Citation: Lovric v State of New South Wales [2018] NSWDC 148
Court: District Court of New South Wales
Date: 13 April 2018
Judge: P Taylor SC DCJ
Background
The plaintiff telephoned triple-0 to report his car had been taken, then withdrew the complaint when he disclosed his wife had driven it away. Police attended his home in Croydon shortly afterwards. The plaintiff declined to open his door, told the officers to leave, and later walked outside with his dog. He directed a volley of profane abuse at the officers as their vehicle approached an intersection.
One officer exited the vehicle and told the plaintiff he was under arrest. The plaintiff moved away briskly or ran, depending on which account was accepted. A physical struggle followed. The plaintiff was ultimately handcuffed, searched, and held in custody for approximately two and a half hours before being released.
The plaintiff was charged with offensive language, assault police, and resist arrest. He pleaded guilty to offensive language but was acquitted of the other two charges. He then sued the State of New South Wales, alleging assault and battery, unlawful imprisonment, and malicious prosecution. The State admitted it would be vicariously liable for any tort proven against the officers.
Legal Issues
- Whether the arresting officer was genuinely satisfied that arrest was reasonably necessary for a reason listed under section 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA), being the sole contested element of lawful arrest.
- Whether the same finding on reasonable necessity disposed of the assault and battery claim (given force used was otherwise accepted as reasonable).
- Whether the charging officer had reasonable and probable cause to commence the assault police and resist arrest proceedings.
- Whether the charging officer acted with malice in bringing those charges.
- What damages, including aggravated and exemplary damages, would be appropriate if any tort were established.
Decision
Unlawful arrest and imprisonment. The court found that the arresting officer was in fact satisfied that the arrest was reasonably necessary, satisfying the subjective element required by section 99 of LEPRA. The plaintiff had abandoned his challenges to the other three requirements of a lawful arrest: reasonable grounds for suspicion, reasonable force, and provision of words of arrest. Because the arrest was found lawful and the force used proportionate, the assault and battery claim also failed.
Malicious prosecution. The State conceded that proceedings were instituted by the charging officer and that they terminated in the plaintiff's favour. The remaining contested elements were reasonable and probable cause, and malice. The court applied the four-element test from A v NSW [2007] HCA 10. It found that the charging officer did have reasonable and probable cause to commence the assault police and resist arrest charges, given the circumstances of the physical encounter, including that the officer was kicked in the face. The absence of reasonable and probable cause was therefore not established.
Malice. Because the court found reasonable and probable cause existed, malice became difficult to sustain independently. The court was not satisfied the charging officer was actuated by an improper purpose. The malicious prosecution claim therefore also failed.
Damages. Although the causes of action were not made out, the court noted its assessment of damages in the event it was wrong on liability. It estimated a total of $50,000 across all heads, inclusive of $5,000 in exemplary damages to mark the seriousness of any wrongful deprivation of liberty. Aggravated damages were not warranted, as there was no evidence of belittling or offensive conduct by the officers beyond what the arrest itself entailed.
Orders Made
- Judgment for the defendant (the State of New South Wales).
- The plaintiff to pay the defendant's costs.
Key Takeaways
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Under section 99 of LEPRA, the "satisfaction of reasonable necessity" element of a lawful arrest involves both a subjective and objective component. Here, the District Court found the subjective requirement was met on the facts, which was dispositive of both the unlawful imprisonment and assault claims.
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A plaintiff who abandons several contested elements of a LEPRA arrest challenge during hearing is left with a significantly narrowed path to establishing liability, as occurred here where only one of four requirements remained live.
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For malicious prosecution, the four-element test from A v NSW [2007] HCA 10 applies. Failure to establish the absence of reasonable and probable cause is fatal to the claim, regardless of whether malice might otherwise be arguable.
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Reasonable and probable cause is assessed by reference to what the charging officer actually knew and believed at the time proceedings were commenced, including the circumstances of any physical encounter during arrest.
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Although exemplary damages for wrongful deprivation of liberty were assessed at $5,000 as a matter of principle, the court emphasised this was contingent on liability being established. The assessment was of no practical effect given the defendant succeeded on all causes of action.
Legislation and Cases Referenced
Legislation
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 99, 201, 202, 231
Cases
- A v NSW [2007] HCA 10
- Clyne v State of New South Wales (No 1) [2011] NSWSC 629
- Mulholland v Australian Electoral Commission (2004) 220 CLR 181
- Newell; Muriniti v De Costi [2018] NSWCA 49
- Ruddock v Taylor (2003) 58 NSWLR 269
- Shalhoub v New South Wales [2017] NSWDC 363
- State of New South Wales v Randall [2017] NSWCA 88
- Thomas v Mowbray [2007] HCA 33
- Zaravinos v State of New South Wales (2004) 62 NSWLR 58