Findings and conclusion on credit
162The direct conflicts between the evidence of the plaintiffs and the other witnesses on most of the key matters concerning the events on 21 February 2008 render it necessary to consider the credibility of the respective protagonists.
163When assessing credibility it cannot be ignored that during the course of the trial Ms Chen, in particular, was inexcusably evasive. She regularly procrastinated or was specious in the way she responded to questions, sometimes even to simple, straightforward questions.
164In this regard I agree with the general thrust of the defendant's submissions concerning Ms Chen's evidence, in particular:
"Although behaviour, tone of voice and demeanour cannot be readily ascertained by reference to the transcript, Chen's fury and anger in the witness box was at times palpable and would have been observed by the court."
165The manner in which Ms Chen gave her evidence was largely the reason her cross-examination took so long and the trial became so drawn-out and protracted, and at times digressive.
166She was particularly evasive and tendentious in her evidence about the inconsistent histories she gave to the psychiatrists, and about the large sums of money in her bank account.
167I do not, however, rely solely on her demeanour, appearance and conduct in court as the determinant of her unreliability as a witness. Rather, I have sought to rely predominantly on contemporary materials, objectively established facts, independent support from other witnesses, and the apparent logic of events.
168Nor do I rely on the allegations that Ms Chen repeatedly screamed and shouted, "I will shoot you" at the two police officers. It is true that Mr Forwood gave evidence that this was what she said. He was adamant that she used the words, "I will shoot you. I will shoot you." I pressed Mr Forwood about his recollection on this:
HIS HONOUR
"Q. Spell that please?
A. SHOOT."
169I have no reason to doubt Mr Forwood's sincerity as to his recollection, but at the end of the day I could not comfortably satisfy myself that the police officers and Mr Forwood were not genuinely mistaken about the words Ms Chen used. In the same sense, I was similarly unable to comfortably satisfy myself that the two police officers deliberately deleted the photos from Ms Chen's camera. So neither of these allegations played a part in my assessment of credit.
170In one sense it is irrelevant whether Ms Chen was actually screaming, "I will sue you", because what is more important is the fact that she was yelling and screaming at them, a fact that is more consistent with the police version than hers, and that they believed in the heat of the moment, that she was threatening to shoot them. For all they knew, given the violence she employed, she may well have had a gun. These matters are not to be assessed with the luxury of calm retrospective analysis, in the light of subsequently acquired knowledge.
171Similarly, I have not taken account the allegation that Ms Chen attempted to bribe Mr Forwood to give favourable evidence on her behalf. It is true that she offered him money to come to court willingly, but the cross-examination was insufficient for me to conclude that the offer extended beyond reimbursement of expenses incurred or the loss of any wages as a result of going to court.
172Nor do I rely on the photographs of Ms Chen's injuries to make any assessment of credit, either hers or that of the police officers. As I have already said, the photographs were consistent with Ms Chen struggling and writhing around on the ground, as the police recounted, not of someone lying passive and unresisting on the ground. The bruise on her back is consistent with Officer Cleofe placing his knee on her back to restrain her while attempting to apply handcuffs.
173Other than the conflict as to whether Ms Chen was screaming "I will shoot you" or "I will sue you", it seems to me that Mr Forwood's evidence was equivocal in terms of corroboration, given that he arrived after the arrest of Ms Chen. What he saw was largely in accordance with the photographs he took (Exhibit B). It is true that he complained to the police officers about their treatment of Ms Chen, saying things like, "You're being excessive. She's only little. Let her go". But he wasn't there to witness her behaviour before she was subdued, brought to the ground and handcuffed.
174Similarly, what was it that the other police officers could or should have given evidence about, other than the "I will shoot you" assertion? For my part, the Jones v Dunkel submission was specious, and speaks more about the weakness of the plaintiffs' case than any deficits in the evidence called on behalf of the police.
175As submitted on behalf of the police, Ms Chen's evidence was exaggerated and totally lacking in candour. It is inconceivable, for example, that a woman with her high level of intelligence could have misunderstood the nature of the inconsistent histories given to the psychiatrists. Her conduct in this regard demonstrated to me that here was a person capable of misrepresenting the truth for the purposes of personal gain. Likewise, the failure to pay the solicitor's fees, when there was plenty of money to do so, indicated a capacity for deceit.
176The only independent witness was Ms Farah, and her evidence totally contradicted that of Ms Chen, most particularly the fact that Ms Chen was asked to leave the premises, and that the police officers did not go straight up to Ms Chen on arrival. Rather they first spoke to Ms Farah, then went to speak to Ms Chen.
177One of the more curious aspects of Ms Chen's case is that it seems to be accepted, at least by those representing her, that she was asked to leave the premises, not just by Ms Farah but also by the police. For example, in the written submissions, the following propositions are put:
"Constables Jacques and Cleofe arrived at Laing & Simmons at 1.42pm...
Ms Chen was sitting quietly and according to the police officers, was not acting in an offensive manner... Constable Cleofe said to the First Plaintiff "You are going to have to leave as these people don't want you here" Constable Jacques said, "Irene, I empathise with your situation but you have to leave"...Ms Chen was not warned that she could be arrested for trespass or for being on inclosed lands and if she did not leave she would be liable to have a penalty notice issued against her (section 10, Inclosed Lands Protection Act) or be arrested...
At its highest Ms Chen may have known that she was unwelcome at Laing & Simmons and should leave. She would not have known she may have been in breach of the Inclosed Lands Act. She would not have known that she was arrested for a breach of that Act and probably believed the police were agents of Laing & Simmons who were entitled to remove clients on request. Had Ms Chen been informed by Constables Jacques and Cleofe she was in breach of the Inclosed Lands Act she might have gone more willingly and the ensuing altercations and subsequent second arrest may not have taken place."
178These submissions concede that Ms Chen was not only asked to leave the premises, but was asked in a polite and sympathetic manner.
179Once the totality of events within the Laing & Simmons office and outside are examined in their entirety, the falsity of Ms Chen's account is exposed. The improbability that the police would have escorted Ms Chen from Laing & Simmons without first asking her to leave is conceded. The suggestion that she was "frog-marched" to the door is the product of hyperbolic advocacy. It is improbable that Ms Chen was then dragged down the street. The suggestion that she was dragged into a side street was a further example of the exaggerated portrayal of the events by and on behalf of Ms Chen and her mother. More probably, Ms Chen was escorted outside and let go. There was no reason for a gratuitous assault on the plaintiff, and it was entirely inconsistent with the polite and sympathetic approach taken by the officers inside the premises. It was only a result of Ms Chen's desperate attempts to re-enter the premises that the unfortunate subsequent train of events ensued. The scenes depicted in the photographs taken by Mr Forwood on Ms Chen's camera, and why things deteriorated to the extent they did, is very clearly explained by the course of those events. It is also improbable that Ms Chen was punched in the back. What is more probable is that she was forcibly brought to the ground by police officers employing standard police techniques to subdue and control a person resisting and acting in a dangerous and violent manner, and a knee placed in the small of her back as described by Officer Cleofe. The bruise on her back I have already discussed. It was not the result of a punch.
180The submission that there was insufficient time for events as described by the police to have occurred was another example of the factitious nature of the plaintiffs' presentation. The facts demonstrate that the events described by the police officers fit neatly into the established time frame. Clearly, the call for back-up police was necessitated by the conduct of the plaintiff, compounded by the arrival and interference of Ms Xuan and Mr Forwood. It is improbable that until that stage Officers Cleofe and Jacques required assistance, or that the additional police arrived other than in response to that call, or within the time frame suggested by the plaintiffs.
181I was also unimpressed with the belated allegations by Ms Chen of racist and other derogatory remarks made by the two police officers, including calling her a prostitute. These were further examples of the hyperbole and extravagance employed by Ms Chen, in addition to other phrases used by her, such as the police throwing her into the van "like a ball", and throwing her into a cell "like rubbish".
182Overall, therefore, I am comfortably satisfied that Ms Chen was an unreliable witness.
183I was similarly unable to accept Ms Xuan as a reliable witness. She too was evasive and obstructive when giving her evidence. She also exaggerated her case, and tailored her evidence to suit her position and that of her daughter.
184The conduct of Ms Xuan in the police station was unacceptable. There was no appropriate basis for refusing to cooperate with the police and not give her name. I do not believe, however, that she threatened the police, and I accept that when she called out something like "U Doka", it was in fact a plea for a doctor to assist her daughter. Nevertheless, her conduct within the police station was otherwise aggressive and uncooperative. Although Ms Xuan also misbehaved in Court, and at one stage I had to insist that she remain outside the courtroom given her unacceptable interference during the cross-examination of Ms Chen, I did not take that into account in assessing her credibility as a witness.
185However, many aspects of Ms Xuan's evidence were unsatisfactory. I have already referred to her evidence about the bank accounts and her handbag (which she in fact left in the car). In addition, the evidence Ms Xuan gave about her employment and loss of income, and her reasons for being in Australia, were exaggerated and misleading. But it was her account of the events on 20 February 2008 and 21 February 2008 that ultimately persuaded me that her evidence was not to be preferred to that of the two police officers.
186Ms Xuan obfuscated, exaggerated and prevaricated about the episode in the street outside Laing & Simmons. I was particularly unimpressed by her insistence that Officer Jacques had grabbed her by the throat in an attempt to strangle her, referring to the photographs to support the assertion, when on any objective assessment of the photographs in Exhibit B, that was not what happened.
187By comparison, the two police officers gave uncomplicated, straightforward evidence. Their accounts of events were unembellished and consistent. Such discrepancies as may have emerged were minor and in my view understandable. Their evidence was unshaken on key matters, including the assaults on them by Ms Chen, Mr Forwood and Ms Xuan. Their accounts of the conduct of Ms Chen, and their interactions with her, both inside and outside Laing & Simmons were logical and coherent. Their evidence was corroborated by Ms Farah, and by Mr Forwood. There was no necessity for the other officers who arrived later, to be called. Those other officers did not arrive by coincidence or by accident. They can only have been there as a result of a call for back-up. The reason back-up was required was because Ms Chen was resisting and struggling, and on their arrival Ms Xuan and Mr Forwood both set upon the two police officers.
188The plaintiffs placed great store on their allegation that the police officers deleted the photographs from Ms Chen's camera. But all that was established was that it was possible for one of the officers to have done so. But it was equally possible that someone else did so. It was also conceivable that the photos, assuming they were deleted, were deleted accidentally, by the plaintiffs, by Mr Forwood, or by one of the visitors who attended at the police station to assist the plaintiffs. Nor as a matter of logic was it to the advantage of the police officers to delete the photos. The pictures were not inconsistent with the police account. As I have already said, I was unable to comfortably satisfy myself that the two police officers deliberately deleted the photos from Ms Chen's camera. Thus, the allegations that they did so played no part in my assessment of credit.
189For these reasons I have concluded that much of the plaintiffs' evidence was unreliable. The result is that I am not prepared to accept their evidence where it has not otherwise been independently established by other reliable or objective material. I prefer, therefore, the police version of events and conversations where they were at odds with the evidence of the plaintiffs.