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District Court 27 September 2016

Reilly v State of New South Wales

[2016] NSWDC 234

Assault & violenceTraffic & drivingPublic order & justice offences
TORTS ASSAULT FALSE ARREST FALSE IMPRISONMENT MALICIOUS PROSECUTION LAWFULNESS OF POLICE ACTIONS

Citation: Reilly v State of New South Wales [2016] NSWDC 234
Court: District Court of New South Wales
Date: 27 September 2016
Judge(s): Dicker SC DCJ

Background

In the early hours of 24 November 2013, the plaintiff was stopped at a random breath testing site in Werrington, Sydney. She had been driving her then de facto partner home after an evening at a bowling club where he had consumed significant alcohol. The plaintiff returned a positive roadside breath test result and was subsequently arrested by two officers, Senior Constable Melide and Constable Shearer.

Following her arrest, the plaintiff suffered a fractured left wrist. It was not disputed that the fracture occurred after the arrest, but the cause was hotly contested. The plaintiff contended that Senior Constable Melide applied excessive force through a wrist lock. The defendant (the State of New South Wales, vicariously liable for its officers) maintained the fracture occurred when the plaintiff fell to the ground while resisting arrest.

The plaintiff was later charged with a low-range prescribed concentration of alcohol (PCA) offence, resisting a police officer, and assaulting a police officer. The Local Court found the PCA offence proven but dismissed the two other charges. The plaintiff then brought civil proceedings in the District Court claiming damages for assault, wrongful arrest, false imprisonment, malicious prosecution, and (initially) misfeasance in public office. The misfeasance claim was abandoned at the hearing.

  • Whether the plaintiff was lawfully arrested following the positive breath test result
  • Whether the force used by the officers during the arrest was reasonably necessary and therefore lawful under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA)
  • Whether the plaintiff's subsequent detention at St Marys Police Station was lawful under the Road Transport Act 2013 (NSW)
  • Whether the charges laid against the plaintiff were brought maliciously and without reasonable and probable cause, giving rise to a claim for malicious prosecution
  • Whether the plaintiff's account or the officers' account of the arrest should be preferred on the evidence

Decision

The central question was one of factual credibility: whose version of events at the roadside was to be believed. The court acknowledged the stark divergence between the plaintiff's account (that she complied throughout and was subjected to unprovoked excessive force) and the officers' account (that she resisted arrest and assaulted Senior Constable Melide). Dicker SC DCJ undertook a careful review of all witnesses' oral evidence, applying the principle that a court is not bound to accept any witness's evidence in full and may accept only part of what any witness says.

The judge preferred the evidence of the police officers over that of the plaintiff and her de facto partner. This preference was informed by reference to contemporaneous records, the apparent internal consistency of the officers' accounts, and other objective indicia. The plaintiff's allegation that the officers had concocted the story of resistance and assault was not accepted.

Having found against the plaintiff on the core factual question, all causes of action failed. The arrest was found to have been lawful following the positive breath test result. The force used was found to have been reasonably necessary in the circumstances, and therefore lawful under the relevant provisions of LEPRA and the Road Transport Act 2013. The detention at St Marys Police Station was also found to have been lawful. The malicious prosecution claim failed in the absence of findings that supported the absence of reasonable and probable cause or the presence of malice.

Although the court entered judgment for the defendant on all claims, Dicker SC DCJ addressed damages in the alternative. Had the plaintiff succeeded, the court indicated it would have awarded general damages of $70,000 (including aggravated damages), special damages of $40,000 for legal fees incurred in defending the criminal charges, and exemplary damages of $40,000, totalling $150,000. The exemplary damages observation was expressly framed as contingent on findings that the officers had concocted their accounts, conduct the court characterised as "high-handed, outrageous and contumelious" if it had in fact occurred.

Orders Made

  • Judgment for the defendant.
  • The plaintiff is to pay the defendant's costs of the proceedings as agreed or assessed.
  • Exhibits may be returned after 28 days.

Key Takeaways

  • The District Court's findings confirm that in police tort claims turning on contested factual accounts, contemporaneous records and the internal consistency of evidence carry significant weight alongside witness demeanour.
  • A lawful arrest following a positive roadside breath test provides a valid basis for detention, and force used in connection with that arrest is lawful where it falls within the "reasonably necessary" standard in ss 230 and 231 of LEPRA.
  • Malicious prosecution requires proof of both an absence of reasonable and probable cause and the presence of malice. Where the court accepts officers acted in good faith on the evidence before them, neither element is made out.
  • Acquittal on resisting and assault charges in the Local Court did not, of itself, establish that the prosecution was malicious or that the civil standard of proof was satisfied on those same factual questions in the tort proceedings.
  • Where a plaintiff alleges that police evidence has been fabricated, the court will examine that allegation rigorously against all available objective materials before accepting it.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 58
- Evidence Act 1995 (NSW)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 230, 231
- Police Act 1990 (NSW), s 6
- Road Transport Act 2013 (NSW), s 110(3)(A); Schedule 3, Part 2, ss 4(1)(c), 4(2), 4(2)(b)
- Uniform Civil Procedure Rules 2005 (NSW)

Cases
- A v New South Wales (2007) 230 CLR 500
- Cubillo v Commonwealth (No 2) (2000) 103 FCR 1
- Danckert v Tonkin [2015] NSWSC 1570
- Fox v Percy (2003) 214 CLR 118
- Makri v State of New South Wales [2015] NSWDC 131
- Ruddock v Taylor (2005) 222 CLR 612
- State of New South Wales v Abed [2014] NSWCA 419
- State of New South Wales v Koumdjiev (2005) 63 NSWLR 353
- State of New South Wales v McMaster [2015] NSWCA 228
- State of New South Wales v TD [2013] NSWCA 32
- Varty v Director of Public Prosecutions (NSW) [2015] NSWSC 304
- Woodley v Boyd [2001] NSWCA 35
- Young v State of New South Wales (No 2) [2013] NSWSC 330