Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Pratten v State of New South Wales [2019] NSWCA 124 Hearing dates: 24 May 2019 Date of orders: 24 May 2019 Decision date: 30 April 2019 Before: Payne JA at [1]; McCallum JA at [3]; Simpson AJA at [29] Decision: (1) The application for leave to appeal is refused; (2) The applicant is to pay the respondent's costs. Catchwords: CIVIL PROCEDURE – Court of Appeal – leave to appeal – primary judge's reasons not attended with sufficient doubt – no question of contested principle raised – leave refused Legislation Cited: District Court Act 1973 (NSW), s 127(2)(c) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 99(1), s 230 Cases Cited: Be Financial Pty Ltd as Trustee for the Financial Operations Trust v Das [2012] NSWCA 164 Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 Zaravinos v State of New South Wales (2004) 62 NSWLR 58; [2004] NSWCA 320 Category: Principal judgment Parties: Juliette Pratten (applicant) State of New South Wales (respondent) Representation: Counsel: A Canceri (applicant) M Hutchings, G Keesing (respondent) Solicitors: Rebecca Dunlop Legal (applicant) Norton Rose Fulbright (respondent) File Number(s): 2018/341501 Publication restriction: None Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2018] NSWDC 299 Date of Decision: 12 October 2018 Before: Hatzistergos DCJ File Number(s): 2017/32438 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. PAYNE JA: On 24 May 2019, the Court made the following orders in this matter: 1. application for leave to appeal refused; 2. the applicant to pay the respondent's costs. 1. McCallum JA has set out all of the relevant matters involved in the application for leave to appeal and I agree with her Honour's reasons. My additional reasons for joining in the orders made on 24 May are that: 1. In relation to draft ground of appeal 1 – the primary judge decided the matter on the basis, which was common ground at trial and on the application for leave to appeal, that s 99(1) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) required an arresting officer to exercise a discretion. Senior Constable Marshall gave conflicting evidence about her state of mind in effecting the arrest. That conflicting evidence should be understood against the background of the somewhat confusing way she was cross-examined by counsel (who was not counsel for the applicant in this Court). The primary judge dealt with Senior Constable Marshall's evidence carefully and at some length. The error suggested by the applicant rested heavily on overturning findings of fact about Senior Constable Marshall's evidence. I do not think that the suggested error by his Honour rose any higher than the merely arguable; 2. In relation to draft ground of appeal 2 – the failure by the primary judge to make a finding that Senior Constable Marshall's evidence was disingenuous when that proposition was never put to her in cross-examination can hardly be described as an error, let alone one rising above the merely arguable; 3. In relation to draft ground of appeal 3 – I agree with McCallum JA that there was no error by the primary judge, in the circumstances of this case, in failing specifically to refer to the relevant part of the video evidence in his judgment when his Honour plainly took that evidence into account. 1. McCALLUM JA: Juliette Pratten brought proceedings in the District Court against the State of New South Wales alleging false imprisonment, assault and malicious prosecution against a number of police officers arising out of her arrest and prosecution in July 2015. The action was heard over four days following which, in a reserved judgment, the primary judge (Hatzistergos DCJ) entered verdict and judgment for the defendant. Ms Pratten seeks leave to appeal against that decision. Leave is required because the amount involved is less than $100,000: s 127(2)(c) of the District Court Act 1973 (NSW). 2. The application for leave to appeal was listed to be heard concurrently with the appeal. After calling on the parties to address the question of leave first, the Court made orders refusing leave and requiring the applicant to pay the respondent's costs. These are my reasons for joining in those orders. Circumstances in which the proceedings were brought 1. On the day of Ms Pratten's arrest her father, Mr Timothy Pratten, had been giving her a driving lesson. It was common ground in the proceedings before the primary judge that, during the course of the lesson, a heated dispute arose between Ms Pratten and her father which culminated in her assaulting him, excluding him from the car and driving off (on a learner's permit) without him. 2. Mr Pratten immediately dialled 000 and reported his daughter to police. As a result of his report, police patrolling the area received a request from the police radio operator to keep a lookout for the car. The radio broadcast included the following information: "Vehicle is being driven by the informant's daughter a Juliette Pratten born in '97. She is only on her learner's and she is alone in the vehicle. Informant has been teaching her to drive and it appears that she is ice affected. She is running red lights doing 30 km – I'm hoping this is a typo – 300 km over the speed limit, punching the windows, throwing food around. The informant has been punched and spat on. And apparently she threw him out of the vehicle." 1. As revealed by that information, Ms Pratten was aged 17 years (almost 18) at that time. 2. Police responding to that request found Ms Pratten in the car with the engine still running and the rear windscreen wiper in motion. After removing the keys from the ignition, Senior Constable Marshall informed Ms Pratten that she was under arrest for the assault of her father. In due course, after Ms Pratten refused to get out of the car, Senior Constable Marshall took hold of her arms and forcefully removed her from the car. The first cause of action pleaded in the proceedings in the District Court was false imprisonment based on the alleged unlawfulness of that arrest. 3. After being taken back to Waverley Police Station, Ms Pratten was placed in a cell and subjected to a search. The circumstances of the search gave rise to the second cause of action of assault and battery pleaded in the proceedings in the District Court. Ultimately, Ms Pratten was charged with offences of common assault against her father and being a learner driver not accompanied by a licensed driver. She pleaded guilty to those charges. She was also charged with one offence of resisting an officer in the execution of her duty, three offences of assaulting police officers in the execution of their duty and one offence of refusing or failing to submit to a breath test. She pleaded not guilty to those charges. The defended charges were dismissed in the Children's Court. The third cause of action pleaded in the District Court was malicious prosecution in respect of the defended matters. Leave is not sought to appeal from the primary judge's decision to dismiss that part of the claim. 4. The success of the claim for false imprisonment turned critically on the lawfulness of Senior Constable Marshall's arrest of Ms Pratten. It was common ground that Ms Pratten was imprisoned for several hours following her arrest and, accordingly, that the onus of proof was on the State of New South Wales to prove that her imprisonment was lawfully justified. The State sought to justify Ms Pratten's arrest by reference to the authority conferred by s 99 of LEPRA. That section provides that a police officer may, without a warrant, arrest a person if the police officer suspects on reasonable grounds that the person is committing or has committed an offence and the police officer is satisfied that the arrest is reasonably necessary for any one or more of a series of reasons listed in s 99(1)(b). There was no contest as to the first limb; it was not suggested that Senior Constable Marshall did not hold the relevant suspicion as to the commission of an offence. As to the second limb, she gave evidence in effect relying on ss 99(1)(b)(i) and (ix), which identify the following reasons for which it might be considered reasonably necessary to arrest a person: (i) to stop the person committing or repeating the offence or committing another offence; … (ix) because of the nature and seriousness of the offence. 1. The primary judge accepted Senior Constable Marshall's evidence as to her state of satisfaction that the arrest was reasonably necessary for those reasons (Pratten v State of New South Wales [2018] NSWDC 299 at [127]) and accepted that her belief in that respect fell within the terms of s 99(1) of LEPRA. Consequently, his Honour found that the arrest and subsequent imprisonment were lawful (at [144]). Proposed grounds 1 and 2 relate to those findings. 2. As to the claim for assault and battery, while the case in the District Court relied on a number of earlier incidents between the time of Ms Pratten's arrest and her release from police custody, the proposed appeal was confined to a challenge to the primary judge's finding in respect of the use of force by Senior Constable O'Brien. That complaint arose from the circumstances of attempts by police to search Ms Pratten after she had been placed in a cell at Waverley Police Station. Ms Pratten had initially resisted a search by two female police officers. Senior Constable O'Brien, the custody manager, directed those female officers to let go of Ms Pratten and leave the cell, which they did. 3. According to his evidence, Senior Constable O'Brien then explained to Ms Pratten why it was necessary to undertake a search, following which Ms Pratten was again searched by the two female officers with the assistance of Senior Constable O'Brien. The pleading contends that, at the conclusion of the search, Senior Constable O'Brien used both hands to push the plaintiff in her chest causing her to stumble backwards and that he then pushed her a second time with enough force to cause her to stumble backwards and fall onto the bed on the opposite side of the cell. 4. Senior Constable O'Brien's evidence was that, in doing so, he used a technique known as a "check drill". He said that, after he released Ms Pratten and at the conclusion of the search, she started to abuse him, saying she would "fucking go [him]" and poking a finger towards his face. He said Ms Pratten poked him directly in the nose following which he issued a one-handed check drill to her front to create distance and get her away from him. He said that she came towards him again, in response to which he told her to get back and step away from him. She stepped towards him and he issued a second check drill. A third check drill was issued as he backed towards the cell door. Senior Constable O'Brien said he was attempting to create space so that he could leave the cell because the door is heavy steel and presents a risk to any offender who might put their hand or limb in the door as it shuts. It is not clear whether that third check drill forms part of the present complaint. 5. The primary judge noted that it had not been put to Senior Constable O'Brien that his use of force in those circumstances was excessive. His Honour accepted that the actions of Senior Constable O'Brien were reasonably necessary in all the circumstances such that they were authorised by s 230 of LEPRA: at [184]. The proposed third ground of appeal challenges that finding, notwithstanding the fact that it was not put to Senior Constable O'Brien that he had used excessive force in the circumstances. 6. The primary judge also dismissed the claim for malicious prosecution. As already noted, there is no challenge to that aspect of his Honour's decision. 7. In case of error on the question of liability, the primary judge proceeded to quantify damages, indicating that he would have awarded the amount of $20,000 for the causes of action the subject of the proposed appeal: at [218]. There is no challenge to that assessment. The draft notice of appeal seeks judgment for the applicant in the sum of $20,000. Principles concerning leave 1. The applicant accepted, in accordance with the principles stated by Basten JA in Be Financial Pty Ltd as Trustee for the Financial Operations Trust v Das [2012] NSWCA 164 at [33], that it is ordinarily appropriate to grant leave to appeal only in matters involving issues of principle, questions of general public importance or an injustice which is reasonably clear in the sense of going beyond what is merely arguable. 2. As submitted on behalf of the respondent, it is necessary also to have regard both to the quantum of damages involved and the degree to which the decision below is or is not attended by doubt. For the second proposition, the respondent relied upon Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28] per Gleeson JA (with whom Macfarlan and Payne JJA agreed). Proposed grounds of appeal 1. The first and second proposed grounds of appeal relate to Senior Constable Marshall's decision to arrest Ms Pratten, as follows: 1. the Court below erred in finding that the appellant's imprisonment was lawfully justified under s 99(1) of LEPRA because the arresting officer, Senior Constable Marshall, had not effectually exercised her discretion under section 99(1). 2. the Court below erred in finding that Senior Constable Marshall was satisfied that it was reasonably necessary to arrest the appellant for the reasons mentioned in ss 99(1)(b)(i) and (ix) of LEPRA. 1. The argument in support of ground 1 accepted, if implicitly, that the objective facts were capable of enlivening the authority to make an arrest. The argument focused rather on the arresting officer's decision-making process. It was contended that s 99(1) of LEPRA requires the arresting officer to exercise a discretion, as indicated by the use in the section of the word "may", and that there must be "an effectual exercise" of that discretion: Zaravinos v State of New South Wales (2004) 62 NSWLR 58; [2004] NSWCA 320 at [24] (per Bryson JA; Santow JA and Adams J agreeing). 2. The argument that Senior Constable Marshall did not effectually exercise her discretion rested on the contention that her evidence established unequivocally that she did not give any consideration to any alternative to arresting Ms Pratten until after she had in fact completed the arrest. I do not think that is a fair reading of Senior Constable Marshall's evidence. In her evidence-in-chief, she was asked whether, before making the announcement of arrest, she considered "any alternative course" that she could take. She said "I did consider it, however due to the seriousness of the offence and also the, I, to prevent repetition of the offence, I arrested her." As to the prospect of repetition of the offence, she explained that she was concerned by "the assault and how angry she was prior to, like the police message that we received over VKG, so the radio message." 3. On the application for leave Mr Canceri, who appeared for Ms Pratten, submitted that this answer was hollow, since there was no expansion upon any alternative course considered by Senior Constable Marshall. I do not accept that submission. The answer given by the officer in the formal atmosphere of the court proceedings in the District Court must be assessed against a realistic consideration of the context in which she approached Ms Pratten. The information provided on the radio was that Ms Pratten was a learner driver, apparently affected by ice, speeding and running red lights, punching the car windows, throwing food in the car, punching and spitting on her father and throwing him out of the vehicle before driving off alone. When Senior Constable Marshall approached Ms Pratten (with that information in mind) she was still in the driver's seat with the engine running and the rear windscreen wiper in motion for no apparent reason. It was hardly the behaviour of a rational learner driver. While the answers given by Senior Constable Marshall in her evidence may have been glib, the process of reaching a decision to effect an arrest rather than take some other course required little explanation in the circumstances. 4. In addressing ground 1, the applicant focused on answers given by Senior Constable Marshall which disclosed that she may have been labouring under the misapprehension that, even if she had wished to issue a field court attendance notice, she still had to effect an arrest for that purpose and then discontinue the arrest after issuing the notice. The primary judge addressed that issue at [123]-[126] of the judgment. His Honour's conclusion was perfectly logical. In circumstances where, in my view, the evidence plainly established that Senior Constable Marshall had determined that it was appropriate to effect an arrest, her mistaken understanding of a different procedure she had no intention of using did not impeach the effectual exercise of her discretion. 5. The second proposed ground of appeal mounted an attack on Senior Constable Marshall's credit that was not made in the proceedings in the District Court. At no stage was it suggested to her that her evidence as to the seriousness of the offence and the need to prevent repetition of the offence and ensure no other offences were committed was disingenuous. 6. The submissions in support of the proposed third ground of appeal placed emphasis on CCTV footage which it was submitted provided compelling objective evidence demonstrating that the use of force by Senior Constable O'Brien in the cell at Waverly Police Station was not reasonably necessary. It was submitted that the CCTV footage was important evidence and that it was overlooked by the primary judge. I do not think the primary judge can have overlooked the CCTV footage. The evidence-in-chief of Senior Constable O'Brien was led expressly by reference to that footage as it was played in Court. Indeed, the primary judge made observations during the evidence as to what could be seen on the video. The judge summarised that evidence in detail in his judgment, albeit without explicit reference to the CCTV footage. In any event, having viewed the footage myself, and considered it together with the evidence of Ms Pratten and Senior Constable O'Brien, I do not think it adds anything to the summary of the evidence provided in the primary judge's decision. 7. In her evidence in the District Court, Ms Pratten accepted that, immediately before Senior Constable O'Brien first pushed her back towards the bed inside the cell, she had made her way to the door of the cell, had her right hand extended with her finger pointing and was loudly swearing (Tcpt, 21 May 2018, pp 67(50)-68(6)). She also accepted that the reason she advanced towards Senior Constable O'Brien at that stage was to make very plain how angry she was with him (Tcpt, 21 May 2018, p 68(43)-(47)). 8. I am not persuaded that any aspect of the primary judge's decision sought to be challenged is attended with sufficient doubt to warrant its reconsideration on appeal. The proposed appeal raises no contested question of principle. On the contrary, as frankly acknowledged by Mr Canceri, the grounds specified in the draft notice of appeal raise factual questions including questions not raised before the primary judge. Accordingly, I considered that leave to appeal should be refused. 9. SIMPSON AJA: The reasons given by McCallum and Payne JJA adequately state my reasons for joining in the orders of 24 May 2019. ********** 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: 29 May 2019