State of New South Wales v Exton [2017] NSWCA 294

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Exton [2017] NSWCA 294 Hearing dates: 9 November 2017 Decision date: 21 November 2017 Before: Basten JA at [1]; Meagher JA at [60]; Leeming JA at [61] Decision: (1) On the condition that the State pays the respondent's reasonable costs in this Court, grant the State leave to appeal from the judgment delivered in the District Court on 13 April 2017.

(2) Direct that the State file within 7 days a notice of appeal in the form contained in the white folder, but limited to ground 3.

(3) Allow the appeal and set aside order 1 made by the District Court.

(4) Remit the matter to that Court to be reheard according to law.

(5) Let any order for costs made in the District Court stand. Catchwords: APPEALS – application for leave to appeal – finding by trial judge that respondent was unlawfully arrested on the giving of direction by police officer to exit vehicle – whether issue of general importance – whether procedural irregularity in determining matter on issue not identified by parties

JUDGMENTS AND ORDERS – issues of witness credibility in trial judge's factual findings – whether Court able to determine factual disputes on appeal – whether matter should be remitted for retrial

TORTS – false imprisonment – direction by police officer that respondent exit vehicle – whether actions of police officer constituted false imprisonment – whether total deprivation of respondent's liberty

TORTS – unlawful arrest – issue as to timing of arrest – whether arrest occurred on police officer's direction to exit vehicle or at some later point – whether arrest justified Legislation Cited: Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 99 Supreme Court Act 1970 (NSW), s 101 Cases Cited: Bird v Jones (1845) 7 QB 742 C v R (1997) 93 A Crim R 81 Collins v Wilcock [1984] 1 WLR 1172 Eatts v Dawson (1990) 21 FCR 166 Norton v The Queen (No 2) (2001) 24 WAR 488; [2001] WASCA 207 O'Donoghue v R (1988) 34 A Crim R 397 R v Lavery (1978) 19 SASR 515 Smith v The Queen (1957) 97 CLR 100; [1957] HCA 3 Symes v Mahon [1922] SASR 447 Terry v Ohio 392 US 1 (1968) Watson v Marshall (1971) 124 CLR 621; [1971] HCA 33 Wheatley v Lodge [1971] 1 WLR 29 Wilson v State of New South Wales [2010] NSWCA 333; 207 A Crim R 499 Category: Principal judgment Parties: State of New South Wales (Applicant) Trent Exton (Respondent) Representation: Counsel: P Menzies QC/G F Mahony (Applicant) P Barham (Respondent)