(Unlawfully) Arrested Development: The Criminal Lawyer’s Guide to Intentional Torts and Police Powers

This kind of work often places practitioners at the centre of some of the most complex intersections of the law, where their role is not only about defending actions but also about understanding the nuanced balance between the powers granted to police officers and the rights of individuals.

Some recent decisions handed down by the Court of Appeal have raised questions of what constitutes false imprisonment, how powers of arrest are lawfully exercised, and when police should be able to detain, seize and arrest without warrants.

Evidence Act 1995 (Cth); Evidence Act 1995 (NSW) (‘Evidence Act’)

Civil Liability Act 2002 (NSW); Civil Liability Act 2003 (Qld); Civil Liability Act 2002 (WA); Wrongs Act 1958 (Vic) (‘Civil Liability Act’)

• The plaintiff sustained severe injuries after jumping from a fourth-floor balcony while intoxicated and under the influence of drugs, during which police unsuccessfully tried to stop him with a taser. The plaintiff argued that the police’s actions constituted battery, assault, and negligence, holding the State of New South Wales vicariously liable. The court found that the taser’s use was lawful under statute, the plaintiff’s intoxication and dangerous actions were significant factors, and the Civil Liability Act‘s dangerous recreational activity defence defeated the claims.

Lake v Dobson (1980) (1981) 5 PS Rev 2221

• An individual was arrested for nude sunbathing at a bay in Coogee. It was argued that arrest, being equivalent to an additional penalty for most people, should only be used as a last resort and only when a summons would not suffice. The court found that arrest should indeed be reserved for situations of clear necessity and emphasised that less intrusive measures should be prioritised when possible.

DPP v Carr [2002] NSWSC 194

• Carr was arrested for offensive language after swearing at a police officer, with the situation escalating to charges of resisting arrest, assaulting police, and intimidation. It was argued that the arrest was improper because the officer knew Carr’s identity and address, could have proceeded via summons or a Court Attendance Notice and acted out of expediency rather than necessity. The court found the arrest improper, upheld the exclusion of evidence under section 138 of the Evidence Act, and confirmed the officer’s recklessness in disregarding proper procedures.

R v McClean [2008] NSWLC 11

• The defendant was approached by police investigating a suspected break-and-enter, provided her identification, and attempted to leave but was restrained, arrested, and charged with assaulting and resisting police. It was argued that the arrest was unlawful because it was for investigative purposes, not for commencing proceedings, and did not satisfy the statutory requirements of section 99(3) of LEPRA, as the police already had her identity and no suspicious circumstances warranted arrest. The court found the arrest unlawful, emphasising that arrest solely for investigation is impermissible under section 99(3), that arrest is a last resort, and any subsequent detention based on an unlawful arrest is invalid.

New South Wales v Robinson [2019] HCA 46

• Mr. Robinson alleged he was wrongfully arrested because the officer lacked reasonable grounds to believe arrest was necessary under section 99(3) of LEPRA, specifically to prevent a repetition of an offence. It was argued that for an arrest to be lawful, the arresting officer must both honestly believe and have reasonable grounds to believe the arrest is necessary for one of the purposes specified in s.99(3), with “necessary” implying that the action is essential or indispensable. The High Court upheld the Court of Appeal’s decision, ruling that an arrest is lawful only if it is made with the intention, at the time, to charge the individual and take them before a magistrate, and that arrest cannot be justified for mere questioning or investigative purposes.

Hunter New England Area Health Service v A [2009] NSWSC 761

• The court addressed the legal status of an advance healthcare directive where a patient, Mr. A, refused dialysis and the hospital sought confirmation of the directive’s validity. It was argued that a capable adult has the right to refuse medical treatment via an advance care directive, and if clear, unambiguous, and applicable to the situation, such directives must be respected, with administering prohibited treatment constituting battery. The court found that medical necessity can be a defence to intentional trespass torts in emergencies where consent cannot be obtained, but an advance healthcare directive negates the defence if it explicitly applies to the circumstances.

NSW v McMaster [2015] NSWCA 228

• The plaintiff was shot by police, and while his claims of negligence were unsuccessful, the trial judge ruled that the shooting constituted a battery. It was argued that the police officers’ actions were protected from liability for battery due to the legal principles governing their duties, including the provisions of section 230 of LEPRA. The court found that the police officers’ actions were lawful and reasonably necessary under section 230, which made what would otherwise be a battery lawful in this context.

A v State of New South Wales [2007] HCA 10

• The plaintiff was arrested and charged with sexual offences against his two stepsons. The plaintiff argued that the police officer lacked reasonable grounds to charge him, particularly in relation to the charge concerning the younger boy, where there was evidence suggesting the boy might have fabricated the story. The High Court agreed that the police officer lacked reasonable grounds for the charge related to the younger child but found there was sufficient basis for the charge concerning the older child, emphasising that prosecutors must have reasonable and probable cause, not just potential for further inquiries.

Beckett v New South Wales [2013] HCA 17

• Roseanne Beckett was convicted in 1991 of offences against her husband, but her convictions were quashed in 2005, and the Director of Public Prosecutions decided not to pursue further charges. Beckett later filed a claim for damages for malicious prosecution, with the key issue being whether she needed to prove her innocence to maintain her claim. The High Court allowed Beckett’s appeal, ruling that a plaintiff does not need to prove their innocence when the prosecution has terminated in their favour.

Wood v State of New South Wales [2018] NSWSC 1247

• Gordon Woods was initially convicted of the murder of Caroline Byrne in 2008 but was later acquitted by the NSW Court of Appeal, which found the conviction unreasonable and criticised the prosecution and expert witness. Woods subsequently brought a claim for malicious prosecution, arguing that the case was pursued without reasonable cause and with malice for an ulterior purpose. The court agreed that the prosecution lacked reasonable cause, criticised the Crown Prosecutor’s actions, but ultimately dismissed the claim, finding no evidence of malice in the prosecutor’s conduct.

HD v State of New South Wales [2016] NSWCA 85

• Police obtained an interim Apprehended Domestic Violence Order against a father after his daughter reported an assault, but later denied being hit by him. The father claimed unlawful arrest and malicious prosecution after the assault charge was dismissed, arguing that the prosecution lacked reasonable and probable cause. The Court of Appeal upheld the trial judge’s decision, finding that the prosecution was not motivated by malice, the police acted within their public duty, and there was a reasonable basis for the charge.

State of New South Wales v Spedding [2023] NSWCA 180

• Mr. Spedding was wrongfully arrested and charged with child sexual assault offences in 2014 as part of an effort to apply pressure in the investigation of the disappearance of William Tyrrell. The plaintiff argued that the arrest lacked reasonable grounds, was malicious, and that the Office of the Director of Public Prosecutions should be liable for malicious prosecution, while also asserting misfeasance in public office and abuse of process. The Court of Appeal upheld the primary judge’s decision, finding that the police officers lacked reasonable and probable cause, and that their actions were malicious and constituted misfeasance and abuse of process, though the ODPP was not liable for malicious prosecution.

• Intentional torts refer to a group of torts committed against a person, including battery, false imprisonment or unlawful detainment and malicious prosecution.
• The powers that police officers have are outlined in LEPRA. LEPRA contains most police powers, with some common law powers existing outside of it.
• Police often commit intentional torts lawfully in the execution of their duties. For example, they commit battery when they put handcuffs on them to arrest them. As such, police can access the defence of lawful justification to defeat any tortious claims. This defence hinges on whether the exercise of that power was valid, which requires consideration of reasonable suspicion and other requirements in LEPRA.
• Consent plays a crucial role when police officers exercise their power to search individuals. A search is validly executed if a person willingly submits to it by giving consent.
• Police officers have the power to conduct searches without a warrant under LEPRA if they have reasonable suspicion that a person is in possession of something illegal. The test for whether suspicion was reasonable is objective.
• The Evidence Act allows challenges to the admissibility of evidence obtained during an unlawful arrest, emphasising the importance of reasonable grounds for arrest. The case of Carr reinforced that unlawful arrests undermine legal integrity, making evidence obtained through such means potentially inadmissible.
• Self-defence involves consideration of the conduct preceding the act of self-defence. It is important to assess the reasonableness of the defendant’s subjective belief that they were in danger and the proportionality of their response.
• The tort of malicious prosecution involves four elements:
  • Proceedings initiated against the plaintiff by the defendant, usually in the criminal sphere;
  • Proceedings terminated in favour of the plaintiff;
  • Initiation or maintenance of proceedings acted maliciously; and
  • The defendant acted without reasonable and probable cause.

• Intentional torts is an emerging area of law which involves cases against individuals or entities, not just the state of New South Wales.
• Law students should gain exposure to both plaintiff and defendant work in this area, as it can be rewarding and important in protecting the rights of individuals and law enforcement officers. This exposure can help in understanding and addressing issues such as police powers abuse and protecting vulnerable individuals who may not have the resources to pursue legal action.

On today’s episode of Hearsay, we’re talking about intentional torts, especially torts relating to public order and the use of police powers like the torts of unlawful detention and malicious prosecution. Building a strong defence for these sorts of tortious claims requires a deep understanding not only of tortious principles, but also their application in high pressure circumstances, like police work.

Now this kind of work often places practitioners at the center of some of the most complex intersections of the civil and criminal law, where their role is not only about defending actions, but also about understanding the balance between the powers granted to police officers under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), or LEPRA as we’ll be calling it today, and the rights of individuals.

Some recent decisions handed down by the Court of Appeal have raised questions about what constitutes false imprisonment, how powers of arrest can be lawfully exercised, and when police should be able to detain, seize, and arrest without warrants.

Our guest today is Alexander Ionita, barrister at 11th Floor Garfield Barwick Chambers. Possessing a keen interest in criminal law and intentional torts, Alexander is speaking from experience today in how to successfully construct defences and execute effective courtroom strategies in intentional torts cases.

Alex, thank you so much for joining me today on Hearsay.

TIP: Alex just mentioned sections 21 and 36 of LEPRA, that’s the Law Enforcement Powers and Responsibilities Act, quick reminder. Section 21 is the power to search a person and seize and detain things from that person without a warrant. Section 36 is the power to search a vehicle and seize things from that vehicle without a warrant. 

In New South Wales, police possess the authority to detain and search individuals, but this power is limited to specific circumstances. If a search is later determined to be unlawful, any evidence obtained during that search might be excluded at the court’s discretion under section 138 of the Evidence Act – we’ve talked about that on the show in the past. 

According to the sections, a police officer can detain and search a person or a vehicle if they have a reasonable suspicion that the individual possesses or controls certain items. Now, these include anything stolen or unlawfully obtained, items used or intended for use in the commission of an offence, dangerous articles related to offences, prohibited plants or drugs, laser pointers. Each case hinges on its specific facts and interpretations of what constitutes reasonable suspicion can vary.

TIP: So Alex just spoke about the example of domestic violence, and whether that might be considered reasonable grounds for an arrest. Another decision that was handed down recently, or relatively recently, relating to intentional torts and police conduct was a 2022 decision of Hannam v State of New South Wales (No 9) [2022] NSWSC 648 – this was a Supreme Court decision. 

Now this case is useful in the context of violence or perceived violence and intoxication. In that case, the plaintiff suffered severe injuries after jumping from a fourth floor balcony following hours of alcohol and MDMA consumption. Police were called to the scene due to the plaintiff’s erratic behaviour and were attempting to prevent him from jumping. Despite attempts by one officer to stop him by using a taser, the plaintiff jumped and the taser discharged while he was in mid-air. 

The plaintiff sued the state of New South Wales, holding it vicariously liable for the police’s conduct, alleging battery, assault and negligence. Justice Adamson ruled against the plaintiff, the use of the taser was deemed lawful. Justice Adamson found that the plaintiff’s consumption of illicit drugs had played a key role in the incident, and ruled that the dangerous recreational activity defence under the Civil Liability Act was applicable, effectively defeating the claims of negligence and battery. In addition to the state succeeding on a self-defence, defence as well.

In that domestic violence scenario because there was evidence to support the allegation of an offence then it would be the reasonably necessary part that a police officer would have to identify. This is, of course, as a defendant speaking to a police officer, your informant who is the subject of the tort, you would be taking instructions from them, conferencing them, and you’d ask them to go through their justification for it. So you would go “reasonable grounds because of XYZ,” “reasonably necessary.” In that domestic violence scenario, for example, there may be a need to separate both parties because they both reside at the house. There may be a need to stop a future offence occurring because of that proximity, and then it’s placing them before a magistrate and all those elements of that lawful arrest come into play to then enliven lawful justification.

TIP: So Alex just mentioned that the test for a legal arrest hinges on the officer having reasonable grounds for arrest, which considers the position and knowledge of the officer at the time of the arrest as well as some other factors. 

Under LEPRA, arrest should generally be used as a measure of last resort, only when alternative actions like warnings, cautions, or the issuance of a court attendance notice are insufficient. This principle was illustrated in Lake v Dobson where it was deemed inappropriate to arrest an individual for a minor offence, in that case it was nude sunbathing, when there was no pressing need for physical custody. Arrest should also be avoided when the individual poses no risk of evading a summons or failing to appear in court, which was the case in Carr, where the court emphasised that the decision to arrest should be carefully considered especially for minor offences. 

However, that said, section 99(1) of LEPRA says that a police officer can arrest a person without a warrant if they have reasonable grounds to suspect that the individual is committing or has committed an offence and if the arrest is reasonably necessary for specific purposes outlined in LEPRA. Those purposes include things like preventing the continuation or repetition of the offence, stopping the person from fleeing, establishing the person’s identity if it’s unclear or falsely presented, ensuring that the person appears in court, securing evidence, preventing interference with potential witnesses and protecting the safety and welfare of others involved. 

Now the gravity of the offence can also justify an arrest if it’s deemed necessary due to the nature of the crime. Once an arrest is made under this section of LEPRA, LEPRA mandates that the officer must promptly present that arrested person before an authorised officer. The concept of reasonable grounds is central to determining whether an arrest without a warrant is lawful. The test for reasonable grounds is an objective one, primarily, requiring the court to examine whether the facts and circumstances at hand would lead an ordinary person to reasonably suspect that an offence is occurring or has occurred. This standard isn’t met simply by a police officer’s subjective belief. It has to be based on tangible facts or evidence that would justify suspicion in the eyes of a reasonable observer. This requirement of an objective basis for reasonable grounds was clarified in McClean which underscored that the arresting officer’s subjective suspicion has to be supported by a set of objective facts that could justify that suspicion.

Reasonable grounds for arrest as defined under LEPRA involve specific criteria that have to be met to justify the necessity of an arrest, including the knowledge of the police officer at the time of the arrest, as Alex mentioned. In section 99(1)(b) LEPRA outlines that an arrest is justified only when it serves one of several outlined purposes, like preventing an ongoing offence or securing the individual’s appearance in court. That approach is reinforced by the exclusion of investigative purposes for the list of valid reasons for arrest, meaning that an officer can’t justify an arrest solely for the purpose of gathering information about an offence. 

The High Court in McClean emphasised that reasonable grounds must be based on a direct link between the officer’s suspicion and the objective facts observed, as opposed to an arrest motivated solely by the intent to question or investigate. The standard of reasonable grounds also excludes arbitrary or unsupported bases for suspicion. Generalised traits like appearing nervous, wearing particular types of clothing… Those are insufficient grounds for arrest unless additional context supports a reasonable suspicion that an offence has occurred or is likely to occur. 

In cases where an arrest is deemed unlawful due to a lack of reasonable grounds, then again, section 138 of the Evidence Act does provide a mechanism for challenging the admissibility of any evidence obtained during that arrest. Again, this principle was reinforced in the case of Carr, where the court highlighted that unlawful arrests compromised the integrity of the legal process and therefore evidence obtained in those circumstances might need to be excluded. Section 138 of the Evidence Act is a good reason why lawyers practicing in the criminal jurisdiction might want to know whether or not an arrest is lawful or unlawful, as we’ll be discussing later in the episode, because if an arrest constitutes an actionable, intentional tort of false imprisonment, then the search and the arrest are invalid and any evidence obtained in the course of those actions are potentially inadmissible.

If we start talking about self-defence, whether it’s statute or whether it’s common law self-defence, then we can start talking about whether there was criminal conduct prior to that. So if there is an allegation of a tort because something between the time period of the arrest and then taking them to a police station during that time has occurred, but that conduct then becomes serious, so if the plaintiff’s own conduct is serious, then we start talking about self defence. What was the police officer doing at that point in time? So the reasonable belief and the reasonable necessary to do what they did. So with the defence of self-defence, you have those two elements. With the defence of the lawful justification, you have, if I can put them, three elements, reasonable grounds, reasonably necessary, and then before the magistrate, put them before an authorised officer to be dealt with, which is the third element.

TIP: So Alex just mentioned the defence of self-defence. Other defences to trespass against the person include things like necessity, like a medical emergency, where a patient’s life is at risk and obtaining consent isn’t feasible, like the case of Hunter New England Area Health Service v A (2009) 74 NSWLR 88. And the other defence is consent, which we spoke about briefly at the start of the episode. 

In New South Wales, self-defence is also regulated by part 7 of the Civil Liability Act, which applies to civil liability for personal injuries, and that legislation limits damages for disproportionate acts of self-defence, stating that reasonable acts in response to unlawful conduct will not result in liability. In NSW v McMaster [2015] NSWCA 228, the court upheld the availability of self-defence in civil cases, noting that it applies if the defendant has reasonably believed that their actions were necessary to protect themselves or protect another person. Although the defendant’s specific reaction to the threat is a relevant consideration, it’s not the sole deciding factor. The court also clarified that the term “unlawful “in section 52 of the Civil Liability Act includes tortious conduct, not just criminal conduct, meaning that this section can serve as a defence against liability for actions taken in self-defence in response to a tort. 

Regarding consent, if a person consents to an interference or an injury, it’s not considered wrongful. The burden is on the defendant to raise and prove the defence of consent, of course, but if consent is established, then claims in tort for assault, battery, or false imprisonment will not succeed.

If you’ve got someone, for example, who was walking towards you with an iron bar, then proportionate response to that might be, well, I need to push them away if they’re coming at me.

TIP: So Alex just mentioned that for a claim of malicious prosecution, a plaintiff has to prove that, one, proceedings concluded in their favour, and two, that those proceedings were initiated without reasonable or probable cause, and with malice. The concept of malice centres on whether the prosecution acted with an improper motive, or for an ulterior purpose beyond mere duty. 

In Beckett v New South Wales, that’s a High Court case, the High Court clarified that plaintiffs don’t need to prove innocence, rather it suffices to show that the case concluded without a judicial finding of guilt. This allows plaintiffs to claim malicious prosecution without needing to re-litigate their innocence if the prosecution was dropped, for example, or some other similar circumstance. 

Malice itself requires more than just a flawed or erroneous prosecution. For example, in Wood v State of New South Wales [2018] NSWSC 1247, Gordon Wood claimed that his murder prosecution lacked reasonable grounds and was motivated by malice, citing failures by the Crown Prosecutor and expert witnesses but the court found that despite serious errors and unfairness, the prosecutor’s actions were not driven by malice or a personal agenda, but were rather an unfortunate misjudgment.

Similarly, in HD v State of New South Wales [2016] NSWCA 85 despite police charging a father with assault after his daughter retracted her allegations, the court held that there was no malice, as the officers were fulfilling public duties and acted on an honest belief in the evidence’s credibility. So malice requires proof of improper motives, not merely professional mistakes or inadequate judgement. 

One example of a high profile case of malicious prosecution was the case of Bill Spedding. In early 2015, Mr. Spedding was wrongly identified by NSW Police as the prime suspect in the disappearance of 3 year old William Tyrell. Despite having an alibi for the disappearance of William Tyrell, police failed to properly investigate his account and continued to pursue him as a prime suspect. In April 2015, Mr. Spedding was charged by police with serious sexual offences against two children allegedly committed in the 1980s, and it’s alleged that police knew these allegations were unfounded. Following a highly publicised arrest, Mr. Spedding was remanded in custody for two months before being granted bail by the Supreme Court of New South Wales. Throughout his prosecution, Mr. Spedding endured intense media coverage, portraying him as a pedophile, a child abductor and a murderer. In March 2018, he was acquitted of all of those charges. 

In 2019, Mr. Spedding sued New South Wales police for malicious prosecution, claiming that the prosecution had been maliciously initiated and sustained. He argued that there had been no proper investigation into the historical sex offences that he was charged with in 2015, and that the police had withheld evidence of his innocence of those offences. The charges, he contended, were used as a tactic to pressure him further in their investigation into William Tyrell’s disappearance. 

Mr. Spedding won that case and was awarded $1.5 million in damages. The state of New South Wales appealed that decision and lost. The New South Wales Court of Appeal determined that the charges against Mr. Spedding represented the worst case of malicious prosecution demonstrated in New South Wales. 

At first instance, Justice Ian Harrison concluded that the prosecutors had acted with malice in pursuing charges that had already been thoroughly investigated and dismissed in a civil court case during the 1980s. Now as I just said, the state did appeal this decision on both liability and on quantum of damages, but the court rejected the appeal, upholding Justice Harrison’s decision at first instance. The court stated that the “high handed, self serving, grandstanding” actions of the police in arresting, charging, opposing bail, and maintaining the prosecution against Mr. Spedding had no comparable cases in New South Wales.

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