District Court New South Wales Medium Neutral Citation: Joel Nathan Williams, Gloria May Williams, Robert Lee Anthony Williams v The State of New South Wales [2013] NSWDC 249 Hearing dates: 20 September 2013 Decision date: 02 October 2013 Before: Judge MJ Finnane QC DCJ Decision: See paragraphs [27] and [28] Catchwords: CIVIL - intentional tort - false arrest - assault Procedure - notice of motion - strike out motion Estoppel - no issue estoppel - party not allowed to litigate in civil proceedings facts it agreed should be determined against it in earlier criminal proceedings Legislation Cited: Law Enforcement (Powers and Responsibilities) Act 2002 Crown Proceedings Act 1988 Law Reform (Vicarious Liability) Act 1983 Cases Cited: Michael James Nawrot v The Chief Constable of Hampshire Police 1992 WL 895907 Category: Principal judgment Parties: Joel Nathan Williams (First Plaintiff/ Applicant) Gloria May Williams (Second Plaintiff/ Applicant) Robert Lee Anthony Williams (Third Plaintiff/ Applicant) State of New South Wales (Defendant/ Respondent) Representation: T Mollomby SC (First, Second and Third Plaintiffs/ Applicants) M Spartalis (Defendant/ Respondent) Randall Legal (First, Second and Third Plaintiffs/ Applicants) Makinson & d'Apice (Defendant/ Respondent) File Number(s): 2012/371401 Judgment 1This Notice of Motion arises from proceedings brought by Joel Nathan Williams, Gloria May Williams and Robert Lee Anthony Williams against the State of New South Wales. Gloria May Williams is the mother of the other two plaintiffs who are brothers. All three are aboriginal people. 2On 27 November 2009, police officers arrested Joel Williams and later the other two plaintiffs. At the time of the arrest the three plaintiffs were participating in an aboriginal cultural event in the Masonic Hall in Kyogle. 3Joel Williams was arrested for the offence of shoplifting. He was known to the local police who also knew his address. 4For the purpose of arresting Joel Williams, the arresting police came into the hall in which rehearsals were being conducted despite protests by all three plaintiffs. The second and third plaintiffs intervened and attempted to prevent the arrest of the first plaintiff. The first plaintiff was handcuffed, taken to the police station and charged with shoplifting i.e. larceny. 5Police charged the other two plaintiffs with the offences of hindering police in the execution of their duty. 6All three were charged and brought before a local magistrate who convicted all of them. The first plaintiff had pleaded guilty to the offence with which he was charged and failed to persuade the magistrate to set aside his conviction and allow him to plead not guilty. 7The second and third plaintiffs appealed on a question of law to the Supreme Court against their conviction and those convictions were set aside. 8The substantial argument before the Associate Justice in the Supreme Court was that the police were wrong in arresting the first plaintiff and therefore the other two plaintiffs could not have been guilty of the offence of hindering the police since the police were not in fact carrying out their duty. 9I have considered the transcript of evidence relating to the prosecution of the second and third plaintiffs. It is clear that the solicitor acting for them raised the relevance of the legislation known as the Law Enforcement (Powers and Responsibilities) Act 2002, but did not clearly enunciate how this Act applied in the circumstances. 10Ultimately, the Supreme Court set aside the convictions of the second and third plaintiffs and the conviction of the first plaintiff was set aside following intervention by the Attorney General. However there was no litigation as such about the correctness of the first plaintiff's arrest. 11The three plaintiffs have commenced proceedings in the District Court seeking damages from the State of New South Wales which is sued pursuant to the Crown Proceedings Act 1988 and the Law Reform (Vicarious Liability) Act 1983. 12The first plaintiff claims damages for assault and false imprisonment. The second plaintiff claims damages for assault and the third plaintiff claims damages for assault and false imprisonment. The Statement of Claim is a lengthy document and there is a Defence that has been filed in response to the Statement of Claim. The notice of motion seeks that I should strike out paragraphs 23, 25 and 28 of the defence. 13Paragraph 23 of the defence claims that the imprisonment and arrest of the first plaintiff were lawful on the basis that pursuant to sections 99 (2) and 99 (3) of the Law Enforcement (Powers and Responsibilities) Act 2002, a police officer suspected that the first plaintiff had committed the offence of larceny and suspected on reasonable grounds that it was necessary to arrest him to ensure his appearance before a court. 14Section 99 is in the following terms: "99 Power of police officers to arrest without warrant (1) A police officer may, without a warrant, arrest a person if: (a) the person is in the act of committing an offence under any Act or statutory instrument, or (b) the person has just committed any such offence, or (c) the person has committed a serious indictable offence for which the person has not been tried. (2) A police officer may, without a warrant, arrest a person if the police officer suspects on reasonable grounds that the person has committed an offence under any Act or statutory instrument. (3) A police officer must not arrest a person for the purpose of taking proceedings for an offence against the person unless the police officer suspects on reasonable grounds that it is necessary to arrest the person to achieve one or more of the following purposes: (a) to ensure the appearance of the person before a court in respect of the offence, (b) to prevent a repetition or continuation of the offence or the commission of another offence, (c) to prevent the concealment, loss or destruction of evidence relating to the offence, (d) to prevent harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence, (e) to prevent the fabrication of evidence in respect of the offence, (f) to preserve the safety or welfare of the person. (4) A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person, and any property found on the person, before an authorised officer to be dealt with according to law." 15Paragraph 25 of the defence asserts that the arrest of the first plaintiff was lawful and the police were entitled to use reasonable force to prevent the second plaintiff from hindering them in the arrest of the first plaintiff. 16Paragraph 28 of the defence asserts that the arrest of the first plaintiff was lawful and the police were entitled to use reasonable force to prevent the third plaintiff from hindering them in the arrest of the first plaintiff. 17The notice of motion claims that these three paragraphs in the defence are an abuse of process or should be struck out as disclosing no reasonable defence. 18It is clear from a reading of the transcript of the evidence of the proceedings before the Magistrate and from the consideration of the reasons of Associate Justice Harrison, that the magistrate proceeded on the basis that section 99 (2) of the legislation entitled the police to arrest the first plaintiff, but he did not consider the effect of subsection (3) which clearly prohibits arrest unless certain conditions are met. The magistrate clearly erred in law and the convictions were set aside. 19The evidence before the magistrate disclosed that the police knew the first plaintiff, knew where he lived and the offence was a relatively minor offence of shoplifting. The evidence also discloses that the police went into a hall in which rehearsals for a cultural festival were being conducted and arrested the first plaintiff without any regard to what was going on or the incense that they might be causing. After one hour and ten minutes in custody, the first plaintiff was released and given a Court Attendance Notice. 20Four police officers attended to affect the arrest of the first plaintiff for this minor offence and it is clear to me that the overbearing conduct of the police was in large measure the cause of the involvement of the second and third plaintiffs who understandably were very upset that their rehearsals should be invaded and the first plaintiff arrested. 21In my opinion, the arrest of the first plaintiff was prohibited unless the police could show on suspicions of reasonable grounds of necessity to arrest him. The only relevant suspicion in this case could have been subparagraph (a) i.e. "to ensure the appearance of the person before a court in respect of the offence". As the police knew the first plaintiff and knew his address and the offence was a minor one, it is difficult to see how this would justify any of them in arresting the first plaintiff. 22Notwithstanding the apparent inappropriateness of arresting the first plaintiff, the State of New South Wales wishes to persist in claiming that the arrest was lawful and the charging of the second and third plaintiffs was lawful, even though there has been a judicial proceeding in which a representative of the state, namely the Director of Public Prosecutions agreed that the magistrate was in error in failing to apply section 99 (3) and that the second and third plaintiff should be found not guilty of the offences with which they were charged. 23What is even more surprising to me is that after the Attorney General of the State of New South Wales took steps to have the conviction of the first plaintiff set aside, the State of New South Wales should now wish to put in issue that very matter and should wish to argue that the first plaintiff's arrest was valid. 24Counsel for the State of New South Wales has argued before me that there is no abuse of process involved and that the state is entitled to a trial on the facts. 25In my opinion, there has been a trial on the facts, since the charges against the second and third plaintiffs could not properly have been laid if the police were not entitled to arrest the first plaintiff. The second and third plaintiffs could only have been hindering the police in the execution of their duty if in fact they were carrying out their duty. However, they were not carrying out their duty because they should not have been arresting the first plaintiff at all. 26Counsel for the state referred me to a Court of Appeal of England and Wales decision see: Michael James Nawrot v The Chief Constable of Hampshire Police 1992 WL 895907, 9th December 1991, a decision which was not reported. It is not surprising to me that the decision was not reported since it is a decision on a set of facts and its states no new principle. 27In this case, the intervention of the State of New South Wales itself in the earlier proceedings makes it entirely inappropriate that the same State of New South Wales should now adopt in civil proceedings an approach that is contradictory of what it did itself in the earlier criminal proceedings. This is not an issue estoppel case. It is a case where a party should not be allowed to litigate in civil proceedings facts which it has already agreed in earlier criminal proceedings, should be determined against it. 28I grant the notice of motion and I strike out paragraph 23, 25 and 28 of the defence. 29I will hear the parties on costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 January 2014