State of New South Wales v Kouumdjiev [2006] HCATrans 7 (3 February 2006)

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State of New South Wales v Kouumdjiev [2006] HCATrans 7 (3 February 2006)

Last Updated: 10 February 2006

[2006] HCATrans 007

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S381 of 2005

B e t w e e n -

STATE OF NEW SOUTH WALES

Applicant

and

SVETOSLAV KOUUMDJIEV

Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 3 FEBRUARY 2006, AT 9.33 AM

Copyright in the High Court of Australia

MR P. MENZIES, QC: I appear with my learned friend, MR N. PERRAM, for the applicant. (instructed by Crown Solicitor for New South Wales)

MR R.S. TONER, SC: May it please the Court, I appear for the respondent with my friends, MR I.D. CULLEN, and MR T.V. HICKIE. (instructed by Marea A. Hickie)

GLEESON CJ: Yes, Mr Menzies.

MR MENZIES: Your Honour, this is a short, as the size of the application book might indicate, but significant matter for the Crown and for property law generally. The simple proposition is this, that if a tenant in common can revoke a licence granted by another tenant in common in circumstances such as were outlined or occurred in the facts before your Honours then it produces some bizarre and chaotic results.

GLEESON CJ: Mr Menzies, I understand the point that you want to agitate, but even if we were to resolve that point in favour of your side, how would that affect the outcome of the case? There were findings of fact, were there not, that the police, once they got in, assaulted the plaintiff?

MR MENZIES: They affect the outcome only in quantum, your Honour.

GLEESON CJ: How do they affect the outcome in quantum?

MR MENZIES: Because if this appeal were successful, then it would follow that the entry by the police was lawful, the arrest was lawful. We take no issue with the finding with respect to the assault.

GLEESON CJ: Why was the arrest lawful?

MR MENZIES: Because the entry was lawful, your Honour.

GLEESON CJ: I understand why, if the entry was unlawful, the arrest was unlawful. I just want to understand why the lawfulness of the entry necessarily meant that the arrest was lawful.

MR MENZIES: For the reason that the conduct of Mr Kouumdjiev in the course of police entry was unlawful conduct inasmuch as he was resisting the police in the execution of their duties, therefore - - -

GLEESON CJ: What was he being arrested for?

MR MENZIES: Obstructing police and resisting, the circumstances being that one had the rather bizarre set of events going on, that is, the police on the outside trying to get in to deliver Mrs Docherty to her front door, she being an inebriated person and the police exercising their power to take her home, and for reasons which are entirely opaque Mr Kouumdjiev on the other side of the door preventing them.

GLEESON CJ: I am just interested to understand why the lawfulness of the arrest stood or fell on whether the police were trespassers.

MR MENZIES: The findings of the trial judge in the Court of Appeal really went to the excessive use of force.

GLEESON CJ: Yes, the trial judge found, as I recollect it, that once they got in the police went for him.

MR MENZIES: Went for him, yes, your Honour. The police cannot be forgiven for the circumstances that gave rise to their conduct, that it obviously arose out of a sense of frustration, in the circumstances. Once the police were on site, if they had arrived there lawfully, then they were entitled, because of his conduct, to arrest him because of it.

GLEESON CJ: Not if they were engage in a punitive exercise they were not entitled to arrest him, were they?

MR MENZIES: No, your Honour, but if the punitive exercise occurred - - -

GLEESON CJ: They were not entitled to arrest him by way of punishing him for resisting their entry?

MR MENZIES: No, your Honour, but they were entitled to arrest him not as punishment for resiting their entry but because he committed an offence of obstructing them in the course of their duty.

GLEESON CJ: But your entitlement to arrest people depends upon your thinking they are going to escape, does it not? The power of arrest is not a punitive power.

MR MENZIES: No, your Honour.

GLEESON CJ: It is a power to be exercised because you think people might escape due process of law if you do not arrest them, is it not?

MR MENZIES: It is a power also to take them to a place where they can be charged.

GLEESON CJ: Yes. As I have indicated to you, what I really need to understand is why the point of law about whether the police were trespassers, if resolved in your favour, would mean that the appeal would succeed.

MR MENZIES: It would succeed in part, your Honour, because it would then require the matter to go back to the trial judge for assessment because the issue then that arises is the quantification of the damages for the assault about which we take no issue.

GLEESON CJ: As compared with the damages for what?

MR MENZIES: The damages for assault and the wrongful arrest and imprisonment.

GLEESON CJ: One lump sum was awarded, was it not?

MR MENZIES: Yes, your Honour, but it also included aggravated damages. The aggravated damages were not separately identified. The aggravated damages, one would have thought, would go to issues which were no longer alive if the finding was that the arrest was lawful.

GLEESON CJ: The police took to him with a baton, did they not?

MR MENZIES: The police struck him with a baton once, yes, your Honour. That was the finding.

GLEESON CJ: That would be the source of the aggravated damages, I presume.

MR MENZIES: That and the arrest, per se.

HEYDON J: On page 29, paragraph 78 the trial judge though says:

The police officers . . . took out their frustration on the plaintiff when he was placed under arrest. I am of the view that, under the circumstances, aggravated damages are appropriate –

Does that not suggest that they were for the beating as distinct from the wrongful entry into the building?

MR MENZIES: It may be both, your Honour. Obviously, the concern for the State is the matter of principle and the significant matters which would arise as a consequence of this finding, because what it means is that a person coming to a home unit block, as an example, can be, for reasons
which can remain entirely opaque, be excluded from entry by any one person who is a tenant in the block when their entry has been authorised by somebody else, and this has obvious practical ramifications. Those are our submissions, your Honour.

GLEESON CJ: Mr Toner.

MR TONER: Your Honour, our first submission is that the Court of Appeal is correct, and obviously so.

GLEESON CJ: It will be evident to you from the exchange with Mr Menzies that we understand that an interesting point of property law was raised in the Court of Appeal but what we are trying to work out is the relationship between that point of property law and the outcome of the case. In other words, what we are trying to work out is whether this is a suitable vehicle to deal with that point of property law or whether on the facts found the plaintiff would be entitled to his verdict and the appeal would fail in any event.

MR TONER: Yes, I understood that, your Honour. I think the thrust of our submissions was substantially directed to that proposition. We say that if leave is granted on this particular point it would be essentially an academic exercise because the outcome would be, we say, precisely the same and the verdict would stand. Assume for the moment that the police lawfully entered the property. Assume also that they lawfully were entitled to arrest him but they were not - - -

GLEESON CJ: Why would they be lawfully entitled to arrest him?

MR TONER: Can you just assume that for the moment?

GLEESON CJ: Yes.

MR TONER: I am just dealing with your Honour’s original question in terms of what the outcome would be. Assume also that the only verdict that he was entitled to was one for assault. We say that the outcome would be precisely the same in terms of the way it would sound in damages. So that even if the applicant succeeded on their revocation point and even if the applicant could demonstrate that the police were entitled to arrest, the outcome, we say, would still be the same, namely, that they would be liable for the assault and the damages that flowed from that would be the verdict that the trial judge awarded.

We do not surrender, of course, the proposition that the police were entitled to arrest. We say that if one looks at section 352 of the Crimes Act they were not entitled to arrest him in any event for a variety of reasons.
One was identifying the offence which he is supposed to have committed. That is the first proposition. Secondly, albeit it is not in our list, they would fail under Christie v Leachinsky points, namely, identifying the offence he is supposed to have committed, telling him why he is under arrest. These things never happened. Identifying themselves properly as police officers was not satisfied either.

GLEESON CJ: I am not sure what was made of this point at the trial or in the Court of Appeal but one of the most elementary propositions about arrest is that it is not a power to be exercised to punish people.

MR TONER: Quite, but I think when one looks at the trial judge’s findings, implicit in what he had to say and the point of his judgment that your Honour identified is that is precisely what they were doing. His Honour used the words, I think, “they went for him”, which, we say, implicit in all of that that they had had enough and that they were there to square up, so to speak, for what they perceived he had done in obstructing them in somewhat difficult circumstances, admittedly, for them but way in excess of what their capacities were as a police officer. It was just a brutal assault, in the end, on him.

So we say that even if they can demonstrate that Justice Hodgson was wrong on the revocation point, that the trial judge was wrong on the revocation point, even if the entry was lawful and even if they can demonstrate that they were entitled to arrest, which we say they were not entitled to do, they still failed in the result that the respondent would be entitled to a verdict and the quantum of the verdict would be the same. We say that this is not a proper vehicle for it even if Justice Hodgson is wrong on the face of it.

GLEESON CJ: Yes, Mr Menzies.

MR MENZIES: Your Honour, we dealt with the quantum issue more fully at paragraph 10 at page 55 of our submissions in reply.

GLEESON CJ: The decision of the Court of Appeal in this matter included reasoning on an interesting point of law concerning whether the police were trespassers when they entered the building in question. Special leave to appeal is sought for the purpose of raising that point of law for further consideration by this Court. However, it appears to us that the case is not a suitable vehicle for this Court to consider that question because, on the facts found at trial and in the Court of Appeal, the plaintiff was entitled to a substantial verdict of the order of the verdict that was ultimately entered and the appeal would fail.

In those circumstances, the application for special leave to appeal is refused with costs.

MR MENZIES: If the Court pleases.

AT 9.47 AM THE MATTER WAS CONCLUDED