#8517 - Intro To Lepra - Litigation - Criminal Procedure Rules

1 Intro – Police liability for trespass etc. 1

Can police officers be sued if they exercise their powers unlawfully? 1

Can police enter premises to arrest a person: s 10 2

Questions on SM pg 9 3

Cb: Ibbett 3

CB: Halliday v Nevill 7

LEPRA S 201 safeguards 8

Can police officers be sued if they exercise their powers unlawfully?

State can be sued, and can claim indemnity or contribution from officers for their actions: Ibbett
Trespass? (Consider whether there was a right to entry – class 5)
1. Trespass
If trespass, aggravated damages for intangible harm?
1. AD are a form of damages given by way of compensation of injury to the plaintiff which may be intangible. (Interests of P against invasion extends to freedom from disturbance of those persons present with leave of P as least as family members or as an incident of some other bona fide domestic relationship). The affront to persons may aggravate the infringement of the right to enjoy exclusive and quiet possession: Ibbett
2. In Ibbett Police in plain clothing without a warrant or lawful reason dived under closing garage door, yelled and pointed guns at plaintiff and son, would not leave when asked. Mrs IBbett over 70 years old, never seen a gun before, petrified.
If trespass, exemplary damages? Serves a valuable purpose in restraining arbitrary and outrageous use of executive power: Kuddus ; Ibbett
1. Exemplary damages in law of tort – its about punishment – if you’d conducted yourself with contumelious disregard for the law –
2. in very stressful conditions – an individual solider/officer may on occasion act in gross breach of discipline and commit an unlawful act which is oppressive/arbitrary and in such cases exemplary damages have been awarded: Kuddus
3. Power to award exemplary damages serves to uphold and vindicate the rule of law because it makes clear that the courts will not tolerate such conduct. Serves to deter future actions because it brings home to officers in command of individual units that discipline must be maintained at all times: Kuddus
4. The court noted that the reeducation the police officer was limited – so exemplary damages given. (inadeqauy of subsequent counseling, just a debrief where it was said that they ‘’better do better next time’.
  1. If there had been more evidence that the state understood how serious the incident was then the award was not necessary.
  2. So the court said they would deal with this through the use of exemplary damages – to send a message.
Statute under which to sue:
1. Persons could sue under civil liability act 2003 (NSW). Under s 9B a person can sue for damages for a tort committed by a police officer in the performance or purported performance of the officer’s functions as a police officer. But the person must make the claim under the Crown (s 9B(2) CLA).
2. Under s 6 Law Reform (Vicarious Liablity) Act 1983 (NSW) police officer are deemed to be persons in service of the Crown, and s 8 renders Crown vicariously liable in respect of torts committed by persons in course of service and in performance of purported performance of an independent function.

S 10:

10 Power to enter to arrest or detain someone or execute warrant

(1) A police officer may enter and stay for a reasonable time on premises to arrest a person, or detain a person under an Act, or arrest a person named in a warrant.

(2) However, the police officer may enter a dwelling to arrest or detain a person only if the police officer believes on reasonable grounds that the person to be arrested or detained is in the dwelling.

(3) A police officer who enters premises under this section may search the premises for the person.

(4) This section does not authorise a police officer to enter premises to detain a person under an Act if the police officer has not complied with any requirements imposed on the police officer under that Act for entry to premises for that purpose.

(5) In this section:"arrest" of a person named in a warrant includes apprehend, take into custody, detain, and remove to another place for examination or treatment.

Did the two plain clothes police officers have power to enter Ibbetts house under s 10?
1. They only reasonably suspected that he had committed a driving offence so on that basis no.
2. But if According to PHegan they actualy have seen him exceed the speed limit and that gave justification for the arrest, then they could only enter the house and stay for a reasonable time to arrest him. Meaning they weren’t allowed to search the premises for
What are the threshold issues that must be satisfied before the power under s 10 can be exercised? S 201
1. Must have brelief on reasonable grounds that person to be arrested is in the dwelling
2. S 201 -
If s 10 Lepra does not give the police the power to enter Mrs Ibett’s house to arrest her son consider Halliday v Nevvill – does this case provide support for proposition they had a common law right to enter Mrs Ibbett’s house?
1. Answer: No because Halliday v Nevill is only about having an implied licence to enter paths in dwellings left unobstructed and that licence is revoke at any time by withdrawal of it.

Name	Ibbett
Court	HCA
Facts	R (Ibbett) sued NSW Police for damages. Her son had served three lengthy periods of imprisonment, was a drug user on and off, and after being released from the last term was living with R. He arrived home one night at 2am in his van, being pursued by police. They were under orders to keep a lookout for the son, but the only offence of which they reasonably suspected him as having committed was a driving offence. (he appeared to have been driving erratically, broken the speed limit). Ibbett pulled into the garage and closed the garage door but one of the cops dived under it and sought to arrest him. They seemed to want to find evidence of either house breaking or possession of drugs or both. Cop had no proper basis for making such an arrest or entering the property. Not uniformed and was wearing casual clothing. Ms Ibett came into the garage because she was awoken by the screaming, and when she entered she heard her son say ‘who are you? Get outta here’, and she repeated this, at which the cop swung towards her and pointed the gun at her and said ‘open the bloody door and let my mate in’. She was petrified. The other cop outside came in who was also not uniformed. Then the son was removed to the driveway, handcuffed and pushed to the ground. Criminal proceedings were commenced and then withdrawn against the son. At trial: Cop’s evidence that he had not pointed a gun at Ibbett was not accepted because he seemed careless with the truth and the other cop seemed coloured by a sense of loyalty to fellow officer. Outcome: found that entry by both officers without lawful justification and amounted to trespass. Also found that confrontation justified requirement of immediate apprehension of harm that was intentionally caused so that amounted to an assault of Ibbett. These findings not challenged. Only issue on appeal was whether Ibbett was entitled to recover exemplary damages.
Outcome	Majority dismissed appeal with costs -
Reasoning	Statutory provisions: State is amenable to action in tort based on vicarious liability: s 5 Crown Proceedings Act 1988 (NSW). However previously was taken that law police officers act in exercise of common law or statutory power and according to ‘independent discretions’ – so a cause of action in vicarious liability would not normally be covered. However see VLA Police are deemed to be persons in the service of the crown ( s 6 Law Reform (Vicarious Liability) Act 1983 (NSW)) and the Crown is vicariously liable in respect of torts committed by such persons in course of service and in performance or purported performance of an independent function. However S 9B Police Legislation Amendment (Civil Liability) Act 2003 (NSW) (2003 Act) – changes are: 9BHow can police tort claims be made? (1) Apolice tort claimis a claim for damages for a tort allegedly committed by a police officer (thepolice officer concerned) in the performance or purported performance of the officer’s functions (including an independent function) as a police officer, whether or not committed jointly or severally with any other person. (2) Except as provided by this Part, a person may not in any legal proceedings make a police tort claim against the police officer concerned, but may instead make the claim against the Crown. (3) A person who makes a police tort claim against the Crown in any legal proceedings may join the police officer concerned as a party to the proceedings only if the Crown denies that it would be vicariously liable for the alleged tort if it were established that the police officer concerned had committed the tort. Preliminary matters: (1) This litigation only focused on the fact that the son was living in the house and was a member of household, not a guest (2) case cannot be approached on footing that conduct of officers could be explained in part by reference to known violent propensities of Ibbett (3) officers appear to have received limited re-education from other officers, Harman received a quick briefing, Pickavance was told at a 5 minute meeting that he should not have done what he did (the education development officer said ‘oh boys you’...

#8517 - Intro To Lepra - Litigation - Criminal Procedure Rules

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