Wilson v State of NSW [2009] NSWDC

Wilson v State of NSW [2009] NSWDC

On Wednesday, 25 February 2004, two sheriff’s officers, Mr Davies and Ms Lomas entered the home of Mr and Mrs Wilson at Leonay with a property seizure order relating to unpaid traffic fines owed by Mr Wilson to the State. A conversation occurred between the officers and the Wilsons through a screen door and then an incident occurred in which the Wilsons alleged that Officer Davies assaulted Mr Wilson by kicking the screen door into his face and the Sheriff’s officers failed to leave the premises notwithstanding a clear instruction by Mr Wilson to go. The Sheriff’s officers claimed that Mr Wilson charged out the door and assaulted Officer Davies who then placed Mr Wilson under arrest. Mr Wilson then locked himself inside of the house and the officers left the premises.

The officers went to the street where the police were called. They observed Mr Wilson to emerge from the house and get into his car in the driveway. Officer Davies entered the premises onto the driveway and removed the keys from the car. A physical altercation occurred between the two men during which Officer Lomas came onto the premises and sprayed Mr Wilson with capsicum spray. There was conflict as to what occurred. The Sheriff’s officers claimed that after Officer Davies took the car keys Mr Wilson punched him and then got out and launched a sustained attack on him against which he was forced to defend himself. Mr Wilson claims that he only used such force by way of response as was reasonably required in the circumstances.

Police Officers, sheriff officers and ambulance officers then arrived. Officer Davies and Mr Wilson were taken to hospital in separate ambulances. The sheriff’s officers went into the house and seized and took away certain goods pursuant to the Property Seizure Order. Mrs Wilson claimed that these officers entered the house without her permission.

On Thursday 26 February 2004, Mrs Wilson paid the outstanding traffic fines but was unsuccessful in her attempt to recover the goods from the Sheriff’s Department.

Two days later on Saturday 28 February 2004 Mr and Mrs Wilson attended at the Penrith Police Station where Senior Constable Janovsky and another police officer interviewed Mr Wilson by way of an ERISP. Mr Wilson claimed that soon after his arrival at the station he was arrested and detained in custody for 4 hours and 20 minutes.

Three weeks later, Senior Constable Janovsky instituted criminal charges against Mr Wilson alleging that he assaulted Officer Davies on 25 February 2004. Janovsky pursued and maintained the prosecution notwithstanding a letter from Mr Wilson’s solicitors dated 9 September 2004 seeking withdrawal of the charges. The charges were ultimately heard in the Local Court but were dismissed on 9 November 2004.

Mr Wilson claimed substantial damages including exemplary and punitive damages.

The issue of trespass on initial entry

Judge Johnstone considered the well known authorities of Halliday v Neville (1984) 155 CLR 1 at 6-9 and Lipman v Clendinnen (1932) 46 CLR 550 at 557-8. The defendant’s case was that the Sheriff’s officers had lawfully entered the premises pursuant to a licence implied by law. The plaintiff’s case was that if the permission or licence to enter premises was withdrawn and the entrant then remains on the premises for an unreasonable time, the entry becomes a trespasser: Cowell v Rosehill Race Course Co Ltd (1937) 56 CLR 605.

Johnstone DCJ held that the licence pursuant to which the officers were on the verandah was never withdrawn. Mrs Wilson did not ask the officer’s to leave and at no stage did Mr Wilson identify himself as someone with the apparent authority to revoke the licence. His Honour was comfortably satisfied that Mr Wilson’s immediate and sudden attack left the officer’s no time to withdraw and as such, the Sheriff’s officers did not commit a trespass.

The issue of estoppel

The plaintiff contended that the defendant was estopped from denying that Officers Davies and Lomas were trespassing during the initial entry. This arose from the initial finding by the Magistrate against the plaintiff to the effect that Davies and Lomas were trespassers from the moment they entered the premises.

Johnstone DCJ found that the parties in both sets of proceedings were not identical. His Honour found that there were no allegations in respect of the cause of action against the Crown and the right of the State of New South Wales arising from the actions of Officers Davies and Lomas. Further, that the doctrine of issue estoppel is not applicable to criminal proceedings: R v Storey [1978] HCA 42 at 39; Rogers v The Queen [1994] HCA 42 at 1.

Did Officer Davies assault Mr Wilson during the initial entry?

His Honour was comfortably satisfied that Mr Wilson assaulted Officer Davies in a manner totally disproportionate to the circumstances that arose and as a result of which Officer Davies was entitled to arrest Mr Wilson immediately after the offence.

The second entry by Davies and Lomas

His Honour found that whilst waiting at the car for the arrival of the police, Davies and Lomas saw the plaintiff exiting the front door of the house and proceed down the outside stairs to a BMW car in the lower driveway. Davies called out “Sir, stay where you are you’re under arrest. The Police are on their way.” The plaintiff however proceeded to the car, got in the driver’s seat, placed the keys in the ignition and started the engine. Davies went up to the driver’s door and said, “Stop.” The plaintiff replied “Fuck you”. Davies reached into the car, grabbed the keys, turned the motor off and pulled the keys out and placed them in his pocket. He told the plaintiff that he was under arrest. At this stage, the plaintiff punched Davies in the chest striking him on the left side and knocking him off balance. Lomas moved out of the driveway and moved towards him. She observed the plaintiff to emerge from the car and scream “I’m not under fucking arrest”. Davies moved towards the rear of the car whereupon the plaintiff charged him and punched him on the left cheek, his head jerked back and his upper body turned to the left but he did not fall over. The plaintiff then struck him with a series of further punches to the head and body. Davies managed to grab the plaintiff’s arms and smother his punches and the two struggles for several minutes. Davies punched the plaintiff on the chin and pushed him to the side of the car. The plaintiff kept struggling and trying to punch Davies. Lomas got out her OC spray and sprayed the plaintiff.

Johnstone DCJ found that the second entry by Davies onto the driveway did not constitute a trespass.

The defendant’s contention that Davies and Lomas were entitled to re-enter the land and seize the car keys to prevent the plaintiff from driving onto a public road relied upon the High Court decision of Gorrin v Nugent [1988] HCA 59 per Brennan J at 16. This contention was upheld by Johnstone DCJ.

Did Davies assault the plaintiff during the second entry?

His Honour found that the plaintiff was wrongfully detained and falsely imprisoned when Davies removed the keys from the car. However, that detention was limited to the plaintiff’s driving of the car. That detention was of an extremely short duration until Davies punched the plaintiff, being an excessive response totally disproportionate to the removal of the keys when he arrested Mr Wilson in the car.

Did Davies wrongfully arrest the Plaintiff during the second entry?

Johnstone DCJ found that the Plaintiff’s response was unreasonable and totally disproportionate in the circumstances. He was under no physical threat; his personal safety was not threatened. The plaintiff did not even get out of the car before he punched Davies. His Honour found that the response of the plaintiff justified Davies in defending himself. Thus, the arrest of the Plaintiff during the second entry was not wrongful.

The seizure of the plaintiff’s goods

Johnstone DCJ found that the goods were not wrongfully detained by the Sheriff for the period from 26 February 2004 to 16 March 2004. See Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54. His Honour found that neither the plaintiff nor his wife revoked the original licence. The other Sheriff’s officers who entered the property were entitled to go onto the plaintiff’s property for the legitimate purpose of executions of a Property Seizure Order and to make enquiries of the plaintiff’s wife. This was particularly so when the plaintiff denied ownership of the contents of the house.

Events at Penrith Police Station

Johnstone DCJ found that Senior Constable Janovsky did not wrongfully arrest the plaintiff at Penrith Police Station on the evening of Saturday 28 February 2004. His Honour found that the Custody Management Record was a totally unreliable record. His Honour found that the plaintiff attended the Penrith Police Station of his own free will. He was never told he was under arrest. In this regard, the lawyers who drafted the original defence admitted the arrest. Johnstone DCJ allowed the admission to be withdrawn.

Johnstone DCJ came to the view that the Custody Management Record was a totally unreliable record.

His Honour despite the use of the word “arrest” as used by Inspector Bisset when questioning Senior Constable Janovsky to that of Inspector Bisset.

Did Senior Constable Janovsky prosecute Mr Wilson maliciously?

Johnstone DCJ considered A v New South Wales [2007] HCA 10 and Hathaway v State of New South Wales [2009] NSWSC 116.

Johnstone DCJ referred to the state of mind of Senior Constable Janovsky that he Janovsky preferred the version of the Sheriff’s officers than that of the plaintiff. As such, his Honour found that Janovsky formed the honest belief that the officers were lawfully upon the premises and, as such, justifying the prosecution. His Honour rejected the proposition that the proceedings were instigated for the improper purpose of satisfying the will of the Sheriff’s office. Also, his Honour rejected the proposition that the proceedings were instituted to discourage the plaintiff from bringing proceedings against him or the Sheriff’s officers.

Did Officers Davies and Lomas maliciously prosecute Mr Wilson?

Johnstone DCJ found that Davies and Lomas did not maliciously prosecute the Plaintiff as neither Davies nor Lomas were prosecutors.

Section 52 and 54 Civil Liability Act 2002 (NSW)

The defendant relied upon the provisions of ss. 52 and 54 of the Civil Liability Act. The defendant relied upon the plaintiff’s “aggressive, excessive and violent” conduct in response to Officers Davies and Lomas.

The plaintiff contended that these sections have no application because the defendant failed to satisfy the Court that any act of physical force employed by the plaintiff to which Davies and Lomas were responding at any time constituted an action for assault, were more than a necessary consequence of their own condition and behaviour.

Johnstone DCJ found that the defendant was entitled to protection provided for in s52 in respect of the allegations of assault and battery in the plaintiff’s second further amended statement of claim.


The matter was adjourned for written submissions in light of his Honour’s findings and in particular as to s54, damages and costs.

On 31 July 2009 Judge Johnstone of the District Court delivered reasons for judgment as to damages arising from his Honour’s judgment on liability handed down 30 April 2009.

His Honour at [24] found that the Plaintiff had not proven any psychological condition suffered by him was caused or materially contributed to by any torturous conduct for which the defendant was responsible.

As such, his Honour made no award of damages to the plaintiff by way of compensation for any injury, loss or damage including any special damages, any damages for loss of earning capacity and any damages for pain and suffering or loss of enjoyment of life in respect of any physical or psychological consequences of the torturous conduct which his Honour found occurred.

His Honour then considered s.54 of the Civil Liability Act upon which the Defendant relied in answer to the whole of the Plaintiff’s claim.

  1. A Court is not to award damages in respect of liability to which this Part applies if the Court is satisfied that:
    1. the death of, or the injury or damage to, the person that is the subject of the proceedings occurred at the time of, or following, conduct of that person that, on the balance of probabilities, constitutes a serious offence, and
    2. that conduct contributed materially to the death, jury or damage or to the risk of death, injury or damage.
  2. This section does not apply to an award of damages against a defendant if the conduct of the defendant that caused the death, injury or damage concerned constitutes an offence (whether or not a serious offence).
  3. A “serious offence” is an offence punishable by imprisonment for 6 months or more.
  4. This section does not affect the operation of the Felons (Civil Proceedings) Act 1981.
  5. This section operates whether or not a person whose conduct is alleged to constitute an offence has been, will be or is capable of being proceeded against or convicted of any offence concerned.

His Honour observed that s.54 of the Act does not concern the liability of the defendant but is directed against an award of damages rather than the existence of a liability. It is for the defendant to establish the matters in the sub paragraphs of s.54(1). Evidential Security Services of Australia v Brilley [2008] NSWCA 204 at [124].

His Honour found at [31] that the evidence was insufficient for the Court to be satisfied what matters materially contributed to the plaintiff’s injury or damage let alone that his conduct did so, and if so, what the conduct was, when it occurred and whether it constituted a serious offence. See Fangak v Baxter [2000] NSWCA 264 at [84].

Ex-turpi causa non actio

The defendant contended that the plaintiff was disentitled for recovery of any damages by reasonable operation of the principle of ex-turpi causa non actio, such that his own lawful conduct precludes recovery. This contention relied upon a number of findings of His Honour as to liability.

His Honour observed that the principle of ex-turpi causa non actio was never pleaded. The defendant contended that it was not required to plead reliance upon the principle. His Honour observed that whether or not it should have been pleaded, clearly the plaintiff could not complain that he was taken by surprise.

His Honour observed at [35] it could not have been an intentional parliament to replace the common law principles in the area and as such s.54 of the Civil Liability Act did not replace the doctrine.

The defendant relied upon the assault of Officer Davies by the plaintiff on his verandah and his subsequent resistance and avoidance of the attempted arrest by Officer Davies in giving rise to the precise conduct relied upon. That is the only unlawful conduct on the plaintiff’s part that preceded the torturous conduct of Officer Davies in the second entry onto the plaintiff’s premises.

His Honour at [40] found that the conduct of the plaintiff on the verandah was sufficiently serious or sufficiently proximate to the torturous conduct of Officer Davies in the driveway to preclude the recovery of damages.

His Honour awarded the plaintiff general damages of $15,000. His Honour also awarded the Defendant to pay the Plaintiff’s costs on an indemnity basis.

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