District Court New South Wales Medium Neutral Citation: Zod v State of New South Wales; Hawchar v State of New South Wales [2022] NSWDC 71 Hearing dates: 7, 8, 9, 11 February 2022 Date of orders: 25 February 2022 Decision date: 25 February 2022 Jurisdiction: Civil Before: Weber SC DCJ Decision: In each case: (1) That there be judgment and verdict for the Defendant against the Plaintiff; and (2) That any party wishing to be heard on the issue of costs notify my associate of that fact on or before noon on 4 March 2022 ("Notification") (3) That in the event of Notification, the notifying party shall file and serve any evidence and submissions on the issue of costs on or before 4:00pm on 11 March 2022. (4) That the non-notifying party file and serve any evidence and submissions which it wishes to make on the issue of costs on or before 4:00pm on 18 March 2022. (5) That the notifying party file and serve any submissions in reply on or before 25 March 2022. (6) That the filing of the documents referred to in orders (3), (4) and (5) be effected by way of email transmission to my associate. (7) That any issue as to costs be decided on the papers. (8) That in the absence of Notification, the Court will order that the Plaintiff will pay the Defendant's costs. Catchwords: TORTS – Trespass to land – standing – where plaintiffs assert that they have a lease on a property – where a mere license is insufficient for standing TORTS – Trespass to land – Defences – police power of entry – mistaken identity TORTS – Trespass to the person – False imprisonment – Defences – police power of arrest – police power to secure premises Legislation Cited: Law Enforcement (Powers & Responsibilities) Act 2002 Cases Cited: Duncan v Jones [1936] 1 KB 218 Innes v Weate (1984) 12 A Crim R 45 Moutia Elzahad v Commonwealth of Australia and State of New South Wales [2016] NSWDC 353 State of New South Wales v McMaster (2015) 91 NSWLR 666 State of New South Wales v Tyszyk [2008] NSWCA 107 State of Western Australia v Ward and Others (2002) 213 CLR 1 Category: Principal judgment Parties: Bilal Zod (First Plaintiff) Sarah Hawchar (Second Plaintiff) State of New South Wales (Defendant) Representation: Counsel: Edward McMahon (Plaintiffs) Matthew Gollan (Defendant) Solicitors: Harrow Legal (Plaintiffs) Makinson D'Apice (Defendant) File Number(s): 2020/00235279 2020/00235287 Publication restriction: NA Judgment Background 1. Issam Alam ('Alam") was released from custody on parole on about 9 August 2014. 2. He was serving a sentence of 17 months' imprisonment for offences of assault police officer in the execution of duty, possess ammunition without permit, not keep firearm safely, possess unregistered firearm and possess unauthorised pistol. He was released on parole having served a 9 month non-parole period. It was a condition of his parole that he live with his parents at their property in Guildford ("The Guildford Address"). 3. Alam was a member of the Brothers for Life criminal gang which had been involved in a turf war with other crime groups. In 2014, that turf war had been raging in Sydney's south-western suburbs. Gang members of respective gangs had been killed and wounded by the use of firearms. Members of the public had survived near misses by being in the wrong place at the wrong time. Indeed Alam himself had been the victim of gunshot violence. 4. Inspector James Beckett ('Beckett'), who at the relevant time was a sergeant, gave evidence wherein he described the level of organised crime and gun related offences in Sydney's southwest at the time as being "mayhem". He said that it was "bordering out of control". He said that the level of gun crime in south-western Sydney in 2014 was the highest that he had ever seen. 5. On 13 August 2014 police were called to a street in southwest Sydney responding to reports of the discharge of a firearm in a public place. The name of the street was redacted in the evidence before me. 6. It appears that this street was the street in which a family lived, at least one of whose members was in dispute with Alam. The names of the family members were also redacted. The evidence disclosed that this animosity had earlier led to acts of malicious damage to the family's home, including a firebombing. It may have been that the reason why Alam went to that location in company with an unidentified male was to resolve the animosity between Alam and the other man. If that was the purpose, then the visit was unsuccessful. Witnesses reported that Alam and the man engaged in a brawl in the street. This brawl was brought to its conclusion by Alam firing a number of shots from his firearm in the suburban street. He then fled in a motor vehicle. 7. It should be kept in mind that this incident occurred a mere four days after Alam had been released on parole. Police attended, established a crime scene, and took statements. These statements identified Alam as the gunman. Police then determined to locate and arrest Alam for affray and discharging a firearm in a public place. 8. Police attended the Guildford Address in search of Alam. This occurred in mid-afternoon of 13 August 2014. Alam's father was present. He told police that his son was not home. Alam's father told police that he would notify them when his son returned (TP 97.13 – 15) 9. Police then searched for Alam at a local hotel and at other locations. One of the searched locations was the home of an Alam associate named Houchar. Houchar was described by Inspector Beckett as being at the time to his mind "number one public enemy". He went on to say that "he was probably the most violent and reckless person around the south-west." He had information that Houchar was with Alam at the time of the discharge of the firearm in a public street. Beckett continued, "so I had serious concerns and that's – that's why it was a high risk operation that we thought he was with at Houchar's as I said any dealings with Houchar, I would have serious concerns for – for police safety" (TP 154). 10. It was against this background that police resolved to return to the Guildford Address later that night in an attempt to locate and arrest Alam. The Bass Hill Region Enforcement Squad 1. At the time, there was a squad within the New South Wales police force known as the Bass Hill Regional Enforcement Squad ("BHRES"). BHRES had a number of functions, one of which was performing what was known as "Talon Tasking". This involved knocking on doors of organised crime gang members, and persons who police believed were involved in shooting incidents, with the intention of engaging them to suppress those shooting incidents. BHRES officers were also tasked with operations involving high risk arrests or high risk executions of arrest warrants. Officers within BHRES were provided with specialist Operations Service Group training so as to enable them to undertake their high risk work in as safe a manner as possible. The Arrest of Alam 1. Due to significant concerns by police as to the potential for Alam to resist his arrest, and more particularly resort to the use of his firearm for that purpose, it was resolved that the attempt to arrest Alam at the Guildford Address would be undertaken by BHRES officers. 2. The arrest was coordinated by Detective Inspector Scott, then a detective sergeant. A large group of police designated to effect the arrest was briefed. Operational orders were promulgated which outlined the circumstances of the arrest; the fact that Alam was to be arrested for discharging a firearm in a public place; a description of the offender and his background; his propensity to gun violence; the fact that he had only been recently released from custody, and that his arrest would almost certainly result in his parole being revoked and thus his return to custody. The officers were warned that the likelihood that Alam would be returned to custody would increase the risk of him resisting his arrest. 3. The information provided at the briefing caused Inspector Beckett, who was the officer in charge of the arrest onsite, to consider the arrest of Alam to be "at the highest level of risk". 4. Beckett had assembled and briefed a contingent of eleven police to undertake the task of locating and arresting Alam. They travelled to the Guildford Address in three marked police cars. Two of the three cars each contained three police from BHRES, and the third car contained three police from Operation Talon, operating out of Bass Hill. The Operation Talon officers included Sergeant York and Constable Cervello. These officers were tasked to affect the arrest of Alam. The cars contained ballistic police vests, which the evidence suggests were used in the arrest (TP 162.47). 5. Inspector Beckett was in a fourth car accompanied by two other constables. 6. The police arrived at the Guildford Address at approximately 1:30 AM on 14 August 2014. 7. Inspector Beckett and his team went to the front door of the premises, but Beckett did not knock on the door until the other attending police had gone to the left-hand and right-hand sides of the premises and to its rear in order to secure the building's perimeter. This procedure, self-evidently, was designed to prevent the escape of Alam. 8. Once the perimeter had been secured, Beckett knocked loudly on the door and identified himself as a police officer. Alam's father came to the door, and spoke to Beckett through a mesh security door. Beckett asked "is Issam here?" to which Alam's father replied "yes". 9. Beckett then used his portable radio, which he described as being "on back channel 65". "Being on channel 65" apparently allowed Beckett to communicate with his team as if his radio was a walkie-talkie. He said simply "He is here". 10. Beckett then heard a commotion from behind the house with police yelling such things as "police", "get on the ground", "show me your hands" and the like. Beckett went around the side of the house to a garage structure which was the source of the commotion. At that time, he believed that his officers had apprehended Alam there. A short time later, Sergeant York exited the garage and said, "the room's secure, but it's not him". 11. Beckett then returned to the front door and ultimately gained entry and arrested Alam who was asleep on the couch in the family lounge room. The Events in the Garage Structure 1. Sergeant Heddle, who was at the time a constable and a member of BHRES, had been briefed like each of the other officers involved in relation to the proposed arrest of Alam. He gave evidence in the following terms: Q. Did that influence your approach or the manner in which you conducted yourself at the premises? A. Yes, it did. Q. In what way? A. Obviously, with that - with that information, we - I was aware that I needed to be cautious on approach and, obviously, when we were going to the property, to just exercise caution, as a firearm was involved, just to ensure maximum safety for myself and other people present, other officers there. Q. Did you have an expectation that there might be firearms on the premises? A. Yes. (TP 110.4-22) 1. Heddle was responsible for securing the perimeter of the house. He arrived with Senior Constable Prettyman and Constable Azzi. They went up the right-hand side of the main house and through the green gate where they then encountered what appeared to be a garage structure. Heddle noticed the garage had a conventional door, as distinct from a "roller" type door. He knocked on it. His evidence proceeded: Q. Why did you knock on the door of the garage? A. That was due to the fact that I wasn't aware if there were any windows or anything of the such or any other doors at the rear of the garage which would expose me once I had passed that door. It's also general practice for us not to pass doors without sort of checking what's behind them, just for our own safety and the intel that we were approaching that house for. So I just thought it was safest if I knock on the door, just to - to rule out that and to ensure the safety - my safety and my partner's. Q. So when you tell his Honour the intel, what are you having regard to? A. So, obviously, the intel of what had happened prior, earlier, the day before, with the shooting. Occurred during the day. Pretty brazen, in my opinion, and so, yeah, just - so the intel based on that, that that - that such a serious sort of crime had - had been committed, as well as an affray in public. Q. Having knocked on the door, what happened then? A. I heard noise from inside, which I thought were footsteps. Q. What did that make you think? A. Obviously, first of all, made me wonder what someone would be doing in a garage at 1.30 in the morning. Second, it made me wonder if that was the person we were looking for, Issam Alam, that - that could have been inside that garage area and, yeah, may have been, you know, concealing himself, since we arrived in fully marked police cars. A lot of properties these days have cameras, and, yeah, I wasn't sure who could have been in there, but I suspected that it may have been Issam Alam. Q. Having had those thoughts, what did you then do? A. I checked to see if the door was unlocked and I turned the - the handle of the door, and it opened. Q. During the process of doing any of this, did you say anything? A. At this point, I hadn't said anything. When I had first, like, turned the handle, when I tested the handle, I had not said anything at this point. Q. So why hadn't you said anything at that time? A. Just because - no - no reason that I can think of. Just because my intention was to open - test the door, and then, if it was locked..(not transcribable)..something, just if anyone was inside, or if it opened, then speak, so it could be heard better from someone behind the door if it opens. Q. Having opened the door, did you do or say anything then? A. Yeah. After opening the door, I said, "Hello. It's the police. Is anyone here?" (TP 111.36 – 112.30) 1. When Heddle opened the door he found that he was confronted with another closed door. He then realised that the structure that he was entering was not a garage, but rather was a structure which had formerly been a garage but which had been converted to a "granny flat". I should add that the room was in darkness and the only light available to Heddle was his torch. Heddle again said "it's the police is anyone here?" to which a male voice from the behind the closed wooden door said "who the fuck is it". He described the voice from behind the door as being agitated and "quite hostile". He said that he called out "police come out". At some point Heddle and his colleagues drew their service revolvers. The other police were also relying on their torches for light. 2. Eventually, the wooden door partially opened, and a man's head appeared from behind the door. The man was Middle Eastern in appearance and had a shaved head. Heddle believed the man to be Alam. He formed that view as he had been provided with a description of Alam at the briefing, and he believed that the man conformed to Alam's description. Heddle, Prettyman and York all placed themselves in positions which would give them some cover in the event of the discharge of a firearm. They did so as they believed that there was a high probability that a firearm was present in the granny flat. Sgt York continued to communicate with the man. He said on numerous occasions words to the effect of "it's the police, show us your hands." The evidence disclosed that although the man may have exposed one of his hands, he always kept at least one of his hands concealed. The man's head was also moving up and down from behind the door, suggesting that the man was lowering himself then returning to his normal height. 3. This movement was of concern to Heddle. He gave the following evidence: Q. What happened then? A. Sergeant York, I believe possibly, started communicating with the male. But his, while this is happening, his head has popped out from behind the door. It hasn't fully opened. I can't recall whether it was a left- or right-hand side opening door, but his head was poked out. He would randomly move his head up and down, not revealing his hands at any point to us. Sergeant York continued to communicate with him to show his hands to police, loudly and clearly. He kept saying, "it is the police, show us your hands. Come out, show us your hands." We may have seen one hand at the time, resting on the ground. But, there was always at least one hand concealed. His head was moving up and down behind the door. Q. What did that, if anything, make you think or feel? A. It reaffirmed for me that it was Issam Alam, due to the behaviour. Similar to someone that may have been trying to reach for a weapon, just the way that they were acting behind the door. Like moving up and down, not showing both their hands, I thought they were possibly reaching for something on the ground behind the door. But we were unable to see. I was very concerned, I mean that is why I have taken cover behind the door, as well as my other off siders. I was concerned that there was a weapon behind the door. Q. What did you do in response to that concern? A. I drew my firearm and pointed it towards the door, while I was still on the outside with my torch shining in that direction of the door. Q. When you drew your firearm did you point at the door? A. That is correct, yep, I pointed it at the door. Q. Why did you do that? A. Just for my own safety, because I was under the impression that, that person that I was seeing was Issam Alam. I knew he had been involved in a public place shooting the day prior. His hostility, and his erratic behaviour behind the door led me to believe that he may be in possession of a firearm at the time. (TP 114.16-37) 1. The man who Heddle believed to be Alam was in fact the plaintiff Bilal Zod. Zod was speaking to police partly in broken English and partly in Arabic. He was continuing to be aggressive. 2. Eventually Zod came out of the room on all fours. Sergeant York told him to lay flat on the ground, but he remained on all fours. York instructed Azzi and Heddle to go in and handcuff Zod. There was a dispute between the parties as to whether in this process Zod turned himself on his back, and as consequence resisted police efforts to place him on his stomach. I do not believe it is necessary to resolve this dispute as on any view of it, Zod was struggling with police and offering them resistance. Eventually police succeeded in handcuffing him behind his back. 3. At some stage during the course of Zod's struggle with police, the Plaintiff Ms Hawchar, who is Zod's wife, came to the lounge area of the granny flat from the bedroom. She moved close to her husband and urged him to calm down and stop struggling with police. She did so in Arabic. Constable Cervello, a female officer, entered the room and instructed Ms Hawchar to move away from her husband. She did so and was handcuffed. The uncontradicted evidence of Senior Constable Cervello (then a constable) was that she requested Ms Hawchar to place her hands behind her back and she placed handcuffs on her. The handcuffs, however, were not tightened up all the way due to the fact that Ms Hawchar was compliant. Senior Constable Cervello gave evidence that "at this stage it was unclear if there was potential firearm in the vicinity and I advised the female once we declared it safe I would remove her handcuffs. The female said 'that's okay' and did not complain of any pain or discomfort." (Ex P1 p119). 4. A short time thereafter, Sgt York entered into a granny flat and directed the officers to remove the handcuffs from both plaintiffs. They did so immediately. The Proceedings 1. The plaintiffs bring proceedings against the state of New South Wales as being vicariously liable for the tortious acts and omissions of the police officers involved in the arrest of Alam. They plead three causes of action namely: 1. trespass to land, being the unlawful entry by police into the granny flat; and 2. assault and battery constituted by the yelling, the pointing of weapons, and the taking hold of each plaintiff, including the use of handcuffs; and 3. false imprisonment constituted by the arrest and detention of the plaintiffs without lawful authority. Trespass 1. The defendant resists the trespass claim on two bases, namely: 1. that the plaintiffs lack standing to bring proceedings in trespass; and 2. that in any event, the entry into the granny flat was lawful pursuant to the operation of sections 9 and 10 of the Law Enforcement (Powers & Responsibilities) Act 2002 ("LEPRA"). Standing to Bring a Suit in Trespass 1. In their respective statements of claim, the plaintiffs plead that: at all material times, the plaintiff was in possession of, and resident at, a garage on the property known as [THE GUILDFORD ADDRESS] New South Wales. 1. Thus it seems that the plaintiffs found their standing to bring proceedings in trespass as arising from the fact of being "in possession of and resident at" the granny flat. In my opinion, neither the fact of possession, nor residency, is sufficient to found standing in the plaintiffs for the purposes of the tort of trespass to land. Rather, it is the legal right to possession, and not the physical fact of possession which is decisive in establishing standing (see State of Western Australia v Ward and Others (2002) 213 CLR 1 at [504] per McHugh J). 2. A lease affords a lessee with an interest in land. It is created by the lessor giving the lessee the legal right of possession for a determinate period (see Ward at [502]). 3. By contrast, a licence creates no interest in land. A licence only confers in the licensee a personal right enforceable against the licensor, which is enforceable in contract only. Crucially, a licence does not confer standing on the licensee to bring an action in ejectment, nor does it permit the bringing of an action of trespass to land (Ward at 504). 4. The evidence in the present case as to the nature of the plaintiffs' legal right to occupy the granny flat was quite unclear. 5. The Defendant made the following submissions on the issue, which were not put in issue by the plaintiffs 5. The Second Plaintiff (Ms Hawchar – wife of the First Plaintiff, Mr Zod) gave evidence that she understood there was a payment of rent between $290 and $300. When cross-examined, she confirmed that her husband looked after the finances and the living arrangements with the people that owned the premises, who lived in a parallel home. 6. Ms Hawchar confirms that there was free movement between members of each of the premises and there were "no off limits". Ms Hawchar confirmed that she did not specifically know about the rent or in fact whether or not there was any exchange because it was a matter left to her husband. 7. Mr Zod in his evidence said the owners of the premises imposed no "requirements" on him in order for his right to live in the granny flat. Later in his evidence when questioned by learned counsel for the Plaintiff, the following exchange appeared at T61.30: "Q. What do you mean by – when he gave you the granny flat? A. His family from my wife. He gave me the granny flat to help me because I was new to Australia. He tell me, listen, if you want to go to rent big house it's very expensive for you and you just come. You need someone to help you. I give you the garage to stay inside? Just you need time to fix the kitchen. I fixed the kitchen and I for today. He helped me to-- … [Line 43] Q. What did you say to Mohamed at the time? A. I said, okay, thank you and that's happened with someone around my family – Haynar, she tell me, go stay there, he help you, you can save little bit money for you and your life, to start a new life and I say, yes, no problem." 1. The plaintiff's evidence as to the nature of their occupation of the premises, in my view, goes no higher than as summarized in the defendant's submissions. 2. In closing submissions it was submitted by the plaintiffs that the following evidence justified a finding of standing (and thus inferentially, the existence of at least a lease): 1. They had keys to the premises; 2. They returned them when they moved out; 3. They furnished the space as they saw fit; and 4. They had a choice as to whether the door was locked. 1. These indicia of occupation do not, in my view, advance the matter further. 2. The plaintiffs of course bear the onus of establishing their standing to bring the proceedings in trespass, which onus must be discharged on the balance of probabilities. In my view the evidence adduced on the issue does not permit me to conclude that the plaintiffs have an interest in the granny flat sufficient to afford them standing to bring the action in trespass. Indeed, in my opinion, the better view of the evidence is that at best they held a licence. As such, I find that the plaintiffs lack standing to bring the cause of action in trespass. Was the Police Entry Lawful? 1. Having so concluded it is unnecessary for me to proceed to the Defendant's other defence to the claim in trespass, but given the manner in which the matter was argued I believe it is advisable that I deal with the alternate position of the State; namely that the police entry into the granny flat was lawful. 2. Before proceeding to this issue and the State's defences generally, it is well to re-emphasise the real fears held by the police that the person that they were tasked to arrest was likely armed, dangerous, and likely to resist arrest. This was the common view of all the police witnesses involved, and none were cross-examined to contrary effect. 3. The police considered that Alam was a potent danger to not only themselves, but for any other occupant of the premises. To my mind, the high risk nature of the task which the police were undertaking has a profound effect when one confronts the task of analysing the decision-making of the police and their consequent actions. 4. In Woodley v Boyd [2001] NSWCA 35 at [37] Heydon JA stated as follows "…in evaluating the police conduct, the matter must be judged by reference to the pressure of events and the agony of the moment, not by reference to hindsight. In McIntosh v Webster (1980) 43 FLR 112 at 123, Connor J said: "[Arrests] are frequently made in circumstances of excitement, turmoil and panic [and it is] altogether unfair to the police force as a whole to sit back in the comparatively calm and leisurely atmosphere of the courtroom and there make minute retrospective criticisms of what an arresting constable might or might not have done or believed in the circumstances." 1. I approach the task of analysing the decision-making and actions of the police in this manner. I also approach that task on the basis that the various police witnesses in giving evidence as to their thought processes and actions were in the main unchallenged and uncontradicted. 2. Before proceeding to the substance of the State's defence, I should add that it was common ground between the parties that the garage/granny flat fell within the definition of "dwelling" contained in section 3 of LEPRA. 3. The State submits that the police entry into the premises was justified by both sections 9 and 10 of LEPRA. 4. Under section 9(1) of LEPRA, the power of entry is informed by whether or not a police officer believes on reasonable grounds that: 1. a breach of the peace is being or is likely to be committed and it is necessary to enter the premises immediately and to end or prevent the breach of the peace; or 2. a person has suffered significant physical injury or there is imminent danger of significant physical injury to a person and it is necessary to enter the premises immediately to prevent further significant physical injury or significant physical injury to a person…" 1. Section 10 provides that: "10 Power to enter to arrest or detain someone or execute warrant (1) A police officer may enter and stay for a reasonable time on premises to arrest a person, or detain a person under an Act, or arrest a person named in a warrant. (2) However, the police officer may enter a dwelling to arrest or detain a person only if the police officer believes on reasonable grounds that the person to be arrested or detained is in the dwelling. (3) A police officer who enters premises under this section may search the premises for the person. (4) This section does not authorise a police officer to enter premises to detain a person under an Act if the police officer has not complied with any requirements imposed on the police officer under that Act for entry to premises for that purpose. (5) In this section-- "arrest" of a person named in a warrant includes apprehend, take into custody, detain, and remove to another place for examination or treatment." 1. The State argued that the uncontradicted evidence of Heddle, who was the crucial mind relevant to the entry, was that he believed that Zod was in fact Alam, and that he continued to have that state of mind at all times when he entered the premises and secured its occupants. 2. The State argued that in those circumstances the entry was justified to prevent a breach of the peace (see section 9(1)(a) of LEPRA). 3. In State of New South Wales v Tyszyk [2008] NSWCA 107 Campbell JA observed at [85] "the notion of breach of the peace is a multifaceted one, and includes a wide range of action and threatened action that interferes with the ordinary operation of a civil society". 4. His Honour's statement was adopted by the Court of Appeal (Beazley ACJ, Ward and Gleeson JJ) in State of New South Wales v Bouffler (2016) 95 NSWLR 521 at [169]. In so doing their Honours rejected the more restrictive English interpretation of the concept of the breach of the peace. 5. Police officers are bound to prevent breaches of the peace that they reasonably apprehend: Duncan v Jones [1936] 1 KB 218. The duty depends on a reasonable assessment by a police officer of a given situation, and upon review courts will balance the need for police to have "a wide discretion to act swiftly and decisively" with "the rights and duties of other citizens": Innes v Weate (1984) 12 A Crim R 45 per Cosgrove J at [51]. 6. Given the uncontradicted evidence of Heddle as to his belief that Alam was in the granny flat and in all likelihood armed, in accordance with the principles which I have just described, in my view, it could barely be gainsaid that Heddle considered on reasonable grounds that it was necessary to enter the granny flat to prevent a breach of the peace. 7. Given Heddle's belief that Alam was likely to be in possession of a firearm, I also consider that Heddle formed a view on reasonable grounds that it was necessary to enter as there was both an imminent danger of significant physical danger to a person and it was necessary to enter the premises immediately to prevent significant physical danger to a person (see section 9(1)(b) of LEPRA). 8. As such, to my mind Heddle's evidence establishes the bases for a right to entry pursuant to both limbs of section 9 of LEPRA. 9. As to section 10(2) it seems clear to me that given the nature of the briefing prior to the arrest operation, there were reasonable grounds for all police concerned to believe that Alam was at the Guildford Address. These reasons include the fact that: 1. The premises were where Alam was paroled to live; and 2. His father had earlier confirmed that he had been living there; and 3. His father had told police that he would notify them when his son returned. This to my mind could only carry with it the most natural of inferences that he expected his son to return. 1. Mr McMahon, who appeared for the plaintiff submitted that even if Heddle believed that Alam was inside the granny flat, he did not have reasonable grounds for that belief. He went on to submit that police did not know whether Alam was on the property. He noted that it was a second attendance on the property by police since the reported firearm incident. He characterised the presence of the police team at 1:30am as being there "to make the enquiries". 2. I do not believe that this is the case. I comfortably conclude that the police attended the property for the purposes of arresting Alam, who they had a reasonable basis for believing was on the premises. They did so for the reasons which I have articulated in paragraph [61]. 3. Indeed, I believe that it would be a strange outcome if it was adjudged that police did not believe on reasonable grounds that Alam was on the property when they knew he had been there, they knew he was expected to return, and that he was legally obliged to return. 4. It seems to me, therefore, that the police entry to the granny flat was also justified under section 10(2) of LEPRA. 5. It follows that for these reasons I find that the police entry into the granny flat was lawful, and thus even if the plaintiffs have standing to bring a suit in trespass, no such trespass to land has been established. The Detention of Zod. 1. Mr Gollan, who appeared for the State, argued that the detention of Zod was justified pursuant to sections 9 and 10 when read with sections 230 and 231 of LEPRA. The latter two provisions are in the following terms: 230 Use of force generally by police officers It is lawful for a police officer exercising a function under this Act or any other Act or law in relation to an individual or a thing, and anyone helping the police officer, to use such force as is reasonably necessary to exercise the function. 231 Use of force in making an arrest A police officer or other person who exercises a power to arrest another person may use such force as is reasonably necessary to make the arrest or to prevent the escape of the person after arrest. 1. Mr Gollan argued that the powers under sections 230 and 231 extended to the use of reasonable force to make the place of arrest safe for police, third parties, and the arrestee. He submitted that those sections authorised reasonable steps to secure premises the subject of an arrest. In that regard, Mr Gollan drew my attention to the decision in Moutia Elzahad v Commonwealth of Australia and State of New South Wales [2016] NSWDC 353 where Balla DCJ accepted that the powers under section 230 permitted the use of necessary and reasonable force to secure premises to ensure that they would be safe for those executing the warrant to enter. 2. I accept that this is the case. 3. Indeed I did not understand Mr McMahon to argue to the contrary. Rather his argument was that sections 230 and 231 did not afford an independent source of power. He submitted that these sections dealt with the manner of use of a power, which power must be found elsewhere in either the Act or the common law. I accept this is the case, but in my view a source of power upon which sections 230 and 231 can operate has been established. 4. In my view the sources of power under which sections 230 and 231 operate for present purposes are to be found is section 9, 10 and 99 of LEPRA. In that regard, I did not understand Mr McMahon to suggest that police were not justified in arresting Alam without a warrant pursuant to their powers under section 99. 5. Mr Gollan submitted on the State's behalf as follows: 17. Each of the police officers confirmed, that they were attending the location at [THE GUILDFORD ADDRESS] in respect of a very serious matter involving firearms. Specialist tactical groups were deployed for the purposes of the operation that had come at the conclusion of a "manhunt". Sergeant Beckett (as he then was) said that in his best recollection he wore a police ballistics vest. Each of the police were briefed with the seriousness of the matter and the imperative to locate and arrest Alam. Zod met the physical description of Alam. Zod behaved in a manner that each of the police officers confirmed caused concern: he was loud, abusive, non-responsive to direction, did not come out from behind the bedroom doorframe, aggressive in his tone, it was dark, did not show his hands and when sought to be restrained, resisted. 18. Senior Constable Heddle gave evidence as to his state of mind with respect to his approach of the garage and said that having heard footsteps inside, he: "…wondered what someone would be doing in the garage at 1.30 in the morning. Second it made me wonder if that was the person we were looking for, Issam Alam – that could have been inside that garage area … I suspected that it may have been Issam Alam." 19. He went on to say that he believed, when he saw Zod, him to be "Issam Alam at that point" because of the description given and the briefing. 20. Heddle went on to say that his belief that Zod was Issam Alam was reaffirmed when observing him in or about the doorframe to the bedroom and was fortified by his hostility and erratic behaviour behind the door. He was concerned that Zod was in possession of a firearm. 21. Having been briefed to find Alam and arrest him, Heddle believing that Zod was Alam, on reasonable grounds, Heddle proceeded to secure him, possessed of that state of mind. In fact, Heddle was later shocked to learn that Alam was not in the garage. It was never put, and respectfully nor could it have been, that Heddle's belief was unreasonable or not honestly held. 22. It was not put, and nor could it sensibly be, to any of the police officers that they did not believe it necessary to detain Zod in the way that they did, for the period of time that they did, to effect the safe location and arrest of Alam when exercising their powers under ss.9, 10, 230 and 231, in consequence of the need to arrest Alam; in a very dangerous, serious and potentially lethal environment. The police acted appropriately given the information that they had and their reasonably held belief of the danger that Zod posed, in context of his appearance, behaviour, knowledge that Alam was present at the location and other unknowns. 23. The detention and restraint of Zod was a necessary and effected by the reasonable use of force, in the circumstances. The perception of danger and the use of force, in the manner so described, was not challenged and nor could it be in the circumstances, both by reference to that that was known and that unknown. 1. Mr Gollan elaborated on these submissions in his oral submissions. Indeed, he put that, at the end of the day, it did not matter whether the person detained by Heddle was Alam or someone else. He submitted that the police were exercising their power to arrest Alam, and that given the real risk to the safety of police officers and other persons inside the premises, it was necessary to safely detain these persons to secure the premises (TP195.15-24). 2. Thus, as I understand the way the State's case was put, it had two limbs which were not mutually exclusive. The first relied upon the detention of Zod on the basis of mistaken identity. The reasoning as I understand it was as follows: 1. Heddle believed on reasonable grounds that Alam had committed an offence (LEPRA s 99(1)(a)) 2. Heddle believed that it was necessary to arrest Alam (LEPRA s 99(1)(b)). 3. Heddle believed on reasonable grounds that the person before him was Alam. 4. It matters not that the person before him was not in fact Alam, as section 99 is directed to the officer's subjective belief (reasonably formed). 1. I shall refer to this as the "Mistaken Identity limb". 2. The second limb of the State's defence as I understood it did not rely on mistaken identity. Rather, it centred on the need to detain Zod as part of the process of securing the place of arrest of Alam. This relied on sections 99, 230 and 231 of LEPRA ("The Securing Premises limb"). 3. I consider that both limbs of the State's defence are available to it. 4. I should also add that before Zod was released, Heddle left the granny flat, leaving Azzi in charge of Zod, who released him. Azzi stated: Q. Then you removed the handcuffs, why did you do that? A. At that point in time, the risk had been mitigated, we'd learnt that Mr Alam was in fact arrested in the main house, and we established the identity of Mr Zod, and he wasn't wanted at that point in time, there was no reason to continue his detention. (TP 180.20-24) 1. Mr McMahon for the plaintiffs submitted that the arrest of both plaintiffs was unlawful as police did not establish that they intended to charge them and bring them before an authorised justice. 2. I do not accept that submission, as in my view it fails to fully engage with either the Mistaken Identity limb or the Securing Premises limb. As to the former, Heddle believed that he was arresting Alam. There cannot be any doubt that police intended to charge Alam and bring him before an authorized justice. 3. As to the Securing Premises limb, it would not in my view be necessary for police to intend to charge and bring Zod and Hawchar before a Magistrate in order to justify them in entering the premises to detain Zod and Hawchar for the purposes of securing the place of Alam's arrest. 4. Indeed I understood Mr McMahon to accept that the power to detain Ms Hawchar can derive from the power to arrest Alam (see TP 217.34-39). As I have explained, in my view the same can be said of the detention of Zod. 5. I shall deal with the position of Ms Hawchar shortly. 6. I thus find the actions taken by police in relation to Zod to be lawful and authorised, and accordingly, Zod's case in relation to both the causes of action in assault and battery, and unlawful imprisonment must fail. Ms Hawchar's detention. 1. The situation in relation to Ms Hawchar is different at least in so far as there can be no question of the police mistakenly believing that she was Alam. Thus there can be no suggestion that the State's Mistaken Identity limb can have application to Ms Hawchar. 2. As I have foreshadowed, the State's case qua Ms Hawchar was that her detention was necessary to secure the location of Alam's arrest, together with the perceived need to remove her from risk from the unpredictable behaviour of Zod. In similar fashion to its defence against her husband's case, the State justified Ms Hawchar's detention on this basis, and relied upon sections 230 and 231 of LEPRA as affording authority to take such steps collateral to the task of arresting Zod, exercising the power under section 99 of LEPRA. This was the State's Securing Premises limb. 3. It seems clear to me that the Securing Premises limb is available to the State qua Miss Hawchar. In that regard, it is well to note that the uncontradicted evidence of Senior Constable Cervello was that she told Ms Hawchar that once police declared the situation to be safe, she would remove the handcuffs, to which Ms Hawchar said "it's okay" (Ex P1 p 119). This in fact is what occurred. 4. Senior Constable Cervello confirmed the bases for her detention in her evidence in chief in the following terms: Q. Can you remember why you removed the handcuffs? A. Yes. Because the situation was under control, and she was no threat. Q. Is it right that you applied the handcuffs not based on your own decision but based on the direction of another officer? A. It would have been a mixture of both (T141.21-28). 1. I consider that the State's contentions in relation to Ms Hawchar's detention are well founded, and accordingly that her case must fail. Tangential Matters 1. I should add that certain matters were raised tangentially which, in my view, do not require determination by me. 2. The first was the duration of the incident. The estimates in the evidence ranged between a duration of 6 minutes to 10 minutes. I suspect that given the stress of the incident on all parties, each of the estimates is probably longer than was in reality the time over which the events took place. 3. In any event, I did not understand the plaintiffs to make complaint about the duration of the incident. Rather, their complaint was that it occurred at all. 4. I have in any event concluded that the detention of the plaintiffs was brought to an end at the earliest reasonably available point. 5. Similarly, there was an issue as to whether Zod was naked, or partly naked, at the time of his arrest. The parties were agreed that this issue could only go to damages, which on my findings, does not arise. Conclusion 1. It follows from the foregoing that the plaintiffs' cases must fail. Orders in each case: 1. That there be judgment and verdict for the Defendant against the Plaintiff; and 2. That any party wishing to be heard on the issue of costs notify my associate of that fact on or before noon on 4 March 2022 ("Notification") 3. That in the event of Notification, the notifying party shall file and serve any evidence and submissions on the issue of costs on or before 4:00pm on 11 March 2022. 4. That the non-notifying party file and serve any evidence and submissions which it wishes to make on the issue of costs on or before 4:00pm on 18 March 2022. 5. That the notifying party file and serve any submissions in reply on or before 25 March 2022. 6. That the filing of the documents referred to in orders (3), (4) and (5) be effected by way of email transmission to my associate. 7. That any issue as to costs be decided on the papers. 8. That in the absence of Notification, the Court will order that the Plaintiff will pay the Defendant's costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 March 2022