State of New South Wales v Randall

t) DRJ Toomey SC / DJ Woodbury (Respondent)

Solicitors: McCabes Lawyers (Applicant) Foott, Law & Co (Respondent) File Number(s): 2016/147428 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Civil Date of Decision: 06 May 2016 Before: McLoughlin DCJ File Number(s): 2014/246907

[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.]

Judgment

1. BASTEN JA: This case involved an application for leave to appeal and a proposed appeal heard concurrently. Leave was required because the amount of the damages awarded (and therefore the highest possible amount in dispute) was $34,500. [1] The trial proceeded over four days in September 2015, with written submissions being filed over the subsequent five months; there appears to have been a further day of oral submissions on 22 February 2016, although no transcript or summary of the submissions is before this Court.
2. The likely disproportion between the costs involved and the outcome for the plaintiff provides a basis upon which it might have been appropriate to refuse leave without listing the matter for a concurrent hearing. However, that did not occur. There is therefore a live issue as to what steps this Court should take in the event that it is satisfied that the judgment below was affected by error.
3. The purpose of a civil trial in respect of a claim for tortiously inflicted injury is to resolve a dispute between the party injured and the party responsible for causing the injury, in accordance with law. The claimant must establish a cause of action known to law, in a manner which is not answered by the defence. To the extent that a judgment given following a trial departs from established legal principle, and an appeal (or an application for leave to appeal) is brought to this Court, the function of this Court includes maintaining the regularity of the administration of justice.
4. If, upon the hearing of an appeal (or application for leave) the court is satisfied that a significant error has occurred, it will be an unusual case in which the court will not grant leave to appeal. That is because, in a case such as the present, to require a defendant to pay damages otherwise than pursuant to an order made in accordance with law is apt to bring the administration of justice into disrepute. (The situation is different where there has been no full hearing and the application for leave has been dealt with separately from the hearing of the prospective appeal.)
5. Where error is established, it is necessary for the court to determine whether it can resolve the dispute itself, or whether the matter must be remitted for a further trial. The court is not permitted to order a new trial unless it appears that "some substantial wrong or miscarriage" has been occasioned. [2] Depending on the nature of the case, it is open to the court to remit part only of the controversy for a new trial. [3]

Nature of cause of action

1. The events giving rise to the claim occurred on the evening of 21 December 2013, shortly before 9pm, at the Grafton Racecourse. Senior Constable Bird and Constable Manusu approached a small group of persons suspected of possessing drugs. The plaintiff, who was not a member of the group (although he knew them) sought to intervene. With the exception of an initial push by Senior Constable Bird to the chest of the plaintiff, the conduct the subject of the claims occurred in the course of arresting the plaintiff and conveying him to Grafton police station. There were in effect three causes of action, namely (i) assault/trespass to the person; (ii) wrongful arrest, and (iii) false imprisonment. The false imprisonment was consequent upon the arrest and the alleged assaults, other than the push to the plaintiff's chest, involved conduct in carrying out the arrest. There was no case pleaded in terms of excessive force; in substance the case turned entirely upon the legality of the arrest.
2. It is then necessary to turn to the scope of the powers relied upon by the police officers in carrying out the arrest. Those powers were to be found in ss 99, 201, 230 and 231 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ("Law Enforcement Act"), as in force in December 2013. [4] The last two sections may be disposed of briefly; they provide that a police officer may use such force as is reasonably necessary to make an arrest, or to exercise any other function under the Act.
3. The validity of an arrest without a warrant turns on the satisfaction of three criteria. First, the officer must suspect on reasonable grounds that the person is committing or has committed an offence. [5] Secondly, the officer must be satisfied that it was reasonably necessary to arrest the person for any one of a number of reasons, including (i) to stop the person committing or repeating the offence or committing another offence, (iv) to ensure that the person appears before a court in relation to the offence, and (viii) to protect the safety or welfare of any person (including the person arrested). [6] Thirdly, s 201 (as then in force) required that a person arrested be informed of the reason for the arrest. It was assumed that satisfaction of each criterion was a condition of the validity of the arrest.
4. The relevant parts of s 201 of the Law Enforcement Act then stated: 201 Supplying police officer's details and giving warnings (1) A police officer must provide the person subject to the exercise of a power referred to in subsection (3) with the following: (a) evidence that the police officer is a police officer (unless the police officer is in uniform), (b) the name of the police officer and his or her place of duty, (c) the reason for the exercise of the power. (d) (Repealed) (2) A police officer must comply with subsection (1) in relation to a power referred to in subsection (3) …: (a) if it is practicable to do so, before or at the time of exercising the power, or (b) if it is not practicable to do so before or at that time, as soon as is reasonably practicable after exercising the power. … (3) This section applies to the exercise of the following powers (whether or not conferred by or under this Act): (a) a power to search or arrest a person, …

Validity of arrest - reasoning of trial judge

1. Because the present matter involves both an application for leave to appeal and the appeal itself, heard concurrently, it is necessary to outline the reasoning of the trial judge in concluding that the arrest was unlawful.

(a) justification for arrest

1. First, the judge outlined the claims made in the statement of claim filed on 18 August 2014, together with some brief explanation of the underlying facts. [16] The events occurred on the evening of 21 December 2013, shortly before 9pm, in an underpass between the grandstand and the betting ring at the Grafton Racecourse. Senior Constable Bird and Constable Manusu approached a small group they suspected of being in possession of drugs. At the request of Senior Constable Bird, the group moved away from other people, with the officers. At that stage the plaintiff, who was walking past, approached the group and called out to police. There followed an exchange of words, after which the arrest took place.
2. The matters which led to the arrest were in dispute; the conduct involved in the arrest and detention of the plaintiff were not. As the trial judge noted, the State admitted, and the evidence supported findings, that "both the police officers touched, grappled with the plaintiff, handcuffed him with Senior Constable Bird admitting to performing some kind of leg [sweep] manoeuvre to bring the plaintiff to the ground and kneeing the plaintiff in order to subdue him." [17] (The judge later rejected a claim that the plaintiff had been kneed in the chest. [18] ) They then led the plaintiff, by a handcuff, to the police vehicle and took him to the police station where he was charged. He was released at about 1.10am the following morning, although he appears to have been held in custody because of his state of intoxication for some two hours of that time. [19]
3. Before outlining the defence case as pleaded, the judge noted: [20] "Of some moment is that the plaintiff was initially charged by the police officers with (1) resisting one of the police officer[s] in execution of duty, pursuant to s 546C of the Crimes Act; (2) resisting the police officer in execution of duty, pursuant to s 546C of the Crimes Act; (3) refusal/fail to comply with police direction; (4) assault police officer in the execution of duty; (5) resist police officer in the execution of his duty pursuant to s 58 of the Crimes Act; and (6) resist police officer in the execution of his duty pursuant to s 58 of the Crimes Act." (Section 58 of the Crimes Act 1900 (NSW) includes offences of assaulting, resisting and wilfully obstructing an officer in the execution of his or her duty, and assaulting any person with intent to resist a lawful arrest.) The judge then noted that the plaintiff ultimately entered a plea of guilty to the first charge at Grafton Local Court, and was convicted and sentenced; the other charges were withdrawn and dismissed. It will be necessary to return to the significance of the conviction.

(b) informing as to reason for arrest

1. The mandatory terms of s 201 raise two questions as to its scope and operation. The first is whether it applies universally, thus removing the qualification that no reason need be given if it is obvious because of the circumstances of the arrest, as explained by Viscount Simon in Christie. [30] The second question is whether non-compliance necessarily leads to unlawfulness, and if not, in what situations it will do so.
2. With respect to the first question, there may be a degree of absurdity in requiring a statement of the obvious, especially if non-compliance renders the conduct unlawful. On the other hand, it is clear that s 201 expands the operation of the common law principle in a number of respects. For example, it extends the requirement beyond the exercise of the power of arrest without a warrant, to numerous law enforcement functions identified in s 201(3). Further, it requires, expressly, that the officer give his or her name and place of duty.
3. With respect to the second question, the State relied upon the approach adopted by the High Court in Minister for Immigration and Citizenship v SZIZO. [31] There the Court departed from aspects of the reasoning in an earlier decision [32] in which the majority had taken an uncompromising position that a statutory procedural requirement expressed in mandatory language inexorably led to the conclusion that want of compliance would render the consequent decision invalid. [33] At least in relation to a requirement, albeit expressed in mandatory terms, which went only to the manner of giving certain notices, where non-compliance had no practical consequence in the nature of procedural unfairness, "the use of imperative language" did not indicate "inviolable restraints conditioning the Tribunal's jurisdiction to conduct and decide a review." [34] The State contended for a similar approach to s 201.
4. In circumstances where a statute prescribes specific matters in mandatory terms, apparently conditioning the exercise of an administrative or executive power, but does not identify the consequence of non-compliance, the effect of non-compliance must be a question of statutory construction to be determined in accordance with principles outlined in Project Blue Sky Inc v Australian Broadcasting Authority. [35] In short, it is necessary to identify a legislative purpose in respect of invalidation, which is to be "ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition."

Challenge to finding of unlawful arrest

1. Although the judge noted that senior counsel for the plaintiff suggested that the case turned on whether or not the plaintiff had thrown a punch at Constable Bird before he was arrested, it is clear that the trial judge did not consider that that was determinative of the claim. Nor was there any suggestion that the defences raised by the State had been abandoned. That is demonstrated by the consideration given to the terms of s 99(1) and s 201(1) and to the provisions of the Civil Liability Act relied upon in the amended defence. However, in applying those provisions, the trial judge erred in two fundamental respects.

(a) whether officer held a reasonable suspicion

1. Despite the terms of s 99(1)(a), which reflects principles established and applied over many decades under many similar statutes, at no stage did the judge determine either that the arresting officer had no relevant suspicion or that such suspicion as he harboured was not supported by reasonable grounds. Of particular significance in this respect was the fact that one of the charges, to which the plaintiff entered a plea of guilty and of which he was subsequently convicted, was the charge of hinder police. In that regard, the judge found that the plaintiff "did not deny he had been told that [he had] 'stuck his nose into something that had nothing to do with him' and that was hinder." [38]
2. The passage to which the judge may have been referring was in the cross-examination of the plaintiff and was in the following terms: [39] "Q. … Is it because Constable Bird had said to you you're under arrest that you were making the inquiry as to why you were under arrest? A. No. Q. At that stage you had been told to stop resisting? A. Yes, I was being told to stop resisting. Q. You knew by that stage that what you had done had interfered with the police, didn't you? A. Yes. To a degree I guess. Q. To be fair to you, that was the charge to which you pleaded guilty, correct? A. The hinder. … HIS HONOUR Q. Why was it that - you have told us that you accept that you were interrupting the police? A. Well, given the situation, like, yeah, I - yes and no, like I was having a joke but it was in the back of my head that that could be the reason, if that makes sense. Q. What could be the reason, that your friend may have drugs on him? A. That - with the joke. Q. And there might be a drug search? A. What was that? Q. That your friend may have drugs on him and it may be a drug search? A. Yeah."
3. If, as the trial judge accepted, the plaintiff had been "at best belligerent in relation to their own investigation" [40] and had a fair idea that that was why he was being arrested, it is tolerably clear that Senior Constable Bird had a reasonable suspicion as to the commission of that offence. As the judge said, "[t]his case was run on whether or not it was the appropriate method of arrest where the only charge to be ultimately relied upon was the resist, hinder police in execution of their duty." [41]

(b) whether arrest reasonably necessary

1. This last passage in the reasons, read in the context of the passage set out at [33] above, makes it clear that the judge accepted that the arresting officer did suspect on reasonable grounds that the plaintiff was hindering his investigation, thereby satisfying s 99(1)(a). With respect to the second requirement, the judge was not satisfied that the course of arresting the plaintiff was "reasonably necessary" in relation to that offending. However, the correct question with respect to the second requirement was not what the judge thought, but what the officer thought was reasonably necessary in the circumstances; s 99(1)(b) refers to the officer being "satisfied". The precondition to the exercise of the power is the officer's state of mind.
2. To resolve that issue the judge was required to address the cross-examination of Senior Constable Bird in relation to the alleged assault. The thrust of the cross-examination was that, in earlier Local Court proceedings on 29 April 2014 with respect to the plaintiff, the officer had accepted that it was the attempted assault which justified the arrest. He had agreed on that occasion, that "the other matters" did not require an arrest. [42] However, in his cross-examination in this proceeding he did not agree that the assault was the only basis warranting arrest, but rather the plaintiff continuing to commit offences justified arrest. [43] He was then asked: [44] "Q. You are now telling the Court that there was an ongoing offence of hinder? A. That's correct. And had he gone away when I requested him to do so and not continue to commit offences, I would not have had cause to arrest him." Unless that evidence were to be rejected, it constituted evidence of the officer's state of mind at the time of the arrest. There was no finding that that evidence was rejected, nor, understandably, was such a finding sought by the respondent on the appeal.

(c) relief - validity of arrest

1. In effect, the judge made two errors in this regard: first, in finding that the assault did not take place, he failed to address the question as to whether the arresting officer suspected that an assault had taken place and then determine whether such a suspicion (of which the officer gave evidence) was or was not based on reasonable grounds. Having accepted that the officer in fact had a suspicion based on reasonable grounds (as to the offence of hindering), the second error was to approach the further requirement on the basis of his own view of what occurred on the evening in question, rather than by reference to the state of satisfaction of the officer. As noted above, that state of satisfaction could only properly be challenged on the basis that it was arbitrary, capricious or manifestly unreasonable. That test was not applied, no doubt because there was no finding as to the underlying state of mind.
2. For these reasons, the finding as to the unlawfulness of the arrest cannot stand. In my view, the errors of principle in the approach of the trial judge raise matters of considerable importance in relation to the operation of the Law Enforcement Act, and would warrant a grant of leave to appeal, unless it be thought that the amount in issue precludes such a course. I accept that the amount in issue is relatively small, given the statutory requirement for leave in relation to any matter involving an amount less than $100,000, but it is commonplace that issues of principle can arise in cases which involve little or no monetary amount. I would give leave to appeal and set aside the judgment on this basis. I would not, however, interfere with the costs order made below.

Assessment of damages

1. Whether or not the matter is to go back for a retrial, it is nevertheless appropriate to deal with the grounds relating to the assessment of damages. If the matter is remitted, a second court should not feel constrained by the award determined by the trial judge; if the finding on liability is not set aside, the award of damages should be and this Court should substitute its own award.
2. The judge awarded the sum of $31,000 by way of damages, to which was added the sum of $3,500 by way of interest. The reasons were, as the plaintiff accepted on the appeal, at best exiguous. The only element which was the subject of reasoning was determined erroneously. It is convenient to deal with that element first.
3. The plaintiff sought to recover by way of damages for unlawful arrest an amount of $10,000, being the costs of representation by solicitors and counsel with respect to his criminal prosecution. The costs were entirely separate from the costs of the civil proceedings. The trial judge accepted that they were recoverable by reference to the authority of this Court in State of New South Wales v Koumdjiev [45] and allowed an amount of $6,000 on account of the legal costs of the criminal proceedings. Why he chose that amount is not revealed.
4. The passage in Koumdjiev said to support a right of recovery in these circumstances was to be found in the judgment of Hodgson JA and was in the following terms: [46] "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."
5. The reasoning in this passage is not entirely transparent. It appears to commence with a distinction between a charge that arises separately from the circumstances of the wrongful arrest and a charge which arises from the circumstances of the wrongful arrest. It may be that the distinction is being drawn between the suspected offence which gives rise to the arrest (such as possession of drugs) and charges which are intimately connected with the process (such as resisting arrest). In the present case, the unrelated charges, namely the charges which led to the arrest, were both hindering police and assault. Applying that distinction would therefore require a division of the costs between the costs incurred with respect to those charges, to one of which the plaintiff pleaded guilty and the other of which was dismissed, from the costs relating to resisting arrest. That is not an exercise which is possible on the evidence and was not an exercise undertaken by the trial judge.

Relief

1. The principles enunciated in this Court as to the circumstances in which leave to appeal may be granted or refused are generally to be found in applications for leave, heard separately from the proposed appeal and subject to the procedural constraints which apply to such applications. Even the starting point for such an analysis in recent years, Carolan v AMF Bowling Pty Ltd t/a Bennetts Green Bowl, [54] was such a case, although it was listed before three judges. More recently, contending applications for leave to appeal were listed before a three judge bench in Jaycar Pty Ltd v Lombardo. [55] As Campbell JA stated (with the agreement of Young and Meagher JJA), summarising the principle stated in Carolan: [56] "… Sheller JA said that an applicant for leave must demonstrate something more than that the trial judge was arguably wrong in the conclusion arrived at. Cole J relied on a principle that where small claims are involved, it is important that there be early finality in determination of litigation, otherwise the costs that will be involved are likely to swamp the money sum involved in the dispute. Kirby P recognised that ordinarily it was appropriate to grant leave to appeal only concerning matters that involve issues of principle, questions of general public importance or an injustice which is reasonably clear, in the sense of going beyond what [was] merely arguable."
2. Those principles are regularly applied in cases where the application for leave to appeal has been heard separately and before the proposed appeal. [57] In such cases the concern that costs will swamp the amount in dispute (where leave is required because the amount in dispute does not exceed the statutory floor) is often a significant factor. However, in the present case, those costs have already been incurred and that consideration carries little weight.
3. In other respects, the general principles are satisfied in this case. For the reasons set out above, the case does involve issues of principle and questions of general public importance, and it is (and was on a first consideration of the judgment below) reasonably clear that the trial judge had proceeded on an erroneous basis, in more than one respect.
4. The only basis for not granting leave at this stage and setting aside the finding of liability is that this Court may not be satisfied that the expense of a retrial is warranted, particularly if the amount of damages is likely to be in the order of the award indicated above. On the other hand, it would do no service to the administration of justice to leave a judgment on foot which wrongly awards damages in an amount approximately three times the amount proposed above, and in circumstances where the findings on liability cannot be supported.

Background

1. Apparently, there had been a "Santa pub crawl" in Grafton in the afternoon of 21 December 2013. Perhaps not surprisingly, a large number of people appear to have participated. They finished up at Grafton Racecourse, where the merriment continued.
2. The police officers concerned, Senior Constable Bird and Constable Manusu, were on duty at Grafton Racecourse. They received information which led them to suspect that a group of people in a particular place at the Racecourse were either dealing in or in possession of prohibited drugs. They went to speak to those people.
3. It is common ground that Mr Randall intervened while the police officers were speaking to those persons. Whilst the evidence as to the precise language used by Mr Randall varies, it is clear that he invited those to whom he spoke to give him their "gear" or their "shit": whatever it was that was in their possession that had attracted the suspicions of the police. Mr Randall said that this was done in jest. Senior Constable Bird and Constable Manusu did not find it funny. They took the view that it was hindering them, and asked Mr Randall to desist.
4. After an exchange of vulgar language, the altercation to which I have referred commenced. The evidence of the police officers was that they attempted to move Mr Randall on, whereupon he clenched his fist and threw a punch, which failed to connect, at Senior Constable Bird. They said that Senior Constable Bird pushed Mr Randall back, and that Mr Randall then behaved in a way that suggested that he was preparing to launch another punch. The police officers thereupon tackled him, forced him to the ground, and after a struggle applied handcuffs to him. He was then escorted to a police "truck", placed in it and taken to Grafton Police Station.

Relevant provisions of the Law Enforcement (Power and Responsibilities) Act 2002 (NSW)

1. The State's defence raised issues under s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA). The facts proved before the primary judge also raised issues under s 201 of LEPRA. I set out those sections: 99 Power of police officers to arrest without warrant (1) A police officer may, without a warrant, arrest a person if: (a) the police officer suspects on reasonable grounds that the person is committing or has committed an offence, and (b) the police officer is satisfied that the arrest is reasonably necessary for any one or more of the following reasons: (i) to stop the person committing or repeating the offence or committing another offence, (ii) to stop the person fleeing from a police officer or from the location of the offence, (iii) to enable inquiries to be made to establish the person's identity if it cannot be readily established or if the police officer suspects on reasonable grounds that identity information provided is false, (iv) to ensure that the person appears before a court in relation to the offence, (v) to obtain property in the possession of the person that is connected with the offence, (vi) to preserve evidence of the offence or prevent the fabrication of evidence, (vii) to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence, (viii) to protect the safety or welfare of any person (including the person arrested), (ix) because of the nature and seriousness of the offence. 201 Supplying police officer's details and giving warnings (1) A police officer must provide the person subject to the exercise of a power referred to in subsection (3) with the following: (a) evidence that the police officer is a police officer (unless the police officer is in uniform), (b) the name of the police officer and his or her place of duty, (c) the reason for the exercise of the power. (2) A police officer must comply with subsection (1) in relation to a power referred to in subsection (3) (other than subsection (3) (g), (i) or (j)): (a) if it is practicable to do so, before or at that time of exercising the power, or (b) if it is not practicable to do so before or at that time, as soon as is reasonably practicable after exercising the power. (2A) A police officer must comply with subsection (1) in relation to a power referred to in subsection (3) (g), (i) or (j) before exercising the power, except as otherwise provided by subsection (2B). (2B) If a police officer is exercising a power to give a direction to a person (as referred to in subsection (3) (i) by giving the direction to a group of 2 or more persons, the police officer must comply with subsection (1) in relation to the power: (a) if it is practicable to do so, before or at the time of exercising the power, or (b) if it is not practicable to do so, as soon as is reasonably practicable after exercising the power. (2C) If a police officer exercises a power that involves the making of a request or direction that a person is required to comply with by law, the police officer must, as soon as is reasonably practicable after making the request or direction, provide the person the subject of the request or direction with: (a) a warning that the person is required by law to comply with the request or direction (unless the person has already complied or is in the process of complying), and (b) if the person does not comply with the request or direction after being given that warning, and the police officer believes that the failure to comply by the person is an offence, a warning that the failure to comply with the request or direction is an offence. (2D) In addition, if a police officer exercises a power that involves the making of a direction under section 198 on the grounds that a person is intoxicated and disorderly in a public place, the police officer must provide the person the subject of the direction with a warning that it is an offence to be intoxicated and disorderly in that or any other public place at any time within 6 hours after the direction is given. (3) This section applies to the exercise of the following powers (whether or not conferred by or under this Act): (a) a power to search or arrest a person, (b) a power to search a vehicle, vessel or aircraft, (c) a power to enter premises (not being a public place), (d) a power to search premises (not being a public place), (e) a power to seize any property, (f) a power to stop or detain a person (other than a power to detain a person under Part 16) or a vehicle, vessel or aircraft, (g) a power to request a person to disclose his or her identity or the identity of another person (including a power to require the removal of a face covering for identification purposes), (h) a power to establish ha crime scene at premises (not being a public place), (i) a power to give a direction to a person, (j) a power under section 21A to request a person to open his or her mouth or shake or move his or her hair, (k) a power under section 21A to request a person to submit to a frisk search or to produce a dangerous implement or metallic object. (3AA) Despite subsection (3), this section does not apply to the exercise of a power to enter premises or to search premises or a vehicle, vessel or aircraft that is conferred by a covert search warrant. (3A) If a police officer is exercising more than one power to which this section applies on a single occasion, and in relation to the same person, the police officer is required to comply with subsection (1)(a) and (b) in relation to that person only once on that occasion. (4) If 2 or more police officers are exercising a power to which this section applies, only one officer present is required to comply with this section.

The proposed grounds of appeal

1. There were six proposed grounds of appeal.
2. Ground 1 contends that the primary judge erred by misconstruing s99(1)(a). It contends that his Honour did so, in effect by holding that, because (as his Honour found) the assault that Mr Randall was alleged to have committed on Senior Constable Bird had not occurred, it followed, in terms of s 99(1)(a), that the police officers had no reasonable grounds to suspect that he was committing or had committed the offence of assault for.
3. Ground 2 contends that the primary judge had asked the wrong question in respect of s 99(1)(b). The State said that his Honour had asked himself whether, on the evidence, it had been shown that the arrest was reasonably necessary for one or other of the particularised purposes. The correct question, the State contended, was whether the arresting officer was satisfied that an arrest was reasonably necessary. By extension, the State said that the primary judge erred by failing to consider, or failing to provide reasons for rejecting, the arresting officer's evidence on that question.
4. Ground 3 contends that the primary judge erred "by failing to explain, or otherwise give reasons as to, why [his Honour] rejected the police officers' evidence" of Mr Randall's assault on Senior Constable Bird.
5. Ground 4 contends that the primary judge erred: 1. by holding (it is said) contrary to the evidence and without adequate reasons, that it had been reasonably practicable for the police officers to inform Mr Randall, at the time he was arrested, why it was that he was being arrested; 2. by failing to consider the proposition that in any event the arrest had been prospectively validated from the time, when Mr Randall was placed in the police truck, that he was so informed; and 3. in any event, in failing to recognise that "any non-compliance with s 201… was technical and did not invalidate the exercise of power".
6. Ground 5 attacks what the State said were the inadequate reasons that the primary judge gave for his award of damages, and his Honour's failure to consider the impact of what was said to be Mr Randall's "provocative conduct" on aggravated and exemplary damages (both of which seem to have been swept up in the figure of $31,000.00).
7. Ground 6 does no more than restate the previous grounds and assert that, but for those errors, the primary judge should have found for the State.

Ground 1: s 99(1)(a)

1. I accept that the question posed by s 99(1)(a) is whether the particular police officer, not the court, "suspects on reasonably grounds" that an offence is being or has been committed. I accept, further, that the approach that the primary judge took was, at the level of principle, incorrect. In effect, his Honour, having found that the assault did not occur, concluded that Senior Constable Bird and Constable Manusu could not have suspected on reasonable grounds that it had.
2. However, I would not grant leave for this reason. The simple fact is that the fundamental factual dispute at trial, as to the circumstances of and reasons for the arrest, was whether (as the police said) Mr Randall had assaulted Senior Constable Bird or whether (as Mr Randall said) he had not. The parties ran the case on the basis that a decision on that fundamental issue would resolve, one way or another, the s 99(1)(a) issue.
3. When the trial commenced, Mr Steirn of Senior Counsel, who then appeared with Mr Woodbury for Mr Randall, opened on the basis that Mr Randall had not assaulted the police, and that the police had assaulted him when they forced him to the ground and arrested him. In those circumstances, he said [62] : … the assault upon the plaintiff was unlawful and the defendant barings [sic] the onus of proving that their actions were lawful at the material time.
4. Mr Steirn thereafter referred to s 201 of LEPRA. He did not, at any stage during his opening, refer to s 99.
5. Mr Spartalis of Counsel, who appeared for the State at the trial, put the matter this way when opening the State's case [63] : Now, the plaintiff pleads guilty to a hinder. Mr Steirn says to you the assault of the plaintiff was unlawful. That is going to cause your Honour to have to consider if and when an assault occurred because it will call upon your Honour to determine whether the force that was used by the plaintiff in the initial arrest was lawful. Then if your Honour finds that, there's this minute or so that your Honour has to consider also. What happens in the minute between the time that he is taken to the ground because of his conduct and when he is finally subdued. They're two different areas.
6. That statement of the ambit of the factual disputes said nothing as to s 99 of LEPRA. Nor did Mr Spartalis' opening otherwise refer to it.

Ground 2: s 99(1)(b)

1. It is not correct to say that the primary judge did not deal with s 99(1)(b). He did. The context of his Honour's doing so was that he had concluded that Mr Randall had not assaulted Senior Constable Bird. It followed from that conclusion, from his Honour's rejection of this aspect of the evidence of the police officers, and from the way the trial had been conducted, that in his Honour's view the arrest could not have been seen as reasonably necessary to prevent Mr Randall from committing further assaults.
2. That analysis reflects the way in which the parties put the case. I have referred already to para 254 of Mr Spartalis' closing submissions. He did not identify the "offence(s)", other than that, from the immediately preceding paragraphs, it is clear that attention was most closely focused on the alleged offence of assault. The submissions did not descend to explaining why, on the evidence, it might have been possible for Senior Constable Bird and Constable Manusu to be satisfied that the arrest was reasonably necessary for any of the particularised purposes. In fact, the primary judge gave this issue more attention in his reasons for judgment than Mr Spartalis had given it in his written submissions.
3. The primary judge dealt with s 99(1)(b) in two distinct paragraphs of his reasons, separated by a paragraph dealing (in a way which is a little difficult to follow) with the significance of the amount of the fine that the Local Court had imposed for the one offence that was established (by Mr Randall's plea of guilty). His Honour said: I am of the view that under s 99 [sic] of LEPRA there was no proper basis for the police officers to arrest. The only offence that the plaintiff had committed was that to which he has pleaded guilty. He was making no attempt to flee from the police officers. There were no inquiries made as to establish the plaintiff's identity. There were no doubts at that time that the plaintiff would not appear before a court. There was no property in the possession of the person that needed to be obtained by the police officers. There was no need to preserve evidence, no suggestion of the harassment or interference with any person able to give evidence and no suggestion there was a need to protect the safety and welfare of any person including the person arrested or because of the nature of the seriousness of the offence. … I am of the view, that to use a little of the vernacular, that the plaintiff was being a smart alec to some degree at that time and that is what, with that background, brought about a police over reaction to the circumstances as I perceive it, and that the police have no basis on the question of assault to arrest the plaintiff and should not have arrested the plaintiff in relation to the matter ultimately proceeded with, being the resist, hinder police officer in the execution of duty as that matter could have been dealt with by any of the other methods available for police to have people attend Court, such as the CANS and the Court attendance, there being Court attendances notices of various forms.

Ground 3: reasons for rejecting the police officers' evidence as to an assault

1. The State's submissions proceeded on the basis that it was implicit in his Honour's conclusion, that Mr Randall had not assaulted Senior Constable Bird, that the police officers must have "concocted" their evidence. Mr Windsor submitted that in those circumstances it was incumbent on his Honour to explain why this was so. Mr Windsor submitted, further, that it was not open to his Honour to reach that implicit conclusion when the suggestion of concoction had not been put directly to Senior Constable Bird or Constable Manusu.
2. That submission does not reflect the way that the trial was conducted. It was made abundantly clear, time and time again, to each of Senior Constable Bird and Constable Manusu that their evidence was under challenge. It was put, time and time again, that aspects of their evidence were false. It was put, time and time again, that they were not telling the truth. I simply do not understand why it was necessary, for reasons of fairness or otherwise, to put, as well, that their evidence had been concocted.
3. Moving away from the question of concoction, the thrust of ground 3 is that the primary judge did not explain his findings. I do not agree. The explanation is not found in one place. But when one considers the whole of his Honour's reasons, there are several passages which make it perfectly clear, for reasons that his Honour gave, that he had grave doubts as to the credibility of key parts of the evidence of the police officers. I might add that there were other aspects of the evidence, to which his Honour did not refer, that could have supported the same conclusion.
4. No doubt, it would have been better if his Honour had collected together his views on credibility under one neat heading, and dealt with the credibility of each witness individually. But the necessity of the reader's having to gather together several passages in the reasons to understand (as the reasons overall make clear) why his Honour reached the conclusion that he did cannot be a basis for ordering a new trial.

Ground 4: s 201

1. The first paragraph of ground 4 contends that the primary judge did not give proper reasons for his conclusion, that it was reasonably practicable for the police officers to inform Mr Randall of the reason for his arrest at the time of the arrest. That ground involves a reagitation of hotly contested evidence. There is nothing in the submissions to bring the case within coo-ee of the principles explained in Fox v Percy (2003) 214 CLR 118.
2. The second paragraph of ground 4 relates to the "prospective validation" argument. I agree that the primary judge did not consider this question, although it was fairly and squarely raised in the State's submissions. I agree, further, that had his Honour taken it into account, it must have had a significant impact on his assessment of damages. However, for the reasons I shall give after dealing with grounds 5 and 6, I would not send the case back simply for a reassessment of damages.
3. The third paragraph relates to the "technical" character of any non-compliance with s 201. It is not necessary to decide whether the underlying proposition is correct. No such submission was put to the primary judge, in either the opening or the closing submissions for the State.

Ground 5: reasons for assessment of damages

1. His Honour's reasons are, I regret to say, deficient. They do not explain how he selected the figure of $25,000, which it appears was a component of the award of damages "including all damages, including aggravated and exemplary", apart from the separate allowance of a sum for legal costs. His Honour's reasons give no indication of why that figure was appropriate. More significantly, had his Honour reminded himself that the period of unlawful detention was brief, it is highly likely that he would have come to some different, and much lesser, figure.
2. Further, in my view, the award of damages representing expenditure on legal costs is unjustifiable. It appears that Mr Randall's total costs of defending the case in the Local Court were $10,000. The primary judge allowed some $6,000. The hearing seems to have lasted a day. As I have noted, five of the charges were withdrawn and one only proceeded: the one to which Mr Randall pleaded guilty.
3. There could be no justification for allowing the costs of a plea of guilty. Perhaps, that is what his Honour intended to recognise by allowing $6,000 of the total of $10,000 that was charged. However, as is apparent from the judgment of Hodgson JA in State of New South Wales v Koumdjiev [72] , it will only be where "the charges against the plaintiff were directly caused by the Police assaults and wrongful arrest [that]… the costs incurring in defending them can be included in the damages" [73] .
4. In the present case, the offence of hindering Police, to which ultimately Mr Randall pleaded guilty, was committed before the arrest, and was quite independent of any wrongdoing in the circumstances of the arrest.

Ground 6

1. There is no need to give separate consideration to this ground.

Reasons why leave should not be granted

1. I accept, as will be clear from what I have said, that there are errors in the reasoning of the primary judge, including errors of principle as to the application of ss 99 and 201 of LEPRA, and errors in relation to the assessment of damages. However, correction of those errors would require this court to set aside the judgment in favour of Mr Randall, and send the matter back for a new trial. That is what the State seeks.
2. If there were to be a new trial, it would be unlikely that the damages recovered would be as high as those awarded by the primary judge (I say this because a proper assessment of damages must take into account the matters to which I have referred when dealing with ground 5). It would be an extraordinary misuse of public and private resources for there to be a new trial, presumably of the duration of that which took place before the primary judge, for such a modest outcome. In my view, it would be quite inconsistent with the dictates of s 56 of the Civil Procedure Act to burden the parties with the costs, both financial and personal, of a new trial.
3. Equally importantly, and contrary to Mr Windsor's submissions, there is no question of principle to be clarified. Accepting, as I do, that the primary judge did not deal correctly with s 99(1)(a), or with the State's case of prospective validation of the arrest, the principles are well established. The importance of those principles has been vindicated sufficiently by emphasising the failure of the primary judge to recognise and deal with them.
4. The third factor which, in my view, tells against the grant of leave is that the State's complaints in relation to s 99(1)(a) (and, to a large extent, s 99(1)(b)) stem largely from the way in which the State put its case at trial. As I have tried to explain, acceptance of the submissions now put by the State on s 99(1) would have the effect of permitting it another opportunity to argue the same point, and to improve the presentation of its case. Again having regard to the amount at issue and the likely duration of any new trial, that exercise cannot be justified.
5. Since writing the foregoing, I have had the opportunity to read in draft the judgments of Basten JA and Sackville AJA. As will be apparent from what I have said already, I agree with Basten JA that the primary judge erred, both as to liability and as to damages. However, I remain of the view that there ought not be a grant of leave. I agree with what Sackville AJA has said at [73]-[78] of his Honour's reasons.

Conclusion

1. For those reasons, I propose that the summons for leave to appeal be dismissed with costs.

Endnotes

1. District Court Act 1973 (NSW), s 127(2)(c).
2. Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), r 51.53.
3. UCPR, r 51.53(3).
4. The text of the key provisions is set out by McDougall J at [89] below. Section 201 has since been replaced, the key elements now being found in ss 201 and 202.
5. Law Enforcement Act, s 99(1)(a).
6. Law Enforcement Act, s 99(1)(b)(i), (iv) and (viii).
7. (2000) 49 NSWLR 78; [2000] NSWCA 152 at [26] (Priestley JA, Sheller and Beazley JJA agreeing); see also State of New South Wales v Delly [2007] NSWCA 303 at [3] (Ipp JA), [51] (Tobias JA) and [100] (in my judgment).
8. Christie v Leachinsky [1947] AC 573 at 587 (principle (3)).
9. Christie at 588 (principle (5)).
10. See with respect to similar (though not identical) Northern Territory legislation, Prior v Mole [2017] HCA 10; 91 ALJR 441 at [4] (Kiefel CJ and Bell J); [24]-[27] (Gageler J); and [98]-[101] (Gordon J).
11. Holgate-Mohammed v Duke [1984] AC 437 at 443 (Lord Diplock), adopted in Hyder v Commonwealth of Australia [2012] NSWCA 336; 217 A Crim R 571 at 15 (McColl JA).
12. The King v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 432 (Latham CJ).
13. (1999) 197 CLR 611; [1999] HCA 21 at [131]-[137].
14. Zaravinos v State of New South Wales (2004) 62 NSWLR 58; [2004] NSWCA 320 at [37] (Bryson JA, Santow JA and Adams J agreeing).
15. Police Act 1990 (NSW), s 213.
16. Judgment, pp 1-3.
17. Judgment, p 8.
18. Judgment, p 13.
19. Custody management record, p 3.
20. Judgment, p 2.
21. Judgment, pp 6-7
22. Judgment, pp 8-9.
23. Judgment, p 9.
24. Judgment, p 9.
25. Judgment, pp 9-10.
26. Judgment, pp 10-11.
27. Written submissions, par 2.
28. Tcpt, 24/09/15 at 286; see also at 291-293.
29. Tcpt, 23/09/15 at 264-280.
30. See [12] above.
31. (2009) 238 CLR 627; [2009] HCA 37.
32. SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; [2005] HCA 24.