State of New South Wales & Anor v Coleman [2000] NSWCA 183 | Case summary

1 MASON P: I agree with Meagher JA and Fitzgerald JA. 2 I would add this. The appellant's submission that the imprisonment was lessened in its "falseness" or impact because Mr Coleman or his solicitor failed to point out Constable Baird's error is particularly unappealing. It inverts the whole law of arrest, which requires the arresting party to give proper explanation (unless impractical), which seeks to accommodate an accused person's right to silence and which throws the burden of justification (when challenged) upon the arresting party. 3 MEAGHER JA: This is an appeal from a decision of his Honour Quickenden ADCJ in favour of Mr Coleman, the respondent, in an action brought by him against the appellants for false arrest and wrongful imprisonment. The second respondent, Mr Keith Baird, is a policeman. The action arose against a background of apprehended violence orders. 4 These are orders made pursuant to Part 15A of the Crimes Act. The key provision is s.562B, which, in part, provides: "(1) A Court may, on complaint, make an apprehended violence order if it is satisfied on the balance of probabilities that a person has reasonable grounds to fear and in fact fears: (a) the commission by another person of a personal violence offence against the person;…." 5 Section 562BC of the Act provides: "Unless otherwise ordered, every order is taken to specify that the defendant is prohibited from doing any of the following: (a) engaging in conduct that intimidates the protected person or a person with whom he or she has a domestic relationship; (b) stalking the protected person." 6 By s.562A "intimidation" is defined as meaning: (a) conduct amounting to harassment or molestation; or (b) the making of repeated telephone calls; or (c) any conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has a domestic relationship, or of violence or damage to any person or property;" 7 Mr Coleman had, for many years, a rather stormy relationship with a lady called Miss Joanne Sinclair. This relationship began in 1991, and had deteriorated to the extent that, by 28 February 1994, Miss Sinclair obtained an Apprehended Violence Order against Mr Sinclair (although it was revoked, on Miss Sinclair's request, four months later). Later, on 21 September 1995, she obtained a second Apprehended Violence Order from the Waverley Local Court against Mr Coleman. (In this case the informant policeman was the respondent Mr Baird). It was with this Apprehended Violence Order that the present case is concerned. The orders made were apparently in the following form: "The defendant" ie Mr Coleman "is not to engage in conduct which intimidates the protected person or any person with whom the protected person has a domestic relationship or of violence or damage to any person or property." In addition the defendant is:- 1. not to engage in conduct amounting to harassment or molestation of the protected person; 2. not to enter premises in which the protected person may from time to time reside; 3. not to contact the protected person except through his legal advisers." 8 On 25 September 1995 Mr Coleman lodged an appeal pursuant to the provision of s.122 of the Justices Act. On the filing of such an appeal, the Apprehended Violence Orders were stayed. However, Mr Coleman had to, and did, enter into a recognisance to prosecute the appeal, with conditions being attached in exactly the same terms as the previous Court orders. 9 The appellant both before the trial judge and in this Court, always maintained that Mr Coleman had by his conduct on 11 October 1995 committed breaches of either or both of condition 1 and condition 3 of the bail order. There was much debate before us as to whether condition 1 or condition 3 was the appropriate candidate. In my view, it does not matter, as there was no breach of either. 10 There are two versions of what happened on 11 October 1995. One is that of a Miss Susan Franklin, a "Bar Manager". On 9 November 1995 she signed a document which, insofar as it is relevant, reads as follows: "I am employed as a Bar Manager at the Four in Hand Hotel. I have held this position for two years. On Wednesday the 11th of October I started work at 5.00pm. I saw a female person in the bar with a group of her friends. They had just bought a bottle of Champagne. About 5.30ish Doug COLEMAN came into the bar. One of the Bar Staff came over and wanted me to speak to Doug. I said, "what's the problem" or something along those lines. He explained that she had a restraining order on him and that he was in the process of getting one on her. At the time he was agitated. He said he was meeting friends here and that he couldn't be in the vicinity of her and could I ask her to leave. I told him that I couldn't ask her to leave but I would talk to her. I approached her at the cigarette machine and explained what I had just been told by Doug. She said, "don't worry, I'm going to leave" I said, "I'm not asking you to leave but if you do maybe it's for the better". I thanked her for being so good about it. She said she would finish her champagne and leave. I then spoke to Doug and said to him that it was all okay she was going to leave. I saw her leave a short time later and went up and thanked her." 11 The other is contained in a statement made by Miss Sinclair herself on 20 October 1995. It relevantly reads as follows: "Approximately 5.30pm on Wednesday 11 October I went to the Four in Hand Hotel in Paddington with 2 girlfriends of mine. We went there to meet one of the girls husband (sic)". Upon entering the Hotel I purchased a bottle of Champagne celebrating a win at the races. Approximately 5 minutes later my attention was drawn to the front of the Hotel. From where I was seated I saw a Mitsubishi 4wd parking outside the hotel. I continued drinking with my friends. I then saw a male person whom I know as Mr Douglas COLEMAN enter the hotel. I was became (sic) upset by the situation but after speaking with my friends decided to finish my champagne and leave. A few minutes later I saw Mr COLEMAN having a conversation with the Bar Manager of the Hotel, pointing at me, indicating he was speaking about me. I walked to the back of the hotel ignoring Mr COLEMAN and went to purchase a packet of cigarettes. At the cigarette machine the Bar Manager approached me and commenced to have a conversation with me. She approached me and told me something in relation to Mr COLEMAN and the persons I was drinking with. She also indicated that there could be problems involving myself and it was best that I leave the premises. I told her that there would be no problem with me that I would return to my table, drink my Champagne and leave. I returned to my table. I did not finish my Champagne as I was beginning to feel scared in anticipation of his next reaction. I told the Manager I was leaving and she thanked me and I left with one of my friends. 12 It is at once apparent that, whatever beliefs one might have about what happened, there was no breach by Mr Coleman of any Court order, since all orders had been stayed; nor of any bail condition in the form of the old Order 1, because there was, on any view, no violence or threat of violence, no harassment and no molestation (even giving any of those terms their statutory enlargement); nor was there any breach of the Bail Condition corresponding to old Order 3, because he did not constitute Miss Franklin his agent to transmit any message to Miss Sinclair, nor did she do so. It was Miss Sinclair's own decision to leave the hotel, without any prompting from Miss Franklin. All Miss Franklin did was to draw Miss Sinclair's attention to a potentially inflammable state of affairs. 13 Constable Baird knew no more about the incident than what Misses Franklin and Sinclair told him. 14 Nevertheless, armed with no more than that information, Constable Baird arrested Mr Coleman. Mr Coleman was, at that time, sitting in his underclothes watching television, when Constable Baird burst into his unit, having no warrant, and giving no prior warning. He was taken to the Waverley Police Station and detained for approximately 2 1/2 hours. He was at that time photographed, fingerprinted and handcuffed. He was informed that he had been arrested either for breach of the Apprehended Violence Order against intimidation (or, on another version, simply for breach of an Apprehended Violence Order). Constable Baird did not know that the Apprehended Violence Order had been stayed by an appeal. In any event, this legal nicety would not in any practical sense have altered things much: if Constable Baird had known, he would simply have released Mr Coleman and then immediately re-arrested him for breach of the corresponding conditions of bail. 15 His Honour held that Constable Baird genuinely believed that there had been a breach of the Apprehended Violence Order, but that there was no rational justification for that belief. This was a holding which the appellants attacked. However, if my analysis of what happened at the hotel on 11 October 1995 be correct, his Honour's finding was both correct and inevitable. 16 Mr Coleman sought damages for injury to his liberty, injury to his feelings (including mental suffering, disgrace and humiliation), injury to his reputation, and physical injury. As to the last head of damages, his principal complaint was that the imprisonment had aggravated his bruxism (tooth-grinding). This was supported by the testimony of his dentist. 17 A report from a clinical psychologist, Miss Kerry Powell, was also in evidence, which said in part: "The plaintiff presented with symptoms consistent with a mild Post Traumatic Stress Syndrome. This has occurred as a direct result of the stress he had endured as a result of the action of his de-facto wife….Mr Coleman has been physically abused, threatened, wrongfully arrested" 18 In the event, his Honour made an award of $53,545.00 in Mr Coleman's favour. It was composed by the following items: "Past Legal Expenses $ 3,750.00 Past Medical and Related Expenses $ 4,300.00 (Dental and psychological) Future Dental and Related Expenses $ 9,600.00 Past Loss of Earning Capacity $ 6,630.00 General Damages $ 28,000.00 Interest on Past General Damages $ 1,265.00 $53,545.00 19 I shall now deal with these attacks which were made on this verdict. The first is the simple one that the verdict is excessive. Bearing in mind the traditional importance which the Courts have placed on personal liberty, I do not think this attack can be sustained. The second is that the verdict is based on an unjustified imprisonment of 2 ½ hours, during which time Constable Baird had the wrongful belief that there had been a breach of the Apprehended Violence Order; at no time during that time did either Mr Coleman or his solicitor inform Constable Baird that his belief was mistaken and that the Apprehended Violence Orders were stayed; if they had done so Mr Coleman would have been released, and thus the damages for 2 ½ hours imprisonment were unjustified. This attack, also, must be repelled. His Honour found: "I concur with Mr Saidi's submission that had the second Defendant's [scil. Constable Baird] bail continued, it is probable that the arrest would have been made for an alleged breach of that condition." 20 In other words, if, after the arrest Constable Baird had learned of the stay of the Apprehended Violence Order he would have released Mr Coleman,, then re-arrested him on a different charge. Mr Coleman's length of incarceration would have been the same. The third attack is based on the refusal of an application for an adjournment. Mr Constable had in 1985 been involved in a motor car accident in respect of which he was suing the Government Insurance Office. At all material times the appellants knew of the accident. However, the accident proceedings were only just commencing when the current litigation was ending. Moreover, the appellants did not know of the accident litigation until the last day of the current litigation (although, whether they could have, using reasonable diligence, discovered it earlier is a different proposition). The appellants obtained access to the files relating to the accident litigation during lunchtime on that day, and after lunch successfully sought to reopen their case. This resulted in one coup: in the accident proceedings Mr Coleman claimed that he could only work three or four days per week, whereas in the current proceedings he claimed that he worked six or seven days a week. This discrepancy was proved before his Honour, who took it into account in assessing damages. The appellants then sought an adjournment and were refused it. As I understand their appeal against that refusal, they complain that they were deprived of the opportunity of rummaging through the accident case files and thereof finding material which would reduce Mr Coleman's damages in the current proceedings. I find their appeal on this matter to verge on the ridiculous: there was only one feature the appellants could point to when there was a contradiction between the two versions of Mr Coleman's evidence, and the judge was seised of this: the psychologist in the current proceedings said in her report that she knew of the accident and in her view it had nothing to do with his current psychological problems; most of the same issues were different in each case - in the motor accident case the actual question was the extent of the injury to his back, whereas in the current proceedings the actual question was the injury to his feelings and reputation; insofar as any of the accident medical reports were relevant to the current proceedings, the appellants had copies of them. The appellants were unable to point to any reason why the adjournment should have been granted. 21 The appeal should be dismissed with costs. 22 FITZGERALD JA: The circumstances giving rise to this appeal are set out in the judgment of Meagher JA. I agree with the orders proposed by his Honour and with his reasons, but add the following comments. 23 The appellants' case depended upon s 352(2)(a) of the Crimes Act 1900, which provides that a constable "may without warrant apprehend … any person whom the constable, with reasonable cause, suspects of having committed [an] ..offence" which is "punishable, whether by indictment, or on summary conviction, under any Act". 24 As stated by Meagher JA, the respondent had not committed an offence under any Act and the appellant police officer did not have reasonable cause to suspect that he had done so. 25 The arrest occurred on 24 October 1995, almost a fortnight after the incident on 11 October 1995 which the appellant police officer relied on as an offence. The arrest took place without prior warning at the respondent's home, at night, in the presence of the respondent's partner. The respondent was handcuffed, taken to the police station, photographed, fingerprinted and detained for a period of hours. 26 The appeal was conducted on the assumption that the arrest and imprisonment of the respondent would have been lawful if the appellant police officer had had reasonable cause to suspect the respondent of having committed a breach of the apprehended violence order even if - as I think - it was grossly unreasonable to arrest and imprison the respondent in the circumstances. It is unnecessary for this Court to consider whether the assumption made is correct, and I expressly refrain from doing so. It might be necessary in the future to decide whether an arrest is lawful if a power of arrest is abused. 27 However, what was said by this Court in Fleet v District Court of NSW (1999) NSWCA 363, paras. [73] and [74] merits repetition: "[73] Lawfulness of arrest is one thing, appropriateness is another. Nevertheless, it is difficult to understand how it could have been thought appropriate to exercise any available power of arrest in the present circumstances, where Mr Dymond and the third opponent knew the claimant's name and residential address and where there was nothing to suggest that the claimant was at risk of departing. Deane J pointed out in Donaldson v Broomby (1982) 60 FLR 124 at 126 that: Arrest is the deprivation of freedom. The ultimate instrument of arrest is force. The customary companions of arrest are ignominy and fear. A police power of arbitrary arrest is a negation of any true right to personal liberty. A police practice of arbitrary arrest is a hallmark of tyranny. It is plainly of critical importance to the existence and protection of personal liberty under the law that the circumstances in which a police officer may, without judicial warrant, arrest or detain an individual should be strictly confined, plainly stated and readily ascertainable. [74] There have been many judicial statements about the inappropriateness of resort to the power of arrest (by warrant or otherwise) when the issue and service of a summons would suffice adequately ( O'Brien v Brabner (1885) 49 JP 227, R v Thompson [1909] 2 KB 614 at 617, Dumbrell v Roberts [1944] 1 All ER 326 at 332, Chung v Elder (1991) 31 FCR 43). Some are in a legal context that differs from the present. (S352 of the Crimes Act 1900 is different in some respects from the legal regime in the Australian Capital Territory considered in Donaldson.) Nevertheless, it remains appropriate that those vested with extraordinary powers of arrest should be reminded of the need to consider whether they should be exercised in a particular case. The arrest in this case seems to have an element of the arbitrary about it, which brings to mind the tyranny Deane J warned against. Such cases are harmful to the free society we all want to preserve."

State of New South Wales & Anor v Coleman

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