New South Wales Court of Appeal CITATION : Frost v State of New South Wales [2002] NSWCA 226 FILE NUMBER(S) : CA 41067/01 HEARING DATE(S) : 03/07/2002 JUDGMENT DATE : 3 July 2002 PARTIES : Edward Clive Frost v State of New South Wales JUDGMENT OF : Giles JA at 43, 45; Foster AJA at 1-42; Ipp AJA at 44 LOWER COURT JURISDICTION : District Court LOWER COURT 924/00 FILE NUMBER(S) : LOWER COURT Nield J JUDICIAL OFFICER : J.D. Hislop QC with D. Andrews - Applicant COUNSEL : P. Memzird QC with V Hartstein - Respondent Rishworth Dodd & Co - Applicant SOLICITORS : I.V. Knight - Respondent CATCHWORDS : Appeal against claim for damages for wrongful arrest, false imprisonment, malicious prosecution and negligence. LEGISLATION CITED : Firearms Act 1996 The Crimes Act 1900 Fleet v District Court of New South Wales & Ors (1999) NSWCCA 363 CASES CITED: Adams v Kennedy & Ors (2000) NSWCA 153 State of New South Wales & Anor v Douglas Steven Coleman (1998) C DECISION : Appeal dismissed with costs. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41067/01 DC 924/00 GILES JA FOSTER AJA IPP AJA WEDNESDAY, 3 JULY, 2002 EDWARD CLIVE FROST v STATE OF NEW SOUTH WALES Judgment 1 FOSTER AJA: This is an appeal from a decision of his Honour Judge Nield given in the District Court of New South Wales at Sydney on 4 September 2001. The case before his Honour had been brought by the present appellant, Edward Clive Frost, whom I shall refer to as Mr Frost, against the State of New South Wales. Mr Frost sought damages for wrongful arrest, false imprisonment, malicious prosecution and negligence. These claims arose out of events occurring on 11 November 1995 when Mr Frost was placed under arrest by a police officer, then Constable McQueen, at premises 34 Middleton Crescent in the suburb of Bidwell. His Honour entered judgment for the defendant with costs. In this appeal Mr Frost seeks that this judgment be set aside and that either a new trial of the proceedings be ordered or that this Court substitute a judgment in his favour and assess his damages. 2 It is clear from his Honour's judgment that he accepted the evidence of Constable McQueen in all important respects and rejected the evidence of Mr Frost and his witnesses when it was in conflict with that of the constable and his witnesses. His Honour had the usual advantage of seeing and hearing the witnesses. In my view nothing is shown in the appeal which would lead to the Court not accepting his Honour's finding on credibility. In these circumstances, the only question is whether the version of events accepted by his Honour should have resulted in findings in favour of Mr Frost in respect of the causes of action relied upon. 3 The facts established are as follows: Constable McQueen and Probationary Constable Hyne, who were members of the Mt Druitt Police Station establishment, were on motor vehicle patrol, when they were required to attend the scene of a possible domestic violence incident at the premises 34 Middleton Crescent. The incident had involved Mr Frost's wife and his daughter-in-law. It appears that it had come to an end before the arrival of the police, although signs of violence were in evidence in the form of a smashed coffee cup in the hall of the premises. When the police arrived, Mr Frost was in the front yard of the premises. He was packing some items onto the roof rack of his car which was parked in the yard, together with his caravan. He and his wife had been staying with his son and daughter-in-law. It appears they were about to depart on an extensive caravan trip. Mr Frost's wife was also in the yard when the police arrived. 4 Constable McQueen, at the invitation of Mr Rodney Frost, the appellant's son, entered the house wherein he saw the smashed cup to which I have made reference. He was told by the son that his father had certain rifles. He was handed one of them, a twenty-two calibre rifle by the son. He was also shown where it had come from, being a position on top of the cupboard within the house. The son also told him that there were a further three rifles inside the caravan. 5 He left the house and handed the rifle into the custody of Constable Hyne. He entered the caravan at first in the presence of Mrs Frost. The caravan was small and was crowded with camping equipment. He commenced a search for the rifles. Mrs Frost left the caravan. Constable McQueen found a rifle. He took it from the caravan and displayed it to the persons present outside. He asked who was the owner of the rifle and received no reply. A further search of the caravan revealed the presence of another two guns which were packed in behind other items under one of the beds. These were also brought into the yard by the constable and were later placed in the boot of the police vehicle. 6 There is no dispute that one of the guns was a shotgun and another a military style rifle. There is no dispute that the weapons were all unlicensed. Consequently an offence had been committed under s 5(a) of the Firearms Act 1996. Moreover, a considerable amount of ammunition for these firearms was later found in the caravan. The possession of these weapons without appropriate licenses for their possession in the context of a domestic violence complaint was, in my view, necessarily a matter requiring investigation. 7 I should add that prior to Constable McQueen searching in the caravan he had asked Mr Frost whether there were any firearms in it. Mr Frost had answered that there were not. Later, after the discovery of the first rifle and following an inquiry from Constable McQueen as to who had put it in the caravan, Mr Frost ultimately said that the rifles were his fathers and he had given them "to us". 8 After finding the other firearms in the caravan, the constable inquired again as to who owned them. Neither Mr Frost nor his wife replied. The constable then asked whether they had a firearms licence. Mr Frost said, no. 9 Before taking the matter further, Constable McQueen spoke again to Mr Frost's son and obtained from him a statement which he recorded in his official notebook and which was signed by the son. It reads as follows: "About a week ago my parents Edward and Carol Frost came to stay at my house. I saw my Mum putting some guns in their caravan. Dad gave me a 22 calibre rifle and said, 'here take this 22, I can't fit in'. I put it on the wardrobe. On 11 November '95 we had an argument and I told the police where the guns were. I seen my Dad with the guns before. He has had them for years. There is a shotgun, a 303 or 306 and other rifles. I saw the police remove them from the caravan. I do not have keys to their caravan." 10 After obtaining the signed statement, Constable McQueen returned to the yard and spoke again to Mr Frost. He said, "Your son has told me the firearms are yours". Mr Frost responded, "You should arrest him. He's got a rifle on top of his cupboard". This was said in the presence of Mrs Frost who made no statement. The constable replied, "Yes I know. He told me he got it off you because you couldn't fit it in. This is not a matter where someone might be arrested, I am prepared to summons you in regard to the firearms if you are prepared to undergo an effective interview". Mr Frost indicated he was prepared to take part in an interview and the two men went into the caravan and sat down at the table and the interview commenced. 11 Constable McQueen readily admitted that he had not given Mr Frost the required caution before commencing the interview. The interview did not in fact proceed very far. Indeed in part of his evidence the constable indicated that the caution could not have been given as the interview was in fact interrupted. 12 He gave the following evidence which was clearly accepted by his Honour. This appears at page 139 and 140 of the transcript: Q. And did you attempt to conduct an interview with him? A. Yes, I did. Once again I got out my official police notebook and I sat at the table and I wrote out a question, I wrote out a question and then I asked it of Mr Frost. Q. Yes? A. So I wrote out the question and then I said to Mr Frost: "do you agree I had a conversation with you this afternoon at 34 Middleton Crescent, Bidwell?" and he said: Yes". I then recorded that answer in my notebook. I then wrote out the next question and then asked it of Mr Frost. I said: "Do you agree I searched a caravan at 34 Middleton Crescent, Bidwell in your presence?" He said: "No". I said: "Where were you?" He said: "I was on the front yard". I said: "Who owns the caravan?" He said: "Me and me wife". I said: "Does anyone else have keys to the caravan?" Mr Frost then shouted at me: "I don't know why you are interviewing me, you should be arresting my son for not having a gun in his - for having a gun in his house. You come here to help them out and all they do is dob you in". Q. And did he say anything else to you? A. He kept shouting at me and I basically had to interrupt him and say: "All right, obviously you can't be interviewed in an effective manner, you are under arrest for having the firearms while not having a licence, do you understand that?" And he shouted at his wife who was standing outside: "Call our solicitor" and I said to Mr Frost: "I will get a caged truck to take you to Mt Druitt police station". He said: "Why a caged truck? I'm not a criminal". I said: "Because they are the only other police cars working". Mr Frost - Mrs Frost approached me and she shouted at me: "You can't arrest him, I'm going to ring a sergeant at Blacktown and we have your job". 13 The constable indicated in his evidence that it was not possible to take Mr Frost in the police car to the police station because it was his intention to take Rodney Frost and his wife to the police station, so they could provide statements in relation to the domestic incident. 14 The other police vehicle arrived about fifteen minutes later and Mr Frost was conveyed to the police station. Mrs Frost was upset at Mr Frost's arrest. He told the constable that the rifles were hers, a statement which he did not believe. She drew his attention to the presence of a large box of ammunition in the caravan which he had not previously seen and which he then took possession of. It contained ammunition for the firearms in question. 15 Mrs Frost also told the constable that her husband had a breathing problem. She supplied him with a ventilator machine which was electrically powered and which Mr Frost used to control the problem of sleep apnoea. At her request he placed it in the vehicle to be conveyed to the police station and given to Mr Frost. 16 The son and daughter-in-law declined to travel in the police vehicle to the police station, the son indicating he would travel down in his own vehicle. In fact he did not arrive at the police station but later, after charges had been laid against his father, communicated by telephone to Constable McQueen indicating that he did not propose to provide any statements in relation to the domestic incident and that he would not be coming to the police station. He did not indicate that he would give no evidence in relation to the firearms offences. 17 At the police station, Mr Frost was placed in the dock. The dock was fully described in the evidence. For security reasons it was more enclosed than was customary in other police stations. It may be accepted that it was capable of causing some degree of alarm to a person with breathing difficulties who was placed within it. 18 Mr Frost was placed within it and claimed that he did experience breathing difficulties. Constable McQueen who had arrived shortly after Mr Frost provided him with a ventilator apparatus plugged it in, switched it on and observed that it was working correctly. His Honour rejected Mr Frost's evidence that it failed to work correctly because its flexible tube connection was blocked by the door to the dock. However the sergeant in charge of the station, following usual procedure, arranged for an ambulance to attend, which occurred. Before it did so, Mr Frost was able to sign the necessary documentation which enabled his release and which required his attendance at a subsequent court hearing in relation to charges which were preferred against him at the police station under the Firearms Act. 19 When the ambulance arrived Mr Frost was conveyed in it to the Mt Druitt hospital where he was examined and allowed to leave and, although he claimed on his evidence that he was significantly distressed and became unconscious, before being taken by the ambulance officers from the police station, this account was not supported by those officers, one of whom said that he was fully conscious throughout. 20 A great deal of medical evidence was provided in the case as to problems subsequently experienced by Mr Frost but it is not necessary to refer to that in these reasons. 21 There was subsequently a hearing of the charges before a magistrate. They were dismissed. It appears that the son gave evidence that he was intoxicated at the time of the incidents and had no recollection of them or of his providing the information and statement to Constable McQueen. Mrs Frost gave evidence that she was in fact the owner of the firearms in question. In view of this evidence it appears that the magistrate was not satisfied beyond reasonable doubt and the charges were dismissed. 22 As I have indicated, his Honour found against Mr Frost in respect of all the causes of action that he brought. It is necessary now to refer to those causes of action and to submissions that have been made in the written submissions filed and in the course of the appeal. 23 Wrongful arrest The issue that his Honour regarded as posed for him was whether the arrest effected by Constable McQueen was justified and lawful. There is no question that the constable had the power to effect an arrest pursuant to the provisions of s 352 of the Crimes Act . His Honour accepted the evidence of Constable McQueen in relation to the arrest, the effect of which I have already set out above. Accordingly the constable had material which could reasonably found a belief on his part that Mr Frost was guilty of possession of unlicensed firearms. Also as his Honour found, although he had Mr Frost's address recorded in his notebook there was ample indication that Mr Frost and his wife were about to embark on a protracted holiday in a caravan. 24 The constable was, however, prepared to proceed by way of summons rather than arrest. He so informed Mr Frost, provided that Mr Frost would provide him with an "effective interview". As he explained in his evidence he meant, by his phrase, an interview in which Mr Frost would calmly respond to his questions in a way which would enable them to be recorded properly in the constable's notebook. 25 Although the constable did not caution Mr Frost as he should have done, the interview was unproductive in that Mr Frost, as the constable stated, was aggressive "he shouted at me, I couldn't get a word in edgeways". In another part of his evidence he indicated that Mr Frost became belligerent. 26 When the interview broke down in this way, Constable McQueen decided that he would have to arrest Mr Frost. His Honour found that the arrest then effected was justified and lawful. Constable McQueen had considered the alternative of proceeding by summons but in the circumstances, as his Honour found, was justified in not following that course. He rejected a submission that the arrest was unlawful because it had the indirect purpose of allowing the constable to interview Mr Frost at the police station. This rejection in my view was clearly open on the evidence. 27 It was submitted in the written submissions to the Court that the absence of a warning in some way vitiated the arrest. I reject this submission. The absence of warning may have an effect upon the admissibility of a statement, where no such warning has been given. However, in my view it could not, and did not, vitiate the arrest itself. Moreover, I do not consider that the submissions made in the written submissions in relation to the decisions in Fleet v District Court of New South Wales & Ors (1999) NSWCCA 363 or Adams v Kennedy & Ors (2000) NSWCA 152 require a decision in the present case that the course taken by Constable McQueen, in all the circumstances and after the breakdown of the interview made his arrest of the appellant unlawful. 28 In the course of oral submissions, argument was put which did not appear in the written submissions. Mr Hislop QC submitted that the tort of wrongful arrest could be committed even though the arrest itself was lawful. He argued firstly that this could occur simply on the basis that this arrest was "inappropriate" which at one point in his argument he equated with "unreasonable". In the alternative he submitted that the tort could be committed if the arrest was made in abuse of the police officers power of arrest. 29 As to the first argument, there is in my opinion no support for it in the authorities. Fleet, on which Mr Hislop QC relied, for this argument as well, is in my view, in reality against it. Such a vague test of wrongfulness is not one that I could, with respect, accept. 30 The second argument was regarded as possibly open in a passage from in the judgment of Fitzgerald JA, with whom Mason P agreed, in the case of State of New South Wales & Anor v Douglas Steven Coleman (1998) (NSWCA). His Honour said in this regard: "The appal was conducted on the assumption that the [arrest] and imprisonment of the respondent would have been lawful if the appellant police officer had had reasonable cause to suspect the respondent of having committed a breach of the apprehended violence order even if – as I think – it was grossly unreasonable to [arrest] and imprison the respondent in the circumstances. It is unnecessary for this Court to consider whether the assumption made is correct, and I expressly refrain from doing so. It might be necessary in the future to decide whether an [arrest] is lawful if a power of [arrest] is abused." 31 In my view it is unnecessary to comment on this proposition, as, on the facts of this case, there could be, in my view, no finding of any relevant abuse of process. In particular, it could not be successfully argued that any activity undertaken by the constable on the occasion of the arrest could be described as grossly unreasonable. 32 Accordingly, the appeal, in respect of the count of wrongful arrest, should, in my opinion, be rejected. It follows in my view that the count for false imprisonment was also correctly dismissed by his Honour. The basis of that count was the wrongful arrest. In the circumstances that the arrest was lawful and justified, the confinement of the appellant in the police vehicle and subsequently in the dock in the charge room at Mt Druitt police station could not in my view amount to the tort of false imprisonment. 33 Malicious prosecution There were two elements of this cause of action which were established, namely (1) the institution of criminal proceedings by the defendant, and (2) the termination of those proceedings in favour of the plaintiff. The issues upon which the appellant lost before the trial judge were those of the absence of reasonable and probable cause for the institution of the proceedings and relevant malice on the part of Constable McQueen. 34 The issue of reasonable and probable cause was necessarily found in favour of the defendant on the basis that, as previously found, the arrest had been both lawful and justified. Constable McQueen had the evidence of the statement made by the appellant's son and signed in his notebook. This clearly indicated ownership of the firearms by the appellant. The appellant had never denied ownership of them prior to his arrest. Mrs Frost had not asserted her ownership of them prior to the arrest although there was ample opportunity for her to do so. Her belated assertion after the arrest and removal of Mr Frost that she was the owner was not believed by Constable McQueen, an attitude which could not be said to have been unreasonable in the circumstances. Her assertions in evidence before his Honour that she had claimed ownership of the firearms before the arrest occurred was not accepted by his Honour, who preferred the evidence of Constable McQueen when it was in conflict with hers. 35 So far as malice is concerned, it was suggested to the Constable in cross-examination that his use of the caged vehicle rather than his own police vehicle for the purpose of conveying the appellant to the police station was a way of punishing him for his failure to cooperate in the interview and was indicative of malice. This was denied by the constable. His Honour was amply justified in accepting that denial. 36 Insofar as relevant malice could consist in an absence of honest belief of the constable in the charge he was preferring, it cannot be successfully submitted that his Honour erred in finding that there was no such absence. Although the constable was informed by Mrs Frost that the firearms were hers and not her husband's, the circumstances in which the information was given to him were not such as to require that he accept it as truthful then or at any later stage. His Honour did not accept Mrs Frost's evidence as to the making of assertions of ownership before the arrest was effected, nor did he find that the constable was obliged to accept such assertions after the arrest, nor, in light of the signed statement he had obtained from the appellant's son, could it be said, in my view, that the constable was acting maliciously in preferring the charge and continuing with it. In my view, his Honour's dismissal of the cause of action for malicious prosecution cannot be and has not been, successfully attacked. 37 The final claim was for negligence. His Honour accepted that there was a relevant duty of care on the defendant in relation to Mr Frost while he was in custody at the police station. The claim was that this duty was breached by the failure to provide him with his ventilator machine at the police station and in failing, in a timely way, to obtain appropriate medical attention and treatment for him when he experienced difficulty in breathing. It was asserted that these failures led to an aggravation of a pre-existing cardiac condition. 38 His Honour accepted that the constable, as he conceded, was informed, after the appellant's arrest, that he used the ventilator machine for breathing difficulties. At Mrs Frost's request he took the machine with him for the purpose of taking it to the police station. His Honour did not accept the appellant's evidence as to what occurred at the police station. He accepted the evidence of Constable McQueen that, upon his arrival at the police station, some fifteen minutes after Mr Frost, he saw him sitting in the dock and heard his complaints that he was short of breath. At his request, Constable McQueen provided him with the ventilator machine, plugged it into a power point, activated it and gave the appellant the face mask through which oxygen could be inhaled by way of a flexible hose from the machine. 39 Upon the continuance of complaint of shortness of breath and following customary procedures at the station, the attendance of the Central District Ambulance was obtained, again in a timely way. The evidence did not establish that there was any dilatoriness in providing the appellant with the use of the ventilator or in summoning the ambulance, when he continued to complain of breathlessness. 40 I have already referred to the evidence accepted by his Honour that the ambulance officers found him conscious at all times and that he was discharged from Mt Druitt Hospital after a short period of observation. 41 Indeed all aspects of his evidence upon which the appellant relied to establish negligence were not accepted by his Honour, as appears from his Honour's judgment. In my opinion, particularly having regard to his Honour's findings on credibility, his Honour's holding that there was no negligence established against Constable McQueen or anyone at Mt Druitt police station is unassailable. 42 In these circumstances, I am of the opinion that this appeal should be dismissed with costs, and I so propose. 43 GILES JA: I agree with what has been said by Foster AJA, and would add only this. At the heart of the submissions going to wrongful arrest and false imprisonment was that Constable McQueen had originally been prepared to proceed by way of summons. Nield DCJ said that he accepted Constable McQueen's evidence that he was worried about Mr Frost's address and whether a summons could be served on him. This was plainly enough referable to Constable McQueen's evidence that when in the attempted interview Mr Frost became belligerent, he decided upon arrest rather than a summons. The circumstances had changed, not as was submitted because of failure to participate in an interview but because Mr Frost was revealed as a person less likely to be amenable to proceeding by way of summons. The arrest must be judged according to the circumstances at the time. For the reasons given by Foster AJA, the arrest so judged was lawful and not an abuse of Constable McQueen's powers. 44 IPP AJA: I agree with Foster AJA and the additional comments of Giles JA. 45 GILES JA: The order therefore is that the appeal is dismissed with 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. 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