State of New South Wales v Bouffler - [2017] NSWCA 185 - NSWCA 2017 case summary — Zoe

NSWNSWCA

State of New South Wales v Bouffler

[2017] NSWCA 185

Court of Appeal (NSW)|2017-02-20|Before: Beazley ACJ, Ward JA, Gleeson JA

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Source facts

Court

Court of Appeal (NSW)

Decision date

2017-02-20

Before

Beazley ACJ, Ward JA, Gleeson JA

Source

Original judgment source is linked above.

Judgment (70 paragraphs)

[1]

d v Clements [2015] NSWCA 212 Hyder v Commonwealth (2012) 217 A Crim R 571; [2012] NSWCA 336 Kuru v State of New South Wales (2008) 236 CLR 1; [2008] HCA 26 Lee v New South Wales Crime Commission [2012] NSWCA 262 Li v Chief of Army (2013) 210 FCR 299; [2013] FCAFC 20 Li v Chief of Army (2013) 250 CLR 328; [2013] HCA 49 Luxton v Vines (1952) 85 CLR 352; [1952] HCA 19 New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 37 Nilsson v McDonald (2009) 19 Tas R 173 O'Hara v Chief Constable of Royal Ulster Constabulary [1997] AC 286 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v State of New South Wales [2014] NSWCA 116 R (Laporte) v Chief Constable of Gloucestershire Constabulary [2006] UKHL 55; (2007) 2 AC 105 R v Chief Constable of the Devon and Cornwall Constabulary, ex parte Central Electricity Generating Board [1982] QB 458
R v Howell (1982) QB 416 R v Van Bao Nguyen (2002) 139 NTR 15; [2002] NTSC 38 Rickard v State of New South Wales [2010] NSWSC 151 Rodi v Gelonesi [2012] NSWCA 424 State of New South Wales Landini [2010] NSWCA 157 State of New South Wales v McCarthy (2015) 251 A Crim R 445; [2015] NSWCA 153 State of New South Wales v McMaster (2015) 91 NSWLR 666; [2015] NSWCA 228 State of New South Wales v Robinson [2016] NSWCA 334 State of New South Wales v Tyszyk [2008] NSWCA 107 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 The Entrance Plaza Pty Ltd v Davids [2016] NSWCA 362 Tomarchio v Pocock [2002] WASCA 156 Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118, XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 Texts Cited: Clayton and Tomlinson, Civil Actions Against the Police (3rd ed, 2005, Sweet & Maxwell) Category: Principal judgment Parties: State of New South Wales (Applicant) Stephen James Bouffler (Respondent) Representation: Counsel: J E Maconachie QC; G Bateman D Toomey SC; D Woodbury

[2]

[4]

[This headnote is not to be read as part of the judgment] On 21 October 2013, the respondent was arrested by officers of the New South Wales Police Force who entered his house following a two hour standoff during which the respondent refused to come out. At the time, the respondent's two young children were inside with him. Earlier that day, the respondent had attended at his former partner's place of employment and engaged in harassing and intimidating conduct in breach of an Apprehended Domestic Violence Order (ADVO). A total of 17 police officers attended at the respondent's premises, nine of whom entered his house. The respondent brought proceedings against the State, pursuant to the Law Reform (Vicarious Liability) Act 1983 (NSW), alleging that he had been unlawfully arrested, and wrongly imprisoned and that the police officers had trespassed upon his property and his person. The case was conducted at trial on the basis that the conduct of the officers was governed by the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA). The trial judge held that all officers who entered the house were "arresting officers" and that six of those officers did not hold the state of mind required by LEPRA, s 99 in effecting the arrest. However, as his Honour found that the respondent had been lawfully arrested by three officers who had entered the house, he held that the respondent was not entitled to damages for wrongful imprisonment. His Honour found that two of the officers who had entered the house committed an assault. His Honour also held that the six officers and seven of the eight officers positioned on the property outside the house had trespassed upon the respondent's property. His Honour awarded the respondent $5,000 for each of the trespass to property and the trespass to the person. His Honour also awarded $2,500 by way of aggravated and exemplary damages in respect of both torts. The State sought leave to appeal and the respondent sought leave to cross-appeal. Leave was granted in both respects. The parties raised numerous issues on the appeal and cross-appeal. In essence the issues raised challenged his Honour's findings that the arrest was lawful, that the six officers who entered the house were "arresting officers", that the police had trespassed upon the respondent's property and that the respondent had been assaulted. These issues raised the proper construction of LEPRA ss 9 and 10 and s 99, in its form as at the date of arrest. In particular, central to the State's argument in respect of the six officers who entered the house was that they were not "arresting officers" but were there to assist other officers engaged in the arrest of the respondent, and that their entry into the house was permitted by the legislation. The same argument was raised in respect of the officers on the perimeter of the property. The State also challenged the award of aggravated and exemplary damages.

[5]

Held: (i) On their proper construction, ss 9, 10 and 99 require that each individual officer who exercises a function under those sub-sections have the state of mind stated in those sub-sections. [47], [63] Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v State of New South Wales [2014] NSWCA 116; State of New South Wales v McCarthy (2015) 251 A Crim R 445; [2015] NSWCA 153; Bulsey v Queensland [2015] QCA 187; Halliday v Nevill (1984) 155 CLR 1; Kuru v State of New South Wales (2008) 236 CLR 1; [2008] HCA 26 (ii) When a statutory provision requires that a state of mind be based or held on reasonable grounds, the question whether there are reasonable grounds is to be determined objectively at the time when the relevant power or function is exercised. [87] George v Rockett (1990) 170 CLR 104; Hyder v Commonwealth of Australia (2012) 217 A Crim R 571; [2012] NSWCA 336; O'Hara v Chief Constable of Royal Ulster Constabulary (1997) AC 286 (iii) There were reasonable grounds for the challenged officers' suspicion that (i) the respondent had breached the ADVO by attending at his former partner's place of employment, and (ii) it was necessary to arrest the respondent to prevent the repetition of the offence, being a further breach of the ADVO. [94], [96], [106]-[107] (iv) The trial judge did not err in his finding that the arrest of the respondent by three of the officers was lawful. All three officers satisfied the requirements of s 99(2), as well as s 99(3). [94], [106]-[107], [120], [122], [124], [132] (v) The trial judge was correct in finding that it was inappropriate to deal with the matter by way of a Court Attendance Notice. [137] (vi) The notion of a "breach of the peace" is multifaceted and includes a wide range of actions and threatened actions that interfere with the ordinary operation of civil society. A threat or realistic apprehension of self-harm could constitute a breach of the peace. The provisions of LEPRA, ss 9(1)(a) and 9(1)(b) are not limited to harm to a third person. [164], [167] State of New South Wales v Tyszyk [2008] NSWCA 107 applied. R v Howell (1982) QB 416; Li v Chief of Army (2013) 210 FCR 299; [2013] FCAFC 20; Li v Chief of Army (2013) 250 CLR 328; [2013] HCA 49; R (Laporte) v Chief Constable of Gloucestershire Constabulary (2007) 2 AC 105; [2006] UKHL 55; R v Chief Constable of the Devon and Cornwall Constabulary, ex parte Central Electricity Generating Board [1982] QB 458; R v Van Bao Nguyen (2002) 139 NTR 15; [2002] NTSC 38; State of New South Wales v McMaster (2015) 91 NSWLR 666; [2015] NSWCA 228 considered. (vii) The trial judge did not err in finding that Superintendent Driver's entry into the house was authorised by LEPRA, s 9(1). There was a reasonable basis for his belief that a breach of the peace was likely to be committed. There was also evidence that he determined it was necessary to enter the house immediately to prevent significant personal injury. [169]-[170] (vii) "Arrest" in the context of arrest without a warrant retains the common law hallmarks of bringing a person into the custody of the law and, to be effective requires, that the person to be arrested submit to the arrest. [197]-[198] Christie v Leachinsky [1947] AC 573; Alderson v Booth (1969) 2 QB 216 Richard Clayton and Hugh Tomlinson, Civil Actions Against the Police (3rd ed, 2005, Sweet & Maxwell) (ix) The trial judge erred in finding that the six officers who entered the respondent's house entered with the purpose of arresting the respondent. As they did not enter to arrest the respondent, they did not enter pursuant to LEPRA, s 10. [206]-[210], [227] (x) Entry to a premises pursuant to LEPRA, s 10 does not require a lawful arrest for the purposes of ss 99(2) or 99(3). [224] (xi) Whether or not a person has a state of mind involves a finding of fact. Facts may be proved directly or by drawing inferences from proved facts. In this case, there was sufficient evidence upon which to infer that each officer who entered the house had the relevant state of mind for the purposes of LEPRA, s 9. [231]-[232], [238]-[243] Luxton v Vines (1952) 85 CLR 352; [1952] HCA 19; Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1; Holloway v McFeeters (1956) 94 CLR 470; [1956] HCA 25 (xii) The trial judge erred in finding an assault on the respondent. The force used by the officers in question was reasonably necessary within the meaning of LEPRA, s 230. [253]-[255] (xiii) There was sufficient evidence upon which to infer that the officers who entered the property but remained on the perimeter had the relevant state of mind under LEPRA, s 9. [279]-[280] (xiv) Even if the police officers had committed trespass to property or trespass to the person, there was no basis for the trial judge's award of aggravated or exemplary damages. [295]-[297]

[6]

Judgment

THE COURT: On 21 October 2013, the respondent was arrested after officers of the New South Wales Police Force had forcefully entered his home. In the two hours prior to the arrest, police officers had been negotiating with the respondent to come out of the house for the purpose of being arrested for breaching an Apprehended Domestic Violence Order (ADVO) earlier that day, but he refused to do so. The person in need of protection under the ADVO was EB, the respondent's former partner and mother of their two children. The breach of the ADVO was alleged to have occurred at EB's place of employment.
Throughout the time that the police were at the respondent's premises, the respondent had drawn the blinds and "barricaded" himself inside the house. The respondent's two young children were with him inside the home. During the course of the incident, the respondent was described as "shouting and ranting", acting "irrationally" and "not being in a capable state of mind of caring for the children".
The respondent brought proceedings in the District Court against the State of New South Wales (the State) for trespass to his person and his property. The State is vicariously liable for tortious conduct of police officers pursuant to the Law Reform (Vicarious Liability) Act 1983 (NSW), s 8(1). The case was conducted at trial on the basis that the conduct of the police officers was governed by the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA). The State placed no reliance on any common law right of entry.
The trial judge found, at [329], that the respondent had been lawfully arrested by three police officers, Constable Tolhurst, Inspector Atkins and Superintendent Driver, each of whom had satisfied the requirements of LEPRA, ss 10 and 99. His Honour further held that Superintendent Driver had lawfully entered the premises pursuant to LEPRA, s 9.
His Honour held that another six officers (the other six officers) who had entered the respondent's home had done so for the purpose of arrest but had acted unlawfully, as none of those officers had the state of mind required by LEPRA, s 99(3). On his Honour's findings, those officers had trespassed upon the respondent's property. His Honour also held, at [345], that two of those officers, Senior Constable Webster and Constable Simpson, had committed a trespass to the person, when the officers became involved in a struggle or wrestle with the respondent.
Another eight officers were also on the respondent's premises, either in the garden or around the side or back of the house, essentially securing the perimeter. One of the officers, Detective Senior Constable Justine Priest, was at the front door for a period trying to negotiate with the respondent. None of these officers entered the house, nor did they play any active role in the arrest of the respondent.
His Honour held that, other than Constable Bennett, who had accompanied Constable Tolhurst when he went to EB's place of employment, the entry of these officers on the respondent's property was unlawful as none of them had formed a belief on reasonable grounds that a breach of the peace was being or was likely to be committed: see LEPRA, s 9; nor were they on the property to arrest the respondent: see LEPRA, s 10.
His Honour awarded the respondent $5,000 for trespass to property and $2,500 by way of "aggravated and/or exemplary damages" in respect of that trespass. His Honour further awarded the respondent damages in the sum of $5,000 for "trespass to the person", together with "aggravated and exemplary damages" in respect of the trespass to the person, also in the sum of $2,500.
Although his Honour found that a number of officers "participated unlawfully as arresting officers", he did not award damages for false imprisonment in light of the finding that Constable Tolhurst, Inspector Atkins and Superintendent Driver had lawfully arrested the respondent.
The State sought leave to appeal from his Honour's orders. Leave is required as the amount in issue by way of damages does not exceed the minimum statutory threshold of $100,000 for an appeal as of right: Supreme Court Act 1970 (NSW), s 101(2)(r). The respondent opposed the grant of leave but, in the event that leave were granted, sought leave to cross-appeal. The summons for leave to appeal and cross-appeal were heard concurrently with the appeal and the cross-appeal.
Leave to appeal will only be granted where there are substantial reasons to allow an appellate review: Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69; Rodi v Gelonesi [2012] NSWCA 424 at [24]; Collier v Lancer (No 2) [2013] NSWCA 186 at [7]. In Lee v New South Wales Crime Commission [2012] NSWCA 262, Bathurst CJ (Macfarlan and Barrett JJA agreeing) said, at [12], that in the usual case: "… it is only appropriate to grant leave concerning matters that involve issues of principle, questions of general public importance or where it is reasonably clear there has been an injustice in the sense of going beyond it being reasonably arguable that the primary judge was in error: Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69; Zelden v Sewell [2011] NSWCA 56 at [22]; Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; GKD v Director of Department of Family & Community Service [2012] NSWCA 219 at [10]; Be Financial Pty Ltd v Das [2012] NSWCA 164 at [32]-[34]."
The quantum of damages awarded is also relevant to the question whether the Court will grant leave, the Court being disinclined to do so where the amount at issue is significantly below the statutory threshold: see Bushby v Dixon Holmes du Pont Pty Ltd [2012] NSWCA 90; The Entrance Plaza Pty Ltd v Davids [2016] NSWCA 362; Australian Federation of Islamic Councils Inc v Farrell [2016] NSWCA 256; HP Mercantile Pty Ltd v Clements [2015] NSWCA 212. Where there is no question of principle and the amount at issue is small, leave to appeal will usually be refused: Rodi v Gelonesi at [25].
The State submitted that leave to appeal should be granted. It contended that the conduct of the police officers on this occasion was lawful and that, notwithstanding the small amount of damages awarded, the question of the lawfulness of the conduct of police officers was a matter of public interest. The State, in support of the grant of leave, tendered a newspaper article that referred to the extent of domestic violence in the local area. The article was said to be admissible pursuant to the Evidence Act 1995 (NSW), s 144. The Court has determined that the article was not admissible. It neither proves, nor could it prove, whether or not the statutory requirements of LEPRA were satisfied in respect of the arrest of the respondent and hence was irrelevant to any issue in the proceedings.
The respondent pointed out that LEPRA, s 99, in its form which governed the conduct of the police at the time of the incident, has been amended and so far as was known, there were no pending cases relating to the application of s 99 in the form it was at the time of the respondent's arrest. He contended, therefore, that there was no ongoing question of public interest involved. He submitted that this Court in its recent decision of State of New South Wales v Robinson [2016] NSWCA 334 had considered s 99 in its form prior to the recent amendments so that no question arose for determination. The respondent also relied upon the small amount of damages involved as pointing against the grant of leave.
The Court is of the opinion that the matter raises important questions of public interest in relation to the lawfulness of the conduct of police officers, who, whilst not present to arrest, attend a location to support those officers engaged in the arrest. State of New South Wales v Robinson was not directly concerned with the point raised in this appeal. That case was concerned with the meaning of "necessary" in s 99(3), as opposed to the state of mind required under the section. There is no authority which has considered the state of mind required on the proper construction of s 99(3) in the form it was at the time of the incident subject of the proceedings. More particularly, the proper application of LEPRA, ss 9 and 10 to the conduct of police officers is of continuing importance. In addition, for reasons which we explain, his Honour's award of aggravated and exemplary damages was without any proper foundation.
Accordingly, leave to appeal should be granted.
Given that the issues on the cross-appeal are intertwined with the appeal, leave to cross-appeal should also be granted. The reasons which follow relate to the determination of the appeal and the cross-appeal.

[8]

Issues raised by the grounds of appeal and cross-appeal

The combined issues raised by the grounds of appeal and cross-appeal were, therefore, as follows: 1. Whether the trial judge misconstrued or misapplied LEPRA, ss 9, 10 and 99: ground 1 of the appeal. 2. Whether the trial judge erred in finding that the respondent had contravened the ADVO: ground 2 of the cross-appeal (where secondly appearing). 3. Whether the trial judge erred in finding that Constables Tolhurst and Bennett and Inspector Atkins correctly concluded that the respondent had contravened the ADVO: ground 1 of the cross-appeal. 4. Whether the trial judge erred in finding, implicitly, that Constables Tolhurst and Bennett and Inspector Atkins' suspicions that the respondent had contravened the ADVO were held on reasonable grounds: ground 2 of the cross-appeal (where first appearing). 5. Whether the trial judge erred in finding that Constable Tolhurst's suspicion that the arrest of the respondent was necessary to prevent the repetition of a breach of the ADVO was held on reasonable grounds: ground 3 of the cross-appeal. 6. Whether the trial judge erred in finding that the arrest was lawful: ground 5 of the cross-appeal. 7. Whether the trial judge erred in finding that it was "inappropriate" to deal with the matter by way of a Court Attendance Notice: ground 4 of the cross-appeal. 8. Whether the trial judge erred in finding that Superintendent Driver was justified in entering the respondent's property pursuant to LEPRA, s 9: ground 6 of the cross-appeal. 9. As to each of the other six officers who entered the house: 1. Whether they purported to arrest the respondent under LEPRA, s 99: grounds 4(a) and (c) of the appeal; 2. If so, whether each officer failed to comply with LEPRA, s 99(3) such that they unlawfully arrested the respondent: grounds 4(d) and (e) of the appeal; 3. If so, whether each officer had unlawfully arrested the respondent in circumstances where the respondent "retained no right or interest in his freedom to go at large": ground 7 of the appeal; 4. If there had been an unlawful arrest, whether each officer was liable for the tort of unlawful arrest: ground 5 (in part) of the appeal; or 5. Whether the officers acted lawfully in response to the direction of senior officers to assist with the arrest: ground 6 (in part) of the appeal. 1. Whether the other six officers who entered the house acted in purported exercise of the power of entry under LEPRA, s 10 or whether they committed a trespass in entering upon the land: grounds 4(b) and 5 (in part) of the appeal. This ground raised the sub-issue of whether the officers acted lawfully in response to the direction of senior officers to enter the house: ground 6 (in part) of the appeal. 2. Whether the trial judge erred in finding that Senior Constable Webster and Constable Simpson assaulted the respondent: grounds 2 and 3 of the appeal. 3. Whether the officers positioned outside the premises committed a trespass upon the respondent's property: ground 8(c) of the appeal. This ground raised the following sub-issues: 1. Whether those officers were reliant on LEPRA, ss 9 and 10 to justify entry upon the property: ground 8(a) of the appeal; 2. Whether those officers had the relevant state of mind for the purpose of those sections: ground 8(b) of the appeal; 3. Whether the entry of those officers on the respondent's property was justified by orders given by another police officer to do so: ground 9 of the appeal. 1. Whether his Honour erred in awarding aggravated and exemplary damages: ground 10 of the appeal.
After identifying the relevant legislation, it will be appropriate to focus first on the proper construction of LEPRA, ss 9, 10 and 99, and upon the factual challenges to the trial judge's findings in relation to the breach of the ADVO, as the resolution of the other issues will depend to greater or lesser degree on the determination of those challenges. Before doing so, however, it is necessary to determine whether the case as argued on the appeal was run at first instance and, in particular, whether any question had been raised at trial regarding whether a police officer who provided assistance to an officer who effected an arrest was entitled to enter premises other than pursuant to ss 9 or 10.

[9]

What case was run at trial?

The respondent point to the State's pleaded defence that each of the officers who entered upon the respondent's property did so pursuant to the provisions of LEPRA, ss 9 and 10. The respondent acknowledged, but complained, that the only time that the State argued at trial that the police officers were present on the property to assist the officer or officers who arrested the respondent was in the course of the State's closing address, where the submission was advanced that the officers who entered the home "were not the arresting officers; they were assisting in the arrest which had already been initiated". He submitted that the State, on the appeal, ought to be confined to the case run at trial: see generally Suttor v Gundowda Pty Ltd (1950) 81 CLR 418, although the matter had been raised in the closing address, this did not mean that it had been "in issue" at the trial.
The State submitted that the question whether the officers who entered the house were providing assistance to Constable Tolhurst, Inspector Atkins and Superintendent Driver, had been in issue in the court below and had been ruled on, albeit rejected by the trial judge: see at [187]. It is also relevant to record here that the State submitted that when Constable Tolhurst, Inspector Atkins and Superintendent Driver formed a state of mind which engaged s 99 and/or ss 9 and 10, that state of mind could be imputed to the police officers who were assisting.
The State, in its argument on the appeal, also relied upon the Police Act 1990 (NSW), s 6 and LEPRA, s 230. The State acknowledged that these provisions had not been pleaded, nor had they been raised in argument below, but argued that they were relied upon in support of the State's construction of ss 9 and 10 and not an independent argument.
The Court is of the opinion that the case argued on the appeal was at least one of the ways in which the matter was conducted at first instance. That case, in essence, was that the police officers, other than Constable Tolhurst, Inspector Atkins and Superintendent Driver, who were on the property and who entered the house, were not present to arrest the respondent but had acted lawfully in response to directions and/or for the purposes of assisting Constable Tolhurst, Inspector Atkins and Superintendent Driver.

[11]

LEPRA

The right of a police officer to enter premises to arrest a person is governed by LEPRA. The relevant provisions as at the date of the respondent's arrest were as follows: "4 Relationship to common law and other matters (1) Unless this Act otherwise provides expressly or by implication, this Act does not limit: (a) the functions, obligations and liabilities that a police officer has as a constable at common law, or (b) the functions that a police officer may lawfully exercise, whether under an Act or any other law as an individual (otherwise than as a police officer) including, for example, powers for protecting property. (2) Without limiting subsection (1) and subject to section 9, nothing in this Act affects the powers conferred by the common law on police officers to deal with breaches of the peace. … 9 Power to enter in emergencies (1) A police officer may enter premises if the police officer believes on reasonable grounds that: (a) a breach of the peace is being or is likely to be committed and it is necessary to enter the premises immediately to end or prevent the breach of peace, or (b) a person has suffered significant physical injury or there is imminent danger of significant physical injury to a person and it is necessary to enter the premises immediately to prevent further significant physical injury or significant physical injury to a person. (2) A police officer who enters premises under this section is to remain on the premises only as long as is reasonably necessary in the circumstances. 10 Power to enter to arrest or detain someone or execute warrant (1) A police officer may enter and stay for a reasonable time on premises to arrest a person, or detain a person under an Act, or arrest a person named in a warrant. (2) However, the police officer may enter a dwelling to arrest or detain a person only if the police officer believes on reasonable grounds that the person to be arrested or detained is in the dwelling. … (5) In this section: arrest of a person named in a warrant includes apprehend, take into custody, detain, and remove to another place for examination or treatment. … 99 Power of police officers to arrest without warrant (1) A police officer may, without a warrant, arrest a person if: (a) the person is in the act of committing an offence under any Act or statutory instrument, or (b) the person has just committed any such offence, or (c) the person has committed a serious indictable offence for which the person has not been tried. (2) A police officer may, without a warrant, arrest a person if the police officer suspects on reasonable grounds that the person has committed an offence under any Act or statutory instrument. (3) A police officer must not arrest a person for the purpose of taking proceedings for an offence against the person unless the police officer suspects on reasonable grounds that it is necessary to arrest the person to achieve one or more of the following purposes: … (b) to prevent a repetition or continuation of the offence or the commission of another offence … 201 Supplying police officer's details and giving warnings (1) A police officer must provide the person subject to the exercise of a power referred to in subsection (3) with the following: (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. … (3) This section applies to the exercise of the following powers (whether or not conferred by or under this Act): (a) a power to search or arrest a person … (4) If 2 or more police officers are exercising a power to which this section applies, only one officer present is required to comply with this section. … 230 Use of force generally by police officers It is lawful for a police officer exercising a function under this Act or any other Act or law in relation to an individual or a thing, and anyone helping the police officer, to use such force as is reasonably necessary to exercise the function. 231 Use of force in making an arrest 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."
The offence allegedly committed by the respondent on 21 October 2013 was a breach of an ADVO: see the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (Domestic and Personal Violence Act), s 14. The relevant provisions of that Act for the purposes of this matter are as follows: "7 Meaning of 'intimidation' (1) For the purposes of this Act, intimidation of a person means: (a) conduct amounting to harassment or molestation of the person, or (b) an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for his or her safety, 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. (2) For the purpose of determining whether a person's conduct amounts to intimidation, a court may have regard to any pattern of violence (especially violence constituting a domestic violence offence) in the person's behaviour. 8 Meaning of 'stalking' (1) In this Act, stalking includes the following of a person about or the watching or frequenting of the vicinity of, or an approach to, a person's place of residence, business or work or any place that a person frequents for the purposes of any social or leisure activity. (2) For the purpose of determining whether a person's conduct amounts to stalking, a court may have regard to any pattern of violence (especially violence constituting a domestic violence offence) in the person's behaviour. … 14 Offence of contravening apprehended violence order (1) A person who knowingly contravenes a prohibition or restriction specified in an apprehended violence order made against the person is guilty of an offence. …"

[13]

State's submissions

The State submitted that, on their proper construction, there was nothing in the provisions of LEPRA, ss 9 and 10 which prohibited police officers being on the respondent's premises for the purpose of assisting those officers who were there to arrest the respondent. This submission had two aspects. First, the State contended that those officers who were present in an assisting capacity did not need to have the state of mind prescribed in any of the sections. Secondly, the State submitted the phrase "may enter" in ss 9(1) and 10(1) did not constrain entry onto the premises of those officers present in an assisting capacity.
The State submitted that the proper construction and/or application of ss 9 and 10 was to be undertaken against the background of the provisions of the Police Act. The State submitted that given the functions entrusted to the New South Wales Police Force, it was necessary that operational decisions be made hierarchically, having regard to the exigencies of any situation which arises: see Hayes v Chief Constable [2012] 1 WLR 517 at [40]; Hanninfield v Chief Constable [2013] 1 WLR 3632.
In support of its submission, the State referred to the Police Act, s 6, which specified the mission and functions of the New South Wales Police Force. Although the provisions of s 6 have been described as "aspirational": see Rickard v State of New South Wales [2010] NSWSC 151 at [49], and as not giving rise to a statutory duty, s 6 nonetheless, on the State's submission, provided "a powerful basis for understanding the role and function of police in New South Wales". The framework established by the Act was said to be made effective by the provisions of the Police Act, s 201, which provided that neglect, refusal or disobedience of any lawful order or duty by a police officer constituted an offence.
The State further submitted that that it was apparent from LEPRA, s 230 that LEPRA recognised that a police officer could be assisted in the execution of any particular task that was being undertaken in the execution of the police officer's functions and duties.
As we have indicated, the State accepted that it had not pleaded, nor had it relied upon at trial, the Police Act, s 6 and LEPRA, s 230, to establish that the conduct of the police officers in entering the house was lawful. However, it argued that those provisions supported its submission that on their proper construction, ss 9, 10 empowered the six officers who entered the house to enter in order to assist those engaged in or tasked with the arrest of the respondent.
The State submitted that "may enter" in s 10(1) does not mean "may enter alone and unassisted". This submission involved a constructions of s 10 having regard to its context and purpose so as to give it a much wider application than its text. According to the State, in the context of a hierarchical and disciplined force, someone who has formed the requisite state of mind and is empowered by ss 9 or 10 is entitled to enter with assistance.
In this regard, the State submitted that the words "may enter" in ss 9 and 10 should be construed purposively to extend to subordinates, assistants and amanuenses of whatever kind, provided that the purpose for which they were directed to enter was consistent with those provisions. In other words, there was no prohibition on entry onto premises for the purpose of assisting another officer. Thus, by way of example, on this construction, an officer who entered premises to assist an officer who had entered to arrest a person was not personally required to have the belief or suspicion required in s 99(3).
This submission required the State to disavow the construction given to ss 9(1)(a) and 10(2) in State of New South Wales v McCarthy (2015) 251 A Crim R 445; [2015] NSWCA 153, at [25], that each police officer must have the state of mind prescribed in those sections. According to the State, the Court was not bound or compelled to follow State of New South Wales v McCarthy in circumstances where the construction of ss 9(1) and 10(2) had been the subject of a concession by the State. The State also sought to distinguish State of New South Wales v McCarthy on the basis that it was not concerned with officers acting in an assisting role.
The State submitted, therefore, that in this case the effect of the statutory provisions that govern the conduct of police officers, in combination with the hierarchical and disciplined constitution of the police force, was that all police officers, whether they entered inside the house or remained outside on the perimeter of the property, acted lawfully in response to a direction given by another police officer.
The State submitted, alternatively, that there was to be imputed to each of the officers who were on the premises or who entered the house under the direction and control of Superintendent Driver and others, the state of mind of those officers under whose direction they acted. This argument is considered below as part of the tenth issue.
The State advanced the same submission in respect of the construction of ss 99(2) and (3).

[15]

Principles of statutory construction

The principles of statutory construction, stated by the High Court in recent years, were comprehensively summarised by Bathurst CJ in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v State of New South Wales [2014] NSWCA 116, at [45], as follows: "In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27, the plurality emphasised (at [47]) that construction must begin with a consideration of the text itself and while the language employed is the surest guide to legislative intention, the meaning of the text may require consideration of the context which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy …"
In our opinion, the words and syntax of ss 9(1), 99(2) and 99(3) make it plain that each individual officer who exercises the function must have the requisite state of mind. The use of the indefinite article in the first phrase of each provision, viz: "a police officer may", or "a police officer must not … unless", combined with the use of the definite article in the second phrase, viz: "the police officer", makes this clear.
In this regard, we consider the statement of Meagher JA, Gleeson JA and Adamson J agreeing, in State of New South Wales v McCarthy, at [25], relating to ss 9(1) and 10(2), that the requirements of each provision "must be satisfied in relation to each officer who relies upon the power as having authorised his entry" to be correct. It is apparent from Meagher JA's construction of the provisions that this conclusion was arrived at independently of the concession made by the State in that case.
The same conclusion applies in respect of the words and syntax of s 99(3) in its form at the time of the incident involving the respondent. Section 99(3) provided that a police officer "must not arrest a person … unless the police officer suspects" one of the matters specified in the paragraphs of the subsection. It is not sufficient that a police officer arrest a person on the instruction of another officer, even if that other officer had the state of mind specified in the subsection.
In this regard, Bulsey v Queensland supports the construction which we consider to be correct. That case involved similar but not identical provisions to LEPRA, ss 99 and 230: see the Police Powers and Responsibilities Act 2000 (Qld), ss 198(2) and 376(1).
In Bulsey v Queensland the first appellant was arrested following the Palm Island riots when six armed members of the Special Emergency Response Team forcibly entered the appellants' house. The decision to arrest the first appellant had been made by a senior officer in Townsville and he had given a direction to the officers on Palm Island to effect the arrest. The first appellant was taken into custody and charged. He was later discharged at committal proceedings, when the State conceded that it did not have a case against him. He then sued for damages for trespass to the person and malicious prosecution. The State conceded that the torts alleged would be made out unless the conduct of the police was authorised or excused by law.
The Court held that the legislation was indistinguishable from the provisions considered in O'Hara v Chief Constable of Royal Ulster Constabulary [1997] AC 286 and Hyder v Commonwealth (2012) 217 A Crim R 571; [2012] NSWCA 336. Fraser JA (Atkinson and McMeekin JJ agreeing) stated, at [16]: "Under the respondent's construction, an order by a superior officer has substantially the same effect as an arrest warrant even though it lacks any of the statutory protections of personal liberty …"
His Honour concluded, at [20], that: "Rejection of the respondent's construction of s 198(2) is required by its language, the statutory context supplied by the provisions for arrest under warrant, and the rationale for the requirement in s 198(2) that a police officer who arrests a person must reasonably suspect the person has committed or is committing an indictable offence. If a police officer who makes an arrest does not hold that suspicion, s 198(2) does not render the arrest lawful."
That leaves the question whether the context of LEPRA, ss 9, 10 and 99 and their purpose indicates that meaning is to be given to the words of the sections different from, or in some way qualifying, their plain meaning.
The context in which ss 9 and 10 operate includes the common law principles contained in the authorities to which the respondent referred. These include that a police officer, as is the case with any citizen, may not trespass upon a person's property. As Brennan J observed in Halliday v Nevill (1984) 155 CLR 1 at 10: "A police officer who enters or remains on private property without the leave and licence of the person in possession … commits a trespass and acts outside the course of his duty unless his entering or remaining on the premises is authorized or excused by law."
The same point was made Kuru v State of New South Wales (2008) 236 CLR 1; [2008] HCA 26, where the plurality (Gleeson CJ, Gummow, Kirby and Hayne JJ) stated, at [43], that there were two related propositions: "… First, a person who enters the land of another must justify that entry by showing either that the entry was with the consent of the occupier or that the entrant had lawful authority to enter. Secondly, except in cases provided for by the common law and by statute, police officers have no special rights to enter land." (citations omitted)
In Halliday v Nevill, the plurality (Gibbs CJ, Mason, Wilson and Deane JJ) observed, at 6-7, that an occupier may grant an implied licence for a person to enter upon land, such as where there is an unobstructed means of access such as a pathway or driveway leading to the entrance of a dwelling and no notice forbidding entry. Their Honours stated, at 8, that as a matter of "common sense, reinforced by considerations of public policy" a police officer has an implied or tacit licence to enter upon a driveway, "for the purpose of questioning or arresting a person whom [the officer] had observed committing an offence on a public street in the immediate vicinity of that driveway". However, their Honours added the following qualification: "That conclusion does not involve any derogation of the right of an occupier of a suburban dwelling to prevent a member of the police force who has no overriding statutory or common law right of entry from coming upon his land."
As their Honours explained: "Any such occupier who desires to convert his path or driveway adjoining the public road into a haven for minor miscreants can, by taking appropriate steps, preclude the implication of a licence to a member of the police force to enter upon the path or driveway to effect an arrest with the result that a police officer's rights of entry are restricted to whatever overriding rights he might possess under some express provision or necessary implication of a statute … of the common law."
It will be a question of fact in each case whether a police officer, absent authorisation by statute or common law, has an implied licence to be on premises and or whether any such implied licence had been withdrawn.
Accordingly, as a question of statutory construction, there is nothing in the context of the provisions in question, including the common law principles as to trespass, which would qualify the plain meaning of the words of these sections.
That then leaves the question whether the purpose of the statutory provisions with which the Court is concerned, when read in the context of the Act as a whole, is such that a police officer may enter property for the purpose of assisting another police officer who is lawfully exercising a function under LEPRA. As discussed, the State placed considerable emphasis upon the provisions of the Police Act, ss 6 and 201, as well as on LEPRA, s 230 in support of this submission.
As already explained, those provisions underpin the nature of the functions that police officers perform and the necessity for that work to be carried out as part of a disciplined and hierarchical structure, whilst recognising that force may need to be used in doing so. However, there is nothing in those provisions that permits an activity to be carried out that is not lawful.
Accordingly, there is nothing in the context or purpose of the legislation read as whole which points to a construction different to that which is indicated by the plain meaning of the text of ss 9, 10 and 99. Indeed, to attribute such a purpose to the legislation would be in direct contradiction of the express terms of those provisions.
The alternative position argued by the State was that the state of mind of those police officers who, on the trial judge's findings acted lawfully, namely, Constable Tolhurst, Inspector Atkins and Superintendent Driver, could be imputed to each of the other officers present. That argument is considered below when examining the position of each officer in the tenth and twelfth issue.
We note for completeness that there is nothing in the amended s 99 that supports the State's argument: see Law Enforcement (Powers and Responsibilities) Amendment (Arrest without warrant) Act 2013 (NSW). Accordingly, ground 1 of the appeal is rejected.

[17]

Whether the trial judge erred in finding that Constables Tolhurst and Bennett and Inspector Atkins correctly concluded that the respondent had contravened the ADVO: ground 1 of the cross-appeal

On 6 June 2013, an ADVO was made against the respondent in respect of which EB was the person in need of protection. The terms of the ADVO relevantly prohibited the respondent from harassing, intimidating or stalking EB. The ADVO also prohibited the respondent from "approaching or contacting" EB except in specified circumstances, none of which were in play at the time the respondent allegedly contravened the ADVO.
The trial judge was of the view that the respondent's conduct in attending at EB's place of employment constituted stalking. We understand this "view" to be a finding to that effect. His Honour stated, at [72], that accordingly, he was satisfied that Constables Tolhurst and Bennett and Inspector Atkins correctly concluded that the respondent had breached the ADVO. These findings were the bases for his Honour's findings in relation to s 99(1). His Honour held that that section, which permits an arrest without warrant where a person "has just committed an offence", was satisfied, relevantly, in respect of Constable Tolhurst and Inspector Atkins: see judgment at [266], [271] and [296]. The findings are also relevant to s 10, which authorises entry onto premises to arrest a person.
The respondent, in ground 2 (where first appearing) and ground 1 of the cross-appeal respectively, challenged both of his Honour's findings. However, the respondent did not direct any submissions to either of these grounds of the cross-appeal. Rather, his submissions were directed to s 99(2), which was the subject of cross-appeal ground 2 (where first appearing), which is the subject of the fourth issue. Reference was also made in this context to s 9(1). However, as we have explained, his Honour's findings in respect of the ADVO directly relate to s 99(1)(b), which was not the subject of any express challenge. However, as we understand the point of the challenges raised in each of these grounds of the cross-appeal, it is that if successful, the arrest would not have been lawful pursuant to s 99(1)(b).
Intimidation in its statutory context in s 7 of the Domestic and Personal Violence Act includes "harassment". "Stalking" includes an "approach to a person's place of business". In determining whether conduct amounts to stalking, regard may be had to any pattern of violence, including violence constituting a domestic violence offence, in the person's behaviour. The question whether there had been a breach of the ADVO is determined on the civil standard of proof.
The background to the incident at EB's place of employment was as follows. The respondent had formerly been in a relationship with EB for about three years. They had two children, who, at the date of the incident at the respondent's premises, were aged three and four years of age. The children resided with EB but she and the respondent shared custody.
EB was employed in Orange. On the morning of the arrest, EB had taken the two children to the home of the respondent's mother to be minded whilst she was at work. The respondent's mother told the respondent the children were with her. At the respondent's request, his mother, accompanied by the respondent's sister-in-law, took the children to the respondent's home. The respondent told his mother that he intended to go to EB's work to tell her she could not leave the children with his mother any time she wanted. The respondent then drove to EB's place of employment with the two children in the car. His mother and sister-in-law followed.
At 1:12pm, the police received an emergency call from a person at EB's place of employment, who told the police they were needed "now … it's an emergency". The following message was then broadcast over the police radio system: "Details: Workers ex-partner has shown up at LOC. POI [the respondent]. Weapons NK,. Firearms NK, Nil injuries, 2 children under 4 old with POI. Previous history. Nil custody orders in place - Vict [EB], currently is safe in office inside building."
Constables Tolhurst and Bennett responded and were assigned to the incident at 1:20pm. They were provided with details of the ADVO over the police radio. Constable Tolhurst had previously arrested the respondent for breach of an ADVO in respect of which EB was also the person in need of protection. By the time the two officers arrived at EB's place of employment, the respondent had left. Constable Tolhurst spoke to EB and the respondent's sister-in-law, while Constable Bennett spoke with EB's supervisor.
EB told Constable Tolhurst that the respondent's sister-in-law had come into the workplace to warn her of the respondent's presence, at which point EB went outside. She went back inside and spoke with her supervisor, before going outside again, this time accompanied by the supervisor. EB said that on going outside she heard the respondent yelling and: "… as soon as I heard [the respondent] yelling I turned back around as I did not want to see him as I believe he would 'go off', because it has happened before and I know his temper" Constable Tolhurst in his evidence said that EB appeared "visibly upset".
When EB heard the respondent yelling she was so concerned that he would "go off", as she described it, that she went into her supervisor's office where she stayed until the police arrived. The abusive nature of the respondent's conduct was corroborated by EB's supervisor, as was EB's distress and upset. The context in which this happened was not only the fact that there was an ADVO in place but there had been past violations of ADVOs made to protect EB, at least one of which had involved the threat of violence, the respondent on that occasion being armed with a knife.
Constable Tolhurst obtained a statement from EB's supervisor "sometime" after the respondent was arrested. The trial judge noted "a degree of uncertainty" in Constable Bennett's evidence as to the events leading up to the police being called.
EB's supervisor gave evidence at trial. She said that EB had come into her office "very distressed crying and said that [the respondent] had her children or their children in the car out in the car park". She offered to accompany EB to the car park. EB's supervisor said that as the two women began to walk outside, EB went ahead, but returned saying, "no he's going off, call the police". EB's supervisor said she heard the respondent "raise his voice and sing out 'fucking hurry up'".
It is clear that the respondent attended at EB's workplace in circumstances where there was no reason for him to do so. There were no arrangements in place for him to take the children there. Although the respondent had shared custody, EB had not made any arrangements for him to have the children that day. She had left them with the respondent's mother. Nor were there any arrangements for the respondent to take over their care from his mother. Whilst in the car park, the respondent was heard calling out and using abusive language. It was suggested in argument that this abuse may not have been directed at EB but rather that the respondent was calling out to his sister-in-law.
To argue, as the respondent did, that there was no evidence of direct contact between the respondent and EB such that there could not have been a breach of the ADVO not only ignored the terms of the ADVO, but also misapprehended the nature of the respondent's conduct. This was not a chance meeting or encounter between the respondent and EB. There can be no doubt that the respondent's conduct in going to EB's workplace, intentionally doing so for the purpose of letting her know that she could not leave the children with his mother when she felt like it, yelling out in abusive terms sufficient to cause EB to describe his conduct as "going off", constituted intimidation, involved stalking and a breach of the terms of the ADVO which prohibited the respondent from approaching or contacting EB.
It follows that ground 2 of the cross-appeal (where secondly appearing) must be rejected.
Having concluded that his Honour was correct in concluding that the respondent had breached the ADVO, his Honour's finding that Constables Tolhurst and Bennett and Inspector Atkins were correct in concluding that the respondent had contravened the ADVO was clearly available. Indeed, no other conclusion could have been reached.
It follows that ground 1 of the cross-appeal should also be rejected.
Although not the subject of direct challenge, given the above conclusions, it is appropriate that we record that his Honour's finding that the arrest by Constable Tolhurst and Inspector Atkins was authorised by s 99(1)(b), which permits a police officer to arrest a person without a warrant where that person has just committed an offence, was correct, being well based in the evidence. We also note that his Honour made the same finding in respect of Superintendent Driver.

[18]

Whether the trial judge erred in finding, implicitly, that Constables Tolhurst and Bennett and Inspector Atkins' suspicions that the respondent had contravened the ADVO were held on reasonable grounds: ground 2 of the cross-appeal (where first appearing)

Ground 2 (where first appearing) of the cross-appeal is directed to whether, as required by s 99(2), there were reasonable grounds for Constables Tolhurst and Bennett and Inspector Atkins to suspect that the respondent had committed an offence so as to be authorised to arrest the respondent without a warrant. As we have pointed out, s 99(2) provides a different basis upon which a person may be arrested without a warrant from that found in s 99(1)(b). Section 99(1)(b) permits an arrest when a person has just committed an offence, hence proof of that fact is required if the arrest is challenged. Section 99(2), however, does not require that it be established that a person has committed an offence. Rather, a police officer may arrest a person on a suspicion which is held on reasonable grounds.
Given that we have rejected ground 1 of the cross-appeal, it is not strictly necessary to resolve this issue. In our opinion, the arrest was properly effected pursuant to s 99(1)(b), although whether the arrest was lawful also required that s 99(3) be satisfied. That is dealt with below in the sixth issue. However, as the question whether s 99(2) had been satisfied was a central focus of the respondent's case, and against the unlikely possibility that the arrest was not lawful pursuant to s 99(1), we have proceeded to deal with this issue. The question of whether a belief is held on reasonable grounds is also relevant to the respondent's challenges to his Honour's findings in respect of ss 9 and 99(3).
Before considering what "reasonable grounds" entails, we note that the respondent accepted that it was sufficient for the purposes of establishing "reasonable grounds" within the meaning of ss 9, 10 and 99 that information be conveyed to a police officer, for example, over the police radio, as was the case for most officers here.

[19]

Meaning of "reasonable grounds"

When a statutory provision requires that a state of mind be based or held upon reasonable grounds, the question whether there are reasonable grounds is determined objectively at the time when the relevant power or function is exercised: George v Rockett (1990) 170 CLR 104; Hyder v Commonwealth of Australia; O'Hara v Chief Constable of Royal Ulster Constabulary.
In Hyder v Commonwealth of Australia, at [14], McColl JA observed: "In determining whether the arresting officer had the relevant state of mind (be it suspicion or belief), the court is considering a preliminary stage of the investigation, rather than one requiring evidence amounting to prima facie proof: O'Hara v Chief Constable of Royal Ulster Constabulary (at 293) per Lord Steyn, citing Shaaban Bin Hussien v Chong Fook Kam (at 949)."
In O'Hara v Chief Constable of Royal Ulster Constabulary, the plaintiff was arrested at his home under anti-terror legislation. The officer who effected the arrest had been briefed that the plaintiff was involved in a murder, but had no information to suspect that the plaintiff was involved in terrorist activities. The plaintiff was later released without charge and claimed damages for wrongful arrest.
In a passage that was cited with approval in Hyder v Commonwealth, Lord Hope (Lord Goff, Lord Mustill and Lord Hoffman agreeing) observed, at 298, that the legislative provision which permitted an arrest could be effected if a constable had "reasonable grounds for suspecting" an involvement with an act of terrorism was: "… [i]n part … a subjective test, because he must have formed a genuine suspicion in his own mind that the person has been concerned in acts of terrorism. In part also it is an objective one, because there must also be reasonable grounds for the suspicion which he has formed."
His Lordship observed, in respect of the objective requirement, namely that there be reasonable grounds for so suspecting, that this test did not require looking beyond what was in the mind of the officer who effected the arrest. As his Lordship explained: "All that the objective test requires is that these grounds be examined objectively and that they be judged at the time when the power was exercised. This means that the point does not depend on whether the arresting officer himself thought at that time that they were reasonable. The question is whether a reasonable man would be of that opinion, having regard to the information which was in the mind of the arresting officer. It is the arresting officer's own account of the information which he had which matters, not what was observed by or known to anyone else. The information acted on by the arresting officer need not be based on his own observations, as he is entitled to form a suspicion based on what he has been told. His reasonable suspicion may be based on information which has been given to him anonymously or it may be based on information, perhaps in the course of an emergency, which turns out later to be wrong."
His Lordship, at 301-302, then turned to consider the operation of this test in light of the structure, practices and operation of the police force, noting that the action of an officer who effected an arrest will be: "… the culmination of various steps taken by other police officers, perhaps over a long period and perhaps also involving officers from other police forces. For obvious practical reasons police officers must be able to rely upon each other in taking decisions as to whom to arrest or where to search and in what circumstances. The statutory power does not require that the constable who exercises the power must be in possession of all the information which has led to a decision, perhaps taken by others, that the time has come for it to be exercised. What it does require is that the constable who exercises the power must first have equipped himself with sufficient information so that he has reasonable cause to suspect before the power is exercised."

[20]

Consideration

We have already referred to the factual circumstances in which the respondent came to be arrested, including the matters of which Constables Tolhurst and Bennett were aware. In summary, the relevant facts were that the two officers had responded to an incident broadcast on the police radio; they were apprised of the terms of the ADVO; Constable Tolhurst had previously participated in the arrest of the respondent for breach of an ADVO in respect of which EB was also the person in need of protection; Constable Tolhurst and Bennett had observed EB, whom Constable Tolhurst described as "visibly upset". Constable Tolhurst also spoke to EB and the respondent's sister-in-law whilst at EB's place of employment and Constable Bennett spoke to EB's supervisor.
In our opinion, insofar as Constables Tolhurst and Bennett are concerned, the call-out to EB's place of employment, the knowledge each had of the terms of the ADVO, Constable Tolhurst's knowledge of a breach of a previous ADVO and the matters which they observed and were told when they were at EB's place of employment, viewed objectively, constituted reasonable grounds for the suspicion each had that the respondent had breached the ADVO by going to EB's place of employment.
Inspector Atkins did not attend at EB's place of employment. However, he was informed that the respondent was "wanted for breaching an AVO". On arrival at the respondent's premises, Inspector Atkins was told that the respondent was wanted for breaching an ADVO earlier that day and that there was a recent history of domestic violence involving him and EB. He was told that one such recent incident involved the use of a knife. This detail "heightened" his concern regarding the nature of the incident. He was also told "certain things" about what had happened at EB's place of employment by Constables Tolhurst and Bennett, namely, that: "[The respondent] had breached the order by going to the linen service, his wife had been there, she had become upset, police got some statements, some details, went to the house to arrest him."
Inspector Atkins said that a decision had been made to arrest the respondent prior to his arrival, however, based on the information supplied to him during the briefing, he was satisfied that there had been a breach of the ADVO. The information provided to Inspector Atkins was detailed. In our opinion, based on the briefing he received and his own observations, Inspector Atkins also had reasonable grounds on which to suspect that the respondent had breached the ADVO.
Ground 2 (where first appearing) of the cross-appeal is rejected.

[21]

Whether the trial judge erred in finding that Constable Tolhurst's suspicion that the arrest of the respondent was necessary to prevent the repetition of a breach of the ADVO was held on reasonable grounds: ground 3 of the cross-appeal

Pursuant to s 99(3)(b), a police officer who arrests a person without a warrant must suspect on reasonable grounds that it is necessary to do so for the purposes of preventing the repetition or continuation of an offence or the commission of another offence, in this case the breach of the ADVO.
In State of New South Wales v Robinson the Court explained the manner in which s 99 operates and the function of s 99(3) within the legislative scheme required for an arrest to be lawful as follows: "34 Section 99(3), unlike subs (1) and (2), does not confer a power of arrest upon a police officer. It operates as a constraint on the powers conferred by subs (1) and (2). A police officer is prohibited from arresting a person for a particular purpose, namely, the purpose of taking proceedings against the person for an offence, unless the conditions stated in s 99(3) are satisfied. Those conditions are: ●the police officer must have a suspicion that it is necessary to arrest the person to achieve at least one of the purposes specified in (a)-(f); ●the police officer must have reasonable grounds for forming that suspicion. 35 … Section 99(3) is enlivened when a police officer has arrested a person for the purpose of taking proceedings against that person for an offence. In that situation, the arrest is not lawful unless the State establishes that the conditions specified in s 99(3) are satisfied."
His Honour was satisfied that Constable Tolhurst was an "arresting officer" and that he had complied relevantly with the requirements of s 99(3)(b). His Honour found, at [83]: "Constable Tolhurst's desire to prevent a repetition of the offence would seem, from an objective point of view, reasonable bearing in mind that [the respondent] was probably angry; was prepared to breach the ADVO as he had done in the past; had not resolved the issue with which he intended to confront [EB], raising the prospect of a further attempt at confrontation."
The respondent accepted that Constable Tolhurst held a "suspicion" for the purposes of s 99(3). However, he challenged his Honour's finding that the suspicion was held on reasonable grounds. In essence, the respondent's submission, which appeared to be directed to all those found by his Honour to be "arresting officers", was that any suspicion that was held was not based on reasonable grounds in circumstances where it could not be said that there was any imminent or proximate threat or likelihood of a repetition of the breach of the ADVO. However, given the terms in which ground 3 of the cross-appeal is expressed, at this point we consider the submissions only as they relate to Constable Tolhurst.
Reference has already been made to the circumstances in which Constable Tolhurst attended at EB's place of employment with Constable Bennett. The respondent having left there by the time they arrived, the two officers drove to the respondent's house to arrest him. Constable Tolhurst knocked on the front door, stated that police were there in relation to a breach of the ADVO and that they needed to arrest him and take him back to the station. The doors of the house were closed and the respondent pulled the blinds across the windows. He told the two officers to "fuck off".
Constable Tolhurst gave evidence that he was aware that the respondent had breached previous ADVOs and had, in fact, participated in the respondent's arrest for one such breach in August 2013. In answers in cross-examination as to why he believed that it was necessary to arrest the respondent to prevent a repetition of the offence, Constable Tolhurst said that he knew that the respondent was a repeat offender but could not say that he suspected that repetition of the offence, that is, a breach of the ADVO was "imminent". He then gave the following evidence: "Q. If it wasn't imminent how was arresting [the respondent] going to prevent the repetition of the offence? A. Arresting him would - he wouldn't have the chance of breaching that [ADVO] in the interim while he was in police custody."
This cross-examination was not entirely on point insofar as it purported to be directed to s 99(3) as that section does not require a police officer to suspect that a repetition of an offence is imminent. Rather, the reference to "imminence" in the provisions under consideration is in s 9.
The cross-examination to which reference has just been made was followed by an exchange between his Honour and counsel and the following evidence: "[COUNSEL FOR THE RESPONDENT]: Your Honour, I'm examining the state of mind of the officer when he formed the intention to arrest. HIS HONOUR: I think it follows … that whilst [the respondent's] in custody obviously he is prevented from committing any further offence but if released on bail there's no prohibition instantly upon him committing the offence again, that's just he's available to do it, if he does it he can be breached again, it's as simple as that isn't it? Q. That's the situation, isn't it, constable? I mean if he's released on bail there's nothing to prevent him from committing the offence if he chooses to breach the ADVO again? A. That's correct. Q. He would be guilty of yet another breach of the ADVO? A. That's right. … [COUNSEL FOR THE RESPONDENT]: Can I put it to you again given that that is so that you would have to have been satisfied in order to be satisfied that it was necessary to arrest [the respondent] for that purpose that the further breach of the [ADVO] was imminent? A. I was satisfied to arrest [the respondent] because he was a repeat offender."
We have referred above, at [87]-[92], as to what is involved in establishing that reasonable grounds exist for the holding of a belief or suspicion. The evidence here supported the finding that there were reasonable grounds for a suspicion that an arrest was necessary to prevent the repetition of an offence. The respondent had breached an ADVO that morning and, importantly for Constable Tolhurst, the respondent was a repeat offender. The context in which the arrest took place, as known to Constable Tolhurst, was that the respondent had the children locked inside the house with him and he was angry and was yelling and ranting.
All of those factors constituted reasonable grounds for Constable Tolhurst to have a suspicion that unless the respondent were arrested, he might commit another breach of the ADVO. In the Court's opinion, the trial judge correctly concluded that Constable Tolhurst held a suspicion on reasonable grounds for the purposes of s 99(3)(b). Accordingly, ground 3 of the cross-appeal is rejected.

[24]

Consideration

Before proceeding with the analysis and determination of ground 5 of the cross-appeal, we need to make the following observations.
First, as we have already indicated above, there was no direct challenge made or argument directed to his Honour's findings in respect of s 99(1)(b) which related to Constable Tolhurst, Inspector Atkins and Superintendent Driver. This is important, as it is clear from the structure of s 99 that ss 99(1) and 99(2) provide alternate circumstances in which an arrest without a warrant may be effected. But in any event, in our opinion, his Honour's finding in respect of s 99(1)(b) was correct, being well based in the evidence, as discussed above in the first, second and third issues. It follows, therefore, that the respondent's arrest by those officers was properly effected pursuant to s 99(1). Accordingly, the question whether s 99(2) was satisfied in respect of those officers does not arise for determination on the appeal.
Secondly, contrary to the respondent's argument, we have found that his Honour was correct in finding that there had been a breach of the ADVO. To the extent that the State relied on that finding for the purposes of s 99(2), that reliance was well based. That aspect of the respondent's argument, therefore, can also be put aside.
Thirdly, in our reasons below, we have found that the other six officers who entered the house were not present to arrest the respondent: see ninth issue, commencing at [172]. On that finding, no question of their compliance with ss 99(2) or 99(3) arises.
Further, and even more fundamentally, the respondent does not, on the appeal, claim relief on the basis that he was falsely imprisoned. In circumstances where there is no independent tort of unlawful arrest, as opposed to an unlawful arrest providing a basis for the tort of false imprisonment, there is strictly no utility in dealing with ground 5 of the cross-appeal.
However, as the respondent framed his submissions on this ground of the cross-appeal in terms of whether ss 99(2) and 99(3) were satisfied, we will proceed to consider the issue in those terms.
As we have found above, Constable Tolhurst and Inspector Atkins had a state of mind which satisfied s 99(2). Similarly, we have already found that Constable Tolhurst formed a suspicion, held on reasonable grounds, that it was necessary to arrest the respondent to prevent the repetition of the breach of the ADVO, satisfying s 99(3). This leaves no other conclusion than that the arrest of the respondent by Constable Tolhurst was lawful. An arrest need only be lawful at the hands of one police officer, regardless of whether other officers who also purported to arrest a person had the requisite state of mind necessary for the arrest to be lawful at their hands. Again, however, with deference to the respondent's submissions, we have proceeded to consider whether Superintendent Driver satisfied ss 99(2) and 99(3) and whether Inspector Atkins held the requisite state of mind for the purposes of s 99(3). That requires an examination of their evidence relevant to those issues.

[25]

Superintendent Driver

Superintendent Driver was the senior officer present at the incident. After being contacted by Inspector Atkins, who was already at the property, he went to the premises and assumed control. Inspector Atkins informed him of the circumstances relating to the incident, namely, that the respondent had gone to EB's place of employment and that he had breached the ADVO. He was told it was an intimidation-type offence and that the respondent had two children with him. He was further informed that the police had taken a report of the incident and had gone to the house to arrest the respondent but that the respondent had locked himself in the house and would not come out.
In circumstances where Inspector Atkins has already been found to have held a suspicion on reasonable grounds that the respondent had committed an offence, being the breach of the ADVO, and Inspector Atkins had called Superintendent Driver to the property and given him a detailed briefing, we find that there were also reasonable grounds for Superintendent Driver to suspect that the respondent had breached the ADVO, thus satisfying s 99(2).
Whether Superintendent Driver had the requisite state of mind under s 99(3) can also be dealt with relatively briefly. In answer to a question as to why there was "a need for arrest", Superintendent Driver said: "A. It's [our] protocol in respect to domestic violence matters that we are pro investigation and indeed pro arrest. Since that time we have got new procedures in place for domestic violence, but any breaches of AVO, apprehended violence orders, we take very seriously for the protection of the victim, and it's not something that we generally, and I [say] generally because there are some exceptions, that we would proceed by any other way other than by arrest. Q. In this situation were there any other alternatives? A. In my view, no, no. The breach - my understanding at the time was that there was an order in place that had been breached. The victim had felt intimidated. Often the presence of the police can enflame tension between parties. I don't think there was an alternative to the arrest."
This evidence evinces a clear concern for the well-being of EB and gives rise to the inference that Superintendent Driver believed that it was necessary to arrest the respondent to prevent further breaches with respect to the ADVO. Given the broader context of the incident and particularly the fact that Superintendent Driver gave evidence that he had been briefed that the respondent had a history of mental health issues and that he was concerned for the well-being of the children and that the respondent might self-harm, we consider that this belief was held on reasonable grounds. For the same reasons and perhaps even more so, this evidence gives rise to a clear inference that s 99(3)(f) was satisfied in Superintendent Driver's case.
Accordingly, in our opinion, the arrest of the respondent by Superintendent Driver was lawful pursuant to LEPRA, ss 99(2) and 99(3).

[26]

Inspector Atkins

Inspector Atkins attended the scene with the purpose of resolving whether the situation was a potential high risk situation. He deemed the situation to be "high risk", as defined by New South Wales Police protocol. When asked about this decision, Inspector Atkins explained that: "I thought it may have met the criteria. There was the accused inside the house with children, potential risk of harm to themselves. What we would call a siege situation. The practise is if you think it is a high risk just contain and negotiate, seek advice and resources through the region commander, who can deem it a high risk situation."
As noted above, Inspector Atkins gave evidence that a decision to arrest the respondent had been made prior to his arrival at the incident but that he was satisfied there had been a breach of the ADVO.
Inspector Atkins described the respondent as "verbally abusive", "highly irrational" and "aggressive towards the police". When asked what he meant by "irrational", Inspector Atkins explained that: "His language and his demeanour, his aggression, the fact he had two very young children sitting with him at [the] front door for an hour and a half while we negotiated is not rational - and the fact that he had allegedly attended the linen service prior to this incident with his children …" Inspector Atkins explained that as a result of these concerns, some of the officers in attendance put on ballistics vests.
Inspector Atkins also gave evidence that he was "highly concerned" for the children and that the presence of the children "heightened" his concerns more generally. As a result, his "main concern for the whole incident was getting those children out of the house unharmed". He explained that he "intervened to see whether he could talk [the respondent] out of the house".
Inspector Atkins gave evidence that he did not consider issuing a Court Attendance Notice, as "to prevent further offences [the respondent] had to be arrested". If the police did not arrest the respondent, Inspector Atkins believed that the respondent may breach the order again, and could assault or even kill EB.
Inspector Atkins also gave evidence that he had regard to LEPRA, s 99 and, in particular, ss 99(1)(a) and 99(1)(b) in determining that it was necessary to arrest the respondent that day.
In these circumstances, given his belief that the ADVO had been breached, that the situation involved a high degree of risk and that the respondent would be likely to breach the ADVO again if not arrested, it is clear that Inspector Atkins had the requisite suspicion held on reasonable grounds under s 99(3)(b), that being a suspicion that it was necessary to arrest the respondent to prevent a further breach of the ADVO.

[28]

Whether the trial judge erred in finding that it was "inappropriate" to deal with the matter by way of a Court Attendance Notice: ground 4 of the cross-appeal

Constable Tolhurst gave evidence that he formed the view that a Court Attendance Notice was not an appropriate procedure for handling the situation, and that the respondent should instead be arrested. The factors identified by his Honour as causing him to form that view were: "(i) That [EB] was visibly distraught, upset and intimidated from the statement he obtained; (ii) That [the respondent] had repeatedly breached ADVOs in the past; (iii) That the victim needed protection and that previous ADVOs hadn't prevented him from breaching the conditions and, (iv) To prevent a repetition of the offence."
Inspector Atkins also gave evidence as to why it was inappropriate to issue a Court Attendance Notice. Inspector Atkins gave evidence that "under the circumstances" he did not consider issuing a Court Attendance Notice as the respondent: "… had attended [at the] linen service, breached the order, stalked, intimidate, threaten her by going to her place of work when under LEPRA s 99, I was satisfied to put him before the Court. To prevent further offences he had to be arrested …" As noted earlier, Inspector Atkins believed that if the police had issued a Court Attendance Notice, they risked allowing the respondent to breach the order again with the possible consequence of assaulting or killing the protected person.
As a result, Inspector Atkins was of the view that "there would be no way in the world you would issue a court notice [for] this matter". His evidence continued as follows: "Q. You didn't give it any consideration at all? A. As I said before, based on what I'd been told, pattern of domestic incidents, breaches, knife, children in the house, there is no way in the world I would have issued a court notice for this matter. He needed to be before the station - put before the Court with appropriate bail conditions or be bail refused. Q. The intention in arresting [the respondent] was to bail refuse him at the station? A. No, to ensure he didn't repeat the offence and ensure his attendance at court and if the bail determination was made at a later stage, appropriate bail conditions were placed on him or he is bail refused in the next court, as we do every day with domestic situations."
In our opinion, these factors, taken in conjunction with the matters that provided a reasonable basis for the suspicion that it was necessary to arrest the respondent without a warrant to prevent a repetition of the breach of the ADVO lead inevitably to the conclusion that his Honour was correct in finding that it was inappropriate to deal with the matter by way of a Court Attendance Notice. It follows that ground 4 of the cross-appeal is rejected.

[29]

Whether the trial judge erred in finding that Superintendent Driver was justified in entering the respondent's property pursuant to LEPRA, s 9: ground 6 of the cross-appeal

The respondent contended, in ground 6 of the cross-appeal, that the trial judge erred in finding that Superintendent Driver was justified in entering the respondent's property pursuant to LEPRA, s 9, the terms of which are set out above at [28]. In circumstances where the respondent does not challenge his Honour's finding that Superintendent Driver was an "arresting officer", where we have found that the arrest was lawful under s 99(1)(b) and given that the respondent has not succeeded in his challenge to the finding that Superintendent Driver had the relevant state of mind prescribed by ss 99(2) and 99(3), this issue does not arise for determination. His entry was authorised by s 10(1). However, as we have done with other issues, we have proceeded to consider this ground of the cross-appeal in the terms in which it was argued.
The first observation that needs to be made in respect of s 9 is that it relates to entry onto premises. "Premises" is defined in s 3 to mean: "… any building, structure, vehicle, vessel or aircraft and any place, whether built on or not."
The evidence of Superintendent Driver, as the senior officer present at the incident, was pivotal, not only in respect of the question whether he was justified in entering pursuant to s 9, but also in respect of whether his directions to the other officers to enter the house constituted a direction to each that they were to arrest the respondent, or whether the effect of his direction was that the other officers were to provide assistance in the arrest.
Superintendent Driver attended at the premises after being contacted by Inspector Atkins. The briefing he received is discussed above at [121]. In addition to that information, Inspector Atkins also told Superintendent Driver that the respondent had a history of mental health issues, that he used to be in the army, that he was "a fairly big bloke" and that he had been dealt with previously by the police. Based on this, Superintendent Driver said that he was concerned for the children in the house.
Superintendent Driver said that shortly after arriving at the premises, he heard the respondent talking to Detective Senior Constable Justine Priest. He described the respondent's manner of speech as "quite firm, I would say aggressive but very firm". (This quote may involve a transcription error with the word "not" having been omitted before "aggressive".)
After gaining an appreciation of the facts leading up to the police attendance at the scene, Superintendent Driver instructed the police to put on their ballistics vests and said he: "… made sure that … none of the officers were alone or they at least had line of sight with another officer with Taser and capsicum spray in case [the respondent] came out and was aggressive and confronted them."
Superintendent Driver said he "also briefed Senior Constable Penny and a number of other officers in respect of an emergency action plan". As he explained: "In other words an emergency action plan is if something goes pear shaped or there's a reason to enter in a hurry [then] they know what they have to do."
During the course of the negotiations between the police and the respondent, Superintendent Driver heard the respondent say: "I'll ring my lawyer … If he says you can come in I'll come out".
Following this, Superintendent Driver was told by one of the police officers that the respondent's lawyer had informed the respondent that the police could not come in without a warrant. Superintendent Driver said that after that, the respondent's "position was solidified, more so … that he wasn't going to come out". Superintendent Driver said that the negotiations continued, but at one point, the respondent became unresponsive. The two children were seen at the glass door to the patio and when asked where their father was, Superintendent Driver said that their response was "Dad's gone to the bathroom", although he could not remember whether he heard the children speak or whether he was told what they had said by one of the negotiating police officers.
Superintendent Driver then ordered the police officers to force their way into the house. He explained in his evidence what had prompted him to give that direction: "Well there were a number of things that were operating on my mind at the time. My concern, I had a number of concerns. One was why did [the respondent] enter the bathroom, was it simply to go to the bathroom or was he there to self-harm. It's not uncommon for people to self-harm in bathrooms, whether it be the use of the shower head, by a strap or indeed razor [blades], bleed out in a bath. I was concerned about that taking into account what I'd been told that he'd had previous mental health issues and I had concerns for the welfare of the children. I was also cognisant of the fact that he needed to be arrested for the breach of the apprehended violence order. At that point in time I was of the view that if we were going to do it it was the safest time because I was under the impression that he was away from the children, the children were in the lounge room. He was absent from the kitchen which presented an opportunity for more weapons and those, all that information at one point in time reaching me that's when I gave the order to go in."
Superintendent Driver was one of the last officers to enter. He said that he could hear a lot of yelling and "[p]olice, police" being called out. He did not engage with the respondent inside the house, but picked up one of the children and took him outside to his grandmother, who had been brought to the property by Detective Senior Constables Brian Priest and Perry. Superintendent Driver was not cross-examined.

[31]

Legal principles

Section 9(1)(a) authorises entry onto premises where a police officer believes on reasonable grounds that a "breach of the peace is being or is likely to be committed". His Honour, at [260], adopted as helpful the description of the term "breach of the peace" in the statement of Watkins LJ in R v Howell (1982) QB 416 at 427, where it was said that: "… there is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance."
In Howell Watkins LJ, delivering the joint judgment of himself, Cantley and Hollings JJ, did not accept that there could be a breach of the peace without actual or threatened violence.
In confining a "breach of the peace" to situations involving actual or threatened violence, their Lordships in Howell did not accept the description given in Halsbury's Laws of England, 4th ed, vol 11, par 108, in which it was said that: "… a breach of the peace arises where there is an actual assault, or where public alarm and excitement are caused by a person's wrongful act. Mere annoyance and disturbance or insult to a person or abusive language, or great heat and fury without personal violence, are not generally sufficient." (emphasis added)
According to their Lordships, at 427, the statement in Halsbury's was "inaccurate" to the extent that it failed to link various types of behaviour mentioned to actual or threatened harm or the likelihood of harm. In particular, their Lordships were of the view that "the word 'disturbance' when used in isolation cannot constitute a breach of the peace". Their Lordships continued, at 427: "We are emboldened to say that there is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance. It is for this breach of the peace when done in his presence or the reasonable apprehension of it taking place that a constable, or anyone else, may arrest an offender without warrant."
The respondent relied on the dissenting judgment of Logan J in Li v Chief of Army (2013) 210 FCR 299; [2013] FCAFC 20 as to the meaning of breach of the peace. That case concerned disciplinary proceedings taken under the Defence Force Disciplinary Act 1982 (Cth) in respect of a charge of "creating a disturbance". Logan J concluded, at [169], that as used in the relevant legislation, "disturbance" meant "a breach of the peace". His Honour then turned to consider what was encompassed by the term "a breach of the peace" and, at [187], endorsed the view, which he attributed to Lord Mance and Lord Brown in R (Laporte) v Chief Constable of Gloucestershire Constabulary [2006] UKHL 55; (2007) 2 AC 105, that: "… it is erroneous to include in a formulation of what constitutes a breach of the peace conduct falling short of actual violence to a person or property."
Logan J also referred, at [184], to Kuru v State of New South Wales where the Court had referred to the difficulties in "deciding what constitutes an actual or threatened breach of the peace and what steps, short of arrest, may be taken in response". His Honour, at [190], considered that there was a difference between a breach of the peace and an apprehended breach of the peace, having earlier, at [188], considered that it was probably erroneous to include the "likelihood" of harm to a person or property as constituting a breach of the peace. However, in Nilsson v McDonald (2009) 19 Tas R 173, Crawford CJ had stated, at [7], that: "… I am unaware of any authority in which it was held that a breach of the peace can occur in circumstances where the person concerned is merely argumentative or making excessive noise, without a consequent likelihood of violence or harm to any person or property, or of persons being put in fear of such violence or harm." (emphasis added)
It needs to be noted that the High Court in Li v Chief of Army (2013) 250 CLR 328; [2013] HCA 49 rejected the approach taken by Logan J as to the construction of "disturbance". However, the Court made no comment in relation to the meaning or scope of a breach of the peace.
In State of New South Wales v Tyszyk [2008] NSWCA 107, Campbell JA, after noting, at [85], that a police officer has a common law duty to prevent or to assist in preventing breaches of the peace, observed: "The notion of a 'breach of the peace' is a multifaceted one, and includes a wide range of actions and threatened actions that interfere with the ordinary operation of civil society."
Campbell JA, after reviewing the observations made in Howell and noting that that approach had been followed in some cases in the United Kingdom, as well as decisions of single judges in Australia: see Bhattacharya v State of New South Wales [2003] NSWSC 261 at [38]; Tomarchio v Pocock [2002] WASCA 156 at [54], observed, at [92], that a wider view had been taken by Lord Denning MR in R v Chief Constable of the Devon and Cornwall Constabulary, ex parte Central Electricity Generating Board [1982] QB 458, who stated that: "There is a breach of the peace whenever a person who is lawfully carrying out his work is unlawfully and physically prevented by another from doing it."
However, that view had not been endorsed by the other two members of the Court and as Campbell JA pointed out, at [93], it has not been followed in later English cases. It was, however, approved by Angel J in R v Van Bao Nguyen (2002) 139 NTR 15; [2002] NTSC 38 at [11], although his Honour did not advert to the later disapproval of Lord Denning's statement. Campbell JA concluded this discussion by noting, at [101], that: "… the account of breach of the peace given by Howell suggests that the concept of breach of the peace has lost some of the protean quality it once had."
Ultimately, his Honour did not consider that State of New South Wales v Tyszyk was an occasion to determine whether Howell was correct.
In State of New South Wales v McMaster (2015) 91 NSWLR 666; [2015] NSWCA 228 at 32, this Court expressed the view, by reference to Campbell JA's discussion in State of New South Wales v Tyszyk at [87]-[98], that the statement of the Court in Howell was unlikely to be exhaustive.
Accordingly, we consider that it is open to us to prefer the view expressed by Campbell JA, that a breach of the peace includes "a wide range of actions and threatened actions that interfere with the ordinary operation of civil society". In particular, a threat or a realistic apprehension of self-harm could constitute a breach of the peace. Each case will be fact dependent.

[32]

Respondent's submissions

It is important in determining ground 6 of the cross-appeal to understand the basis upon which it was argued on the appeal. So that there is no issue about this, we set out the respondent's submission as follows: "The s.9 Defence 3.14 The only officer found to have had a power of entry under s.9 was Superintendent Driver. The primary judge dealt relatively briefly with the s.9 defence … 3.15 Section 9 of LEPRA founds a power of entry only where a relevant belief is held on reasonable grounds, accordingly, it was necessary for the State, in order to justify Superintendent Driver's entry to [the respondent's] dwelling, to establish that he believed, on reasonable grounds, that: (a) A breach of the peace was likely to be committed; and (b) It was necessary to enter the premises immediately to prevent the breach of the peace. 3.16 Alternatively, the State had to establish that Superintendent Driver believed, on reasonable grounds, that there was imminent danger of significant physical injury to [the respondent] or his children and that it was necessary to enter the premises immediately to prevent such injury. 3.17 At least threatened, if not actual violence to a person or property is an element of a breach of the peace. It is erroneous to include in a formulation of what constitutes a breach of the peace conduct falling short of actual violence to a person or property. 3.18 There was no evidence called in [the State's] case that [the respondent] had harmed or presented any real threat of harming his two sons. Nor was there any evidence upon which to base a reasonable suspicion that [the respondent] presented any real threat of harming either his sons or himself. There was no history known to Superintendent Driver of [the respondent] ever having done so. The primary judge's finding at paragraph 289 that the circumstances described in the evidence of Superintendent Driver (extracted at judgment paragraph 287) supported a belief on reasonable grounds that harm was likely to be done, 'whether it be [to the respondent], or one of his infant children' was curious. The only thing that had occurred, on which Superintendent Driver purported to justify his entry under s.9, was that [the respondent] had gone to the bathroom. That could never support a belief on reasonable grounds that harm was likely to be done, rendering it necessary immediately to enter the premises to prevent significant physical injury. Indeed, when read in its proper context, the answer of Superintendent Driver relied upon by the primary judge, made it clear that, in fact, Superintendent Driver considered [the respondent's] movement to the bathroom to create an opportune time to break into his premises for the purposes of arresting him. That, of course, went to the putative s.10 justification, not that under s.9. 3.19 Moreover, accepting that a breach of the peace necessarily involves the commission of an act of violence against another, and accepting that it was Superintendent Driver's understanding that [the respondent's] having gone to the bathroom removed him from his two sons, the breach of peace justification contained in s.9(1)(a) could simply not be made out. 3.20 It is submitted that the primary judge was plainly in error to find that Superintendent Driver had established a justification of entry to [the respondent's] dwelling under s.9." (citations omitted; emphases in original)
No different or additional submission was advanced in oral argument, the focus of the argument remaining on whether Superintendent Driver's entry into the house was authorised by ss 9(1)(a) or 9(1)(b). It should be noted, however, that his Honour made no finding in respect of s 9(1)(b).

[33]

Consideration

On the basis that the respondent's challenge raised by ground 6 of the appeal related to the time at which Superintendent Driver entered the house, we are satisfied that the evidence established that Superintendent Driver had a reasonable apprehension that the respondent could self-harm or could cause harm to the children, thus satisfying s 9(1). In this regard, we do not accept that either limb of s 9(1) is limited to harm to a third person, but in any event, there was evidence to support a belief that the children might be harmed. The respondent had been acting, over a two hour period, in a manner that was described as "irrational". This description was not challenged. This was exhibited in particular by shouting and ranting. Various police officers, of whom Superintendent Driver was in charge, had concerns for the welfare of the children who were inside the house.
The respondent, a short time beforehand, had committed a breach of an ADVO. He knew the police were present to arrest him, but refused their requests to come outside. He did not respond positively to attempts to negotiate with him. Added to this was the fact that the respondent had mental health issues, as Superintendent Driver knew. The respondent had made previous threats of violence whilst armed with a knife. Although that threat had been directed at EB, who was not present at the house at this time, Superintendent Driver was concerned, given his experience as a police officer, that the respondent might cause himself harm or that the children might be harmed.
In our opinion, Superintendent Driver's evidence established his belief for the purposes of s 9. In light of that evidence, together with the circumstances of the incident more generally, there was a reasonable basis for his belief that a breach of the peace was likely to be committed, namely, that given that the respondent had gone into the bathroom, he might have caused harm to himself or the children and that it was necessary to enter the premises at that time to prevent a breach of the peace. The trial judge was correct to conclude that Superintendent Driver was entitled to enter the premises when he did in accordance with LEPRA, s 9(1)(a).
We have made a reference above to the respondent's submission as having extended to s 9(1)(b). Superintendent Driver's lawful entry onto the premises could have been determined pursuant to s 9(1)(b) on the basis that he believed on reasonable grounds that there was an imminent danger of significant physical injury. All the evidence indicated that he became aware that the respondent had gone into the bathroom and he determined that it was necessary to enter the house immediately to prevent significant personal injury. For the reasons we have already given, that requirement was satisfied in this case.
Accordingly, ground 6 of the cross-appeal is rejected.

[36]

State's submissions

The State challenged his Honour's finding that the six officers who entered the house were "arresting officers". The State submitted that these officers were assisting those engaged in the lawful arrest of the respondent pursuant to the command of a superior officer or superior officers. They did so in circumstances where, on the State's submission, Constable Tolhurst required their assistance because of the unpredictable and potentially life threatening conduct of the respondent. The State submitted that, on the construction of LEPRA as a whole, and in particular, LEPRA, s 230, as well as the Police Act, s 201, the six police officers who entered the house acted lawfully.
As, on the State's submission, these officers were not "arresting officers", s 99 had no application to their conduct. As the State put its submission, senior officers had the responsibility of giving lawful orders to junior officers, who in turn were required, pursuant to the Police Act, s 201, to obey those orders. Those orders were not orders to arrest the respondent but to assist the officer or officers whose assigned role was to arrest the respondent. As such, these six officers were not required to achieve the states of mind required by LEPRA, although it was necessary for the officers effecting the arrest to have the relevant state of mind. It followed, on the State's submission that the arrest of the respondent at the hands of these six officers was not unlawful.
The State pointed to the fact that his Honour had found that the respondent had been arrested lawfully by Constable Tolhurst, Inspector Atkins and Superintendent Driver, each of whom had the requisite state of mind. The point that had been made at trial, and was maintained on the appeal, was that in light of this, the respondent's arrest at the instance of other officers could not be unlawful, a matter to which we have already referred. The State submitted that the effect of his Honour's decision was that the six officers who entered the property were joint tortfeasors with the officers who had been found to have been acting lawfully and any such notion was a legal "nonsense". There can only be joint tortious liability when all relevant parties act tortiously.
The State submitted that even if the only officer to arrest the respondent was Constable Tolhurst, if he had the relevant state of mind to effect a lawful arrest that would be sufficient to authorise the actions of the other officers. It submitted that the other officers were authorised to be on the premises and to enter the house so as to assist Constable Tolhurst. Alternatively, it submitted that Constable Tolhurst's state of mind, as well as that of Superintendent Driver and Inspector Atkins, could be imputed to the other officers.

[39]

Leading Senior Constable Morgan

Leading Senior Constable Morgan was the shift supervisor on duty at the police station when she received a report from Constable Bennett about the incident. She was aware that the respondent had previously breached ADVOs and that the respondent suffered from mental health issues prior to this incident. Leading Senior Constable Morgan travelled in the police vehicle from which the message was broadcast that: "[The respondent] has done it [breached ADVOs] in the past and was armed last time with knives."
When Leading Senior Constable Morgan arrived at the premises, she heard the respondent "ranting and yelling" from inside the house. She thought that the respondent was "very irrational" and not "in a capable state of mind of caring for the children". She gave evidence that, based on this, she formed a concern regarding: "[The respondent's] state of mind and the children were only small and they were barricaded inside the house with him, so I guess I had great concerns for the children [and] that the children's welfare was not being cared for."
Leading Senior Constable Morgan said that Superintendent Driver had given the order to enter the house. In response to a question regarding whether she had entered the premises because of that order, Leading Senior Constable Morgan said that it was, "because we needed to effect the arrest and we were concerned for the welfare of the children". When asked whether she held these concerns personally, she answered "[y]es".
Leading Senior Constable Morgan entered the house along with a number of other officers. She did not enter the bathroom, but drew her Taser when she saw that a wrestle was going on in the bathroom. She did not re-holster the Taser until the respondent was in the police van, a period of 3 minutes and 6 seconds. The trial judge found, at [235], that the action in drawing the Taser and continuing to keep it drawn was reasonable and that she was not guilty of assault. (His Honour wrongly attributed the drawing of the Taser to Constable Mullens.) That finding is not in issue on the appeal. However, as his Honour found that Leading Senior Constable Morgan purported to arrest the respondent and had not turned her mind to the mandatory provisions of s 99(3), nor formed the requisite suspicion on reasonable grounds, he held that her actions in effecting the arrest of the respondent were unlawful.

[45]

Consideration

It needs to be observed at the outset that the term "arresting officer", used by the trial judge, is not a term found in LEPRA. Pursuant to s 10, a police officer "may enter a dwelling … to arrest" a person and, pursuant to s 99, a police officer may "arrest a person without a warrant" in the circumstances specified in either ss 99(1), 99(2) or 99(3): see above at [28]. Nor is "arresting officer" a term of art. It may be that his Honour picked up this phraseology from Hyder v Commonwealth of Australia. However, we do not consider that it assists in the analysis required in this case to adopt this general phraseology. Rather, it is necessary to consider the purpose for which each officer entered the property and, in particular, whether each officer did so "to arrest" the respondent.
"Arrest", in the context of arrest without a warrant, not being a defined term in the provisions of LEPRA presently under consideration, retains the common law hallmarks of "bringing a person into the custody of the law": see Richard Clayton and Hugh Tomlinson, Civil Actions Against the Police (3rd ed, 2005, Sweet & Maxwell) 180 [5-027]; Christie v Leachinsky [1947] AC 573 at 584.
The trial judge observed that for an arrest to be effective, the person to be arrested was required to submit to the arrest, and that the respondent had not done so. This finding was not challenged by the State and we consider it to be correct. The respondent was not finally arrested until after he was led out of the house and Constable Tolhurst told him he was under arrest. As Constable Tolhurst had gone to the respondent's property to arrest him for a breach of an ADVO and had in fact arrested him, Constable Tolhurst could be described as "an arresting officer".
Although the State had not contended at trial that Inspector Atkins and Superintendent Driver arrested the respondent and maintained that position on the appeal, it did not appeal against his Honour's finding in that respect and the respondent relied upon the finding for the purposes of his cross appeal. Accordingly, in the absence of a challenge, we do not consider that there is any reason for this Court to itself determine whether his Honour's finding was correct.
His Honour next reasoned that the only basis for the other six officers to enter the premises and the house lawfully was pursuant to LEPRA, ss 9 or 10. His Honour considered that as no basis had been made out for a lawful entry under s 9, the officers must have entered the house for the purpose of arresting the respondent and were therefore "arresting officers".
We consider this aspect of his Honour's reasoning to be circular. If, on the proper application of LEPRA, s 10, which we consider below in the tenth issue, the officers were not authorised to enter the premises or the house, their entry would have been unlawful. However, the fact of their entry, lawful or unlawful, did not make them "arresting officers" as found by his Honour. In our view, leaving aside the position of Leading Senior Constable Morgan, which requires separate consideration, none of the other five officers were present to conduct an arrest, nor did they purport to do so. We have arrived at this conclusion for the following reasons.
As we have already stated, the arrest was not effected until Constable Tolhurst told the respondent, after he had been subdued and handcuffed and when he was outside the house, that he was under arrest. The arrest was thus undertaken in accordance with the principle to which the trial judge referred, namely, that an arrest is not effected until the offender is subdued or submits to arrest. It may also be assumed, in the absence of any challenge to the contrary, that Constable Tolhurst complied with LEPRA, s 201 in effecting the arrest.
The position of the other six officers was different. These officers had been on the premises outside the house for some time. Having received the direction from Superintendent Driver to do so, they entered the house. Once inside the premises, the officers took various roles, either in subduing the respondent or taking care of the children. No other police officer purported or attempted to arrest the respondent by informing him that he was under arrest or why he was under arrest. In our opinion, it may be inferred that this involved a recognition by them of the fact that Constable Tolhurst was the officer who was tasked with or had undertaken responsibility for arresting the respondent. The position in respect of each of the other six officers was as follows.
The absence of any interaction between Senior Constables Penny and Pearson and the respondent once inside the house supports the conclusion that they did not purport to arrest the respondent. Likewise, although Constable Mullens was the first to enter the house and tried to push open the bathroom door, he did not engage in any direct way with the respondent, but took charge of removing one of the children from the bathroom.
Senior Constable Webster and Constable Simpson entered the bathroom and physically engaged with the respondent. However, neither purported to arrest him. Neither told him that he was under arrest or why he was under arrest. Their role is appropriately identified as being engaged in subduing the respondent. The trial judge's finding that their conduct in this respect was an assault was challenged by the State in grounds 2 and 3 of the appeal. This issue is considered below at [245].
In summary, none of these officers gave evidence that he or she had entered the house for the purpose of arresting the respondent, nor did the evidence support that they had engaged in the arrest of the respondent. Rather, each gave evidence that they had attended the property pursuant to the police radio broadcast. Once at the property, each came under the direction first of Inspector Atkins and then of Superintendent Driver. Once inside the house these officers engaged in different roles in relation to the children, assisting with breaking down the bathroom door and subduing the respondent. There would have been significant confusion, if not chaos, had all of the officers entered the property to effect the arrest.
Further, there was no suggestion in Superintendent Driver's evidence that he had directed the six police officers to arrest the respondent. His instructions in relation to an emergency plan were indicative of the fact that there was an understanding by the six police officers who entered the premises that their role was to support the officer whose role was to arrest the respondent.
Leading Senior Constable Morgan did not enter the bathroom and did not directly engage with the respondent. Although she drew her Taser, the trial judge was not satisfied that the respondent was aware she had done so. These findings are not the subject of challenge. However, it is necessary to refer to other parts of her evidence to ascertain whether she had entered the house "to arrest" the respondent.
We have referred above to Leading Senior Constable Morgan's evidence that she understood that police had been called to the premises "because we needed to effect the arrest and we were concerned for the welfare of the children". As we understand that evidence, that was an explanation by her, as the supervising officer on duty, as to why the police entered the house. Although she stated that she personally held concerns, we do not understand her reference to "we needed to effect the arrest" as a statement that she or any other particular police officer, or all of them, was there to effect the arrest. In our view, the sense of the statement is that the police were required to enter the house, inter alia, so that the respondent could be arrested. That is conceptually and practically different from saying that her role on that day was to arrest the respondent, or that any of the other officers whose conduct is presently under consideration were there to arrest the respondent. In our opinion, Leading Senior Constable Morgan did not purport to arrest the respondent.
Accordingly, we are of the opinion that none of the other six officers who entered the house did so to arrest the respondent. Having come to that view, grounds 4(a) and (c) of the appeal are allowed. Given this conclusion, LEPRA, s 99 had no application to the six officers who entered the house. Accordingly, ground 4(d) of the appeal is allowed. Ground 4(e) of the appeal, which challenges his Honour's finding that those six officers unlawfully arrested the respondent, is also allowed.
In ground 5 of the appeal, the State contended, inter alia, that his Honour erred in finding that these six officers were liable for the tort of wrongful arrest. As there is no such free standing tort, that part of ground 5 can be put to one side.
Ground 6 purportedly challenged a finding that these officers were ordered by Superintendent Driver to arrest the respondent, as well as being ordered to enter the house. There was no evidence that these officers were ordered to arrest the respondent. We consider, therefore, that that part of ground 6 also does not call for a determination.
Nor does ground 7 arise in circumstances where we have determined that these officers did not arrest the respondent.
By way of conclusion and given our reasoning above in relation to ground 5 of the cross-appeal, we find that there was no unlawful arrest of the respondent by Constable Tolhurst, Inspector Atkins and Superintendent Driver, or by the other six officers who entered the house.

[50]

Consideration

Although we have concluded that these six officers did not enter the house to arrest the respondent, that does not answer the question whether those officers were authorised to enter upon the property. We should state at the outset that we do not accept the State's submission that there can be imputed to a police officer the state of mind of an officer of whom it is established has the relevant state of mind. Such an approach would contradict the construction of ss 9 and 10 which we consider to be correct.
Nor do we agree with the respondent's submission that entry pursuant to LEPRA, s 10 requires a lawful arrest under s 99. Section 10(1) permits a police officer to enter a dwelling to arrest a person. If a police officer enters premises for some other purpose which is not authorised, for example, pursuant to s 9, the entry onto the property constitutes a trespass. This is a different question from whether an arrest is lawful, which requires that s 99 must be satisfied. Because ss 10 and 99 have different spheres of application, it is possible that a person may enter a property to arrest a person and thus not commit a trespass, but the arrest not be lawful because the police officer may be found not to have the requisite state of mind for the purposes of ss 99(2) or 99(3).
This view can be tested by reference to the terms and application of ss 10 and 99. Section 10(1), on its express terms, applies to an officer who enters premises "to arrest a person" or to "arrest a person named in a warrant". Section 10(2) permits entry into a dwelling to "arrest … a person", whether that be with or without a warrant, "only if the police officer believes on reasonable grounds that the person to be arrested is in the dwelling". Section 99 is concerned only with the arrest of a person without a warrant.
It is apparent, therefore, that on the plain words of each section, there is no sense in which s 10 can be described as, or operate only as, a derivative of s 99. Entry under s 10 is not, therefore, contingent on the arrest of a person being lawful pursuant to s 99. Accordingly, we consider that his Honour's reasoning at [334] was flawed. As the respondent's submissions reflected his Honour's reasoning, it follows that they must be rejected.
Although we have found his Honour's reasoning to be flawed, and as we have found that the six officers did not purport to arrest the respondent, there remains a question as to the authority for these officers to be on the premises. As they did not enter with the purpose of arresting the respondent, their entry was not justified pursuant to s 10 which provides that a police officer "may enter … to arrest a person". The section does not provide that an officer may enter so that an arrest may be effected.
At trial, LEPRA, s 9 was pleaded as a defence to trespass in respect of all the officers who entered the property, encompassing both those who entered the house and those who remained on the perimeter. However, the trial judge did not deal with s 9 in respect of any of the officers except Superintendent Driver. Rather, as we have observed, the judge confined his reasoning to LEPRA, s 10. The trial judge's failure to make any finding as to whether the entry on the premises by the six officers was authorised by s 9 was not raised by either party.
This places the Court in a difficult position in determining whether, in the absence of any challenge or notice of contention in respect of s 9, the Court should embark on its own finding. There are arguably two ways of proceeding. The first is to deal with the entry of these six officers into the house on the assumption that we are wrong in respect of our finding that they did not enter to arrest the respondent. The other and/or additional manner of determining whether these officers had trespassed is to consider whether their entry into the house was authorised by s 9.
We consider that in the circumstances it is preferable to determine whether their entry was authorised pursuant to s 9. This raises an important question as to what needs to be proved in order to establish that a police officer had the relevant state of mind required by the section.
Whether or not a person has a state of mind involves a finding of fact. Facts may be proved directly or by drawing inferences from proved facts. An inference cannot be drawn in the absence of evidence. In Luxton v Vines (1952) 85 CLR 352; [1952] HCA 19, the plurality, Dixon, Fullagar and Kitto JJ, at 358, approved the explanation of the principle of the High Court in the then unreported decision of Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 as follows: "… where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture ... But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise." (emphasis added) (citations omitted)
In Holloway v McFeeters (1956) 94 CLR 470; [1956] HCA 25, the plurality, Williams, Webb and Taylor JJ, observed, at 480, that: "Inferences from actual facts that are proved are just as much part of the evidence as those facts themselves. In a civil cause 'you need only circumstances raising a more probable inference in favour of what is alleged … where direct proof is not available it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference …" (emphasis added)
There can be no doubt that if these six officers held the requisite belief, it would have been held on reasonable grounds. The difficulty is whether the facts as proved were sufficient from which to infer that each officer held the belief specified in s 9. We have found assistance in this regard from the consideration of the evidence by the Court in State of New South Wales v McCarthy where the Court was concerned with the question whether a trespass to land had been committed when four police officers entered premises occupied by the respondent, Mr McCarthy.
The police officers had entered the respondent's premises following a complaint that the respondent had assaulted his estranged pregnant wife. His wife had been taken to hospital, leaving their two year old child with the respondent. Police broadcasts indicated that the respondent and child were alone in his premises. The officers entered the premises through the front door, which had been left open. They did not find the respondent or child in the house and were in the house for just over one minute.
In issue was whether each of the officers satisfied the requirements in LEPRA, ss 9 or 10, relating to the exercise of a power to enter. The Court held, and we have agreed, that on the proper construction of these sections, each officer who exercises a function under LEPRA must have the state of mind as prescribed by the Act.
Meagher JA examined whether each officer had the relevant belief. One officer, Sergeant Barakat, gave evidence that he "believed" the child could have been at risk of physical harm. In examining whether that officer had the relevant state of mind for the purposes of s 9, his Honour observed that the incident was described as one involving a "concern for welfare" and noted that "[t]he matters broadcast [over the police radio] earlier provided a reasonable basis for significant concern". These included the fact that the respondent was said to have assaulted the child's mother, who was pregnant, and that he was the subject of an apprehended violence order. Meagher JA found, at [51], that: "These factors were sufficient to cause a reasonable person to believe that there was a risk that the child could be physically harmed by the respondent and, having regard to the child's age and inability to protect itself, that any harm which might be inflicted could be significant and occur at any time."
His Honour found, at [55], that the trial judge erred in "not concluding that [the officer] satisfied the requirement for entry in s 9(1)(b)".
In this case, five of the six police officers who entered the house gave evidence, which we have summarised in respect of each officer, that they had responded to an instruction to attend the premises because there was an incident or because there had been a breach of an ADVO. It is of note that Leading Constable Morgan also knew that the respondent had breached ADVOs in the past and had been armed with knife on a previous occasion.
All the officers knew that the respondent had locked himself inside the house with the two children. Each of the officers had been present at the property for a significant period during which the respondent would not come outside and had made it clear that he would not submit voluntarily to arrest. Neither Constable Tolhurst, Detective Senior Constable Justine Priest nor Sergeant White had succeeded in persuading the respondent to leave the house voluntarily. The respondent was also seen and heard to be behaving in an irrational and emotionally unstable manner. In this respect, there is a stronger case for drawing an inference than in State of New South Wales v McCarthy, where the relevant officers only suspected that the offender might be inside the house with a child. It was found to be sufficient, in that case, that the front door was open and the evidence of one of the officers was that it was common for people in that area to leave the front door open when they were at home.
Further support is found in the fact that Superintendent Driver had given instructions to the officers not to be alone or to remain in the "line of sight of another officer armed with Taser and capsicum spray in case [the respondent] came out and was aggressive and confronted them". At least two officers, on Superintendent Driver's instructions, were wearing ballistics vests.
Superintendent Driver had also instructed the officers as to an emergency plan to allow quick entry into the house. There was also Superintendent Driver's evidence that he considered it necessary for a large number of officers to enter the house in order to assist with the arrest and to ensure the safety of the children. Two of the officers, Senior Constables Penny and Pearson, were given the specific responsibility of securing the safety of the children on entry. Finally, Superintendent Driver had formed the view, due to his concern regarding the risk of self-harm when the respondent went into the bathroom, that the police officers at that point should force their way into the house, pursuant to the emergency plan.
In our opinion, the combination of all of these factors was sufficient evidence upon which to infer that each officer believed that there was a likely breach of the peace and/or imminent danger of significant physical injury to a person, including to the respondent himself, and having that belief, each had entered the house. Accordingly, we are satisfied that each of the five officers who gave evidence had the relevant state of mind for the purposes of ss 9(1)(a) and 9(1)(b) when they entered the house.
Although Senior Constable Webster did not give evidence, there is no reason to conclude other than that he had the same state of mind as the other officers who entered the house. We base this conclusion on the fact that in addition to his first hand observations of the incident, he was amongst those briefed by Superintendent Driver regarding his participation in the emergency action plan. Accordingly, the Court considers that an inference can also be drawn with respect to Senior Constable Webster's state of mind.
It follows that as these six officers did not enter pursuant to LEPRA, s 10, ground 4(b) of the appeal is allowed. Ground 6 of the appeal is rejected insofar as it relates to the direction by senior officers to enter the house. As we have held, the relevant statutory provisions require that each officer must individually hold the state of mind stated in that section. However, as we have found that the six officers entered lawfully pursuant to LEPRA, s 9, ground 5, insofar as it relates to trespass to land, has been made out.

[51]

Whether the trial judge erred in finding that Senior Constable Webster and Constable Simpson assaulted the respondent: grounds 2 and 3 of the appeal

The State challenged the trial judge's finding that Senior Constable Webster and Constable Simpson assaulted the respondent when he was in the bathroom. The determination of this challenge requires a consideration of the actions taken by these officers in the bathroom, what the respondent was doing at the time and the application of LEPRA, s 230 which provides that a police officer exercising a function may use such force as is reasonably necessary to exercise the function as may "anyone" helping the police officer.
The facts surrounding the assault found by his Honour were as follows. Constable Tolhurst had forced entry into the house by using a ram to breach the wooden front door. Senior Constable Webster was one of the first officers to enter the house. Constable Tolhurst saw him kicking down the bathroom door. Constable Tolhurst then assisted Senior Constable Webster in breaking down the bathroom door.
On gaining entry to the bathroom, Constable Tolhurst saw the respondent and one of the children inside the bathroom. Constable Tolhurst then became involved in a wrestle with the respondent, which resulted in both Constable Tolhurst and Constable Simpson, who had also entered the bathroom "ending up" in the bathtub. Constable Tolhurst heard Constable Simpson shouting out "[s]top resisting" and saw Senior Constable Webster restrain the respondent's right arm. Constable Tolhurst and Inspector Atkins then took over and handcuffed the respondent and he and Inspector Atkins escorted the respondent from the premises. Constable Tolhurst informed the respondent of who he was and placed him under arrest.
Constable Simpson's evidence as to what occurred in the bathroom was as follows: "A. When the door was kicked in a piece of the wood fell into - I think he was in the bathtub at that stage. Q. When you say he who do you mean? A. [The respondent], sorry, was in the bathtub and a piece of wood. Q. [You mean the respondent?] A. Yes, sorry and the wood fell into the bathtub and he had it in his hand. Obviously he sort of caught it. I just attempted to take that out of his hand so eliminating the risk of assault on police. I'm not sure if the child - who was able to get the child out of the bathroom and then there was a struggle with police and [the respondent]. Q. Were you involved in that struggle? A. Yes. Q. What happened in that struggle? A. I think when I tried to get the piece of wood out like there was hands everywhere and I was grabbed by the neck - by the shirt sorry. Q. Who grabbed you by the shirt? A. I believe it was [the respondent] and then there was a bit of a struggle with police trying to restrain him."
As previously noted, Senior Constable Webster did not give evidence. Such evidence as there was about his actions was that given by Constables Tolhurst and Simpson. Although Inspector Atkins was in the bathroom, he did not give evidence about the assault.
The respondent's principal contention was that because Senior Constable Webster and Constable Simpson were trespassing upon the property, any physical contact they made with the respondent constituted a battery. We reject that submission.
However, two questions remain. The first question, which was raised with the respondent on the appeal, was whether any physical contact by the officers with the respondent, whilst the officers were trespassing, meant that the self-defence or defence of another was not available as a defence to liability. The respondent accepted there would be no battery to the extent that what Senior Constable Webster and Constable Simpson did, in circumstances where the respondent had a piece of wood in his hands, was in defence of Constable Tolhurst. He contended, however, that the battery would continue once the respondent had been restrained with handcuffs, if they continued to lay hands on him. The difficulty with that submission however is that it does not accord with the facts. There was no evidence that these officers continued to lay hands on the respondent once Constable Tolhurst and Inspector Atkins took over.
The second question and the basis upon which the matter was argued by the State in the Court below, is whether their conduct was authorised by s 230 and if so whether the fact of trespass denied the officers that protection.
Section 230 authorises the use of reasonable force as may be reasonably necessary, not only by an officer or officers engaged in exercising a function but by anyone helping the officer to exercise their function. Section 230 is not limited in its terms to anyone other than a police officer, although it extends to persons who are not police officers. Nor is there anything in the terms of the section, or in the Act as a whole, which restricts its application only in circumstances where a person, for example, although assisting a police officer, commits a trespass by stepping on to property when there was no express or implied authorisation to do so.
Although the construction of the section was not the subject of argument before this Court, there is nothing in the text, context or purpose of the legislation that requires it to be read in a limited way so as to exclude other police officers who were assisting in the exercise of a function. Indeed, it would be a peculiar result if a stranger could assist a police officer and use reasonable force in doing so but a police officer could not. Constable Tolhurst was exercising the function of arrest. Senior Constables Simpson and Webster were assisting.
In the circumstances, given that the respondent had refused to leave the house for over two hours, was behaving in a manner described as "irrational" and was wielding a block of wood, we consider that the force used by Senior Constable Webster and Constable Simpson was reasonably necessary.
It should be noted that if our conclusion above is incorrect and Senior Constable Webster and Constable Simpson were present to arrest the respondent, LEPRA, s 231 will apply to authorise the use of such force as is reasonably necessary to make the arrest.
In our opinion, grounds 2 and 3 of the appeal should be allowed. The consequence of this finding is that there was no basis for the award of damages for assault, and the award must be set aside.

[63]

Consideration

His Honour's acceptance of the respondent's submission that it was necessary for each of the officers who entered the respondent's property but remained on the perimeter to have formed a belief in respect of a breach by the respondent of the ADVO was not to the point. Section 9(1)(a) requires a belief in relation to an actual or likely breach of the peace and the necessity to enter premises to end or prevent the breach. The necessary belief in respect of s 9(1)(b) relates relevantly to a belief of imminent danger.
His Honour having failed to address the correct question, it is open to this Court, on an appeal by way of rehearing to draw appropriate inferences: see Supreme Court Act, s 75A. We have discussed above the circumstances in which a court may make inferential findings of fact. This issue raises the same question and we have come to the same conclusion.
Constable Bennett aside, each of the officers gave evidence, some in more detail than others, including Constable Pratten in his statement, that they had been directed to go to the property because there was an incident or a domestic incident and that there had been a breach of an ADVO. Some were aware of previous ADVO breaches, including with the use of a knife. Some gave direct evidence of hearing yelling and shouting. Added to this was the respondent's behaviour in refusing to come out of the premises for over two hours, despite attempts to persuade him to leave, and the fact that he had two children with him.
In these circumstances, we conclude that there is sufficient evidence upon which to infer that the officers who entered the property but remained on the perimeter had the relevant state of mind under s 9(1). On the evidence an inference is available and should be drawn that each believed that a breach of the peace was being or was likely to be committed or there was an imminent danger of significant physical injury.
Accordingly, we find that the entry of the seven officers who remained on the perimeter of the respondent's property was authorised pursuant to LEPRA, ss 9(1)(a) and/or 9(1)(b). Grounds 8(b) and (c) of the appeal are therefore allowed inasmuch as they relate to LEPRA, s 9. Having regard to our conclusion on the construction issue, ground 8(a) is rejected. Ground 9 of the appeal is also rejected, as it is based on the construction of ss 9 and 10 which we have rejected. The trial judge's finding that Constable Bennett entered lawfully pursuant to LEPRA, s 10 remains undisturbed.

[64]

Whether his Honour erred in awarding aggravated and exemplary damages: ground 10 of the appeal

Having regard to our conclusion that the trial judge erred in finding that there was a trespass to property and a trespass to the person, his Honour's award of damages must be set aside. Accordingly, the State's challenge to his Honour's award of aggravated and exemplary damages does not arise for determination. However, as we have done with other issues, we have proceeded to consider it in the event we are wrong in the conclusions at which we have arrived.
His Honour's reasons for the award of aggravated and exemplary damages are not apparent. Such reasons as he gave in respect of damages related to the award of ordinary damages. In those reasons, his Honour explained that the respondent, in refusing to submit to a lawful arrest, created the environment in which the trespasses occurred. His Honour, at [342], awarded damages "at the lower end of the scale" for this reason. In relation to trespass to the person, his Honour repeated that the respondent had created the circumstances in which the assault occurred. His Honour added that the respondent was not entitled to resist Constable Tolhurst and Inspector Atkins, but was entitled to resist Senior Constable Webster and Constable Simpson. The State appealed against both awards.
There was no error in the trial judge awarding a single sum for aggravated and exemplary damages. The question is, however, whether there was any basis for the award. This calls for a brief description of each type of damages and the circumstances in which such damages may be awarded.
Aggravated damages were described by the High Court in New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 37, at [31], as: "… a form of general damages, given by way of compensation for injury to the plaintiff, which may be intangible, resulting from the circumstances and manner of the wrongdoing".
Exemplary damages are different, although as Taylor J observed in Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118, at 130, "the same set of circumstances might well justify either an award of exemplary or aggravated damages". Exemplary damages are not compensatory. Rather, they are essentially punitive in nature: see XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448. In Uren v John Fairfax & Sons, Windeyer J explained, at 154: "… there must … be evidence of some positive misconduct to justify a verdict for exemplary damages. There must be evidence on which the jury could find that there, was, at least, a 'conscious wrong-doing in contumelious disregard of another's rights'."
This was echoed by Brennan J in XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd, where, at [9]-[10], his Honour said: "… an award of exemplary damages is intended to punish the defendant for conduct showing a conscious and contumelious disregard for the plaintiff's rights and to deter him from committing like conduct again … … The social purpose to be served by an award of exemplary damages is, as Lord Diplock said in Broome v Cassell & Co … 'to teach a wrong-doer that tort does not pay'." (citations omitted) See also Adams v Kennedy (2000) 49 NSWLR 78; [2000] NSWCA 152, especially at [35].
In New South Wales v Ibbett, the High Court observed at [38], that: "An action for trespass to land and an award of exemplary damages has long been a method by which, at the instance of the citizen, the State is called to account by the common law for the misconduct of those acting under or with the authority of the Executive Government".

[68]

Costs

The State has succeeded in establishing that the six officers who entered the house but did not do so to arrest the respondent, as well as the officers on the perimeter, had not committed a trespass, and that the respondent had not been assaulted so that there was no trespass to the person. Accordingly, the orders made by the primary judge must be set aside and judgment entered in the State's favour.
There were also issues in the case which it became unnecessary to decide because of the State's success on the issues to which we have referred, but which were argued and in respect of which the Court considered it appropriate to express its view. These included whether the arrest was lawful and whether the six officers who entered the house (but not to arrest the respondent) had the relevant state of mind for the purposes of ss 99(2) and 99(3).
However, the State was not successful on all the challenges it brought to the primary judge's reasons. In particular, the State's challenge to the proper construction of ss 9 and 10 failed comprehensively and, in respect of its challenge to the construction of s 9(1), its case was advanced in the face of a recent decision of this Court to the contrary. Moreover, that argument was advanced notwithstanding that the State in State of New South Wales v McCarthy had conceded the construction of the section that the State put in issue in this case.
The State also failed in its argument that the conduct of the police officers in being on the property and in entering the house was authorised, either on the basis that they were entitled to be there to assist the officers whose task it was to arrest the respondent or because the state of mind of those officers could be imputed to them.
For his part, the respondent failed entirely on his cross-appeal. He also failed in his opposition to the grant of leave and in his argument that the State had raised on the appeal a case that was not run at trial.
Although the State has succeeded on the appeal, there is a question as to whether it should have its costs of the appeal. There are two reasons which militate against the award of costs. The first is that the State, in seeking leave, emphasised the public importance in upholding the lawfulness of the conduct of police officers in circumstances such as this. This submission was made notwithstanding that LEPRA, s 99 had been amended in a way which puts the lawfulness of conduct of the kind that occurred here effectively beyond question. The second is that the State had mixed success on the issues it raised in its appeal.
On the other hand, the respondent brought an unmeritorious claim, which we have found ought not have succeeded. The orders we will make in entering judgment for the State reflect this.
In the circumstances, we consider that an appropriate order can be made which reflect these competing considerations by ordering that the respondent pay a percentage of the State's costs of the appeal. Having regard to the State's ultimate success and the issues on which it succeeded, we consider that the appropriate percentage is that the respondent pay 70 per cent of the State's costs on the appeal. We see no reason why the State should not have its costs at first instance.

State of New South Wales v Bouffler

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