Cash v State of New South Wales

Cases Cited: A v New South Wales (2007) 230 CLR 500; (2007) 233 ALR 584; (2007) 81 ALJR 763; [2007] HCA 10
BK v State of New South Wales [2026] NSWCA 6
Croucher v Cachia [2016] NSWCA 132
George v Rockett [1990] HCA 256; (1990) 170 CLR 104
Husher v Husher (1999) 197 CLR 138; [1999] HCA 47
Hyder v Commonwealth of Australia [2012] NSWCA 336
Jankovic v Director of Public Prosecutions [2020] NSWCA 31
Jones v Dunkel (1959) 101 CLR 298
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLA 361; [2011] HCA 11
Ling v Pang [2023] NSWCA 112
Mason v Demasi [2009] NSWCA 227
MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657; [1991] HCA 3
McIntosh v Webster (1980) 43 FLR 112
Mitchell v John Heine & Son Ltd (1938) 38 SR (NSW) 466
New South Wales v Robinson [2019] HCA 46
Seltsam Pty Limited v Ghaleb [2005] NSWCA 208
State of New South Wales v Bouffler [2017] NSWCA 185
State of New South Wales v Cuthbertson [2018] NSWCA 320
State of New South Wales v Dennis [2025] NSWCA 118
State of New South Wales v Randall [2017] NSWCA 88

Category: Principal judgment

Parties: Plaintiff: Rodney Cash
Defendant: State of New South Wales

Representation: Counsel:
Plaintiff: Mr P E Blacket SC / Ms C R Goodhand
Defendant: Mr M J Gollan / Mr J M Kadar
Solicitors:
Plaintiff: O’Brien Criminal & Civil Solicitors
Defendant: Norton Rose Fulbright Australia

File Number(s): 2023/00419914

Publication restriction: None

Judgment

INTRODUCTION

1. On 19 November 2020, the plaintiff was arrested at his home in Edmondson Park. Arising out of that arrest, the plaintiff was subsequently charged with, prosecuted for, and ultimately acquitted of various offences under the Crimes Act 1900 (NSW).

2. In these proceedings, the plaintiff seeks damages from the defendant, the State of New South Wales, on the basis that it is vicariously liable for torts allegedly committed by members of the New South Wales Police Force in association with his arrest and prosecution. His claims lie in assault, battery, false imprisonment and malicious prosecution. The plaintiff seeks general damages, damages for loss resulting from personal injury, as well as aggravated and exemplary damages.

3. Both liability and quantum are in dispute.

LIABILITY

4. The defendant accepts that the police officers involved in the events in question were deemed to be persons in the service of the Crown pursuant to s 6 of the Law Reform (Vicarious Liability) Act 1983 (NSW) and that it is vicariously liable for tortious acts on their part. However, the defendant denies the officers’ conduct gives rise to any liability in the circumstances.

5. The liability dispute between the parties engages a raft of issues. The determination of that dispute is heavily dependent on the resolution of a factual contest as to the circumstances surrounding the plaintiff’s arrest which took place in the ensuite bathroom to the master bedroom of the plaintiff’s home (the bathroom). Accordingly, before engaging with the issues thrown up for consideration on the question of liability, it is necessary to review the evidence in some detail and make findings in relation to the circumstances of the plaintiff’s arrest. In doing so it is useful, in the first instance, to outline the accounts of the witnesses who gave evidence at the trial relevant to the liability issues. The reliability of those accounts can then be considered in light of the cross-examination and other evidence touching on the matters in contest.

Circumstances of the Plaintiff’s Arrest

The Plaintiff’s Evidence in Chief

6. At the time of the events in question, the plaintiff was living with his wife, Rupa Rawal, at their home in Edmondson Park. They had been married since 2009.

7. For some years, the plaintiff and his wife had been operating a business selling mobile phones through a Vodafone franchise from premises at Minto.

8. Prior to the events in question, the plaintiff had some mental health issues and had been admitted to hospital on a number of occasions for alcohol-related issues.

9. The plaintiff described working seven days a week in the business. He said this would take its toll on him and, every now and then, he would need to have a couple of days off to ‘reset’. He said, ‘I would just smash myself, work non-stop, and then I would have a few days off, just get drunk, then reset, and then go and start a seven days a week process again’ (T:34.20).

10. The plaintiff gave evidence that on the night before the incident the subject of these proceedings, he and his wife had argued, although he could not recall the details of that argument. The plaintiff believed at that time he was having a ‘reset’ and had been drinking for some days.

11. The plaintiff said following their argument his wife slept in another room and he slept in the master bedroom. He said the following morning:

She wanted me to go to work, I think. And she started-she was arguing with me about something and it was getting quite heated. And so I closed-so I went inside the bedroom and I closed the door and locked it to remove myself from the situation (T:36.25)

12. The plaintiff described how his wife then started banging on the door.

She was just shouting something, something, and that I opened the door to tell and to tell her-I was asking her to please, like, to just leave it, just stop. Don't fight with me. And then I opened the door to say it again and she tried to push past me to go inside the room and because I was basically in the door and so she tried to push past me and I pushed her back – (T:36.45)

13. According to the plaintiff, after he pushed his wife back out the door, he closed the door behind her and locked it again. He said his wife was shouting and yelling and he believed she called the police after he pushed her. He gave the following account:

I don't remember exactly what she said but I knew she was calling the police to come and so whatever. Right? And then I was just laying in the bedroom and then-then she calmed down, I guess, because that's when then she-she came back to the door and talked nicely to me, or like normally. And then she told me that she called the police and asked them not to come again and we just had a normal conversation and she said “I want to go” - and so I opened the door. We - and it was fine. She said the called the police and said they don't need to worry about coming. I'm not - like, I wasn't even – I wasn't worried before because nothing happened and then so I laid back down and she went and had a shower. (T:37.15-37.25)

14. The plaintiff gave evidence that his wife was in the bathroom having a shower for 10 or maybe 15 minutes. He was laying on the bed at that stage, dressed in a red T-shirt and his underpants. He recalled, when his wife was in the shower, he heard a car pulling up outside and some radio chatter. He said he opened the blind and could see it was the police. He said he yelled out to his wife saying, ‘The police are here, can you talk to them and get rid of them’ (T:37.50-38.05).

15. However, the plaintiff said he knew his wife would not have heard him because the bathroom door was closed and the shower was running.

16. The plaintiff said he then heard and saw the police in his house. Following this, he went into the bathroom, got a towel off the rack, opened the door to the shower and gave his wife the towel. He said to his wife, ‘The police are here, can you please talk to them’ (T:43.45). His wife turned the shower off and put the towel on while the plaintiff held the shower door open for her.

17. The plaintiff provided a description, supplemented by photographs, as to the configuration of the bathroom, which the evidence in due course established is about 3 metres deep by about 2 metres wide. Relevantly, for the purpose of understanding the description of the events in question, the layout of the bathroom included the following:

18. On the back wall of the bathroom is a shower recess set within an alcove not quite as wide as the bathroom. The back and side walls of the shower recess are tiled. Along the front of the shower recess is a shower screen made up of two glass panels which are approximately the same size. The right glass panel is fixed. The left glass panel is also the door into the shower recess. It is hinged onto the fixed panel and opens out into the bathroom swinging from left to right.

19. The showerhead is mounted on the right wall of the shower recess behind the fixed glass panel.

20. On the left wall of the bathroom in front of the shower recess is a towel rail.

21. On the right wall of the bathroom near the shower recess is a toilet which extends slightly across the right side of the shower screen.

22. The plaintiff said he was standing to the right of the shower recess, holding the shower door open with his right hand, with the toilet next to him to his right. He said the open shower door extended about 60cm into the bathroom. He was oriented towards the entry to the bathroom when he gave his wife the towel. He then moved to the (right) side towards the toilet to let his wife out of the shower. He said at this point he was looking towards the entry to the bathroom.

23. The plaintiff described seeing two police officers running into the bathroom. He said to them ‘Please don’t do this’, however, on his account, they grabbed him and threw him onto the floor and ‘…then they choked me unconscious’ (T:44.02). The plaintiff said his wife was still inside the shower recess when this happened, but she then ran out of the bathroom. The plaintiff gave evidence that when the police were choking him, his wife told them, from outside the bathroom, to leave him alone.

24. The plaintiff said he did not resist the police in any way but was nonetheless thrown to the ground, landing on his forearm which he says was bruised as a result. Photographs were tendered establishing that the plaintiff was subsequently showing signs of bruising, particularly to the forearms, along with some superficial broken skin.

25. The plaintiff said his next recollection, after being choked unconscious, is sitting outside his house still wearing his T-shirt and underwear with handcuffs on. He had no recollection of how he got downstairs.

26. The plaintiff gave evidence that he was then marched to a police van still wearing only his underpants and T-shirt. He said his wife gave the police a pair of pants, however, they were not provided to him until he got to the Liverpool Police Station. The plaintiff said he was placed into holding cells at the police station. Eventually he was charged and released.

27. The plaintiff described the whole experience as hard to comprehend. He said it was extremely demeaning and exacerbated by the fact that he was charged for crimes he had not committed.

The Evidence in Chief of the Police Officers

24. The defendant called three police officers who attended the plaintiff’s house on the morning in question. They were Senior Constables McCully, and Gordon, who were the arresting officers, and Constable Hobbs, who later attended the scene and was involved in transporting the plaintiff to Liverpool Police Station where he was charged and released on bail. The evidence of the police officers is most conveniently dealt with in summary form. For convenience and with no disrespect, I will simply refer to each officer by their surname.

Senior Constable McCully

25. McCully’s evidence in chief can be summarised as follows:

26. On the morning in question, he and Gordon were patrolling in a police vehicle, which he was driving. At some stage during the morning, there was a call on the police radio (VKG) in relation to a domestic incident at Edmondson Park.

27. He described how jobs are broadcast over the police radio and also appear on the CAD system, which is a computer screen, something like a laptop, attached to the car.

28. On average, he might generally attend five or six domestic violence calls in a 12-hour shift.

29. Calls over the police radio were prioritised. First priority calls are those where police require urgent assistance. The second level of priority is a situation where a violent incident or a break and enter is in progress. The third level of priority is every other routine job which comes through triple 0. The fourth and least urgent category of calls are ‘admin jobs’.

30. The domestic violence call received in the present case was a level 3 priority.

31. Subsequently, another call was received from VKG in relation to the same location at Edmondson Park advising that the victim had said she didn't want to see police. As he recalled it, this was about half an hour after the first call.

32. There are standard operating procedures in place in relation to domestic violence allegations. Specifically, once a domestic violence call has been received, police must attend the location to speak to the victim even if the complaint is subsequently cancelled. This is because police cannot be sure the cancellation was not made under duress. In his experience, it happens a lot that people call back indicating police are no longer required. He had experienced occasions when police had been required to intervene even though the initial call had been cancelled.

33. He was taken to and acknowledged the documentary record of the CAD entries for that day which included an entry at 7:49am indicating that a call had been made to police, the details of which were that the informant’s husband had just hit the informant, the person of interest was upstairs, there were no firearms, there were children on the balcony, there were no apprehended violence orders, an ambulance had been declined and the informant was crying too much to get any further information. At 8:26am, the informant had stated she no longer wanted to see police, she had to leave and said the police could contact her if she was not at home when they attended. Otherwise, the records showed that the officers arrived around 9:15am.

34. Gordon had tried to call the plaintiff’s wife while en route but had not been able to make contact with her.

35. When they arrived at the scene, he looked up at the balcony because he had been told there were children on the balcony, but no one was there. Gordon then knocked on the front door, which swung open. This was uncommon and he was very concerned. Specifically, he thought the victim may have been incapacitated and had left the door open, or she might have run from the house, or could have been in some sort of duress. In his policing experience, he had only encountered a front door being open on a handful of occasions.

36. His concerns were heightened by the fact that the plaintiff's wife had not answered the telephone call made by Gordon. He said when he and Gordon entered the premises they called out ‘Police! Police! Police!’. This was to let people know they were on the premises and was also for the officers’ protection.

37. As they entered the premises, he saw holes in the lower part of one of the internal doors which he considered looked like something violent had occurred. The hole was at a height which was consistent with a kick.

38. He and Gordon continued to call out ‘Police! Police!’ and look in each room on the ground floor. However, they could not locate anyone, nor hear anything. He then heard ‘loud, thumping noises that I thought were footsteps upstairs’ (T 353.35). He didn't think the noises sounded like somebody was running towards them, but rather that they were running to hurt someone else.

39. On hearing the noises, he started running up the stairs because he thought the victim was going to get assaulted again. This perception was because ‘no- one was coming to the-talk to us, there was no-one saying, yeah, I'm coming down or anything, I didn't hear any of that. I thought someone was going to get assaulted’ (T:354.35).

40. In his policing experience, he had encountered people who had not responded to police calls because they were trying to hide or get away, or were going to assault someone.

41. Gordon followed him upstairs. When he got upstairs, he caught a glimpse of someone running into the ensuite of the main bedroom. This led him to run as fast as he could into the ensuite with Gordon following him. When he got to the bathroom, he saw the plaintiff opening the shower door with his right-hand. The plaintiff's wife was in the shower.

42. He thought the plaintiff was trying to get into the shower to assault his wife, so he moved behind the plaintiff and grabbed the plaintiff’s right hand to prevent him getting into the shower. Gordon grabbed the plaintiff's left hand. He recalled as he was running up the stairs he heard the plaintiff saying, ‘Get the fuckin police out of here’ (T:357.05). He thought he also heard the plaintiff say those words again as he was entering the bathroom.

43. He told the plaintiff to let go of the shower screen, but the plaintiff just held on tighter. He told the plaintiff to get on the ground and let go of the screen, but the plaintiff did not let go. Gordon was still holding the plaintiff’s left hand, and he believed the plaintiff was struggling, because a moment later Gordon said he thought his finger was broken. The plaintiff was still standing at this point and was tensing. He believed the plaintiff said something along the lines of “I didn't assault my wife” (T: 358.07).

44. When he was told that Gordon thought he had broken his finger, McCully changed his grip and placed the plaintiff into what is known as a “harness” position which involved him standing behind the plaintiff, placing his left hand over the plaintiff's left shoulder, his right hand under the plaintiff's right armpit and then linking his hands and taking the plaintiff to the ground. He said Gordon was still holding the plaintiff's left hand at this stage.

45. He made the decision to use the harness manoeuvre because after Gordon’s injury he thought he was then the only one in the fight and it was necessary to do something because he considered there was a risk of violence to him.

46. He formed the view there was a risk of violence because the original radio message said the plaintiff's wife had been assaulted, there were holes in the wall and there had obviously been violence in that house leading him to think there could be more violence. Additionally, the plaintiff had not done anything he was asked to do, namely let go of the screen and get on the ground. The plaintiff was also tensing up.

47. With the risk that he and Gordon may be assaulted, he did not think it was safe to let the plaintiff go. He believed the best thing to do was to control the plaintiff's hands.

48. It was his intention to control the plaintiff by handcuffing him once he had been taken to the ground, which is what he and Gordon did.

49. Once secured the plaintiff was told he was under arrest for assaulting his wife. The plaintiff complained he did not do it or something along those lines. They then called for another car to come and assist.

50. He and Gordon moved the plaintiff onto his side into the recovery position to enable him to breathe better. He then knelt down next to the plaintiff and waited for more police to arrive after which they stood the plaintiff up and walked him out of the house.

51. The purpose of sitting with the plaintiff until more police arrived was to prevent the plaintiff from assaulting his wife and to maintain control of him.

52. What is known as a DVEC (Domestic Violence Evidence in Chief) was then conducted with the plaintiff's wife. A DVEC is a recorded statement taken by police from victims of domestic violence.

53. He believed the plaintiff had assaulted his wife and that was the basis for the arrest. He considered it was necessary to arrest the plaintiff because of the nature and seriousness of the offence. He said, “All domestic violence is serious, and it was also protection of the-any person being victim in this case” (T:363.05).

Senior Constable Gordon

26. Gordon’s evidence can be summarised as follows:

27. He made at least two phone calls to the plaintiff's wife whilst en route to the house and neither of those calls were answered.

28. This raised his concern for the plaintiff's wife as he was unable to obtain further information or clarify the position. He was worried for her welfare and that of the children he believed were present. His concern was increased when they arrived at the scene and he could see no children on the balcony.

29. He knocked on the door once and there was no response, so he knocked a second time and the door opened. This also increased his concerns.

30. When the door was open he yelled out “Police” loudly at least twice and there was no response. The original CAD message was that a woman was being assaulted by her husband, there were children at the address, that the person of interest was still at the location, and that the victim was crying too much to provide further information. This all operated on his mind when combined with there being no children on the balcony, the victim not answering her phone calls and the front door being unlatched.

31. When he entered the property, he again yelled out “Police” and “Hello”. Again, there was no reply. His intention was to make it clear to anyone in the house that they were the police and not someone breaking in. He also did so for his own safety.

32. When he entered the house, he observed a door with a hole in it at a height that was consistent with someone kicking it and this raised concerns that the damage was the product of either aggression or violence.

33. He then heard a sound from upstairs like a running sound and then he heard a male yelling out, “You get the fucking police out of here now” (T:516.30).

34. He then saw McCully run towards the staircase and he followed him. He believed the male voice he heard from upstairs was from someone who was moving and was directed at the victim.

35. He ran up the stairs and, based on all the information he had before him, he believed there was an incident occurring that needed intervention and a quick response.

36. When he got to the top of the stairs, he saw there was a large hole in the door to the main bedroom. He walked into the bedroom and, as he stepped into the room, he saw another door which led into the ensuite which had three holes in it. At this stage, he couldn't see anyone but he could hear a female yelling as he stepped into the bedroom. He could not recall what she was yelling.

37. He followed McCully into the ensuite and described what he saw as follows (T:517.35-517.50):

A. Yes. When I walked into the ensuite after Senior Constable McCully, I observed a female I now know who to be the victim, Rupa Rawal, she was in the shower, and I observed Mr Cash standing at the shower door. He had his right hand on the handle of the shower door, and his left hand was normally just beside his body.

Q. What did he appear to be doing?

A. Opening the shower door.

Q. Had that completed before you got to him?

A. No, it was in motion.

(T:517.35-517.50)

12. With his right hand he took hold of the plaintiff’s left hand. At that stage, McCully had taken hold of the plaintiff's right hand.
13. At that time, he believed the plaintiff had committed an offence, namely, assaulting his wife. He placed his hands on the plaintiff “in order to commence legal proceedings for that offence of assault” (T:519.48).
14. He later elaborated on this to say he felt there were reasonable grounds to believe the plaintiff had committed an offence and he believed it was necessary to arrest him to prevent him from repeating the offence or committing another offence. He believed it was a serious enough offence that it was necessary to commence legal proceedings and have bail conditions in place for the victim’s protection, including the issue of an apprehended violence order.
15. He had concerns for the victim because he believed she had been assaulted and that the plaintiff was going to assault her again. His reason for having formed that view was a combination of the information received on the CAD message, hearing the plaintiff yelling, hearing the plaintiff's wife yell and, on entering the ensuite, seeing the plaintiff opening the shower door. All of this, he said, led him to conclude the plaintiff was going to assault his wife. It was in those circumstances that he took hold of the plaintiff.
16. As he and McCully took hold of the plaintiff, the plaintiff's wife ran past them out of the shower. He heard McCully tell the plaintiff to let go of the shower frame. McCully was standing closest to the shower door, and he was standing on the other side of plaintiff.
17. The plaintiff complained he had not done anything after McCully had asked him to let go of the shower door. The plaintiff also said he wasn’t going to hurt his wife.
18. As he was holding the plaintiff's left wrist with his right hand, he was also holding the plaintiff's bicep with his left hand with the intention of controlling the plaintiff. He explained:

I believed he'd already committed an offence. He was much bigger than myself and Senior Constable McCully. He hadn't complied with the directions from Senior Constable McCully to let go of the shower, and I believed for my safety and my partner's safety that that's what was required to do in those tight ‑ in the circumstances (T:522.35).

19. The plaintiff's wife was naked in the shower and was naked when she ran past them. The plaintiff resisted the police officers in the sense that he was pulling backwards and forwards. At one point the plaintiff pulled his hand towards the front of his body and twisted his hand to the left side which caused Gordon excruciating pain in his right hand and led him to say “You just broke my fucking - I think he just broke my fucking finger” (T:523.35).
20. After his hand was injured, his concern for his safety and that of McCully was heightened because, having injured his right hand, there was the potential for the plaintiff to grab his firearm and he would have difficulty resisting that because of his injury. He felt this increased his disadvantage when added to the physical size of the plaintiff.
21. McCully demanded the plaintiff get on the ground, however, the plaintiff did not comply. Gordon then also told the plaintiff to get on the ground. At that time, he was holding the plaintiff’s left hand with his left hand and he had his right hand placed on the plaintiff's back. He and McCully then took the plaintiff to the ground. He was holding the plaintiff’s left hand/forearm at that stage. He did not observe how McCully had hold of the plaintiff.
22. The plaintiff was handcuffed on the ground by McCully. Once the plaintiff was on the ground and handcuffed, they rolled him onto his side into the recovery position.
23. The plaintiff remained in the bathroom with he and McCully until additional police arrived which, according to records Gordon acknowledged, was about 12 minutes after the plaintiff had been arrested. During that time, the plaintiff was under control and he did not consider it was appropriate to move the plaintiff from that location and risk another physical altercation. He was waiting for backup to assist in moving the plaintiff.
24. After additional Police arrived, the plaintiff was taken into custody and transported to the police station in a caged vehicle. He and McCully then conducted the DVEC interview with the plaintiff’s wife. Following that, he took some photographs of damage to the doors of the property and subsequently returned to Liverpool Police Station with McCully to drop off the DVEC.
25. He then went to Liverpool Hospital to have his injured hand attended to. That injury eventually came to surgery, and he was off work until cleared for full duties on 16 February 2021.
26. After coming back to work in February, he prepared a statement for the purposes of the prosecution proceedings of the plaintiff. For that purpose, he had access to McCully’s statement to refresh his mind about the incident. His statement was witnessed by McCully, but McCully had no other involvement in the preparation of that statement.
27. He had nothing to do with the prosecution of the Local Court proceedings against the plaintiff.

Constable Hobbs

27. Hobbs was a police constable at the time of the events in question. Before becoming a police officer she had been a nurse. She is now a paramedic. In summary, her account of her involvement in this matter was as follows:

28. On the day in question, she was called out to the plaintiff’s house. When she arrived, she walked up the stairs, having received a radio call that the attending police were upstairs in the main bedroom.

29. She saw McCully and Gordon restraining the plaintiff on the floor in the ensuite. She was unable to recall whether the plaintiff was handcuffed at that point.

30. The plaintiff was assisted up and was set on the end of the bed in the bedroom. His wife got some pants for the plaintiff which he put on, and she and McCully escorted the plaintiff down to the caged police vehicle. The plaintiff was then conveyed back to Liverpool Police Station.

31. The plaintiff was quite compliant although she could not recall the specifics of any conversation she had with him. The plaintiff was taken to Liverpool Police Station by her and Senior Constable Sisouvath.

32. When she dealt with the plaintiff at the scene, he was conscious and was able to walk down the stairs without assistance. There was nothing about the plaintiff’s presentation which led her to believe it was necessary to call for an ambulance.

33. At the police station, she attended to the paperwork. She would have applied for the AVO and would have introduced the plaintiff to the custody manager at the station. She recalled that McCully came back to the station and dropped off the DVEC. As she recalled it, the plaintiff was charged with resist arrest, hinder police and common assault.

34. Subsequent to the events in question, she was posted to Wagga, at which point she handed the case over to McCully. Other than providing a statement she had nothing further to do with the plaintiff's case.

The Evidence Tested

28. As the above outline demonstrates, there were a number of areas of dispute between the plaintiff’s version of events and the versions given by McCully and Gordon. It is neither practical nor helpful to deal with every discrepancy, inconsistency or uncertainty exposed when the evidence was tested, be it in cross-examination or when compared and contrasted with other evidence. As is often the case in factual disputes, some matters of difference are of little or no relevance to determining which accounts are the more reliable. Rather, the discussion which follows focuses on what I consider to be the significant aspects of the evidence impacting on how I have resolved the factual contest.

Allegations of Collusion Between McCully and Gordon

29. The plaintiff raises a question as to the reliability of the evidence given by McCully and Gordon and argues there was a degree of symmetry in their evidence, from which it will be inferred there was collusion between them.

30. On this issue, the evidence establishes that about a week after the events in question, McCully prepared a statement dated 26 November 2020, which, at Gordon’s request, McCully provided to Gordon on 20 December 2020.

31. On 26 March 2021, Gordon completed preparation of his statement for use in the prosecution of the plaintiff. That statement was witnessed by McCully.

32. McCully was asked in cross-examination whether his statement was provided to Gordon so they could get their stories straight. He rejected that proposition and said the statement was provided to Gordon to enable Gordon to refresh his memory. In support of that justification, he said Gordon had been off work for months and he was assisting him with his memory of the incident. According to McCully, there were no police directives against sharing information in this way, and it was common practice for police to exchange statements.

33. In fact, the extract from the NSW Police Handbook tendered by the plaintiff discourages and cautions against police officers accessing statements of other officers to prepare their own statement.

34. Gordon gave similar evidence that he had been off work for some months and, in those circumstances, given the time that had passed, he said he requested McCully’s statement to refresh his memory about the events in question. He said this was predominantly to assist with minor details, such as the relevant address, whereas he said he had a memory of the incident. He was challenged as to why he would need McCully’s statement for formal details when it was contained in police records such as the COPS report. Gordon said he did not want to access those records given he was a victim who had been injured in the incident.

35. Even if that reason is plausible, and I am not convinced it is, Gordon’s evidence on this point was inconsistent with evidence establishing that he did in fact access police records of the incident on a number of occasions in December 2020 and again in March 2021.

36. The evidence of both McCully and Gordon that Gordon needed assistance with his statement because he had been off work for months, is contrary to the evidence that Gordon was back at work in December 2020 and was provided with McCully’s statement on 20 December 2020.

37. When it was pointed out to Gordon in cross-examination that it was only a month after the incident that he requested the statement from McCully, his evidence pivoted somewhat to suggest that, at least in part, his memory needed refreshing because he had been through a traumatic incident.

38. Ultimately, Gordon gave evidence that, although he was not familiar with the provisions in the Police Handbook cautioning against accessing statements of other officers, it was a silly decision to request McCully’s statement.

39. I accept that McCully sharing his statement with Gordon undermines confidence in the reliability of their accounts. This is not necessarily on the basis of dishonesty, but also because of the potential for memory being tainted or influenced when one witness provides an account after access to the statement of another witness. As the Police Handbook reflects, it is ill advised for witnesses to collaborate.

40. Additionally, the reliability of evidence given by the officers as to how and why Gordon accessed McCully’s statement is questionable and must be borne in mind when considering their evidence generally.

41. Nonetheless, allegations of collusion aside, it is to be expected there would legitimately be similarity in the evidence of the two officers as to the events they witnessed. Indeed, that similarity could be seen as a measure of reliability. Accordingly, the misgivings to which I have referred do not lead me to reject the account given by the police officers but warrant a degree of caution when considering their evidence and the question of whether the corroboration they provide of each other’s account is reliable.

The Reliability of McCully’s Memory

42. Otherwise, the plaintiff questions the reliability of McCully’s evidence generally, given a concession made in cross-examination that, apart from his statement, he had no independent recollection of what happened (T: 376.20). However, it is to be kept in mind that answer was given in the context of the proposition put to McCully that his recollection of events was better at the time he gave evidence in the Local Court prosecution of the plaintiff 5 years earlier. This was a proposition McCully freely accepted. I did not, however, take McCully to be saying he was effectively amnesic of anything that was not in his statement. Indeed, his evidence made clear that he had a recall of the relevant events. Rather, in understanding the way the evidence and questioning unfolded, I took McCully to effectively be saying his statement provided the contemporaneous factual foundation for his recollection and he deferred to it as an accurate account of the events in question.

Attacks on Gordon’s Credit

43. Gordon gave evidence in cross examination that he had not heard the second VKG call nor read the second CAD message advising that the plaintiff’s wife had called to say police were no longer required. He denied being aware of the possibility that the plaintiff’s wife would not be at the property when they arrived. He denied being aware that the urgency of the situation had abated.

44. The plaintiff submitted that this aspect of Gordon’s evidence was unbelievable. It is said that McCully, as driver, had acknowledged he was aware of the second message, so that Gordon as passenger must have been aware, given that the message was broadcast and also displayed on the CAD screen which was angled toward Gordon.

45. Gordon explained in his evidence that in some instances subsequent calls for the same job are merged on the CAD screen, so that the original job remains on the screen and it is necessary to go into another tab on the screen to see subsequent messages. He said it was only the original message he read. He denied that McCully had said anything to him about the second call.

46. McCully also gave evidence that the CAD calls merge. He said he believed the original CAD message was probably read to him by Gordon.

47. In his original statement Gordon gave an account which included the terms of the original call for this incident which was broadcast over the police radio. He describes making several phone calls to the plaintiff’s wife while they were on the way but says nothing about a second VKG call or second CAD message.

48. McCully’s original statement on the other hand speaks of hearing the original call on the police radio then later hearing the second broadcast saying the victim no longer wished to see police.

49. As the plaintiff pointed out in submissions, the log records which were tendered make it clear that Gordon’s original statement in fact details the words of the first CAD message as the information provided in the first VKG broadcast. Those records demonstrate that first radio broadcast was in similar but less detailed terms than the CAD message.

50. In unpacking all of this, it seems to me the evidence that CAD messages merge explains why Gordon may not have seen the second CAD message. I accept that is a plausible explanation. I accept however that it is difficult to see how Gordon did not hear the second broadcast. Nonetheless, there is his evidence that he tried to call the plaintiff’s wife at least two times, without response. It is possible then that Gordon may not have heard the second VKG call because he was ringing the wife at that time or was otherwise distracted.

51. It seems to me inescapable that Gordon accessed the CAD log records and transcribed the contents of the first CAD message as reflecting the contents of the first VKG call. However, not much turns on that. There is after all no dispute that Gordon both heard the first VKG broadcast and saw the first CAD message. His statement makes it clear, and does not seek to disguise the fact, that he was importing the contents of records when relating the contents of the broadcast. The fact that he misquoted the source of the information he undoubtedly had does not undermine his evidence as to matters within his knowledge when he arrived at the plaintiff’s home. Nonetheless it shows that Gordon’s recollection of the details of what was said in the VKG broadcast is unreliable and that must be borne in mind when considering his recollection generally.

52. Otherwise, the fact that McCully and Gordon gave different accounts of whether there was a second VKG broadcast arguably lies contrary to the plaintiff’s submission that they have colluded to give uniform accounts of the events of that morning.

53. In all the circumstances Gordon’s evidence that he did not hear the second VKG broadcast gives pause for thought and whilst I do not accept the plaintiff’s urging that his evidence on this point was necessarily untruthful, it is a factor I bear in mind when considering his evidence generally in the analysis which follows.

54. In a similar vein is the plaintiff’s attack on Gordon’s evidence that the plaintiff ran out of the bathroom naked. The plaintiff says that is contrary to his evidence, the evidence of his wife and is questionable in light of McCully’s evidence.

55. Gordon so far as the evidence discloses has at all times maintained that the plaintiff’s wife ran out of the bathroom naked or qualified that to be his recollection. McCully when tested on this point before me said the plaintiff’s wife was naked in the shower when the officers entered the bathroom. He said he did not remember if she was naked when she ran out of the bathroom. He said it was possible when the plaintiff’s wife ran out of the shower she had a towel wrapped around her.

56. McCully said his concentration was not on the plaintiff’s wife when she ran out. That is plausible in the circumstances.

57. The evidence of the plaintiff’s wife on this issue is to be found in an email which will be discussed in more detail in the reasons which follow, as will be the fact that the plaintiff’s wife was not called to give evidence before me.

58. Whether and when the plaintiff’s wife was naked is part of the factual imbroglio which underlies the dispute between the parties. Irrespective of the way the contest on this aspect of dispute is resolved, I did not find Gordon’s evidence on this issue to reflect adversely on his credit. Rather I accept it to be his recollection of what on any view of it was a very dynamic situation occurring over a short space of time.

Analysing the Events Surrounding the Plaintiff’s Arrest

59. The events surrounding the plaintiff’s arrest fall broadly into two categories, namely the events which occurred before the plaintiff entered the bathroom and those which occurred after.

60. In cross-examination, the plaintiff confirmed he was lying on the bed when he first heard the police outside the house and yelled out to his wife from the bed.

61. In chief, the plaintiff had said after calling out to his wife he “then heard and saw the police in my house somehow” (T38.08). He explained the events which followed in these terms (T:43.30 – 44.05):

Q. So you told us that you're aware that the police had attended the premises, you called out to your wife; is that right?

A. Correct.

Q. And you called out from the bedroom; is that right?

A. From the bed.

Q. And then, you entered the bathroom--

A. The ensuite, the ensuite.

Q. And you passed your wife a towel, and what happened then?

A. As I was passing, I said, "The police are here, can you please talk to them", and at - at that - and then, she's put the towel on under - I saw the two officers running inside. Well, first one and then the second one - well, they were basically on each other's back, and I could see that what - what they were doing, they were running into the bathroom, so the only one thing you could imagine, and I said something to the line of, "Please don't do this", and then, they grabbed me. And then, they threw me on the floor.

62. The plaintiff confirmed in cross-examination that the first time he saw the police in his house was as they were walking up the stairs. Of this, he gave the following account in cross-examination (T:217.45 – 218.05):

Q. Well when was the first time that you saw the police in the house?

A. When they were walking up the stairs.

Q. And having seen them walking up the stairs, did you then decide to go and speak to your wife, rather than you speak to the police officers?

A. I spoke to the police officers first, and I said, "I've done nothing wrong, please go away". They did not respond; they haven't said anything yet. As I said that to them, as I was getting out of bed, then I walked over to the ensuite door, I opened the door, I walked inside, I grabbed the towel from the rack, I opened the shower door, I gave the, or started passing the shower to my wife. I said, "The police are here, can you please talk to them".

63. It was not put to the police officers in cross-examination that the plaintiff had spoken to them before he entered the bathroom. As noted earlier, the account given by McCully, corroborated by Gordon’s evidence, was that the plaintiff was disappearing into the bathroom as McCully got to the top of the stairs. The suggestion that the plaintiff spoke to the police before he went into the bathroom cannot be easily correlated with the timeline and a rational sequence of events. Although the plaintiff said nothing in chief of speaking to the police before entering the bathroom, it is to be observed that he did give a similar version in his evidence in the Local Court prosecution of the criminal charges brought against him.

64. On the plaintiff’s account, it appears the police said and did nothing when the plaintiff spoke to them as he walked from the bed into the bathroom.

65. In cross-examination, the plaintiff also said the police were not yelling out “Police, Police” as they entered the house and moved up the stairs. In fact, the plaintiff said the police were lying about this. As he put it, “They didn’t say a word” (T215.30). On the plaintiff’s account, the police were walking, not running up the stairs when he first saw them.

66. I consider it implausible to the point of being unbelievable that the police just walked up the stairs, not having announced themselves, ignored the plaintiff when he spoke to them as he got out of bed and proceeded to walk to the bathroom where someone was obviously in the shower, allowed the plaintiff to enter the bathroom, allowed him to get a towel off the rack and then open the shower door before then running into the bathroom and throwing him to the ground. On that account, the officers inexplicably ignored the plaintiff and the opportunity to address the domestic violence complaint they were responding to and allowed the potential risk to escalate. That makes no sense to me.

67. Approaching the fact-finding task with the need for caution in relation to the evidence of McCully and Gordon to which I have referred, I nonetheless accept the accounts of the officers that the plaintiff was entering the bathroom as they reached the top of the stairs.

68. In the circumstances, I am also satisfied that, from downstairs, the officers heard sounds of movement from upstairs, which is consistent with the plaintiff moving from the bed to the bathroom.

69. It is entirely understandable and I accept that the officers had a heightened level of concern leading them to run upstairs, given the nature of the complaint, the front door having been unlatched, the signs of damage to the property which were consistent with violence, and the sounds of movement upstairs. I do not accept the plaintiff’s account that the police were silent as they moved through the house. Rather, with no way of knowing what awaited them, I consider it highly likely that the police officers announced their presence as they entered the property and moved up the stairs.

70. As outlined earlier, both officers also gave an account that they heard the plaintiff call out words to his wife to the effect of, ‘Get the fucking police out of here’.

71. The plaintiff submitted that account was not put to the plaintiff and was unreliable in particular because it is not contained in the narrative prepared by Hobbs in support of the ADVO application. Rather, that narrative refers to the police hearing the plaintiff yell “The Police are here, talk to them and get rid of them”, which is consistent with the words the plaintiff said he used. As was pointed out in submissions, Hobbs in her evidence said she was careful to make sure the information she recorded was correct. She did not recall being told that the plaintiff had used the more aggressive words attributed to him by McCully and Gordon in their statements and in the evidence they gave before me. She agreed that if she had been given that account it would have indicated the plaintiff was potentially quite violent and she would have drawn it to the attention of her supervisor who was responsible for the application to issue an AVO.

72. The plaintiff argues the evidence of McCully and Gordon reflected a deliberate attempt to distort the picture and is further evidence of collusion to misrepresent evidence on their part.

73. It will be recalled the plaintiff said he called to his wife to talk to the police after he looked out the window and saw the police car outside. Whether the plaintiff did not call out until after the police had entered the house or whether he called out more than once, I consider the evidence of the officers that they heard the plaintiff calling out to his wife is likely to be true and is not just a coincidence with the fact that he did call out to her.

74. However, the evidence given by Hobbs makes it likely in my view that the officers did not give her the account of the swear words they say were used by the plaintiff. Why that was so is either because an abridged version was provided to Hobbs or because those words were not used by the plaintiff but were attributed to him either deliberately to make his words sound more aggressive than they were or, more benignly, because McCully was mistaken in his account and Gordon adopted it in his statement. In the circumstances, while I accept the police officers heard the plaintiff calling out to his wife, I am not satisfied he used the words ‘Get the fucking police out of here’. That conclusion does not necessarily carry an adverse credit finding on the part of the officers, but reinforces the need for a cautious approach to the evidence when determining questions of fact.

75. Otherwise, I observe that Gordon gave evidence that he heard a woman yelling as he entered the bathroom. This account is also contained in Gordon’s statement, but it is not referred to by McCully in his statement or his evidence before me. Again, this reflects a divergence in the accounts of the police officers which is inconsistent with the plaintiff’s arguments that they colluded. In the circumstances, while no doubt there was a highly charged environment during the arrest and its aftermath and there is evidence from the plaintiff that his wife was yelling at the police from outside the bathroom during the course of the arrest, I do not accept Gordon’s account that he heard the plaintiff’s wife yelling as he entered the bathroom is reliable.

76. I turn then to what happened after the plaintiff entered the bathroom which is obviously crucial evidence, in many ways going to the very heart of the case.

77. The difference in the accounts of what happened after the plaintiff entered the bathroom is stark. On the plaintiff’s case, he was violently set upon despite his pleas to the police that they do not do so and despite his lack of any resistance was choked unconscious. On the account of the police officers, the plaintiff was in a position of potential threat to his wife and actively resisted their attempts to have him let go of the shower door. This, they effectively say, left them with no choice but to take the plaintiff to the ground.

78. There is no objective evidence before me which would enable me to form a firm view as to which of these accounts is more reliable.

79. There is, however, something in the nature of objective evidence which, in my view, tends to favour the account given by McCully and Gordon. Here, I am referring to the fracture Gordon suffered to a bone in his hand which is consistent with the bone being subject to force. That is not to say the fracture could not have been a product of the force being applied by Gordon and McCully if, for example, Gordon got his hand into an awkward position. I have no medical evidence dealing with the mechanism of injury and so, in considering this issue, I do not purport to venture into areas requiring expert knowledge. Nonetheless, it seems to me the probability of Gordon fracturing his hand is greater in the scenario posited by he and McCully than the entirely passive scenario described by the plaintiff in his evidence. In submissions, it was accepted on behalf of the plaintiff that there was a struggle and resistance on his part although it was said this was to avoid being injured.

80. The evidence of the plaintiff that he was choked to unconsciousness while he submitted and pleaded with the police reflects a very violently targeted approach by the police.

81. The plaintiff’s evidence that he has no memory of the events after being choked until he was downstairs, on the face of it, might be seen as sitting uncomfortably with the evidence of Hobbs that he was conscious, lucid and able to walk downstairs without assistance. However, the evidence of the qualified psychiatrists, Dr Shaw and Dr Samuell, who gave joint evidence before me, establishes that this is a legitimate potential consequence given the plaintiff’s comorbid Bipolar condition.

82. In assessing the evidence for the purpose of making factual findings, it is not simply a weight of numbers exercise. Whilst Gordon and McCully generally corroborate each other, for the reasons I have explained and in the approach I have taken, their evidence must be treated with a degree of care in the circumstances.

83. Having said that the reliability of the plaintiff’s evidence is also open to question in light of my conclusions as to the unreliability of his account of his interaction with the police before entering the bathroom, discussed earlier.

The Plaintiff’s Wife

84. There can be no doubt, on the face of the evidence as it has unfolded, that the plaintiff’s wife had the potential to provide direct evidence bearing heavily on which of the respective accounts of events is true. However, as noted earlier, she was not called to give evidence before me.

85. The defendant did, however, tender the recording of the DVEC interview conducted by McCully immediately following the events in question, together with a transcript of that interview. This contained the following statement by the plaintiff’s wife:

So this morning I got up very stressed, and yes my husband was inside the main bedroom, locked himself. I was concerned for him as well, so I knocked on the door to find out what's going on and he started swearing. Then I knocked on the door again and I said okay, you know, just open the door, I need to go to work, I need to, like, you know, have my clothes, my stuff from there, plus my head was hurting, and I asked him for-like, I did say that, you know, my medicine is there as well, headache medicine, and then he just opened the door, and, um-he pushed me, and he did hit me on the head. At that time I did become very scared. I ran downstairs with my phone and I did call the police. And then the police didn't come-like, it was already, like, more than half an hour to forty minutes, so I calmed myself down, I went upstairs again, and I knocked on the door again, because I had to go to work and as you could see I was having my shower, because all my stuff is over there. So at that point when I said to him “I need to go to work”, that point, he did swear at me, but still opened the door. And I think the police was calling me, but I was in shower at that time, so I could not answer the call, and, uh-then-I-I did lock myself in the bathroom, my door was locked, but somehow he did-I don't know what happened, so instead of coming and opening the door, he went and opened the upstairs door, and he just told me that “can you please go and talk to police”. That's what he was saying, and by that time, police was in-in the room.

86. Otherwise, the defendant tendered an email sent by the plaintiff’s wife to McCully and Gordon dated 22 November 2020, a few days after the events in question. That email included the following:

As you mentioned in our interview/statement that took place on 19th November 2020 that I could call you back anytime if I wanted to add something to the statement.

After reflecting and thinking I do want to add and make it clear that after I re dialled 000 second time I was not scared and wanted to cancel the call for police not to waste their precious time on me.

As mentioned in the statement my husband Rodney Cash did open the door when I requested him second time and let me use the room and bathroom as I had to go to work.

Yes, police did ring me but as I was in the shower I did not hear the call and the next thing I heard was my husband opening the bathroom door and asking me to deal with the police as I had called them initially and ask them to leave (I had already advised him of this, hence his confusion), while approaching towards me and opening the shower door as I did not hear him properly because of the water running noise, by that time Police officers on duty felt that they sensed danger in that split moment, but there was none and grabbed him to perform their duty.

Even though the DVO states he resisted violently, from what I understand, at no point did Rodney attempt to injure either of you directly, he tried to remain standing holding the shower door asking to be left alone.

I was extremely confused and emotionally zoned out and ran out of the bathroom with my towel. I did request/scream from outside the room for the officers to leave Rodney but could not gather the courage to go to the bathroom where the incident was happening as I could not witness that.

I believe/heard what the two of you brought him to the ground, I believe he stated that he yielded.

As you witnessed during our discussion, I had no signs of injuries.

I do want to add that the bathroom situation was I misunderstanding as he was not violent to me in the bathroom. Rodney wanted may to quickly go to police and deescalate the situation but the scene looked otherwise resulting in what happened which I am currently stressed and remorseful about….

I did reflect on the whole situation and I withdraw all charges against my husband Rodney cash (27/05/1986) and request the DVO to be removed……….

I do sincerely apologise again and I thank both of you for performing your duty with the utmost of care, which was extremely commendable.

87. The evidence from the plaintiff’s wife contained in the DVEC and the above email is not comprehensive, has not been tested, and does not specifically address many of the areas of controversy.

88. True it is that, on the face of it, thanking the police officers for performing their duties ‘with the utmost care’ is not consistent with the police violently assaulting and choking the plaintiff as he alleges. However, it is possible that the plaintiff’s wife was trying to mollify the situation, rather than challenge the police, particularly with her husband facing charges.

89. It seems to me that there are parts of the communications from the plaintiff’s wife which might be enlisted to support the version advanced by each party. For example, in the above email the plaintiff’s wife talks of the plaintiff remaining standing and holding the shower door and the police sensing danger in a split moment and performing their duty with the utmost care, none of which fits the scenario on which the plaintiff’s case is premised. On the other hand, the plaintiff’s wife speaks of the plaintiff asking her to talk to the police, holding the door and asking the police to be left alone, which the plaintiff might enlist as corroborating aspects of his account. There is, in my view, little utility in attempting to infer what the plaintiff’s wife might say about things she hasn’t otherwise addressed in the material before me. To do so would necessarily involve a significant measure of speculation. Really, all that can be said I think is that the available communications from the plaintiff’s wife do not necessarily debunk either version of what happened in the bathroom.

90. Equally though, the DVEC and the email from the plaintiff’s wife highlight the fact that she is a potentially crucial witness who can be expected to shed light on what happened in the bathroom and the areas of factual dispute between the plaintiff and the police officers.

91. The submissions of both parties recognise the potential value of the evidence of the plaintiff’s wife and the scope for her absence to give rise to an adverse inference in accordance with the principles established in Jones v Dunkel (1959) 101 CLR 298 at 320. Each party contends the other had the obligation to call the plaintiff’s wife to give evidence in the circumstances.

92. The plaintiff argues it is necessary to bear in mind where the onus of proof lies when considering the application of any Jones v Dunkel inference. It is contended that once the plaintiff established the officers committed a battery, the onus shifted to the defendant to establish that the physical contact was without fault on the part of the officers. Accordingly, it is argued it was not for the plaintiff to call his wife but for the defendant to do so in order to rebut the prima facie position established by the plaintiff’s evidence.

93. The defendant argues that the determination of whether an adverse inference is drawn does not focus on questions of onus. It says the evidence of the plaintiff’s wife goes to the factual circumstances prevailing at the time and, as the plaintiff’s wife is in the plaintiff’s camp, he would be expected to have called her if her evidence would have advanced his case.

94. In my view, whilst it is no doubt correct that the defendant bears an onus to establish that the physical contact between the officers and the plaintiff was lawful, [1] the question of whether that onus is discharged will depend upon how the evidence rests. Leaving aside burdens of proof, conceptually, the evidentiary onus on the parties in establishing facts in support of their case or resisting the case advanced by the opponent is not fixed and can shift as the evidence unfolds. In deciding the factual issues in contest, the conclusions I reach will be informed by the evidence presented by each party.

95. In advancing its arguments on this issue, the defendant relies upon the statement of principle of the High Court in Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLA 361; [2011] HCA 11 at [63], namely:

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' case…. 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, is that uncalled witness appears to be in a position to cast light on whether the inference should be drawn

96. The defendant also relies upon dicta of Kirk J in Ling v Pang [2023] NSWCA 112 at [23] (Leeming and Mitchelmore JJA agreeing), where his Honour said:

The drawing of a Jones v Dunkel inference requires the court to be satisfied that, first, it is expected or natural for the party in question to have called the person; second, the person’s evidence would have elucidated a particular matter; third, the absence of the person is unexplained: Payne v Parker [1976] 1 NSWLR 191 at 201 per Glass JA.

97. In explaining the operation of these principles, his Honour continued at [26]-[27]:

[26] …In Payne v Parker Glass JA listed examples of where it would be expected or natural for the party in question to have called the person (at 201-202, citations omitted):

The first condition is also described as existing where it would be natural for one party to produce the witness, or the witness would be expected to be available to one party rather than the other, or where the circumstances excuse one party from calling the witness, but require the other party to call him, or where he might be regarded as in the camp of one party, so as to make it unrealistic for the other party to call him, or where the witness’ knowledge may be regarded as the knowledge of one party rather than the other, or where his absence should be regarded as adverse to the case of one party rather than the other.

[27] What underlies the principle in Jones v Dunkel is that the failure to call the witness “serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party”: Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8; at 320-1 at 320-321 per Windeyer J; see also Fabre v Arenales (1992) 27 NSWLR 437 at 449 per Mahoney JA. The circumstances in which such a fear may be inferred are various.

98. As I have said, the fact-finding process is a fluid one and ultimately the question of whether the defendant has discharged the onus on it to prove the contact between the officers and the plaintiff was lawful will abide an assessment of the evidence led or tendered by the parties and whether I am persuaded the onus has been discharged.

99. At the end of the day, the plaintiff advances a factual scenario as to the circumstances of the arrest quite different to that advanced by the defendant. In circumstances where the defendant has called evidence from McCully and Gordon contradicting that of the plaintiff, there is an evidentiary basis for the plaintiff to respond. The failure to call the plaintiff’s wife, in my view, reflects a failure to call evidence one would expect the plaintiff to call. The evidence of the police officers, if accepted, would necessarily lead me to reject the plaintiff’s evidence as to the circumstances of the arrest. Whether I accept the evidence of the officers is informed not only by the plaintiff’s evidence but may also be influenced by the failure to call his wife.

100. Each case and questions of inference will be fact sensitive, however, in my view, the evidence is such in the present case to give rise to an expectation that the plaintiff’s wife would have been called by him in relation to what occurred in the bathroom had she been able to assist his case. This is not a case where the defendant has failed to call evidence challenging the plaintiff’s allegations, in which case the plaintiff might justifiably not feel the need to call any corroborating evidence. Rather, the defendant has advanced a positive case. In my view, having regard to the evidence led from McCully and Gordon, there was an expectation that the plaintiff’s wife, to whom he remains married, would have been called in his case to address that evidence, if not in anticipation in chief, then in reply.

101. The plaintiff argues it was open to the defendant to call his wife, she having been a witness called by the defendant in the prosecution of the criminal charges against him. To the extent that is relevant and I am not sure that it is, there is, in my view, a difference between the role of the defendant as prosecutor of criminal charges where it has an obligation to call all material witnesses, and its role as defendant in the civil suit brought by the plaintiff. I do not consider there was an expectation in the circumstances that the defendant would call the plaintiff’s wife.

102. In my view, an adverse inference ought be drawn against the plaintiff for the unexplained failure to call his wife to give evidence.

103. On that basis, I infer that the evidence of the plaintiff’s wife would not have assisted his case as to the circumstances of his arrest by McCully and Gordon.

Factual Findings as to the Circumstances of the Plaintiff’s Arrest

104. Having weighed the competing accounts in light of the various observations I have made about the evidence, and bearing in mind the inference I have drawn from the plaintiff’s failure to call his wife, I generally prefer the evidence of McCully and Gordon as to the circumstances surrounding the plaintiff’s arrest. For the purpose of the determinations I must make as to the lawfulness of the arrest, on balance, I make the following findings:

105. When McCully and Gordon arrived at the plaintiff’s home, Gordon knocked on the front door which swung open.

106. On entering the premises the officers observed a hole in one of the doors downstairs.

107. The officers announced their presence by calling out loudly “Police Police” a number of times while looking in the rooms downstairs.

108. While this was happening, the plaintiff who was in bed, called out to his wife, who was in the shower, asking her to speak to the police, in words to the effect of, ‘the Police are here, talk to them and get rid of them’.

109. After calling out to his wife the plaintiff got out of bed and moved towards the bathroom.

110. The officers heard the sound of the plaintiff moving upstairs and heard the plaintiff calling out to his wife.

111. The officers then ran upstairs with McCully leading the way.

112. The plaintiff entered the bathroom as McCully and Gordon approached the top of the stairs.

113. McCully caught a glimpse of the plaintiff entering the bathroom.

114. McCully ran into the bathroom, followed by Gordon.

115. The officers saw the plaintiff’s wife in the shower.

116. The plaintiff, at that point, was opening the shower door with his right hand.

117. McCully grabbed the plaintiff’s right hand.

118. Gordon took hold of the plaintiff’s left hand with his right hand.

119. McCully told the plaintiff to let go of the shower door, however the plaintiff continued to hold the door.

120. McCully told the plaintiff to get on the ground which the plaintiff did not do.

121. The plaintiff said something to the effect that he had not done anything and/or that he hadn’t assaulted his wife.

122. At about this time the plaintiff’s wife ran out of the shower and was probably naked at that point.

123. The plaintiff was struggling, tensing and resisting the officers’ attempts to restrain him.

124. The plaintiff pulled and twisted his left hand which resulted in Gordon injuring his right hand.

125. Following this, McCully employed the harness manoeuvre he described in his evidence and took the plaintiff to the ground, and Gordon assisted in that process.

126. The plaintiff was not choked unconscious in the process of being taken to the ground.

127. On the ground, the plaintiff was handcuffed and told he was under arrest by McCully, and restrained lying on his side in what was described as in the evidence as the recovery position until more police arrived.

Was the Arrest Lawful

105. Whilst the plaintiff pleads assault and battery, the case has been litigated on the basis that the arrest and its aftermath involved a battery. There is no separate claim of anticipated harm constituting an assault.

106. McCully and Gordon, in placing hands on the plaintiff, committed an actionable battery unless, as Leeming JA observed in Croucher v Cachia [2016] NSWCA 132 at [21], the defendant establishes that the contact was “entirely without fault”.

107. In the present case, that translates to a requirement for the defendant to establish that McCully and Gordon were acting lawfully when they took hold of the plaintiff and took him to the ground in the bathroom.

108. The premise upon which the claim has been defended is that the actions of the police were lawful because they occurred in the context of a lawful arrest.

109. The defendant argues the plaintiff was lawfully arrested in accordance with s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA).

110. Section 99 LEPRA provides:

99 Power of police officers to arrest without warrant

(cf Crimes Act 1900, s 352, Cth Act, s 3W)

(1) A police officer may, without a warrant, arrest a person if—

(a) the police officer suspects on reasonable grounds that the person is committing or has committed an offence, and

(b) the police officer is satisfied that the arrest is reasonably necessary for any one or more of the following reasons—

(i) to stop the person committing or repeating the offence or committing another offence,

(ii) to stop the person fleeing from a police officer or from the location of the offence,

(iii) to enable inquiries to be made to establish the person’s identity if it cannot be readily established or if the police officer suspects on reasonable grounds that identity information provided is false,

(iv) to ensure that the person appears before a court in relation to the offence,

(v) to obtain property in the possession of the person that is connected with the offence,

(vi) to preserve evidence of the offence or prevent the fabrication of evidence,

(vii) to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence,

(viii) to protect the safety or welfare of any person (including the person arrested),

(ix) because of the nature and seriousness of the offence.

(2) A police officer may also arrest a person without a warrant if directed to do so by another police officer. The other police officer is not to give such a direction unless the other officer may lawfully arrest the person without a warrant.

(3) The arresting police officer or another police officer must, as soon as is reasonably practicable, take the person who has been arrested under this section before an authorised officer to be dealt with according to law.

Note—

A police officer may discontinue the arrest of a person at any time and without taking the arrested person before an authorised officer—see section 105.

(4) A person who has been lawfully arrested under this section may be detained by any police officer under Part 9 for the purpose of investigating whether the person committed the offence for which the person has been arrested and for any other purpose authorised by that Part.

(5) This section does not authorise a person to be arrested for an offence for which the person has already been tried.

(6) For the purposes of this section, property is connected with an offence if it is connected with the offence within the meaning of Part 5.

(7) In this section—

arresting police officer means the police officer arresting a person under this section.

Who Was the Arresting Officer

111. The defendant argues that both officers had the requisite suspicions and beliefs for the purposes of s 99(1)(a) and (b) LEPRA.

112. The plaintiff contends the arrest was unlawful. He argues that Gordon's state of mind is irrelevant because McCully was the arresting officer and, in any event, Gordon's state of mind played no part in the arrest.

113. It is as well, at this point, to deal with the issue of whether it was McCully alone who was the arresting officer or whether both McCully and Gordon were the arresting officers.

114. It cannot be doubted in my view that that the power of arrest under s 99 can be exercised by more than one officer. [2] While s 99(7) speaks in the singular of the arresting police officer being “the police officer arresting a person” (emphasis added), it does not, when read in context, preclude there being more than one officer undertaking the arrest. Whether the arrest is in fact effected by more than one officer jointly or by one officer assisted by other officers is ultimately a question of fact.

115. In this case, the evidence is that McCully led the way up the stairs and into the bathroom, with Gordon close behind him. It was McCully who was first to lay hands on the plaintiff, McCully who directed the plaintiff to let go of the shower door and get on the ground, McCully who applied the harness manoeuvre and took the plaintiff to the ground, McCully who applied the handcuffs and told the plaintiff he was under arrest, and McCully who escorted the plaintiff downstairs with Hobbs to be taken into custody.

116. In cross-examination, McCully said at the point where he grabbed the plaintiff’s hand he considered him to be under arrest (T: 392.33). He said that, as he entered the bathroom, he had formed the view that it was reasonable to arrest the plaintiff.

117. Gordon’s evidence was consistent with him playing an active role in the events which took place in the bathroom.

118. Whilst I accept McCully was the lead officer at the time of the initiation of the arrest, I am nonetheless satisfied that in effecting the arrest both officers were acting in concert as partners. It was Gordon who knocked on the front door and was the first to gain entry. Although Gordon gave evidence that McCully was the senior officer they were of comparable rank. On the evidence before me Gordon was not acting as a subordinate, nor was he being directed by McCully. Rather, as I see it, they were two officers of comparable rank dealing with a dynamic and unfolding situation. I find that, in those circumstances, both McCully and Gordon were arresting officers for the purposes of s 99 LEPRA.

Requirements of s 99 LEPRA

Section 99(1)(a)

119. Accordingly, the state of mind of both officers is relevant when considering whether the arrest was lawful in terms of s 99 LEPRA. As was observed by the Court of Appeal in State of New South Wales v Bouffler [2017] NSWCA 185 at [120] “An arrest need only be lawful at the hands of one police officer, regardless of whether other officers who also purported to arrest a person had the requisite state of mind necessary for the arrest to be lawful at their hands.”

120. In terms of s 99(1)(a), the plaintiff argues there were no reasonable grounds for McCully (and Gordon if relevant) to suspect the plaintiff had committed an offence.

121. In making that submission, the plaintiff draws on the well-known observations of McColl JA in Hyder v Commonwealth of Australia [2012] NSWCA 336 at [12]-[19]. In particular, the plaintiff relies upon the following factors:

122. neither officer heard the triple 0 call.

123. there was no urgency involved and this was a routine call out.

124. no ambulance had been required.

125. there were no previous Apprehended Domestic Violence orders in place for the plaintiff.

126. the message from VKG received 30 minutes before the officers’ arrival indicated the plaintiff’s wife no longer required police and was going to work.

127. the fact that calls to the plaintiff's wife had not been answered could be explained for a number of reasons, including her being in the shower.

128. there was an unclear report of children being present, but there was no indication of children being on site when the police arrived.

129. the front door was closed but not locked.

130. there was no evidence as to when the damage to the doors observed by the police had in fact occurred.

131. at the time of arrest police did not know the identity of the plaintiff and his wife.

132. at the time of the arrest, the plaintiff was standing stationary in the bathroom with the shower door between he and his wife.

133. the scene confronting the police in the bathroom was innocent and was consistent with the plaintiff asking his wife to deal with the police.

134. the officers did not speak to the plaintiff or his wife before entering the premises.

135. The plaintiff submits that the officers were aware they had no reasonable grounds to justify arrest and embellished their evidence to legitimise their actions.

136. The defendant argues that, in conjunction with the triple 0 call, as both officers described convincingly there was an escalating sequence of events, particularly when they attended the premises, which heightened their concerns and led them to conclude the plaintiff had committed an act of domestic violence by the time they confronted him in the bathroom.

137. As to this belief, McCully gave the following evidence in chief (T362.45 – 363.05):

Q. With respect to the arrest, what offence did you think he had committed?

A. I think he assaulted his wife.

Q. Why did you think that?

A. It was from the original CAD message where she ‑ yeah, where she said it.

125. Gordon put it this way in chief (T541 .35 -541.45):

Q. Why was it necessary in those circumstances to have him arrested for that purpose?

A. I believed, obviously, that he'd committed an offence, that there was ‑ suspected there was reasonable grounds that he committed an offence, and I believed that it was necessary to arrest him to stop him from committing that offence, repeating the offence or committing another offence. And I believed that it was serious enough, the offence that was committed ‑ it's domestic violence, and I believe domestic violence is a serious offence, and I believed that we needed to commence legal proceedings and have bail conditions in place for the victim's protection.

Q. Why did you think it was necessary to arrest him?

A. Nature and seriousness of the offence. All domestic violence is serious, and it was also protection of the ‑ any person being the victim in this case.

126. For the purposes of s 99(1)(a), it is not necessary that the officers in fact believed the plaintiff had committed an offence, only that they suspected he had. The concept of what constitutes suspicion as opposed to belief was discussed by the High Court in George v Rockett [1990] HCA 256; (1990) 170 CLR 104 at [14], where the Court said:

Suspicion, as Lord Devlin said in Hussien v. Chong Fook Kam [1969] UKPC 26; (1970) AC 942, at p 948, "in its ordinary meaning is a state of conjecture or surmise where proof is lacking: 'I suspect but I cannot prove.'" The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown. In Queensland Bacon Pty. Ltd. v. Rees [1966] HCA 21; (1966) 115 CLR 266, a question was raised as to whether a payee had reason to suspect that the payer, a debtor, "was unable to pay (its) debts as they became due" as that phrase was used in s.95(4) of the Bankruptcy Act 1924 (Cth). Kitto J. said (at p 303):

"A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to 'a slight opinion, but without sufficient evidence', as Chambers's Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence….”

127. I am of the view that, by the time McCully and Gordon confronted the plaintiff in the bathroom, the evidence, at an objective level, provided reasonable grounds for a suspicion that the plaintiff had committed an act of domestic violence towards his wife. Having regard to the quality of that evidence, I accept the accounts of McCully and Gordon and find that they suspected (in fact to the point of belief) that the plaintiff had committed such an offence.

128. The objective evidence of which I speak commences with the fact that the plaintiff’s wife’s call to police was received through the triple 0 emergency network. It is common knowledge that triple 0 calls are reserved for actual or perceived emergencies. In my view, one starts then from the proposition that unless there is some reason to suspect a prank call, and there was none here, it is reasonable to assume the triple 0 call was genuine.

129. The CAD message informing the officers of the incident indicated inter alia that the informant had been hit by her husband and was crying too much to get any further information.

130. Notwithstanding the second call from the plaintiff’s wife that police were no longer required, the unimpugned evidence of McCully was that a complaint being withdrawn does not mean that it was without substance.

131. When the officers arrived at the plaintiff’s home, they were then confronted with the unusual circumstances that the front door was unlocked and access was freely gained. There were clear signs of damage to the premises downstairs, which I accept was consistent with damage caused by violence such as a kick.

132. As I have already found, the police received no response to calls announcing themselves and heard noises consistent with footsteps coming from upstairs. The plaintiff was heard calling out to his wife. On reaching the upper level, McCully was confronted with someone disappearing into the bathroom.

133. Obviously enough, the officers could not have excluded the possibility that, in the fullness of time, the indications of domestic violence were capable of some other explanation. However, in my view, that goes to formation of concluded views, not reasonably held suspicion.

134. For those reasons, I find that, for the purposes of s 99(1)(a) LEPRA, both McCully and Gordon had reasonable grounds for suspecting the plaintiff had committed an offence of domestic violence.

Section 99(1)(b)

135. I turn then to whether the subjective requirements of s 99(1)(b) LEPRA are satisfied.

136. The defendant argues the evidence establishes that, in the terms of the various subsections of s 99(1)(b), the officers were satisfied the arrest was reasonably necessary; (i) to stop the plaintiff committing or repeating the offence or committing another offence; (viii) to protect the safety or welfare of the plaintiff’s wife and of the officers themselves; and (ix) because of the nature and seriousness of the offence.

137. The plaintiff’s position is that the invocation of those nominated subsections under s 99(1)(b) is just the defendant adopting convenient labels to justify the arrest where, in reality, none exists.

138. Before embarking on a consideration of the operation of s 99(1)(b), it is important to observe, as the authorities make clear, that one must view the prevailing circumstances from the perspective of the attending police officers engaged in what was a dynamic unfolding situation, not from a rarefied vantage point in the courtroom with the benefit of hindsight. [3]

139. Recently, in State of New South Wales v Dennis [2025] NSWCA 118, the Court of Appeal gave consideration to the qualitative requirements of subjective belief in circumstances where an arrest was found to be unlawful at first instance because there were alternatives to arrest, not considered by the arresting officer, which would have achieved the end the officer sought to achieve.

140. Given the position the plaintiff has taken as to the application of Dennis, it is appropriate to consider the decision in some detail.

141. In its analysis, the Court of Appeal had regard to the amendments made to s 99(1)(b) in 2013 to remove the requirement for the subjective suspicion of the officer to be based on reasonable grounds.

142. At [28], Kirk JA (with whom Mitchelmore JA agreed) said:

Section 99(1)(b) requires that the arresting police officer actually – ie subjectively – be satisfied that the arrest is reasonably necessary for one or more of the identified reasons. It is no longer necessary that the facts are sufficient to have also induced that state of mind in a reasonable person. However, the removal of the requirement for reasonable grounds does not mean that the issue depends only upon the officer’s own view. For a long time in this country it has not been “the case that a decision as to ‘satisfaction’ is unreviewable”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 275; [1996] HCA 6; see also eg Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [131]- [137]; Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at [54].

143. Later, his Honour discussed similar reasoning on the point by Basten JA in State of New South Wales v Randall [2017] NSWCA 88 as compared to the reasoning of Barrett AJA in Jankovic v Director of Public Prosecutions [2020] NSWCA 31 which, as Kirk JA observed, had contemplated an objective element to be considered in the application of s 99(1)(b).

144. Kirk JA referred at [47]-[49] to the way in which any conflict between the reasoning in Jankovic and other authorities has been dealt with by the Court of Appeal in the cases which have followed. As his Honour observed:

[47] In Reeves [Reeves v State of New South Wales [2024] NSWCA 125] the plaintiff-appellant contended that the decisions of Basten JA in Randall and AD [AD v State of New South Wales [2023] NSWCA 115] concerning the operation of s 99(1)(b) were wrongly decided, arguing that they were inconsistent with Jankovic. Chief Justice Bell, with whom Stern JA agreed (at [212]) and White JA relevantly agreed (at [189]-[190]), rejected the argument that Basten JA’s decisions were wrongly decided (at [116]). His Honour said:

The Appellant sought to generate a conflict between the decision of Barrett AJA in Jankovic and Basten JA in Randall and AD but I do not think that any conflict arises and, even if it did, the interpretation of s 99(1) given by Basten JA should be preferred. Barrett AJA’s decision was focused on whether reasonable necessity required an arresting police officer to consider alternatives to arrest. His Honour referred to considerations of proportionality by reference to the decision of Kiefel J in Wotton v Queensland (2012) 246 CLR 1; [2012] HCA 2 (Wotton) in order to suggest that something more akin to an objective rather than subjective inquiry was to be made in relation to whether the arresting officer held the requisite state of satisfaction. To the extent that Barrett AJA’s observations were derived from the reasons of Kiefel J in Wotton, it should be noted that her Honour wrote separately in that case and was considering a different statutory regime from s 99(1) of LEPRA, namely s 200(2) of the Corrective Services Act 2006 (Qld) which provided that the Parole Board could grant a parole order containing conditions that, pursuant to s 200(3) of the same Act, it “reasonably considers necessary” to “ensure [a] prisoner’s good conduct” or “stop [a] prisoner committing an offence”. That provision, unlike s 99(1)(b) of LEPRA, involved no element of subjectivity.

[48] Thus whilst the Chief Justice tended to the view that there was no conflict between the identified decisions, his Honour made clear that if there was such a conflict then the interpretation adopted by Basten JA should be preferred. The remainder of the paragraph was implicitly critical of the analysis of Barrett AJA in Jankovic. His Honour went on to give further reasons for rejecting the appellant’s argument in that case (at [117]-[121]).

[49] In Emde [Emde v State of New South Wales [2025] NSWCA 41], decided earlier this year, this Court refused leave to appeal in a case in which the applicant had sought to rely upon what had been said as to proportionality in Jankovic. Justice McHugh, with whom Gleeson JA and I agreed, referred at [80] to what Bell CJ had said in Reeves at [116] about preferring the approach of Basten JA insofar as there was any conflict. His Honour then said:

[81] On that understanding, which was not challenged, the question is not whether the police officer’s response was objectively proportionate. An arrest is not ‘unlawful merely because the police officer’s satisfaction ... is not reasonable’: see Jankovic at [7] (White JA), quoted in Reeves at [113]. If there are any remaining tensions in the case law they were not drawn out in argument in this matter and it is not appropriate to address them.

[82] The question thus was whether the officer’s s 99(1)(b) state of satisfaction was manifestly unreasonable, or arbitrary, capricious, irrational, or not bona fide. ...

145. In resolving what he described as the tension between Jankovic and other decisions of the Court, Kirk JA said at [60]:

In summary, then, s 99(1)(b) requires that the arresting police officer subjectively is satisfied that the arrest is reasonably necessary for one or more of the identified reasons. Reasonably necessary connotes, in this context, appropriate and adapted to achieve one or more of the identified reasons. The arresting officer’s satisfaction must not be manifestly unreasonable, arbitrary, capricious, irrational, or not bona fide. The existence of alternatives to arrest might in some cases be relevant to assessing that issue. But the provision does not require police officers subjectively to consider alternatives to arrest in every case as a condition of validity. And it is not for the courts to substitute their own view as to whether alternatives should have been pursued.

146. The plaintiff made the submission that the analysis adopted in Dennis in relation to an officer’s subjective belief is wrong, is inconsistent with Jankovic and should not be followed. In my view Dennis is binding and, together with the lineage it relies on, is clear enough in terms of the subjective nature of the enquiry, tempered as it is by the need for the officer’s belief not to be unreasonable, arbitrary, capricious, irrational, or lacking bona fides.

147. Although it is true the defendant bears the onus of establishing the arrest was lawful and thus compliant with s 99(1)(b), the Court has the evidence of the officers, which I have accepted, that they followed the plaintiff into the bathroom and found him holding the open shower screen door. Both say they believed the plaintiff had assaulted his wife and I have accepted there were reasonable grounds to suspect he had done so.

148. The officers professed a concern that the plaintiff could have been about to assault his wife again and were concerned for her welfare. Both regarded the offence of domestic violence to be very serious. As I have noted, it is those beliefs which inform the defendant’s submission that s 99(1)(b) is satisfied.

149. On the facts as I have found them, I see no reason not to accept that the officers had a genuine subjective belief that the plaintiff may have been about to commit an act of violence on his wife. There are, as submitted on behalf of the plaintiff, perhaps many reasons why the plaintiff might have been in the bathroom without intending to commit an act of violence towards his wife. However, the police officers were acting in the exigent circumstances they confronted. They did not have time for calm reflection to weigh up innocent as opposed to non-innocent motives. I accept that the officers believed the plaintiff may have been about to assault his wife and were satisfied, in light of that and the seriousness of the offences they believed the plaintiff to have committed, that arrest was reasonably necessary.

150. Accordingly, I find that s 99(1)(a) and (b) LEPRA are satisfied.

Was the Arrest for a Legitimate Purpose

151. Against the contingency that the officers complied with s 99(1)(a) and (b), the plaintiff argues the arrest was nonetheless unlawful because it was for an impermissible purpose, namely, to further investigate the matter to determine whether to charge the plaintiff.

152. On this issue, the plaintiff relies on the observations of the majority of the High Court (Bell, Gageler, Gordon and Edelman JJ) in New South Wales v Robinson [2019] HCA 46, where, at [63], their Honours say (footnotes omitted):

[63] In Bales v Parmeter, Jordan CJ provided a clear statement of the law in New South Wales: an arrest can only be for the purpose of taking the arrested person before a magistrate (or other authorised officer) to be dealt with according to law to answer a charge for an offence. An arrest merely for the purpose of asking questions or making investigations in order to see whether it would be proper or prudent to charge the arrested person with a crime is an arrest for an improper purpose and is unlawful. That straightforward, single criterion has been repeatedly cited with approval in New South Wales and elsewhere. In making that statement, Jordan CJ was expressing the effect of s 352 of the Crimes Act 1900 (NSW). Nothing done in LEPRA (in its original or amended form), or for that matter in any of the intervening legislative amendments which will be examined, has displaced that single criterion.

153. Later, at [114]-[115], their Honours explained how s 99 LEPRA operates to reflect this long-standing principle, such that even if an officer is satisfied of the criteria set out in s 99(1)(a) and (b), in accordance with s 99(3) the power to arrest can only be exercised if there is a concomitant intention to charge. As their Honours put it (footnotes omitted):

[114] Thus, if "the police officer suspects on reasonable grounds that the person is committing or has committed an offence" and "the police officer is satisfied that the arrest is reasonably necessary for any one or more" of the specified reasons, then the police officer who makes the arrest under s 99 must intend, as soon as is reasonably practicable, to take the person before an authorised officer to be dealt with according to law to answer a charge for that offence. And they must have that intention without taking into account at the time of arrest the existence of the investigation period.

[115] Reasonable suspicion requires an arresting constable to have reasonable grounds for suspicion of guilt. This is less than reasonable and probable cause for prosecution. The former is the necessary intention at the time of arrest. The latter is the necessary intention when making a decision to prefer a charge and then preferring it. Contrary to the submissions of the State of New South Wales, the requirement of an intention to charge at the time of arrest does not import, to the time of arrest, a requirement to have the mental state required at the time of charging. All that it means is that there is an intention to meet the requirements for charging at the time of charging, which is to take place as soon as is practicable after the arrest, unless it emerges after the arrest that there is not sufficient basis to bring a charge. And in that circumstance, the arrest should be discontinued pursuant to s 105.

154. Ultimately, the High Court dismissed the appeal and confirmed the decision of the majority of the Court of Appeal on the basis that the arresting officer did not have an intention at the time of arrest to have Mr Robinson charged unless it emerged subsequent to arrest that there was sufficient basis for him to be charged.

155. The plaintiff argues that he was arrested at the point where McCully laid hands on him, which is a proposition McCully seemingly accepted in cross-examination (T: 392.30). However, in circumstances where there is no dispute the plaintiff struggled and resisted McCully and Gordon, [4] my view is that whilst the arrest may have commenced with McCully taking hold of the plaintiff’s hand, the plaintiff was not finally arrested until he was subdued by McCully and Gordon and handcuffs were placed on him. [5]

156. In any event, the plaintiff points to a number of passages of evidence given by McCully in support of the argument that the arrest was for an impermissible purpose. In particular:

At T: 395.25 – 395.37

Q. Nevertheless, as you entered the bathroom, before anything was said by anyone, you had formed the view in your own mind that it was reasonable to arrest him; is that right?

A. Yes.

Q. You were going to do it, whatever was said; is that right?

A. Yes. Yes.

Q. Without interviewing either of the complainant or her husband; is that right?

A. Yes.

Q. The purpose of arresting him was to investigate what had occurred that led to the triple‑0 call; is that right?

A. Yes.

At T: 399.2 – 399.8

A. As soon as it was practical, I told him he was under arrest, and that was once we had him under control and in handcuffs.

Q. You had to get him under control so you could investigate whether or not there was any substance in the complaint that had been made over the VKG radio; was that right?

A. Yes.

At 417.22 – 417.24

Q. Without making proper inquiries beforehand ‑ and you had arrested him for the purpose of investigating whether he'd done anything.

A. Yes.

At 462.30 – 462.35

Q. Senior Constable McCully, at the time that you arrested the plaintiff, did you intend to, upon having him charged?

BLACKETT: Your Honour will just note my objection.

HIS HONOUR: I do.

WITNESS: At that stage, we were going to investigate the matter.

157. The defendant argues, however, that to focus on those transcript extracts in isolation is to distort the true picture and that, on a proper understanding of the evidence, McCully had an intention to charge but before doing so he wanted to obtain the DVEC, and if the DVEC had not come up to proof he would have exercised the power available to him to unarrest the plaintiff. The defendant says this is apparent from the following evidence which it says qualifies the other evidence given by McCully on this issue:

At T: 417.08 – 417.25

Q. Was there a Sergeant there on that day?

A. He arrived late, yes.

Q. But ordinarily they would come, and somebody would take the wife into one room and ask her to say what happened, and somebody would take the spouse ‑ the other person ‑ into the other room, and you'd have a sit‑down and listen to the stories that both of them gave, would you not?

A. That's what we did after. So, if she hadn't have provided the DVEC and had said nothing had happened, then that's quite possible that he may have been released.

Q. You already arrested at that stage.

A. Yeah, and we still have the power to un‑arrest afterwards.

Q. Without making proper inquiries beforehand ‑ and you had arrested him for the purpose of investigating whether he'd done anything.

A. Yes.

158. The defendant says the following passages of evidence from McCully make good its point:

At T361.25 – 361.50

Q. Senior Constable McCully, having secured him, as it were, with the handcuffs, did you say anything to him?

A. Yeah, I would've ‑ I said, "I'm Senior Constable Jeremy McCully from Liverpool Police. You're under arrest for assault."

Q. Did he say anything in response?

A. I think he said, "What", or, "I didn't do it". Something along those lines.

Q. Then what did you say to him?

A. I said, "You're under arrest for assaulting your wife", or something along those lines.

Q. Did he say anything further with respect to the assault?

A. I think probably, "I didn't do it". I think it was along those lines.

Q. To whom?

A. "My wife. I didn't assault my wife."

Q. Before the police came to convey him, I think you said that you were sitting with him.

A. Yes.

Q. What was the purpose of that?

A. Prevent him from assaulting his wife. Just maintaining control of him. Once he's in our custody, he's not leaving our custody.

At T: 362.45

Q. With respect to the arrest, what offence did you think he had committed?

A. I think he assaulted his wife.

159. Otherwise, the defendant argues it was never put to McCully that he did not have the requisite intention to charge. I do not accept it was necessary for that proposition to be put to McCully in those terms. Forensically, it was open to the plaintiff to put the proposition or alternatively to rest with the evidence as given, if considered sufficient to make good the point being advanced. A party is entitled to rely on evidence in support of a proposition without putting things it considers are established. Whether they are in fact established is of course ultimately a matter for determination on a consideration of all the evidence.

160. The defendant says the evidence makes clear that McCully, at the time of arrest, intended to charge the plaintiff and relies on the following facts to make good that submission:

161. He called for a caged vehicle to transport the plaintiff to the police station.

162. He assisted in escorting the plaintiff to the vehicle.

163. He took the DVEC from the plaintiff’s wife.

164. He delivered the DVEC to Hobbs, the officer in charge of the matter, together with a summary of what had occurred.

165. Charges were then laid by Hobbs.

166. The defendant submits that standing back and looking at the evidence as a whole there can be no doubt that McCully intended to charge at the time of arrest.

167. I do not agree. In my view, there is significant doubt around the proposition that McCully intended to charge at the time of arrest. I accept there is evidence, in particular, the calling of the caged vehicle, to suggest an intention to charge. However, all of the evidence given by McCully in response to questions as to his intention/purpose was universally to the effect that at the time of arrest McCully’s intention was to investigate the matter.

168. The issue, in my view, was effectively put beyond doubt when, as set out in paragraph [156] above, McCully gave direct unambiguous evidence when asked whether he intended upon having the plaintiff charged at the time he arrested him, namely, “At that stage, we were going to investigate the matter”.

169. In the circumstances, there is no reason not to accept McCully’s considered and direct evidence that he did not intend to charge the plaintiff at the time of the arrest.

170. The fact that McCully took steps to have the plaintiff taken to the police station is relevant but not decisive of his intentions. It is not incompatible with his evidence that, depending on the information provided in the DVEC, the plaintiff may have been unarrested and released. In other words, it is consistent with the proposition that the DVEC, which on McCully’s evidence took place 5 or 10 minutes after the plaintiff was taken away, would inform his view as to whether the plaintiff would be charged or released. On McCully’s evidence, after taking the DVEC, photographs were taken of the damaged doors and walls. He and Gordon then returned to the police station, where he provided Hobbs with the DVEC. Hobbs confirmed charges were laid after the DVEC was received.

171. The fact that the charging process did not occur until after the DVEC had been obtained and provided to Hobbs by McCully again is not decisive, but is consistent with the fact that the decision to charge, in McCully’s mind, would await the outcome of further investigations.

172. Accordingly, on the conclusions I have reached, adopting the approach of the High Court in Robinson, the defendant has failed to establish that the purported arrest by McCully was lawful.

173. As such, in line with my earlier finding that both McCully and Gordon were arresting officers, it falls to consider whether Gordon had the requisite intention to charge so as to make the arrest lawful. As noted earlier, it is clear from the observations of the Court of Appeal in State of New South Wales v Bouffler that the arrest need only be lawful at the hands of one of the arresting officers.

174. I observe that McCully said “we” intended to investigate. However, there is nothing in the evidence to establish that McCully could speak of Gordon’s intentions at that time.

175. In the alternative to the submission that Gordon’s state of mind is irrelevant, the plaintiff submits that Gordon’s evidence on the point is unreliable and he was generally not creditworthy.

176. When asked about his intentions at the time of arrest, Gordon said (T: 519.40 – 519.49):

Q. Why did you touch Mr Cash?

A. I believed that he'd committed an offence.

Q. What offence did you think he committed?

A. I believe that he assaulted Rupa, the victim.

Q. Why did you put your hands on him at that time?

A. To commence legal proceedings for that offence of assault.

172. Later Gordon gave the following further evidence on the point (T: 541.05 – 541.45):

Q. Sergeant, yesterday you told us that you called for the caged vehicle?

A. Yes

Q. Why did you call for a caged vehicle?

A. So that the plaintiff could be taken back to the police station to start the charge process.

Q. Do you convey them in the car that you were driving on the day?

A. No, not generally. It’s a sedan.

Q. Once someone’s under arrest, is there a preferred method of conveyance?

A. Yes, that’s correct. It’s preferred that they are conveyed in a caged vehicle.

Q. Yesterday you told his Honour that you had intended to commence legal proceedings for that offence of assault?

A. That's correct.

Q. You're talking about with respect to Mr Cash?

A. Yes.

Q. Who's the assault?

A. The—

Q. Who's the assault on?

A. The victim, Rupa Rawal.

Q. Why was it necessary in those circumstances to have him arrested for that purpose?

A. I believed, obviously, that he'd committed an offence, that there was ‑ suspected there was reasonable grounds that he committed an offence, and I believed that it was necessary to arrest him to stop him from committing that offence, repeating the offence or committing another offence. And I believed that it was serious enough, the offence that was committed ‑ it's domestic violence, and I believe domestic violence is a serious offence, and I believed that we needed to commence legal proceedings and have bail conditions in place for the victim's protection.

173. The plaintiff argues that Gordon’s evidence on this issue was inconsistent with the evidence he gave in the Local Court prosecution of the plaintiff in April 2022 and should not be accepted.

174. The plaintiff tendered the following extract of the cross-examination of Gordon in the Local Court on 26 April 2022:

Q. You had the opportunity to tell him he was under arrest, right then and there?

A. At that stage, we were investigating what we were there for.

Q. You were there because you'd been told over a broadcast, on your evidence--

A. Correct

Q. That--

A. We also hadn't had a chance to speak to the victim.

Q. Will you let me finish the question?

A. Sure

Q. That he assaulted his wife, not in those terms but conceal it to be broadcast that you heard?

A. That's correct

Q. He was basically there, you were there to investigate an assault?

A. Correct

Q. You say you'd seen a scared woman run out of the shower?

A. That's correct.

Q. On your evidence, naked?

A. Correct

Q. You got a man standing there and he was to be arrested for an assault, I suggest to you?

A. We were there to investigate, just wanting to ask questions and speak to the victim. Obviously at that stage, that wasn’t possible because we were holding the accused

Q. What you are doing to the accused at that stage, was investigating the assault reported by the complainant earlier?

A. No

Q. That's what you've just told us, you were there to investigate

A. Correct

Q. Isn't that what you were doing then?

A. No

Q. What were you doing then?

A. I just - I already explained it, we were holding on to the accused, because I believed he was going to assault the victim.

175. Gordon was cross examined before me on the evidence he gave in the Local Court in the lead up to the evidence extracted above (T:572–574). It appears from that cross examination that the question to Gordon which introduces the above passage of evidence, namely, ‘You had the opportunity to tell him he was under arrest right then and there” was referring to the point in time when the plaintiff’s wife had left the bathroom and the officers were holding the plaintiff.

176. As I understand the plaintiff’s argument, this indicates Gordon’s evidence in the Local Court reflected the fact that at the time he laid hands on the plaintiff his intention remained an intention to investigate and is thus inconsistent with the evidence he gave before me.

177. Gordon rejected the proposition put to him in cross-examination that the evidence he gave before me was contrary to the evidence he gave in the Local Court. It was also put to Gordon that, in his evidence before me, he had emphasised, in a pro forma way, circumstances which would bring the arrest within the provisions of LEPRA. This he denied as well.

178. I accept that Gordon’s terminology of “commencing legal proceedings” was a rather formal and unusual choice of words. It does appear to parallel the wording of s 99(3) LEPRA which speaks of the arrested person being “dealt with according to law”. I do not ignore the submission that Gordon’s language can be seen as calculated to establish that the requirements of that section have been met.

179. In my view, caution must be exercised in drawing conclusions from the transcript of the evidence given in the Local Court which was tendered before me. It is far from clear that the evidence highlighted in the Local Court can be regarded as homogeneous with the issues presently under consideration.

180. It is true that, in the Local Court, Gordon spoke of an intention to investigate at different times. There was, on the face of it, no exploration of whether he had an intention to charge at the time of the arrest. It is clear that having an intention to investigate does not of itself render an arrest unlawful, as long as there is an intention to charge and then investigate. For the reasons outlined earlier, it is however impermissible to arrest in order to investigate and then decide whether to charge.

181. I am not satisfied that Gordon’s evidence in the Local Court is necessarily inconsistent with him having an intention to charge at the time of the arrest.

182. It is true, as I have indicated, that Gordon used language before me which suggests an awareness of the statute. This is not of itself indicative of unreliable evidence. It is not a matter adverse to Gordon’s credit that he is aware of the elements of s 99 LEPRA. Gordon did also say in clear, non-technical terms, in the evidence extracted above (see [172]) that the caged vehicle was called “[s]o that the plaintiff could be taken back to the police station to start the charge process”.

183. Gordon’s evidence before me, if accepted, satisfies the requirement of an intention to charge at the time of arrest. That evidence is plausible and is supported by the objective matters referred to earlier, namely the calling of the caged vehicle to take the plaintiff to the police station immediately following the arrest and the subsequent charging of the plaintiff with the offence he was arrested for.

184. On balance, I accept the evidence given by Gordon before me that at the time of arrest he had an intention that the plaintiff be charged.

185. Accordingly, I am satisfied that the arrest was lawful at the hands of Gordon and within the power conferred by s 99 LEPRA.

Section 202 LEPRA

186. Leaving aside s 99 LEPRA, the plaintiff contends that the arrest was also unlawful as it infringed s 202 LEPRA, which provides as follows:

202 Police officers to provide information when exercising powers

(1) A police officer who exercises a power to which this Part applies must provide the following to the person subject to the exercise of the power—

(a) evidence that the police officer is a police officer (unless the police officer is in uniform),

(b) the name of the police officer and his or her place of duty,

(c) the reason for the exercise of the power.

(2) A police officer must comply with this section—

(a) as soon as it is reasonably practicable to do so, or

(b) in the case of a direction, requirement or request to a single person—before giving or making the direction, requirement or request.

187. The evidence of McCully and Gordon is that, after the plaintiff was taken to the ground and before handcuffs were applied, McCully identified his name, rank and station, and told the plaintiff something along the lines that he was under arrest for assaulting his wife. In cross-examination, it was put to McCully that he had not told the plaintiff he was under arrest, or if he did, it was well after he could and should have told him. McCully essentially said the plaintiff was told as soon as they had him under control. As McCully put it, ‘I was worried about him getting into the shower. I was more worried about him-stopping him then saying, “You are under arrest”’ (T: 399.15).

188. Gordon corroborates McCully’s account and the plaintiff’s evidence is he has no memory of events in the bathroom after being taken to the ground.

189. On balance, I accept that McCully told the plaintiff he was under arrest. Given my primary findings, it is entirely reasonable to assume that McCully and Gordon were focused on restraining the plaintiff and having him let go of the shower screen. With the plaintiff resisting and the injury suffered by Gordon, I accept there was some imperative to bring the plaintiff under control for the reasons the police officers explained. In those circumstances, I accept the plaintiff was told he was under arrest once he was taken to the ground, which was as soon as reasonably practicable. In my view, there has been no breach of s 202.

Sections 230 and 231 LEPRA

190. Finally, the plaintiff argues that the police officers used excessive force such that their actions constituted a battery, even if the arrest was otherwise lawful. This raises the operation of ss 230 and 231 LEPRA, which provide as follows:

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.

191. Recently, in BK v State of New South Wales [2026] NSWCA 6, Adamson JA observed at [239] – [240]:

[239] The legal principles are well established. The tort of battery is a sub-category of the tort of trespass to the person. It is constituted by the intentional act of a person directly causing harmful or offensive physical contact with the person of another: Sappideen and others, Fleming’s The Law of Torts (11th ed, 2024, Lawbook Co) at 2.60. It is actionable per se: that is, the plaintiff need not have suffered injury in order to bring an action in battery. Once battery was established, the onus fell on the respondent to prove lawful justification under ss 230 or 231 of LEPRA, which provide….

[240] In Director of Public Prosecutions (NSW) v Greenhalgh [2022] NSWSC 980, Ierace J articulated the test for force to be “reasonably necessary” at [186]:

... 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)

192. Again, my primary findings as to what occurred in the bathroom are of acute relevance to the determination of this issue. In circumstances where the defendant was resisting the police officers’ attempts to have him let go of the shower screen to remove the perceived threat to the plaintiff’s wife, where Gordon was injured in the process and a potential threat arose for the safety of the officers from a person physically larger than them, in my view, the officers were not exercising unreasonable force in bringing the plaintiff under control. In other words, I accept that at an objective level the force used was not disproportionate to the threat the plaintiff potentially posed.

193. The bruising predominantly to the plaintiff’s arms and the other physical signs apparent in the aftermath of the assault make clear the fact that there was force involved, as does the fractured hand suffered by Gordon, requiring surgical repair. That is unsurprising given the size of the plaintiff, the fact that he was physically restrained by two officers and was then taken forcibly to the ground. While there are obvious signs of physical trauma, there is no evidence to lead me to equate those signs with disproportionate use of force by the police officers.

194. The reasonableness of the officers’ actions and the force employed is bolstered by the dynamic unfolding situation they confronted.

195. Accordingly, I consider the force used to effect that arrest was not unreasonable.

The Claim in Battery Fails

196. As the defendant has established the arrest was lawful, the plaintiff fails in his claim for battery.

False Imprisonment

197. It follows, with the arrest being lawful, the plaintiff also fails in his claim for false imprisonment.

Malicious Prosecution

198. As noted, the plaintiff brings a claim in malicious prosecution in respect of the criminal proceedings prosecuted against him in the Local Court.

199. In A v New South Wales (2007) 230 CLR 500; (2007) 233 ALR 584; (2007) 81 ALJR 763; [2007] HCA 10, the High Court outlined the four elements a plaintiff must establish to make good a claim of malicious prosecution, namely:

200. That proceedings of the kind to which the tort applies (generally criminal proceedings) were initiated against the plaintiff by the defendant;

201. That the proceedings terminated in favour of the plaintiff;

202. That the defendant in initiating or maintaining the proceedings acted maliciously; and

203. That the defendant acted without reasonable or probable cause.

204. It is common ground that the criminal proceedings brought against the plaintiff were terminated in his favour, thus satisfying the first two of the above elements.

205. The plaintiff pleads that both McCully and Gordon were prosecutors of the charges brought against him. In submissions, the position advanced was that McCully was the prosecutor who initiated and maintained the prosecution by arresting the plaintiff and providing the DVEC and other relevant material to Hobbs to enable her to sign the ADVO. Further, it is said McCully continued to prepare the prosecution brief and took over from Hobbs in December 2020, following which he continued to prepare the matter, which included obtaining statements from witnesses.

206. Otherwise, it is said Gordon was a prosecutor to the extent that he assisted McCully and, so it is argued, colluded with McCully in the preparation of Gordon’s statement.

207. The defendant submitted that McCully and Gordon “did not undertake the prosecutorial steps other than to initiate proceedings”. However, the contest as to whether the tort of malicious prosecution was made out focused more on questions of reasonable and probable cause and malice, than whether McCully and Gordon could properly be regarded as prosecutors.

208. Generally speaking, to be liable for malicious prosecution a person must play an active role in the conduct of the proceedings by instigating them or setting them in motion. [6]

209. On the face of it, McCully might reasonably be regarded as a prosecutor of the criminal charges brought against the plaintiff. However, in my view, Gordon cannot be said, on the evidence, to have played an active role in prosecuting those charges.

210. In any event, for the reasons which follow, I am not satisfied the plaintiff has established the elements of malice and reasonable and probable cause referred to by the High Court in A v State of New South Wales. As such, it unnecessary to focus on the identity of the prosecutor at any length for present purposes.

Malice

207. Whilst it has been observed that the concept of malice is not always easily defined, it can be accepted that for a prosecution to be malicious, the dominant purpose of the prosecutor must be a purpose other than the proper invocation of the criminal law. [7]

Reasonable and Probable Cause

208. The concept of whether there is reasonable and probable cause for a prosecution involves both subjective considerations (what did the prosecutor make of the material underpinning the prosecution) and objective considerations (what should the prosecutor have made of that material). [8]

209. In well-known dicta in Mitchell v John Heine & Son Ltd (1938) 38 SR (NSW) 466 at 469, Jordan CJ said:

… (1) The prosecutor must believe that the accused is probably guilty of the offence. (2) This belief must be founded upon information in the possession of the prosecutor pointing to such guilt, not upon mere imagination or surmise. (3) The information, whether it consists of things observed by the prosecutor himself, or things told to him by others, must be believed by him to be true. (4) This belief must be based upon reasonable grounds. (5) The information possessed by the prosecutor and reasonably believed by him to be true, must be such as would justify a man of ordinary prudence and caution in believing that the accused is probably guilty.

210. As pointed out in A v State of New South Wales at [81], the five conditions stated by Jordan CJ are not an exhaustive catalogue of what will amount to reasonable and probable cause, nonetheless it remains instructive in a practical sense in the present case.

211. Importantly, as the High Court observed in A v State of New South Wales, the enquiry to be made is not what is reasonable and probable cause but rather whether there was an absence of reasonable and probable cause.

Was the Plaintiff the Subject of Malicious Prosecution

212. In the present case, the plaintiff argues that McCully and Gordon had insufficient information at the time of arrest to establish that he assaulted his wife, and that this weighs heavily in favour of the conclusion that they did not have reasonable and probable cause to prosecute.

213. For the reasons already outlined, I am satisfied that the officers complied with the requirements of s 99(1) LEPRA when they decided to arrest.

214. Otherwise, the plaintiff’s argument focuses on what appears to be a contention that the only evidence supporting the prosecution was the DVEC of the plaintiff’s wife. I take that to be a submission that the evidence did not support the charges.

215. It is put that, to the extent Gordon was prosecutor, his collusion with McCully in preparation of his statement bespeaks a lack of reasonable and probable cause, and malice.

216. Even assuming that both Gordon and McCully were prosecutors of the criminal charges brought against the plaintiff, I am not satisfied that the prosecution was malicious. In my view, the evidence of the officers did not betray any animus or ulterior motive on their part, and I found no basis to infer such a motive.

217. True it is that Gordon fractured his hand. The submission was made that Gordon’s evidence denying animus towards the plaintiff because of his broken hand is not credible.

218. The cross-examination on this point involved propositions that Gordon resented the plaintiff because of the injury he suffered. I found Gordon’s explanation credible, namely, “I don't think anyone's happy when they have an injury, but it's part of the job” (T: 572.23). Similarly, I accept Gordon’s evidence that he was not “out to get” the plaintiff because of his injury. There is, in my view, a vast difference between not being happy, or even being angry, that the plaintiff inflicted an injury and conniving to invoke the criminal law for retribution. There is no evidence of the latter by either officer in the present case.

219. There is no evidence before me which would cause me to doubt the fact that the prosecution of the plaintiff was founded on a genuine belief in his guilt. There has been no exploration of the evidence upon which the prosecution was based to found a submission that the evidence would not sustain a reasonably held belief that the plaintiff was probably guilty. As high as it gets is the sharing by McCully of his statement with Gordon and the suggestion of collusion. Whilst this was no doubt imprudent and impacts on the potential reliability of the evidence, as things stand, it does not lead to a conclusion that the statements were untrue or that they could not reasonably justify a belief in the plaintiff’s guilt.

220. Ultimately, the evidence in support of the claim for malicious prosecution, in my view, rises no higher than the fact that the plaintiff successfully defended a contested prosecution.

221. Accordingly, the claim for malicious prosecution is not made out.

DISPOSITION

222. For those reasons, the plaintiff has failed in each of the claims he mounts against the defendant. In those circumstances, there must be judgment for the defendant.

CONTINGENT DAMAGES

223. Against the contingency that I am wrong in my conclusions on liability, I turn to assess the damages recoverable by the plaintiff had he succeeded in the claims he brings.

224. Appropriately, the case was litigated on the common footing that the Civil Liability Act 2002 (NSW), does not apply to the assessment of damages. [9] As noted earlier, the plaintiff’s damages contemplated general damages as well as personal injury damages associated with alleged psychiatric injury. Claims were also made for aggravated and exemplary damages.

225. For the reasons to which I will come I accept the plaintiff suffered psychiatric injury, which on the evidence resulted from the effects of the arrest. Thus, the personal injury damages to which he would have been entitled had he succeeded can be seen as caused by the battery on which he sues.

226. In my view, damages for false imprisonment would have reflected general damages arising from the deprivation of the plaintiff’s liberty. On my conclusions as to psychiatric injury being caused by the battery, damages for false imprisonment would not have included a component for personal injury damages.

227. Similarly, had the plaintiff succeeded in his claim for malicious prosecution, his damages would have contemplated general damages but no element of personal injury damages. Additionally, the plaintiff claimed the legal costs of defending the prosecution brought against him.

228. The main battleground in relation to damages was firmly focussed on personal injury damages and in particular the nature and extent of the plaintiff’s pre-existing psychiatric problems and whether and if so to what extent the circumstances of his arrest had caused further psychiatric problems and economic loss.

229. Accordingly, it is convenient and instructive to start with a consideration of the assessment of damages for the tort of battery.

Contingent Damages for Battery

The Plaintiff’s Background Employment and Medical History

230. As touched on earlier in these reasons, the plaintiff’s history included mental health issues and problems associated with alcohol.

231. Those matters were the subject of considerable attention in the evidence, going as they do to issues of causation and the quantification of personal injury damages.

232. The defendant by consent tendered a large volume of medical records and reports curated largely from subpoenaed documents (DX24). The defendant, again by consent tendered a document titled Defendant’s chronology (DX7) which includes extracts from the various primary records contained within DX24.

233. The approach taken by the parties to the management of this large volume of material was a sensible one which enables the plaintiff’s history of medical treatment to be considered in an orderly way. The Defendant’s Chronology was provided to Dr Daws and Dr Roberts, the qualified psychiatrists who gave joint evidence before me, and assisted the doctors and the court in being able to digest a significant volume of material.

234. The Defendant’s Chronology also streamlined the cross examination of the plaintiff on matters of history.

235. Nonetheless it is to be observed that the medical records and reports contained within Exhibit DX24 must be considered with the caution reflecting the fact that the circumstances in which they were created may undermine their accuracy and reliability. [10]

236. The plaintiff’s employment history is of obvious importance when weighing the effects of the arrest against the plaintiff’s pre-existing comorbidities.

237. The plaintiff is now 40 years old. He gave evidence that he left school after year 12. He had done a school-based traineeship in retail sales during years 11 and 12 where he obtained some retail experience. After leaving school the plaintiff briefly undertook university studies in accounting and finance but did not complete those studies or obtain any formal qualifications.

238. Subsequently, the plaintiff did some retail work for Vodafone for a period of around two and a half years. He briefly pursued further studies in accounting, however financial needs saw him drop out after a year or so. Following this the plaintiff did some work in a restaurant for about a year before obtaining a traineeship with a financial services company which saw him eventually obtain a Diploma and certification to work as a financial planner.

239. Eventually the plaintiff and his wife moved to Perth for the purposes of his employment with a financial planning company. That didn’t work out because the plaintiff felt he was underpaid for the significant hours of work he performed. He said he was not having a good time there, so he and his wife moved back to Sydney where the plaintiff started working in financial planning and management. The plaintiff said in that position he started working in customer service and after a year or so he was promoted to a position where he was responsible for coaching others. He was promoted again to a more responsible role as team manager in around 2014- 2015.

240. The plaintiff and his wife then decided to open a business. While looking for a suitable business opportunity the plaintiff did some work managing a self-storage facility and later worked for a finance provider where he was hired to develop a coaching framework.

241. Eventually the plaintiff and his wife commenced the business operating a Vodafone franchise in Minto which they were operating at the time of the events in question. The plaintiff described how he negotiated the business arrangements and organised a ten-year lease with a five-year option. He said the plan was to grow the business and sell it after seven years. The plaintiff described building the business up over time and getting to the point where he and his wife were able to buy a unit, then progressing to purchase the house where he was living at the time of the arrest.

242. The plaintiff described navigating through the difficult COVID period being actively involved and hands-on in accessing all available government assistance. He said his wife worked in the shop. She was not working as many hours as him and he was substantially performing the necessary management functions for the business.

243. The plaintiff said that after the arrest his hours changed, as he put it:

“I kind of dedicated all my time to try and figure out what was done, and like best to clear my name. And that was quite stressful, and basically I didn't really work for, like, a year or more or something like that, and then Rupa was working, she had to take over the business because I kind of wasn't able to concentrate on that anymore, and then she has-she had, like, two extra-at least two people were helping her out.” (T: 29.10).

244. The plaintiff gave evidence as to the way in which his psychological problems and the medication he was taking dramatically reduced his capacity for work. He described taking Seroquel to help him sleep. He had not taken that medication prior to the events in question here. As he described it:

‘The medication that I take to help me sleep because I couldn't sleep is quite heavy, so I'm still, like, in brain fog now I still haven't woken up properly, if that makes sense, because it's pretty, like, chronic. I don't know what it is” (T: 29.35).

245. The plaintiff acknowledged a prior history of Attention Deficit Hyperactivity Disorder (ADHD) for which he had been taking medication in the form of dexamphetamine, prescribed by his treating psychiatrist, Dr Williams, over a period of something like eight years prior to events in question.

246. The plaintiff said after around 12 months following his arrest his hours gradually increased although with the problems outlined above, he said he was not the same. He believes there has been a decline in the business because he is not functioning properly.

247. The plaintiff described how because of the restructuring of Vodafone's operations it was expected that the business would come to an end. A draft termination agreement had been formulated by Vodafone with some provision for a runoff to allow the plaintiff the benefit of mobile phone contracts written prior to formal termination. The time frame was uncertain although the plaintiff's expectation was that the business would come to an end by December 2025.

248. When asked in chief about his alcohol consumption prior to the events in question, the plaintiff accepted he had in the past been taken to hospital because of the amount of alcohol he had consumed. He also gave the evidence referenced earlier of taking days off when he would get drunk and “reset”. The plaintiff acknowledged that his drinking problems were something he was trying to work through with his treating psychiatrist, Dr Williams.

249. In cross examination the plaintiff was taken carefully through the records of prior mental health and alcohol issues. Generally, I found the plaintiff to be a reasonably compliant witness. Unsurprisingly, given the subject matter, the plaintiff responded to some of the questions in a somewhat argumentative way. However, my impression was that he was doing his best to answer the questions honestly albeit at times he was quite particular and literal in his approach to propositions put to him. I did not gain the impression however that the plaintiff was being evasive. Rather, I formed the view that the plaintiff’s manner was a product of his personality and the conditions and emotional problems from which he undoubtably suffers.

250. The plaintiff essentially deferred to what was contained in the records and was prepared to accept their accuracy, although generally not recalling specific dates or details.

251. Without canvassing all of the documentary material, the records on which the plaintiff was cross examined disclose that:

252. In April 2013 the plaintiff was referred to a psychiatrist for issues associated with concentration and temperament. His Mental Health Plan at that time referred to insomnia/depression and anxiety, as well as problems with concentration.

253. In May 2013 Dr Shcherbak, psychiatrist recorded a history of problems with organisation and management since childhood leading the doctor to conclude the plaintiff's symptoms were consistent with ADHD.

254. The plaintiff saw a psychiatrist and a psychologist for treatment in relation to his ADHD in 2013.

255. In 2015 the plaintiff was convicted of a drink driving charge with a blood alcohol concentration reading of 0.082.

256. In May 2016 the plaintiff was taken to hospital by ambulance with a history of emotional problems and abusing alcohol over the previous 3 days. He admitted to taking 10x ibuprofen and codeine phosphate the previous day while drinking.

257. In May 2017 the plaintiff was taken to hospital by ambulance for acute alcohol intoxication. A history is noted of a background of depression/anxiety and the plaintiff is recorded as being aggressive and threatening staff at the hospital. The plaintiff was hospitalised overnight under the Mental Health Act 2007 (NSW).

258. In May 2017 the plaintiff was referred to Dr Williams, psychiatrist, who records a history of ADHD and regular alcohol abuse. The treatment which followed included prescription of dexamphetamine.

259. In January 2020 the plaintiff attended Liverpool Hospital. The notes record hyperventilation and shortness of breath. There is a record of the plaintiff consuming 10 endone tablets three days before in an attempt to kill himself and drinking a bottle of whiskey since for the same reason. There is reference to relationship issues with his wife and stress associated with the manager of the shopping centre where he has his business. There is also reference to binge drinking alcohol 3-4 times a week.

260. In August 2020 the Plaintiff attended Liverpool Hospital but left prior to being reviewed. The notes indicate a presentation due to alcohol withdrawal against a history of recent increase in alcohol, approx 1 bottle of whiskey per day. There is reference to hearing voices.

261. Generally speaking, the plaintiff did not deny matters put to him from those records although in most instances had no particular recollection of the consultations and histories recorded. I understood the plaintiff to largely say that if it was documented he would accept it as being accurate. Nonetheless the plaintiff did query the reliability of some of the matters recorded. For example, he did not readily accept he had been hearing voices. As he put it, “I don't recollect that. I have thoughts and I can think and that's a voice, I guess in my head” (T: 137.40). At other times the plaintiff pointed out that whilst there were prior histories of anxiety and emotional problems, as he described it “it has never been chronic like this” (T: 127.35)

262. There were other records not all of which were specifically cross examined on, nor needed to be in the circumstances, which confirm that the plaintiff was presenting with problems associated with his emotional health and consumption of alcohol during 2018 and 2019.

263. Making full allowance for the fact that clinical records will not necessarily be entirely accurate in the detail and are not a transcript of histories provided, there can be little doubt in my view that the plaintiff had florid symptoms associated with depression, anxiety and the effects of his ADHD for many years prior to the events in question here. All the while there was a continuing problem with alcohol abuse which the plaintiff had been battling for many years.

264. It is the question of how reliant the plaintiff was on his wife's assistance before this incident in order to maintain employment and whether, and if so to what extent, the events in question have changed the trajectory of the plaintiff’s mental health and earning capacity which looms large in the assessment of damages.

265. The plaintiff was tested in cross examination in relation to the amount of work performed by his wife in their business prior to the arrest. He said that although his wife worked five days per week he was working seven days and was the driving force of the business, at times being there until midnight.

266. In explaining his role the plaintiff said he would deal with suppliers end manage stock control, deal with technical issues such as when equipment stopped working or computers needed to be updated, research and purchase updated software as needed, attend meetings with people from Vodafone, purchase supplies for the store such as for example cleaning supplies, negotiate the best prices he could obtain with suppliers, organise insurance, do the paperwork, send contracts off to Vodafone and so forth. The plaintiff said there was some variability in the work his wife would perform. He said she would help when he needed her to but in general he was doing most of that managerial work.

267. The plaintiff said that since the arrest in 2020 his wife has taken on tasks previously done by him and, although he is back at work four days a week, he is not doing the same duties as before and is barely managing. He said he just struggles through the day. The plaintiff was asked about a consultation with Dr Williams in 2017 and specifically whether he told the doctor that his wife was quite competent in managing the business when he needed some time away. The plaintiff said it was “relative”, which I understood to mean his wife was not as experienced or proficient as him.

268. Again, the plaintiff’s wife was not called to give evidence. However, as there is no counter factual evidence tendered against the plaintiff’s account, I would not have considered it appropriate to draw an adverse inference by reason of the absence of that evidence in relation to these matters concerning the operation of the business. Nonetheless the fact remains that I was not assisted by corroboration in areas of controversy. In particular, despite the plaintiff’s assertions that he was the mainstay or driving force behind the business, the documentary medical evidence strongly suggests his wife kept the business functioning on what appear to be not infrequent occasions when the plaintiff was affected by florid episodes involving his mental health and alcohol related issues.

The Medical Evidence

260. As noted earlier the plaintiff was examined by consultant psychiatrists for the purposes of this litigation. Dr Daws was retained on behalf of the plaintiff and Dr Roberts by the defendant. The doctors provided a joint report in which they refer to the circumstances of the plaintiff’s arrest as ‘the incident’. The following can be taken from that report:

261. The plaintiff in all probability was suffering from a pre-existing but not formally diagnosed Bipolar II Disorder. He also suffered a pre-existing Alcohol Use Disorder as well as ADHD.

262. It is likely the plaintiff suffered a deterioration in his pre-existing conditions subsequent to the events in question and developed symptoms of Post Traumatic Stress Disorder (PTSD) and a deterioration in his pre-existing conditions leading to a formal diagnosis of Bipolar Affective Disorder which is considered to represent a Bipolar I Disorder.

263. There is a known association between the use of alcohol and PTSD, the use of alcohol and Bipolar Affective Disorder and the use of alcohol and ADHD.

264. It is considered that the aggravation of the Bipolar II Disorder led to a progression to a Bipolar I Disorder. It appears the incident in question was the precipitant for an overall decline in the plaintiff's mental health with a period of deterioration in 2021, although there is evidence of subsequent improvement and stabilisation thereafter.

265. There has been a consequent increased need for medication subsequent to the events leading to the arrest.

266. The plaintiff was compromised with respect to his capacity for employment as a result of the events in question. He was unfit for work during 2021 and regained partial fitness for employment by 2024. It is expected there will be an overall reduction in the plaintiff’s work capacity with fluctuations in the plaintiff's capacity to participate in employment in the future.

267. Both experts commented on the limited evidence available to them at the time of their assessment as to the plaintiff’s condition prior to the incident. They noted that subsequent to the incident the plaintiff became acutely unwell in 2021 when he was non adherent to prescribed treatment. They observed that after the subject events the plaintiff required several admissions to hospital including an involuntary admission pursuant to the Mental Health Act at Liverpool Hospital.

268. By the time the doctors came to give joint evidence before me they had the benefit of historical information and details of treatment contained in the Defendant’s Chronology.

269. Whilst Bipolar Disorder does not appear to have been the subject of formal diagnosis prior to the events in question, it is clear that the medical history contained indications that it was suspected. In any event both Dr Daws and Dr Roberts agreed that the plaintiff suffered a Bipolar Disorder prior to the incident.

270. Dr Daws provided a description, with which Dr Roberts agreed, of the difference between Bipolar I and Bipolar II and the nature of the condition in the following terms (T: 282.10 – 282.25):

So both Bipolar I and Bipolar II Disorders are Bipolar Disorders. They're a mood disorder characterised by a bipolarity in mood in terms of periods of depression and then periods of elevated mood. The difference is in terms of to what extent that mood is elevated. So with Bipolar II, there is a ‑ there are hypomanic episodes. Hypomanic are the kind of less severe version of a manic episode, which is where someone is very elevated in mood, lots of energy. They don't need to eat as much. They don't need to sleep as much. Impulsivity. And with manic episodes, as opposed to hypomanic episodes, you may also get psychotic symptoms. So we're talking about disturbance of thought form, where you might see that explained as thought disorder. People aren't making sense when they're talking. Delusions, so firm, fixed beliefs not based in reality, and perceptual disturbances. Most typically, hearing voices other people can't hear (T:282.10 282.25).

265. Dr Daws said the evidence showed that prior to the incident the plaintiff was taking Quetiapine, an antipsychotic medication, which has a side effect of sedation, saying that people report cognitive slowing and fogginess when they are on such medications and it can affect memory as well.

266. Both doctors accepted the diagnosis of PTSD arose as a result of the circumstances of the arrest.

267. The doctors agreed that alcohol and PTSD commonly occur together. Alcohol is used to try and cope with symptoms typically but is it an inappropriate way of coping. Alcohol affects mood and can be a barrier to engaging in effective treatment. Dr Daws was of the view the plaintiff’s alcohol use has worsened the plaintiff's prognosis and presents a barrier to effective treatment and recovery. In their joint report the doctors expressed the view that it was not apparent there was any change in the plaintiff’s pre-existing Alcohol Use Disorder as a result of the incident.

268. Dr Roberts gave evidence in relation to the interrelationship between the plaintiff’s pre-existing psychiatric problems and those which followed the events in question:

I'm ‑ you've named all these diagnoses. A few of them existed before. So we're accepting the fact ‑ we're accepting as fact that he was working seven days a week, and that he was the mainstay, or at least the significant contributor to the running of the business before, but the alcohol consumption at these sort of levels is a significant impediment to functioning effectively. ADHD is a significant impediment to functioning effectively, if ‑ unless it's properly treated. Mood instability, in itself, is an impediment, if it's not effectively treated. Does PTSD add substantially to compromised functioning in the workplace? It can, but it's not an absolute, and I would say that there are entire generations who, on careful assessment, would exhibit PTSD symptoms, and in substantial numbers, they were gainfully employed. (T:289.47 – 290.10)

269. Dr Roberts said, if one were to accept the proposition that the plaintiff was running his business properly before and has not been running it properly since the events in question, a reasonable explanation is that “the admixture of psychiatric diagnoses has undermined his ability to do so”.

270. Of this issue, Dr Daws said:

I would agree and just add to the ‑ to say that it is quite complex because there is significant overlap between ‑ of the symptoms between the different conditions, but I think overall, all of ‑ and the conditions affect each other. So there's significant complexity there, but overall, there has been a decline, I would say, in terms of his overall mental health.(T: 291.10 - 291.15)

271. The doctors agreed that stress can be a factor in the progression from Bipolar II to Bipolar I Disorder. Ultimately, the doctors accepted that the nature and extent of the stress is a relevant factor in determining whether an event is causative. As Dr Roberts explained if an event were entirely benign it would be necessary to look for other causes.

272. In terms of the plaintiff's work capacity before and after the events in question, the doctors both accepted that the plaintiff’s history of alcohol abuse requiring episodic hospitalisation impacted on his employability. Dr Roberts thought a supportive spouse involved in the business was relevant to the plaintiff being able to maintain employment. Dr Daws pointed out that the available records do not really provide insight into the position in between hospital admissions.

273. Although both doctors agreed treatment has not been optimal, they felt there was scope for improvement once the proceedings were behind the plaintiff. They were of the view that the plaintiff’s Bipolar and ADHD were conditions that required control and could not be cured. In their view the PTSD the plaintiff suffered as a result of the events in question and the progression to Bipolar I increased the plaintiff’s treatment needs.

274. Both doctors were of the opinion that the pre-existing problems of alcohol abuse, ADHD and Bipolar II Disorder would have potentially impacted on the plaintiff’s employability in any event.

275. Dr Roberts put it this way:

The combination of alcohol use at the levels described and a untreated Bipolar II disorder with stimulant treatment on board, I think I would expect that such a person would have difficulty obtaining employment on the open market, but running a business where you have a supportive business partner who's in a position to pick up slack, that's not untenable. (T:318.05)

276. Dr Daws added:

I would agree, and just to add that the employment history that Mr Cash supplied is certainly, I think, supportive of that. There was something of a chaotic employment history beforehand - before he started operating his own business. (T: 318.10)

277. Both doctors agreed that the plaintiff’s pre-existing state rendered him at risk of psychiatric injury from the ordinary stressors of daily life.

278. It is clear from the evidence of Dr Daws and Dr Roberts that the precipitating event for the psychiatric injury suffered by the plaintiff on 19 November 2020 was the arrest or, in terms of the legal categorisation, the battery committed when he was arrested in the bathroom. This is consistent with the plaintiff’s evidence and histories which focus on his perceived injustice of being wrongfully arrested in his own home. On that basis, I would have been satisfied that the battery associated with the plaintiff’s arrest was therefore the causative event in the sense that it made a material contribution to the psychiatric injury suffered by the plaintiff on 19 November 2020.

279. Accordingly, based on the largely uniform evidence of Dr Daws and Dr Roberts, I would have found that as a result the battery associated with the arrest of the plaintiff on 19 November 2020, the plaintiff suffered psychiatric injury namely, a Post Traumatic Stress Disorder and aggravation of a pre-existing Bipolar II Disorder, leading to a progression to a Bipolar I Disorder.

The Accounting Evidence

280. Both parties qualified expert accountants to provide opinions relevant to the existence and quantification of economic loss. Mr Lee was qualified for the plaintiff and Mr Wallace for the defendant.

281. The experts provided a joint report dealing with the areas of controversy between the opinions contained in their individual reports. They gave evidence concurrently before me.

The Assessment of Past Economic Loss

282. It is apparent from the experts’ reports that the business in question was operated by a corporate entity, CR Capital Pty Ltd, of which the plaintiff and his wife were the only directors and shareholders. In the years before and since the plaintiff's arrest the available records show that income from the company has been largely distributed equally to the plaintiff and his wife.

283. The experts have adopted distinctly different approaches to the assessment of past economic loss. Mr Lee has adopted what has been termed the ‘relative contribution’ approach to the calculation of loss. In taking that approach, Mr Lee has made assumptions as to the relative contributions of the plaintiff and his wife prior to the incident in percentage terms, which he puts at 70% for the plaintiff and 30% for his wife. After the incident he works on the basis that there was a role reversal and that the plaintiff's wife contributed 70% to the generation of income and the plaintiff 30%. Mr Lee arrives at his pre-incident percentage relative contribution on the part of the plaintiff by assumptions as to hours worked plus a premium for (managerial) services provided by the plaintiff.

284. Mr Lee calculates the plaintiff’s ‘true’ earnings pre-incident which is arrived at by applying the plaintiff’s relative contribution of 70% to the earnings of the business.

285. By indexing those true earnings, applying CPI increases, Mr Lee calculates the plaintiff's ‘notional true’ earnings for the period to 30 June 2025. Mr Lee then calculates what he calls the plaintiff’s ‘actual true’ earnings since the incident based on a 30% relative contribution.

286. Mr Lee then compares ‘notional true’ earnings with ‘actual true’ earnings and calculates a loss of $254,101 for the period to 30 June 2025.

287. In very simple terms then the approach taken by Mr Lee allows as economic loss the difference between what would have been a 70% contribution to earnings of the business by the plaintiff and an actual 30% contribution to those earnings.

288. Mr Wallace on the other hand considers the ‘relative contribution’ approach to be inappropriate. In his view the most accurate way of assessing loss is by reference to the increase in labour costs incurred by the business following the incident in November 2020. He explains that to assess loss by so called ‘relative contributions’ is to equate a change of hours worked with loss of income, which on the facts of this case is not established.

289. Mr Wallace sets out the increased labour costs of the business for the period from November 2020 to 30 June 2023. He does that by comparing the actual wage expenses in the period from July 2020 to the date of the incident in November 2020 with labour costs incurred after the incident. His rationale is that labour costs increased from July 2020 to the date of the incident because the business had employed a person who it can therefore be assumed reflected an increased labour cost incurred by the business irrespective of the incident in question.

290. Mr Wallace did not allow any additional labour costs after 1 July 2023 as the labour costs of the business were lower in the 2024 financial year than the pre-incident labour costs. He assumed that would be representative of the position with labour costs going forward from that time.

291. On that basis, Mr Wallace calculates past loss at $51,280.

292. For the purpose of the joint report the plaintiff requested the experts to apply a 50% reduction to take into account pre-existing and other factors. On that basis Mr Lee calculated past loss to 30 June 2025 at $165,723 and Mr Wallace calculated the loss at $25,640.

293. There are, in my view, difficulties with the approaches adopted by both experts in relation to the method of calculating past economic loss.

294. I do not consider Mr Lee's approach to be productive of an accurate assessment of the plaintiff’s past loss of income. In terms of methodology, Mr Lee's assumptions in relation to the plaintiff's relative contribution by reference to hours worked by him as compared to his wife is not based upon evidence established before me. The plaintiff said he worked more hours and more days per week than his wife, but the evidence did not extend to any precise details. However, leaving that aside the more fundamental difficulty I have with Mr Lee's approach is a conceptual one. The fact that there was a change in the division of labour between the plaintiff and his wife does not of itself mean there was a financial loss by the plaintiff who, on the face of it, continued to draw income on par with the income earned by his wife following the incident.

295. The approach taken by Mr Wallace in my view provides a more tangible measure of loss by drawing a plausible connection between increased expenses after the incident and the assumption that the plaintiff was working less hours in the business. Nonetheless increased labour costs are not necessarily reflective of the full extent of loss.

296. The authorities make clear enough that the task to be undertaken is to assess loss of earning capacity. Whilst loss of income is not necessarily synonymous with lost earning capacity, it can provide a valuable guide to the measure of past economic loss.

297. It seems to me a valuable but not necessarily definitive reference point in the consideration of past economic loss in the present case would be whether, and to what extent, there has been a loss of net profit since the incident. The records which are available indicate a loss of net profit after the incident at least for the period up to 30 June 2023. However, it is not possible to know the extent of that loss, nor is it clear whether, and if so to what extent, there has been an ongoing loss of profit. This is because, as Mr Wallace explained in his oral evidence, not enough information is available to perform a meaningful analysis of the profitability of the business before and after the events in question.

298. Of course, in the background there is the very significant medical and factual issue of whether and to what extent any loss is associated with the effects of the psychiatric injury alleged by the plaintiff as opposed to the inevitable impact on the business of pre-existing factors.

299. Additionally, it is arguable that any loss of profit translating to a loss of income causally related to the psychiatric injury suffered by the plaintiff would be a loss suffered only in part by the plaintiff and that his wife, who was an active participant in the business, also suffered loss.

300. Unlike the situation prevailing in Husher v Husher (1999) 197 CLR 138; [1999] HCA 47, an authority referred to by the accountants and canvassed in submissions, the plaintiff’s wife did not make only a token contribution to the business and this was not a case of income splitting where one spouse generates the income earned by the business. In the present case the plaintiff’s wife on any view of it made a significant contribution to the operation of the business. Accordingly, any loss is not entirely that of the plaintiff.

301. In my view the many variables at play here, not least of which is the tangible prospect that the plaintiff was likely to have been impaired in his capacity to work for periods by reason of his pre-existing mental health and alcohol related issues, means there is no scope for a mathematical assessment of loss. The allowance must be approached by way of a buffer.

302. As I have said I consider Mr Wallace’s approach provides a more reliable starting point. Taking into account the potential for additional loss of profits to date, and discounting to take account of the pre-existing factors, and the reality that any loss suffered is not entirely that of the plaintiff, I consider a realistic buffer for past economic loss would be $75,000 inclusive of interest.

The Assessment of Future Economic Loss

303. The accountants were asked to direct their consideration of future economic loss to three potential career paths advanced on behalf of the plaintiff, namely; that the plaintiff would but for the injury have worked as an employed mortgage broker; that he would have worked as a self-employed mortgage broker; and that he would have continued working in his pre-injury business.

304. So far as the future is concerned, beyond making calculations based on parameters provided, the experts provide little assistance in the task to be undertaken in assessing loss.

305. The plaintiff made an expansive claim for future economic loss of more than $800,000 by reference to the earnings of a mortgage broker.

306. Here, the comments of Dr Daws and Dr Roberts loom large. It will be recalled that although the doctors considered the plaintiff had suffered a further compromise of earning capacity by reason of the psychiatric injuries caused by the incident, both felt that by reason of the plaintiff’s pre-existing problems he would have difficulty obtaining employment on the open labour market. As Dr Daws put it the plaintiff had a chaotic employment history. Both thought that the plaintiff’s pre-existing problems meant that running a business with a supportive partner was the more tenable option for him.

307. In my view any impairment of capacity for the plaintiff to work as an employed mortgage broker would not lie in the injuries caused as a result of the arrest but result from his longstanding problems.

308. It is inescapable on the evidence that irrespective of the events in question, there was a real potential if not an inevitability that the plaintiff’s pre-existing mental health and alcohol related issues would have come against him in the future as they had in the past, even if he remains in the protected types of employment environments suggested by Dr Daws and Dr Roberts. This must be factored into the assessment of future economic loss. [11]

309. Nonetheless it is clear on the medical evidence that the injuries suffered as a result of the events in question have further reduced the plaintiff’s capacity for work.

310. In my view, the plaintiff’s most likely future circumstance but for injury was to continue to attempt to operate his own business. He was vulnerable to psychiatric injury from the ordinary stressors of daily life. To the extent that he was not able to work in his own business, it is likely he would have struggled to maintain long term employment as an employee. Such capacity as he had for work prior to the incident has now been further undermined by his PTSD and the worsening of his Bipolar Disorder.

311. Again, future economic loss could only be assessed by way of an impressionistic buffer.

312. Bearing in mind the level of the plaintiff’s pre-injury earnings and weighing the various significant factors to which I have referred, I would assess future economic loss at $150,000.

The Assessment of Past Out of Pocket Expenses

313. The plaintiff relied on subpoenaed documents from Services Australia to support a claim for past out of pocket expenses in the amount of $9,607.77. That material does little more than provide details of a wide range of treatment, much of it irrelevant from which an estimate is made of the costs said to have been incurred as a result of psychiatric injury caused by the arrest. Similarly, there is an estimate of Medicare expenses said to be related to the injury sued on.

314. Accepting that the claim for expenses incurred to date would always be fraught with the difficulty of trying to unravel that which is related and that which would have been incurred anyway, it seems to me a broad brush approach would be called for. Both Dr Daws and Dr Roberts accept there has been an increased need for treatment as a result of the injury in question. Discounting the amount claimed to take account of potential competing causes, I would allow the sum of $5,000 for past out of pocket expenses.

The Assessment of Future Out of Pocket Expenses

315. Dr Daws and Dr Roberts deal with the cost of future treatment in their respective reports. In their joint report the doctors are largely in agreement as to the future need for future treatment.

316. It is clear both doctors recognise the fact that treatment would have been needed in any event for the plaintiff’s pre-existing problems although that need has been increased by the additional injuries suffered as a result of the events in question. Dr Roberts provides an assessment of the costs specifically related to the injuries suffered in the incident. Dr Daws as I read her report is more general. Notably Dr Roberts allows an amount for one potential hospital admission to deal with the effects of the plaintiff’s PTSD. On the evidence as it stands, that allowance would have to include some deferral.

317. Largely adopting the approach to assessment of future expenses advanced by Dr Roberts, I would allow the sum of $35,000 for future out of pocket expenses.

The Assessment of General Damages

318. The foregoing reasons make clear the nature and extent of the plaintiff’s psychiatric injury which, together with the trespass to the person, would inform the allowance for general damages in respect of the battery in question.

319. Again, the award of general damages is an impressionistic exercise. In my view the appropriate award for general damages on the facts of this case for the battery alleged by the plaintiff would be $80,000.

320. In accordance with orthodox principles [12] , I would also allow interest at 2% on past general damages. For that purpose, I would have assessed past general damages at $40,000.

Contingent Damages for False Imprisonment

321. Although the plaintiff suffered no personal injury as a result of the false imprisonment he alleged, the deprivation of liberty is a serious infringement of the plaintiff’s rights, not to be taken lightly. In all the circumstances, had the plaintiff succeeded in his claim for false imprisonment, I would allow general damages in the sum of $20,000.

322. I would allow interest at 2% on the full amount of those general damages.

Contingent Damages for Malicious Prosecution

323. Had the plaintiff succeeded in his claim for malicious prosecution, again for the reasons I have explained, there would be no component for personal injury damages. I would have allowed $30,000 in general damages plus interest on the full amount of those damages at 2%.

324. Additionally, I would have allowed the amount of $39,690 being the amount claimed by the plaintiff for legal fees incurred in defending the charges brought against him in the Local Court.

Aggravated and Exemplary Damages

325. The plaintiff advanced a claim for aggravated and exemplary damages. The principles which apply to the award of such damages were outlined by Beazley P in State of New S**outh W**ales v Cuthbertson [2018] NSWCA 320 at [87]-[88] in the following terms:

87. The distinction between aggravated and exemplary damages is well established. In Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; [1966] HCA 40, Taylor J, at 130, explained that aggravated damages are compensatory in nature resulting from the “circumstances and manner of the defendant’s wrongdoing”. Aggravated damages may be awarded to reflect the extent to which the wrongful conduct increased the hurt to the plaintiff. The injury compensated by an award of aggravated damages may be “intangible”: New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57 at [31].

88. Exemplary damages are awarded to “punish and deter” the wrong-doer. They are not compensatory. It is usually said that exemplary damages may be awarded where a defendant has acted in “conscious and contumelious disregard of the plaintiff’s rights”: see Uren v John Fairfax & Sons at 154 per Windeyer J; XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448; [1985] HCA 12 at 471. The damages so awarded mark the court’s “disapprobation of the conduct”: New South Wales v Ibbett at [35].

Aggravated Damages

326. In considering the contingency of aggravated damages, there is an obvious difficulty in anticipating the facts underlying the plaintiff succeeding in circumstances where I have reached a contrary conclusion.

327. Nonetheless, in my view, the only conduct which would have potentially engaged an entitlement to aggravated damages would be the plaintiff being taken downstairs and to the police vehicle in his underwear, and not being given the pants his wife had provided until he got to the police station.

328. It is obvious that being taken out in public in his underwear would have caused hurt and humiliation to the plaintiff. If it occurred, it was entirely unnecessary.

329. The evidence on this point was sparing. Again, the plaintiff’s wife was not called, although on the plaintiff’s case she would obviously be expected to have been able to give evidence on the point.

330. Hobbs gave direct evidence that she recalled this particular job because of Gordon’s injury. She was definite that the plaintiff had his pants on when taken downstairs, which his wife had given him. I was impressed by Hobbs as a witness. As noted, she is no longer a police officer. She is a paramedic now and was previously a nurse. In the evidence referred to earlier in the judgment, Hobbs was candid with no suggestion of any interest in the effect of her answers on the way in which the evidence of the other officers was viewed. My impression of her evidence on the question of whether the plaintiff was wearing pants when taken to the station was that it was her genuine recollection. Of course, it might be said that she had some self-interest because it would reflect poorly on her if the plaintiff was transported in his underwear and I do not ignore that possibility when considering this issue.

331. The plaintiff argued that whilst handcuffed he could not have been expected to be able to put on his pants and protocol precluded him from contact with his wife at that time in the aftermath of her complaint of domestic violence.

332. Otherwise, Gordon said the plaintiff was probably handcuffed with his hands behind his back and gave what I thought was tenuous evidence suggesting the plaintiff may nonetheless have been able to put his pants on while handcuffed.

333. Senior Constable Hollingworth gave some evidence about the plaintiff being processed at the police station. He said the plaintiff was wearing pants at that time but he could not shed any light on when the plaintiff may have put his pants on.

334. The plaintiff argues Hobbs’ recollection is flawed because her evidence is given long after the event with no contemporaneous statement on the issue. That is true, however Hobbs gave what I consider to be very convincing evidence when challenged. She described the plaintiff sitting on the bed and his wife giving him pants. She said, “I have a recollection of it, but he had his pants on. He had pants on from the bedroom, he had pants on in the car and the pants were still on and that’s how they were on when he got into custody. I never took anyone into custody without being clothed” (T: 482.25).

335. At the end of the day, either account could be true. Without evidence from the plaintiff’s wife, I would realistically be left with a choice between the evidence of the plaintiff and Hobbs. At the end of the day, the plaintiff bears the onus of establishing this aspect of the claim. In my view, that onus was not discharged.

336. Accordingly, I would not be satisfied that the plaintiff has made out a claim for aggravated damages.

Exemplary Damages

337. In support of the claim for exemplary damages, the plaintiff argued essentially that the officers arrested him for an improper purpose, they colluded in the preparation of statements and they failed to wear body worn video equipment. Otherwise, the plaintiff makes a complaint in relation to the evidence gathering during the conduct of the criminal proceedings.

338. Again, in assessing this contingency, there is the obvious difficulty having regard to the fact that if, contrary to my determination, the plaintiff had succeeded, one must speculate as to the factual foundation for that success. However, in my view, there was nothing in the conduct of the officers which, even if the plaintiff succeeded, would rise to a deliberate contumelious disregard of the plaintiff’s rights.

339. Accordingly, I see no basis for an award of exemplary damages.

Orders

340. For the reasons outlined in my disposition of the liability issues, I make the following orders:

341. Judgment for the defendant.

342. The plaintiff is to pay the defendant’s costs.

********

I certify the preceding 340 paragraphs and 2 orders to be a true copy of his Honour Judge J Catsanos SC’s reasons for decision as amended on 17 August 2026. Associate

Endnotes

See Croucher v Cachia [2016] NSWCA 132 at [24]-[25].

As recognised inter alia at s 203(4) LEPRA. See also State of New South Wales v Bouffler [2017] NSWCA 185.

See McIntosh v Webster (1980) 43 FLR 112 at 123.

T: 703.25 and 709.02

See State of New South Wales v Bouffler (supra) at [198]

A v New South Wales, supra, at [34].

Ibid [91].

Ibid [70].

See s 3B(1)(a) Civil Liability Act 2002 (NSW)

See generally Mason v Demasi [2009] NSWCA 227 at [1]-[2].

See generally Seltsam Pty Limited v Ghaleb [2005] NSWCA 208 at [93]-[109]

MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657; [1991] HCA 3

Amendments

17 August 2026

Typographical corrections to paragraphs [29], [33], [36], [38], [51], [99], [100], [144], [184], [196], [239], [280] and [313]