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[2026] NSWCA 6
appellant. The Court extended time, granted leave, allowed the appeal, set aside the District Court orders, remitted the matter to the District Court of New South Wales for retrial, and ordered the respondent...
BK challenged the District Court's rejection of his claim that police battered him after arresting and handcuffing him. The Court of Appeal unanimously accepted that the State's failure to call apparently available uniformed officers warranted an adverse inference and that the appeal should be allowed. The judges did not all agree on whether the State had breached the Browne v Dunn rule or whether the trial judge had mishandled the burden of proving lawful justification. The majority considered the evidence insufficient to make a reliable final decision about what happened, so it set aside the original orders and sent the case back for a retrial. Adamson JA would instead have found for BK, but that was not the Court's final disposition.
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2,410 words · generated 08/10/2026
BK was 16 years old when the events occurred. On 20 December 2019, following a police pursuit in a stolen vehicle, he entered a residential unit in Rooty Hill and shut himself in the bathroom. Police arrested and handcuffed him there. That part of the arrest was not the subject of the appeal: BK did not challenge the rejection of his separate assault claim concerning the bathroom arrest ([4]-[6]).
16 cited instruments linked from this judgment.
The dispute concerned what happened after BK was escorted outside. BK's case was that uniformed officers lifted his legs from behind, brought him face-first onto the ground and punched him while he was down. His amended pleading alleged that officers “lifted the plaintiff upwards and slammed the plaintiff against the ground” and that an officer punched him to the face and back of the head ([13], [48]-[50], [165]). The State's amended defence said that BK resisted or tried to escape, and that Senior Constable Klippert performed a “controlled take down” ([21]-[22]).
The evidence about the event was inconsistent. Klippert described a takedown, but police records did not document that force was used outside the unit, despite the relevant COPS reporting field being mandatory ([97], [123], [131]-[135]). An ambulance record attributed to an unidentified police officer said BK “absconded during arrest and subsequently fell landing face first on footpath” ([59]-[62]). The record did not identify the officer who provided that account ([60]).
BK was taken to Mount Druitt police station and then to Nepean Hospital. The evidence included records of facial trauma, photographs, and a diagnosis of a fractured nose ([27], [55]-[61], [137]-[149]). BK also made complaints to his mother, a youth detention supervisor and a solicitor ([137], [140]-[155]). The State did not call any of the uniformed officers who were apparently present during the relevant events ([174]-[178]).
The District Court rejected BK's battery claim. It found that BK had tried to escape and was tackled, and that the force used was justified under ss 230 and 231 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ([195]-[199]). The Court of Appeal granted leave and allowed the appeal. The majority set aside the District Court orders and ordered a retrial, because it could not reliably determine liability on the record ([279], [286]-[294]).
The central appellate issue was not simply which account of the takedown was more plausible. It was whether the fact-finding process had been compromised by the failure to call witnesses who could have given direct evidence about the events.
Adamson JA set out the Jones v Dunkel principle by quoting Kuhl v Zurich Financial Services Australia Ltd: an unexplained failure to call a witness may support an inference that the witness's evidence would not have assisted the party, and may allow an otherwise available adverse inference to be drawn with greater confidence ([212]). She considered that the State had not shown that the uniformed officers were unavailable or could not be identified. The State's submission that it did not know who they were was not supported by evidence establishing that position ([216]-[217]).
The absence was particularly significant because the witnesses the State did call did not fill the evidentiary gap. Klippert said he did not see BK being punched and left shortly after the takedown. O'Gorman said he had handed BK to uniformed officers and did not see what happened after that. Saab arrived after BK was on the ground, and Berger did not describe seeing the relevant events ([220]-[222], [262]). Stern JA also emphasised inconsistencies between O'Gorman's and Klippert's accounts, including whether O'Gorman and Wilson were holding BK when Klippert said he intervened ([284]).
The majority agreed that the failure to draw the inference mattered. The District Court judge had not addressed BK's submission about the absent officers ([200], [213]). Adamson JA considered that this failure deprived BK of the benefit of the inference and affected the assessment of the competing evidence ([223]). Ward P and Stern JA agreed that the appeal should be allowed on this basis ([1], [284]-[285]).
The Court divided on whether the State had breached Browne v Dunn. Adamson JA considered that the respondent's case about the mechanics of the takedown had not been put to BK, leaving him unable to respond to Klippert's later account ([208]-[211]). Stern JA disagreed. In his view, the amended defence and Klippert's earlier statement gave BK adequate notice that the State alleged he had tried to escape and was taken down in a controlled manoeuvre ([280]-[283]). Ward P did not decide the point. It is therefore not a majority holding that Browne v Dunn was breached.
The judges also divided on whether the Court of Appeal could itself determine liability. Adamson JA would have used the appellate fact-finding power in s 75A of the Supreme Court Act 1970 (NSW) and found for BK ([245]-[275]). Ward P and Stern JA considered they could not reliably resolve the disputed facts from the transcript and evidence. Stern JA identified the need to assess the credibility and reliability of witnesses and to determine exactly what the takedown involved ([279], [286]-[292]). The majority's choice of retrial was therefore not a finding that the alleged battery had been proved.
The judgment does not announce a new legal test for Jones v Dunkel or Browne v Dunn. It applies established principles to the particular record and trial conduct. The Jones v Dunkel formulation used by Adamson JA came from Kuhl: an unexplained failure to call a witness may support an inference that the evidence would not have assisted, and may strengthen another available inference ([212]). The judgment also recognises that parties are not required to call merely cumulative witnesses, but says that the application of the rule depends on context ([218]-[220]).
The decision illustrates the importance of identifying the missing witness's capacity to address the disputed facts. Here, the absent uniformed officers were not simply additional witnesses to an already well-documented event. They were apparently present, while the witnesses called either did not see the relevant events or could not speak to what happened after BK was on the ground ([177], [220]-[222], [262]). The Court treated the State's failure to establish unavailability as important ([216]-[217]).
On Browne v Dunn, Adamson JA described the rule as requiring the opposing case to be put where fairness requires it, and rejected the argument that service of police material was enough by itself ([205]-[207]). But Stern JA considered that, in this case, the pleadings, statement and questioning gave adequate notice ([280]-[283]). The judgment therefore does not establish a single appellate conclusion that the State breached the rule.
On lawful justification, Adamson JA set out ss 230 and 231 of LEPRA, which permit force that is “reasonably necessary” in exercising a police function or making an arrest and preventing escape after arrest ([239]). She relied on the objective formulation discussed in Director of Public Prosecutions (NSW) v Greenhalgh ([240]-[241]). However, her conclusion that the primary judge reversed the onus and that the defence failed was not a majority determination: Stern JA was not satisfied that the alleged error had been established, and Ward P did not address it ([293]).
After the appeal, the operative result was a retrial, not a final appellate finding of battery or a damages award. The parties and the trial court would need to address the disputed events again, taking account of the appeal court's conclusions about the missing witnesses and the reasons for remitting the case ([286]-[294]).
At [212], Adamson JA quoted the rule that an unexplained failure to call a witness “may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party’s case.” In plain English, a court may take account of a party's failure to call a witness who could have shed light on disputed events. It is not an automatic finding that the missing witness would have contradicted that party; the circumstances must justify the inference.
At [217], Adamson JA said that if the State wanted the Court to accept it could not identify the officers, “this was a matter for it to prove.” The point was evidentiary: the State was the party asserting that the officers could not be identified or called, but it had not produced evidence establishing that explanation.
At [205], Adamson JA said that “the service of material on a party is not sufficient to comply with the rule in Browne v Dunn.” Her point was that a witness may need to be given an opportunity to answer the opposing case, even if documents containing another account have previously been served. Stern JA reached a different view about whether BK had enough notice in this particular case ([280]-[283]).
At [223], Adamson JA concluded that the missing-witness inference “was not only available but, in my view, ought to have been drawn.” That conclusion was accepted in substance by the other members of the Court, who agreed that the appeal should be allowed because of the failure concerning the absent police evidence ([1], [284]-[285]).
At [279], Stern JA explained the majority's reason for ordering a retrial: he could not form “a sufficiently reliable assessment” of whether the battery occurred on the material before the Court. In plain English, the appeal judges did not consider the record adequate for them to decide the disputed facts finally.
At [287]-[289], Stern JA explained that the retrial judge would need to consider whether the facts found were consistent with BK's pleaded case. He noted that a manoeuvre involving BK being lifted and then landing face- or shoulder-first, without his fall being broken, might be relevant to whether the pleaded battery was proved. These were directions about issues for the retrial, not a final finding that those events occurred.
The judgment is most relevant to civil cases where a party asks the court to draw a Jones v Dunkel inference because the opposing party has not called witnesses who were apparently present and could give evidence about the disputed events. The strength of the point in BK turned on several features together: the State had custody of the relevant police records and personnel; multiple officers were said to be present; no uniformed officer was called; and the witnesses called did not observe the alleged punch or the full sequence after BK was on the ground ([174]-[178], [216]-[222], [262]).
The case also illustrates why an explanation for a witness's absence matters. The State said it did not know the uniformed officers' identities, but Adamson JA found that the evidence did not establish that claim ([216]-[217]). A party's assertion that witnesses cannot be identified or are unavailable is not the same as evidence explaining their absence.
For Browne v Dunn, the judgment is relevant where a party advances a particular factual account through its witnesses but has not put the substance of that account to the opposing witness. Adamson JA considered that the details of the alleged controlled takedown were not disclosed by the pleadings or opening and were not put to BK ([208]-[210]). Stern JA's contrary view shows that whether notice was sufficient depends on the actual pleadings, statements and questioning, rather than a general rule that every detail must be put in a prescribed form ([280]-[283]).
For appeals seeking a final decision rather than a retrial, the case illustrates that s 75A does not require an appellate court to decide disputed facts where it cannot reliably assess the evidence. The majority considered the credibility questions and the mechanics of the takedown too difficult to resolve on the available material ([286]-[292]).
The judgment text contains no decisions after BK v State of New South Wales and therefore does not establish how later courts have treated this case as precedent.
It does discuss a number of authorities available to the Court. Kuhl and Jones v Dunkel supplied the missing-witness principle ([212]). Liaweena and Fabre were considered in relation to when a party need not call additional witnesses and when an absent witness's evidence may carry significance ([218], [220]). The Court applied those authorities to the number, role and likely knowledge of the absent officers.
For Browne v Dunn, Adamson JA applied the reasoning in Allied Pastoral Holdings, Mokbel, MWJ, Karout, Smith v Blanch and Khamis ([205]-[207]). Stern JA also referred to MWJ when concluding that BK had adequate notice ([282]-[283]). Their disagreement demonstrates that the judgment's treatment of Browne v Dunn is divided rather than a single rule applied by the Court as a whole.
For appellate fact-finding, Adamson JA referred to Fox v Percy and Warren v Coombes when explaining the appellate court's role and the weight given to trial findings ([246], [249]). The majority nevertheless ordered a retrial because it could not reach a sufficiently reliable assessment on the record ([279], [291]-[292]).
The principal factual questions remain for the retrial. The Court did not make a majority finding about precisely how BK was brought to the ground, whether the State's controlled-takedown account was accurate, or whether BK was punched ([286]-[292]). Stern JA identified the mechanics of the takedown and the assessment of BK's and Klippert's evidence as matters requiring determination ([291]).
The retrial judge will also need to consider the relationship between the pleaded case and any facts found. Stern JA specifically noted that the trial judge should consider whether the facts proved are consistent with the allegation that officers lifted and slammed BK to the ground ([287]-[289]). Ward P likewise stressed the importance of the pleaded case and procedural fairness ([2]).
The lawful-justification issue was not resolved by the majority. Adamson JA held that the respondent bore the onus under ss 230 and 231 of LEPRA and had not discharged it, but Stern JA was not satisfied that the primary judge's reasons showed the alleged onus error ([239]-[243], [271]-[274], [293]). The retrial must determine any defence in light of the facts found and the legal issues properly raised.
Damages also remain undetermined. The District Court did not assess them, and Adamson JA did not do so because the majority ordered a retrial ([276]-[277]). The appeal decision therefore establishes neither a damages amount nor a final entitlement.
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: BK v State of New South Wales [2026] NSWCA 6
Hearing dates: 10 December 2025
Decision date: 10 February 2026
Before: Ward P at [1]
Adamson JA at [3]
Stern JA at [279]
Decision: (1) Extend the time for filing the summons for leave to appeal to 18 June 2025.
(2) Grant leave to appeal.
(3) Allow the appeal.
(4) Set aside the orders of Olsson SC DCJ made on 10 March 2025.
(5) Remit the matter to the District Court of New South Wales for retrial.
(6) Order the respondent to pay the appellant’s costs of the appeal.
Catchwords: TORTS — trespass to person — intentional tort — battery — police — unreasonable use of force during arrest — where applicant slammed to ground and punched — where applicant was handcuffed and weighed 55kg — failure to apply the rule in Browne v Dunn — where respondent failed to call or ascertain unidentified police officers — where trial judge failed to draw a Jones v Dunkel inference against the respondent — lawful justification defence — whether a new trial ought be ordered — damages — aggravated damages — exemplary damages
Legislation Cited: Civil Procedure Act 2005 (NSW), s 56
District Court Act 1973 (NSW), s 127
Evidence Act 1995 (NSW), ss 46, 69
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 230, 231
Law Reform (Vicarious Liability) Act 1983 (NSW), ss 6, 8
Supreme Court Act 1970 (NSW), ss 75A, 101
Uniform Civil Procedure Rules 2005 (NSW), rr 51.36, 51.53
Cases Cited: Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1
Australian Securities and Investments Commission v Rich [2009] NSWSC 1229; (2009) 75 ACSR 1
Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279; 92 ALR 53; [1990] HCA 11
Blatch v Archer (1774) 1 Cowp 63
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Browne v Dunn (1893) 6 R 67
Bulstrode v Trimble [1970] VR 840
CCL Secure Pty Ltd v Berry [2019] FCAFC 81
Chen v State of New South Wales [2014] NSWCA 41
Cubillo v Commonwealth (2000) 103 FCR 1; [2000] FCA 1084
Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70
Director of Public Prosecutions (NSW) v Greenhalgh [2022] NSWSC 980
Eade v The King (1924) 34 CLR 154; [1924] HCA 9
Fabre v Arenales (1992) 27 NSWLR 437
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Karout v New South Wales Crime Commission [2025] NSWCA 260
Khamis v R [2010] NSWCCA 179; (2010) 203 A Crim R 121
Kuddus v Chief Constable of Leicestershire [2002] 2 AC 122; [2001] UKHL 29
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11
Lamb v Cotongo (1987) 164 CLR 1 at 8; [1987] HCA 47
Liaweena (NSW) Pty Ltd v McWilliams Wines Pty Ltd [1990] NSWCA 194; (1991) ASC 56-038
MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329
Mokbel v The King [2025] VSCA 243
New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57
Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; [2016] HCA 37
R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
Smith v Blanch [2025] NSWCA 188
State of New South Wales v Riley (2003) 57 NSWLR 496; [2003] NSWCA 208
Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; [1966] HCA 40
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9
Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12
Texts Cited: Cross on Evidence (Lexis Advance)
Fleming’s The Law of Torts (11th ed, 2024, Lawbook Co)
Judicial Commission of New South Wales, Criminal Trial Courts Bench Book
Category: Principal judgment
Parties: BK (Applicant)
State of New South Wales (Respondent)
Representation: Counsel:
A Canceri / T O’Rourke (Applicant)
S Chrysanthou SC/ G Keesing (Respondent)
Solicitors:
Rebecca Dunlop Legal (Applicant)
Makinson d’Apice Lawyers (Respondent)
File Number(s): 2025/116673
Publication restriction: Publication or broadcast of names and any information or material that may lead to the identification of the applicant is prohibited: Children (Criminal Proceedings) Act 1987 (NSW), s 15A
[This headnote is not to be read as part of the judgment]
The applicant, BK, seeks leave to appeal from a decision of Olsson SC DCJ (the primary judge) in the District Court (the Court below) on 10 March 2025 rejecting his claim for damages against the respondent, the State of New South Wales for battery. On 20 December 2019, BK (who is Indigenous and was aged 16-years-old at the time) was involved in a police pursuit while driving a stolen vehicle. He abandoned the vehicle, entered a residential unit and shut himself in the bathroom. BK was arrested, handcuffed and escorted out of the premises by plain clothes officers. BK did not seek leave to appeal against the primary judge’s rejection of his claim for assault in respect of his arrest in the bathroom.
In the Court below, BK alleged that, following his arrest, he was transferred from the custody of plain clothes police officers to uniformed police officers, who slammed him to the ground and punched him. BK alleged that this use of force by police officers amounted to battery and that the respondent had not established the defence of lawful justification. The primary judge rejected his claim, including on the basis that BK had not proved that the force used against him was unreasonable. The primary judge also rejected his allegation that he had been punched.
On appeal, BK alleged that the primary judge (1) failed to apply the rule in Browne v Dunn when evaluating BK’s evidence on crucial matters of fact; (2) failed to draw a Jones v Dunkel inference, as sought by BK, in circumstances where the respondent’s failure to called any uniformed police officers to give evidence was unexplained; (3) erred in making factual findings as to what occurred outside the unit; and (4) reversed the onus of proof with respect to the defence of lawful justification, which lay on the respondent. Leave to appeal is required as the total amount claimed in the Court below did not exceed $100,000.
The Court held (Adamson JA, Ward P and Stern JA) granting leave to appeal and allowing the appeal:
Alleged failure to apply the rule in Browne v Dunn when evaluating BK’s evidence on crucial matters of fact (ground 1)
Per Adamson JA, Ward P not deciding and Stern JA contra
(1) The rule in Browne v Dunn required the respondent’s trial counsel to put the respondent’s case (at least as to what occurred outside the unit block following BK’s arrest), to BK in cross-examination. This was especially important given the omission from any police documentation of any reference to the circumstances in which BK came to be on the ground and the inconsistency between the report by an unnamed police officer to ambulance officers that BK “fell” and the version given by Senior Constable Klippert, a plain clothes police officer, that BK was the subject of a controlled takedown: [207].
(2) The respondent’s case at trial that BK was brought to the ground by a controlled takedown was not put in cross-examination to BK, who was not given an opportunity to respond to it: [206]-[209].
(3) The respondent’s counsel’s failure to put the respondent’s case as to how BK came to be lying face down on the ground can be taken to be a deliberate, objectively reasonable forensic decision to wait and see what evidence was given by the respondent’s witnesses and to make final submissions to reflect this evidence, unconstrained by what might have been put to BK in cross-examination. This inference was supported by the respondent’s counsel’s representation to the primary judge that she had been given certain “instructions” which would bring the respondent’s evidence to an end much more quickly than had been foreshadowed in the respondent’s opening: [207]-[208].
(4) Ground 1 has been made out to a limited extent: [210].
Browne v Dunn (1893) 6 R 67; Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1; Mokbel v The King [2025] VSCA 243; MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329; Karout v New South Wales Crime Commission [2025] NSWCA 260; Smith v Blanch [2025] NSWCA 188; Khamis v R [2010] NSWCCA 179; (2010) 203 A Crim R 121, applied.
Per Stern JA
(5) BK was given adequate notice that the respondent’s case was that he was seeking to escape the hold that police had on him and, in that context, was taken to the ground in a controlled manoeuvre. There was no breach of the rule in Browne v Dunn: [280]-[283].
Alleged failure to draw a Jones v Dunkel inference against the respondent (ground 2)
Per Adamson JA, Ward P and Stern JA agreeing
(6) The respondent did not call any of the 6-8 uniformed officers (who had BK in their custody when the alleged battery occurred) or anyone who witnessed what took place after BK was on the ground at the time when he alleged that he had been punched. The respondent failed to discharge its onus of establishing their unavailability. Senior Constable Klippert, who was called, did not deny that BK had been punched but said that he did not see it and he left the scene after BK was on the ground: [214]-[221].
(7) Accordingly, a Jones v Dunkel inference ought have been drawn against the respondent for its failure to call any uniformed officers. The primary judge’s failure to have regard to this important forensic consideration undermined the fact-finding process and compromised the primary judge’s assessment of the evidence of whether the battery occurred. Ground 2 has been made out: [222].
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11; Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8; Blatch v Archer (1774) 1 Cowp 63; Australian Securities and Investments Commission v Rich [2009] NSWSC 1229; (2009) 75 ACSR 1; Liaweena (NSW) Pty Ltd v McWilliams Wines Pty Ltd [1990] NSWCA 194; (1991) ASC 56-038; Cubillo v Commonwealth (2000) 103 FCR 1; [2000] FCA 1084; Fabre v Arenales (1992) 27 NSWLR 437, applied.
Per Stern JA
(8) It was also of some significance that aspects of Senior Constable Klippert’s account did not accord either with the evidence of other witnesses, or with what was found to have occurred, which made the omission of evidence from any of the other police officers who were apparently present all the more meaningful: [284].
Alleged error with respect to the factual finding about what occurred outside the unit (ground 3)
Per Adamson JA, Ward P and Stern JA not addressing as they consider a new trial is required
(9) Adamson JA dealt with this ground in the course of making findings of fact under s 75A of the Supreme Court Act 1970 (NSW): [224].
Alleged error with respect to the defence of lawful justification (ground 4)
Per Adamson JA, Ward P not addressing and Stern JA contra
(10) The respondent submitted that, in order to succeed, BK had to prove his pleaded case in its entirety and that therefore the question of lawful justification did not arise. However, BK sufficiently pleaded his case and put the respondent on notice that he alleged a battery was committed against him after he had been arrested and handcuffed in the bathroom, when he was slammed to the ground by police and punched outside the unit block: [226]-[237].
(11) The onus fell on the respondent to prove lawful justification under ss 230 and 231 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). The primary judge erred in reversing the onus of proof. Ground 4 has been made out: [238]-[242].
(12) The respondent failed to discharge its onus of proving the defence of lawful justification. A reasonable person in the position of the police officers could not consider slamming a 16-year-old boy (who was handcuffed and weighed 55kg) into a hard brick surface to be proportionate to the risk that he might escape: [271]-[274].
Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12; Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70; CCL Secure Pty Ltd v Berry [2019] FCAFC 81; Director of Public Prosecutions (NSW) v Greenhalgh [2022] NSWSC 980, applied.
Per Stern JA
(12) It is not clear what the trial judge was addressing in her judgment at [214] but her Honour did not appear to be addressing the question whether a defence had been established to the tort of battery, as it is only after making this finding that she addresses the question of liability in battery. In these circumstances, Stern JA was not satisfied that her Honour erred as alleged: [293].
Whether a new trial ought be ordered or the matter determined by the Court
Per Ward P and Stern JA
(13) The Court was not in a position to determine the issue of liability on the basis of the transcript and evidence before the Court and the matter should be remitted for a new trial:[1] (Ward P); [286]-[291] (Stern JA).
Per Adamson JA, dissenting on this question
(14) A new trial is not necessary as the Court can assess the evidence for itself and make findings of fact and draw inferences from the evidence pursuant to s 75A of the Supreme Court Act: [245].
(15) Senior Constable Klippert’s evidence was unsatisfactory in numerous respects including his serial failures to comply with protocols; his repeated failures to acknowledge the extent of BK’s injuries; his attempts to attribute the cause of BK’s injuries to other matters; his failure to include any reference to what occurred outside the unit in the COPS report; his failure to make any contemporaneous notes. His evidence was, in several respects, inconsistent with that of Sergeant O’Gorman (including as the timing of arrest, BK’s handover and handcuffing). Conversely, BK largely gave evidence to the best of his ability while making appropriate concessions (such as admitting when he lied or that he did not know how he had sustained an injury to his lower limbs): [257], [259].
(16) The record made by ambulance officers that an (unidentified) police officer told them that BK “absconded during arrest” amounted to another version of what occurred. The suggestion that BK “absconded” is inconsistent with his having been arrested, handcuffed and surrounded by police. The statement by the same police officer that BK and “fell” was inconsistent with Senior Constable Klippert’s evidence: [250]-[254].
(17) The version provided by the unidentified police officer can be taken to have been intended to provide an explanation for BK’s injuries to ambulance officers which did not implicate the police: [256].
(18) BK’s evidence that he was punched by unidentified police officers remained uncontradicted by anyone who was in a position to witness what occurred after he was on the ground. It was supported by the observations of ambulance officers and BK’s immediate complaint to his mother, his contemporaneous complaint to Mr Ackerly, the admitting officer at Cobham Juvenile Detention Centre who noticed and photographed BK to document the injuries and his complaint a few weeks later to a solicitor employed by the Legal Aid Commission who interviewed him at the Children’s Court. Further, the evidence of BK’s mother that he exhibited fear by hiding under the covers in the hospital where he was under close police guard was consistent with his having been attacked by police: [261]-[267].
(19) BK has proved his case of battery on the balance of probabilities, having regard to the seriousness of the allegations, the principles in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 and the effect of the Jones v Dunkel inferences: [270].
(20) Adamson JA did not assess damages as her Honour’s view was a minority one and there is to be a new trial.
WARD P: I have had the benefit of reading both the judgment of Adamson JA and that of Stern JA. Given the comprehensive analysis by Adamson JA, for which I am grateful, it is not necessary here to summarise what has led to the present application for leave to appeal. For the reasons given by Adamson JA, I agree that leave to appeal (and an extension of time for the bringing of the application) should be granted. For the reasons given separately by Adamson JA and Stern JA, I agree that ground 2 of the grounds of appeal has been established. However, I do not accept that this Court is in a position to determine the issue of liability, for the reasons given by Stern JA, and therefore I would remit the matter for a new trial.
I make the following additional observation. This was a civil matter. Ordinarily, and for very good reason, parties in civil proceedings should be held to their pleaded case (see, for example, Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279 at 286-7; 92 ALR 53; [1990] HCA 11 where Mason CJ and Gaudron J emphasised that the rule that, in general, relief is confined to that available on the pleadings, secures a party’s right to this basic requirement of procedural fairness. Here, there was no consent by the respondent to a departure from the pleaded case, let alone acquiescence therein (as Adamson JA has noted at [229]). The pleaded case, relevantly, was that certain named and other unknown police officers “lifted [BK] upwards and slammed [BK] against the ground”. BK’s evidence, as extracted by Adamson JA at [48] was that the uniformed police officers lifted his legs up from behind and “dunked” him on his head first. True it is that neither BK nor his pleaded case described this manoeuvre as him being “speared”, that being her Honour’s description. However, if it were to be accepted that what occurred was what SC Klippert described as a controlled “takedown”, then unless that involved a lifting up and slamming or dunking of BK against the ground, the battery (as alleged) would not be proved. There were inconsistences in the evidence of both BK and SC Klippert. I am not able to form a reliable assessment of either witness on the transcript alone. In those circumstances, a new trial is required in my opinion.
ADAMSON JA: BK, the applicant, seeks leave to appeal against the judgment in favour of the State of New South Wales (the respondent) entered by Olsson SC DCJ (the primary judge) in the District Court (the Court below) on 10 March 2025, following a trial which had been conducted over 10 days on 30-31 October, 1-3 November 2023 and 5-9 February 2024.
In the Court below, BK alleged that officers of the NSW Police Force (the police) had committed the intentional torts of:
assault by pointing a gun or guns at him and by threatening to call dogs on him prior to his arrest; and
battery by using force against him following his arrest on 20 December 2019 for the offences of driving a stolen motor vehicle and being engaged in a police pursuit, which the respondent had not proved to be reasonable.
1 The trial judge erred in failing to find that the defendant had breached the rule in Browne v Dunn (1893) 6 R 67 by not challenging the plaintiff on the central factual issues in contention.
2 The trial judge erred in not drawing the Jones v Dunkel inference from the defendant’s failure to call evidence from the uniformed police officers, that inference being that the evidence of those officers would not have assisted the defendant’s case.
3 As a consequence of the errors in grounds 1 and 2 above, the trial judge erred in finding that the plaintiff wrestled with and tried to escape police, and erred in failing to find that instead the plaintiff was picked up off the ground by police and slammed into it, and while on the ground police punched the plaintiff’s face and head.
4 The trial judge erred in finding that the use of force in arresting the plaintiff was lawfully justified pursuant to s 230 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).
1 The applicant challenges the primary judge’s finding that the applicant wrestled and tried to escape police and that he was tackled to the ground in that context …. The applicant contends that this Court should find that he did not wrestle with and try to escape police outside the unit complex before he was picked up off the ground and slammed on his face. …
2 The applicant also contends that this Court should find that after police picked him up and slammed him into the ground, police then punched him to the face and head several times…
In substance, BK submitted that the primary judge’s fact-finding function went awry because of her Honour’s failure to apply Browne v Dunn (1893) 6 R 67 and Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8. However, BK did not seek a re-trial. Rather, he sought that this Court determine the matter for itself pursuant to s 75A of the Supreme Court Act.
The grounds of appeal raise serious questions about the fact-finding process undertaken by the primary judge. A grant of leave is warranted. For the following reasons I consider the appeal ought be allowed and judgment entered in favour of BK in the sum of $45,000.
20 Officer Wilson and Officer O'Gorman dragged the plaintiff out of the residence towards a caged police vehicle.
21 Officer Klippert and other unknown NSWPF officers ran towards the plaintiff.
22 Officer Wilson, Officer O'Gorman, Officer Klippert and other unknown NSWPF officers lifted the plaintiff upwards and slammed the plaintiff against the ground.
23 The plaintiff landed against the ground on his face.
23A Either Officer Wilson, Officer O'Gorman Officer Klippert or another uniformed NSWPF officer punched the plaintiff to the face and back of the head.
24 Either Officer Wilson, Officer O'Gorman, Officer Klippert or an unknown NSWPF officer placed their knee onto the plaintiff’s back as he lay prone on the ground.
25 At some point, in the events of paragraph 21 to 24, the plaintiff lost consciousness.
26 Officer Wilson, Officer O'Gorman, Officer Klippert and/or other unknown NSWPF officers pulled the plaintiff up from the ground and placed him in the rear of a caged police vehicle.
In opening, BK’s trial counsel, Mr Chipkin, said that, as BK was being escorted outside the unit towards Perkins Street “the police officers have lifted the plaintiff up off the ground and slammed him into the ground”, as a result of which he “landed against the ground and hit his face”. The surface was “brick pavers”. Mr Chipkin said that BK was also punched, that one of the officers put what felt like a knee on his back and that at some stage in the sequence of those events he was rendered unconscious.
BK gave evidence (which is considered in more detail below) of the circumstances of his arrest, the assault and the aftermath of these events. He said that he had been driving a stolen car when he appreciated that he was being pursued by police, both on the ground and also in the air by a PolAir helicopter. He abandoned the car and ran through the back door of a residence and went into the bathroom, where he had a shower. When the police came to the bathroom door and said that they would put the dogs on him, he opened the door to be confronted by plain clothes police officers, at least one of whom was pointing a gun at him. He was arrested and handcuffed by plain clothes police officers. While he was being escorted out of the premises along a path, he was met by uniformed police officers, who “slammed” him to the ground and punched him as a result of which he lost consciousness. His next memory was waking up in Nepean Hospital and seeing his mother, who had been contacted by police.
In addition to giving evidence himself, BK called the following witnesses:
RK, BK’s mother, who gave evidence that she had attended Nepean Hospital where he was admitted, having been delivered there by ambulance called by police, and that BK had told her that he had been “bashed” by police;
Shane Ackerly, who was on duty at Cobham Juvenile Detention Centre (Cobham) when BK was delivered there at 1.10am on 21 December 2019, who observed that BK was injured, documented the injuries, took a statement from him and assisted him to make a complaint about the conduct of the police; and
Patricia Veliz, a solicitor in the Children’s Civil Law Section of the Legal Aid Commission, who interviewed BK on 17 January 2020 and obtained a history from him, which she recorded in a contemporaneous file note of his allegations that he had been assaulted by police and the way in which it had happened.
BK tendered several documents in his case, which included photographs taken of BK by his mother in Nepean Hospital shortly after his arrival there and by Mr Ackerly, when BK was admitted to Cobham at 1.10am on 21 December 2019, a transcript of the Triple-0 calls made by police regarding BK, the ambulance records and various police documents. These included a Computerised Operational Policing System (COPS) report created by Senior Constable Andrew Klippert regarding BK’s offending and arrest on 20 December 2019 and the Custody Management Record created by Acting Sergeant Matthew Cox, who was the Custody Manager on duty at Mount Druitt police station when BK was brought there following his arrest on 20 December 2019.
In answer to paragraph 20 of the Amended Statement of Claim, the defendant:
(a) says SC Wilson and SC O’Gorman escorted the plaintiff out of the unit complex towards the road where a Police caged vehicle was parked;
(b) says the plaintiff resisted being escorted out of the unit complex;
(c) says that as the plaintiff and escorting Police moved towards the Police caged vehicle, the plaintiff attempted to escape the hold Police had on him and resist Police;
(d) says that SC Klippert went to assist and executed a controlled take down of the plaintiff to the ground;
(e) says that the plaintiff, SC Wilson and SC Klippert went to the ground;
(f) says Cst Norris also assisted in restraining one of the plaintiff’s legs whilst on the ground; and
(g) otherwise does not admit the paragraph.
The respondent called the following witnesses:
Joseph Dodic, the occupant of the unit which BK entered to escape from police, who gave evidence of hailing the police down at the front of the unit and taking them to the bathroom door so that they could apprehend BK. He was unaware of what happened to BK once he had left the unit;
Sergeant O’Gorman, a member of the Proactive Crime Team and the most senior officer on duty on 20 December 2019, who gave evidence that he and Senior Constable Wilson arrested BK in the bathroom of the residence, following which he handed BK over to uniformed police officers and returned to speak with Joseph Dodic, the occupant of the premises to make sure that he was all right. He was unaware of any injuries that BK suffered and did not see what happened to him after he handed him over;
Senior Constable Klippert, a plain clothes police officer who was also a member of the Proactive Crime Team, and who worked with Senior Constable Elie Saab that day, who gave evidence that he came to the premises after BK was arrested and was being taken out of the premises by Sergeant O’Gorman and Senior Constable Wilson. He said that when BK tried to escape the hold of Sergeant O’Gorman and Senior Constable Wilson, he and other police officers tackled him to the ground, following which BK was able to walk to the police van to be taken back to Mount Druitt police station. Senior Constable Klippert prepared the COPS report, the Court Attendance Notice (CAN) and the facts sheet;
Senior Constable Saab, who was also a plain clothes police officer in the Proactive Crime Team, said that he saw BK and several officers outside the unit on a concrete footpath, and that he helped to arrest and handcuff him there;
Senior Constable Berger, a general duties uniformed police officer who drove the police truck to collect BK following his arrest. He confirmed the calls he had made to Triple-0 at 11.13am and 11.24am on 20 December 2019 reporting on BK’s condition (which were recorded and transcribed). He said in evidence that he did not recall making any observations about BK’s appearance or noticing whether he had any injuries.
Acting Sergeant Cox, who was the Custody Manager on duty at the Mount Druitt police station that day, who gave evidence that he formed the view that an ambulance should attend to BK.
The following matters were either common ground or were established by uncontroverted evidence. BK was Indigenous and, prior to the events the subject of the proceedings, had a criminal history.
On 20 December 2019, BK was driving a stolen vehicle in the suburb of Willmot (near Mount Druitt). This led to a police pursuit, which began at about 10.20am and involved a number of police cars and a helicopter. At about 10.45am, BK got out of the car and climbed over a fence on the railway corridor near Rooty Hill train station and ran into a private home unit in Perkins Street, Rooty Hill, where Mr Dodic, who was not known to him, was present. BK ran into the bathroom and fastened the sliding door with a latch. While he was inside the shower, he heard police officers outside the door.
There is considerable dispute about what occurred between this time and his arrival at the Mount Druitt police station.
It is not in dispute that BK was arrested, charged at the scene and taken in a police van to Mount Druitt police station where he was put in a custody cell. While still at the scene, police called for an ambulance to come to the station to collect BK. Two further calls were made by police to Triple-0 following his arrival at the station. BK was taken by ambulance to Nepean Hospital, where his mother, RK, who had been called to that location to give her consent to scans and treatment for her son, was waiting for him. A scan revealed that BK’s nose was fractured. Other injuries, including grazes, cuts, lacerations and bruises were also noted.
BK was later taken to the Cobham where his injuries were also noted and a complaint against police was made.
BK was 16 years old at the time of his arrest and 20 at the time of the trial. At the time of the arrest, BK was about 165cm tall and weighed between 55 and 60 kgs. At the trial he was 20, weighed about 80kg and was 175cm tall. He identifies as Aboriginal and belongs to the Wangkumara tribe. He was born and raised in Mount Druitt although his people are from Bourke.
Throughout his childhood and adolescence, BK was “in and out of foster care”, sometimes with his siblings and sometimes without. His mother was “in and out of [gaol]” and his father was “not really around”. At the time of the hearing in the Court below, he was living with his grandfather, who came to court with him. BK said that he had “sort of like a father-son relationship [with his grandfather] with dad not being around”. He has four younger brothers and a younger sister and “had to step up and become the adult in [his] family to raise the younger ones”. This involved “cleaning, cooking, getting them ready for bed and stuff”. He was in too many foster homes for him to recall the number and left school in Year 7 when “[d]rugs, alcohol and stuff c[a]me into play and [he] stopped going”.
BK said that he started smoking “pot” when he was 13 and drinking alcohol when he was “[p]robably about 14”. He said that he started to take “other drugs” when he was 15 or 16 and said:
Other drugs didn’t really come into play until I started getting into, like crime and doing a lot of crime and stuff. Yeah, I started taking up drugs just to keep myself awake and alert while I go do stuff, yeah.
When BK was about 12 or 13 he started “getting into trouble with police” to support his drug and alcohol habit. He said that in Mount Druitt there were “drugs everywhere”. Sometimes he and his “mates” would steal tents and sleep in the bush at Willmot at the back of Mount Druitt. On occasions he was detained at a Juvenile Detention Centre, which he found “scary” because he was “so small and such a little kid” when he first experienced it. However, he learned “a lot being in [custody]” and finished his Year 12 schooling at Cobham where he also started TAFE courses in horticulture and business. He has also participated in traditional rituals and has painted Indigenous cultural works, one of which hangs in the Parramatta Children’s Court.
BK said in cross-examination that he had been smoking ice for about a couple of weeks before 20 December 2019 but that, prior to that time, he had not been using ice regularly.
At some time prior to 20 December 2019, BK obtained access to a white Holden Captiva which he knew to be stolen. On the day or two before 20 December 2019, he drove around in the car with a “mate”. He could not recall whether he was wearing gloves but said that he usually wore gloves when he was driving a stolen car so that his fingerprints would not be left on the car.
On the morning of 20 December 2019, BK smoked some ice and pot and drank a couple of Corona beers before driving the Holden. In cross-examination, he said:
I really couldn’t tell you what I was thinking or what I did on that day. But it’s most likely I was smoking ice to keep me up and drive the car.
BK agreed in cross-examination that ice could help him stay “awake and alert”, and feel “very good and confident” and “excited”. He disagreed that it made him feel aggressive, explaining that he was “not really an aggressive person”.
When BK became aware that the police were chasing him, he did not stop because he was driving a stolen car and did not want to be sent to Cobham. It was common ground that the police pursuit began at 10.20am.
BK agreed that the car had collided with other vehicles during the police pursuit but said that he did not hit his head or suffer any injuries as a result of these collisions. He said that the window of the Holden was “smashed” and the tyre “popped”. He also said that the petrol was low but had not run out. He said:
Like there wasn’t as - like there wasn’t like a collision with the car, like a bad car crash or anything to make me do - to make me hit my head or anything.
… I would know if there was a bad car crash, I would remember it.
Q. Well, are you sure about that, [BK], because it does seem there's a lot of things from that morning you don't remember?
A. Yeah, there is. Like, I'm just saying if I knew there was a car crash, and it hit my nose, I wouldn't know. In the car, if I broke my nose in the car I wouldn't know that.
BK knew that his movements were being tracked by PolAir, the police helicopter. He got out of the car next to Rooty Hill train station, jumped over a fence and landed on the other side. His shoelace “got stuck on the barbed wire on the fence and [he] just tripped off the fence” which caused him to fall. As a result of the fall, he got “a little graze on [his] bum or [his] back” but sustained no injuries to his face. He was running because he “was getting chased by the police [having] crashed a stolen car”.
BK said that he ran into the backyard of a residence and entered through the backdoor to “get out of sight from the helicopter”. He saw a man (Mr Dodic) standing there. BK’s evidence was that he ran into the bathroom, locked the door and jumped into the shower to cool down and get rid of the scent “in case they run the dogs around”.
From inside the bathroom, BK “heard [the police] banging on the [bathroom] door, saying that they were going to let their police dogs in if [he] didn’t open it”. He turned off the water and stepped out of the shower.
In cross-examination, he said that there were at least two police officers at the door when he opened it.
When he got out of the bathroom, he saw three or four plain-clothed police officers who “had their guns drawn” at him. He knew that they were guns rather than tasers because “a taser is yellow and the guns are black”. He confirmed that he had “just seen that one gun, just that first person that was in front of me”. In cross-examination, BK confirmed that Sergeant O’Gorman was the only officer he saw who had a firearm pointed at him. BK also confirmed that he knew Sergeant O’Gorman from his previous dealings with the police as the officer had worked in “the area … for a while”.
The officer who was holding the gun told BK to “[g]et down” so he “laid down [on his stomach] and [they] put [his] hands behind [his] back.” The police then handcuffed him. BK confirmed in cross-examination that he had not been pulled down onto the floor by the police before he was handcuffed with metal handcuffs.
BK said that he could not see who had handcuffed him or whether the officer who put the handcuffs on was plain-clothed or in uniform because “[his] head was down looking at the ground”. He was “pretty scared” when he saw the gun but part of him was telling himself that they were not going to shoot him because they were police officers. He described how the police lifted him up off the ground by his arms and two police officers, one on each side, escorted him outside through the front door, each with a “firm grip” on each of his upper arms.
Next thing I know, I’m on the ground and then waking up in hospital.
I was angry and sad. Like, I didn’t know what to do or how to, like, think or anything. I sort of, like, didn’t know what to do. I was, like, already in their custody. I just didn’t know why it had to escalate any further.
BK said that he was not sure what the other officers were doing when the officer was hitting him in the face. He felt something hard on his back, which may have been a knee.
He recalled that the police had called him “Craig Smith” and that, as a consequence, he had formed the view that the police thought that he was Craig Smith. The hospital records show his name as being “Craig Smith”. There was no dispute that the records related to BK.
At 10.54am Senior Constable Klippert made a Triple-0 call asking for an ambulance at “the station” (Mount Druitt police station). He reported to the operator that the person in custody was about 16 years old and “has some minor cuts and scrapes to his hands and knees from breaking into a house”. BK was described as being “completely alert” with “no major bleeding”. The transcript indicated that Senior Constable Klippert estimated that the person (BK) was 16 years old.
The ambulance records note that a Triple-0 call was received at 10.55am on 20 December 2019. Sergeant O’Gorman identified the voice of the officer who called the ambulance as Senior Constable Klippert.
The ambulance records later noted that the patient was “Craig Smith”, who was born in September 1999 (and was therefore 20 years old) and lived at an address in Shalvey. It was accepted that the records related to BK, despite these details and that the inference ought be drawn that these details were given to Triple-0 by the police.
…
Respondent 1: Just to update his condition.
… His breathing is more normal, however he is now unconscious.
…
And not responsive.
…
He is breathing. His chest is rising and falling at a normal rate. We’ve tried feeling a pulse but it feels more normal, not as erratic. However, he’s now unconscious and attempts just then to wake him up, either he’s really good at playing dead or he’s actually unconscious. We’re not sure.
According to the transcript, the operator then directed Senior Constable Berger to perform cardiopulmonary resuscitation (CPR) on BK. About nine minutes after the conversation began, the transcript recorded Senior Constable Berger saying, “So it looks like he might be gaining some consciousness.” According to the transcript, the ambulance arrived about two minutes later.
The ambulance records noted the change in BK’s condition which had been communicated during that call and said (to inform the ambulance officers who were responding to the call):
You are responding to a patient who is haemorrhaging. The patient is a 16-year-old male, who is unconscious and breathing. Unconscious or Arrest. Haemorrhage/Lacerations …
20 yr old male [which was an erroneous reference to Craig Smith, which was the identity which police gave the ambulance] in Police custody, Police state Pt [patient] absconded during arrest and subsequently fell landing face first on footpath. Nil LOC [loss of consciousness], O/e [on examination] Alert, oriented, well perfused, non compliant with Hx [history].
Obvious facial trauma mouth/nose. Police state Nil LOC. Pt aggressive/non compliant removing. Unable to obtain Pupils. Refusing to have injuries attended.
(Emphasis added.)
The evidence did not reveal which police officer, or officers, were the source of the highlighted passage in the ambulance record.
The ambulance records also noted that, on initial assessment, BK had an “altered conscious state; laceration”.
Senior Constable Klippert’s evidence (which is addressed in more detail below) was that the highlighted portion in the extract above (that BK absconded and fell) was inaccurate because there was no mention of BK thrashing his body around or being taken to the ground by police, of which Senior Constable Klippert had given evidence.
In the statement Mr Dodic signed on 20 December 2019 (the day of the incident), he said that he went out the back when he heard a helicopter and as he looked out, he saw an Aboriginal male, of slim build, coming over the back fence and running inside the house. The male said to Mr Dodic, “help me, help me, the cops are after me”. Mr Dodic said that when BK went into the bathroom, he went out the front door where there were police officers. Mr Dodic gestured to them that BK was in the bathroom. He was adamant that he did not speak to police officers before they entered the property. He also said that BK was handcuffed outside the unit. He agreed that two police officers “marched [BK] out” and were holding onto him “[b]y the arms”. He did not see the handcuffs being put on BK but “assumed” that this was what they were doing when he was “down on the ground outside”, although he did not actually see it happening. He said that he was not interested in what happened once BK was out of his mother’s unit.
Mr Dodic saw himself as a victim because BK entered his mother’s unit. Mr Dodic agreed in cross-examination that he was not prepared to cooperate with BK’s counsel because they represented BK. The primary judge did not attribute any particular weight to Mr Dodic’s evidence. In any event, on his own admission, he was not in a position to witness the events which are the subject of the alleged claims.
As at 20 December 2019, Acting Sergeant O’Gorman was stationed at the Mount Druitt police station and was in the Proactive Crime Team, which is predominantly a plain clothes unit and looks after “mid-level crime”, including break-and-enters, stolen motor vehicles and drug supply. As such, he was the most senior officer in that team on duty that day.
Sergeant O’Gorman denied, in his evidence in chief, that any complaint had been made against him for using excessive force, which he confirmed in cross-examination (evidence to the contrary was led on behalf of BK). In 2021, he was “promoted” to Public Transport Public Safety Command, which was outside the Mount Druitt area.
Sergeant O’Gorman acknowledged that he and Senior Constable Klippert were friends and socialised with each other at locations outside work. Sergeant O’Gorman confirmed that Senior Constable Klippert had an arm sleeve tattoo.
Sergeant O’Gorman confirmed that, as at 20 December 2019, he weighed 169kg and when giving evidence on 5 February 2024, he weighed 74kg, having lost more than half his body weight. A photograph taken of him in December 2019 was tendered.
Sergeant O’Gorman said neither he nor any other officer, either plain clothes or uniform, was wearing a body-worn camera on 20 December 2019. He said that plain clothes officers generally did not wear them in Mount Druitt back then because the camera would have been difficult to wear. That day, Sergeant O’Gorman’s partner was Senior Constable Wilson (that day was his first day in the Proactive Crime Team). As far as Sergeant O’Gorman could recall, the only other members of the Proactive Crime Team that day were Senior Constables Saab and Klippert, each of whom came to the premises where BK was arrested.
Sergeant O’Gorman had known BK for about five years as a result of at least 50 encounters with him in the Mount Druitt area. He confirmed in cross-examination that some of those encounters were for the purposes of ascertaining BK’s compliance with bail curfew conditions. He agreed that BK was on the Suspect Target Management Program (STMP), with the consequence that BK’s involvement with police was put into a computer and a scale calculated to assess his risk of committing further offences. Sergeant O’Gorman explained that when a person’s scale was at a particular level, “certain disruption and crime prevention strategies are put in place”, including “patrolling the area in which [the person] may live”.
A VKG (police radio) recording was tendered. Sergeant O’Gorman identified his voice on the recording and explained that the reference to “doggy calling” indicated that a dog squad had been called. As a consequence of what they heard on the police radio, Sergeant O’Gorman and Senior Constable Wilson, who were at the Rooty Hill shops where they had intended to have coffee, drove to Perkins Street, a journey of about three or four minutes. Senior Constable Wilson was carrying the radio as he was the junior officer of the two. When they arrived, Mr Dodic, who was standing outside his front door, waved at them and showed them where BK was hiding.
As the respondent’s counsel reserved the right not to disclose her witnesses until she actually called them, BK’s counsel put aspects of Senior Constable Wilson’s statement of 18 January 2020 to Sergeant O’Gorman. In cross-examination, Sergeant O’Gorman disagreed with Senior Constable Wilson’s statement that he and Sergeant O’Gorman were on patrol at the time.
Sergeant O’Gorman and Senior Constable Wilson entered the premises, with Mr Dodic, who took them to the bathroom door and indicated that BK was inside. Sergeant O’Gorman pounded on the bathroom door and said, “We have the unit surrounded. There’s police dogs. There’s a police dog in the area. The chopper is here. You need to come out with your hands up”.
Sergeant O’Gorman said that he pushed the door open and saw a young man (BK) under the shower, who “immediately adopted a fighting stance and raised his fists”. BK was “in his undies”. Sergeant O’Gorman said that he told BK that he needed to lie down and put his arms straight out but said that BK refused. The officer “moved in [and] attempted to do an armbar take down”, which he explained is “the preferred tactical option to assist someone to the ground [which] usually means extending their arm out … and then placing this moving force down to assist him to the ground”. He said that it did not work as BK was “combative”, was resisting his efforts and that they were both in the shower. He said that it took a few seconds before he and Senior Constable Wilson could “assist him to the ground, maintain control over him and apply handcuffs”. Although Sergeant O’Gorman did not recall handcuffing BK, he confirmed that BK was handcuffed in the shower. He agreed that it was very important to “secure control over [BK] at that point in time [in the bathroom]”.
We’re permitted to remove our firearm when we believe that we might use it. We use it when there’s an imminent risk to the life of ourselves or someone else, and there’s no way of preventing that risk. Based on my observation of the bathroom, the fact that he didn’t have a weapon, there was certainly no imminent risk to my life or the life of anyone else. And therefore, it stayed in the holster.
However, Sergeant O’Gorman accepted that, when he entered the unit at Mr Dodic’s direction, and stood outside the bathroom door, he was concerned for his safety, at least in part because he did not know who was inside the bathroom or whether the person had a weapon and expected that he would have to enter the room shortly. He agreed, when shown a photograph of the location that the door to the bathroom was, in fact, a sliding door, not, as he had said in evidence, a swinging door.
Sergeant O’Gorman said that he and Senior Constable Wilson escorted BK out, one on each arm, and, when they were in an alcove about 5-10m away from the front entrance of the unit block in the direction of Perkins Street, they handed him over to the uniformed police officers (whose identity he did not recall) who “have then taken physical control of him”. He said that BK was “still violently thrashing”. He said that he got a clear view of his face but he thought he was Craig Smith and told the officers to whom he handed BK, which included Senior Constable Klippert that he was “Craig Smith”. He did not say anything else at that time.
Sergeant O’Gorman said that that he “absolutely [did] not” continue with BK towards the police truck. He said that the handover lasted “[a] second [or] two seconds”. Sergeant O’Gorman estimated that there were 6-8 uniformed officers present, including Highway Patrol, when he did the handover. He agreed that he was “adamant” that he handed BK over to uniformed police officers, notwithstanding that Senior Constable Wilson’s statement and the amended defence were inconsistent with there having been a handover.
When it was put to him in cross-examination, Sergeant O’Gorman disagreed with paragraph 14 of Senior Constable Wilson’s statement dated 18 January 2020:
Senior Constable O’Gorman and I escorted [BK] to the caged section of [the] Mt Druitt vehicle. As we were neared the caged vehicle, [BK] began to thrash his body around. This resulted with [BK], myself and other police going to the ground. We stood [BK] up and placed [BK] inside.
Sergeant O’Gorman’s evidence was that he did not see what happened after he handed BK over because it was “all happening behind [his] back”.
The following paragraph from Senior Constable Klippert’s statement was put to Sergeant O’Gorman who accepted that it made no reference to a handover of BK taking place (by Sergeant O’Gorman and Senior Constable Wilson to uniformed police) and that it said:
A short time later, I heard Senior Constable O’Gorman on police radio advise that he had one in custody. I proceeded to the front of [X-X] Perkins Street and observed Senior Constable O’Gorman and Senior Constable Wilson escorting the young person out of the house. I observed that he had no shirt on and long black hair. As I approached him, I observed that he was shirtless and had a small cut to his leg. I observed the young person try and quickly escape Senior Constable Wilson by moving his arms quickly and running. I ran over and grabbed the young person and took him to the ground with the assistance of other police.
Part of the recording of the police radio was played to Sergeant O’Gorman. He was asked whose voice it was from Mount Druitt 141 (one of the cars for the Proactive Crime Team) who said, “sufficient police on scene” but he could not identify the voice, although he said that it was not his own.
Sergeant O’Gorman agreed that he made absolutely no contemporaneous notes of what occurred on 20 December 2019 and said that he provided details to Senior Constable Klippert so that he could prepare notes. He did not take his notebook with him when he left the station. He made no notes when he returned to the station although he accepted that it occurred to him that he might be a material witness in the matter. Nor did Sergeant O’Gorman prepare a “formal statement” about the matter. Nonetheless, he said that he was “confident” that the account given in his evidence was accurate although it was almost four years between the incident and his giving evidence (3 November 2023).
After he had handed BK over to the uniformed officers, Sergeant O’Gorman asked Mr Dodic for a towel as he was “covered in water from the shower”. He denied ever having been told that BK had been punched in the face by an officer. He said that he stayed with Mr Dodic for about five to ten minutes after having handed BK over to the uniformed officers. He then left the scene.
When giving evidence, Sergeant O’Gorman could not recall being told that BK had suffered injuries connected with his arrest, although he accepted that an ambulance was called and that BK went to hospital. Sergeant O’Gorman accepted that the fact that an ambulance was called to Mount Druitt police station to treat BK, who had just been arrested and at whose arrest Sergeant O’Gorman had been personally present, was something that he would have wanted to know about at the time because it directly related to the welfare of the person in whose arrest he was directly involved. Indeed, Sergeant O’Gorman’s evidence was:
In 20 years, I’ve never had to call an ambulance as a result of an arrest that I did.
[SK]’s complaint, which has been enclosed with this letter, relates to the conduct of Officer Justin O’Gorman during [SK’s] arrest by Mt Druitt Police during December 2019.
…
We understand that the LECC has previously investigated the conduct of Officer O’Gorman. We ask that this complaint is considered in light of those other complaints to ascertain whether there is a pattern of officer misconduct that is indicative of systemic issues that could adversely reflect on the integrity and good repute of the NSW Police Force.
The complaint alleges that Officer O’Gorman:
• Used unnecessary force against a child.
• Made threats of violence towards a child.
• Made inappropriate sexual comments about, towards, and in front of two children.
• Inappropriately/illegally filmed (or gave the impression that he was doing so) a child and uploaded it to social media.
• More generally, regularly targets [SK] and his cousin to conduct stop and searches.
…
Sergeant O’Gorman said that this was a “false complaint” and that although he was physically present when the conduct occurred, it did not relate to him and he did not do the things that were alleged. He said that he did not disclose it to the Court because it was a case of “mistaken identity”. He also said that he tended to be singled out as the subject of complaints as his substantial weight at that time distinguished him from other police officers.
BK’s counsel also put to Sergeant O’Gorman complaints which had been made against him by TW, JT and AN. Sergeant O’Gorman denied ever having been made aware of these complaints. He also said that he did not recall a complaint having been made by BK to the LECC about his use of excessive force.
Senior Constable Klippert gave evidence in the proceedings. As at the time of giving evidence in February 2024, he had been a police officer for 10 years. He was the officer in charge of the investigation into BK. He said that there were not many body-worn cameras available in 2019. He explained that the point of being a plain clothes police officer was not to disguise that you were a police officer because plain clothes police officers still wore lanyards and appointments. He always wore shorts and a t-shirt to work. He has a left arm tattoo which depicts images from Egyptian-themed mythology. He agreed that he socialised with Sergeant O’Gorman.
When cross-examined about “red mist”, he said that the concept had been mentioned in training and he understood it to refer to becoming hyper-focussed on one particular thing. His understanding was that:
… “red mist” … is when an event happens, and you get hyper focused on it, so it’s just like tunnel vision, and all you can see is what’s happening in front of you, without, like, your peripherals, and your sound, and you’re just hyper focused on one particular thing.
He denied receiving any instruction about the application of “red mist” in the context of arresting someone.
On 20 December 2019, Senior Constable Klippert was on duty with Senior Constable Saab. On that day, he heard on the police radio that there was a police pursuit. He said, of his involvement:
I arrived in Perkins Street, I drove in probably 50 to 100 metres, or so, I parked the car, I got out of the car, I tried searching for the offender, while listening to the police radio. I went into a property which looked - by memory, it was an abandoned house with a large backyard. I had a look around that property, I couldn’t find the offender. There was lots of farm animals, goats, or sheep, or something walking around. I looked around there, I looked over the fence into the neighbouring property. At some stage, police radio advised me that there was one in custody.
Senior Constable Klippert elaborated on his answer by saying that he went “from the abandoned house, out of the property, back to the front of the property, out onto the footpath area, and then walked down to where they said that they had him in custody”. He recalled that the male (BK) did not have a shirt on, had long, dark hair and was “being escorted to the front of the property by Senior Constable O’Gorman and Senior Constable Wilson”, one on either side. He could not recall whether BK’s hands were behind his back. He said that he could not remember whether BK was handcuffed at that time.
He described BK as “thrashing his body around and trying to escape”. He said that he was “thrashing arms, shoulders and body, trying to get away, trying to escape the grip”. He confirmed that it was Senior Constable Wilson who had hold of BK at that time but could not remember how he was holding him and said, “possibly his arms, or wrist, or waist area”. After the COPS report was put to Senior Constable Klippert in cross-examination (see below), he agreed that BK had his arms by his sides (as he was handcuffed to the rear) and was not waving his arms around.
Senior Constable Klippert said that he “ran over to help” and “grabbed him by the body and helped take him to the ground”. He was asked about the mechanics of this manoeuvre in the following exchange:
Q. Can you just describe what you mean by taking down to the ground?
A. So grabbing my hands, and then using my body weight and taking him down to the ground.
Q. So you’ve just gestured a motion of having your hands at shoulder height and pushing down towards the ground. Is that the--
A. I can’t remember exactly where, but somewhere between, like, the hips and shoulders, around the general body.
Q. Of the plaintiff, is where you took hold of him?
A. Yes.
Q. Did you lift him up and turn him over?
A. No.
Q. Did you slam him head first into the ground?
A. No.
Senior Constable Klippert said that he ended up “right beside [BK] on the ground”. He said that this occurred in the area outside the front of the unit block near Perkins Street, as he marked on a diagram. Senior Constable Klippert agreed that there was no mention in the COPS report of BK being taken to the ground when he was being escorted out of the unit.
He agreed that the police action in taking BK to the ground outside the unit involved a use of force, which resulted in his calling an ambulance. He agreed that he said, as established by the recording of the call, that the person (BK) “has some minor cuts and scrapes to his hands and knees from breaking into a house” but was “completely alert” with “no major bleeding”.
Senior Constable Klippert denied that BK was unconscious. He said that if BK had been unconscious “that would be a massive … emergency … if [he] noticed [BK] was unconscious, [he] would’ve immediately called an ambulance, put him in a recovery position, CPR, et cetera”.
Senior Constable Klippert’s evidence was that he saw BK walking to the police van between two uniformed police officers and that he was not unconscious. He could not recall who those other police were.
Senior Constable Klippert denied seeing any facial injuries on BK and said that he could not recall seeing any other injuries apart from a cut on his leg. However, he agreed when he was shown the transcript of his exchange with the ambulance service on the police radio that he had seen BK with injuries to his “lip or chin”, as well as his hands and wrist area and scratches on his knees. In cross-examination, he also repeatedly described BK’s injury to his nose as a “hairline fracture”, despite having not seen any medical records (which reported the fracture as a “non-displaced fracture”).
When the recording of the police radio was played to Senior Constable Klippert, he identified the voice which said, “sufficient police on scene” as Senior Constable Saab’s voice. He agreed that the voice which said the following was his voice:
No Mount Druitt 1-4-1, Radio. Can we just organise an ambulance to meet us at Mount Druitt Police Station.
…
Yeah he’s um, broke into the house, he’s got a couple of minor cuts. Conscious and breathing. Just check him over.
…
Uh, a couple of scratches to the knees and then one on the lip or chin.
(Emphasis added.)
In the above radio call, Senior Constable Klippert sought to link BK’s injuries to BK having “broke[n] into the house”, despite BK having entered through a sliding door and there being no evidence of BK being injured in the course of entering the house.
Senior Constable Klippert was shown photographs taken of BK on 20 December 2019. When it was put to him that BK suffered those injuries after being taken to the ground (outside the unit), he said that he did not see them, as appears from the following exchange:
Q. What I’m suggesting to you is that [BK] had those injuries on his face after being taken to the ground?
A. I didn’t see them.
Q. I’m suggesting to you that you have observed those injuries, and you’ve made a decision to play them down, or inaccurately describe them to the radio operator.
A. No, that’s not true.
(Emphasis added.)
Q. I’m going to suggest to you that [BK] was lifted up by his feet and slammed onto the ground.
A. No.
Q. I’m also going to suggest to you that he was punched at the scene by a police officer.
A. I didn’t see that.
…
Q. Did you stay at the scene when you called the ambulance?
A. I was at the scene when I called the ambulance.
Q. How long after calling the ambulance did you remain at the scene for?
A. Like I said, I can’t remember exactly when I radioed for an ambulance. But shortly after he was taken to the ground, I left the scene.
(Emphasis added.)
Senior Constable Klippert’s evidence was that he could not recall whether he was made aware that BK was unconscious at the police station.
Senior Constable Klippert said that he did not recall seeing BK at the station that day after he returned to do the paperwork. He made a statement on 7 January 2020. He could not recall whether he made any notes in his notebook that day. Furthermore, he said he “couldn’t remember” inquiring about BK’s welfare upon returning to the station, although he accepted that BK was a vulnerable person in custody and that Proactive Crime Unit was located immediately adjacent to where BK was in custody.
He agreed that his statement included the following:
A short time later, I heard Senior Constable OGORMAN on Police Radio advise that he had one in custody. I proceeded to the front of 3-5 Perkins Street and observed Senior Constable OGORMAN and Senior Constable WILSON escorting the young person out of the house. I observed that he had no shirt on and long black hair. As I approached him I observed that he was shirtless and had a small cut to his leg. I observed the young person try and quickly escape Senior Constable WILSON by moving his arms quickly and running. I ran over and grabbed the young person and took him to the ground with the assistance of other Police.
(Emphasis added.)
I returned to the police station and spoke with other police, who stated the stolen car had been involved in two collisions. They provided me with versions from the drivers, as well as photographs of the vehicles. I contacted PolAir, who emailed me the footage of the entire incident. I reviewed the footage, which depicted the young person driving the car in a manner dangerous. Driving on the foot way, narrowly missing a pedestrian, travelling at speed. I also observed the young person cause two collisions, abandon the stolen car, jump the railway tracks. I observed the young person fall on two occasions from the railway fencing, with one time landing harshly on his back, which I believe would have hurt and likely caused injury.
(Emphasis added.)
Senior Constable Klippert denied that he was trying to provide an explanation for how BK had ended up with his injuries on 20 December 2019 but said that it was a possibility that he had been injured in the course of his actions as described in that paragraph of his statement.
When it was suggested to Senior Constable Klippert that BK was punched at the scene by a police officer he said that he had not seen that. He said that he left the scene shortly after BK was “taken down”. He could not recall speaking to Sergeant O’Gorman at the police station about what occurred at the scene. This evidence was relied upon by BK in support of the Jones v Dunkel inference (and in this Court in support of ground 2).
So upon arriving, I exited the passenger seat of the vehicle and ran up a driveway along Perkins Street. I don’t recall the house number, but I do recall that it was a long driveway. I then jumped over a fence leading into an open paddock or reserve. To the right of me, I observed a white house which appeared to be abandoned. I jumped into this yard, and then I heard noises coming from within this house, so I proceeded to move towards, there was a doorway, I moved towards the doorway of this house, and then I heard some glass shatter before then observing some goats jumping out of the window. I did not jump - I did not go into the house, and then on the police radio I heard that there was someone in custody.
Senior Constable Saab said that when he returned to the unit block he observed several officers with BK on a concrete footpath. He said that he could not recall how many officers were at the scene, who any of the uniformed officers were or what they were doing although he said that they “would’ve been kneeling”. He could not recall whether BK was face down or face up and had his hands covering his face, which made him think that he was conscious. Senior Constable Saab initially said that he knelt down in front of BK and helped to arrest him by putting him in handcuffs. However, later in his evidence admitted that he could not recall whether BK was handcuffed already. He said that he saw BK being put into the police truck and that he was conscious. He confirmed that there were no seat belts in the police truck.
When it was suggested to him that BK could not have had his hands up to his face because he was already handcuffed, Senior Constable Saab confirmed that this was what he thought happened but he could not be certain.
Senior Constable Saab confirmed that he did not make any contemporaneous notes on 20 December 2019 and was not asked to make a formal statement in relation to the matter. In the four years between the incident and his giving evidence (on 7 February 2024), he had been consistently engaged in police work, including making arrests, police pursuits and the like.
Senior Constable Berger joined the police in August 2018. In December 2019 he was stationed at the Mount Druitt police station as a general duties uniformed police officer. He attended the unit in Perkins Street that day as he had been informed that a police van was required there.
Senior Constable Berger was in the back of the police truck when other police officers helped BK into the truck. At that time, BK was conscious. He did not recall making any observations about BK’s appearance. When they arrived at the Mount Druitt police station, he helped BK out of the truck, placed him in one of the cells at the police station and booked him into the custody system. Senior Constable Berger said that BK was still conscious but he did not recall making any observations about his appearance or noticing whether he had any injuries.
Senior Constable Berger confirmed that he was the person who called the ambulance at 11.13am on 20 December 2019 and at 11.24am. Listening to the recording of the call did not assist him to recall either making the calls or any interaction which he had had with BK that day. He accepted that a person being unconscious in police custody was “an emergency situation”.
He appeared possibly drug-affected by his behaviour. He was, like, falling around, he had to be helped to be standing up. He was groaning, wasn’t cooperating with anything the police were really asking him, and yeah, that was pretty much his behaviour the whole time he was there in custody while I was there.
Acting Sergeant Cox said that he “didn’t have concerns that he was unconscious to the point where he was in danger”. However, he did form the view that an ambulance should attend to BK.
Acting Sergeant Cox also accepted that it would be an emergency if a person was unconscious in custody. He also agreed that, other than what appears in the Custody Management Report, he did not make any other contemporaneous notes of what occurred on 20 December 2019. He accepted that his evidence about BK not being unconscious was based solely on his own observations and did not extend to the observations of others.
The CAN identified Senior Constable Wilson as the person who had apprehended BK. Sergeant O’Gorman said that he did not review the facts sheet but was involved in its preparation to the extent that he provided information to Senior Constable Klippert. Sergeant O’Gorman said that as he had not reviewed the facts sheet, he was not able to confirm whether it accurately recorded what he had told Senior Constable Klippert. Sergeant O’Gorman agreed that he spoke to Senior Constable Klippert about the incident at some time before he left work on 20 December 2019, which may have been after his shift finished at 4pm because he tended to “[stay] back”.
Senior Constable Klippert agreed that he had created the police facts sheet at 1.57pm on 20 December 2019. He agreed that the police facts sheet and the COPS report largely mirrored each other although he also agreed that, whereas the COPS report referred to BK as having “minor injuries”, the facts sheet referred to “injuries” without the preceding adjective “minor”. He also agreed that there was no mention in the facts sheet of BK being taken down to the ground outside the unit, that BK had fractured his nose or that he tried to escape after being arrested. However, he denied providing information to the custody manager, which was inconsistent with the evidence of Acting Sergeant Cox (see below).
Prisoner was tackled to the ground after a police pursuit and fled on foot. As a result is bleeding from the mouth and is in pain. Prisoner appears to be drug effected [sic].
(Emphasis added.)
This version was relied on by BK’s counsel as one of several “conflicting police accounts” of how BK sustained his evident injuries. Senior Constable Klippert said that he “wouldn’t word it like that, but it’s sort of what happened”. He said that he did not observe BK bleeding from the mouth or any facial injuries. He did not think that he was the source of what was written in the Custody Management Report.
Acting Sergeant Cox said that he would have obtained the description in the first sentence from one of the escorting officers or arresting officers but that the second and third sentences would have been included in the report from his observation of BK.
The comment under “Visual Assessment” read:
Prisoner has arrived in custody with facial injuries after arrest. Prisoner is unresponsive to police and appears intoxicated by drugs or alcohol. NSW Ambulance contacted to attend.
Prisoner has not spoke[n] since entering charge room. Groaning in pain and blood coming from mouth. Appears drug effected [sic].
The officer identified is “Matthew Cox”, who Sergeant O’Gorman identified as the custody manager and the time of the entry is 11.22am and the date is 20 December 2019. Acting Sergeant Cox confirmed these details and that the entries reflected his observations of BK at the time.
Sergeant O’Gorman accepted that it would “possibly” be a very significant event for a detainee in police custody to be unconscious and agreed that it would be particularly so when the detainee was a 16 year old Aboriginal male because of the protocols that apply to vulnerable persons.
A COPS report was created for the incident at 13.57 on 20 December 2019 by Senior Constable Klippert. Senior Constable Saab was identified in the COPS report as the “Police in Charge”. Sergeant O’Gorman could not recall whether he reviewed it.
The COPS report recorded, of present relevance:
The young person entered the unit complex [in] Perkins Street, Rooty Hill. The young person opened a sliding screen door and accessed a bedroom of the location. The young person opened the bedroom door and spoke with Joseph DODIC stating “Help me, Help me, the Cops are after me”. The young person took off his clothes and locked himself in the bathroom. The young person began to have a shower.
Police attended Perkins Street, Rooty Hill directed by POLAIR. As Police began to search the area for the young person, Joseph DODIC came from unit [X] of Perkins Street and informed Police that the young person was in his residence. Police entered the location with permission from the occupant and were directed by Joseph DODIC to the bathroom of the location. Police heard the shower running and called for the young person to surrender. The young person and Joseph DODIC do not know each other.
Police opened the door and found the young person standing in his underwear in the shower. The young person adopted a fighting stance and raised both his fist towards Police. Police grabbed the young person who began to wrestle and thrash around. Police secured the young person by handcuffing the young person to the rear. The young person was cautioned and placed under arrest. The young person swore and abused Police and continued to thrash his body.
The young person was conveyed to Mt Druitt Police Station. The young person met with ambulance at Mt Druitt Police station for treatment to minor injuries. The young person was taken to a local Hospital and refused to provide his details to both Police and nurses. The young person was conveyed back to Mount Druitt Police station …
Checks conducted on the young person revealed that he has never held a driver's license. The young person was last convicted for the offence of Police Pursuit at Parramatta Children's Court on the 09-09-2018 and was disqualified from obtaining a driver's licen[c]e for 6 months. Since this period, the young person has made no attempts to obtain a driver's license.
The young person's manner of driving can only be described as simply insanely dangerous. The young person travelled through several suburbs for a duration of approximately 15 minutes and continued to drive dangerously. POLAIR footage clearly illustrates the severity of the offence. The young person posed a significant risk to his safety, Police safety and safety to members of the community. It is only [by] sheer chance that no persons were seriously injured or killed as a result of the young person's driving. The young person travelled at a speed and in a manner so dangerous that a collision would likely be catastrophic. All roads travelled upon are roads in the state of New South Wales.
(Emphasis added.)
Ms Chrysanthou SC, who appeared with Ms Keesing for the respondent in this Court, accepted that the COPS report indicated that Constables Norris and Caruana were present at the scene.
Senior Constable Klippert said that although he could not remember whether BK was handcuffed, he accepted that, given what he put in the COPS report, it was likely that he was handcuffed. He agreed that he must have spoken to either or both of Sergeant O’Gorman and Senior Constable Wilson to obtain details of what occurred in the bathroom since they were the only police officers at that location at that time.
There was no reference in the COPS report to the officers “taking down” BK outside the unit after he had been arrested and handcuffed. Senior Constable Klippert agreed that he was obliged to fill in a “use of force” field in the COPS as force had been used on BK when he was taken down outside the unit. He was unable to explain why he did not complete the field. He was cross-examined by reference to the NSW Police Force Handbook which said, of present relevance:
As detailed in the Australia and New Zealand Police Advisory Agency's Use of Force Guiding Principles 2013, you are required to record details of instances where force/Tactical Options are used by a police officer, or against a police officer, or in other situations (as appropriate).
In these circumstances complete the USE OF FORCE fields in the Event General Details screen in the Computerised Operational Policing System (COPS). It should be noted that the USE OF FORCE field is MANDATORY for all Events where a POI is listed. In the case where a suspect is listed but not yet arrested or spoken to by police, or unknown at the time the Event is created, the question "Was force used?" will still appear. If no interactions have occurred at this time, "No" should be tagged.
Record all officers involved in the USE OF FORCE field and each officer's actions or responses for each Incident.
(Emphasis in original.)
BK had no recollection of being taken to Nepean Hospital. He remembered waking up to find RK, his mother, there. She was “screaming and yelling at the police” who were positioned at the door of the little room in the hospital where BK was located. He told his mother that the police had “bashed” him and she took some photographs. He sat there for half an hour before they took him back to Mount Druitt police station.
RK gave evidence that she received a phone call from the police informing her that BK was in Nepean Hospital so she went there to see him. As he was under the age of 18, her consent was sought for scans to be taken of BK. When she arrived BK was awake and “had bruises all over him and he was very upset and crying”. She took four photographs with her phone “because he was hurt”. She was “very upset and very angry at what [she had] seen”. She said that he did not say much because he was “frightened” as a plain-clothes police officer was “right next to the bed” and another was by the door. However, BK did tell RK that the police had “bashed” him. RK said that while she was with him in the hospital:
… he was like - wasn’t really talking. He was just hiding under the blanket, and he was really - like, I can tell. He’s my son. I could tell, like, if he was upset and scared or if he wasn’t, you know, like.
RK said that she could see from looking at his nose that it was fractured and that it was not like that when she had seen him earlier that afternoon. She was definite that she had seen him earlier that day on 20 December 2019 at Westmead.
Senior Constable Saab said that he went to Nepean Hospital in his own car as BK was to be under police guard (and Senior Constable Saab also needed a tetanus shot because he had cut his knee that morning). He said that BK was conscious and “had his hands still covering his face whilst in hospital”. He said that there was confusion about BK’s identity because the hospital staff believed that he was Craig Smith at the time.
Afterwards, the police took BK to Cobham, where he told the person who spoke to him (Mr Ackerly) that he wanted to make a complaint about “the broken nose and bruises and stuff”.
Mr Ackerly, the night supervisor at Cobham, was on duty on the night of 20-21 December 2019. He noted that BK was brought to Cobham at 1.10am on 21 December 2019 by police. He adopted his usual practice of ascertaining that there was a legal basis to detain BK before allowing the police to leave. He was almost certain that he was the person who took photographs of BK shortly after he arrived while he was still in his own clothes. Mr Ackerly took the photographs in case BK wanted to make a complaint because it was “obvious he’[d] been injured”. Mr Ackerly observed “the swelling, the swollen lip, the bruising, the bruising to his eyes, the grazing to his face”, which he described as “clearly obvious”. Mr Ackerly was concerned, having regard to those injuries, about how Cobham was going to keep BK “pain-free and managing through the night”. He also notified the after-hours nurse “so that if there’s any further complications through the night, they’re up to speed with what’s happening”.
Mr Ackerly also searched BK and arranged for him to change into “Cobham clothes” and arranged for BK’s own clothes to be washed.
Mr Ackerly then conducted a risk assessment of BK to make sure that he would be managed safely through the night. He appreciated, because he recognised BK, that it was not BK’s first time in custody, that he did not require an interpreter and that he was Aboriginal.
In the risk assessment form, Mr Ackerly wrote:
This young person is admitted with a medical clearance from Nepean Hospital for facial injuries sustained during the arrest.
Young person wishes to complain about the alleged assault that occurred during arrest.
During the risk assessment, BK told Mr Ackerly that he had been to hospital that day (20 December 2019) “for a medical clearance”. Mr Ackerly confirmed that he received medical documents relating to BK when BK was admitted to Cobham. Mr Ackerly said he noted that he saw a medical clearance which said, “Head injury card given and cleared for police and corrective services”. When Mr Ackerly asked BK whether he had lost consciousness or been knocked out, BK said that he was knocked unconscious during the arrest.
Mr Ackerly also asked BK whether he had taken drugs that day, to which he answered, “no”, which was recorded on the form. In cross-examination, BK agreed that this answer, if he had given it, was untrue. When asked why he had denied it, he said:
Just, as a kid going into Cobham, it’s just when ask you if I’ve - like, if you’ve taken drugs and stuff - the - as a kid being at such a young age, they’re usually saying no, they haven’t taken drugs, just in case of getting their family and stuff in trouble.
That’s a question I ask every detainee that comes in and generally that’s the answer I get.
I’m saying I would get angry quickly, but I won’t, like, use my aggression in any way. So, mentally, like, I would get angry and keep it inside myself.
Young person has bruising to both sides of his face and two black eyes. There is significant grazing to the left side of his face and he has a very swollen upper lip. The young person also has swelling and bruising to his right knee. The young person also has bruising and cuts to his nose. The medical report from the Nepean Hospital states the young person has a non-displaced fracture of the nasal bone.
When cross-examined about the injury to his knee, BK agreed that he might have injured his knee when he landed after jumping over the fence before entering Mr Dodic’s property. In any event, he agreed that he was not sure whether he injured his knee himself although he acknowledged that it was included in the particularised injuries in his amended statement of claim.
Under the heading, “Circumstances leading up to the incident”, Mr Ackerly included the following:
Detainee [BK] stated that he had been assaulted by police and wished to make a complaint.
Tort instructions
20/21 Dec 2019
- fractured nose by police
- not intoxicated
- happened during arrest
- punched around the face
…
Justin O’Gorman
- arresting officer
- Known to YP [young person] from community
- Harasses YP
…
Picked me up + dragged me out of the house, hand-cuffed
- landed on my face + shoulder – broke my fall
- then felt knee on my back
- at least 10-15 cops
- head lifted by cop from hair – then punched me
…
- passed out after cops hit me on the face
… we’re a specialised service that worked in a trauma-informed space. So we would go as far as the client was ready to provide information or give instructions at that point in time. And this would’ve been information that [BK] was prepared or able to provide at that point in time.
By email sent by James Clifford, a solicitor at the Aboriginal Legal Service (ALS) on 11 February 2020, Mr Clifford proposed that BK plead guilty to eight of the nine sequences charged arising from events on 20 December 2019 and that the prosecutor withdraw the ninth sequence (resist arrest). BK agreed in cross-examination that the facts set out in Mr Clifford’s proposal accurately set out what occurred.
Senior Constable Klippert agreed that he was supportive of the charge of resist arrest being withdrawn and the facts sheet being amended accordingly.
To me, it just sounds like he doesn’t think before he acts.
After I was arrested, like, I usually just - like, you usually just can’t really do nothing. You’ve been handcuffed, arrested, in police custody, so.
BK said that while he was at Cobham, he spoke to a police officer (Inspector Sean Gabin) who interviewed him, in the presence of a support person, about what had happened and told him that they would assist him with the civil case. The officer took notes which were then typed up in the form of a statement, which BK signed, using his “old signature as a kid” on 15 June 2020 although the date of “2 June 2020” was on the top of the document. The officer who signed the statement next to BK’s signature was Inspector Sean Gabin. The date of 2 June 2020 underneath BK’s signature was altered to 15 June 2020 by Vicki Pannaye.
In the statement, BK said:
4 On 20th December, 2019 I was arrested at Rooty Hill, I cannot remember the address. I was taken out the front of a house after the arrest and into the front yard. I was arrested in that house. The officers who arrested me in the house did not have a uniform on. When I was out the front of the house three or four officers came at me and threw me to the ground and said to stop resisting, but I was already in handcuffs. They started to hit me to the face and the back of the head. I remember blacking out but felt hits still. I am not sure if they used anything other than their fists to hit me. The three or four officers that came to the front were wearing a police uniform. I remember waking up at the police station at Mt. Druitt. I do not remember anything else from the arrest.
5 When I was arrested in the house I had no injuries and the Police did not punch or hit me. The Police had handcuffed me in the house. One of the officers that arrested me was O’Gorman and someone else I don’t know. The only thing I remember them saying is that they were sending a dog in, so I opened the door. I do not know any of the uniform officers who met me at the front of the house. I only remember that one of the uniform officers had a tattoo on his right arm. He was the officer who threw me to the ground. When the officers hit me I was not trying to escape, I had handcuffs on.
6 When I got to the Police Station an Ambulance looked at me. I remember I had injuries to my nose, my mouth and my eyes. I remember I had a cut to my nose, my eyes were puffy and I had a cut lip. The Ambulance took me to Nepean hospital and they looked after me and I was sent back to the Police station and then sent to Cobham.
7 At no time did I give any person permission to assault me in anyway. I did not get any injuries during a car accident.
(Emphasis added.)
Either Officer Wilson, Officer O’Gorman Officer Klippert or another uniformed NSWPF officer punched the plaintiff to the face and back of the head.
BK confirmed in cross-examination that his last “vision of police” that he had seen “before being slammed to the ground” was what was alleged in that paragraph. He also confirmed that he had “lost consciousness at the front of the yard”, after the police “assaulted”, that is, “punched”, him.
He was asked in cross-examination where the contents of paragraph 26 of the amended statement of claim came from if he lost consciousness after the assault. Paragraph 26 of the amended statement of claim (which was in the same form as in the pleading as filed) alleged:
Officer Wilson, Officer O’Gorman, Officer Klippert or another uniformed NSWPF officer pulled the plaintiff up from the ground and placed him in the rear of a caged police vehicle.
When faced with a situation where force is required to be used such force must be considered reasonable and appropriate based upon the level of resistance met or the threat presented.
Your Honour, can I just take an objection here? I’m just - this has been going on for some time. And I’m just struggling to understand the relevance of this line of cross-examination. It’s such earlier in time peripheral cross-examination about a report that someone else has generated. It’s not even his own document. And I’m unsure as to how this could possibly be relevant in the current proceedings. It just seems we’re so far removed from the facts-in-issue, and my learned friend’s been going on for some time now. I’m just - I do object, and I object on the basis of relevance.
As I say, your Honour, my concern is that I don’t wish to be accused of not putting what will be my ultimate submission to this witness, but if my friend’s content that I’ve put it in sufficient detail, I’m going to be submitting, to be clear, that this witness is not a witness of credit and that he has lied about a number of aspects.
CHIPKIN: Your Honour, we will concede that my learned friend doesn’t need to put all of these minute inconsistencies, in relation to facts prior to the commencement of the police pursuit. We’re happy that she doesn’t need to put every minor inconsistency, but from the point in time when the police pursuit commences, those really are the facts in issue. Although, it’s accepted, of course, that there are some facts that are not disputed, that is, that he was the driver and was in the police pursuit. I think we won’t take issue with any failure of my learned friend to knock Browne v Dunn about antecedent issues if she wants to focus on the events in question.
KEESING: I’m grateful to my friend for that indication, your Honour. In that case, and the witness can come back in, and I’m going to focus on what occurred on 20 December 2019.
HER HONOUR: Yes. I think so. I mean, I think that a lot of your cross-examination has gone to that very issue, that antecedent matters.
(Emphasis added.)
In accordance with District Court Practice Note 1 – Case Management in the General List, the respondent provided a “hearing list” of its proposed witnesses to BK’s legal representatives. The Court was provided with this list. Of the witnesses on the list, the respondent called Sergeant O’Gorman, Senior Constable Klippert Constable Berger, Senior Constable Saab, Acting Sergeant Cox, and Mr Dodic. The respondent did not call Constable Caruana, Constable Norris, Constable Hughes or Sergeant Moss. Senior Constable Wilson need not be considered as no Jones v Dunkel inference was sought against the respondent in respect of him.
The COPS report indicated that Constables Norris and Caruana were present at Perkins Street on 20 December 2019. Ms Chrysanthou confirmed “[t]he two uniformed police officers that were identified were the highway police, and there was no evidence that they saw this interaction”. She said that none of the witnesses on the list, apart from these two officers, was a uniformed officer. She said that the respondent did not know which uniformed officers were present at the time of BK’s arrest and delivery away from that location and that therefore no Jones v Dunkel inference arose. The evidence does not disclose whether Constable Norris was uniformed. However, he is referred to in the amended defence where it is alleged, in paragraph 20(f) that he assisted in restraining one of BK’s legs when he was on the ground.
The following exchange occurred during the respondent’s opening in the Court below:
KEESING: The other thing your Honour has heard me say already a number of time is this entire case turns on credit. And that is so, your Honour. And in particular, this entire case turns on the credit of the plaintiff, because the plaintiff is the only person who is saying that these events occurred. There were - and your Honour will hear evidence about this in due course. There were a very large number of people at the scene at the time, and not a single other person there has an account even remotely close to what the plaintiff--
HER HONOUR: You anticipate that’s what their evidence will be?
KEESING: I anticipate it, your Honour. I’m very confident.
(Emphasis added.)
As is evident from the summary of evidence adduced at the trial, the respondent only called one witness who was present inside the bathroom (Sergeant O’Gorman) and only one witness who was present when BK was brought to the ground (Senior Constable Klippert). Sergeant O’Gorman was inside with Mr Dodic after he had handed BK over to uniformed officers; Senior Constable Saab arrived after BK was on the ground outside; and Senior Constable Berger was standing beside the police van to open it for BK but did not give any evidence about seeing BK on the ground. No uniformed officers were called in circumstances where BK’s evidence was that he had been punched by a uniformed officer and brought to the ground by uniformed officers.
Throughout the trial, the respondent’s counsel, as was her right, refused to indicate which witnesses she would call, and how many, in response to inquiries for the purpose of estimating how much more time needed to be allocated to the hearing of the matter. It can be inferred that several more witnesses were available than were in fact called and that the respondent reserved its right to call whichever witnesses it saw fit to call when the time came.
On Thursday 2 November 2023, it became apparent that the hearing would not be completed in the five days allocated. By that time, BK’s case had closed and the respondent had opened its case and called Mr Dodic, who had been cross-examined and Sergeant O’Gorman, whose cross-examination had not been completed. Mr Chipkin said (by reference to the “hearing sheet”):
Your Honour, I know there’s been some discussion about timetabling and availability, but this matter is going at a much slower pace than I had anticipated for various reasons. But perhaps what I would estimate is - there’s still a substantial length of time in this matter is my honest assessment. Ms Keesing has indicated that she’ll possibly call up to 12 witnesses; we don’t know who.
KEESING: Can I just respond, your Honour, just because I think Mr Chipkin might be labouring under a misapprehension.
HER HONOUR: All right.
KEESING: Mr Chipkin suggested that all of the persons on the hearing sheet are going to be called. That is, of course, a decision that I--
HER HONOUR: I know, but I said even if six of them are called it’s--
KEESING: Yes, but at this point, I should say, and of course it is subject to how successful my friend’s cross-examination is, but at this point, I don’t expect I will need 12, or even six.
HER HONOUR: But you would need the police officers that were at the scene, presumably?
KEESING: Well, I am not even sure I need all of them, with respect, your Honour.
KEESING: Well, I do think we should proceed to Monday, your Honour, and as I say, I am quite hopeful, and I indeed say confident that we will finish on Monday. I should say that is within my control much more than it is Mr Chipkin’s.
HER HONOUR: Well, can I say a couple of things. One is, as you have said, the allegations in this case are very serious.
KEESING: Yes.
HER HONOUR: And I would have thought it would be appropriate to call a number of the police officers where present, precisely for that reason. Obviously, that is up to you, but it is very serious, and you have impressed upon me how serious it is, because of the potential consequences. So I take that into consideration, and that also might mean that Mr Chipkin cross-examines for longer than he might otherwise do, given the very significant impacts that that might have. I appreciate the State has gone to some trouble in arranging their witnesses, and nobody wants to muck people around, but sometimes that’s just the way it goes.
KEESING: Perhaps I can do it this way, your Honour, because I had - and as I say, I had been given some instructions and so I had - actually last night been giving some thought to how we might do this in a way that we make sure it’s done by Monday. And as I say, it’s possible we’d come back perhaps for half a day later to do the closings. I don’t think that’s such a problem.
(Emphasis added.)
KEESING: … as I’ve already said to your Honour, I think we will very easily be done by the end of Monday.
CHIPKIN: No way. There’s no way. There’s no way.
KEESING: Well, Mr Chipkin’s saying there’s no way, but I’m not sure what he’s saying there’s no way to because--
HER HONOUR: Well, let’s just--
KEESING: --Mr Chipkin doesn’t know who I’m calling. That’s for me to decide.
HER HONOUR: It is my desire that the evidence continue and then closing submissions continue in one flow, and that’s not going to happen by the end of Monday.
KEESING: Well, I think it will, your Honour.
HER HONOUR: The way the matter has proceeded so far particularly, and I say this with the greatest respect, the objections you’ve taken to evidence which have taken some time to resolve gives me no confidence that that won’t be in the same position tomorrow.
… And I have the control of how this case runs, you might remember. What I think I’ll do is give you the opportunity to think about the witnesses that you want to call and discuss that with Mr Chipkin before court resumes tomorrow. And then I’ll make a decision at that point. But the thing is, if it’s not going to finish on Monday, there’s no question about it. It has to go over.
(Emphasis added.)
HER HONOUR: … Ms Keesing has said, correctly of course, that the matter is a very serious one. The allegations are very serious and potentially have very far-reaching consequences. And I don’t want either party to feel constrained by time. You will have as much time as you like. I just make that quite clear.
CHIPKIN: I’m grateful to your Honour.
HER HONOUR: And if we need further time later in the year or whatever, then that’s what we’ll do.
CHIPKIN: Yes. I’m grateful to your Honour for that.
At the conclusion of that day, the matter was stood over for further hearing for five days commencing Monday 5 February 2024. Ms Keesing confirmed that Sergeant O’Gorman was available for that week (as his cross-examination had not yet been completed).
On 7 February 2024, the third day of the resumed hearing, Ms Keesing informed the Court that Senior Constable Wilson was not available to give evidence as he was on parental leave. Mr Chipkin reserved his position as to whether he would submit that a Jones v Dunkel inference ought be drawn from the respondent’s failure to call him. Ultimately, Mr Chipkin confirmed that he would not seek the inference in relation to Senior Constable Wilson although he pressed the submission in relation to the “unidentified uniformed officers at the scene” in respect of whose failure to give evidence there had been no adequate explanation.
BK made detailed submissions about the effect of Jones v Dunkel in these circumstances in writing and orally. He relied on the respondent’s counsel’s opening as an indication that several officers who were available to give evidence were not in fact called.
39 Ultimately it is submitted that SC Klippert is not a credible or reliable witness and the Court would reject his evidence. He has repeatedly changed his description of the plaintiff's injuries and has continuously sought to downplay them, even in Court. Submitted that he has deliberately lied to cover up his wrongdoing and responsibility for the plaintiff's injuries.
40 However, even if the Court were to accept SC Klippert's evidence about the takedown:
a. Not reasonable - taking a small child to the ground a small child who was handcuffed behind his back and unable to break his fall- is not reasonable force; and
b. There is still a gap in time when SC Klippert walks away where the plaintiff could have been punched to the face by the uniform officers who escorted him to the caged vehicle.
It’s also not reasonable to forcibly take a child to the ground, a slight child who is handcuffed behind his back, and is unable, by virtue of the handcuffs, to break his fall. He is falling face first, because his hands are handcuffed. When [BK] is taken to the ground, he can’t stop himself. He is hitting the ground hard. There is also a gap in time, which is when Senior Constable walks away from the plaintiff after he, I think, brings him to the ground.
I guess that’s said because while the punch is described by [BK] as occurring when he is taken to the ground, there is this gap in time where no witness can give evidence of - well, no defence witness really can exclude the possibility that the punch could have been inflicted by one of the uniformed officers when they were escorting him to the cage.
As to the alleged batteries, the plaintiff has failed to establish that the alleged applications of force occurred. In particular, he has failed to establish that he was lifted, turned and dumped on his head, or punched in the head or face, or that anyone placed a knee into his back while punching him in the face. It follows that no question arises as to whether such force could have been lawfully justified.
The starting point is, of course - and I’m sure not controversial - that the plaintiff bears the onus of proving his case and his case is his case as pleaded. There is not an option for the plaintiff to submit in closing, for example, as Mr Chipkin did this morning, that your Honour would find that Detective Senior Constable Klippert used unreasonable force when he pulled the plaintiff to the ground because that is not part of the plaintiff’s pleaded case and, by extension, there is no onus on the state to prove the lawfulness of conduct which has never been alleged to be unlawful.
So when your Honour is considering what is the claim, it is, of course, the claim in the pleadings and your Honour may recall that I addressed your Honour in some detail on this in opening.
… your Honour is, of course, ultimately directed to the task of determining whether the pleaded case, and only the pleaded case has been made out. Because I’ve made it very clear in opening, and I’m making it very clear again, the State most certainly does not consent to the plaintiff departing from his pleaded case. It would be of course grossly unfair and not in the interest of justice for the plaintiff to do that in closing, as in my submission, Mr Chipkin hinted at this morning. So it is only if the plaintiff has proved his pleaded case and, as I say in my submission, the battery allegations rise and fall together because of the way the plaintiff gave his evidence and account. It would not be open to your Honour to find that some parts of it were true but not other parts. Either he’s a reliable witness or he’s not.
(Emphasis added.)
Notwithstanding reservations about the accuracy of some of the police evidence, I am comfortably satisfied that the plaintiff was arrested and handcuffed in the shower in the bathroom and that the police officers outside the house were mistaken.
The preponderance of police evidence was that [BK] thrashed around and tried to escape once outside the house.
(Emphasis added.)
Neither party in this Court was able to identify any evidence to support this finding beyond that of Senior Constable Klippert.
However, the primary judge found that it was likely that BK had tried to escape from police as he was being escorted down the path in front of the premises and that he was tackled to the ground: J [206]. Her Honour accepted that Senior Constable Klippert believed it to be necessary to tackle him to the ground and that the force used caused the injuries sustained by BK which were depicted in the photographs and recorded in the hospital notes: J [207] and [209].
The primary judge noted that BK became non-responsive and possibly unconscious after he was booked into custody at Mount Druitt police station but he was not unconscious when he was at the scene or being loaded into the police truck or booked into custody: J [211]. Her Honour said at J [212]:
As to the plaintiff becoming non-responsive or unconscious it is possible that it was caused by the force used but also possible that it was result of some combination of the plaintiff’s drug and alcohol consumption, prolonged lack of sleep, intense physical activity, and failure to eat or drink anything on the day in question (other than beer). Certainly, the plaintiff led no evidence (medical or otherwise) which would allow me to safely exclude that possibility.
I have taken into account the fact that the plaintiff was young and slim, and that there were a number of police around him. It might be thought that they could subdue him without tackling him to the ground but the court cannot speculate about that.
(Emphasis added.)
214 I am not satisfied that unreasonable force was used to subdue the plaintiff. I find that the force used in arresting the plaintiff was lawfully justified pursuant to ss 230 and 231 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).
215 I am not satisfied to the requisite standard that he was “speared” into the ground or punched.
216 Although it is not free of doubt, I am not satisfied that Sergeant O’Gorman raised his firearm to the plaintiff’s face.
(Emphasis added to highlight the word, “speared” which was not adopted by BK and did not form part of his case.)
On this basis, her Honour ordered that there be “verdict” (sic, judgment, as there was no jury) for the respondent. Her Honour declined to make an order for costs because of the way in which the respondent conducted the case, including by unnecessarily prolonging it: J [218].
Her Honour did not address BK’s submissions that a Jones v Dunkel inference ought be drawn against the respondent on the basis that it had not called any of the uniformed police officers who were on the scene.
BK alleged that, in her cross-examination of BK, the respondent’s counsel did not challenge BK’s evidence that:
the police threatened to use a dog;
the police pointed a firearm at him;
he was picked up and slammed to the ground outside;
he was punched by a uniformed police officer;
he was rendered unconscious by the forces involved; or
he was lying or mistaken about his account of the assault.
He submitted that, in these circumstances, the primary judge ought to have given more weight to BK's evidence and that her Honour was in error in failing to do so.
Ms Chrysanthou submitted that (1) and (2) above are irrelevant in this Court as the rejection of BK’s claim in assault is not challenged. Further, she submitted that, in circumstances where BK had been charged and had been served with a police brief, which contained various police statements, it was not necessary for the respondent’s case to be put to him in cross-examination. She put it to this Court as follows:
Your Honour, the respondent’s case was this didn’t happen. “It didn’t happen that you were spearheaded. It didn’t happen that you were punched. It didn’t happen that you were kneed.” And that’s clear on this pleading, particularly when I take your Honours to the defence, to the amended statement of claim. Your Honour will see that not only were there denials, but there was a positive case put. Your Honours, this is all in the context of a criminal proceeding having occurred in 2020.
Some of the police statements were tendered in the civil trial. But there was an entire criminal case run in 2020 that resulted in a negotiation between the police prosecutor and the plaintiff’s lawyers, and there was a guilty plea for some of the sequences, and one of the sequences was withdrawn. So the notion that this plaintiff didn’t have full notice of what each of these police said occurred on the day is an unusual one because he had a full brief of evidence served on him with all of the police statements.
Ms Chrysanthou submitted that it was “[a]s a matter of fairness, for the purposes of Browne v Dunn, completely unnecessary” for the respondent’s trial counsel to put the respondent’s case to BK in cross-examination. She also submitted that it would have been open to BK’s counsel to make a request under s 46(1) of the Evidence Act 1995 (NSW) that he be returned to the witness box after the respondent’s case had closed, in order to put questions to him arising from the way the respondent’s evidence fell out.
The service of material on a party is not sufficient to comply with the rule in Browne v Dunn. What is required is that a party knows what the opposing party’s case is and that it be put, where relevant, to particular witnesses in order that they have an opportunity to respond. In cases where the pleadings are extensive and the evidence in chief is given by affidavits which are read at the outset of the hearing, it is not generally necessary that this be done since this process will already have been achieved by the exchange of affidavits. What amounts to sufficient notice is a question to be determined by reference to concepts of fairness: Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1.
But the purpose of Browne v Dunn is not limited to procedural fairness. Compliance with the rule also serves the purpose of enabling the tribunal of fact (whether judge or jury) to observe the response of a witness, including a party who is a witness, to the propositions put on behalf of the party undertaking the cross-examination: Mokbel v The King [2025] VSCA 243 (Mokbel) at [474] (McLeish, Kennedy and Kaye JJA). Failure to comply with the rule can have the consequence of reducing the weight given to evidence which is inconsistent with the evidence of the relevant witness: Mokbel at [477]. Indeed, “judges should in general abstain from making adverse findings about parties and witnesses in respect of whom there has been non-compliance with [the rule in Browne v Dunn]”: MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329 at [39] (Gummow, Kirby and Callinan JJ), applied in Karout v New South Wales Crime Commission [2025] NSWCA 260 at [197] and [201] and Smith v Blanch [2025] NSWCA 188 at [94] (Kirk, Stern and McHugh JJA).
I do not accept that the answer to a breach of Browne v Dunn is that the other party (not in breach) is required to seek to recall its witness pursuant to s 46 of the Evidence Act to ask the witness questions which ought to have been put by opposing counsel: see the discussion in Khamis v R [2010] NSWCCA 179; (2010) 203 A Crim R 121 at [44] and [51]-[52] (Whealy J).
The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party’s case. That is particularly so where it is the party which is the uncalled witness. The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn.
(Footnotes omitted.)
There is no indication in the reasons of the primary judge that her Honour drew a Jones v Dunkel inference against the respondent or, indeed, that her Honour considered BK’s submissions that such an inference ought be drawn.
Mr Canceri, who appeared with Ms O’Rourke for BK in this Court, submitted that this failure compromised the fact-finding process and impugned the primary judge’s assessment of the evidence of what occurred, relevantly, during the alleged battery. He submitted that both aspects of Jones v Dunkel were engaged: that is, the primary judge was permitted to infer that the uncalled evidence would not have assisted the respondent’s case and that her Honour could, more readily, draw an inference against the respondent because the uncalled evidence would cast light on whether the inference ought be drawn.
Ms Chrysanthou submitted, first, that there was no basis for a Jones v Dunkel inference to be drawn since the respondent did not know who the unidentified officers were; and, second, that there was no need for the respondent to call more than one witness of the “take down” and that it was sufficient that it had called Senior Constable Klippert.
I do not accept that the respondent did not know who the unidentified uniformed officers were. It is an unusual proposition that the respondent was not able to determine which of its uniformed police officers attended a significant event such as the present. When Ms Chrysanthou was asked to point to the evidence of her client’s ignorance of the identity of the uniformed officers (which may have explained their not being called), she pointed only to the evidence of the witnesses who were in fact called who could not name the uniformed officers who were present. She confirmed that none of the police officers on the hearing list (identified above) was a uniformed officer.
The principle in Blatch v Archer (1774) 1 Cowp 63 at 65 (Lord Mansfield CJ) is that “all evidence is to be weighed according to the proof which was in the power of one side to have produced, and in the power of the other to have contradicted”. If the respondent wanted the Court to accept that it was unable to establish that it could not identify any of the 6-8 uniformed officers (Sergeant O’Gorman’s estimate) who were present when he handed BK over to them, this was a matter for it to prove. The onus of establishing unavailability is on the party against whom Jones v Dunkel operates: Cross on Evidence (Lexis Advance), [1215]; Australian Securities and Investments Commission v Rich [2009] NSWSC 1229; (2009) 75 ACSR 1 at [457] (Austin J). As the respondent has failed to adduce any evidence to that effect, I am not satisfied that this is the case.
While the rule does not require a party to call merely cumulative evidence, the question whether a inference is appropriately drawn depends on the circumstances. This Court said in *(* [1990] NSWCA 194; (1991) ASC 56-038 (Kirby P):
Care must be taken in the consideration of the principles in Jones v Dunkel least an over exuberant application of those principles by appellate courts force upon litigants in courts of trial the tedious tender of innumerable witnesses, each of diminishing relevance, where one would suffice out of fear of later facing arguments based upon the holding in that case. As Samuels JA pointed out in Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348, 377:
The decision in Jones v Dunkel ought not be extended beyond the factual context in which it is intended to apply. It is authority for the proposition that any inference favourable to a plaintiff for which there is ground in the evidence may be more confidently drawn when a person presumably able to give the true complexion on the facts relied upon as the ground for the inference has not been called as a witness for the defendant and the evidence provides no sufficient explanation of his absence. It deals with the effect of a failure to answer the adversary's case.
Essentially, the rule does not compel time to be wasted by calling unnecessary witnesses. However, that statement by no means provides a shield against a justifiable criticism that a party deliberately kept less favourable witnesses from testifying.
(Emphasis added.)
The significance to be attributed to the fact that a witness did not give evidence will in the end depend upon whether, in the circumstances, it is to be inferred that the reason why the witness was not called was because the party expected to call him feared to do so. But there are circumstances in which it has been recognised that such an inference is not available or, if available, is of little significance. The party may not be in a position to call the witness. He may not be sufficiently aware of what the witness would say to warrant the inference that, in the relevant sense, he feared to call him. The reason why the witness is not called may have no relevant relationship to the fact in issue: it may be related to, for example, the fact that the party simply does not know what the witness will say.
It is also, in my view, significant that the primary judge referred to “unsatisfactory aspects of Senior Constable Klippert’s evidence” (J [207]) since it provides some indication that, had the primary judge applied Jones v Dunkel, her weighing up of the evidence of BK and that of Senior Constable Klippert may well have produced a different result.
Further, Senior Constable Klippert’s evidence was that he left the scene after BK was on the ground and did not see him being punched (as distinct from denying that he was punched). In these circumstances, the Jones v Dunkel inference is strong since no witness called by the respondent actually saw what happened immediately after BK was taken down, which was when, on BK’s evidence, he was punched. Senior Constable Saab arrived later and Senior Constable Berger did not see what happened as he was beside the police van.
I am persuaded that ground 2 has been made out. A Jones v Dunkel inference was not only available but, in my view, ought to have been drawn against the respondent for its failure to call any uniformed officers. Her Honour was in error in failing to address the submission made on behalf of BK which relied heavily on the failure of the respondent to call any uniformed officers. Her Honour was also, in my view, in error in failing to draw the inference. This failure, in my view, infected the fact-finding by her Honour since it deprived BK of the benefit of the inference and did not take account of the forensic environment in which the respondent can be taken to have decided not to call any of these officers.
The consequence of this ground having been made out will be addressed below.
213 I have taken into account the fact that the plaintiff was young and slim, and that there were a number of police around him. It might be thought that they could subdue him without tackling him to the ground but the court cannot speculate about that.
214 I am not satisfied that unreasonable force was used to subdue the plaintiff. I find that the force used in arresting the plaintiff was lawfully justified pursuant to ss 230 and 231 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).
Ms Chrysanthou submitted that the question of lawful justification did not arise since BK did not establish the battery as alleged in his pleaded case and that, therefore, his claim must fail.
The respondent submitted in the Court below, in substance, that BK had to prove his pleaded case in its entirety in order to succeed and that, for example, if the Court did not accept his evidence that he had been punched, the Court could not find a battery because that was part of his pleaded case.
If the pleading point is made good, it would not be open to the Court to find for BK on an alternative case in circumstances where the respondent could not be said to have acquiesced in BK going beyond the pleaded case: Cf. Water Board v Moustakas (1988) 180 CLR 491 at 497-498 (Mason CJ, Wilson, Brennan and Dawson JJ); [1988] HCA 12 (Water Board); Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70.
The law as to pleadings and evidence of witnesses is neither so rigid nor so unreal. As was said in Water Board at 497, “[i]n deciding whether or not a point was raised at trial no narrow or technical view should be taken.”
Further, juries are routinely directed in criminal trials that they may accept part of a witness’s evidence and reject another part, Judicial Commission of New South Wales, Criminal Trial Courts Bench Book, [7-020]:
In relation to accepting the evidence of witnesses, you are not obliged to accept the whole of the evidence of any one witness. You may, if you think fit, accept part and reject part of the same witness’ evidence. The fact you do not accept a portion of a witness’ evidence does not mean you must necessarily reject the whole of their evidence. You could accept the remainder of their evidence if you think it is worthy of acceptance,
It has been a long time since the maxim falsus in uno, falsus in omnibus (false in one thing, false in everything) was part of the common law, its broad applicability having been rejected long ago (including by no less a judge than Lord Ellenborough CJ in R v Teal (1809) 11 East 307; 103 ER 1022). It is trite that the tribunal of fact (be it a judge or jury), having seen and heard the witness, is to decide whether the evidence of the witness is worthy of acceptance and this may involve accepting or rejecting the whole of the evidence, or accepting some of the evidence and rejecting the rest: Cubillo v Commonwealth [2000] FCA 1084; (2000) 103 FCR 1 at 45-47 [118]-[123]; Flint v Lowe (1995) 22 MVR 1; and S v M (1984) 36 SASR 316. It is for this reason a jury is directed that they may accept some parts of a witness’s evidence, but not other parts: Dublin, Wicklow & Wexford Railway Co v Slattery (1878) 3 App Cas 1155. This reflects the accumulated wisdom and experience of the common law that witnesses may lie about some things and yet tell the truth about others, and the tribunal hearing the evidence is best placed to fix upon the truth. The same can be said about a tribunal of fact assessing whether the balance of the evidence of a witness should be believed, when the witness has admitted an untruth after having been caught out in a deceit.
As set out above, the pleaded case was that the named and unnamed officers lifted BK upwards and slammed him against the ground where he landed on his face, following which he was punched.
In its defence, the respondent said that as escorting police were taking BK to the police van, he tried to escape and Senior Constable Klippert went to assist (escorting police officers) and executed “a controlled take down of [BK] to the ground” as a result of which BK, Senior Constable Wilson and Senior Constable Klippert “went to the ground” and Constable Norris assisted in restraining one of BK’s legs while he was on the ground.
There was no evidence to contradict BK’s evidence that he was face down on the ground. Since he was handcuffed, his being brought to the ground meant that he was disabled from breaking his fall with his arms. Thus, from his point of view, any action which caused him to “go down” could have been experienced by him as being “slammed to the ground” since force was involved in getting him from the upright position to a horizontal position. While he referred to being “dunked” in his evidence, this was only one word that was used by him. He also described it thus: “two officers entered the yard and then [he] just felt [his] feet come up from underneath [him] and then just slammed on [his] face”.
The word “speared” was not used by BK; nor did he agree with it when it was put to him. It was a word coined by her Honour and adopted by the respondent’s counsel in her opening. That her Honour found that he had not been “speared” is immaterial since this was neither BK’s case nor his evidence. Further, while it was open to Sergeant O’Gorman to perform an “armbar” takedown in the bathroom, this possibility was no longer open as BK (as the primary judge found) was handcuffed when he was taken down outside the unit.
The respondent was on notice that BK alleged that there was a battery committed when he was outside the unit after he had been arrested and handcuffed, when he was “slammed” to the ground by police and punched. In order to prove the battery, BK could have proved either the slamming or the punching. This does not mean that, on any permutation, the respondent ought be held to its concession that if the battery, involving the takedown occurred as alleged in the pleading, it was without lawful justification since the respondent’s concession depended on the punching also being established as part of the battery.
In so far as the respondent alleged that it would have concentrated more on lawful justification if BK’s allegations had been expressed differently, it would appear that this forensic course was taken because of a mistaken view that BK must fail if he did not prove that he was punched, since that, too, was pleaded. As I do not accept the force of the pleading point, it is necessary to address the substance of ground 4.
Part 18 Use of force
230 Use of force generally by police officers
It is lawful for a police officer exercising a function under this Act or any other Act or law in relation to an individual or a thing, and anyone helping the police officer, to use such force as is reasonably necessary to exercise the function.
231 Use of force in making an arrest
A police officer or other person who exercises a power to arrest another person may use such force as is reasonably necessary to make the arrest or to prevent the escape of the person after arrest.
… the term “reasonably necessary” in s 230 is to be understood as incorporating the common law test. I find that the objective test is as stated in R v Turner and quoted with approval by Heydon JA in Woodley v Boyd, which is to this effect when appropriately modified for the purposes of s 230: whether a reasonable person in the position of the police officer would not consider the use of force by the police officer to be disproportionate to the risk or danger sought to be prevented.
(Emphasis added.)
His Honour’s use of the double negative in the formulation of the test reflects that the onus lies on the police as the user of force.
The primary judge’s apparent reversal of the onus of proof is highly significant in the present case for the reasons given below.
Ground 4 has been made out.
BK does not seek a re-trial. Rather, he seeks judgment from this Court pursuant to s 75A of the Supreme Court Act. The respondent submitted that if any of the grounds of appeal have been made out, the only relief that can be obtained is a re-trial. Ms Chrysanthou also submitted that a re-trial ought be limited to the claim in battery as the primary judge’s rejection of the claim of assault had not been challenged.
This Court “may make any finding or assessment, give any judgment, make any order or give any direction which ought to have been given or made or which the nature of the case requires”: s 75A(10). A new trial will only be ordered in circumstances such as the present if it is not appropriate for this Court to exercise its powers under s 75A of the Supreme Court Act: see also UCPR, r 51.53.
I am not satisfied that a new trial is required. While the primary judge’s fact-finding was compromised by the errors referred to above, I am not persuaded that this Court cannot proceed to find the facts on the basis of the evidence as authorised by s 75A against the background of those facts as found by the primary judge which are not impugned by the errors established. In these circumstances, the credibility findings which her Honour made which are affected by the error established in ground 2 are not entitled to the usual deference which this Court would give to findings which may be said to be based on the advantages enjoyed by trial judges: see the discussion in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [25] (Gleeson CJ, Gummow and Kirby JJ) and Warren v Coombes (1979) 142 CLR 531 at 552-553 (Gibbs ACJ, Jacobs and Murphy JJ); [1979] HCA 9.
In the present case, it was common ground that the issues of credibility were not demeanour-based and were largely determined by the primary judge by reference to the objective probabilities (as reflected in her Honour’s finding that BK was arrested and handcuffed by Sergeant O’Gorman and Senior Constable Wilson in the bathroom, before being escorted outside the unit) or by reference to the witness’s inconsistent statements (for example, that BK had given different versions about how many police officers had their guns pointed at him). Further, as the primary judge’s reasons were delivered over a year after her Honour reserved her decision and almost 18 months after BK’s evidence had been completed, it may be that her Honour’s findings were largely based on the transcript of evidence and documentary exhibits in any event. This is not a case such as Chen v State of New South Wales [2014] NSWCA 41 where the unresolved issues of credibility (including the identity of the person who had deleted relevant photos) were held to require a new trial: [88] (Basten JA, Meagher and Tobias JJA agreeing).
This course would also advance the overriding purpose, as provided for by s 56 of the (NSW), to facilitate the just, quick and cheap resolution of the real issues in the proceedings. While the trial in the Court below was neither quick nor cheap, it would, in my view, be “just” for this Court to determine the matter finally in the exercise of its powers under s 75A of the . There would be little to be gained and much to be lost by a re-trial: while the trial judge would have the benefit of hearing all the oral evidence of witnesses, the memories of all witnesses can be expected to be adversely affected by time. If the transcripts of their evidence were tendered, the trial judge would not be in a better position than this Court to assess their evidence. Further, the parties ought be bound by their forensic choices at the trial before the primary judge.
Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of ‘weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses and should make due allowance in this respect’. …”
(Footnotes omitted.)
Having regard to the way in which the trial was conducted in the Court below and the issues on appeal in this Court, I consider that this Court’s powers under s 75A are subject to the following limitations. As BK did not challenge the primary judge’s rejection of his claim for assault in this Court, this does not arise for consideration in this Court. Further, there is no reason to disturb the following findings of the primary judge since they were not affected by error:
BK was arrested and handcuffed by Sergeant O’Gorman and Senior Constable Wilson in the bathroom before he was escorted outside the unit; and
the force used to bring BK to the ground was considerable and was capable of causing the injuries to his face.
The evidence of the alleged battery is very confined. The evidence discloses three versions by eyewitnesses to the manner in which BK came into contact with the path outside the unit block. These are:
BK’s evidence that he was “slammed” to the ground and that his face and shoulder hit the path;
Senior Constable Klippert’s evidence that there was a “controlled take down” of BK in which he was involved in assisting other officers (none of whom was called); and
the statement of an unidentified officer to the ambulance officers that after BK “absconded during [his] arrest [he] subsequently fell landing face first on [the] footpath”.
I infer from the evidence of BK, the fact that he landed face down on the hard surface of the path and that he had previously been upright that at least the force of gravity caused his face to hit the path as he was brought to the ground by force used by the police. He could not break his fall with his arms as they were handcuffed behind him. I do not regard the evidence of Senior Constable Klippert as providing a credible alternative version, including because it was substantially based on BK’s arms being free at the time. Other matters which impugned Senior Constable Klippert’s credibility are referred to below.
Further, BK’s version derives considerable support from the observation of the unidentified police officer which was reported in the ambulance record (“Police state Pt [patient] absconded during arrest and subsequently fell landing face first on footpath.”) Unlike the police officers, the ambulance officers were relevantly disinterested. The person who took this note had no interest but to record accurately what he or she had been told by police. The ambulance record is a business record within the meaning of s 69(1) of the Evidence Act. It is, accordingly, evidence of what the police officer said and of the underlying facts. There is no reason to doubt that the police officer who spoke to the ambulance officer said what is recorded as having been said, since the respondent did not call any evidence which would otherwise explain the entry.
The question of the underlying facts is more difficult to resolve. The police officer’s statement that BK “absconded during arrest” is unreliable in at least two respects. First, BK was handcuffed in the bathroom and escorted by Sergeant O’Gorman and Senior Constable Wilson outside the unit where he was handed over to uniformed police officers (of whom there were several). Second, even if BK thrashed around (as the primary judge accepted he did), he did not “abscond” as he was, at all material times, handcuffed and in police custody.
The second part of the statement – that BK “subsequently fell landing face first on [the] footpath” is problematic in one respect and supportive of BK’s case in another. The words “subsequently fell” are inconsistent with there being physical contact between BK and the police at the time he went from being vertical to horizontal. The use of the word “subsequently” implies that there was an interval between BK’s “absconding” and his face hitting the footpath. The statement is materially inconsistent with Senior Constable Klippert’s version that there was a controlled take-down, since there is nothing controlled about a fall. However, the statement to the ambulance officers supports BK’s version of how his face was injured (and, by implication, his nose was broken) since his “landing face first on the footpath” is consistent with BK’s version that he could not break his fall as his hands were handcuffed and that his face hit the footpath.
BK’s version is the only version available of what happened once he was on the ground and before he was escorted to the police van since Senior Constable Klippert was, by that time, inferentially, not in a position to see what happened (as he said he did not see a punch and left the area soon after BK was brought to the ground) and no uniformed officer was called. No witness, who was in a position to observe what happened in this time period was called by the respondent: Sergeant O’Gorman was inside with Mr Dodic; Senior Constable Klippert did not see it but did not deny it; Senior Constable Saab had not yet arrived on the scene and Senior Constable Berger was waiting beside the police van but did not see BK until he was approaching the police van.
The Jones v Dunkel inferences are even more powerful in respect of the alleged punches. Effectively, the plain clothes officers left BK to be dealt with by the uniformed officers. I accept BK’s evidence that he was punched by unidentified police officers while he was on the ground.
Not only was BK’s evidence not contradicted by anyone who was in a position to see whether he had or had not been punched, but his evidence was supported by the observations of ambulance officers, as well as contemporaneous complaints to his mother at the hospital (that he had been bashed), to Mr Ackerly, who was so concerned about his appearance that he raised the question as to how the injuries had been sustained, and to Ms Veliz on 17 January 2020. Their evidence of his representations is first-hand hearsay and therefore is an exception to the hearsay rule under s 64 of the Evidence Act. Thus, these complaints are evidence of the truth of the complaint, as well as supporting the credibility of BK. Evidence of complaint is not, strictly speaking, corroborative since it does not come from an independent source: Eade v The King (1924) 34 CLR 154 at 157 (Knox CJ, Gavan-Duffy and Starke JJ); [1924] HCA 9; Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 (Papakosmas) at [17] (Gleeson CJ and Hayne J). However, it is regarded as supporting the credibility of the complainant (Papakosmas at [16]-[17]), particularly when given at the earliest opportunity, as it was in the present case.
The evidence of RK, BK’s mother, of the fear BK exhibited at Nepean Hospital when he hid under the covers and told her that he had been bashed is also relevant and powerful evidence. It was consistent with his having been attacked by police that he show fear in circumstances where one police officer was right beside his bed and another was stationed at the door. The evidence of his distress was admissible and relevant to the question whether he had been attacked by police: cf. Papakosmas at [20] (where the distress, uncontrollable crying and complaint that the complainant had been raped was relevant to the jury’s determination of whether she had consented to sexual intercourse).
The respondent accepted that, if BK proved his case as alleged, there was no lawful justification to the tort of battery. Lest there be any doubt as to the relevance of the concession, I will express my finding on that question.
I cannot accept that a reasonable person in the position of the several (at least six) police officers present at the scene would not consider action which had the consequence of bringing to the ground (a hard brick surface), a 16-year old boy weighing 55kg whose hands were handcuffed behind his back to be disproportionate to the risk that he might escape (being the only risk identified). Indeed, had he been “thrashing around” when Sergeant O’Gorman and Senior Constable Wilson escorted him from the residence, a reasonable response would simply have been for them to keep hold of him rather than to transfer him to other officers. The primary judge was correct to wonder why the police officers could not “subdue him without tackling him to the ground”: J [231]. Had her Honour applied the correct onus of proof, her Honour would have found that the defence had not been made out.
The defence of lawful justification has not been made out.
The primary judge did not assess damages. It is preferable for trial judges to assess damages even if they find against a plaintiff on liability: Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; [2016] HCA 37 at [113] (French CJ, Kiefel, Bell, Keane and Nettle JJ). As this did not occur in the present case, it would ordinarily be for this Court to assess damages based on the evidence in the Court below and by reference to the submissions made by the parties on the quantum of damages.
However, as my view is a minority one and the Court, by majority, proposes to order a re-trial, it is preferable that I not express my view as to the quantum of damages to which BK would be entitled, since this will be a matter for the trial judge on the re-trial.
For the reasons given above, I propose the following orders:
Extend the time for filing the summons for leave to appeal to 18 June 2025.
Grant leave to appeal.
Allow the appeal.
Set aside the orders of Olsson SC DCJ made on 10 March 2025 and, in lieu thereof, make the following orders:
(a) Judgment for the plaintiff. (b) Order the defendant to pay the plaintiff’s costs of the proceedings.
Order the respondent to pay the appellant’s costs of the appeal.
STERN JA: For the reasons set out below I agree that the appeal should be allowed. I agree with Ward P that a retrial is required. This is not a case in which I am able to form a sufficiently reliable assessment of whether the alleged battery occurred on the material before the Court. I also agree with the additional observation of Ward P at [2].
As to ground (1), I disagree with Adamson JA that there was a breach of the rule in Browne v Dunn. The respondent’s case, as put in its amended defence filed on 27 October 2023 at [20], was that BK resisted being escorted out of the unit complex and sought to escape the hold that police had on him as they were escorting him towards the police caged vehicle, in response to which SC Klippert went to assist and executed a controlled “take down” of BK to the ground” and “[BK], SC Wilson and SC Klippert went to the ground”. Whilst the respondent’s pleaded case was that it was SC Wilson and SC O’Gorman who were escorting BK at the time, it was nonetheless tolerably clear to BK how the respondent put its case, and what the respondent said led to BK being taken to the ground by police as he was being escorted to the police caged vehicle.
Further, in his police statement dated 7 January 2020, SC Klippert said that he approached as SC O’Gorman and SC Wilson were escorting BK out of the house and observed BK “try and quickly escape [SC] Wilson by moving his hands quickly and running” at which point he “ran over and grabbed [BK] and took him to the ground with the assistance of other Police”. Again, whilst the evidence at trial was inconsistent with it being SC O’Gorman and SC Wilson who were escorting BK at the time, the case as put by the respondent at trial was consistent with this account as set out in SC Klippert’s statement.
In these circumstances, I consider that BK was given adequate notice that the respondent’s case was that he was seeking to escape the hold that police had on him and, in that context, was taken to the ground in a controlled manoeuvre: see, eg MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329 at [39]. It was to this case that BK’s oral evidence was directed when he was asked by his own counsel, in some detail, about what occurred just prior to him being taken to the ground by police officers, including whether he was doing anything with his arms or legs, or trying to run away or thrashing his body about, and when he was asked, again in some detail, about how he was taken to the ground by police. As to the latter, BK’s oral evidence in chief, given on 30 October 2023, was that he felt his legs come from under him and then “just, like, slammed to my face”. In his oral evidence BK also said that the police “[l]ike, dumped me onto my face” and “[t]hey lifted my legs from behind and sort of, like, dunked me on my head first” and that his “face first” and shoulder hit the ground.
**********
BK
State of New South Wales [2026] NSWCA 6
(1990) 169 CLR 279
(1938) 60 CLR 336
(2000) 103 FCR 1
(1982) 148 CLR 658
(1924) 34 CLR 154
(1992) 27 NSWLR 437
(2003) 214 CLR 118
(1959) 101 CLR 298
(2011) 243 CLR 361
(1987) 164 CLR 1
(2005) 80 ALJR 329
(2006) 229 CLR 638
(1999) 196 CLR 297
(2016) 258 CLR 134
(1999) 46 NSWLR 346
(2003) 57 NSWLR 496
(1966) 117 CLR 118
(1979) 142 CLR 531
(1988) 180 CLR 491
(1995) 22 MVR 1
(1984) 36 SASR 316
The Court extended time, granted leave, allowed the appeal, set aside the District Court orders, remitted the matter to the District Court of New South Wales for retrial, and ordered the respondent to pay the appellant's costs of the appeal: [294].
It was common ground that the respondent was, pursuant to ss 6 and 8 of the Law Reform *(*Vicarious Liability) Act 1983 (NSW), vicariously liable for tortious conduct of individual police officers.
The primary judge rejected both claims. No challenge is made to the rejection of the claim in assault. Although the proposed appeal relates only to the battery claim, the evidence in support of the claim of assault will also be considered because it forms part of the sequence of events against which the credibility of witnesses and objective probabilities are to be assessed.
A right of appeal is conferred by s 127 of the District Court Act 1973 (NSW). However, leave to appeal is required as BK claimed a total of $85,000 damages in the Court below ($40,000 for general damages; $20,000 for aggravated damages and $25,000 for exemplary damages) which was less than the threshold below which leave to appeal is required under s 101(2)(r) of the Supreme Court Act 1970 (NSW). An extension of time for leave to appeal is required as the summons for leave to appeal was not filed until 18 June 2025. The respondent consented to such an extension being granted.
The proposed grounds of appeal are as follows:
BK also relied on Jones v Dunkel and Browne v Dunn. At trial and in this Court, BK submitted that a Jones v Dunkel inference ought be drawn from the failure of the respondent to call material witnesses, including any of the uniformed police officers to whom BK had been handed over at the front of the premises and who, according to BK, were either responsible for the battery or witnessed it. Although Senior Constable Wilson was not called, BK’s counsel did not seek a Jones v Dunkel inference against him as, although otherwise available, he was absent on parental leave at the time of the resumed hearing.
BK submitted that as the respondent’s trial counsel had not put the respondent’s case to BK in cross-examination, he did not have an opportunity to answer it and the respondent was, thereby, precluded from advancing its case in submissions.
Sergeant O’Gorman denied pointing his gun at BK, insisting that it did not come out of its holster. He said:
In the circumstances of the present case, the rule in Browne v Dunn required the respondent’s trial counsel to put the respondent’s case, at least as to what occurred outside the unit block after BK’s arrest, to BK in cross-examination. This was particularly important in the present case where the police documents did not document what occurred during this period and the report to ambulance officers (that a police officer had told them that BK “fell”) was inconsistent with Senior Constable Klippert’s version. While the respondent had no positive case as to how BK had sustained his injuries, including to his nose, it did have a positive pleaded defence that the takedown outside the unit was controlled and that BK did not lose consciousness until he was in police custody at the Mount Druitt police station. Although a formulaic recitation of a case to the opposing party, or witness, is not required, it is, for the reasons given above, nonetheless desirable, particularly in a case such as the present which depends on oral evidence, that a party’s case be put. In the present case, it was not clear until the respondent closed its case, that the only witness on whose evidence it relied in its defence of the battery claim was Senior Constable Klippert.
Of the topics listed in [201] above, I consider (3) (that BK was picked up and slammed to the ground) to be the most significant. It was common ground that BK was brought by police conduct from a standing position to a position where he was face-down on the ground. The mechanics of his descent were in issue. BK gave evidence of how it felt to him. Given the primary judge’s finding that BK was handcuffed, it was, as referred to above, not open to the police to use the armbar takedown which had been used to bring BK to the ground in the bathroom. That the mechanics of this manoeuvre were not put to BK is telling. I do not regard this omission as explicable by oversight by the respondent’s counsel. Rather, the omission can be explained by an objectively reasonable forensic decision on the part of the respondent (which was vicariously liable for the acts of its police officers but which did not represent them) to see what evidence the respondent’s witnesses gave and to make final submissions which reflected the evidence which was in fact given. This conclusion is fortified by the respondent’s counsel’s disclosure to the primary judge that she had been given certain “instructions” on 3 November 2023 which would have the effect of shortly bringing the respondent’s evidence to an end (see the extract above).
When Senior Constable Klippert gave evidence in the respondent’s case, he described, in broad terms, the mechanism whereby BK was brought to the ground (as extracted above) and confirmed that he did not lift BK up and turn him over (from which it followed that BK was put to the ground face down, with, as the primary judge found, his arms handcuffed behind him). BK was not given the opportunity of responding to this version since it was not put to him in cross-examination. Nor was the mechanism used evident from the pleadings or from the respondent's opening (which simply referred to “a controlled take down” in paragraph 20(d) of the amended defence).
Ground 1 has been made out to the limited extent expressed above.
In this respect (how BK went from standing up to lying prone on the footpath), the only real difference between BK’s evidence and the statement of the unidentified police officer is that BK said he was pushed (“slammed”) and the unidentified police officer said that he “fell”.
It can reasonably be inferred that the version given by the unidentified police officer (which is unsupported by other evidence in the respondent’s case) was designed to give the ambulance officers an explanation for BK’s injuries which did not implicate the police. If BK absconded and then he fell, this would not indicate that any force was used by the police and would be consistent with BK’s injuries being, in substance, his own doing. However, this version was not supported by any sworn evidence and was inconsistent with Senior Constable Klippert’s version. A Jones v Dunkel inference arises, not only that the evidence of the officer who spoke to the ambulance service would not have assisted the respondent’s case but that BK’s version can more readily be accepted in the absence of evidence from that source. It is also significant that evidence was not called from Constable Norris who, according to the amended defence, “assisted in restraining one of [BK’s] legs whilst on the ground.”
There were, as the primary judge noted, several unsatisfactory aspects of Senior Constable Klippert’s evidence. These include:
his serial failures to comply with police protocols and procedures;
his repeated failure to acknowledge the extent of the injuries sustained by BK, including in his initial call to Triple-0, in the COPS report and in his evidence (which are detailed above in the summary of his evidence);
his attempts to attribute BK’s injuries to other matters (such as when BK “broke” into the house, when all that was required to enter was for BK to open the back door);
his failure to include the events outside the unit in the COPS report (of which he was the original author) or to fill in the mandatory field that force had been used;
his failure to make any contemporaneous note in his notebook of what had occurred; and
the several inconsistencies between his evidence and that of Sergeant O’Gorman as to the timing of the arrest and the application of handcuffs and whether there was a handover of BK.
I have also taken into account that Senior Constable Klippert’s version was not put to BK in cross-examination (for what I apprehend was a good forensic reason, as outlined above) and no other officer who was involved in bringing BK to the ground or who witnessed this occurring was called by the respondent to give evidence. I also draw the two inferences available on the basis of Jones v Dunkel: first, that the evidence of the officers who were not called would not have assisted the respondent’s case; and second, that the inference can more readily be drawn that BK’s version is accurate.
While BK’s evidence was, in some respects, unreliable, a reading of the transcript of his evidence indicated that he was, largely, giving evidence to the best of his ability and making appropriate concessions. For example, he readily admitted that he lied to Mr Ackerly about not taking drugs in the previous 24 hours and explained that he did so, in order not to get his family into trouble. In respect of his other injuries, for example, the grazes to his legs, he also admitted that he did not know if they were a result of his fleeing the police and getting out of sight of the helicopter or as a result of direct contact with the police. He denied having suffered any injuries while he was driving. Although BK said, one might think somewhat glibly, that if he had hit his nose in a car crash (which he denied) he would not know if he had broken his nose while driving, this evidence, in the context of his evidence as a whole, does not support the proposition that he injured his nose, or any other part of his head while driving. The video from the PolAir helicopter also does not indicate that he hit his head while fleeing from police on foot. Further, had the laceration to his nose, which was evident from the photographs his mother took in hospital, been present when he was arrested in the bathroom, it can be expected that Sergeant O’Gorman would have noticed it. The ambulance officer noted in their record that BK had “[o]bvious facial trauma [to his] mouth/nose.”
Although the primary judge did not, ultimately, accept BK’s evidence that Sergeant O’Gorman had pointed a firearm at him, the primary judge couched her finding in J [216] (“[a]lthough it is not free from doubt, I am not satisfied that Sergeant O’Gorman raised his firearm to the plaintiff’s face”) in such a qualified way as not to reflect particularly adversely on BK’s credit. Rather, this statement reflected her Honour’s appropriately cautious approach, in circumstances where BK had also given a version that more than one gun was pointed at him.
It is also significant that BK had injuries which could not otherwise readily be explained. They were obvious to those who saw them (the ambulance officers, his mother and Mr Ackerly). There is a stark difference between, on the one hand, the descriptions given by police of the injuries in their evidence and, on the other, the descriptions in the clinical records of Nepean Hospital and the injuries as shown in photographs taken on 20 and 21 December 2019. The insouciance displayed by the police in their evidence about BK’s physical condition (including the evidence of Sergeant O’Gorman and Senior Constable Klippert that they did not check on him while he was in police custody at their police station) is belied by the concern expressed by Senior Constable Berger in the third Triple-0 call that BK could not be roused. I do not regard it as going against BK’s credit that he did not recall the intervening events between being punched and waking up at Nepean Hospital where his mother was waiting for him. That he does not recall the intervening period does not mean that he was untruthful.
The police officers involved can be taken to have appreciated that, if BK’s evidence was accepted, there could be serious disciplinary ramifications for the officers directly involved as well as those who witnessed their conduct if they did not reveal it. It appears that there was an unspoken consensus on the part of the plain clothes police officers neither to record, in their notebooks or in official reports, what occurred outside the unit or to name, either in any record or in their oral evidence, a single one of the uniformed officers, other than Constable Norris, who was in a position to witness what happened.
The evidence adduced by the respondent appears to have been carefully curated so as to expose the smallest possible target so that the respondent could present its case as a “word-on-word” case requiring a judgment to be made by the tribunal of fact whether:
to accept Sergeant O’Gorman’s evidence that he did not remove his gun from the holster or BK’s evidence that a gun or guns were pointed at him (for the alleged assault); and
to accept Senior Constable Klippert’s evidence that there was a controlled takedown of BK or BK’s evidence that he had been pushed (“slammed”) down onto the footpath (for the alleged battery).
For the reasons given above, including those relating to the forensic potency of the unidentified police officer’s statement to ambulance officers that BK “fell” (which was entirely inconsistent with the respondent’s pleaded case), I accept BK’s version of the circumstances of the battery in so far as he said that he was “slammed” onto the pavement. I do not consider that his use of the word “dunked” was apposite, since BK’s injuries were to his face and not to the crown of his head, but I do not consider that this slight infelicity of language adversely affects his credibility in that respect.
But for Mr Ackerly’s concern that BK’s injuries, which were obvious when he presented at Cobham at 1.10am on 21 December 2019, may have been sustained while in police custody and the contemporaneous photographs taken by BK’s mother and Mr Ackerly, the events the subject of proceedings might never have come to light.
For the reasons given above, I am satisfied, on the balance of probabilities, having regard to the seriousness of the allegations and the principles in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 that BK has proved his case of battery: that a police officer or officers pushed him to the ground, face down, with the consequence that he suffered injuries to his face as he was unable to break his fall with his hands (which were restrained behind his back with handcuffs). I am also satisfied, on the basis of his uncontradicted evidence and his immediate and contemporaneous complaints that he was punched by a police officer or police officers. His otherwise unexplained injuries to his face are also corroborative.
Fairness did not require that BK be cross-examined as to whether his recollection of events was consistent with what SC Klippert said in his police statement, or that BK be recalled to be cross-examined by reference to SC Klippert’s oral evidence, given on 6 February 2024, that he “grabbed [BK] by the body and helped take him down to the ground … grabbing [my] hands, and thus using my body weight and taking him down to the ground”. That oral evidence was consistent both with the substance of SC Klippert’s account given in his police statement and with the defendant’s pleaded case (of which BK would be presumed to be well aware).
As to ground (2), I agree with Adamson JA that an adverse inference should have been drawn against the respondent by reason of the failure to call any evidence from any police officers, other than SC Klippert, who may have witnessed or been involved in bringing BK to the ground between Mr Dodic’s unit and the police caged vehicle and in what occurred thereafter whilst BK was on the ground (putting to one side SC Wilson, as to whom different considerations arose, as explained by Adamson JA). In addition to the matters relied upon by Adamson JA, it is of some significance that the evidence of SC O’Gorman was inconsistent with that of SC Klippert to the extent that SC O’Gorman said that he and SC Wilson were not holding BK at the time when, according to SC Klippert, BK sought to escape the hold of police resulting in him being taken to the ground. Further, SC Klippert did not describe BK being handcuffed at that time and instead described him as thrashing his arms about. There were thus significant aspects of SC Klippert’s account that did not accord either with the evidence of others, or with what was found to have occurred, which made the omission of evidence from any of the other police officers who were apparently present all the more meaningful.
I agree with Adamson JA that, by reason of this error, the appeal should be allowed.
In my view, however, the appropriate consequence of this error is that there should be a retrial to enable the issue of what occurred in the period between BK leaving Mr Dodic’s unit and him being put in the police caged vehicle to be determined giving due regard to the rule in Jones v Dunkel as explained above.
In the course of the retrial, it will be necessary for the trial judge to consider whether or not the facts as found are consistent with BK’s pleaded case as to the alleged battery by the police officers. In this regard, one key question is whether the mechanism by which BK was brought to the ground by police, as pleaded in his amended statement of claim at [22], has been proved. The trial judge does not appear to have made any determination as to this, save for her conclusion that she was “not satisfied to the requisite standard that he was “speared” into the ground” (at [215]). On its face, it is far from clear that this was a finding which responded appropriately to BK’s pleaded case, as elaborated upon in his submissions below.
As to this, it should be observed that BK’s oral evidence was broadly consistent with his pleaded case, in that he explained that “I just felt my feet come up from underneath me and then just slammed on my face”, and that the police “dumped me onto my face”. BK’s written closing submission at trial referred to him being dunked and slammed into the ground and, consistent with this, his counsel’s closing oral submission was that he was “lifted up by police and he was dunked and slammed head first into the ground”. That need not involve “spearing”.
If, for example, the judge retrying the case was satisfied that the police manoeuvre involved BK being lifted upwards by police with his face or shoulder then hitting the ground first without his fall being broken by police (noting he was in handcuffs), that may suffice for BK to have met the onus of proving the facts upon which his allegation of battery rests. If so, it would then be necessary for the judge on retrial to determine whether the respondent could meet its onus of establishing a defence. As is clear from her judgment at [213], that is something that the trial judge declined to consider.
I agree with Adamson JA that BK’s claim in trespass does not turn upon whether or not he can show that he was also punched by police officers. BK’s claim in trespass, as pleaded and as amplified at trial, involved the manoeuvre by which he was taken to the ground and being punched, each of which was capable of amounting to a trespass. Proof of either would suffice for BK to succeed in his claim in battery, subject to whether the respondent establishes a defence.
Unlike Adamson JA, on the material before the Court I am not satisfied that I can properly reach a reliable conclusion either way as to whether BK has proved his claim in battery. As Adamson JA observes, SC Klippert described what occurred to BK as “a controlled takedown of [BK] to the ground”. That may or may not involve the battery alleged by BK. That requires some assessment both of the credibility and reliability of BK’s account of what occurred and of the remainder of the evidence, including the evidence of SC Klippert. It also requires an assessment of what the manoeuvre performed by SC Klippert actually entailed and how it was that BK was taken to the ground. Moreover, as Adamson JA also observes, an unidentified police officer appears to have told the ambulance officers that BK fell when he absconded during the arrest. If the Court were satisfied that that is what occurred, then that would not involve a battery as alleged by BK in these proceedings.
Further, on the material before the Court, I am unable to reach a reliable conclusion as to whether BK’s claim that he was punched by police officers has been made out. Again, that requires an assessment of the credibility and reliability of BK’s evidence. The transcript and other evidence before me do not permit me to make that assessment.
Unlike Adamson JA, I am not satisfied that the trial judge erred as alleged in ground 4. This is because it is not clear what her Honour was addressing in her judgment at [214], where she said that she was not satisfied that “unreasonable force was used to subdue” BK. Her Honour does not appear there to be considering the question whether a defence had been established to the tort of battery, as it is only after making this finding that she addresses the question of liability in battery. Thus, it seems that at [214] her Honour was considering a separate, unpleaded, issue, being whether unreasonable force was used in BK’s arrest.
In light of my conclusions as set out above, I propose the following orders:
Extend the time for filing the summons for leave to appeal to 18 June 2025.
Grant leave to appeal.
Allow the appeal.
Set aside the orders of Olsson SC DCJ made on 10 March 2025.
Remit the matter to the District Court of New South Wales for retrial.
Order the respondent to pay the appellant’s costs of the appeal.