Trobridge v Hardy [1955] HCA 68

High Court of Australia Fullagar, Kitto and Taylor JJ. Trobridge v Hardy [1955] HCA 68

ORDER Appeal allowed with costs. Discharge order of Supreme Court of Western Australia. In lieu thereof judgment for plaintiff in action for £527 17s. 0d. with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 7 Fullagar J.

This is an appeal from a judgment of the Supreme Court of Western Australia in an action in which the appellant was plaintiff and the respondent was defendant. The plaintiff is a taxi-cab proprietor, and the defendant is a constable of police. The case arose out of the arrest and imprisonment of the plaintiff, who was subsequently charged before a magistrate with refusing to give his name and address to the defendant. On this charge he was acquitted. At the trial, which took place before Virtue J., there was a conflict of evidence between the plaintiff and the defendant. Virtue J. accepted the evidence of the plaintiff, which was corroborated in material respects by two independent witnesses, Davies and Skeffington. The effect of the evidence for the plaintiff may be summarized as follows.

About 9.15 p.m. on 24th July 1954 the plaintiff was driving his taxi-cab along William Street, Perth, at a slow speed. Being hailed from the kerb by two intending passengers, he stopped his car, and backed it towards the kerb, in order that the intending passengers might enter. As he opened the rear door, the defendant, who was in plain clothes, approached. He was accompanied by another constable, also in plain clothes, who seems to have played a comparatively silent and inactive part in the drama which followed. Thinking that the defendant wished to hire the taxi-cab, the plaintiff said: "Excuse me, I am afraid these people hired the taxi first." The defendant said: "Never mind about you! Police here! What the hell are you doing here? You have no bloody right to be here." The plaintiff asked whether he was to be allowed to take his passengers or not, and was told that he would not be allowed to do so. The defendant then demanded his name and address. The plaintiff asked him what he was to be charged with, and the defendant replied: "Plying for hire". The plaintiff then said: "In that case you won't mind if I take the names and addresses of these people, who wished to hire me and were responsible for my stopping." He also handed the defendant his card and (according to Davies) said: "That has got my name and address, and I will tell you anything else you want to know when I have taken these people's names and addresses." It is important to note that the defendant admitted in cross-examination that he accepted the plaintiff's explanation that he had been hailed from the kerb. He could hardly have done otherwise, because the intending passengers were there, and there was no shadow of reason for doubting the plaintiff's word. The card contained the name and address of the plaintiff, the situation of his taxi-stand, and his business and private telephone numbers. As he was taking down the name and address of the first man, the defendant grabbed him by the shoulder and said: "How much longer are you going to be? The police are not going to wait all night for you." The plaintiff said: "I won't be a moment". Whereupon the defendant "thumped him again severely on the shoulder", and said:—"You are under arrest." Being asked the reason for the arrest, he said: "For refusing to give your name and address." The plaintiff said that he still wished to take the names and addresses of the persons who had hailed him, and who had seen him give his card to the defendant and had heard what he said. The defendant replied: "If you hesitate one moment, I will handcuff you." He was then arrested and taken to the police station. The bystanders protested and wished to go to the police station in the cab, but this the defendant refused to allow them to do. He waved the plaintiff's card in the air, and said: "This doesn't mean a thing to me, nor what you people saw or heard! We're not interested in bloody witnesses!" On arrival at the police station he was searched with considerable violence. Although he had ample money for bail on his person, he was then taken by the defendant and another constable to a cell. He was told to remove his shoes and socks, and was struck a severe blow on the neck. He was also told to remove his tie. When this had been done, he was placed in the cell. There were three other men in the cell, and he stood in his bare feet on a cement floor for the best part of two hours. He was then taken out of the cell, and, after his finger-prints had been taken, he was allowed to leave, a sum of five pounds being retained, out of the money which had been in his possession, for bail. The plaintiff was subsequently charged before a magistrate with refusing to give his name and address, and, as has been mentioned, he was acquitted. On the facts as found by Virtue J., the charge was impudent, and the acquittal inevitable.