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District Court 23 June 2017

Costello v State of NSW

[2017] NSWDC 152

Domestic & family violencePublic order & justice offences
TORT INTENTIONAL TORTS ACTIONS OF POLICE OFFICERS ADEQUACY OF POLICE INVESTIGATION DAMAGES

Citation: Costello v State of NSW [2017] NSWDC 152
Court: District Court of NSW
Date: 23 June 2017
Judge: Judge Levy SC

Background

The plaintiff, a woman aged 27 at the time of the events, brought proceedings against the State of NSW as a result of her arrest at her home in Goonellabah, northern NSW, on 17 November 2011. She had pre-existing disabilities arising from an acquired brain injury and related cerebral palsy, which affected her appearance, posture, movement, and speech, as well as her cognitive functioning. She proceeded by tutor, the NSW Public Trustee and Guardian, due to those disabilities.

Police attended her home following a reported domestic violence incident involving her former de-facto partner. Two experienced officers, a sergeant and a senior constable, arrested the plaintiff and transported her to Lismore Police Station, where she was held in custody until released on bail shortly after 10pm. She was charged with offences including assault and malicious damage.

The plaintiff claimed the arrest was unlawful, that the police investigation was inadequate, and that the officers failed to recognise her as a vulnerable person entitled to different treatment under applicable police protocols. She sought damages, aggravated damages, and exemplary damages for false imprisonment, assault, and battery. The State defended the proceedings on the basis that the arresting officers had reasonable grounds and lawful justification for the arrest under both the common law and LEPRA.

  • Whether the plaintiff ought to have been recognised as a vulnerable person by the attending officers, and what obligations that recognition carried
  • Whether there was adequate evidence, before arrest, to suggest the plaintiff had been assaulted or had committed offences
  • Whether the police investigation was adequate in the circumstances
  • Whether the arrest constituted wrongful arrest, false imprisonment, and assault, having regard to the requirements under s 99(2) and s 99(3) of the Law Enforcement (Powers and Responsibility) Act 2002 (LEPRA)
  • Whether arrest was "necessary" within the meaning of LEPRA, or whether issuing court attendance notices would have been the appropriate step
  • Whether the plaintiff was injured during transportation to the police station
  • The appropriate quantum of compensatory, aggravated, and exemplary damages

Decision

The District Court found in favour of the plaintiff on the key issues. The court was not satisfied that the arresting officers had the requisite reasonable grounds to arrest the plaintiff, nor that arrest was necessary in the circumstances. The evidence showed the officers failed to take any written statement from the plaintiff, made no notes of conversations with her, and proceeded substantially on the basis of accounts obtained from other persons. One officer's written account of events was found to have "massaged" certain facts, including a claim that the plaintiff had declined to be interviewed, which the court rejected as inconsistent with the oral evidence given at trial.

The court found that the plaintiff's visible disabilities should have been recognised by the officers as markers of vulnerability under applicable police protocols, and that she should have been treated accordingly throughout the process. The adequacy of the investigation was also criticised: the officers did not properly investigate the plaintiff's own account or conduct inquiries commensurate with what a reasonable investigation demanded in the circumstances.

On the question of justification for arrest under LEPRA, the court held that the statutory preconditions under s 99(2) and s 99(3) were not satisfied. The arrest was not shown to be necessary for any of the purposes nominated under s 99(3), including preservation of safety or welfare or prevention of further offences. The court found that issuing court attendance notices would have been the appropriate course.

Damages were assessed to include general compensatory damages, aggravated damages reflecting the officers' conduct, and exemplary damages reflecting the court's view that the conduct warranted a punitive response. The total award was $70,549, inclusive of interest on past damages.

Orders Made

  • Verdict and judgment for the plaintiff, including general compensatory damages, aggravated damages, and exemplary damages, and interest on past damages, in the total sum of $70,549
  • The defendant is to pay the plaintiff's costs of the proceedings on the ordinary basis unless otherwise ordered
  • The parties are to be heard on what amount, if any, should be added to the verdict and judgment on account of future funds management charges
  • Exhibits may be returned
  • Liberty to apply on 3 days' notice if further or other orders are required

Key Takeaways

  • The District Court held that a police officer's written account of events that was found to have distorted material facts undermined the justification for the arrest, and contributed to findings of unlawful conduct.
  • Under s 99(2) and s 99(3) of LEPRA, an arrest is only lawful where the officer both suspects on reasonable grounds that the person has committed an offence and reasonably considers the arrest to be necessary for a purpose specified in s 99(3); neither condition was satisfied on the facts found here.
  • Where a person's visible and cognitive disabilities were apparent to attending officers, police protocols required recognition of that person as vulnerable and corresponding adjustments to the manner of engagement. Failure to apply those protocols was a material finding against the defendant.
  • A failure to take any statement from the person arrested, combined with reliance on inaccurate recollections and third-party accounts, was found to render the investigation inadequate and to reinforce the unlawfulness of the arrest.
  • Aggravated and exemplary damages were available alongside compensatory damages where the court found that the arresting officers' conduct was sufficiently improper to warrant both recognition of the plaintiff's additional injury to feelings and dignity, and a punitive response.

Legislation and Cases Referenced

Legislation
- Law Enforcement (Powers and Responsibility) Act 2002 (NSW), ss 99(2), 99(3), 201, 231
- Crown Proceedings Act 1988 (NSW), s 5
- Law Reform (Vicarious Liability) Act 1983 (NSW), s 8
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 27, 89
- Crimes Act 1900 (NSW), ss 61, 117, 195
- Civil Procedure Act 2005 (NSW), s 100
- Evidence Act 1995 (NSW), s 126
- Criminal Code Act 1995 (Cth), s 474.17

Cases
- Christie v Leachinsky [1947] AC 547
- Castorina v The Chief Constable of Surrey [1988] EWCA Civ J0610-1
- Adams v Kennedy [2000] NSWCA 152; (2000) 49 NSWLR 78
- Benn v State of New South Wales [2016] NSWCA 314
- Darcy v State of NSW [2011] NSWCA 413
- Johnstone v State of New South Wales [2010] NSWCA 70
- Hyder v Commonwealth [2012] NSWCA 336; (2012) 217 A Crim R 571
- Gray v Motor Accidents Commission [1998] HCA 70; (1998) 196 CLR 1
- Fox v Percy [2003] HCA 22; 214 CLR 118
- Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
- Briginshaw v Briginshaw (1938) 60 CLR 336
- Blacktown City Council v Hocking [2008] NSWCA 144
- Hage-Ali v State of NSW [2009] NSWDC 266
- Hussein v Chong Kook Kam [1970] AC 942