State of New South Wales v. Koumdjiev [2005] NSWCA 247

Court of Appeal (NSW)|2005-07-01|Before: Beazley JA, Hodgson JA, Hislop J

63 NSWLR 353 Reported Decision : 155 A Crim R 186 (2005) Aust Torts Reports 81-813

State of New South Wales v. Koumdjiev [2005] NSWCA 247 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments.

JUDGMENT OF: Beazley JA at 1; Hodgson JA at 2; Hislop J at 70

Crimes Act 1900, ss.352, 546C LEGISLATION CITED: Intoxicated Persons Act 1979, s.5 Strata Schemes (Freehold Development) Act 1973, ss.20, 21

Annen v. Rattee [1985] 1 EGLR 136 Briginshaw v. Briginshaw (1938) 60 CLR 336 Bull v. Bull [1955] 1 QB 235 Diamond v. Minter [1941] 1 KB 655 Doe d. Aslin v. Summersett (1830) 1 B&Ad 135 Halliday v. Nevill (1984) 155 CLR 1 Hawkins v. Permarig Pty. Ltd. [2004] QCA 76 Hong v. Choo [2004] HKEC 64 Jacobs v. Seward (1872) LR 5HL 464 CASES CITED: Lippl v. Haines (1989) 18 NSWLR 620 Lotor v. Deveraux (1832) 3 B&Ad 343 Parsons v. Parsons [1983] 1 WLR 1390 Plenty v. Dillon (1991) 171 CLR 635 Robson-Paul v. Farrugia (1969) 20 CCR 820 Shaw v. Donaldson (1988) 78 ACTR 6 State of New South Wales v. Riley [2003] NSWCA 208 Thompson v. Vincent [2005] NSWCA 219 Wiltshire v. Barrett [1965] 2 AllER 271

State of New South Wales - appellant PARTIES: Svetoslav Koumdjiev - respondent

Mr. P. Menzies QC with Mr. M. Hutchings for appellant COUNSEL: Mr. I.D. Cullen with Mr. T.V. Hickie for respondent

I.V. Knight, Crown Solicitor for appellant SOLICITORS: Marea Hickie, Mosman for respondent

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40995/04 DC 8923/02

BEAZLEY JA HODGSON JA HISLOP J

Friday 22 July 2005 STATE OF NEW SOUTH WALES V. KOUMDJIEV Headnote

FACTS 1 At around midnight on 2 September 2000 the respondent, Mr Koumdjiev, returned by car to his apartment block after work. Upon reaching the entrance foyer to the apartment building via an internal corridor, Mr Koumdjiev was beckoned towards the security front door by one of several people outside the door.

2 Outside the door, three police officers were holding an intoxicated neighbour of Mr Koumdjiev, Ms. Docherty, with the intention of returning her to a responsible person in her unit pursuant to s.5 of the Intoxicated Persons Act 1979 (NSW). After receiving no response to pressing the intercom buzzer for Ms. Docherty's unit, the police gestured for Mr Koumdjiev to open the security door, and also began pressing intercom buzzers for other units in an attempt to gain entry.

3 Ms. Docherty called out to Mr. Koumdjiev not to open the door, and Mr Koumdjiev complied. On the evidence, Mr Koumdjiev was found to be pushing against the door in order to prevent the police from entering the building. After someone unlocked the door from another unit and police successfully pushed it open to enter, an altercation ensued between the police and Mr Koumdjiev, at the conclusion of which Mr Koumdjiev was handcuffed.

4 Mr Koumdjiev was taken to Burwood Police Station and charged with assault and resisting police. After being released Mr Koumdjiev went to hospital on account of injuries sustained during the conflict with the police.

5 Mr Koumdjiev was convicted of resisting police, but on appeal that conviction was quashed. He subsequently sued the appellant for assault, battery, trespass to person and false arrest and false imprisonment. The primary judge found that the entry by the police was unlawful, and consequently that the arrest was also unlawful. He awarded general and aggravated damages, and the costs of defending the criminal charges.

6 The primary issues on appeal were: whether the arrest was unlawful, whether Mr Koumdjiev was assaulted, whether he was entitled to aggravated damages, and whether he was entitled to the costs of defending the criminal proceedings consequent on his arrest.

HELD (per Hodgson JA, Beazley JA and Hislop J agreeing) (1) A tenant in common cannot, without transfer or lease of its interest, grant a licence to another, irrevocable by other tenants in common, if that licence goes beyond what is reasonable and incidental to the grantor's possession, use and enjoyment of the property in common with the other tenants in common: Robson-Paul v. Farrugia (1969) 20 CCR 820 ; Annen v Rattee [1985] 1 EGLR 136 ; Hong v Choo [2004] HKEC 64 considered. (2) In circumstances where Mr Koumdjiev denied the police entry to the entry foyer, which was owned by the unit owners as tenants in common, it was not proven that the licence to enter granted by any other unit owner was reasonable and incidental to the purported grantor's possession, use and enjoyment of the entrance foyer, so as to be irrevocable by Mr Koumdjiev. Thus, the police did not have a licence to enter, and were trespassers when they did; and Mr Koumdjiev was exercising his right as an owner of property to exclude trespassers in resisting their entry, and he was unlawfully arrested. (3) It was open to the primary judge to find on the Briginshaw standard that the plaintiff was subjected to excessive force, even if the arrest had otherwise been lawful. It was also open to the judge to find that aggravated damages were appropriate. (4) Where criminal charges arise directly from a wrongful arrest and are dismissed, the person wrongfully arrested may be entitled to damages that include the costs incurred in defending them.

ORDERS 1. Appeal dismissed with costs. **********

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40995/04 DC 8923/02

BEAZLEY JA HODGSON JA HISLOP J

Friday 22 July 2005 STATE OF NEW SOUTH WALES V. KOUMDJIEV Judgment 1 BEAZLEY JA: I agree with Hodgson JA. 2 HODGSON JA: On 21 October 2004, Bishop DCJ gave judgment in proceedings in which the respondent (the plaintiff) sued the appellant for assault, battery, and trespass to person, and for false arrest and false imprisonment, in each case by officers of the New South Wales Police Service. The primary judge gave a verdict for the plaintiff for $165,036.80 together with costs. The State of NSW appeals to this Court from that decision.

CIRCUMSTANCES 3 The plaintiff came to Australia in 1995 with his wife, from Bulgaria. At the time of the events in question, he was living with his wife at an apartment block at 2 Chandos Street, Ashfield, and working as a bar attendant and waiter in a Spanish restaurant in Glebe. 4 On 2 September 2000, the plaintiff finished his shift at the restaurant at about 11.30pm, and returned by car to his apartment block. He arrived there about midnight, and drove into the garage in the basement of the building. As he got out of his car, he heard shouting from the driveway of the building, and went to the corner of the building to investigate. He saw a group of people he did not recognise, near the entrance door to the apartment block. He closed the garage door, and entered the building via an internal corridor that led to the entrance foyer. 5 When reaching the entrance foyer, the plaintiff saw someone beckon to him from outside the security front door. He approached the door, and saw a male person and a female person holding a female neighbour of the plaintiff, Ms. Docherty. The male person asked him to open the door as they were police, and Ms. Docherty called out to him not to open the door. The plaintiff did not open the door. 6 The police had previously been called to the Polish Club in Ashfield by a friend of Ms. Docherty, who alleged Ms. Docherty had been sexually assaulted. Just after 11.20pm, Duty Officer Bellemore and Constables Creamer and O'Neil arrived at the Club and saw Ms. Docherty in an intoxicated state trying to re-enter the Club. 7 These police officers, acting under s.5 of the Intoxicated Persons Act 1979 (NSW) put Ms. Docherty into the back of a caged vehicle with the intention of taking her to her home unit, where they believed her boyfriend and brother to be. Ms. Docherty protested against being taken away from the Club. 8 When they arrived at the apartment block, the police pressed the intercom buzzer for Ms. Docherty's unit but received no response. It was after this that the request was made to the plaintiff to open the front door. The police also pressed the intercom buzzers for other units in an attempt to gain entry. 9 The occupants of one unit, Mr. and Mrs. Chik, had been woken up by Ms. Docherty's protests outside the building, and Mr. Chik answered the intercom when the police buzzed it. Duty Officer Bellemore said words to the effect "This is the police, let us in". Mr. Chik did not then unlock the door, but said he would come down. He took a torch, and went down to the foyer. There (according to his evidence) he saw the plaintiff pushing against the door to keep it shut, while police were gesturing for it to be opened. Mr. Chik decided to let the police in through the garage, and went back to his unit to retrieve the garage door keys. On returning to his unit, he told his wife to the effect "It's the police, keep buzzing them in", which his wife did. 10 Before Mr. Chik returned downstairs, the police succeeded in pushing the door open, and gained entry. There was then a physical altercation between the police and the plaintiff, at the conclusion of which the plaintiff was handcuffed. At about this time, Ms. Docherty's brother and boyfriend came down from Ms. Docherty's unit. 11 The plaintiff was put into the caged truck and taken to the Burwood Police Station. There, the handcuffs were removed, and the plaintiff was placed in a cell for about two hours. He was told that he was charged with assault and resisting police in the execution of their duty, and released. The plaintiff then walked home, and drove himself to Balmain Hospital, where he had painkillers and x-rays. He complained of pain in his right shoulder and left ribs. He saw his own doctor on Monday 4 September, and returned to work at the Glebe restaurant in about two or three weeks. However, there was evidence at the trial that he suffered substantial psychological problems as a result of the incident. 12 On 28 September 2001, the plaintiff was convicted of resisting police under s.546C of the Crimes Act 1900 (NSW). On 28 November 2001, his appeal to the District Court was upheld and the conviction quashed. He commenced these proceedings in the District Court on 12 December 2002.

STATUTORY PROVISIONS 13 In taking Ms. Docherty to the apartment block, the police were acting under s.5 of the Intoxicated Persons Act, which is in the following terms: 5 Detention of intoxicated persons (1) A police officer may detain an intoxicated person found in a public place who is: (a) behaving in a disorderly manner or in a manner likely to cause injury to the person or another person or damage to property, or (b) in need of physical protection because the person is intoxicated. (2) A police officer is not to detain a person under this section because of behaviour that constitutes an offence under any law. (3) An intoxicated person detained by a police officer under this section is to be taken to, and released into the care of, a responsible person willing immediately to undertake the care of the intoxicated person. (4) An intoxicated person detained by a police officer under this section may be taken to and detained in an authorised place of detention if: (a) it is necessary to do so temporarily for the purpose of finding a responsible person willing to undertake the care of the intoxicated person, or (b) a responsible person cannot be found to take care of the intoxicated person or the intoxicated person is not willing to be released into the care of a responsible person and it is impracticable to take the intoxicated person home, or (c) the intoxicated person is behaving or is likely to behave so violently that a responsible person would not be capable of taking care of and controlling the intoxicated person. (5) An intoxicated person who is detained in an authorised place of detention under this section may be detained there by any detention officer. (6) An intoxicated person who is detained in an authorised place of detention under this section: (a) must be given a reasonable opportunity by the person in charge of that place to contact a responsible person, and (b) must, as far as is reasonably practicable, be kept separately from any person detained at that place in connection with the commission or alleged commission of an offence, and (c) if the intoxicated person is apparently under the age of 18 years - must, as far as is reasonably practicable, be kept separately from any person over that age detained at that place, and (d) must not be detained in a cell at that place unless it is necessary to do so or unless it is impracticable to detain the person elsewhere at that place, and (e) must be provided with necessary food, drink, bedding and blankets appropriate to the person's needs, and (f) must be released as soon as the person ceases to be an intoxicated person. (7) An intoxicated person detained under this section may be detained under such reasonable restraint as is necessary to protect the intoxicated person and other persons from injury and property from damage. (8) This section does not authorise a responsible person into whose care an intoxicated person is released to detain the intoxicated person. 14 The police sought to justify the arrest of the plaintiff under s.352 of the Crimes Act 1900, subsections (1) and (2) of which are as follows: 352 Person in act of committing or having committed an offence (1) Any constable or other person may without warrant apprehend, (a) any person in the act of committing, or immediately after having committed, an offence punishable, whether by indictment, or on summary conviction, under any Act, (b) any person who has committed a serious indictable offence for which the person has not been tried, and take the person, and any property found upon the person, before an authorised Justice to be dealt with according to law. (2) Any constable may without warrant apprehend, (a) any person whom the constable, with reasonable cause, suspects of having committed any such offence, (b) any person lying, or loitering, in any highway, yard, or other place during the night, whom the constable, with reasonable cause, suspects of being about to commit any serious indictable offence, and take the person, and any property found upon the person, before an authorised Justice to be dealt with according to law. 15 The offence of resisting police is created by s.546C of the Crimes Act, which is in the following terms: 546C Resisting etc police Any person who resists or hinders or incites any person to assault, resist or hinder a member of the police force in the execution of his or her duty shall be liable on conviction before a Local Court to imprisonment for 12 months or to a fine of 10 penalty units, or both. 16 There is an issue in the case as to whether the police were trespassing when they entered the foyer of the apartment block. Sections 20 and 21 of the Strata Schemes (Freehold Development) Act 1973 (NSW) have some bearing on this question. Those sections are as follows: 20 Body corporate to hold common property as agent for proprietors The estate or interest of a body corporate in common property vested in it or acquired by it shall be held by the body corporate as agent: (a) where the same person or persons is or are the proprietor or proprietors of all of the lots the subject of the strata scheme concerned - for that proprietor or those proprietors, or (b) where different persons are proprietors of each of two or more of the lots the subject of the strata scheme concerned - for those proprietors as tenants in common in shares proportional to the unit entitlements of their respective lots.

21 Common property to be dealt with only under this Act Common property shall not be capable of being dealt with except in accordance with the provisions of this Act.

DECISION OF PRIMARY JUDGE 17 There were factual issues at the trial concerning what happened before and after the police gained entry to the foyer of the apartment block, in particular as to what was said by the police, as to whether the plaintiff pushed against the door to keep it shut, as to whether the plaintiff punched Constable Creamer, as to whether the plaintiff was punched by Constables Creamer and O'Neil and also struck by a baton wielded by Constable O'Neil, and generally as to whether excessive force was used by the police. 18 The primary judge rejected the plaintiff's evidence that he had not pushed against the door to keep it shut, but was not satisfied to the Briginshaw standard that the plaintiff had punched Constable Creamer. He rejected the evidence of Constable O'Neil that he had not struck the plaintiff with a baton, holding that Constable O'Neil's assertion that he extended the baton because he thought that Mr. Chik might be at risk from the plaintiff was totally implausible (and apparently therefore rejected Constable O'Neil's evidence that he threw the baton under the stairs as soon as he entered the building). He held that when the door opened, the constables "went for" the plaintiff. 19 He did not explicitly find what the police said. However, he gave no reasons not to accept Duty Officer Bellemore's evidence, so it would seem that he accepted that the police said to the plaintiff, when they were outside the door, that they were the police and requested entry, and also that Constable O'Neil said words to the effect that if the plaintiff did not let them in, they would arrest him for hindering police. The primary judge did make some adverse comments on the evidence of Constable O'Neil, and to a lesser extent of Constable Creamer. 20 However, it also appears that the plaintiff asked police for their names and station, and was not given this information; that although police showed him insignias on their uniforms, they did not show their warrant cards; that the plaintiff asked them how did he know they were police, and was not otherwise answered; and that the plaintiff was not given any reason why the police wanted entry. When the plaintiff was arrested, he was either told by Constable O'Neil he was under arrest for assault (evidence by Constable Creamer); or told only that he was under arrest (evidence by Constable O'Neil). 21 The primary judge found that it had been a difficult night for the police, and that they had reasonable cause for believing that, for the purposes of the Intoxicated Persons Act, there would be a responsible person at Ms. Docherty's home. On the question whether the police were entitled to enter the foyer, the primary judge found that the police would have no such entitlement unless either they had a licence, referring to Halliday v. Nevill (1984) 155 CLR 1 and Plenty v. Dillon (1991) 171 CLR 635, or unless they had a power to enter pursuant to s.352 of the Crimes Act, referring to Lippl v. Haines (1989) 18 NSWLR 620. 22 The primary judge continued: On considering these authorities I have come to the view that the entry into the foyer by the constables was unlawful. The purpose of the desired entry was to find a responsible person pursuant to the Intoxicated Persons Act . The purpose of entry had nothing to do with the conduct of the plaintiff and did not attract the operation of s352. Despite this, it was forcible. There was no statement by the police as to why they were there and why they wanted to come in prior to entry. It is also arguable that they did not properly identify themselves. There was, in my view, no basis for implying a licence to enter the foyer. Accepting as I do that the plaintiff was actively obstructing the police, it was not open to assume that entry was being acquiesced in. Ms Docherty also was objecting. There is no authority that has been referred to as to the position with regard to entry onto common property in a strata scheme. Reactions to other buzzers cannot be regarded as overtly revoking the clear-cut opposition to entry expressed by the plaintiff. As a matter of principle I cannot see why the reasoning in Halliday's case (supra) would not equally apply to entry to the foyer of the common property when access to the public was inhibited as in this case by a security door and intercom. 23 It appears that the primary judge accepted that, because the entry was unlawful, the arrest was also unlawful, and the primary judge assessed damages for assault and battery, and unlawful arrest and unlawful imprisonment. The damages included $65,000.00 general damages, $20,000.00 aggravated damages, and $8,490.75 being the costs of defending the criminal charges.

ISSUES 24 One of the grounds of appeal was abandoned. The remaining grounds relied on were grounds 1-3 and 5 as follows: 1. His Honour erred in finding that the Respondent's arrest was unlawful. 2. His Honour erred in finding that the Respondent was assaulted. 3. His Honour erred in finding that the Respondent was entitled to aggravated damages. 4. … 5. His Honour erred in finding that the Respondent had an entitlement to the costs of the defence of the criminal proceedings brought consequent to his arrest. 25 I will consider in turn the following issues. Did the police have a licence to enter the premises? Did the police otherwise have a right to enter the premises? Was the arrest unlawful? Did the police assault the plaintiff? Was there an error in the award of aggravated damages? Was there an error in including the costs of the criminal proceedings as part of the damages? 26 It appears to have been common ground that, if the police were trespassing when they arrested the plaintiff, the arrest would be unlawful. No submissions were put to the contrary. This appears to be correct. It was held by Brennan J in Halliday (155 CLR at 18) that a provision similar to s.352 did not authorise an arrest in circumstances where the police were trespassing for the purposes of the arrest; and although he was in the minority in the High Court, the majority did not deal with this question. The decision of Brooking J at first instance in that case was to the contrary effect; but Brooking J was upheld by the majority on a different point, and in my opinion the decision of Brennan J is strong persuasive authority. There could be a question whether the view stated by Brennan J applies where the initial trespass by police has nothing to do with a subsequent arrest on the land on which they were trespassing, for example where a dangerous criminal is encountered by chance on land on which the police were trespassing for other reasons; but this issue was not explored in this case, and in fact the arrest here was closely connected with the circumstances of the police entry onto the land. 27 It is also common ground that s.5 of the Intoxicated Persons Act did not give a right to police to enter private property. Again, this seems correct: there appears to be quite a close analogy with the service of a summons, which was considered in Plenty v. Dillon. 28 Accordingly, the justification for entry has been put only on two bases: permission given by a tenant in common, and s.352 of the Crimes Act. The first two issues I have identified deal with these matters.

DID THE POLICE HAVE A LICENCE TO ENTER THE PREMISES? Submissions 29 Mr. Menzies QC for the appellant submitted that one of a number of tenants in common could give a licence to enter onto the property (Bull v. Bull [1955] 1 QB 234 at 237); and the cases of Robson-Paul v. Farrugia (1969) 20 CCR 820 and Annen v. Rattee [1985] 1 EGLR 136 did not show that such a licence could be effectively revoked by another tenant in common (see the Hong Kong decision Hong v. Choo [2004] HKEC 64). Alternatively, the police were entitled to enter in order to arrest the plaintiff for resisting police (Lippl). 30 Mr. Cullen for the plaintiff submitted that the police were trespassing even to get so far as the front door: any implied licence to go that far had been withdrawn by Ms. Docherty. He submitted that Robson-Paul and Annen show that any licence granted by one tenant in common could be revoked by another; and in this case, any licence granted by the unlocking of the front door was revoked by Ms. Docherty and the plaintiff. Entry could not be justified for the purposes of arrest, because the primary judge had found that the sole purpose of entry was to return Ms. Docherty to her home. Further, the police did not give their names and stations, or say why they were there or why they wanted to come in.

Decision 31 There is little authority or textbook discussion concerning the position where one tenant in common of property purports to grant permission to another person to enter the property, and another tenant in common purports to refuse or revoke that permission. 32 It is clear that each tenant in common is entitled to possession of the property, and to the use and enjoyment of it in a proper manner. If one tenant in common excludes the other from the property, the latter has a remedy in action for trespass; and if one tenant in common takes more than its share of income or other benefits produced from the property, the other may have an action for an account: Jacobs v. Seward (1872) LR 5HL 464, Bull v. Bull [1955] 1 QB 235. However, there appears to be no direct remedy available to one tenant in common on the basis that the other is making use of the property, which does not go so far as to exclude the former and cannot be made the subject of an action for an account, but nevertheless is excessive and unreasonably restricts the former's use and enjoyment of the property. In such a case, it appears that the only remedy would be to compel a sale of the property. 33 It is clear that one tenant in common can transfer its interest to another person, who will then have the same rights as the transferor previously had. It also seems that one tenant in common can lease its interest to another, so that during the term of the lease the lessee has the same rights of possession as the lessor previously had: Jacobs v. Seward. If such a lease is a periodic tenancy, there would appear to be no basis on which the tenant in common who was not the lessor could terminate it by notice. By contrast, where there is a joint tenancy, the only lease that can be granted (in the absence of a severance of the joint tenancy) is a lease of a property granted by both joint tenants; and if that lease is a periodic tenancy, then it can be terminated by notice from one joint tenant, because its continuance requires the concurrence of all parties: Doe d. Aslin v. Summersett (1830) 1 B&Ad 135, Parsons v. Parsons [1983] 1 WLR 1390. 34 Where what is granted by one tenant in common is a licence, and the other tenant in common purports to terminate or countermand that licence, the position is less clear. 35 In Robson-Paul v. Farrugia (1969) 20 FCR 820, the plaintiff and the first defendant (Farrugia) were tenants in common of freehold property, in which they lived together for a time. The plaintiff left the property, and later Farrugia purported to transfer it to the second defendant (Ms. Dimitriou) by a transfer in which the signature of the plaintiff was forged, and Ms. Dimitriou moved into the property. Later, the plaintiff brought an action for possession. Ms. Dimitriou claimed she had been given a licence to occupy the property by one tenant in common, which the other tenant in common could not terminate. The Court of Appeal upheld a decision in favour of the plaintiff. 36 Davies LJ, after identifying Ms. Dimitriou's Counsel Mr. Hesketh, said this (at 825): As I understand it, Mr. Hesketh's argument on this point can be summarised, really, in one sentence. He submits that one equitable tenant in common cannot determine a licence given to a stranger by the other equitable tenant in common. He says that Farrugia must be taken to have given a licence to Miss Dimitriou to go into this house. The judge says that appeared to be conceded. May be it was, but, for myself, in the absence of such a concession, I should wish to consider whether the entering into this fraudulent dishonest transfer did imply such a licence. Assuming, however, that such a licence is to be implied from Farrugia's transaction it seems to me quite impossible to say that such a licence cannot be terminated by the other joint tenant or other equitable tenant in common without the agreement of both . If one can grant a licence - as to which, quaere - then, surely, the other can revoke the licence. Otherwise, the licence would remain in the premises ad infinitum. 37 Megaw LJ said this (at 827-8): Mr. Hesketh put the question forensically, having regard to the principle laid down in Bull v. Bull: Should that principle not apply equally to prevent a tenant in common from getting an order for possession against someone to whom his fellow tenant in common has transmitted possession? I think that the answer to that question might well be "No." Indeed, I think that it might well be put the other way round: why should someone to whom the possession of the whole property has been transmitted by the tenant in common have protection against the obtaining of an order for possession by the other tenant in common who has not, concurred in that transfer of possession?

Whatever the answer to that question might be, the submission put forward by Mr. Hesketh appears to me to depend fundamentally on the proposition that there was a valid licence given by the first defendant, Mr. Farrugia, to the second defendant, Miss Dimitriou. That a licence was purported to be given may be taken as accepted. The county court judge said that it appeared to be conceded, and it seemed to him to be right, that the second defendant occupied under licence. What however, was the licence which was given by Mr. Farrugia to Miss Dimitriou? As I understand it, it is said that that was a licence to be implied from the transaction including the forged transfer and the rendering up by Mr. Farrugia of possession of the whole house. Can that licence be of any validity or avail to Miss Dimitriou, even if all the rest of Mr. Hesketh's argument is right, if it is a licence which Mr. Farrugia was not authorised to give? I think not. How can it be said that the licence which Mr. Farrugia purported to give to Miss Dimitriou was a licence which he was authorised to give? It is not suggested, as I understand it, by Mr. Hesketh that there is any principle of law that one tenant in common has implied authority to grant a licence of the whole of the property without the consent of the other tenant in common. Mr. Hesketh bases his submission in relation to this licence on what he says are special circumstances of this ease. These special circumstances, he submits, indicate that the proper conclusion is that Mr. Farrugia had implied authority from the plaintiff, Miss Robson-Paul, to grant a licence of the whole property. Mr. Farrugia himself, of course, had no full rights of ownership of the property; on the assumption that he was a tenant in common, he had not the rights of a full owner; he had no right either to transfer the property in, or to grant possession of, the whole of the house on his own account. I can find no scrap of evidence in the notes of evidence before this Court, and certainly no finding of the county court judge, which begins to justify the proposition that Mr. Farrugia had express authority or ostensible authority or implied authority from the plaintiff, Miss Robson-Paul, to grant a licence in respect of the whole of the house. That was what he purported to do. The fact that Miss Dimitriou did not know that Mr. Farrugia had no authority to grant such a licence is, I think, irrelevant; at any rate, no authority, no proposition of law, has been put forward, so far as I have understood it, to suggest that a licence which is given without authority on the part of the purported licensor can be effective for any purpose against any person who would be affected thereby.

Accordingly, in addition to the other reasons which my Lord has mentioned, with which I fully agree, for this reason also I should have held that the second argument put forward on behalf of the second defendant cannot succeed. 38 In Annen v. Rattee [1984] 1 EGLR 136, the plaintiff and a Mr. Wager were co-owners of a flat. Mr. Wager and the defendant resided in the flat, but the plaintiff did not. In September 1977, Mr. Wager granted the defendant an oral licence to occupy the flat, which she did with other people. In 1980, the plaintiff went into the flat in an attempt to displace the defendant, but was unsuccessful. The plaintiff then purported to terminate the defendant's licence, and took proceedings for possession. The Court of Appeal upheld a decision in favour of the plaintiff. Stephenson LJ and Lloyd LJ held that this decision was supported by Summersett and Robson-Paul. 39 In Hong v. Choo [2004] HKEC 64, the plaintiffs were four of five tenants in common of a property, the fifth share being held by a family member who died in 1995. The administrators of that person's estate authorised another family member to occupy the property as their agent, on a non-exclusive basis, pending the sale of the property and possession being given to the buyer. The plaintiff sought possession and damages. The Court dismissed the proceedings. It distinguished Robson-Paul on the basis that the ratio of that case was that the licence purportedly given to Ms. Dimitriou was to possess the property to the exclusion of the plaintiff, and a tenant in common had no authority to give such a licence; and said that Annen was inconsistent with Bull v. Bull, and did not follow it. The Court continued at [78]: 78. Having considered these principles and the authorities, I think it is well within the power of a tenant in common to possess, occupy and enjoy the use of a property with his other tenants in common on a non-exclusive basis. As long as he does not exceed his boundary of non-exclusive user, he is not guilty of trespass and the other tenants in common cannot turn him out. He may also grant a licence to his licensee to possess, occupy and enjoy the use of the property on the same basis. Thus, insofar as a licence granted by a tenant in common which does not purport to give exclusive possession of the property to the licensee, it cannot be validly terminated by the other tenants in common without his consent, just as much as tenant in common is not entitled to turn out the other if the other is properly enjoying the property within the boundaries of his rights as a tenant in common. 40 In my opinion, the Hong Kong case is incorrect insofar as it asserts that, so long as a licence granted by a tenant in common does not purport to give exclusive possession, such a licence may both authorise another person, in the absence of the grantor and for an indefinite period, to do whatever a tenant in common can do, and also not be terminable by other tenants in common of the property. In my opinion, that gives too little weight to an incident of possession, namely the right or power to grant or withhold permission to others to enter property. Although one tenant in common can transfer or lease its interest, I do not think one tenant in common can, without such a transfer or lease, grant a licence to another, irrevocable by other tenants in common, if that licence is of a kind that goes beyond what is reasonable and incidental to the grantor's possession and use and enjoyment of the property in common with the other tenants in common, and which interferes with the possession and use and enjoyment of the property by other tenants in common. 41 For example, suppose there are two tenants in common of a small house, and one of them purports to grant a licence to twenty people to live in the house. If this amounted to excluding the other from possession, it would be a trespass; but if it fell short of excluding the other person, but was substantially detrimental to the other tenant in common's use and enjoyment of the property, in my opinion such a licence could be terminated by the other tenant in common, assuming that it went beyond what was reasonable and incidental to the grantor's possession and use and enjoyment of the property. That is, in my opinion, any licence in excess of what is reasonable and incidental to one tenant in common's possession and use and enjoyment of the property, and which prejudices the other tenant in common's possession and use and enjoyment of the property, is a licence terminable by the other tenant in common. Otherwise, in my opinion, there can be no reasonable reconciliation of the rights of both tenants in common to have possession and use and enjoyment of the property. 42 On that basis, the result in Robson-Paul is correct. If there was a licence to use the premises to the exclusion of the plaintiff, that was clearly a licence that could not be granted; but if the licence fell short of that, but was a licence to continue for an indefinite period to exercise all the rights of one tenant in common, without a transfer or lease, it would be a licence going beyond what was reasonable and incidental to the grantor's possession and use and enjoyment of the property in common with the plaintiff, and so was terminable by the plaintiff. 43 In my opinion, the result in Annen v. Rattee is probably correct on the same basis. In my opinion, that case was wrong in so far as it applied to cases concerning periodic tenancies granted by joint tenants, and insofar as it suggested a licence granted by one tenant in common could always be terminated by another. But it was open to conclude that the licence granted in that case was so extensive as to be terminable by the other tenant in common. 44 In my opinion, the result in Hong v. Choo was also correct. The tenant in common was dead, and the administrators of his estate wished to have a representative occupying the property, and they authorised the family member who had lived in the house with other family members to stay at the house pending the sale. In my opinion, that was reasonably incidental to that tenant in common's right to possession and use and enjoyment of the property, and so was not terminable by other tenants in common. 45 Applying this approach to the entrance foyer of an apartment block, and subject to any bylaws of a relevant strata scheme, this would mean that, if one unit owner gives a licence to an acquaintance to enter the common property in order to visit the unit owner's unit, that licence could not be revoked by another unit owner. 46 On the other hand, one unit owner could not give a licence, irrevocable by another unit owner, to a person who sought entry in order to harass the other unit owner at the internal front door of the latter's unit. That licence would not be reasonable and incidental to the right of the grantor to possession and use and enjoyment of the common property. The grant of such a licence could not trump the right of the person who would be harassed to exclude the harasser, as an incident of that person's right to possession and use and enjoyment of the common property. 47 Turning to the facts of this case, entry to the common property was denied by the plaintiff and Ms. Docherty. 48 As regards Ms. Docherty, in my opinion she, being lawfully under restraint pursuant to s.5 of the Intoxicated Persons Act, did not have power to deny entry, if the police otherwise had a licence to enter. That is, in my opinion the authority given to police by s.5 to override an intoxicated person's freedom of movement implies an authority to override that person's wishes as to entry on to property. 49 As regards the plaintiff, the onus was on the police to show a right to enter, and the police did not show that the plaintiff was not a unit owner with a right to possession of the common property as a tenant in common with other unit owners. Permission to enter was purportedly granted by whoever unlocked the front door, but the question is whether that permission trumps the refusal of permission by the plaintiff. It was not shown that it was the occupiers of Ms. Docherty's unit who unlocked the front door, so the question has to be considered on the basis that whoever unlocked the front door had no connection with the events other than having information that people claiming to be police wanted to enter for an undisclosed reason. In my opinion, it is not shown that such licence as may thereby have been granted or purportedly granted was reasonable and incidental to the purported grantor's possession and use and enjoyment of the common property, in such a way as to be irrevocable by other tenants in common, particularly the tenant in common in place at the front door itself. 50 For those reasons, in my opinion the police did not have a licence to enter, and were trespassers when they did so unless the entry was otherwise justified. 51 Because Ms. Docherty did not have power to revoke a licence given to the police to enter, the police were not trespassing when they went to the front door. Indeed, I think the implied licence to the police to go to the front door for legitimate purposes, granted by all tenants in common, was not in any event revocable by one tenant in common. I am also inclined to think that, if the police had proved that they were given permission to enter by an owner of the unit occupied by Ms. Docherty for the known purpose of receiving Ms. Docherty from the police, that would have been a licence not revocable by other unit owners, because it would be a licence that was reasonable and incidental to the rights of a tenant in common.

DID THE POLICE OTHERWISE HAVE A RIGHT TO ENTER THE PREMISES? 52 I have already set out submissions on this point. The contention of the appellant was that police could enter for the purpose of effecting arrest pursuant to s.352(2)(a) of the Crimes Act. The offence in question could only be that under s.546C of the Crimes Act of resisting or hindering a member of the police force in the execution of his or her duty. I accept that this is within the expression "such offence" in s.352(2)(a): see Thompson v. Vincent [2005] NSWCA 219 at [107]-[114]. So what the police had to prove was that they had a suspicion, with reasonable cause, that the plaintiff had committed that offence and that they entered in order to arrest him for that offence. 53 Relevantly, this means that the police had to suspect, with reasonable cause, that one or more of them were executing their duty, and that what the plaintiff was doing was resistance or hindrance to this. My finding on the previous point means that, in attempting to enter, the police were attempting to commit a trespass; and that the plaintiff in resisting them was exercising his right as an owner of property to exclude trespassers. The onus lay on the police to prove that they suspected, with reasonable cause, that they were entitled to enter, and that the plaintiff was resisting or hindering their exercise of that entitlement rather than exercising his right to exclude trespassers. 54 We were not referred to any evidence from the police as to their beliefs or suspicions on these matters. These matters have to be assessed also in the light of the circumstances that the plaintiff had asked the police for their names and station, was not given them or shown warrant cards, but only shown insignia on their jackets, and was given no further answer to the question "How do I know you are the police?"; and was not told why the police wanted to enter. That also raises a question whether the requirement for proper announcement prior to entry, referred to in Lippl, was satisfied. 55 In any event, these matters are academic. There was no evidence that the actual purpose of entry was to arrest the plaintiff for resisting police. The primary judge found that the purpose was to find a responsible person for the purposes of s.5 of the Intoxicated Persons Act, and had nothing to do with the conduct of the plaintiff. In those circumstances, in my opinion, the primary judge was correct in holding that the entry could not be justified by s.352.

WAS THE ARREST LAWFUL? 56 It follows from the above discussion that the arrest was unlawful. It is therefore unnecessary to consider whether the police established that they had the necessary suspicion, with reasonable cause, mentioned under the previous issue; or to determine whether they adequately informed the plaintiff of the reason for his arrest. There was evidence from Constable Creamer that Constable O'Neil said that he was arrested for assaulting the police, but that was not supported by Constable O'Neil himself, and the primary judge did not indicate acceptance of this evidence. It is doubtful whether the arrest, combined with the previous statement to the effect that, if the plaintiff did not let the police in, he would be arrested for hindering police, was enough to satisfy the requirement that the plaintiff be informed of the reason for his arrest. However, again, it is not necessary to consider this further. 57 There is also a question as to whether excessive force was used. If it was, the police would be liable for assault to the extent of the excessiveness of the force; but in my opinion the better view is that this alone would not invalidate the arrest itself: see the article Excessive Force Used In Making An Arrest: Does It Make the Arrest Ipso Facto Unlawful? by Dan Meagher (2004) 28 CrimLJ 237; and cf. Wiltshire v. Barrett [1965] 2 AllER 271, Shaw v. Donaldson (1988) 78 ACTR 6.

DID THE POLICE ASSAULT THE PLAINTIFF? 58 The finding that the arrest was unlawful means that the arrest itself was an assault. However, there is still a question as to the extent of the assault, and in particular whether, as found by the primary judge, it was shown that Constable O'Neil used a baton to strike the plaintiff.

Submissions 59 Mr. Menzies submitted that the plaintiff gave implausible evidence, and that his account was in many respects rejected by the primary judge; but the judge did not explain why he accepted other parts of the plaintiff's evidence, in particular the evidence that he was struck by the baton. The finding that the plaintiff was struck by the baton was contrary to evidence from the plaintiff that Constable O'Neil punched him with both hands and attempted to apply handcuffs, and then produced the baton and struck him, in circumstances where the evidence of Duty Officer Bellemore, as well as Constable O'Neil, was that the baton was extended outside the front door, and the primary judge found that the baton was extended and brought into the foyer by Constable O'Neil. In those circumstances, the primary judge should have accepted Constable O'Neil's evidence that he threw down the baton after he entered the foyer. 60 Further, Mr. Menzies submitted, the primary judge was in error in finding Constable O'Neil's explanation of the production of the baton absurd, on the basis that Constable O'Neil could not reasonably have believed Mr. Chik to be under threat from the plaintiff; and was in error in applying the Briginshaw standard to the question of whether the plaintiff punched Constable Creamer, but not applying it to the question of whether Constable O'Neil used the baton against the plaintiff.

Decision 61 In my opinion, it was open to the primary judge to find that the plaintiff was subjected to excessive force, even if the arrest had otherwise been lawful; and in particular, to find that the plaintiff was struck by the baton. I accept that this finding required application of the Briginshaw standard, but having regard to the injuries caused to the plaintiff, in particular a bruise consistent with being struck by a baton, and to the circumstance that one would not expect the two constables to have had great difficulty in subduing the plaintiff, and having regard to the primary judge's reasons for not fully accepting their evidence, the findings he made were open. 62 In my opinion, it was appropriate for the primary judge to apply the Briginshaw standard to the question whether the plaintiff assaulted Constable Creamer: insofar as the police sought to justify force which they were proved to have used against the plaintiff on the basis that they were attacked by the plaintiff, the latter allegation was one on which the police bore an onus of proof to the Briginshaw standard. 63 As regards the reasons given by the primary judge, it would have been preferable if the judge had explicitly stated that he was applying the Briginshaw standard to the question of what the police actually did to the plaintiff, and in particular as to whether Constable O'Neil struck him with a baton; and it would have been preferable if the reasons had carefully analysed the evidence as to what happened to the baton. However, I would not infer that the primary judge did not apply the Briginshaw standard; and I do not think the reasons given were so inadequate as to justify appellate intervention.

AGGRAVATED DAMAGES 64 In essence, the submission for the appellant was to the effect that the primary judge did not have regard to the exigencies of the moment, and also that he erred in fixing on a separate figure for aggravated damages which were then added to compensatory damages. 65 In my opinion, the circumstances were such that it was open to the judge to find that aggravated damages were appropriate; and even though aggravated damages are compensatory damages, and even though in my opinion they should be no more than is appropriate to bring compensatory damages towards the high end of the available range of compensatory damages (see State of New South Wales v. Riley [2003] NSWCA 208 at [126]-[133]), in substance in my opinion that is what the primary judge did in this case.

COSTS OF CRIMINAL PROCEEDINGS 66 Mr. Menzies submitted that the costs incurred by the plaintiff in successfully defending the criminal proceedings brought against him should not have been included in the damages, because costs cannot be recovered where they have been previously declined by a court having power to award costs (Hawkins v. Permarig Pty. Ltd. [2004] QCA 76, Lotor v. Deveraux (1832) 3 B&Ad 343); and because damages can be recovered for wrongful arrest only up to the time of remand or bail (Diamond v. Minter [1941] 1 KB 655). 67 In my opinion, there is no general rule to the effect that a plaintiff cannot recover in civil proceedings the amount of costs incurred in defending criminal proceedings. The issue before a court that decides criminal proceedings is only whether the case against the accused is proved beyond reasonable doubt; and such a court is rarely in a position, in deciding whether to award costs, to determine all the facts relevant to the merits or otherwise of the bringing of the proceedings. Costs are rarely awarded in criminal cases. In civil cases where malicious prosecution is proved, damages routinely include the costs of defending the proceedings. 68 I accept that, where a person is wrongfully arrested on a charge that arises separately from the circumstances of the arrest, there are generally no damages awarded in relation to the progress of the charges after the time of remand or bail, unless malicious prosecution is proved. However, I do not accept that this applies where the charges themselves arise from the circumstances of the wrongful arrest and associated assaults by the police. But for the police assault and wrongful arrest of the plaintiff, there would not have been any charges against him. In my opinion, the charges against the plaintiff were directly caused by the police assaults and wrongful arrest, and that accordingly the costs incurred in defending them can be included in the damages.

CONCLUSION 69 For those reasons, in my opinion the appeal should be dismissed with costs. 70 HISLOP J: I agree with Hodgson JA. **********

26/10/2005 - line 3 - s.352(2)(b) amended to read s.352(2)(a)line 6 - s.352(2)(b) amended to read s.352(2)(a) - Paragraph(s) 52

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Intoxicated Persons Act 1979(NSW)

Strata Schemes (Freehold Development) Act 1973(NSW)

(2004) 28 CrimLJ 237

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Judgment (42 paragraphs)

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Cases Cited (9)