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District Court 29 May 2018

Attalla v State of NSW

[2018] NSWDC 190

Assault & violence
TORTS INTENTIONAL TORT WRONGFUL ARREST FALSE IMPRISONMENT ASSAULT AND BATTERY STRIP SEARCH

Citation: Attalla v State of NSW [2018] NSWDC 190
Court: District Court of New South Wales
Date: 29 May 2018
Judge: P Taylor SC DCJ

Background

At approximately 3.30am on 24 March 2015, a 53-year-old man with no criminal record was sitting on a stone wall outside a church in Bourke Street, Darlinghurst, texting on his mobile phone. Three police officers approached him and, after a brief conversation, the senior officer announced she suspected him of possessing prohibited drugs and proposed to search him.

When the plaintiff refused to submit to the search, the officer arrested him for hindering police in the execution of their duty. A second officer who arrived on scene applied a wrist lock, handcuffed the plaintiff, and searched him. No drugs were found. The plaintiff was then transported to Kings Cross Police Station where, at the first officer's direction, two male officers conducted a strip search, requiring him to remove his pants and underpants, lift his genitalia, and squat while naked.

The plaintiff received a Court Attendance Notice for hindering police, which was ultimately dismissed. He then sued the State of New South Wales for wrongful arrest and assault and battery arising from the officers' conduct.

  • Whether the arresting officer had reasonable grounds to suspect the plaintiff was in possession of a prohibited drug, thereby justifying a search under s 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA)
  • Whether the officer had reasonable grounds to suspect the plaintiff had hindered police in the execution of their duty
  • Whether the officer was satisfied that arrest was reasonably necessary to prevent continuation of the alleged hindering offence
  • Whether the second officer was lawfully justified in applying a wrist lock, handcuffing the plaintiff, and conducting a search
  • What level of damages, including aggravated and exemplary damages, was appropriate

Decision

The State conceded two significant points before and during trial: that the strip search was unlawful, and that the continued detention of the plaintiff after the initial search by the second officer was also unlawful. The key contested question was whether the initial proposed search was itself lawful.

The court found that the factors relied on by the State did not objectively amount to reasonable grounds for suspicion. The plaintiff was sitting in a well-lit street, dressed neatly, had a plausible explanation for his presence, and had done nothing more than watch the police approach and then assert his rights in an increasingly firm manner. The time, location, and the plaintiff's demeanour during questioning were insufficient, individually or collectively, to constitute the objectively reasonable grounds required under s 21 of LEPRA. Because the initial proposed search was unlawful, the arrest for hindering that search was also unlawful, and the second officer's use of force and search were equally without justification.

On damages, the court awarded compensatory damages for the plaintiff's humiliation, distress, and loss of dignity, particularly arising from the strip search. Aggravated damages were awarded given the high-handed and oppressive manner in which the police conducted themselves, including the nature of the strip search and the officers' continued denial of any wrongdoing. The court also awarded exemplary damages (a sum intended to punish and deter, beyond mere compensation) to reflect the serious and unjustified nature of the police conduct.

Orders Made

  • Judgment for the plaintiff in the sum of $112,387.67
  • The defendant (State of New South Wales) to pay the plaintiff's costs
  • Liberty to either party to apply to amend the costs order, including to seek a special costs order, by notification to the judge's associate within 14 days

Key Takeaways

  • Under s 21 of LEPRA, a police officer's power to stop and search without a warrant requires both a subjective suspicion and objectively reasonable grounds for that suspicion. The District Court held that time of night, location in a known area, watching police approach, and becoming assertive when questioned did not, on the facts of this case, satisfy the objective element.
  • A refusal to submit to an unlawful search cannot itself ground a lawful arrest for hindering police. Where the predicate search power does not exist, conduct that resists it is not an offence capable of justifying arrest.
  • The State's concession that the strip search was unlawful did not shield it from findings of assault and battery. The entire chain of conduct, from the initial unlawful search through to the strip search at the station, was held to be tortious.
  • Aggravated damages are available in wrongful arrest and false imprisonment cases where police conduct is high-handed, oppressive, or involves a serious affront to dignity. The nature of a strip search conducted without lawful authority is a significant factor in that assessment.
  • Exemplary damages remain available in intentional tort cases against the State involving deliberate or contumelious disregard for the plaintiff's rights, even where compensatory and aggravated damages have already been awarded.

Legislation and Cases Referenced

Legislation:
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 21, 24, 31, 32, 99, 230

Cases:
- Adams v Kennedy (2000) 49 NSWLR 7
- Coote v Kelly; Northam v Kelly [2016] NSWSC 1447
- Day v Perisher Blue Pty Ltd (2005) 62 NSWLR 731
- Goldie v Commonwealth of Australia (No 2) [2004] FCA 156
- Gray v Motor Accidents Commission (1998) 196 CLR 1
- Lamb v Cotogno (1987) 164 CLR 1
- MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657
- Moses v State of New South Wales (No 3) [2010] NSWDC 243
- New South Wales v Ibbett (2006) 229 CLR 638
- New South Wales v Radford (2010) 79 NSWLR 327
- New South Wales v Zreika [2012] NSWCA 37
- Ruddock v Taylor (2003) 58 NSWLR 269
- Shalhoub v State of New South Wales [2017] NSWDC 363
- State of New South Wales v Bouffler [2017] NSWCA 185
- State of New South Wales v Riley (2003) 57 NSWLR 496
- State of NSW v Abed [2014] NSWCA 419
- State of NSW v Smith [2017] NSWCA 194
- Streat v Bauer (Supreme Court NSW, Smart J, 16 March 1998, unreported)
- Thompson; Hsu v Commissioner of Police of the Metropolis [1998] QB 498
- Uren v John Fairfax (1966) 117 CLR 118