Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Dowse v State of New South Wales [2012] NSWCA 337
• Hearing dates: 16 July 2012
• Decision date: 19 October 2012
• Before: McColl JA at [1]; Basten JA at [2]; Hoeben JA at [57]

Decision

(1) Dismiss the appeal.

(2) Appellant to pay the respondent's costs.

[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.]

• Catchwords: CRIMINAL LAW - arrest - police officers pursued person suspected of offences - whether arrest valid where officer has no intention of charging suspect - whether officers intended to charge suspect - whether suspicion reasonable - Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 21 and 99; CRIMINAL LAW - offensive language - "fucking" - whether circumstances and context relevant to factual question of offensiveness - Summary Offences Act 1988 (NSW), s 4A(1); TORT - negligence - duty of care - tort liability of public authorities - plaintiff fell while chased by police officers - whether police officers' power of arrest engaged by reasonable suspicion of offence - whether a putative common law duty conformable with statutory powers of police officers - Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 21 and 99; TORT - negligence - plaintiff fell while chased by police officers - plaintiff chose to flee police - whether duty of care identified - whether a putative common law duty conformable with statutory powers of police officers - Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 21 and 99; TORT - trespass to the person - assault - plaintiff fell while chased by police officers - whether suspect feared physical violence
• Legislation Cited: Crimes Act 1900 (NSW), s 546C; Inclosed Lands Protection Act 1901 (NSW), s 4; Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 21, 99, 230, 231; Prevention of Terrorism (Temporary Provisions) Act 1984 (UK), s 12; Summary Offences Act 1988 (NSW), s 4A
• Cases Cited: Christie v Leachinsky [1947] AC 573; Dalton v Bartlett (1972) 3 SASR 549; O'Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286; R v Phillips (1971) 45 ALJR 467; State of New South Wales v Delly [2007] NSWCA 303; 70 NSWLR 125; State of Victoria v Richards [2010] VSCA 113; 27 VR 343; Sullivan v Moody [2001] HCA 59; 207 CLR 562
• Category: Principal judgment
• Parties: Garry Dowse (Appellant); State of New South Wales (Respondent)
• Representation: Counsel: Mr J P Berwick (Appellant); Mr M J Neil QC/Mr M S Spartalis (Respondent); Solicitors: Craddock Murray Neumann (Appellant); Makinson & D'Apice (Respondent)
• File Number(s): CA 2010/100671

Decision under appeal

• Jurisdiction: 9101
• Date of Decision: 2011-09-08 00:00:00
• Before: Armitage DCJ
• File Number(s): DC 2010/100671

HEADNOTE

[This headnote is not to be read as part of the judgment]

In the early hours of 11 March 2007 the appellant encountered two police officers near Callan Park in the inner-west of Sydney. During a verbal altercation, he said to the officers "Come on, do you want to chase me? Fucking chase me through Callan Park". The officers began to leave the area in their car, but decided to approach the appellant in their car. The appellant began to run from the officers' car, and entered the grounds of Callan Park. The officers saw him again when he was near the entrance to Rozelle Hospital, where they alighted from the car and gave chase on foot. The appellant fell in the grounds of the Hospital, landing on his right elbow, which fractured.

In 2010 the appellant commenced proceedings against the State of New South Wales in the District Court. The action was brought in negligence and trespass to the person. One issue was whether the officers had the necessary suspicion to engage the power to arrest the appellant. The State contended that they had pursued the appellant because they suspected that he had used offensive language in a public place or had entered inclosed land without permission. The trial judge gave judgment for the State.

The appellant appealed to this Court. The State filed a notice of contention suggesting that the power to arrest or detain could also be supported by a reasonable suspicion that the appellant had committed the offence of hinder police, or had drugs or drug paraphernalia on his person.

The issues for determination on appeal were:

(i) whether the power to arrest or detain was supported by a relevant reasonable suspicion, and

(ii) whether there was a tortious cause of the accident.

The Court held (per Basten JA, McColl and Hoeben JJA agreeing), dismissing the appeal:

In relation to (i)

1. An arrest will not be valid merely because the officer reasonably believes that an offence has been committed, in circumstances where the officer has no intention of charging the person or having the person charged with that offence: [26]-[28]

O'Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286 applied; State of New South Wales v Delly [2007] NSWCA 303; 70 NSWLR 125; Christie v Leachinsky [1947] AC 573 referred to.

2. Any suspicion held by the officers that the appellant had committed the offence of using offensive language in or near a public place could not justify their conduct. That was because the officers' acts and evidence demonstrated that they did not intend to arrest the appellant because he had used offensive language: [24]-[25], [29]

3. Neither officer gave evidence that they sought to arrest the appellant because of a suspicion that the appellant had committed the offence of hindering police in the execution of their duties: [30]

4. The officers' failure to attempt to search the appellant suggested that they did not intend to exercise a power to detain him in relation to possession of drugs or drug paraphernalia. Neither gave evidence that they questioned him about any possible use of drugs, let alone present possession of drugs. The trial judge correctly held that neither had reasonable cause to suspect that he had drugs in his possession: [34]-[35]

5. The commencement of the chase, which occurred when the appellant was on a public street, could not have been justified by a suspicion in respect of an offence under the Inclosed Lands Protection Act 1901 (NSW): [39]

In relation to (ii)

6. The claim in trespass was properly rejected. Prior to the appellant running onto the grounds of Rozelle Hospital, the officers were not seeking to exercise coercive powers, nor did the appellant think that they were. The appellant's choice to run was not the result of tortious conduct on the part of the officers: [47], [55]

7. The claim in negligence was properly rejected. Given that it was the appellant's choice to run and that he took a route through Rozelle Hospital, the officers did not owe him a duty of care. Once he entered Hospital grounds, the officers had reasonable grounds to suspect he had committed an offence. From that point the chase constituted a reasonable exercise of the power to arrest him: [49], [51]

8. The tort of trespass, available where police officers use excessive force, is sufficient to ensure that officers do not abuse their power of arrest. There is no purpose to be gained by superimposing a duty of care with respect to the exercise of such a power. The imposition of such a duty may create disconformity with the statutory scheme governing the relationship between a police officer and persons who are suspected of having committed offences or are otherwise proper subjects of police investigations: [52]

Sullivan v Moody [2001] HCA 59; 207 CLR 562; State of Victoria v Richards [2010] VSCA 113; 27 VR 343 referred to.

Judgment

1 McCOLL JA: I agree with Basten JA.

2 BASTEN JA: In the early hours of 11 March 2007 the appellant, Garry Dowse, fell whilst being chased by two police officers through the grounds of Rozelle Hospital in Callan Park in the inner-west of Sydney. He fell, landing on his right elbow, which fractured. Three years later he commenced proceedings against the State of New South Wales alleging liability for tortious conduct of two police officers who chased him, formulated alternatively in negligence and trespass to the person. The State accepted liability, if tortious conduct were established on the part of the officers, pursuant to the Law Reform (Vicarious Liability) Act 1983 (NSW).

3 When the officers and the appellant first encountered one another, the appellant was walking home after a night at his local pub and the officers were questioning two young persons on the footpath on Balmain Road, Rozelle, near the corner with The Boulevarde. The appellant expressed doubts as to the utility of the activity in which the officers were then engaged. They initially treated the appellant as a distraction, but after completing their business with the two young persons, they followed the appellant into Callan Park with the intention of questioning him. When the appellant took to his heels, the officers chased him, being an activity which he had originally proposed. The trial judge in the District Court, Armitage DCJ, gave judgment for the defendant and dismissed the proceedings.

Issues on appeal

4 Although the trial judge gave detailed consideration to the evidence of each individual witness, the critical findings fell within a short compass. They were as follows:

(a) if the officers had the necessary suspicion engaging the power to arrest the appellant, their conduct was lawful;

(b) if that power was engaged, they did not use excessive force in exercising the power;

(c) again, if the power were engaged, the act of chasing the appellant, whilst involving an element of danger both to the appellant and to themselves, did not constitute negligence;

(d) the power was engaged because the officers reasonably suspected the appellant -

(i) had used offensive language in a public place, and

(ii) had entered inclosed land without permission.

5 The appellant challenged each of the findings justifying the engagement of the power to arrest. In the absence of such a power he contended that the conduct of the officers involved both a trespass and a breach of duty of care owed to him as a member of the public.

6 The respondent filed a notice of contention seeking to uphold the judgment below on two additional bases for the exercise of the powers of arrest, or to stop, search and detain, namely a reasonable suspicion that the appellant -

(i) had committed the offence of hinder police, and

(ii) had drugs or drug paraphernalia on his person.

7 Against the possibility that he was in error in dismissing the claim on the basis that no tortious conduct had been established, the trial judge assessed damages under the general law in an amount of $110,187. That figure was accepted by the parties as appropriate if an entitlement to damages for trespass to the person were established. In the event that the State were to be found liable in negligence, an assessment would have been required under the Civil Liability Act 2002 (NSW), which was not undertaken.

8 For the reasons which follow, both causes of action were properly dismissed. Accordingly, the appeal must fail.

Powers of arrest: legal principles

9 Two different statutory powers were invoked by the respondent in its defence of the conduct of the officers. The first was the power to stop, search and detain, found in s 21(1) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ("the Law Enforcement Act"), which provides:

"21 Power to search persons and seize and detain things without warrant

(1) A police officer may, without a warrant, stop, search and detain a person, and anything in the possession of or under the control of the person, if the police officer suspects on reasonable grounds that any of the following circumstances exists:

(a) the person has in his or her possession or under his or her control anything stolen or otherwise unlawfully obtained,

(b) the person has in his or her possession or under his or her control anything used or intended to be used in or in connection with the commission of a relevant offence,

(c) the person has in his or her possession or under his or her control in a public place a dangerous article that is being or was used in or in connection with the commission of a relevant offence,

(d) the person has in his or her possession or under his or her control, in contravention of the Drug Misuse and Trafficking Act 1985, a prohibited plant or a prohibited drug."

10 In the alternative, the State called in aid the power of arrest pursuant to s 99 of the Law Enforcement Act, which provides:

"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."

11 The Law Enforcement Act deals separately with the use of force by police officers:

"230 Use of force generally by police officers

It is lawful for a police officer exercising a function under this Act or any other Act or law in relation to an individual or a thing, and anyone helping the police officer, to use such force as is reasonably necessary to exercise the function.

231 Use of force in making an arrest

A police officer or other person who exercises a power to arrest another person may use such force as is reasonably necessary to make the arrest or to prevent the escape of the person after arrest."

12 It is convenient to focus first on the power of arrest, as that was the power accepted by the trial judge as the basis on which the conduct of the officers was to be justified: Judgment at pp 28 and 32. So far as offensive language and, potentially, the offences of hinder police and enter inclosed lands were concerned, the relevant power was that found in s 99(2) permitting an officer to arrest if he or she suspected on reasonable grounds that the person had committed an offence. That condition involves an actual and honestly held suspicion on the part of the officer for which, in addition, there must be reasonable grounds. As explained by Lord Hope of Craighead in O'Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286 at 298, referring to similar language in the Prevention of Terrorism (Temporary Provisions) Act 1984 (UK), s 12, as to the applicable test:

"It relates entirely to what is in the mind of the arresting officer when the power is exercised. In part it is a subjective test, because he must have formed a genuine suspicion in his own mind that the person has been concerned in acts of terrorism. In part also it is an objective one, because there must also be reasonable grounds for the suspicion which he has formed. But the application of the objective test does not require the court to look beyond what was in the mind of the arresting officer. It is the grounds which were in his mind at the time which must be found to be reasonable grounds for the suspicion which he has formed. All that the objective test requires is that these grounds be examined objectively and that they be judged at the time when the power was exercised."

Background to accident

13 In order to apply these principles in the circumstances of the case, it is convenient to address the actual suspicions held by the officers and the grounds for those suspicions by reference to the events of the evening, briefly stated. Both constables gave evidence that at about 3am on the morning of 11 March 2007 they were speaking to two young persons on Balmain Road at Rozelle, near the intersection with The Boulevarde, when Mr Dowse walked past with a friend. Constable Fraser gave evidence that the appellant said something like "Are you alright, brother?": Tcpt, p 264(45). Constable Fraser formed the impression that he was probably intoxicated. The appellant and his friend then crossed The Boulevarde, sat on a brick wall and continued calling out words to the effect "Let him go": Tcpt, p 265(27) and (40).

14 When they had finished speaking to the young persons and directed them to move along, the officers walked along Balmain Road towards the appellant and his friend, at which point the appellant got up, ran across Balmain Road in a northerly direction towards Callan Park saying "Come on, do you want to chase me? Fucking chase me through Callan Park": Tcpt, p 266(35). Constable Fraser was asked whether he formed the opinion that the appellant had committed an offence and responded (p 267(5)-(25)):

"Yeah. Yes, he was - due to the time, it was night, and his behaviour is, essentially, saying breach the peace by the noise that he was making, and then he's also - he's hindering our - our investigation with - the young person by distracting us.

...

Well, once he started swearing, then he - he's - he's, you know, his language is becoming offensive, so yes.

Q. What did he say to you when he crossed the road?

A. He continued saying stuff like, 'Come on, chase me. Fucking chase me. Come on.'

Q. And did he say that in a loud voice?

A. Yes.

Q. Was it in an aggressive manner?

A. Yeah, it was - yeah. He was being, you know, he was trying to get a response. Get - trying to get some sort of reaction.

...

Q. Had you said anything to Mr Dowse at that stage?

A. I probably - I believe I told him something like, 'Mate, just shut up and go home'."

15 The evidence of Constable Edwards was a little more detailed, but to similar effect: pp 201(30)-(45) and 205(35)-(45). Referring to the time when the appellant ran across Balmain Road in a northerly direction, Constable Edwards was asked (Tcpt, p 206(5):

"Q. At that stage had Mr Dowse committed any offence?

A. Well hindering [offensive] language and he was just running across the road.

Q. Well running across the road is not an offence?

A. No."

16 Both officers then gave evidence that they had said "I'm not chasing you, you idiot" or words to that effect and had returned to their car. The car was facing west on Balmain Road and Constable Edwards did a U-turn and started to go in an easterly direction back towards Balmain Police Station where the officers were then working: Tcpt, p 206(40). The evidence of Constable Edwards continued:

"Q. Why were you going back to Balmain Police Station?

A. It was the - the end of our shift. So we were - we were commencing to head back to work - back to the station and doing events and -

Q. Did you go back to the Police Station?

A. As we were driving back Constable Fraser and I had a conversation. You know, 'Should we have a look at him? Should we have a chat to him?' We were driving back. We said yes, we should go and have a chat to him as he was running off into Callan Park so I was driving along and we got to the intersection -

Q. Just let me stop you there. We'll come back to that in a minute. Why did you decide or consider it necessary to go back and have a look at him?

A. Well, I was under the opinion that he was - well, he was under the influence of alcohol or drugs or a combination of the two.

Q. Why did you form that opinion?

A. Just his behaviour at the time that we were speaking to the two - two young people. It's not normal behaviour to yell out and scream and swear at police just as they're well, talking to two people."

17 Constable Edwards gave evidence that he then turned into Callan Park grounds. When they saw the appellant near the entrance to Rozelle Hospital, Constable Fraser got out of the vehicle and chased after the appellant who ran into the Hospital grounds. Constable Edwards followed. After describing the chase and apprehension, Constable Edwards gave the following evidence at Tcpt, pp 226(45)-227(35):

"Q. When you first observed Mr Dowse within the - I withdraw that - when you first - I withdraw that - when you next saw Mr Dowse when he was adjacent to the sign, the Rozelle Hospital sign, why did you decide to pursue him?

A. Well he was trespassing on the - on the hospital grounds.

Q. Was there any other reason?

A. From speaking to him when we were up on Balmain Road I - I assumed that Mr Dowse was under the influence of alcohol or drugs, or a combination of both. I also assumed that he'd still have some drugs on him, he'd have some, you know, drugs or drug paraphernalia on him.

Q. Does that have any significance, that he had some drug paraphernalia on him?

A. Well, yes. Yeah, under the stop, search, and detain powers that if we believe that someone's in possession of drugs or - or something that's been used in the commission of an offence, yeah, we have the power to stop, search, and detain so - and - and generally if someone runs from you and acts in that way it - it's an indication that, yeah, they've got something on them.

Q. What was it that made you form the opinion that he may have some drugs on him?

A. Well I believed he was under the influence of alcohol or another drug and - and he ran from us and ran into the grounds to obviously get away from us.

Q. Did you charge him with any offence?

A. No, we didn't charge him with any offence.

Q. Why didn't you charge him with any offences?

A. We - we used our discretion. We understand he was - he was on his way home. He was running home. He - yeah, he - he - well, he abused us for and yelled at us for whatever reason. We gave him a verbal warning in relation to trespassing.

Q. Well when you say a verbal warning what do you mean?

A. We informed him that he's - that he was trespassing and he shouldn't be, you know, you shouldn't be running home through Rozelle Hospital at - at 4am in the morning, you know."

18 On 19 April 2007 Constable Edwards prepared a report on the incident in response to a request from an Inspector of Police following an allegation from the appellant that he had been beaten with a police-style baton. That report was admitted as Exhibit 13. In substance it was consistent with the evidence the officers gave but described the appellant as "walking into [the] driveway of the car park of the facility", which he described as Aldersgate Retirement Village and Nursing Home. It was agreed at the trial that this was intended to be a reference to Rozelle Hospital. The report continued:

"Current intelligent reports suggest that this location is being used for intravenous drug use with syringes and associated paraphernalia being discarded there."

19 Constable Fraser was cross-examined briefly as to why he had chased the appellant after he saw him walking along Wharf Road, which was a public road in the grounds of Callan Park (Tcpt, pp 288(25)-289(40)):

"Q. Why didn't you just let him go?

A. Well as I explained earlier, I had several concerns stemming from his behaviour earlier on on Balmain Road, and I was also concerned that he was entering the grounds of Rozelle Hospital - which was a psychiatric hospital at the time. So I had some concerns for his own welfare and any other persons that may have been in the - in the grounds at the time.

Q. But when you saw him he was just walking down Wharf Road, wasn't he?

A. After we had entered Rozelle Hospital.

Q. But when you saw him he was just walking down Wharf Road, wasn't he?

A. Well when I saw him he started running.

Q. I thought it was when you called out 'Stop' that he started running?

...

HIS HONOUR:

...

Q. - but when you saw him walking down Wharf Road, he was walking down - at least according to the map I have in front of me here - a public street, is that right?

A. That's correct.

Q. He wasn't running in a way that suggested that he was trying to evade anybody at that point, was he?

A. Not at that point.

Q. Well why exactly did you want to stop him in those circumstances?

A. We wanted to speak with him and ascertain why he was - why he had entered the grounds of the - of - or the grounds of the park and the Ambulance training centre and also to - we had - I had some concerns due to his behaviour that - as I said earlier - he could have been affected by drugs and we just wanted to speak with him and - you know, make some enquiries as to what he was doing.

Q. When somebody yells out to you, 'Chase me, chase me', doesn't that make it unlikely that they're carrying drugs or some other illegal substance?

A. It - it - I - I wouldn't know. It may.

BERWICK [Counsel for the appellant]:

...

Q. Once again, why didn't you just let him go?

A. Well my suspicion was certainly aroused and heightened when he began sprinting as soon as he saw our car. So my concerns that I held before were most definitely increased to a point where I was - I wanted to ascertain who he was and why he was - why he was in such a hurry to get away.

Q. Well the answer was pretty obvious, wasn't it? You'd had an encounter with him up on Balmain Road?

A. I wouldn't say it was obvious.

Q. Well it's the most likely conclusion to draw in the circumstances, isn't it?

A. Well he - he hadn't sprinted from us on Balmain Road."

20 In setting out the evidence given by Constable Edwards, the primary judge referred to the belief that the appellant had trespassed on the grounds of Rozelle Hospital and continued (Judgment, p 15):

"It indicates to me that he having so recorded, at a time reasonably proximate to the events in question, and before litigation was contemplated, Constable Edwards was genuinely of the belief, at the time of the chase when the plaintiff fell and suffered the injuries in question, that the plaintiff was trespassing, although I should carefully note that the report does not refer to any belief on the part of Constable Edwards that the plaintiff had committed the offences of using offence language or hindering police in the execution of their duty."

21 Further in recounting the evidence, his Honour continued (p 17):

"Constable Edwards gave evidence that he decided to pursue the [appellant] because he was trespassing on the hospital grounds, and that he also assumed that the [appellant] was under the influence of alcohol or drugs, or a combination of both, and also assumed that he would have some drugs on him, and that he may have drugs or drug paraphernalia in his possession."

22 The primary judge rejected that suspicion as not reasonably based but also concluded that Constable Edwards "was genuinely of the view that the plaintiff had committed the offences of hindering police and using offensive language at that time": p 17.

No arrest for offensive language

23 It is an offence to use offensive language in or near a public place: Summary Offences Act 1988 (NSW), s 4A(1). Counsel for the appellant submitted, somewhat flamboyantly, that the language used by the appellant on Balmain Road could not constitute offensive language. It was an issue, he submitted, which raised a point of public importance.

24 That submission should be rejected for two reasons. First, as emphatically stated by Bray CJ in Dalton v Bartlett (1972) 3 SASR 549 at 555, in relation to the related offence of indecent language and in respect of similar words, "whether or not words like these when used in a public place on any particular occasion are indecent is, in one sense, a question of fact to be decided by the application of an evaluatory standard after due consideration of the circumstances and the context". There are many circumstances in which such language will not contravene s 4A, but that is not to say that there are none in which it can. Secondly, the question for present purposes was not whether it could or did constitute an offence, but whether such language could, in the circumstances and manner in which it was used, provide reasonable grounds for a suspicion that the appellant had committed an offence.

25 There are, however, further reasons why those questions need not be further considered. Thus it was tolerably clear that the officers did not carry out, or even attempt to carry out, an arrest based on such an offence. First, they drove away from the scene of the "offence" intending to return to the station. Secondly, when they decided to have a chat to the appellant, it was not because of anything to do with offensive language. Thirdly, when they apprehended him, he was not arrested for that reason. Fourthly, the decision not to arrest (if it had ever been intended) was not taken because of some discussion about offensive language, but for different reasons.

26 While it is true, as Lord Hope explained in O'Hara, that there are two elements to be satisfied for a warrantless arrest to be valid, namely an honestly held suspicion in the mind of the arresting officer and information in the mind of the arresting officer which when objectively assessed provides reasonable grounds for the suspicion, these are not abstract and independent elements. They justify a deprivation of liberty which in turn is part of an ongoing process by which the person arrested must be taken before an authorised officer to be dealt with according to law: Law Enforcement Act, s 99(4). In other words, the arrest is a first step in the process by which the person is to be made answerable for the offence, the commission of which the officer suspects. The same underlying purpose is to be found in s 99(3) which limits the circumstances in which an officer may arrest a person "for the purpose of taking proceedings for an offence against the person"; it thus assumes that such a purpose must underlie a valid arrest.

27 In other words, an arrest will not be valid merely because the officer believes that an offence has been committed, in circumstances where the officer has no intention of charging the person or having the person charged with that offence. If that were not so, the legal requirement that the person arrested be informed of the true grounds of the arrest would be rendered nugatory: see State of New South Wales v Delly [2007] NSWCA 303; 70 NSWLR 125 at [9]-[11] (Ipp JA), adopting the reasoning of Lord Simonds in Christie v Leachinsky [1947] AC 573 at 591-592. As Tobias JA stated at [71], after referring to the provision in force in 1998 empowering an officer to arrest without warrant on the basis of a suspicion with reasonable cause:

"It logically follows that where an arrest which complied with that requirement was effected, the arresting officer was obliged by the common law to inform the arrestee of the nature of the offence which he, the arresting officer, suspects the arrestee to have committed. To arrest a person on the suspicion of that person having committed offence A but to inform that person that the reason for the arrest is offence B, would be a nonsense and contrary to the clear policy which underpins what has been described by Lord Simonds in Christie as a fundamental rule of the common law with respect to the lawful deprivation of a person of his or her liberty."

28 In a passage referred to with approval by Tobias JA, I said that "[t]he information to be supplied by the arresting officer is his or her reason for carrying out the arrest": at [102].

29 Neither Constable Edwards nor Constable Fraser gave evidence either that when they drove into Callan Park they intended to arrest the appellant, or that they sought to do so because he had used offensive language. Accordingly, the fact that he may have used offensive language could not, in the circumstances of this case, constitute justification for the allegedly tortious conduct.

No arrest for hinder police

30 The same reasoning applies to the offence of hindering police in the execution of their duties, contrary to the Crimes Act 1900 (NSW), s 546C. While it is not in doubt that such conduct constitutes an offence and that the officers may have suspected the appellant of committing such an offence, neither gave that as a reason for seeking to arrest the appellant (on the assumption that they did intend to arrest the appellant, prior to him entering the grounds of the Hospital). Accordingly it is neither necessary nor appropriate to determine whether the trial judge was correct in concluding that there were no reasonable grounds for the officers' suspicions in that regard.

31 It is also unnecessary in those circumstances to consider whether the power to arrest was in any event not satisfied because neither officer gave evidence of holding a suspicion that it was necessary to arrest the appellant to achieve one of the purposes specified in s 99(3).

32 The only tenable understanding of the officers' intentions, as revealed in their evidence and by their actual conduct, was that they did not in fact intend to arrest the appellant before he entered the Hospital grounds, but rather sought to exercise their powers under s 21 of the Law Enforcement Act.

Suspicion of drug use and possession

33 For the reasons already given, it is doubtful that the police officers had any intention of arresting the appellant when they turned to drive into the grounds of Callan Park. Rather, they proposed to "go and have a chat to him" as explained by both: Tcpt, p 206(49) (Constable Edwards); Tcpt, p 268(10) (Constable Fraser). In the course of the hearing, reliance was placed upon the power to stop, search and detain a person under s 21 of the Law Enforcement Act: see [9] above. However, that power was limited, relevantly, to circumstances where the officers suspected on reasonable grounds that the person had in his or her possession or control a prohibited plant or drug.

34 The trial judge was not satisfied that Constable Edwards' suspicion "that the plaintiff was affected by drugs or might have drugs or drug paraphernalia on him was a reasonable one, having regard to the plaintiff's behaviour, as I think this was adequately explained by his obvious intoxication, which he himself admitted as a result of ingestion of alcohol at the Garry Owen Hotel, although to be fair the police officers did not know where the plaintiff had ingested alcohol, as opposed to forming the view that he was drunk": Judgment, p 17. He therefore concluded that neither constable had reasonable cause to suspect that the appellant had drugs in his possession and held that s 21(1)(d) did not justify the attempted apprehension of the plaintiff following the chase: Judgment, p 21.

35 Again, one may doubt that the officers had any actual intention to exercise such a power at the time they initiated the chase, not only because of the circumstances explained by the trial judge, but because, when they eventually apprehended the appellant, they made no attempt to search him, beyond asking him to empty his pockets, before issuing a warning for trespassing. Nor did they give evidence that they questioned him about any possible use of drugs, let alone present possession of drugs.

36 Although the respondent sought by way of contention to challenge his Honour's finding in that regard, that challenge should be rejected.

Trespass on inclosed lands

37 The final basis upon which the respondent sought to justify the exercise of force by the officers was that the appellant had, without lawful excuse, entered onto inclosed lands without the consent of the occupier, in contravention of the Inclosed Lands Protection Act 1901 (NSW), s 4(1).

38 The trial judge dealt with this issue at pp 29-32. In particular, he considered whether the evidence that members of the public regularly walked through the Hospital grounds constituted an implied permission and thus a lawful excuse for the appellant's presence at 3am in the morning. He held that it did not. His Honour expressed his conclusion in the following terms at pp 31-32:

"In those circumstances I accept the defendant's submission that Constable Fraser, and in particular Constable Edwards, were entitled to form the suspicion on reasonable grounds immediately prior to the plaintiff's apprehension and immediately prior to the fall which he suffered on the premises of Rozelle Hospital, that he had also committed an offence under s 4(1) of the Inclosed Lands Protection Act, and it follows that their actions after they saw the plaintiff for a second time inside the premises of Rozelle Hospital, and when they pursued him, and when he fell down the stairs on the premises of Rozelle Hospital, and when he was apprehended on the grass in the premises of Rozelle Hospital after the use of a 'legsweep' by Constable Fraser, were lawful under s 99 of [the Law Enforcement Act]...."

39 This analysis requires further consideration of the circumstances in which the chase began. The trial judge found (to which finding there is no challenge) that the appellant fell and injured himself while running away from police and injured his elbow at that point. That finding negated the allegations that the appellant had been pushed or struck or otherwise physically touched by either officer prior to his fall and injury. That he was thereafter detained before being released was not in doubt; however, the injury relied upon as the source of damage occurred prior to his apprehension. That occurred as a result of the chase. However, the chase commenced when he was on a public street and, as the finding set out above recognises, the commencement of the chase could not have been justified by a suspicion in respect of an offence under the Inclosed Lands Protection Act.

Was there a tortious cause of the injury?

40 In a practical sense, the conduct of the police officers which might be said to have a direct causal connection with the injury was the driving of the police vehicle towards the appellant who was then on Wharf Road and the call to him to stop. At that point the appellant chose to run. However, even if the police had no basis for exercising powers under either s 21 or s 99 of the Law Enforcement Act at that point, it did not follow that the conduct described was tortious. As the officers did not touch the appellant before he suffered his injury, the potentially relevant torts were assault and negligence, but not battery.

(a) assault

41 Considering first the tort of assault, there are two relevant elements. The first is that the defendant's conduct must be such as to cause the plaintiff to apprehend unlawful physical contact. The second is that the plaintiff must be put in apprehension of such unlawful contact: R v Phillips (1971) 45 ALJR 467 at 472.

42 The appellant gave evidence that after the altercation in Balmain Road he entered the area within Callan Park used by the NSW Ambulance Service and started to make his way home which involved going in a north-westerly direction through the streets between the buildings in Callan Park. In answer to an early question as to what happened after he left Balmain Road, he answered, in respect of a point in time and place which was then unclear (Tcpt, p 41(35)):

"As I was walking there wasn't much traffic, I noticed a car travelling from behind me with a roar of thunder and I realised that it was police and as the car roared down the street I realised it was the police and decided I didn't want to answer their questions, so I took off."

43 He gave evidence of going along a roadway past a nursing home to Wharf Road, at which point the following evidence was given (p 50):

"He got out of the car saying, 'Stop you effing little prick.'

Q. So it's a court of law you don't have to be embarrassed, so what did he say to you?

A. 'Stop you effing little prick.'

Q. So ... your evidence is that he said, 'Stop you fucking little prick,' correct?

A. Yes.

...

Q. And how would you describe the way he said?

A. With anger.

Q. And what did that cause you to do?

A. I was scared.

Q. And because you were scared what did you do?

A. Kept running.

Q. Now you kept running and where did you run to, what did you run into?

A. A continuation of Callan Park."

44 He gave evidence that as he went through the grounds of Rozelle Hospital towards Glover Street he was aware that at least one of the police officers had got out of the car and was chasing him: pp 55-56.

45 In cross-examination, counsel for the respondent elicited the following evidence (Tcpt, pp 119-122):

"Q. You say you heard a car do you and then you start running?

A. Yes.

...

Q. Why did you run from the police?

A. I thought the matter was over and done with. They wanted to continue it, I didn't.

Q. Didn't you tell his Honour yesterday that you took off because you didn't want to answer any questions from the police?

A. I thought the matter was over and done with.

...

Q. Didn't you tell his Honour yesterday that you ran when you realised it was the police because you didn't want to answer any questions?

A. I did say that but I thought the matter was over and done with.

Q. What questions did you think the police were going to ask you?

A. I don't know like that didn't run through my head.

...

Q. I'll just take you back to my question. Why did you form the view firstly that they were going to ask you questions?

A. That's what the police do, ask you questions.

Q. You believed didn't you that the police were going to ask you questions because of your conduct is that it?

A. Whatever questions they were going to ask I didn't wish to answer.

...

Q. Why did you run?

A. Police told me to move on I thought he was finished with me. I was finished with them.

Q. So they casually said to you move on, correct?

A. Correct.

Q. Then all of a sudden you say you were running from them because you didn't want to answer their questions?

A. I was scared. I didn't want to - like the roar of the car, I was frightened. It made me run.

...

Q. You were afraid of the car, were you?

A. The way they approached in their car. Like I was standing on Balmain Road. I didn't realise it was Bathurst."

46 There was a degree of symmetry between the evidence of the police and the appellant. The police did not state that they wished to arrest the appellant, nor did the appellant think he was to be arrested. The police said they wished to have a "chat" with the appellant; the appellant thought they were going to ask him questions. When they eventually apprehended him, they did ask him a number of questions and then let him go with a warning about trespassing.

47 Despite the evidence as to the roar of the vehicle, and the appellant's evidence that he was "scared", there was no suggestion that he was scared of physical violence, nor that the driving of the motor vehicle was intended to constitute threatening behaviour. Accordingly, prior to the appellant running onto the grounds of Rozelle Hospital, the police were not seeking to exercise coercive powers, nor did the appellant think that they were. The actions of the police no doubt caused the appellant to run, but the actions themselves were not unlawful and did not constitute an assault. The appellant could have stayed and made it clear that he did not wish to answer questions or he could have decamped: he chose the latter course. His choice was not the result of tortious conduct on the part of the police officers. Accordingly, on any view the claim in trespass was properly rejected.

(b) negligence

48 Even if the police had sworn at the appellant in the manner he described, he did not suggest that he was in any way put out, let alone that he feared for his physical safety, as a result of that manner of address.

49 Once it is accepted that it was the appellant's choice to run and that he took a route through Rozelle Hospital, it is not entirely clear in what respect the officers owed him a duty of care, nor as to the nature of the duty.

50 It may be that the route chosen was in part inspired by an attempt to keep off roadways where the police might have overtaken him in a vehicle, but when asked in his examination in chief as to his knowledge of the route, he said that he had been familiar with it since age 15 (he then being almost 42 years of age). While there were, no doubt, risks associated with running through the Hospital grounds at night, the area was one with which he was well familiar, presumably as a path between the Rozelle shops and his home.

51 Whether the appellant would have slipped and fallen had the police not chased him into the Hospital grounds is unclear and there was no finding of fact in that regard. However, once he entered the Hospital grounds, the officers had reasonable grounds to suspect he had committed an offence, namely by entering inclosed lands without lawful excuse. Subject to other potentially relevant considerations, such as the terms of s 99(3), which were not raised in the present proceedings, they were entitled to arrest him and use reasonable force in that regard. For that purpose, the chase constituted a reasonable exercise of the power, given the appellant's decision to flee, as the trial judge found.

52 If the officers had used excessive force, causing injury to the appellant, their conduct would not have been justifiable under s 99 of the Law Enforcement Act, nor under the common law and they would, in such a case, have been liable in trespass. That would constitute a sufficient basis for ensuring that the officers did not abuse their power of arrest. There is no purpose to be gained by superimposing a duty of care with respect to the exercise of such a power. The imposition of such a duty may create disconformity with the statutory scheme governing the relationship between a police officer and persons who are suspected of having committed offences or are otherwise proper subjects of police investigations: Sullivan v Moody [2001] HCA 59; 207 CLR 562 at [50] and [57] (Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ); cf State of Victoria v Richards [2010] VSCA 113; 27 VR 343 (Redlich JA, Nettle JA and Hansen AJA agreeing).

53 The trial judge dealt with the question of negligence in the following passage at pp 28-29:

"It is certainly the case that Constable Fraser honestly admitted ... that in chasing the plaintiff into the dark, he was committing an act which was dangerous to both the plaintiff and himself. It was certainly foreseeable the plaintiff might suffer injury as a result of what Constable Edwards, and for that matter Constable Fraser, did. Was that negligent? It was if it was done without power. It was not in my opinion if, as was the case, it was done within the power in s 99.

It is also my view that as the defendant submits, and as I have already indicated, that Constables Fraser and Edwards used only such force as was reasonably necessary to [effect] the plaintiff's apprehension within s 238 of [the Law Enforcement Act]. In view of that finding, it does not seem to me appropriate to find negligence on the part of either Fraser or Edwards, in the form of any failure to take reasonable care for the safety of the plaintiff."

54 The second paragraph of that passage reflects the foregoing reasoning in this judgment. That is, to the extent that the officers were exercising a function under the Law Enforcement Act and were using no more force than was reasonably necessary for that purpose, it would give rise to incoherence in the law to impose a separate duty of care owed to the appellant which could be breached, despite the findings in respect of the lawful exercise of a statutory function.

55 With respect to the first paragraph in the passage set out above, the preferable analysis is that, in the circumstances in which the injury came about, the initiation of the appellant's flight was a choice he made in the absence of any unlawful threat and, to the extent that the injury resulted from the chase by the police officers after he had entered upon inclosed lands, it resulted from the use of reasonable force pursuant to a power to arrest on reasonable suspicion of the offence of entering inclosed lands without lawful excuse. So understood, there was no error in the conclusion reached by the trial judge.

Conclusion

56 For these reasons the appeal should be dismissed; the appellant must pay the respondent's costs in this Court.

57 HOEBEN JA: I agree with Basten JA and the orders which he proposes.

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Decision last updated: 19 October 2012