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District Court 28 June 2024

Emde v State of New South Wales

[2024] NSWDC 268

Assault & violencePublic order & justice offences
BATTERY FALSE IMPRISONMENT WRONGFUL ARREST DEFENCES SUSPICION ON REASONABLE GROUNDS

Citation: Emde v State of New South Wales [2024] NSWDC 268
Court: District Court of New South Wales
Date: 28 June 2024
Judge: Andronos SC DCJ

Background

The plaintiff, a 78-year-old man, was arrested outside a café at Richmond Marketplace on 21 April 2022. The arrest followed two occasions on which he attended that shopping centre in apparent contravention of an Apprehended Domestic Violence Order (ADVO) made for the protection of his adult daughter, who worked at a Woolworths within the complex. The plaintiff maintained he had not attempted to contact his daughter and had visited the centre for other purposes.

A central factual dispute turned on the scope of the ADVO's restrictions. The order named "Woolworths Richmond, Richmond Market Place, Paget Street and Lennox Street, Richmond" as prohibited places, and the question arose whether that language confined the prohibition to Woolworths alone or extended to Richmond Marketplace more broadly. The plaintiff pleaded guilty in the Local Court to two counts of contravening the ADVO under s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), though no conviction was recorded and the proceedings were dismissed under s 10(1A) of the Crimes (Sentencing Procedure) Act 1999 (NSW). He later obtained a variation to the ADVO removing reference to Richmond Marketplace entirely.

The plaintiff then sued the State of New South Wales, claiming it was vicariously liable for the arresting officers' conduct. He alleged wrongful arrest, false imprisonment, battery, and assault, and sought substantial damages. The State denied all allegations and relied on s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) as lawful authority for the arrest.

  • Whether the plaintiff established the elements of the tort of battery
  • Whether the plaintiff established the elements of the tort of assault
  • Whether the plaintiff established the elements of the tort of false imprisonment (wrongful arrest), and, if so, whether the State established lawful authority for the arrest under s 99 of LEPRA by demonstrating:
  • that the arresting officers suspected on reasonable grounds that an offence had been committed; and
  • that the officers were satisfied the arrest was reasonably necessary for one or more of the purposes listed in s 99(1)(b) of LEPRA
  • What damages, if any, the plaintiff was entitled to

Decision

Andronos SC DCJ dismissed all claims. On battery and assault, the court found that the plaintiff had not established the relevant elements. The judgment does not detail extended reasoning on those claims, treating them as not made out on the facts.

On false imprisonment, the court accepted that the arrest constituted a prima facie trespass but found the State had established lawful authority under s 99 of LEPRA. The arresting officers held a reasonable suspicion that the plaintiff had committed an offence by attending Richmond Marketplace on two occasions in contravention of the ADVO. The court found the terms of the ADVO, properly construed, extended beyond Woolworths to Richmond Marketplace as a whole, supporting the officers' belief that a breach had occurred.

The court also found the officers were genuinely satisfied that the arrest was reasonably necessary for a purpose within s 99(1)(b) of LEPRA. In reaching that conclusion, the court examined the officers' evidence about their state of mind and the circumstances. The plaintiff had attended the Marketplace twice within days, his daughter had been distressed, and the arresting officers formed the view that proceeding by way of summons was not a sufficient response. One probationary constable's characterisation of any ADVO breach as inherently "violent" was noted and scrutinised, but the court's overall conclusion rested on the reasonableness of the decision to arrest taken by the more experienced senior officer.

On damages, the court indicated (in the alternative, given its finding of lawful arrest) that compensatory damages would have been assessed at $5,000 had the arrest been found unlawful. The court found no basis for aggravated or exemplary damages in any event. The plaintiff was not handcuffed, was permitted to drive himself to the police station, and was not placed in a cell, though his age and the public circumstances of his arrest in front of acquaintances were acknowledged as relevant factors.

Orders Made

  • Judgment for the defendant
  • The parties directed to liaise and seek to agree on a costs order
  • In default of agreement, costs listed for hearing on 5 July 2024 at 10am before Andronos SC DCJ

Key Takeaways

  • Under s 99 of LEPRA, a lawful arrest requires both a reasonable suspicion that an offence was committed and genuine satisfaction that arrest was reasonably necessary for an enumerated purpose; the District Court examined both limbs separately on the evidence.
  • The court's construction of the ADVO was central to the outcome: the prohibited places clause was found to extend to Richmond Marketplace as a whole, not only to the Woolworths premises within it, which underpinned the reasonableness of the officers' suspicion.
  • A prior guilty plea in criminal proceedings (even one resulting in a non-conviction dismissal under s 10) does not automatically resolve civil liability for wrongful arrest; the civil court conducted its own independent analysis of the arrest's lawfulness.
  • Where an arrest is ultimately found lawful, an alternative assessment of compensatory damages remains useful to record: the District Court's indicative figure of $5,000 reflected a short detention, absence of physical restraint, and the plaintiff's age and public embarrassment, with no basis for aggravated or exemplary damages.
  • The characterisation by a junior officer that any ADVO breach is inherently "violent" attracted judicial scrutiny, though it did not determine the outcome; the lawfulness of the arrest was assessed by reference to the senior officer's state of mind and the overall circumstances.

Legislation and Cases Referenced

Legislation
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 99
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10
- Crimes (Appeal and Review) Act 2001, s 5

Cases
- AD v State of New South Wales [2023] NSWCA 115
- Reeves v State of New South Wales [2024] NSWCA 125
- State of New South Wales v Riley [2003] NSWCA 208
- Zaravinos v State of New South Wales (2004) 62 NSWLR 58
- Ruddock v Taylor (2005) 222 CLR 612
- State of New South Wales v Randall [2017] NSWCA 88
- Jankovic v Director of Public Prosecutions [2020] NSWCA 31
- CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514
- Watson v Marshall & Cade (1971) 124 CLR 621
- Briginshaw v Briginshaw (1938) 60 CLR 336
- Fox v Percy (2003) 214 CLR 118
- Goldie v Commonwealth of Australia No 2 [2004] FCA 156
- Louis v Commonwealth (1987) 87 FLR 277
- Transport Industries Insurance Co v Longmuir [1997] 1 VR 125
- Helton v Allen (1940) 63 CLR 691
- Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd's Rep 403
- State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3