Hutchinson v State of New South Wales [2019] NSWCA 91

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Hutchinson v State of New South Wales [2019] NSWCA 91 Hearing dates: 27 November 2018 Decision date: 01 May 2019 Before: Gleeson JA at [1]; Leeming JA at [2]; Simpson AJA at [105] Decision: 1. To the extent necessary, grant leave to appeal in terms of the existing notice of appeal filed 28 June 2018. 2. Appeal dismissed. 3. Summons seeking leave to appeal filed 24 September 2018 dismissed. 4. Mr Hutchinson to pay the State's costs of the appeal (including the costs of the summons seeking leave to appeal and the notice of motion as to competency). Catchwords: POLICE – powers and duties – power to prevent persons entering onto closed road – power to arrest – authorisation to use reasonable force – obligation upon police officers to provide identification and information – Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 99, 186, 201 and 230 considered

ROADS – power to close road – power to prevent persons entering onto closed road – whether all exercises of power required identification and information to be provided by police officers

TORTS – intentional torts – assault, battery and false imprisonment – whether steps taken to prevent persons entering closed road amounted to directions to which Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 201 applied – whether factual findings of primary judge that plaintiff was resisting police inconsistent with incontrovertible evidence or glaringly improbable – limitations on photographic evidence – malicious prosecution – whether plaintiff established absence of reasonable and proper cause Legislation Cited: Crimes Act 1900 (NSW), s 58 District Court Act 1973 (NSW), s 127 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 4, 99, 185, 186, 201, 230, 231 Law Enforcement (Powers and Responsibilities) Amendment Act 2014, Schedule 3 Law Reform (Vicarious Liability) Act 1983 (NSW), s 8 Limitation Act 1969 (NSW), s 50C Police Act 1990 (NSW), s 6 Road Rules 2008, r 304 Road Rules 2014, r 304 Road Transport Act 2013 (NSW), ss 148A, 148B Road Transport (Safety and Traffic Management) Act 1999 (NSW) Roads Act 1993 (NSW), s 5 Cases Cited: Aubrey v The Queen (2017) 260 CLR 305; [2017] HCA 18 Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29 Commissioner of Police v Eaton (2013) 252 CLR 1; [2013] HCA 2 Goode v Angland (2017) 96 NSWLR 503; [2017] NSWCA 311 Loulach Developments Pty Ltd v Roads and Maritime Services [2019] NSWSC 438 Nakhl Nasr v State of New South Wales [2007] NSWCA 101; (2007) 170 A Crim R 78 Poidevin v Semaan (2013) 85 NSWLR 758; [2013] NSWCA 334 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Robinson v State of New South Wales [2018] NSWCA 231 State of New South Wales v Cuthbertson [2018] NSWCA 320 Waugh v Kippen (1986) 160 CLR 156; [1986] HCA 12 Zhang v Andrew Pine Furniture Pty Ltd [2004] NSWCA 250 Category: Principal judgment Parties: Bryn Simon Hutchinson (Appellant) State of New South Wales (Respondent) Representation: Counsel: