Citation: Pham v State of New South Wales [2019] NSWDC 73
Court: District Court of New South Wales
Date: 29 March 2019
Judge: Judge J Smith SC
Background
The plaintiff was the registered owner of a property in Yagoona, where his fiancée and her mother were living. On the evening of 13 December 2012, a dispute arose with a neighbouring builder who had parked a vehicle in the plaintiff's driveway. The plaintiff made a series of increasingly agitated triple-zero calls, and police were dispatched to the scene.
Officers attending the property arrested the plaintiff, handcuffed him, searched him, and placed him in a police van. Approximately ten minutes later, as the arresting officer was removing the plaintiff from the van, the officer suffered a cut to his thumb and his blood came to be on the plaintiff's shirt. The arrest was then discontinued and the handcuffs were removed.
The plaintiff sued the State of New South Wales for wrongful imprisonment, assault, and battery, seeking compensatory, aggravated, and exemplary damages. The State accepted vicarious liability for any proven tort committed by the officers, but denied that any unlawful conduct occurred. The State's position was that the arrest, search, and release were all lawfully justified, and that any force used was reasonably necessary.
Legal Issues
- Whether the arresting officer had reasonable grounds to arrest the plaintiff without a warrant under the Law Enforcement (Powers & Responsibilities) Act 2002 (NSW), s 99
- Whether the arrest was otherwise lawful, including whether any force applied during the arrest and detention constituted assault and battery
- Whether the officer's power to discontinue the arrest was lawfully exercised
- Whether the plaintiff was entitled to damages, including aggravated or exemplary damages, for the manner in which the arrest was effected
Decision
The court resolved significant factual disputes by carefully analysing the triple-zero recordings and the evidence of all witnesses. Judge Smith SC found the plaintiff's accounts of the events to be unreliable. The court noted that during his triple-zero calls, the plaintiff had exaggerated or fabricated a number of details: he described an "invasion" of his property when no such thing occurred, claimed not to know the identity of someone he knew well, and raised unfounded suggestions of weapons and murder. The court found this pattern undermined the plaintiff's credibility as a witness to the critical events.
On the lawfulness of the arrest, the court found that the arresting officer had reasonable grounds to believe the plaintiff had committed an offence, satisfying the statutory test under s 99 of the Law Enforcement (Powers & Responsibilities) Act 2002 (NSW). The court applied established authority, including George v Rockett (1990) 170 CLR 104, that the relevant standard requires more than a mere suspicion but less than a belief based on established facts. The officer's state of mind, assessed objectively on the information available at the time, met that threshold.
The court also considered the manner in which the arrest was discontinued. It found that the officer acted within power in deciding to release the plaintiff when circumstances at the scene changed, and that the physical contact during the removal of the plaintiff from the van did not constitute unlawful assault or battery. The use of force was found to be reasonably necessary in the circumstances. The plaintiff's claims accordingly failed on all grounds.
Orders Made
- Verdict and judgment for the defendant (State of New South Wales)
- The plaintiff to pay the defendant's costs
- Exhibits to be returned
- Liberty to apply on 7 days' notice if further orders are required
Key Takeaways
- The District Court confirmed that the lawfulness of a warrantless arrest under s 99 of the Law Enforcement (Powers & Responsibilities) Act 2002 (NSW) turns on whether the arresting officer held a reasonable belief, assessed objectively, that the person had committed an offence. A subjective suspicion alone is insufficient; a bare assertion of belief is equally insufficient.
- Credibility findings can be decisive in contested arrest cases. Here, the court's assessment that the plaintiff was an unreliable witness, based substantially on contradictions between his triple-zero calls and his oral evidence, was central to the verdict.
- An officer's power to discontinue an arrest does not render the preceding arrest unlawful. The court treated the decision to release the plaintiff as a lawful exercise of the officer's discretion in response to changed circumstances on the ground.
- Where force used during an arrest is found to be reasonably necessary in the circumstances, it does not constitute assault or battery, even where physical contact causes incidental consequences such as the transfer of blood.
- The State's concession of vicarious liability under the Law Reform (Vicarious Liability) Act 1983 (NSW) did not assist the plaintiff, because liability ultimately depended on establishing that the officers' conduct was itself unlawful, which the court did not find.
Legislation and Cases Referenced
Legislation
- Law Enforcement (Powers & Responsibilities) Act 2002 (NSW), ss 23, 99, 105, 201, 230, 231
- Law Enforcement (Powers & Responsibilities) Amendment (Arrest without Warrant) Act 2013 (NSW)
- Civil Liability Act 2002 (NSW), ss 3B, 21, 52
- Law Reform (Vicarious Liability) Act 1983 (NSW), s 8
- Crimes Act 1900 (NSW), s 545B
- Crimes (Domestic & Personal Violence) Act 2007 (NSW), s 13
Cases
- George v Rockett (1990) 170 CLR 104
- Williams v The Queen (1986) 161 CLR 278
- Ruddock v Taylor (2005) 222 CLR 104
- Holgate-Mohammed v Duke [1984] AC 437
- O'Hara v Chief Constable of Royal Ulster Constabulary [1997] AC 286
- State of New South Wales v Cuthbertson [2018] NSWCA 320
- State of New South Wales v McMaster [2015] NSWCA 228
- Zaravinos v State of New South Wales (2004) 62 NSWLR 58
- Croucher v Cachia [2016] NSWCA 132
- Poidevin v Semaan (2013) 85 NSWLR 758
- Uren v John Fairfax & Sons Ltd (1966) 117 CLR 118
- Barton v Armstrong [1969] 2 NSWR 451