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District Court 14 July 2022

Toth v State of New South Wales

[2022] NSWDC 263

Sexual offences
TORT

Citation: Toth v State of New South Wales [2022] NSWDC 263
Court: District Court of New South Wales
Date: 14 July 2022
Judge(s): Weber SC DCJ

Background

The plaintiff was arrested in March 2015 after a member of the public observed him holding a pen camera beneath a woman's skirt on the stairs at Town Hall Station in Sydney. He was escorted to a nearby shopfront police station, subsequently arrested, handcuffed, and transferred to Day Street Police Station. A criminal prosecution followed for the offence of filming a person's private parts under s 91L(1) of the Crimes Act 1900 (NSW), but that prosecution ultimately failed.

The plaintiff then brought civil proceedings against the State of New South Wales. He alleged that police conduct throughout the episode gave rise to four separate torts: false imprisonment (arising from two distinct incidents), battery, assault, and malicious prosecution.

The defendant, the State, denied each claim and maintained that police acted lawfully throughout.

  • Whether the plaintiff was falsely imprisoned at the Town Hall shopfront police station before his formal arrest, and again during his transfer to and detention at Day Street Police Station.
  • Whether the placing of handcuffs on the plaintiff constituted battery.
  • Whether police conduct amounted to assault.
  • Whether the prosecution was instituted or maintained maliciously and without reasonable and probable cause, satisfying the elements required for malicious prosecution.

Decision

False imprisonment at Town Hall Station: The court found that the plaintiff had not been imprisoned during the period he sat in the public reception area before his formal arrest. He had voluntarily accompanied the member of the public and a security guard to the station, gave no evidence that he tried or wanted to leave, and was unaware the door had been locked because the locking mechanism was not visible from where he sat. In those circumstances, no false imprisonment was established for that period.

Arrest and transfer to Day Street: The court accepted that the arresting officer had reasonable grounds to arrest the plaintiff under s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA). The transfer to Day Street was necessary because the Town Hall shopfront lacked the facilities required for a proper investigation. All requirements of Part 9 of LEPRA governing custody were found to have been complied with.

Battery (handcuffing): The court rejected the battery claim arising from the use of handcuffs. The unchallenged evidence of the arresting officer was that handcuffs were applied to prevent escape during conveyance between stations. The court found this was a lawful and proportionate exercise of police powers in the circumstances.

Malicious prosecution: To succeed on this claim, the plaintiff needed to establish that the prosecution was initiated or maintained without reasonable and probable cause and with malice. The court found that the investigating officer, Senior Constable Perry, genuinely believed the plaintiff had committed the offence and that the evidence was sufficient to establish it beyond reasonable doubt. An email in which the officer stated the plaintiff "shouldn't get off" simply because he had not pleaded guilty was interpreted not as evidence of malice but as a proper exercise of the prosecutorial function. The court found no malice and rejected the claim entirely.

Orders Made

  • Judgment and verdict for the defendant.
  • Any party wishing to be heard on costs to notify the court by noon on 18 July 2022.
  • Costs submissions to be filed and served on a timetable set by the court, with the matter to be decided on the papers.
  • In the absence of a notification to be heard, the plaintiff to pay the defendant's costs.

Key Takeaways

  • The District Court confirmed that a person who voluntarily attends a police station and makes no attempt to leave is not falsely imprisoned, particularly where any physical constraint on departure is not communicated to or perceived by that person.
  • Reasonable and probable cause for arrest does not require certainty of guilt; it requires that the arresting officer hold an honest belief, based on reasonable grounds, that the suspect has committed an offence.
  • Under LEPRA, transferring an arrested person to a more appropriately equipped station is a lawful step that does not of itself constitute false imprisonment, provided custody requirements are otherwise met.
  • For a malicious prosecution claim to succeed, the plaintiff must establish both absence of reasonable and probable cause and actual malice; an officer's view that a prosecution should proceed despite a plea of not guilty does not satisfy the malice element.
  • Errors in a facts sheet prepared for criminal proceedings do not, without more, constitute evidence of malice in the prosecution of a defendant.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 91L
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), Part 9; ss 99, 105, 114, 230 and 231
- Summary Offences Act 1988 (NSW), s 4

Cases:
- A v New South Wales (2007) 230 CLR 500
- Beckett v New South Wales (2013) 248 CLR 432
- Collins v Wilcock [1984] 3 All ER 374
- Croucher v Cachia (2016) 95 NSWLR 117
- Johnstone v Sutton (1786) 1 TR 510
- Lindley v Rutter [1981] QB 128
- Rixon v Star City Pty Ltd (2001) 53 NSWLR 98
- State of New South Wales v Le [2017] NSWCA 290
- State of New South Wales v McMaster (2015) 91 NSWLR 666
- State of New South Wales v Ouhammi (2019) 101 NSWLR 160
- Symes v Mahon [1922] SASR 447
- The Queen v Phillips (1971) 45 ALJR 467