Hutchinson v State of New South Wales

1. [1]

   GLEESON JA: I agree with Leeming JA.

2. [2]

   LEEMING JA: Mr Bryn Simon Hutchinson appeals from a judgment dismissing his proceedings in the District Court of New South Wales for false imprisonment, assault, battery and malicious prosecution. The events giving rise to the litigation occupy less than three minutes. They led to a trial lasting some eight days between 5 and 15 March 2018, following which the primary judge promptly produced detailed reasons for judgment (unreported, District Court of NSW, Balla DCJ, 28 March 2018).

3. [3]

   Mr Hutchinson, his partner Mr Sweeney, his sister Ms Kate Hutchinson and a friend attended the Mardi Gras Parade in central Sydney on 2 March 2013. After the parade had finished, shortly before 11.30pm, Mr Hutchinson attempted to cross Oxford St at the intersection with Crown St, from south to north. He came into contact with police when attempting to do so. What precisely occurred in that three minute period was the subject of conflicting testimonial and CCTV evidence, and much of the substance of this appeal challenged the findings made at trial. Mr Hutchinson was arrested and charged with assaulting an officer in the execution of duty, contrary to Crimes Act 1900 (NSW), s 58. He was served with a Court Attendance Notice at 12.05am, and released. On 2 May Mr Hutchinson was issued with a further Court Attendance Notice charging him with a second count of resisting an officer in the execution of duty. Both charges were dismissed in November 2013 after a hearing occupying parts or all of four days in the Local Court.

4. [4]

   Mr Hutchinson commenced civil proceedings on 2 March 2016 in the District Court, within the three years for “personal injury actions” prescribed by s 50C of the Limitation Act 1969 (NSW). The State was the sole defendant. The statement of claim described the events of the evening in narrative form, and then alleged “By reason of the matters pleaded in paragraphs 3 to 19 above, the Plaintiff was falsely imprisoned, assaulted and battered”. That is an unsatisfactory way of identifying the causes of action and their constituent elements on which he sued, however, no complaint was made about it in this Court. By his written submissions in this Court, it was said that the causes of action arose as follows:

   1. (1)

      first, Mr Hutchinson claims he was battered when two officers (Sgt Ludkin and Cst Hedayat) physically prevented him from crossing Oxford St;

   2. (2)

      secondly, Mr Hutchinson claims he was struck several times by those officers while on Oxford St;

   3. (3)

      thirdly, Mr Hutchinson claims that there was a further assault (strictly, a battery) because the handcuffs applied to him were too tight, amounting to an unreasonable use of force;

   4. (4)

      fourthly, Mr Hutchinson claims he was falsely imprisoned for the approximately 35 minutes until he was released after being charged, and it was for the State to justify the lawful exercise of physical force.

5. [5]

   The pleading separately alleged that Mr Hutchinson had been maliciously prosecuted, asserting that Sgt Ludkin was the prosecutor.

6. [6]

   The State admitted that it was vicariously liable in respect of any torts committed by the police officers involved, pursuant to s 8 of the Law Reform (Vicarious Liability) Act 1983 (NSW). It said that police officers had lawfully closed Oxford St pursuant to s 186 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”) and were exercising power to prevent Mr Hutchinson from crossing. It relied on s 186 of LEPRA and s 6 of the Police Act 1990 (NSW) as the source of power to physically prevent Mr Hutchinson from crossing the street. It alleged that Mr Hutchinson threw himself onto the ground, and that Mr Hutchinson then raised his legs and wrapped them around Sgt Ludkin’s right leg in a scissor-type action, which led to physical force being used to cause him to cease assaulting Sgt Ludkin and to cease resisting police. It alleged that “Ludkin used no more than two hammer-strikes against the plaintiff’s left thigh and Hedayat used two knee strikes against the plaintiff’s left outer thigh”, and alleged that that was no more than reasonable force in the circumstances. At that time, the State alleged that Sgt Ludkin informed Mr Hutchinson that he was under arrest and handcuffed him, with the assistance of other officers, and escorted him from the street. Once he was no longer on the street, Sgt Ludkin said words to the effect, “My name is Sergeant Jeff Ludkin from Parramatta Police Station. You are under arrest for assaulting police.”

7. [7]

   Mr Hutchinson filed a reply. A reply is regularly helpful in cases of intentional torts, where commonly the real issue is a challenge to a defence of lawful authority which is said to justify the application of physical force, the entry onto land, the interference with chattels or an incursion into the plaintiff’s liberty. The reply alleged among other things that any exercise of the power under s 186 of LEPRA was not lawful because of non-compliance with s 201, and also that the exercise of the power was not reasonably necessary, contrary to s 230.

The CCTV footage

1. [8]

   It is convenient to follow the approach adopted at trial and when the appeal was heard, and commence with what emerges from the CCTV footage of the incident.

2. [9]

   The CCTV footage was taken from a single camera on the south side of Oxford Street facing north west, and capturing parts of all six lanes of the street. It will be convenient to denote lanes 1, 2 and 3 as the eastward bound lanes on the north side of the street, with lane 1 being on the kerb, and lanes 4, 5 and 6 as the westward bound lanes on the south side of the street, with lane 6 being on the kerb. Reference is also made in the evidence to the north side of the street as the “harbour” side, and the south side as the “Columbian” side, the latter being a reference to a hotel on the south eastern corner of Oxford St and Crown St.

3. [10]

   The asphalt on lane 6 is coloured pink and labelled as a bus lane. Vision of the street is obscured by the trunks of three plane trees. The left two trees obscure parts of lane 6. The right-most tree obscures parts of the whole street. Very little of the footpaths on either side of the street can be seen.

4. [11]

   The intersection of Oxford St with Crown St is shown, but lane 6 where it proceeds through that intersection is obscured by the left two trees, and much of lanes 2 and 3 where they pass through the intersection is obscured by the right tree.

5. [12]

   The portion of the footage which was tendered shows the aftermath of the Mardi Gras Parade that evening. There are no longer any floats or participants walking on the road. There are no private vehicles on the street at all. There are two vehicles, a garbage truck and a street sweeper. (Later in the footage, two other utility trucks are may be seen.) The garbage truck is stationary, or nearly so, on the wrong side of the road heading west in lane 1 or 2, and men may be seen apparently emptying garbage receptacles into it. The video footage commences with the street sweeper heading west in lane 5, with around ten uniformed police officers standing in the middle of lane 6 (the bus lane), facing the southern footpath, on which large numbers of pedestrians (some clad in party costumes, mostly in casual clothes) are walking in both directions. Some pedestrians are seen to be walking in lane 6 between the gutter and the row of police officers. The street sweeper goes out of the field of vision behind the two plane trees, but then performs a U-turn, to the east side of the garbage truck, and proceeds eastwards in lane 1 against the gutter. Numerous police officers (five are visible) are standing in the middle of lane 1 facing the footpath, just as they are on the other side of the street. As the street sweeper proceeds along the gutter, the police officers step backwards from the middle of lane 1 into lane 2 to let it pass.

6. [13]

   Prior to Mr Hutchinson's attempt to cross the road, two men are seen crossing, from south to north, at the eastern side of the intersection. They are walking at a normal speed. They are stopped by police, and indeed an officer puts his right arm on the back of one of them (23:28:13). After a short exchange, the men proceed across the intersection (23:28:23-23:28:34). Mr Hutchinson comes into vision a few seconds later (at 23:28:40), following much the same path as the two men. At that time, the street sweeper has almost completed its U-turn and is very close to the intersection. Mr Hutchinson is shown moving faster than the two men, and continues to proceed through lane 5 and into lane 4 despite one and then a second officer seeking to prevent him from doing so. Evidently he is stopped (at 23:28:50) in lane 3, but what precisely happens then is obscured by the tree trunk. In the meantime, the street sweeper enters the intersection in lane 1 at around 23:28:47. An officer dragging Mr Hutchinson back towards lane 4 from behind the tree trunk emerges at 23:29:05. After a few seconds, Mr Hutchinson’s body is seen, being pushed back into lane 4, when at 23:29:17 he appears to fall. The street sweeper crosses into the pedestrian crossing zone on the eastern side of the intersection, in lane 1, at 23:29:08.

7. [14]

   While Mr Hutchinson is on the ground, officers may be seen striking him, although the images are not clear. A small police vehicle with a flashing siren arrives at the scene at 23:29:54. Mr Hutchinson is lifted to his feet at 23:30:26. The vehicle drives off at 23:30:36. Mr Hutchinson re-emerges from behind the tree at 23:30:52 and is seen being taken across lanes 3 and 2 until 23:30:59. He appears to struggle against the officers guiding him back to the south side of Oxford St (especially, at 23:30:58).

8. [15]

   It will be necessary when dealing with some of the grounds of appeal to deal with the limitations upon the use of photographic evidence. The principles were discussed by Beazley P in Goode v Angland (2017) 96 NSWLR 503; [2017] NSWCA 311 at [89]-[96], by reference to earlier authorities, although for present purposes what can and cannot be taken from the footage does not give rise to much controversy.

9. [16]

   The following three points are entirely uncontroversial.

10. [17]

    First, Oxford St was patently closed to ordinary traffic. Even if Mr Hutchinson did not know that it was Mardi Gras night, there were no private vehicles on the street, there was a garbage truck in the wrong lane and a street sweeper doing a U-Turn across the street. And even if he did not notice those, he could not but have noticed that there were at least 15 police officers in the small area of the road captured by the CCTV footage all of whom were standing in lanes which were normally full of traffic.

11. [18]

    Secondly, there were six people who crossed the street behind the garbage truck at around 23:28:24, and three others who ran across the road at 23:28:34. No one is seen crossing Oxford St on the eastern side of Crown St at all, save for the two men who seem to have been permitted to do so, and a man in a white shirt who jogs across while officers are dealing with Mr Hutchinson.

12. [19]

    Thirdly, it is quite plain that the police officers indicated to Mr Hutchinson (when he was in lane 6 or 5) that he must not cross Oxford St, and applied force to prevent him from doing so (when he was in lanes 4 and 3).

13. [20]

    However, the precise circumstances in which Mr Hutchinson came to fall to the ground, and officers came to be striking him, cannot clearly be seen from the footage. I will return to this below.

Testimonial evidence

1. [21]

   In the plaintiff’s case, evidence was adduced by Mr Hutchinson, Mr Sweeney and Ms Hutchinson (the friend did not give evidence). Ms Hutchinson said that Oxford St was open as usual, there were no barriers and no police officers lining the sides of the road. She accepted she had been drinking but denied she had been intoxicated. It was put to her that that her denial of intoxication was inconsistent with her case in defending separate criminal proceedings brought against her arising out of her conduct on the same evening, as to which she said “I’m confused. Are you asking – I can’t even remember.”

2. [22]

   The primary judge regarded this and other aspects of Ms Hutchinson’s evidence as entirely inconsistent with the evidence of all other witnesses and the CCTV and rejected it. No part of Mr Hutchinson’s case on appeal sought to rely on her evidence, which need not further be summarised.

3. [23]

   The other witnesses identified the following aspects of the events of the three minutes.

   1. (1)

      First, one or more unidentified officers conveying to Mr Hutchinson that he must not cross Oxford St and as he continued to cross the street, officers physically sought to prevent him doing so.

   2. (2)

      Secondly, Mr Hutchinson’s progress stopped at lane 3; it was at around this point that Sgt Ludkin and Cst Hedayat approached from their positions on the north side of Oxford St. Sergeant Ludkin’s evidence was that he initially did not intend to get involved, but that as he saw the street sweeper approaching in lane 1, he perceived a danger to Mr Hutchinson and the police.

   3. (3)

      Thirdly, Mr Hutchinson maintained that while being held by the police officers, he lost his balance and placed both legs around Sgt Ludkin’s leg to stabilise himself (he described this as an “instinctual” response). It was common ground that Sgt Ludkin had said, “Let go of my leg”, and that he did not do so immediately. The police officers maintained that Mr Hutchinson placed his legs around Sgt Ludkin’s leg, regarding this as an attack, and leading to Sgt Ludkin applying one or two hammer strikes with his fist and Cst Hedayat applying two knee strikes to Mr Hutchinson’s legs.

   4. (4)

      Fourthly, Mr Hutchinson was restrained on the ground, told he was under arrest by Sgt Ludkin, and handcuffed. Mr Hutchinson said that he complained that the handcuffs were too tight, but that nothing was done.

   5. (5)

      Fifthly, Mr Hutchinson was taken from the street. At this point, Sgt Ludkin identified himself and his station and said he was under arrest for assaulting police. He was so charged and handed a court attendance notice shortly after midnight.

4. [24]

   It will be convenient to deal to the extent necessary with the detail of the conflicting evidence of Mr Hutchinson and Mr Sweeney on the one hand, and the police officers, on the other hand, when addressing the grounds of appeal.

Reasons of the primary judge

1. [25]

   The primary judge summarised the pleadings and evidence at pp 1-18 of her reasons. Her Honour rejected the evidence of Ms Hutchinson, giving reasons for doing so of which, as noted above, no complaint is made.

2. [26]

   The essential findings of the primary judge were as follows.

3. [27]

   The primary judge made this finding:

4. [28]

   Her Honour rejected a submission that Mr Hutchinson was entitled to keep crossing because he was “negotiating” with police: “To simply keep repeating ‘Can I cross Oxford Street’ while continuing to walk across Oxford Street as a police officer continues to make clear to him that he should go back, is not a negotiation.” Relying on the CCTV footage, her Honour found:

5. [29]

   After addressing the street sweeper and its U-Turn while Mr Hutchinson and the officers were obscured by the tree, her Honour said:

6. [30]

   The primary judge proceeded on the basis that the police officers were authorised under s 186(1) and there was no requirement to comply with s 201:

7. [31]

   Her Honour also found that s 6 of the Police Act provided “an additional power for Sergeant Ludkin to take Mr Hutchinson in hand for his protection”.

8. [32]

   Relying on the rejection of part of Mr Hutchinson’s evidence, and his statement on 5 March 2013 to a journalist that he “did not have any memory of putting his legs around any officers”, her Honour addressed the “leg incident” as follows:

9. [33]

   After giving reasons for not accepting the evidence of Mr Sweeney as corroboration, her Honour said:

10. [34]

    Dealing with the arrest, the primary judge accepted that Mr Hutchinson was arrested under s 99(1)(a) of LEPRA, based on the assault which had just been committed upon Sgt Ludkin by performing the leg lock. The primary judge accepted the evidence of Sgt Ludkin, who said that he had elected to use the power of arrest rather than any other process because he considered Mr Hutchinson had committed a serious offence, and was concerned to prevent anything else from occurring because Mr Hutchinson’s behaviour had been unpredictable. The primary judge found that the sergeant suspected on reasonable grounds that it was necessary to arrest Mr Hutchinson to prevent a repetition or continuation of the offence or the commission of another offence.

11. [35]

    One of the deficiencies of the pleading became apparent when the appeal was heard. There was some confusion during the hearing as to whether there was an arrest when Mr Hutchinson was handcuffed in lane 4 of Oxford St. It seems plain that there was: that was what he was told when he was handcuffed. However, any deficiency in the exercise of the power of arrest then (as opposed to when he was escorted to the southern side of the street) did not arise for determination (I should not be understood as impliedly suggesting there was any deficiency). That was because of the commendably candid concessions made during the hearing of this appeal:

12. [36]

    On the handcuffing of Mr Hutchinson, her Honour said:

13. [37]

    Her Honour addressed malicious prosecution at pp 29-30 of her reasons. Her Honour identified the four elements of the tort: that a prosecutor instituted criminal proceedings against the plaintiff, which were terminated in the plaintiff’s favour, which were brought without reasonable and probable cause, and with malice. Her Honour was not satisfied that Sgt Ludkin was the prosecutor. Her Honour also noted that the police brief had not been tendered, “so it would not have been possible to make a finding as to the evidence considered by the prosecutor when deciding to proceed with the prosecution” and added “Sergeant Ludkin was not asked any questions in cross-examination about his assessment of the material in that brief of evidence”.

14. [38]

    Her Honour made no finding one way or the other as to malice.

15. [39]

    It will be seen below that some of the grounds of appeal give rise to pure questions of law, relating to the closure of Oxford St and the application of physical force by the police officers. Others turn on the resolution by the primary judge of the conflicting evidence. The most efficient course is to address the relevant statutory regime, which is not free from complexity, following which it will be possible relatively concisely to resolve the various grounds of appeal.

Applicable statutory provisions

1. [40]

   Part 12 of LEPRA formerly was titled “Powers relating to vehicles and traffic”. Division 1 comprised ss 185 and 186. Those sections provided:

2. [41]

   These provisions are now ss 148A and 148B of the Road Transport Act 2013 (NSW) (this was effected by the Law Enforcement (Powers and Responsibilities) Amendment Act 2014, Sch 3 item 54, with effect from 1 September 2016). Although their text is materially identical, the relocation is not without consequences. It is clear today that the obligations in s 201 of LEPRA do not apply to exercises of the powers conferred by s 148B (see current form of s 201(3) which provides that this Part does not apply to the exercise of a power that is conferred by an Act or regulation specified in Schedule 1, and one of the statutes in Schedule 1 is the Road Transport Act 2013). It will be necessary to consider below and in some detail the inter-relationship of (former s 186) and (former) s 201 of LEPRA in the form both took in March 2013.

3. [42]

   It will be seen that s 185 was directed exclusively at vehicular traffic. It did not create an offence to drivers who did not obey such a direction, but an offence was created by the r 304 of the (former) Road Rules 2008 made under the Road Transport (Safety and Traffic Management) Act 1999 (NSW) (see now r 304 of the Road Rules 2014 made under the Road Transport Act 2013 (NSW)).

4. [43]

   Section 186 was a much more complex provision than s 185. The starting point is s 186(1)(a). That provision empowered a police officer to close a road. The power is subject to a temporal qualification (“during any temporary obstruction or danger” or “for any temporary purpose”). The effect was to extinguish, for the time being, the rights of passage and access that existed in relation to the road. By s 5(1) of the Roads Act 1993 (NSW), a member of the public is entitled as of right to pass along a public road “whether on foot, in a vehicle otherwise”, and by s 5(2) that right does not derogate from any right of passage conferred by the common law, although such rights are subject to such restrictions as are imposed by or under this or any other Act or law.

5. [44]

   On the last day of the trial, an affidavit of a senior retired police officer was read without objection, following which senior counsel for Mr Hutchinson conceded that “that at the relevant time, Oxford Street was closed by order of officer Murdoch, made pursuant to s 186 of LEPRA”. It seems likely that the closure was confined to the six lanes of the vehicular road, and did not extend to the footpaths on the northern and southern sides of the street (which are ordinarily part of the land dedicated as a road – see for example what was said in Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29 at [50]-[51]; for a rare example of a privately owned footpath, see Loulach Developments Pty Ltd v Roads and Maritime Services [2019] NSWSC 438 at [2]). The affidavit was not in the appeal books, but the argument in this Court proceeded on the assumption that only the six lanes were closed.

6. [45]

   There were three distinct and legally significant consequences while Oxford St was closed:

   1. (1)

      first, Mr Hutchinson had no right at common law or under statute to cross the street;

   2. (2)

      secondly, police officers had power under s 186(1)(b) to “prevent” the traffic of any vehicles, persons or animals on the street, and

   3. (3)

      thirdly, it was an offence for a person to fail or refuse to comply with any direction given by a police officer pursuant to a power conferred by s 186(1).

7. [46]

   It will be seen that s 186 thereby conferred two quite distinct powers upon police officers: (a) a power to close a road temporarily, and (b) a power to “prevent” vehicles, persons and animals from using a road that is closed. The latter power might be exercised in a number of ways. For example, a physical obstacle (such as a police vehicle) blocking a road might be installed by police. Or an officer might place a “Road Closed” sign on the road which fell short of physically blocking access to the road. But for the exercise of the power to close the road, placing an obstacle on the road would be unlawful (it would constitute a public nuisance). There are further possibilities. Officers might form a human chain preventing access to a road. Or, falling short of a human chain, but as happened on Oxford St on 2 March 2013, officers might themselves stand in a line blocking access, highly suggestively communicating that pedestrians not cross the street without obtaining permission from the police.

8. [47]

   Those possibilities illustrate one aspect of the difficulties of the section, which underlies some of the grounds of appeal. Section 186(2) expressly contemplated that at least some exercises of the s 186(1) powers will amount to a “direction”. One possibility is that every exercise of power under s 186(1)(a) or (b) was a direction for the purposes of s 186(2). Another is that any exercise of power under s 186(1)(b) was a direction for the purposes of s 186(2). A third possibility is that some but not all exercises of power under s 186(1)(b) were “directions” for the purposes of s 186(2).

9. [48]

   This in turn informs the analysis of the extent to which LEPRA s 201 applied to exercises of power under s 186. Section 201 made provision for the timing and content of giving of information when police officers exercise powers. Subsection (3) specifies when the obligations in s 201 apply. In March 2013, subs (3) relevantly provided:

10. [49]

    The information which must be given is stated in s 201(1), but the time at which such information is required to be given depended upon the nature of the power which was exercised, as provided by subsections (2)-(2D):

11. [50]

    Other subsections dealt with multiple exercises of powers by the same officer, and the exercise of powers by more than one officer.

12. [51]

    The Act is of course to be construed as a whole. The practical operation of the carefully delineated regime in s 201 impacts upon the approach to be taken to s 186.

13. [52]

    If all of the ways in which the powers conferred by s 186 constitute “directions” to which s 201 applies, large questions of impracticability may readily be seen to arise. Take for example a sign placed on a road saying “Road closed”. On one view, the installation of a sign amounted to the giving of a “direction” to persons who might otherwise be inclined to use the road. However, if it were a “direction” for the purposes of s 201(3)(i), then it would be necessary for the matters in s 201(1) to be given, and there would be further difficulties in construing s 201(2A) and (2B). But the default position imposed by s 201(2A) that compliance with subs (1) occur before exercising the power tends to confirm that the installation of a sign cannot be a direction for the purposes of the section. The same analysis is applicable to the installation of a physical barrier preventing access to the road, or indeed to any acts which are apt to convey an instruction but without a police officer necessarily being present. It seems clear that such acts, while they may unequivocally communicate that access to the road is not available, cannot be “directions” for the purpose of s 201.

14. [53]

    That is not the end of the difficulties. Take a familiar case of a police officer at the scene of an accident directing traffic and pedestrians to take a different route. It may be that there are other sources of power available (if so, they were not explored in submissions); however, even if there were, that would not necessarily be an end to the question of construction. It is plainly not physically possible for the officer to comply with s 201(1) in relation to every individual passing motorist and pedestrian, and there is no reason to construe a provision which confers an important qualification upon police power in a way which means compliance is impossible.

15. [54]

    That is not too far distant from the facts of the present case, as was raised in oral submissions:

16. [55]

    Further, s 201 also applies to powers to “stop or detain” a person: s 201(3)(f). One could imagine exercise of the power to prevent which might answer the description of “stop or detain”. Unlike a power to give a direction, where the default position is that s 201(1) is to be complied with before the power is exercised, the default position for compliance with s 201(1) in the case of a power to stop or detain is “before or at the time of exercising the power” unless it is not practicable to do so, in which case it is as soon as is reasonably practicable.

17. [56]

    Finally, it is to be borne in mind that s 186(2) creates an offence of failing without reasonable excuse to comply with a direction. It is no longer customary to seize upon the fact that a statute creates an offence in order to give to it a narrow construction: see Waugh v Kippen (1986) 160 CLR 156 at 162-164; [1986] HCA 12 and Aubrey v The Queen (2017) 260 CLR 305; [2017] HCA 18 at [39]; the former approach is now regarded as a rule of last resort. Nonetheless, s 186(2) favours the conclusion that not all exercises of the power to prevent conferred by s 186(1)(b) will be “directions”, noncompliance with which will prima facie be an offence.

18. [57]

    Contrary to Mr Hutchinson’s submissions, not every exercise of the power to prevent conferred by s 186(1)(b) amounts to a direction for the purposes of s 201. The construction advanced by Mr Hutchinson is contrary to the textual differentiation between the “power to prevent” and the words “any direction” in s 186 itself. That construction also gives rise to the severe problems of practicability referred to above. Adopting settled principles of construction as stated in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [70], the statute is to be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals, and where they conflict, “the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions”.

19. [58]

    The proper construction of these provisions, sufficient for the purposes of this appeal, is as follows. If a road has been closed pursuant to s 186(1)(a), then police officers are empowered pursuant to s 186(1)(b) to prevent vehicles and pedestrians from going onto the road. Police may exercise that power in a range of ways. Some (such as physically obstructing the road) will not amount to a direction. Some – such as directing one or more individuals withdraw from the road, are capable of amounting to a direction. Much will turn on the precise facts. A formal statement “You are directed to return to the footpath” may be different from a hand signal indicating that the pedestrian or vehicle must stop. The offence created by s 186(2) only applies to directions in this narrow sense, to which the obligations under s 201 also apply. It is not necessary to delineate its precise metes and bounds in order to determine this appeal. After all, Mr Hutchinson has never been charged with the offence created by s 186(2).

20. [59]

    Mr Hutchinson sought to cross Oxford St. The street was closed. Mr Hutchinson had no authority to go onto the street; the authority he would have had under statute and at common law was withdrawn while the street was closed. He was, in short, trespassing. He was told, verbally and non-verbally, not to proceed. The words and gestures of the police officers telling him to withdraw to the footpath were not directions to which s 186(2) applied.

21. [60]

    Mr Hutchinson continued to walk across the lanes of Oxford St. Police officers were empowered by s 186(1)(b) to prevent his doing do. That power is to be read with Pt 18 of LEPRA, headed “Use of force”. It comprised ss 230 and 231, which in March 2013 provided:

22. [61]

    Accordingly, police officers were empowered to do that which would otherwise constitute a trespass to the person, namely, use physical force to prevent Mr Hutchinson from crossing the road. The power conferred by s 186(1)(b), read with s 230 and if necessary the police officers’ powers at common law authorised the officers to apply force falling short of arrest: see Poidevin v Semaan (2013) 85 NSWLR 758; [2013] NSWCA 334 at [19] and [34].

23. [62]

    It was an offence to assault, or to resist or wilfully obstruct any of those officers while in the execution of their duties: Crimes Act, s 58.

24. [63]

    A police officer has a power to arrest at common law and pursuant to s 99 of LEPRA (s 4 makes it plain that statute does not impliedly supplant the former). The inter-relationship between common law and statute is considered in Robinson v State of New South Wales [2018] NSWCA 231, but it is sufficient for the purposes of this appeal to follow the parties’ approach and confine attention to s 99. In the form it then took in March 2013, s 99 of LEPRA relevantly provided:

25. [64]

    Although disavowed on appeal in light of the way the matter had been pleaded and the trial had been run, there was the exercise of a power of arrest when Mr Hutchinson was handcuffed and told he was arrested. Nothing turns on that; it was conceded, properly, that the delay between arrest on the street and compliance with s 201(1) on the kerb did not matter. (“If needs be, they could do it later at the kerbside. We’re not going to argue trivial points.”) However, neither s 231 nor the common law authorised the arresting police officers to use more force than was reasonably necessary.

26. [65]

    Finally, s 6 of the Police Act provided:

27. [66]

    The primary judge accepted that s 6 of the Police Act 1990 (NSW) was an alternative source of power. On the view I take this does not arise on appeal. However, it may very much be doubted that s 6 is relevant. That section identifies the “mission” of the NSW police force, and identifies certain “functions” which the force has. The “NSW Police Force” is established by s 4 of the Police Act 1990 (NSW) but it is not a separate legal person. Instead, it is a group of natural persons: the Commissioner, NSW Police Force senior executives, and all other police officers and non-executive administrative employees employed under the Act: s 5 and see Commissioner of Police v Eaton (2013) 252 CLR 1; [2013] HCA 2 at [51]. To say that a numerically large group of persons has a “function” is not ordinarily apt to confer powers and immunities upon the individual members of that group. Indeed, the generality of s 6 stands in marked contrast with the specific authorisation later LEPRA. It would be remarkable if, in some case, where the specific provisions were insufficient to give rise to a defence of lawful authority to an individual police officer, the general provision of s 6 conferring a “function” upon the NSW Police Force would do so.

28. [67]

    It is now possible relatively concisely to address the grounds of appeal.

Grounds 2 and 4

1. [68]

   Ground 1 was abandoned at the hearing. Grounds 2 and 4 were related.

2. [69]

   The primary judge found that Mr Hutchinson understood that he had been told by a police officer not to cross Oxford St as soon as he stepped onto the road. No challenge was made to that finding. However, ground 2 seeks to characterise that as a “direction”. For the reasons given above, that is not so. Rather, it was the exercise of the power to prevent conferred by s 186(1)(b) falling short of a direction.

3. [70]

   Ground 4 maintains that the original statement by a police officer not to cross the street attracted the operation of s 201. For the reasons already given, that is not so.

4. [71]

   Ground 4 also extends to the exercise by officers of the power to prevent Mr Hutchinson from continuing to cross the road, by physically restraining him. That conduct was, subject to reasonableness, authorised by s 186(1)(b) read with s 230, and did not engage s 201. It was not suggested that the physical force applied by officers as Mr Hutchinson crossed lanes 6, 5 and 4 of Oxford St was unreasonable.

Ground 3

1. [72]

   Ground 3 was as follows:

2. [73]

   The gravamen of this ground is to challenge the findings of primary fact made by the primary judge. Thus Mr Hutchinson submitted in writing:

3. [74]

   Grounds 3(b), (c), (d) and (e) are based on the CCTV footage. But the CCTV footage was equivocal on these issues. For example, contrary to ground 3(d) it is entirely unclear from the CCTV footage whether Mr Hutchinson lost his balance or threw himself to the ground. It is clear that Mr Hutchinson was struck by police officers (which the State admitted in its defence), but contrary to ground 3(e) it is unclear whether that was an “assault” or a reaction to Mr Hutchinson’s assault on Sgt Ludkin.

4. [75]

   More importantly, it is plain that the primary judge did not fail to take into account the CCTV footage. Her Honour summarised it between pp 16 and 18, rejected Ms Hutchinson’s evidence in part because it conflicted with the CCTV footage, and repeatedly relied upon it in making findings (see at p 19.28, p 20.2-4, p 21.21-23, p 24.8-10, 12-14, 19-20, 27-29, p 25.2). It has not been shown that any of her Honour’s findings are vitiated because of some failure to give “proper weight” to the CCTV footage.

5. [76]

   Ground 3(b) maintains that the CCTV footage contradicted Sgt Ludkin’s evidence that he collapsed to the ground. That is not so. The tree obscured Sgt Ludkin while he was seeking to prevent Mr Hutchinson from crossing Oxford Street.

6. [77]

   Ground 3(a) seeks to build upon a conflict of evidence when there is none. Inspector Ainley said that Mr Hutchinson dropped his weight to the ground while officers were holding him. Sergeant Ludkin said that Mr Hutchinson was already on the ground by the time he reached him. To the extent that there was a dispute, it was not necessary for the primary judge to resolve it. As the State submits, by reference to what was said by Giles JA in Zhang v Andrew Pine Furniture Pty Ltd [2004] NSWCA 250 at [30], not every factual matter in issue need be dealt with, unless “resolution of [that factual] dispute is significant to the decision”.

7. [78]

   No case has been made out to interfere with the factual findings of the primary judge.

Ground 5

1. [79]

   Ground 5 was that the primary judge erred in finding that Sergeant Ludkin believed that the presence of a street sweeper was a danger to the appellant and to the police officers near the appellant.

2. [80]

   Mr Hutchinson’s challenge based on this ground included the following submissions in writing:

3. [81]

   The State maintained that this ground could not be made out because it was not put to Sgt Ludkin in cross-examination. Whether or not that be so, it is sufficient to reject it on its merits. I have no difficulty whatsoever in accepting that there was a real chance that Mr Hutchinson would, if unrestrained, come close to the path of the street sweeper. The “dynamic” situation to which the primary judge referred understated the small number of seconds separating Mr Hutchison’s attempts to cross the road and the approach of the street sweeper to the intersection on the far side of the street. In the space of a few seconds, he had proceeded from lane 6 to lane 3 despite the verbal and physical attempts by police officers to restrain him. If he had proceeded two or three metres further northwards, both he and the officers who were holding him would be in danger of coming into contact with the street sweeper, in circumstances when it is plain that Mr Hutchinson was disobeying directions and resisting physical force from police officers.

4. [82]

   It was amply open for Sgt Ludkin to form the view that there was a risk to safety if he were not restrained. The primary judge’s conclusions are not glaringly improbable; far from it. This ground is not made out.

Ground 6

1. [83]

   Ground 6 was that the primary judge erred in finding that the appellant did not lose his balance and fall backwards at a time when Sergeant Ludkin and Constable Hedayat had a hold of the appellant.

2. [84]

   Mr Hutchinson once again relies on the CCTV footage and the evidence of Mr Sweeney. Thus, he submitted in writing:

3. [85]

   But this is precisely what cannot confidently be taken from the CCTV footage, and falls far short of being the incontrovertible or compelling evidence which would entitle this Court to interfere with the findings of the primary judge who saw the evidence being adduced and tested in cross-examination.

4. [86]

   This ground is not made out.

Grounds 7 and 8

1. [87]

   These grounds are as follows:

2. [88]

   The State accepted in its written submissions that if the primary judge had placed the onus on Mr Hutchinson to prove that the use of force was unreasonable, then that was erroneous. However, in answer to ground 7(b), the State submitted that that was not how the reasons of the primary judge were to be construed.

3. [89]

   The relevant passage of the reasons of the primary judge is:

4. [90]

   I accept the State’s submission. The passage from Nakhl Nasr v State of New South Wales [2007] NSWCA 101 at [104]; (2007) 170 A Crim R 78 to which the primary judge referred is:

5. [91]

   Mr Hutchinson tendered photographs show marks on at least one of his wrists, which could have been caused by handcuffs, and gave evidence that he complained about their tightness at the time. However, there was an issue whether those marks were caused by the handcuffs being applied too tightly, or by Mr Hutchinson’s own continuing efforts to resist arrest. Mr Hutchinson bore the onus of establishing that the injuries of which he complained were caused by the force applied by the police officers rather than by his own unlawful resistance to them. That is the proper reading of the passage of her Honour’s reasons of which complaint is made.

6. [92]

   Grounds 7(a) and 8 overlap. There is no error in the primary judge failing to find that Mr Hutchinson had shown that any injury had been caused by the police officers applying handcuffs, in light of her Honour’s earlier findings and what is evident from the CCTV footage. The onus rested with him to do so. On the findings made by the primary judge, in the time immediately preceding the handcuffs being applied to him, Mr Hutchinson was not cooperating with police and it was at least open to conclude that that is how the marks on his wrists were caused. Nor has it been shown that there is a proper basis to interfere with her Honour’s findings as to the blows (concededly) delivered to Mr Hutchinson while his legs were wrapped around Sgt Ludkin’s leg and Mr Hutchinson had (concededly) failed to desist after being told to let go.

7. [93]

   These grounds are not made out.

Malicious prosecution

1. [94]

   Grounds 9 and 10 address the rejection of Mr Hutchinson’s claim for malicious prosecution. They allege error in the primary judge’s finding that there was no evidence leading to a conclusion that Sergeant Ludkin was the prosecutor, and in holding that it would have been impossible for her to make a finding as to whether there was reasonable and probable cause in the absence of the police brief of evidence.

2. [95]

   The primary judge made no finding as to malice. Mr Neil said that his cross-examination had “put various things to Sergeant Ludkin which covered the position that he had an animus towards the appellant”. However, there was no attempt to identify the evidence which are said to support a finding of malice, and indeed the factual findings for which Mr Hutchinson contended did not include a finding of malice. Without having seen Mr Ludkin give his evidence, not to mention without there being full submissions on the matters on which such a finding would be based, I would not do so.

3. [96]

   The State took this even further. The absence of a finding of malice was the first point upon which the State relied in its written submissions, saying “That is really the end of the enquiry”. However, in the absence of a notice of contention, these grounds cannot be decided on the basis that no finding of malice could have been made.

4. [97]

   This aspect of the appeal, which occupied relatively little space in written submissions, and relatively little time in oral submissions, may be decided by reference to the onus bore by Mr Hutchinson to establish that the prosecution was commenced and maintained without reasonable and probable cause.

5. [98]

   Mr Hutchinson received two Court Attendance Notices. The second, dated 2 May 2013, charged Mr Hutchinson with resisting a police officer in the execution of duty. The evidence established that there were statements and other records in existence at that time, some two months after the Mardi Gras parade. Sergeant Ludkin was not asked questions about what was reviewed at the time the second notice was issued. These points were made in the State’s written submissions on appeal. There were no written submissions in reply, and no submissions were made on this aspect of the tort in oral address. Insofar as these grounds are based upon the second Court Attendance Notice, the primary judge was correct to find that an absence of reasonable and probable cause could not be established, having regard to the failure to adduce what was in the police brief at the time.

6. [99]

   Mr Neil QC confined his oral submissions to the first Court Attendance Notice as to which it was conceded that there had been no police brief. But the short answer to the balance of ground 10, insofar as it is based upon the Court Attendance Notice which was issued immediately after the incident was that on the findings made by the primary judge, there was reasonable and proper cause to commence and maintain the prosecution. In particular, there was no real challenge to the finding that Mr Hutchinson wrapped his legs around Sgt Ludkin’s leg. It follows, as the primary judge stated, that Mr Hutchinson had failed to establish the absence of reasonable and proper cause.

7. [100]

   Ground 9 cannot alter the outcome unless ground 10 succeeds. It is not necessary to go further and address the way in which Sgt Ludkin instituted proceedings which were subsequently undertaken by a police prosecutor (Sgt Warren). The claim for malicious prosecution was correctly dismissed.

Orders

1. [101]

   Until now, these reasons have followed the course constructively followed in the parties’ oral submissions, deferring the question of leave. The parties exchanged submissions on the question of leave following the State objecting to the competency of the appeal.

2. [102]

   Mr Hutchinson was detained for some 35 minutes, and there was no evidence of any serious injury. The State accepted that but for the claim for malicious prosecution, his damages would not approach the $100,000 threshold for an appeal as of right: District Court Act 1973 (NSW), s 127. Grounds 9 and 10 were attended with a number of difficulties, not all of which have been explained above. In particular, insofar as the claim sought to recover the costs incurred in his successful defence of the criminal proceedings, the recent decision of State of New South Wales v Cuthbertson [2018] NSWCA 320 (determined after this appeal was heard) now precludes that head of damages. It is far from clear that an appeal lies as of right.

3. [103]

   But nothing turns for present purposes on whether an appeal lies as of right. I am satisfied that (a) there having been an eight day trial, (b) the questions as to the inter-relationship of ss 186 and 201 of LEPRA amounting to questions of principle (notwithstanding the repeal of the former and the amendment of the latter), and (c) the general importance of the lawful exercise of coercive power by police officers to Mr Hutchinson, to the officers themselves, and more generally to the public, if leave be necessary, there should be a grant of leave. There is no reason in those circumstances to take the issue any further.

4. [104]

   I propose the following orders:

5. [105]

   SIMPSON AJA: I agree with Leeming JA.