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District Court 14 December 2017

Shalhoub v State of New South Wales

[2017] NSWDC 363

Assault & violence
TORTS INTENTIONAL TORT FALSE ARREST UNLAWFUL IMPRISONMENT ASSAULT AND BATTERY POLICE

Citation: Shalhoub v State of New South Wales [2017] NSWDC 363
Court: District Court of New South Wales
Date: 14 December 2017
Judge(s): P Taylor SC DCJ

Background

A 19-year-old man was a passenger in a car pulled over by police in southern Sydney at around 2.20am on 9 June 2015. Off-duty officers had mistakenly suspected the car of following and stalking a female officer's private vehicle, when in fact the driver had simply been travelling along the same road. The off-duty officers had themselves observed the suspected car stop following the private vehicle well before the stop, but never communicated that fact to the responding officers who carried out the arrest.

The plaintiff was pulled from the vehicle, taken to the ground, and struck several times, including blows to the head while he lay face down with three officers restraining him. He was handcuffed and searched before being formally informed he was under arrest, purportedly for stalking. When police realised he had no involvement in any stalking, they kept him in custody anyway, took him to a police station, and conducted an interview about "resisting arrest." He was released at around 7.40am with no charges laid.

The plaintiff sued the State of New South Wales for assault and battery and unlawful imprisonment. The State defended on the basis that the arrest was lawful under the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) and that reasonable force was used.

  • Whether the arresting officers held a genuine suspicion, based on reasonable grounds, that the plaintiff had committed the offence of stalking under LEPRA s 99(1)(a)
  • Whether the arrest was reasonably necessary within the meaning of LEPRA s 99(1)(b)
  • Whether the plaintiff was informed of the reason for his arrest as soon as reasonably practicable, as required by LEPRA s 201
  • Whether the force used during the arrest, including blows to the head and a search of the plaintiff's groin area, was reasonable under LEPRA ss 230 and 231
  • Whether the continued detention after police confirmed the stalking allegation had no merit was lawful
  • What damages, including aggravated and exemplary damages, were appropriate

Decision

Reasonable suspicion of stalking: The District Court found that the arresting officers did not hold a genuine, well-founded suspicion that the plaintiff had committed stalking at the time of the arrest. Critically, the off-duty officers who first formed the suspicion had observed the car cease following the private vehicle well before the stop, yet never conveyed this to the officers who responded. The information actually communicated to the arresting officers did not provide a reasonable basis for suspecting the plaintiff specifically of stalking.

Reasonably necessary and notice of arrest: The Court found the arrest was not reasonably necessary within the requirements of LEPRA s 99(1)(b), and that the plaintiff was not informed of the reason for his arrest as soon as reasonably practicable. He was physically restrained, struck, handcuffed, and searched before any reason was given. This sequence of events failed to meet the statutory obligations imposed on police officers making an arrest.

Use of force: The hammer-style blows to the plaintiff's head while he lay face down, restrained by three officers, were found to be unreasonable and unjustified. A search of his groin area conducted by one officer was also found to be without proper basis and constituted an assault and battery. The force used went beyond what was permissible under LEPRA.

Continued detention: Once police confirmed, at around 3.05am, that the stalking allegation had no foundation, there was no lawful basis to retain the plaintiff in custody. His continued imprisonment from that point until his release at 7.40am was unlawful. The Court awarded compensatory damages of $35,000 for wrongful arrest and false imprisonment (including aggravated damages) and $30,000 for assault and battery (including aggravated damages). The Court also awarded $15,000 in exemplary damages, finding that the strikes to the plaintiff's head, the unjustified groin search, the continued detention without reason, and the State's failure to acknowledge or regret the conduct collectively amounted to contumelious and high-handed behaviour warranting the court's public disapproval.

Orders Made

  • Judgment for the plaintiff in the sum of $82,018.63 (comprising $35,000 for wrongful arrest and false imprisonment including aggravated damages; $30,000 for assault and battery including aggravated damages; $15,000 exemplary damages; and $2,018.63 interest).
  • The defendant is to pay the plaintiff's costs.

Key Takeaways

  • Under LEPRA s 99(1), a lawful warrantless arrest requires both a genuine suspicion on reasonable grounds that an offence was committed and satisfaction that arrest is reasonably necessary. The District Court found neither requirement was met on the facts, rendering the arrest unlawful from the outset.

  • Information that could have negated a reasonable basis for suspicion must be communicated between officers. Here, the failure of the off-duty officers to relay that the suspected car had ceased following the private vehicle was central to the court's finding that no proper grounds for arrest existed.

  • A police officer's obligation under LEPRA s 201 to inform a person of the reason for their arrest "as soon as reasonably practicable" is not satisfied where the person is physically restrained, struck, handcuffed, and searched before any reason is given.

  • Exemplary damages are available where police conduct amounts to a contumelious disregard of a person's rights, going beyond "ordinary human fallibility." The continued detention after police confirmed the basis for arrest had evaporated, combined with the State's failure to acknowledge the conduct, supported the award of $15,000 in exemplary damages.

  • Where both aggravated and exemplary damages are awarded in the same matter, courts must guard against double-counting. The District Court applied this principle by treating the two categories as addressing distinct purposes: compensation for harm to dignity on the one hand, and public condemnation of egregious conduct on the other.

Legislation and Cases Referenced

Legislation:
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 99, 201, 202, 230, 231
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 8, 13
- Civil Liability Act 2002 (NSW), ss 3B, 5, 11, 16, 31, 51, 52, 53, 54
- Law Reform (Vicarious Liability) Act 1983 (NSW), ss 6, 8, 9B

Cases:
- George v Rockett (1990) 170 CLR 104
- Christie v Leachinsky [1947] AC 573
- Lamb v Cotogno (1987) 164 CLR 1
- Gray v Motor Accidents Commission (1998) 196 CLR 1
- MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657
- MacDougal v Mitchell [2015] NSWCA 389
- Cheng v Farjudi [2016] NSWCA 316
- Johnstone v State of NSW [2010] NSWCA 70
- John Edward Thornton v State of New South Wales [2017] NSWCA 248
- Konneh v State of New South Wales (No 3) [2013] NSWSC 1424
- Dean v Phung [2012] NSWCA 223
- Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471