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. POLICE — arrest and imprisonment — requirements of requirement of reasonable and probable cause for arrest — respective functions of judge and jury in determining whether defence made out discussed by Kirby P and Handley JA (Meagher JA concurring). LEGAL HISTORY — jury — role of to determine disputed questions of fact — wrongful arrest and false imprisonment — defence of reasonable and probable cause for constables' actions — history of decisions on. Crimes Act 1900, s352. Kirby P This appeal concerns the respective functions of a judge and jury in a DistrictCourt action brought against police officers in a claim for damages for wrongful arrest and false imprisonment. 2 UNREPORTED JUDGMENTS The course of proceedings at the trial Ms Linda Turnbull (the respondent) sued Constables A M Langford and C O'Hare (the appellants) and a company later dismissed from the suit, for wrongful arrest and false imprisonment. She summoned a jury to try the issues of fact. At the trial, the judge (Nash DCJ) invoked s79A of the District Court Act 1973 to "decide all or any issues of fact" in the trial. He resolved to "determine all relevant issues of fact and come to a conclusion" himself on whether the appellants had a lawful cause "for their actions in arresting" the respondent. His Honour's decision to take this course was made without notice to the parties. He sought no submissions on whether he had the power to act thus and, if he did, whether he should do so in the circumstances. The respondent concedes that his Honour was not entitled to act as he did on the basis on which he purported to act, viz s79A of the District Court Act. As I shall show, that concession is properly made. However, having determined to act in that way, Nash DCJ on the following day, decided certain factual matters adversely to the appellants. He concluded that they should not have arrested the respondent. He decided adversely to them defences which they had pleaded. The first was that the respondent had voluntarily accompanied the appellants to the North Sydney Police Station. The second was that any arrest found was lawful "based on reasonable and probable cause for suspicion that (the respondent) had committed an offence". His Honour then concluded that he was not satisfied on the balance of probabilities that such reasonable and probable cause for suspicion existed on the part of the appellants. He was therefore not satisfied that their arrest of the respondent was lawful. He accordingly determined to withdraw the defences from the jury. No other defences remaining, he effectively directed that the jury bring in a verdict in favour of the respondent. He proceeded to charge the jury on damages. In due course the jury brought in a verdict in favour of the respondent in the sum of $14,250. The appellants have appealed to this Court from the judgment which followed that verdict. They contend that, by the erroneous course which Nash DCJ adopted, they were deprived of their lawful entitlement to have disputed issues of fact decided by the jury. The respondent, however argued that the judgment entered against the appellants or at least against the first appellant (Constable Langford) was properly entered. It was submitted that there was no relevant issue of fact to be decided by the jury. For this reason, although arrived at in an irregular way, the jury's verdict could be sustained and the judgment which followed it, upheld. So far as the second respondent (Constable O'Hare) was concerned, it was conceded by the respondent that an issue of fact may have remained to be tried. However, it was urged that the liability of the appellants was joint. Upon this basis the judgment should stand against both appellants. The right of Constable O'Hare to have her liability determined by a jury was (so it was put) theoretical but not real. Despite the errors of procedure the respondent could hold the judgment. Circumstances of the arrest and imprisonment The respondent was 19 years of age in December 1983. She was employed in a shoe shop owned by Benuga Pty Limited. This shop was situated in a large shopping complex in North Sydney. The respondent was engaged as a trainee manager. Her duties included the banking of the shop's takings. On 21 December 1983 she went to the branch of the ANZ Bank Limited in North Sydney. She deposited moneys in the way in which she had been instructed. The following day she reported for work. At about URJ LANGFORD v TURNBULL (Kirby P) 3 10.30 am she saw two women enter the shop. It later transpired that they were the two appellants, plain clothes constables. As other evidence disclosed, they had been summoned to the store as a result of a suspected misappropriation of moneys intended for banking. The respondent's supervisor, Mrs Jan Mozeley, had made enquiries of the bank. As a result of an error by a teller at the bank, a sum was credited to the company's account, short of the sum actually deposited by the respondent. The teller did not place the bank's stamp on the duplicate deposit slip and did not stamp a credit slip for the sum deposited as he should have done. Instead, he stamped and retained a credit slip for a lesser sum. That slip had been written out on an earlier day. Before the bank's mistake was known, and suspecting a_ possible misappropriation, Mrs Mozeley contacted the company's head office. It contacted the North Sydney police station where the appellants were stationed. When they reported at the shoe shop, the appellants repaired to a nearby coffee shop. They there discussed the case with Mrs Mozeley. Neither of the appellants was an experienced police officer. They did not themselves first proceed to contact the bank at North Sydney before confronting the respondent. Instead, they spoke to the respondent immediately. There is a divergence of evidence about what precisely occurred. The respondent was clearly most upset by the suggestion that she had been engaged in criminal wrongdoing. She was aware of her legal rights. She declined to answer any questions put to her. According to the appellants, she ran out of the shop. It was then that she was arrested. The respondent denied any attempt to escape from the police. Her denial was supported by two employees. After her arrest, the respondent was escorted to the police car. She was then taken to the North Sydney Police Station where she was kept in custody for one and a half hours. Only then did the appellants proceed to make enquiries at the bank in North Sydney. The respondent was taken with them in the police vehicle. After some time, Constable Langford returned from her enquiries at the bank. The respondent was then taken to the interview room at North Sydney Police Station. It was there that she was told that the police enquiries had disclosed the bank's error. The respondent was then released. Understandably, the respondent was upset by what had occurred. As is now acknowledged, she was perfectly innocent of any wrongdoing. She had never been confronted by her employer and given an opportunity to explain her position before they summoned the police. When the police arrived, they accepted second-hand, the version given to the employer by the bank. Before arresting the respondent they did not make their own independent enquiries which might have avoided the accusation, confrontation and arrest which followed. The reason for proceeding by way of arrest at all (as distinct from summons) was contentious. The respondent had a permanent place of residence and was in employment. Armed with hindsight, the manner in which the employer proceeded was unfair and unjust to the respondent. The appellants also proceeded in a clumsy way. The arrest caused the respondent to suffer humiliation in front of fellow employees, former employees in a shop opposite and members of the public. It was for these wrongs that she brought her action. As Ihave said, Nash DCJ dismissed the action against the employer. No appeal or cross-appeal has been brought by the respondent in respect of his Honour's decision in that regard. The decisions which give rise to the appeal occurred at the close of the evidence in the trial. They concern the approach which his 4 UNREPORTED JUDGMENTS Honour took to the respective functions assigned by law to himself and to the jury which, with him, constituted the court for the purpose of deciding the case. The legal charter for arrest by constables At the trial, the appellants did not contest that a mistake had occurred or that the respondent was innocent of any criminal offence in respect of the bank deposit. Their case, as pleaded, was put in the alternative. First, it was suggested that the respondent had not been arrested or detained involuntarily. She had voluntarily accompanied the police, presumably to assist them in their enquiries. Suspects are regularly said to do this. But there is no doubt, in the light of the evidence in this case, that there was no such voluntary co-operation. The respondent, on the contrary, asserted her rights not to answer questions and not to accompany the police. In the light of the evidence, it is unsurprising that Nash DCJ decided that there was no evidence to support this defence or to warrant its being put to the jury for decision. In this Court, no contest was raised as to that tuling. The second defence is, however, of a different character. It asserted that if the respondent had been arrested by the appellants "then such arrest was a lawful arrest based on reasonable and probable cause for suspicion that the [respondent] had committed an offence". In pleading this defence, the appellants relied upon the provisions of s352 of the Crimes Act 1900. That section provides (so far as is relevant): "352(1) Any constable or other person may without warrant apprehend, (a)... (b) Any person who has committed a felony for which he has not been tried... (2) Any constable may without warrant apprehend, (a) Any person whom he, with reasonable cause, suspects of having committed any such offence or crime." The offence of which the respondent was suspected qualified to attract the section. The statutory provision in s352 reflects the long-standing position at common law that a peace officer was authorised to arrest, on reasonable suspicion of felony whether or not the felony, (as later enquiries disclosed) had actually been committed. See Samuel v Payne (1780) 1 Douglas 359. After the organisation of police forces it was recognised that constables, like peace officers before them, would often have to act upon imperfect materials. They would sometimes be called upon to make decisions in circumstances of urgency and upon incomplete or inaccurate reports. To strike a balance between the defence of the liberties of the subject (on the one hand) and the protection of constables from liability for bona fide arrests and detention shown by hindsight to have been mistaken (on the other) provisions such as are now found in s352 of the Crimes Act were commonly enacted. Still more recently, in a number of jurisdictions, police powers of detention have been further enlarged by statute to permit detention for a specified time for the purpose of questioning in relation to a suspected offence. A recent report has proposed widening of this power. See Commonwealth Review of Criminal Law, Report, Detention Before Charge 1989, noted (1989) 13 Crim LJ 295. But this is not the common law. See Williams v The Queen (1986) 161 CLR 278, 306 noted (1987) 11 Crim LJ 2; Cf Santos and Carrion v the Queen (1987) 61 ALJR 668 noted (1988) 12 Crim LJ 261.. Nor is it the law of this State as laid down by s352 of the Crimes Act. The contrary was not suggested. URJ LANGFORD v TURNBULL (Kirby P) 5 In this State, arrest is justified only for the purpose of taking a person reasonably suspected to have committed an offence before a Justice to be charged and dealt with according to law. The transfer of the suspect from the executive branch of Government (represented by the constable) to the judicial branch (represented by the Justice) must take place without unreasonable delay. Bales v Parmeter and Anor (1935) 35 SR (NSW) 182, 188. Disputed issues of fact at the trial Upon this second ground of defence there were important points of difference in the evidence called at the trial. To some extent, these differences concerned the respective versions of events given by the appellants and the respondent. But upon one material matter there was a clash between the evidence of the appellants and that of the respondent and independent witnesses. Put shortly, this concerned the circumstances immediately preceding the arrest of the respondent and what it was that caused the appellants to proceed to the arrest. Constable Langford gave evidence of approaching the respondent and inviting her to return to North Sydney detectives' office to assist her with her enquiries. The examination-in-chief proceeds: "Q: What happened then? A: Miss Turnbull then became very, very agitated. She started crying. She started screaming. She told me we couldn't take her away, we had no right whatever to take her away. She then pushed past Detective O'Hare and myself, and ran out of the shop into the arcade screaming and calling out to someone in Katies [the shop opposite in which she had formerly worked]... Miss Turnbull ran out of the shop over to two ladies who came out of Katies. At that time Det O'Hare and I ran out of the shop because she was scared that she was going to get away from us. The two ladies from Katies were trying to console her to find out what was going on, because she was screaming in such a loud voice. HIS HONOUR: Q: Why were you scared that she might get away from you? A: Because she had run out of the shop. Q: Why did you then chase after her? A: Because at that time I wanted to ask her some questions in relation to the deposit books and the fact that she had done the banking the day before. Q: You wanted to restrain her? A: That is correct. I had not completely at that stage made up my mind that she was to be arrested. Q: You had no right to restrain her if you did not? A: That is correct." Then came Constable Langford's description of the arrest: "Q: Did she say anything to you? A: She said to me, 'I'm not going back with you unless you arrest me'. With the evidence that Mrs Mozeley. HIS HONOUR: Q: Don't worry about that. Mrs Mozeley had not given you any evidence at all, had she? A: With the facts that I had been told. Q: She told you a few things? A: Yes. Q: About which you had not checked? A: That is correct at that stage. I arrested her. I said "You are under arrest'. [COUNSEL]: Q: On what information did you arrest her? A: I arrested her on the information which had been given to me by Mrs Mozeley." During cross-examination it was put to Constable Langford that "the purpose for which you arrested this girl was for questioning?" She agreed. However, that agreement must be read in the context of the evidence she had given in more detail in her examination-in-chief. She elaborated her reasons in re-examination: 6 UNREPORTED JUDGMENTS [COUNSEL]: Q: Miss Langford, you were asked some questions... relating to the terms of your arrest. It was put to you that you arrested the plaintiff to question her? A: In relation to the deposits. Q: Was that the only reason for the arrest? A: No. The plaintiff left me absolutely no alternative whatsoever but to arrest her. Q: At that time did you suspect her of the crime? A: Yes, I did. With the facts that had been given to me at that time I did suspect her of doing something and because of her general demeanour, which had completely changed." The evidence of Constable Langford must be contrasted with that of Constable O'Hare. She contended that the whole purpose of going to the store was to arrest the respondent: "Q: Did you concur in the decision to arrest? A: No, we didn't. Q: Not confer - did you concur? A: Oh, concur, yes. I thought you said "confer"... Q: At the time the plaintiff was arrested, did you suspect her of the crime? A: Yes, I most certainly did. Q: On what basis? A: On the basis of the evidence presented to us at that point of time. Looking at the deposit slip which hadn't been banked, it looked as though it had been written in by somebody, and it looked as though Miss Turnbull had written in the amount herself and kept the money, because why wouldn't the deposit slip be stamped if it had been taken to the bank? Also knowing that the bank had said she didn't deposit the money, I believed that we had reasonable cause to suspect that she had committed the offence." She was pressed on this evidence in cross-examination: "Q: Did you not say that she ran out of the store before any conversation about putting her under arrest took place? A: Yes. Q: It is a fact, is it not, that when you first went into the store your purpose was to question her regarding these matters? A: No. My purpose for going to the store was to arrest her and consequently when somebody is arrested they are obviously interviewed about the matter, allowed to make a statement, if they wish, in relation to the matter. But my intention when I went into the store was to arrest her for the offence. Q: So you say the purpose of arresting her was to get her side of the story? A: No. As I have just stated, when somebody is arrested they are taken to the police station, they are interviewed and allowed to write out their own story, their side of whatever happened, or we can type it out for them, whichever they choose. They may wish to say nothing. So far as I was concerned, we were going to arrest her to charge her with the offence. Q: You say from the moment you went into the store and saw Miss Turnbull having had this conversation with Mrs Mozeley and having seen these documents your intention was to arrest her? A: Yes, it was. Q: Not to ask her questions at the shop? A: No; to arrest her. Q: When you first took this girl into custody, you had no intention at that time of charging her with any offence, did you? A: That is completely wrong. I had every intention of charging her. Q: I suggest you didn't? A: Well, I did. During this cross-examination, Constable O' Hare repeated her assertion that whilst she and Constable Langford were explaining her arrest to the respondent "she ran out of the shop, and when we got outside the shop we told her she was under arrest". URJ LANGFORD v TURNBULL (Kirby P) 7 Emerging questions of fact suitable for jury determination As I have said, other evidence, apart from that of the respondent, contradicted the statement that the respondent had run from the shop. A number of questions of fact were therefore posed by the above testimony: 1. Did Constable O'Hare (as she claimed) suspect that the person whom she arrested had committed a crime or offence when she went into the shop and spoke to the respondent? 2. When spoken to by the police officers did the respondent was the appellants claimed but as other evidence denied) run out of the shop? 3. Did this act of flight and/or other aspects of the respondent's demeanour convert Constable Langford's uncertainty into a real suspicion that the person whom she arrested had committed a crime or offence? 4. Was the real reason for the arrest of the respondent something other than a suspicion on the part of either or both of the police constables? In particular was the purpose that of questioning the respondent despite her refusal to agree to this? The appellants say that these questions of fact should have been resolved by the jury before the trial judge proceeded on the basis of the jury's answers, to determine whether the police constables, either or both of them, had reasonable cause for entertaining the suspicion (if any) so found. Instead of taking the conventional course and securing the jury's verdicts on the questions of fact posed by the evidence, Nash DCJ proceeded to determine the questions of fact himself. It is this course which brings the judgment which followed under the scrutiny of this Court. Judge impermissibly decides the facts Nash DCJ addressed his attention to what was said by Jordan CJ in Bales v Parmeter (above) at 186. There the Chief Justice dealt with the respective functions of the judge and the jury where "any question of fact arises as to whether the officer in fact suspected the accused or in fact reasonable ground for believing it to be true". Nash DCJ noted that, according to Jordan CJ, "these questions should be put to the jury, in order to provide the judge with material to determine the question which is for him alone". He therefore invited counsel to formulate questions to be put to the jury. The transcript of what occurred is incomplete. It is necessary once again to say that gaps in transcript must, in default of agreement, be filled by evidence in affidavit form. See Builders' Licensing Board v Mahoney (1986) 5 NSWLR 96, 99; Palmer and Ors v Clarke and Ors (unreported, New South Wales Court of Appeal, 24 September 1989). The Court was told, without objection, that counsel were formulating a number of questions to be put to the jury for determination of factual issues. They had virtually reached agreement on these two: 1. Do you believe that, at the time of arresting the plaintiff, the first and second defendants honestly and genuinely believed that they had reasonable cause to suspect that the plaintiff had committed an offence? and 2. Do you believe that the plaintiff was arrested by the first and second defendants for the purpose of questioning or for the purpose of charging her with an offence? In the light of the differentiated evidence of Constables Langford and O'Hare, it might have been expected that the judge would instruct the jury on the possibility that they could reach a different opinion in respect of each officer and should so express that opinion in answering these questions. It might also have been expected that the judge would instruct the jury on the relevance of the conflict in evidence concerning whether or not the respondent had run out of the shop just prior to her arrest. 8 UNREPORTED JUDGMENTS However, none of these efforts came to fruit. Nash DCJ simply returned and said: "Tt must at all times be difficult in the conduct of a trial of this nature for the relevant questions to be asked of a jury. At this stage I am convinced that the evidence relating to this issue in this case is all one way, or is such that reasonable men could come to only one conclusion about it. Fortunately, in respect of trials by jury in this Court, s79A of the District Court Act 1972 now enables a judge to decide all or any issues of fact in a trial which otherwise would be by jury. I propose therefore to decide myself all questions of fact to enable me to determine the question whether the first and second defendants have reasonable cause for entertaining the relevant suspicion, that is, whether they had reasonable probable cause for their actions in arresting the plaintiff. Consequently, I propose to determine all relevant issues of fact and come to a conclusion myself on this aspect, based on such decisions of fact and not to ask the jury to determine any such issues." His Honour reserved his decision on the factual questions until the following morning. Neither counsel was familiar with s79A of the District Court Act. It seems that their search to find the section overnight was unsuccessful. They obtained it the following day through his Honour's Associate. In the time available to scrutinize the section, counsel were unable to make submissions that the course proposed by his Honour was not permitted by the section. Upon one view, the failure by counsel for the appellants to make such a submission (although there was opportunity to do so) might amount to a waiver of the point or an acquiescence in the course upon which his Honour then embarked. However, counsel for the respondent declined in this Court to take that point, doubtless because both counsel at the trial were equally taken by surprise by what his Honour did. Before taking over the jury's role his Honour should have sought submissions on (a) whether there was power to do so; and if there were (b) whether that power should in the circumstances be exercised. No such submissions were invited. Nor were they made. The judge had determined on a course and the parties were carried along with that determination. Whatever doubts may previously have been thought to exist, it is clear since Pambula District Hospital v Herriman (1988) 14 NSWLR 387 that the discretion provided by s79A of the District Court Act, like that provided by s89(1) of the Supreme Court Act 1970, is one to be exercised having regard to the particular circumstances of the case. The two sections were enacted in their present form at the same time. They are, for all material purposes, in identical language. They cannot be used to deprive a party of a jury trial because of features of that mode of trial which are inherent in its very nature. Delays in the court lists, supposed difficulties of lay people determining complicated questions or problems in conducting the jury trial are impermissible reasons for ordering that the jury be dispensed with Parliament has provided a contingent right to jury trial which must be upheld by the courts. It is proper to point out that Pambula was not decided until August 1988. Nash DCJ made his decision in this case in February 1988. Before Pambula there was something of a controversy, settled by that decision, concerning the criteria by which the jury determinations of factual questions or jury trial itself might be dispensed with under these sections. Also since Nash DCJ took the course described in the present case, this Court has delivered its judgment in G and J Shopfittings and Refrigeration Pty Limited (in Liq) v Lombard Insurance Company (Aust) Limited (1989) 16 NSWLR 363. That decision makes it plain URJ LANGFORD v TURNBULL (Kirby P) 9 that the power to dispense with a jury under s89(2) of the Supreme Court Act may not be exercised after a trial had commenced and the jury is empanelled. If during a trial a jury is discharged, the judge may not, without consent of the parties, continue to hear and determine the case, sitting alone upon the same evidence as was called before the jury. It was not suggested that there was any distinction between the principle established by G and J Shopfittings in respect of s89 of the Supreme Court Act and the principle to be applied in respect of orders made under the District Court Act, s79A. I shall assume that there is no difference. Nor was it suggested that the appellants had agreed to, or acquiesced in, the change of the mode of trial imposed on the parties by his Honour. G and J Shopfittings expresses the law of this State. It has been applied in later cases. See eg Borg Warner Australia Limited Trading as Thomson and Scougall v Simmons and Anor, Court of Appeal, unreported, 15 December 1989 (1989) NSWJB 223. On the face of things, it governs the present case. As the trial judge incorrectly assumed a fact-finding function reserved by law to the jury and then determined facts for himself on the evidence taken before that jury, the judgment which followed that impermissible alteration of the mode of trial is flawed. The action must therefore be retried. Did the error affect the result? In an imaginative argument, the respondent nevertheless sought to hold her verdict. She argued that although a procedural mistake had occurred, it did not, in the event, affect the outcome of the trial. She acknowledged that, to succeed in this submission it was necessary to establish that, on the evidence proved before the jury, only one verdict was open, namely one in favour of the respondent. By conventional theory, this proposition must be tested, examining the evidence in the light most favourable to the appellants or either of them. It must then be asked whether, so examined, only one verdict was open such that, in effect, the trial judge was bound to direct the jury on the evidence to find for the respondent. Alternatively, it must be shown that upon those matters which, by law, were reserved to his Honour, a conclusion favourable to the respondent determined the case in her favour, making any opinion on the part of the jury on disputed factual questions irrelevant to the outcome of the trial on the issue of liability. I cannot agree that the jury was bound on the live factual questions remaining at the end of the trial to find for the respondent. They might well have done so. But there were real issues to be determined, including the assessment of the credibility of the witnesses. If, for example, the jury believed Constable O' Hare, they could well accept that she believed she had reasonable cause to suspect that the appellant had committed an offence. If they believed that the respondent had indeed fled from the shop (as both police constables asserted) the jury could conclude that Constable Langford's doubts had indeed been converted to a reasonable cause for suspicion that the respondent had committed an offence. Depending on the circumstances, flight may be evidence of a guilty mind. See eg Woon v The Queen (1964) 109 CLR 529, 541 and Deas v The Queen, NSW Court of Criminal Appeal, unreported, 16 March 1990. The case, therefore, fell far short of one in which only one conclusion was open to a reasonable person. In fact, there was a serious clash of evidence which presented classic questions for the jury. Questions, indeed, which counsel for the parties were busily preparing when Nash DCJ incorrectly assumed the jury's role and decided the questions of fact for himself. 10 UNREPORTED JUDGMENTS But that leaves the alternative contention of the respondent. This was that the intrusion did not matter. Having come to a conclusion adverse to the appellants on the issue which the law reserved to him, the opinion of the jury on the factual questions reserved by law to it was irrelevant. On the judge's opinion alone, the respondent was entitled to a verdict against the appellants. This, it was argued, was because the defence raised by them under s3S2 of the Crimes Act 1900 was bound to fail and Nash DCJ was therefore authorised to withdraw it from the jury. In order to evaluate this argument it is necessary to consider in more detail the respective functions of judge and jury in cases of this kind. Respective functions of the judge and jury Originally, there was doubt in cases of wrongful arrest and malicious prosecution as to which matters of defence were to be determined by the judge and which by the jury. In 1841, on a writ of error from a summing up by Lord Chief Justice Denman of the Exchequer Chamber, Tindall CJ in Panton v Williams (1841) Q3 169, 193f explained the proper practice thus: "There [have] been some cases in the later books which appear at first sight to have somewhat relaxed the application of that rule, by seeming to leave more than the mere question of the facts proved to the jury: but, upon further examination, it will be found that, although there has been an apparent, there has been no real, departure from the rule. Thus, in some cases the reasonableness and probability of the ground for prosecution has depended, not merely upon proof of certain facts, but upon the question, whether other facts which furnish an answer to the prosecution were known to the defendant at the time it was instituted: again, in other cases, the question has turned upon the inquiry whether the facts stated to the defendant at the time, and which formed the ground of the prosecution, were believed by him or not: in other cases the inquiry has been, whether, from the conduct of the defendant himself the jury will infer that he was conscious he had no reasonable or probable cause. But, in these and many other cases which might be suggested, it is obvious that the knowledge, the belief, and the conduct of the defendant are really so many additional facts for consideration of the jury: so that, in effect, nothing is left to the jury but the truth of the facts proved, and the justice of the inferences to be drawn from such facts; both which investigations fall within the legitimate province of the jury, whilst, at the same time, they have received the law from the judge that, according as they find the facts proved or not proved, and the inferences warranted or not, there was reasonable and probable ground for the prosecution or the reverse." The difficulty of the task of charging a jury was acknowledged by the Exchequer Chamber in Panton. But the delineation of the respective functions of judge and jury was made plain. It is a delineation as much observed in cases where wrongful arrest or false imprisonment are alleged as in cases of malicious prosecution. The rule in Panton was objected to in Lister v Perriman (1870) 23 TLR 269 in the House of Lords. But in that case their Lordships adhered to it. Lord Chelmsford tat 271) said: "... [S]ince the case of Panton v Williams in which the question was solemnly decided in the Exchequer Chamber, that what is reasonable and probable cause in an action for malicious prosecution, or for false imprisonment, is to be determined by the judge. In what other sense it is properly called a question of law, I am at a loss to understand. No definite rule can be laid down for the exercise of the judge's judgment. Each case must depend upon its own URJ LANGFORD v TURNBULL (Kirby P) 11 circumstances, and the result is 2 conclusion drawn by each judge for himself, whether the facts found by the jury constitute a good defence to the action. The verdict in cases of this description, therefore, is only nominally the verdict of a jury. The different views, which may be entertained by judges, as to whether a certain state of facts does or does not furnish a reasonable and probable cause for prosecution is exemplified by the divided opinions of the learned judges in the Exchequer Chamber in this case.... In my opinion the facts brought to the knowledge of the defendant by his coachman, which the jury found that he believed, were quite sufficient to justify his proceeding against the plaintiff." Lord Colansay (at 272f) asserted that the "settled law" in England, namely that the want of reasonable and probable cause is a matter for the court, appeared not only from Panton but: "was very authoritatively laid down in the earlier case of Johnstone v Sutton 1 TR 493 in which the opinions of Lord Mansfield and Lord Loughborough were adduced in support of the proposition that such was the law of England. Probably it became so from anxiety to protect parties from being oppressed or harassed in consequence of having caused arrests or prosecutions in the fair pursuit of their legitimate interests, or as a matter of duty in a country where parties injured have not the aid of a public prosecutor to do these things for them." This question of policy was averted to again in the English Court of Appeal in McArdle v Egan and Ors (1934) 150 LT 412. Lord Wright at 413 there said: "It is, no doubt, very important that the liberty of the subject should be preserved from undue interference, and in this case the charge has been withdrawn from the man and it is not now suggested that he was guilty of the offence. On the other hand it has got to be remembered that in the public interest, it is very important that police officers should be protected in the reasonable and proper execution of their duty; they should not be hampered or terrified by being unfairly criticised if they act on a reasonable suspicion. Although the amount here is very small, i think the question of principle is very important. It has to be remembered that police officers in determining whether or not to arrest, are not finally to decide the guilt or innocence of the man. Their function is not judicial, but ministerial and it may well be that if they hesitate too long when they have a proper and sufficient ground of suspicion against an individual, they may lose an opportunity of arresting him, because in many cases steps have to be taken at once in order to preserve the evidence." This was the inheritance of the common law which was reviewed in this State in Bales v Parmeter, the decision to which Nash DCJ referred. Like this case, that was an action for unlawful arrest and false imprisonment against police constables who were investigating an alleged crime. At the trial, the judge left certain questions to the jury, including whether the police constables reasonably suspected the plaintiff of committing a crime. The jury answered in the negative. Summing up, the judge had instructed the jury that they should answer the question posed according to the view they took of certain evidence. The jury's verdict for the plaintiff was appealed. It was contended that the question of whether there was reasonable cause was one for the judge and not for the jury. The Full Court of the Supreme Court held that it was open to the trial judge to leave the question to the jury; but with proper directions on the questions to be answered. Jordan CJ (at 186) said: "There is no doubt that in an action for wrongful arrest and false imprisonment by a police officer it is good defence if the defendant proves that he had reasonable and probable cause for his actions. Such reasonable and probable 12 UNREPORTED JUDGMENTS cause may be established by proving that he, with reasonable cause, suspected the person whom he arrested of having committed a crime or offence. The question whether the officer had reasonable cause for entertaining the suspicion is a question to be determined by the judge. McArdle v Egan. If any question of fact arises as to whether the officer in fact suspected the accused, or in fact had the information upon which he says that he formed the suspicion, or believed that information to be true or had reasonable ground for believing it to be true, these questions should be put to the jury, in order to provide the judge with material to determine the question which is for him alone, namely whether the data afforded reasonable ground for entertaining the suspicion. But if the evidence relating to this issue is all one way and is either unchallenged or such that reasonable men could come to only one conclusion about it, the judge need put no question to the jury on this point but may proceed to determine the question for himself. Ibid. If he thinks that a question should be put to the jury, it is for him to exercise his discretion as to what is the best way to put it to them in order that the respective duties of himself and them may be properly carried out. He may put specific questions to them and then resolve the matter upon their answers; or he may put to them the very question which he has to decide, so long as he makes it clear to them that they have no alternative but to answer it one way or the other as they take one view or another upon the incidental questions of fact which are involved." (emphasis added) In the context of cases of malicious prosecution this delineation between the respective functions of the judge and jury has been uniformly followed in this State. See eg Mitchell v John Heine and Son Limited (1938) 38 SR (NSW) 466, 469; Hatzinikolaou v Snape and Anor, Court of Appeal, unreported, 29 June 1989; (1989) NSWJB 126. The same is also true in England. See Herniman v Smith [1938] AC 306, 316. In Herniman the House of Lords stressed the importance of the function which the jury has to perform. Lord Atkin, at 316 said: "The jury no doubt have important functions to perform. They are to find for the judge what the relevant facts are, when they are disputed. If there is evidence of a lack of honest belief in the guilt of the accused... whether he honestly believed or not is a disputed but essential fact on which the judge is to draw his conclusion and is a question for the jury.... If there are specific points of genuine dispute between the parties in regard to such circumstances, the facts should be ascertained by the jury... When the judge knows the facts operating upon the prosecutor's mind, he must then decide whether they afford reasonable or probable cause for prosecuting the accused. The procedure envisaged in Herniman was accepted by Jordan CJ in Mitchell (at 471): "... If the disputed fact is sufficiently relevant to make it necessary that it should be ascertained in order that the judge may decide the ultimate questions of fact which fall to him alone, any necessary questions should be put to the jury." The judge's error requires correction I shall assume that the respective functions of the judge and jury in the present case were those outlined in the preceding series of common law decisions. Specifically, I assume that they are those explained by Jordan CJ in Bales. I will not pause to consider whether the statutory assignment of fact-finding to the jury by the District Court Act 1973 altered the respective functions of the judge and jury in an action such as the present. (See eg s77(2)). This was not argued. Did Nash DCJ's opinion on the matter reserved by law to him entitled him to bypass the jury's opinion on the disputed facts? Does that opinion uphold the judgment he entered against the appellant? I think not. URJ LANGFORD v TURNBULL (Kirby P) 13 1. It is to be noted that neither party at the trial so asserted. Each was preparing for the questions for the jury when his Honour proceeded to resolve the outstanding questions of fact himself; 2. Nor did his Honour suggest that there were no outstanding questions of fact. Indeed, he acknowledged that there were. Erroneously, he used s79A of the Act to resolve them himself; 3. None of the authorities cited above suggests that, if there are factual questions outstanding relevant to the subjective beliefs of the constable, the judge may bypass the jury entirely, proceeding directly to first determine the "objective" question about the presence or absence of reasonable and probable cause for what was done; 4. On the contrary, many of the judgments, including that of Jordan CJ in Bales envisage that a legitimate resolution of the respective functions of judge and jury is to leave to the jury the whole question but with adequate instructions concerning the conclusion they should reach in the light of the decision they take on the disputed facts and inferences from them; 5. The only circumstance in which no question need be put to the jury and when the matter is reserved exclusively for judicial determination, is where the evidence is "all one-way and is either unchallenged or such that reasonable men could come to only one conclusion about it". That is not, as I have demonstrated, this case. Constable O' Hare gave her version of her state of mind. If her evidence was accepted by the jury, that would pose the question for the judge to answer. Upon one view of Constable Langford's evidence her initial doubts were removed by the act of flight on the part of the respondent. If the jury accepted that interpretation (as was open to them) they could well conclude that Constable Langford, too, had reached a reasonable suspicion, before the arrest, that the respondent was a person who had committed a crime or offence; 6. The reasons for taking the two steps in the way all the cases suggest they should be taken are clear. First, this respects the constitutional and historical role of the judiciary in fact-finding. Secondly, it permits the resolution of the subjective opinion of the constable by a tribunal drawn from the community. Such a tribunal, by its number and composition is deemed to be in a better position to evaluate such matters than a single judge of legal training. Thirdly, if the constable cannot prove subjective belief, the judge is not troubled by the question whether there was reasonable cause for having that belief when the arrest took place. Proof of the belief, which goes to the integrity of the constable's actions is the first step only in showing that there was reasonable and probable cause for the action taken. Fourthly, it will be useful to have the jury's determination on that question before the judge asks himself or herself whether there was reasonable and probable cause for the police to act as they did. Take the present case. Assume that the jury negatived the suggestion that the respondent had pushed past the appellants and fled from the shop. Assume they answered in the affirmative the drafted question suggesting that the real purpose for the arrest was the questioning of the respondent about an offence. Such verdicts could quite then readily sustain the judicial opinion that there were no reasonable grounds for the suspicion which the police constables claimed to have. In other words, taking the jury's answer to the questions of fact, as originally intended, would have assisted Nash DCJ to an informed, proper and just conclusion on the question reserved by law to him. 14 UNREPORTED JUDGMENTS Instead, his Honour impermissibly determined the outstanding questions of fact. This was not an irrelevant irregularity. The ingenious attempts of the respondent to sustain the verdict notwithstanding the course of the trial must fail. Suggested differentiation between the constables fails The respondent alternatively urged that the verdict could be sustained because the first appellant, Constable Langford, had acknowledged by her own evidence that her purpose in arresting the respondent was to question her. It is true that certain of the answers given by Constable Langford indicated an indecision about arresting the respondent and suggested that her purpose may have been to question her. By the law of this State, that would not have been a permissible purpose. It would have been unlawful. However, the passages of the evidence of Constable Langford, set out above, are clearly open to the interpretation that it was the flight of the respondent, and her attitude during questioning, which converted Constable Langford's desire to ask further questions into a conviction that she had a reasonable ground to believe that the respondent had committed an offence. At least, this was an issue for the jury to decide. The evidence was not all one-way. The state of Constable Langford's mind was not unchallenged. Nor was it a question upon which reasonable jurors could come to only one conclusion. Therefore, that question should have been left to the jury. The alternative argument fails. This conclusion relieves me of the obligation to consider what would follow were the respondent to succeed only on this alternative. She conceded that it was open to the jury to accept the evidence of the second appellant, Constable O'Hare. It will be recalled that Constable O'Hare at all times asserted that she had a reasonable suspicion on the basis of what Mrs Mozeley had told her. On the alternative argument, she at least has been deprived of the opportunity of having the jury accept her evidence from which a judgment in her favour might have followed. The notion that the judgment entered against both of the appellants for the indignities they allegedly inflicted on the respondent as joint tortfeasors should stand against one of them only is not immediately attractive. It is to be kept in mind that these contortions of reasoning are only necessary in an attempt to save the verdict which followed an admitted irregularity by the trial judge: taking out of the hands of the jury questions by law committed to them. The preferable course, where there has been such a mistrial, is to order a retrial. There the respondent may succeed again. But the appellants will at least have had a trial according to law and the determination of the disputed facts by the lawful tribunal of fact which had been chosen by the parties, namely the jury. During the argument the appellants conceded that a retrial should be limited to liability. However, I do not consider that that concession was properly made. There has been a mistrial. The retrial should be had generally. Meagher JA I have read in draft the judgment of Handley JA, and wish to say that, with the greatest possible regret, except to the extent I set out below, I agree with it. I would wish to add the following comments: 1. I say "with the greatest possible regret" because, on any view, Miss Turnbull is a lady who was entirely innocent and was the victim of a serious wrong, for which she has so far not been compensated. 2. Whilst it is obviously true that flight from justice is some evidence of guilt, in my opinion there is no evidence whatever of "flight" in the present case! At most, the appellant's evidence is that Miss Turnbull ran from the employer's shop URJ LANGFORD v TURNBULL (Handley JA) 15 to another shop in which she had formerly been employed in order to protect her innocence and draw attention to her predicament. That is not, in any relevant sense, "flight". 3. It is still open for a jury to find that the second appellant had at the time of arrest no belief that there was a reasonable ground for suspecting that Miss Turnbull had committed a crime. The first appellant has, of course, already admitted that she had an unlawful purpose in effecting the arrest. 4. It is also still open for the judge hearing the retrial to find that there was in fact no reasonable ground for either of the appellants to have such a suspicion, whatever either lady at the retrial says was her state of mind, and whatever the jury decides. Handley JA There is before the Court an appeal by two police officers who were defendants in an action in the District Court for wrongful arrest and false imprisonment. The action was heard before His Honour Nash DCJ and a jury of four. At the close of the trial the judge directed a verdict for the plaintiff's employer who was the third defendant which has not been challenged by any party in the course of this appeal. The action continued against the two police officers, but purporting to act pursuant to s79A of the District Court Act His Honour withdrew from the jury all questions of fact relevant to the issue of liability and determined these questions himself. On the basis of the facts so found by him, the trial judge held that the police officers did not have reasonable and probable cause for suspicion that the plaintiff had committed an arrestable offence and he therefore held that their arrest of the plaintiff was not lawful. Accordingly he withdrew the defences of justification from the jury and in effect directed a verdict for the plaintiff for damages to be assessed. He then summed up on the issue of damages, which the jury assessed at $14,250.00. Judgment was entered by His Honour for the plaintiff against both defendants for this amount. The defendant police officers have appealed to this Court seeking either the entry of judgment in their favour or in the alternative a new trial of the action on all issues. The first ground of appeal is that the trial judge erred in holding that s79A of the District Court Act empowered him to decide issues of fact in this trial which otherwise should have been submitted to the jury for its determination. S79A which was inserted by Act No 169 of 1987 and came into force on 18 November, 1987 prior to the hearing provides: "In any action, the Court may order, despite s77, s79 and 79, that all or any questions of fact be tried without a jury". This section is in substantially the same terms, for present purposes, as s89(1) of the Supreme Court Act. Recent decisions of this Court have established that, after a jury trial has commenced, s89(1) does not empower a judge to withdraw issues of fact from the jury for the purpose of deciding them himself, even if the jury has been properly discharged for other reasons. See G and J Shopfittings and Refrigeration Pty Limited v Lombard Insurance Co Limited [1989] 16 NSWLR 363 applied in Borg Warner Australia Limited v Simmons (CA) unreported 15 December, 1989. Although the High Court granted special leave to appeal from the decision of this Court in the G J Shopfitting case the appeal was later settled so that the law of this State remains as expressed in those decisions. No relevant distinction can be drawn, for present purposes, between s89(1) of the Supreme Court Act and s79A of the District Court Act. In these circumstances it is not surprising that the outline written submissions of counsel for the 16 UNREPORTED JUDGMENTS respondent conceded error on the part of the trial judge in relying on the power conferred by s79A. Prima facie therefore the appellants are entitled to a new trial, at least on the issue of liability. Mr Malcolm Craig QC, Senior Counsel for the respondent, however submitted that this error did not determine the fate of this appeal and he sought on other grounds to support the judgment against both appellants or at least against the first appellant. Mr Craig QC's first submission was that in any event there was no issue of fact which needed to be determined by the jury. The defendant police officers arrested the plaintiff without a warrant. The common law power of a constable to arrest a person without warrant has been subsumed by the somewhat wider statutory power found in s352(2) of the Crimes Act 1900. An arrest without warrant will be unlawful if the arresting constable fails to prove that at the time of the arrest he or she had reasonable cause for suspicion that the person arrested had committed a relevant crime or offence. Establishment of this defence requires proof of two elements and in a trial by jury the first of these is within the province of the jury and the second within the exclusive province of the judge. The respective functions of judge and jury in cases of this kind were explained in Bales v Parmeter (1935) 35 SR 182 by Jordan CJ at 186-187 as follows: "The question whether the officer had reasonable cause for entertaining the suspicion is a question to be determined by the judge: McArdle v Egan (150 LT 412). If any question of fact arises as to whether the officer in fact suspected the accused, or in fact had the information upon which he says that he formed the suspicion, or believed that information to be true, or had reasonable ground for believing it to be true, these questions should be put to the jury, in order to provide the judge with material to determine the question which is for him alone, namely whether the data afforded reasonable ground for entertaining the suspicion. If the evidence relating to this issue is all one way and is either unchallenged, or is such that reasonable men could come to only one conclusion about it, the judge need put no question to the jury on this point, but may proceed to determine the question for himself: ibid. If he thinks that a question should be put to the jury, it is for him to exercise his discretion as to what is the best way to put it to them in order that the respective duties of himself and them may be properly carried out." This is still an accurate statement of the law in this State and as such was recently followed and applied by this Court in Jones v Harvey (1983) 1 MVR 111. Moreover s352(2) of the Crimes Act which confers the relevant power of arrest has not been amended during the intervening years. The trial judge, in his decision on liability, said: "1 am not satisfied on the balance of probabilities that there existed reasonable and probable cause for suspicion on the part of the first and second defendants that the plaintiff had committed an offence, and I am not satisfied that the first and second defendants or either of them had reasonable cause for having such a suspicion". As I read His Honour's decision he was expressing, in the passage quoted above, his conclusion on the ultimate question reserved for his decision and was not attempting to express any view, at that point, on the preliminary questions of fact which would ordinarily have been submitted to the jury for its decision. In these circumstances the first question in this appeal is whether the evidence at the trial directed to establishing that the arresting police officers had reasonable grounds for entertaining the suspicion that the plaintiff had committed a relevant URJ LANGFORD v TURNBULL (Handley JA) 17 crime or offence "is all one way and is either unchallenged, or is such that reasonable men could come to only one conclusion about it" (see above) so that, under the general law, the trial judge was not required to put any questions to the jury on the issue of liability. In that event he was entitled to proceed to determine the second issue identified by Jordan CJ that is whether the information in the possession of the police officers afforded reasonable ground for entertaining the relevant suspicion. The trial judge found that on the morning of 23 December 1983 the appellants, comparatively inexperienced police officers, were directed to go to the third defendant's shoe shop in the Shopping World Centre, North Sydney, to investigate its complaint that the plaintiff, the day before, had not banked moneys entrusted to her for that purpose. Upon arrival at the shop the police officers were met by Mrs Mozley a supervisor for the third defendant. The three ladies went to a nearby coffee lounge where Mrs Mozley gave information to the police officers and showed them the bank deposit and credit books used by the plaintiff in the course of her duties. It appeared from those books that on 21 December the plaintiff had completed a deposit slip with two duplicates for the deposit of cash, cheques and a bankcard credit totalling $433.05. The employer's bank deposit book contained the two duplicate deposit slips neither of which bore the bank's usual stamp. The credit book contained an intact credit slip relating to the deposit still attached to the butt and neither bore the bank's stamp. On the other hand the top duplicate deposit slip in the deposit book bore what appeared to be the initials of a bank teller. On 22 December the plaintiff had left her employer's premises to carry out the banking recorded in the deposit and credit books. The following morning the manageress noticed the irregularities in the books and caused an enquiry to be made of the bank as to whether the deposit had been received. The bank denied receipt. In fact the deposit had been received but the teller had failed to remove the credit slip, stamp the butt, and stamp the duplicate deposit slip in accordance with normal practice. The teller's error was not discovered until the afternoon of 23 December. The error many have occurred because the plaintiff made two deposits at the same time one dated 20 December and the other 21 December. The teller correctly completed the paper work for the first deposit. The plaintiff said that both books were closed by the teller before being returned to her and that she did not check them at the time. When Mrs Mozley spoke to the police officers at the coffee lounge she believed that the bank had not received the second deposit having been given that information that morning by a member of the company's staff. On the other hand the bank deposit and credit books had been left by the plaintiff in the proper place in the North Sydney shop where they were accessible to the manageress and it was apparent that the plaintiff had not attempted in any way to hide or remove the original credit slip or duplicate deposit slip for the deposit in question. Up to this point His Honour's findings of fact depended upon evidence by the plaintiff, Mrs Mozley, the manageress Mrs Tompkins and the police officers which was substantially unchallenged. His Honour therefore had no need to seek specific findings of fact from the jury on these matters and Mr Cummings, who appeared for the appellants, did not submit to the contrary. His Honour further found as follows: 18 UNREPORTED JUDGMENTS "After receiving this information the first and second defendants approached the plaintiff in the third defendant's shop where the first defendant spoke to her. According to the first and second defendants the plaintiff then ran from the shop, obviously, in their minds, to escape from them. This fact would point towards guilt on the part of the plaintiff. They then ran after her, took hold of her and arrested her in a public area of the shopping complex. This evidence is denied by the plaintiff, who said she was arrested in the shop itself and did not leave it except in the custody of the first and second defendants... Mrs Tompkins, the Manageress of the shop, and Mrs Mozley, both in my view creditable witnesses, said that the first and second defendants took hold of the plaintiff in the shop itself and the plaintiff was held in custody while she was taken from the shop. In the circumstances I find that the plaintiff did not run from the shop and was arrested in it. I consider the fact that the first and second defendants have attempted to bolster their case by wrongly alleging that the plaintiff ran from the shop and was not arrested in it was because they realised that their grounds for arresting the plaintiff were weak." Clearly these findings were supported by evidence. However the appellants had given sworn evidence to the contrary which His Honour rejected in arriving at his findings. The question whether the plaintiff attempted flight was therefore a classic jury question which should have been submitted to the jury in accordance with the principles stated by Jordan CJ in Bales v Parmeter (1935) 35 SR 182 at 186-187 in the passage previously quoted. Flight, or attempted flight, may be an admission of guilt. See R v Gay (1976) VR 577 (FC) at 586. This disputed question of fact, if resolved favourably to the appellants, could either by itself or in combination with other undisputed information available to them, have furnished reasonable cause for suspicion that the plaintiff had stolen or misapplied the funds in question. Instead the trial judge's finding that the plaintiff did not attempt flight decisively undermined their defence. The result of the purported order under s79A of the District Court Act was to withdraw from the jury all issues of fact on the question of liability. Once it is clear that there was evidence on which the jury could properly decide some of those questions in favour of the defendants their determination by the trial judge can not be supported independently of the section. The appellants have therefore been deprived of the opportunity of securing favourable findings from the jury, as the constitutional tribunal for the decision of such questions, on important issues of fact going to their defence. The appellants are therefore entitled to a new trial unless, on other grounds, not dependent on findings on these disputed issues, the trial judge was bound to determine the question reserved for his sole consideration in accordance with Bales v Parmeter (above) against the police officers. Mr Malcolm Craig QC submitted that the respondent was at least entitled to retain the judgment against the first appellant because her own evidence established that she had not lawfully arrested the plaintiff. It is well established in this State that a police officer has no power to arrest a person for the purpose of questioning him or her in connection with the investigation of an actual or suspected criminal offence. See Bales v Parmeter (above) followed by the High Court in Williams v The Queen (1986) 161 CLR 278 at 293-294, 305-307. The first appellant gave the following evidence in the course of her cross examination: URJ LANGFORD v TURNBULL (Handley JA) 19 "Q: And you arrested her for the purpose of asking her questions back at the office? A: I arrested her yes in relation to asking her questions about the deposit the previous day. Q: But you arrested her so that you could question her? A: I arrested her because of her action - she left me no alternative. At that given time I was within my powers so far as the Police Department goes to take her straight down to the charge room and charge her. Q: The purpose of her arrest was so that you could question her in relation to this matter was it not? A: To settle the matter yes. Q: Let us be clear: the purpose was so that you could question her? A: In relation to the banking records yes. Q: You had not made up your mind to charge her at the time when you restrained her that is to say outside the Katies store? A: Not charge her no." The first appellant also gave other evidence to the same effect which I do not set out. Mr Cummings also refered us to some evidence she gave in re-examination and submitted that the effect of the whole of her evidence on this issue raised a question of fact for the jury. In my opinion the evidence in re-examination merely repeated the substance of her second answer quoted above, and did not take the matter any further. Accordingly there was in my view no issue of fact on this aspect of the first appellant's evidence to be submitted to the jury. It is clear therefore that the first appellant arrested the plaintiff for an improper purpose and that her arrest was not legally justified. The second appellant however said that she arrested the plaintiff for the purpose of charging her with theft and denied that her purpose was to question the plaintiff. If the first appellant had been the only arresting officer the trial judge would have been bound to withdraw her defence from the jury and to direct a verdict for the plaintiff. However the trial judge did not sum up to the jury on this basis, but on the basis that the police officers did not have reasonable cause to suspect the plaintiff of having committed a crime. Accordingly the Court would have been obliged to order a new trial on the issue of damages against the first appellant in any event. But of course the first appellant was not the only arresting officer. The Statement of Claim pleads causes of action in wrongful arrest and false imprisonment against both police officers as joint tortfeasors. The trial was conducted throughout on this basis. The evidence of the plaintiff and the police officers was that both officers arrested the plaintiff, although it was common ground that it was the first appellant who actually told the plaintiff she was under arrest. The second appellant acknowledged that the first appellant was the senior of the two and had made the actual decision to arrest. However she said that she was part of the arresting team, that she concurred in the arrest, and that both of them were obviously involved in the whole matter. In his judgment on liability and in his summing up on damages the trial judge proceeded on the basis that the police officers were liable for a joint arrest by both and a joint restraint thereafter by both on the plaintiff's liberty. In my view the plaintiff was correct in pleading a case of joint tortfeasance against both police officers. On her case the defendants were jointly responsible because the enterprise was the joint enterprise of both and the arrest and imprisonment was their joint act done in pursuance of a concerted purpose. See 20 UNREPORTED JUDGMENTS Brooke v Bool [1928] 2 KB578 at 585. As Tindal CJ said in Petrie v Lamont [1842] 174 ER 424 at 426 (Car and Marsh 93 at 96): "All persons in trespass who aid or counsel, direct or join, are joint trespassers". There are a number of reported cases where police officers have been sued jointly for a wrongful arrest without objection. See Bales v Parmeter, and McArdle v Egan (above) and McIntosh v Webster (1980) 43 FLR 112, 49 FLR 317. The trial judge, as I have already held, would have been entitled to withdraw the defence of justification by the first appellant from the jury. However he was not entitled to withdraw the defence of the second appellant on the same basis. He was bound to leave to the jury the question whether they accepted or rejected the second appellant's evidence that she joined in the arrest for the purpose of charging the plaintiff with a crime and not for the purpose of asking her questions. If the jury rejected the evidence of the second appellant on this issue the result would have been a finding of a joint arrest by both police officers. If, on the other hand, the jury had accepted the evidence of the second appellant on this issue it would have been clear that there was no joint arrest because the police officers had not been actuated by a common purpose. See Gardiner v Moore [1969] 1 QB 55 at 91. The next issue which would have arisen at the trial in that event would have been whether both police officers had reasonable cause to suspect the plaintiff of having committed a crime. The resolution of this question required a finding from the jury as to whether the plaintiff had attempted flight. If the jury rejected the police evidence on this issue the trial judge in deciding the issue reserved for his consideration, would have been entitled to reject the defence of justification. The plaintiff's case of a joint arrest and a joint deprivation of liberty without legal justification by either defendant would have been established and the judgment and the jury's assessment of damages could have been allowed to stand. It is apparent however that the judgment for the plaintiff against both police officers for the damages assessed by the jury cannot be supported in the absence of findings of fact by the jury in favour of the plaintiff firstly on the credibility of the second appellant's evidence as to her purpose in arresting the plaintiff and secondly on the issue of the plaintiff's attempted flight. The course of the trial would have been significantly different if the jury had accepted the police evidence on either or both of these issues. If the jury accepted the police evidence that the plaintiff attempted flight and the second defendant's evidence as to her purpose in arresting the plaintiff the trial judge may or may not have found that the defendants had reasonable cause to suspect the plaintiff of having committed a crime. If he had found that issue in favour of the police officers the plaintiff would still have recovered a verdict against the first appellant but in that event the damages would be nominal or greatly reduced. On that assumption the plaintiff would have been lawfully arrested by the second appellant and at least for some period lawfully imprisoned pursuant to that arrest. However if the jury found that the plaintiff had attempted flight but rejected the second appellant's evidence as to her purpose in arresting the plaintiff and if on the issue reserved for him the judge had sustained the defence of reasonable cause the plaintiff's arrest would still not have been justified, because the purpose of the joint arrest would have been unlawful. But the jury were not directed on URJ LANGFORD v TURNBULL (Handley JA) 21 any such basis and it cannot be said that they would have been bound to assess the same damages if the trial judge had done so. In these circumstances I am of the view that the decision of the trial judge to withdraw all questions of fact on the issue of liability from the jury caused the trial to miscarry in a fundamental way and that this Court has no alternative but to order a general new trial. I therefore agree with the orders proposed by Kirby P. Appeal allowed; Set aside the judgment entered in favour of the respondent; In lieu thereof, order that the matter be returned to the District Court for retrial; The costs of the first trial to abide the outcome of the retrial; and The respondent to pay the costs of the appeal but to have in respect thereof a certificate under the Suitors' Fund Act 1951. wNr ws Counsel for the Appellant: M Cummings Solicitors for the Appellant: HK Roberts, Crown Solicitor Counsel for the Respondent: M Craig QC / G McEwen Solicitors for the Respondent: Tony Garling