Wilson v State of New South Wales [2010] NSWCA 333 | Case summary

Wilson v State of New South Wales [2010] NSWCA 333 | Case summary | Zoe

Outline of facts 5 The proceedings arise out of events that commenced on Wednesday 25 February 2004. On that day at about 9am, two sheriff's officers Mr Davies and Ms Lomas went to the home of Mr and Mrs Wilson in Leonay with a Property Seizure Order (made under s 72 of the Fines Act 1996) relating to Mr Wilson's unpaid traffic fines of over $2,000. 6 The officers went on to the land, and went upstairs to a covered verandah leading to the front door. There was a conversation between the officers and the Wilsons through a screen door, following which the screen door was opened by Mr Wilson and there was an episode on the verandah that was the subject of conflicting evidence. Following this episode, Mr Wilson went back inside the house, and the officers went to their car in the street and arranged for the Police to be called. 7 Soon after, Mr Wilson came out of the house and got into a BMW car which was on the driveway in front of the house. Mr Davies went on to the driveway and removed the keys from the car, following which there was a physical altercation between Mr Davies and Mr Wilson. During this altercation, Ms Lomas came on to the driveway and sprayed Mr Wilson with capsicum spray. 8 Various other persons then arrived at the scene, including police officers, other sheriff's officers, and ambulance officers. Mr Davies and Mr Wilson were taken to hospital in separate ambulances. 9 Then, the recently-arrived sheriff's officers went on to the verandah and had a conversation with Mrs Wilson at the front door. The sheriff's officers then entered the house and seized and took away certain goods pursuant to the Property Seizure Order. 10 Next day, 26 February 2004, Mrs Wilson used a credit card to pay the outstanding traffic fines; but she was unsuccessful then in an attempt to recover the goods, which were returned on about 16 March 2004. 11 On 28 February 2004 at about 7.50pm Mr and Mrs Wilson attended Penrith Police Station, where Senior Constable Janovsky and another police officer formally interviewed Mr Wilson by way of an ERISP, between about 8.30pm and 10.30pm. Mr Wilson left the police station just after midnight. 12 About three weeks later, Senior Constable Janovsky instituted criminal charges against Mr Wilson, alleging that he assaulted Mr Davies on 25 February 2004. The charges were heard in the Local Court, and were dismissed on 9 November 2004. 13 There was subsequently a police investigation into a complaint by Mr Wilson concerning the events of 25 - 28 February 2004, during which Senior Constable Janovsky was, on 14 February 2006, interviewed by Inspector Bisset.

Officer Davies had grabbed Mr Wilson by the shirt, around the collar region, and managed to force him back towards the door. He was able to create some space between them and pull out his OC (capsicum) spray, which he pointed at Mr Wilson and said, "Step back, sir, I don't want to use this, step back". Mrs Wilson, who was still at the screen door, said, "David", but still Mr Wilson did not move away. Officer Lomas also pulled out her OC spray and said to Mr Wilson, "Step back, sir" whereupon he turned around and went inside. Mr Wilson then said, "You've assaulted me", Officer Davies replied, "No sir, you assaulted me and you're under arrest." Mr Wilson then went further into the house. Both officers said he was so agitated they feared he may have been going to get a knife or other weapon to attack them. Officer Davies then took out his extendable baton, looked at Officer Lomas and said, "Let's go". The officers then proceeded to leave the premises. As they did so, they heard the doors of the house being shut and locked, and Officer Davies made a radio call ("Code 18") to alert his base that there had been a disturbance and to stand by. They went to their car in the street where Officer Davies contacted his Officer in Charge, Inspector Butler, and reported to him what had occurred, as a result of which the Police were called. The two officers then proceeded to wait for the Police outside the premises at their car. 21 The primary judge found that the officers did not enter any part of the premises used only for residential purposes, and that the restrictions imposed by s 76(2) of the Fines Act were not applicable. He further held that at common law they were entitled to go to the front door pursuant to an implied licence; that this implied licence was not withdrawn (because Mrs Wilson did not ask the officers to leave, and Mr Wilson disavowed ownership and thus disavowed authority to revoke the licence); and that in any event Mr Wilson's immediate attack left the officers no time to withdraw. Accordingly, he rejected claim (1). 22 The primary judge found that the assaults alleged to have occurred on the verandah by Mr Wilson did not occur, and accordingly he rejected claim (2). 23 The primary judge found that Mr Wilson assaulted Mr Davies on the verandah, and that Mr Davies was entitled to arrest Mr Wilson immediately thereafter; that Mr Davies then informed Mr Wilson that he was under arrest and informed him of the reason for the arrest; but that there was not a sufficient act of arrest, because there was neither touching nor submission. He further held that, if Mr Davies had effected an arrest, it would not have been wrongful. 24 In respect of claims (3), (4) and (5), the primary judge made the following findings of fact: 56. While waiting at their car for the arrival of the Police, Officers Davies and Lomas saw Mr Wilson exit the front door of the house and proceed down the outside stairs to a BMW car in the lower driveway. He had changed his clothes. Officer Davies called out to him, "Sir, stay where you are, you are under arrest. The Police are on their way." Mr Wilson, however, proceeded to the BMW, got into the driver's seat, placed the keys in the ignition and started the engine. Officer Davies then re-entered the premises and proceeded up the driveway towards the BMW, saying, "Sir, you are not going anywhere. The Police are on their way. You can't drive, you're suspended."

[65]

Both Officer Davies and Mr Wilson were taken away to hospital, in separate ambulances. 25 The primary judge found that the second entry by Mr Davies on to the land was not made for the purpose of executing the Property Seizure Order (and so was not authorised under s 76(1) of the Fines Act, and could not be justified at common law by that legitimate purpose); and that since the arrest of Mr Wilson was not then authorised by s 352 of the Crimes Act (because it would not be "immediately after" the commission of the assault), the entry could not be justified as being for that legitimate purpose; and that the purpose of preventing Mr Wilson driving while his licence was suspended did not justify entry on to the land. Accordingly, he found claim (3) established, as against Mr Davies. 26 As regards Ms Lomas, the primary judge found she did not re-enter the premises until after Mr Wilson had assaulted Mr Davies at the car, and that her entry was in order to help and protect Mr Davies and did not constitute trespass. 27 The primary judge found that the acts of Mr Davies (attempting to handcuff Mr Wilson and one punch) were in self-defence, involving no more force than necessary; and that the use of capsicum was a use of no more force than necessary to help subdue Mr Wilson; and accordingly he dismissed claim (4). 28 As regards claim (5), the primary judge held that the arrest and detention of Mr Wilson after he had assaulted Mr Davies was lawful; but that removal of the keys from the car by Mr Davies gave rise to an unlawful detention and false imprisonment, albeit of short duration. To that extent, the primary judge upheld claim (5) against Mr Davies. 29 In respect of claims (6) and (7), the primary judge made the following findings of fact: 99. Following the events on the driveway and the arrival of various Police officers and other Sheriff's officers, various conversations took place between the protagonists and the newly arrived officers. One of these conversations was between Mr Wilson and Inspector Fox, a senior Police officer. There was no criticism of his evidence and he was clearly a reliable witness. He spoke to Mr Wilson about the Sheriff's officers and the execution of the Property Seizure Order. As to the cars in the driveways of the premises, Mr Wilson disavowed ownership. As to the house and its contents, he also disavowed ownership. Inspector Fox gave this account (T 698): Q. And he responded with, "It's not my house. Nothing in there belongs to me. My wife owns it all."? A. That's correct.

(4) He made a finding that the conduct of Mr Wilson on the verandah amounted to resisting arrest (judgment [52]), when this was not pleaded or otherwise asserted by the State, and the unchallenged evidence was that Mr Davies directed Mr Wilson back into the house (judgment [51]). 41 As regards (1), it is necessary to consider this, where it arises, in connection with other grounds of appeal. 42 As regards (2), the primary judge did give reasons for his adverse credit finding in relation to Mrs Wilson: [12] As will also emerge in the course of these Reasons, the evidence of Mrs Wilson was self-evidently partisan and tailored to conveniently accommodate the version of events sought to be established by Mr Wilson. She effectively conceded as much in cross-examination. There were so many instances of prevarication on her part that I am unable to accept her evidence on any disputed matter unless independently supported or otherwise corroborated. 43 It was submitted that he did not give reasons as foreshadowed in the first sentence; but there were places where he did do so, for example in judgment [102] and [103]. Further, concessions as asserted and instances of prevarication appear plainly from the transcript. 44 For example, Mrs Wilson asserted she had never seen Mr Wilson violent, and shortly afterwards, when referred to a particular incident, conceded she had seen him violent (Black 461); and she admitted (Black 422 - 5) to agreeing to have forwarded in her name to a member of parliament a letter making the assertions that "sheriff's officers forced their way into my house and committed larceny" which were not true; that she told the officers that all the goods in the house were hers, which was not true; and that the sheriff's officers did not know her husband was the correct David Wilson or if they were at the right premises, when she knew that the fines in respect of which enforcement was to be levied were fines which her husband had not paid. 45 As regards (3), there was an error by the primary judge in that the particular passage of the statement by Ms Lomas had been excluded; but in my opinion, there is no reasonable possibility that this error affected the primary judge's decision on credit or otherwise. 46 As regards (4), the order of events as found by the primary judge was that Mr Wilson assaulted Mr Davies; Mr Davies said, "step back Sir"; Mr Wilson then turned round and went inside; Mr Davies said, "you assaulted me and you're under arrest"; and then Mr Wilson went further into the house. In my opinion, this did not amount to Mr Davies directing Mr Wilson back into the house; and the action of Mr Wilson in not submitting to the arrest is not inappropriately described as resisting arrest. The fact that this was not pleaded as such is in my opinion immaterial; and the circumstance that an expression such as "not submitting to arrest" might have been more apposite than "resisting arrest" is also immaterial. 47 Accordingly, these grounds do not succeed as independent grounds. The question whether adverse credit findings were misused will be considered where it arises in relation to other grounds.

(5) The primary judge erred in finding that Mr Wilson was not entitled to remove Mr Davies from the verandah, and in not finding an assault by Mr Davies on Mr Wilson at this time, by his pulling out a canister of capsicum spray and pointing it at Mr Wilson. 49 As regards (1), (2) and (4), consistently with submissions made for Mr Wilson, it was appropriate that the primary judge not automatically apply credibility findings to every issue of fact, but rather consider all evidence concerning each relevant fact and come to a conclusion based on all the evidence, albeit aided by his credibility findings. This is what the primary judge did here. He gave a pertinent reason for not being satisfied that Mr Wilson at any time told the officers to get off "my" property; and there is no reason to hold he was in error in doing so. 50 Also, in my opinion, the formulation relied on by Mr Wilson, namely that once his or her licence to be on a property is revoked a person must leave as soon as is reasonably practicable, should not be considered as displacing the principle adopted by Dixon J in Cowell v Rosehill Racecourse Co Limited [1937] HCA 17; (1937) 56 CLR 605 at 631 that a "licensee does not become a trespasser until he has received notice that the licence is countermanded and until a reasonable time has elapsed in which he may withdraw from the land and remove whatever property he has brought in pursuance of the licence". That is, I would not understand the formulation relied on by Mr Wilson as imposing any different and more stringent requirement than that adopted by Dixon J. 51 Thus, in my opinion, the licensee must first have notice that the licence is revoked; and consistently with the general legal position in relation to the giving of notice, that requires a communication to the licensee, which the licensee understands as a revocation of the licence or which a reasonable person in the position of the licensee would understand as a revocation of the licence. This means in turn that the communication must be such that the licensee did understand it, or a reasonable person in the position of the licensee would understand it, both as coming from a person with authority to revoke the licence and as having such content as to constitute such a revocation. If the communication comes from a person apparently in occupation of the land in question, this will generally be enough to convey to a licensee or to a reasonable person in the position of the licensee that it is from a person with the authority to revoke the licence. But in some cases, more particular facts may need to be considered. 52 In the present case, on the facts found by the primary judge, the communications from Mr Wilson were such as to convey to the officers, and/or to a reasonable person in their position, that Mrs Wilson was the owner of the property and that Mr Wilson was not; and there was no communication from Mrs Wilson suggesting that the implied licence was revoked by her. On the contrary, by not acceding to Mr Wilson's request that she revoke the licence, Mrs Wilson conveyed to the officers that, for her part, the licence was not revoked but rather continued. In my opinion, the communications from Mr Wilson were such as to convey to the officers, or to a reasonable person in their position, that he did not have authority to revoke their implied licence; and accordingly, the licence was not revoked. 53 I would further comment that, where there is an implied licence from co-owners, the question whether this can be revoked by one of them is a difficult one: see State of New South Wales v Koumdjiev [2005] NSWCA 247; (2005) 63 NSWLR 353. In that case, I (with the concurrence of Beazley JA and Hislop J) expressed at [51] a tentative view that an implied licence granted by all tenants-in-common of the common property of a block of units to police to come to the front door of the block could not be revoked by one tenant-in-common. It is not necessary in this case to consider whether that view is correct, or whether it would apply in the facts of this case. 54 As regards (3), it was pertinent for the primary judge to refer to s 76 of the Fines Act, because Mr Wilson had argued that it displaced the implied licence at general law, and that by going on to the verandah the officer had gone beyond what was authorised by s 76. The primary judge rejected both contentions; and while it is correct to say the State did not rely on s 76, this does not matter, because on the primary judge's findings the implied licence at general law meant that the officers were not trespassers on the verandah. 55 As regards (5), on the facts as found by the primary judge, Mr Wilson was not entitled to remove Mr Davies, but rather assaulted him without justification. The pulling out of a can of capsicum spray was in those circumstances no more than reasonable self-defence. 56 For those reasons, I would reject grounds of appeal (4) to (9).

Lawfulness of re-entry (cross-appeal) 57 It was submitted for the State that Mr Davies had lawfully arrested Mr Wilson on the verandah, and was entitled to re-enter the property to effect the detention of Mr Wilson pursuant to that arrest, or (in the alternative) that there was a process of lawful arrest of Mr Wilson commenced on the verandah, and Mr Davies was entitled to re-enter the property to complete that process. 58 It was submitted for Mr Wilson that Mr Davies had not arrested Mr Wilson on the verandah, because there had not been either an act of arrest (such as touching) or submission by Mr Wilson, referring to Hatzinikolaou v Snape (1989) 97 FLR 86; and that the occasion of the second entry was not "immediately after" the alleged assault by Mr Wilson, and so could not be justified by s 352(1)(a) of the Crimes Act. 59 In my opinion, there was not a completed arrest of Mr Wilson on the verandah. The requirements for an arrest are (1) communication of intention to make an arrest, and (2) a sufficient act of arrest or submission. 60 As regards (1), if the arrest is to be lawful, this should normally include informing the person that he or she is arrested and informing the person of the reason for the arrest: Christie v Leachinsky [1947] AC 573 at 587 - 593. However, this is not necessary if the circumstances make these things obvious, or if the person arrested prevents it: Christie at 587 - 593, R v Hoar [1965] NSWR 1167, Woodley v Boyd [2001] NSWCA 35 at [38]. 61 As regards (2), a touching on the shoulder can be a sufficient act of arrest, and even this is not necessary if the arrested person submits: Alderson v Booth [1969] 2 QB 216 at 220, Hatzinikolaou, Woodley at [38]. 62 In this case, on the findings of the primary judge, on the verandah Mr Davies clearly conveyed to Mr Wilson his intention to arrest him and the reason for the arrest, telling him "you assaulted me and you're under arrest". However, by this time Mr Wilson was inside the house. There was no physical contact that could amount to an act of arrest, and no submission. Rather, Mr Wilson then went further inside the house. In my opinion, in the absence of a physical act of arrest and of submission, there was not an arrest completed at this stage. 63 However, a question arises whether what happened could be considered as the commencement of a process of arrest immediately after the commission of the offence, which could later be completed. The Court was not referred to any authority directly on this point. 64 In my opinion, if following a sufficient communication of intention to arrest and of the reason for arrest, the person in question flees, the person attempting to make the arrest can pursue that person and can complete the arrest if after a time the person attempting to make the arrest catches up with the other person, even if the time of that completion could not be considered to be immediately after the offence: Hanway v Boultbee (1830) 1 Mood & R 15; 174 ER 6, R v Howarth (1828) 1 Mood CC 207; 168 ER 1243, Griffith v Taylor (1876) 2 CPD 194, R v Jones (EJM) [1970] 1 WLR 211; and see also Sakhuja v Allen [1973] AC 152, Shackleton v Chief Constable of Lancashire Constabulary [2001] EWCA Civ 1975. 65 In Jones (EJM) at 216, Sachs LJ delivering the judgment of the Court of Appeal said this: In that behalf Mr. Williams, moreover, cogently referred us to a line of decisions in relation to powers of arrest and to the rule, often referred to as that of fresh pursuit, which has been part of the law of this country for well over a century. For instance, in Hanway v. Boultbee (1830) 4 C. & P. 350 and again in Griffith v. Taylor (1876) 2 C.P.D. 194 the courts had to consider powers of arrest given by statutes which contained provisions worded even more strictly than the above section 30. The relevant words were in each case "Any person found committing any offence punishable… by virtue of this Act… may be immediately apprehended without warrant" (cf. Larceny Act, 1861, s. 103). The courts in each instance insisted on giving a reasonable construction to the statutes (see the judgment of Lord Cockburn C.J. in Griffith v. Taylor , 2 C.P.D. 194, 202) although "immediately" was such a strong word. In one case [ Hanway v. Boultbee , 4 C. & P. 350] an arrest a mile from the scene of offence was upheld. In the earliest case, Rex v. Howarth (1828) 1 Moody C.C. 207, the judges spoke of all the material matters being part of "one transaction" - a convenient phrase. 66 The situation in this case is not dissimilar. There was sufficient communication of the intention to arrest, and Mr Wilson did not submit but went further into the house. The decision of Mr Davies not to pursue Mr Wilson into the house was a reasonable one; and he did not abandon the process of arrest, but rather went and waited in his car and arranged for police to be called. When Mr Davies saw Mr Wilson enter his car on the driveway, he went back on the property, plainly with a view to preventing Mr Wilson leaving. On the findings of the primary judge, Mr Davies called out to Mr Wilson that he was under arrest before he got into the car on this occasion, and also said this again immediately after Mr Davies had taken the keys from the car. In my opinion, the principal purpose of Mr Davies entering the property on this occasion was to give effect to the process of arrest that had commenced on the verandah. In my opinion, the implied licence to the officers to enter the front yard of the property for legitimate purposes had not been revoked; so that, if giving effect to a process of arrest that had commenced on the verandah was a legitimate purpose, then this was not a trespass: Halliday v Nevill. 67 In my opinion, the analogy with cases such as Hanway and Howarth is sound. Mr Wilson knew Mr Davies intended to arrest him, as Mr Davies was then entitled to do. Mr Wilson made it impracticable for Mr Davies to complete the arrest by not submitting and retreating further into the house. Mr Davies did not abandon the arrest, but was waiting outside the house for the police. What he did when Mr Wilson emerged from the house is in my opinion properly considered a continuation and completion of a continuous process of arrest that had commenced a little earlier on the verandah, and had not been terminated. It was the completion of an arrest that had commenced immediately after the commission of the offence but had not been completed because of the conduct of Mr Wilson, was not discontinued, and was concluded at the first opportunity when Mr Wilson re-emerged from the house. In my opinion, this whole process can be considered as "one transaction" (see Howarth, Jones (EJM) at 216, Sakhuja at 166, Shackleton at [20]); and it was as a whole justified as an arrest taking place "immediately after" the commission of the offence, within s 352. 68 In my opinion, it follows that the re-entry by Mr Davies onto the land was not a trespass; and also that the removal of the keys from the car did not amount to unlawful detention and false imprisonment. It is not necessary to consider whether removal of the keys from the car, without otherwise confining Mr Wilson, could in any event amount to unlawful detention or false imprisonment. 69 These questions raised by the application to cross-appeal are of some significance, and although the application was late (by reason of non-advertence to the necessity for leave), there is no suggestion of any prejudice from this. There is a very close connection between the issues raised by the appeal and by the proposed cross-appeal. In my opinion, leave to cross-appeal should be granted, and the cross-appeal should succeed.

Events at the car (grounds 11 - 12) 70 It was submitted for Mr Wilson that there were significant conflicts in the evidence for the State concerning what happened at the car, and that the reasoning of the primary judge was vitiated by his failure to address these conflicts. In particular, the version of Mr Davies, asserting that Mr Wilson had punched him while still seated in the car and thereby propelled him back, was accepted by the primary judge, even though this was contradicted by a contemporary statement made by Mr Davies to Constable Small (Blue 630) that Mr Wilson hit him with the car door, and by the evidence of Ms Lomas that Mr Davies was first hit by Mr Wilson after Mr Wilson had got out of the car (Black 742); and the primary judge did not address that conflict. 71 It was submitted for Mr Wilson that the primary judge erred in finding that the assaults by Mr Davies and Ms Lomas on Mr Wilson were justified as self-defence, when self-defence was not raised by the State (as distinct from lawful arrest, which was raised); and when Mr Wilson was entitled to use reasonable force to defend his land against trespass and to defend his person against false imprisonment. In circumstances where the force actually used by Mr Wilson did not succeed either in removing the trespasses or in preventing his arrest, it could not be said that this force was excessive. 72 In my opinion, the conflict referred to was not such as required explicit consideration by the primary judge, in accordance with the principles stated in Mifsud v Campbell (1991) 21 NSWLR 725. Mr Davies had no recollection of speaking to Constable Small on the day, Mr Davies said he was in a lot of duress at the time and was clearer later as to what happened (Black 681-2), and Constable Small did not give evidence supporting the accuracy of his record; and in those circumstances, in my opinion, the primary judge was not required to accord substantial weight to Constable Small's statement. Ms Lomas was in the street at the relevant time, and her view of what happened to Mr Davies at the car door must have been obscured by Mr Davies (who was facing away from the street, on the driver's side of the car, which was also facing away from the street); so that the primary judge could reasonably give greater weight to the evidence of Mr Davies. As put for the State, the primary judge could reasonably regard Mr Davies as giving substantially accurate evidence of a punch as he felt it, while at the same time regarding Ms Lomas as giving substantially accurate evidence of events as she saw them. Further, all three accounts were consistent in identifying Mr Wilson as the aggressor on this occasion, which was the most significant matter. 73 There appears to be no ground of appeal raising the point about self-defence; and in any event, the primary judge treated self-defence as available (Black 1277). Further, although the finding of justification was made by the primary judge in relation to Mr Davies in terms of self-defence, the finding in relation to Ms Lomas (that she used no more force than necessary to subdue Mr Wilson) is applicable equally to the effectation of a lawful arrest. In my opinion, the factual findings made in respect of Mr Davies equally support a finding of reasonable force to effect or maintain a lawful arrest. 74 The submission that Mr Wilson was entitled to use reasonable force to defend his land and his person is irrelevant, on my view that Mr Davies did not trespass and was entitled to complete an arrest commenced on the verandah. In any event, the primary judge did not find that what Mr Wilson was trying to do at this time was to use reasonable force to remove a trespasser or to defend himself from unlawful arrest: on the findings of the primary judge, Mr Wilson was attacking Mr Davies by throwing punches, not attempting to remove him from the land. 75 I would reject grounds 11 and 12.

(6) in disregarding the admission by Senior Constable Janovsky that he had arrested Mr Wilson (Blue 546 - 8), on the basis that only his interview of Sergeant Bisset had used the word arrest (judgment [151]), whereas Senior Constable Janovsky himself said, "I arrested Wilson". 82 In assessing these submissions, it is to be kept in mind that Mr Wilson attended Penrith Police Station voluntarily to give his version of events, apparently having an expectation that he would be considered as being the victim of assault by the sheriff's officers. The venue was Penrith Police Station, because there was a recording facility for an ERISP there, but not at St Mary's Police Station. That facility was within the secure section of Penrith Police Station. 83 I accept the submission that Sergeant Piet's evidence was not admitted as expert evidence, and that the primary judge could legitimately rely on it only to the extent that it was probative as non-expert evidence. However, where the existence or otherwise of a practice is relevant to an issue in a case, non-expert evidence can be given concerning the existence of the practice by a person in a position to do so. In my opinion that was the nature of Sergeant Piet's evidence; and although the primary judge referred to him as "an expert in relation to custody management", in my opinion this did not mean that the primary judge was treating his evidence as expert evidence, as distinct from evidence of a person familiar with a relevant practice. In my opinion, the primary judge could and did legitimately draw from Sergeant Piet's evidence (along with that of Senior Constable Janovsky: Black 763 - 764) that, at relevant times, when persons were interviewed in the secure area of a police station, documentation required by Part 10A of the Crimes Act was created, referring to arrest, whether or not persons had been arrested and whether or not they were free to leave. 84 That practice drew some support from s 355(2) of the Crimes Act, which made it clear that the rights given by Part 10A extended to persons who had not been arrested, when any one of the three alternatives mentioned in that subsection was satisfied. 85 I accept that the evidence that Sergeant Brown was on permanent stress leave did not establish that he was unable to give evidence; but in circumstances where Mr Wilson did not give evidence that words of arrest were spoken to him by Sergeant Brown or in the presence of Sergeant Brown, in my opinion the only possible relevance of this would be to support an inference, which I refer to below, that Sergeant Brown read Exhibit 9 to Mr Wilson, including words which I will quote below. 86 The evidence of Mrs Wilson as to what Mr Wilson said to her could carry very little weight, because she accepted that Mr Wilson may have said that he had been charged, and that to her this meant the same as having been arrested. 87 In my view, the view of the primary judge that it was unlikely that Senior Constable Janovsky would have said words of arrest and performed an act of arrest in the corridor is a reasonable commonsense view, not needing any support from evidence as to his practice. 88 In my opinion, the primary judge gave appropriate reasons for holding that the Custody Management Record did not require a finding that some act of arrest must have occurred, particularly having regard to the circumstance that the ERISP contained no reference to arrest and no protest by Mr Wilson about arrest or about being detained. In my opinion the treatment by the primary judge of this issue discloses no error. 89 In my opinion also, there was no error by the primary judge in his consideration of the alleged admission to Sergeant Bisset. Although Senior Constable Janovsky did use the words "I arrested Wilson", this occurred about two years after the event, in response to questions by Sergeant Bisset "What information did you have … to place Wilson under arrest?" and "Mr Wilson claims the reason you arrested him was … What is your response to Mr Wilson's claim?" 90 In my opinion, the strongest argument supporting an arrest at the police station is the contention that it can be inferred that prior to 8pm on 28 February 2004 Sergeant Brown read Exhibit 9 to Mr Wilson, including the assertion in it "You have been arrested by police and they can keep you in their custody for a reasonable time to conduct their investigations"; and that Mr Wilson was actually given this document and signed it just after 8pm: Mr Wilson signed an acknowledgement that he had been given the information in that form, and had received a copy. These circumstances raise the question whether these matters conveyed to Mr Wilson that he had been arrested and whether (even without any act of touching) Mr Wilson's compliance with directions of the police and his waiting at the police station until after midnight constituted a submission by him that completed the arrest. 91 However, that contention does not appear to have been put in those terms to the primary judge, and I do not think the primary judge's failure to address the point can be considered as such to be an error that justifies appellate intervention. The question is whether this point, either on its own or in combination with all the other points, justifies the intervention of this Court on the basis that the finding of the primary judge was so contrary to the evidence as to justify intervention consistently with Fox v Percy [2003] HCA 22; (2003) 214 CLR 118. 92 In my opinion, the answer is no. It does not appear that the Custody Management Record was given to Mr Wilson until after midnight, so this document could not have conveyed to him that he was under arrest. The Exhibit 9 document was, I would infer, read to him, and it was given to him and signed by him about 8pm, and that could have conveyed to him that he was then under arrest. But having regard to all the circumstances, and in particular the lack of any evidence from Mr Wilson that he understood from this document that he was under arrest, the lack of reference in the ERISP to arrest (as distinct from the legal rights explained by Sergeant Brown) and the lack of protest by Mr Wilson in the ERISP, I would not infer that this was in fact conveyed to him. In my opinion, his giving of the ERISP was entirely motivated by his wish to give his account of the events, and his remaining at the police station until midnight was with a view to co-operating with police in order to do whatever he could to get his account across to them, and was not due to any perception by him that he was actually under arrest, or to any submission by him to an arrest that he understood had taken place. 93 For those reasons, I would reject grounds 14 - 18.

Wilson v State of New South Wales

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