Attalla v State of NSW [2018] NSWDC 190
Facts:
On an early morning, three police officers confronted Mr Attalla (Plaintiff) sitting on a stone wall in front of a church texting on his mobile phone.
One of the police members, Officer Cruickshank, suspected that Mr Attalla possessed prohibited drugs and thereby proposed he be searched. After Mr Attalla refused to submit, Officer Cruickshank told Mr Attalla he was under arrest for hindering police in the execution of their duty to conduct a search. Senior Constable Andrew Price then arrived at the scene and imposed a wrist lock on Mr Attalla, handcuffed him and conducted a search. No drugs were found.
Mr Attalla was taken to Kings Cross Police Station and was subjected to a strip search by two male officers under the direction of Officer Cruickshank. Mr Attalla was given a Court Attendance Notice for hindering police in the execution of the duty and was allowed to leave the police station. The court proceedings were ultimately dismissed. Mr Attalla sued the State of New South Wales (Defendant) for wrongful arrest, and assault and battery by the police officers.
The State conceded the strip search was unlawful shortly prior to the trial. The continued unlawful imprisonment was admitted by the State during the trial. Therefore, the State conceded that it was not entitled to continue the arrest of Mr Attalla after the initial search and to take him back to the police station.
Judgement:
The NSW District Court ruled in favour of the Plaintiff. The wrongful arrest and the relatively low-level assault by the police were established. His Honour found there were no reasonable grounds for Officer Cruickshank suspecting that Mr Attalla possessed prohibited drugs, and therefore the police officer had no lawful justification to search him. Although Mr Attalla’s resistance to a search was the basis of Officer Cruikshank’s suspicion or belief that he had committed an offence of hindering police, that suspicion is only reasonably based if the entitlement to search exists, or is reasonably believed to exist. There was no entitlement to search Mr Attalla because there was no reasonable basis for a suspicion of possessing unlawful drugs.
Additionally, no justification for the assault by Officer Price was pleaded, the unlawfulness of the assault was never conceded, and the reliance of s230 of LEPRA, where it is lawful for a police officer to exercise such force that is reasonably necessary to exercise a function under the LEPRA Act, only faintly maintained. His Honour found the conduct of Officer Price in searching and handcuffing Mr Attalla constituted an unlawful arrest.
The Plaintiff was awarded compensatory, aggravated and exemplary damages.
