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District Court 29 November 2023

McLaughlin v State of New South Wales

[2023] NSWDC 525

Assault & violencePublic order & justice offences

Citation: McLaughlin v State of New South Wales [2023] NSWDC 525
Court: District Court of New South Wales
Date: 29 November 2023
Judge: Russell SC DCJ

Background

In the early hours of Saturday 2 May 2020, police attended a Centennial Park apartment and arrested the plaintiff after finding an injured woman on the floor of the living room. Officers removed him from a bed, handcuffed him, and deployed capsicum spray before transporting him to Surry Hills Police Station. He was charged with two offences of violence and refused bail by a police officer at around 1.00pm that day.

At approximately 5.15pm, the plaintiff was transferred to a Corrective Services facility immediately adjacent to the police station, where he remained overnight. A Court Attendance Notice was not registered until 10.35am the following morning, Sunday 3 May 2020, which was the first point at which a court had jurisdiction to hear a bail application. The plaintiff was granted court-imposed bail that afternoon.

The plaintiff sued the State of New South Wales, which admitted vicarious liability for the conduct of the four police officers involved. The plaintiff alleged false imprisonment on two separate occasions, non-compliance with statutory requirements under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA), and assault and battery arising from the use of capsicum spray. He sought compensatory, aggravated, and exemplary damages.

  • Whether the plaintiff was lawfully arrested under s 99(1) of LEPRA, including whether the requirements of s 202 (giving reasons for arrest) were met
  • Whether the initial restraint of the plaintiff inside the apartment constituted a separate false imprisonment
  • Whether police officers used reasonably necessary force in applying capsicum spray, or whether this constituted assault and battery
  • Whether the overnight detention of the plaintiff was lawful under s 46 of the Bail Act 2013 (NSW), specifically whether police complied with their obligation to bring him before a court as soon as practicable after bail was refused
  • The appropriate categories and quantum of damages, including whether aggravated or exemplary damages were warranted

Decision

Arrest and initial detention: The court found that the initial arrest was lawful under s 99(1) of LEPRA. Although the plaintiff raised issues about compliance with the obligation under s 202 to inform an arrested person of the reason for the arrest, the court was satisfied, on the body-worn camera footage, that Officer Vial did communicate the reason at the time of arrest. Any failure to comply with s 202 would not, in any event, have rendered the arrest unlawful under s 99(3) of LEPRA in the circumstances found.

Capsicum spray: The court considered the use of force by the arresting officer in some detail, including footage showing capsicum spray applied at close range. The court's findings on this issue were that the use of force was not reasonably necessary in the circumstances, and that the application of capsicum spray constituted a battery. The State's defences of self-defence at common law and under s 52 of the Civil Liability Act 2002 (NSW) were not accepted on the facts as found.

Overnight detention and the Bail Act: The court found that the second false imprisonment arose from the failure of police to bring the plaintiff before a court as soon as practicable after bail was refused, as required by s 46 of the Bail Act 2013 (NSW). The Court Attendance Notice was generated at Surry Hills Police Station and could have been registered electronically without delay, which would have enlivened the Local Court's jurisdiction. Instead, police waited for Corrective Services to collect the plaintiff and took no steps to file the notice until the following morning. The court rejected the suggestion that delegation of custody to Corrective Services discharged the police obligation under s 46.

Damages: The court awarded general damages of $5,000, declined to award aggravated damages for lack of sufficient evidentiary support, and awarded exemplary damages of $5,000. The exemplary damages award reflected the court's disapproval of what it characterised as a blasé approach by police to their statutory obligation, including the absence of any explanation for the overnight delay in filing a notice that could have been lodged at the touch of a button. The court expressed concern that this appeared to reflect standard practice rather than an isolated oversight.

Orders Made

  • Judgment for the plaintiff against the defendant for $10,000.
  • Costs reserved.

Key Takeaways

  • The District Court confirmed that the obligation under s 46 of the Bail Act 2013 (NSW) to bring a person before a court as soon as practicable after bail is refused rests with police and cannot be discharged simply by transferring the person into the custody of Corrective Services.
  • A failure to register a Court Attendance Notice, where that step is straightforward and within police control, may cause an overnight detention to become unlawful and constitute false imprisonment, even where the original arrest was lawful.
  • Exemplary damages are available where police conduct in detaining a person reflects indifference to a clear statutory duty, particularly where no explanation is offered for an avoidable delay and the conduct appears to reflect routine practice.
  • Under LEPRA, a failure to comply with s 202 (the obligation to inform an arrested person of the reason for arrest) does not automatically render an arrest unlawful, but the obligation remains substantive and the court will scrutinise body-worn camera footage closely to assess compliance.
  • Where capsicum spray is deployed on a restrained person and the court is not satisfied that the force was reasonably necessary, neither common law self-defence nor s 52 of the Civil Liability Act 2002 (NSW) will provide a complete answer to a battery claim.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), ss 16A, 43, 44, 46, 47, 48, 61
- Civil Liability Act 2002 (NSW), s 52
- Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 7, 10
- Crimes Act 1900 (NSW), ss 37, 61
- Crown Proceedings Act 1988 (NSW), s 5
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 99, 202, 230, 231
- Law Reform (Vicarious Liability) Act 1983 (NSW), s 8
- Uniform Civil Procedure Rules 2005, r 33.8

Cases:
- Barr v Director of Public Prosecutions (NSW) [2018] NSWCA 47
- Christie v Leachinsky [1947] AC 573
- Director of Public Prosecutions (NSW) v Greenhalgh [2022] NSWSC 980
- Herne Investments (NSW) Pty Ltd v Don Watson Pty Ltd [2016] NSWCA 72
- McIntosh v Webster (1980) 43 FLR 112
- Ruddock v Taylor [2003] NSWCA 262
- State of NSW v Abed [2014] NSWCA 419
- Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118
- Watson v Marshall [1972] HCA 27; (1972) 124 CLR 62
- Woodley v Boyd [2001] NSWCA 35