Shalhoub v State of New South Wales [2017] NSWDC 363

Greg Walsh acted for Andrew Shalhoub, who was successful in his District Court Action Shalhoub v State of New South Wales [2017] NSWDC 363.

In this matter Greg Walsh acted for Andrew Shalhoub who on the 7th of June 2015 was 19 years of age. He was with a friend, Mustapha Neffati, at a gathering at a home in southern Sydney on the evening of Sunday 7 June 2015. At about 2:00am on Monday morning, a public holiday, Mr Nefffati contacted his brother Wassim Neffati, to come and collect him and Mr Shalhoub. When Wassim arrived, Mustapha and Mr Shalhoub got into the car and they commenced the return journey. Mr Shalhoub was in the rear of the car. As they proceeded from the cul-de-sac onto David Road at about 2:20am, Police activated flashing lights and Mr Neffati pulled over. Mr Shalhoub, Wassim and Mustapha were in instructed by Police to put their hands out of the car. Mr Shalhoub was then pulled from the car, taken to ground, struck several times including blows to his head whilst he lay faced down on the ground, He was handcuffed, searched and eventually informed that he was under arrest. He was informed of his arrest at about 2:40am, allegedly for stalking a Police Officer. When the Police thereafter realized that he could not have been involved in any stalking, he remained under arrest and at 3:05am taken to a Police Station arriving at 3:25am. A police interview was conducted in connection with an investigation of “resist arrest”, no charges were laid and Mr Shalhoub was released from police custody later that morning at about 7:40am.

Wassim Neffati, had been awaken at about 2:00am to collect his brother and Mr Shalhoub. He proceeded behind a private motor vehicle driven by an off duty female officer who had just left Revesby Police Station in close proximity to where Wassim and his brother lived with their mother. Two officers namely, Troy Skinner and Matthew Poulton, also left Revesby Police Station at the end of their shifts. They observed the grey Lexus driven by Wassim Neffati make a U-turn and proceed behind the private vehicle known by them to be driven by the female officer. The private vehicle, followed by the Lexus, proceeded in a direct route to a nearby main road, Davies Road, where each car turned right, to the south. Skinner and Poulton formed the viewed that the Lexus was following and stalking the private vehicle driven by the off duty officer and telephoned the Police Station to report the suspected stalking. Other Police responded.

At about 3km from the Police Station, the private vehicle took an exit from Davies Road onto Clancy Street. Skinner saw a car on Clancy Street and assumed it was the private vehicle containing the female off duty officer that had taken the exit. The Lexus did not follow but continued a further 7km along Davies Road, Alfords Point Road which it became New Illawarra Road and ultimately to the cul-de-sac off David Road. Skinner and Poulton discussed the fact that the Lexus vehicle had stopped travelling behind the private vehicle. However, this factual observation by Skinner and Poulton was not relayed not any other Police Officer. Skinner and Poulton gave information to assist other on duty Police Officers to locate the grey Lexus.

The action was heard over 13 days by P Taylor SC DCJ. A critical issue that arose was the suspicion as to s.99(1) Law Enforcement (Powers and Responsibilities) Act 2002.

The issues

The State of New South Wales denied any assault and pleaded a lawful arrest. It was clear the Lexus had voluntarily pulled over in response to Police flashing lights. Whether this could constitute an arrest did not arise, as in submissions, the State’s case was that the Police had reasonable grounds to suspect that the Plaintiff had committed the offence of stalking for the purposes of s.99 of LEPRA. The people who conducted the physical arrest of the Plaintiff were the Constables who removed him from the vehicle. According to the State of New South Wales, the process began when they stopped the car. However “… but obviously at some point the actual arrest begins and that arrest begins when the Officers who go to the car acting in accordance with their instructions take steps to remove them from the car and handcuff them”. The direction for the arrest was given by Mr Love and other Police Officers. Thus his Honour was not required to decide whether a direction to get out of the car constitutes an arrest. See State of New South Wales v Exton [2017] NSWCA 294.

Sub-section 99(2) of LEPRA, entitles an arresting Police Offcer to rely on the appropriate direction from another Police Officer. However the directing officer is precluded from giving a direction unless he or she satisfies the requirements of s.99(1). In the event that the directing officer does not satisfy the requirements of s.99(l), the directing officer (rather than the arresting officer) is liable as if the directing officer had committed the unlawful arrest.

Taylor DCJ held that the lawfulness of the exercise of the statutory power must depend upon the statutory conditions governing its exercise.

His Honour examined in detail the evidence of a number of Police Officers namely, Senior Constable Skinner, Senior Constable Poulton, Senior Constable Hurney, Constable Dunn, Constable Muir and Leading Senior Constable Love.

In respect of suspicion of stalking based on reasonable grounds, his Honour found at [21] that stalking itself is insufficient to establish the offence.

In respect of Senior Constable Skinner and Poulton, his Honour at [25] found that officers Skinner and Poulton were not the arresting officers nor did either of them direct the arrest. The arrest was affected by Constables Dunn and Muir and assisted by Senior Constable Hurney.

At [31] his Honour found that Officer Hurney was not the arresting officer. Officer Dunn was informed by an off-duty police officer was being followed home. Officer Dunn traveled with Officer Love and Senior Constable Casey to the scene with lights and sirens on. His Honour found that obviously Dunn was involved in striking Mr Shalhoub as he attempted to have Mr Shalhoub handcuffed, Officer Muir handcuffed Mr Shalhoub and Officer Dunn conducted a body search [32].

At [39] his Honour observed that Officer Dunn did not give evidence of holding any belief or suspicion that the occupants of the Lexus was stalking or had the requisite intent. Thus, he could not infer this belief or suspicion. At the time Officer Dunn got Shalhoub out of the car, he was told to do so and he had no “intention in his own mind” as to what he would once Mr Shalhoub was out of the car. Therefore Officer Dunn removed Mr Shalhoub from the car because he was told to do so by Officer Love. His Honour at [41] found that the removal of Mr Shalhoub by Officer Dunn forcefully from the car, was not based on a direction formally to arrest, detain, subdue or restrain Mr Shalhoub, nor on a reasonable based suspicion that he needed to do that under s.99(l) or (2) of LEPRA.

At [43] his Honour noted that there is an important distinction between a direction to “get them out of the car” and a direction to “arrest them” See State of New South Wales v Exton [2017] NSWCA 294.

In respect of Officer Muir, his Honour did not accept that the direction from Officer Love embraced getting Mr Shalhoub onto the ground [49].

His Honour found that Officer Dunn and Officer Muir, forcefully removed Mr Shalhoub from the rear passenger seat of the car on the instruction of Offcer Love. Mr Shalhoub was there after brought to the ground. Officer Dunn and Offcer Muir gave evidence of the direction by Officer Love, but on the direction found by his Honour, the arrest of Mr Shalhoub could not be justified by it.

His Honour at [56] found that the telephone call “concerning a suspect vehicle that may have been following a Police Officer” was not persuasive but Officer Love had a suspicion on reasonable grounds that Mr Shalhoub had committed the offence of stalking under s. 13 of the Crimes P VA Act.

At [59] his Honour made findings that:

  1. Neither Officer Muir and Dunn were directed to arrest Mr Shalhoub; and
  2. None of the Officers Love, Muir or Dunn suspected on reasonable grounds that Mr Shalhoub had committed an offence.

At [63] his Honour made a finding that no officer gave evidence concerning the reasonable necessity for the arrest.

The State of New South Wales pleaded that the specified reason for the arrest under s.99(l)(b) of LEPRA was “to stop the person committing or repeating the offence or committing another offence”. However no officer gave evidence of a belief that an arrest was reasonably necessary to prevent the continuation, repetition or commission of any offence.

At [68] his Honour found that there was no obligation on a Plaintiff to plead to a defense. See Rule 14.27 of the Uniform Civil Procedure Rules 2005 (“UCPR”).

The State argued that Mr Shalhoub in the Amended Statement of Claim had pleaded that at the time of the arrest that he, the Plaintiff, was not informed of the reason for his arrest despite asking Police on a number of occasions as to the reason why he was being arrested. According to the State, this limited the issue of unlawfulness of the arrest as to whether or not the Plaintiff was informed of the reason for his arrest, His Honour rejected this argument.

Informed of arrest as soon as reasonably practicable

A Police Officer who arrests a person but fails to give the frue reason for the arrest is liable for false imprisonment: Christie v Leachinsky [1947] AC 573, 587; State of NSW v McCarthy [201 5] NSWCA 153 at [78]; ss.201 and 202 ofLEPRA.

At [81] his Honour found that no explanation was given by Love, Dunn, Muir or Hurney as to why they did not identify themselves and provide a reason for the arrest of Mr Shalhoub or his removal from the car.

At [87] his Honour found that the Police approached the Lexus and that it had pulled over, was stationary and the occupants remained in the car. His Honour could see no reason why the occupants could not be informed at that time of the reason for them being stopped and being directed to get out of the car. The suspicion that they had recently been following a Police Officer from near Revesby Police Station and down Davies Road could have been readily and briefly stated.

At [89] an issue arose as to whether a failure to provide as soon as reasonably practicable a reason for the arrest could retrospectively render prior conduct unlawful. In the State of NSW v McCarthy [2015] NSWCA 153 at [78] and [79] it was found that “the lawfulness of that exercise is not expressed to be contingent on the subsequent provision of information”.

Was reasonable force used

Reasonable force is no defence to the Plaintiffs claim if the arrest was otherwise unlawful. If contrary to his Honour’s findings, the arrest was lawful, the Police were still obliged to use reasonable force (see LEPRA, ss230, 231).

At [92] his Honour found that Officer Dunn struck the Plaintiff on the head on a number of occasions whilst Mr Shalhoub was lying face down on the ground. Officer Dunn described this as a “hammer strike “. Officer Dunn asserted that he did not intend to hit Mr Shalhoub on the side of the head. Officer Dunn noticed that Mr Shalhoub had blood on his mouth and some swelling on the right side of his face. His Honour found the evidence of Dunn to be difficult to accept.

The record of interview and photographs of the Plaintiff demonstrated observable facial and head injuries which came out of the incident. Officer Dunn was not a small man and he admitted to striking Mr Shalhoub on the head a “few times”, “at least twice”.

Officer Dunn conducted a personal search of Mr Shalhoub, after he was handcuffed. Mr Shalhoub gave evidence that the Police Officer felt his private parts, he said to Officer Dunn when Officer Dunn said “mate what’s there? ” “it’s my penis. “ Officer Dunn then undid his pants and started “taking my penis out and grabbed it and I started screaming at him and then he stopped it”.

His Honour referred to the record of interview and the fact that Officer Muir was present and saw everything. In the record of interview he said “that wasn’t me Andrew …yeah that wasn’t me Andrew”. Such an acknowledgment bore that the allegations made by the Plaintiff were truthful in the record of interview.

At [117] his Honour accepted that the Plaintiff was searched about his groin area, that his belt was removed and the top button of his jeans was undone and that Officer Dunn squeezed his penis “whilst scrunching his pockets”. His Honour made a finding that he was not satisfied of the manner of the search that was conducted involved only such force as was reasonable necessary.

Was the period of detention justified?

His Honour found that there was no basis to continue the Plaintiff’s arrest after 3:05am, by which time the Police were aware that he was not in the Lexus at the time of the suspected following of the off duty police officer.

Damages

His Honour gave lengthy reasons in respect of damages and referred to Zaravinos v The State of New South Wales (2004) 62 NSWLR 58 [2004] NSWCA 320 (another case in which Mr Walsh represented the Plaintiff). In Zaravinos the detention was 3 hours and 23 minutes of detention which was found to be “unnecessary, high handed, humiliating and unnecessarily long”.  His Honour awarded the following compensation:

  • Compensatory damages for wrongful arrest/false imprisonment, including aggravated damages $35,000.00
  • Compensatory damages for assault and battery including aggravated damages $30,000.00
  • Exemplary damages $ 15,000.00
  • Interest $2,018.63
  • Total $82,018.63