Citation: Exton v State of NSW [2017] NSWDC 83
Court: District Court of New South Wales
Date: 13 April 2017
Judge(s): Judge Levy SC
Background
Shortly after 1:00am on 20 April 2013, two plain-clothes police officers approached a parked vehicle in Keen Street, Lismore, after being asked by council security guards to speak with a group of young males. The plaintiff was 17 years old, Aboriginal, and heavily intoxicated, placing him within applicable police protocols as a vulnerable person. The vehicle's driver was the plaintiff's older cousin, who was sober and intending to drive the group home.
One of the officers, who recognised the plaintiff from prior interactions, opened the passenger door and asked him to get out of the vehicle. The officer made two requests, and on the second occasion said words to the effect of "I don't want to have to drag you out." The officer later acknowledged this was a bluff, that he had no power to compel the plaintiff to exit, and that he had no reasonable grounds to suspect the plaintiff had committed or was about to commit any offence.
The plaintiff eventually complied, slowly and in an agitated manner consistent with his intoxicated state. As he exited the vehicle, the officers physically restrained him, and he was subsequently arrested. The plaintiff brought proceedings against the State of New South Wales, which was vicariously liable for the officers' conduct, claiming damages for assault and battery, wrongful arrest, and false imprisonment.
Legal Issues
- Whether the arrest of the plaintiff was lawful under s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002
- Whether the physical conduct of the officers constituted assault and battery
- Whether the plaintiff was subjected to false imprisonment
- How damages should be assessed, including whether aggravated and exemplary damages were warranted
Decision
Judge Levy SC found, after a detailed review of oral evidence, CCTV footage, and YouTube video recorded by a bystander, that the arrest was unlawful. The officers had no reasonable grounds to suspect the plaintiff of any offence at the time they directed him out of the vehicle. The officer's own concession that the demand was a "bluff" and that he lacked the legal power to compel compliance was central to this finding.
The court found that assault and battery were established. As the plaintiff neared the vehicle door to exit, the officers grabbed him by the arms before he had completed the act of leaving. This physical contact was not justified by any lawful basis and constituted an actionable battery, accompanied by conduct that amounted to assault.
False imprisonment was also established. The plaintiff was detained without lawful justification from the moment he was physically seized, and the unlawful arrest that followed compounded that deprivation of liberty.
On damages, the court awarded general compensatory damages across both the assault and battery claim and the wrongful arrest and false imprisonment claim. Aggravated damages of $10,000 were awarded to reflect the conduct's effect on the plaintiff's dignity, and exemplary damages of $5,000 were awarded to mark the court's disapproval of the officers' conduct, particularly the deliberate bluff used to extract the plaintiff from the vehicle without lawful authority.
Orders Made
- Verdict and judgment for the plaintiff, including general compensatory damages, aggravated damages, exemplary damages, and interest, in the total sum of $38,072
- The defendant is to pay the plaintiff's costs of the proceedings on the ordinary basis unless otherwise ordered
- The exhibits may be returned
- Liberty to apply on 3 days' notice if further or other orders are required
Key Takeaways
- A police officer's concession that he lacked power to compel a person to exit a vehicle, and that his demand was a deliberate bluff, was fatal to the lawfulness of the resulting arrest and supported findings of assault, battery, and false imprisonment.
- Under s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002, a lawful arrest requires reasonable grounds to suspect commission of, or intention to commit, an offence; an absence of any such grounds rendered this arrest unlawful regardless of the plaintiff's general behaviour or intoxicated state.
- The District Court confirmed that aggravated damages are available where police conduct affects the plaintiff's dignity, and exemplary damages may be awarded to mark disapproval of deliberate misrepresentation of police powers.
- A plaintiff's heavy intoxication and limited personal recollection of events does not preclude a finding in their favour where CCTV footage, YouTube video, and the officers' own evidence establish the relevant facts.
- The court applied a 4 percent interest rate on compensatory damages by reference to MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657, and declined to apply interest to aggravated and exemplary damages on the basis that those components are not assessed as at the time of the events.
Legislation and Cases Referenced
Legislation
- Civil Procedure Act 2005 (NSW), s 100
- Crown Proceedings Act 1988 (NSW), s 5
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 99
- Law Reform (Vicarious Liability) Act 1983 (NSW), s 8
- Uniform Civil Procedure Rules 2005 (NSW), r 6.12(8)
Cases
- Adams v Kennedy [2000] NSWCA 152; (2000) 49 NSWLR 78
- Chen v State of NSW [2014] NSWCA 41
- Gray v Motor Accidents Commission [1998] HCA 70; (1998) 196 CLR 1
- Hamed v State of NSW [2009] NSWSC 242
- MBP (SA) Pty Ltd v Gogic [1991] HCA 3; (1991) 171 CLR 657
- NSW v Ibbett [2006] HCA 57; (2006) 229 CLR 638
- NSW v Landini [2010] NSWCA 157
- Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612
- Smith v State of NSW [2016] NSWDC 55
- State of NSW v Abed [2014] NSWCA 419
- State of NSW v Quirk [2012] NSWCA 216
- State of NSW v Riley [2003] NSWCA 208
- State of NSW v Zreika [2012] NSWCA 37
- Symes v Mahon [1922] SASR 447
- Williams v The Queen [1986] HCA 88; (1988) 161 CLR 278