COSENZA v STATE OF SOUTH AUSTRALIA 2026] SASCA 49

On Appeal from SUPREME COURT OF SOUTH AUSTRALIA (THE HONOURABLE JUSTICE MCDONALD) [2024] SASC 97 Appellant/Cross-Respondent: DEAN COSENZA Counsel: MR G WATSON SC WITH MR P ADAMS - Solicitor: LINDBLOMS LAWYERS Respondent/Cross-Appellant: THE STATE OF SOUTH AUSTRALIA Counsel: MR T GOLDING KC WITH MR W AMBROSE - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: 12/11/2025, 13/11/2025 File No/s: CIV-24-010287 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. COSENZA v STATE OF SOUTH AUSTRALIA [2026] SASCA 49 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice Stanley and the Honourable Auxiliary Justice Mitchell) 7 May 2026 TORTS - INTERFERENCE WITH THE PERSON - TRESPASS TO THE PERSON TORTS - ABUSE OF LEGAL PROCESS - MALICIOUS PROSECUTION - ESSENTIALS OF ACTION - GENERALLY TORTS - MISCELLANEOUS TORTS - MISFEASANCE IN PUBLIC OFFICE TORTS - INTERFERENCE WITH THE PERSON - FALSE IMPRISONMENT - LAWFUL JUSTIFICATION - ARREST AND DETENTION AND IMPRISONMENT IN CRIMINAL PROCEEDINGS TORTS - INTERFERENCE WITH PROPERTY - TRESPASS TO LAND - GENERALLY TORTS - INTERFERENCE WITH PROPERTY - TRESPASS TO LAND - REMEDIES - DAMAGES During the evening of 3 April 2015, the appellant was placed under arrest by a SAPOL officer. The appellant was observed to be driving his car erratically, behaving aggressively and refusing an alcotest. While being handcuffed, the appellant appeared to experience a medical episode. The police officer decided to “unarrest” him and call for assistance. The appellant was then taken to hospital where a blood sample was taken. It showed a blood alcohol level of 0.011 per cent, well below the legal limit for driving. The appellant was charged with refusing to submit to an alcotest. Following four unsuccessful attempts by SAPOL officers to serve a summons on the appellant at the house where he lived with -- 1 of 49 -- his mother (the Woodville South property), a police officer in prosecutions sought a warrant for the appellant’s arrest with a “no bail” endorsement. The warrant was executed on the morning of 30 August 2015, and the appellant was kept in custody before being granted bail the following morning. On 3 May 2016, the charge was withdrawn, predominantly on public interest grounds. The appellant brought civil proceedings against the State in the General Division of this Court, asserting various causes of action including false imprisonment, assault and battery in respect of an alleged unlawful arrest, unlawful imprisonment, malicious prosecution, misfeasance in public office and trespass. The trial judge held that, in order for a person to revoke an implied licence to enter a residential premises, there must be effective communication of the revocation. The signage at the property was inadequate in terms of the size and positioning of the signs to amount to an effective communication. [76] The trial judge dismissed all of the appellant’s claims apart from the allegations of trespass by the SAPOL officers when entering the Woodville South property to attempt to serve the summons. These claims were established on the basis that the appellant had, by correspondence to SAPOL, revoked the implied licence of police to enter the Woodville South Property. The trial judge awarded damages assessed at $40,000 plus interest in respect of the trespass claims. The appellant appealed on various grounds, including that the trial judge erred in failing to find that his arrests were wrongful and resulted in several trespasses to his person, and his subsequent prosecution constituted a malicious prosecution and misfeasance in public office. The State cross-appealed against the award of damages for trespass on the following grounds: • The appellant did not have a sufficient interest in the Woodville South property to either withdraw the implied licence or commence and maintain proceedings for damages in trespass in respect of entry onto that property. • Neither SAPOL officer had their implied licences revoked where neither were personally aware, and a reasonable person in their position would not know, that the implied licence had been revoked by means of correspondence sent to SAPOL. Held, allowing the appeal in part, but otherwise dismissing the appeal and allowing the cross-appeal: 1. Only Ground 7.2.3 of the appellant’s notice of appeal is established in part. The appellant’s claim for malicious prosecution in respect of the police officer applying for an arrest warrant with a “no bail” endorsement was established. [100], [105]-[124] 2. The assessment of damages for the appellant’s arrest and detention on 30 and 31 August 2025 must be remitted to the General Division for determination. [128] 3. Both grounds of the State’s cross-appeal are established. The award of damages in trespass must be set aside. The appellant did not have standing to make the claim in trespass. The appellant was not in joint possession of the Woodville South property with his mother, he had a licence or lodging arrangement. [140]-[143] 4. The sign at the front of the property was inadequate in terms of size and positioning to amount to effective communication of revocation of the implied licence. [151]-[153] 5. The trespass claim should also be dismissed on the basis that the SAPOL officers, but for s 65 of the Police Act 1998 (SA), were not liable in damages for trespass where they were not personally aware of the appellant’s earlier communications to SAPOL revoking the implied licence to enter the Woodville South property. [154]-[157] -- 2 of 49 -- Bail Act 1985 (SA) s 5(2); Police Act 1998 (SA) ss 65, 65(1), 65(2); Road Traffic Act 1961 (SA) ss 47E, 47E(3), 47E(4)(b), 47E(5a)(2); Summary Offences Act 1953 (SA) s 75; Summary Procedure Act 1921 (SA) ss 58, 59(1), referred to. Georgeski v Owners Corporation SP49833 (2004) 62 NSWLR 534, applied. Shannon v The State of New South Wales (2015) 20 DCLR (NSW) 144, distinguished. Dunshea v Ryan (1901) 1 SR (NSW) 163; Halliday v Nevill (1984) 155 CLR 1; Hampton v BHP Billiton Minerals Pty Ltd (No 2) [2012] WASC 285; MacIntosh v Lobel (1993) 30 NSWLR 441; Maynes v Casey [2011] NSWCA 156; Plenty v Dillon (1988) 50 SASR 407; Plenty v Dillon (1991) 171 CLR 635; Smith v Cotton (1926) 27 SR (NSW) 41; Varawa v Howard Smith Co Ltd (1911) 13 CLR 35; Wilson v The State of New South Wales (2010) 278 ALR 74, discussed. A v The State of New South Wales (2007) 230 CLR 500; Asher v Whitlock (1865) LR 1 QB 1; Beckett v The State of New South Wales (2013) 248 CLR 432; Bird v DP (a pseudonym) (2024) 98 ALJR 1349; Bride v Shire of Katanning [2013] WASCA 154; Brown v The State of Tasmania (2017) 261 CLR 328; Cannon v Tahche (2002) 5 VR 317; Chen v The State of New South Wales [2014] NSWCA 41; Christie v Leachinski [1947] AC 573; Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605; Cruise v The King [2025] SASCA 59; Coleman v Buckingham’s Ltd (1962) 63 SR (NSW) 171; Cosenza v Magistrates Court of South Australia [2016] SASC 181; Cosenza v State of South Australia [2024] SASC 97; Dial A Dump Industries Pty Ltd v Roads and Maritime Services (NSW) (2017) 94 NSWLR 554; Galea v Camilleri [2023] NSWSC 206; Ghazal v Government Insurance Office of New South Wales (1992) 29 NSWLR 336; Gibbs v Rea [1998] AC 786; Jones v Dunkel (1959) 101 CLR 298; Markisic v Department of Community Services (NSW) [2005] NSWSC 1373; Marks-Vincenti v The Queen (2015) 45 VR 313; Mabo v The State of Queensland (No 2) (1992) 175 CLR 1; Mohamed Amin v Jogendra Kumar Bannerjee [1947] AC 322; Mount Bischoff Tin Mining Co (Regd) v Mount Bischoff Extended Tin Mining Co (NL) (1913) 15 CLR 549; Mutton v Baker [2014] VSCA 43; New South Wales v Ibbett (2006) 229 CLR 638; Newington v Windeyer (1985) 3 NSWLR 555; Northern Territory v Mengel (1995) 185 CLR 307; Ocean Estates Ltd v Pinder [1969] 2 AC 19; Perry v Clissold [1907] AC 73; Phillips v Police (SA) (2020) 94 MVR 414; Queensland v Stradford (2025) 99 ALJR 396; Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679; Robson v Hallett [1967] 2 QB 939; Roy v Prior [1971] AC 470; Spark v Whale Three Minute Car Wash (1970) 92 WN (NSW) 1087; State of South Australia v Crossley [2020] SASCFC 128; The State of Western Australia v Ward (2002) 213 CLR 1; Walton v The Queen (1989) 166 CLR 283, considered. -- 3 of 49 -- -- 4 of 49 -- COSENZA v STATE OF SOUTH AUSTRALIA [2026] SASCA 49 Court of Appeal – Civil: Livesey P, Stanley JA and Mitchell AJA THE COURT: Summary 1 On the evening of Good Friday, 3 April 2015, Brevet Sergeant Graham, who was on a solo traffic patrol, observed the appellant driving his car erratically. Despite the fact that he was not intoxicated, the appellant refused to submit to an alcotest and faced Brevet Sergeant Graham in an angry and belligerent manner with his fists clenched. Brevet Sergeant Graham decided to place the appellant under arrest for failing to submit to an alcotest, and to handcuff the appellant for the officer’s own safety and to prevent the appellant from committing further offences. The appellant appeared to have a medical episode as he was being handcuffed. Brevet Sergeant Graham then decided to “unarrest” the appellant and to call for assistance. The appellant was taken to hospital where a blood sample was taken. The blood sample was subsequently analysed as showing a blood alcohol level of 0.011 per cent, well below the legal limit for driving. 2 The appellant was charged with refusing to submit to an alcotest. Four attempts by either Constable Kluzek or Senior Constable Mitchell to serve the appellant with a summons at the house where he lived with his mother in Woodville South (the Woodville South property) were unsuccessful. Eventually, on the application of Senior Constable De Bono, an officer of the prosecutions branch, a magistrate issued a warrant for the appellant’s arrest with a “no bail” endorsement. The “no bail” endorsement had the effect of removing the authority of police officers to grant the appellant bail. The arrest warrant was executed on the morning of 30 August 2015, and the appellant was kept in custody overnight before being granted bail by the Magistrates Court the following morning. 3 The prosecution continued under the management of persons other than Senior Constable De Bono until, on 3 May 2016, the charge was withdrawn, predominantly on public interest grounds. 4 The appellant brought civil proceedings in the General Division of this Court asserting various causes of action against the State, to which s 65 of the Police Act 1998 (SA) (Police Act) attributed what would otherwise have been the liability of the police officers. The causes of action advanced by the appellant included: (a) various tortious claims in respect of an alleged unlawful arrest by Brevet Sergeant Graham; (b) an alleged unlawful arrest and unlawful imprisonment in execution of the arrest warrant; -- 5 of 49 -- [2026] SASCA 49 The Court 2 (c) malicious prosecution by various officers of the charge of refusing an alcotest; (d) misfeasance in public office by Senior Constable De Bono in obtaining the arrest warrant; and (e) trespass by Constable Kluzek and Senior Constable Mitchell in attending the Woodville South property to attempt to serve a summons on the appellant. 5 The trial judge dismissed all of the appellant’s claims other than the allegations of trespass by Constable Kluzek and Senior Constable Mitchell in entering the Woodville South property to attempt to serve the summons. The trial judge found the trespass claims to be established, essentially on the basis that the appellant had, by correspondence to the South Australian Police Force (SAPOL) and the police complaints authority, revoked the implied licence of police to enter the property. While Constable Kluzek and Senior Constable Mitchell were not aware of this correspondence when they entered the Woodville South property, the trial judge found that it was incumbent on SAPOL to ensure the information was passed on to its officers. Her Honour awarded damages assessed at $40,000 plus interest in respect of the trespass claims. 6 The appellant appeals against the dismissal of his other claims and the assessment of damages on four grounds, numbered five to eight in the notice of appeal. In our view, only one of the grounds of appeal, being Ground 7.2.3, is established in part. That ground concerns the appellant’s claim for malicious prosecution in respect of Senior Constable De Bono applying for an arrest warrant with a “no bail” endorsement. In our view, the trial judge ought to have found that aspect of the malicious prosecution claim to have been established. This is on the basis that Senior Constable De Bono was the prosecutor who made the application for an arrest warrant with a “no bail” endorsement without reasonable and probable cause, and for the malicious purpose of punishing the appellant for being a “pain in the arse”. We would allow the appeal to that extent only and remit the assessment of damages for the appellant’s arrest and detention on 30 and 31 August 2015 to the General Division for determination. 7 The State cross-appeals against the award of damages for trespass on two grounds. In our view, both grounds are established. In essence, the trial judge erred in finding that the appellant had standing to make the claim on the basis that he was in joint possession of the Woodville South property with his mother. Her Honour ought to have found that the appellant was not in possession of that property and so could not obtain damages for trespass. The trespass claim should also have been dismissed on the basis that neither Constable Kluzek nor Senior Constable Mitchell would, but for s 65 of the Police Act, have been liable in trespass, as there had been no communication to them of the revocation of the implied licence to enter the property. 8 Our reasons for reaching these conclusions are set out as follows: -- 6 of 49 -- [2026] SASCA 49 The Court 3 Primary facts .................................................................................................................................. 4 Earlier proceedings involving Senior Constable De Bono ........................................................ 4 The Woodville South property.................................................................................................... 4 Roadside arrest .......................................................................................................................... 4 Conveyance of appellant to hospital .......................................................................................... 6 Charge against the appellant ..................................................................................................... 7 Attempts to serve summons on appellant ................................................................................... 8 Issue of arrest warrant ............................................................................................................. 10 Arrest of appellant pursuant to warrant .................................................................................. 11 Discontinuance of charges ....................................................................................................... 12 Statutory provisions ..................................................................................................................... 15 Requirement to undertake an alcotest ...................................................................................... 15 Power of arrest......................................................................................................................... 16 Issue of warrants ...................................................................................................................... 17 Liability of the State for conduct of police officers .................................................................. 17 Trial judge’s approach ................................................................................................................. 18 Credibility findings .................................................................................................................. 18 Unlawful arrest, assault and battery on Good Friday ............................................................. 18 Unlawful imprisonment on Good Friday ................................................................................. 20 Unlawful arrest and unlawful imprisonment on executing warrant ........................................ 20 Malicious prosecution .............................................................................................................. 20 Misfeasance in public office ..................................................................................................... 21 Trespass by police officers seeking to serve summons ............................................................ 21 Primary orders ......................................................................................................................... 22 Ground 5: Roadside arrest............................................................................................................ 22 Whether arrest was warranted in the circumstances ............................................................... 23 Whether the appellant was informed of the reasons for the arrest .......................................... 24 Use of handcuffs ....................................................................................................................... 26 Ground 6: Execution of arrest warrant ......................................................................................... 26 Ground 7: Malicious prosecution and misfeasance in public office ............................................ 27 Malicious prosecution .............................................................................................................. 28 Misfeasance in public office ..................................................................................................... 35 Ground 8: Damages ..................................................................................................................... 36 Cross-appeal: Trespass claim ....................................................................................................... 36 Appellant’s interest in the Woodville South property .............................................................. 36 Revocation of the officers’ implied licence to enter ................................................................. 41 Conclusion as to cross-appeal ................................................................................................. 44 Orders ........................................................................................................................................... 44 -- 7 of 49 -- [2026] SASCA 49 The Court 4 Primary facts 9 The following is an account of primary facts found by the trial judge or established by uncontroversial evidence. Earlier proceedings involving Senior Constable De Bono1 10 Senior Constable De Bono was one of the two police officers who the appellant alleged had trespassed on his property in 2008. The appellant gave evidence that, on this occasion, the two police officers had attended at his home despite him warning them not to do so. The appellant described becoming irate as a consequence of their attendance and he subsequently made a complaint about Senior Constable De Bono’s partner, Constable Kaftan, to the Police Commissioner. 11 In August 2011, the appellant instituted a civil claim against the State arising out of this alleged trespass. Senior Constable De Bono was personally named in the pleadings although she was not a party to the proceedings. The Woodville South property 12 At all material times, the appellant lived at the Woodville South property. The appellant’s mother was the registered proprietor of the Woodville South property and occupied the property, although on occasions she would stay with her daughter. The appellant’s mother permitted the appellant to live with her at the house under a longstanding, informal arrangement which involved the appellant paying rent and contributing towards the household expenses.2 Roadside arrest3 13 At about 10.01 pm on Friday 3 April 2015 (Good Friday), Brevet Sergeant Graham observed the appellant take off quickly in his vehicle from Trembath Street, Brompton. Brevet Sergeant Graham followed the appellant’s vehicle until the appellant parked his car on Chief Street. During that time, Brevet Sergeant Graham observed the appellant commit various traffic offences, including failing to stop at a stop sign on at least one occasion. 14 Brevet Sergeant Graham got out of his vehicle holding an alcotest and approached the appellant who remained seated in his vehicle. Brevet Sergeant Graham requested that the appellant blow into the alcotest. The appellant immediately became belligerent, argumentative, aggressive and repeated numerous times words to the effect of “I wasn’t driving. I refuse to blow”. In response, Brevet Sergeant Graham “provided the appellant with the good cause defence”. This was the “prescribed oral advice” provided for by s 47E of the Road 1 Cosenza v State of South Australia [2024] SASC 97 (the primary reasons), [424]-[425]; exhibit A25. 2 Primary reasons, [596]-[597]. 3 Primary reasons, [303]-[309]. -- 8 of 49 -- [2026] SASCA 49 The Court 5 Traffic Act 1961 (SA) which the officer knew by rote at the time. However, he could not recall the prescribed oral advice at the time of giving evidence.4 15 The appellant got out of his car of his own volition. Upon exiting the vehicle, the appellant “shaped up” to Brevet Sergeant Graham. The appellant was angry and belligerent, and his fists were clenched. Brevet Sergeant Graham feared for his safety. 16 Brevet Sergeant Graham placed the appellant under arrest for the offence of failing to comply with a reasonable direction of a police officer (failing to exhale into an alcotest) contrary to s 47E(3) of the Road Traffic Act. Brevet Sergeant Graham decided to arrest the appellant to prevent the commission of further offences as a consequence of the appellant’s aggressive and threatening conduct. Brevet Sergeant Graham told the appellant that he was under arrest for failing to comply with an alcotest. Brevet Sergeant Graham removed the appellant’s telephone from him and placed it on the roof of the appellant’s car. Brevet Sergeant Graham then applied handcuffs to the appellant. To do so, Brevet Sergeant Graham pushed the appellant against the car and forcibly secured his right hand behind his back with handcuffs. Brevet Sergeant Graham did not force the appellant’s head onto the roof of the car. During the course of attempting to secure the appellant’s left wrist, Brevet Sergeant Graham observed a change in the appellant’s demeanour that caused him almost immediately to release the left wrist. In the course of applying handcuffs to the appellant, Brevet Sergeant Graham caused the appellant some pain or discomfort. 17 At the time of being handcuffed, the appellant’s demeanour changed in that he was no longer threatening. The appellant started hyperventilating and moaning, consistent with suffering the symptoms of high-level anxiety or a panic attack. The trial judge accepted that the appellant experienced some form of anxiety episode, at the very least from the time he was placed under arrest.5 18 After releasing the appellant’s left hand, Brevet Sergeant Graham placed that hand on the roof of the car and told the appellant that he was calling an ambulance. An ambulance was called at 10.10 pm. 19 At some stage the appellant complained that Brevet Sergeant Graham had aggravated an old injury to his right shoulder. 20 Brevet Sergeant Graham did not fill out a PD207 during the roadside arrest. This is a one-page document which sets out a series of questions to be asked by a police officer in circumstances in which someone has either failed to comply with a direction or refused to supply a breath sample. It contains spaces in which to 4 See the primary reasons, [295]-[296]. 5 Primary reasons, [152]. -- 9 of 49 -- [2026] SASCA 49 The Court 6 record the person’s responses. Police General Orders require police officers to complete this form when requiring a person to submit to an alcotest.6 21 The trial judge accepted that the appellant experienced pain or at least discomfort during his arrest, but did not accept that the arrest caused an injury to the appellant’s spine at the C4/5 level (which was the product of a degenerative change that occurred over time).7 Conveyance of appellant to hospital8 22 Brevet Sergeant Graham first called for assistance at 10.07 pm. Senior Constable Westbrook and Brevet Sergeant Lee were at the scene by 10.13 pm. On their arrival, Brevet Sergeant Graham was standing with the appellant in the vicinity of the appellant’s car door. By that time, the handcuff had been removed from the appellant’s left hand whilst, in all likelihood, it remained attached to his right wrist. 23 The appellant was directed by one or more of the police officers to sit on the kerb. At about this time, Brevet Sergeant Graham made the decision to “unarrest” the appellant, although he did not tell the appellant that he was no longer under arrest. The appellant was not wearing handcuffs whilst seated on the kerb. At some point whilst seated, the appellant raised the topic of requiring some medication that was in his car. Brevet Sergeant Lee went to the car to look for medication but was unable to locate any. She advised the appellant of this. The trial judge rejected the suggestion that, whilst seated on the kerb, one of the police officers stood over the appellant and pushed him down. 24 The ambulance arrived at the scene at 10.20 pm. The paramedics attempted to ask the appellant questions about any medical issues that he had. However, the appellant remained in a heightened emotional state and was uncooperative and argumentative. Whilst the paramedics were in attendance at the scene, they asked Brevet Sergeant Graham to look in the appellant’s car for medication for anxiety. Brevet Sergeant Graham did so and located a small white pill bottle containing some white pills and a small amount of cannabis. The ambulance left the scene at 10.40 pm. 25 Brevet Sergeant Graham travelled in the front of the ambulance to the hospital with the appellant and paramedics to obtain a sample of the appellant’s blood to determine if he had any drugs or alcohol in his system. Once at the hospital, Brevet Sergeant Graham went inside with the appellant. A doctor took the blood sample and provided it to him. After being dealt with by the doctors at the hospital, the appellant simply left. 6 Primary reasons, [360]-[364]. 7 Primary reasons, [263]. 8 Primary reasons, [52]-[53], [73]-[76], [310]-[312], [395]-[396]. -- 10 of 49 -- [2026] SASCA 49 The Court 7 26 Brevet Sergeant Graham said that, when he went to leave, he realised that he had not served the paperwork for the loss of his licence on the appellant, so he returned to the hospital and gave it to him. Brevet Sergeant Graham did not see the appellant again until he gave evidence at trial. Charge against the appellant 27 Brevet Sergeant Graham made the initial decision to charge the appellant with the s 47E offence. He prepared:9 1. A Police Apprehension Report, which was created at 12.37 am on 4 April 2015 (although some details may have been added in later). Brevet Sergeant Graham set out a brief narrative of the events that occurred during the roadside arrest, including the arrest and “unarrest” of the appellant. It was his evidence that the only reason for creating the Police Apprehension Report that night was to generate an Apprehension Report number that could then be married up with the Instant Loss of Licence paperwork and that could then be sent off for processing. 2. A Quality Assurance Certificate completed on 9 April 2015. The document was a form of checklist designed to ensure that the correct paperwork, including the Apprehension Report, was submitted to Police Prosecutions. In that document, Brevet Sergeant Graham certified the following: • There is sufficient admissible evidence to establish the identity of the defendant as the person who has committed the offence(s). • There is sufficient admissible evidence of every element of the offence(s) AND rebuttal for any lawful defence(s). • There is a reasonable prospect of conviction in relation to all offence(s) and prosecution of the offence(s) is in the public interest. 28 Once Brevet Sergeant Graham had completed Part A of the Quality Assurance Certificate, it was forwarded to the inbox of his supervisor, Sergeant Hollis (a supervisor in the Neighbourhood Policing Team based at the Parks Police Station) in order for her to complete Part B of the certification. She filled in Part B of the Quality Assurance Certificate and, in doing so, she certified that there was a reasonable prospect of conviction and that the prosecution was in the public interest. Once Sergeant Hollis signed Part B of the Quality Assurance Certificate, it was sent off to the prosecution section and she had no further involvement in the prosecution process.10 29 On 21 April 2015, Senior Sergeant Watterson signed a complaint and summons charging the appellant with refusing to submit to an alcotest pursuant to 9 Primary reasons, [405]-[407]. 10 Primary reasons, [409]-[410], [413]. -- 11 of 49 -- [2026] SASCA 49 The Court 8 s 47E of the Road Traffic Act. That complaint provided for an initial hearing date of 18 May 2015.11 Attempts to serve summons on appellant 30 After the laying of the complaint, there were attempts on 1 May, 2 May and 11 May 2015 to serve the appellant with a summons to attend court.12 This involved Constable Kluzek attending the Woodville South property three times – twice during the day and once at night. On each occasion he either knocked or rang the doorbell once or twice and waited a couple of minutes before leaving. The appellant was not at home on the occasions that Constable Kluzek attended.13 31 On 18 May 2015 the matter came on before Magistrate Grasso in the Magistrates Court sitting in Port Adelaide. This was the first hearing date. On that occasion Assistant Police Prosecutor (APP) Willis appeared for the prosecution. As the appellant had not yet been served with the summons, the summons lapsed and it was necessary to issue a fresh summons. New dates for the return of the fresh summons would have been provided by the court reporter on that date. The reason that personal service was required was that a licence disqualification was involved, which made it important that the appellant was aware that he was required in court.14 32 The matter next came before Magistrate Alexandrides on 6 July 2015. On that occasion APP Patterson appeared for the prosecution. As police had still not been successful in serving the appellant with the summons, a fresh summons was issued.15 33 On 21 July 2015, there was a further unsuccessful attempt to serve the summons.16 On this occasion, Senior Constable Mitchell attempted to serve a summons on the appellant at the Woodville South property. She initially pulled up in front of the neighbour’s house and then made her way up to the front door by passing through the entry gate and walking up the pathway. Senior Constable Mitchell knocked on the front door and then, when she received no response, knocked on a window in an attempt to raise someone. She returned to the front door and saw that the door had been opened but the screen remained shut with a man standing behind it. Senior Constable Mitchell attempted to explain who she was and what she was there for, however the person behind the door started to become belligerent and yell at her. Senior Constable Mitchell asked the person behind the door to identify who they were so she could determine who she was talking to, however, he kept repeating “you’re not welcome”. She was also told 11 Primary reasons, [414]. 12 Primary reasons, [415]. 13 Primary reasons, [557], [563]-[564]. 14 Primary reasons, [415]-[416]. 15 Primary reasons, [417]-[418]. 16 Primary reasons, [419]. -- 12 of 49 -- [2026] SASCA 49 The Court 9 that she was being videoed. Realising she was getting nowhere, Senior Constable Mitchell left the property and returned to her police car.17 34 At the time police officers attended the Woodville South property in 2015, there was a low wall running along the front of the property with a wrought iron gate in front of a footpath that led up to the front door of the house. There was also a double gate leading into the driveway and front yard of the house. These gates were generally left open.18 There was one sign attached to the pillar to the left of the driveway depicted in photos taken in 2012,19 which read:20 High Court Decision: Plenty v Dillon [1991] HCA 5 WARNING ENTRY IS FORBIDDEN ENTER BY EXPRESS INVITATION ONLY The Law every Australian should know 35 Neither Constable Kluzek nor Senior Constable Mitchell saw this sign when they entered the Woodville South property.21 36 The appellant had previously written to the Commissioner of Police indicating that the implied licence police would otherwise have to enter his property was revoked, and a notation to that effect had been included on the Police PIMS database.22 Neither Constable Kluzek nor Senior Constable Mitchell were aware that the appellant had revoked the implied licence to enter his premises prior to their attendances. Both subsequently became aware of the entry recorded on the PIMS database. In the case of Senior Constable Mitchell, on the day of the unsuccessful attempt to serve the appellant with the summons, she returned to her police vehicle and did some checks on the computer. In doing those checks Senior Constable Mitchell located a report on PIMS “to say that he has removed his consent for police to attend his property”.23 37 On 6 August 2015, an email was sent from Port Adelaide Prosecutions to the appellant. It read: Dear Sir, The alleged offence of refuse alcotest committed on 3/4/15 at BROMPTON is still before the Port Adelaide Magistrates Court. The date of the 17th day of August 2025 at 2:15pm is the date that the matter is next listed for court at Port Adelaide. Please indicate if you 17 Primary reasons, [561]-[563]. 18 Primary reasons, [568]. 19 Exhibit A21. 20 Primary reasons, [576], [582]. 21 Primary reasons, [650]. 22 Primary reasons, [577]-[579], [582]. 23 Primary reasons, [580]-[581], [650]. -- 13 of 49 -- [2026] SASCA 49 The Court 10 are able to attend that court date and answer the charge. If you are not able to attend, then advise when a summons can be served on you personally so that an alternative court date can be fixed for you to attend court. If you are not able to attend on the 17th of August 2015 or indicate a method whereby a summons can be served on your alternative means will be considered. This would indicate the issuance of a warrant for your arrest. Please advise at your earliest convenience your position on 82076440 and quote the Apprehension report no. listed above. Included is a copy of the original Complaint and Summons. There was no evidence about whether the appellant received or responded to that email.24 38 The matter next came before the court on 17 August 2015. Magistrate Alexandrides again presided over the matter and Senior Constable De Bono appeared for the police. The following entry appears on the Certificate of Record for that date:25 NO APPEARANCE DEFENDANT SNS FRESH SUMMONS TO ISSUE ON APPLICATION. 39 In August 2015, Senior Constable De Bono was a part of Senior Sergeant Watterson’s team. He described her as a reasonably experienced prosecutor, having spent a number of years in that section.26 40 Senior Sergeant Watterson gave evidence explaining the meaning of the entry “fresh summons to issue on application”. He told the court that usually two attempts were made to serve a summons. In the event that those two attempts were unsuccessful, the record is endorsed in this manner. That has the effect of putting the file “in a cupboard” to deal with at some future time. The rationale behind this approach is that the failure to serve the summons over this length of time suggests that there is an issue preventing service, such as an incorrect address, which warrants looking at the file more closely when time permits.27 Issue of arrest warrant 41 On an uncertain date, which appears to have fallen at about this time, Brevet Sergeant Graham received a telephone call from Senior Constable De Bono. Senior Constable De Bono mistakenly believed that Brevet Sergeant Graham had been involved in the attempts to serve the summons, and it was in that context that she made the telephone call. By the time of the call Brevet Sergeant Graham had obtained a certificate with the blood test results. That certificate recorded that the appellant had a blood alcohol level of 0.011 per cent, which was below the legal limit and there were no drugs in his system. It was Brevet Sergeant Graham’s view that, in those circumstances, it was a “pointless exercise” to continue with the 24 Primary reasons, [420]-[421]. 25 Primary reasons, [422]. 26 Primary reasons, [439]. 27 Primary reasons, [423]. -- 14 of 49 -- [2026] SASCA 49 The Court 11 charge and in the telephone call he expressed that view to Senior Constable De Bono.28 42 Brevet Sergeant Graham’s evidence, which appears to have been accepted by the trial judge, was that Senior Constable De Bono said that she intended to proceed in any event. His evidence was that Senior Constable De Bono said:29 ‘Fuck him, he’s been a pain in the arse to us’, and I can’t remember the exact words, but it was certainly along those matters, that they’ve tried everything to attempt service of a summons, I’ve tried to have him come and pick the summons up, I believe they told me they emailed the summons to him, and I believe [Senior Constable De Bono’s] response was ‘No, fuck him, he’s being a pain in the arse, we’re going to get - the magistrate will issue a no-bail warrant for him’. 43 On 18 August 2015, Constable Kluzek prepared and signed a statement in relation to his efforts to effect service on the appellant.30 44 The matter was next called on before Magistrate Field on 24 August 2015. On this occasion Senior Constable De Bono again appeared for the prosecution. The following entry appears on the Certificate of Record for that date:31 NO APPEARANCE PLEA: NO PLEA affidavit tendered NO APPEARANCE RIGHT TO BE AT LIBERTY CANCELLED. Warrant Issued WARRANT OF APPREHENSION Endorsement EXCLUDED FROM BAIL Arrest of appellant pursuant to warrant 45 On 24 August 2015, the Magistrates Court issued a warrant of apprehension against the appellant in respect of the complaint. The operative part of the warrant read:32 To the Commissioner of Police for the State of South Australia and each member of the Police Force for the State. 28 Primary reasons, [444]-[446]. 29 Primary reasons, [277], [446]. 30 Primary reasons, [428]. 31 Primary reasons, [429]. 32 Exhibit R109. -- 15 of 49 -- [2026] SASCA 49 The Court 12 You are directed to apprehend the [appellant] and, subject to any endorsement below, bring the [appellant] as soon as practicable before the Court to answer these charges and to be further dealt with according to law. ENDORSEMENT Pursuant to section 5(2)(b) of the Bail Act 1985 EXCLUDED FROM BAIL The [appellant] may not be released on bail. 46 The warrant was executed at 10.45 am on 30 August 2015.33 The appellant was arrested shortly after arriving home from an overseas trip. Two police officers entered the appellant’s property and advised him that they had a warrant for his arrest. The appellant was then taken to the Port Adelaide watch house.34 47 Because it was a Sunday and the warrant was endorsed that the appellant was not eligible for police bail, he was kept in custody overnight. The appellant was brought before the Magistrates Court at about 9.30 am the following morning. The appellant was granted bail. Subsequently, the appellant was required to attend court on a number of occasions until 3 May 2016, when the charges were ultimately withdrawn.35 Discontinuance of charges 48 Senior Sergeant Watterson filled in and forwarded a PD90 to Brevet Sergeant Graham. This document was a request from Police Prosecutions to the investigating officer to obtain additional information that would be needed if the matter was to be contested. In that document, Senior Sergeant Watterson requested a full copy of the brief including a copy of the certificate of analysis of the appellant’s blood. In response, Brevet Sergeant Graham wrote:36 CERTIFICATE OF ANALYSIS ALREADY PROVIDED. APPEARS BAC LESS THAN 0.05 AND DEFT HAS FULFILLED HIS DEFENCE REQUIREMENTS. SUGGEST PD108 IF DEFT RAISES THIS DEFENCE. 49 As a consequence of his concerns about the file, on 19 October 2015 Senior Sergeant Watterson wrote a memorandum to the Officer-in-Charge of the Special Prosecutions Unit. The Special Prosecutions Unit is a section within prosecution services that deals with novel or complex prosecutions or matters in which there may be a conflict of interest. The memorandum reflected Senior Sergeant Watterson’s concerns about whether there was a reasonable prospect of conviction as a consequence of Brevet Sergeant Graham’s failure to complete a PD207, the fact that the evidence was based on the word of one person against another and a belief that the appellant may have a defence based on a pre-existing medical condition. In relation to this last consideration, Senior Sergeant Watterson referred 33 Exhibit A8; primary reasons, [432]. 34 Primary reasons, [399]. 35 Primary reasons, [402]-[403], [432]. 36 Primary reasons, [448]. -- 16 of 49 -- [2026] SASCA 49 The Court 13 to the history of litigation between the appellant and SAPOL and the likelihood that SAPOL were already in possession of information establishing that the appellant was suffering from a psychological condition. The act of forwarding that memorandum to the Special Prosecutions Unit was Senior Sergeant Watterson’s last involvement in the prosecution.37 50 In his evidence, Senior Sergeant Watterson was very clear that, whilst the file was with Port Adelaide Prosecutions, it was he who made the decisions.38 51 Once the file was received by the Special Prosecutions Unit it was allocated to a prosecuting solicitor, Mr Ind, who worked under the management of Senior Supervising Prosecutor McCardle.39 52 Mr Ind first appeared on this file in the Magistrates Court on 29 October 2015. He again appeared on 27 November 2015. On 22 January, 2 February, and 1 March 2016, APP Schwartz appeared. On 31 March and 3 May 2016, Mr Ind again appeared in court. Over the course of these hearings the matter was listed for trial on 30 and 31 March 2015. Various legal arguments were foreshadowed.40 53 On 7 March 2016, Mr Ind wrote to the appellant’s solicitor, Mr Kerin. In that letter Mr Ind set out a summary of the evidence relied on by the prosecution and raised a number of issues in relation to how the trial would be conducted. The letter also included the following:41 The [Road Traffic Act] also provides for a defence to the charge of failing to comply with a request. Specifically, section 47E(4)(b) provides a ‘good cause’ defence. Section 47E(5a)(2) says that a good cause defence cannot be raised unless a sample of blood has been taken. From my reading of the brief, it appears that the good cause defence is available to your client. However, to date this has not been raised. In the interest of narrowing the issues, I ask that you confirm whether or not your client seeks to use this defence. If he does, then are you intending to provide evidence of a physical or mental condition to support the good cause defence? My experience in this area suggests that a mere submission from counsel at the bar table will not be enough to establish the defence. For the remainder of the letter Mr Ind appears to attempt to engage in a meaningful way in order to identify and narrow the issues at trial. 54 On 16 March 2016, the trial date was vacated on the basis that the appellant had instituted proceedings in the Supreme Court.42 37 Primary reasons, [450]. 38 Primary reasons, [451]-[452]. 39 Primary reasons, [456]. 40 Primary reasons, [457]. 41 Primary reasons, [458]. 42 Primary reasons, [457]. -- 17 of 49 -- [2026] SASCA 49 The Court 14 55 In 2015 and 2016, Superintendent Kameniar was the Operations Chief Inspector at the Prosecution Services Branch.43 Superintendent Kameniar decided to discontinue the prosecution based on her view that there was no reasonable prospect of conviction, and also that the prosecution was not in the public interest. The predominant reason for discontinuing was the latter. Superintendent Kameniar said that her decision was based on her belief that the appellant had not been given the verbatim oral direction as set out in the PD207, in relation to refusing an alcotest, and the blood test had come back showing that the alcohol in the appellant’s system was below the prescribed amount. She considered that in those circumstances, regardless of whether the facts of the charge could be made out, it was not in the public interest to prosecute the appellant. On 22 April 2016, Superintendent Kameniar sent an email to Mr Ind and conveyed her decision to him and instructed him to advise the appellant when the matter next came before the court.44 56 On 3 May 2016, Mr Ind withdrew the charge against the appellant and the complaint was dismissed.45 57 Superintendent Kameniar completed further paperwork as a consequence of her decision to discontinue the prosecution. One of those documents was a PD108 Discontinuance Report, which are generated when a prosecution is discontinued. They are used by senior prosecutors to make an assessment of whether, given the outcome of the prosecution, any training issues can be identified. In that document, dated 23 May 2016, Superintendent Kameniar recorded that the reason for the prosecution not proceeding was because it was not in the public interest. She elaborated:46 The [appellant] is charged with refusing an alco test. The [appellant] having refused and raising a medical defence had a sample of his blood taken, which has been analysed by the Forensic Science Centre. The sample of blood contained not less than 0.011% alcohol. The prosecution having satisfied the defendant was not driving a motor vehicle exceeding the prescribed concentration of alcohol deem it is not in the public interest to continue this prosecution. The prosecution notes while the [appellant] has raised a medical defence to his refusal no evidence has been provided in support of this claim. 43 Primary reasons, [453]. 44 Primary reasons, [460]. 45 Primary reasons, [457]. 46 Primary reasons, [461]. -- 18 of 49 -- [2026] SASCA 49 The Court 15 Statutory provisions Requirement to undertake an alcotest 58 The power to require a person to submit to an alcotest is provided for in s 47E of the Road Traffic Act in the following terms: 47E—Police may require alcotest or breath analysis (1) Subject to this Act, if a police officer (whether or not performing duties at or in connection with a driver testing station) believes on reasonable grounds that a person— (a) is driving, or has driven, a motor vehicle; or (b) is attempting, or has attempted, to put a motor vehicle in motion; or (c) is acting, or has acted, as a qualified supervising driver for the holder of a permit or licence, the police officer may require the person to submit to an alcotest or a breath analysis, or both. … (3) A person required under this section to submit to an alcotest or breath analysis must not refuse or fail to comply with all reasonable directions of a police officer in relation to the requirement and, in particular, must not refuse or fail to exhale into the apparatus by which the alcotest or breath analysis is conducted in accordance with the directions of a police officer. Penalty: (a) for a first offence—a fine of not less than $1 100 and not more than $1 600; (b) for a subsequent offence—a fine of not less than $1 900 and not more than $2 900. … (4) It is a defence to a prosecution under subsection (3) or (3a) that— (a) the requirement or direction to which the prosecution relates was not lawfully made; or (ab) the person was not allowed the opportunity to comply with the requirement or direction after having been given the prescribed oral advice in relation to— (i) the consequences of refusing or failing to comply with the requirement or direction; and (ii) the person’s right to request the taking of a blood sample under subsection (4a); or (b) there was, in the circumstances of the case, good cause for the refusal or failure of the defendant to comply with the requirement or direction. -- 19 of 49 -- [2026] SASCA 49 The Court 16 (4a) If a person refuses or fails to comply with the requirement or direction under this section by reason of some physical or medical condition of the person and forthwith makes a request of a police officer that a sample of the person’s blood be taken by a medical practitioner, a police officer must do all things reasonably necessary to facilitate the taking of a sample of the person’s blood— (a) by a medical practitioner nominated by the person; or (b) if— (i) it becomes apparent to the police officer that there is no reasonable likelihood that a medical practitioner nominated by the person will be available to take the sample within 1 hour of the time of the request at some place not more than 10 kilometres distant from the place of the request; or (ii) the person does not nominate a particular medical practitioner, by any medical practitioner who is available to take the sample. … (5a) A person may not raise a defence that the person had good cause for a refusal or failure to comply with a requirement or direction under this section by reason of some physical or medical condition of the person unless— (a) a sample of the person’s blood was taken in accordance with subsection (4a); or (b) the person made a request as referred to in subsection (4a), but— (i) a police officer failed to facilitate the taking of a sample of the person’s blood as required by that subsection; or (ii) a medical practitioner was not reasonably available for the purpose of taking such a sample; or (c) the taking of a sample of the person’s blood in accordance with subsection (4a) was not possible or reasonably advisable or practicable in the circumstances by reason of some physical or medical condition of the person. Power of arrest 59 The relevant power of arrest in this case was conferred by s 75 of the Summary Offences Act 1953 (SA), in the following terms: 75—Power of arrest A police officer, without any warrant other than this Act, at any hour of the day or night, may apprehend any person whom the officer finds committing, or has reasonable cause to suspect of having committed, or being about to commit, an offence. -- 20 of 49 -- [2026] SASCA 49 The Court 17 Issue of warrants 60 Under s 58 of the Summary Procedure Act 1921 (SA), as it stood at the relevant time: 58—Issue of warrant The Court may issue a warrant to have the defendant arrested and brought before the Court if— (a) the allegations in the complaint are substantiated on oath; or (b) the defendant fails to appear in obedience to a summons and the Court is satisfied that the summons was served a reasonable time before the time appointed for the hearing. 61 Section 59(1) of the Summary Procedure Act provided that a defendant who has been arrested under a warrant must be brought before the court. 62 Under s 5(2) of the Bail Act 1985 (SA): (2) If a warrant for the arrest of a person is issued, the court or justice issuing the warrant may, by endorsement on the warrant— (a) authorise or require a specified person, or a person of a specified class, to release the arrested person on bail; or (b) exclude the granting of bail to the arrested person by a police officer. Liability of the State for conduct of police officers 63 Section 65 of the Police Act addresses the civil and criminal liability of police officers for acts done in the course of their duty as police officers: 65—Protection from liability for members of SA Police and police security officers (1) A member of SA Police or a police security officer does not incur any civil or criminal liability for an honest act or omission in the exercise or discharge, or the purported exercise or discharge, of a power, function or duty conferred or imposed by or under this Act or any other Act or law. (2) A liability that would, but for subsection (1), lie against a member of SA Police or a police security officer lies instead against the Crown. (3) A person (the injured person) who suffers injury, loss or damage as a result of the act or omission of a member of SA Police or a police security officer may not sue the member or officer personally unless— (a) it is clear from the circumstances of the case that the immunity conferred by subsection (1) does not extend to the case; or (b) the injured person brings an action in the first instance against the Crown but the Crown then disputes, in a defence filed to the action, that it is liable for the act or omission of the member or officer. -- 21 of 49 -- [2026] SASCA 49 The Court 18 (4) Where a question arises as to whether the immunity conferred by subsection (1) extends to the case and the member of SA Police or the police security officer claims to come within the immunity so conferred, the burden of proving that the act or omission was dishonest lies on the party seeking to establish the personal liability of the member or officer. (5) If a member of SA Police or a police security officer is sued personally for an act or omission in the exercise or discharge, or purported exercise or discharge, of a power, function or duty conferred or imposed by or under this Act or any other Act or law— (a) unless the Crown is alleging that the member or officer is personally liable for the act or omission—the Crown must represent the member or officer; or (b) if the Crown does not represent the member or officer and the member or officer is found by the court not to have acted dishonestly—the Crown must indemnify the member or officer for legal costs properly incurred by the member or officer (but not exceeding 80% of the Supreme Court scale of costs applying at the time the case is determined). Trial judge’s approach Credibility findings 64 The principal contest as to the primary facts at trial concerned the circumstances of the appellant’s arrest on Good Friday, and the circumstances in which Constable Kluzek and Senior Constable Mitchell attempted to serve the summons at the Woodville South property. The trial judge found the appellant to be an unimpressive witness, whose evidence came across as rehearsed, self-serving and exaggerated.47 By contrast, the trial judge found Brevet Sergeant Graham to be a truthful and generally reliable witness, who did his best to answer questions frankly and in a straightforward manner without exaggeration or embellishment.48 The trial judge found the evidence of Senior Constable Mitchell to be particularly compelling in its detail and clarity, and also in its consistency with how the appellant has behaved towards police officers on other occasions. Although the trial judge found Constable Kluzek’s memory was vague, her Honour formed the impression that he was doing his best to recollect the relevant events.49 The trial judge generally accepted the police officers’ account of events in preference to that of the appellant. Unlawful arrest, assault and battery on Good Friday 65 The trial judge rejected each of the bases on which the appellant contended his arrest by Brevet Sergeant Graham to be unlawful, finding that: 47 Primary reasons, [266]. 48 Primary reasons, [273]. 49 Primary reasons, [563]. -- 22 of 49 -- [2026] SASCA 49 The Court 19 1. Brevet Sergeant Graham told the appellant that he was under arrest for failing to “blow/comply with an alcotest”,50 and so he was told that he was under arrest and the offence for which he was under arrest.51 2. Brevet Sergeant Graham reasonably suspected that the appellant had committed an offence against s 47E(3) of the Road Traffic Act.52 3. Brevet Sergeant Graham believed that he was left with no other real option than to use handcuffs given the circumstances confronting him. He arrested the appellant for an offence against s 47E(3) of the Road Traffic Act and was motivated to do so rather than to adopt an alternative course as the result of the appellant’s aggressive conduct and concerns for his safety, combined with a reasonable belief that, in such a heightened state, the appellant was at risk of further offending. The force used by Brevet Sergeant Graham was not excessive, it was objectively necessary and reasonable in all of the circumstances.53 4. Brevet Sergeant Graham gave the appellant a direction to perform the alcotest. He said, “How are you going, you’re driving, you’re required to supply a sample of your breath. Take one deep breath and blow steadily through this mouthpiece until I tell you to stop”. This was sufficient to amount to a reasonable direction under the Road Traffic Act.54 5. While breach of the Police General Order which required Brevet Sergeant Graham to fill out a PD207 might create a potential disciplinary issue, it did not affect the lawfulness of the arrest.55 6. At its highest, the evidence about the “unarrest” of the appellant went no further than demonstrating that Brevet Sergeant Graham had an incomplete understanding about the General Orders relating to the process of arrest-release (or unarrest). Whilst Brevet Sergeant Graham’s level of knowledge was below the standard that should be expected of operational police officers, his actions were well-intentioned. He was endeavouring to balance competing considerations in difficult circumstances. This was a dynamic, volatile situation that occurred over a matter of minutes during which Brevet Sergeant Graham was attempting to factor in a number of different considerations including his own safety and the wellbeing of the appellant. There was nothing about this aspect of the evidence that impacted on a consideration of whether the arrest was unlawful.56 50 Primary reasons, [317]. 51 Primary reasons, [328]. 52 Primary reasons, [345], [356]. 53 Primary reasons, [345]. 54 Primary reasons, [359]. 55 Primary reasons, [373]. 56 Primary reasons, [387]. -- 23 of 49 -- [2026] SASCA 49 The Court 20 66 Therefore, the trial judge did not find the appellant’s arrest on Good Friday 2015 to be unlawful. Her Honour also found that the force used was no more than was necessary to effect the lawful arrest. It followed that the torts of unlawful arrest, assault and battery were not established.57 Unlawful imprisonment on Good Friday 67 The trial judge said there was a basis in the evidence to give separate consideration to the tort of false imprisonment. It was the evidence of Brevet Sergeant Graham that, although he “unarrested” the appellant at the time that he let go of him and took him to the kerb, he did not communicate that decision to the appellant.58 68 The trial judge found that Brevet Sergeant Graham did not intend to detain the appellant from the point of his “unarrest”.59 Her Honour rejected the appellant’s evidence that he believed he was still under arrest.60 The claim of false imprisonment between the “unarrest” and the appellant’s departure from the hospital was therefore not established.61 Unlawful arrest and unlawful imprisonment on executing warrant 69 The trial judge rejected the claim for unlawful arrest and unlawful imprisonment arising out of the appellant’s arrest on 30 August 2015 in the execution of the warrant issued by the Magistrates Court. The trial judge found that the decision to issue the warrant on its terms was ultimately the decision of the magistrate.62 The warrant was valid on its face, had not been set aside or found invalid and so provided legal justification for the appellant’s arrest and detention until he could be brought before the court.63 The warrant was valid, binding and enforceable and consequently the appellant had not established that there was an unlawful arrest or unlawful imprisonment.64 Malicious prosecution 70 The appellant contended that the tort of malicious prosecution was committed from the time when Senior Constable De Bono appeared before the Magistrates Court on 24 August 2015 (when the warrant was issued) and 3 May 2016 (when the charge was withdrawn).65 71 The trial judge accepted that Brevet Sergeant Graham, Senior Sergeant Watterson, Mr Ind and Superintendent Kameniar all had a role in either initiating or maintaining the prosecution of the appellant. However, the appellant did not 57 Primary reasons, [388]. 58 Primary reasons, [389]. 59 Primary reasons, [393]. 60 Primary reasons, [394]-[396]. 61 Primary reasons, [397]. 62 Primary reasons, [470]. 63 Primary reasons, [471], [481]-[484]. 64 Primary reasons, [485]-[486]. 65 Primary reasons, [487]. -- 24 of 49 -- [2026] SASCA 49 The Court 21 contend, nor was there any evidentiary basis to suggest, that any of them acted maliciously or without reasonable and probable cause.66 72 The trial judge found Senior Constable De Bono applied for the warrant on 24 August 2015, but there was no evidence she had any further involvement in the prosecution after this date. Acting under Senior Sergeant Watterson’s instructions, she performed the administrative exercise of making an application for a warrant for the arrest of the appellant to enable him to be brought before the court. Senior Constable De Bono had no role in determining whether to continue the prosecution.67 73 The trial judge also found that, while it was demonstrated that Senior Constable De Bono had a strong dislike for the appellant, that is as far as the evidence went. The evidence did not establish that the sole or dominant purpose actuating Senior Constable De Bono to institute or maintain the prosecution was improper. She in fact had no role in making that determination.68 Misfeasance in public office 74 The trial judge rejected the appellant’s claim alleging misfeasance in public office by Senior Constable De Bono on the basis that, as a person appearing in court and making an application and submissions to the magistrate, she was not a “public officer” for the purposes of the tort.69 Trespass by police officers seeking to serve summons 75 The trial judge found the appellant’s claim for trespass by police officers attempting to serve the summons on the appellant at the Woodville South property to be established. While accepting that a mere licence is not a sufficient basis for a claim of trespass,70 the trial judge held:71 It is my view that as a matter of fact and practicality, the [appellant] had the exclusive right to possess the property to the exclusion of all others with the exception of his mother. His mother’s rights to possession did not cut across those of the [appellant] but rather they ran in tandem. It is significant that the registered owner of the property was not a stranger or someone engaged in a commercial transaction with the [appellant], but his mother. A mother who permitted the [appellant] to live in and have control of the property and, whilst she was not there, effectively passed over control to her son. On the occasions that she was present she and the [appellant] were jointly in possession and, as a matter of fact, shared the same interest in the exclusion of others from the property. That much is evidence from her involvement in the various actions commenced in the Magistrates Court for trespass. In the circumstances of a mother and son relationship, with the mother commonly not present at the house and the son taking on significant financial responsibility for the 66 Primary reasons, [518]. 67 Primary reasons, [511]-[514]. 68 Primary reasons, [519]. 69 Primary reasons, [529]-[538]. 70 Primary reasons, [600]. 71 Primary reasons, [608]-[609]. -- 25 of 49 -- [2026] SASCA 49 The Court 22 household expenses, there is an air of artificiality in attempting to contort the nature of the relationship into one of licensee or lodger. It would make no sense to suggest, given the living arrangement that I have found to exist, that the [appellant] would not be entitled to exclude others from the property whether or not his mother was present. It was a situation in which the [appellant] and his mother were in possession of the property to the exclusion of all others. In my view the [appellant] was in possession of the Woodville South property and consequently has standing to sue for trespass. 76 The trial judge held that, in order for a person to revoke an implied licence to enter residential premises, there must be an effective communication of that decision.72 Her Honour found that the signage at the property was inadequate in terms of the size and positioning of the signs to amount to an effective communication.73 77 However, the trial judge found that the appellant’s communications with SAPOL and the police complaints authority had clearly and unequivocally revoked the implied licence to enter his premises.74 Although neither Constable Kluzek nor Senior Constable Mitchell were personally aware of the revocation, the appellant could not have been any clearer about his desire that police not attend at his property. It was incumbent upon SAPOL to ensure that this information was passed on to its officers.75 Primary orders 78 The primary judge awarded damages of $40,000 against the State, being $10,000 for each trespass.76 The trial judge declined to award aggravated damages on the basis that the officers were unaware of the revocation of the implied licence, the officers had a legitimate purpose for being at the appellant’s property, there was nothing untoward or inappropriate about the conduct of either police officer while on the Woodville South property and the limited efforts the appellant made to put those who attended his property on notice that he had revoked the implied licence.77 Her Honour also held that exemplary damages were not appropriate.78 The trial judge later awarded a lump sum for interest on the judgment of $23,700 and ordered that the State have 40 per cent of its costs of the primary proceedings.79 Ground 5: Roadside arrest 79 Appeal ground 5 contends that the trial judge erred in failing to find that the arrest of the appellant on 3 April 2015 was unlawful and resulted in several trespasses to his person. The appellant contends that the trial judge should have 72 Primary reasons, [637]. 73 Primary reasons, [638]. 74 Primary reasons, [649]. 75 Primary reasons, [651]. 76 Primary reasons, [672], [678]. 77 Primary reasons, [667]-[671], [673]-[675]. 78 Primary reasons, [676]-[677]. 79 AB 440-441. -- 26 of 49 -- [2026] SASCA 49 The Court 23 found that the arrest was unlawful because it was unnecessary, the proper procedures were not followed, and the appellant had committed no offence on which to ground the arrest. The appellant also contends that the use of handcuffs was unnecessary and therefore unlawful. 80 The appellant does not challenge the trial judge’s conclusion that Brevet Sergeant Graham reasonably suspected that the appellant had committed an offence against s 47E(3) of the Road Traffic Act, so as to satisfy the precondition to the power of arrest conferred by s 75 of the Summary Offences Act. At the hearing, the appellant also abandoned the ground that contended there was no offence to ground the arrest. 81 Senior counsel for the appellant said that he did not, on appeal, advance a case of unlawful imprisonment in the period between the “unarrest” and the time the appellant left the hospital. On appeal, the appellant’s case of wrongful imprisonment turned on the existence of a wrongful arrest. Whether arrest was warranted in the circumstances 82 The appellant firstly says that the power to arrest is subject to a condition that the officer must positively consider whether the arrest is warranted.80 The appellant challenges the finding that Brevet Sergeant Graham did consider whether the exercise of the power of arrest was warranted.81 Alternatively, the appellant contends that it was not reasonably open to Brevet Sergeant Graham to be satisfied that an arrest was warranted where the offence concerned was a traffic offence which did not carry a term of imprisonment as a possible penalty and there was no basis for concluding that there was a danger to the officer or the community. 83 There is no merit to this contention. Brevet Sergeant Graham had observed the appellant to be driving his vehicle in an erratic manner. This prompted the police officer to require the appellant to submit to an alcotest, which the appellant refused. The appellant behaved in a threatening and erratic manner when approached by Brevet Sergeant Graham. The appellant’s conduct, both when driving and when required to submit to an alcotest, gave rise to a reasonable suspicion that the appellant might have been under the influence of alcohol. The options for Brevet Sergeant Graham were either to arrest the appellant or allow the appellant to go on his way. If the appellant was intoxicated, allowing him to drive off would involve exposing other road users to an unacceptable risk of harm. It was a reasonable course of action in the circumstances for the officer to decide to arrest the appellant so as to prevent the risk of harm. The trial judge’s acceptance of Brevet Sergeant Graham’s evidence as to his reasons for arresting the appellant was a credit-based finding, supported by evidence that was neither glaringly improbable nor contrary to compelling inferences. There is no proper basis for 80 State of South Australia v Crossley [2020] SASCFC 128 (Crossley), [57] (Peek J, with whom Kourakis CJ and Blue J agreed). 81 Primary reasons, [345]. -- 27 of 49 -- [2026] SASCA 49 The Court 24 this Court to reject the trial judge’s factual finding as to what Brevet Sergeant Graham considered in these circumstances.82 Whether the appellant was informed of the reasons for the arrest 84 Secondly, the appellant contends that the arrest was invalid because the appellant was not informed of the arrest nor of the reasons for the arrest. The appellant says that there was no evidentiary basis for the finding that Brevet Sergeant Graham told the appellant he was under arrest for failing to comply with an alcotest.83 The appellant contends that his evidence did not support the finding because, while he gave evidence that was what Brevet Sergeant Graham said, on the appellant’s version this was only said after the arrest and handcuffing. The appellant contends that Brevet Sergeant Graham’s evidence was to the effect that he did not say why the appellant was under arrest. Further, Brevet Sergeant Graham did not explain why he was arresting the appellant, being that he was concerned for his own safety. 85 In Crossley,84 the Full Court recognised that one of the requirements of a valid arrest, subject to limited exceptions, is that the reason for the arrest must be communicated to the arrested person. 86 A difficulty in the present case was that Brevet Sergeant Graham did not recall what he said to the appellant when he placed the appellant under arrest. When asked in his evidence-in-chief what words he used, Brevet Sergeant Graham said:85 ‘You’re under arrest’, ‘You’re under arrest for failing to blow’. I don’t remember the exact words, but he would have been told that he was under arrest. 87 However, his subsequent answers made it clear that this evidence was based on his usual practice rather than his memory of the particular incident.86 In cross-examination, the officer accepted that he might not have got to the point of announcing the grounds for his arrest. When pressed to say whether or not he announced the grounds of the appellant’s arrest, he said:87 I don’t remember. Probably not. 88 Again, it is clear that Brevet Sergeant Graham did not recall what he said, but rather accepted an invitation to engage in conjecture about what was in fact said.88 82 See Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679, [43] (French CJ, Bell, Keane, Nettle and Gordon JJ), and the cases there cited. 83 Primary reasons, [306]. 84 Crossley, [19]-[20] (Peek J, with whom Kourakis CJ and Blue J agreed). 85 Transcript, Dean Cosenza v State of South Australia (Supreme Court, SCCIV-16-358, McDonald J) (Transcript), 723. 86 Transcript, 723-724. 87 Transcript, 805. 88 See, to similar effect transcript, 812. -- 28 of 49 -- [2026] SASCA 49 The Court 25 89 The appellant’s evidence was that, after Brevet Sergeant Graham handcuffed him, the officer said, “You’re under arrest for failing to comply with an alcotest”.89 90 In our view, the proper inference to be drawn from the combined evidence of the appellant and Brevet Sergeant Graham is that Brevet Sergeant Graham followed his usual practice when arresting the appellant and informed the appellant, in substance, that he was under arrest for refusing to submit to an alcotest. We are satisfied that this was done at the point of arrest, at which the officer immediately applied handcuffs. In those circumstances, the appellant’s arrest was not rendered unlawful because Brevet Sergeant Graham failed to inform the appellant of one of the grounds for his arrest. 91 The fact that the police officer did not inform the appellant of all of the reasons which led him to decide to exercise the available power to arrest a person suspected of committing an offence is not to the point. The requirement identified in the passage of Viscount Simon’s speech in Christie v Leachinski,90 adopted in Crossley,91 is to inform the citizen of the “true ground of arrest” so that the citizen knows “on what charge or on suspicion of what crime he is seized”. The requirement is to identify the suspected offence which enlivens the power of arrest conferred by s 75 of the Summary Offences Act. It is not a requirement for a police officer acting in the midst of an arrest to give a set of ex tempore reasons explaining all of the factors and circumstances which have led the officer to exercise the discretion to arrest in the particular case. 92 This point was recently made by this Court in Cruise v The King:92 I interpolate here that there is no requirement that the words which ordinarily must accompany the physical act of arrest be uttered before the physical detention of a suspect. The precise order of the communication of the fact of an arrest, and its grounds, will be dictated by operational contingencies. As we shall see, save for exceptional circumstances, the words of arrest must be uttered at a time when there is a sufficient temporal connection for arrested persons to understand the grounds for their detention. The purpose of the rule is to guard against the arbitrary exercise of the power of arrest and against the appearance that it has been so exercised. The purpose served by the requirement is to allow the arrested person, and the public generally, to make informed judgments on the propriety of the exercise of the power. The law does not demand any stricter sequence than that. 93 In the present case, it was sufficient for Brevet Sergeant Graham to inform the appellant at the point of arrest that he was under arrest for refusing to submit to an alcotest. That information could be provided immediately prior to the application of the handcuffs, as the handcuffs were being applied or immediately after they had been applied. 89 Transcript, 111, 116, 375. 90 Christie v Leachinski [1947] AC 573, 587-588 (Viscount Simon). 91 Crossley, [19] (Peek J, with whom Kourakis CJ and Blue J agreed). 92 Cruise v The King [2025] SASCA 59, [49] (Kourakis CJ, with whom Livesey P and S Doyle JA agreed), [146] (Livesey P). -- 29 of 49 -- [2026] SASCA 49 The Court 26 Use of handcuffs 94 Thirdly, the appellant contends that the degree of force used by Brevet Sergeant Graham in handcuffing the appellant was unnecessary. Senior counsel for the appellant indicated that he used “necessary” as a label for the test identified in Crossley,93 namely a degree of force which the person making the arrest reasonably believes to be necessary to effect the arrest, which a reasonable person in their position would not consider to be disproportionate to the evil to be prevented. 95 In our view, this contention is also without merit. Brevet Sergeant Graham found himself alone in a dark, isolated location with a person who was larger than him behaving in a threatening and aggressive manner. It was a reasonable decision to restrain the appellant with handcuffs so that he could not harm the arresting officer. The officer ceased to apply the handcuffs as soon as it became apparent to him that the appellant may have been experiencing a medical episode. The degree of force used by Brevet Sergeant Graham was no more than was reasonably required in the circumstances to prevent the appellant from endangering the arresting officer’s safety. The application of handcuffs was a degree of force that was authorised to give effect to the arrest in the circumstances Brevet Sergeant Graham faced. Ground 6: Execution of arrest warrant 96 Appeal ground 6 contends that the trial judge erred in failing to find that the arrest of the appellant on 30 August 2015 was wrongful and resulted in several trespasses to his person. The appellant contends that the trial judge should have found that the appellant committed no offence on which to ground the arrest, the arrest was unlawful because it was unnecessary and the arrest warrant had been improperly acquired. The appellant also contends that the arrest warrant was unlawful in providing that no police bail could be obtained upon execution of the arrest. 97 The appellant’s submissions are answered by the fact that, as explained below, the State’s liability for wrongful arrest and wrongful imprisonment under s 65 of the Police Act is the attributed liability of the officers who executed the arrest warrant. Those officers must, but for the operation of s 65(1), be liable before the State will be liable under s 65(2) of that Act. Those officers were not aware of any circumstances giving rise to invalidity of the warrant. The warrant was valid on its face and had not been set aside. The warrant authorised and required the police officers to arrest and detain the appellant until he could be brought before the court. Police officers charged with the legal duty of executing the arrest warrant issued by the court in judicial proceedings are not liable for the execution of the warrant according to its terms, even though the warrant may have been invalid because the conditions in s 58 of the Summary Procedure Act for the 93 Crossley, [21], [59] (Peek J, with whom Kourakis CJ and Blue J agreed). -- 30 of 49 -- [2026] SASCA 49 The Court 27 issue of an arrest warrant were not satisfied.94 That is a complete answer to the claim for wrongful arrest and unlawful imprisonment. Ground 7: Malicious prosecution and misfeasance in public office 98 Appeal ground 7 contends that the trial judge erred in failing to find that the second arrest of the appellant on 30 August 2015, and his subsequent prosecution, constituted malicious prosecution and misfeasance in public office. Apart from repeating earlier contentions as to the lawfulness of the arrest, the appellant contends that the prosecution was initiated without reasonable and probable cause and was actuated by malice. The ground alleges that the trial judge “specifically erred” in failing to find that Senior Constable De Bono was the “prosecutor” who was motivated by malice in initiating the prosecution and seeking the “no bail” endorsement on the arrest warrant. The appellant also contends that the trial judge erred by refusing to act on the evidence of statements by Senior Constable De Bono on the basis that they were hearsay. This ground does not appear to directly challenge the conclusion that Senior Constable De Bono was not a “public officer” for the purposes of the tort of misfeasance in public office. 99 During the hearing of the appeal, senior counsel for the appellant narrowed his malicious prosecution claim to confine it to the actions of Senior Constable De Bono in procuring the issue of a warrant for the arrest of the appellant with a “no bail” endorsement on 24 August 2015, which resulted in his arrest on 30 August 2015 and his detention overnight until granted bail by the court on 31 August 2015. 100 The appellant contends the following, by reference to the elements of malicious prosecution identified in A v The State of New South Wales:95 1. The “proceedings” comprise the application for an arrest warrant with a “no bail” endorsement to the Magistrates Court.96 Although she may have been acting under the supervision of Senior Sergeant Watterson, it may be inferred that Senior Constable De Bono instigated the process in a way that makes her a “prosecutor” for the purposes of the tort. 2. The proceedings were terminated in favour of the appellant because the complaint was ultimately withdrawn. This element is concerned with not contradicting a conviction and there is no conviction in the present case. Further, the warrant was invalidly issued as the requirements of s 58 of the Summary Procedure Act were not satisfied in circumstances where the complaint was not verified on oath and the appellant had not failed to answer a summons. Although an application for judicial review of the validity of the warrant failed, it did so on discretionary grounds as the warrant had no continuing effect after the appellant’s release. The judicial review 94 See Queensland v Stradford (2025) 99 ALJR 396, [149]-[154] (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ). 95 A v The State of New South Wales (2007) 230 CLR 500, [1] (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ). 96 Citing Coleman v Buckingham’s Ltd (1962) 63 SR (NSW) 171. -- 31 of 49 -- [2026] SASCA 49 The Court 28 application did not involve any final determination as to the validity of the warrant. As the magistrate’s order was not authorised and was an order of an inferior court, it does not give rise to any res judicata or issue estoppel as to the issue of the warrant. 3. Senior Constable De Bono acted maliciously in making the application for a warrant. This is to be inferred from fact she had been told by Brevet Sergeant Graham that there were no reasonable grounds for proceeding, Senior Constable De Bono’s past history with the appellant which was not disclosed to Senior Sergeant Watterson, the absence of any arguable need to seek a warrant (as opposed, for example, to a substituted service order) with a no bail condition for an offence punishable only by a fine and the comments made by Senior Constable De Bono to Brevet Sergeant Graham. It was to be inferred that Senior Constable De Bono applied for the warrant solely for the improper purpose of punishing the appellant for being a “pain in the arse”. 4. Senior Constable De Bono acted without reasonable and probable cause, in circumstances where there was no reasonable basis for maintaining the complaint and Senior Constable De Bono was made aware of this, and there was no reasonable justification for seeking an arrest warrant with a “no bail” endorsement for this offence. 101 The State says that this is a new case not run at trial and which could be answered by calling additional evidence and which therefore cannot be run on appeal. The appellant answers this contention by pointing to paragraphs of the statement of claim which squarely raise the issue. 102 The State denies that the proceedings can be characterised as the bail application rather than the issuing of the complaint. It also denies that Senior Constable De Bono, acting under the instructions and supervision of Senior Sergeant Watterson, was the prosecutor. It says there was reasonable and probable cause for the complaint and supports the trial judge’s finding that Senior Constable De Bono did not act with malice. Malicious prosecution 103 Senior counsel for the appellant was correct to narrow and confine the claim for malicious prosecution to the conduct of Senior Constable De Bono in procuring the issue of an arrest warrant with a “no bail” endorsement. The broader claim of malicious prosecution was not sustainable. 104 There was evidence from Brevet Sergeant Graham to the effect that the appellant had refused a requirement to undertake an alcotest given by a police officer who suspected on reasonable grounds that the appellant had been driving a motor vehicle. The appellant had not advanced any material to police which was capable of satisfying the onus on him to show a reasonable excuse for failing to comply. There was evidence which, if accepted, was capable of establishing each element of the charged offence and there was no evidence that any of the police -- 32 of 49 -- [2026] SASCA 49 The Court 29 officers who dealt with the matter did not believe him to be guilty of the charged offence. The fact that there may have been discretionary reasons to discontinue the prosecution, predominantly on public interest grounds, did not mean that the relevant officers had no reasonable and probable cause for instituting and maintaining the prosecution prior to its discontinuance. The evidence at trial fell well short of demonstrating that any of the police officers involved in the prosecution did not have reasonable and probable cause for instituting and maintaining a prosecution for an offence against s 47E(3) of the Road Traffic Act. To the extent that the appellant relied on the animosity which Senior Constable De Bono felt towards him, there was no evidence that she had any role in the institution or maintenance of the prosecution other than in applying for an arrest warrant. 105 Contrary to the position adopted by the State, it is open to a plaintiff to bring proceedings in respect of the step of procuring an arrest warrant in proceedings which do not themselves constitute a malicious prosecution. 106 The decision of the Full Court of the Supreme Court of New South Wales, in Dunshea v Ryan,97 illustrates this proposition. In that case, an attorney acting for an accused in criminal proceedings falsely deposed and stated to the court that a proposed witness, who could give material evidence, had been served with a subpoena and had failed to attend to give evidence. The proposed witness was arrested and “detained and imprisoned … for a long time”. When he was brought to the place where the court was sitting, the judge was satisfied that the witness should not have been arrested and so discharged him. The witness sued the attorney for malicious prosecution. The court held that “where an attorney chooses to make an application for the arrest of a witness, and founds the application upon his own evidence, then if it is alleged that the application was malicious and the evidence false, and action will lie against the attorney for maliciously procuring the arrest”.98 In Dunshea, there was no suggestion that the prosecution was malicious, or indeed that there was no proper basis for seeking to secure the attendance of the witness at a trial. However, the conduct of the attorney in maliciously and without reasonable and probable cause procuring the issue of an arrest warrant was held to be actionable.99 107 Another way in which this may occur is illustrated by Varawa v Howard Smith Co Ltd.100 That case arose under legislation providing for a person with a good cause of action for a debt of specified value against a defendant who was about to depart the jurisdiction, and so defeat the plaintiff’s remedy, to apply to a 97 Dunshea v Ryan (1901) 1 SR (NSW) 163 (Dunshea). 98 Dunshea, 166 (Darley CJ, with whom Stephen and Cohen JJ agreed). 99 See the analysis of this and other cases where proceedings were commenced or continued maliciously and without reasonable cause in Coleman v Buckingham’s Ltd (1962) 63 SR (NSW) 171, 178-181 (Herron CJ and Walsh J), where the “action for malicious arrest on mesne process” was said to be “akin to the action for malicious prosecution and the essentials of the cause of action are substantially the same”, before citing Varawa v Howard Smith Co Ltd (1911) 13 CLR 35, 47 (Griffith CJ) and 72 (O’Connor J). 100 Varawa v Howard Smith Co Ltd (1911) 13 CLR 35 (Varawa). -- 33 of 49 -- [2026] SASCA 49 The Court 30 judge for an order that the defendant be held to bail. The effect of that order was to allow the plaintiff to issue a writ of capius which would authorise the sheriff to arrest the defendant and detain him until bail or security for the debt was provided. Such an order and writ were obtained in an action for debt in the Supreme Court of New South Wales, and the defendant was arrested and detained until posting bail. Before the NSW proceedings were determined in the defendant’s favour, the defendant commenced proceedings in the Supreme Court of Victoria for malicious prosecution. The defendant alleged that the plaintiff took the proceedings not for the purpose of securing payment of money, which he believed the defendant owed the plaintiff, but for the purpose of forcing the defendant to pay money which the plaintiff did not in good faith consider he was owed. An issue in the High Court was whether the fact that the order that the defendant be held to bail and the writ of capius had not been set aside, and that the NSW proceedings had not resolved at the date the Victorian proceedings commenced, was an answer to the defendant’s malicious prosecution claim. 108 Chief Justice Griffith and Justices O’Connor and Isaacs all recognised the principle as being that a person claiming malicious prosecution or use of legal processes must show that the proceedings have terminated in their favour if they are capable of such termination.101 Griffith CJ and O’Connor J considered that the fact that the order that the defendant be held to bail and the writ of capius had not been set aside was not a bar to the malicious prosecution proceeding for this reason.102 Isaacs J, who considered that the defendant could have applied to set aside the order and writ,103 took a different view. 109 Chief Justice Griffith and Justice O’Connor both contemplated that an action for malicious prosecution might be brought on the ground that a plaintiff had no reasonable and probable cause for apprehending that the defendant was about to depart the jurisdiction, or that doing so would defeat the plaintiff’s remedy. In such a case, they contemplated that the pendency of the action in debt might not be a bar to the claim for malicious prosecution as the existence or non-existence of the debt would be irrelevant to the malicious prosecution claim. However, in Varawa, their Honours did not need to resolve that issue as the alleged lack of reasonable and probable cause and malice related to the existence of the debt.104 110 In Smith v Cotton,105 the plaintiff successfully sued for the malicious issuing a writ of capius to enforce a judgment obtained against her and her husband which led to her arrest, obtained by the defendant without informing the issuing judge that the plaintiff was a married woman (against whom execution was not available). Chief Justice Street held that she was able to do so without setting aside 101 Varawa, 52 (Griffith CJ), 71-72 (O’Connor J), 80 (Isaacs J). 102 Varawa, 50-53 (Griffith CJ), 73-74 (O’Connor J). 103 Varawa, 90-91 (Isaacs J). 104 See Varawa, 49 (Griffith J), 73 (O’Connor J). 105 Smith v Cotton (1926) 27 SR (NSW) 41 (Smith). -- 34 of 49 -- [2026] SASCA 49 The Court 31 the writ of capius where, instead of taking steps to have the writ set aside, she took other steps to secure her release.106 111 Action may also be brought for maliciously procuring the issue of a search warrant without reasonable and probable cause, in circumstances akin to a claim for malicious prosecution, without setting aside the search warrant.107 While an action for the malicious issue of a search warrant or malicious arrest may be regarded as a separate cause of action, they are akin to108 a species of the common law cause of action for malicious prosecution. The concern in all these cases is with an abuse of the process of the court by wrongfully setting the law in motion, and to discourage the perversion of the machinery of justice for an improper purpose.109 112 If an action for malicious prosecution or malicious arrest can be brought for the procurement of a warrant of arrest in civil proceedings, or for the arrest of a witness, then we see no reason why the tort should not extend to maliciously and without reasonable and probable cause procuring the issue of a warrant for the arrest of an accused in criminal proceedings.110 113 In the present case, Senior Constable De Bono was the prosecutor who applied for and procured the issue of a warrant for the arrest of the appellant endorsed with a “no bail” condition. 114 In doing so, Senior Constable De Bono was not acting under the direction of her supervisor, Senior Sergeant Watterson. Senior Sergeant Watterson gave evidence that he was unaware of the application which he described as inappropriate and disturbing.111 The trial judge did not refer to this evidence when finding that Senior Constable De Bono was acting on Senior Sergeant Watterson’s instructions in applying for the arrest warrant.112 In our view, the finding that Senior Constable De Bono was acting on the instructions of Senior Sergeant Watterson when she applied for an arrest warrant with a “no bail” endorsement was not open on Senior Sergeant Watterson’s evidence, when considered as a whole. 106 Smith, 50 (Street CJ, with whom Gordon J concurred). 107 See Gibbs v Rea [1998] AC 786 (Gibbs), 797 (Lord Goff of Chieveley, Lord Steyn, Lord Hope of Craighead, Lord Hutton and Gault J). 108 See Gibbs, 797 (Lord Goff of Chieveley, Lord Steyn, Lord Hope of Craighead, Lord Hutton and Gault J); Roy v Prior [1971] AC 470, 477-478 (Lord Morris of Borth-y-Guest, with whom Lord Reid, Viscount Dilhorne, Lord Wilberforce and Lord Diplock agreed). 109 Mohamed Amin v Jogendra Kumar Bannerjee [1947] AC 322, 330-331 (Lord Uthwatt, Sir Madhavan Nair and Sir John Beaumont). 110 See the discussion of the various kinds of case, including “malicious arrest”, in Mutton v Baker [2014] VSCA 43 (Mutton), [23] (Santamaria JA, with whom Whelan JA agreed). Santamaria JA distinguished “malicious arrest” from “false imprisonment” on the basis that the former involved the improper use of the power of a court to effect an arrest. In Mutton, the court refused leave to appeal summary judgment in favour of the defendant where “there [had] been no court involvement whatsoever”, [54]. 111 Transcript, 967-968. 112 Primary reasons, [513]. -- 35 of 49 -- [2026] SASCA 49 The Court 32 115 We would infer from Senior Constable De Bono’s appearance at the court on that occasion, and her preceding conversation with Brevet Sergeant Graham, that Senior Constable De Bono applied for the arrest warrant with a “no bail” endorsement. She was, to that extent, the prosecutor for the purposes of the law of malicious prosecution even if (contrary to our view) she was subject to supervision by other police officers in the prosecution branch when doing so. 116 The charge of failing to submit to an alcotest was terminated in favour of the appellant.113 To the extent necessary, the favourable termination requirement was satisfied. The application for an arrest warrant was not capable of being determined in the appellant’s favour once it had been executed and he was released on bail. The force of the warrant was spent by that time, and this was the basis on which the appellant’s judicial review application seeking to have the warrant quashed or declared invalid was dismissed.114 As the cases referred to earlier illustrate, the fact that a warrant for arrest is issued by a court and has not been set aside does not preclude an action for malicious prosecution in the form of a malicious arrest. 117 In our view, there was no reasonable and probable cause for the issue of an arrest warrant with a “no bail” endorsement in the circumstances of the present case. The conditions for the valid issue of an arrest warrant were not satisfied: there had been no service of a summons with which the appellant had failed to comply and the allegations in the complaint had not been substantiated on oath. Further, even if an application for an arrest warrant might have been justified as a means of bringing the appellant, who was apparently avoiding service of the summons, before the court there does not appear any plausible reason for requesting the issue of a warrant with a “no bail” endorsement. The complaint charged the appellant with an offence which was not punishable by a custodial sentence, and there was no basis to suggest that he was a flight risk. The likely consequence of the “no bail” endorsement was that the appellant would need to be kept in custody overnight or perhaps longer until he could be brought before the court. In the absence of any contradictory evidence from Senior Constable De Bono, we would infer that she did not subjectively believe either that: (a) it was open to the court to issue an arrest warrant when the complaint had not been verified on oath and the appellant had not been served with a summons; or (b) the issue of an arrest warrant with a “no bail” endorsement was reasonably required or justified to bring the appellant before the court. Nor was the material available to Senior Constable De Bono objectively capable of establishing either that the preconditions for the issue of any arrest warrant were 113 Beckett v The State of New South Wales (2013) 248 CLR 432, [5]-[6] (French CJ, Hayne, Crennan, Kiefel and Bell JJ). 114 Cosenza v Magistrates Court of South Australia [2016] SASC 181, [39], [41], [44] (Bampton J). -- 36 of 49 -- [2026] SASCA 49 The Court 33 satisfied or that the issue of an arrest warrant with a “no bail” endorsement was reasonably required or justified to bring the appellant before the court. 118 We are also satisfied that Senior Constable De Bono acted with malice: ie for a purpose other than the purpose of properly invoking the criminal law to bring the appellant before the court to answer the complaint. We draw that inference from the following combination of circumstances: 1. First, the preconditions to the valid issue of a warrant of arrest were not satisfied and there is no evidence that Senior Constable De Bono was mistaken as to those requirements. 2. Second, for the reasons just explained, the issue of an arrest warrant with a “no bail” endorsement was not reasonably required or justified for the purposes of bring the appellant before the court to answer the charge. Senior Sergeant Watterson recognised the application for a “no bail” warrant was inappropriate and disturbing in the circumstances.115 It was not something that reflected the ordinary practice of the police prosecution branch. 3. Thirdly, Senior Constable De Bono’s history with the appellant, in which he had brought action against the State based on alleged misconduct by her, was apt to produce animosity by her towards the appellant. 4. Fourthly, and contrary to what may have been expected of a police officer in those circumstances, she did not disclose this conflict of interest and duty to her supervisor.116 5. Fifthly, the comments she made to Brevet Sergeant Graham both indicated her animosity towards the appellant and that this animosity was motivating her dealings. 119 Senior Constable De Bono was not called to give evidence at trial. At trial, the appellant accepted that medical reports provided the State with a reasonable explanation for failing to call Senior Constable De Bono as a witness. The trial judge recognised that no adverse Jones v Dunkel inference should be drawn against the State in these circumstances.117 The trial judge observed that this left a gap in the evidence.118 In our view, that gap in the evidence does not work in a manner wholly contrary to the appellant’s interests. While the appellant bears the onus of proving Senior Constable De Bono’s state of mind for the purposes of establishing the cause of action of malicious prosecution, that onus may be satisfied by adducing other evidence from which an inference as to the police officer’s state of mind at the relevant time may be drawn. Where the appellant does so, the absence 115 Transcript, 967-968. 116 See the evidence of Senior Sergeant Watterson at transcript, 962-964. 117 Primary reasons, [433]-[436], citing Jones v Dunkel (1959) 101 CLR 298, 319 (Windeyer J); Ghazal v Government Insurance Office of New South Wales (1992) 29 NSWLR 336, 343 (Kirby P, with whom Mahoney and Clarke JJA agreed) and Galea v Camilleri [2023] NSWSC 206, [163]-[164] (Meek J). 118 Primary reasons, [437]. -- 37 of 49 -- [2026] SASCA 49 The Court 34 of any evidence from Senior Constable De Bono that she did not have the inferred state of mind makes it easier to conclude that the inference invited by the appellant is the most probable inference to be drawn from all the evidence considered as a whole. 120 We recognise the evidentiary challenge which a plaintiff faces in contending that a person employed in a professional capacity in a prosecuting authority acted with malice. However, in the present case, the evidence of Senior Constable De Bono’s past history with the appellant, undisclosed to her supervisors, and her statements to Brevet Sergeant Graham support the inference that she was motivated by her animus towards the appellant. The inference we draw as the most probable inference, in the absence of any contradictory evidence from Senior Constable De Bono, is that she decided to seek an arrest warrant with a “no bail” endorsement to punish the appellant for being a “pain in the arse”, both in relation to his past dealings with her and the difficulties he had presented in relation to service of the summons for the alcotest charge. That was not a proper purpose for seeking the issue of an arrest warrant with a “no bail” endorsement. 121 The trial judge found that the evidence did not establish that the sole or dominant purpose actuating Senior Constable De Bono to institute or maintain the prosecution was improper. In our view, that finding was influenced by the trial judge’s incorrect conclusion that Senior Constable De Bono had no role in making that determination.119 122 The appellant also contended that the trial judge erred in characterising Brevet Sergeant Graham’s evidence about what Senior Constable De Bono said to him as hearsay which her Honour did not rely on “for the truth of the matters asserted”.120 We are not satisfied that the trial judge made this error. Of course, Senior Constable De Bono’s out-of-court statements could be used as evidence of her state of mind at that time without infringing the hearsay rule,121 and the State did not contend to the contrary in the appeal. However, we are not convinced that the trial judge took a different view. In the same paragraph in which the trial judge referred to Senior Constable De Bono’s statements as hearsay, her Honour said that they were evidence that Senior Constable De Bono had turned her mind to the question of bail. The trial judge also accepted that the evidence demonstrated that Senior Constable De Bono had a strong dislike for the appellant.122 In our view, the trial judge accepted that Brevet Sergeant Graham’s evidence of what Senior Constable De Bono had told him was evidence of her state of mind at that time. 119 Primary reasons, [519]. 120 Primary reasons, [507]. 121 Walton v The Queen (1989) 166 CLR 283, 288-289 (Mason CJ), 300-302 (Wilson, Dawson and Toohey JJ). 122 Primary reasons, [519]. -- 38 of 49 -- [2026] SASCA 49 The Court 35 123 We do not accept the State’s submission that the narrower case as to malicious prosecution which we have accepted was not run at trial. Revision 5 of the appellant’s Claim specifically pleaded that:123 1. Senior Constable De Bono applied for the issue of a warrant for the appellant’s arrest “and excluding any right to bail”. 2. Senior Constable De Bono made that application without reasonable or probable cause, and did so maliciously. 3. Senior Constable De Bono was “malicious and did not have reasonable cause to obtain the [issue] of a warrant for arrest of the [appellant] without bail in furtherance and continuation of prosecution of the [appellant]”. 4. Senior Constable De Bono’s malicious prosecution of the appellant caused him injury and loss and the appellant claimed damages “from [Senior Constable De Bono] for malicious prosecution including exemplary damages”. 124 While the focus of submissions at trial was on the broader case for malicious prosecution, the narrower pleaded case described above was never abandoned and remained encompassed within the broader claim. For the reasons explained above, the trial judge erred in failing to find this narrower pleaded case to be established. Misfeasance in public office 125 As to the claim for misfeasance in public office, counsel for the appellant had difficulty in identifying a public power which was exercised by Senior Constable De Bono in making an application for a warrant in the Magistrates Court. Counsel for the appellant accepted that this Court did not need to resolve the claim of misfeasance in public office if it found the claim for malicious prosecution to be established. That was on the basis that, if the malicious prosecution case succeeds, the damages for each cause of action will completely overlap as they relate to the same loss. 126 In these circumstances, it is sufficient to note that we agree with the trial judge’s conclusion that the cause of action for misfeasance in public office was not established because Senior Constable De Bono, while a public officer, was not exercising any public power or duty in applying for an arrest warrant. The essence of the tort is a public officer knowingly acting in excess of his or her public powers and duties.124 The only limited public power conferred in the present case was the magistrate’s power to issue an arrest warrant. The action of a prosecutor in applying to the court to make an order does not involve the exercise of any public power or duty which might engage the tort of misfeasance in public office, essentially for the reasons explained by the Victorian Court of Appeal in Cannon 123 Claim (Revision 5) dated 4 January 2022 (FDN 234), [53]-[55], [60]-[62]. 124 Northern Territory v Mengel (1995) 185 CLR 307, 345-346 (Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ), 355-356 (Brennan J), 370-371 (Deane J). -- 39 of 49 -- [2026] SASCA 49 The Court 36 v Tahche.125 While the prosecutor’s conduct in maliciously applying for an arrest warrant with a “no bail” endorsement was tortious, it did not involve acting in excess of any statutory or other public power or duty imposed on the prosecution and was not invalid. Ground 8: Damages 127 Appeal ground 8 contends that the trial judge erred in the assessment of damages. In part, Ground 8 is consequential upon the success of other grounds, and contends that damages ought to have been awarded for torts which were held not to be established at trial. However, Ground 8 also challenges the trial judge’s finding that the arrest on 3 April 2015 did not aggravate the appellant’s underlying spinal problems. This ground also contends that the trial judge erred in failing to award aggravated or exemplary damages for the trespass by the police officers attempting to serve the summons. 128 At the hearing of the appeal, the parties accepted that the question of damages would need to be remitted if any of the appellant’s grounds of appeal succeeded. Given the partial success of Ground 7 in relation to the malicious prosecution claim, it is appropriate to remit the matter to the General Division for determination of the damages arising from the appellant’s arrest and overnight detention on 30 and 31 August 2015, including the resolution of the appellant’s claim for aggravated or exemplary damages in respect of Senior Constable De Bono’s conduct in applying for the arrest warrant with a “no bail” endorsement. 129 Below, we explain why we would uphold the State’s cross-appeal and set aside the award of damages for trespass. In these circumstances it is unnecessary to address appeal ground 8 in so far as it contends that the trial judge erred in failing to award aggravated or exemplary damages for the trespass by the police officers attempting to serve the summons. Cross-appeal: Trespass claim 130 The State cross-appeals against the award of damages for trespass by police officers attempting to serve the appellant with the summons on two grounds. Ground 1 contends that the appellant did not have a sufficient interest in the Woodville South property to either withdraw the implied licence or commence and maintain proceedings in trespass in respect of entry onto that property. Ground 2 contends that neither Constable Kluzek nor Senior Constable Mitchell had their implied licences revoked when neither were personally aware, and a reasonable person in their position would not have known, that the implied licence had been revoked. Appellant’s interest in the Woodville South property 131 The concept of possession is central to a claim for damages for trespass to land. However, a variety of terms have been used to describe the possession which 125 Cannon v Tahche (2002) 5 VR 317, [61]-[76] (Winneke P, Charles and Chernov JJA). -- 40 of 49 -- [2026] SASCA 49 The Court 37 may support an action in trespass. As Murphy JA noted in Bride v Shire of Katanning:126 Possession as a fact is often referred to as ‘mere’ possession or ‘physical’ possession or ‘actual’ possession or possession ‘in fact’. … Possession, as a fact, requires actual control to the exclusion of others. For possession to be a source of right it is necessary for there to be an intention to exercise such control on one’s own behalf and for one’s own benefit. In the disparate nomenclature of ‘possession’, actual control has been called ‘factual possession’ and has been seen as separate from an ‘intention to possess’. … (Citations omitted.) 132 Much of the State’s argument in support of Ground 1 of its cross-appeal focussed on the contention that, to establish the necessary possessory interest, the appellant had to establish both physical occupation over the land and a legal right to possess. For that proposition, the State principally relies on the judgement of Edelman J, sitting as a single judge of the Supreme Court of Western Australia, in Hampton v BHP Billiton Minerals Pty Ltd (No 2).127 In essence, the State submits that the appellant’s claim must fail because he did not establish any right to possess the Woodville South property. The State challenges the correctness of the observations of Barrett J in Georgeski v Owners Corporation SP49833,128 and Williams A/DCJ in Shannon v The State of New South Wales,129 to the effect that possession in fact may be sufficient to support an action in trespass. 133 We do not accept this aspect of the State’s submissions. In MacIntosh v Lobel,130 Kirby P was in dissent on the question whether the director of a “one-man company” was in possession of land leased to the company.131 However, his Honour correctly identified the concern of the law of trespass to land as being to protect the quiet possession of land, and that a person in quiet possession could sue for trespass even though he or she was not the owner and may be in possession adverse to the owner.132 At common law, a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a good title against all the world but the rightful owner.133 That kind of possessory title can arise in respect of Torrens system land.134 126 Bride v Shire of Katanning [2013] WASCA 154, [9]-[10] (Murphy JA, agreeing with Edelman J). 127 Hampton v BHP Billiton Minerals Pty Ltd (No 2) [2012] WASC 285 (Hampton), [273] (Edelman J). 128 Georgeski v Owners Corporation SP49833 (2004) 62 NSWLR 534 (Georgeski), [106] (Barrett J). 129 Shannon v The State of New South Wales (2015) 20 DCLR (NSW) 144 (Shannon). 130 MacIntosh v Lobel (1993) 30 NSWLR 441 (MacIntosh). 131 See MacIntosh, 454-455 (Kirby P); cf 476 (Mahoney JA), 477 (Cripps JA). 132 MacIntosh, 454 (Kirby P). 133 Asher v Whitlock (1865) LR 1 QB 1, 5 (Cockburn CJ, with whom Mellor and Lush JJ agreed); Perry v Clissold [1907] AC 73, 79-80 (The Lord Chancellor, The Earl of Halsbury, Lord Macnaghten, Lord Robertson, Lord Atkinson, Sir Ford North and Sir Arthur Wilson); Mount Bischoff Tin Mining Co (Regd) v Mount Bischoff Extended Tin Mining Co (NL) (1913) 15 CLR 549, 558 (Griffith CJ), 562 (Isaacs J). 134 Spark v Whale Three Minute Car Wash (1970) 92 WN (NSW) 1087, 1104-1105 (Slattery J); Newington v Windeyer (1985) 3 NSWLR 555, 563-564 (McHugh JA, with whom Hope JA agreed, Kirby P not -- 41 of 49 -- [2026] SASCA 49 The Court 38 134 In our view, Edelman J’s reasons in Hampton did not deny the existence of possessory title that could support an action in trespass by a person in possession of land. In that case, his Honour dealt with a claim for mesne profits for trespass made by the registered proprietors of a residential property against a lessee who held over. The registered proprietors had never been in possession of the land. The point correctly determined by Edelman J was that the mere right to possession which derived from registration as the proprietors of the land was not sufficient to found the action and that actual or factual possession (which his Honour referred to as “occupation”) was required, which had both a mental and a physical element. Edelman J concluded that the registered proprietors’ claim failed because they did not have an intention to occupy the property and had not performed sufficient objective acts of occupation.135 However, to say that an entitlement to possession without actual or factual possession is not sufficient to found an action in trespass is not to deny that an action in trespass can be supported by the possessory title derived from possession, even in the absence of an entitlement to possession derived from the true owner of the land. 135 Therefore, we agree with the following statement of principle by Barrett J in Georgeski:136 Trespass to land is sometimes said to be an unlawful interference with one’s property, but more particularly it is an interference with possession. A right of possession of the kind enjoyed by a lessee will support an action in trespass. Possession in fact may also be sufficient, at least as against a defendant having no right of possession. Such a defendant, unless entering with the authority of the owner or lessee, may not plead that person’s right to possession as a defence and, for that reason, may be unable to resist an action by a plaintiff whose possession is possession in fact only. But possession in fact is by no means the equivalent of occupation, even sole occupation. It may be found to exist where, as Wonnacott put it (see at 562 [102] supra), a person “is, as a matter of observable fact, enjoying the rights and incidents of an estate or interest in land”. Mere physical presence or physical use can never satisfy that test. 136 The reference to “Wonnacott” in this passage is to an article by Mark Wonnacott,137 the quoted part of which included the following passage:138 The relationship of fact (having or being in possession) exists when a person is, as a matter of observable fact, enjoying the rights and incidents of an estate or interest in land. So a person in occupation of land, whose occupation is otherwise unexplained, is in possession of the fee simple, because occupation is one of the ways in which a fee simple can be enjoyed. 137 However, as these passages from Georgeski illustrate, the possession of land which will support an action in trespass requires more than mere occupation of the deciding); Dial A Dump Industries Pty Ltd v Roads and Maritime Services (NSW) (2017) 94 NSWLR 554, [48]-[51] (Beazley P, with whom McColl and Leeming JJA agreed). 135 Hampton, [270]-[278] (Edelman J). 136 Georgeski, [106] (Barrett J), cited with apparent approval in Brown v The State of Tasmania (2017) 261 CLR 328, [383] (Gordon J). 137 Mark Wonnacott, ‘Flawed judgment’ (1999) Estates Gazette 165. 138 Quoted in Georgeski, [102] (Barrett J). -- 42 of 49 -- [2026] SASCA 49 The Court 39 land. Possession is a term that is a notoriously difficult concept to define and has different meanings across different branches of the law.139 Further, what is required to establish possession for the purposes of an action in ejectment or trespass may vary according to a variety of circumstances. As Toohey J observed in Mabo (No 2):140 At common law conduct required to prove occupation or possession will vary according to the circumstances including, for example, whether the claimant enters as a trespasser or as of right. And the nature of the land will to a large extent dictate the use that might be made of it. For example, conduct amounting to possession will be different in relation to a dwelling and to uncultivated land. Some land is barren and unproductive so that it cannot sustain people all the year round. It may be necessary for occupiers to seek water and sustenance elsewhere for part of the year, returning to ‘their’ land as soon as it is possible. (Citations omitted.) 138 The nature of the interest held by the person claiming possession may also affect the acts required to establish possession. In Ocean Estates Ltd v Pinder,141 the Privy Council observed that the “slightest acts by the person having title to the land … indicating his intention to take possession, are sufficient to enable him to bring an action in trespass against a defendant entering upon the land without any title, unless there can be shown a subsequent intention on the part of the person having the title to abandon the constructive possession so acquired”. Conversely, greater action may be required of a person who demonstrably does not hold the title to Torrens system land, as another person is the registered proprietor, to establish possession of the land in fact. This explains the rarity of successful claims of a possessory interest in Torrens land by a person who is not a registered proprietor or lessee of the land. 139 The mere fact that a child resides in the parent’s house does not make the child a person in possession of the land on which the house sits. They will not be in possession if, even as an adult, the child is properly characterised as a lodger or boarder in the house which is possessed by the parent.142 On the other hand, as was the case in Shannon, the fact that a parent holds title to the land in question may not be inconsistent with a child who occupies a house to the exclusion of all others (including the parent) being in possession of the land on which the house sits. 140 It is at this point that the appellant’s trespass case breaks down. In our view, Ground 1 of the cross-appeal is established to the extent that it contends that the trial judge erred in finding that the appellant and his mother were “jointly in possession of the [Woodville South property] and, as a matter of fact, shared the 139 The State of Western Australia v Ward (2002) 213 CLR 1, [478] (McHugh J), cited in Hampton, [274] (Edelman J); Mabo v The State of Queensland (No 2) (1992) 175 CLR 1 (Mabo (No 2)), 207 (Toohey J); Bride v Shire of Katanning [2013] WASCA 154, [7] (Murphy JA, agreeing with Edelman J). 140 Mabo (No 2), 213 (Toohey J). 141 Ocean Estates Ltd v Pinder [1969] 2 AC 19, 25 (Lord Guest, Lord Upjohn and Lord Diplock). 142 See Marks-Vincenti v The Queen (2015) 45 VR 313, [28]-[32] (Maxwell P, Weinberg and Beach JJA); Markisic v Department of Community Services (NSW) [2005] NSWSC 1373, [129]-[136] (Smart AJ). -- 43 of 49 -- [2026] SASCA 49 The Court 40 same interest in the exclusion of others from the property”.143 In our view, neither the primary facts found by the trial judge nor the evidence which she accepted supported the conclusion that the appellant and his mother were jointly in possession of the Woodville South property. 141 It is significant that the appellant’s mother was the sole registered proprietor of the Woodville South property and that the trial judge rejected the appellant’s evidence about the existence of a lease arrangement.144 The mother, who continued to physically occupy the Woodville South property while “on occasions” spending some time away from it while she stayed with her daughter,145 therefore had the sole legal right to control who accessed the Woodville South property. The fact that the appellant’s mother continued to live at the Woodville South property is one of several features which distinguish the present case from Shannon. The appellant and his mother did not share the same interest in the Woodville South property. He stayed at the property only with her permission. 142 The trial judge’s finding that the appellant’s mother:146 … permitted the applicant to live with her at the house under a longstanding informal arrangement which involved the applicant paying rent and contributing towards the household expenses … was, in our view, inconsistent with a conclusion that the appellant and his mother were in joint possession of the Woodville South property. In the absence of a lease, this could only be a licence or lodging arrangement. Recognising this legal character of the arrangement does not “contort the nature of the relationship” as the trial judge concluded. That was the nature of the relationship that the appellant had with the interest in the land held exclusively by his mother. The appellant was not, as a matter of observable fact, enjoying the rights and incidents of an estate or interest in land. Rather, he was present with the licence and permission of the only person who had exclusive possession of the Woodville South property, his mother. 143 In our view, the trial judge erred in equating the appellant’s physical presence at the Woodville South property with his mother’s permission to a case where the appellant was in legal possession of that land. The appellant was an adult child living at his mother’s house with her permission under an informal licence or lodging arrangement. His conduct, considered in light of that relationship, cannot be properly characterised as an observable exercise of the rights of an estate or interest in the land so as to give him possessory title. The appellant did not occupy the Woodville South property in the assumed character of owner or exercising peaceably the ordinary rights of ownership of that land. There was no evidence of the appellant that was accepted by the trial judge that he had those rights, or any intention to exercise them. As such, the appellant did not have possession of the 143 Primary reasons, [608]. 144 Primary reasons, [595]. 145 Primary reasons, [596]. 146 Primary reasons, [597]. -- 44 of 49 -- [2026] SASCA 49 The Court 41 land so as to entitle him to bring an action for damages in trespass. Any claim for damages for trespass by the police officers in entering the Woodville South property to attempt to serve a summons needed to be brought by the appellant’s mother (or her estate following her death) rather than the appellant in his personal capacity. Revocation of the officers’ implied licence to enter 144 In Halliday v Nevill,147 the plurality described the implied licence to enter residential premises in the following terms: While the question whether an occupier of land has granted a licence to another to enter upon it is essentially a question of fact, there are circumstances in which such a licence will, as a matter of law, be implied unless there is something additional in the objective facts which is capable of founding a conclusion that any such implied or tacit licence was negated or was revoked. The most common instance of such an implied licence relates to the means of access, whether path, driveway or both, leading to the entrance of the ordinary suburban dwelling-house. If the path or driveway leading to the entrance of such a dwelling is left unobstructed and with entrance gate unlocked and there is no notice or other indication that entry by visitors generally or particularly designated visitors is forbidden or unauthorized, the law will imply a licence in favour of any member of the public to go upon the path or driveway to the entrance of the dwelling for the purpose of lawful communication with, or delivery to, any person in the house. Such an implied or tacit licence can be precluded or at any time revoked by express or implied refusal or withdrawal of it. The occupier will not however be heard to say that while he or she had neither done nor said anything to negate or revoke any such licence, it should not be implied because subjectively he or she had not intended to give it. (Citations omitted.) 145 In Halliday, where there was no question of the revocation of the implied licence, the licence was held to extend to entry by a police officer onto the driveway of a residential premises for the purpose of effecting an arrest. 146 The subsequent decision of the High Court, in Plenty v Dillon,148 held that a police officer serving a summons under legislation then in force in South Australia had no special right to enter private property. The appeal to the High Court proceeded on the footing that, in the view taken of the facts by a majority of the Full Court of this Court, the landowner had expressly revoked any implied consent given to any police constable to enter the land and serve the summons.149 In the Full Court, White J observed that the landowner had expressly revoked the implied licence by informing a police officer who had served a previous licence and in correspondence to that officer and the Premier of the State.150 The case was argued on the basis that the police officer who served the summons on the occasion of the 147 Halliday v Nevill (1984) 155 CLR 1 (Halliday), 6-7 (Gibbs CJ, Mason, Wilson and Deane JJ). 148 Plenty v Dillon (1991) 171 CLR 635 (Plenty HC). 149 Plenty HC, 638 (Mason CJ, Brennan and Toohey JJ). 150 Plenty v Dillon (1988) 50 SASR 407 (Plenty FC), 408 (White J, with whom Prior J agreed). -- 45 of 49 -- [2026] SASCA 49 The Court 42 alleged trespass knew that his implied licence had been expressly revoked.151 The express revocation of the implied licence was conceded by the Crown.152 147 Therefore, the steps required to revoke the implied licence or prevent it from arising were not in issue in either Halliday, Plenty FC or Plenty HC. 148 In Cowell v Rosehill Racecourse Co Ltd,153 Dixon J observed that a licensee does not become a trespasser until he or she receives notice that the licence is countermanded. The nature of the notice required to revoke a licence was explained by Hodgson JA in Wilson v The State of New South Wales:154 … [T]he licensee must first have notice that the licence is revoked; and consistently with the general legal position in relation to the giving of notice, that requires a communication to the licensee, which the licensee understands as a revocation of the licence or which a reasonable person in the position of the licensee would understand as a revocation of the licence. This means in turn that the communication must be such that the licensee did understand it, or a reasonable person in the position of the licensee would understand it, both as coming from a person with authority to revoke the licence and as having such content as to constitute such a revocation. … (Original emphasis.) 149 Wilson was applied by the New South Wales Court of Appeal, in Maynes v Casey,155 in circumstances with some parallels with the present case. In Maynes, the question was whether the implied licence had been revoked by a letter to a newspaper, correspondence with the Cowra Shire Council and a sign erected near a cattle grid near an entrance to a rural property, none of which had been seen by a process server engaged by the Council’s solicitors. The sign was found to be too far from the cattle grid to be visible at the time the process server entered and, in any event, its critical contents were not legible. This was found to be ineffective to communicate to the process server that implied consent to enter the property was withdrawn. 150 In Robson v Hallett,156 Diplock LJ postulated that the plaintiffs in that case could have rebutted the implied licence to the police officers by putting up a notice on their front gate “No admittance to police officers”. This passage, cited by the High Court in Halliday,157 illustrates that a landowner might either prevent an implied licence from arising, or revoke the licence, by placing a sign at the entry to their property. But Mayne illustrates that not every sign will have this effect. If the sign is not in fact seen by the alleged trespasser, it must be sufficient to 151 Plenty FC, 410 (White J, with whom Prior J agreed). 152 Plenty FC, 410 (White J, with whom Prior J agreed). 153 Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605, 631 (Dixon J), applied in Chen v The State of New South Wales [2014] NSWCA 41, [26] (Basten JA, with whom Meagher JA and Tobias AJA agreed). 154 Wilson v The State of New South Wales (2010) 278 ALR 74 (Wilson), [51] (Hodgson JA, with whom McColl and Young JJA agreed), applied in Phillips v Police (SA) (2020) 94 MVR 414, [22] (Stanley J). 155 Maynes v Casey [2011] NSWCA 156 (Maynes). 156 Robson v Hallett [1967] 2 QB 939, 954 (Diplock LJ). 157 Halliday, 7 (Gibbs CJ, Mason, Wilson and Deane JJ). -- 46 of 49 -- [2026] SASCA 49 The Court 43 communicate the refusal of entry to a reasonable person in the position of the alleged trespasser. 151 In the present case, there is no challenge to the trial judge’s finding that Constable Kluzek and Senior Constable Mitchell did not see the sign at the front of the Woodville South property before entering it, and were unaware of the appellant’s correspondence with SAPOL. In our view, the sign was not sufficient to communicate refusal of entry to a reasonable person in the position of Constable Kluzek and Senior Constable Mitchell when they entered the property. The sign was a small sign posted on a pillar by the driveway entry to the property. It was unlikely to have been seen by a person approaching the house by the path leading to the front door, which was a natural point for a person to enter on foot. As the trial judge observed, given the size and position of the sign, “it would hardly be surprising for them to have not seen it or registered its importance or meaning”.158 The gate was not locked even if it was not open. 152 The implied licence to enter a residential property to knock on the front door is a ubiquitous feature of life in the Australian community. A person approaching a house to knock on the front door will naturally assume that they are permitted to do so. If a sign is to be relied upon to revoke the implied licence, or prevent it from arising, then the sign must be clear both in its visibility and content. The owner of land cannot entrap unaware visitors into trespassing on their property, rendering them liable to pay damages to the owner, by a sign which might not be effective to communicate the refusal of permission to enter. To be effective, a sign which is not actually seen and understood by a person entering the property must be such as to effectively communicate the refusal of entry to any reasonable person in the position of the alleged trespasser. 153 The trial judge correctly applied the above authorities and did not rely on the sign at the front of the Woodville South property as an effective communication revoking the implied licence or preventing it from arising.159 However, her Honour found that the appellant’s communications with SAPOL and the police complaints authority had clearly and unequivocally revoked the implied licence to enter “his” premises.160 While accepting that Constable Kluzek and Senior Constable Mitchell were ignorant of those communications, that did not detract from the liability of SAPOL as it was “incumbent on SAPOL to ensure that information was passed on to its officers”.161 154 In our view, the trial judge erred in finding that the implied licence of Constable Kluzek and Senior Constable Mitchell to enter the Woodville South property had been revoked by communications made to other police officers about which they were unaware. 158 Primary reasons, [650]. 159 Primary reasons, [612]-[639]. 160 Primary reasons, [649]. 161 Primary reasons, [651]. -- 47 of 49 -- [2026] SASCA 49 The Court 44 155 In considering this issue, it is important to appreciate the nature of the State’s liability created by s 65 of the Police Act. In Bird v DP (a pseudonym),162 the plurality distinguished between the common law doctrine of agency, where the acts of a person are attributed to the defendant, and the doctrine of vicarious liability, where the liability rather than the acts of a person will be attributed to the defendant. The court emphasised the importance of that distinction. It is a distinction to be borne in mind in construing s 65 of the Police Act in the present case. 156 Whether a provision for the bringing of action against the State in respect of the conduct of police officers involves the attribution of the officers’ conduct or liability to the State is a question of statutory construction.163 In our view, the construction of s 65 of the Police Act is clear: it provides for the attribution of a police officer’s liability, rather than the police officers’ acts, to the State. Section 65(1) provides for acts in respect of which a police officer “does not incur any civil or criminal liability”. Section 65(2) provides that a liability that would, but for s 65(1), lie against a member of SAPOL lies instead against the Crown. 157 Therefore, the State’s liability in the present case must derive from the liability to an action in trespass for damages that Constable Kluzek and Senior Constable Mitchell would have incurred but for the operation of s 65(1) of the Police Act. The liability of those officers would depend on a communication made to those officers, which the officers understood as a revocation of the licence or which a reasonable person in the position of the officers would understand as a revocation of the licence. Those officers would not be liable in trespass by reason of the communication of a revocation to a third person of which they were unaware, and of which a reasonable person in their position might be unaware. It is no answer to this point about the liability of the officers to say that others had an obligation to inform Constable Kluzek and Senior Constable Mitchell of the communications. Conclusion as to cross-appeal 158 In our view, both grounds of the State’s cross-appeal are established to the extent described above. The cross-appeal should be allowed, the award of damages for trespass set aside and an order dismissing the trespass claim should be substituted. Orders 159 For these reasons, the following orders should be made in the appeal and cross-appeal: 162 Bird v DP (a pseudonym) (2024) 98 ALJR 1349, [31], [44] (Gageler CJ, Gordon, Edelman, Steward and Beech-Jones JJ). 163 See, for example, the approach taken to the construction of provisions of the Law Reform (Vicarious Liability) Act 1983 (NSW) in New South Wales v Ibbett (2006) 229 CLR 638, [6], [56]-[60] (Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJ). -- 48 of 49 -- [2026] SASCA 49 The Court 45 1. The appeal is allowed in part. 2. The cross-appeal is allowed. 3. Order 1 made by McDonald J in SCCIV-16-358 on 7 August 2024 (awarding the appellant $10,000 damages for each of four trespasses which the trial judge found to be made out) is set aside and the following orders are substituted: 1A The respondent’s liability for the claim of malicious prosecution pleaded at paragraphs 53, 54, 55 and 60 of the applicant’s Claim (Revision 5) is established. 1B The applicant’s claim is otherwise dismissed. 4. Order 1 made by McDonald J in SCCIV-16-358 on 6 February 2025 (awarding the appellant lump sum interest of $23,700) is set aside. 5. The assessment of the damages claimed at paragraphs 61 and 62 of the appellant’s Claim (Revision 5) arising from the appellant’s arrest and detention on 30 and 31 August 2015 is remitted to the General Division for determination. 6. The appeal is otherwise dismissed. 160 We would hear from the parties as to the costs of the appeal and cross-appeal, and whether there should be any consequential variation to the costs orders made in the General Division. -- 49 of 49 --