Having concluded that the entry of each of the officers was lawfully authorised under ss 9 or 10 and that the primary judge erred in finding otherwise, the operation of s 201 falls for consideration. In circumstances where it was not practicable to provide the information in s 201(1) before or at the time of the exercise of the power, the question which the notice of contention raises is whether the conditions which had to be satisfied for the lawful exercise of those powers included the later compliance with s 201(1). The answer to this question turns on the proper construction of s 201, the directly relevant provisions of which are set out below:
(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 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,
(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)
…
The powers referred to in subs (3) include powers conferred under the common law. The operation of LEPRA in relation to those powers was described by Leeming JA in Poidevin v Semaan [2013] NSWCA 334; 85 NSWLR 758 at [21]:
LEPRA expressly presupposes the continued existence of the police officer's powers at common law. … Section 4(1) states that the Act does not limit the functions, obligations and liabilities that a police officer has as a constable at common law, unless it otherwise provides expressly or by implication. Section 4(2) provides that without limiting subs (1), nothing in the Act affects the powers conferred by the common law to deal with breaches of the peace. It is clear (and it was common ground on the appeal) that the effect of s 4 and s 201 was to impose an obligation on a police officer exercising a power to seize property, and (as is confirmed by the opening words of s 201(3)), that obligation applies even when the power to seize property derives from the common law. …
Under the common law (but subject to exceptions) an officer lawfully exercising a power of arrest without a warrant is required to inform the person being arrested of the reason for their arrest prior to or at the time of exercising that power. Viscount Simon summarised the general principles in Christie v Leachinsky [1947] AC 573 at 587 - 588:
(1.) If a policeman arrests without warrant upon reasonable suspicion of felony, or of other crime of a sort which does not require a warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the reason to himself or to give a reason which is not the true reason. In other words a citizen is entitled to know on what charge or on suspicion of what crime he is seized. (2.) If the citizen is not so informed but is nevertheless seized, the policeman, apart from certain exceptions, is liable for false imprisonment. (3.) The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained. (4.) The requirement that he should be so informed does not mean that technical or precise language need be used. The matter is a matter of substance, and turns on the elementary proposition that in this country a person is, prima facie, entitled to his freedom and is only required to submit to restraints on his freedom if he knows in substance the reason why it is claimed that this restraint should be imposed. (5.) The person arrested cannot complain that he has not been supplied with the above information as and when he should be if he himself produces the situation which makes it practically impossible to inform him, e.g., by immediate counter-attack or by running away. There may well be other exceptions to the general rule in addition to those I have indicated, and the above propositions are not intended to constitute a formal or complete code, but to indicate the general principles of our law on a very important matter. [emphasis added]
That common law rule was applied by this Court in Adams v Kennedy [2000] NSWCA 152; 49 NSWLR 78 at [25]; and was said to apply in Western Australia until modified by statute in 2006. See Johnson v Staskos [2015] WASCA 32. The rationale underlying the requirement that reasons for the arrest be provided was described by Ipp JA in State of New South Wales v Delly [2007] NSWCA 303; 70 NSWLR 125 at [9] as being that the person arrested "should be put in a position to be able to give an explanation of any misunderstanding, or to call attention to others for whom they may have been mistaken, or to give some other exculpatory reason, and to assert that further inquiries may save them from the consequences of false accusation". See also Johnstone v State of New South Wales [2010] NSWCA 70; 202 A Crim R 422 at [41] - [46] (Beazley JA).
Under the common law an officer authorised to arrest a person without warrant may also engage in conduct that would otherwise amount to a trespass and forcibly enter premises provided two conditions are satisfied. Gleeson CJ described the second of those conditions in Lippl v Haines (1989) 18 NSWLR 620 at 622:
Secondly, save in what the Supreme Court of Canada [Eccles v Bourque (1974) 50 DLR (3d) 753] described as "exigent circumstances", there must be a proper announcement prior to entry so that the occupier of the premises is made aware that a police officer claims authority to enter and is given an opportunity to permit entry without force.
In Lippl and in R v O'Neill [2001] NSWCCA 193; 122 A Crim R 510 forcible entries by police officers were held not to be "lawful" because of a failure to satisfy this condition.
Under these principles the requirement to provide information concerning the exercise of the power had to be complied with before or at the time of its exercise and a failure to do so meant the power was not lawfully exercised with the result that conduct that was otherwise tortious was not excused or justified in law.
In the second reading speech for the Law Enforcement (Powers and Responsibilities) Bill 2002 (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 17 September 2002 at 4849), it was accepted that police would not always be able to comply with the "generic" safeguards introduced by Pt 15 prior to the exercise of the powers to which they applied:
Part 15 of the bill incorporates generic safeguards applicable to the majority of powers exercised under the Act. When, for example, police exercise powers of entry, search and arrest, they must, before exercising the power, provide a person subject to the exercise of the power with evidence that the officer is a police officer, his or her name and place of duty; provide the reason for the exercise of the power; and warn that failure or refusal to comply with a request of the police officer in the exercise of the power may be an offence.
The bill recognises, however, that police may not always reasonably be able to comply with the safeguards prior to using their powers, such as in an emergency situation. Accordingly, the clause requires in such circumstances that the safeguards should be exercised as soon as reasonably practicable after the power has been exercised. Even in emergency situations, however, police should strive to comply with all safeguards set out in the bill.
It was also said of those safeguards and the powers of arrest conferred by what became Pt 8 of LEPRA:
The application of the safeguards contained in part 15 of the bill represents the [codification] of the common law requirement that persons must be told of the real reason for their arrest and a clarification of the additional requirements that officers must provide their name, place of duty and a warning.
Turning then to the language of s 201, in connection with the exercise of a power referred to in subs (3), subs (1) identifies information and the person to whom it must be provided. Subsection (2) states when subs (1) must be complied with. Where it is not practicable to do so before or at the time of exercise, subs(1) is to be complied with "as soon as is reasonably practicable after exercising the power". That reference in subs (2)(b) to "exercising the power" must be understood as being to a lawful exercise of the power, because it is only in that circumstance that the s 201(1) obligation is engaged. As Leeming JA observed in Poidevin v Semaan at [25] it is an "explicit premise of the section … that there will be some occasions when a compulsive power referred to in s 201(3) may be exercised without being preceded or accompanied by the provision of [the] information".
That construction of subs (2)(b) was adopted in Poidevin v Semaan. There Mr Semaan had resisted Sergeant Poidevin's attempts to seize his mobile phone and was charged with and convicted of resisting a police officer in the execution of his duty contrary to s 546C of the Crimes Act 1900 (NSW). Whether the offence charged was committed depended on whether the officer was acting in the lawful exercise of his duty at the time Mr Semaan resisted Sergeant Poidevin's attempts to seize the phone. An appeal under s 52 of the Crimes (Appeal and Review) Act 2001 (NSW) was upheld by Rothman J, including on the ground that the Crown had not proved that the exercise of the power of seizure was lawful because there was no evidence that Sergeant Poidevin had complied with s 201(1). A question in the appeal to this Court was whether, for there to have been a lawful exercise of the power to seize property at the time of arresting, the information had to have been provided, either before, at the time of or after the exercise. The Court answered that question in the negative. Where it is not practicable to provide the information before or at the time of exercising the power, there is a "lawful exercise … notwithstanding the absence at that time of the information required by s 201(1)": per Leeming JA at [25].
The language of s 201(2)(b) expressly provides that in a case like the present the information in s 201(1) must be provided after the exercise of the power. The lawfulness of that exercise is not expressed to be contingent on the subsequent provision of information where that information could not reasonably have been provided earlier. To construe the provision as having that consequence would make the lawfulness of the conduct of the police officers uncertain. That uncertainty could continue for some time, depending on subsequent events. (In Director of Public Prosecutions v Hawkins [1988] 1 WLR 1166, similar considerations informed the construction of s 28(3) of the Police and Criminal Evidence Act 1984 (UK), which concerned the provision of information in relation to the exercise of a power of arrest.)
The construction adopted reflects the position under the common law in relation to the provision of information as a condition of the lawful exercise of police powers of arrest and entry. In doing so it gives effect to the rationale for such a requirement, being that the person who is the subject of the exercise have the opportunity to respond, explain and, where appropriate, co-operate.
The argument made by the notice of contention should be rejected.
[2]
Proposed orders
The appeal should be allowed and orders otherwise made in accordance with the terms of the grant of leave. Accordingly, I propose the following orders:
Appeal allowed.
Set aside the verdict and judgment ordered by the District Court on 20 December 2013.
Order the appellant pay the respondent's costs of the appeal.
GLEESON JA: I agree with Meagher JA.
ADAMSON J: I agree with Meagher JA.
[3]
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: 03 June 2015
Parties
Applicant/Plaintiff:
State of NSW
Respondent/Defendant:
McCarthy
Legislation Cited (7)
Law Enforcement (Powers and Responsibilities) Amendment Act 2014(NSW)
Law Enforcement (Powers and Responsibilities) Amendment (Arrest without Warrant) Act 2013(NSW)
Solicitors:
Henry Davis York (Appellant)
Danny Eid Lawyers (Respondent)
File Number(s): 2014/83821
Decision under appeal Court or tribunal: District Court of NSW
Jurisdiction: Civil
Citation: McCarthy v State of New South Wales [2013] NSWDC 247
Date of Decision: 20 December 2013
Before: Mahony DCJ
File Number(s): 2013/49797
The proceeding at first instance
The respondent sued the Crown in right of the State of New South Wales alleging that it was vicariously liable for a trespass to land committed by the officers in the purported performance of their policing function: Law Reform (Vicarious Liability) Act 1983 (NSW), s 8(1). The State of New South Wales was correctly named as a party against whom those proceedings could be commenced: Crown Proceedings Act 1988 (NSW), s 5.
A police officer who enters private property without the consent of the person entitled to possession of it commits a trespass (and acts outside the course of their duty) unless the entering of the premises is authorised or excused by law: per Brennan J in Halliday v Nevill [1984] HCA 80; 155 CLR 1 at 10. In Kuru v New South Wales [2008] HCA 26; 236 CLR 1 at [43] the position is stated by the plurality (Gleeson CJ, Gummow, Kirby and Hayne JJ) slightly differently and so as to suggest that the absence of consent is not an element of the tort but a defence by way of justification for the wrong committed by the intentional entry onto the land of another. That difference is not relevant in this case because the absence of consent was admitted. Accordingly, the only issue at trial was whether the entry of the four officers was lawfully authorised. By its defence the State contended that they were so authorised, either pursuant to ss 9(1)(a) or (b) or 10(1) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) or the common law.
Sections 9 and 10 of LEPRA relevantly provide:
9 Power to enter in emergencies
(1) A police officer may enter premises if the police officer believes on reasonable grounds that:
(a) a breach of the peace is being or is likely to be committed and it is necessary to enter the premises immediately to end or prevent the breach of peace, or
(b) a person has suffered significant physical injury or there is imminent danger of significant physical injury to a person and it is necessary to enter the premises immediately to prevent further significant physical injury or significant physical injury to a person.
…
10 Power to enter to arrest or detain someone or execute warrant
(1) A police officer may enter and stay for a reasonable time on premises to arrest a person, or detain a person under an Act, or arrest a person named in a warrant.
(2) However, the police officer may enter a dwelling to arrest or detain a person only if the police officer believes on reasonable grounds that the person to be arrested or detained is in the dwelling.
(3) A police officer who enters premises under this section may search the premises for the person.
…
Although in its defence the State pleaded lawful entry by the exercise of the officers' common law power to enter to prevent a breach of the peace or an apprehended breach of the peace, its case before the primary judge was confined to reliance on ss 9 and 10: [2013] NSWDC 247 at [169]. That is understandable because s 9(1)(a) sought to codify and clarify the existing common law power to enter where a breach of the peace is being or is likely to be committed and it is necessary to enter immediately: Second Reading Speech, New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 17 September 2002 at 4846. Although ground 5 of appeal also asserts error in failing to find that the officers were lawfully authorised pursuant to that common law power, the appellant's submissions focused only on the statutory provisions. That makes it unnecessary to consider the scope of the common law right to enter in the face of an imminent breach of the peace and the considerations referred to in Kuru v New South Wales at [49] - [51].
Challenge to the finding as to absence of reasonable grounds for a belief that the respondent and child were inside
The appellant submits that the fact that there was no response to the police announcing their presence and the fact that there was no sign of movement inside the house did not mean that there ceased to be reasonable grounds for a belief that the respondent and the child were inside, and that the child was in imminent danger of physical injury. The respondent supports the primary judge's contrary conclusions. He submits that his Honour was justified in relying upon the reference in the radio transcript (Item No 1) to the offender having "decamped" as being "a pretty good explanation for an open door". It was also submitted that the fact that the door was open and that there was no response was a "very strange way for someone to hide inside a house" (tcpt 28/10/14, p 27, 30).
Three of the four officers explained why it was believed that the respondent was inside the house notwithstanding that the door was open. The primary judge does not deal with that evidence which is inconsistent with his challenged findings. In the passage extracted above, Sergeant Barakat described it as an "uncommon practice" for people living in the Bankstown area to leave their house wide open and that he thought this was an indication that the respondent was inside. In cross-examination Sergeant Barakat did not agree that it would be "unusual" for a person trying to hide from police to leave their front door open (tcpt 12/12/13, p 149).
Senior Constable Heard gave the following evidence, which was not challenged (tcpt 12/12/13, p 169 - 170):
Q. I've asked you about your concerns for the child. I take it that your concerns are still the same at this stage?
A. Yes, more. An open front door in a house in Birrong concerns me even more.
Q. Why does that concern you more?
A. Because that area is a known area for break and enters and I don't believe people in Birrong leave their doors open during the day.
Q. And did that have any effect on you?
A. Yes.
Q. What kind of - what --
A. I was more concerned for the welfare of the child and fearing that it was, he was still or at - was still with his father inside that house. There was no response.
Q. Why did that make you think he was inside the house?
A. Well I hadn't been, hadn't been updated with any other radio responses saying that he'd been located or found anywhere else so I still believed that he was inside that house with his child.
Constable Wakefield said that he believed that the respondent and child were inside the house (tcpt 13/12/13, p 255). It was not suggested to him in cross-examination that the absence of any response to someone saying the words "Police, police" or of "sounds or anything of the like" indicated that there was no one inside (see tcpt 13/12/13, p 259 - 260).
The primary judge concluded at [170] that the entry of the officers into the premises was not justified pursuant to ss 9 or 10 of LEPRA. He also held, no doubt so as to address fully the State's defence, that the entry was not justified at common law.
The respondent's argument in support of that conclusion included that none of these powers was lawfully exercised because of the failure of the officers to give the reason for its exercise in accordance with s 201(1) of LEPRA, as it was then in force. (That section is in Pt 15 of the Act. That Part as originally enacted was omitted and a new Pt 15 inserted by Sch 2 of the Law Enforcement (Powers and Responsibilities) Amendment Act 2014 (NSW). That new Part came into force on 1 November 2014.)
The relevant provisions of s 201 as in force in May 2010 are set out in [68] below. They provided that a police officer exercising specified powers, including a power of arrest or of entry, whether arising under the Act or the common law, must, if it is practicable to do so before or at the time of exercising the power, provide to the person who is the subject of the exercise of power, information including "the reason for the exercise of the power". If it is not practicable to do so at that time the information must be provided "as soon as is reasonably practicable after exercising the power": s 201(2)(b).
Whilst the respondent was being held at Bankstown Police Station on the evening of 6 May 2010, he was interviewed by Senior Constable Heard and Constable Wakefield, two of the four officers who entered his premises. At no time during that interview was he advised that they or any other officers had exercised any power to enter his premises an hour or so earlier. It was not controversial that by the time of that interview it was "reasonably practicable" for one of those officers to have informed him of the exercise of the power and of the reason for it. In view of s 201(4), which provides that where two or more officers are exercising a power only one officer present is required to comply with the section, it was accepted that this would have constituted compliance with s 201(1) in relation to the exercise of any power of entry by each of the four officers.
The respondent relied upon an alleged failure to comply with s 201(1) in two ways. First, it was submitted that non-compliance after the exercise of the power had the consequence that it was not exercised lawfully with the result that there was no statutory authority to engage in what was otherwise accepted to have been tortious conduct. In support of that argument reference was made to this Court's decision in Poidevin v Semaan [2013] NSWCA 334; 85 NSWLR 758. The primary judge rejected that argument. Secondly, it was submitted that the absence of compliance was consistent with the position being, as the respondent asserted, that the officers had not at the relevant time purported to exercise lawfully any power to enter.
Finally, Senior Constable Sands gave the following evidence (tcpt 16/12/13, p 282), which again was not challenged:
Q. What is the significance of that entry?
A. The fact that the house was unlocked and unsecured.
Q. And what was the significance of the house being unlocked and unsecured?
A. I believed somebody was home.
Q. Why did it make you believe someone was home?
A. Because most people lock their houses if they leave the home. If the house is unlocked, there's a reasonable cause that somebody would be home.
Q. Who did you believe was home there at that time?
A. The male occupant.
Q. Anyone else?
A. And the child.
The primary judge did not find that upon their arrival and before the police had announced their presence there were not reasonable grounds for their believing that the respondent was inside. The police radio record makes plain that the reason the police went to that address was because the respondent may have been there. At 16:58 (Item No 66) the officers were told that the respondent was not at the Powell Street address but that there was "another possible address he may be at". They were then given Larien Crescent as the address "he may be at" and told the source of that information was the "victim" (Item Nos 66, 70). The only reason for the police descending on that house was to find the respondent (and the child). The subsequent radio broadcasts of Senior Constable Sands (Item Nos 97, 103 and 112) requesting information as to the vehicle he "may be driving", and advising that "it looks like this place is pretty empty" and that "he's not here" show the purpose of the entry to have been to find the respondent.
The respondent relied on the statement that he had "decamped" (Item No 1), maintaining it meant that he was not at the Larien Crescent address. That statement was broadcast at 16:50 and having regard to the subsequent broadcasts (particularly Item Nos 8, 9, 31, 66, 70 and 72) was not to be understood as a reference to his having at some time left either of the Powell Street or Larien Crescent addresses. If the primary judge is to be understood to have found otherwise in [159], that finding is inconsistent with a fair reading of the radio transcript.
Contrary to the primary judge's findings at [160] and [165], in my view there were reasonable grounds for Sergeant Barakat and the other officers to believe at the time they arrived at Larien Crescent that the respondent and the child were inside. The radio broadcasts were sufficient to induce a belief that that was likely to be the fact. It was not necessary that they establish on the balance of probabilities that he was there: see George v Rockett [1990] HCA 26; 170 CLR 104 at 116 where the Court said belief "is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture".
The fact that there was no response or noise when the police announced their presence at the open door did not reasonably call into question the situation thought to be likely: George v Rockett at 112. The evidence of three of the officers (Sergeant Barakat, Senior Constable Heard and Senior Constable Sands) was that the fact that the door was open did not call into question their belief that someone was inside. That evidence was plausible and not seriously challenged. In my view the primary judge erred in not being satisfied that there were reasonable grounds for the officers to continue to believe that the respondent and child were inside the house.