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District Court 25 July 2017

Ussher v State of New South Wales

[2017] NSWDC 189

Assault & violencePublic order & justice offences
TORT INTENTIONAL TORTS LAWFULNESS OF SEARCH LAWFULNESS OF ARREST FALSE IMPRISONMENT ASSAULT

Citation: Ussher v State of New South Wales [2017] NSWDC 189
Court: District Court of New South Wales
Date: 25 July 2017
Judge(s): Wilson SC DCJ

Background

The plaintiff was a homeless man who travelled to Orange, New South Wales, in December 2013 to take up fruit-picking work. Late on the night of 12 December 2013, he was walking along Coronation Drive and Cargo Road towards the orchard, carrying bags of belongings, when he came to the attention of police.

Officers stopped, searched, and ultimately arrested the plaintiff near the intersection of Cargo Road and Ploughmans Lane. He was taken to Orange Police Station before being released into the care of ambulance officers and transported to Orange Base Hospital.

The plaintiff brought proceedings against the State of New South Wales, alleging that both the search and the arrest were unlawful under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA), and that he was therefore entitled to damages for false imprisonment, assault, battery, and trespass to the person, including aggravated and exemplary damages.

  • Whether the search of the plaintiff was authorised under s 21 of LEPRA, requiring reasonable grounds for suspicion
  • Whether the arrest was lawful under ss 93 and 99 of LEPRA, including whether arrest was necessary for one of the prescribed purposes
  • Whether police complied with the procedural requirements in s 201 of LEPRA when exercising search and arrest powers
  • Whether the force used by police was lawful under s 230 of LEPRA or justified under s 52 of the Civil Liability Act 2002
  • Whether the plaintiff was entitled to compensatory, aggravated, or exemplary damages
  • Whether s 53 of the Civil Liability Act 2002 would limit any damages awarded

Decision

The court found, after assessing and preferring the police officers' account of events in several contested respects, that the plaintiff's conduct at the time was objectively suspicious and consistent with criminal activity. The circumstances as observed by the officers, including the plaintiff's behaviour near a private property late at night and what the court accepted was a lunging movement towards Senior Constable Bunting, provided the foundation for the officers' suspicion.

On the lawfulness of the search under s 21 of LEPRA, the court found that the officers held the requisite reasonable suspicion. The same reasoning supported the lawfulness of the subsequent arrest under ss 93 and 99 of LEPRA. The court was satisfied that the officers had reasonable grounds for their belief and that the arrest was necessary within the meaning of the legislation.

Regarding the use of force, the court found that the force applied was lawful in the circumstances, particularly given the plaintiff's movement towards Senior Constable Bunting, which justified the officers' response as reasonable and proportionate.

The court declined to award exemplary damages, finding that the attending officers acted entirely reasonably throughout the incident and, in several respects, demonstrated compassion for the plaintiff's welfare. The court indicated that even if compensatory damages (including aggravated damages) for battery, assault, and imprisonment had been warranted, they would not have exceeded $5,000. A verdict was ultimately entered for the defendant.

Orders Made

  • Verdict for the defendant
  • Plaintiff to pay the defendant's costs
  • Liberty to apply within 14 days to vary the costs order, if necessary
  • Exhibits to be returned

Key Takeaways

  • The District Court confirmed that the lawfulness of a search under s 21 of LEPRA turns on whether the searching officer held a genuine suspicion based on objectively reasonable grounds, assessed against the totality of the circumstances known to the officer at the time.
  • A finding that a plaintiff's conduct was objectively suspicious, even in the absence of confirmed criminal activity, can be sufficient to enliven both search and arrest powers under LEPRA where the surrounding circumstances support the officer's belief.
  • Exemplary damages for unlawful police conduct are not awarded merely because a person's liberty was restricted; the conduct of the officers must reach a level of conscious wrongdoing, high-handedness, or disregard for the plaintiff's rights before such damages become appropriate.
  • Where police officers are found to have acted with reasonable care for the wellbeing of a detained person and exercised their powers in good faith, courts have declined to treat the detention as warranting aggravated or exemplary damages even where the plaintiff suffered some harm.
  • Under the Law Reform (Vicarious Liability) Act 1983 (NSW), the State of New South Wales is the proper defendant in civil proceedings arising from the conduct of police officers acting in the performance or purported performance of their duties.

Legislation and Cases Referenced

Legislation
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 21, 93, 99, 201, 230
- Civil Liability Act 2002 (NSW), ss 52, 53
- Law Reform (Vicarious Liability) Act 1983 (NSW), s 8
- Drug Misuse and Trafficking Act 1985 (NSW)
- Inclosed Lands Protection Act 1901 (NSW)
- Summary Offences Act 1988 (NSW)
- Police Act 1990 (NSW)

Cases
- Croucher v Cachia [2016] NSWCA 132
- George v Rockett [1990] HCA 26; 170 CLR 104
- Hussien v Chong Fook Kam [1970] AC 942
- NSW v Abed [2014] NSWCA 419
- NSW v Beck [2013] NSWCA 437
- NSW v Riley [2003] NSWCA 208
- R v Rondo [2001] NSWCCA 540
- Woodley v Boyd [2001] NSWCA 35