State of New South Wales v Williams

Court of Appeal (NSW)|2014-06-05|Before: Macfarlan JA, Emmett JA, Simpson J, MacFarlan JA

espondents) File Number(s): 2013/304647 Publication restriction: Nil Decision under appeal Citation: Joel Nathan Williams, Gloria May Williams, Robert Lee Anthony Williams v The State of New South Wales [2013] NSWDC 249 Date of Decision: 2013-10-02 00:00:00 Before: Finnane QC DCJ File Number(s): 2012/371401

Judgment 1MACFARLAN JA: I agree with Emmett JA. 2EMMETT JA: This application is concerned with an alleged abuse of the process of the District Court on the part of the present applicant, the State of New South Wales (the State). The respondents to the present application are Joel Williams, Gloria Williams and Robert Williams (together the Claimants). Joel Williams and Robert Williams are brothers and Gloria Williams is their mother. For convenience, and without intending any disrespect, I shall refer to the Claimants individually by their first names. 3The Claimants contend that, in a defence filed in proceedings brought by them in the District Court against the State (the District Court Proceedings), the State sought to litigate a question that they say had previously been conceded by the State in relation to earlier criminal proceedings brought against them in the Local Court at Kyogle, NSW (the Local Court Proceedings). The question that the Claimants say that the State is seeking to litigate is whether the arrest of Joel by police officers on 27 November 2009 was lawful. 4On that day, Senior Constable McCormack and Sergeant Reid attended outside the Masonic Hall in Kyogle in order to speak to Joel in relation to an alleged larceny at the Beer, Wine and Spirits outlet at Kyogle (the BWS Outlet) three weeks earlier. After a brief verbal exchange, Senior Constable McCormack and Sergeant Reid proceeded to arrest Joel. Joel resisted their attempt to arrest him. Both Robert and Gloria began protesting that the police had no right to arrest Joel and both attempted to pull the police officers' hands off him so as to facilitate his release. 5Joel was subsequently charged in the Kyogle Local Court with resisting arrest and was convicted. Gloria and Robert were charged in the Local Court with hindering police in the execution of their duty, contrary to s 546C of the Crimes Act 1900 (NSW). Robert was convicted and fined. In the case of Gloria, the offence was found to be proved but the Magistrate did not proceed to a conviction. Following an appeal to the Supreme Court (the Supreme Court Proceedings) under s 52 of the Crimes (Appeal and Review) Act 2001 (NSW) (the Appeal Act), the conviction of Robert and the order in respect of Gloria were set aside. Following intervention by the Attorney-General of New South Wales, who referred Joel's conviction back to the Local Court for redetermination, his conviction was also set aside. 6The orders made in relation to Gloria and Robert were made on the basis that the Local Court had not had proper regard to the provisions of s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (the LEPR Act) in determining that Joel's arrest was lawful. Section 99 of the LEPR Act deals with arrest by police officers without a warrant. Under s 99(2) as in force at the relevant time, a police officer could, without a warrant, arrest a person if the police officer suspected, on reasonable grounds, that the person had committed an offence under any Act or statutory instrument. 7However, under s 99(3), a police officer must not arrest a person for the purpose of taking proceedings for an offence against the person, unless the police officer suspects, on reasonable grounds, that it is necessary to arrest the person to achieve one or more of six purposes set out in paragraphs (a) to (f) of s 99(3). Relevantly for present purposes, the effect of s 99(3)(a) is that a police officer must not arrest a person for the purpose of taking proceedings for an offence against the person, unless the police officer suspects, on reasonable grounds, that it is necessary to arrest the person to ensure the appearance of the person before a court in respect of the offence. 8In the District Court Proceedings, the Claimants seek damages from the State, including aggravated damages and exemplary damages, relevantly for alleged assault and false imprisonment of Joel, battery of Gloria and assault of Robert. The claims arise out of the incident that occurred on 27 November 2009. In its defence in the District Court Proceedings, the State asserted that the arrest and imprisonment of Joel were lawful and that the police officers were entitled to use reasonable force to arrest Joel and only used reasonable force when preventing Gloria and Robert from hindering them in their lawful arrest of Joel. Those assertions were made in paragraphs 23, 25 and 28 of the defence. 9On 2 October 2013, a Judge of the District Court (the Primary Judge) struck out those three paragraphs of the defence, on the ground that they constitute an abuse of process by the State. By summons filed on 16 December 2013, the State has applied for leave to appeal from the orders made by the Primary Judge. A direction was given that the State's application for leave to appeal be heard concurrently with the appeal, on the assumption that leave has been granted. Before dealing with the issues raised in these proceedings, it is necessary to say something about the Supreme Court Proceedings and the District Court Proceedings as well as the Local Court Proceedings.

The Local Court Proceedings 10The charges against Gloria and Robert under s 546C of the Crimes Act were dealt with in the Local Court at Kyogle by Magistrate Linden on 28 July 2010. Senior Constable McCormack and Sergeant Reid gave oral evidence for the prosecution. No evidence was called on behalf of Gloria and Robert. 11Mr N Funnell, a solicitor, appeared for Gloria and Robert. In the course of cross-examining Senior Constable McCormack, Mr Funnell asked the witness whether the purpose of the arrest of Joel was that he was suspected of having committed a shoplifting offence. The witness agreed that it was. When Senior Constable McCormack was asked whether Joel was subsequently released, after spending approximately one and a half hours in custody, the Magistrate indicated that he did not see how that was relevant. Sergeant Costin-Neilsen, who was appearing for the prosecutor, submitted that it was not relevant. Mr Funnell then submitted: "one of the purposes of arrest is to ensure the appearance of a person before the court, that's where these questions are going towards". 12Mr Funnell then drew the Magistrate's attention to the terms of s 99(3)(a) of the LEPR Act and said that part of the reason why he was asking the question was to establish what the purpose of the arrest was. The Magistrate said that it was "pretty obvious" that it was to restrain Joel and take him to the police station. Mr Funnell then submitted that the effect of the legislation was that one of the provisions in s 99(3) needed to be established. He said that his question to Senior Constable McCormack was directed to which particular provision in s 99(3) the police officers were relying upon when they arrested Joel. Mr Funnell then read the terms of s 99(3)(a) to the Magistrate, who directed Mr Funnell to "go on". 13Mr Funnell then asked Senior Constable McCormack whether he released Joel and served him with a court attendance notice (a CAN). After being shown some documents, Senior Constable McCormack agreed that a CAN was issued to Joel and that Joel was not placed on bail. The witness was then asked whether he agreed that a person does not need to be arrested to be served with a CAN. The response was that it depends on the circumstances. The witness said that, at the time in question, there was no chance of speaking to Joel at the scene "due to the hostilities around us so we got him back to the police station and went by way of CAN there, where ... we were in our environment and we could do things the way we needed to". No further questions were asked of Senior Constable McCormack concerning the reason for the arrest of Joel. 14Sergeant Reid said in examination-in-chief that at about 4.20pm on 27 November 2009, he attended the Masonic Hall in Kyogle with Senior Constable McCormack to arrest Joel. However, no questions were put to Sergeant Reid about his reasons for arresting Joel. 15At the conclusion of the prosecution case against Robert and Gloria, Mr Funnell submitted that the evidence did not establish a prima facie case against them. He submitted that, while it was not in issue that Robert and Gloria had hindered Sergeant Reid and Senior Constable McCormack as they arrested Joel, those police officers were not acting in the execution of their duty at the time of their intervention, because they had no reasonable suspicion in the terms of s 99(3) of the LEPR Act. 16The Local Court Magistrate was satisfied that there was a prima facie case and that it was clear, from the evidence, that the officers were hindered and that the offence was proved in each case. The Magistrate found that the offence by Gloria was proved, but did not proceed to a conviction, applying s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act). Robert was convicted and fined $150 and was ordered to pay $79 in court costs.

The Supreme Court Proceedings 17By summons filed on 24 August 2010 in the Common Law Division of the Supreme Court, Robert and Gloria appealed from the orders made against them in the Local Court. They sought the following relief:

the order made on 28 July 2010 at Kyogle Local Court convicting Robert of the offence of hindering police, under s 546C of the Crimes Act, be set aside;
the order made on 28 July 2010 at Kyogle Local Court in relation to Gloria be set aside. The Director of Public Prosecutions (the DPP) took over the matter in the Supreme Court and conducted the appeal as respondent. 18On 20 September 2011, for reasons given on that day (see Williams v Director of Public Prosecutions (NSW) [2011] NSWSC 1085), Harrison AsJ made orders that the conviction of Robert be set aside and that the order made in relation to Gloria be set aside. In her reasons, Harrison AsJ said that the elements of the charge under s 546C of the Crimes Act of hindering police were, first, that Robert and Gloria hindered police officers and, secondly, that they hindered the police officers while they were acting in the execution of their duty. Thus, her Honour said, if the police officers were not acting in the execution of their duty, then an essential element of the offence was not satisfied and the charge was not proved. 19Harrison AsJ formulated the issue before her as whether an arrest can only be carried out in compliance with s 99 of the LEPR Act and, if so, whether the Local Court Magistrate properly construed s 99. Her Honour then observed that, in his reasons, the Local Court Magistrate had made no reference to s 99(3) of the LEPR Act, although his Honour's attention had been drawn to that provision. Her Honour said that the proper construction of s 99(3) is a matter of law and that, therefore, Robert and Gloria were entitled, under s 52 of the Appeal Act, to appeal from the orders that had been made against them. Section 52 provides an avenue of appeal to the Supreme Court to any person who has been "convicted or sentenced by the Local Court". Although Gloria was not convicted, the term sentence in the Appeal Act includes any order made by the Local Court in respect of a person under s 10 or s 11 of the Sentencing Act on finding the person guilty of an offence. 20Harrison AsJ concluded that, because the police officers' evidence indicated that, at the time of arrest, they intended to take proceedings against Joel in relation to the larceny offence, the operation of s 99(3) was triggered. Her Honour considered that the police were therefore required to be satisfied, on reasonable grounds, that it was necessary for them to arrest him for one of the purposes in s 99(3). Her Honour found that there was no evidence that the police had concerns in relation to any of the matters addressed in that provision. 21Harrison AsJ referred to the DPP's submission that, in dismissing the application made on behalf of Robert and Gloria that there was no prima facie case, the Local Court Magistrate did not appreciate the significance of s 99(3). Her Honour said that, in his reasons, the Local Court Magistrate had referred only to s 99(2) of the LEPR Act as satisfying the requirement that the police officers were acting in the execution of their duty at the time that Robert and Gloria engaged in the impugned conduct. 22Harrison AsJ then referred to a suggestion made by the DPP that there was "an apparent ambiguity in the degree of reciprocity of operation between ss 99(2) and 99(3)". Her Honour observed that, because it does not otherwise contain a conferral of power, s 99(3) clearly relies on s 99(2), but that it was not clear whether the power in s 99(2) is constrained by s 99(3). Her Honour said that, if it is not constrained by s 99(3), the broad power conferred by s 99(2) would be constrained only by a reasonable suspicion that a person had committed an offence, whereas, if s 99(3) does constrain the power conferred by s 99(2), that power can only be exercised for the purpose of taking proceedings against that person. In that case, her Honour said, the police must also be satisfied, on reasonable grounds, that arrest is necessary to achieve one of the purposes set out in s 99(3). 23Those observations appear to be directed at the lack of symmetry between s 99(2) and s 99(3). That is to say, s 99(3) does not, in terms, say that the power conferred by s 99(2) can only be exercised for the purpose of taking proceedings against a person. Rather, it says that, if that is the purpose, then the exercise of the power is constrained. That seems to leave open the possibility that if that is not the purpose of the exercise of the power conferred by s 99(2), s 99(3) imposes no constraint on the exercise of that power. 24Thus, s 99(2) authorises arrest without a warrant, if the police officer suspects on reasonable grounds that a person has committed an offence. On the other hand, s 99(3) prohibits a police officer from arresting a person for a particular purpose, namely, the purpose of taking proceedings for an offence against the person, unless one of the conditions listed in that provision is satisfied. As a matter of syntax, the only qualification of s 99(2) that arises under s 99(3) is that the purpose of the arrest is the taking of proceedings. There is no express restriction on arresting a person for a purpose other than taking proceedings for an offence, so long as the police officer suspects, on reasonable grounds, that the person has committed an offence. 25It may be that the proper construction of s 99(3) is that it does no more than prohibit arrest without a warrant unless it is necessary to arrest the person to achieve one or more of the purposes set out in s 99(3)(a), (b), (c), (d), (e) or (f). However, that construction would effectively render the reference in s 99(3) to "the purpose of taking proceedings for an offence against the person" quite otiose. It may be significant that s 99 was completely rewritten in December 2013 to remove such ambiguities as existed at the relevant time. 26Harrison AsJ observed that the evidence before her Honour indicated an intention on the part of the police, at the time of Joel's arrest, to take proceedings against him in relation to the larceny offence, thus triggering the operation of s 99(3) of the LEPR Act. Her Honour said that there was no evidence that the police had concerns in relation to any of the matters addressed in s 99(3). In those circumstances, her Honour said, it would seem that the elements of a lawful arrest were not made out and that, therefore, an element of the s 546C offences could not be established at any subsequent hearing of the charges against Robert and Gloria. Her Honour concluded that the Local Court Magistrate's decision demonstrated an error in law because his Honour found that the offence under s 546C of the Crimes Act was proven, without finding that the requirements of s 99(3) of the LEPR Act had been met in respect of the arrest of Joel. 27Harrison AsJ then said that the DPP agreed with the submissions advanced on behalf of Robert and Gloria that there was "little utility", in the circumstances, in remitting the matter to the Local Court for redetermination. Her Honour made the orders setting aside the conviction of Robert and the order made in relation to Gloria. Her Honour did not remit the matters to the Local Court.

The District Court Proceedings 28In their amended statement of claim of 26 March 2013 (the Statement of Claim), the Claimants made, relevantly for present purposes, the following allegations:

Between 7 November and 27 November 2009, police investigated an alleged larceny at the BWS Outlet.
Various police officers attended the Masonic Hall at Kyogle on two occasions on 27 November 2009 in an effort to locate or arrest Joel. The first occasion was at approximately 3pm when Sergeant Reid and Senior Constable Crawford attended in a marked police vehicle.
The second occasion was at approximately 4.20pm, when Sergeant Reid and Senior Constables Crawford, Starr and McCormack attended in two marked police vehicles for the purpose of arresting Joel. Shortly after those officers arrived, another police officer attended the Masonic Hall in a marked police car. All police officers who attended were in full police uniform and armed.
On arriving outside the Masonic Hall at 4.20pm, Sergeant Reid informed Joel that he needed to speak with him about the larceny at the BWS Outlet.
After speaking briefly with the police officers, Joel attempted to walk past Sergeant Reid and Senior Constable McCormack, whereupon Sergeant Reid purported to arrest Joel for the larceny at the BWS Outlet. Sergeant Reid and Senior Constable McCormack detained him by taking hold of his arms and subsequently walking him towards a police vehicle. Joel attempted to break free and was placed in wrist locks by both Sergeant Reid and Senior Constable McCormack. At no time did Joel consent to being touched or detained by the police officers.
As Joel was being forced towards the police vehicle, Robert came up to the police and Gloria arrived at the Masonic Hall in a motor vehicle. Both Gloria and Robert immediately walked to Joel, who was being restrained by police, and protested against the actions of the police.
While Gloria protested against the actions of the police, a police officer placed hands upon her and forcibly moved her away from the officers purporting to arrest Joel. Gloria at no time consented to being touched by the police officers.
Robert approached Sergeant Reid, who had Joel in a wrist lock and was attempting to move him to a police vehicle. Sergeant Reid and Robert then had a conversation in which Sergeant Reid threatened Robert with unlawful personal violence by telling him "to back off". Robert was intimidated by Sergeant Reid's threat and at no time consented to being spoken to in the way that Sergeant Reid spoke to him.
The police officers handcuffed Joel and forced him into a police vehicle and thereafter transported him to the Kyogle Police Station where he was placed in custody.
Joel was detained against his will by the police from the time of his arrest at approximately 4.20pm on 27 November 2009 until his release at approximately 5.30pm on the same day.
Charges were laid against each of the Claimants in respect of the alleged offences of hindering police in the execution of their duty on 27 November 2009.
On 28 July 2010, each of Gloria and Robert was found guilty of those offences, though a conviction was only recorded in respect of Robert. On the same day, an application by Joel to reverse a plea of guilty previously entered was refused, and a conviction was recorded against him.
On 20 September 2011, Harrison AsJ found that the purported arrest of Joel on 27 November 2009 triggered the operation of s 99(3) of the LEPR Act, that there was no evidence that police had any concerns in relation to any of the matters addressed in s 99(3), including s 99(3)(a), that in such circumstances the elements of a lawful arrest were not made out, and that, accordingly, offences under s 546C of the Crimes Act could not be established at any subsequent hearing of the charges against Gloria and Robert.
Harrison AsJ set aside the conviction entered against Robert and set aside the order made against Gloria.
On 18 November 2011, a direction was given by the Attorney-General that Joel's conviction be referred back to the Kyogle Local Court in accordance with s 5 of the Appeal Act.
On 15 March 2012, Joel's conviction on the charge of resisting arrest on 27 November 2009 was annulled and the charge was thereafter withdrawn and dismissed.
On 19 August 2010, the larceny charge against Joel was withdrawn and was dismissed by the Kyogle Local Court. 29The Statement of Claim then asserted causes of action on behalf of each of the Claimants. The relevant allegations may be summarised as follows:
Par 37: Joel was assaulted by police when they purported to arrest him;
Par 38: Joel was falsely imprisoned from the moment when police announced his arrest and touched him in purported exercise of their powers of arrest, until the time of his release from police custody at Kyogle Police Station;
Par 40: The conduct of police who pushed Gloria away when she protested against the purported arrest of Joel constituted a battery upon her person;
Par 42: The threat that officers would take action against Robert if he did not "back off", made by Sergeant Reid on 27 November 2009, placed Robert in immediate fear of unlawful personal violence, constituting an assault. 30On 30 April 2013, the State filed a defence to the Statement of Claim, which denied paragraphs 37, 38, 40 and 42. In addition, in relation to paragraphs 37, 38, 40 and 42, the defence also said as follows:
Par 23: In further answer to paragraphs 37 and 38 of the Statement of Claim, the imprisonment and the arrest were lawful, in that Sergeant Reid suspected that Joel had committed the offence of larceny and suspected on reasonable grounds that it was necessary to arrest Joel to ensure his appearance before a court in respect of that offence;
Par 25: In further answer to paragraph 40, the police were entitled to use reasonable force to arrest Joel and only did use reasonable force when preventing Gloria from hindering the police in the arrest of Joel;
Par 28: In further answer to paragraph 42, the police were entitled to use reasonable force to arrest Joel and only did use reasonable force when preventing Robert from hindering the police in the arrest of Joel.

31By notice of motion dated 5 July 2013, the Claimants sought orders that paragraphs 23, 25 and 28 of the State's defence be struck out as an abuse of process under Uniform Civil Procedure Rule (UCPR) 14.28(1)(c) or, in the alternative, as disclosing no reasonable defence under UCPR 14.28(1)(a). UCPR 14.28(1) relevantly provides that a court may, at any stage of proceedings, order that the whole or any part of a pleading be struck out if the pleading:

discloses no reasonable defence or other case appropriate to the nature of the pleading (see UCPR 14.28(1)(a)); or
is otherwise an abuse of the process of the Court (see UCPR 14.28(1)(c)). 32Under UCPR 14.28(2), the Court may receive evidence on the hearing of an application for an order under UCPR 14.28(1). The Claimants relied on an affidavit of Ms Tracey Randall affirmed on 5 July 2013. That affidavit annexed copies of:
Pleadings in the District Court Proceedings;
Reasons of Harrison AsJ;
Transcript of the hearing before the Kyogle Local Court;
Police Statements of Senior Constable McCormack and Sergeant Reid;
A CAN addressed to Joel, a Fact Sheet relating to charges against Joel and a Custody Management Record in relation to the arrest of Joel. 33In the Police Statement of 25 March 2010 by Senior Constable McCormack, he said that he attended the Masonic Hall on 27 November 2009 with Sergeant Reid, when they had cause to speak to Joel. He said that as a result of the conversation, Joel was arrested. The statement says nothing about the purpose for which Joel was arrested. 34In the Police Statement of 8 December 2009 by Sergeant Reid, he said that he and Senior Constable McCormack attended the Masonic Hall in order to speak with Joel. He said that as a result of what occurred when they spoke to Joel, he and Senior Constable McCormack arrested Joel. In a second Police Statement of 28 February 2010, Sergeant Reid said that at about 3pm on 27 November 2009 he and Senior Constable Crawford attended the Masonic Hall. He also said that, on their arrival, he approached a male Aboriginal person to speak with him about an inquiry that he was conducting. The man immediately became hostile towards the police officers. He said that after attempting to reason with persons there, he felt it was not safe and was not practical for them to remain and he and Senior Constable Crawford then left. 35Sergeant Reid said that he again attended the Masonic Hall at about 4.20pm, when he asked Joel whether he was Joel Williams and said to Joel that he believed that he was Joel Williams. He then said that he needed to speak with Joel about "a stealing" that had occurred at the BWS Outlet on 7 November 2009. Sergeant Reid said that when Joel started to walk past him and Senior Constable McCormack, Sergeant Reid said to him: "I believe you are trying to avoid us. You are now under arrest for stealing." Sergeant Reid subsequently said to Joel: "You will be coming back to Kyogle Police Station with us. If you resist, you may be committing further offences." He said that he took Joel's right arm and Senior Constable McCormack took hold of his left arm. Sergeant Reid said nothing further in his statement about the purpose for which Joel was arrested. 36In his reasons for striking out paragraphs 23, 25 and 28 of the State's defence, the Primary Judge said that it was clear that the Local Court Magistrate proceeded on the basis that s 99(2) of the LEPR Act entitled the police to arrest Joel Williams, but did not consider the effect of s 99(3), which, his Honour said, clearly prohibited arrest unless certain conditions were met. Accordingly, the Local Court erred in law and, consequently, the orders made in respect of Robert and Gloria were set aside by Harrison AsJ. 37The Primary Judge observed that the evidence before the Local Court disclosed that the police knew Joel, knew where he lived, and knew that the offence was a relatively minor offence of shoplifting. His Honour also observed that the evidence disclosed that the police "went into a hall in which rehearsals for a cultural festival were being conducted and arrested [Joel] without any regard to what was going on or the incense [sic] that they might be causing". His Honour said that it was clear that the "overbearing conduct of the police" was in large measure the cause of the involvement of Gloria and Robert who, his Honour said, were understandably very upset that the rehearsals should be invaded and Joel arrested. 38The Primary Judge said that, in his opinion, the arrest of Joel was prohibited unless the police could show a suspicion on reasonable grounds of necessity to arrest him. The only relevant suspicion, his Honour said, could have been to ensure the appearance of Joel before a court in respect of the relevant offence. His Honour said that, since the police knew Joel, knew his address and knew that the offence was a minor one, it was difficult to see how that could justify arresting Joel. 39The Primary Judge then went on to say that, "[n]otwithstanding the apparent inappropriateness of arresting [Joel], the [State] wishes to persist in claiming that the arrest was lawful and [that] the charging of Gloria and Robert was lawful, even though there has been a judicial proceeding in which a representative of the State, namely the [DPP], had agreed that the magistrate was in error in failing to apply s 99(3) and that [Gloria and Robert] should be found not guilty of the offences with which they were charged". 40The Primary Judge said that it was even more surprising to him that, after the Attorney-General had taken steps to have the conviction of Joel set aside, the State should now wish to put in issue that very matter and should wish to argue that the arrest of Joel was valid. His Honour then said that "there has been a trial on the facts" in respect of that matter, since the charges against Gloria and Robert could not properly have been laid if the police were not entitled to arrest Joel. His Honour said that Gloria and Robert could only have been hindering the police in the execution of their duty if, in fact, they were carrying out their duty. His Honour said that they were not carrying out their duty because they should not have been arresting Joel at all. 41The Primary Judge concluded that "the intervention of the [State] itself" in the earlier proceedings made it entirely inappropriate that "the same [State] should now adopt in civil proceedings an approach that is contradictory of what it did itself in the earlier criminal proceedings". His Honour said that the case was not one of issue estoppel, but was a case in which the State should not be allowed to litigate in civil proceedings "facts which it had already agreed in earlier criminal proceedings should be determined against it". 42Thus, the Primary Judge referred to a "trial on the facts" and to "facts" that the State had agreed should be determined against it. His Honour did not articulate or specify the facts on which there had been a trial and did not specify the facts that the State was said to have agreed should be determined against it. Insofar as his Honour was referring to the Supreme Court Proceedings, there was clearly no trial on any facts. Those proceedings constituted an appeal limited to a question of law. Indeed, under s 53(1) of the Appeal Act, they could not have constituted an appeal on a question of fact or on a question of mixed law and fact unless leave had been sought and granted by Harrison AsJ.

The Proposed Grounds of Appeal 43In its draft notice of appeal, the State seeks orders that the decision of the Primary Judge be set aside, that the Claimants' notice of motion filed on 5 July 2013 be dismissed, and that the Claimants pay the State's costs. The proposed grounds of appeal may be summarised as follows:

The Primary Judge erred in striking out paragraphs 23, 25 and 28 of the State's defence;
The Primary Judge erred in determining the issue of the lawfulness or otherwise of the arrest of Joel as a matter of fact, when that issue was not before him and there was no evidence upon which he could reach a conclusion as to lawfulness;
The Primary Judge erred in dealing with the matter on the basis that the DPP, as an emanation of the State, had agreed before Harrison AsJ to a state of facts when, in fact, the DPP:
is not an emanation or representative of the State,
conceded no more than that the Local Court was wrong in law in failing to have regard to the provisions of s 99(3) of the LEPR Act, and
had not considered the merits or the lawfulness or otherwise of the relevant arrest;
The Primary Judge erred in finding that there had been a trial on the facts with respect to the lawfulness or otherwise of Joel's arrest when there had been no finding as to that matter according to law;
The Primary Judge erred in finding that the approach of the State in the District Court Proceedings was acting inconsistently with, or in contradiction of, the position taken in the Supreme Court Proceedings;
The Primary Judge erred in finding that the State should not be allowed to litigate the lawfulness of Joel's arrest in the District Court Proceedings. The Claimants have given notice that they seek to support the Primary Judge's decision on the ground that the lawfulness of the arrest of Joel, having already been litigated in a manner by which there was at law no case that the arrest was lawful, it would be an abuse of process now to seek to re-litigate that issue on another basis. 44The effect of striking out paragraphs 23, 25 and 28 of the State's defence was to deprive the State of a contested hearing on the question of whether or not the arrest of Joel was lawful. The State contends that that defence is not manifestly groundless and that the facts upon which that defence would be based have not been litigated, let alone determined against it.

No Reasonable Defence 45Clearly enough, paragraphs 23, 25 and 28 of the State's defence disclose a reasonable defence, as a matter of pleading. That is to say, if the State were to establish, as a matter of fact and law, that the conduct of the police officers in relation to Joel constituted a lawful arrest and that the police officers used no more than reasonable force when preventing Gloria and Robert from hindering them in their arrest of Joel, that would be an answer to the claims made by the Claimants. Thus, the Claimants' contentions can only be that it would be an abuse of process for the State to persist in the allegations made in those paragraphs.

Abuse of Process 46Abuse of process is a misuse of the court's procedure. While the categories of abuse of process are not closed, abuses of process will normally fall into one of three categories. The first is where the court's procedures are invoked for an illegitimate purpose. The second is where the use of the court's procedures is unjustifiably vexatious, oppressive or unfair to one of the parties. The third is where the use of the court's procedures would bring the administration of justice into disrepute. There is an important public interest in the due administration of justice, and in the maintenance of public confidence in the administration of justice. That public interest is central to the question of abuse of process, and a court may exercise its inherent powers, as well as powers conferred by the UCPR, as and when the administration of justice demands (O'Shane v Harbour Radio Pty Ltd [2013] NSWCA 315 at [101] - [103]). 47The Primary Judge based his decision on the proposition that the State should not be allowed to litigate, in the District Court Proceedings, facts that it had already agreed, in the Supreme Court Proceedings, should be determined against it. However, his Honour did not identify the facts that the State is said to have agreed should be determined against it, and it is quite unclear what facts his Honour had in mind. The so-called "agreement" is dealt with further below. In short, his Honour's reasoning does not support the orders made by him. 48Issue estoppel, if established, would be a good answer to the allegation by the State, in the District Court Proceedings, of a matter that had been finally decided in the Supreme Court Proceedings. To establish an issue estoppel, it would be necessary to demonstrate that the parties in both proceedings were the same and that they were in the same interests. That is to say, it would be necessary to establish identity of issues and identity of parties. However, while the Claimants rely on the decision of Harrison AsJ and the conduct of the DPP in the Supreme Court Proceedings, they do not suggest that the State is bound by an issue estoppel that would prevent it from making the allegations that it sought to make in paragraphs 23, 25 and 28 of its defence. 49Abuse of process has been referred to as "the extended res judicata doctrine" (see KR Handley, Res Judicata (4th ed 2009, Butterworths), ch 26). Whether there is an abuse of process does not depend upon the existence of an estoppel, and a court may intervene to prevent an abuse in the conduct of subsequent proceedings notwithstanding that the subsequent proceedings are not between the same parties as earlier proceedings (see O'Shane v Harbour Radio Pty Ltd [2013] NSWCA 315 at [105]). On the other hand, it would be easier to show an abuse of process if, as the Claimants contend, the State was a party to the Supreme Court Proceedings and the issue raised by paragraphs 23, 25 and 28 of the State's defence was decided, or at least conceded, in the Supreme Court Proceedings. I shall say something about each of those matters.

Identity of Parties 50In order to put into context the question as to the identity of the parties in the District Court Proceedings and the Supreme Court Proceedings, it is necessary to say something about certain aspects of the procedure involved in those proceedings. That will involve mention of the Criminal Procedure Act 1986 (NSW) (the Procedure Act), the Law Reform (Vicarious Liability) Act 1983 (NSW) (the Vicarious Liability Act) and the Director of Public Prosecutions Act 1986 (NSW) (the DPP Act). 51Summary criminal prosecutions, such as that commenced in the Local Court against Robert and Gloria, are proceedings between subject and subject and not between subject and the Crown or the State (see Munday v Gill [1930] HCA 20; 44 CLR 38 at 86). Section 175 of the Procedure Act deals with the form of CANs, by which such summary criminal proceedings are commenced. 52Under s 175(1), a CAN must be in writing and be in the form prescribed by the rules, which may prescribe one or more forms of CAN. Under s 175(3), a CAN must: (a) describe the offence; (b) briefly state the particulars of the alleged offence; (c) contain the name of the prosecutor; (d) require the accused person to appear before the court at a specified date, time and place, unless a warrant is issued for the arrest of the person or the person is refused bail; (e) state, unless a warrant is issued for the arrest of the person or the person is refused bail, that failure to appear may result in the arrest of the person or in the matter being dealt with in the absence of the person. Under s 3(1), prosecutor means the DPP or other person who institutes or is responsible for the conduct of a prosecution and includes, where the subject matter or context allows or requires, an Australian legal practitioner representing the prosecutor. 53The proceedings against Robert and Gloria were commenced by CAN. The CAN that commenced the proceedings against Joel stated that the prosecutor was Senior Constable Starr. The CANs that commenced the proceedings against Gloria and Robert were not in evidence. However, it appears to have been common ground that they named a police officer as prosecutor. 54Under s 9 of the DPP Act, if a prosecution or proceeding in respect of an offence, whether it is an indictable offence or a summary offence, has been instituted by a person other than the DPP, the DPP may, relevantly, take over the matter and carry on the prosecution or proceeding; carry on, on behalf of the prosecution or as a respondent, an appeal in any court in respect of the offence; and conduct, as respondent, an appeal in any court in respect of the offence. As I have said, the DPP, acting under s 9 of the DPP Act, assumed the conduct, as respondent, of the appeal by Gloria and Robert from the Local Court Proceedings that constituted the Supreme Court Proceedings. The Claimants contend that the State in the District Court Proceedings, on the one hand, is the same party as the police prosecutors in the Local Court Proceedings and the DPP in the Supreme Court Proceedings, on the other hand. 55Under s 9B(1) of the Vicarious Liability Act, a police tort claim is a claim for damages for a tort allegedly committed by a police officer in the performance or purported performance of the officer's functions as a police officer. Section 9B(2) provides that a person may not, in any legal proceedings, make a police tort claim against the police officer concerned, but may instead make the claim against the Crown. By the operation of s 5 of the Crown Proceedings Act 1988 (NSW), the Crown may be sued in any court under the title "State of New South Wales". 56The assaults, false imprisonment and battery alleged in the District Court Proceedings were committed by police officers. However, it is by no means clear that any of the police officers alleged to have committed those torts against the Claimants was a prosecutor in the Local Court Proceedings. The material before the Primary Judge indicates that Senior Constable Starr was the prosecutor in the proceedings against Joel, but no allegation is made in the Statement of Claim against him specifically. In any event, the Vicarious Liability Act operates to prevent legal proceedings by the Claimants against the police officers in question. Hence, the State is named as the defendant in the District Court Proceedings. The State has not denied that it would be vicariously liable for any tort committed by the police officers in the present case. Accordingly, the exception to s 9B(2) contained in s 9B(3), whereby a person who makes a police tort claim against the Crown in any legal proceedings may join the police officer concerned as a party to the proceedings if the Crown denies that it would be vicariously liable for the alleged tort if it were established that the police officer concerned had committed the tort, has no application in this case. 57It is clear enough that, were it not for the provisions of the Vicarious Liability Act, the State would not be a party to the District Court Proceedings. The Claimants contend that, while the Vicarious Liability Act dictates who must be sued, it does not change the nature of the proceedings or the interests represented in the proceedings. They contend that the principles of abuse of process should be applied as if the defendant in the District Court Proceedings consisted of the police officers who instigated the prosecutions in the Local Court. 58The difficulty with that contention is that there is no claim for malicious prosecution. If there were such a claim, the identity of the prosecutors in the Local Court Proceedings would have been of critical importance because it is they who would have been personally responsible for that tort. But since the claims are for assault, wrongful imprisonment and battery, that particular identity does not matter. Putting aside the difficulty for the Claimants that the Supreme Court Proceedings were conducted by the DPP and that the State is the defendant in the District Court Proceedings, it is by no means clear that the prosecutor in the Local Court Proceedings is one of the police officers alleged in the District Court Proceedings to have engaged in wrongful conduct. The Primary Judge erred to the extent that his Honour proceeded on the basis that there was identity between the parties in the Supreme Court Proceedings and the parties in the District Court Proceedings.

Identity of Issues 59The Claimants contend that, since the original prosecutions of each of the Claimants turned on the single issue as to the lawfulness or otherwise of Joel's arrest, the lawfulness of Joel's arrest was the central issue in the Supreme Court Proceedings. In the Local Court Proceedings against Robert and Gloria, the prosecutor alleged that each of them had committed the offence of obstructing or hindering a police officer in the execution of their duty. An element of that offence, which the prosecution was required to prove, was that the relevant police officer was, at the relevant time, acting in the execution of his or her duty. Robert and Gloria say that they identified execution of duty as a live issue in their defence before the Local Court, both in evidence and in argument. Certainly, as indicated above, the solicitor for Gloria and Robert raised s 99(3) in the course of the prosecution before the Local Court. 60The Claimants accept that the standard of proof required in a summary prosecution is different from that required in a civil suit and that it is possible that the State could prove in the District Court Proceedings, on the balance of probabilities, the matter that it failed to establish, beyond reasonable doubt, in the Local Court Proceedings. Nevertheless, the Claimants contend, the summary prosecutions were not ones where a defect in the evidence caused the Local Court Magistrate to entertain a doubt. Rather, they say, it was a case in which there was simply no evidence capable of satisfying the requirements of s 99(3) of the LEPR Act. They say that Harrison AsJ's reasons amounted to a holding, as a matter of law, that the prosecutions against Gloria and Robert should be dismissed as disclosing no prima facie case. 61The Supreme Court proceedings were brought under s 52 of the Appeal Act. Under s 52(1), any person who has been convicted or sentenced by the Local Court may, subject to exceptions not presently relevant, appeal to the Supreme Court against the conviction or sentence. However, such an appeal may be brought only on a ground that involves a question of law alone. Thus, the question before Harrison AsJ, of necessity, could not have involved a finding of fact by her Honour. As indicated above, under s 53, a question of fact or of mixed law and fact could have been considered only with the leave of Harrison AsJ. The question of law raised in the appeal under s 52 seems to have been the proper interaction between s 99(2) and s 99(3) of the Crimes Act. That could not involve any question as to whether or not, as a matter of fact, any police officer suspected on reasonable grounds that it was necessary to arrest Joel to achieve a purpose referred to in s 99(3). 62However, the Claimants attach considerable significance to the fact that, while s 55(1)(b) and s 55(2)(c) of the Appeal Act would have permitted the remitter of the prosecutions of Gloria and Robert to the Local Court for rehearing, following the successful appeal, the DPP agreed that such a course in the present case would have had "little utility". Harrison AsJ also agreed. The Claimants say that, if Sergeant Reid had given instructions that he relied on s 99(3)(a), one would expect that the DPP would have sought to have the prosecutions remitted to the Local Court for rehearing so that evidence might be adduced and the lack of evidence necessary to satisfy the prerequisites of s 99(3) could be addressed. Despite that possibility, the DPP did not seek to have the prosecutions remitted, but apparently consented to orders setting aside the convictions, thus finalising the prosecutions in the Supreme Court without further hearing by the Local Court. No appeal was instituted by the DPP from the orders made by Harrison AsJ. 63It appears that the Primary Judge did not have before him any material relating to the Supreme Court Proceedings other than Harrison AsJ's reasons for judgment. In particular, there was no evidence before the Primary Judge of any exchange between counsel for the parties, on the one hand, and Harrison AsJ, on the other, that led to her Honour's statement that the DPP agreed with the submissions of Gloria and Robert that there was little utility, in the relevant circumstances, in remitting the prosecutions to the Local Court for redetermination. Accordingly, the reasons for the DPP's agreement that there was little utility in remitting the matter to the Local Court were matters of pure speculation. In the state of the evidence before the Primary Judge, the basis upon which the DPP had agreed to that proposition is simply a matter of conjecture. 64The issue decided by Harrison AsJ was whether the Local Court Magistrate was wrong, as a matter of law, in failing to give proper consideration to the application of s 99(3) of the LEPR Act, namely, whether, on the proper application of that provision, Joel's arrest was lawful. Her Honour's decision involved no issue of fact directed to whether or not the ingredients of the defence afforded by s 99(2) had been established. Those facts remain unresolved. The issue of whether the arrest of Joel was lawful was not determined in the Supreme Court Proceedings. There was no identity between any issue in the Supreme Court Proceedings and the issue that the State seeks to raise in the District Court Proceedings.

Concession by the DPP 65Harrison AsJ said that there was no evidence that the police had concerns in relation to any of the matters addressed in s 99(3) and that, in those circumstances, it would seem that the elements of a lawful arrest were not made out and that therefore an element of the s 546C offences could not be established at any subsequent hearing of the charges against Gloria and Robert. That appears to be the basis upon which her Honour agreed that there would be little utility in remitting the prosecutions to the Local Court for redetermination. While the DPP apparently agreed that there was "little utility" in remitting the matter to the Local Court, the question of utility of such remitter was not explored before the Primary Judge. 66As I have said, the Primary Judge based his decision on the proposition that the State should not be allowed to litigate, in the District Court Proceedings, facts that the State had already agreed, in the Supreme Court Proceedings, should be determined against it. The Supreme Court Proceedings were contested by the DPP. Further, as indicated above, the question before Harrison AsJ, of necessity, could not have involved a finding of fact by her Honour, since the appeal lay only on a ground that involved a question of law alone. There was no scope for the DPP to have agreed that any facts should be determined against the State, assuming that the DPP could bind the State. 67The Claimants assert that, at best, Sergeant Reid has been very tardy in bringing forward his true reasons for arresting Joel, or the lawyers who represented the prosecutor at the summary trial before the Local Court and on appeal acted incompetently or contrary to instructions. They say that, at worst, the District Court Proceedings are being used to mount a collateral attack on the judgment of Harrison AsJ in the Supreme Court Proceedings by offering evidence tailored to meet s 99(3), after the police learned that the initial reason offered by them was insufficient. 68However, a collateral attack on an earlier decision of a court is not necessarily an abuse of process. There are circumstances in which it is quite legitimate to make such an attack and to show that an earlier judgment was based on a wrong view of the facts or of the law. Alternatively, it may be legitimate to demonstrate, in such an attack, that a chance was lost at persuading the earlier court that some other view should have been adopted in a finding of fact, such as in the application of a legal standard or the onus of proof or the standard of proof required in the particular case (see Cleary v Jeans [2006] NSWCA 9; 65 NSWLR 355 at [43]). 69In paragraphs 23, 25 and 28 of its defence, the State asserts that, in arresting Joel, Sergeant Reid acted out of a reasonably formed suspicion that the arrest was necessary to ensure that Joel attended at court. The Claimants point out that Sergeant Reid failed to say so in his two statements and failed to say so in his evidence to the Local Court, "despite precisely that issue having been raised by the defence". They also point to the fact that Joel was subsequently served with a CAN and was released with no bail, in circumstances where the police knew his address. Thus, they assert, there was no need to arrest Joel in order to ensure his attendance at court, since the police officers knew where Joel lived and they were prepared to rely on a CAN to ensure his attendance at court. 70Those contentions suggest that the real basis upon which the Claimants say that paragraphs 23, 25 and 28 of the defence should be struck out is that the State should not be permitted to raise lawful arrest as a defence because the evidence before the Primary Judge indicates that that defence could not possibly succeed. That contention assumes that the evidence that was before the Local Court and the Primary Judge is the only evidence that would be available at a trial. That assumption is not justified. In any event, the Primary Judge did not base his decision on a conclusion that the defence tendered by paragraphs 23, 25 and 28 could not possibly succeed on the evidence before him. 71The requirement for establishing that there is no triable issue is a demanding one and the power to strike out a pleading on the basis that it discloses no reasonable defence, or is an abuse of process, should be exercised only in plain and obvious cases. The power should not be exercised in cases of doubt or difficulty or where the pleading raises a debatable question of law. Once it appears that there is a real issue, whether of fact or law, and that the rights of the parties depend upon it, a court should not dismiss a defence raising such an issue, either on the basis that no reasonable defence is disclosed or as an abuse of process (see Dey v Victorian Railways Commissioners [1949] HCA 1; 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125 at 129-130; Commonwealth v Griffiths [2007] NSWCA 370; 70 NSWLR 268 at [11]-[12] and Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 at 139-140). 72The proposition that the very question that would be tendered by paragraphs 23, 25 and 28 was resolved as a result of the Supreme Court Proceedings cannot be made out. It is not an abuse for the State to endeavour to litigate the question of the lawfulness of Joel's arrest as a defence to the police tort claim made in the District Court Proceedings.

Conclusion 73If the Court of Appeal entertains real doubt about the correctness of a decision at first instance, leave to appeal should be granted if substantial injustice would be done in the event that the decision is wrong (Nationwide News Pty Ltd v Bradshaw (1986) 84 FLR 49 at 56 and 60-61). In the present case, if the decision of the Primary Judge was wrong, the State will suffer substantial injustice and prejudice insofar as it will be deprived of the right to defend the District Court Proceedings on the basis that the arrest of Joel was justified by reason of the operation of s 99(2) of the LEPR Act, albeit as qualified by the operation of s 99(3). 74I consider that the Primary Judge erred in ordering that paragraphs 23, 25 and 28 of the State's defence be struck out. Accordingly, I propose the following orders: (1)Leave be granted to the applicant to appeal from the orders made by the District Court on 2 October 2013; (2)The applicant be directed to file, within seven days, a notice of appeal in the form of the draft notice of appeal; (3)The appeal be allowed; (4)The orders made by the District Court on 2 October 2013 be set aside and, in lieu of those orders, there be an order that the respondents' notice of motion of 5 July 2013 be dismissed with costs; (5)The respondents pay the applicant's costs of the application for leave to appeal and of the appeal; (6)The respondents, if otherwise qualified, have certificates under the Suitors' Fund Act 1951 (NSW). 75SIMPSON J: I agree with Emmett JA. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 June 2014

Suitors' Fund Act 1951(NSW)

(the Procedure Act), the Law Reform (Vicarious Liability) Act 1983(NSW)

At a glance

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Judgment (12 paragraphs)

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Legislation Cited (11)

Cases Cited (10)