State of New South Wales v Exton

Court of Appeal (NSW)|2017-11-09|Before: Basten JA, Meagher JA, Leeming JA

Solicitors: McCabes Lawyers (Applicant) Randall Legal (Respondent) File Number(s): 2017/122276 Decision under appeal Court or tribunal: District Court Jurisdiction: Civil Citation: [2017] NSWDC 83 Date of Decision: 13 April 2017 Before: Levy SC DCJ File Number(s): 2016/131112

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Circumstances of arrest

Constable Chapman gave evidence that the respondent's name was on a police index list as a person the police wished to speak to with respect to an assault which had occurred earlier that year. On recognising the respondent, Constable Chapman opened the sliding passenger door of the vehicle and said "Trent, can you jump out for me?" He said that the respondent then "pulled his hood right over his head and crossed his arms … and pretended I wasn't there." [1] Constable Chapman then said words to the effect: "Trent, can you get out of the car? I don't want to have to drag you out. Can you get out?"
Constable Chapman gave evidence that the respondent then "began to hyperventilate as though he was psyching himself up" and then became aggressive, jumping over the back seat of the vehicle, to reach the passenger side door, saying "let's go, mother-fuckers. Let's go." [2] Constable Chapman said that he and Constable Quinn took hold of the respondent as he was exiting the vehicle to stop him hitting them and to try to calm him down. He said that he had "had to tell him at least three times to relax." [3] When that was unsuccessful, he brought the respondent to the ground with a "leg sweep". At that stage, another member of the group hit Constable Chapman on the back of the head and Constable Quinn used an OC spray to disable that attacker. Constable Chapman then informed the respondent that he was under arrest. He could not recall whether he handcuffed him, but thought he probably did. [4]
The respondent was taken to the police station and charged with assault police and resist arrest. He was held in custody from 1:20am on 20 April until 6:40 am, when he was released on bail, no longer being intoxicated. It was not clear whether he was questioned about the assault earlier in the year.

The proceedings

On 18 April 2016 the respondent commenced proceedings in the District Court seeking damages for unlawful arrest and false imprisonment. A trial was heard over three days in February 2017. On 13 April 2017 the trial judge, Levy SC DCJ, gave judgment in favour of the respondent, in the amount of $38,072. [5]
The State has sought leave to appeal against that judgment, leave being necessary because the amount was less than $100,000. [6] It seeks to do so on the basis that the case involved an issue of legal principle and accepted the condition that it would bear the respondent's costs in this Court in any event.
The draft notice of appeal contained eight grounds of which one, ground 3, raised an issue of some importance which, on its face, had significant prospects of success. The Court indicated in the course of the hearing that it was minded to grant leave with respect to that ground and invited counsel to focus on it. For reasons explained below, there should be a grant of leave to appeal restricted to ground 3.
The ground in question challenged the finding of the trial judge that the respondent was arrested at the time Constable Chapman said to him, "Trent, can you get out of the car? I don't want to have to drag you out. Can you get out?"

Finding as to arrest

If, as the trial judge found, the arrest took place with the direction to get out of the vehicle, it was reasonable to conclude that the arrest was without lawful justification. Although the respondent alleged that Constable Chapman had told him there was a warrant out for his arrest, [7] Constable Chapman denied saying that and the trial judge preferred Constable Chapman's account. [8] There was in fact no outstanding warrant relating to the respondent.
The State sought to challenge the finding of the trial judge that Constable Chapman "directed" the respondent to get out of the vehicle. There was no substance to that challenge: it was a reasonable objective assessment of the language used by the officer according to his own account. It is true that the officer in his evidence said that he had no power to remove the respondent from the vehicle and his threat to drag him out was a bluff. So much may be accepted, but his subjective intention would not alter the objective perception of a person hearing that statement.
However, accepting that a direction was given does not entail the conclusion that from that moment the respondent was under arrest. There are many contexts in which a police officer may give directions to persons to take a course which they do not wish to take, which do not involve placing anyone under arrest. No doubt arrest may in some cases follow a failure to comply with a direction, so that the authority to give the direction may then govern the lawfulness of the arrest. In this case, however, that issue did not arise because the direction was complied with; the respondent got out of the vehicle. Accepting that he was arrested as he got out, the reason for the arrest was not that he refused to get out.
There were problems with the judge's decision to deal with the case on this basis and with the reasoning to the conclusion.

(a) departure from pleadings

It is convenient to deal first with the procedural issue. As the State noted, the case based on false imprisonment and unlawful arrest was pleaded by reference to the events which occurred after the respondent descended from the vehicle. [9] In opening the case for Mr Exton counsel briefly recounted the events including the allegation that he was grabbed by police as he was alighting from the vehicle and then taken to the ground. [10] After a brief diversion, counsel returned to that point and stated: [11] "He was then taken to ground and [was] the subject of some considerable force, and was then placed under arrest and taken into custody in a manner that … was contrary to s 99 of the Law Enforcement (Powers and Responsibilities) Act and, as such, constituted an unlawful imprisonment." Consistently with the pleading, the opening involved a clear statement that the arrest occurred when Mr Exton alighted from the vehicle.
Further, at the commencement of the trial the State handed up a "schedule of issues" with which counsel for Mr Exton expressed unqualified agreement. [12] It identified the first issue as "did one or more police officers drag the plaintiff from the vehicle in which he had been seated". There was no hint that an arrest or unlawful detention had occurred at any earlier point in time.
In the course of the trial there was evidence which might be seen as relevant to a question whether Constable Chapman had directed the respondent to get out of the vehicle, or merely requested him to do so. There was no cross-examination of Constable Chapman suggesting that the respondent was placed under arrest, or detained, at the time the direction or request was made.
It is true that in final addresses counsel for the respondent submitted that "all of the occupants of the vehicle were detained and detained contrary to law" when Constable Quinn directed the driver not to drive away. However no case was pleaded on that basis, nor did the trial judge address that as a basis for finding an unlawful detention of the respondent. [13] Counsel submitted that at the time Mr Exton was directed to leave the vehicle, he was "no longer, relevantly, at liberty" and that "nothing done to this point has a lawful basis." [14] Towards the end of his address counsel submitted: [15] "There was an unlawfulness at the start. The car was detained when it oughtn't to have been. There was an unlawful direction given by Constable Chapman to the plaintiff. At that point his will was overborne and he was the subject of a false imprisonment at that point. … Your Honour would accept that he came out of the vehicle in some state of agitation, possibly of aggression …. There's a false imprisonment; there's a battery. The false imprisonment continues throughout the entirety of the period the plaintiff is in custody."
Following the address for Mr Exton, counsel for the State immediately raised an objection to the change in course: [16] "MAHONY: The case has changed significantly. The case is now, it would appear, based upon a failure to do certain things under LEPRA for the purpose of giving a direction that has legal consequences. The defendant comes to … defend these matters based upon pleadings, the statement of claim. While my friend has been giving his submissions I have been flicking through the statement of claim and there is not one reference to any person giving a direction under LEPRA that was either not in accordance with the Act, that was not justified and that could not be lawfully done. The statement of claim is absolutely silent on it. HIS HONOUR: I appreciate that but the way the case is run and this evidence was not objected to, it has now become apparent that there were directions given which have to be examined for their lawful basis and as to their consequences. MAHONY: Certainly, but the claim that the defendant was called to defend, to respond to, was a battery based upon as the plaintiff approached the car's passenger side door, the officers reached in and dragged the plaintiff out of the car."
While there was force in the complaint made by counsel for the State, the submissions for the plaintiff did not in terms allege that any arrest had taken place whilst Mr Exton was seated in the back seat of the vehicle. The finding of the trial judge to that effect involved an extrapolation even beyond those submissions.
The trial judge structured his reasons by reference to five issues. Issues 2-5 reflected the issues which had been identified by the parties at the commencement of the trial. Issue 1, however, expanded very significantly on the first issue the parties had identified, referred to at [15] above. As reformulated by the judge, issue 1 read: [17] "Issue 1 - The resolution of factual matters of significance that surrounded the circumstances of the plaintiff's arrest, including: (1) whether or not a police officer had removed the ignition keys from the vehicle in which the plaintiff was seated; (2) whether at the time an arrest warrant existed in relation to the plaintiff; (3) whether Senior Constable Chapman had directed the plaintiff to get out of the vehicle, as claimed on behalf of the plaintiff, as distinct from making a request that he do so, as claimed by Senior Constable Chapman; (4) the manner and circumstances of the plaintiff's exit from the vehicle; (5) the stage at which the police officers grabbed the plaintiff by the arms and whether excessive force had been applied by the police; and (6) the actual stage or timing of the plaintiff's arrest." It was only sub-issues (4) and (5) which reflected issue 1 as identified by the parties. It was the combination of sub-issues (3) and (6) which led to the finding of which the applicant complains.
Understandably, the trial judge did not seek to determine the case on the basis that the direction to the driver of the car not to drive away involved a detention of all the persons in the vehicle. However, the judge did accept the proposition that the direction to the respondent to get out of the vehicle constituted the "arrest" of the respondent. In the circumstances set out above that approach was not open and a finding in those terms should not have been made.

(b) reasoning in support of finding

To explain the reasoning of the trial judge it is convenient to return to the statement of "Issue 1" set out above. For present purposes, the relevant sub-issues were (2), (3) and (6). Although sub-issue (2) was "whether an arrest warrant existed", the judge stated: [18] "The second key matter of factual significance which arises for resolution is whether or not the plaintiff had been told by Senior Constable Chapman that there had been a warrant for his arrest, as the plaintiff had stated in his evidence …." However, most of the ensuing discussion concerned "ambiguity" in the evidence of Constable Chapman. Although ultimately nothing turned on this point (except as an aspect of the judge's reluctance to accept Constable Chapman's evidence) it is tolerably clear from the transcript that Constable Chapman did not intend to say there was a "warrant" available with respect to Mr Exton, but rather that there was "a warning" that he was wanted for questioning. It seems likely that the transcript was defective in using the word "warrant". The trial judge found that Constable Chapman did not tell Mr Exton that he had a warrant for his arrest, [19] but made no finding as to whether Mr Exton in fact believed that he had been told that there was a warrant. The judge did, however, accept that Mr Exton understood that he was obliged to comply with the officer's direction.
On the other hand, Mr Exton did not understand that the direction constituted a formal arrest. His evidence, set out by the trial judge, was as follows: [20] "Q. Did he tell you that there was a warrant out for your arrest? A. Yeah, he said there was a warrant. Q. What happened after that? A. He told me to get out, and I was getting out of the car, and yeah. … A. He - I was taking my time to get out of the car, and yeah, he just grabbed me. Q. Did he grab you while you were in the car, or after you'd got out? A. I'm not too sure. … Q. After you were grabbed, do you remember what happened after that? A. I was placed on the ground. Q. And what happened after you were placed on the ground? A. I was put under arrest. Q. How were you put under arrest? A. My hands behind my back."
The critical reasoning in this respect was in the following terms: [21] "In those circumstances, I find that the plaintiff's response in moving forward to get out of the vehicle, indicated he had already been arrested. Satisfactory evidence of that fact was his submission to the command or direction given to him by Senior Constable Chapman to get out of the vehicle: Symes v Mahon [1922] SASR 447, at pp 449, 451, 453 and 454. I find that at that time, the plaintiff was under the power of Senior Constable Chapman. As a consequence, I find that he had been arrested at that time, which was well before he had actually got out of the vehicle, and well before he was grabbed by the police officers and then leg swept to the ground. All those subsequently occurring events must be viewed in that light."
The reasoning in the first sentence in this passage cannot be accepted. Whether the direction to get out of the vehicle was a request or a command, it was complied with. Whether it was an effective arrest depended upon how Mr Exton understood the direction. To the extent that reliance was placed upon his understanding and "submission", his evidence was that he understood there was a warrant for his arrest, but he did not think he was then under arrest. It is true that words accompanied by a threat, express or implicit, of compulsion in the event of non-compliance can constitute a total deprivation of liberty, but they will usually require the person not to move or to accompany the commander to another place and remain there. There was no finding that the language used by Constable Chapman had the latter effect; it certainly did not involve the former.
Further, reliance upon the decision in Symes v Mahon provided no support for that reasoning. The facts of Symes v Mahon were distinguishable. The plaintiff in that case had been shown a warrant for the arrest of a man alleged to be the father of an illegitimate child. The evidence which was presented to a jury need not be repeated here. The appeal depended on whether the jury might properly infer from the evidence that the plaintiff had submitted to the authority of the officer. In setting out the relevant principle (at one of the pages referred to by the trial judge) Murray CJ included an extract from the judgment of Coleridge J in the leading case of Bird v Jones, to the following effect: [22] "Some confusion seems to me to arise from confounding imprisonment of the body with mere loss of freedom; it is one part of the definition of freedom to be able to go whithersoever one pleases; but imprisonment is something more than the mere loss of this power; it includes the notion of restraint within some limits defined by a will or power exterior to our own."
The Chief Justice also referred to a passage in the judgment of Patteson J in Bird v Jones that imprisonment is "a total restraint of the liberty of the person, for however short a time, and not a partial obstruction of his will, whatever inconvenience it may bring on him." [23] These passages did not assist the plaintiff, nor support a finding of arrest at the time he was directed to get out of the vehicle.
In this Court, counsel for the respondent did not ultimately seek to defend the judgment below on the grounds that there had been an arrest at the time that the direction was given. Rather, he submitted that there had been an imprisonment at that time. The respondent filed a draft notice of contention, against the possibility that there might be a grant of leave to appeal. The grounds were as follows: "If the arrest of the Respondent occurred outside the vehicle: a. the Respondent was nonetheless falsely imprisoned from when he moved forward to get out of the vehicle; [24] and b. the arrest outside the vehicle was nonetheless a wrongful arrest as it was not effected in good faith [25] and was effected with excessive force. [26] " As the respondent's counsel acknowledged, there were findings of fact required by the matters raised in the notice.
The difficulty for the respondent was that, apart from wanting him out of the vehicle, there was no indication as to the purpose underlying the direction. Whatever the subjective intention of Constable Chapman, it was not revealed in the words used. He did not suggest that he wanted the respondent to accompany him to the police station (as in Symes), nor anywhere else. However, if the respondent's belief, as conveyed in his evidence, was correct, namely that there was a warrant for his arrest, Constable Chapman would have had a valid reason for asking him to leave the vehicle. That purpose would have been to carry out the arrest in a public place, not in the cramped confines of a vehicle with the supposed offender surrounded by highly intoxicated friends. In some circumstances, a direction, or even a request by an officer, may allow an inference that the request or direction itself involved an exercise of the officer's authority to deprive the person of his or her liberty. That was not so found in this case and such a finding was not inevitable. If the respondent had then been deprived of his liberty, the next question should have been whether that detention was unlawful from that point until the point, perhaps a minute or two later, when he was arrested.
The trial judge also reasoned that the "arrest" was unlawful at that point because in fact the threat to come in and drag the respondent out had been a bluff, as Constable Chapman had said in his evidence. The judge said: [27] "To engage in a bluff is to deceive or intimidate by a pretence of strength …. Such a bluff, or pretence, cannot amount to be acting in good faith. An arrest based on such circumstances should not be seen as being lawful."
Although the State took objection to this reasoning, it is not necessary to rely upon that challenge; Constable Chapman asserted no basis upon which he would have been entitled to arrest the respondent while he was sitting in the vehicle. The judge's acceptance of his evidence that he was seeking to bluff the respondent into alighting implied acceptance of the absence of any asserted authority to require that course, without resort to bad faith. If there had been an arrest at that point of time, it would have been unjustified and unlawful.
The finding as to the time of arrest coloured the analysis of the subsequent events. To the extent that the respondent resisted being taken hold of as he stepped out of the vehicle, the conduct of the officers constituted part of the process of arrest which, being without lawful justification, the respondent may have been entitled to resist. In the result, the trial judge did not consider the lawfulness of an arrest which took place as the respondent was removed from the vehicle. If the test of the lawfulness of an arrest, as set out in s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), had been applied at that time, the question for the judge would have been whether the respondent was in the act of committing an offence or had committed an offence at that point. That test was not applied. It follows that this case was dealt with on an erroneous basis.
By way of further explanation, sub-issue (4) discussed by the trial judge was Mr Exton's manner of exit from the vehicle. The judge accepted that in leaving the vehicle he exhibited "an attitude of resentment" and made "offensive utterances." [28] He also appears to have accepted that "the plaintiff behaved in a verbally or even physically threatening manner to the police officers present". [29] However, he considered that the direction given by Constable Chapman for Mr Exton to leave the vehicle resulted in a "tense situation" that was "entirely of the making of the police officers", [30] and continued: [31] "If the situation truly was that the police officers held a reasonable apprehension that they may be attacked by the plaintiff in his intoxicated state on exiting from the vehicle, thus requiring the pre-emptive response of grabbing him and putting him on the ground by means of a leg sweep, then this must be recognised as being a situation which they had provoked by their own conduct."
In the penultimate paragraph dealing with sub-issue (4), the judge stated: [32] "The escalation was created by Senior Constable Chapman. It needed to be calmed. The police response of grabbing the plaintiff was unnecessary and excessive. If there was truly a risk of the plaintiff attacking the police officers, they had other means at their disposal to overpower an enraged intoxicated plaintiff, such as the use of the OC spray that Senior Constable Quinn had used in the events that followed."
There are four notable features about the last two paragraphs set out above. First, the judge made hypothetical statements as to what "the situation truly was", but made no express finding in that regard. Secondly, it was unclear whether it was the mere fact that Constable Chapman had directed Mr Exton to leave the vehicle which was the provocative act [33] (there seemed to be no other) or whether the essence of the provocation was that the direction was unlawful. Thirdly, accepting that the direction was without lawful authority, an aggressive response which placed the police officers in fear of attack was nevertheless sufficient to warrant an arrest of the aggressor, a matter as to which the judge made no finding. Fourthly, the fact that there may have been other options, such as the use of OC spray, available to the officers was not something which had been put to either Constable Chapman or Constable Quinn. Nor did the judge note that the offender who had struck Constable Chapman and who was sprayed by Constable Quinn was also arrested. Finally, the judge said nothing about the unchallenged evidence of Constable Chapman that he had said "relax" to Mr Exton on three occasions as he got out of the vehicle.
Of these concerns, the most relevant for present purposes is the absence of findings as to the issues which would have been critical to an assessment of the validity of an arrest at that stage.
Sub-issue (5) asked when the plaintiff was grabbed by the arms. There were similar problems with the assessment of the evidence in this regard as a similar conclusion was reached: [34] "Even if, for the purpose of analysis, it was accepted that the plaintiff had made a lunging movement as claimed, its effect could have been readily dissipated without resultant physical contact, by the officers simply stepping away from the tense situation that had been created by Senior Constable Chapman. If the danger of an attack still remained at that point, they were readily equipped to deal with such a circumstance by using their OC spray, batons, or other non-physical encouragements, to neutralise any threatening behaviour of the plaintiff, whether real or perceived."
The conclusion that excessive force was used was based on an assumption, again without a dispositive finding. [35] A finding of excessive force appears to have been made on the basis of the alternative options which had not been put to the officers. Interestingly, the judge included a reference to "non-physical encouragements". The judge also referred to the evidence of Constable Quinn that before he grabbed the plaintiff he had "first placed a hand on the plaintiff's chest in an attempt to calm him down." [36] That evidence, together with Constable Chapman's evidence that he had told Mr Exton on three occasions to calm down, was neither expressly accepted, nor rejected. It provided evidence that non-physical encouragement had failed. Further, while noting differences between the accounts given by Constable Chapman and Constable Quinn, the judge did not say which, if either, he accepted. Although the judge made a finding that excessive force had been used in carrying out the arrest, he did not consider whether the arrest was otherwise valid, if it occurred as Mr Exton descended from the vehicle, because he had already determined that it was an unlawful arrest which had occurred at an earlier stage.

Implicit in the foregoing account are a number of legal principles which it is as well to formulate expressly, as the matter may be retried.
The lawfulness of detention generally arises in three categories of case. One category involves civil claims in tort, such as the present matter. A second category involves collateral challenges to the tender of admissions in a criminal trial, where the defendant was in some form of custody when the admissions were made. There is a third less common (miscellaneous) category where questions as to whether a person was "in custody" at a particular time may arise for the purposes of a statutory scheme. [37] Statements of principle derived from particular cases may be coloured by the nature of the issues. In particular, it is well to note that a person may be unlawfully detained, or in custody, without there being an arrest.
In the United States, questions of lawfulness commonly arise with respect to forms of detention and deprivation of liberty short of an arrest. In Terry v Ohio [38] the Supreme Court noted: "It is quite plain that the Fourth Amendment governs 'seizures' of the person which do not eventuate in a trip to the station house and prosecution for crime - 'arrests' in traditional terminology. It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person."
As noted by Hodgson JA in Wilson v State of New South Wales, [39] "[t]he requirements for an arrest are (1) communication of intention to make an arrest, and (2) a sufficient act of arrest or submission." Where there is no physical act of apprehension, but the person merely accompanies the officer, there may be an issue as to whether the conduct of the person involved a voluntary or consensual acceptance of a request, as opposed to submission to the authority of the arresting officer. [40] If the communication is unequivocal, the response of the person concerned may be irrelevant. Thus, in Wheatley v Lodge [41] a person who was told he was under arrest and accompanied the officers was held to be under arrest although, being deaf, he did not hear what had been said and misunderstood what was happening.
In Smith v The Queen, [42] a case dealing with admissibility of admissions in a criminal trial, Williams J stated: "The term 'in custody' in the Judges' Rules is not a term of art. It is not confined to a person who has been arrested after a charge has been preferred against him. Any person who is taken to a police station under such circumstances that he believes that he must stay there is in the custody of the police. He may go only in response to an invitation from the police that he should do so and the police may have no power to detain him. But if the police act so as to make him think that they can detain him he is in their custody."
In R v Lavery [43] King J allowed in evidence admissions which had been challenged on the basis that they were involuntary or had been unfairly obtained from the accused whilst in custody. The following statement of principle has been relied on in subsequent cases as authoritative: [44] "A suspect may, voluntarily and without constraint, accede to a police officer's request to accompany him and, if he does so, there is of course no interference with his liberty. This is so even if he goes reluctantly out of respect for authority or fear that a refusal will be construed as an indication of guilt or some other similar motive. The suspect's liberty is not under restraint simply because the police officer would or might arrest him if he were to exercise his right to depart or to refuse to accompany the police officer. If, however, the circumstances are such as to convey, notwithstanding the use of words of invitation or request, that the suspect has no real choice, his freedom is under restraint and he cannot be regarded as accompanying the police officer voluntarily." This passage has been adopted by courts of criminal appeal. [45]
It is not the case that any opinion held by the subject will be sufficient to create a deprivation of liberty; it must be objectively supportable. As Walsh J stated in Watson v Marshall: [46] "No physical force was used at any time by the defendant. But I find that in the circumstances the plaintiff had a justified apprehension that, if he did not submit to do what was asked of him, he would be compelled by force to go to the hospital. Therefore a restraint was imposed upon the plaintiff which amounted to an 'imprisonment' of him by the defendant".
It is not uncommon in these cases that there may be ambiguity or uncertainty attending the conduct of the police and attending the conduct of the person addressed. Thus, in O'Donoghue v R [47] Hunt J stated: "The trial judge specifically found that the applicant was not under any form of compulsion to accompany the police officers to the police station. The applicant's belief that he had to do so, the trial judge said, may well have been formed as a result of the common belief or assumption that a mere request from a police officer constitutes a command or an order to be obeyed. But the applicant was not in fact compelled to do so by anything which had been said or done by the police officer. That belief was a product of his own mind. The distinction is an important one." One may add that there may also be a distinction between compliance with a direction which does not involve an arrest at all and compliance with a direction which does not directly involve arrest but may be understood to be leading to an arrest, possibly depending upon whether the officer's questions are answered in such a way as to satisfy him or her that an arrest is not appropriate.

Leave to appeal

The finding that there had been an arrest upon the giving of the direction to get out of the vehicle raised, as the State submitted, a matter of some general importance. The circumstances in which a direction is given to accompany a police officer may be such as to convey to a reasonable person that he or she has no choice, so as to constitute a total deprivation of liberty, whatever the subjective intention of the officer. However, a direction to a person seated in a vehicle to get out, or in the case of a person surrounded by a crowd to accompany the officer to a quieter place, cannot without more constitute a form of imprisonment, or total deprivation of liberty. Although the judge did not purport to state a general principle, the finding in this case, if uncorrected, would support an unjustifiably broad understanding of the circumstances amounting to a total deprivation of liberty. Further, there was a serious procedural irregularity in determining the case on an issue not identified as such by the parties at any stage.
Accordingly there should be a grant of leave to appeal. The appeal should be allowed and the judgment should be set aside.

Consequential orders

There is a large question as to what orders should follow in these circumstances. Because the critical factual findings were not made at trial, there is a question as to whether this Court can make those findings, or whether they can only be made by the trial court, on remittal.
The parties were in agreement that there is much to be said against a remittal. The amount in issue is not large, in comparison to the likely costs of the litigation. The events, which occurred within a few minutes or even less, took place over four years ago. Mr Exton had little recollection of what happened then; the reliability and extent of his recollections will not have improved. Further, even if the respondent were to maintain the liability of the State, being on a different basis, it might not attract the same awards of aggravated and exemplary damages.
If Constable Chapman's evidence were to be accepted, it may be that this Court could resolve the undetermined factual issues. However, it is not clear that that course is open. In one passage, directed to the comparison of Constable Chapman's evidence with that of Mr Exton as to the words used by Constable Chapman, the trial judge concluded that he would have serious doubts about the plaintiff's evidence because of his state of intoxication. He continued: [48] "However, the position here is markedly different, in that, although the plaintiff's account was vague and perhaps unreliable, and was recounted in benign terms, Senior Constable Chapman's account was, in contrast, candidly precise, and there is no reason for concluding that it was either inaccurate or unreliable."
At other points, however, the trial judge referred to Constable Chapman as having "obfuscated" (when dealing with Constable Quinn's conversation with the driver of the vehicle); found it "difficult to accept" Constable Chapman's evidence as to how the respondent came out of the vehicle, and in fact did not accept his evidence in that regard. [49] The judge also stated that in various respects in relation to events at the door of the vehicle, "I had reservations about accepting the accuracy and the reliability of Senior Constable Chapman's evidence on those key matters of fact in dispute." [50]
The State sought to have this Court make a finding that there had been no unlawful arrest or unjustified detention. It submitted that there was in truth no significant contradiction between the evidence of Constable Quinn and Constable Chapman and that in large part the contradictions identified by the trial judge were matters of detail or involved one officer not giving evidence as to what another officer had done, said or understood. Further, the judge's adverse assessment of parts of Constable Chapman's evidence, on the basis that it was internally inconsistent, was unwarranted.
An example of the first complaint related to the judge's statement that Constable Chapman had "obfuscated when answering questions as to whether the driver of the vehicle from which the plaintiff had alighted was free to drive away notwithstanding the request to remain stationary." [51] In fact, Constable Chapman demurred on the basis that he did not know what Constable Quinn had said to the driver, but agreed that they had no power to detain her if she sought to drive off.
An example of the second complaint was the statement that Constable Chapman "gave two differing accounts as to the reasons why he wanted to speak to the plaintiff at the time." [52] That was not so. His initial purpose in looking into the vehicle was to see if Samuel Gomes was there, because he understood there was a warrant for his arrest. That had nothing to do with wanting to speak to the respondent. He wanted to speak to the respondent about an alleged assault. There was no inconsistency.
Although there is substance to these submissions with respect to some findings, they do not squarely deal with the findings as to credibility and reliability in respect of what happened as the respondent got out of the vehicle. Accordingly, it would not be open to this Court to determine the issues without the benefit of oral evidence.
As noted above, the respondent filed a draft notice of contention requiring further findings of fact. His counsel acknowledged, if perhaps reluctantly, that these matters could only properly be dealt with by way of a remittal.
It follows that the matter must be remitted for a further trial. Given the history, including the fact that the first trial ran over three days and the delay (it now being more than four years since the date of the incident), it is much to be hoped that a settlement may be achieved, the State having established principle on which the matter should have been determined.
The Court should make the following orders: 1. On the condition that the State pays the respondent's reasonable costs in this Court, grant the State leave to appeal from the judgment delivered in the District Court on 13 April 2017. 2. Direct that the State file within 7 days a notice of appeal in the form contained in the white folder, but limited to ground 3. 3. Allow the appeal and set aside order 1 made by the District Court. 4. Remit the matter to that Court to be reheard according to law. 5. Let any order for costs made in the District Court stand.
MEAGHER JA: I agree with Basten JA.
LEEMING JA: I agree with Basten JA.

Endnotes

Tcpt, 21/02/17, p 66(35).
Tcpt, p 70(25)-(45).
Tcpt, p 71(33).
Tcpt, pp 72(45)-73(10).
Exton v State of NSW [2017] NSWDC 83 ("Exton").
Supreme Court Act 1970 (NSW), s 101(2)(r).
Tcpt, 21/02/17, p 32(35).
Exton at [149].
Statement of claim, pars 38-43.
Tcpt, 20/02/17, p 20(2)-(10).
Tcpt, p 20(40)-(45).
Tcpt, p 16(22).
Tcpt, 22/02/17, pp 139-140.
Tcpt, p 142(47).
Tcpt, p 147(25)-(30) and (36)-(42).
Tcpt, p 150(40).
Exton at [20].
Exton at [135].
Exton at [148].
Exton at [34] (emphasis in trial judgment).
Exton at [187].
Bird v Jones (1845) 7 QB 742 at 744.
Bird v Jones at 752.
Referring to Exton at [187].
Referring to Exton at [159], [172] and [191].
Referring to Exton at [179], [185] and [195].
Exton at [192].
Exton at [157].
Exton at [166].
Exton at [161].
Exton at [162].
Exton at [172].
Exton at [169].
Exton at [183].
Exton at [185].
Exton at [178].
See, eg, Eatts v Dawson (1990) 21 FCR 166.
392 US 1 at 16 (1968).
[2010] NSWCA 333 at [59]; 207 A Crim R 499.
Collins v Wilcock [1984] 1 WLR 1172 at 1180 (Robert Goff LJ and Mann J).
[1971] 1 WLR 29.
(1957) 97 CLR 100 at 129; [1957] HCA 3.
(1978) 19 SASR 515.
Lavery at 516.
C v R (1997) 93 A Crim R 81 at 96 (Hunt CJ at CL, McInerney J agreeing); Norton v The Queen (No 2) (2001) 24 WAR 488; [2001] WASCA 207 at [124] (Roberts-Smith J; Wallwork J and Pidgeon AUJ agreeing).
(1971) 124 CLR 621 at 626; [1971] HCA 33 (emphasis added).
(1988) 34 A Crim R 397 at 402 (Hunt J, Carruthers and Wood JJ agreeing).
Exton at [148].
Exton at [70], [74] and [76].
Exton at [82].
Exton at [70].
Exton at [143]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 November 2017

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