A trespassing pedestrian loses claim against police

12 FEB 2020

 

A man who claimed to have been falsely imprisoned, assaulted and battered by police whilst trying to cross a closed off street, and who unsuccessfully sued the State of New South Wales, has now been unsuccessful on appeal, with the Supreme Court of New South Wales Court of Appeal finding no error in the primary judge’s findings.

Background

Mr Bryn Hutchinson attended the Mardi Gras parade in Sydney in March 2013. After the parade had finished, he attempted to cross Oxford Street at a point where it had been closed off by the police. He was restrained, arrested and ultimately charged with assaulting a police officer in the execution of his duty. However, that charge was dismissed after it was heard in the Local Court in November 2013.

Initial proceedings

In March 2016, Mr Hutchinson commenced proceedings in the District Court of New South Wales against the State of New South Wales. He claimed that he had been “falsely imprisoned, assaulted and battered” by police officers, in particular that he had been struck several times, restrained by handcuffs that were too tight, and falsely imprisoned for a period of 35 minutes before he was released.

The State denied liability. It argued that police had closed the relevant part of Oxford Street pursuant to s 186 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA), so they had been entitled to prevent Mr Hutchinson from crossing. When he attempted to cross in any event, he was validly restrained under the powers given to police by s 6 of the Police Act 1990 (NSW).

The primary judge dismissed Mr Hutchinson’s claim.

On appeal

Mr Hutchinson sought leave to appeal.

The court found that s 186 of LEPRA empowered the police officers to close Oxford Street. Once that occurred, Mr Hutchinson had no right at common law or under statute to cross the street and police officers had power to “prevent” any persons coming onto the street. It was then an offence for a person to fail or refuse to comply with that power. [55]-[65] Despite the fact that Oxford Street was closed, Mr Hutchinson sought to cross it in any event. He had no authority to go onto the street because the authority he would have had under statute and at common law was withdrawn while the street was closed. He was therefore trespassing. [76] Once he continued to walk across the street, the police officers had a power of arrest and a power to use force in the context of that arrest. Those powers were contained in s 230 and 231 of LEPRA and supplemented their powers at common law. [73]-[74]

Accordingly, the court dismissed Mr Hutchinson’s appeal.

This article first appeared in the CCH Australian Tort, Personal Injury, Health and Medical Law Tracker and is reproduced in full with permission from CCH, a division of Wolters Kluwer Australia: www.wolterskluwer.cch.com.au

The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.

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