State of NSW v McCarthy [2015] NSWCA 153

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: State of NSW v McCarthy [2015] NSWCA 153 Hearing dates: 28 October 2014 Decision date: 03 June 2015 Before: Meagher JA at [1]; Gleeson JA at [82]; Adamson J at [83] Decision: Appeal allowed. Set aside the verdict and judgment ordered by the District Court on 20 December 2013. Order the appellant pay the respondent's costs of the appeal. Catchwords: TORTS – trespass to land – whether entry authorised or excused by law – where four police officers entered property occupied by the respondent without his consent – where relied on ss 9 and 10 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – whether trial judge erred in not finding officers had reasonable grounds to believe it was necessary immediately to enter the premises to prevent imminent and significant physical injury under s 9(1) – whether trial judge erred in not finding officers had reasonable grounds to believe that the person to be arrested was inside the premises under 10(2)

TORTS – trespass to land – where four police officers entered property occupied by the respondent without his consent – where officers satisfied the requirements of ss 9 or 10 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – where s 201(1) (as in force in May 2010) required police to provide person subject to the exercise of a power with information – where not practicable to provide information before or at the time of exercising the power – whether lawful exercise of power under ss 9 or 10 conditional on later compliance with s 201(1) Legislation Cited: Crimes Act 1900 (NSW), s 546C Crimes (Appeal and Review) Act 2001 (NSW), s 52 Crown Proceedings Act 1988 (NSW), s 5 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 9, 10, 201 Law Enforcement (Powers and Responsibilities) Amendment Act 2014 (NSW) Law Enforcement (Powers and Responsibilities) Amendment (Arrest without Warrant) Act 2013 (NSW) Law Reform (Vicarious Liability) Act 1983 (NSW), s 8(1) Police and Criminal Evidence Act 1984 (UK), s 28(3) Cases Cited: Adams v Kennedy [2000] NSWCA 152; 49 NSWLR 78 Christie v Leachinsky [1947] AC 573 Director of Public Prosecutions v Hawkins [1988] 1 WLR 1166 George v Rockett [1990] HCA 26; 170 CLR 104 Halliday v Nevill [1984] HCA 80; 155 CLR 1 Johnson v Staskos [2015] WASCA 32 Johnstone v State of New South Wales [2010] NSWCA 70; 202 A Crim R 422 Kuru v New South Wales [2008] HCA 26; 236 CLR 1 Lippl v Haines (1989) 18 NSWLR 620 McCarthy v State of New South Wales [2013] NSWDC 247 Poidevin v Semaan [2013] NSWCA 334; 85 NSWLR 758 R v O'Neill [2001] NSWCCA 193; 122 A Crim R 510 State of New South Wales v Delly [2007] NSWCA 303; 70 NSWLR 125 Texts Cited: Second Reading Speech, New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 17 September 2002 Category: Principal judgment Parties: State of New South Wales (Appellant) Paul James McCarthy (Respondent) Representation: Counsel: P Bodor QC with M S Spartalis (Appellant) T Molomby SC with L W Nicholls (Respondent)