Welsh and Anor v State of New South Wales

CATCHWORDS: Wrongful Arrest - Wrongful Detention

Briginshaw v Briginshaw (1938) 60 CLR 336 Brodie v Singleton Shire Council (2001) 206 CLR 512 CASES CITED: George v Rockett (1990) 170 CLR 104; 93 ALR 483 Houda v New South Wales [2005] NSWSC 1053 McArdle v Egan and Others (1933) (reported in 98 Local Government Review Reports 103) Zaravinos v New South Wales (2004) 62 NSWLR 58; 151 A Crim R 24

PARTIES: Steven Welsh and Peter Boney (Plaintiffs) State of New South Wales (Defendant)

COUNSEL: Mr. C. Evatt with Mr. C. Dibb and Ms. L. Evans (for the Plaintiff) Mr. M. Windsor (for the Defendant)

SOLICITORS: Mr. S. Friend (for the Plaintiff) Ms. F. Read (for the Defendant)

1 In Proceedings No. 2328 of 2004 in this Court the plaintiffs Steven Welsh and Peter Boney sue the State of New South Wales for the torts of wrongful arrest and wrongful detention, and Steven Welsh sues the State in negligence.

2 The actions of the police arise out of incidents which allegedly occurred in Walgett on 8 and 9 June 2001. My perusal of the court file indicates that the delays in the proceedings coming to a hearing arose out of actions taken, or not taken, by the parties, and not through any delay in the court administration. The hearing commenced before me on 25 September 2006; Mr. Evatt of counsel appeared for the plaintiffs and Mr. Windsor of counsel for the defendant.

3 The hearing continued over 26, 27 and 28 September, Mr. Evatt appearing on those dates with Mr. Dibb of counsel. On 6 November 2006, Mr. Friend, solicitor and Mr. Evatt appeared and a time table was ordered as to filing written submissions and the date 12 March 2007 fixed for oral addresses, the Court at that time having no earlier date available. On 12 March 2007 Mr. Evatt appeared with M/s Evans and Mr. Windsor also appeared. Judgment was reserved until 2pm, Wednesday 14 March 2007.

4 Using the written submissions, counsel in oral submissions agreed upon the following propositions: 1. If wrongful arrest is established, then so is false imprisonment. The plaintiffs are entitled to verdicts in their favour, and the Court is to assess damages; 2.If wrongful arrest is not established, there is no false imprisonment. The defendant is entitled to a verdict in its favour; 3.The plaintiffs do not contest the evidence adduced by the defendant as to the timing of the periods that the plaintiffs spent in custody. Accordingly the plaintiffs accept that the proof of false imprisonment depends solely upon the fact of wrongful arrest; 4.The burden of proof is upon the defendant to prove that the arrest was lawful, the test being that the arresting police officer had reasonable cause of suspicion that the plaintiffs had committed an offence; 5.The determination of whether the arresting officer had reasonable cause for suspicion is a question for the Judge; and 6.The burden of proof is upon the plaintiff Steven Welsh to prove that the police acted negligently in failing to ensure his protection.

5 It is well established law that a police officer's power of arrest is based upon his having reasonable grounds for suspicion that an offence has been committed by the person arrested (see the history set out in the judgment of Slesser L.J. in McArdle v Egan and Others a decision the English Court of appeal delivered on 19 October 1933 (and reported in 98 Local Government Review Reports 103 at 107).

6 In McArdle (supra) a chief constable appealed against a verdict that he had committed the tort of false arrest. The appeal was unanimously upheld by the three Lord Justices. Lord Wright made several relevant observations about the power and purposes of arrest. At p. 105 he said: 'It has to be remembered that police officers, in determining whether or not to arrest, are not finally to decide the guilt or innocence of the suspected person. Their functions are not judicial, but ministerial, and it may well be that, if they hesitate too long when they have a proper and sufficient ground of suspicion against an individual, they may lose an opportunity of arresting him, because in many cases steps have to be taken at once in order to preserve evidence…once there is what appears to be a reasonable suspicion against a particular individual, the police officer is not bound, as I understand the law, to hold his hand in order to make further enquiries if all that is involved is to make assurance doubly sure.'

As to the making of further enquiries, Slesser LJ said at 108: 'Now if, as I think, that evidence in itself of necessity gives a reasonable and probable cause for suspicion, I do not see the relevance of considering whether the chief constable may or may not further have corroborated that suspicion by further enquiries.'

7 In New South Wales the authority of a police officer to arrest is contained in s. 352 of the Crimes Act 1900('the Act'). Subsection 2 relevantly provides: 'any constable may without warrant apprehend, (a) any person whom the constable, with reasonable cause , suspects of having committed any (offence punishable, whether be on indictment, or on summary conviction, under any Act) (my emphasis and insertion), and take the person, any property found upon the person, before an authorised Justice to be dealt with according to law.'

8 It is important to note that, after arrest, there is a statutory provision for a period of time in detention 'to enable the investigation of the person's involvement in the commission of an offence (the Act, s. 354(a)) despite any requirement imposed by law to bring the person before the authorised Justice (the Act, s.354(b). Clearly the purpose of arrest is to bring the suspect before an authorised Justice, but the detention can subsequently provide a period of investigation - this is acknowledged by the New South Wales Court of Appeal in Zaravinos v New South Wales (2004) 62 NSWLR 58; 151 A Crim R 24 .

9 The determination of the issue of wrongful arrest is therefore an examination of the evidence adduced as to the bases upon which the Crown submits the police officer had reasonable cause to suspect together with the evidence relied upon by the plaintiffs to challenge that proposition.

10 I summarise Mr. Windsor's submissions: (a) there was a specific allegation of sexual assault made in a signed statement by a complainant to the police; (b) the complainant named one alleged assailant and said there was a second male involved; (c) a witness, who had resided with the complainant and who was with the complainant at the hospital, recognised the named person as a person in the general location at a relevant time, (d) and that he was in company with a second male, (e) she pointed out two males, including the named one, to the police officer. Also, (f) the arresting police officer had been given information that these males came from a different town and (g) that they were preparing to leave the town where the offence are alleged to have taken place.

11 Mr. Evatt submitted that there had been a different version of the incident given by the complainant to an attending nurse at the hospital, as recorded in the nurse's notes. However, as there was no evidence that the arresting police officer was specifically aware of this, the submission was not strenuously advanced. Having regard to the evidence of the discussion between the police officer and the nurse (transcript 27/09/06 p 107, ll 5-8) I find the officer was not aware of this version at the relevant time.

12 Submissions that Mr. Evatt relied upon were (i) that when arrested the two plaintiffs were proceeding in a direction away from the bus stop, suggestive that they were not in the act of leaving town, (ii) there was another male of the same name known to the police officer residing in the same town, (iii) the witness was not independent as she had 'an axe to grind' against the named male, (iv) this witness gave a version of events which conflicted with the complainant's statement, (v) the attending nurse's had recorded a version of the incident which was materially different from that given to the police, (vi) the arresting officer had attended the scene of the alleged sexual assault and his recorded observations were not consistent with the description of the incident as given by the complainant and (vii) there was the insertion of the word 'both' - in relation to the offenders - in the arresting officer's police notebook. Mr. Evatt relied mainly on (vi) for an attack upon the reasonableness of the police officer's cause for suspicion, because it only emerged during cross-examination, and on (vii) because it appeared the officer had altered his original note.

13 Inspector Gregory Spinks, then Sergeant Spinks was stationed in Walgett in June 2001. Walgett was a town with an official population then in excess of 3,000 people. He was informed that a call had been received by police from Walgett hospital that a ND was there, and that she was alleging she had been sexually assaulted. He attended the hospital and entered the room where ND appeared to be asleep. M/s Rose Hippett was seated in the room. Miss Hibbett recounted to the police officer a version of the incident which she said Nikita had given her (transcript 27/09/06 p. 105 ll 41-52).

14 There was cross examination of the Inspector as to a version of the incident given to ambulance officers by Rose Hippett, to the effect that the 'rape' took place in 'a house' (transcript 28/09/06 p. 147). This is an obvious discrepancy, but no issue has arisen as the Inspector's awareness - or rather lack of awareness - of this prior to the arrests, so that evidence can be put to one side.

15 Inspector Spinks, together with M/s Hippett, then left the hospital. M/s Hippett pointed out a vacant block of land as the place where the sexual assault had happened. In his evidence in chief the police officer detailed the driving with M/s Hippett, including her 'ducking down' at one point so she would not be seen in the police car, after she had pointed out two males saying 'That's them' (transcript 27/09/06 p. 109), and then their return to the hospital. He had a conversation with ND who informed him she wished to make a statement. He directed Constable McPherson-Connor to do this and left the room.

16 Shortly after Constable McPherson-Connor gave him access to her notebook in which she had recorded the statement signed by ND. For some reason, which I do not now recall, after discussion, this statement was admitted as Exhibit 3. I have compared this evidence with the contents of the version taken from ND and signed by her and I find there is no substantial conflict between the two versions, such as to cause mistrust as to the accuracy of ND's version.

17 As Exhibit 3 constitutes the primary source of information available to the police officer I set it out in full. It is recorded at the Hospital at 8.35am: 'I am 15 years old. Just after the sun went down on Friday the 8th of June 2001. I went for a drink at Margaret WINTERS house on the corner of Peel and Araluen Street, Walgett. While I was there I had a few drinks of beer and bourbon. I was there with Rose HIPPETT, Patty DIXON, Margaret WINTERS, Rodney WINTERS, Troy WARD, Clifford RUSSELL, Vivien FERNANDO, Peter WRIGHT, Trisha WRIGHT, Shaun DIXON, Terry PETERS, Anthony BONEY and Karen FLICK. After I had been as the party for a few hours I went for a walk by myself to get a stick of marijuana on Duff Street when I saw Steven Welsh and another boy. Steven asked me for a smoke but I didn't have one. I said what's your names?" Steven said, "Steven WELSH". The other boy didn't tell me his name. I went to a house to get the stick of marijuana but they didn't have any. I started to walk back to the party at Araluen (Araluen is crossed out) Margaret's house. I was walking down Araluen Street by myself and I saw Steve and the other boy walking behind me. I started running and then the boys grabbed me and dragged me to the paddock behind Margaret's place. I was screaming. Both the boys then had sex with me. They held me down and they both put their penises inside me, one after the other. I was yelling out asking them to stop. I never gave Steven or the other boy permission to have sex with me.'

18 The Inspector returned to the Walgett Police Station and was told by Detective Darcy that he had just been told that the two Welsh boys are trying to leave town'. He then commenced to look for them. In doing so he checked with the bus driver and was told, "no Steven or Peter Welsh were booked on the bus leaving Walgett".

19 The two males were then observed on Duff Street. Inspector Spinks asked one if he was Steven. Upon confirmation, he said, "We've received a complaint from a young person alleging you were both involved in sexually assaulting her earlier this morning". After this exchange a motor vehicle stopped and people on foot began to approach (transcript 27/09/06 page 117). As this evidence then deals with the negligence claim, I shall return to it later on. As other persons were arriving, the plaintiffs were informed by Inspector Spinks that they were under arrest and should get into the back of the police station wagon. Subsequent events are not relevant to the wrongful arrest issue.

20 Mr. Evatt's question, "Why not invite them into the police car and go somewhere else and have the chat?" was a rather unreasonable proposition, given the fact that the police were investigating the allegation of a sexual assault and there are well known procedures for the police to follow. The suggestion that 2 young aboriginal males, even though they were being "extremely co-operative" (transcript 28/09/06 p. 167 l.29) should, at Walgett (where M/s Hippett had already demonstrated her concern over being seen in a police car, by 'ducking down') enter a police car and "go somewhere and have the chat" seems to me to fly in the face of common sense and reality.

21 For the sake of completeness, I refer to the evidence of Inspector Spinks that during mid afternoon on 9 June 2004 ND informed the police of the withdrawal of her complaint. The two plaintiffs, who were still in police custody, were released (transcript 27/09/06 p. 137).

22 Towards the end of Inspector Spinks' evidence in chief, Mr. Windsor sought to tender this officer's notebook (transcript 27/09/06 p. 140-141) being notes made on 9 June 2001. Mr. Evatt called for the original because he was aware the word 'both' had been interpolated into the text of the notebook (transcript 27/09/06 p. 142). The address shown for ND was 87 Duff Street, then the same as that of Rose Hippett. A copy of the document was admitted as Exhibit G and the relevant unamended part is in the following terms: 'I said, "Stephen Welsh is it" POI 1 said "Yes" I said "We've received a complaint from a young person alleging you sexually assaulted her earlier this morning."

23 The word 'both' with an asterisk underneath it has been written in between the words 'you' and 'sexually'. The witness stated as best he recollected, that he had inserted the word at the end of the day, and he said there had been no particular reason for leaving it out (transcript 28/09/06 page 169).

24 The evidence was discussed with Mr. Evatt during oral submissions. Whilst I expressed some disquiet over the officer's answers (transcript 28/09/06 p.170 ll. 51-53) for it seemed to me that the witness was endeavouring to justify his position on a poor basis (see for example his evidence "…I asked them their names…" (transcript 28/09/06 p. 167, l.17 - which is not recorded in the notebook), nevertheless I indicated to Mr. Evatt that I saw no problem with the interlineation, as it accorded with the original complaint. Had it been otherwise, of course, it may have been a matter of concern. Although Mr. Evatt had raised the point in cross-examination, counsel did not actually put any proposition critical of what the police officer did, to him. In submissions Mr. Evatt did not argue the matter further.

25 Mr. Evatt's submission that the knowledge of the existence of another Steven Welsh who lived in Walgett similarly was not pressed after some discussion during oral submissions. Some evidence was adduced from the plaintiff Welsh that this other Steven Welsh was his cousin (transcript 26/09/06. p. 60). The evidence as to the age of this Steven Welsh was not clear. However it was said that he was in Walgett at the time. As Inspector Spinks made the point he did not know this later piece of information (transcript 28/09/06 p. 159 l.45), I place no weight upon the suggestion that he ought to have enquired about this other person before the plaintiffs' arrest took place.

26 What is not recorded in Inspector Spink's notebook, but otherwise entered in the COPS recording system by him is his attendance at 'the crime scene'. When M/s Hippett was in the police car she had pointed out a vacant block of land, which she had said was where the incident had occurred. With no other information as to location, the police officer apparently inspected that land and then recorded: 'An examination of the crime scene failed to indicate any obvious signs of struggle. The area is black soil and appears undisturbed.'

27 Mr. Evatt argued that there should have been signs of struggle. Mr. Windsor argued that ND has said she was 'dragged TO the paddock', and not 'IN the paddock' (my emphasis). Having regard to the evidence that she was dragged against her will, that she was screaming and that she was held down, it would be reasonable to conclude that there would be some signs of a struggle on a black soil surface - indeed it is reasonable to conclude that is why Inspector Spinks himself went there.

28 Counsel for the plaintiffs relied heavily upon this evidence as a piece of information known to the arresting officer and which should have exercised his mind that more investigation was necessary before embarking upon an arrest. The submission is that the addition of this piece of information reduces the reasonable cause for suspicion.

29 Against this, counsel for the defendant submitted that the information available to the officer, encapsulated in his evidence extracted hereunder, was sufficient to provide a reasonable cause for suspicion.

30 Inspector Spinks said (transcript 27/09/06 p. 113, ll.19 - 24 and 25 - 31): "I then looked at what evidence I had before me, being a statement of complaint from the sexual assault (sic) with the names of the alleged offenders, a statement of first complaint to Rose Hippett..the fact the statement of the first complaint also included the names of the alleged offenders with the location of where the incident occurred, being in the general proximity of 87 Duff Street, the rear of 87 Duff Street and the rear of Araluen Street, that general proximity to where I was told Steven and Peter Welsh had been the previous evening."

31 Mr. Windsor submitted that the Court might be assisted by the definition of suspicion as set out in The Macquarie Dictionary, 2nd Revision; 1. the act of suspecting: imagination of the existence of guilt, fault, falsity, or the like, on slight evidence or without evidence…. 5. imagination of anything to be the case or to be likely; a vague notion of something.

32 Neither counsel took the Court to any legal authority defining or explaining what 'suspicion' is, and as I wish to deliver judgment promptly in this otherwise old matter, I have consulted Butterworth's Australian Legal Dictionary (1997) which states of 'suspicion': 'A state of conjecture or surmise where proof is lacking; a positive feeling of apprehension or mistrust, amounting to a slight opinion, but without sufficient evidence: George v Rockett (1990) 170 CLR 104; 93 ALR 483…The facts that can reasonably ground a suspicion may be quite insufficient to reasonably ground a belief, yet some factual basis for the suspicion must be shown: George v Rockett .'

33 In considering whether the defendant has proved 'a reasonable cause for suspicion', Mr. Evatt submitted that the Court should adopt that test of satisfaction on the balance of probabilities as discussed by the High court of Australia in Briginshaw v Briginshaw (1938) 60 CLR 336. In a case dealing with, inter alia, false imprisonment, Cooper AJ in the Supreme Court of New South Wales in Houda v New South Wales [2005] NSWSC 1053, said (paragraph 288); 'Accordingly where in this judgment it is stated that the court is satisfied comfortably on the probabilities it should be taken that the higher standard in Briginshaw's case is in fact being applied.'

34 As to the submission that the arresting officer had been informed the two alleged offenders were seeking to leave Walgett, the court finds that such piece of information had not been supported by either enquiry or observation. Whilst the plaintiffs were not located in any building, but were out on the street, they were not proceeding in a manner that supported any fleeing from a crime scene. The Court finds that this was not a piece of information that could be used to form a reasonable suspicion.

35 Taking into account the qualification in the preceding paragraph, nevertheless from the evidence adduced from Inspector Spinks (paragraph 30), the propositions advanced by Mr. Windsor (paragraph 9) and the definitions (paragraphs 31 and 32), the Court finds that it is comfortably satisfied that the defendant has proved there existed, at the time of the arrest of the plaintiffs, a reasonable cause for suspicion of their having committed the offence of sexual assault. In those circumstances the plaintiffs' claims for wrongful arrest and false imprisonment fail.

36 Although this claim was the subject of written submissions by the defendant it was not addressed in submissions either written or oral by Mr. Evatt. I therefore do not propose to deal with this claim in great detail.

37 Without going to authority, it seems to me that once a police officer seeks to make enquiries of a person in public, and the possibility of injury being occasioned to that person by a member or members of the public present, there arises a duty of care to ensure the safety of the person being questioned. That duty has to be assessed in accordance with the parameters identified by the High Court of Australia in Brodie v Singleton Shire Council (2001) 206 CLR 512. As Mr. Windsor submitted, they include the magnitude of the risk, the degree of probability of its occurrence, and matters of expense, difficulty and inconvenience in alleviating the danger.

38 In this matter there was evidence of the assembling of a number of persons around the plaintiffs. Although the evidence of Inspector Spinks was to the effect that these people arrived after he had stopped to speak to the plaintiffs (transcript 27/09/06 p. 117), according to Mr. Boney, a crowd of some 30 people was all around himself and Mr. Welsh at the time the police arrived. On the other hand, Mr. Welsh described there being 'a few' who had 'surrounded' them at the time of arrest (transcript 26/09/06 p. 61, ll. 37-46).

39 There were only two police officers present at the time. On any view of the evidence they were outnumbered. They endeavoured to protect the plaintiffs by ordering them into the back of the police station wagon, but the door required unlocking. The 'king hit' to Mr. Welsh came at the time one officer was attempting to unlock the door. The Court is unable to find that there was any breach of duty by the defendant in failing to prevent Mr. Welsh being hit in those circumstances. That claim also fails.

40 The consequence of the findings is that there is a verdict for the defendant and unless there be any submissions to the contrary, an order that the plaintiffs pay the defendant's costs of and incidental to these proceedings on the usual basis.

16/04/2007 - Minors name replaced ND - Paragraph(s) 13, 15, 16, 21, 22 & 27

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.