Citation: Barram v State of New South Wales [2017] NSWDC 255
Court: District Court of New South Wales
Date: 9 June 2017
Judge: Neilson DCJ
Background
The plaintiff, a 66-year-old man living at Banora Point in northern New South Wales, brought a police torts claim against the State of New South Wales arising from events on the evening of 4 February 2016. The causes of action were trespass to land, assault, and false imprisonment. The claims arose after two uniformed police officers attended his home, entered the premises, and arrested him.
The events were triggered by an earlier domestic incident involving the plaintiff and his long-term partner. She had attended his home that evening and, according to the plaintiff's own Local Court evidence, damaged furniture and a television set. The plaintiff admitted grabbing her across the mouth to stop further damage, with both falling to the ground. After she left, she alerted neighbours, and police were subsequently called.
Senior Constable Twindley and Senior Constable Attard attended the plaintiff's home. They were let in by his flatmate and then arrested the plaintiff for domestic assault. The plaintiff contested the lawfulness of the entry, the arrest, and the physical handling during the arrest. The State of New South Wales was the defendant, liable vicariously under the Law Reform (Vicarious Liability) Act 1983 for the conduct of the officers.
Legal Issues
- Whether the police officers' entry into the plaintiff's dwelling was lawful, including under s 10 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA)
- Whether the arrest was lawful under s 99 of LEPRA, which requires the arresting officer to have reasonable grounds for suspicion and to believe arrest was necessary
- Whether the officers complied with the notice and reason requirements under s 202 of LEPRA (reflecting the common law rule in Christie v Leachinsky)
- Whether the physical contact used to escort the plaintiff to the police vehicle constituted an unlawful assault
Decision
Trespass to land: The court found the entry was lawful on two independent grounds. First, the officers were authorised under s 10 of LEPRA to enter premises without a warrant to arrest a person. Second, and alternatively, the plaintiff's flatmate had admitted the officers, and he had ostensible authority to do so. The trespass claim therefore failed.
False imprisonment: The court accepted the evidence of Senior Constable Twindley that he had reasonable grounds to suspect the plaintiff had committed a domestic assault and that arrest was necessary. The court was satisfied the officer honestly and on good grounds believed arrest was the appropriate course, consistent with the requirements of s 99 of LEPRA. The arrest was lawful, and the false imprisonment claim failed.
Compliance with s 202 of LEPRA: Both officers were in uniform, satisfying the identification requirement. Senior Constable Twindley identified himself and his partner by name, stated their station, and told the plaintiff he was under arrest for "domestic assault." The court accepted that the plaintiff was not specifically told the arrest was for assault of Vera Savic by name, but found this did not matter. The plaintiff knew the police had come because of his interaction with her that evening, she was the only person in his life to whom a "domestic assault" reference could apply, and he therefore understood the true reason for his arrest. The s 202 requirements, reflecting the rule in Christie v Leachinsky, were satisfied.
Assault: The court rejected the assault claim. The officers took hold of the plaintiff by his left elbow to escort him from the premises to the police vehicle. The court found this was proportionate and lawful: it ensured he did not escape custody and kept him steady, as the officers' evidence indicated he was somewhat unsteady due to intoxication. No injury was caused.
Credibility: The court accepted the evidence of both police officers without reservation. Minor inconsistencies between them were explained by the passage of time and the routine nature of arrests in police work. The court formed an unfavourable view of the plaintiff, finding his evidence internally inconsistent, marked by hyperbole, and at odds with the officers' accounts on key points.
Orders Made
- Verdict and judgment entered for the defendant against the plaintiff
- The plaintiff to pay the defendant's costs on the ordinary basis until 24 May 2017
- The plaintiff to pay the defendant's costs on an indemnity basis from 25 May 2017
Key Takeaways
- A police officer's lawful entry under s 10 of LEPRA to effect an arrest, or entry with the consent of a person with ostensible authority over the premises, will defeat a trespass to land claim.
- Under s 202 of LEPRA (which reflects the common law rule in Christie v Leachinsky), an arrested person need not be told the precise name of the complainant, provided the circumstances make the true reason for the arrest apparent to them.
- The District Court confirmed that "wrongful arrest" is not a recognised tort in Australian law; such a claim must be framed as false imprisonment to be actionable.
- Minimum physical contact used to escort a person in custody, without causing injury, can fall within lawful conduct and will not constitute an assault where the officers were entitled to make the arrest.
- Costs on an indemnity basis were ordered from a date shortly before judgment, suggesting a Calderbank offer or formal offer of compromise had not been accepted by the plaintiff.
Legislation and Cases Referenced
Legislation:
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 10, 99, 202
- Law Reform (Vicarious Liability) Act 1983 (NSW)
- Evidence Act 1995 (NSW)
Cases:
- Christie v Leachinsky [1947] AC 573
- Johnstone v State of New South Wales [2010] NSWCA 70
- State of New South Wales v Randall [2017] NSWCA 88
- R v Le [2005] NSWCCA 40
- R v Rondo [2001] NSWCCA 540
- Tilse v State of New South Wales [2013] NSWDC 265