breath test of the driver of the vehicle they had seen drive in: Halliday v Nevill at 6. They were not trespassers as alleged by the plaintiff, and the plaintiff's claim in trespass was correctly dismissed. It follows that the argument put by the plaintiff that, because the police officers were trespassers, he would necessarily be entitled to succeed in relation to his claims for assault and false imprisonment (see par [69] supra ) is rejected, and the cross-appeal must be dismissed.
82 It also follows that, if the amendment now sought by the defendants to plead those defences which were irregularly litigated at the trial is granted, the verdicts would have to be set aside, and there would have to be a new trial on all issues, for the reasons stated in pars [61]-[66] supra . The only way in which the resulting prejudice to the plaintiff could be met is by a costs order in his favour. I turn now to the nature of the costs order to be made.
83 I am satisfied that those representing the defendants at the trial were solely to blame for the consequences of their failure to plead the special defences now to be pleaded. The usual order would be that the defendants pay the plaintiff's costs thrown away by the amendment. It has already been made clear that that failure produced substantial prejudice to the plaintiff (see pars [61]-[65] supra ). Even putting to one side my criticism of those representing the defendants at the trial (expressed in par [62] supra ), the circumstances of this case are such as to require the defendants to pay the plaintiff's costs of the whole first trial in any event, as there is nothing of value in that trial which can be preserved. An order which was often made in such a case was that those costs be assessed on a solicitor and client basis. Such costs are not mentioned in s 98(1)(c) of the Civil Procedure Act 2005, which Act applies to proceedings commenced before the commencement of that Act: Sched 6, cl 5. In my opinion, the prejudice to the plaintiff would appropriately be met by an order that his costs of the whole trial be paid by the defendants assessed on an indemnity basis.
84 I would therefore grant the amendment sought by the defendants, set aside the verdicts, order a new trial on all issues and make such an order for costs. That being the result of the appeal, it is strictly unnecessary to deal with the other issues raised by the parties on appeal but, as some of the matters were fully argued, it may be of some assistance to the trial judge at the new trial if some reference were made to three of those matters.
85 The first of those matters is the defendants' complaint that the judge's finding that the use of the capsicum spray by Const Pringle was not justified as a response to apprehended violence from the plaintiff was inconsistent with his finding in favour of Const Hutchinson, and perverse. Insofar as that complaint is limited to self-defence as a justification, it is sufficient to say that, on the facts found by the judge, the circumstances in which Const Pringle used the spray were clearly different from those in which Const Hutchinson used the spray. On each occasion Const Hutchinson used the spray, the plaintiff was acting in such a manner as to indicate the immediate use of violence by him (see pars [14] and [18] supra ). When Const Pringle used the spray, according to the facts found by the judge, the plaintiff at that stage "may have been affected" by the first spray by Const Hutchinson, he was holding his hands crossed in front of his face (to cover his eyes) and he had nothing in his hands. On those facts, there was no inconsistency in the judge's findings based on self-defence as justification.
86 The second of the matters to which reference should be made is the defendants' complaint that, despite finding that Const Hutchinson had not assaulted the plaintiff, the judge erroneously held him jointly liable for the assault by Const Pringle.
87 As pleaded in his Statement of Claim, the plaintiff's claim for assault was that "the first to third defendants did assault and beat the plaintiff, causing him injury and damage". The particulars were that "the first to third defendants then assaulted the plaintiff by spraying him with capsicum spray and handcuffing him while purporting to arrest him". That claim could have been more specifically pleaded, but in my view it is sufficiently widely expressed as to include the joint participation by each of the police officers in each of the three assaults on the plaintiff alleged.
88 In his initial judgment, and before hearing argument on the point, the judge found that both police officers "were really jointly participating in the events". He pointed out in the subsequent argument on this issue that both officers sprayed the plaintiff, and he posed the question whether the action by Const Pringle was a frolic of its own, or whether it was "so far removed" from the actions of Const Hutchinson that there should be different verdicts. He thought that it was not "going to make a great deal of difference [as] the State must be vicariously liable". He thought that the only question was whether or not it would affect any costs order, and he was concerned that the plaintiff may have to pay the costs of the second defendant. In his second judgment, which dealt only with the issue of joint liability, the judge said:
Counsel for the plaintiff has submitted that Const Hutchinson, by virtue of his temporal and physical proximity to Const Pringle, was participating in the commission of a tort by Const Pringle. There certainly was a temporal and physical proximity by Const Hutchinson in the tort committed by Const Pringle.