LANGFORD v TURNBULL [1990] NSWCA 112

LANGFORD vy TURNBULL

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MEAGHER and HANDLEY JJA 8 May 1990, 29 May 1990

[1990] NSWCA 112

JURY — respective functions of judge and — action for false arrest and wrongful imprisonment — trial judge purportedly determines outstanding questions of fact pursuant to s79A District Court Act 1973 — whether verdict for plaintiff may nonetheless be sustained — held (1) s79A District Court Act 1973 provides no warrant for the judge to determine outstanding questions of fact arising in the course of the trial by jury. Pambula District Hospital vy Herriman (1988) 14 NSWLR 387 applied; (2) The judge was not authorised himself to determine outstanding questions of fact which were reserved by law to the jury. G and J Shopfittings and Refrigeration Pty Limited (In Liq) v Lombard Insurance Co (Aust) Limited (1989) 16 NSWLR 363 applied; (3) The jury's verdict on damages could not be sustained on the ground (per Kirby P) that there remained questions of fact to be determined by the jury on the defences of both appellants; and (per Handley JA, Meagher JA concurring) That the trial judge was not entitled to withdraw the defence of the second appellant and the appellants had been sued as joint tortfeasors issues reserved by law to him. Bales v Parmeter (1935) 35 SR (NSW) 182 applied and explained.

CRIMINAL LAW and PROCEDURE — proof of reasonable and probable cause for constables' actions — whether constables suspected that the person arrested had committed a crime or offence — whether there was reasonable cause for entertaining such suspicion — respective functions of judge and jury in determining such questions — held: (1) It is for the jury to determine whether constable suspected the person of an offence and for the judge to determine whether a constable had reasonable cause for entertaining the suspicion. Panton v Williams (1841) 2 QB 169; Lister vy Perryman (1870) 23 LT 269; McArdle v Egan and Ors (1934) 150 LTR 412; Bayles v Parmeter (1935) 35 SR (NSW) 182 applied; Herniman v Smith [1938] AC 305 (HL); Mitchell v John Heine and Son Limited (1938) 38 SR (NSW) 466 and Hatzinikolaou v Snape and Anor, Court of Appeal, unreported, 29 June 1989; (1989) NSWJB 126 applied; (2) In the circumstances of the case there remained questions of fact on the defences of (per Kirby P) both constables (per Meagher and Handley JJA) of one constable and the constables had been sued jointly so that the verdict delivered upon that basis could not be sustained against the other one; (3) Accordingly judgment in favour of the plaintiff set aside and new trial ordered.