Thompson v Vincent [2005] NSWCA 219 (30 June 2005)

CITATION: THOMPSON v VINCENT [2005] NSWCA 219

FILE NUMBER(S):

40440/03

40441/03

HEARING DATE(S): 15, 16, 17 March 2005

JUDGMENT DATE: 30/06/2005

PARTIES:

Barbara Morag THOMPSON v Senior Constable Andrew VINCENT & Ors

Ronald Lance THOMPSON v Senior Constable Andrew VINCENT & Ors

JUDGMENT OF: Mason P Handley JA Pearlman AJA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 163/01, 83/01

LOWER COURT JUDICIAL OFFICER: Twigg DCJ

COUNSEL:

Appellant: A B Shand QC/ B Kensella/ M McCall

Respondents: J Maconachie QC/ P Sternberg

SOLICITORS:

Appellant: James Fuggles Solicitors

Respondent: I V Knight, Crown Solicitor

CATCHWORDS:

TRESPASS - trespass to land - trespass to goods - lien agreement - dispute over amount of debt - seizure of chattels - police in attendance - police duty to prevent a breach of the peace - non-interference in a civil dispute - trespass by arresting police officers - invitation of police onto premises - implied licence to enter - aiding and abetting acts of trespass - negligent failure to prevent a breach of the peace - ASSAULT - common assault - assault occasioning actual bodily harm - lawfulness of arrest - s352 Crimes Act 1900 - legislative history of s352 - interpretation of ss352(1)(b) and s352(2)(a) - reasonable suspicion - occupier's right to protect property - serious indictable offence - notification of grounds of arrest - false imprisonment - dismissal of assault charge - malicious prosecution - exclusion of evidence. NEGLIGENCE - performance of police duties - whether duty of care to prevent breach of the peace (D)

LEGISLATION CITED:

Crimes Act 1900, s352

Crimes (Amendment) Act 1924

Law Reform (Miscellaneous Provisions) Act 1983

Crimes Legislation Amendment (Sentencing) Act 1999

Fleming on Torts, 9th ed

DECISION:

Appeal dismissed with costs

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40440 of 2003

CA 40441 of 2003

MASON P

HANDLEY JA

PEARLMAN AJA

Thursday 30 June 2005

Barbara Morag THOMPSON v Senior Constable Andrew VINCENT & Ors

Ronald Lance THOMPSON v Senior Constable Andrew VINCENT & Ors

JUDGMENT

1 MASON P: The appellants were the joint owners and occupiers of premises at 25 Acacia Street, Byron Bay. There is a residence, a factory building and a yard, much of which was used for storing partly-built boats, trailers and building equipment. There was no fence to impede entry from the street, although the words “PRIVATE PROPERTY” were painted on the concrete driveway that led from the footpath up to the entrances of the residence and factory building.

2 Separate claims brought by each appellant against the six respondents were tried together in the District Court, resulting in verdicts for the defendants with costs. By leave previously granted each appellant appeals against these orders. The respondents have filed defensive cross-appeals that challenge the assessment of exemplary damages made contingently by the trial judge against the possibility that he was wrong in entering verdicts for the defendants.

3 The first to fifth respondents were members of the New South Wales Police Service stationed at Byron Bay at the time of the events in question. They are Senior Constables Vincent, McDonald, Rann, Parish and Inspector Fitzsimmons. The sixth respondent (the State) was sued on the undisputed basis that it would have been vicariously liable pursuant to the Law Reform (Miscellaneous Provisions) Act 1983 for any tortious conduct of the police officers in the circumstances.

4 The appellants claimed damages for trespass to land, trespass to goods and, in the case of Mr Thompson, for assault, false imprisonment and malicious prosecution. Not every police officer is said to be liable for each tort and in many cases liability is said to stem from assistance allegedly given by the police to a third party, Mr Lindsay McLeod (McLeod).

5 The claims relate to a serious of incidents on the afternoon of Wednesday 9 February 2000 when McLeod removed his goods from the premises. Some of those goods were subject to a lien or pledge in Mr Thompson’s favour. There was a dispute between the two men as to the amount of the debt and as to McLeod’s right to come onto the property and remove his goods prior to payment of the full amount as agreed by Thompson.

6 The police were unwilling to become involved in what they viewed as a civil dispute. But because they perceived the imminence of a breach of the peace, officers were present as observers at or near the property for most of the afternoon. During some of this time McLeod removed his property with the assistance of two associates, Dorner and Bramwell. There was however no police presence between about 2.50pm and 3.25pm and it was during this interval that matters flared between Thompson and McLeod. The police were called back in response to McLeod’s allegation that he had been struck with an iron pipe. Mr Thompson was arrested and removed from the site. The validity of that arrest is in dispute and the claims of assault, false imprisonment and malicious prosecution turn on that issue.

7 There is considerable disagreement as to the issues fought at trial. It will therefore be necessary to examine in detail the pleadings, particulars and submissions in the court below.

Earlier dealings between the Thompsons and McLeod

8 It is appropriate first to set out what is known as to the business relationship between Mr Thompson and McLeod. I do not imply that this information was known to the individual police officers on the day in question.

9 In February 1999 McLeod brought various chattels onto the site, including a steel gantry and personal effects kept in a large container, various lengths of metal and timber, a lathe, a welder, engineering hand tools and various personal effects (Blue 148). McLeod was going to do some work with Mr Thompson on a project which later fell through. All of the goods (with the exception of the lathe) were placed in the open portion at the rear of the premises. He lived in the shipping container which was also fitted out as an engineering workshop. He supplied and erected a wire mesh fence enclosing the rear of the yard, apparently to keep his dog from escaping.

10 McLeod borrowed money from Mr Thompson that he was unable to repay. There was an argument on site over ownership of some of the items of property on 16 June 1999.

11 The dispute was apparently settled on terms recorded in a one page typed Agreement, prepared by Mr Thompson (Blue 36, 148-9). The Agreement was signed by Mr Thompson and McLeod on 16 June 1999. Mr Thompson purported to bind himself, his wife, a Mr Horsley and two companies in which he apparently had an interest. These five persons were compendiously referred to as “Thompson” in the Agreement. Mr McLeod purported to bind himself and two companies, those three persons being compendiously described as “McLeod” in the Agreement.

12 The Agreement acknowledged “an indebtedness by McLeod to Thompson which relates to several and various matters prior to this date”. It recorded an agreement to settle all matters “by the payment of one sum from McLeod to Thompson”. The “settlement amount” was to be paid on or before 16 June 2000 in the sum of $5,911.40 with interest accruing at 8% per annum until payment. Payment of this sum would be “full and final settlement of the indebtedness and any other matters that have gone before this date”. The Agreement further stated:

It is also agreed that Thompson will retain a lien over the items mentioned in this document as security against payment of the indebitness (sic). These items are agreed as being the property of McLeod and are being held by Thompson solely for security purposes only and therefore shall not incur any additional charges such as rental or other fees. Thompson agrees to maintain all of these items in good condition and to not cause or allow to be caused either by direct action or neglect anything that causes a deterioration or devaluation of those assets. Those items include but are not limited to the following:

• All those items secured within the 40ft-shipping container.

• One propeller copy lathe and all associated patterns, jigs and accessories.

• One steel gantry assembly, approx 5.5 metres clearance x 5 metres internal width.

• One TIG welder, Kempi AC/DC 250 complete with all accessories.

• Two double purchase chain blocks, matching pair.

13 This Agreement did not end the bad blood between the two men. McLeod wrote an angry letter to Mr Thompson the very next day (Blue 23). A police “COPS” record contains an entry for 19 June 1999 when McLeod reported “a dispute” with Thompson. The record continues:

Police attended Thompson’s residence and spoke to both parties. Both parties were advised that the matter was civil and police could not be involved. The dispute involves a shipping container full of McLeod’s property which is on Thompson’s land.

14 McLeod subsequently made various attempts to pay what was owing and to retrieve his property. These were unsuccessful.

15 One aspect of the continuing dispute was Thompson’s claim for more money than that agreed to be paid in “full and final settlement” by the said Agreement. By January 2000 Thompson was asserting that McLeod also owed him $904.51 for an outstanding telephone bill apparently pre-dating the Agreement.

16 On 31 January 2000 Mr Thompson wrote a letter to McLeod that contained the following:

Conditions of Settlement

1. Due to your past and present conduct, neither you or your agents are permitted to enter my property, under any circumstances, without my written permission. Any attempt to do so will be considered trespassing.

2. You are to remit payment for $7,112-61 by bank cheque and certified mail to my address above.

3. You are to return my trailer, loaned to you for transporting the Hoverflyer.

4. When the funds have been cleared through my account, I will arrange crane lifts to move the container to the boundary of 4 Acacia Street Byron Bay, where you will pay the crane operator and take delivery. This process will be at your risk. I will take all duty of care, but no responsibility.

I have no intention of wasting any further time or resources on you or this issue. If you are genuine in your intent to repay your debt, then do so without further posturing.

17 There was no evidence that the police were aware of the terms of this letter.

McLeod arranges to tender the agreed sum and remove his goods

18 McLeod subsequently approached a chamber magistrate and a solicitor and obtained certain advice as to his rights.

19 According to Senior Constable Rann’s COPS record:

On 27/1/2000, Ross McLEOD attended Byron Bay Police Station seeking advice as to how he could recover his property from Ron THOMPSON. He stated that the property was originally retained by THOMPSON as he owed THOMPSON an amount of money from a loan. McLEOD and THOMPSON signed an agreement in which THOMPSON was permitted to retain a shipping container with McLEODS belongings until he paid the outstanding debt, which was to be paid by 16/6/2000.

McLEOD has attempted to contact THOMPSON and come to agreements over checking on the property and finalising the matter, however he has been met with hostile behaviour and threats of Police action for trespassing by THOMPSON. McLEOD this date sought advice from the Chamber Magistrate, Mr FLEMING, solicitor Richard MALONEY and Bryon Bay Detectives. McLEOD will now make arrangements for a bank cheque in the full amount of outstanding monies owed to THOMPSON, a truck and crane to move the equipment and will notify Police when this is arranged.

McLEOD requires Police to attend THOMPSON’s premises with him to ensure there is no breach of the peace. He will contact Police when the time/date is definite.

20 On the morning of 9 February 2000 McLeod set off from Queensland to pick up his property. His evidence, as accepted by the trial judge, was that he went to the appellants’ premises to get his property back and to pay the amount owing as per the Agreement. He had a bank cheque for $6216 which he believed represented the contract sum (including interest). He expected to find Mr Thompson at home and, because he also expected trouble, he wanted the police to be in attendance. He was accompanied by two friends, Dorner and Bramwell, and he had arranged for a crane driver and truck driver to be in attendance.

21 McLeod first went to the Police Station at Byron Bay at about 1.30pm. He told Senior Constable Rann that he was going to the premises to recover his property (Blue 107) and requested a police presence while he did so (Blue 192). He showed Senior Constable Rann a bank cheque, asking her to take the cheque and give it to Mr Thompson. She declined this request, informing McLeod that the police would only be present to prevent a breach of the peace (Blue 161).

22 Senior Constables Vincent and McDonald were “working [the police] truck on that day”. Senior Constable Rann informed them of the situation and asked them to attend the premises “to prevent any breach of the peace” (Blue 161).

23 McLeod went up to the front door of the residence accompanied by the two police officers. Unexpectedly, no one was at home. McLeod telephoned Mr Thompson on his mobile phone and ascertained that Mr and Mrs Thompson were in Currumbin at the time. This is approximately 90 kilometres from Byron Bay. Thompson told McLeod that he would be there shortly.

24 At about 2.15pm Mr Thompson rang the Bryon Bay Police Station and spoke to Senior Constable Rann. He told her that McLeod was trespassing upon his premises and asked the police to remove him. Rann told him that the police were already at the scene, that it was a civil matter, and that the police were only present to prevent any breach of the peace.

25 At about 2.30pm or a little later, Senior Constables Rann, Parish and Wilson went to the premises for a short time, remaining in the police car. Their purpose was to check up on McDonald and Vincent. At that stage there was a crane in the driveway waiting to remove the shipping container at the back (Blue 153, 161). The evidence is conflicting as to whether dismantling of the gantry was observed by the police. The trial judge’s findings in favour of the police in this regard were challenged in the appeal.

26 Officers Vincent and McDonald waited around on or near the premises until about 2.50pm when they were called away to other police business.

Things get nasty in the absence of the police

27 The police were absent from the premises between about 2.50pm and 3.25pm. Mr and Mrs Thompson returned home at about 3.00pm and they found McLeod and his associates on their land, already having dismantled and taken away the steel gantry.

28 Mr Thompson called upon McLeod to stop and to depart. McLeod continued removing his property. Angry words and threats from Mr Thompson are recorded in a video taken by Mrs Thompson. There is a transcript of the conversation recorded in the video (Blue 45). It includes the following:

McLeod Now, I’m cutting up my wire fence

R Thompson You’re not cutting up your wire fence

R Thompson I’ve been attacked by two people. Breaking and entering

R Thompson Margo...

McLeod If you hit

R Thompson If you I’ll break your fucking arm. I’ll tell you... if you come in to my property I’ll break your arm

R Thompson The police are coming, go out on the footpath. I mean it...

McLeod ... if you strike me..

McLeod I’m here for a lawful purpose

R Thompson You’re not here for lawful anything Ross, the transaction hasn’t been done

McLeod I have got the money to pay you

R Thompson Alright, go off the block and prove it to me

R Thompson Go on the block, when the police get there and we’ll prove it

McLeod Here’s a bank cheque

R Thompson How much is it.. Sorry, wrong amount, as you well know

R Thompson Not according to my last letter, it’s seven..can’t you read

McLeod Can’t you add up

McLeod Don’t you hit me with that..boy..

R Thompson I will and once...

McLeod I will be forced...

R Thompson You are.. you are coming on my property..I am defending myself

R Thompson Margo...Margo come and do this video..come and do this video Margo, please, if he comes across here, I have to defend myself, he made a threat against me

McLeod Did you see, he has already struck me once

M Thompson Don’t do it, Ronald

R Thompson I’m going to do it, I’m defending my property, Ross

Dorner You’re not allowed to defend yourself with undue force

R Thompson OK, this is not undue force, if he touches that (indicating the fence) that’s bad luck

R Thompson I’ll take my chances in court, pal, you’re not a lawyer..you’re trespassing.

29 This portion of the video corroborates the evidence that McLeod wanted to tender money that Mr Thompson regarded as insufficient to discharge the debt. It also shows Thompson threatening to hit McLeod in purported defence of property rights and McLeod asserting that he had already been hit once. It also reveals imminent if not actual breaches of the peace. The video and transcript do not cover the whole of the conversation and therefore do not disprove battery, let alone assault (leaving aside issues of claim of right on both sides).

30 At some time between 3.00pm and 3.25pm, apparently after the scenes recorded on the video but in the absence of the police, there was the incident that resulted in Mr Thompson later being arrested and charged.

31 Prior to the assault incident McLeod had used wire cutters to cut a wire fence dividing off part of the appellants’ property. The fence was cut to clear the way for the crane which was to take away the container. The respondents referred this Court to apparently unchallenged evidence to the effect that the chain mail wire fence had been erected by McLeod to contain his dog when he was living on site. McLeod’s claim that the fence was and remained his property does not seem to have been put in issue at trial (Black 439, 520, 522).

32 In this Court the appellants accepted that it was not proved that police officers were present when the fence was cut (CA Tr p16).

33 It seems not to be in dispute that Mr Thompson threatened McLeod with an iron pipe or bar. He did so in support of his claimed entitlement to defend his premises and exclude a trespasser. It has never been disputed that this conduct would constitute a common assault, subject to issues as to proportionate defence of property rights that could no doubt be raised as between McLeod and Thompson and in defence of any criminal proceedings against Thompson. Where the evidentiary and persuasive onus would lie in such disputes are interesting questions that were never explored.

34 However, the appellants did not press their claim against the police on any such basis. Neither in the District Court nor in this Court was any attention directed by the appellants’ counsel to the law in relation to bailment, tender of payment or recapture of goods previously left on another’s land. These issues, suitable for a torts exam paper, were certainly not the concern of the police officers who observed various aspects of the drama.

35 Senior counsel for the appellants was critical of the police for their passivity. At times he made generalised submissions to the effect that the police knew or ought to have known that McLeod was the trespasser and/or that Mr Thompson was justified in any assault he committed. These submissions could not be addressed without grappling with principles of some nicety concerning the law of bailment and trespass to land.

36 But this was not the way the case was run at trial, nor was it the way that the police were cross-examined (to the limited extent that they were) to show that they were complicit in the alleged torts of McLeod. As I shall demonstrate, the case that was run at trial did not descend into these niceties. The central allegation was that the police had misconducted themselves by deliberately siding with McLeod in a conspiracy to ride rough-shod over the Thompsons’ legal rights.

37 Mr Thompson conceded at trial that he had used the iron bar and that he had caused fear and apprehension in McLeod. He also agreed that he had thrown a beer barrel in McLeod’s direction.

38 Judge Twigg found that McLeod was actually struck with the bar and that he suffered (minor) injury on the left wrist. This was denied by Mr Thompson in his evidence. But there was evidence to the contrary from McLeod. The McLeod version was also supported by evidence of his early complaint to the police, by statements of Dorner and Bramwell that got into evidence and by the evidence of a doctor who examined McLeod’s injured hand two weeks later.

39 The question whether the putative assault caused actual injury was explored in detail at the trial. Discrepancies are said by the appellants to emerge from differing descriptions in the police accounts as to the location of the wrist injury they observed and as to whether or not McLeod’s watch was damaged as he contended. These matters were resolved adversely to Mr Thompson at the trial. I am unpersuaded that this Court is justified in overturning the trial judge’s conclusions on the particular matters given that they were open on the evidence and based upon a favourable assessment of the credibility of witnesses. The issue would be critical if the police could rely on nothing but s352(1)(b) of the Crimes Act 1900 to justify Thompson’s arrest. It is not necessary to do so, for reasons indicated below.

Mr Thompson is arrested

40 McLeod rang the police station and said that he had been assaulted by Thompson. Senior Constables Vincent and McDonald were dispatched, arriving at about 3.25pm.

41 Messrs Thompson and McLeod were standing on the front driveway. McLeod approached the officers and pointed to his left wrist which was, in McDonald’s words, “red and swollen” (Blue 128). Vincent also saw swelling and a red mark (Black 282, 333). McLeod told him that he had just been assaulted by Thompson, stating “the little prick has just hurt me” (Black 443). Senior Constable Vincent spoke to Dorner and was told that McLeod had been struck (Black 315).

42 McDonald then spoke to Mr Thompson, who said “these people are trespassing and I want them removed” (Black 244). It is significant that Thompson did not at that stage object to the police being on his land. McDonald then told Thompson “you are under arrest for assault” and gave him the customary caution. At that stage Thompson ran into his residence. He picked up a telephone, wishing to phone his solicitor. McDonald took hold of him by the arm, told him again that he was under arrest, and handcuffed him. He was led out to the police vehicle parked in the street and subsequently conveyed to Byron Bay Police Station where at about 5.15pm he was charged with common assault.

43 Mr Thompson was taken away at about 3.35pm. Senior Constables Rann and Parish came to the premises at about the same time. Mrs Thompson asked Rann to stop McLeod trespassing. Rann told her “we aren’t here to deal with the trespassing, only because of the breach of the peace”. Mrs Thompson remonstrated: “He [McLeod] is cutting the fence”.

44 There was some discussion about the ownership of the fence wire and reference to the Agreement and the lien. Senior Constable Rann indicated in effect that she would maintain a non-interventionist stance. At Mrs Thompson’s request, the officer entered the residence and spoke by telephone to the appellants’ solicitor Mr Lamond. She informed him that “it was a civil matter” and that “the police were there only to prevent a breach of the peace” (Blue 162).

McLeod removes the balance of his goods

45 McLeod continued to remove his property. At one stage, Mr Thompson’s tray-back truck had to be moved in order to obtain access to some of the goods. McLeod requested the keys of Mrs Thompson, but she declined. McLeod thereupon pushed the truck out of the way (Blue 162).

46 During this conversation Senior Constable Rann told Mrs Thompson, according to the officer’s statement, that “McLeod has shown us an ANZ cheque, which he has said we can hold for you, but I refused and told him it wasn’t our job”. Mrs Thompson’s version of the conversation indicates that differing views were expressed as to the effect of the Agreement and as to McLeod’s right to do what he was doing. What is clear is that Mrs Thompson was no more willing than her husband to accept the proffered money.

47 At about this time McLeod told Rann that there was a lathe of his inside “the shed” which he could see through the window. Rann informed him that he had no right to touch anything that did not belong to him and not to break and enter any buildings on the property. This is the prime instance of “assistance” now relied upon by the appellants as making the police joint tortfeasors in McLeod’s alleged trespasses during the afternoon (AS §§17-18).

48 According to a statement of Inspector Fitzsimmons, Mr Thompson told him (later in the afternoon) that “he did not want McLeod in his premises, if he had the container okay, but he was not to get a lathe which was in his shed because it was subject to a liquidation. I told him we would not let him into his property”.

49 Inspector Fitzsimmons arrived on the scene shortly before 4.30pm. He had been briefed as to the arrest of Mr Thompson on the basis of having assaulted a male person on his property with an iron bar (Blue 145). As he arrived a crane was lifting a container onto a truck. Mrs Thompson invited him into the residence at about 4.40pm.

50 After everything but the lathe had been removed, Fitzsimmons, Rann and McLeod went to the front door of the premises where McLeod presented the cheque for $6,216 to Mrs Thompson. She declined to take it (Black 344), stating that this was the incorrect amount, mentioning (on Fitzsimmons’ recollection) $7,000 odd as the proper sum (Black 344-5, Red 33).

51 After the cheque had been tendered and refused the three officers waited on the footpath (Black 389). Inspector Fitzsimmons said that he was not there to determine whether what McLeod was doing was within the law (obviously referring to the civil law), although he believed that it was within the law. It was Fitzsimmons’ belief that McLeod had a right to be on the appellants’ property.

52 Before the police officers departed Mrs Thompson handed Inspector Fitzsimmons a letter addressed to Senior Constable Rann that she had received by fax from her solicitor (Blue 38, 153). The letter emphasised the “civil” nature of the dispute and requested the police to advise McLeod to leave the property and follow appropriate civil procedures.

The criminal proceedings against Mr Thompson are dismissed

53 The assault charge later went to trial at the Local Court in at Byron Bay. It was dismissed, not on the merits, but because the police witnesses were five minutes late for court (Black 186).

Claims litigated at trial

54 Mr and Mrs Thompson commenced separate proceedings in the District Court. There were minor differences in the respective pleadings. Each plaintiff sued for trespass to land and for one instance of trespass to goods based on aiding and abetting McLeod to “steal” a gantry. Mr Thompson also sued for assault, false imprisonment and malicious prosecution.

55 There is no pleaded allegation of trespass as regards the initial entry of McLeod, McDonald and Vincent at about 1.30pm. This alone is a sufficient reason to disregard the issues that were debated in this Court about that topic. [In any event, the police officers were entitled to go up to the front door of the residence in McLeod’s company given the layout of the property and the particular officers’ ignorance of any unconditional prohibition on entry. It is not necessary to debate whether or not McLeod had a similar entitlement.]

56 The plaintiffs pleaded that the entry of McDonald and Vincent to arrest Mr Thompson at about 3.30pm was trespassory. Mr Thompson’s pleading also included a particular referring to the incident when he was followed into the residence as he attempted to phone his solicitor after the initial arrest.

57 The issue as to trespass to land at about 3.30pm is best addressed in the context of the related claims by Mr Thompson that he was the victim of the torts of assault and false imprisonment due to the arrest.

58 For hard fought litigation in which each side was represented at trial by very senior counsel (Mr Shand QC for the plaintiffs and Mr McAlary QC for the defendants) the pleadings were deficient at several points. The distinction between material facts and particulars was elided; there were unexplained disconformities between the two statements of claim; one of the causes of action was framed in terms of intentional or negligent aiding and abetting; and the defendants did not squarely assume the burden that was theirs, to justify the arrest of Mr Thompson.

59 Each statement of claim pleaded that Vincent and McDonald “by their conduct either intentionally or negligently aided and abetted one Lindsay Ross McLeod to steal one steel gantry frame the property of the Plaintiff”. It does not appear that this cause of action was persisted with at trial. Lest I be wrong in thinking that its rejection by the trial judge is unchallenged in this Court, I would add that there was no attempt to put such a serious allegation to Mr McLeod in cross-examination. I have indicated already that there was a great deal of material showing that he acted under a claim of right.

60 Mr Thompson also pleaded against Vincent and McDonald that:

By their conduct either intentionally or negligently [they] aided and abetted one Lindsay Ross McLeod to remove certain property from the Plaintiffs’ premises which was subject to a lien to secure a debt owed by the said McLeod to the Plaintiff and in consequence the Plaintiff has suffered loss and damage (par 7).

61 Particulars of this allegation were that Vincent and McDonald aided and abetted McLeod to remove the property from the premises:

... by their presence, condoning and allowing the actions of McLeod and others who were trespassing on our client’s property, stealing our client’s property and committing malicious damage to the plaintiff’s property.

62 It may be observed that these particulars reveal that it was the plaintiffs who chose to make the complicity allegations against the officers appurtenant to the allegations against McLeod of trespass, theft and malicious damage.

63 In addition, each plaintiff alleged entry and trespass on the premises by Rann, Parish and Fitzsimmons between about 3.45pm and 5.30pm. Identical Particulars appear in the respective pleadings, namely:

(i) The Third and Fourth Defendants entered upon the property on or about 3.45pm on 9 February 2000, and proceeded to assist, allow and/or facilitate one Lindsay Ross McLeod and others to unlawfully remove certain property from the Plaintiff’s premises.

(ii) The Third and Fourth Defendants refused the request of the Plaintiff’s wife to prevent the said McLeod and others removing certain property from the premises and interfering with the property owned by the Plaintiff;

(iii) Subsequently the Fifth Defendant also entered the said premise without lawful excuse and assisted, allowed and/or facilitated the said McLeod and others to remove property unlawfully from the Plaintiff’s premises.

64 The defendants sought and obtained further and better particulars of these allegations (Blue 67ff). The plaintiffs were asked how they alleged that the police officers “assisted, allowed and/or facilitated” the removal of the property. The answers were that they had done so by allowing McLeod and his associates to continue their activities, by condoning Mr Thompson being in custody despite information provided by Mrs Thompson and by failing to remove McLeod and prevent the others removing property from the premises (Blue 78, 79, 91).

65 I observe that some of the “property” referred to in the particulars was undoubtedly McLeod’s. True, his right to retake it by force was in issue, but that issue necessarily had to grapple with the textbook tort issues that the appellant’s senior counsel declined to address in this Court and below.

66 Mr Thompson pleaded that Senior Constable McDonald was liable for malicious prosecution in proffering the assault charges.

67 The allegation that police officers became joint tortfeasors with the putatively trespassing McLeod by passive conduct raises legal and factual issues that are addressed below. Their resolution is hampered by the minimalist exploration of the true issues surrounding the question whether and to what extent McLeod was himself a trespasser qua the land and/or the goods that he removed.

68 There is an additional difficulty stemming from the way that the trial was fought. As indicated elsewhere, it is clear that the primary allegation made against the police officers, one that would undoubtedly have made them joint tortfeasors, was that they jointly or singly assisted McLeod knowing or at least being recklessly indifferent to the fact that he was the tortfeasor on the afternoon in question. The officers were acquitted of having had any such state of mind. It is very unclear that any more innocent version of the joint tort allegation was maintained at the hearing.

69 The parties provided this Court with page references to the cross-examination of the police officers directed at the issue of “joint enterprise”, ie the conduct that made the officers complicit in McLeod’s trespasses. These show the limited case that was put to Senior Constables McDonald and Vincent and the very limited, if not non-existent case, that was put to the other three officers.

70 McDonald knew nothing about the Thompson/McLeod relationship before he went to the premises the first time at about 1.30pm on 9 February. McLeod told him that he proposed to knock on the front door, pay the appellants a bank cheque and collect his property (Black 170). McDonald swore that he believed that McLeod had a lawful right to do this. He was challenged about the basis for such a belief but, so far as I am aware, it was not put to him that he did not truly hold it. McDonald adhered to the position that he viewed the matter “as a civil dispute and not one that should be controlled or entered into by the police” (Black 175). He was there to prevent breach of the peace (see also Black 231). McDonald denied assisting anyone to remove property (Black 165) and he said that he did not see McLeod and his associates begin to dismantle the gantry in the driveway of the premises (Black 224). McLeod gave evidence to similar effect (Black 515).

71 At Black 246, senior counsel for the plaintiffs asked McDonald whether he would have regarded the act of McLeod taking down any fence as being a trespass. When the question was objected to by Mr McAlary Mr Shand said “this all goes to the question of intent in this matter, and intent seems to be being overlooked”. Mr Shand then explained the matter he was putting in the following terms:

What we put, to summarise it very shortly, is that the intent of these police officers was clear throughout, it was to aid McLeod in a process of behaviour quite contrary to the law, ignoring the rights of this plaintiff regardless as to what the law said should not happen. It’s the joint tort situation. What we propose to put is that this witness and others involved, members of the police force as well of course McLeod, were engaged in a contract to ride rough shod over the rights of Mr Thompson, regardless as to what the law was. Now that is what this goes to, and that is what the joint tort, in effect a conspiracy, which it was, amounts to.

What was in this man’s mind, this witness’ mind, is most important to that. I want to demonstrate as a matter of sheer commonsense and reasonable reality, he adopted a position which couldn’t be sustainable to any person with a reasonable mind, and he was deliberately riding over the top of the plaintiffs’ rights to help a man who was seeking to have actions from the police which was quite outside his, that is McLeod’s, legal rights. And this man’s mental attitude, state of mind, is most important. That is what we say.

72 The particular question was disallowed, without reasons. Later it was put to Mr McDonald that his intent on 9 February “was to interfere with any attempt by Mr Thompson to assert his property rights, and to have McLeod and his companions removed from the land” (Black 261). McDonald denied this and adhered to his evidence that he was there to prevent a breach of the peace. He said that the only breach of the peace that occurred (to his knowledge) was during his absence: this was obviously a reference to the assault with an iron bar.

73 Senior Constable Vincent was asked in cross-examination whether he believed that McLeod had a right to go on the land. He said that he believed that there was a lawful reason for being on the unfenced portion of the land, in order to conduct a lawful business transaction (Black 279-280). He did not see any fence being cut. He later agreed with the proposition that he knew that, upon Mr Thompson being taken away under arrest, it would no longer be possible for the latter to resist the removal of the belongings from his property (Black 289). Nothing further was put to him to suggest that he had any knowledge, belief or intent that might have made him improperly complicit in McLeod’s putatively tortious activities.

74 Senior Constable Parish swore to her belief that McLeod had a business arrangement with Thompson and that he had a right to enter the property in relation to that business. This belief was based on information obtained from Senior Constable Rann (Black 612). She was at the property only to prevent a breach of the peace. She did not see the written Agreement until after 9 February 2000. It was put to Parish that she remained on the property for the purpose of making sure that McLeod managed to complete the removal of his belongings. She denied this, although she confirmed her belief that McLeod was entitled to claim his goods (Black 628).

75 Senior Constable Rann agreed that she had been approached by McLeod who gave her an outline of the dispute, with reference to the Agreement. She swore that she believed the matter was “civil” (Black 654). Rann said that she believed that McLeod had a legal right to collect his belongings, this belief being based on his intention to first pay the debt. She knew that McLeod intended to go on the land in an attempt to present the cheque, if necessary without prior permission (Black 672, 674). She had been shown the bank cheque that McLeod had ready “to present to Mr Thompson to acquit his debt” (Black 675). She denied that she had ever told McLeod that if he paid the money he owed he could go without permission onto the land and take his property (Black 674).

76 It was not put to Rann that she acted with intent to assist McLeod or that she did not hold the beliefs that she asserted.

77 Inspector Fitzsimmons had no knowledge of any previous visits by McLeod to the police station. He was asked to attend the scene, having been told that Rann and Parish were there to prevent a breach of the peace (Black 381). He understood from what McDonald had told him that “it was a civil matter”. McDonald had reported that a breach of the peace had occurred “because he arrested Mr Thompson for assaulting a man with an iron bar” (Black 382). The police presence was continued “to prevent any further breach of the peace” (Black 383). Inspector Fitzsimmons saw property being loaded onto a semi-trailer “which was obviously part of [a civil] dispute” (Black 384).

78 The general thrust of the evidence of all of the police officers was that they were at or near the premises in readiness to prevent a breach of the peace. They did not intend to take sides in what was viewed as a civil dispute between Thompson and McLeod. Senior Constable Rann, who seems to have been directing affairs until Inspector Fitzsimmons came on the scene late in the afternoon, was aware that McLeod had a bank cheque that he proposed to tender to Mr Thompson. She said that she did not expect that there would be trouble, no doubt in the context that there would be a police presence.

79 The police officers were determined not to get involved in the rights and wrongs of the property dispute. Thus, Rann declined McLeod’s request to hold and hand over the cheque.

80 In my view, it was well open to the trial judge to acquit the police of what was in effect (but not in form) an allegation of misfeasance in the exercise of their duties. Each officer swore that he or she attended for the purpose of preventing a breach of the peace. The likelihood of such a breach occurring was manifested by the dealings between Messrs Thompson and McLeod prior to 9 February 2000 and the events of the day itself.

81 Part of the appellant’s pleaded case was that McLeod himself was guilty of theft. Yet no such allegation was put to him in cross-examination. The allegation also ignores the material strongly indicative that McLeod had a genuine claim of right at the time. After all, he had been to a Chamber Magistrate and a solicitor, he told the police about his intentions in advance and he had a bank cheque for a sum calculated in accordance with the settlement Agreement.

82 On top of all this, the trial judge had the opportunity to observe the testimony of McLeod and the police witnesses.

Trial judge’s conclusions

83 The trial spanned several weeks.

84 In a reserved judgment, Judge Twigg QC observed that the plaintiffs’ basic complaint was that there was a conspiracy to do an unlawful act, namely assist McLeod in wrongfully entering the property and recovering goods to which he had no right.

85 The early part of the judgment contains general discussion as to the legal principles concerning conspiracy, breach of the peace, unlawful arrest, trespass and malicious prosecution.

86 Under the heading Credibility, the judge stated that it had not been shown that there was a concerted action in the manner alleged by the plaintiffs. His Honour indicated that he rejected the submission that McLeod was not a credible witness, adding that there was nothing in his evidence to suggest that there was a concerted action nor that any of the police defendants assisted him to remove his goods.

87 The critical facts were then outlined. His Honour noted, correctly in my view, that Mr Thompson’s phone call asking police to remove McLeod from his property contained an implicit invitation to go onto that property. His Honour also observed that when Senior Constable Rann entered the residence after Mr Thompson’s arrest she did so at the invitation of Mrs Thompson in order to speak to the appellants’ solicitor by phone. Otherwise the officer stood either in the street or the forecourt of the property, as did Senior Constable Parish. When Inspector Fitzsimmons arrived at the property at about 4.25pm he entered the residence at the request of Mrs Thompson.

88 His Honour then addressed the plaintiffs’ central submission that there were facts from which the Court could infer that there was a conspiracy between McLeod and the police to deliberately hinder Mr Thompson (and perhaps also his wife) at the site, to enable McLeod to remove his goods more easily. This unlawful agreement was said to extend to deliberately arresting Mr Thompson on a false, or at least unsustainable, charge of assault. The conspiracy alleged also extended to refusing to assist Mr Thompson in his endeavour to get police assistance against McLeod, the alleged trespasser.

89 His Honour was not satisfied that there was a conspiracy to do any of the things alleged. In support of this conclusion, he provided a detailed consideration of the credibility of the key witnesses (Red 25-28). His Honour formed the impression that each of the police witnesses were doing their best to tell the truth accurately. He accepted their evidence that they were present for the purpose of performing their duties of preventing a breach of the peace. He rejected the submission that he should find or infer that they were acting in performance of an agreement to assist McLeod in an unlawful trespass.

90 As to the arrest in particular, the judge found that there had been an assault by Mr Thompson that occasioned injury (see Red 26) and that officers McDonald and Vincent had reasonably believed that a “felony” had been committed. Specifically, he found that s352 of the Crimes Act authorised the arrest because the officers formed, on reasonable grounds, a belief that a serious offence had been committed which warranted police intervention (Red 30). Earlier in his reasons the judge had observed that the onus of proving that the police were justified in arresting Mr Thompson lay on the defendants (Red 18).

91 Accordingly there was no assault, false imprisonment or trespass on the part of the police officers.

92 His Honour further held that the Local Court proceedings had been properly instituted without malice. No inference of malice was to be drawn from the fact that the assault charge was dismissed without any evidence being offered.

93 His Honour observed that the pleadings had not alleged joint liability in the sense of all of the officers being party to a single conspiracy (Red 28). Rather, the statements of claim alleged individual liability against particular officers for participating in and/or aiding and abetting trespass to land or goods. He correctly observed that there had been no attempt in the cross-examination of the defence witnesses to prove a conspiracy or common design. The earlier review of the evidence of the defence witnesses acquitted each individually of tortious misconduct (see Red 26-7, 29, 30, 31).

The lawfulness of the arrest (Grounds 1-3)

94 So far as presently relevant s352 of the Crimes Act 1900 provides:

(1) Any constable or other person may without warrant apprehend,

(a) any person in the act of committing, or immediately after having committed, an offence punishable, whether by indictment, or on summary conviction, under any Act,

(b) any person who has committed a serious indictable offence for which the person has not been tried,

and take the person, and any property found upon the person, before an authorised Justice to be dealt with according to law.

(2) Any constable may without warrant apprehend,

(a) any person whom the constable, with reasonable cause, suspects of having committed any such offence,

(b) any person lying, or loitering, in any highway, yard, or other place during the night, whom the constable, with reasonable cause, suspects of being about to commit any serious indictable offence,

and take the person, and any property found upon the person, before an authorised Justice to be dealt with according to law.

....

95 Judge Twigg found the arrest justified because, in the belief of both McDonald and Vincent, reasonably held, “a felony had been committed”. [The reference to “felony” was an inconsequential misnomer because that word had been replaced with “serious indictable offence” as from 1 January 2000 in consequence of the commencement of the relevant Schedule of the Crimes Legislation Amendment (Sentencing) Act 1999 (see further below).]

96 The judge accepted McDonald’s evidence that he told Mr Thompson that he was “arrested for assault”. It was held appropriate for the police to handcuff Mr Thompson because he ran into the residence when he was in custody following his arrest.

97 These conclusions as to the lawfulness of the arrest are challenged by the appellants on several bases.

98 First, it is submitted that the arrest was unlawful because Senior Constable McDonald failed to recognise Mr Thompson’s right to protect his property from damage maliciously caused by McLeod and to resist the trespass upon the property by McLeod.

99 Alternatively, it was submitted that there was no power at common law to enter private land against the will of the occupier in circumstances such as the present and that there was no statutory authorisation that would make such entry lawful. In the absence of a warrant, the arrest was unjustified. Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635 at 647-8, Lippl v Haines (1989) 18 NSWLR 620 at 635 were cited.

100 Alternatively, the arrest was said to contravene the common law requirement that arrest without warrant of a person suspected of a misdemeanour was only permitted where an actual breach of the peace by an affray or by personal violence occurs and the offender is arrested while committing the misdemeanour or immediately after its commission. R v Marsden (1868) LR 1 CCR 131 and Halliday v Nevill [1984] HCA 80; (1984) 155 CLR 1 at 12 were cited.

101 Alternatively, the arrest was said to be unlawful because the offence of (common) assault for which Mr Thompson was arrested and subsequently charged pursuant to s61 of the Crimes Act 1900 carried a maximum penalty of two years imprisonment, which was not a “felony” in consequence of the abolition of that term. Nor was it a “serious indictable offence”, because that term means an indictable offence punishable by imprisonment for life or for a term of five years or more (Crimes Act, s4).

102 The appellants further submitted that the judge erred in finding that the arrest occurred “immediately after” the alleged offences (Ground 2). It was submitted that the finding was unsupported by the evidence, because the arresting officer arrived at the premises after the altercation between Thompson and McLeod had ceased.

103 It was also submitted that the Court should infer that the arrest was not carried out for a legitimate purpose, but for the purpose of removing Mr Thompson so that McLeod could continue removing his property unimpeded. I explain elsewhere why this submission is rejected on the facts.

104 Finally, the judge erred in describing the offence as a felony (Ground 3). This ground was conceded by the respondents, who argue that it was inconsequential. I have already indicated my agreement with the latter proposition.

105 There was much debate in this Court as to whether the arresting officer (McDonald) believed and had reason to believe, at the time of the offence, that Mr Thompson had committed the serious indictable offence of assault occasioning actual bodily harm (Crimes Act, s59: maximum penalty imprisonment for five years). The debate covered the credibility of McDonald’s evidence that he had been informed that McLeod had been struck with an iron bar and that he had observed injury to McLeod’s wrist and a broken wristwatch; the relevance of Mr Thompson having been informed no more than that he was “under arrest for assault” and the relevance of the fact that the offence later charged was that of common assault.

106 There was considerable evidence that McLeod was actually struck on the wrist. McLeod gave evidence to that effect, consistent with his early complaint. Dorner told McDonald that he saw McLeod being hit with an iron bar (Black 159). McDonald and Vincent swore that they each saw injury to McLeod’s wrist and a broken wristwatch (Blue 128, 131). Dr Law was a medical practitioner who examined McLeod on 23 February 2000 and saw a soft tissue injury to the left wrist consistent with the history of an assault by an iron bar that McLeod gave him (Black 705-7). The judge was entitled to accept this evidence, as he did (Red 26). There were some discrepancies and problems with the police evidence, but not such as to make the trial judge’s conclusion glaringly improbable. Accordingly, the arrest finds justification in s352(1)(b) because an assault occasioning injury actually occurred. The words of arrest were clear enough in their context to embrace whatever quality of “assault” had been committed in the very recent past (cf Christie v Leachinsky [1947] UKHL 2; [1947] AC 573 at 592-3). And the arrest was not rendered unlawful by reason of the fact that the lesser offence of (common) assault was later charged (RS §7).

107 I refrain from elaborating, because at the end of the day the debate about whether an assault was actually committed does not matter. There was also justification for the arrest in the reasonable suspicion of the officers that a common assault had occurred (s352(2)(a)). The words “such offence” in s352(2)(a) of the Crimes Act do not refer to “serious indictable offence” (formerly “felony”) in s352(1)(b). Rather, they refer to the expression “offence punishable, whether by indictment, or on summary conviction, under any Act” in s352(1)(a).

108 This conclusion emerges clearly from the legislative history.

109 When first enacted in 1900, s352 relevantly provided (emphasis added):

352 (1) Any constable or other person may without warrant apprehend,

(a) any person in the act of committing, or immediately after having committed, an offence punishable, whether by indictment, or on summary conviction, under any Act,

(b) any person who has committed a felony for which he has not been tried,

and take him, and any property found upon him, before a Justice to be dealt with according to law.

(2) Any constable may without warrant apprehend

(a) any person whom he, with reasonable cause, suspects of having committed any such crime,

(b) any person lying, or loitering, in any highway, yard, or other place during the night, whom he, with reasonable cause, suspects of being about to commit any felony,

and take him, and any property found upon him, before a Justice to be dealt with according to law....

110 This original provision was construed authoritatively in Nolan v Clifford [1904] HCA 15; (1904) 1 CLR 429. The High Court held that the term “any such crime” in s352(2)(a) meant only “felony”. Griffith CJ was unhappy with the conclusion as a matter of plain reading (see at 443-4, 447-8), but felt driven to it by reference to the common law and 19th century legislative history of the provision that became s352 in the Crimes Act 1900, legislation that described itself as a consolidating statute.

111 The Crimes (Amendment) Act 1924 inserted the words “offence or” immediately before “crime” in s352(2)(a). This amendment was obviously responsive to the decision in Nolan. It made it clear that the constable’s statutory power to arrest a suspect, with reasonable cause, extended to a person suspected of having committed offences extending beyond felonies and including statutory offences, whether punishable by indictment or summarily, as referred to in s352(1)(a).

112 The caselaw has recognised the broader scope of s352(2)(a) in consequence of the 1924 amendment (see Clarke v Bailey (1933) 33 SR(NSW) 303 at 309, Jobling v Blacktown Municipal Council [1969] 1 NSWR 129 at 133, 135, McIntosh v Webster (1980) 30 ACTR 19 at 25).

113 Schedule 3, Part 3 of the Crimes Legislation Amendment (Sentencing) Act 1999 contains a series of amendments abolishing penal servitude and the distinction between felony and misdemeanour. These amendments included the following with reference to s352;

[57] Section 352 Person in act of committing or having committed offence

Omit “felony” wherever occurring in section 352(1) and (2).

Insert instead “serious indictable offence”.

[58] Section 352(2)(a)

Omit “or crime”.

[59] Section 352(3)

Omit “misdemeanour, or an offence punishable as a misdemeanour,”.

Insert instead “minor indictable offence”.

[60] Section 352(4)

Omit “other than a charge of felony or misdemeanour or offence punishable as a misdemeanour”.

Insert instead “(other than a charge of an indictable offence)”.

114 The limited expressed purpose of these amendments confirms that the 1999 changes did not displace the by then settled interpretation of s352(2)(a) in the matter at hand.

115 It follows that Senior Constable McDonald had power to arrest without warrant if, with reasonable cause, he suspected Mr Thompson of having committed (common) assault. The trial judge accepted McDonald’s sworn evidence that he formed this view based upon what he had been told by McLeod and by Dorner, and by what he observed as to McLeod’s wrist and broken wrist watch.

116 If the power to arrest without warrant was duly engaged, it carried with it authority to enter the appellant’s property for that purpose (see below).

117 The appellants were critical of the judge’s finding that the arrest was made “immediately after” the assault (Red 31. Cf s352(1)(a)). It is unnecessary to address the detailed debate about whether this conclusion was factually correct, because it is not a prerequisite of the statutory power found in s352(1)(b) and (2)(a).

Did the police officers trespass? (Ground 4)

118 The appellants submitted that the judge erred in law in failing to find that the police defendants were trespassers upon the appellants’ land (a) before Mr Thompsons’ arrest; (b) at the time of the arrest and (c) after the arrest.

119 We were reminded that any unlicensed entry is a trespass and that mistake is no defence.

120 The submission rested, in part, upon the proposition that McLeod was an undoubted trespasser because of the terms of the letter of 31 January 2000. There were at least two difficulties with this approach: first, the police officers were not shown to have notice of the terms of that letter, assuming (which I doubt) it may be read as a categorical and unconditional refusal of any right of entry to McLeod; secondly, because McLeod’s status as a trespasser turned upon complex tort principles that the appellants did not wish to explore.

121 The contention that the police were trespassers did not rest entirely upon this uncertain base. The main submission was that the police had no entitlement to enter the land at any time during the afternoon. In particular, it was submitted that the facts did not engage the implied licence to enter unenclosed land that exists in various circumstances (see Halliday at 7). Nor could the officers point to any circumstances recognised at common law as justifying warrantless entry in the execution of police duty (Lippl, Plenty at 647-8).

122 This ground of appeal is not established.

123 When Officers Vincent and McDonald first entered the property shortly after 1.30pm, that entry was pursuant to the implied licence recognised in Lipman v Clendinnen [1932] HCA 24; (1932) 46 CLR 550 at 557-8 and Halliday at 6-8. These premises were not enclosed by a fence and gate. The ”Private Property” sign would have warned entrants that they were not in a public place, but would not have negated the usual licence to approach and knock at the doors of the commercial or residential buildings.

124 When it was discovered that the Thompsons were not home, the two officers waited either in the driveway/courtyard area of the appellants’ land or in the street (Black 234). Senior Constable McDonald said that he was waiting for Mr Thompson to arrive and concerned that there might be a breach of the peace at that stage.

125 The appellants had never pleaded that any entry by the police during this early period of the afternoon constituted a trespass. The pleading confined itself to allegation of trespass in aiding and abetting McLeod to remove property and to direct allegations of trespass by the police referable to the events of the arrest (see Red 3, 7-8). This alone disposes of the present issue. In any event, as indicated earlier, Mr Thompson’s phone call to Byron Bay shortly after he had learnt that McLeod had come to his premises was at the very least a request for a police presence to prevent a breach of the peace. There is no reason why such invitation should not be construed as a licence for the officers to stand where they did, in the open parts of the land such as the courtyard/driveway, while observing McLeod and awaiting the Thompsons’ arrival.

126 It was clearly pleaded that Senior Constables McDonald and Vincent had trespassed when they returned at about 3.25pm and arrested Mr Thompson, after obtaining confirmation of McLeod’s complaint that he had been struck with an iron bar.

127 The appellants submit that the officers’ right of entry without warrant at this point of time was conditional upon the lawfulness of the arrest. I have already concluded that the officers established that they were justified in the arrest.

128 The appellants contend that, even in that event, the entry onto the land was trespassory. None of the circumstances recognised by the common law as justifying entry in relation to a misdemeanour were engaged, so it was contended, and the common law principles were relevantly unaffected by s352 of the Crimes Act.

129 Assuming, as is likely, that the officers arrived at the scene with intent to arrest (perhaps subject to confirmation of McLeod’s complaint), there was as I have held statutory justification for such arrest. The police were responding promptly to a phone call from McLeod alleging that a crime and a breach of the peace had occurred. They approached the two protagonists in the open driveway of the premises. There was no question of knocking down the door of a dwelling house.

130 The notion of contemporaneity that the appellants invoke at various places is part of the common law principles restricting forced entry into a dwelling house (R v Marsden (1868) LR 1 CCR 131, Halliday at 12). It is part of s352(1)(a), but not part of some unexpressed qualification of the other positive rights conferred by s352. Mr Thompson’s initial arrest took place on his premises, but outside his home. When he broke away and rushed off into the house, the police were entitled to follow in hot pursuit and to recapture him. The trial focussed on the lawfulness of the first arrest. If anything, this was a concession in the appellants’ favour.

131 The appellants’ reliance on Lippl was also misplaced, because there was no forcible entry. Mr Thompson was undoubtedly on the land and, since he had invited entry, no issue of proper announcement beforehand arose. Subject to these presently irrelevant matters, Lippl confirms that if an officer is authorised by s352 to arrest without warrant, then it will be lawful to engage in conduct that would otherwise amount to trespass to land for that purpose.

132 Mr Thompson had summoned the police earlier in the afternoon. No doubt he expected or at least hoped that the police would side with him and either arrest McLeod or throw him and his henchmen off the land. But it would be completely unrealistic to construe the express licence to enter as conditional upon the police foreswearing any right to arrest Mr Thompson himself if circumstances justified it (cf Lipman at 557).

133 The argument between the two men recorded in the video confirms that a breach of the peace was imminent if it had not already happened. It also shows that Mr and Mrs Thompson were most anxious at that stage in the afternoon for the police to arrive.

134 If, alternatively, the police had not formed the intention of arresting Mr Thompson when they came on the land, or if any such intention was conditional upon being satisfied in the genuineness of McLeod’s complaint and/or the appropriateness of an arrest, the situation is no different. On this hypothesis the police came to the land to find out exactly what had happened. Mr Thompson had not forbidden this, quite the contrary. The investigation convinced Senior Constable McDonald that it was appropriate to arrest Mr Thompson. This alternative scenario does not link the officers’ entry at about 3.25pm to the statutory power to effect a warrantless arrest. But the licence to enter is, if anything, even clearer on this assumption.

Did the police conspire with or aid and abet McLeod in trespassing? (Grounds 5 and 6)

135 Ground 5 and part of Ground 6 may be addressed together.

136 Each statement of claim alleged against the police officers that they became complicit in various acts of trespass to land or goods committed by McLeod. One version of the allegation was that all of the police were involved in an unlawful conspiracy. It is, however possible to read the pleading as alleging tortious complicity against the officers individually.

137 What is clear is that the trial was fought on the basis that the police conduct was motivated by wrongful intentions of a high order. In an earlier section of this judgment I have demonstrated that the trial proceeded on the basis that the central allegation was that the police decided to side with McLeod so as to allow him to ride rough-shod over the Thompsons’ rights. The wrongful arrest of Mr Thompson was said to be but the culmination of a scheme or schemes inappropriately designed to allow McLeod to remove his property on his terms.

138 Even such a case had little toehold in the pleadings. But, in any event, it was comprehensively rejected in credit-based findings in which I detect no appealable error.

139 In this Court, Mr Shand QC changed ground and contended for a much softer version of events, one which was said nevertheless to remain tortious. The police officers were said jointly and severally to have intentionally aided and abetted McLeod by studied agnosticism as to whether his conduct was trespassory. The “actus reus” of the tort (apart from Mr Thompson’s arrest and removal) was said to be the very passivity of the police stance. If necessary, the appellants pointed to the fact that there were isolated snippets of advice given by the police to McLeod and/or that the police showed willingness to act as a channel of communication between the two protagonists.

140 In my view, this “softer” case was not open on the pleadings or the way that the trial was conducted. In any event, it fails at several points. First, it would be a necessary part of such an accessorial tort to establish the wrongfulness of the conduct of the principal tortfeasor. As indicated, the appellants were not prepared to grapple with this difficulty. Secondly, the activities of the police, as found, were entirely consistent with them acting to avoid a breach of the peace. The common law prides itself upon its coherence (cf Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 at 581[55]). I find it impossible to conceive how passive, neutral conduct by the police that is animated by the intent to maintain the peace in accordance with the constable’s sworn duty, could at the same time represent the “actus reus” of a tort. Thirdly, and related to the second point, there appears to be no support in the authorities for rendering tortious conduct by way of “aiding and abetting” unless it involves something tantamount to “knowingly assisting, encouraging or merely being present as a conspirator at the commission of the wrong” (Fleming on Torts, 9th ed at p289, emphasis added).

141 The appellants accepted that more than police observation would be required to render the police complicit in McLeod’s trespassory conduct. It was submitted that the line had been crossed by the police giving advice to McLeod and helping him with various tasks that were necessary, such as asking for the keys of Thompson’s truck and of the container. In my view, this shows no more than that the police were continuing their genuine efforts to prevent breaches of the peace. To be present and to pass communications between two warring parties in the circumstances was conduct in furtherance of the public law duty to avoid the breach of the peace. It is to be remembered that the Thompsons themselves had called for a police presence.

142 I turn to address the particular grounds of appeal.

143 Ground 6 contends, in part, that the judge erred in not finding that the police intentionally aided and abetted McLeod’s trespass. The written submissions are consistent with the trial allegations in that they contend for the finding that a blatant “conspiracy” was involved. I have indicated why such a claim failed on the facts. I observe that senior counsel for the appellants accepted in this Court that each of the four police officers involved early in the afternoon had the belief that McLeod had the right to remove his property (CA Tr p9).

144 Ground 6 has a variant based upon negligence that is more conveniently addressed in the next portion of these reasons.

145 There is a separate ground (5) contending that the judge erred in law in rejecting certain evidence tendered to prove a common purpose between the police and McLeod. Senior counsel did not develop the point at the hearing, but simply relied upon the written submissions.

146 The portions of evidence said to have been wrongly rejected were parts of the witness statements provided to the police by Mr and Mrs Thompson shortly after the events in question. These refer to statements made by McLeod when he telephoned Mr Thompson early in the afternoon. Mr and Mrs Thompson were together in Currumbin at the time. The statements deposed that McLeod told Mr Thompson that he was then standing at the front door of the Byron Bay premises, that he wanted to speak to Mr Thompson about removing his gear and that he wished to pay what was owing. Mr Thompson is said to have told McLeod that he wanted him to remove himself from the property until Mr Thompson got back to Byron Bay. McLeod said: “I’m going to wait at your front door”. Whereupon Mr Thompson said: “You are trespassing, remove yourself or I will call the police”. McLeod said: “I’m waiting at your front door” and then hung up.

147 The relevant parts of Mr Thompson’s statement that were excluded were to similar effect. There were other parts of the statements that were excluded, but nothing seems to turn on this because they relate to what was said when Mr Thompson phoned the police at Byron Bay or to conversations that occurred after the Thompsons got back to Byron Bay. Evidence of these conversations was given orally at the trial.

148 The appellants submit that McLeod’s telephone statements should have been admitted as evidence tending to prove a common purpose between himself and the police. Ahern v The Queen [1988] HCA 39; (1988) 165 CLR 87 was cited.

149 The portions excluded were in effect proved later in the evidence. In any event, they did not tend to establish police complicity, let alone conspiracy. Nothing indicated that they were utterances in the course of and in furtherance of the conspiracy alleged from which the existence of that conspiracy could be inferred.

150 There is no merit in Ground 5.

Did the police negligently fail in a private law duty to prevent a breach of the peace (Grounds 6 and 7)

151 It was submitted that the police were in tortious breach of their duty when they left the site at a time when the Thompsons were expected to return. This was described by Mr Shand QC as the tort of failing to prevent a breach of the peace (CA Tr p18), at other times as a species of negligence. Senior counsel relied upon Lavin v Albert [1982] AC 546, an authority dealing with the criminal law.

152 Both sides were in furious agreement that the police had a public duty to prevent a breach of the peace. This is well attested in the caselaw (see eg Hill v Chief Constable [1989] 1 AC 53 at 58; R v Commissioner of Police (Tas) Ex parte North Broken Hill Limited (1992) 61 A Crim R 390). This duty is itself the basis of various common law powers to arrest without warrant (Lavin at 563-5).

153 The appellants submitted that the police owed them a duty of care as to the exercise of their powers to prevent a breach of the peace. No support for this proposition can be derived from the cases mentioned above which recognise public law duties enforceable in appropriate circumstances through the remedy of mandamus. Indeed, the notion of a duty of care in this situation has been decisively rejected (Hill at 59, 65; Sullivan at 581[57]; D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 at [101]).

154 This is not to say that police may never act in such a way as to assume a duty of care in a particular task (cf Knightly v Johns [1981] EWCA Civ 6; [1982] 1 WLR 349, Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242, Zalewski v Turcarolo [1995] 2 VR 562, Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 at 576[81]). But the present case bears no relationship to those exceptional situations. Rather, it falls well within the area in which it has been held that the public law duties of police are not consonant with recognition of a private law duty of care in favour of a particular member of the public.

155 State of New South Wales v Napier [2002] NSWCA 402 was also cited in support of the police having a duty of care to prevent injury stemming from criminal activity because, in the circumstances, they had “control” of the situation. Napier involved a prison situation and it is clearly distinguishable, particularly in relation to the events that occurred when the police were away from the site performing other duties.

Alleged denial of natural justice (Ground 8)

156 This ground is entirely devoid of merit. It attempts to elevate a misconstrued remark of the judge made during Senior Constable McDonald’s cross-examination (Black 259) in a discussion about admissibility into a form of estoppel against the ultimate finding favourable to McDonald’s credibility.

Miscellaneous challenges to fact-finding (Grounds 9 and 10)

157 Ground 9, which complains about the factual findings favourable to the police, has in effect already been dealt with.

158 There was ample evidence that the police had acted in good faith and that they were not guilty of the particular torts pleaded against them.

159 The main bone of contention raised by the appellants concerns the findings that the police did not observe the dismantling of the gantry in preparation for its removal or the cutting of the fence. The evidence was conflicting and there were some contradictions between some of the documents created by the police on the former matter. But these did not compel rejection of the sworn testimony of the officers and McLeod. Senior Constable Rann offered an explanation for the entry in her notebook that was not devoid of acceptability. Furthermore, these particular matters had no ultimate bearing on the issues raised in the pleadings and/or necessary to be decided in the appellants’ favour if they are to overcome the verdicts in the District Court.

160 Whether or not McLeod was entitled to cut the fence is tied up with the issue of his claimed entitlement to recapture his goods subject to tendering the agreed debt. This issue had the added dimension that the fence had been erected by McLeod himself. The appellants submitted that this was an independent trespass and breach of the peace. What they did not make plain was the consequence of this submission, given that the event occurred when there was no police presence. It is difficult to see how it could have justified a subsequent assault with an iron bar, not that Mr Thompson sought to justify his conduct (whatever it was) on this ground alone.

161 What is, however, clear in my view, is that these matters did not undermine the genuineness or the reasonableness of the belief formed by the arresting officer based upon what he had been told by McLeod and Dormer. Nor does the fence cutting incident destroy in any way the appropriateness of the officers’ conclusion that matters had progressed to the point where passive monitoring was no longer appropriate. The arresting officer concluded, with cause, that a definite breach of the peace had occurred. Whatever his views (if any) about the propriety of McLeod’s fence-cutting conduct it did not preclude him from reaching a justified decision to intervene and arrest Mr Thompson based upon the officers’ suspicion, with reasonable cause, that Thompson had committed an assault with an iron bar.

162 I reject the appellants’ submission that the officer’s suspicion and decision to arrest were vitiated because the officer did not work his way through the rights and wrongs of the antecedent property dispute. He was not required to pose himself these issues and answer them in a manner that would get a pass mark in a torts exam. Senior Constable McDonald exposed his actual thought processes for curial examination, their genuineness was accepted, and it was sufficient in light of the other matters to justify entry and arrest without warrant for the offence notified to Mr Thompson at the time of arrest.

163 Mr Shand QC made submissions about the inappropriateness of arrest as distinct from summons (CA Tr p136-7). It is very unclear whether this was an issue at trial. In any event, the situation that presented itself involved an actual breach of the peace rendering it appropriate to arrest.

164 Having removed Mr Thompson from the scene, lawfully and without the alleged ulterior purpose of assisting McLeod, the police were entitled to revert to the role of neutral observers. So long as there was no further breach of the peace they were content, and entitled, to leave it to the parties to litigate the civil rights and wrongs after the event.

Rejection of claim of malicious prosecution (Ground 11)

165 Mr Thompson submits that the judge erred in rejecting his claim of malicious prosecution. It is contended that there was an absence of reasonable and probable cause because Senior Constable McDonald knew or ought to have known that Mr Thompson was merely exercising his lawful right as owner occupier of the land when he allegedly threatened and/or assaulted McLeod.

166 Mr Thompson was charged with common assault at about 5.15pm on the evening in question. The pleading confined itself to an allegation that there was malicious prosecution in the proffering of this charge.

167 The written submissions reveal this ground of appeal to be a vehicle for re-agitating the contentions that no assault had ever occurred and that McDonald had no basis for the suspicion that led him to make the arrest earlier that afternoon.

168 It was submitted that McDonald’s primary purpose in instituting and continuing the proceedings was simply to justify what he knew to be an unlawful arrest.

169 I have already indicated why the judge was entitled to conclude, as he did, that the arrest was justified. Nothing happened between arrest and charge that ought to have compelled McDonald to take the matter no further. The argument that the prosecution was maliciously continued is lacking in evidentiary support and was not open on the pleadings.

170 Before he was charged, Mr Thompson provided the police with a statement (Blue 148). It undoubtedly averred that he had acted in what he believed was a justified defence of his property rights. But it did not remove the reasonable cause as it presented itself to the police officer based on his understanding of the iron bar incident. This is also another instance of the appellants’ endeavour to gloss over the difficult issues of fact and law concerning the events that led up to what McDonald believed on reasonable grounds to have been an assault that cause that actual injury.

171 I have not overlooked the submissions concerning discrepancies between the matters recorded in the police facts sheet and the evidence. These were resolved in favour of the police at trial in a manner that does not reveal appealable error. In any event, the discrepancies go mainly to the question whether or not the assault occasioned actual injury. The charge that was laid was one of common assault.

172 The trial judge’s findings to the effect that there was reasonable and probable cause and an absence of malice (Red 23, 26) have not been undermined.

Disposition

173 It is unnecessary to consider the grounds of appeal concerning damages or the cross-appeals on the same topic.

174 The appeal should be dismissed with costs.

175 The cross-appeals should be dismissed with no order as to costs. They were largely defensive and addressed the very topic raised by the appellants (ie exemplary damages). Little time was devoted to them at the hearing.

176 HANDLEY JA: I agree with Mason P.

177 PEARLMAN AJA: I agree with Mason P.

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LAST UPDATED: 01/07/2005