Fletcher v State of New South Wales

1. [1]

   BEAZLEY P: I have had the advantage reading in draft the reasons and proposed orders of Basten JA and the additional observations of Payne JA.

2. [2]

   I agree with Payne JA that the matter proceeded before this Court on the basis that the law was correctly stated in State of New South Wales v Bouffler (2017) 95 NSWLR 521; [2017] NSWCA 185. In that regard, contrary to the observation of Basten JA, at [11], I do not consider that there is any ambiguity in the statement in Bouffler at [164], which is set out in the observations of Payne JA. As that statement makes clear, it will be a matter of evaluation of the factual circumstances in each case whether there has been conduct which entitles a police officer in New South Wales to exercise the powers conferred by the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).

3. [3]

   I otherwise agree with Basten JA and with the orders his Honour proposes.

4. [4]

   BASTEN JA: On the night of 8 September 2013 the appellant, Daniel Fletcher, was travelling with a group of friends by train from Central Station (Sydney) to the Central Coast. Shortly before the train stopped at Eastwood, Mr Fletcher was spoken to by two police officers on transport duty. He was drinking alcohol. Senior Constable Walker took the can from him, at which point Mr Fletcher began to swear. He was warned, and then directed to leave the train at the next stop. He was escorted to the vestibule, accompanied by a friend, Drew Cuthbertson.

5. [5]

   There were words spoken between the officers and Mr Cuthbertson in the vestibule. Senior Constable McArthur described Mr Cuthbertson’s attitude of that of a “smart arse” and said that his conduct “wasn’t aggressive, but it was certainly confrontational and provocative.” When the train arrived at Eastwood station, Senior Constable Walker pushed Mr Fletcher off the train, though by no means violently.

6. [6]

   Both Mr Cuthbertson and Mr Fletcher brought proceedings in the District Court for damages for assault and battery. The judge, following a 12 day trial, concluded that Senior Constable Walker had acted unlawfully in pushing Mr Fletcher off the train. [1]

7. [7]

   The present appeal by Mr Fletcher does not concern that finding; rather, it is concerned with events which occurred on the platform thereafter. These events were precipitated by Mr Fletcher’s girlfriend, Erin Spence, following Mr Fletcher onto the platform.

8. [8]

   Mr Fletcher gave evidence that he had told Ms Spence to stay on the train and that he would see her at home. Nevertheless she followed him onto the platform; he asked her to get back on the train and then manhandled her onto the train. She then alighted again. Both Senior Constable Walker and Mr Fletcher appeared to have tried to persuade her to re-enter the train. Constable Walker was at that point restraining Mr Fletcher, with a hand holding his shirt at his shoulder. Mr Fletcher then sought to break free from the officer’s grasp. Mr Fletcher reached out and took hold of Ms Spence’s arm at the elbow and strained to get away from the officer. The officer grabbed Mr Fletcher around his torso and got him off balance so that Mr Fletcher fell onto the platform. That act constituted a further assault which the State sought to justify.

9. [9]

   The trial judge set out the evidence in some detail, including a meticulous description of what could be seen on the CCTV footage of the event. He concluded:

10. [10]

    Mr Fletcher suffered a minimally displaced fracture of the distal radius of his right arm in falling to the platform. [2] The present appeal is limited to the question of whether the trial judge was in error in failing to award compensation for that injury.

11. [11]

    It was not in dispute that a police officer in New South Wales has the powers of a constable at common law, as preserved by s 4(1)(a) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“Law Enforcement Act”), also referred to as “LEPRA”. At common law, the constable was entitled to take such steps as were reasonably necessary to prevent a threatened breach of the peace, a power now found in s 230 of the Law Enforcement Act, as referred to by the trial judge. In State of New South Wales v Bouffler [3] this Court held that a breach of the peace includes “a wide range of actions and threatened actions that interfere with the ordinary operation of civil society”. [4] There is an element of ambiguity in that description of a breach of the peace: the breach should refer to an action, rather than a threatened action. (Of course, there will be cases where threats will be sufficient themselves to constitute breaches of the peace.)

12. [12]

    A police officer has power to intervene to prevent a breach of the peace. As explained in R v Howell: [5]

13. [13]

    The grounds of appeal were not entirely transparent as to the precise challenge brought to the finding of the trial judge set out above. In the course of oral submissions, senior counsel for the appellant stated: [6]

14. [14]

    This formulation of the appellant’s case encompassed all of the grounds in the Notice of Appeal. Grounds 1-5 addressed the reasonableness of Senior Constable Walker’s expressed belief, being issue (b) identified above; ground 6 addressed the force used, being issue (c).

15. [15]

    Counsel also submitted that: [7]

16. [16]

    There some ambivalence in this position: the evidence of the officer, accepted by the trial judge, was that the apprehended breach of the peace involved Mr Fletcher repeating his earlier unsuccessful attempt to force Ms Spence back onto the train by physically pushing her onto the train. The first submission appeared to be that, prior to forming that belief, the officer had restrained Mr Fletcher so that any subsequent attempt to restrain him was impermissibly directed to continuing what was an unlawful restraint.

17. [17]

    To the extent that the appellant challenged the finding as to the subjective belief of the officer at the relevant time, that challenge can be adequately dealt with in considering the judge’s finding with respect to the reasonableness of the officer’s belief. That requires a review of the evidence critical to the finding, which falls within a short compass.

18. [18]

    The findings of the trial judge commenced with an analysis of the CCTV footage over a period of less than a minute, when it appeared that both the officer and Mr Fletcher were seeking to persuade Ms Spence to get back on the train. In the course of cross-examination, counsel for Mr Fletcher suggested: [8]

19. [19]

    He was cross-examined as to his suggestion that he was detaining Mr Fletcher because he feared either Ms Spence, or indeed Mr Fletcher, might suffer harm. He was taken to the regulation which provided that a person who had been directed to leave a train could not re-enter it, noting that there was an exception for a “reasonable excuse”. The following exchange then occurred: [9]

20. [20]

    The judge, who heard the lengthy evidence in this matter, dealt with this evidence in the following manner:

21. [21]

    There can be no doubt that the trial judge directed his mind to Mr Fletcher’s case, as presented at trial and on the appeal. Indeed, on the appeal Mr Fletcher relied upon the finding that he could not reasonably have been suspected of attempting to reboard the train. However, there was no inconsistency between the rejection of that position, and the conclusion set out at [9] above that the officer had the subjective belief that he was seeking to protect both Mr Fletcher and Ms Spence from injury. In other words, the officer could suspect that a person is about to act in a way which might constitute two separate offences. The fact that the suspicion as to one offence could not be justified as reasonable does not prevent reliance being placed on the belief as to the other offence, which, if reasonably held, would be a sufficient justification for the officer’s actions. The appellant’s submissions to the contrary should be rejected.

22. [22]

    There remained the question as to whether the judge was correct to conclude that the evidence overwhelmingly supported the reasonableness of the belief that Mr Fletcher might cause a breach of the peace, in the form of harm either to Ms Spence or himself. The challenge was based on the proposition that, in setting out the evidence at [198] the trial judge had failed to have regard to the preceding four questions and answers. There are three responses to that proposition. First, the judge had, in the passage from [194] set out above, extracted a lengthy statement from the evidence in chief of Senior Constable Walker, which occurred one page before the later extract said to be taken out of context. As a matter of principle, it is never necessary for a court to repeat evidence in support of a proposition which is otherwise properly addressed in the reasons for judgment. It is implausible to suggest that the judge disregarded evidence which occurred between two passages a page apart, both of which he had in fact extracted. There was no suggestion that the judge had misunderstood the evidence in any respect; if there had been, there would have been difficulty in persuading this Court to intervene, given the judge’s advantage in hearing the evidence in the context of the whole of the trial.

23. [23]

    Secondly, the four previous questions, said to have been disregarded (also in the examination in chief) merely sought further detail of the passage which had already been extracted.

24. [24]

    Thirdly, the basis of the complaint is that in the passages not extracted, the officer reiterated his belief that Mr Fletcher “was going to get back on the train.” [12] As already noted, that proposition was expressly addressed by the judge at [199].

25. [25]

    It follows that the judge’s findings that (a) Senior Constable Walker believed that, if not restrained, Mr Fletcher would engage in conduct that was potentially dangerous, both to himself and to Ms Spence, and (b) his belief in that regard was a reasonable apprehension, have not been shown to be erroneous. Further, there can be no doubt that the conduct the subject of the belief, if carried out, could reasonably be seen as a threatened breach of the peace.

26. [26]

    There is no substance in the appellant’s challenge to the judge’s finding that the force used by Senior Constable Walker in restraining the appellant was reasonably necessary. The appellant’s case was that the initial application of force was resisted and that this resistance escalated. This escalation can clearly be seen on the CCTV footage. No error has been shown in the judge’s conclusion that the force applied was no more than was reasonably required.

Conclusions

1. [27]

   There is much to be said for the view expressed by senior counsel for the State in written submissions that at least in respect of the initial restraint of the appellant on the platform, the challenge raised by the appellant constituted an “artificial and reductionist approach to fact finding”. It may also be said that the approach on appeal to the carefully structured and comprehensive reasons of the trial judge demonstrated no basis for doubt as to the correctness of the findings which were challenged.

2. [28]

   There is no occasion to consider the contingent findings of the primary judge about causation and damages. No ground of appeal addressed those findings and the State did not file a notice of contention.

3. [29]

   The appeal should be dismissed; the appellant should pay the costs of the respondent in this Court.

4. [30]

   PAYNE JA: I have read the decision of Basten JA in draft. I agree with the orders proposed by his Honour and, save in one limited respect, with his Honour’s reasons.

5. [31]

   In State of New South Wales v Bouffler (2017) 95 NSWLR 521; [2017] NSWCA 185, this Court said, at [164] that:

6. [32]

   It may be, as Basten JA suggests, that there is an element of ambiguity in this description of a breach of the peace. In this case, however, it was common ground that Bouffler correctly stated the law. Accordingly, I would reserve to a case where the issue is necessary to determine the question of whether the test for breach of the peace described in Bouffler is ambiguous or requires further explanation. In any event, I agree with Basten JA, for the reasons his Honour gives, that it is dispositive in the present case that a police officer has power at common law to intervene to prevent a breach of the peace.