Peter Lloyd Hippi v Peter John Nunn and the State of New South Wales [1995] NSWDC 1785

We represented the claimant, Peter Hippi, in a claim for compensation against Constable Nunn and the State of New South Wales for assault, false imprisonment and malicious prosecution.

Mr Hippi was an Aboriginal man who lived in the country town of Tabulam. On 27 December 1983 Mr Hippi’s car ran out of petrol on a country highway, and so he hitch-hiked to the nearest settlement of Drake to get some petrol for his car. It was raining very heavily and so Mr Hippi sheltered under the concrete verandah of a shop in Drake.

The owners of the shop drove up to the shop and told Mr Hippi that, if he could not find petrol, they would find some other way to help him. They informed him that they would be at their house some 100 yards from the shop if Mr Hippi needed them.

The shop owners subsequently went to their house and some time later called the police to report Mr Hippi’s presence.

Constable Nunn arrived a short time later to find Mr Hippi on the verandah. The Court accepted that the constable told Mr Hippi that the police had received a complaint from the owner of the shop that he had been standing under the verandah for over an hour and had been acting suspiciously.

Mr Hippi told the constable that his car was broken down near Slatey Creek, that he was waiting for his relative to arrive with some petrol and that he had already talked to the shop owners and had received permission to be on the verandah. He then accused the constable of having a “f*&#ing thing about black fellas” and asserted that he was just hassling him because he was an Aboriginal.

The constable then attempted to arrest Mr Hippi by grabbing his arm. Mr Hippi evaded his grip, and so the constable came onto the verandah and punched Mr Hippi in the face. The constable claimed this was because he feared imminent assault from Mr Hippi. The punch broke Mr Hippi’s jaw.

The constable then detained Mr Hippi in a cage at the back of his police car, took him to Slatey Creek where Mr Hippi’s car was broken down, and then after investigating the car took Mr Hippi to the police station where Mr Hippi was charged with several offences under the Offences in Public Places Act and also of resisting arrest and assaulting the police.

Mr Hippi was released on bail and spent several days in hospital recovering from the injury to his jaw. Mr Hippi was subsequently acquitted of all charges.

Mr Hippi won the assault case. The Court ruled that the constable was justified in thinking that Mr Hippi was going to assault him and that this was why he struck him on the face. The Court ruled, however, that the force used was excessive. This was because the constable was a burly man and it was unnecessary in the circumstances to punch Mr Hippi with such great force as to fracture his mandible. As a result, the Court found that the unreasonable force used to effect the arrest constituted assault. Mr Hippi was awarded $12,500 in compensation for his pain and suffering.

The Court ruled that the arrest itself was lawful. This was on the basis that the police officer had reasonable cause to suspect that Mr Hippi had committed an offence involving a person being seriously alarmed or affronted by virtue of his suspicious presence on the verandah, irrespective of the fact that Mr Hippi was subsequently acquitted. As a consequence, the constable’s detention of Mr Hippi was lawful and could not have constituted false imprisonment.

In order for a claimant to succeed in a malicious prosecution action the following four elements must be proved:

  1. That there was an institution of proceedings by the defendant;
  2. That the proceedings were terminated in the claimant’s favour;
  3. That there was an absence of reasonable and probable cause on the part of the defendant in instituting the proceedings; and
  4. That the proceedings were instituted with malice.

The Court ruled that the first two elements were beyond doubt.

The onus is on the claimant in a malicious prosecution case to prove that there was an absence of reasonable and probable cause on the part of the defendant, and the judge determined that, in fact, the police officer did have an actual and reasonable belief that Mr Hippi was probably guilty of seriously alarming or affronting a person by virtue of his presence on the verandah. This meant it was warranted for the police officer to charge him with this offence.

As such, the malicious prosecution action brought by Mr Hippi was dismissed and the Court did not consider whether the constable acted maliciously.