Allan Frederick Hathaway v State of New South Wales

Background 2 The events giving rise to the claims occurred on 6 February 2003 in the city of Wagga Wagga. The plaintiff was then 39 years of age. He had some criminal history, although it was not extensive. He was, however, a serial disqualified driver: he had been charged and convicted of that offence on at least five occasions. 3 During the morning of 6 February 2003 the plaintiff was observed by Detective Timothy Briggs (who did not previously know him, but to whom he had been identified in a pawn shop only minutes before) to be driving an apparently unregistered motor vehicle. Detective Briggs made enquiries over the police radio, and confirmed that the vehicle was unregistered. He also learned that the plaintiff was disqualified from driving. In an unmarked police vehicle, he followed the plaintiff as he drove off in his vehicle, activating the siren and flashing his headlights, signalling to the plaintiff to pull over. The plaintiff ignored this direction. The pursuit continued through various streets of central Wagga Wagga. During this time Detective Briggs remained in radio communication with other police via the police radio network. The radio operator called for assistance for Detective Briggs from any highway vehicles in the vicinity. 4 Eventually, the plaintiff drove into a street that happened to be a cul-de-sac. Detective Briggs followed. The plaintiff alighted from his vehicle and ran off, discarding the thongs that he had been wearing. Detective Briggs chased him on foot for a short time, but soon returned to his vehicle and drove it in the direction the plaintiff had run off. He was assisted by passers-by, who directed him to where the plaintiff had run. 5 Constable Gregory Cox responded to the radio call for assistance, as did many others. Constable Cox, who was in a police vehicle with Senior Constable Dion McAlister, saw the plaintiff in a street, and recognised that he fitted the description that had been broadcast over the radio. The plaintiff jumped a fence and entered the rear yard of a block of home units, pursued by Constable Cox on foot. Constable Cox told the plaintiff to stop and give up, saying that "there are cops everywhere". The plaintiff ignored Constable Cox and ran off. Constable Cox ran after him, caught up with him, and took him by the left arm. The plaintiff struggled violently and managed to free himself (by kicking Constable Cox in the groin, causing extreme discomfort and pain). The plaintiff ran off again. As he did so, Constable Cox pulled his shirt from his body. 6 It was a very hot day in Wagga Wagga, and the plaintiff was barefoot. His route involved his climbing over a number of fences, some of which were of uncapped corrugated iron. He was bleeding from his feet and his hands. He left a trail of blood behind him. 7 The plaintiff ran into the yard of a house in Simmons Street, and attempted to secrete himself in an outside toilet, but was unable to close or secure the door. This was the home of Mr Ken Smith. He left blood in the area. He then climbed over a gate between that house and the house next door, the residence of the Gaffney family, on the corner of Simmons and Kincaid Streets. He found that a door to the house was ajar and entered the house. No member of the Gaffney family was present. He left blood on some vegetation, and blood in the house. Indeed, on occasions, his route could be tracked by police following the blood trail. 8 The plaintiff found his way to a bedroom, and secreted himself under the bed. 9 By this time a significant number of police officers had joined in the pursuit, and had congregated in the vicinity of the Gaffney house. One of these was Constable Christopher Jackson, whose means of transport was a bicycle. He arrived on the scene and, after climbing a ladder and surveying the scene from the roof of the house, entered the house, announcing his presence, and his office. He received no response. He observed "dirty footmarks" on the floor, and followed them. They led him into the bedroom where the plaintiff was hiding under the bed. Constable Jackson inspected the room, and eventually looked under the bed, where he located the plaintiff. 10 To this point the account of the facts is uncontroversial. What happened thereafter is, however, anything but uncontroversial. 11 Detailed accounts of the events that followed, in the Gaffney house, were given by the plaintiff, by Constable Jackson, and by Constable Julie Philpott, who entered the bedroom shortly after Constable Jackson. Determination of what then happened is the crux of the resolution of the plaintiff's claim of assault, and has some bearing upon his claim of malicious prosecution. I will later return to the competing versions of events. 12 Detective Briggs also arrived at the house. He was the most senior officer then present and assumed control. He contacted the police station and requested the attendance of the police team trained in crime scene evaluation but was told that the only police officers in Wagga Wagga so trained were unavailable. Detective Briggs therefore requested the attendance of a police officer with the station camera, for the purpose of photographing the relevant scenes in the house. Constable Dion McAlister was deputed to undertake this role and did so. The photographs show significant evidence of blood marks, and a blood trail through the door (to the family room through which the plaintiff entered the house), the laundry, the pantry, the living room and the bedroom. 13 Inspector Thomas Murphy then arrived on the scene. He was senior to Detective Briggs, who yielded control of the investigation to him. Inspector Murphy made arrangements for a contract cleaner to attend and clean the house. During the course of cleaning the bedroom the cleaner found, concealed amongst some clothing and bedding, a large wooden handled kitchen knife. He drew this to the attention of Inspector Murphy, who had the room cleared, and the knife photographed. Subsequently, Detective Briggs submitted the knife for fingerprint and DNA testing. Neither produced any usable result. 14 The knife was the property of the Gaffney family, and was kept in a kitchen drawer. Mr Gaffney had used it that morning, had washed it, and returned it to the kitchen drawer where it was kept. Mr Gaffney was the last of the Gaffney family to leave the house that morning. 15 Photographs were also taken of the kitchen and the kitchen drawers. They show no evidence of any blood stains. One small stain of blood only was found in the kitchen, on a microwave oven. 16 The plaintiff was arrested and taken to the Wagga Wagga Police Station. He arrived at the police station at 11.20am. Pursuant to normal procedures, a record was made of his entry into custody and his condition. Constable Melinda Jennings was the "Custody Manager" on duty at the time. She made a written record of injuries that she observed on the plaintiff, to which I will refer in more detail below. She recorded that he was unable to sign a document due to hand injuries. She made arrangements for him to be taken from the police station to the Wagga Wagga Base Hospital. She called an ambulance. Ambulance officers examined the plaintiff, but he was eventually conveyed to the hospital in a police vehicle. He arrived at the hospital at 12.06am. 17 At this time the plaintiff remained under arrest and was formally in police custody. Police officers remained at the hospital in his presence, until a decision was made by Constable Jennings to release him. This occurred at 6.22pm. Constable Jennings recorded the reason for release as: "defendant suffering injuries that may need surgery: · defendant still admitted to Wagga Base Hospital; · defendant to be charged at a later date when in better condition, defendant known to police." 18 At the Wagga Wagga Base Hospital the plaintiff was examined by Dr Thomas McDonagh. Physical examination revealed a laceration to his cheek, bruising, decreased sensation and tenderness in parts of the face, neck and head, swollen knees, a contusion to his back, and tenderness over both hands and arms. He had multiple lacerations to his feet. Radiological examination showed extreme facial injuries, including fractures of a cheekbone, the jawbone, the right arm and one finger. 19 The following morning the plaintiff was transferred to the Albury Hospital. In his letter of transfer, Dr McDonagh wrote (to Dr John Hennessy): "Thank you for seeing Allan who was hit with battons (sic) by police while trying to escape."