District Court New South Wales Medium Neutral Citation: AD v State of New South Wales [2022] NSWDC 546 Hearing dates: 8, 9, 10, 11, and 22 August 2022, 1, 21 and 30 September 2022, (7 October 2022 – final closing submissions received) Date of orders: 10 November 2022 Decision date: 10 November 2022 Jurisdiction: Civil Before: Weber SC DCJ Decision: (1) That there be judgement and verdict for the defendant against the plaintiff (2) That the plaintiff pay the defendant's costs Catchwords: TORTS - False Imprisonment – Trespass - Misfeasance of Public Office Legislation Cited: Crimes Act 1900 (NSW) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Police Act 1990 (NSW) Cases Cited: Federal Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146 George v Rockett [1990] HCA 26; (1990) 170 CLR 104 Halliday v Nevill (1984) 57 ALR 331 Hamilton v State of New South Wales [2020] NSWSC 700 New South Wales v Robinson (2019) 266 CLR 619 Robinson v State of New South Wales (2018) 100 NSWLR 782 Ruddock v Taylor (2005) 222 CLR 612 State of New South Wales v Bouffler [2017] NSWCA 185 Wilson v State of New South Wales [2010] NSWCA 333) Category: Principal judgment Parties: Plaintiff: AD Defendant: State of New South Wales Representation: Counsel: Plaintiff: Mr P A Tierney/Mr P J Macarounas Defendant: Mr M Gollan Solicitors: Plaintiff: Brydens Lawyers Defendant: Norton Rose Fulbright Australia File Number(s): 2021/275125 Publication restriction: Names of the parties have been anonymised due to Family Court Proceedings. JUDGMENT Introduction 1. In April 2019 the plaintiff AD and GM were married, but estranged. Both had entered into new relationships, AD with MB and GM with OM. 2. AD and GM have two daughters SM and MM. In April 2019 SM was about to turn 10, and MM had just turned 7. SM and MM lived with their mother, however, pursuant to consent orders of the Family Court of Australia, both parents had equal shared parental responsibility for the children (exhibit P1 – order 1). The orders provided that the children would spend time with their father GM "at all times as can be agreed between the parties" (order 4). 3. Pursuant to these consent orders, SM and MM had been spending certain weekends with their father. Apparently by April 2019 there had been some tension between AD and GM at the "drop offs" and "pickups", at which SM and MM were transferred from the care of one parent to another. The 7-Eleven Incident 1. Because of this, on 7 April 2019 AD asked MB to accompany her to pick up her daughters. The pickup was to occur at the car park of a 7-Eleven convenience store located in Penrith. The incident which then occurred, and which is central to the proceedings, was recorded by CCTV installed in the 7-Eleven car park. 2. It was also to some extent recorded on video footage, taken by AD and OM on their mobile phones. 3. The footage shows that after the children had entered their mother's vehicle, the two men, that is to say MB and GM confronted each other. Angry words quickly deteriorated into violence, and a brawl ensued. Many punches were thrown and taken. The CCTV is harrowing insofar as it enables the viewer to hear the shrieks of horror from the clearly traumatised young girls who were witnessing their father, and their mother's new partner, engaging in a violent brawl. 4. The brawl comes to its crescendo with MB being confined to the space between the open door of the plaintiff's vehicle and the vehicle's doorframe, with GM punching him while he was so confined. This seemingly motivates AD to enter the fray, not seemingly for the purposes of trying to bring the fight to an end, but rather for the purposes of assisting MB who was precariously placed. She can be seen to grab GM from behind, around the area of his face. 5. The fight concluded and both couples drove to Penrith Police Station separately to report the incident. Both males were arrested and charged. 6. GM presented to the Penrith Police Station with significant injury to his right eye. This injury included a laceration to the eyeball. 7. On 20 April 2019, GM attended Penrith Police Station for the purposes of giving a statement. In that statement (exhibit D4), he alleges that in the fracas AD scratched his eye including his eyeball with her fingernails. 8. He revealed that he was receiving medical treatment for his injured eye. He said that he had a 2 mm laceration to his eyeball and that his vision remained blurred. He was awaiting an MRI to reveal the full extent of the injuries to his eye. He told police he was unable to work or drive due to the eye injury. 9. On 21 April 2019, Senior Constable Burley, who was investigating the matter, attended the 7-Eleven store in order to obtain the CCTV footage. 10. Having viewed the footage first at the convenience store, and then at Penrith Police Station, he was of the view that it was appropriate to arrest and charge AD, with the offence of recklessly inflicting grievous bodily harm (Crimes Act s 35(2)) and assault occasioning actual bodily harm (Crimes Act s 59(1)). 11. Before proceeding to do so, he sought the advice of detectives who concurred with his judgment. Thus, on 22 April 2019, Senior Constable Burley decided that he would arrest the plaintiff. The Arrest 1. On 22 April 2019, at approximately 6:00pm, Senior Constable Burley attended upon the plaintiff's home in company with Provisional Constable Tallon. Upon arrival at the plaintiff's home, Senior Constable Burley placed AD under arrest. 2. What occurred at and following the arrest was captured on vision obtained from the body worn cameras of the various officers who attended the premises. 3. Prior to the arrest, Senior Constable Burley had given thought to the position of AD's children, after their mother's arrest. He was concerned that there be satisfactory arrangements in place, for their care, while their mother was taken to Penrith Police Station, charged and processed. He expected this process to take up to 6 hours. 4. Senior Constable Burley was aware from the fact that as the convenience store brawl took place at a handover of the children from one parent to the other, that there was no Family Court order which precluded GM, from having custody of his daughters, following AD's arrest. He consequently contacted GM, and arranged for him to be within the vicinity of the plaintiff's home when he arrested her, so that he could take his children into his care. 5. At the time of AD's arrest, MB was out walking his dog, and the children were inside the house. When Senior Constable Burley informed the plaintiff that the children were to go to GM, she became upset, and increasingly so. 6. In the meantime, MB returned with the dog, and attempted to engage with Senior Constable Burley as to what he considered to be the folly of his decision to arrest AD. Senior Constable Burley would not discuss this with MB, which appeared to agitate him. In the meantime, Senior Constable Burley had allowed the plaintiff, who was by then under arrest, to go inside in order to obtain the Family Court orders which she claimed only allowed GM to have access to the children with her consent. 7. At the front door, an agitated MB attempted to close the door on Senior Constable Burley. Senior Constable Burley told him not to do so, and placed his foot against the door to prevent it from being closed. Sensing that the arrest was taking a more dangerous turn than he anticipated, Senior Constable Burley called for assistance on his body worn radio. The plaintiff then intervened to say to the officers, "I'm fine for you to come in, stop we got proof, I'm going to get court orders". 8. The reference to the obtaining of orders, was a reference to AD's attempts to obtain the Family Court orders which she claimed precluded GM from being granted access to his daughters without her consent. The obtaining of these orders seemed to become the central objective of the plaintiff. 9. More police arrived in response to Senior Constable Burley's request for assistance. Senior Constable Burley had explained to them that MB had attempted to grab him. MB denied this. Relevantly, AD then said "I don't have a problem you with you in my house, what the problem I have is, I have court orders that say that I don't have to get…" Senior Constable Burley responds "I need you to get your orders out". 10. Included amongst the police who had arrived in response to Senior Constable Burley's call for assistance, was a police officer who was described as Senior Constable Burley's supervisor. AD engaged with this more senior officer expressing to that officer, her view as to the effect of the Family Court orders, which she maintained precluded police from allowing her daughters to go into the custody of their father, following her arrest. 11. Ultimately, AD accepted the reality of what was going to occur, and she told her daughters that they were going to their father's house. They did not display any outward signs of distress at this development. 12. AD, who was in her pyjamas, then asked to be able to change her clothes before being taken to the police station. Senior Constable Burley allowed this to occur, on the proviso that it occurred in the presence of a female officer. This is what occurred. 13. By this time, it was dark outside and Senior Constable Burley asked one of his colleagues to accompany the girls out of the house, and into the care of their father. The Plaintiff is Charged 1. AD was then taken to the Penrith Police Station where she was charged. In addition, a provisional Apprehended Domestic Violence Order (ADVO) was made against AD, in respect of which, the protected persons were GM, SM and MM. 2. The ADVO in respect of GM had been requested by his solicitor in the previous week. The authorising officer in respect of this order was Sergeant Kirsty Ann Williams, Senior Constable Burley's supervisor. 3. The plaintiff was bailed to appear before Penrith Local Court on 30 April 2019. 4. At the hearing on that day, the children were removed from the provisional ADVO, and the proceedings were stood over to 11 June 2019. 5. Following several further mentions, ultimately the grievous bodily harm charge was withdrawn and the actual bodily harm charge was dismissed at hearing in December 2019. The Proceedings 1. The plaintiff commenced proceedings alleging three causes of action against the State of New South Wales as being vicariously liable for the actions of Senior Constable Burley. These causes of action were: 1. False Imprisonment; 2. Trespass; 3. Misfeasance in public office. Credit 1. Before turning to these causes of action I should deal with issues relating to the credit of Senior Constable Burley and AD. Senior Constable Burley's Credit 1. The Plaintiff submitted that I should "exercise caution" in accepting the evidence of Senior Constable Burley, describing his evidence as "troubling". 2. In this regard AD pointed first to an inconsistency between Senior Constable Burley's evidence before me, in which he said that he had read the Family Court orders on his attendance at the plaintiff's home for the purposes of the arrest, whereas in the Local Court while giving evidence in the plaintiff's prosecution, he said that he had not seen the orders until they were emailed to him after the arrest. When confronted with his inconsistency, Senior Constable Burley immediately, and without equivocation, accepted that his evidence in the Local Court was incorrect. 3. I do not see this issue as having an adverse effect on Senior Constable Burley's credit. To the contrary, his ready acceptance of his mistake in the Local Court, to my mind, marks him as a witness of truth. The detail of when he first saw the Family Court orders was no doubt, not to the forefront of his mind when he was giving evidence in December 2019. Doubtlessly, he had been involved in hundreds of incidents from the time of AD's arrest until the time of her prosecution. In my view, it is readily understandable that a busy police officer in those circumstances would not have perfect recall of the details of each tolerably simple incident in which he was involved. 4. Criticism was also made of an alleged inconsistency in Senior Constable Burley's evidence as to when he first saw the CCTV footage from 7-Eleven. In his evidence, he stated that he had seen the footage at or about the same time of taking a statement from GM. He later explained that he first saw the footage at the 7-Eleven store, a process requiring him to ascertain first if there was any footage which in fact captured the incident, and if so where on the considerable amount of footage available, the relevant portion was to be found. It was only having gone through that process that he requested from 7-Eleven and obtained the footage relevant to the incident. He then obtained and later viewed again the footage at the Penrith Police Station. 5. I do not see any inconsistency in this evidence. Rather, Senior Constable Burley's evidence was ultimately that the obtaining and viewing of the footage involved a multi-stage process, which included first the ascertaining of the existence of the footage, isolating it and then obtaining it. This seemed to me to be an entirely logical process. Senior Constable Burley's evidence in this regard was and in no way was suggestive to me of a lack of credibility on his part. 6. There were other criticisms of Senior Constable Burley's evidence which I shall not deal with. None cause me to put his credit in doubt. I should say however that one aspect of AD's criticism of Senior Constable Burley's evidence which I expressly reject is her suggestion that Senior Constable Burley's concern for her children was anything other than genuine. His actions in arranging for the children to go to their father following her arrest, and in obtaining a provisional ADVO which protected them, to my mind were only consistent with Senior Constable Burley's genuine concern for the best interests of the children. 7. In summary, I found Senior Constable Burley to be a witness of truth, upon whose evidence I could confidently rely. To my mind, he was attempting to assist the Court with truthful evidence, displaying in the process a preparedness to make concessions, where appropriate. AD's Credit. 1. The same I regret to say cannot be said of AD. I found her to be a witness consumed by an animus towards Senior Constable Burley. I perceived her to be a witness who would happily abandon the truth if it stood in the way of success in these proceedings. 2. In my view, she regularly used her time in the witness box to advocate her case with unresponsive answers. 3. There were numerous examples of AD's shortcomings as a witness, but I shall concentrate on three. 4. The plaintiff gave sworn evidence before me that in November 2018, while the children were in GM's custody, GM showed his daughter SM a pornographic video of him having sexual intercourse with OM. This video was stored on his mobile phone. In the attempt to dissuade Senior Constable Burley from allowing her daughters to go into GM's custody upon her arrest, she repeated this claim. She in effect told Senior Constable Burley that the girls would not be morally safe in GM's presence. 5. I find the assertion that GM showed his daughter pornography on his phone to be false. In an affidavit sworn in the Family Court of Australia on 29 April 2019 (Exhibit D10), AD stated as follows: "On 16 November 2018 GM took SM to a school gymnastics gala day at Sydney Gymnastics and Aquatics Rooty Hill for school. He allowed SM to use his phone unsupervised. She told me that she was looking at videos and pictures of O and him having anal sex, oral sex and vaginal sex" (see exhibit D10 at page paragraph 125). 1. I have substituted initials for the names set out in the affidavit. 2. A moment's reflection would show there is an important distinction between the serious allegation made by AD in this court, and the version of events given by her in the Family Court. In her evidence before me, the plaintiff would have me find that GM deliberately showed his daughter pornography, in which he was a participant. In the Family Court version of what occurred, it seems that GM allowed his daughter to have access to his mobile phone, and SM found the pornography herself while exploring it. 3. On one version therefore, GM acted reprehensibly and on the other, regrettably negligently. There is obviously a world of difference between the two. 4. Of further importance in this regard, are the clinical notes of Ms Catherine Ascaik, a psychologist who had been treating the children at the time. Her notes reveal an email on 8 January 2019 from AD to Ms Asciak (Exhibit P8). In it, the plaintiff states: "we had an incident last week when she (SM) saw some very sexually explicit images of her dad and his partner on his phone and has been a mess ever since. This has been the straw that broke the camel's back for her and for myself." 1. On 6 February 2019, the manner of SM viewing the pornographic material on her father's phone were made quite clear in the clinical notes of Ms Asciak. The clinical notes record AD telling her that SM's "father gave her his phone to play with but it had an inappropriate content. Videos of sexual contact with parent and partner (oral and anal sex)." 2. In the Plaintiff's Written Submissions in Reply, an attempt was made to repair AD's credit in relation to this issue. It was suggested that AD's evidence was in fact more equivocal as to the circumstances in which her daughter accessed the pornography than might have first appeared. 3. I did not find this attempt by her counsel to be convincing. This is especially so given that in the Plaintiff's Written Submissions in Chief, she advocated explicitly her unequivocal version of what she said occurred. These submissions state that amongst the concerns AD had about the welfare of her children in GM's care was "showing SM pornographic material of himself and OM" (see Plaintiffs Written Submissions in Chief at [8]). 4. I have no hesitation in concluding that the negligent version of this regrettable incident is true, and that the evidence of AD before me was untrue. 5. I should also mention that in her evidence before me, AD also claimed that she had been twice stripped naked and strip-searched. She also said that while this occurred, she was being watched. She claimed that this occurred in public (TP 47.5 – 10). 6. These events simply did not occur, as she reluctantly agreed (TP 153.14 – 1.3.15). 7. Her evidence in this regard bespoke to me her clear preparedness to give untruthful evidence as to what occurred for the purposes of exaggerating the no doubt unpleasant experience of her arrest, for the purposes of this case. 8. Finally, I should mention the plaintiff's evidence in support of the trespass case. An obvious obstacle to that case was that the body worn camera footage showed her twice telling police that they were welcome to enter her home. In her evidence before me she said that she was effectively coerced into saying this by the police presence. I shall deal with this further in relation to the trespass case. 9. For present purposes I should simply say that I have seen and heard the body worn camera footage, and have considered the manner in which she told the police that they could enter her house, and the circumstances in which it was said. I have no doubt that the plaintiff's willingness to allow the police access to her home was entirely voluntary, and untainted by any coercion or duress. 10. Her assertion of duress or coercion to my mind was simply untrue. 11. In summary, for these and other reasons, I do not accept the evidence of AD unless it is against interest or corroborated by independent sources. False Imprisonment 1. The plaintiff alleges that her arrest constituted false imprisonment. As there can be no issue as to the fact of the arrest, the onus thus falls upon the defendant to establish the lawfulness of the arrest: Ruddock v Taylor (2005) 222 CLR 612 at 617. 2. In order to be lawful, the requirements of s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ("LEPRA") must be satisfied. This section relevantly provides as follows: 99 Power of police officers to arrest without warrant (1) A police officer may, without a warrant, arrest a person if: (a) the police officer suspects on reasonable grounds that the person is committing or has committed an offence, and (b) the police officer is satisfied that the arrest is reasonably necessary for any one or more of the following reasons-- (i) to stop the person committing or repeating the offence or committing another offence, (ii) to stop the person fleeing from a police officer or from the location of the offence, (iii) to enable inquiries to be made to establish the person's identity if it cannot be readily established or if the police officer suspects on reasonable grounds that identity information provided is false, (iv) to ensure that the person appears before a court in relation to the offence, (v) to obtain property in the possession of the person that is connected with the offence, (vi) to preserve evidence of the offence or prevent the fabrication of evidence, (vii) to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence, (viii) to protect the safety or welfare of any person (including the person arrested). (ix) because of the nature and seriousness of the offence. 1. Accordingly, the power to arrest without a warrant in this case, conferred by s 99(1) of the LEPRA turned, first, on whether Senior Constable Burley suspected "on reasonable grounds that the person is committing or has committed an offence..." (s 99 (1)(a)), and secondly, on whether Senior Constable Burley had the requisite satisfaction pursuant to s 99(1)(b) of the LEPRA. Suspicion on Reasonable Grounds: s 99 (1)(a) 1. I do not understand the principles applicable to this issue to be in dispute. I shall set them out below. 2. As to this issue, in George v Rockett [1990] HCA 26; (1990) 170 CLR 104 the High Court (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ) said, at 115-116: "Suspicion, as Lord Devlin said in Hussien v Chong Fook Kam [1969] UKPC 26; [1970] AC 942, at 948, "in its ordinary meaning is a state of conjecture or surmise where proof is lacking: "I suspect but I cannot prove.'' The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown. In Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266, a question was raised as to whether a payee had reason to suspect that the payer, a debtor, "was unable to pay (its) debts as they became due" as that phrase was used in s.95(4) of the Bankruptcy Act 1924 (Cth). Kitto J. said (at 303): A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to 'a slight opinion, but without sufficient evidence', as Chambers Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. The notion which 'reason to suspect' expresses in sub-s.(4) is, I think, of something which in all the circumstances would create in the mind of a reasonable person in the position of the payee an actual apprehension or fear that the situation of the payer is in actual fact that which the sub-section describes - a mistrust of the payer's ability to pay his debts as they become due and of the effect which acceptance of the payment would have as between the payee and the other creditors." 1. In New South Wales v Robinson (2019) 266 CLR 619, (Kiefel CJ, Keane and Nettle JJ) emphasised that the relevant standard is not an onerous one. Their Honours observed (at [55]), "… that the requirement of reasonable grounds to suspect is "very limited" and nothing like as much as a prima facie case." 2. The relevant time at which to consider the arresting officer's state of mind is the time at which the exercise of the power is undertaken. It is at that time that the police officer must have an intention to charge the arrested person and present them before the relevant authority: New South Wales v Robinson (2019) 266 CLR 619 and Robinson v State of New South Wales (2018) 100 NSWLR 782 at [51]. 3. The plaintiff levelled criticism at Senior Constable Burley with respect to the offences for which she was charged. As I have earlier indicated the Plaintiff was charged with an offence under s 35(2) of the Crimes Act 1900 (NSW) - 'Reckless Grievous Bodily Harm' and s 59(1) of the Crimes Act 1900 (NSW) - 'Assault Occasioning Actual Bodily Harm'. The criticism of Senior Constable Burley with respect to the former of the two charges was that certain medical evidence in relation to the extent of the injury to GM's eyeball, remained outstanding at the time of AD's arrest. This fact, it was submitted, led to the conclusion that Senior Constable Burley could not have "suspected on reasonable grounds" that the Plaintiff had committed the grievous bodily harm offence (Plaintiff's Submissions In Chief [122]-[127]). 4. With respect to the second charge of 'Assault Occasioning Actual Bodily Harm' (Domestic Violence Related), the Plaintiff's suggested that Senior Constable Burley could not have "suspected on reasonable grounds" that she had committed that offence because a defence of self defence under s 418 of the Crimes Act 1900 may have been pursued by her (Plaintiff's Submissions In Chief [129]-[131]). She also submitted that Senior Constable Burley had relied on the "exaggerated claims of GM and OM" (Plaintiff's Submissions [132]). 5. In my view, each of the plaintiff's propositions misconceive the state of satisfaction required by s 99(1)(a). The plaintiff's contentions also misconceived the materials upon which such a state of satisfaction may have been formed. 6. At the time of arrest, Senior Constable Burley had available to him the photos of GM's injured eye, which are annexed to Exhibit D3. In addition, he had seen those injuries himself on the night of 7 April 2019 (Transcript 306:17-48; Exhibit D3). Further, Senior Constable Burley had the statement of GM (Exhibit D4), the statement of OM (Exhibit D5), various mobile phone video footage of the assault from the 7 April 2019, and the 7-Eleven video footage from the 7 April 2019. 7. To my mind, the photos of GM's eye and GM's continued complaints as to the injury to his eye when giving his statement on 20 April 2019 (being two weeks post the assault) overwhelmingly establish the conclusion that the eye injuries were serious. In addition, GM advised that he had attended a number of medical practitioners, and that the process of acquiring supporting medical evidence as to the extent of his injuries was in train. GM told him that the examination which would lead to that evidence being produced had taken place on 8 April 2019 (Exhibit D8). 8. In my view, the plaintiff's contention that an arrest was unlawful by reason of the fact that medical evidence remained outstanding must be rejected. Senior Constable Burley did not need to be in a position to run the prosecution at the time, in order for him to have formed the relevant suspicion. 9. Similarly, in my view, the possibility that the Plaintiff in future proceedings, may have raised a question of self-defence, thereby giving rise to an obligation on behalf of the prosecution to negative the defence, cannot deprive a police officer of reasonable grounds upon which to suspect that an offence has been committed. 10. On my reading of the authorities, to form the relevant state of mind necessary to constitute a suspicion on reasonable grounds, does not require the possession of admissible evidence, which puts the issue of guilt beyond doubt. As Her Honour McColl JA observed in Hyder v Commonwealth of Australia [2012] NSWCA 336 at [14]: "In determining whether the arresting officer had the relevant state of mind (be it suspicion or belief), the court is considering a preliminary stage of the investigation, rather than one requiring evidence amounting to prima facie proof: O'Hara v Chief Constable of Royal Ulster Constabulary (at 293) per Lord Steyn, citing Shaaban Bin Hussien v Chong Fook Kam (at 949)." 1. Her Honour continued at [15] setting out a number of propositions which she extracted from the authorities, which should be considered when having regard to whether or not the suspicion was formulated on reasonable grounds. Her Honour stated: "The following propositions, adapted by reference to s 3W, can be extracted from decisions considering how a person required to have reasonable grounds either to suspect or believe certain matters for the purposes of issuing a search warrant or arresting a person might properly form that state of mind: (1) When a statute prescribes that there must be "reasonable grounds" for a belief, it requires facts which are sufficient to induce that state of mind in a reasonable person: George v Rockett (at 112); (2) The state of mind that the reasonable grounds for the relevant suspicion and belief exist must be formed by the person identified in s 3W (the "arresting officer"); the arresting officer may not "discharge the ... duty [of forming the relevant opinion] parrot-like, upon the bald assertion of the informant": George v Rockett (at 112), quoting R v Tillett; Ex parte Newton (1969) 14 FLR 101 (at 106) per Fox J; (3) The proposition that it must be the arresting officer who has reasonable grounds to suspect (or believe) the alleged suspect to be guilty of an arrestable offence is intended to ensure that "[t]he arresting officer is held accountable ... [and] is the compromise between the values of individual liberty and public order": O'Hara v Chief Constable of Royal Ulster Constabulary (at 291) per Lord Steyn (Lords Goff, Mustill and Hoffmann agreeing); (4) There must be some factual basis for either the suspicion or the belief: George v Rockett (at 112); the state of mind may be based on hearsay material or materials which may be inadmissible in evidence; the materials must have some probative value: R v Rondo [2001] NSWCCA 540; (2001) 126 A Crim R 562 (at [53](b)) per Smart AJ (Spigelman CJ and Simpson J agreeing); Shaaban Bin Hussien v Chong Fook Kam (at 949); O'Hara v Chief Constable of Royal Ulster Constabulary (at 293) per Lord Steyn; (5) "The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof": George v Rockett (at 116); (6) "Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture": George v Rockett (at 116); (7) What constitutes reasonable grounds for forming a suspicion or a belief must be judged against "what was known or reasonably capable of being known at the relevant time": Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612 (at [40]) per Gleeson CJ, Gummow, Hayne and Heydon JJ; whether the relevant person had reasonable grounds for forming a suspicion or a belief must be determined not according to the subjective beliefs of the police at the time but according to an objective criterion: Anderson v Judges of the District Court of New South Wales (1992) 27 NSWLR 701 (at 714) per Kirby P (Meagher and Sheller JJA agreeing); see also O'Hara v Chief Constable of Royal Ulster Constabulary (at 298) per Lord Hope; (8) The information acted on by the arresting officer need not be based on his own observations; he or she is entitled to form a belief based on what they have been told. The reasonable belief may be based on information which has been given anonymously or on information which turns out to be wrong. The question whether information considered by the arresting officer provided reasonable grounds for the belief depends on the source of the information and its context, seen in the light of the whole of the surrounding circumstances and, having regard to the source of that information, drawing inferences as to what a reasonable person in the position of the independent observer would make of it: O'Hara v Chief Constable of Royal Ulster Constabulary (at 298, 301, 303) per Lord Hope. (O'Hara concerned the formation of a suspicion, but the proposition Lord Hope stated is equally applicable to the formation of a belief); it is "[t]he character of the circumstances [which have] to be decided: were they such as to lead to the specified inference?": Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266 (at 303) per Kitto J; (9) "The identification of a particular source, who is reasonably likely to have knowledge of the relevant fact, will ordinarily be sufficient to permit the Court to assess the weight to be given to the basis of the expressed [state of mind] and, therefore, to determine that reasonable grounds for [it] exist": New South Wales Crime Commission v Vu [2009] NSWCA 349 (at [46]) per Spigelman CJ (Allsop P and Hodgson JA agreeing); see also International Finance Trust Co Ltd v New South Wales Crime Commission [2008] NSWCA 291; (2008) 189 A Crim R 559 (at [134] - [135]), per McClellan CJ at CL. Although McClellan CJ at CL was in dissent, Allsop P (with whom Beazley JA agreed) (at [51]) would have agreed with McClellan CJ at CL's conclusion in this respect subject to qualifications none of which are in issue in the present case. International Finance Trust Co Ltd v New South Wales Crime Commission was overturned in the High Court insofar as it concerned the constitutional validity of s 10 of the Criminal Assets Recovery Act 1990, but not in a manner which affects the statements concerning the reasonable grounds issue: International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319;" 1. Applying those principles in my view, it could hardly be said that Senior Constable Burley did not have before him sufficient information to reasonably suspect that the Plaintiff had committed offences in respect of which he was proposing to arrest AD. 2. I consider that the absence of medical reports, or the possibility of any defence, are prospective matters that arise within the course of further investigation or arise when the proceedings are ultimately heard. They are not matters necessary to be resolved before arrest. In that regard, it should be noted that s 99(4) of the Act clearly conceives of further investigation being undertaken in the context of a lawful arrest, without a warrant. Was Senior Constable Burley Satisfied that it was Reasonably Necessary to Arrest the Plaintiff under s 99 (1)(b) 1. Senior Constable Burley explained his reasons for arresting the plaintiff. They were the "nature and seriousness of the offence, protection of the victim, and to get her before the Court at the earliest possibility" (TP 387.24) 2. I accept Senior Constable Burley's evidence. In those circumstances, as I understand the authorities, such a decision can only be impugned on the basis of the principle often referred to as "Wednesbury Unreasonableness". 3. This was confirmed in Hyder v Commonwealth of Australia [2012] NSWCA 336 where McColl JA where at [15] stated: "In Holgate-Mohammed v Duke (at 443), Lord Diplock held that the words "may arrest without warrant" conferred on a public official "an executive discretion" whether or not to arrest and that the lawfulness of the way in which the discretion was exercised in a particular case could not be questioned in any court of law except upon the principles Lord Greene MR enunciated in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223. That aspect of Lord Diplock's reasoning was applied in Zaravinos v State of New South Wales (at [28]) …" 1. The plaintiff referred me to Jankovic v Director of Public Prosecutions [2020] NSWCA 31. She submitted that the decision that an arrest was "reasonably necessary" directs comparison between the results which obtain on an alternative hypothesis or in alternative circumstances (see Jankovic at [58]). She also submitted that the words "reasonably necessary" in section 99 (1)(b) imposes a requirement of proportionality in the police officer's decision-making (see Jankovic at [60]). 2. It was unclear to me whether the plaintiff was suggesting that the Court of Appeal in Jankovic had disapproved of what was said by McColl JA in Hyder. If that was the submission, then I do not accept it. There was no suggestion in Jankovic that what McColl JA stated in Hyder deriving as it did from the House of Lords authority, and endorsed by the Court of Appeal in Zaravinos v State of New South Wales [2004] NSWCA 320 at [27], no longer represented the law in this State. 3. To my mind, the Court of Appeal in Jankovic far from disapproving of Hyder, was dealing with the nature of decision-making required within the confines of section 99 (1)(b), not questioning the circumstances in which that decision-making can be successfully impugned. To my mind, such an impugning can only proceed by application of the Wednesbury principles to which McColl JA referred to in Hyder. 4. I return then to consider Senior Constable Burley's decision-making. 5. As I have previously indicated, I accept Senior Constable Burley's evidence as to the section 99 (1)(b) reasons for the plaintiff's arrest. In addition to accepting his evidence, in my view the objective facts substantiate those reasons. The Seriousness of the Offence 1. In my view, it can hardly be gainsaid that the offences concerned were serious. The grievous bodily harm offence carried a maximum penalty of 10 years imprisonment, while the actual bodily harm offence carried a five year maximum term. 2. Senior Constable Burley had in addition, seen the injury to GM's eye twice, once on the night of the brawl, and a fortnight later when GM came in to give his statement. 3. On that occasion Senior Constable Burley was informed that GM remained under medical care for his eye injury, and was unable to work or drive his car because of it. He was made aware that further medical investigation was ongoing, and he was given consent by GM to obtain the results of those investigations. 4. These facts alone would in my view justify his conclusion that the offences were serious in nature. In addition, Senior Constable Burley also gave evidence that he viewed the offences as serious due to the fact that they occurred in the context of domestic violence. In that regard Senior Constable Burley considered that GM was not the only victim of domestic violence. He also considered that the children were also victims. In this view I believe he was correct. 5. Senior Constable Burley's view described the children as "secondary victims" (TP 317, see also TP 396.15). He formed his view of the children's victimhood in the context of them screaming in horror when exposed to their father fighting with their mother's new partner. Senior Constable Burley also had a concern that there may be a repetition of these domestic violence events at future exchanges of the children (TP 319.26). 6. Thus Senior Constable Burley formed the view that the offences, serious as they were in and of themselves, obtained an additional element of seriousness by dint of the fact that they occurred in a domestic violence setting. 7. Senior Constable Burley considered the domestic violence crime to be a serious crime, a view which he held in common with the Court of Appeal (State of New South Wales v Robinson (2016) 93 NSWLR 280 at [69]). 8. Senior Constable Burley was of the view that both GM and the children needed protection from further incidents of a similar nature (LEPRA s 99 (1)(b)(viii)). This is a view, which in my opinion could hardly be gainsaid. 9. Finally, Senior Constable Burley considered that the protection of the victims was best achieved by bringing the matter before the court as soon as possible. He explained that a Court Attendance Notice would not achieve this, as such notices were not returnable for a period of at least six weeks from their date of issue. This seems to be a feature of the New South Wales Police Force's computer system which generates such notices. Senior Constable Burley explained that in contrast, domestic violence arrests came before the Penrith Local Court every Tuesday. As such, he considered that the arrest of AD would bring the matter quickly before the court, where any bail or ADVO matters could be the subject of discussion and possible variation. 10. I consider that Senior Constable Burley's decision-making in this regard cannot be impugned. I also consider that his decision to arrest, was proportionate to the circumstances of the case. I also consider that his decision making included a consideration of the alternatives to arrest. This can be seen in his consideration of a Court Attendance Notice. 11. With regard to proportionality, it should be noted that this issue will, of its very nature, vary depending on the circumstances of each case. Jankovic was a very different case from the present. Jankovic involved the sending of a text message. Here Senior Constable Burley was confronted with an offence of assault occasioning grievous bodily harm committed in a domestic violence setting. It stands to reason that different considerations of proportionality and alternative approaches to arrest would arise in such a case, to those which arose in Jankovic. 12. The plaintiff referred to the fact Sergeant Michael Cotton in an email to Senior Constable Burley expressed some reservations about the approach taken by Senior Constable Burley to the allegation of the plaintiff that GM had shown pornography to SM. Sergeant Cotton was the Domestic Violence Team leader for the Nepean Police Area Command. 13. A number of things can be said about this. The first is that Sergeant Cotton's suggestions about how he would have reacted to the circumstances, were not directed to Senior Constable Burley's decision to arrest, and accordingly, in my view, are not relevant to the question. 14. The next is the fact that Senior Constable Burley, rightly in my view, was sceptical of what AD was saying. He explained that the children had regularly been exchanged between the parents in the immediate past. This suggested to him that AD's concerns as to exposure to pornography were only being raised when she was being arrested (TP 397.15-25). It is important to note the obvious, namely that it was Senior Constable Burley, not Sergeant Cotton who had to make the decision to arrest. 15. Finally, in any event the fact that Sergeant Cotton might have acted differently to Senior Constable Burley in the circumstances, does not to my mind satisfy the Wednesbury Unreasonableness test. In that regard it should also be recalled that before arresting and charging AD Senior Constable Burley conferred with detectives, who concurred in what he proposed. 16. It follows from the foregoing that I consider the defendant has established the legality of the arrest and that as consequence the plaintiff's false imprisonment case must fail. Trespass 1. The plaintiff's case in trespass to some extent contracted in her submissions. Initially, it was suggested trespass was constituted not by AD's failure to consent to the police entering the premises, but rather it was constituted by MB's failure to consent to that entry. In this regard it should be noted that MB and AD were co-tenants of the property in which they lived. As I understood it this argument was ultimately not pressed. 2. Initially, the plaintiff also submitted that AD's first statement of consent to the entry of police into her home (The First Consent), was only directed to Senior Constable Burley and not to Provisional Constable Tallon. This position I also understood was also not ultimately pressed. If I am wrong in this understanding, and if that submission was pressed, then I reject it. At the time of the First Consent, both officers were in front of AD, and she gave permission to both officers to enter by use of the personal pronoun "you" which of course includes both the singular and plural. 3. As I have previously indicated, I reject AD's contention that either of the two expressions of consent to entry were not given on a voluntary basis. As I have also earlier indicated the second expression of consent occurred after the backup police had arrived. 4. Moreover, the objective facts strongly suggest that AD was in fact consenting to the presence of the backup police. This was so inter alia, as among the backup was Senior Constable Burley's supervisor, with whom AD actively engaged in an attempt to dissuade her from endorsing Senior Constable Burley's plan for the temporary care of her children. 5. Indeed, the same can be said in relation to the First Consent, as it involved an invitation from AD to Senior Constable Burley and Provisional Constable Tallon to enter the house to facilitate her production of the Family Court orders. 6. Faced with all of these problems for her trespass case, the plaintiff suggested that the trespass was constituted by the placing of Senior Constable Burley's foot over the threshold of the door to prevent it from being closed on him by MB. I see no merit in this submission. 7. By this time the plaintiff was under arrest, and Senior Constable Burley was entitled to enter the premises to maintain that arrest (ss 10, 230 and 231 of LEPRA - See also Halliday v Nevill (1984) 57 ALR 331; State of New South Wales v Bouffler [2017] NSWCA 185; Wilson v State of New South Wales [2010] NSWCA 333). 8. Finally, in my view the act of stopping the door from being shut on him in the circumstances was justified on the basis that given MB's behaviour towards Senior Constable Burley, a breach of the peace was likely to be committed, and it was thus necessary to enter the premises to prevent such breach of the peace (see s 9 (1) (a) of LEPRA). 9. For all of the above reasons the trespass case must fail. Misfeasance in Public Office 1. The applicable principles in relation to the tort of misfeasance in public office were explained in Northern Territory v Mengel (1995) 185 CLR 307 [370], where Deane J stated: "As Lord Diplock observed, in delivering the judgment of the Privy Council in Dunlop v Woollahra Municipal Council (339), the tort of misfeasance in public office is "well-established". Its elements are: (i) an invalid or unauthorised act; (ii) done maliciously; (iii) by a public officer; (iv) in the purported discharge of his or her public duties; (v) which causes loss or harm to the plaintiff. That summary statement of the elements of the tort inevitably fails to disclose some latent ambiguities and qualifications of which account must be taken in determining whether a particular element is present in the circumstances of a particular case. The critical element for present purposes is malice." 1. The parties were in agreement that elements (i), (ii) and (v) as set out by his Honour were contentious. I shall now proceed to deal with each element. Invalid or unauthorised act 1. The plaintiff characterised the act, which she says was unauthorised, as being a "child removal" by Senior Constable Burley (see ASOC paragraphs 33.2 and 33.3). 2. She contends that the so called removal was contrary to the applicable consent orders made in the Family Court of Australia (exhibit P1). She said that accordingly the removal was contrary to s 65M of the Family Law Act. In an attempt to make good that submission, the plaintiff quotes orders three and four of the Family Court orders only. In my view, in order to properly understand the orders, it is necessary to consider them in their entirety. They were relevantly in the following terms: "BY CONSENT IT IS ORDERED: Parenting 1. That the Mother and Father have equal shared parental responsibility for the children SM and MM ("the children") including but not limited to: 1.1 The school or schools that the children are to attend. 1.2 The children's religious instruction and upbringing. 1.3 The medical treatment that the children are to receive. 1.4 Where the children will live (in the event that changes to living arrangements for either parent will result in making it significantly more difficult for the children to spend time with the other parent). 1.5 The sporting and other activities that the children are to engage in that would occur when they are to love or spend time with each parent. 2. That the parent with whom the children live with at that time is responsible for the day to day decisions concerning their care, welfare and development. 3. The children will live with the Mother. 4. The children will spend time with the father at all times as can be agreed between the parties. 5. The children will communicate with the parent that they are not staying with at all times that they express a wish to do so." 1. I have substituted initials for the names set out in the orders for the purposes of anonymity. 2. The orders thus reveal that both AD and GM retained equal parental responsibility in relation to the children. This joint responsibility extended to issues as to: "1.4 Where the children will live (in the event that changes to living arrangements for either parent will result in making it significantly more difficult for the children to spend time with the other parent." 1. To my mind it could scarcely be gainsaid that the children could not be with their mother, when she was under arrest. As such GM's equal shared parental responsibility would empower him to decide where the children live when their mother was under arrest. 2. I also do not accept that Senior Constable Burley effected a "child removal". Senior Constable Burley in making arrangements to facilitate the ongoing care of the children was not exercising his LEPRA powers. He also was not on any view of it removing the children. Rather his actions were incidental to the exercise of the LEPRA power of arrest. Such actions were of a type which are statutorily recognised as part of the mission and function of the New South Wales Police Force (see s 6 (2)(c)) of the Police Act 1990). 3. In my view, Senior Constable Burley's actions were neither invalid nor unauthorised. Done Maliciously 1. The plaintiff submitted that in relation to this element, she relied on what is usually known as "untargeted malice". 2. As to this element of misfeasance, as Brennan J explained in Mengel (at 357): "The mental element is satisfied when the public officer engages in the impugned conduct with the intention of inflicting injury or with knowledge that there is no power to engage in that conduct and that that conduct is calculated to produce injury. These are states of mind which are inconsistent with an honest attempt by a public officer to perform the functions of the office. Another state of mind which is inconsistent with an honest attempt to perform the functions of a public office is reckless indifference as to the availability of power to support the impugned conduct and as to the injury which the impugned conduct is calculated to produce. The state of mind relates to the character of the conduct in which the public officer is engaged — whether it is within power and whether it is calculated (that is, naturally adapted in the circumstances) to produce injury…. For example, the officer's administrative act may be invalid because he or she did not treat the plaintiff with procedural fairness. It is the absence of an honest attempt to perform the functions of the office that constitutes the abuse of the office. Misfeasance in public office consists of a purported exercise of some power or authority by a public officer otherwise than in an honest attempt to perform functions of his or her office whereby loss is caused to a plaintiff. Malice, knowledge and reckless indifference are states of mind that stamp on a purported but invalid exercise of power the character of abuse of or misfeasance in public office. If the impugned conduct then causes injury, the cause of action is complete. 1. In Hamilton v State of New South Wales [2020] NSWSC 700 at [226], Walton J noted that the "second limb" of malice required for the tort (untargeted malice) may be satisfied: "… if it can be proved that there was reckless indifference or deliberate blindness to the invalidity or lack of power and the likely injury." 2. The plaintiff in her written submissions, submitted that the element could be: "undoubtedly satisfied in this case through the statements of Senior Constable Burley as to who was "inappropriate" and his being "happy" with the children going with their father(Transcript 330/41). There can be no issue in the plaintiff satisfying the third element of misfeasance as plainly Senior Constable Burley was purporting to exercise his duty as a police officer when he effected the removal of SM and MM from the care of the plaintiff in her home." 1. I do not accept either of these propositions. The plaintiff advances these propositions in terms, suggesting that they were virtually self-evident truths, but in my view the propositions advanced were in fact incorrect. I do not see the matters to which the plaintiff refers as constituting malice, under any concept of malice as explained in the authorities. 2. As I have earlier indicated, I also do not accept that in making the arrangements which he did, Senior Constable Burley was purporting to exercise his duty as a police officer. In arresting the plaintiff he was exercising a LEPRA power, but in his consideration of what he considered to be in the best interests of the children in the circumstances, he was dealing with the consequences of the exercise of that LEPRA power. I also do not accept that Senior Constable Burley's actions constituted a removal of the children as the plaintiff pleads. As I have earlier indicated, I consider that all Senior Constable Burley did was to facilitate the transfer of custody of the children to a person legally entitled to such custody. 3. It is also well to note the fact that an allegation of misfeasance in public office is a very serious allegation, even if it is put as being constituted by untargeted malice. As a consequence the authorities dictate that a court should be slow to make such a finding. In Federal Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146, Gummow, Hayne, Heydon and Crennan JJ, said: "Allegations that statutory powers have been exercised corruptly or with deliberate disregard to the scope of those powers are not lightly to be made or upheld. Remarks by Hill, Dowsett and Hely JJ in Kordan Pty Ltd v Federal Commissioner of Taxation (87) are in point. Their Honours said: "The allegation that the Commissioner, or those exercising his powers by delegation, acted other than in good faith in assessing a taxpayer to income tax is a serious allegation and not one lightly to be made. It is, thus, not particularly surprising that applications directed at setting aside assessments on the basis of absence of good faith have generally been unsuccessful. Indeed one would hope that this was and would continue to be the case. As Hill J said in San Remo Macaroni Co Pty Ltd v Federal Commissioner of Taxation [ (88)] it would be a rare case where a taxpayer will succeed in showing that an assessment has in the relevant sense been made in bad faith and should for that reason be set aside." 1. To my mind, the propositions that the actions of Senior Constable Burley were either 1. "recklessly indifferent to the availability of the power to support his conduct and as to the injury which conduct is calculated produced" (Mengel at 357 per Brennan J) 2. or are capable of representing "an absence of an honest attempt to perform the functions of public office that constitute the abuse of office". (Mengel at 357 per Brennan J) 1. Only need to be stated to be rejected. 2. In my view, Senior Constable Burley, far from exhibiting such motivations, demonstrated a commendable, caring attitude towards the plaintiff's children, which manifested itself in him by making arrangements for their care, after AD's arrest. 3. In my view, Senior Constable Burley's actions do not exhibit a state of mind "which stamp on a purported but invalid exercise of power the character of abuse of or misfeasance in public office." (per Brennan J in Mengel at 357) 4. Senior Constable Burley clearly gave thought and consideration to the impact that the Plaintiff's arrest would have on the children. He allowed the Plaintiff to ventilate her protest at his proposed arrangement, and he made an effort to sight the Family Court orders, so as to satisfy himself that GM was not excluded from the caring for his children. In those circumstances, it is in my view, without merit to suggest that Senior Constable Burley was acting maliciously or was recklessly indifferent to his power, such that his actions did not represent a honest attempt to perform his public functions. 5. Far from being a matter for criticism, in my view, the so called "removal" of the children from the custody of the Plaintiff into the parental care and responsibility of their father was sensible. In addition, the action was compatible with the Family Court orders, as pursuant to those orders, it is the responsibility of the father to provide care. In my view it is difficult to suggest otherwise. 6. In my view a case of malice of any description cannot be made out in connection with Senior Constable Burley's actions. Loss 1. In my opinion, the plaintiff's case in misfeasance also fails in respect of the final element of loss. To my mind there was no evidence that Senior Constable Burley understood that his conduct was calculated to produce loss to the plaintiff. 2. The plaintiff suggested this element is satisfied by her statement made, in her attempt to dissuade him from the course of action which he proposed, to the effect that she would have to go to court to achieve the children's return. I do not consider that this establishes the requisite causal link between Senior Constable Burley's actions and loss. In my view, the incurring of legal fees by the plaintiff in relation to the children's custody was as a result of her considered decision to approach the issue of any failure of GM to promptly return the children to care by resorting to litigation. Moreover, Senior Constable Burley would have no reason to believe that GM would not return the children into the custody of AD after her arrest. 3. Further, the better view of the evidence is that the incurring of legal fees in relation to the custody of the children by the plaintiff was in relation to an ongoing dispute between AD and GM as to access arrangements. Thus, to my mind the plaintiff has not established that the legal costs to which she points would not have been incurred in any event. 4. Finally, the plaintiff points to the loss being the fact that at one point in the arrest process she was physically ill. The plaintiff has not established that this was in any way the consequence of Senior Constable Burley's action in relation to the children, as distinct from the stress of her arrest. 5. The plaintiff's case insofar as it relates to misfeasance in public office must fail. Conclusion 1. Each of the plaintiff's causes of action are unsuccessful. The proceedings should be dismissed with costs. Damages 1. Self-evidently, as a result of my findings, it is unnecessary for me to decide questions of damages, indeed it is difficult to do so given these findings. I shall however, where it is possible, express a view in a particularly truncated form as to the damages which I would have awarded had I found for the plaintiff. 2. As to the false imprisonment claim, I would have assessed damages at $10,000. 3. As to the Trespass claim, at best this can only relate to the fact that Senior Constable Burley put his foot across the threshold of the door before AD gave him permission to enter. Damages would be no more than nominal. 4. I find it impossible to notionally assess damages for misfeasance in public office, in view of my findings in relation to the elements of that tort. Orders 1. That there be judgment and verdict for the defendant against the plaintiff. 2. That the plaintiff 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: 10 November 2022