Pham v Commissioner of Victim Rights

1. [1]

   LEEMING JA: Mr David Pham appeals from the decision of NCAT, constituted by Senior Member Riordan, on 24 October 2018, affirming a decision of the Commissioner dismissing his application for victims support under the Victims Rights and Support Act 2013 (NSW). The decision of NCAT was an “external appeal” within the meaning of s 79 of the Civil and Administrative Tribunal Act 2013 (NSW), with the result that a further appeal lies to the Supreme Court, but only with leave and on a question of law: s 83 of that Act. Mr Pham appears to have been unrepresented before NCAT, and his original summons invoking his right of appeal was also prepared without legal assistance. More recently, Mr Chao Zheng, solicitor, has appeared for him, filing an amended summons and written submissions in chief and in reply which, it may fairly be said, have advanced all that could possibly be said in support of this appeal.

2. [2]

   The amended summons identifies two grounds of appeal. The substance of the first is that the Senior Member failed to consider s 230 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) which is in the following terms:

3. [3]

   The second ground was that the Senior Member failed to set out sufficient reasons “in regard to whether the force used by the Police was reasonably necessary to exercise the function”. In oral submissions, Mr Zheng acknowledged, correctly, that the two grounds were closely related.

Background

1. [4]

   The factual background giving rise to Mr Pham’s appeal is, in very large measure, controversial. It is, however, uncontroversial that on the evening of 13 December 2012 there was an altercation at Mr Pham’s home in Yagoona between him and a tradesperson, Mr Kayrouz, who had been carrying out building and construction work on neighbouring premises. Mr Kayrouz had parked his ute in Mr Pham’s driveway. There is a dispute as to whether or not he had obtained permission from a female member of Mr Pham’s family to do so. Mr Pham had parked his car behind that of Mr Kayrouz, preventing him from driving away.

2. [5]

   There were a series of 000 telephone calls made by both Mr Pham and Mr Kayrouz that evening. The transcripts were in evidence before NCAT. They present two very different scenarios.

3. [6]

   Without being exhaustive, the transcript of one of Mr Pham’s calls includes the following:

4. [7]

   A second conversation, at 10:40pm is as follows:

5. [8]

   On the other hand, a conversation at 9:19pm includes the following:

6. [9]

   A following conversation at 10:07pm includes this:

7. [10]

   Police eventually arrived at the scene and arrested Mr Pham. The tribunal reproduced the following narrative of the COPS event report as follows (Mr Pham is described as the “POI”):

8. [11]

   Mr Pham claimed that the physical and psychological injuries suffered by him at the hands of police officers that evening sustained his application under the Victims Rights and Support Act. That entitlement turns on there having been an “act of violence”, which is defined, relevantly, by s 19(1)-(3) as follows:

9. [12]

   On 1 June 2017, Mr Pham’s application was refused by an Assessor. He applied for internal review, which was repeatedly deferred on Mr Pham’s own application in light of civil proceedings commenced by him in the District Court arising from the same incident. Ultimately, a Senior Assessor affirmed the original decision, on 24 July 2018. On 10 August 2018, Mr Pham applied for external review by NCAT. There was a hearing on 5 October 2018 following which NCAT constituted by the Senior Member affirmed the decision: DOD v Commissioner of Victims Rights [2018] NSWCATAD 249.

The decision of NCAT

1. [13]

   The Senior Member, favourably to Mr Pham, rejected a defence based on s 39 of the Victims Rights and Support Act, at [53]–[55], and no issue was taken with that. The main portion of the Senior Member’s reasons was directed to the question of whether Mr Pham’s arrest was lawful: at [56]–[81]. The Senior Member considered at some length ss 99 and 105 of LEPRA, doing so both in relation to the institution of the arrest, and when the arrest was discontinued. The Senior Member was satisfied that the arresting police officer complied with s 99, and duly informed Mr Pham of the reason for the arrest, rejecting the account given by Mr Pham. In part that was based upon the Senior Member’s assessment of Mr Pham, including at [66]:

2. [14]

   The Senior Member also had regard to the fact that while both Mr Pham’s wife and mother-in-law were said to have witnessed the events of 13 December 2012, and the mother-in-law was present at the hearing, evidence was not adduced from either woman in support of his claim.

3. [15]

   The Senior Member then stated that in the absence of corroborative evidence and given the unsatisfactory nature of Mr Pham’s evidence, she preferred the evidence of the police (including the COPS report) to Mr Pham’s evidence. That led to findings, at [72]–[75] as follows:

4. [16]

   That in turn led to the Senior Member not being satisfied on the balance of probabilities that Mr Pham was the primary victim of an act of violence with respect to his arrest and detention.

5. [17]

   The Senior Member then turned to the discontinuance of the arrest after the vehicle had been moved and the tradesman had exited the property. The Senior Member said:

6. [18]

   Mr Pham submits, correctly, that nowhere in her reasons did the Senior Member address s 230 of LEPRA. He further submits that given that the dispute was between a police officer and a civilian, regard to s 230 was “unavoidable” in any legal analysis of what occurred. However, he concedes that at no stage was s 230 explicitly advanced by way of submission on the part of Mr Pham. (The transcript of the hearing was not placed in evidence before me, and I was told that it was not available.)

7. [19]

   The Commissioner submits that implicit in the reasoning of the Senior Member is a conclusion that the conduct of the arresting officers was not unreasonable.

Consideration

1. [20]

   Consistently with the approach to fact finding enunciated by the Senior Member, rejecting Mr Pham’s evidence and favouring the evidence of the police officers, it is difficult to see how the Senior Member could have found that the police officer’s conduct was unreasonable. However, this appeal is confined to questions of law, and the question of whether or not the arresting police officer behaved reasonably is quintessentially one of fact.

2. [21]

   Moreover, it is difficult to conclude that there would be any error, let alone any error of law, in the Senior Member failing to make a finding directed to s 230 which the Senior Member was not asked to make. So far as may be seen from her reasons, the Senior Member carefully attended to the provisions which appear to have been regarded by the parties as being in play and made findings in accordance with her assessment of the evidence. There is no deficiency in the provision of reasons in failing to deal with a matter that was not raised. Generally, there is no error of law in respect of a point which was not raised: see Navazi v New South Wales Land and Housing Corporation [2015] NSWCA 308 at [115]-[118]. There are exceptions to that principle, as is plain from Kirk v Industrial Relations Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1, but compliance with s 230 is nothing like the jurisdictional errors which warranted intervention in that case. Consideration of s 230 was not “unavoidable” in the facts of this case. To the contrary, s 230 was apt to present a further obstacle to Mr Pham’s entitlement to compensation, one which it was unnecessary for the Senior Member to address.

3. [22]

   Further, there is with respect a misunderstanding in Mr Pham’s submissions based on s 230. The point of s 230 is to authorise conduct which would otherwise be unlawful. If a police officer establishes that he or she has used such force as is reasonably necessary to exercise a function, then the exercise of that function is lawful. As Beazley P put it in State of New South Wales v McMaster (2015) 91 NSWLR 666; [2015] NSWCA 228 at [230]:

4. [23]

   It does not follow that failing to fall within s 230 means that the conduct of an arresting police officer is unlawful. Still less does failing to fall within s 230 mean that the conduct of the arresting police officer is an offence. Aspects of the written and oral submissions suggest that it may be helpful to elaborate those propositions.

5. [24]

   First, the laying hands on Mr Pham by an arresting officer was prima facie a trespass to the person. Lawful arrest is a defence to the civil liability he or she would otherwise incur. However, if the police officer satisfied s 230, that is a complete answer to any civil liability. If the police officer did not satisfy s 230, there would remain a question whether some other defence might be available (including, say, under ss 52 and 53 of the Civil Liability Act 2002 (NSW)).

6. [25]

   Secondly, Mr Pham was seeking to establish injury resulting from the commission of an offence, rather than civil liability. While it is true that if the police officer satisfied s 230, there could be no offence, it does not follow that Mr Pham has established the commission of an offence merely from the fact that s 230 has not been shown to have been satisfied. Let it be assumed that excessive force deployed by the police in discontinuing the arrest (this was at the forefront of Mr Pham’s submissions). It does not follow that the police officers were committing an offence. When pressed to identify the offence, Mr Pham eventually identified the offence of common assault contrary to s 61 of the Crimes Act 1900 (NSW). But there is a mental element to the offence which needs to be shown before the offence is committed. It is difficult to see how the mental elements of that offence would be made out, consistently with the findings by the Senior Member, irrespective of s 230.

7. [26]

   There is one further matter. Shortly before the expiry of three years after the events, Mr Pham commenced civil proceedings in the District Court of New South Wales, suing the State of New South Wales on the basis that it was vicariously liable for the tortious conduct of the police officers on the evening of 13 December 2012. There was a trial on 4–7 March 2019, and judgment in favour of the State was given on 29 March 2019: Pham v State of New South Wales [2019] NSWDC 73. The trial and the judgment post-date the hearing before the Senior Member. Nonetheless, Mr Pham sought to rely upon the much fuller factual inquiry that occurred in the District Court in support of his appeal. It is true that each of Mr Pham and the arresting police officers gave evidence and were cross-examined before the primary judge. So too did his mother-in-law, Ms Dinh. The primary judge rejected Mr Pham’s version of events and accepted the arresting officer’s version of events, which corroborated the COPS report. His Honour stated that “neither Mr Pham nor Ms Dinh were credible witnesses”: at [75], while both officers were “impressive witnesses”: at [86]. His Honour made an express finding that s 230 was complied with and that the force used by the arresting officer in the process of arresting and searching Mr Pham was lawful and constituted neither an assault nor battery: at [123]. Further, his Honour made an express finding that there was no assault or battery when Mr Pham was removed from the police van: at [124]–[125].

8. [27]

   The Commissioner submitted that the judgment not having been before the Senior Member, was not relevant to this appeal. But evidence which is not relevant to an appeal may nonetheless be relevant on the question of leave. For example, evidence post-dating a decision the subject of an application for leave to appeal, going to futility or alternatively the general importance of the issue, may be relevant to leave but irrelevant to the appeal.

9. [28]

   The fact that Mr Pham has now enjoyed a full hearing, including the cross-examination of the arresting police officers, is a further reason telling against the grant of leave.

Orders

1. [29]

   For those reasons, I would refuse leave to appeal and dismiss the amended summons filed on 17 April 2019. Costs must follow the event.