Costello v State of NSW - [2017] NSWDC 152 - NSWDC 2016 case summary — Zoe

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Costello v State of NSW

[2017] NSWDC 152

District Court of NSW|2016-09-02

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At a glance

Source facts

Court

District Court of NSW

Decision date

2016-09-02

Catchwords

(1938) 60 CLR 336 Carr v Finance Corporation of Australia Ltd [No 1] [1981] HCA 20
(2014) 242 A Crim R 319 Darcy v State of NSW [2011] NSWCA 413 Dicianni v R
Pintabora v R [2015] NSWCCA 201 Fox v Percy [2003] HCA 22
214 CLR 118 Gray v Motor Accidents Commission [1998] HCA 70

Source

Original judgment source is linked above.

Catchwords

(1938) 60 CLR 336 Carr v Finance Corporation of Australia Ltd [No 1] [1981] HCA 20(2014) 242 A Crim R 319 Darcy v State of NSW [2011] NSWCA 413 Dicianni v RPintabora v R [2015] NSWCCA 201 Fox v Percy [2003] HCA 22214 CLR 118 Gray v Motor Accidents Commission [1998] HCA 70(2012) 217 A Crim R 571 JB v The Queen [2012] NSWCCA 12(2012) 83 NSWLR 153 Johnstone v State of New South Wales [2010] NSWCA 70 Jones v Dunkel [1959] HCA 8(1959) 101 CLR 298 Lyons v Chief Constable of West Yorkshire [1997] EWCA Civ J0424-7 MBP (SA) Pty Ltd v Gogic [1991] HCA 3(1991) 171 CLR 657 Mason v Demasi [2009] NSWCA 227 Minister for Immigration and Multicultural Affairs v Eshutu [1999] HCA 21(1999) 197 CLR 611 NSW v Ibbett [2006] HCA 57(2005) 222 CLR 612 Spautz v Butterworths & Anor [1996] NSWSC 614 State of NSW v Abed [2014] NSWCA 419State of New south Wales v BeckEx Parte Helton Bellbird Collieries Pty Ltd (1944) 69 CLR 407 Vaccaro v MLC Limited [2016] NSWDC 85 Williams v The Queen [1986] HCA 88

Judgment (71 paragraphs)

[1]

[3]

Table of Contents Nature of case [1] - [6] Facts not in dispute [7] - [47] Factual matters in dispute [48] Procedural matters [49] - [54] Evidence overview [55] - [59] Issues [60] - [63] Credibility and reliability of testimony [64] - [268] Absence of oral evidence from Mr Staff [65] - [78] Absence of oral evidence from Mr Shearman [79] - [80] Mr Iuso [81] - [152] The plaintiff [153] - [207] Police witnesses generally [208] - [211] Sergeant Ahrens [212] - [241] Senior Constable Cook [242] - [267] Issue 1 - Recognition of plaintiff as a vulnerable person [269] - [330] Police Code regarding vulnerable persons [270] - [283] Medical assessment of the plaintiff [284] - [297] Disability disclosure by plaintiff [298] - [300] Police awareness of plaintiff's disability [301] - [330] Issue 2 - Pre-arrest signs of injury on the plaintiff [331] - [343] Issue 3 - Evidence available to suggest plaintiff was assaulted [344] - [353] Issue 4 - Adequacy of the police investigation [354] - [393] Issue 5 - Whether wrongful arrest, false imprisonment, assault [394] - [568] Preliminary considerations [396] - [405] Applicable common law principles [406] - [412] Exceptions to Christie v Leachinsky not applicable [413] - [417] Evolution of the charges laid against the plaintiff [418] - [439] Circumstances leading to arrest of plaintiff [440] - [464] Testing and frustrating circumstances for the police officers [465] Legislation [466] - [498] Requirements for proof of justification for arrest [499] - [503] Section 99(2) of LEPRA - Suspicion of offences [504] - [514] Propriety of an arrest [515] - [521] Whether arrest is "necessary" [522] - [527] Section 99(3)(f) of LEPRA - Preservation of safety or welfare [528] - [530] Section 99(3)(b) of LEPRA - Prevention of offences [531] Whether possible repetition of an offence [532] - [542] Whether continuation of an offence [543] - [554] Whether possible commission of another offence [555] - [567] Conclusion [568] Issue 6 - Transportation of plaintiff to Lismore Police Station [569] - [585] Issue 7 - Whether plaintiff was injured during journey [586] - [590] Issue 8 - Assessment of damages [591] - [636] Approach to assessment [592] - [600] Damages - assault and battery [601] - [602] Damages - wrongful arrest and imprisonment [603] - [616] Exemplary damages [617] - [631] Interest [632] - [635] Summary of damages and interest [636] Disposition [637] Costs [638] Orders [639]

[4]

Nature of case

The plaintiff, Ms Rhani Costello, by her tutor, the NSW Public Trustee and Guardian, brings these proceedings claiming damages against the defendant, the State of NSW, pursuant to s 5 of the Crown Proceedings Act 1988.
The plaintiff seeks findings that the defendant be held vicariously liable for alleged misfeasance by two experienced police officers at Lismore, Sergeant Craig Ahrens and Senior Constable Megan Cook, who arrested her at her home in Goonellabah, in northern NSW, at about 6.30pm on Thursday 17 November 2011, in circumstances involving domestic violence, where the actions of those officers have caused her to feel aggrieved: s 8 of the Law Reform (Vicarious Liability) Act 1983.
The plaintiff claims that she was arrested as a consequence of the alleged wrongful use of lawful authority by police officers in circumstances where, if they had suspected on reasonable grounds that she had committed relevant offences, which she denied, the issuing of court attendance notices would have been the appropriate next step for them to take, rather than proceeding to arrest her.
The plaintiff therefore claims that she is the victim of the intentional torts of false imprisonment due to unlawful or wrongful arrest, and a consequentially related assault. She therefore claims damages, aggravated damages and exemplary damages.
The defendant disputed the factual basis of the plaintiff's claim, and has pleaded and maintained the position that the arresting officers had reasonable grounds and lawful justification for arresting, detaining and charging the plaintiff, both at common law, and pursuant to s 99(2) and s 99(3) of the Law Enforcement (Powers and Responsibility) Act 2002 ("LEPRA"). Consequently, the defendant denies the validity of the plaintiff's claim.
The proceedings stand to be determined by the resolution of relevant matters of fact in dispute, the assessments made concerning the credibility and reliability of the testimonies of the respective witnesses, and the assessment of the documentary material that was tendered.

[5]

Facts not in dispute

Unless otherwise stated or qualified, the factual matters not in dispute, are set out as follows.
The police officers did not at any stage take any form of written statement from the plaintiff as to her version of the events, or her complaints. Similarly, they made no notes of any conversations they had with her.
In his rendition of the factual narrative of the underlying events, Sergeant Ahrens stated, in Exhibit "8", at p 4, that the plaintiff "requested not to be interviewed by investigating police and was subsequently charged …". Neither of the police officers had made a note in their notebooks to the effect the plaintiff had declined to be interviewed. In contrast, the plaintiff claimed the police officers did not attempt to obtain her version of events. Sergeant Ahrens' rendition of aspects of the facts set out in Exhibit "8", was under challenge in these proceedings.
The suggestion that the plaintiff requested not to be interviewed whilst at her home was not put to her in cross-examination. The oral evidence of Sergeant Ahrens on that point makes it clear that his account of the cited conversation to that effect had only occurred when the plaintiff was already at the police station, and after she had been presented to the Custody Manager, which means it was after 18:59 hours on the day in question, and not whilst at her home before she was arrested: T322.40 - T323.5; Exhibit "3", p 1.
The factual evidence given by the police officers in these proceedings some four and-a-half years after the events in question, was based on statements they had obtained from persons other than the plaintiff, and from their own recollections, which were shown to be inaccurate on some material matters.
No disrespect is intended to the plaintiff in identifying the personal matters that follow. These matters are relevant to the consideration of the circumstances in which the attending police officers interacted with her in the events leading to her arrest, and subsequently.
The plaintiff is an adult presently aged 32 years. She must proceed by way of a tutor in these proceedings because of pre-existing disabilities. She was aged 27 years at the time of the events.
The plaintiff has longstanding physical disabilities that are visibly manifested in obvious ways, including in her appearance, her posture, in her movements and in her manner of speech. Those disabilities are due to an acquired brain injury with related cerebral palsy. This has resulted from a head injury she sustained in an accidental fall that she suffered in her infancy.
The plaintiff is of slight appearance, weighing about 39kgs. She is approximately 150cms in height. There is no reason to assume these descriptions did not apply to the plaintiff at the time of the events in question. These matters have been the subject of a medical opinion that will be referred to in due course in relation to the unlikelihood of some factual matters alleged against her.
In addition to the plaintiff's physical disabilities, she also has a related cognitive disability. This affects the way in which she processes information (T11.23 - T11.26; T122.16 - T126.23), particularly verbal information: T124.3 - T124.6. She finds it difficult to focus on more than one thing at a time: T11.24.
Those matters relating to the plaintiff are relevant to the issue of whether, at the time of the attendance of the police officers, and subsequently, it ought to have been recognised by those police officers, that the plaintiff was, according to applicable police protocols, a vulnerable person on account of her disabilities, and therefore she should have been treated accordingly, and in a manner different to what had actually transpired.
Whilst the plaintiff was at her home during the afternoon of Thursday 17 November 2011, she had a number of disagreeable telephone conversations with her former de-facto partner, Mr Ronald Staff.
Initially, the plaintiff had requested that Mr Staff attend her premises to fix some electronic equipment and to pay her some money she said he owed her. She wanted these matters attended to before he was due to leave the area for his anticipated induction into Army service. In those telephone discussions, which on the plaintiff's description, involved some acrimony, he refused to attend to her requests: T11.46 - T12.4.
Later that afternoon, notwithstanding his earlier refusals, Mr Staff then made an unexpected and unwelcomed visit to her premises whereupon, according to the plaintiff, he verbally abused her. As a result, she asked him to leave. Some verbal altercations then ensued, following which Mr Staff started to leave: T12.49 - T13.38.
The plaintiff described how, whilst her back was turned, and when she was returning into her house, Mr Staff turned and started to walk towards her, and was swearing at her. The plaintiff stated that a physical altercation then occurred between them. In that altercation, the plaintiff stated that Mr Staff had pulled her backwards, by her T-shirt, grabbed her by the waist, picked her up, threw her to the ground, and then pinned her down in that position. She said that following those events, she told him not to touch her, and that she would call the police: T14.1 - T14.10. At that point, she said that Mr Staff then released his hold on her, and he then ran inside her house and took possession of both her portable house telephone and her mobile telephone: T15.1 - T15.15.
In those events, the plaintiff said she followed him, asking him to give her back her telephones. She said that at some point Mr Staff sat down. She then slapped him on the face. At that time she was focussed on getting her telephones back and she said this was her purpose in slapping him: T15.35 - T15.49.
It appears that in those events Mr Staff had made a pre-emptive call to the police, initially by using his own mobile telephone until it ran out of battery power. He then used the plaintiff's mobile telephone which he had earlier taken into his possession without her consent. In that call, he claimed that he had been verbally threatened by the plaintiff. The resultant police radio message referred to him having reported an alleged verbal threat.
The plaintiff said that after Mr Staff had called the police, he re-entered her house, threw her telephones onto a table, and then walked away. He then walked outside. At that point, having retrieved her telephones, the plaintiff locked herself inside her house: T16.1 - T16.9.
In the commotion of those events, a concerned neighbour made a call to police to report that he had heard female screams emanating from the plaintiff's premises: Exhibit "E".
At about 4.20pm on that day, when the responding police officers, Sergeant Ahrens and Senior Constable Cook, arrived at the plaintiff's house, Mr Staff met them outside the plaintiff's premises. Mr Staff told them he had been assaulted by the plaintiff, and that she had kicked his car which was parked on the street outside of the plaintiff's premises, and that she had taken and hidden his car keys, which he claimed, was preventing him from leaving the vicinity of the plaintiff's home. Whilst the police were speaking to Mr Staff, the plaintiff continued to remain inside her home, where she had secured herself.
At 4.30pm Sergeant Ahrens made a brief note in his notebook identifying Mr Staff as the "victim". He also noted the plaintiff's name, date of birth and address. Sergeant Ahrens made an initial brief note as follows: "About 3pm phone call (1st). Recd about a dozen. Attended re set up stereo and old DVD player.": Exhibit "B", p 37. There are no corresponding notebook entries indicating that the attending police officers had taken down any version from the plaintiff during their investigation of the domestic violence incident they had attended.
When the police officers eventually walked up to the plaintiff's front door and spoke to her, she denied to them that she had any knowledge of the whereabouts of Mr Staff's car keys. She repeatedly made those denials throughout the time the police were there asking her questions concerning the whereabouts of those car keys: T17.50 - T18.5; T69.5; T188.36; T189.19; T189.46; T189.50; T192.20; T192.47. She also claimed that in those circumstances, she felt she had been bullied by the police in their discussions with her about those keys: T189.33. In contrast, the police officers denied any mistreatment of the plaintiff.
Notwithstanding the plaintiff's persistent denials concerning the whereabouts of Mr Staff's keys, Sergeant Ahrens, the senior officer who took the lead role in the police investigation, stated repeatedly, and at times bluntly, that he did not believe the plaintiff's denials, and he maintained his opinion, quite strongly, and was in no doubt, that the plaintiff was not telling the truth, and had been lying in relation to her stated lack of knowledge of the whereabouts of Mr Staff's car keys: T291.49 - T291.50; T293.12 - T293.13; T318.50; T345.35; T437.31; T437.48.
In his oral evidence, Sergeant Ahrens stated that his belief that the plaintiff was lying was based on sufficient circumstantial evidence to specifically charge the plaintiff with regard to the missing car keys: T437.47. There was an apparent difficulty with his evidence in that regard. This was because the Field Arrest Form that was completed after the arrest of the plaintiff made no reference to any charge along those lines. The only reasons for the arrest of the plaintiff, as stated on that form, related to the alleged offences of assault and malicious damage, matters to which I will later return.
In their evidence, the police officers agreed that, other than in relation to the plaintiff's repeated denials of any knowledge of the whereabouts of Mr Staff's missing car keys, the plaintiff had not been argumentative with them. The plaintiff said that she had been very co-operative with them: T68.43; T69.1. The police officers did not suggest any attitude of resistance or uncooperativeness on the plaintiff's part, except for her non-acceptance of any part in Mr Staff's keys having gone missing: T383.5; T383.13; T451.14 - T451.16. She was not threatening or obstructive: T482.22 - T482.25. She offered no resistance to the arrest when it was eventually made: T486.5.
At about 6.30pm on the day in question, after the police had been on site for almost two and-a-half hours, the plaintiff was arrested by Sergeant Ahrens, assisted by Senior Constable Cook. This occurred after a continuing impasse over the whereabouts of Mr Staff's missing car keys, and after a search of the plaintiff's premises by both police officers, and remarkably, by Mr Staff, who during the events, had gone in and out of the plaintiff's house a number of times, and who had also participated in a search of the plaintiff's home: T292.10. After other unsuccessful searches were made of the grounds of surrounding properties to try and locate the car keys, the plaintiff was then arrested.
The plaintiff claims the arrest was unnecessary in the circumstances, and that if the police officers suspected on reasonable grounds that she had committed offences, they could have simply arranged for her to have been issued with court attendance notices if they properly considered that it was reasonable that she be charged, a matter which she disputed.
In his oral evidence Sergeant Ahrens stated he told the plaintiff the reason for her arrest was that she had allegedly stolen Mr Staff's car keys. There was no contemporaneous note to support his evidence in that regard. Subsequently, whilst already under arrest, as the police officers were taking her down her driveway and towards the police wagon to be transported to Lismore Police Station, Sergeant Ahrens also informed her that she was to be charged with kicking Mr Staff's car, thereby causing it to be damaged.
As identified at paragraph [30] above, there was a discrepancy between the stated reasons for the arrest of the plaintiff as appears in the police Field Arrest Form, and the reasons for her arrest as stated in the oral evidence of Sergeant Ahrens. In the Field Arrest Form, the only two reasons were identified as being limited to an assault (of Mr Staff) and malicious damage (to Mr Staff's vehicle).
In evidence, there were differing descriptions of the alleged malicious damage to Mr Staff's vehicle. Ultimately, the alleged damage turned out to be some scuff marks, a matter to which I shall later return when considering whether this could have been caused by the plaintiff, and whether the pursuit of the option of an arrest of the plaintiff was justified in the circumstances.
On account of her physical disabilities, the plaintiff complained of the manner and the circumstances in which she was placed in the police wagon, the uncomfortable, unrestrained, and the uncomfortable bruising ride she experienced during the journey to the police station, the manner in which she was taken out of the police wagon, and the manner in which she had been spoken to and dealt with by the arresting police officers.
Later, during the evening of 17 November 2011, whilst the plaintiff was still being detained at Lismore Police Station, Mr Staff made telephone contact with police there, and in that conversation, he advised that a further search of a neighbouring property had resulted in him finding his missing car keys.
The plaintiff was later issued with 5 court attendance notices for an expanded range of charges that went beyond the initial two reasons recorded on the Field Arrest Form at the time she was arrested. She was then released on bail, and she was issued with an apprehended violence order ("AVO") with conditions to be observed. Subsequently, Mr Staff requested that the charges that had been laid against the plaintiff be withdrawn, because if the charges were to proceed, this may cause him some delay and difficulties with his induction into Army service. As a consequence, the charges were withdrawn, and this was notified to the plaintiff at a scheduled court appearance.
The plaintiff disputed all of the allegations of wrongdoing that had been levelled against her. She stated that at the outset of her conversation with the attending police officers, she had told them that she had a disability, that she had been assaulted by Mr Staff, and that she had wanted him to be removed from her property: T17.11. The police officers denied she made that request: T347.15; T478.15 - T478.24.
The plaintiff also claims that the attending police officers had failed to heed her disclosure and her pleas in that regard, and that they had failed to appropriately follow-up on those matters. In their evidence, the police officers disputed aspects of the plaintiff's claims in that regard.
The essence of the plaintiff's case is her claim that the attending police officers had inadequately investigated the circumstances of the reported domestic violence incident which they had been called upon to attend. She claims that as a result, having regard to her obviously observable physical and expressive disabilities, and having regard to applicable police policy guidelines concerning matters of disability, which plainly indicated the plaintiff was to be regarded by police as a vulnerable person, she was unjustifiably arrested, unnecessarily restrained, and deprived of her right to liberty.
The plaintiff also claims that this occurred in circumstances where, even if the arresting police officers did have reasonable grounds to suspect she had relevantly committed offences, which she nevertheless denied, at the time the police officers arrested her, recognising that the action of arrest was to be undertaken as a last resort, they had available to them a reasonable alternative course to an arrest, namely to issue her with court attendance notices, which ultimately occurred after her arrest.
Sergeant Ahrens candidly acknowledged that, as the arresting officer in charge of the investigation and the related decision-making tasks at the time, were it not for Mr Staff's missing car keys, he would not have proceeded to arrest the plaintiff: T316.3 - T316.9; T318.15 - T318.18; T333.19 - T333.21; T339.33 - T339.38; T346.34 - T346.36. His concern at the time was that Mr Staff's car could not be moved without the keys, and he wanted to ensure there were no repeat or other offences committed by the plaintiff: s 99(3)(b) of LEPRA.
In that regard, Sergeant Ahrens said that were it not for the missing car keys, it would have been appropriate to instead issue the plaintiff with a court attendance notice in respect of the charges that had been laid against her, and in those circumstances the plaintiff could then have stayed at her premises without being transported by police wagon to Lismore. Had that occurred, these proceedings would not have arisen.
The circumstances described in the preceding paragraphs gave rise to numerous disputed matters of fact as between the evidence of the plaintiff and the evidence of the two police officers.
The resolution of those disputed factual matters that are relevant to the issues to be determined, must proceed after identifying the conclusions reached on matters concerning the credibility and the reliability of the respective testimonies, and the identification of the specific issues calling for decision. Given the subject matter and the polarisation of the factual issues, the analysis of the credibility and the reliability of testimony cannot, in fairness, be briefly stated.

[7]

Procedural matters

At a pre-hearing call-over on circuit before the Registrar at Lismore, it was indicated that this case was likely to occupy an estimated hearing time of between a day, to a day and-a-half: T355.28; Registrar's printed list. Instead, the hearing proceeded over the course of 11 days, 8 of them in Lismore, on May 23, 24, 26, 27, 31, June 1, 2, 3, followed by 2 further hearing days in Sydney, on June 6 and 7, 2016, resulting in just short of 600 pages of transcript.
During the hearing, the first two days involved dealing with contested motions, by which the plaintiff sought to enforce, and the defendant sought to resist and to have set aside, a subpoena seeking the production of certain documents held by the Commissioner of Police. After much argument on those motions, the terms of the subpoena were narrowed, following which, agreed categories of documents were produced in satisfaction of that subpoena.
Following the close of written submissions in July 2016, after a period of intervening leave, oral addresses were delivered on 2 September 2016, at which time judgment was then reserved. Thereafter, further written submissions were received from the parties.
In light of the way written submissions proceeded, it is necessary to identify them, and to identify a submission that was not read, and the reasons why that was so. The initial course of written submissions that have been read, were as follows: 1. Defendant's written submissions were dated 1 July 2016. These were re-submitted in readable form on 4 July 2016: MFI "18"; 2. Plaintiff's written submissions were dated 1 July 2016: MFI "19"; 3. Defendant's written submissions in reply were dated 14 July 2016: MFI "20"; 4. Plaintiff's written submissions in reply were dated 15 July 2016: MFI "21".
On 30 November 2016, the defendant, without obtaining leave to do so, and absent special circumstances being shown, forwarded some further and unsolicited written submissions. Those submissions have not been read or considered as they were unsolicited. They have been placed in a sealed envelope and marked MFI "22". The parties were advised of this course on 7 December 2016: Nguyen v R [2008] NSWCCA 322, at [27] - [31], following Carr v Finance Corporation of Australia Ltd [No 1] [1981] HCA 20, at [29]; (1981) 147 CLR 246, at p 258.
On 7 December 2016, further authorities of possible relevance were brought to notice: Benn v State of New South Wales [2016] NSWCA 314 and State of New South Wales v Robinson [2016] NSWCA 334. The parties were invited to make short submissions on those authorities. The defendant's submissions in response, dated 8 December 2016, have been marked MFI "23". The plaintiff's submissions in response, dated 15 December 2016, have been marked MFI "24".

[8]

Evidence overview

All witnesses were the subject of strong challenges made to the credibility and the reliability of their respective testimonies.
The plaintiff was the only witness called to give evidence in her case. In the defendant's case, the only oral evidence of significance was called from Sergeant Ahrens, a police officer of 25 years standing, Senior Constable Cook, a police officer of 19 years standing, and Mr Anthony Iuso, who, on the date in question, had been a disability support worker who had been called upon to attend at Lismore Police Station for the purposes of providing the plaintiff with disability support services whilst she was in police custody.
Mr Iuso provided those support services to the plaintiff through an organisation called New Horizons, an accredited agency contracted to provide community support and assistance services to persons with disability, including services in relation to police liaison for disabled persons.
The main body of documentary evidence tendered comprised Exhibit "B", pp 1 - 308, which consisted of the documents assembled on behalf of the plaintiff. During the hearing, the tender of pages 303, 304, 305 and 306 of Exhibit "B", comprising copies of some contemporaneous photographs, was ultimately withdrawn. This was because formal proof of the photographs appearing on those pages was required by the defendant, and that evidence was no longer available to the plaintiff: T370.27 - T370.35.
The parties also tendered a number of other documents which will be referred to in the course of these reasons where it becomes relevant to do so. Included in those documents were some statements obtained by police officers whilst they were at the plaintiff's home. Those statements, which will shortly be set out in these reasons, were from the plaintiff's former de facto partner, Mr Ronald Staff, and from Mr Nick Shearman, a friend of the plaintiff who had been present at the plaintiff's home during the course of the subject events. Neither of those persons were called to give oral evidence in the proceedings.

[9]

Issues

The oral evidence gave rise to numerous items of factual dispute between the plaintiff and the defendant. These matters touched upon the detail and the adequacy of the police investigation of the events, and the appropriateness or otherwise of the way in which police handled those events. The significant matters of dispute amongst those items stand to be resolved by an evaluation of the credibility and the reliability of relevant aspects of the testimony of the respective witnesses, and the evaluation of the content of some of the contemporaneous records.
The resolution of some of those matters will assist in determining the issues of whether, when arresting the plaintiff, as was claimed by the defendant, the police officers had complied with, or, as claimed by the plaintiff, the police officers had failed to comply with, the requirements of s 99(3) of LEPRA, and the relevant requirements of the applicable Code comprising official police policies and regulations directed at applying and implementing that legislation.
A review of the pleadings, the evidence and the submissions, identifies the issues arising for determination, in the following convenient order: Issue 1 - Whether the arresting police officers should have at the outset identified the plaintiff as being a vulnerable person to whom certain police policies applied concerning vulnerable persons, and consequently, whether she should have been provided with appropriate support, and treated in a different manner to that which in fact occurred. My consideration of that issue, and the related findings, appears between paragraphs [269] to [330] of my reasons; Issue 2 - Whether, before the plaintiff was arrested, visible signs of injury on her person were apparent, and whether those signs were available to be observed and investigated as to their origins, including such as to require an investigation of whether or not she had been assaulted by Mr Staff, as she had claimed. My consideration of that issue, and the related findings, appears between paragraphs [331] to [343] of my reasons; Issue 3 - Whether, on the basis of information made available to the attending police officers, their investigation of the circumstances should have proceeded upon the basis that, prima facie, it was arguable that the plaintiff had been assaulted by Mr Staff, and if so, was it likely that if due recognition had been given to that matter, the events in question would have taken a different course. My consideration of that issue, and the related findings, appears between paragraphs [344] to [353] of my reasons; Issue 4 - Whether the police investigation of the underlying events was adequate in the circumstances of the reported domestic violence incident involving the plaintiff at her home. My consideration of that issue, and the related findings, appears between paragraphs [354] to [393] of my reasons; Issue 5 - Whether the plaintiff was unjustifiably arrested, then falsely imprisoned by the arresting police officers, and whether she was thereby assaulted in those events. My consideration of that issue, and the related findings, appears between paragraphs [394] to [568] of my reasons; Issue 6 - Whether, following the decision to arrest the plaintiff, having regard to her disabilities, the attending police officers ought to have arranged to safely transport her to Lismore Police Station by means of a suitable alternative vehicle, in which she could have been safely restrained by a seatbelt for that journey, so that she could have been transported in a manner other than by placing her, unrestrained, in the back of a police wagon. My consideration of that issue, and the related findings, appears between paragraphs [569] to [585] of my reasons; Issue 7 - Whether, following the arrest of the plaintiff, and during the journey from the plaintiff's home to Lismore Police Station, she sustained bruising injuries from being thrown around in the back of the police wagon due to the unavailability of suitable seating, and also due to the unavailability of a seatbelt restraint in the module or pod at the back of that police wagon. My consideration of that issue, and the related findings, appears between paragraphs [586] to [590] of my reasons; Issue 8 - The assessment of the plaintiff's entitlement to damages, including her claims for the award of aggravated and exemplary damages. My consideration of that issue, and the related findings, appears between paragraphs [591] to [636] of my reasons.
Before addressing those issues, including the relevant factual matters connected with those issues, in the paragraphs that follow, in the course of dealing with matters of credibility and reliability of testimony, it is necessary to identify in full the statements obtained by police from Mr Staff and from Mr Shearman, and to identify the conclusions I have reached on matters of the credibility and the reliability of the oral testimony adduced in these proceedings.

[11]

Absence of oral evidence from Mr Staff

No oral evidence was called from the plaintiff's former de facto partner Mr Staff, who was without doubt, a central actor in the circumstances leading to the arrest of the plaintiff. His assertions, in a contemporaneous statement to the effect that the plaintiff had hidden his car keys, had kicked his car and had assaulted him, and Sergeant Ahrens' assumed correctness of those assertions, without first obtaining a statement setting out the plaintiff's version on those matters, in the context of a call for police to attend a domestic violence incident, were relied upon by the defendant as being the justifying foundations for the plaintiff's arrest.
In these proceedings, although the plaintiff contested the content of Mr Staff's statement obtained by the police, that statement must necessarily be taken at face value since Mr Staff was not called by the defendant as a witness. The factual matters described within the statement, formed the basis of Sergeant Ahrens' suspicion or belief upon which he relied to justify the arrest of the plaintiff.
Whilst Mr Staff was not called as a witness in these proceedings, the overall content of his statement nevertheless still stands to be evaluated in light of the other evidence that was called, and in order to assess the adequacy or otherwise of the police investigation into the events, and the reasonableness of their decisions which followed their investigation.
Sergeant Ahrens took a signed statement from Mr Staff, which he recorded in his notebook as follows: "About 3pm, Thursday 17th November, 2011 I received a phone call from my ex-girlfriend Rhani COSTELLO. I answered the call & she said, 'Hey when are you going to come & fix the stereo.' I said, 'I've got time to do it today but I don't have enough fuel to get home. She said, 'That's not my problem. You promised in front of your girlfriend. I said, 'I've got time but I don't have the fuel. She started yelling abuse at me & I hung up. She immediately called me back & she started saying 'I'll call the Army & tell them stuff to stop them letting you in'. I said, 'Go for it. I'll give you the number & sue you for defamation of character. She said, 'I'll I've already got the number'. I said, 'Go for it. She said, I already have. Alrig it. I said, 'Alright see you later'. I then hung up. Over the next five minutes I received about another eight or nine calls from Rhani lasting about 5 - 10 seconds. She would abuse me & I would hang up. By the last phone call I had decided I had enough & was going to go to Rhani's & fix the stereo. As I walked out the door Rhani rang me again stating she was going to call the army again & make my life hell. I would say what do you mean, explain it. She would say 'You will see' & I hung up the phone. By that time I was on my way there. Upon arriving at Rhani's place at 42 Greenwood Drive, Goonellabah I went to the front door. Rhani answered it & I said, 'Don't make threats at me where's this stupid DVD player.' She replied. 'Don't talk to me like that.' I said, 'You've got no right to threaten me.' I continued to say 'I'd rather not be able to get home than put up with you for one more day'. I said, Rhani you don't have the cords where are they?' She said, 'It's not my problem just do it'. The conversation continued regarding setting up the stereo before Rhani walked out the back of the house. I walked out after her & said 'Rhani can you come & show me how you want this stereo done'. She said, 'No I'm having a cigarette.' I walked into the dining room area & noticed the black leather wallet & keys. I went to the back door & saw a male, I now know as 'Nic'. I said to Rhani, 'Come & show me or I'm leaving.' I repeated it & started to walk out, saying 'See ya'. I walked out my front door & started it got in I walked out the front door to my car & started it. Rhani ran down her driveway & kicked the rear driver's side door with her right foot. I had my driver's side door open & jumped out of the car to start pushing Rhani back inside her house & up the driveway. I returned to my car as she was up her driveway & Rhani ran down the driveway & again kicked my drivers side passenger door. Both of these kicks marked the door. I left the car running & again got out & started to push Rhani back inside up the driveway. I went inside the house to the rear & spoke to the male that had been sitting out the back (Nic). I introduced myself to him. He told me his name was Nick. I asked him could he get her to stop kicking my car as I would call the police. I went back out through the front door. I passed Rhani on the path leading to her front door. I walked down the driveway & as my car came into view I noticed the drivers door was closed & the engine was switched off. There was no one else in the street at that time nor any vehicles. I turned & walked through her garage into the rear yard. Rhani, at that time was saying, 'Nick come inside'. I said, 'Rhani where are my keys?' She said, 'I don't have them' & closed the rear door. I sat down at the table & started talking to Nick. I picked up her mobile phone which was on the table. Rhani opened the door & came out saying, 'Give me my phone' I said, 'All I want is my keys'. She said, 'I don't have them.' Rhani then elbowed me to the left side of my face near the cheek. Rhani jumped back & I said, 'Rhani give me back my keys.' Rhani went inside & closed the door. I got up & again asked for my keys, before going & sitting back down. Rhani then came back outside & said, 'Give me back my phone.' She then punched me with her right fist to the right left side of my face. Again Rhani jumped back & headed back inside. I got up & grabbed my phone & I went to walk out. About half way between the patio & garage door she grabbed my shirt. I tried to break her hold. I continued to walk through into the garage & closed the sliding doo door with her on the other side. I continued down the driveway & Rhani chased after me punching me in the rear of the head. When I got to the car I grabbed my phone & called '000' Rhani continued to yell & scream at me. After making the call to '000' my phone ran out of battery. I started to walk back into the garage & rear yard. Rhani kept asking for her phone back. I walked inside & got the landline & called '000'. The telephonist said police had the job & would be attending soon. I walked out the back & had a conversation with Nick about the police coming. I handed Rhani her phone back & went out the front until the police arrived." [Emphasis added] [Exhibit "B", pp 37 - 44]
The two bold emphasised portions of Mr Staff's statement cited above suggested that his described actions were consistent with him having twice committed an assault and battery on the plaintiff, not to mention taking and using her mobile telephone without her consent. Notwithstanding that suggested content, the question of whether the plaintiff had been assaulted by Mr Staff was not taken up by the police officers in their dealings with the plaintiff.
In that regard, in order to reach a conclusion to that effect, the attending police officers did not need a statement from the plaintiff in order to form a reasonable suspicion, let alone establish, that Mr Staff had physically pushed the plaintiff, not once, but twice, in the course of their altercation.
In the notebook maintained by Sergeant Ahrens, immediately following the above cited entry comprising Mr Staff's statement, as recorded in the above terms, Sergeant Ahrens also noted the details of an AVO application number, which was then followed by some redacted text: Exhibit "B", p 44.
In the factual analysis required in this case, the content of Mr Staff's statement, as taken down by Sergeant Ahrens, requires close analysis for two principal reasons that have an impact upon the determination of the issues calling for decision.
The first such reason concerns an evaluation of the adequacy of the police investigation of the domestic violence incident for which the police were called to the plaintiff's home in the first place. That matter has a significant bearing on the soundness of the claimed justification proffered by the defendant for the arrest of the plaintiff.
The second such reason is to assess the legitimacy or otherwise of the credit attack made to the evidence of Sergeant Ahrens. In that attack, it was put to Sergeant Ahrens that when processing of the products of his investigation of the events, he had selectively "massaged" the facts when making entries in the COPS database (T422.20 - T422.24) in preparing his AVO narrative against the plaintiff, and in that process, it was suggested to him that he had downplayed the significance of Mr Staff's admitted actions in which he had made physical contact with the plaintiff without her consent.
In that regard, it was suggested that Sergeant Ahrens had downplayed the effect and the significance of Mr Staff's admitted physical actions towards the plaintiff, which, if properly considered in context by Sergeant Ahrens, as argued by the plaintiff, those matters would have supported a charge of assault being laid against Mr Staff.
The described conduct of Mr Staff, as contained in his statement cited at paragraph [68] above, is plainly capable of supporting the plaintiff's claim made to the police, that, in the described events as they had unfolded, she had in a sufficiently material way, been assaulted by Mr Staff.
This raised a question as to why Mr Staff had not been charged by police over his self-described actions, especially as those events occurred in the context of an alleged domestic violence incident. That, and the plaintiff's claim that the attending police had ignored her complaint that she had been assaulted by Mr Staff, were matters that left her feeling greatly aggrieved.
These matters will be taken up again in my reasons for assessing the credibility and the reliability of the evidence of Sergeant Ahrens, and in outlining my findings which seek to reconcile the relevant factual matters in dispute.

[12]

Absence of oral evidence from Mr Shearman

Mr Shearman was a friend of the plaintiff who was present at her home at the time when Mr Staff had arrived, and when the altercations between Mr Staff and the plaintiff had taken place. His contemporaneous statement was given to police whilst he was at the plaintiff's home. That statement was tendered in evidence. No adverse comment arises from the fact that he was not called to give oral evidence. Consequently, the content of his statement stands to be evaluated on its face.
Whilst Sergeant Ahrens was attending to the task of taking down Mr Staff's statement, Senior Constable Cook recorded a witness statement from Mr Shearman in her notebook. Mr Shearman remained at the plaintiff's home whilst the police officers had carried out their investigations. Mr Shearman's signed statement, as taken down in Senior Constable Cook's notebook, was in the following terms: "On Thursday 17th of November I was at my friend Rhani COSTELLO house at 42 Greenwood Pl Goonellabah. At 4.15pm Rhani's a mate came over while I was in the kitchen. The first thing he said was, 'who the fuck do you think you are.' They got into an argument about him fixing her stereo & her making repeated calls to his mobile. I moved out onto the back patio. The arguement (sic) continued inside. I had the door shut so I wasn't paying attention to what was being said. They both went outside through the front door. After a while the male, Ron, came back in and asked me if I would go outside & ask Rhani to stop kicking his car. I came out the front with Ron, & saw Rhani standing at the bottom of her driveway a few metres away from his car. Once she saw me she came back up the driveway & we both went out the back. Ron came around the side of the house & at the back where we were sitting. He said, 'That's thieft (sic) you idiot. Give me back my keys." At this stage she went inside & locked the door. He picked up her phone which was on the outside table. She came outside and said, 'Give me my phone'. He said give me my keys'. He went to walk back out the front through the garage. She grabbed his shirt which is when he first dialled the police on his own phone. While he was on the phone to police she was following him around saying, 'Give me back my phone.' His phone ran out of batteries and he picked up the home phone and called the police back. During that call Rhani continued th to say give me my phone back. During that phone call she hit me Ron in his face with the palm of her open right hand. It was like a backhand. This hit, hit him in the nose. He got up and said 'the police are on their way Rhani & he went to walk outside. I said to Ron 'If the police are on their way you might as well leave the phone here, and he handed her back the phone. Ron went outside & Rhani & I were out on the back patio. Not long after the police arrived." [Exhibit "B", pp 45 - 48]

[13]

Mr Iuso

Before identifying my assessments of the evidence and of the credibility and the reliability of the plaintiff and the police witnesses, it is convenient to first identify my assessment of the credibility and the reliability of the evidence of Mr Iuso. The evaluation of his evidence necessarily requires some attention to detail because of the context and the content of his evidence.
This is because the defendant called Mr Iuso to seek to impugn the credibility and reliability of the evidence of the plaintiff on a strongly disputed central factual issue, namely the underlying question of whether she had taken and had thrown away Mr Staff's car keys.
The defendant sought to make good that attack by means of an alleged verbal admission attributed to the plaintiff as related in evidence by Mr Iuso, whereby he claimed that the plaintiff had made a relevant admission to him whilst he was with her in police custody, in a cell at Lismore Police Station, after being called in to provide her with disability support services after she had been arrested.
The defendant argued that the critical matter it relied upon from the evidence of Mr Iuso, although denied by the plaintiff, was to the general effect that the plaintiff had allegedly admitted to him that, in the events before her arrest, she had thrown away Mr Staff's car keys: T190.17; T192.6; T274.34 - T274.38.
The defendant argued that Mr Iuso was a critical witness in the proceedings who, ordinarily, would have been expected to have been called by the plaintiff: Defendant's written submissions ("DWS"), par [66]. In my view, the basis of that submission is flawed as to its foundation, and it should not be accepted. This is because, contrary to the defendant's submission stating that "a great deal of the alleged police impropriety and offence towards the plaintiff occurred in [Mr Iuso's] presence", in fact those events did not occur in the presence of Mr Iuso. The defendant's submission to that effect must therefore be rejected.
In that regard, Mr Iuso had not been at the plaintiff's home at the time when the police attended to the investigation of the events and then proceeded to arrest her. He had not arrived at the Police Station to provide support services to the plaintiff until after the Pt 9 LEPRA caution had been read to the plaintiff, and when he did eventually arrive at the Police Station, at 8.15pm, the plaintiff was already located in a police cell having had her jewellery removed. When he arrived at the plaintiff's cell, and was placed in the cell with her, the plaintiff was, according to his observation, upset, and on his understanding and description, she was in an hysterical state: T272.2. His understanding was that, at that time, the plaintiff was very distressed, distraught, and was crying whilst she was in her cell: T279.10 - T279.22. This was also described as "heartfelt crying": T284.35.
Mr Iuso confirmed that at that time, the plaintiff was fixated on the fact that it was she, rather than Mr Staff, who had been arrested. His stated recollection was that the plaintiff was talking about a police conspiracy aimed at preventing her from getting her children back after they had been taken into care at an earlier point in time: T284.32 - T284.46. That evidence was obviously targeted by the defendant at seeking to undermine, if not to damage, the plaintiff's credit as a witness. I shall later return to that evidence in the consideration of the issues.
In assessing Mr Iuso's evidence given in these proceedings, for numerous reasons, I have concluded that Mr Iuso should be seen to be an unsatisfactory and unreliable witness on the critical matters in dispute to which his evidence was addressed.
Before identifying those reasons, I wish to make clear that I have disregarded the fact that without the compulsion of a subpoena, or without the aid of referring to a contemporaneous statement, Mr Iuso saw no apparent difficulty in voluntarily disclosing to the defendant, and in his evidence to the court, the claimed content of confidential conversations he had with the plaintiff whilst he was also located in her cell, as her support person. It was not made clear as to how Mr Iuso brought these matters to the attention of the defendant. Those conversations took place as an incident of his former employment, by which he was required by his former employer, a contracted agency called New Horizons, to provide disability support services to the plaintiff whilst she was in police custody.
Whatever may be thought of those circumstances, and the ethical position of Mr Iuso, I disregard them as a factor to be weighed against his credit. This is because the applicable legal construction must be that the claimed conversations in question were not cloaked with the kind of protection that would otherwise flow from the existence of a privileged relationship, such as legal professional privilege.
If Mr Iuso was giving evidence in criminal proceedings, it might be thought that his evidence of an admission allegedly made by the plaintiff concerning an underlying fact relevant to a consideration of a question of guilt or innocence, may have been admissible and relevant. Admissions of that kind allegedly made to a support person have in some cases been admitted into evidence on the question of guilt or innocence, in recognition of the fact that unguarded incriminating statements made to support persons by vulnerable persons in custody, may be admissible as not constituting protected confidences within the meaning of s 126B of the Evidence Act 1995: JB v The Queen [2012] NSWCCA 12; (2012) 83 NSWLR 153, at [13]; [29] - [31]; [36]; [40] - [41].
In the context of these proceedings, which are different to the proceedings cited in the preceding paragraph, the relevance of Mr Iuso's evidence of the plaintiff's alleged admission is limited, principally to the plaintiff's credit. The position may have been different in criminal proceedings which involved determining the plaintiff's guilt or innocence on the question of whether she had taken and inappropriately dealt with Mr Staff's car keys: JB v The Queen [2012] NSWCCA 12; (2012) 83 NSWLR 153, at [36]. However, I am not required to determine a question along those lines in these proceedings.
My consideration of Mr Iuso's evidence as to the claimed context of a conversation he had with the plaintiff whilst in custody is concerned with the assessment of the credibility and reliability of not only the plaintiff's testimony, but also that of Mr Iuso's own testimony.
My reasons for rejecting the evidence of Mr Iuso on critical matters in dispute, including the claimed admission by the plaintiff, are not based on any suggested breach of confidentiality, but instead, relate to other, and unsatisfactory aspects of his evidence, to which I shall shortly refer.
In my opinion, those reasons, which now follow, unfortunately at some length because of the necessary detail, indicate that Mr Iuso should be regarded as an unsatisfactory factual witness in this case.

[16]

Dismissive attitude towards plaintiff

Thirdly, in an unguarded moment in his evidence, Mr Iuso exhibited a concerning, unfortunately dismissive, and disrespectful attitude towards the plaintiff.
This was in circumstances where Mr Iuso had not been in contact with the plaintiff for a considerable period of time before he gave his evidence. Aspects of his evidence about the plaintiff were expressed in dismissive and off-hand terms which was a surprising circumstance, given his role had been as her disability and support advocate since about 2010: T265 - T266.
This aspect was evident when Mr Iuso referred to the plaintiff, somewhat insensitively, as an "idiot", a matter for which he admittedly quickly apologised: T280.34 - T280.39. He did so in the context of summarising, in a conflated way, an alleged conversation he had with the plaintiff. In final submissions, wrongly in my view, the defendant pointed to Mr Iuso's apology as evidence of his sympathetic attitude to the plaintiff and therefore had no motive for seeking to discredit her: DWS, par [66].
Contrary to that submission made on behalf of the defendant, I formed a very different impression of the circumstances. In my view, when Mr Iuso had suddenly realised that in an unguarded moment he had referred to the plaintiff as an idiot, he then became embarrassed at having used that term, and his apology was then delivered in an atmosphere of personal embarrassment.
I formed the impression that the reason for Mr Iuso's proffered apology was the force of circumstances which had caused him embarrassment, and not an asserted sympathetic attitude to the plaintiff, as was submitted by counsel for the defendant. Nevertheless, the off-hand nature of the comment for which the apology was made was a matter of concern as to whether his evidence could be considered to be reliable. My impression of Mr Iuso's evidence was that it was in parts ill-considered, and it was expressed in off-hand and conflated terms. Those matters caused me to doubt the reliability of his evidence. The question of his motive in that regard does not necessarily arise as it was not explored.
Ordinarily, in litigation, the modern view is that the demeanour of a witness should not form the sole basis of an assessment of credibility. However, in this instance, the content of the cited evidence of Mr Iuso was inextricably mixed with the manner of its delivery as cited, and this was one of the reasons that caused me to doubt the accuracy and the reliability of Mr Iuso's evidence, and the sincerity of his apology.

[18]

New Horizon records

The file maintained by the New Horizons organisation in relation to the plaintiff, and in relation to the support services that organisation provided to her, contained a contemporaneous file note, described as a progress note, purportedly made by Mr Iuso. On its face, that note was a business record stated to have been made shortly after the plaintiff's arrest. On its face, the record is stated to have been written by Mr Iuso, in person.
Notwithstanding the appearance and the content of the note, in his evidence, Mr Iuso speculatively suggested that it had possibly been written by someone else in the organisation in his name, based on information he had provided. It bears the creation time and date 12:18:01 pm on 18 November 2011, which was on the day following the plaintiff's arrest and it bears the note date 12:03:05 pm on 17 November 2011: Annexure "A" to Exhibit "C". The timing calibrations were unexplained.
It becomes necessary to determine whether it was Mr Iuso or another New Horizons staff member who wrote that progress note, which was stated to have been made about 18 hours after the plaintiff's arrest. Having considered Mr Iuso's evidence as a whole, there are a number of elements that have aggregated to serve as indicators of the unreliability of his oral testimony on this point.
The progress or file note attributed to Mr Iuso was in the following terms: "At 6:35pm I received a message from CSW Richard Clarke informing me that Rhani had been taken to the Lismore police station. I contacted the Lismore police and was informed that it would be good if I could come to the station to support Rhani. When I arrived I found Rhani sitting on the floor of a cell crying, I spoke to Rhani and she was upset that she had been charged and that her ex got away with everything, I asked Rhani to explain, she said that her ex had pushed her to the ground and had taken her home phone she had informed the police and they did nothing. Rhani was charged and has to appear in court on the 29th November at the lismore court house 9.30am. Rhani was released on bail at 11pm. I drove Rhani home and she asked if I could come inside with her as she was scared that her ex maybe there, I entered the home and found no-one there Rhani informed me that some one had been in her home as the back window was open and her dog was inside and that the dog was left outside and the window was secured before she left. I informed Rhani to contact the police and inform them that some one had entered the house when she was not there." [Exhibit "C", Annexure "A"]
In light of the evidence considered as a whole, there are two significantly striking features about that note. First, it is written in a form that includes repeated references to Mr Iuso in the first person, referring to his actions in respect of the events described within the document, as if he would have written it himself. A factually correct business record written by someone on Mr Iuso's behalf would be more likely to have been identified as being written by the author in terms reporting what Mr Iuso had said. Secondly there was no reference at all in the note cited above to Mr Staff's missing keys, let alone the suggestion that the fact that the keys were missing was the basis of the plaintiff's arrest by police.
The details within Mr Iuso's oral evidence about Mr Staff's missing keys, and the alleged role of the plaintiff in that regard, differed materially from the content of that contemporaneous note. In my view, this raised doubts about the reliability of the evidence that Mr Iuso gave on factual matters at a time that was so long after the events occurred, without ever having refreshed his memory from any contemporaneous materials, and where it appears that he had no particular reason for retaining a vivid or accurate memory, or a memory of any kind, about those events.
In those circumstances, caution dictates that the content of the contemporaneous record kept by New Horizons should be preferred to Mr Iuso's current recollections as related in his evidence, especially where those recollections can be shown to have been inaccurate in a number of respects: Fox v Percy [2003] HCA 22; 214 CLR 118, at [31].
The New Horizons Customer Note or Progress Note was on its face stated to have been written by Mr Iuso for the purpose of it being placed in the plaintiff's file maintained by New Horizons. The note is plainly written in the first person, and it refers to the author of that note as having himself received and made telephone calls, and of him having taken the described active steps.
In those circumstances, I am compelled to the conclusion that the record in question was in fact written by Mr Iuso himself, in his capacity as co-ordinator for the organisation. In coming to that view, I have not overlooked Mr Iuso's speculative explanation in which he sought to disavow the content of the note comprising Annexure "A" to Exhibit "C" where he said that : "There's a few people that knew my password. My boss knew my password because my role was, I had to travel throughout New South Wales and I don't have access to computers. A lot of the times I'd ring in and get somebody to write a note": T301.5 - T301.6; T301.24 - T301.33.
Even if that cited explanation was applicable in this instance, which I do not accept, the information contained within that note would most likely have been provided by Mr Iuso as a contemporaneous business record made during his work for New Horizons. Given the content of Annexure "A" to Exhibit "C", I consider it to be very unlikely that note was written by anyone other than the stated author, Mr Iuso, and I consider it to be most improbable that the note in question was written by someone else on his behalf, as he has speculatively suggested in his oral evidence.
In my view, without explanatory evidence of the system of record making and keeping at New Horizons from someone other than Mr Iuso, I do not accept Mr Iuso's evidence by which he sought to distance himself from the authorship of that note. This is because it is written in the first person, identifying himself as the participant in the multiple activities described in that note, and which was recorded for the specific purpose of maintaining a progress chronicle of relevant events that had affected the plaintiff, the contents of the note being events that New Horizons needed to note and record.
In that regard, I consider that if there had been a discussion between the plaintiff and Mr Iuso about Mr Staff's car keys, and if an admission had been made by the plaintiff to the effect that she had thrown Mr Staff's car keys away, as was asserted and recounted by Mr Iuso, such a conversation would have been a relevant and noteworthy matter that was relevant to be included in the plaintiff's file as a behavioural issue relating to the plaintiff which required the assistance of the agency.
I consider that if the events were correctly recounted by Mr Iuso in his oral evidence, given that a note was made, then the alleged foundation event concerning Mr Staff's missing car keys would most probably have been recorded in that note as a record of the basis for the significant action taken against the plaintiff by the police at the time, especially given the police evidence to the effect that the plaintiff would not have been arrested if the keys were not missing, as cited at paragraph [44] above.
I consider that Mr Iuso's attempt at seeking to cast doubt on his authorship of the file note in question, without a sound basis for doing so, gives rise to an impression that his oral testimony, which included a significant expansion if not a departure from that file note, was not reasonably supported by its content. This left me with the impression that his evidence was unreliable on an important matter of disputed detail.
Mr Iuso gave his evidence without having read or having refreshed his memory from the New Horizons Customer File Note: T282.4 - T282.10. In evaluating Mr Iuso's evidence, I consider that the contemporaneous nature and purpose of the note he prepared gives rise to an inference that it was recorded for maintaining the continuity of the factual record of relevant events where the community support worker's attendances upon the plaintiff was required, including the need for an attendance to support her in difficult circumstances in which she found herself at the police station on 17 November 2011.
Although the preamble portion of the Customer File Note is timed as "17/11/2011 12:03:05 PM", absent more detailed explanatory evidence as to how the system operated, including as to calibration of timing, I consider that nothing of significance turns on the apparent stated error of timing.

[19]

Police Custody Management Records

Fifthly, and by reference to a comparison between the content of the New Horizons progress note, Mr Iuso's oral evidence, and the timed contents of the police Custody Management Record (part of Exhibit "B" and Exhibit "2"), a number of discrepancies emerge between Mr Iuso's evidence and those records, which lead me to entertain further doubts about the accuracy and the reliability of the evidence of Mr Iuso. These matters of doubt are identified in the following paragraphs.
Whereas Mr Iuso stated in his oral evidence that he received a call from the police, which he guessed to have occurred at about 6:00pm on the day in question (T271.18 - T271.28), his own note instead refers to having received a message at about 6:35pm, not from the police, but from one of the plaintiff's community support workers, Mr Richard Clarke, informing him that the plaintiff had been taken to Lismore Police Station. In contrast, or perhaps in addition, it seems from the Custody Management Record, that Senior Constable Devine rang Mr Iuso at some time between 7:07pm and 7:13pm: See Appendix, Item 6.
Whereas in Mr Iuso's oral evidence he said he thought that the plaintiff was released from police custody at about 2.00am the following morning (T274.9), the Custody Management Record shows that she was in fact released on bail at 10.12pm on 17 November 2011: Exhibit "B", p 83; Exhibit "2", p 7. Mr Iuso's file note as cited at paragraph [111] above, states this occurred at about 11.00pm that evening. I consider that the file note, and his oral evidence should therefore also be seen to be an unreliable indication of that time. I consider that the police Custody Management Record is more likely to be correct in this respect.
Although there are some timing issues concerning the accuracy of the Custody Management Record regarding the plaintiff's location in a cell at the Police Station, which will be considered in relation to the plaintiff's evidence, in my view, the times stated in the Custody Management Records are more likely to be correct when compared to Mr Iuso's recollection. This is because those records represent an independent and accountable police record of the plaintiff's time in custody. That record was maintained by an officer unconnected with the events of the plaintiff's arrest. As such, that record is more likely to be correct, or at least more reliable, than Mr Iuso's unaided recollection, either when committed to writing on 18 November 2011, or as recounted in his oral evidence.
This raises a question which was not explored in the evidence, namely as to why it took Mr Iuso so long to arrive at the Police Station after being called to attend and to support the plaintiff. As that matter was not explored in the evidence, nothing of a credit significance turns on that timing. I accept that he arrived at the Police Station at 8:15pm on the night of 17 November 2011.
Significant portions of Mr Iuso's evidence were stated to have been based on what he thought "would have" been the case, for example, at T271.36; T271.42; T272.17. When his mode of expression in that regard was queried for clarification purposes, Mr Iuso's subsequent mechanically reiterated description of the events, which omitted the qualification "would have" (which connotes uncertainty and surmise) was unconvincing. My impression was that Mr Iuso simply made adjustments to the form of his answers when that matter was drawn to his attention and when clarification was sought. However, the content of his evidence nevertheless remained an impressionistic summary of what he thought would have been the case, rather than an accurate factual recall or account on important factual matters.

[20]

Alleged verbal admission over the keys

In Mr Iuso's oral evidence, unaided by any notes on the matter, he recounted a verbal rendition of an alleged significant conversation which he claimed to have had with the plaintiff whilst he was with her in the police cell. In that evidence, he claimed that the following conversational exchange occurred between himself and the plaintiff: "Q. Let me come back to the discussion in the cell and was there any discussion about - or rather I want to know what discussions occurred in relation to the lead up of her being arrested by the police, that is what she told you? A. Well I think, and I think that roles into going - taking her home, was one of the things that she discussed was that she was angry that she was in the cell and her boyfriend was out and that she had been accused of dinting his car, she'd kicked it, kicked it, and she wants to know "How can I kick it because I'll lock you in the car" and then I said to Rhani, "What is it, what else, there's got to be something else" and I said "What else was done" and she said "The only thing I did was threw his keys in the garden across the road" and I said "Well you want to get rid of this goose. What does throwing his keys across the road achieve, now he can't drive his car out of your driveway" and that was to roll on why I think of me going back to her house to see if the car was still in there, and whether he would still be there." [T274.24 - T274.38] [Emphasis added]
It is not clear as to the basis upon which Mr Iuso had assumed that Mr Staff's vehicle was located in the plaintiff's driveway. The undisputed evidence was that it was parked on the street, or on the grass outside the plaintiff's house, but not in her driveway: T290.5; T468.40; Exhibit "7", p 2.
I consider the part of the evidence of the alleged conversation between Mr Iuso and the plaintiff, which has been emphasised in paragraph [130] above, as relating to the alleged key throwing incident, which the defendant characterised as an alleged admission by the plaintiff of having thrown Mr Staff's keys into the garden across the road, a matter that was disputed by the plaintiff (T190.2; T190.18 - T190.22), and which was recounted in Mr Iuso's evidence four and-a-half years after the event, purportedly as a direct quote in the midst of a summary of other matters discussed, as emphasised in the cited transcript extract within the preceding paragraph, and where no contemporaneous or other form of statement had either been prepared by or obtained from Mr Iuso, dealing with that subject matter, indicates to me that evidence was unlikely to be either true or reliably accurate, as recounted by him.
If the plaintiff had truly made an admission to Mr Iuso in the terms stated by him, I consider this would have been a matter of importance that would have been the subject of a written entry to that effect in his file note of his attendance on the plaintiff on 17 November 2011, as already explained, and given the nature of the other entries made.
As evidence to support the reliability of Mr Iuso's evidence, the defendant points to the fact that he had not refreshed his memory from any document: DWS, par [73].
In my view, given the effluxion of time and the absence of contact with the plaintiff in the interim, the opposite conclusion to that advanced by the defendant applies. Given the lapse of time since the events in question, and given the generalities within his evidence, and the purported actual quotes from the plaintiff's conversations as having the semblance of accuracy, as cited at DWS, paragraphs [71.16] - [71.19], and at T283.33, I considered that Mr Iuso's account, whilst having the appearance and the form of quotations, was in fact an unreliable account of what he thought had occurred insofar as the reference to car keys and an alleged kicking of the car was concerned.
Given the plaintiff's account of her undoubted information processing difficulties, and her state of upset on the night in question, particularly whilst she was in the cell at the Police Station, both before and after the arrival there of Mr Iuso, without a contemporaneous record to support his evidence, and in view of other demonstrated inaccuracies in his evidence, I do not accept the submitted accuracy and reliability of Mr Iuso's purported detailed account of the conversation he said he had with the plaintiff about Mr Staff's keys having been thrown by the plaintiff into the garden across the road from her home, and the kicking allegation concerning Mr Staff's car.
On the account related by Mr Iuso, the plaintiff was distressed at the time of that alleged conversation, and at that time, as Mr Iuso recorded in his file note, consistent with her evidence, she was fixated on her perception of the injustice of her situation in comparison to that of Mr Staff, who had not been charged.
This leads me to doubt the correctness and the reliability of Mr Iuso's reconstructed and summarised multi-topic conversation about the fate of Mr Staff's car keys and the alleged kicking incident which he attributes to the plaintiff. I take that view because the plaintiff was fixated on the other matters identified, and given that she had difficulty focussing on multiple matters and concepts at the same time. I am far from satisfied she would have been as responsive to Mr Iuso's questions as he claimed, and which he has described in his oral evidence.
The alleged conversation between Mr Iuso and the plaintiff about the keys was a most significant matter, but it was not recorded in Mr Iuso's contemporaneous progress note within the plaintiff's New Horizons' file, where that file note was created by Mr Iuso about 14 hours after the plaintiff had been released from custody: Exhibit "C", Annexure "A". The absence of any mention of the keys, or a conversation about the keys, or any comment about the plaintiff having allegedly kicked a vehicle or damaged it, but the inclusion of other details in that note, also causes me to doubt the reliability of Mr Iuso's account given in oral evidence.
I consider that if the quoted statement Mr Iuso attributed to the plaintiff had in fact been made by the plaintiff, it would have been of more than just of passing interest. I consider that it would have been recorded by Mr Iuso as being noteworthy. This is because it was relevant to documenting a significant behavioural issue and interaction between the plaintiff and the police, and with the plaintiff's ex-partner, for which the New Horizons agency were providing support to the plaintiff in connection with a current police matter.
It would therefore have been of high relevance for Mr Iuso to make a contemporaneous record of that matter in the context of the support provided and the plaintiff's issues that were current and remained extant. The fact that the record which was made by Mr Iuso does not contain such a reference persuades me that Mr Iuso is wrong in his recollection of the content of the conversation he recounted, as cited in paragraph [130] above.
Mr Iuso's evidence was also called by the defendant to support the contention that whilst the plaintiff was in police custody, and whilst Mr Iuso was present, the plaintiff had no complaints about the conduct of the police towards her. I do not consider that proposition to be a valid conclusion based on the described events, particularly given the relatively late timing of Mr Iuso's arrival at the police cells, and given that the plaintiff was upset and crying hysterically whilst she was in the cell with Mr Iuso, including being upset that she and not Mr Staff had been charged, and also taking into account the plaintiff's processing difficulties.
In her upset state, the plaintiff had a considerable amount to process at that time. In those circumstances, there is considerable doubt that the plaintiff was as lucid and disclosive on that occasion, as was claimed by Mr Iuso in his oral evidence about those events.
Whilst I accept the general force of the defendant's submission to the effect that Mr Iuso was at the time likely to be a strident advocate for his disabled New Horizons clientele, it does not follow that the plaintiff had fully articulated all of her concerns or factual account to him at the time he saw her in the police cell, particularly given that she was upset in relation to multiple topics. There is sufficient information within Mr Iuso's progress note to the effect that the plaintiff had told him she had informed the police of something of her account of the events but that Mr Staff had in her view "got away with everything" and the police "did nothing" about that: Exhibit "C", Annexure "A". She was plainly fixated on that point.
In my view, those cited notations are supportive of the conclusion that the plaintiff's grievances against the police were not recently invented by her, but were contemporaneous to the events as confirmed by Annexure "A" to Exhibit "C". In my view, given the nature of the plaintiff's description of her information processing difficulties, and her adverse and discomforting situation when she was located in the police cell, I consider those immediate matters would have been consuming of her attention at the time, and those matters would have been the focus of her communications. I therefore doubt the reliability of Mr Iuso's account of the conversation he claims to have had with the plaintiff whilst in the police cell.
I consider that the New Horizons Customer File Note and the Custody Management Records seem to be a more reliable source of factual information than the oral evidence of Mr Iuso. Whilst it was not suggested that Mr Iuso had recently invented key aspects of his evidence (DWS, par [72]), for the above reasons, I nevertheless consider Mr Iuso to be an unreliable witness on the critical aspect of any alleged conversations concerning what might have happened to Mr Staff's car keys, and as to whether the plaintiff had in fact kicked Mr Staff's car. Instead, I consider the contemporaneous records to be a more reliable source of factual information concerning the events of the day when compared to Mr Iuso's oral evidence.
I do not accept Mr Iuso's evidence as to the content of the purported conversation he said he had with the plaintiff, in which he stated that the plaintiff had told him she had kicked Mr Staff's car and that she had thrown Mr Staff's keys into the garden across the road. I do not accept that in the alleged and contentious disclosure that Mr Iuso described, the plaintiff made an unguarded incriminating statement that should be weighed against her credit in these proceedings: JB v The Queen, as already cited.
No-one was called to say they had witnessed the event described by Mr Iuso. Given the plaintiff's evidence as to her physical limitations in respect of such an activity (T104.28 - T104.35), I consider the account given by Mr Iuso, to the effect the plaintiff kicked Mr Staff's car, was implausible as an admission because it was beyond the plaintiff's described physical capabilities and limitations, where those limitations are supported by the medical evidence from Dr Miller: Exhibit "B" pp 15ff. I very much doubt the plaintiff made an admission of the kind alleged by Mr Iuso.
In the absence of credible, identifiable and testable eyewitness evidence that someone had seen the plaintiff cross the road, either by walking or running, and then throwing the keys into the garden of the house opposite, or of the plaintiff kicking Mr Staff's vehicle, I do not consider that a sound basis has been established for drawing inferences to that effect, especially in the absence of any testing of Mr Staff's account of the event as set out in his statement given to Sergeant Ahrens, where Sergeant Ahren's rendition of the facts is under attack in this case, and where the allegation is that he "massaged" the facts in his paperwork to downplay the significance of Mr Staff's actions.

[23]

The plaintiff

The first matter to note about the evidence of the plaintiff is that nothing on the face of her evidence seemed to be inherently or glaringly improbable. The second matter of note concerning the evidence of the plaintiff is that, in conformity with my findings on the unreliability of the evidence of Mr Iuso, there is nothing that emerges from his evidence which should be seen as undermining the credibility and the reliability of the plaintiff's evidence.
However, there were contrasting and inconsistent factual accounts evident on a comparison between the plaintiff's evidence and the evidence of the sworn police officers. In such circumstances, credit findings that are adverse to the attending police officers should not be arrived at lightly.
As is the case with any other witnesses, it is necessary to assess the credibility and the reliability of the plaintiff's evidence, and how her evidence should be viewed concerning her perceptions of the interactions with the police officers, and with regard to her claim that dismissive and disrespectful comments had been made to her by the police, and that they had failed to properly investigate the circumstances. It is also necessary to undertake a similar evaluation of the evidence of the police officers in respect of their dealings with the plaintiff.
In that regard, the plaintiff said that Sergeant Ahrens had effectively ignored what she was saying, and had dismissively, if not derogatorily, asked her to "use the force" (T18.35; T192.25) to find Mr Staff's missing keys. Such comments had obvious derogatory and insulting implications for the plaintiff. She complained about the proposed use of handcuffs on her in light of her physical disabilities. She also complained about: the manner in which she was taken to and placed in the police wagon; the manner in which she was removed from the police wagon; the removal of her jewellery; the fingerprinting process; the police swearing at her, and the circumstances of her continued detention in a cell, whilst she was in police custody.
The assessment of the credibility and the reliability of the plaintiff's evidence is a complex task due to her information processing difficulties. Those difficulties were not disputed by the defendant.
A cautious approach to the assessment of her evidence is therefore required. This is especially so where aspects of her evidence, as an aggrieved party who was obviously still emotionally affected by the events in question, was lined up for evaluation purposes against the evidence of experienced police officers who were accustomed to giving evidence, and where aspects of the respective testimonies were under challenge and in conflict. The reconciliation of those matters posed obvious challenges.
That said, I do not accept the blanket submission made on behalf of the defendant that the very fact that the plaintiff has problems with processing information, and that she could only focus on one thing at a time, and gets tired, necessarily casts doubt upon the reliability of her recollection of relevant events: DWS, par [36].
In my view, the defendant's submission to that effect is overly simplistic. It was obvious that when the plaintiff was asked appropriately framed questions involving singular and uncomplicated concepts, and where she was given sufficient time to consider those questions and allowed time to then formulate and articulate her responses, she gave clear and thoughtful answers that could not be so readily dismissed or discounted, as the defendant's submissions would suggest. The process of eliciting her evidence was assisted by allowing the plaintiff to have breaks where this was either requested or apparently needed.
It was plainly a stressful and upsetting experience for the plaintiff to give her evidence, and for her to be cross-examined, including by being tested with questions delivered at a relatively fast pace, for her, on the detail of her recollections concerning the subject matter of these proceedings. The plaintiff said that she felt bullied when she was cross-examined: T187.5. She was obviously very stressed during that process: T190.40 - T190.49; T236.2 - T236.7.
Some of the questions presented to her caused her to be confused: T241.23 - T241.28. That said, the plaintiff's self-disclosed cognitive disability concerning her facility for processing of information must be evaluated and taken into account in assessing the reliability of crucial aspects of her evidence.
Eliciting evidence from the plaintiff, both in chief and in cross-examination, was a slow and difficult process, and required patience on the part of counsel, including the need to reformulate questions into simpler forms because of her described information processing difficulty, and because of her stated need to be able to focus on one matter or topic at a time, rather than having to deal with more complex combined questions.
The plaintiff had understandable difficulty with questions that contained multiple or combined propositions, for example, at T132.50 - T133.5; T133.35; T139.28; T143.41. At times she found it difficult to articulate what she was trying to say: T133.10; T119.43; T123.40; T206.34; T236.6. The defendant's submissions that were critical of the plaintiff's answers must be tempered in light of the fact that, at times, the cross-examiner cut short the plaintiff's opportunity to complete her answers by interposing another question over the incomplete answer: T134.8; T136.44; T171.12; T189.19; T228.24; T234.26.
The process was further complicated by the plaintiff's need to have some questions clarified for her understanding: T122.20; T123.19; T125.50; T129.4; T233.50; T260.17 - T260.28. She was fatigued at times, and at other times she was upset, and she needed occasional rest breaks from the pressure and the pace of the process of giving evidence, in order to regain her composure.
The plaintiff's answers to questions were generally given in direct and concrete terms. Whilst at times, questions had to be broken down to less complicated formulations, I do not consider that these matters represent a fair or a proper basis for criticism of either the plaintiff, or the reliability of her evidence. Rather, they are only identified as being factors to be taken into account in the consideration of the context and the reliability of the plaintiff's testimony.
The defendant sought to elevate the fact of the plaintiff's information processing difficulties into a submission to the effect that the very fact that she has such difficulties should cast doubt upon the reliability of her recollections, especially in view of the emotionally traumatising nature of what the defendant's submission referred to as the "incident". The defendant submitted the plaintiff's ability to accurately recall the events in question was highly questionable, a submission that was sought to be extended to her evidence generally: DWS, par [36].
The oversimplified and misleading nature of that submission made by the defendant is plainly self-evident from the fact that there was not just one "incident" that required consideration. There was the underlying incident involving Mr Staff, and then the series of further incidents described in the plaintiff's evidence, and which involved the sequential actions of the police officers. I therefore find myself unable to accept the defendant's cited submission, either generally or otherwise.
The defendant's submissions on the credibility and the reliability of the plaintiff's denial on the critical and disputed contention that she had told Mr Iuso that she had thrown Mr Staff's car keys "away", a matter the defendant relied upon as justification for the arrest of the plaintiff, was expressed in the following terms: "65. If for any reason it were to be suggested that the plaintiff was irrational, emotionally distraught or distressed to the extent that such a statement was made by her, but the making of such a statement should be discounted because of her mental condition. It should then follow that virtually all of the plaintiff's evidence on other matters should be discounted for the same or similar reasons."
Several things need to be said about that submission.
First, there is the question of whether or not the plaintiff had told Mr Iuso she had dealt with Mr Staff's car keys in the manner recounted by Mr Iuso which only became a matter relevant to the plaintiff's credit as a witness because of the evidence given by Mr Iuso. In that regard, I do not accept Mr Iuso's account of that conversation, for the reasons set out in the preceding portion of these reasons that considers and evaluates the reliability of his evidence. Therefore, I do not regard his evidence to be a persuasive basis for discounting the plaintiff's evidence on a credit or reliability basis, or for rejecting her evidence on critical matters in dispute.
Secondly, the plaintiff does not invoke a need to discount the detail of the alleged conversation that Mr Iuso claimed to have had with her on the ground of a "mental condition", as formulated by the defendant's submission as cited at paragraph [169] above. Instead, her denial of having made the alleged admission to Mr Iuso must be weighed alongside the evidence of Mr Iuso on that topic. In that regard, I do not accept his evidence on the plaintiff's alleged admission for the reasons already outlined at paragraphs [81] to [152] above. In my view, that evidence does not serve as a reliable basis upon which to contradict the evidence of the plaintiff.
Thirdly, the alleged admission attributed to the plaintiff by Mr Iuso, as relied upon by the defendant when cross-examining the plaintiff, was in relation to the plaintiff having simply thrown Mr Staff's keys "away": T192.5; T192.14. Specifically, that question was in materially different terms to the relevant part of Mr Iuso's evidence, in which the proposition was expanded, where he stated that the plaintiff had allegedly said she had thrown Mr Staff's "keys in the garden across the road": T274.34.
In my assessment, given the plaintiff's particular information processing difficulty, it is of some significance that the content of the question cited in the preceding paragraph was materially different to the detail of Mr Iuso's evidence. In the plaintiff's circumstances with an information processing difficulty, that difference is of importance. The latter formulation involved combined concepts, namely the allegation of having thrown the keys, and the additional concept of the location where the keys were thrown.
The divergence between the cross-examiner's question about the keys to the plaintiff, in which it was suggested that she "threw them away" (T192.5) and Mr Iuso's evidence that she "took [Mr Staff's] keys from his car and threw them into the front yard of an adjoining house" (T190.17) emerged as a material difference in description, especially since Mr Iuso said the keys had been thrown "in the garden across the road" (T274.4).
In that regard, Mr Iuso had conferred with the defendant's legal representatives before he gave his evidence: T277.34. Clearly, as is reflected in the terms of the cross-examiner's question, it appears that there was a difference between what he told the defendant's legal representatives in conference, and the content of his evidence given in court. In this context, there is a material difference between the location of the garden across the road, and the front yard of the adjoining house.
The possible inferences from those circumstances are either that the information Mr Iuso provided to the defendant in conference was less detailed than that which was conveyed in his evidence, or that the defendant's representatives had misperceived a detail of what Mr Iuso had said in conference, and had then based the cross-examination question asked of the plaintiff, as recorded at T192.6, on that misperception.
I consider the latter inference to be an unlikely one. The former inference is consistent with the conclusion that Mr Iuso's more detailed recollection in his oral evidence was unreliable in view of that difference. I therefore consider that the plaintiff's denial in the cited answers to the cross-examiner's questions, as referred to at paragraph [175] above, should not be taken as being adverse to her credit where Mr Iuso's purely verbal account as given in his oral evidence was materially different to the question that was put to the plaintiff. Either way, the problem lies within Mr Iuso's evidence, and not within the evidence of the plaintiff. That is a matter that cannot weigh against the credibility or the reliability of the evidence of the plaintiff.
Fourthly, I consider that the defendant's submission on the credibility and the reliability of the plaintiff's evidence to be too general to be accepted in circumstances where the plaintiff's evidence was limited to specific matters. The wider application sought by the defendant is not appropriate in the present circumstances.
The defendant's submissions attacking the plaintiff's credit cited 12 specific topics within the plaintiff's evidence. Those topics related to the background events that occurred before the arrival of the police at the plaintiff's premises; the fact of the arrival of the police at the plaintiff's premises; Mr Staff's missing keys; the search of the plaintiff's house; the arrest of the plaintiff; the damage to Mr Staff's car; the alleged assault of the plaintiff when she was placed in the police vehicle; the plaintiff's arrival at Lismore Police Station; contacting the plaintiff's support person from the Police Station; fingerprinting of the plaintiff; the release of the plaintiff on bail, as well as "other issues": DWS paragraphs [37] - [65]. Where relevant, those matters will be considered in the specific factual contexts in which they arise for consideration when identifying the factual circumstances.
The defendant submitted that the plaintiff's credit, and the credibility or the reliability of her evidence, has been relevantly impugned by the terms of her former solicitor's letter to the NSW Ombudsman concerning the actions of the police officers, and by the terms of her statement which her former solicitor had provided to the Ombudsman on her behalf: DWS, paragraphs [47] to [64].
The defendant's submissions sought to make much out of the correspondence to the Ombudsman by the plaintiff's former solicitor on her behalf as a basis for seeking to impugn the plaintiff's credit as a witness. In my view that criticism is misplaced. Counsel for the defendant cross-examined the plaintiff in a relatively forceful, confronting style, in which at times, he made statements rather than asking questions.
At other times the cross-examiner cut off some of the plaintiff's answers part-way through their delivery, as observed at paragraph [164] above. That was apt to confound and exasperate the plaintiff, especially given her particular information processing difficulties.
The fact that the cross-examiner at times made argumentative statements rather than asking questions, is demonstrated in the following highlighted interchanges: "Q. You provided a statement to the Ombudsman? A. Yes. Q. As you told us yesterday with the assistance of your solicitor. A. Yes. Q. Nowhere in that statement did you make a suggestion that you were thrown around the back of the police vehicle. A. I haven't Q. Do you understand what I'm putting to you? A. I understand what you are putting to me but I really don't know how the legal jargon relates to putting in an actual complaint to the Ombudsman so I don't know how those things are meant to be set out. Q. No, and as you know you had the assistance of your solicitor to make that complaint. A. Yes and at the time of when I was seeing that solicitor I did tell her all the things that happened." [T196.10 - T196.28] [Emphasis added]
The emphasised portions of the evidence cited in the preceding paragraph shows that at times, the plaintiff was confronted by forceful statements that were asserted as contradictions, rather than by questions. In those circumstances, my impression was that the plaintiff was compelled to then make emphatic responses, having beforehand been upset by the nature and form of such confronting statements. The problems now complained of by the defendant arose from such statements masquerading as questions, and not from the plaintiff's responses. Those matters do not assist the defendant in seeking to sustain an attack on the plaintiff's credit as a witness.
The defendant submitted that the plaintiff's evidence reflected an unwillingness to be forthright when asked simple questions in cross-examination: DWS, par [54]. In my view, that submission overstates the true position, given the plaintiff's already described cognitive and information processing problems. That submission is significantly overstated in that it ignores the effect of the plaintiff's cognitive difficulties, which must be taken into account.
In advancing that contentious submission, which also included a comment about "the difficulty [experienced by the defendant] in obtaining a clear narrative of events from the plaintiff", the defendant seems to have overlooked the fact that with good reason, on occasion, the plaintiff felt obliged to seek clarification of the questions asked by the cross-examiner because of inherent difficulties posed by the questions asked: T241.25; T119.17; T119.43; T121.2; T122.20; T123.49; T124.14; T137.33; T138.9; T140.6 - T140.8; T140.33; T168.29; T169.46; T200.24; T201.36; T223.30; T245.3; T245.7.
Whilst the process of rephrasing questions was undoubtedly frustrating for the cross-examiner, the fault for this did not lay with the plaintiff, but rather, with the necessary process of which the defendant complains, which was incidental to her underlying cognitive condition. Again, those matters do not serve to assist the defendant in seeking to sustain an attack upon the plaintiff's credit as a witness.
Furthermore, I consider that the defendant's cited criticism of the plaintiff's evidence must be tempered by the fact that the cross-examiner, whose task was obviously difficult, at times made little or no allowance for the plaintiff's difficulty with the structure of the questions asked, including allowance for the fact that the plaintiff, for intrinsic cognitive reasons, needed to go through the events in her mind in a particular sequence in order to be able to confidently respond to the question, and she needed to take time to do so: T223.27 - T223.38. That is not a matter that assists the defendant in its attempt to sustain an attack on the plaintiff's credibility as a witness.
Some of the questions cited by the defendant in seeking to support the submission under present consideration, caused the plaintiff difficulty because of the structure of the questions, for example: "Q. Was this the cell in the immediate area, that is perhaps three, 4 metres away from where Constable Devine's desk was? A. What do you mean "immediate"? Q. That is, three to 4 metres away from where she was. A. I don't know, I didn't see her at, and I, I don't remember." [T224.18 - T224.23]
Clearly, the plaintiff had difficulty dealing with questions that were framed in a complicated way that was confusing for her.
The defendant sought to impugn the plaintiff's credit by reference to police records that identified some previous mental health issues that were connected with her former relationship with Mr Staff: DWS par [58] to par [60]. In my view, absent cogent explanatory evidence of the whole of those circumstances, as a matter of fairness, I do not consider those matters should be seen as adverse to the plaintiff's credit or the reliability of her testimony in the particular circumstances of this case: Mason v Demasi [2009] NSWCA 227, at [2].
In cross-examination, the defendant accused the plaintiff of telling "barefaced lies" about the treatment she had received whilst she was in police custody: T197.28. This concerned the time that she was in a cell at Lismore Police Station: T197.3 - T197.26. It seems that the defendant's proposition that the plaintiff had lied about those matters could only have been supported by factual evidence from former Senior Constable Brooke Devine, whom the defendant had never intended to call to give evidence in the proceedings, despite the fact that there was evidence she still resided in the Lismore area.
The Custody Management Record maintained by Senior Constable Devine concerning the time the plaintiff spent in the cells at Lismore Police Station does not support the defendant's assertion the plaintiff told "barefaced lies" about her time in custody there. In my opinion, the defendant's submission in that regard involved hyperbole, if not an exaggeration.
The context of the accusation put to the plaintiff that she had lied in her evidence, arose in the following tract of the cross-examination: "Q. I'll read this question out for you and if you have trouble at all please just let me know. "Did Senior Constable Devine at some stage come and ask you for a phone number so she could phone a support person for you?" Now have you heard that question A. Yes, you said - did at some point Officer Devine come and ask me for a phone number to call a support person. Q. That's the question, that's basically the question and you replied, "Eventually." That was your evidence -- A. Sorry? Q. In response to that question last week you indicated that Senior Constable Devine came and asked you for a phone number so she could phone a support person for you eventually. A. They contacted a support person eventually. Q. How much time elapsed before Senior Constable Devine asked you for a phone number to contact a support person? A. I don't know. Q. You used the word, "Eventually." What did you mean by that word? A. Well I, when I got there, asked them for a support worker and they refused me and the male officer wouldn't even give me a phone call. I said, "I need to phone someone" and he said, "You think so?" and I said, "Yes," and he slammed the glass cell door on me so eventually sir. Q. It was after he slammed the door on you that the call was made, is that what you say? A. No. I'd already asked him for a phone call to the - to a support person. It was later on. So eventually sir when I actually got granted a phone call. Q. Was a phone call made to your support person by any police officer before then? A. No, but I know that two support workers contacted the police station and told them that I had a disability. Q. You're telling - I want to suggest to you - barefaced lies to his Honour in those last series of questions and answers. A. Well no they're not. I found out afterwards, after I had gone home, that they actually phoned the police station and informed them that I had an acquired brain injury and cerebral palsy and that they were from the New Horizons drop in support team." [T196.42 - T197.33] [Emphasis added]
Aside from the inherently confusing nature of the questions that were put to the plaintiff, and in light of her cognitive difficulties, and putting to one side whether the last cited and emphasised statement from the cross-examiner was in fact a question, it is plain that any relevant dispute as to factual occurrences whilst the plaintiff was in custody at Lismore Police Station could have been readily quelled by the defendant calling evidence from former Senior Constable Devine, the custody manager in charge of the cells at the time. Instead, the suggestion that the plaintiff's cited evidence amounted to "barefaced lies" was left hanging in the air as an unsubstantiated assertion.
In those circumstances, the inference is that Senior Constable Devine, if called, would not have assisted the defendant's case in advancing the submission that the plaintiff had lied about events that had occurred during her time in police custody at Lismore Police Station: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. This was not just a credit issue, it was a fact in issue. The defendant has not sustained the assertion that the plaintiff lied about those events.
In that latter regard, it is possible that the defendant did not want to call evidence from former Senior Constable Devine because, contrary to apparent protocols applicable to vulnerable persons in custody, between 17:03 and 17:15 hours, the plaintiff was cautioned by Senior Constable Devine pursuant to Pt 9 of LEPRA. This was at a time when it was recognised that she was intellectually impaired, and that a support person was not present, as required by the Code: Exhibit "D"; see also Appendix, Item 5. When those circumstances are considered in the appropriate context, the reasons why the defendant did not call evidence from Senior Constable Devine becomes more understandable, as this could have opened up that issue for critical examination: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. That said, it is not necessary to invoke such inferences given the timed content of the Custody Management Records.
The defendant sought to impugn the plaintiff's credibility by reference to her evidence about being placed in a cell at the Lismore Police Station: DWS, par [51] to par [56]. The matter raised was the plaintiff's complaint about being unable to remain in a small cell, and that "eventually", she was placed in a larger cell: T226.10 - T226.24.
The Custody Management Record shows the plaintiff arrived at the Police Station at 18:50 hours, and she was placed in Cell 1, as is shown in Items 2, 11, 12, 17, 20 and 21.
In light of an apparent ambiguity arising from within those records I am not prepared to make the adverse credit finding that is sought by the defendant. This is because Item 1 in the Appendix which summarises the Custody Management Record, shows that at 18:50 hours, the plaintiff was "located in Cell 1". That record does not go on to state that she remained there all of the time from that time until the next reference to the plaintiff being in a cell, namely Cell 1, which was at 19:33 hours: See Appendix, Item 11.
The wording used in the Custody Management Record at 19:33 hours was that the plaintiff had been "placed in cell 1", which suggested she had been moved from somewhere else at that time. This is consistent with the plaintiff having said that she was eventually moved: T226.10 - T226.40.
On the above analysis, absent evidence being called from Senior Constable Devine to clarify that matter, I reject the defendant's assertion that the plaintiff lied about her time in police custody at Lismore Police Station.
In summary, having examined the defendant's attack on the plaintiff's credit, I consider that on critical matters of dispute, the plaintiff's evidence was given in a relatively straight-forward manner despite her difficulties, without guile, and without any intention on her part to exaggerate or to mislead, although when she was challenged on some topics, she did engage with the cross-examiner in a pedantic and argumentative way. In my assessment, that was for the purpose of clarification of the questions because of her underlying information processing difficulties, and not for the purposes of obfuscation.
I took the plaintiff's approach in that latter regard to be a function of her information processing difficulties, and because of her need to seek to clarify questions for their precise meaning on a matter of some importance to her. I did not get any impression to the effect that the plaintiff had employed a strategy for giving incorrect or diversionary evidence in order to obtain a benefit for herself in these proceedings. Making due allowance for her cognitive and expressive difficulties, I considered the manner and the content of her answers to questions to have been relatively spontaneous, and not strategically avoidant.
Nevertheless, that said, I consider that some of the plaintiff's feelings concerning her perceptions of the way in which she had been addressed, handled and dealt with by the police officers, might have been to a degree conflated by the combined effect of the cumulatively pressured circumstances of the events of 17 November 2011, as affected by her information processing disability, and the flow-on effect of the events of those matters upon the plaintiff's emotions at the time, including in relation to her ongoing grievances about those matters. However, those observations, which indicate the need for a cautious approach, do not require that the plaintiff's account should be so readily dismissed and rejected, as was submitted on behalf of the defendant.
In summary, my conclusion on the plaintiff's credit and the reliability of her testimony is that I considered her to be an honest witness, who gave her evidence to the best of her ability, in circumstances that were very difficult for her. Her described difficulties do not justify the adverse credit findings that the defendant seeks to obtain in these proceedings. I consider that her evidence on critical matters in dispute could be relied upon, with the appropriate cautions, as stated.

[25]

Sergeant Ahrens

The credibility and the reliability of the evidence of Sergeant Ahrens came under attack in this case. The most critically focussed aspect of that attack was the claim that he had "massaged" an important fact of significance concerning the products of his investigation, namely, the way in which he had characterised Mr Staff's actions when he wrote up the narrative of facts of the matter, and the impact this had on how the course of his investigation should be viewed: T422.20 - T422.24; T376.23.
Where serious adverse factual findings are sought or are required to be made with respect to the conduct of police officers, where the criticised conduct could amount to either misfeasance or malfeasance, such findings require a level of rational satisfaction according to the civil standard of proof on the balance of probabilities that reflects the gravity of the conduct alleged: State of New south Wales v Beck; Commissioner of Police v Beck [2013] NSWCA 437, at [66]; [71]-[73], applying Briginshaw v Briginshaw [11938] HCA 34; (1938) 60 CLR 336, at p 365, where "reasonable satisfaction" was identified as something more than "inexact proofs, indefinite testimony, or indirect inferences": p 365. That formulation applies especially so where allegations are made of contumelious disregard of the rights of affected individuals: Cubillo v Commonwealth [2000] FCA 1084, at [384].
A euphemistic allegation against a senior police officer of having "massaged" the facts in a factual narrative intended to be relied and acted upon by a prosecutor, and ultimately, by a court, is a matter of significant gravity which requires an evaluation according to the principles cited in the preceding paragraph. Sergeant Ahrens denied he had deliberately massaged the facts to conceal deficiencies in his investigation: T422.20 - T422.24.
In examining the "massaged" facts allegation in light of the principles cited above, I find that the plaintiff has made good that particular criticism of the role of Sergeant Ahrens in his characterisation of the circumstances. I have not arrived at that conclusion lightly, for the reasons that immediately follow.
I consider that the comparative disparity between Mr Staff's signed and adopted admission in his statement, of having twice pushed the plaintiff, and the conflicting and discordant impression portrayed by Sergeant Ahrens' dissonant explanation of the "terminology" used to describe Mr Staff's actions in that regard, namely, of having "shepherded" the plaintiff, an action which connotes giving direction or guidance not involving physical contact, comfortably and objectively satisfies me that Sergeant Ahrens has misrepresented the effect of Mr Staff's statement in an inapt way.
This has occurred in the course of the preparation of an official police document intended for use in a prosecution of the plaintiff, which has had the effect of diminishing in an imbalanced way, the potentially adverse implications of that conduct for Mr Staff, in a domestic violence setting. In my considered assessment, that conclusion arises starkly from an examination of the documents: Exhibit "B", p 41; Exhibit "7".
Sergeant Ahrens said the purpose of the narrative summary was to give the whole picture of the events: T376.41. The summary he had prepared did not accurately achieve that objective, and instead, provided a distorted picture.
In general terms, at times, Sergeant Ahrens' evidence was given in a defensive tone. I did not consider this to be a matter that was necessarily adverse to his credit or the reliability of his evidence. I take a similar view of a number of hesitations within the course of his evidence, that he took to consider his answers before answering some of the questions that were put to him in cross-examination. His reactions in that regard were understandable in circumstances where he knew that the veracity of his evidence and his professionalism was being challenged and tested, and where he knew it was very likely that those matters would be the subject of submissions that would be critical of the way in which he had carried out his duties as a police officer, and as the lead investigator concerning the underlying facts of this case.
A significant feature of the evidence of Sergeant Ahrens, and that of Senior Constable Cook for that matter, is the fact that no contemporaneous notes had been made at the plaintiff's home concerning what she had said or done in response to police questioning of her on matters to do with Mr Staff's complaints against her.
Sergeant Ahrens stated that he had spoken to the plaintiff to obtain her version of the events (T380.9; T380.10; T380.19), and that he had discarded or disregarded parts of what she had said: T390.2. Absent any contemporaneous notes of those matters, I find it difficult to accept that evidence, especially where he said he took a version of events from her, and he disbelieved that version, characterising it as a lie, without having made a contemporaneous note of those matters: T450.35 - T450.39.
In my view, given the lapse of time between the events of 17 November 2011 and when the police officers gave their evidence, a period of over four and-a-half years, and given the absence of contemporaneous notes relating to their discussions with the plaintiff, these are sufficient indications for viewing with caution, their oral evidence, which necessarily relied upon the accuracy and the reliability of their respective recollections as to their dealings with her.
An example of Sergeant Ahrens' unreliable memory is his incorrect belief that the plaintiff was not fingerprinted: T326.35.
The absence of any contemporaneous notes made by Sergeant Ahrens in relation to his dealings with the plaintiff is a most perplexing circumstance in this case because the very reason for the police attendance at the plaintiff's home was in respect of a suspected or reported domestic incident, where they were responding to a report from one of the plaintiff's neighbours who had made a call to the effect that female screaming had been heard at the premises.
In a setting of reported domestic violence, where the screaming was heard from a female person, and the plaintiff was the only female person police saw at the scene, it is remarkable that answers to questions as to why the plaintiff had been screaming, or as to whether she had sustained injuries in those events, were not noted by the attending police officers: Exhibit "E".
On examination of the police records, the evidence reveals that no notes or statements were made by the investigating police officers in relation to the plaintiff on follow-up matters relating to those events. At the outset, this raises a question as to the adequacy and the extent of the police investigations of the matter, which will be the subject of later consideration. Sergeant Ahrens ultimately acknowledged that he should have made notes of the conversations that he had with the plaintiff: T414.31.
Another question that arises is the reliability of the recollections of Sergeant Ahrens and Senior Constable Cook as recounted in their oral evidence, absent any notes of their dealings with the plaintiff. In my assessment, this was a matter of some significance that led me to discount the reliability of the evidence of both Sergeant Ahrens and Senior Constable Cook where aspects of their evidence extended beyond the records they had created concerning their investigation of underlying events.
Sergeant Ahrens agreed that he had some previous dealings with the plaintiff, which on an examination of a previous COPS event document, revealed this to be on 25 January 2010: Exhibit "B", pp 261 - 267; T350.34 - T350.40; T351.9. He said that he had not recalled that previous dealing until he had read that COPS event a week before the trial: T350.49; T379.29. The issue in that previous event concerned some missing medication belonging to a child of the plaintiff in the context of an access visit by a former partner of the plaintiff in relation to that child: T351.1 - T351.9.
In my view, this latter matter is of peripheral relevance at best, and does not have any relevant part to play in the assessment of the credibility of either the plaintiff or Sergeant Ahrens in these proceedings.
In my assessment, the fundamental matter that touches upon the reliability of the evidence of Sergeant Ahrens in these proceedings is the apparent stark mismatch between the actual content of Mr Staff's statement which was taken down by Sergeant Ahrens, in which, in a setting of reported domestic violence, Mr Staff made significantly relevant admissions that he had twice pushed the plaintiff on her property, where he was unwelcome, and Sergeant Ahrens' subsequent rendition of those events in the factual narrative he prepared, where he described Mr Staff as having "shepherded" the plaintiff in a manner which did not suggest there had been physical contact, whereas in his statement, Mr Staff admitted pushing the plaintiff, twice.
Sergeant Ahrens denied that his actions in modifying the factual description of Mr Staff's actions, as recorded in the narrative that he had prepared, changing the reference in Mr Staff's statement where he said he had "pushed" the plaintiff, to the changed description where he wrote that Mr Staff had "shepherded" the plaintiff, was to conceal discrepancies in his investigation: T422.20 - T422.24.
When Sergeant Ahrens was challenged on that identified factual mismatch, he sought to justify his use of the term shepherding as "just terminology" that he used to write up his narrative: T343.36; T376.23. I found that explanation by Sergeant Ahrens to be glib and unconvincing. He was clearly embarrassed at what I took to be the exposure of his erroneously inapt rendition of the events described in that document.
When Sergeant Ahrens was pressed on that topic, he went beyond the terms of the factual descriptions cited, and he invoked an argument in which he expressed his opinion that Mr Staff had been justified in using physical force on the plaintiff in order to protect his property. He took that position in the context of his uncritical acceptance of what Mr Staff had said to him, and without having beforehand recorded any form of an account, consistent or otherwise, from the plaintiff on that matter.
My assessment of those matters indicated that in his evidence, Sergeant Ahrens went beyond merely outlining the facts. He sought to justify Mr Staff's physical actions towards the plaintiff, where a reasonable alternative view was open. One of those alternatives demonstrated that domestic violence had occurred towards the plaintiff, in the form of an assault by Mr Staff, which he did not further investigate, and where he did not make any record of the plaintiff's version of those events.
The absence of any contemporaneous notes of any conversations between Sergeant Ahrens and the plaintiff was surprising in this instance. This is so, particularly given the acknowledgments made by Sergeant Ahrens in cross-examination as to the value of contemporaneous notes in relation to such matters, as follows: "Q. Would you agree that your police notebook is an important document in police work? A. Yes. Q. It gives you the facility to take contemporaneous notes? A. Yes. Q. It's a valuable resource once you get back to the station in terms of making your COPS entry, is that right? A. Correct. Q. It's also a valuable resource to refresh your memory in court proceedings isn't it? A. Yes. Q. In fact police notebooks are regularly used in court by police officers to refresh their memories aren't they? A. They are. Q. That's because trials can happen months, years sometimes after the events and you need to have that contemporaneous record to go back to? A. That's correct. Q. So it's important isn't it to take detailed and accurate notes in your police book? A. Yes it is. Q. Would you agree that it's important to record all relevant information and observations in your notebook about an incident? A. Yes." [T340.44 - T341.23]
The absence of any notes of conversations with the plaintiff, or any note of relevant observations, was even more surprising in this instance, especially given Sergeant Ahrens' acknowledgment that in the domestic violence setting, the people involved did not always tell the truth about matters that are the subject of investigation: T388.21 - T388.22. In that context, it was remarkable that he acted upon Mr Staff's account without first seeking to record or to note either the content or the effect of any contrasting version from the plaintiff.
Given the evidence of Sergeant Ahrens cited at paragraph [235] above, to the effect that a principal purpose for police officers making a record of relevant events in an official notebook is to create a reliable record that may later form the basis of accurate factual evidence, if it becomes necessary to be recounted at a later point in time, such as in a case like this one, absent any such notes of Sergeant Ahrens' dealings with the plaintiff in the events in question, I was left with considerable doubts over the reliability of the oral evidence of Sergeant Ahrens in a number of respects on factual matters in dispute, on a comparison of his evidence, the evidence of Senior Constable Cook, and the evidence of the plaintiff.
In identifying my stated concerns and findings over the reliability of the evidence of Sergeant Ahrens I have not placed any weight on the evidence concerning Sergeant Ahrens' previous dealings with the plaintiff some months earlier over a medication issue to do with her child custody and access dispute concerning her child, where Sergeant Ahrens said that he had not remembered that matter until he saw a COPS entry relating to that event about a week before the hearing: T350.36 - T351.9.
I take that view because it must be recognised that as a busy police officer in daily contact with various and multiple members of the public concerning multiple randomly occurring events, Sergeant Ahrens may have quite possibly forgotten his prior dealings with the plaintiff at her home on 25 January 2010 when he attended there again on 17 November 2011, notwithstanding her quite unusual presentation. In making that observation, I intend no disrespect to the plaintiff.
I therefore draw no conclusions from Sergeant Ahrens previous professional dealings with the plaintiff, which might have suggested the existence of a basis for him to have opinions or negative attitudes towards her. I do not make any adverse findings in that regard.
However, in view of the absence of any notes of Sergeant Ahrens dealing with the plaintiff, and in view of the inapt rendition of Mr Staff's actions as written up by Sergeant Ahrens in his factual narrative of the events, and in view of some argumentative aspects of his evidence in which he sought to construe Mr Staff's actions, which was in one instance, taken to an extreme and speculative position without foundation in the evidence, I consider that Sergeant Ahren's evidence, which sought to justify the arrest of the plaintiff, should be viewed with significant caution and reservation in this case.

[26]

Senior Constable Cook

Due to the absence of any contemporaneous notes made by Senior Constable Cook, reservations also arose concerning the reliability of aspects of her evidence that was invoked by the defendant as a means by which to seek to contradict the evidence of the plaintiff on critical matters in dispute.
Unlike the position regarding the detailed witness statement that Senior Constable Cook had obtained from Mr Shearman, and also like Sergeant Ahrens, she did not make any contemporaneous notes of her dealings or her interactions with the plaintiff during the almost two and-a-half hours of her attendance at the plaintiff's home on the day in question: T477.22; T477.48.
This was despite Senior Constable Cook's evidence that the plaintiff was being "quite verbal" at the scene: T492.32 - T492.38. In recounting her evidence on relevant matters concerning her dealings with the plaintiff, Senior Constable Cook seemed to have been entirely reliant upon her memory of those past events. Whatever the "quite verbal" aspects of the plaintiff's behaviour was at the time, it is clear that she was not argumentative and that she was co-operative with police officers except for her refusal to acknowledge any involvement in the disappearance of Mr Staff's car keys: T68.43; T69.1; T383.5; T383.13; T451.14 - T451.16.
In those circumstances, it is remarkable that whereas Senior Constable Cook claimed that the plaintiff was "quite verbal" (T492.32 - T492.36), that none of the "quite verbal" remarks made by the plaintiff in that regard were noted somewhere in her notebook, if not elsewhere in police documentation.
Just as Sergeant Ahrens was cross-examined on the utility of a police notebook for recordkeeping purposes, as cited at paragraph [235] above, Senior Constable Cook gave similar evidence, as follows: "Q. While you were speaking to Mr Shearman, you would have had your official notebook out, wouldn't you? A. Yes. Q. And you would have been recording what he told you as he told you? A. Yes. Q. Do you agree that your notebook is an important document in police work? A. Yes. Q. It gives you the facility to take contemporaneous notes for any investigations? A. Yes. Q. It's a valuable resource, once you get back to the station, to assist you in entering information into the COPS system, isn't it? A. Yes. Q. It's also a valuable resource to refresh your memory when preparing statements for court proceedings, isn't it? A. Yes. Q. It's important when you take detailed notes on the day-- A. Yes. Q. --that they be accurate? A. Yes. Q. On 17 November 2011 you would have taken care to record accurately whatever Mr Shearman told you when he gave you his notebook statement, wouldn't you? A. Yes. Q. It's true, isn't it, that Mr Shearman said that he saw Ms Costello hit Mr Staff in the face. Do you recall that? A. Yes. Q. But he also stated that, prior to Ms Costello hitting Mr Staff, Mr Staff had taken Ms Costello's mobile phone from her and she was repeatedly asking him to give it back. Do you remember that? A. Yes." [T483.1 - T483.41]
In circumstances where the plaintiff was persistently refusing to acknowledge any involvement in the disappearance of Mr Staff's car keys, and where Sergeant Ahrens was taking the lead in repeatedly putting the contrary proposition to the plaintiff, it is remarkable that over the course of over 2 hours, Senior Constable Cook made no note of such matters although she had her notebook available for that purpose.
The plaintiff's persistent and consistent refusal, as cited, in a setting of reported or suspected domestic violence, was also a most significant noteworthy matter that was central to the police presence at her home. The absence of any note recording the plaintiff's version of events is therefore most remarkable in these circumstances.
Reservations arose from a comparative consideration of Senior Constable Cook's evidence with that of the plaintiff and also that of Sergeant Ahrens. Those matters will be identified in my findings of fact on specific factual matters that relevantly arise for determination in the consideration of the facts.
At the time of the events, Senior Constable Cook had been a police officer for 14 years, and at the time of the hearing, she had been a police officer for 19 years. On the day in question, she had been assigned to work on general duties, assisting Sergeant Ahrens, who took the lead in the investigation of the circumstances which required their attendance at the plaintiff's home.
Senior Constable Cook at times appeared nervous and anxious when she gave her evidence. Since it was highly likely that she knew her evidence would be the subject of serious challenge, I do not consider that such matters of demeanour to be relevant factors for assessing the credibility and the reliability of her evidence.
Apart from assisting Sergeant Ahrens in looking for Mr Staff's missing car keys, Senior Constable Cook's role in the events was to take a witness statement from Mr Shearman, to speak to a support worker from New Horizons, whom she thought was named Tony, and to then assist Sergeant Ahrens in giving effect to his decision to arrest the plaintiff, and in getting her in and out of the police wagon in relation to transporting her to Lismore Police Station.
Senior Constable Cook's chronological involvement in the events was as follows. She understood that the need for a police attendance at the plaintiff's home was on the assumption that Mr Staff had been "the victim" of an assault: T459.39; T461.5; T465.39. This was in the context that there had been a report of female screaming. She had obtained the understanding of Mr Staff having been the victim from the content of a police radio message (T459.30; Exhibit "7"), although that radio message was not conclusive proof that Mr Staff had been assaulted, as the text section in that document only referred to him being "verbally threatened": Exhibit "7". However, Sergeant Ahrens interpreted other abbreviations in that document to state that Mr Staff had been assaulted by the plaintiff: T310.31.
At the scene, Senior Constable Cook understood that Mr Staff had claimed to have been assaulted, that his car had been kicked, and that he was looking for his car keys: T460.47. She obviously obtained that understanding from Mr Staff or from the statement Mr Staff had provided to Sergeant Ahrens.
There was no evidence to indicate that either Senior Constable Cook, or Sergeant Ahrens, investigated the origins or causes of the female screams reported by the named neighbour, in the context of a reported domestic violence incident, in which Mr Staff "had had an argument with his ex-girlfriend": T460.47. This was remarkable.
Senior Constable Cook confirmed that the plaintiff had consistently denied to the attending police officers that she had either inappropriately dealt with or had hidden Mr Staff's car keys: T462.31; T463.7; T466.15; T467.15; T479.27; T439.30; T482.25; T492.49 - T493.1.
Senior Constable Cook described how both she and Sergeant Ahrens had looked for Mr Staff's car keys without success: T461.9. Senior Constable Cook described how she, Mr Staff and Sergeant Ahrens had thoroughly searched for those car keys in the surrounding gardens around the plaintiff's home and had also searched across the road, and in the gardens on each side of the plaintiff's house, without success: T461.10 - T461.47.
Senior Constable Cook described how, after they had spoken to the plaintiff, they resumed searching in the gardens and in the shrubbery to "double check" where they had searched before, but that the search was unsuccessful in locating Mr Staff's car keys: T463.15; T463.29 - T462.34; T463.48; T464.2; T464.17. A concern emerged about the reliability of Senior Constable Cook's evidence concerning her description of the search for Mr Staff's keys over the course of over 2 hours at the scene. She said it may have taken an hour for her to obtain Mr Shearman's statement: T464.37. This meant that a considerable period of time had passed in which the search for Mr Staff's car keys proceeded.
A concern arose from Senior Constable Cook's evidence regarding her description of the search, in which she sought to avoid adopting the description of there having been a thorough search: T463.29 - T463.33. "We [being Senior Constable Cook, Sergeant Ahrens and Mr Staff] just had a quick look" for Mr Staff's keys without success: T461.7 - T461.14. She explained that search involved looking on either side of the surrounding gardens, in the immediate area, and around the house and the related gardens, including across the road. She then described "double-checking" where they had searched before, which included those described areas, and spent a while doing so: T463.48 - T464.7.
In my assessment, on the evidence referred to, Senior Constable Cook's avoidance of the term "thorough" was an obfuscation.
Senior Constable Cook's description of the events leading to the plaintiff's arrest was illuminating on the question of the reliability of her evidence. She stated that the assumption the plaintiff had thrown away the keys came from Mr Staff: T462.22. That evidence was in conflict with the evidence of Sergeant Ahrens, who relied upon "circumstantial" evidence. Mr Staff's statement, the text of which is cited at paragraph [68] above, did not make that assertion. He did not claim to have seen the plaintiff take his car keys. If he had made such an observation, there is little doubt that such an observation would have been included in his statement obtained by Sergeant Ahrens.
Although Mr Staff's statement included a reference to a request he made to the plaintiff to give him back his keys, it is plain this was based on his assumption that she had his keys. Senior Constable Cook's representation that Mr Staff was the source of knowledge to the effect the plaintiff had his keys, appears to have been a misstatement.
This was the "circumstantial evidence" that was relied upon by Sergeant Ahrens to disbelieve the plaintiff's statements denying knowledge of the whereabouts of Mr Staff's car keys, and to characterise her denials as lies: T437.47 - T437.50.
Those matters, the effluxion of time, and the absence of any notes taken by Senior Constable Cook in relation to her dealings with the plaintiff, raised significant doubts about the accuracy and the reliability of the factual accounts she related in her oral evidence in this case.
An example of the unreliability of Senior Constable Cook's unaided recollection can be readily seen in her adamant denial of the plaintiff having to be fingerprinted, and her subsequent acknowledgment that the plaintiff had in fact been fingerprinted. That acknowledgment had occurred after Senior Constable Cook had been shown a document that demonstrated the plaintiff had been fingerprinted, which revealed her memory was fallible insofar as she had related an erroneous recollection that was unaided by contemporaneous notes: T472.44 - T473.5; T474.6 - T475.16.
Senior Constable Cook confirmed that the decision to arrest the plaintiff had been made after she had taken a statement from Mr Shearman: T468.44. She confirmed that she did not make a note of her telephone conversation with the plaintiff's support worker prior to the arrest of the plaintiff: T468.5. This is a matter of some significance as to how the plaintiff was to be managed by the police officers because, according to Senior Constable Cook, the support worker she had spoken to disclosed to her that the plaintiff had short term memory problems: T481.19.
In my view, that latter matter, if true, was a matter of some significance which required that a record be made of this conversation. In my view, the absence of such a note reveals first, an inadequately documented police investigation, and secondly, the need for caution in assessing the factual evidence of Senior Constable Cook.
I now turn to a consideration of the disputed issues, and the associated factual issues that call for decision in this matter in relation to those issues.

[28]

Police Code regarding vulnerable persons

At the time of the events in question, the NSW Police Force had policies in place for dealing with persons who, in the policing context, should be considered as being vulnerable. Those policies, in the form of a Code and related regulations, served as a guide to police officers in the exercise of their powers. The Code made provision in relation to persons who were to be considered as being vulnerable.
A conclusion that a person was vulnerable, may arise according to a number of considerations, including whether or not the person in question was relevantly affected by disabilities, and whether the person concerned made a disclosure of having a disability.
As a guide to resolving the question of whether the attending police officers should have in the circumstances recognised the plaintiff as being a vulnerable person, the plaintiff tendered a NSW Police Force publication which was current at the time of the events, entitled NSW Police Force Code of Practice for CRIME, that term being an acronym for Custody, Rights, Investigation, Management and Evidence: Exhibit "D".
The Foreword to that Code placed emphasis upon, amongst other considerations for police officers to have in mind, the need for integrity to be placed above all; for the rule of law to be upheld; for the rights and freedom of individuals to be preserved; and for authority to be exercised responsibly: Exhibit "D", p 7. Those principles are beyond dispute, and they have particular application to persons who should be regarded as being vulnerable.
The plaintiff points to the general applicability of the Police Commissioner's concluding remarks in the Foreword to that Code, namely: "Through this Code, NSW Police has articulated the professional and ethical behaviour it requires of all officers when they exercise their powers of arrest and detention and when they deal with members of the community while investigating offences." [Exhibit "D", p 7]
Clearly, the contemplated objective of the Code was for the appropriate and the considered use of police discretion when exercising the power of arrest and detention. It is difficult to imagine the proper exercise of discretion where the relevant competing factors to be weighed have not been appropriately considered, a matter to which I shall return when considering other issues calling for decision.
The Code comprising Exhibit "D" also makes reference to the provisions of cl 24 of the Law Enforcement (Powers and Responsibilities) Regulation 2005 which, relevantly to the plaintiff's situation, identifies a vulnerable person as having impaired intellectual functioning, or impaired physical functioning: Exhibit "D", p 27.
The Introduction to the Code states that if an officer has a suspicion that someone might be a vulnerable person, any such person is to be treated as such for the purposes of the Code: Exhibit "D", p 8.
In this context, in my view, a suspicion of vulnerability involves a very low threshold for a police officer to form a state of mind to the effect that a person whose actions are under relevant consideration, may be suspected to be a vulnerable person.
The Code defines impaired intellectual functioning as including a total or partial loss of a person's mental functions; a disorder or malfunction that results in a person learning differently; a disorder, illness or disease that affects a person's thought processes, perceptions of reality, emotions, judgment, or that results in disturbed behaviour: Exhibit "D", p 149.
The Code further identifies a number of indicators of intellectual impairment for consideration by police officers. Those matters include the fact that a person identifies themselves as a person with impaired intellectual functioning; difficulty understanding questions or instructions, responding inappropriately or inconsistently to questions; short attention span; receipt of a disability support pension: Exhibit "D", p 141.
The initial consequential questions that arise for consideration in this case are whether, when the attending police officers interacted with the plaintiff before she was arrested at 6.30pm on 17 November 2011, the officers had a reasonable basis for suspicion that the plaintiff might be a vulnerable person, and if so, should she have been treated as a vulnerable person by those officers, and if so, in what manner.
In this case the consideration of such questions must necessarily proceed in the absence of any contemporaneous notes made by the attending police officers concerning their dealings and interactions with the plaintiff at the time and in the period in question.
Before considering the plaintiff's claim of disclosure of her disability to the attending police officers, and before making findings on what those officers knew or ought to have known, by way of background, it is relevant to have regard to the uncontradicted medical evidence concerning the plaintiff.

[29]

Medical assessment of the plaintiff

In light of the plaintiff's claims of disability, and the relevance of her claims in that regard to the issues in this case, her solicitor arranged for a medical opinion based on examination of her to be obtained for the purpose of these proceedings. Accordingly, in that regard, on 15 June 2015, at the request of the plaintiff's solicitor, a consultant surgeon, Dr Geoffrey Miller, assessed and reported upon the plaintiff's physical health status: Exhibit "B", pp 15 - 25. That evidence serves as a useful background guide to how the plaintiff would most likely have presented when the police officers attended at her home on the day in question, and how they would most likely have perceived her.
Dr Miller's physical examination of the plaintiff resulted in him noting that she had multiple disabilities, which included: 1. the presence of evidence of a past cranioplasty in the right parieto-temporal region; 2. a kyphoscoliosis to the left located in the mid-thoracic spine; 3. a palpable and tender protrusion over the sacrum, and an extremely limited range of movement of the back; 4. an external rotation of the right foot; 5. remarkably increased reflexes in the right upper and lower limbs; 6. limited left shoulder movements; 7. a fixed flexion deformity of the left elbow; 8. a flexed ulnar deviation of the left hand with contraction of that hand into a closed position; 9. limited movement in the left hip in a fixed flexion deformity with minimal abduction and adduction; 10. an inability to walk on her toes and heels; 11. an inability to squat, a fixed flexion deformity of the right leg; 12. a fixed flexion deformity of the right knee, and a varus deformity of the right ankle with internal rotation.
In the course of his assessment, Dr Miller reviewed some available MRI scans taken of the plaintiff in 2007. He identified those scans as showing body contracture, transitional sacralisation of the lumbar sacral anatomy with partial sacralisation to L5. He also saw x-rays reported as showing a mild thoraco-lumbar scoliosis to the left, a deviation deformity of the left wrist and forearm, and a flexion deformity of the right knee. Dr Miller also described a CT head scan which showed a deformity of the right side of the skull in keeping with past trauma, with an associated irregular hypodense lesion in the right posterior temporal and parietal regions involving both grey and white matter, unequal cerebral hemispheres, and a shift of the mid-line structures of the brain to the right. Dr Miller considered the findings were in keeping with right cerebral atrophy, post-traumatic malacia and post-porencephalic cyst formation.
Dr Miller made a diagnosis of an acquired brain injury resulting in a left hemi-paresis, with contractures affecting the plaintiff's left-sided extremities, with decreased function in her lower extremities.
Those matters are of some particular background relevance to assessing the accuracy of the police investigations and the manner in which they handled the situation at the plaintiff's home, including the arrest and detention of the plaintiff, and the reliability of observations of the plaintiff made by Sergeant Ahrens and Senior Constable Cook during their time in her presence.
Dr Miller was asked to provide an opinion of particular relevance, namely whether or not the plaintiff would have been capable of standing on one leg in order to kick a car door; elbowing a taller person in the left cheek area; punching a taller person in the left cheek area; grabbing the shoulder of a taller person; punching a taller person in the back of the head; getting in and out of a police wagon without assistance; removing her own jewellery; flattening her left hand unassisted for the purpose of taking of fingerprints; and sitting on a cell seat without physical discomfort.
Those matters were relevant to assessing the likely plausibility of some aspects of Mr Staff's statement, and the evidence of the respective police officers. I use the term plausibility, because at that stage of the police investigation, Mr Staff's account was to be considered for determining whether it provided a reasonable basis for suspicion, rather than prima facie proof, and obviously, the attending police officers would not have been in the same position of Dr Miller to make a full assessment of her abilities and disabilities.
Dr Miller expressed the opinion that all of the activities described at paragraph [289] above would be made impossible for the plaintiff because of her described disabilities. His opinion was clearly based on his medical findings on examination of the plaintiff, and on a common sense consideration of a series of physical movements, the mechanics of which would be expected to be within the knowledge and understanding of a consultant surgeon. The opinions he expressed were in compliance with the requirements of the Code of Conduct for Expert Witnesses: Sch 7 of the Uniform Civil Procedure Rules 2005.
Dr Miller's opinions were not the subject of cross-examination. There was no contradictory medical evidence. His described findings and opinions were credible on their face, and not otherwise inherently improbable. In my view, Dr Miller was adequately qualified to express his opinions as cited in the preceding paragraphs.
The significance of Dr Miller's survey of the plaintiff's physical disabilities is that if the police officers had put to the plaintiff the substance of the matters alleged against her by Mr Staff, some of which are summarised at paragraphs [289] to [291] above, the basis of the plaintiff's denials, as recounted in her evidence, would, in accordance with the principles and guidelines discussed at paragraphs [270] to [282] above, have required some exploration, at least at some basic level, on the issue of whether a credible basis existed for a suspicion of the existence of reasonable grounds that justified an arrest in this instance.
Such matters also relate to the question of whether or not the police action of last resort, namely the making of an arrest, with all its known consequences, was truly necessary in the circumstances, or whether an available alternative course to that of arresting the plaintiff was open, such as instead issuing court attendance notices.
Some of Dr Miller's described disability findings affecting the plaintiff were visibly evident to be observed by the legal representatives of the parties at the time of the plaintiff's appearance and presentation on the several occasions when she walked to and from the witness box during the course of the hearing. This included items (2), (4), (6), (8) as described in paragraph [285] above, as well as problems to do with her gait, a delay in responding to questions, and her unusual manner of speech.
In my view, it seems very likely that the same observations would have been evident to the attending police officers on the day in question when they attended the plaintiff's home, given the plaintiff's evidence as to the longstanding nature of her disabilities from infancy, and given the terms of Dr Miller's assessment as summarised above.
There was no suggestion that the problems identified by Dr Miller had emerged or post-dated the arrest of the plaintiff, or had increased in their recognisability to trained observers like police officers, in the period between the events in question on 17 November 2011 and Dr Miller's assessment of the plaintiff on 15 June 2015.

[31]

Police awareness of plaintiff's disability

Senior Constable Cook's evidence as to the timing of the plaintiff's disclosure of her disability to the police officers was different to the evidence of Sergeant Ahrens, to which I shall shortly refer. She said in her evidence the plaintiff had "made us aware ... that she had a disability" at the time both officers went to talk to her at her house: T473.24 - T473.28. That occurred at a very early stage of the police attendance at the plaintiff's premises.
I did not consider Senior Constable Cook's use of the plural "us" to be a loose colloquial reference to herself alone. In my view, it was descriptive of the fact that the plaintiff had told both her and Sergeant Ahrens of her disabilities.
That fact was plainly understood by Senior Constable Cook, who in the course of a telephone conversation with a support worker whilst still at the plaintiff's home, had been told by that support worker, that the plaintiff had some kind of memory impairment, but that revelation was not further investigated because the police officers were trying to get a quick resolution of the impasse over Mr Staff's car keys: T481.10 - T481.34.
Given that Senior Constable Cook was the most junior of the two police officers in attendance at the scene, I consider it more probable than not, that she would have informed Sergeant Ahrens of the above information of the plaintiff's suggested limitations. I consider that fact to be so because as he was the lead senior officer in charge of the investigation at the time, and the information that she had obtained in that telephone conversation with the support worker was a material matter that needed to be conveyed to Sergeant Ahrens for his consideration as to how the investigation should further proceed.
In making that reference to the hearsay evidence of the plaintiff's memory impairment identified by Senior Constable Cook as cited at paragraph [301] above, namely, that the plaintiff was said by the support worker to have been unable to remember things beyond a time lapse of about 10 minutes, I do not intend my reference to that evidence to represent an acceptance of the truth of that assertion.
Further evidence of pre-arrest police awareness of the plaintiff's vulnerability on account of her disability, was from evidence given by Sergeant Ahrens, where he said he did not put to the plaintiff the substance of Mr Staff's allegation that she had run down the driveway and kicked the rear driver's side door of Mr Staff's car. He said this was so because he was not able to do so on account of the need to provide the plaintiff with some safeguards and security in the form of a support person, which he claimed to have done: T423.25 - T423.32. In order to arrive at that view, he must have formed the view the plaintiff was a vulnerable person who needed a support person to be present before such a step could be taken.
Sergeant Ahrens eventually said as much in that, when he acknowledged that whilst at the plaintiff's home, he knew the plaintiff was a vulnerable person with cerebral palsy and an acquired brain injury before he made the decision to arrest her, and at the time he did so, she did not have a disability support person present to assist or support her: T435.48 - T436.10.
Sergeant Ahrens said that if he had put the substance of Mr Staff's allegation to her at the scene, "given the circumstances of her disabilities", this would have been, in his view, "grossly unfair and unethical": T423.34 - T423.40.
In my assessment, that evidence satisfactorily demonstrates Sergeant Ahrens was sufficiently aware that the plaintiff had a relevant disability, and that she was therefore to be regarded as being a vulnerable person.
Sergeant Ahrens said he could not recall whether the plaintiff was wearing a short-sleeved shirt on the day in question: T348.50. Given the effluxion of time, his evidence of his lack of recollection on that matter was not inherently improbable. However, it demonstrates limitations in the accuracy of his memory. He also said he had been unaware on the day in question, that the plaintiff's left arm had tendon contractures, meaning a twisted and clawed arm and hand: T349.1 - T349.16. I do not accept his evidence in that regard. An observation to that effect would have been on plain view to the attending police officers.
Sergeant Ahrens agreed that if such observations had been evident to him on the day, he would have considered it to be a noteworthy observation because of the implications of such a fact on questions to do with vulnerability and the requirements of police concerning their dealings with a person affected by physical limitations. In giving that evidence, he agreed that those requirements also applied to any similar conditions that might have affected the plaintiff's legs: T349.18 - T349.27. The fact that he made no notes of such matters does not mean he did not observe such matters to be present on view at the relevant time.
Sergeant Ahrens stated he had not noticed that the plaintiff walked with what was described as a strange gait: T349.31 - T349.39. I do not accept that evidence. An observation to that effect would have been on plain view to someone in Sergeant Ahrens' position at the time of the events, both when the plaintiff moved about in the presence of the police officers whilst at her premises, and after he took her into custody and took her to the police wagon.
I find that Sergeant Ahrens would have been in a position to make that observation at the outset, from the time when the plaintiff opened her door to his knock, and whilst they then moved away from the front door to where they sat down on the lounge in the plaintiff's house, and then had a conversation. That movement must have been some distance from the front door: T462.3 - T462.12; T477.1 - T477.5.
Sergeant Ahrens conceded that at some stage prior to his arrest of the plaintiff, she had told him she suffered from cerebral palsy and an acquired brain injury. After reviewing an initial doubt as to the timing of his receipt of that understanding, he said "I've got a feeling it was her disclosure to us that was, made us aware of it first of all, yeah": T349.41 - T350.9. He indicated that knowledge made a difference to the way he had approached and dealt with the plaintiff on the day in question: T350.10 - T350.14. In relation to that matter he gave the following evidence: "Q. How did it change how you dealt with her? A. Simply in regards to obviously allowing her to, to make contact with the support people, support person on this occasion, trying to give her, you know, time away where we weren't just always there and speaking to her so that she could have some time in her own mind to sort through things. As I said, the keys were a primary concern for us for the vehicle. So rather than our normal protocol that once we, once, in this circumstance, once we knew Rhani was an offender, we would have an officer probably with her for the duration of the time we were there keeping an eye on her for, if for no other reason than our own officer safety. Rhani was, Rhani was allowed to, you know, do what she needed to do. She was given time away from us to try and see if we could, or she could recollect where, what had happened to the keys, whether we could bring her around to assisting us in, in getting those keys back, and even to the point of, once we arrested her, what we, you know, we provided every assistance in regards to her with the caged vehicle getting back to the station." [T350.16 - T350.32]
None of those matters were the subject of any notes by Sergeant Ahrens and Senior Constable Cook. Only one side of the story was known to Sergeant Ahrens by the time he knocked on the plaintiff's door: T351.34. No aspect of the other side of the story was noted by the police officers from their subsequent dealings with the plaintiff. I consider this to be an important matter of omission in the context of an investigation of a domestic violence complaint.
I reject as improbable, the evidence of Sergeant Ahrens to the effect that he did not initially notice that the plaintiff had a disability: T347.41 - T347.43. I also reject the evidence of Sergeant Ahrens to the effect that it was not until a later stage before the plaintiff was arrested that she told him she suffered from cerebral palsy and had an acquired brain injury: T349.2 - T349.16.
In my view, the plaintiff's self-disclosed disability would have been abundantly self-evident to the arresting officers when they were in her presence, and at least by the time she was patted down by Senior Constable Cook before being taken to the police wagon. This is also confirmed by the fact that one of the arresting officers had noted on the Field Arrest Form at some time, which I infer was no later than 18:40 hours, that the plaintiff had either stated, or it had been observed that, she had cerebral palsy: Exhibit "2".
At the time the attending police officers spoke to the plaintiff her movements were on plain view to be observed by them. I find that in the circumstances that unfolded, they would most probably have seen her movements to have been physically awkward, with an awkward gait. Similarly, they would have seen that she had a curved posture, limb contractures, and that she spoke in an unusual manner. Some of the observations made by Dr Miller as outlined at paragraph [285], namely at sub-paragraphs (2), (4), (6) and (8) of that paragraph, would in my view, have most probably equally applied to the plaintiff as at 17 November 2011.
The plaintiff's disabilities affected the way in which she moved, spoke and appeared to exercise her cognitive functions. In my view, those matters, either individually or in combination, would have been obvious to both Sergeant Ahrens and Senior Constable Cook as being out of the ordinary, during their pre-arrest dealings with her.
I consider that the available observations to that effect were a sufficient indication to the attending police officers that the plaintiff should have been regarded or suspected by those police officers as being someone who was vulnerable according to the criteria of the cited Code and regulations. That is a matter quite apart from the self-disclosure in which the plaintiff had identified herself as having disabilities, which was also of a kind contemplated by the cited Code.
I do not accept the evidence of Sergeant Ahrens to the effect that he did not initially see the contractures that the plaintiff had in her left arm: T349.16. During the time before the plaintiff went to get her jacket, she wore a T-shirt with very short sleeves, as is evident in the custody photograph that comprises part of Exhibit "2". In those circumstances, I consider that her physical disabilities would have been plainly evident to Sergeant Ahrens when she moved her arm and when she moved about within her home, which was well before he decided to arrest her.
In my view, there was strong and persuasive evidence of Sergeant Ahrens being aware of the plaintiff's disabilities well before he arrested her. I consider that this came from his testimony that, before arresting her, and in the belief that she was lying about the whereabouts of Mr Staff's car keys, he had been giving her some time, as he described it, to bring her around to the idea that she had to return those keys to Mr Staff: T318.14 - T318.16; T319.4 - T319.6; T350.16 - T350.32.
Given the plaintiff's information processing difficulties, which were apparent in Court, and which I infer would have been similarly apparent at the scene, there would seem to have been little other reasonable purpose for giving the plaintiff some time to bring her around on that issue, except on account of her disability.
In my view that evidence was persuasive proof that Sergeant Ahrens knew, well before he arrested the plaintiff that he was dealing with a person with some significant disabilities which required that she be given some time to be brought around, and therefore, he understood that the plaintiff should have been regarded by the attending police officers as being a vulnerable person.
I find that the plaintiff's cited self-disclosures as to her disabilities ought to have triggered to both of the police officers at the outset, that she was a vulnerable person to whom the cited guidelines within Exhibit "D" applied. In that regard, I accept the evidence of Senior Constable Cook to that effect as cited at paragraph [301] above, in preference to any contrary evidence from Sergeant Ahrens.
In addition to the plaintiff's self-disclosure of disability at the outset of her dealings with the police officers, I consider that the plaintiff's disabilities would have been obvious to a trained observer such as a senior police officer in the position of Sergeant Ahrens, if not immediately, then incrementally, over the course of the time that the attending police officers spent at the plaintiff's home in the lead up to her arrest, including during the period when they were giving her some time for the purpose of bringing her around to the idea she should reveal the whereabouts of Mr Staff's car keys. In those events, they would have observed her curved posture, the contracture of her right forelimb, her manner of speech and movement, and that she communicated in an unusual way, which indicated a possible intellectual disability. That total period of elapsed time from the outset, during which such observations were available to the police officers was in excess of 2 hours.
The plaintiff's self-disclosure of disability as outlined at paragraphs [40] to [41] above, and police observations of her physical and communication characteristics, ought to have resulted in the police officers realising at an early stage, that she was very likely to be a vulnerable person, according to the criteria identified in the Code of Practice comprising Exhibit "D".
At the scene, the police officers knew that the plaintiff had been attempting to contact her support person, and they were giving her some latitude to do so. It must also have been plain to the attending police officers from those circumstances, that the plaintiff should have been regarded as being a vulnerable person.
On the foregoing analysis, I find that prior to the plaintiff's arrest, it would have been obvious and well understood by the attending police officers that, according to the applicable Code, she should have been regarded as someone who was vulnerable. They should have acted accordingly, and treated her as such, in accordance with that policy Code, as cited at paragraphs [270] to [280] above, and which Sergeant Ahrens well understood.
Those findings are of relevance to the consideration of the issues which relate to the adequacy of the police investigation of the circumstances they were called upon to attend, and whether Mr Staff's allegations should have been taken at face value before a decision was made to arrest the plaintiff, rather than taking a less drastic course, such as issuing court attendance notices.

[32]

Issue 2 - Pre-arrest signs of injury on the plaintiff

When the police officers attended the plaintiff's home in response to a report of a domestic violence incident, it would have been reasonable for them to at that time seek to determine whether any person had been injured in the reported circumstances, particularly given the reported history of female screams emanating from the plaintiff's premises.
The documentation of either the presence or the absence of signs of injury to any person at the scene, whether this be Mr Staff or the plaintiff, would have been a matter of some importance for those police officers.
I record my acceptance of the plaintiff's evidence that she had informed the attending police officers that she had been assaulted by Mr Staff prior to their arrival, as summarised at paragraph [40] above. The absence of any note made by the attending police officers of that report does not indicate in this case, that the plaintiff's account should be seen as being incorrect.
The entry in Sergeant Ahren's notebook to the effect that an AVO application number was obtained in relation to the call-out of police to the plaintiff's home, appears immediately following Mr Staff's signed statement: Exhibit "B", p 44. In my assessment this is consistent with the fact that there was no attempt made by Sergeant Ahrens to obtain a statement from the plaintiff before that entry was made. It is plain from that evidence that this note was made at a time when a decision had already been made to obtain an AVO against the plaintiff.
It follows that at that time, Sergeant Ahrens had already made a decision as to who he thought was the transgressor in the situation, namely, in his view it was the plaintiff.
I accept the evidence of the plaintiff that before the arrival of the police at her home, and because of the physical interactions that had taken place between herself and Mr Staff, she had signs of injury to her body. Those described signs comprised redness and a scratch to her right arm. Since the plaintiff was wearing a T-shirt with very short sleeves at the time, I find that those signs would have been observable to the attending police officers if they had both listened to, and followed-up, her complaint of having been assaulted by Mr Staff. That course would have led them to inquire into, and then identify, her injuries.
In the course of the evidence, as was requested of her, the plaintiff made a mark on the custody photograph comprising part of Exhibit "2": T118.1 - T118.43. That mark comprised a circled area of her left upper arm in the region of her bicep, which she identified as being a visible area of injury due to her altercation with Mr Staff: T134.10 - T134.15.
The fact that the signs of injury are not very clear on the photograph is not a matter which requires the plaintiff's evidence to be discounted or rejected on this point. The purpose of the photograph being taken of her whilst in police custody was to identify her, and not to necessarily identify her injuries. Furthermore, it is well understood that the interpretation of photographs in court proceedings for the purposes of making findings of fact is problematic: Blacktown City Council v Hocking [2008] NSWCA 144, at [169] - [172]. I therefore do not consider that the photograph comprising part of Exhibit "2" is a basis upon which to discount or reject the plaintiff's evidence that she was injured in her altercation with Mr Staff.
I am satisfied that if the plaintiff's claim of having been assaulted by Mr Staff had been appropriately followed-up by the attending officers, they would have asked her questions as to whether she had sustained any injuries in the claimed altercation with Mr Staff. I find on the balance of probabilities that in those circumstances, she would also have been anxious to prove she had been assaulted by Mr Staff, and she would have been anxious to prove that it was she, and not he, who was the true aggrieved party in need of protective police action.
In those circumstances, on the balance of probabilities, I find that the plaintiff would, if asked about such matters, have shown the police officers the marks on her body which she was seeking to attribute to the actions of Mr Staff. In those circumstances, the police would have inevitably been required to ask her questions as to how those marks or injuries had been sustained. Those questions would most likely have led to more questions being directed to the plaintiff, Mr Staff and possibly to Mr Shearman, and possibly to the neighbour who had reported the domestic violence incident, if not other neighbours as well. Instead, the attending police officers made no notes of their dealings and their discussions with the plaintiff.
I find that the scratch on the plaintiff's left arm, the location of which she identified by a marking on the contemporaneous police custody photograph comprising Exhibit "2", would have been evident to trained observers such as Sergeant Ahrens and Senior Constable Cook if they had followed up on what the plaintiff had told them about having been assaulted by Mr Staff. If the attending police had undertaken a follow-up of a disclosure by the plaintiff of injury along those lines, this would most likely have led to a further questioning of relevant witnesses and participants, and a consideration of the plaintiff's claims concerning Mr Staff's physical actions towards her.
I find that such questioning would have most probably also revealed the plaintiff's complaints of a tender bump or lump to her right forehead (T111.30 - T115.32), an injury to her shoulder blades from being pinned down by Mr Staff (T118.40) and the red mark, the scratch and the grazing she described as being present on her right and left arms, would also have been revealed to the attending police officers: T115.44; T116.6 - T116.20.
I find that had the police officers ascertained those matters from speaking to the plaintiff, they would have been obliged to make a note of the injuries complained of by the plaintiff in the context of a complaint of a domestic violence incident they were investigating, and these matters, if ascertained, would have undoubtedly been noted and further investigated as to their cause.

[33]

Issue 3 - Evidence available to police suggesting plaintiff was assaulted

I find that at the time the police attended at the plaintiff's home to investigate a domestic violence incident, they had sufficient information before them which prima facie indicated that the plaintiff had been assaulted. In arriving at that finding, I have not only accepted the evidence of the plaintiff that she told the attending police that she had been assaulted by Mr Staff (T17.11), but that conclusion also arises from Mr Staff's recorded admissions set out in his statement, where he said he had twice pushed the plaintiff.
In those circumstances, in the context of a domestic violence incident where Sergeant Ahrens knew that people did not always tell the truth (T388.21 - T388.22), it was incumbent upon the attending police officers to obtain a balanced view of the whole of the surrounding circumstances, and to more fully investigate the circumstances to determine whether there had been any relevant breaches of the criminal law, not only as claimed by Mr Staff, but also taking into account the matters claimed by the plaintiff, and Mr Staff's own admissions. Without that balanced perspective comprising both sides of the story, the investigation remained lop-sided and incomplete as the whole of the circumstances had not been given due consideration.
A balanced investigation required at the very least, that the plaintiff be interviewed as to the details of her allegation of having been assaulted by Mr Staff. An interview along those lines was conducted by Sergeant Ahrens with Mr Staff in respect of his allegations against the plaintiff. It is difficult to understand why the same course was not carried out in relation to the allegations the plaintiff was making to Sergeant Ahrens against Mr Staff, particularly where Sergeant Ahrens well understood that in the domestic violence setting, the people involved did not always tell the truth: T388.21 - T388.22.
The plaintiff asserted to police she had been assaulted by Mr Staff, and that she had relevant injuries from her altercation with Mr Staff, comprising marks and scratches, as she related in her evidence at T116.7 - T116.22, and as cited at paragraph [342] above. From the plaintiff's description, which I accept, signs of some of those injuries would have been evident on inspection of her affected parts, if such an inspection had been pursued by the attending police officers. I find that those matters would most probably have been revealed to the investigating police officers at the time if they had undertaken an appropriate inspection following the plaintiff's complaint of having been assaulted by Mr Staff.
The plaintiff's evidence in that regard was not the only evidence that supported a contention that she had been assaulted by Mr Staff. In addition to anything the plaintiff might have had to say on that issue, Mr Staff's own statement, as obtained by Sergeant Ahrens, contained unqualified admissions by him to the effect he had twice pushed the plaintiff, as is recorded at Exhibit "B", p 41.
There seems to have been no good reason why Sergeant Ahrens should not have accepted the fact of Mr Staff's admissions at face value, rather than making "terminology" adjustments to the factual record when writing up the narrative of those matters for processing an application for an AVO, where he substituted Mr Staff's term "pushed" with the word "shepherded".
An acceptance of Mr Staff's admission should have led Sergeant Ahrens to consider a connection between the plaintiff's claim of injury at the hands of Mr Staff, in circumstances where, at the very least, he had admitted having repeatedly pushed her up her driveway, by physically touching her, if not along the lines of the plaintiff's more detailed description of Mr Staff having thrown her to the ground, and having held her in a pinned down position, especially after taking into account the fact that he was obviously much larger and stronger than the plaintiff.
On my review of the evidence, the plaintiff has identified the basis for a prima facie case of assault upon her by Mr Staff in a reported domestic violence setting at her home, where evidence in support of that proposition was already in the hands of Sergeant Ahrens in the form of Mr Staff's own statement which contained relevant admissions.
If that prima facie position had been identified, as it should have been especially where the plaintiff was asking the attending police officers to remove Mr Staff from her premises, in the domestic violence setting, the situation would not have been as simple as just considering the question of what, if any, offences might have been committed by the plaintiff.
The broader consideration would have been to determine who should be charged and for what charge or charges, and whether, if it was determined the plaintiff should be charged, did the circumstances justify her being arrested for the charges then contemplated, or whether some other alternative steps should have been taken that did not involve her being arrested, such as the issue of court attendance notices.

[34]

Issue 4 - Adequacy of the police investigation

The starting point for a consideration of the adequacy of the investigation is that it was well evident to the police officers at the time when they attended at the plaintiff's home, that Mr Staff was not a resident at the plaintiff's home, and that he and the plaintiff were no longer in a domestic relationship. Accordingly, whatever the true dynamics of the situation, from the perspective of the police officers attending to their investigation of the domestic violence incident to which they had been called, only one side of the factual account had been obtained from the two key participants in the events, namely, Mr Staff and the plaintiff.
This was in circumstances where it was understood that domestic violence was alleged to have been involved, and the lead investigator, Sergeant Ahrens, also understood that in obtaining factual accounts from the relevant actors in such circumstances, there was a reasonable possibility that one or more of those factual accounts may not be accurate, or truthful: T388.21 - T388.22.
In that regard, there was no evidence of the attending police officers having explored with Mr Staff whether the car keys he claimed to have been missing were on his person, or somewhere in his vehicle, or elsewhere to his knowledge.
Not only was there no documented process indicating that the police had tested Mr Staff's account, but there also seemed to have been no similar process undertaken for exploring whether Mr Shearman knew anything of the whereabouts of the missing car keys. Instead, the assumption Sergeant Ahrens drew from the circumstances, was that the plaintiff was responsible for Mr Staff's keys having gone missing, despite her denials, which he considered to be lies, on a basis that was not adequately explained, except by invoking circumstantial evidence.
Sergeant Ahrens did not seek to test the possibility that Mr Staff may have been lying about his car keys in light of his experience that people could tell lies in such situations. In the context of evidence that the plaintiff had slapped Mr Staff, Sergeant Ahrens was not prepared to concede that the plaintiff was within her legal rights to use force on Mr Staff to try and regain possession of her telephones which Mr Staff had taken and used without her consent (T385.25). Had he given consideration to that matter, just as he sought to justify Mr Staff's actions in pushing the plaintiff, this would have placed the alleged assault on Mr Staff in a different light.
It is against that background understanding, that I consider the process by which the police proceeded with their task comprised a flawed and unbalanced investigation. The factors which lead me to that conclusion are as follows.
First, Sergeant Ahrens had only taken down Mr Staff's factual version of the events. This was in the form of a police statement. In contrast, no version, not even a brief one, was taken from the plaintiff. As observed at paragraphs [345] to [346] above, and in light of his understanding of the possibilities of untruthfulness in the domestic violence setting, as cited at paragraph [254] above, it was remarkable that Sergeant Ahrens had only pursued one version of the story from the two persons who were directly involved in the events.
Whilst Sergeant Ahrens claimed in his factual rendition that the plaintiff did not want to be interviewed (Exhibit "7", p 4), I do not accept that proposition insofar as it related to the investigation of the events whilst the police were at the plaintiff's home.
It was not contemporaneously noted as a fact, either in Sergeant Ahren's notebook, or in the notebook of Senior Constable Cook, and the document which contained that contentious factual rendition was attacked on the basis that it represented a "massaged" and therefore misleading factual narrative, because it in effect downplayed Mr Staff's actions relating to his physical handling of the plaintiff. It conveyed the impression that there had been no physical contact initiated by Mr Staff in relation to the plaintiff, when in fact the opposite was true, as was evident from Mr Staff's own version, in which he admitted having twice pushed the plaintiff, a version which was contained within the statement Sergeant Ahrens had obtained from him beforehand: Exhibit "B", p 41.
Secondly, not all of Mr Staff's factual allegations had been put to the plaintiff before she was arrested. According to the evidence of Sergeant Ahrens and Senior Constable Cook, she was only required to respond to questions concerning the whereabouts of Mr Staff's missing car keys, and she had denied any wrongdoing in that regard.
The plaintiff's denials were not contemporaneously recorded in any way, before the police officers considered and determined important questions, such as to who, if anybody, should be arrested for wrongdoing. This was so, especially where there was no pressing urgency or other distracting issue, that prevented an appropriate investigation.
Thirdly, the allegation of the plaintiff having kicked Mr Staff's vehicle was not put to the plaintiff until after she had been arrested, and whilst she was being taken down her driveway. I accept the plaintiff's evidence in that regard. That allegation was put to her at a time when she was being taken down the driveway in preparation for being placed into the back of the police wagon, which was in circumstances where it was plain she should have been regarded by police as being a vulnerable person because of obvious disabilities, yet no support person was arranged to be present to assist her.
I therefore find that the allegation of malicious damage to Mr Staff's vehicle was conveyed to the plaintiff only after, and not at the time of her arrest. I do not accept the evidence of Senior Constable Cook to the effect that she heard Sergeant Ahrens say that the plaintiff was under arrest for the offences of "assault, malicious damage and phone, phone harassing calls": T485.11. Senior Constable Cook said they were "all the offences" charged: T485.13. However, when that evidence was explored, she could not recall the plaintiff being charged with an offence of larceny: T485.13.
Sergeant Ahrens stated that whilst they were still at the plaintiff's house, he had made it quite clear to the plaintiff that he had arrested her for kicking Mr Staff's vehicle, and for assaulting Mr Staff, and he denied that either he or Senior Constable Cook had told the plaintiff this whilst they were proceeding down the driveway to the police wagon: T392.20 - T392.25. Sergeant Ahrens also stated that at the time the plaintiff was arrested she was told she was being arrested for two assault matters, malicious damage to Mr Staff's vehicle, and for stealing the car keys: T390.45.
I do not accept Sergeant Ahrens' evidence in that regard. It is inconsistent with the contemporaneous annotation of the Field Arrest Form completed by Senior Constable Cook at the police station when the events were still fresh (T392.35) and where that form only referred to the charges of assault and malicious damage. In light of my findings and stated concerns over the reliability of the evidence of Sergeant Ahrens, I prefer the contemporaneous account contained in the Field Arrest Form: Exhibit "2".
I do not accept the proposition that the plaintiff was arrested for the charges involving alleged larceny and alleged harassing phone calls. In the absence of contemporaneous notes to that effect, I prefer and accept the version of the charges as set out in the Field Arrest Form, which were limited to the matters of alleged assault and malicious damage: Exhibit "2".
I find that the charges of larceny and harassing phone calls were not specifically and contemporaneously flagged to the plaintiff as reasons for her arrest when she was at her home.
The evidence of Senior Constable Cook as to which charges had been drawn to the plaintiff's attention at the time of her arrest was based on Senior Constable Cook's inaccurate memory. She said all persons arrested are told why they are being arrested: T484.34. She was adamant about that: T484.36 - T484.46.
However, when her memory on that aspect of the matter was tested, she could not respond to a question seeking to explore the basis of her memory on that question: T484.50 - T485.1. When the matter was further explored, it seems tolerably clear that she had based her answer in that regard on an assumption, namely an understanding of what usually occurred in respect of "all the offences" rather than as to what had actually occurred: T485.13.
When that matter was further tested, Senior Constable Cook could not recall whether the plaintiff had been told that she would be charged with larceny of Mr Staff's car keys: T485.16 - T485.22. In light of Senior Constable Cook's unreliable memory, I do not accept that the plaintiff was told at the time of her arrest that she was also charged with having made harassing telephone calls: T485.10. Again, in that regard, I prefer the more objective and contemporaneous record of the annotated content of the Field Arrest Form comprising Exhibit "2", which identified the basis of the arrest as only being for the charges of assault and malicious damage.
Fourthly, it appears that Mr Staff's allegation of damage having been occasioned to his vehicle by the plaintiff kicking it twice, had not been adequately considered by the police officers. What was asserted as being damage or a dent, was ultimately conceded as being two scuff marks that did not differentiate between the marks as comprising actual damage, or being superficial dirt or surface contamination, that could be cleaned away without lasting or damaging effect: T379.5; T419.42 - T420.37; Exhibit "6".
The plaintiff was not given the proper opportunity of denying any role on her part in relation to those scuff marks. The evidence of Sergeant Ahrens referred to Mr Staff's vehicle having a dent: T420.4 - T420.32. There was no evidence to reliably confirm that Mr Staff's vehicle had been damaged by a dent. The photographs comprising Exhibit "6" do not reasonably permit a conclusion that there was a dent: Blacktown City Council v Hocking [2008] NSWCA 144, at [169] - [172]. I do not consider Mr Iuso's reference to the presence of "dinting", to be at all reliable, or evidence of that asserted fact: T274.30; T280.6.
Sergeant Ahrens wrote up a description of the damage as "a mark on the side of the car". That was a reference to Mr Staff's claimed observation that the mark was black, and the same colour as the soles of the plaintiff's shoes: Exhibit "8", p 3. Accepting for the purpose of analysis that the plaintiff's shoe soles were black, and recognizing that although the tendered photographs of the marks do not confirm that the marks were black, that is not an appropriate means by which to find facts: Blacktown City Council v Hocking [2008] NSWCA 144, at [169] - [172].
The emergent point here is that it appears neither Sergeant Ahrens nor Senior Constable Cook had documented any attempt to verify or test the observation that Sergeant Ahrens claimed had been made by Mr Staff, as written up in the facts sheet prepared by Sergeant Ahrens: Exhibit "7", p 3. Furthermore, and most significantly, nowhere in Mr Staff's statement in Exhibit "B" at pp 37 - 44, as cited at paragraph [68] above, was there any reference to Mr Staff having described the marks on his vehicle as black, or of having seen the plaintiff's shoe soles, and of having made a connection that the soles and the marks were of the same colour.
Sergeant Ahrens had no documented basis for including in his narrative comprising Exhibit "8", the references relating to the colour of the mark on the car or the plaintiff's shoe soles. Whilst it might be assumed he was reliant on his recollection in relation to that matter of detail, I am not prepared to draw that inference where, in the same document, in his rendition of the facts, he had morphed Mr Staff's admissions of having twice pushed the plaintiff, into a benign description of having "shepherded" her up her driveway, which suggested there had been no physical contact between them.
Sergeant Ahrens said that after he had obtained Mr Staff's statement, in which there was a description of the plaintiff running (Exhibit "B", p 41), he said there was nothing he had observed about the plaintiff's walking that suggested to him that she was not capable of running, or to suggest that what Mr Staff had said in his statement was untrue in any respect: T423.15 - T423.23. I do not accept that evidence, which was given four and-a-half years after the event, absent any contemporaneous note or record made by him concerning his discussions with, or his observations of, the plaintiff, at that time. There is no evidence to suggest that he asked her a question along those lines.
Fifthly, if the plaintiff had been given the opportunity to respond to the allegation that she had kicked Mr Staff's car in the manner alleged, it would most likely have become apparent to the attending police officers, that on account of her physical disabilities, it was unlikely that she could have attempted to do so without falling over, as she explained in her evidence: T22.17 - T22.24; T23.30 - T23.35. That evidence from the plaintiff was supported by Dr Miller's opinions cited at paragraphs [289] to [291] above.
That difficulty appears to have been ultimately recognised by the cross-examiner when he was cross-examining the plaintiff. In the face of the plaintiff's persistent denials of having kicked Mr Staff's vehicle, the cross-examiner then put to the plaintiff the alternative proposition that she could have kicked Mr Staff's car whilst laying flat on her back: T194.15 - T194.25.
That proposition is problematic as it was not consistent with the content of Mr Staff's statement describing the events, as taken down by Sergeant Ahrens, nor was it supported by any evidence from Sergeant Ahrens or Senior Constable Cook. The basis for that question being asked was not made clear by explanatory factual evidence. Critically, Mr Staff did not describe the plaintiff as having lain on her back, and having then proceeded to kick the vehicle, and to then get up and step away from the vehicle. The factual basis for the question asked remains obscure and speculative.
Sixthly, the described imbalance in the investigation of the domestic violence incident led Sergeant Ahrens down the procedural pathway of taking the active step of arresting the plaintiff: T316.9; T318.17; T319.6; T333.21; T353.50; T424.48; T450.46; T464.7; T484.14.
The more benign alternative pathway, namely, of issuing court attendance notices, seemed to have been the more appropriate course in the circumstances of someone in the position of the plaintiff, who should have been dealt with by the police officers in a manner that recognised she was a vulnerable person, and in a manner that reflected the applicable police Code and related policies, as cited at paragraphs [270] to [283] above.
In my view, a recognition of that kind compellingly indicated that at the time, court attendance notices represented the appropriate and preferable pathway of charging the plaintiff rather than taking the last resort option of an arrest, as was adopted.
As a result of the one-sided and inadequate investigation, in the domestic violence setting, the attending police officers omitted to ask the plaintiff relevant questions that were demanded of such an investigation. The most pertinent question of all was to ask the plaintiff as to her version of the events, and whether she had been injured. That question was a compelling one, which called for some basic form of investigation in light of the report by a neighbour that he had heard a female screaming in the events in question. In my view, this indicates that the police investigation was seriously inadequate to the reported circumstances.
This is so especially after allowing for the view held by Sergeant Ahrens that the factual accounts obtained from interested parties in such settings, could possibly be untrue: T388.21 - T388.22. The proper exercise of the discretion on whether or not to make an arrest required that both versions of the events be given some consideration, and not just dismissing one version as comprising lies, as seems to have occurred.
When considering his options, Sergeant Ahrens did not give himself the opportunity of making a comparative assessment of that kind. He did not take down the competing versions when he was confronted with apparently differing factual accounts, especially where one account (from Mr Staff) was very detailed on multiple issues, and was recorded in the form of a definitive statement, and the competing account (from the plaintiff) was only in relation to the single issue of denial of any knowledge of the whereabouts of the missing keys. Not only was the plaintiff's version not taken down in the form of a statement, but it was not even noted.
To the extent that Sergeant Ahrens had relevant conversations with the plaintiff, the details of those conversations were left to the vicissitudes of fallible memory, and to be recalled much later, if required. In my view, this investigation was a very flawed and one-sided process, especially given the fact that the police officers were on site investigating a reported domestic violence incident for nearly two and-a-half hours before the plaintiff was eventually arrested in the impasse over the car keys that then prevailed.
Sergeant Ahrens had confirmed on several occasions that his attendance at the plaintiff's home was for domestic violence related offences: T439.16 - T439.18. He also stated that the Code of Practice and his training indicated that domestic violence matters were to be treated quite seriously, and the direction of the Police Force was to thoroughly investigate all matters of domestic violence, and in that process the policy was to place the highest consideration to arresting the offender in such situations: T439.22 - T439.29.
Whilst it is understandable that the highest consideration might be given to making an arrest in the domestic violence setting,` in the interests of avoiding harm to those affected, the decision to arrest not only requires a rational basis, but it also involves the balanced exercise of a discretion on whether or not to take that pathway where there are reasonable and appropriate alternatives. Those matters will be the subject of the consideration of the next issue.
I find that in not taking a statement from the plaintiff, and not recording or noting any of her disputed accounts of the events, Sergeant Ahrens' actions fell well short of the above standard that he identified. Furthermore, in ignoring the effect of Mr Staff's self-described actions in which he admitted having pushed the plaintiff, he failed to recognise Mr Staff as an "offender". This too indicated that Sergeant Ahrens' investigation did not meet the description of a thorough investigation, for which he had identified the standard: T439.22 - T439.29. Notwithstanding Sergeant Ahren's evidence that he was more than happy with his investigation (T332.20), I do not accept that he investigated the circumstances "thoroughly", as he claimed: T437.41 - T437.42.
In summary, I find that the arrest of the plaintiff occurred in circumstances where the attending police officers had carried out an inadequate investigation of the reported domestic violence incident that they had been called upon to attend. Their investigation was not appropriately balanced and remained one-sided as it did not seek to explore or understand the plaintiff's competing version of the events in question. This finding has implications as to the reasons proffered by the defendant as justification for the plaintiff's arrest.

[35]

Issue 5 - Whether wrongful arrest, false imprisonment, assault

Sergeant Ahrens' reasoning for his decision to arrest the plaintiff, was essentially as follows: 1. Mr Staff's car keys were stated by him to have remained missing, despite repeated requests by police to the plaintiff, over a prolonged period of time, to reveal their whereabouts; 2. The police officers had spent an inordinately long, extraordinary, frustrating and testing time unsuccessfully trying to find the car keys, and trying to obtain a disclosure from the plaintiff as to their whereabouts; 3. Sergeant Ahrens did not believe the plaintiff was telling the truth concerning her repeated denials of having any knowledge as to the whereabouts of Mr Staff's missing car keys; 4. Sergeant Ahrens based his view that the plaintiff was lying about the whereabouts of Mr Staff's keys on "circumstantial evidence" (T437.47) which was based on what Mr Staff had told him of the circumstances; 5. There was no evidence that, in the domestic violence setting, Sergeant Ahrens had obtained any detailed version of events from the plaintiff to assist him in forming a view on the rationality of the "circumstantial evidence" to which he had referred, other than the plaintiff's repeated denials, which he had disbelieved, as to the whereabouts of Mr Staff's keys; 6. Sergeant Ahrens had "formed the opinion quite strongly that there was no other conclusion" or possible explanation than that the plaintiff had removed the keys: T293.13; T353.14 - T353.30; 7. Mr Staff's vehicle could not be moved from the street outside the plaintiff's house without the missing car keys; 8. The plaintiff could not be directed to leave the area, as she was in her home, where she was otherwise entitled to remain; 9. The continued presence of Mr Staff's vehicle, it appears, gave rise to a "major concern" about the safety of Mr Staff (T425.4) on the part of Sergeant Ahrens, to the effect that the plaintiff might either carry out a further assault on Mr Staff if he remained in the area near his parked vehicle, because his vehicle could not be moved, or that the plaintiff might cause malicious damage to Mr Staff's parked vehicle: s 99(3)(b) of LEPRA; 10. Sergeant Ahrens did not believe the plaintiff would stay at (or, I interpolate, within) her premises and obey a direction to do so if given pursuant to s 89 of the Crimes (Domestic and Personal Violence) Act 2007, and she "could have committed further offences": T447.15 - T449.3; 11. Sergeant Ahrens therefore believed that he had "no other choice" (T315.20), or "no other option" but to arrest the plaintiff: T395.26.
If it were not for the missing keys, it appears that, in Sergeant Ahrens' mind, matters concerning the alleged harassing telephone calls, the alleged assaults, and the alleged malicious damage, would not have caused him to arrest the plaintiff: T316.3 - T316.9; T318.15 - T318.18; T333.19 - T333.21; T339.33 - T339.38; T346.34 - T346.36.

[36]

Preliminary considerations

Before making findings on whether the arrest of the plaintiff was justified in the circumstances, it is necessary to first identify and set out some preliminary matters raised in the pleadings, the relevant legislative provisions, and to set out the evolution over time of the charges laid against the plaintiff.
In her statement of claim filed on 4 September 2014, the plaintiff claimed she was unlawfully arrested, and thereby, falsely imprisoned, and that as a result of being physically handled by the police in that process, she had been assaulted: SOC par 11 - par 16.
Putting to one side for the moment, matters of particularity, to which I must necessarily return, the basis of the plaintiff's claim that her arrest was unlawful, was an alleged failure of the arresting police officers to comply with s 99(3) of LEPRA, which required that for an arrest to be justified, it must be necessary, based on a suspicion, which was in turn required to be based on reasonable grounds.
In answer to the plaintiff's claim, again for the moment, putting to one side questions of particularity, to which I shall also return, the defendant denies each aspect of the plaintiff's claims, and asserts that her arrest was lawfully justified, having regard to s 99(2) and s 99(3) of LEPRA: SOD, par 15 - par 16.
In the defendant's supplementary written submissions dated 8 December 2016, at par [4], the defendant submitted that it was not appropriate to examine the evidence in this case in light of a consideration of s 99(2) of LEPRA: Benn v State of New South Wales [2016] NSWCA 314, at [58] - [64]. I do not accept that submission. The way in which this case was run at trial, the reasons for the plaintiff's arrest, and the rational basis of those reasons, were clearly in issue. This is not a joinder of issue case, like Benn v State of New South Wales [2016] NSWCA 314. The defendant raised and pleaded a defence pursuant to s 99(2) in its defence, a matter for which the defendant carried the onus. I consider that reference to s 99(2) is part of the logical framework for a consideration of the reasons for the arrest of the plaintiff, and a consideration of whether or not that arrest was lawful.
The defendant pleaded a further defence which claimed the force that was used to arrest the plaintiff was reasonably necessary in the circumstances: s 231 of LEPRA: SOD, par 17. In further answer to the plaintiff's claim, the defendant also pleaded that at all times, the arresting police officers acted in accordance with s 6 of the Police Act 1990, and in doing so, they had acted in accordance with the stated Mission of the NSW Police Force, including for the detection and prevention of crime, and therefore, their actions were justified at common law, and that they were motivated by a desire to achieve and preserve the peace: SOD, par 18.
The starting point for any analysis of the claim of justified arrest is that it is first necessary for the plaintiff to establish the tort of false imprisonment, she must show that, contrary to the principles cited in the preceding paragraphs, the arresting police officers intentionally caused the total restraint of her liberty: Darcy v State of NSW [2011] NSWCA 413, at [141] - [146].
In that regard, there can be no dispute that at 6.30pm on 17 November 2011, in the events under present consideration, the plaintiff was intentionally arrested by the attending police officers because, it was claimed, they had no other option for dealing with the "situation", which was the continued lack of knowledge of the whereabouts of Mr Staff's missing car keys.
As a result, when she was arrested, there was a total restraint imposed upon the plaintiff's liberty, which then continued until she was released from police custody, on bail, at about 10.15pm on that same evening. There is no dispute that in the ensuing period of some 3 hours and 45 minutes, in which the total deprivation of the plaintiff's liberty continued, this caused her to experience much grievance and distress.
In these circumstances, the defendant bears the onus of showing that the imprisonment of the plaintiff was justified: Zaravinos v State of New South Wales [2004] NSWCA 320, at [37]. In doing so, the defendant must demonstrate that the arrest was necessary, in the terms set out in s 99(3) of LEPRA and in accordance with the pleaded and applicable common law principles. In this context, "necessary" seems to mean necessary in all the circumstances, and not just on a narrow and one-sided view of the circumstances in the domestic violence setting. The meaning of "necessary" in this context will be taken up shortly: State of New South Wales v Robinson [2016] NSWCA 334.

[37]

Applicable common law principles

Absent two well recognised exceptions, the fundamental common law principle that must be observed by police officers when making an arrest without a warrant is that the person being arrested must be told of the act or acts which are said to constitute the crime alleged, and for which the arrest is being made. An arrest that does not comply with that obligation is unlawful: Christie v Leachinsky [1947] AC 547, pp 587;591; 595; 598.
There is no doubt that the decision in Christie v Leachinsky reflects the common law in New South Wales: Adams v Kennedy [2000] NSWCA 152; (2000) 49 NSWLR 78, at [24]; State of New South Wales v Delly [2007] NSWCA 303, at [3].
In this case, the arresting officers were required to comply with those common law obligations. To do so, they were obliged to tell the plaintiff the true ground or grounds upon which she was being arrested, subject to just exceptions: Johnstone v State of New South Wales [2010] NSWCA 70, at [22], following Christie v Leachinsky.
The two well recognised exceptions to those common law requirements are first, where the person being arrested must have been aware of the general nature of the reason for the arrest, and secondly, if the circumstances made it impracticable to inform the person of the reasons for the arrest: Benn v State of New South Wales [2016] NSWCA 314, at [73].
Absent those just exceptions, the arresting police officers were obliged to comply with the common law obligation of advising the plaintiff of the grounds for her arrest.
The obligation to inform the person arrested of the true ground for the arrest, as stated in Christie v Leachinsky, is now also embodied in s 201 of LEPRA: Johnstone v State of New South Wales, at [29], [30]. In that case, at [45], citing Christie v Leachinsky, the underpinning principles were identified as being that a citizen who is prima facie entitled to personal freedom should know why, for the time being, that personal freedom is to be the subject of interference by an arrest and deprivation of such liberty.
The effect of the evidence of Sergeant Ahrens and Senior Constable Cook was that the plaintiff was provided with reasons for her arrest at the time of her arrest. The only evidence that could have been called by the defendant was from those two police officers, and their evidence was to that effect. Whether or not such reasons were given at the time of the plaintiff's arrest and the adequacy of the police investigation which preceded that arrest, were live questions of fact to be decided in this case.

[42]

Initial intimation to plaintiff of nature of the charges

The first recorded intimation given to the plaintiff of the nature of the charges made against her, was when she was still at her home, either shortly before, or during the process of her arrest, at 6.30pm.
That fact is evidenced by the entries made by Senior Constable Cook on the Field Arrest Form which comprised part of Exhibit "2". It was completed by Senior Constable Cook at Lismore Police Station. I infer from the circumstances that it was completed there, either just before, or at around the time that the custody of the plaintiff was handed over to Senior Constable Devine.
That form clearly shows that the offences for which the plaintiff had been arrested, were the two separately identified charges of "Assault" and "Mal. Damage". The arrest time and date was identified as being 6.30pm on 17 November 2011.
At that time, there was no other contemporaneous written evidence, from either Sergeant Ahrens or Senior Constable Cook, in any other police document, of any other charges, either laid or contemplated to be laid against the plaintiff, at the time of her arrest.
In light of that analysis, I do not accept the evidence of Sergeant Ahrens to the effect that at the time of her arrest, he had informed the plaintiff that she was charged with the larceny of Mr Staff's car keys: T390.45. The Field Arrest Form does not support that suggestion. In light of my findings on the reliability of Sergeant Ahrens' recollections, and without confirmation from the contemporaneous record, I do not accept the evidence of Sergeant Ahrens to the effect that Mr Staff's missing car keys had formed the basis of the arrest of the plaintiff. He clearly had other charges in mind, as was recorded on the Field Arrest Form.
On the basis of that form, I find that at the time of her arrest, the only charges signalled to the plaintiff, and which formed the basis of her arrest, involved an alleged assault against Mr Staff, and the allegation that she had caused malicious damage to Mr Staff's vehicle.
I therefore find that at the time of the plaintiff's arrest at her home, which was before she was placed in the back of the police wagon, there was no statement to the effect that she was or would be charged with larceny of Mr Staff's car keys. Similarly, I find that the plaintiff was informed of the fact that she was arrested in relation to the allegation of having kicked Mr Staff's vehicle causing damage, only when she was being taken to the police wagon, which was after her arrest. I do not accept the ex post facto reasons provided by Sergeant Ahrens and Senior Constable Cook to the contrary.
There was no contemporaneously written notation in the evidence that the arresting police officers had told the plaintiff that she was being arrested for larceny of the car keys. I find that from the reported interchanges, at the time of her arrest, she would not have had an understanding that she was, or was about to be, arrested for alleged larceny of Mr Staff's car keys. This was in circumstances where there was no circumstantial impracticality in telling the plaintiff at that time, of the reason for her arrest.

[43]

Subsequently recorded reasons for plaintiff's detention

When the plaintiff arrived at Lismore Police Station, she was transferred from the custody of the arresting officers into the custody of the custody management officer, Senior Constable Devine. The Custody Management Record relating to the plaintiff's detention at Lismore Police Station, comprising part of Exhibit "2", at page 6, records the following salient features: 1. At 18:59 hours on 17 November 2011, the custody of the plaintiff had been transferred from the arresting officers to Senior Constable Devine, who then commenced keeping that timed custody record; 2. The time of the arrest of the plaintiff was confirmed as having occurred at 18:30 hours on 17 November 2011; 3. The original grounds for the detention of the plaintiff were noted on the Custody Management Record as comprising three stated reasons that were consistent with the content of the Field Arrest Form, namely: 1. Domestic violence (DV); 2. Assault; 3. Malicious damage (Mal Dam).
At that time, there was no mention of any charges relating to alleged larceny of Mr Staff's car keys, or with regard to the plaintiff having allegedly made harassing telephone calls to Mr Staff.
The additional mention of the domestic violence context entered into the Custody Management Record did not appear to represent an additional charge. The inclusion of that item of detail merely added some background context to the circumstances of the arrest of the plaintiff.
The reference to an assault obviously related to an alleged assault of Mr Staff. The reference to malicious damage obviously related to what turned out to be scuff marks on Mr Staff's car. Both of those latter matters were consistent with the contemporaneously recorded reasons for the arrest, as was stated by Senior Constable Cook on the Field Arrest Form, which is part of Exhibit "2". Those events would undoubtedly have been under the guidance of Sergeant Ahrens, the arresting police officer.
Whilst the plaintiff remained in custody in a police cell, between the times of 19:03 hours and 19:15 hours on 17 November 2011, Senior Constable Devine read out to her the Caution and Summary of Pt 9 of LEPRA: Exhibit "2", p 6. No further charges were made against the plaintiff at that point.
There is no evidence, either before or after those times, of the plaintiff ever having made a written or oral statement to any police officer containing her version of the underlying events in respect of which she had been charged.

[44]

Ultimate iteration of the charges laid against the plaintiff

The final iteration of the charges ultimately laid against the plaintiff, as cited at paragraph 15 of the defendant's written submissions, were as follows: (1) Larceny pursuant to s 117 of the Crimes Act 1900 (NSW), (in relation to the car keys); (2) Use carriage service to menace/harass/offend pursuant to s 474.17 of the Criminal Code Act 1995 (Cth); (3) Common assault domestic violence related, pursuant to s 61 of the Crimes Act 1900 (NSW) (in relation to the plaintiff elbowing the accused in the head); (4) Common assault domestic violence related, pursuant to s 61 of the Crimes Act 1900 (NSW) (in relation to the plaintiff grabbing Staffs shirt and chasing after him punching him a number of times to the back of the head area); and (5) Intentionally or recklessly destroy/damage property less (sic) domestic violence related pursuant to s 195(l)(a) of the Crimes Act 1900 (NSW), (in relation to the damage to Staffs car).
The Custody Management Record, at page 7, suggests that the process of charging the plaintiff appeared to commence at 20:36 hours, and was completed either by 22:00 hours or 22:11 hours: Exhibit "B", p 83.
Those charges were the subject of the court attendance notices that were issued to the plaintiff by Sergeant Ahrens at 20:59 hours on 17 November 2011: Exhibit "B", pp 32 - 36.
Those charges all related to the period of time between 15:00 hours and 16:06 hours on 17 November 2011. The charges were listed to be answered by the plaintiff in conjunction with the requirement that she attend Lismore Local Court at 09:30 hours on Monday 16 January 2012: Exhibit "B", pp 32 - 36.
The plaintiff did not make a request for bail whilst she was detained at Lismore Police Station: Exhibit "B", p 72. Nevertheless, at 21:51 hours, the records show that Sergeant Lloyd made a determination that the plaintiff should be given bail to attend court on 29 November 2011. This followed the plaintiff's undertaking and agreement, noted at 21:50 hours, to observe bail conditions that were in the form of an AVO: Exhibit "B", pp 73 - 75.
Earlier, an application for a provisional AVO was made at 21:39 hours, and that order was authorised at 21:48 hours, and received by facsimile at Lismore Police Station at 21:51 hours. The plaintiff was then given bail at 22:12 hours: Exhibit "B", p 83.
I find that in the period between 6.30pm and the completion of the charging process at 22:00 hours or 22:11 hours, the plaintiff had not been told that she had been arrested for larceny of Mr Staff's car keys, or that she had been arrested for allegedly having made harassing telephone calls to Mr Staff.

[45]

Circumstances leading to arrest of plaintiff

There is no dispute that on the afternoon of 17 November 2011, Sergeant Ahrens and Senior Constable Cook were called to the plaintiff's home to deal with a report of a domestic violence incident that was of concern to a neighbour who had heard female screams emanating from the plaintiff's home, and who had reported that observation to the police.
In those circumstances, there was an obligation on the attending police officers to take that report seriously because of possible adverse domestic violence consequences that could stem from such reported circumstances: T439.22 - T439.29. The compelling conclusion is that Sergeant Ahrens and Senior Constable Cook were, to their undoubted knowledge, being required to attend a domestic violence incident: T439.18.
This was a "situation" involving the need to investigate the reported incident. On investigation, the police officers determined that at the centre of the "situation", was Mr Staff's missing car keys.
According to Senior Constable Cook, the determining fact that could have "resolve[d] the situation" at the plaintiff's home, and obviated the need for her arrest, was the whereabouts of Mr Staff's keys: T462.7 - T462.12. That was also the view expressed by Sergeant Ahrens in that he said that in his view, it were not for the fact that Mr Staff's car keys were missing, he would not have arrested the plaintiff: T316.3 - T316.9; T318.15 - T318.18; T333.19 - T333.21; T339.33 - T339.38; T346.34 - T346.36.
According to Senior Constable Cook, the continued absence of Mr Staff's car keys meant that the "situation" at the plaintiff's home "could [not be] resolve[d] in a simple way": T463.5 - T463.9. Senior Constable Cook gave an insightful account of the police reasoning that lay behind the arrest of the plaintiff, as follows.
The police thinking was that they did not want to, or could not remove the plaintiff (T464.10), that without the car keys, they could not remove Mr Staff or his car (T464.10 - T464.11) so they decided "to take Rhani back to the police station" as they felt they were not able to deal with the situation another way: T464.12 - T464.13.
In that context, the expression "take Rhani back" could only have meant arresting her. It could have no other meaning unless the plaintiff had consented to that course, and there is no evidence that she did so. In that context, the Field Arrest Form made no mention of a charge of alleged larceny in relation to those car keys, or of alleged harassing telephone calls.
The sequence of events was, that the police had first obtained an account from Mr Staff, then looked around for the keys, then after about 10 minutes they spoke to the plaintiff (T476.33), they then looked for the keys again, and it appears that after about an hour of further searching, they commenced taking statements from Mr Staff and Mr Shearman, following which, they then arrested the plaintiff without ever having recorded her version of the events: T464.
It was not entirely correct for Senior Constable Cook to say that neither Mr Staff nor his vehicle could be removed. Mr Staff could have been directed to leave the plaintiff's premises. He or the police could have arranged for the vehicle to be removed without the keys, by organising a tow. The cost was a secondary consideration.
As already observed, the only reasons recorded for the arrest were assault and malicious damage: Exhibit "2". The focus was that Mr Staff was the presumed victim of the domestic violence incident for which they had attended: Exhibit "B", p 37; Exhibit "7".
Senior Constable Cook expanded upon the police reasoning behind the plaintiff's arrest. She stated that the said reasoning came from a shared understanding between herself and Sergeant Ahrens of the circumstances that were gleaned from the statements of both Mr Staff and Mr Shearman, but, significantly, not from the plaintiff: T465.36 - T465.41.
That understanding and reasoning was as follows: "Q. You took your statement. Sergeant Ahrens took his statement. What sharing of information was there between the two of you in relation to the information obtained? A. That the victim had been assaulted on a number of occasions during that period and the witness had seen that happen and that, you know, the decision was made to make an arrest. Q. You referred earlier to Rhani being told about the keys and what would have to happen if the keys weren't found. Can you give us what was said by, presumably, Craig Ahrens or Sergeant Ahrens as to what would happen to Rhani if the keys weren't located? A. Well, we said, if the keys aren't located, Ronald can't leave. Therefore, we can't remove the car from the area and we will need to - we would have to arrest her and take her back down to the station because we wouldn't be able to stop the offence occurring again. Q. What I want you to do is to make it clear to the Court whether that was actually said to her or not. A. Yes. Q. On how many occasions, if more than once? A. A lot of time. Q. When you say a lot of times, doing the best you can on your recollection, how many times are we talking about? A. Ten. Q. What was her response on each occasion? A. She doesn't know about the keys. She doesn't know where they are. She didn't know anything about them, "I don't know what you're talking about."" [Emphasis added] [T465.36 - T466.15]
The text emphasised above clearly cannot be referring to a prospective or anticipated offence relating to the car keys "occurring again". This is because the car keys were already missing, and in the circumstances, obviously, they could not go missing again unless they had first been found, which was not the case before the plaintiff had been arrested. It was also incorrect to say that neither Mr Staff nor his vehicle could be removed from the area.
Senior Constable Cook then went on to refer to the alleged damage to Mr Staff's vehicle, as follows: "Q. You referred to damage and speaking to her about damage to Ron's car earlier. Can you tell us what was said about the damage to Ron's car, as you and Sergeant Ahrens were talking to Rhani? A. I can't remember what. In regards to the damage I just know that the damage was there, was - she didn't say anything about the damage, but the damage was there on the car and Ronald had provided the statement that the damage had been done. Q. Are you able to say whether or not you saw the damage for yourself? A. Yes. Q. What did you see, on your recollection? A. I saw two black marks on the side of the door, one on the white part of the paint and the other one on the black trim of the car. Q. Are you able to tell his Honour whether or not photos were taken of the areas you observed to be damaged? A. Yes, two photos. Q. Who took those photos? A. I did. Q. With what? Was it a phone or some other implement? A. Yeah, my phone. Q. You can accept for the moment that those photos taken by you are before the Court in evidence in these proceedings. I now want to take you to the actual arrest of Rhani if I may. Can you relate for us in your words what happened at time of arrest? What was said by whom and what happened. A. Rhani, during all this time Rhani has also been on the phone to her support person. He knew that we were, that she was going to be arrested and was coming down to the station." [T466.17 - T466.48]
The black marks referred to in the emphasised text do not appear as black on the photographs, but that observation is not conclusive: Blacktown City Council v Hocking [2008] NSWCA 144, at [169] - [172].
Senior Constable Cook was asked questions about discussions held with the plaintiff's support person by telephone whilst they were still at the plaintiff's home, and as to the basis of her statement that the support person knew that the plaintiff was to be arrested: "Q. How did you know that the support person knew Rhani was going to be arrested? A. Rhani was on the phone to him the whole time and I had spoken to him at one stage. Q. What did you say to him? A. I said to him "Rhani just needs to tell us where the keys are so we can go, and Ronald could go." Q. What response if any did you get? A. He at that stage didn't know, he said she didn't know where the keys were at that stage. SAIDI Q. Was this a conversation between you and the support person? A. Yes, it wasn't very, it was quite short. Q. How did you come to have that conversation with the support person, can you tell us? A. On Rhani's phone. Q. Yes, but how was it, how did you have Rhani's phone in your hand to have the conversation? A. She gave it to me. HIS HONOUR Q. At what stage of proceedings was this, towards the beginning or towards the end of your time at her house? A. Around about the middle. SAIDI Q. To your knowledge who was it that made contact with the support person? Was it Rhani or was it the support person calling her? Can you give us an idea? A. Rhani was making contact with the support person while we were at the house. Q. What, if anything did she say to you about that? A. She was just informing us that she was in contact with this person. Q. What was she saying, the words, the effect of it or her actual words? A. "This is, this is my support person. I'm on the phone to him," yeah. He was, she was, she was just making it clear that she was speaking to him and having communications with him. HIS HONOUR Q. Did you get a name? Did you get a name of that person? A. Tony. Q. Is this noted somewhere in your notebook? A. No." [Emphasis added] [T467.5 - T468.9]
I infer from the emphasised answer in the above extract of the evidence of Senior Constable Cook, where she referred to "Tony" as the plaintiff's support person, and from Mr Iuso's subsequent arrival at the police station as her support person, about 2 hours later, at 8.15pm on that evening, that the person referred to as Tony, and Mr Iuso, were one and the same person.
Senior Constable Cook gave a revealing answer in her evidence in chief concerning the reasoning behind the plaintiff's arrest and concerning the adequacy of the police investigation into the domestic violence circumstances, as follows: "Q. The search again for the keys was unsuccessful. So what happened from that point? A. Then after we had gotten all the, the both statements where Rhani was informed that she was under arrest and we escorted her to the back of the truck. Q. Who was it that actually arrested her? A. Sergeant Ahrens." [Emphasis added] [T468.42 - T468.49]
Contrary to that evidence, the fact is, not "all" of the statements had been obtained as was suggested by the emphasised part of the cited answer. Senior Constable Cook's evidence was mistaken in that regard. She then corrected herself. No-one had obtained a statement from the plaintiff. Senior Constable Cook's explanation for not having taken any notes in her notebook of any conversations with the plaintiff, was that the officer-in-charge normally took such notes: T478.6 - T478.13.
There was no explanation from Sergeant Ahrens as to why he had not taken any notes of his conversations with the plaintiff. The tendered copy of his notebook reveals he only took a statement from Mr Staff, as cited at paragraph [68] above, and beforehand, he had made a brief note of having spoken to Mr Staff: Exhibit "B", p 37. There were no such notes of any police conversations the police officers had with the plaintiff. This represented a material deficiency in the investigation.
Sergeant Ahrens did not consult Senior Constable Cook before arresting the plaintiff. It appears that this was simply understood being the next step along the path that they were taking with the plaintiff: T484.14.
In her oral evidence, Senior Constable Cook was asked to relate, from her recollection, exactly what was said to the plaintiff at the time of her arrest, as to the reasons for her arrest: "Q. Would you agree there's no record whatsoever in your police notebook of anything Ms Costello did or said after you arrived at her home, is there? A. Correct. Q. At the point of the arrest Ms Costello was advised by either you or Sergeant Ahrens, and I assume it would be Sergeant Ahrens, that she was being arrested for stealing Mr Staff's car keys. Do you agree with that? A. I would say it would be more than just stealing his car keys. Q. Can I ask you, given that you've got no notebook entry, could I ask you to put your mind back to that day and tell me what you actually recall in respect of what was said to Ms Costello about the reason she was being arrested? A. It would be for the assault on Ronald, the malicious damage on his car and the telecommunications offence because he was - she was living in his home." [Emphasis added] [T484.16 - T484.29]
The emphasised extracts of Senior Constable Cook's evidence demonstrates the uncertainty and the unreliability of her recollections. First, the plaintiff was not living in Mr Staff's house, as stated by Senior Constable Cook, secondly, whilst there may have been some suspicion of the plaintiff having stolen Mr Staff's car keys, if that was to be a basis for her arrest, it would have been told to her and noted on the Field Arrest Form. I therefore do not accept Senior Constable Cook's contrary evidence on these issues.
Furthermore, it is plain that the evidence of Senior Constable Cook as to what the plaintiff was told at the time she was arrested was based on what usually occurred in such circumstances, as distinct from what had actually occurred: "Q. When you said it would be, are you saying you specifically recall that was what was said to her on 17 November or you expect today that that's what would have been said to her on 17 November? A. All persons are told when they're arrested why they're being arrested. Q. We all know on occasion that some people aren't told. So I'm just asking you to recall. A. She was told. Q. Should be told. Exactly. HIS HONOUR Q. It is better if you wait for the question before you dive in with the answer, Constable Cook. A. She was told. SMITH Q. You remember that, do you? A. (No verbal reply) HIS HONOUR Q. By whom? A. Sergeant Ahrens. Q. What exactly was said? A. "You are under arrest for these offences, assault, malicious damage and phone, phone harassing calls." Q. Is that all? A. That's all the offences. SMITH Q. Is it not true that there was also an offence of larceny in respect to the keys? A. I can't recall whether that was a charge or not. Q. So you don't recall whether Sergeant Ahrens also mentioned that? A. No, I don't recall that." [T484.31 - T485.22]
In light of my findings concerning the reliability of the evidence of Senior Constable Cook, absent any contemporaneous notes of any discussions she might have had or witnessed as involving the plaintiff, I do not accept her evidence that the plaintiff was told that she was being arrested for all the alleged offences set out at paragraph [433] above. Instead, I prefer as more accurate, the contemporaneous account contained in the Field Arrest Form which Senior Constable Cook had filled in at the police station (T392.35) in which she simply identified the charges that based the arrest as being assault and malicious damage.

[47]

Legislation

Before examining the particularity of the plaintiff's claims and the defendant's defences, to determine whether the defence of justification of the plaintiff's arrest has been made out in this case, it is relevant to first identify the relevant legislative provisions.
Section 99 of LEPRA, as it applied on 17 November 2011 provided as follows: 99 Power of police officers to arrest without warrant (1) A police officer may, without a warrant, arrest a person if: (a) the person is in the act of committing an offence under any Act or statutory instrument, or (b) the person has just committed any such offence, or (c) the person has committed a serious indictable offence for which the person has not been tried. (2) A police officer may, without a warrant, arrest a person if the police officer suspects on reasonable grounds that the person has committed an offence under any Act or statutory instrument. (3) A police officer must not arrest a person for the purpose of taking proceedings for an offence against the person unless the police officer suspects on reasonable grounds that it is necessary to arrest the person to achieve one or more of the following purposes: (a) to ensure the appearance of the person before a court in respect of the offence, (b) to prevent a repetition or continuation of the offence or the commission of another offence, (c) to prevent the concealment, loss or destruction of evidence relating to the offence, (d) to prevent harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence, (e) to prevent the fabrication of evidence in respect of the offence, (f) to preserve the safety or welfare of the person. (4) A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person, and any property found on the person, before an authorised officer to be dealt with according to law.
In this case, the defendant invoked the provisions of s 99(3)(b) and (f) of LEPRA as the relevant determining factors that justified the arrest of the plaintiff. Section 231 of LEPRA, as it applied on 17 November 2011 provided as follows: 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.
In this case, there was never any real likelihood of the plaintiff escaping, or attempting to escape from the police officers. The plaintiff did not in any way resist the arrest. She simply expressed her protest at the repeated accusations of involvement in Mr Staff's car keys going missing. She did so in a verbal manner: T492.38 - T493.6. This was her unquestionable entitlement. This aspect of the "situation" satisfactorily shows that no force was required to enlist the plaintiff's co-operation at the point of arrest.
However, the police officers resorted to, and used some, physical force in the sense of following through with the arrest, and ensuring the plaintiff was placed into the caged area at the back of the police wagon. They did so by lifting the plaintiff under her arms to assist her placement into that caged area of the police wagon.
In those circumstances, although it would have been more appropriate for them to have used an alternative vehicle to enable the plaintiff to enter it without physical handling or assistance in light of her disabilities, on the disputed premise that the arrest was lawful, and on the premise that the vehicle used for transportation was suitable and appropriate, it is obvious that some force was necessary in order to lift the plaintiff and get her into that vehicle.
I have given careful consideration to the plaintiff's allegations that she had been thrown into the caged area at the back of the police wagon in an undignified and disrespectful way, initially with her feet half in and half out, including the alleged circumstances of Sergeant Ahrens swearing at her, and that she had been pulled out of the police wagon on arrival at the police station: T26.24 - T26.25; T35.35 - T35.38.
Whilst I accept there was a testing atmosphere of frustration on the part of Sergeant Ahrens and Senior Constable Cook prevailing at that time, I do not accept that the plaintiff was thrown into the police wagon as she has claimed. I do not consider that the police officers had acted in such a callous, disrespectful, and unprofessional manner towards the plaintiff in that regard. Given that the circumstances were frustrating to the police officers, and whilst I do not discount the possibility that the plaintiff could have been sworn at, although this was denied by the police officers, it is a peripheral matter that does not require further consideration or reconciliation.
I consider that the sequential elements of the described events as they unfolded, confronting as they were for the plaintiff, have understandably resulted in the plaintiff conflating the effect of the successive circumstances in her recollection of that aspect of the matter.
At the scene, the plaintiff had been inconvenienced and put out by the prolonged police presence at her home. This had followed on from the unpleasantness of the earlier precipitating experiences involving Mr Staff. She was also plainly frustrated by the repeated accusations of her involvement in the apparent unavailability of Mr Staff's car keys. She also felt affronted at being arrested and charged. She would also have felt humiliated by being taken to the police wagon and the prospect of an undignified journey to the police station, and the overwhelming uncertainty of what lay ahead for her, especially since at the time, she did not have a support person present to provide her with assistance and emotional support in such distressing circumstances. In those circumstances, the conflation referred to in the preceding paragraph, would be understandable in her situation, especially when taking into account her processing difficulties.
Similarly, the physical handling of the plaintiff that the police officers considered necessary to ensure that she was placed in the back of the wagon would have left the plaintiff feeling that her personal space, autonomy, and her rights had been violated. In that evolving context, I consider that the effects of the described physical handling of her by the police officers, has probably been conflated by her, but not with the intention of exaggerating the description of the events: T487.43 - T488.34.
The defendant has conceded that if the arrest of the plaintiff was considered to have been unlawful, it follows that the subsequent physical handling of the plaintiff, and the act of placing her into the caged area of the police wagon, amounted to an unlawful touching: DWS, par [10]. If the plaintiff was handled unlawfully, this would make good her claim of assault, and the related battery.
Although the plaintiff said she saw Senior Constable Cook preparing to handcuff her, which she said had led to her protesting that course on account of her disability (T20.16 - T20.17; T228.47 - T229.3), and although Senior Constable Cook denied that she took any such course, the fact is, that the plaintiff was not handcuffed.
That said, given my stated reservations over the reliability of Senior Constable Cook's unaided recollections in this matter, for example, the fingerprinting issue described at paragraph [265] above, I do not accept Senior Constable Cook's evidence on the handcuff issue. I accept that the plaintiff was given reason and justification to protest about the proposed use of handcuffs as she claimed. However, nothing of pivotal significance turns on that issue.
Returning then to the actions of the police officers in placing the plaintiff into the caged area at the back of the police wagon, in my view, the physical contact that was used in those circumstances involved force that was "not reasonably necessary to make the arrest": s 231 of LEPRA. This is because the arrest of the plaintiff had already been achieved at her home before the plaintiff had been walked down the driveway to be lifted and placed into the back of the police wagon.
As a follow-on from that arrest, I consider that a more considerate and sensitive approach in the circumstances of the plaintiff's disability would have been for the attending police officers to arrange for a suitable vehicle with a seat and seatbelt to be obtained, something which Sergeant Ahrens said could have been achieved, if it had been considered necessary: T394.5 - T394.12.
Had that course been followed, it would have been unnecessary for the police officers to use physical force to lift the plaintiff, and to place her, unsecured, in the back of the police wagon, where she remained without a hand-hold by which she could secure herself during the journey to the police station.
There was a divergence between the evidence of Sergeant Ahrens and Senior Constable Cook on the reason why the plaintiff could not have been placed in the back seat of the police wagon rather than being placed as she was in the caged section at the back of the police wagon. Whereas Senior Constable Cook stated that it was not permitted to have the plaintiff in the back seat on grounds of safety (T470.1 - T470.13), in contrast, Sergeant Ahrens stated that there were no questions of officer safety at that time, such that he saw no need to handcuff the plaintiff: T392.15.
In those circumstances, I find that the necessity for an alternative vehicle to be made available to transport the plaintiff was compelling in the circumstances, given her vulnerability as specified in the Code. I consider that this option was overlooked in the trying and testing circumstances that prevailed. Sergeant Ahrens said that if needed, he could have summoned a sedan vehicle to take the plaintiff to the police station: T394.12.
I find that the police officers had become frustrated by the events at the plaintiff's home. Sergeant Ahrens determined that an inordinate and extraordinary amount of police time had been spent at the scene: T339.41 - T339.44. Senior Constable Cook's evidence was to a similar effect: T489.6 - T489.8. I infer from that evidence that they had become frustrated by those events.
Although Senior Constable Cook denied that she had considered the time taken on the job to be a waste of time (T489.13) I do not accept that evidence. Sergeant Ahrens conceded he had become frustrated by the plaintiff: T395.36 - T395.41. I consider that the evolving atmosphere of frustration had tested the professionalism of the police officers, and had annoyed them at the time, despite denials in that regard: T395.38; T488.38; T489.19 - T489.36. The consequence was that they had overlooked the need to ensure the plaintiff was transported appropriately in a sedan vehicle, having regard to her physical disabilities, of which they were well aware.
Section 6 of the Police Act 1990, as it applied on 17 November 2011 provided as follows: 6 Mission and functions of NSW Police Force (1) The mission of the NSW Police Force is to work with the community to reduce violence, crime and fear. (2) The NSW Police Force has the following functions: (a) to provide police services for New South Wales, (b) to exercise any other function conferred on it by or under this or any other Act, (c) to do anything necessary for, or incidental to, the exercise of its functions. (3) In this section: police services includes: (a) services by way of prevention and detection of crime, and (b) the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way, and (c) the provision of essential services in emergencies, and (d) any other service prescribed by the regulations. (4) A reference in this section to the functions of the NSW Police Force includes a reference to the functions of members of the NSW Police Force. (5) The provision of police services in emergencies and rescue operations is subject to the State Emergency and Rescue Management Act 1989 and to the Essential Services Act 1988. (6) Nothing in this section confers on the NSW Police Force a power to provide a police service in a way that is inconsistent with any provisions applicable to police officers under the Law Enforcement (Powers and Responsibilities) Act 2002.
Those cited functions in the police Mission do not authorise conduct contrary to the Code comprising Exhibit "D".
There can be no question as to whether Sergeant Ahrens and Senior Constable Cook were providing anything other than police services within the meaning of s 6 of the Police Act 1990 when they attended at the plaintiff's home in response to a report concerning a domestic violence incident. Similarly, there can be no question that their actions at the time involved the provision of such services and matters incidental to those police functions. Whether they adequately discharged those functions was an entirely different question, upon which I have already stated my findings, at paragraphs [354] - [393] above.
Having due regard to the defined purposes of the police Mission Statement referred to in s 6 of that Act, in the context of prevention of crime and the protection of persons and property, I consider that the step taken by the attending police officers to arrest the plaintiff was disproportionate and unnecessary having regard to the circumstances in which the police officers found themselves, and to those objects. I reach that conclusion for a number of reasons, as follows.
First, in the context of a disputed domestic violence incident, the question of the absence of Mr Staff's car keys was not fully or adequately investigated before the plaintiff was arrested. For example, there was no evidence that Mr Staff had been questioned about his assertion of missing keys in a way that served to test that assertion, based on circumstantial evidence, that inferred the plaintiff had taken his keys. Another example is that Mr Staff was not asked to turn out his pockets to check for the whereabouts of the car keys: T379.50. Sergeant Ahrens said he saw no reason to doubt the information given by Mr Staff: T317.19. I find that evidence difficult to accept, in the face of his knowledge of the plaintiff's persistent denials concerning the whereabouts of Mr Staff's car keys. Those denials would have been a sound reason for the police officers to test Mr Staff's version in the domestic violence setting.
This was in circumstances where Sergeant Ahrens knew that in the domestic violence setting people did not always tell the truth: T388.21 - T388.22. Instead, he seemed to have simply assumed that Mr Staff was telling him the truth, and that the plaintiff was not: T291.49 - T291.50; T293.12 - T293.13; T318.50; T345.35; T437.31; T437.48.
The suspicion held by Sergeant Ahrens that the plaintiff had inappropriately or wrongfully dealt with Mr Staff's car keys, on the limited investigation that had been undertaken by the police officers, was an insufficient basis upon which to proceed to an arrest of the plaintiff because, in my assessment, that extreme step was not appropriately reasoned. I shall shortly return to this observation.
Secondly, if Mr Staff's presence at the plaintiff's home had ceased, as was the plaintiff's request, it would have been unlikely that the plaintiff would seek him out in order to assault him, given that the plaintiff had been co-operative and was not exhibiting an intention to assault Mr Staff or damage his vehicle when the police were there.
Thirdly, the alleged "damage" to Mr Staff's car was identified as being scuff marks. That did not necessarily mean damage having been occasioned to the vehicle. This question was not adequately investigated or documented. The photographs do not show damage and it would be wrong to assume that they did show damage as distinct from dirt or removable and non-damaging surface contamination: Blacktown City Council v Hocking [2008] NSWCA 144, at [169] - [172].
Fourthly, accepting for the purpose of analysis, that the plaintiff had in fact damaged Mr Staff's vehicle, it seems that any apprehension that there might be anger or aggression on her part in those events (which she had not conceded) would most likely have been directed at the physical presence of Mr Staff, and not at his vehicle. It seems that it was his presence, and not the presence of his vehicle, which was in any event, not parked on her property at the time, that was the asserted precipitating circumstance. If Mr Staff had left the plaintiff's property, it seems unlikely that the plaintiff would have made attempts to kick his vehicle, which had remained on full view in a public street.
Fifthly, Senior Constable Cook conceded that whilst she was present at the scene, the plaintiff had not been threatening, abusive or obstructive in any way (T482.15 - T482.21), and at no time did the plaintiff either assault or threaten to assault Mr Staff when the police were at her home (T492.15 - T492.22), Senior Constable Cook did not see the plaintiff damage or threaten to damage Mr Staff's vehicle (T492.24 - T492.30). There were no indications given to the police officers of concerns in that regard. It is therefore difficult to accept that Sergeant Ahrens' major concern was for the safety of Mr Staff: T425.4. I do not accept Sergeant Ahren's evidence in that regard.
The only matter of note or "out of the ordinary" that occurred in relation to the plaintiff's behaviour in the entire period of two and-a-half hours of police presence in her home, was that the plaintiff was "quite verbal", by which Senior Constable Cook meant that she continued to deny any knowledge of the whereabouts of Mr Staff's car keys: T492.35 - T493.6. This was in circumstances where she was otherwise very co-operative, and not argumentative with the police officers: T68.43; T69.1; T383.5; T451.14 - T451.16.

[49]

Section 99(2) of LEPRA - Suspicion of commission of offences

There is no doubt that at the time of the arrest of the plaintiff, Sergeant Ahrens held the suspicion that the plaintiff had committed the offences comprising an assault upon Mr Staff, and of having occasioned malicious damage to Mr Staff's property, as these were the reasons he identified in the Field Arrest Form for arresting the plaintiff: Exhibit "2".
Ignoring for present purposes the inherent scope for confusion created by the defendant's use in its pleading of the term known as "the bastard conjunction", in the expressed form "and/or", which is a meaningless term, the significance of which I have identified and explained by reference to authorities in detail elsewhere (Vaccaro v MLC Limited [2016] NSWDC 85, at [10]), the defendant submitted that Sergeant Ahrens and Senior Constable Cook each suspected on reasonable grounds, that the plaintiff had committed 5 relevant offences: DWS, par [15].
That submission requires some qualification because Senior Constable Cook followed Sergeant Ahrens' lead: T465,15; T483.49 - T484.9.
The details of the offences the subject of that submission have been set out at paragraph [433] above, namely pursuant to s 61, s 117 and s 195(1)(a) of the Crimes Act 1900 (NSW) and s 474.17 of the Criminal Code Act 1995 (Cwth), alleging assault, larceny, domestic violence related damage to property, and using a carriage service to menace or harass.
The existence of a suspicion that a relevant event has occurred requires a state of mind on the part of the suspector that involves something less than a belief that the event in question occurred: R v Rondo [2001] NSWCCA 540, at [53]. The existence of a suspicion represents a low threshold for the exercise of the power of arrest as conferred by s 99(2) of LEPRA.
In this case, the lawful justification for invoking that power on satisfying that low threshold is dependent upon the existence of the reasonable grounds required and referred to in s 99(3)(b) and (f) of LEPRA.
There must be some non-arbitrary reasonable factual basis for the suspicion held by the arresting officer, and the asserted reasonable factual basis must not be irrational: Dicianni v R; Pintabora v R [2015] NSWCCA 201, at [240].
Distilling the effect of the authorities: the existence of reasonable grounds for a suspicion involves a state of conjecture or uncertainty that is something more than a possibility, and less than a belief: Azar v DPP [2014] NSWSC 132, at [26] - [28], following Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612, at [14], [75]; Hussein v Chong Kook Kam [1970] AC 942, at p 948. This question relates to the preliminary stage of the investigation, and not the stage requiring evidence amounting to prima facie proof: Hyder v Commonwealth [2012] NSWCA 336, at [14]; (2012) 217 A Crim R 571, at p 576.
The defendant relied upon the proposition that, in relevantly forming his suspicion in this case, Sergeant Ahrens was in effect drawing upon his training and experience and the whole of his observations of the relevant events, as was identified in Azar v DPP [2014] NSWSC 132, at [37] - [38], following Hussein v Chong Kook Kam [1970] AC 942, at p 948, arguing that suspicion arises at or near the starting point of an investigation, where the obtaining of prima facie proof is the at end-point of the investigation, or where proof may be lacking
In my view, that aspect of the decision in Azar v DPP, whilst helpfully identifying a component of the applicable principles, also demonstrates that the case under present consideration has some important distinguishing features.
These are as follows. First, Sergeant Ahrens had gone well beyond the stage of suspicion. In his state of mind, he made it clear that he disbelieved the plaintiff, and he had decided there was a circumstantial case of larceny to be made against the plaintiff justifying her arrest: T437.47. Secondly, in arriving at that point in his consideration, where he decided to arrest the plaintiff, he had not drawn upon the "whole of his observations of the relevant events" in that there was no evidence that he had informed himself of the plaintiff's version of the events, which was an important counter-part element in a domestic violence situation, where there was known potential for the truth not to be forthcoming from the complaining party: T388.21 - T388.22. Instead, he acted on a selective one-sided version of the events, which was self-serving of Mr Staff's position, without availing himself of the opportunity to consider the whole of the circumstances: Azar v DPP [2014] NSWSC 132, at [38]. In doing so, he seems to have ignored Mr Staff's actions in having twice pushed the plaintiff. Those circumstances serve to undermine the reasonableness of the suspicions held by Sergeant Ahrens.

[50]

Propriety of an arrest

The propriety of an arrest must be considered in the context of "all of the circumstances", and these circumstances are confined to the facts which precede the arrest: DPP v Mathews-Hunter [2014] NSWSC 843, at [45]; (2014) 242 A Crim R 319, at p332, following Robinson v Woolworths, at [23]; DPP v AM, at [38] - [47].
Whilst it is not necessary for a police officer to show the truth of the facts upon which a suspicion was based, the question of whether the facts provided reasonable grounds for the suspicion depends upon the source of the information and its context, seen in light of the whole surrounding circumstances: O'Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286, at p 298D-E; p 300; p 303. In this case Sergeant Ahrens' state of mind went further than that position. He not only positively, but strongly, believed the plaintiff was lying about her knowledge of the whereabouts of Mr Staff's car keys. That describes a state of mind well beyond suspicion.
The decision to make an arrest based upon a suspicion, depends, not upon objectively verifiable circumstances, but on the existence of a state of mind or satisfaction on the part of the arresting officer as to the existence of reasonable grounds for the arrest. That state of satisfaction cannot be manifestly unreasonable, arbitrary, capricious, irrational, or not bona fide: State of New South Wales v Randall [2017] NSWCA 88, at [13], citing Treking v Cornell; Ex Parte Helton Bellbird Collieries Pty Ltd (1944) 69 CLR 407, at p 432; Minister for Immigration and Multicultural Affairs v Eshutu [1999] HCA 21, at [131] - [137]; (1999) 197 CLR 611.
The question of what constitutes a suspicion based on reasonable grounds is a question of fact in each case: State of New South Wales v Robinson [2016] NSWCA 334, at [33]. In that case, at [35], it was made clear that a s 99(3) does not confer a power of arrest, but instead, operates as a constraint upon the powers conferred by s 99(1) and s 99(2) of LEPRA, the constraint being that the conditions required by s 99(3) of LEPRA must first be met for an arrest to be considered to have been made lawfully.
Those conditions have been identified as being first, the arresting police officer must have a suspicion that it is necessary to make an arrest to achieve at least one of the purposes of s 99(3)(a) - (f) of LEPRA, and secondly, the arresting police officer must have reasonable grounds for forming that suspicion: State of New South Wales v Robinson [2016] NSWCA 334, at [35].
I find that in the context of disputed domestic violence circumstances, an arrest based on a failure to inquire into the situation to get a more complete picture of the relevant events, as occurred in this case, cannot amount to reasonable grounds for a suspicion that justifies an arrest, as occurred in the present case.
Whilst a police officer is not obliged to follow upon every line of inquiry in order to exonerate an accused person before deciding to arrest that person, there is a difference between that position and a position where no thought was given to what defence there might be, such as an alibi, for example: Lyons v Chief Constable of West Yorkshire [1997] EWCA Civ J0424-7, at p 5. Another example would be the plausibility of a denial of the whereabouts of Mr Staff's missing car keys, as in the present case. I infer from the absence of any record of the plaintiff's version of the events, that she was not given an opportunity to give her version of the events.

[51]

Whether arrest is "necessary"

A suspicion based on reasonable grounds is the precursor or the first step in the arrest process. The second step to be considered is the executive act of properly exercising a discretion as to whether it is necessary to make the arrest because the making of an arrest is not necessarily mandatory just because there is a legal ground: Lyons v Chief Constable of West Yorkshire [1997] EWCA J0424-7, at p 4.
The meaning of the term "necessary" as appears in s 99(3) of LEPRA has been authoritatively construed to mean an action or something that "needed to be done" or "required" in the sense of being requisite, or something "that cannot be dispensed with": State of New South Wales v Robinson [2016] NSWCA 334, at [43].
Accordingly, the test for determining whether the arrest was necessary, was whether the defendant has established that, first, the arresting police officer honestly believed that the arrest was necessary for one of the purposes of s 99(3) of LEPRA, and that the subsequent review of the decision to arrest, was whether, according to the information known to the arresting officer at the time, the arrest was made after the police officer had formed the honest belief on reasonable grounds that the arrest was "necessary": State of New South Wales v Robinson [2016] NSWCA 334, at [27].
The defendant argued that a failure to carry out a line of inquiry is not relevant to considering the objective question of whether reasonable cause existed for the arrest of the plaintiff: Castorina v The Chief Constable of Surrey [1988] EWCA Civ J0610-1 (1988 WL 622865), at p 8.
In Castorina v The Chief Constable of Surrey, it was held that the decision to make an arrest, which had the effect of placing greater pressure on the person arrested to induce a confession due to the pressure created by detention, and before interrogation, did not impair the lawfulness of the arrest if at the time, there was reasonable cause for suspicion. However, in that case, it was also stated that a failure to follow an obvious course may well be grounds for attacking the executive exercise of the power of arrest: at p 6.
In light of the principles stated above, the application of s 99(3) of LEPRA to the facts in this case is examined in the paragraphs that now follow.

[54]

Whether possible repetition of an offence : first element of s 99(3)(b)

As to the element of a possible repetition of an earlier alleged assault on Mr Staff, the arrest of the plaintiff on that account was not a necessary condition for preventing that possibility from materialising.
This is because all of the events under consideration of an alleged assault on Mr Staff occurred at the plaintiff's home. The argued reasonable ground for suspecting a possible repetition of an alleged assault on Mr Staff was dependent upon the continued unwelcome presence of Mr Staff at the plaintiff's home, in circumstances where the plaintiff had asked him to leave, and had asked the police officers to remove him. His continued presence on the plaintiff's premises was only permitted by the police officers because they had not acted upon the plaintiff's request to remove Mr Staff from her premises.
The implied suggestion within the defendant's submission, to the effect that Mr Staff was justifiably entitled to remain on the plaintiff's premises is spurious. Mr Staff had no cause to remain on the plaintiff's premises, or to participate in a search of her premises, without the plaintiff's express consent, once the police officers had taken charge of the situation.
He was only present on her property because of the pending police investigation. His place was outside of the plaintiff's premises, which was where the police first met him. There is no evidence that the plaintiff had consented to his presence on her property during the time the police were present. If there had been such consent, it would have been noteworthy. I infer from the absence of any contemporaneous note made by police officers to that effect, that the plaintiff gave no such consent for Mr Staff to remain on her property.
Mr Staff was free to decide whether to leave the vicinity, or to stay until he could manage to have his car moved, by whatever means that were available, or which were needed to achieve that objective, either by arranging a tow, or otherwise.
The description of Mr Staff in the evidence, indicated that he was an ablebodied person who was much bigger and stronger than the plaintiff. It is difficult to accept that, if he had remained in the vicinity of the plaintiff's premises, he could not get away from the plaintiff's immediate presence if the plaintiff had been showing an intention to pursue him and to assault him after the police officers had left the scene. I am not prepared to find that the plaintiff had been showing such an intention, or that she could have outrun Mr Staff in such circumstances.
For the above reasons, I am not satisfied that s 99(3)(b) of LEPRA provided the police officers with justification for the arrest of the plaintiff on account of a necessity to prevent either a continuation of an alleged assault on Mr Staff as there was no such offence in progress at the time of the arrest of the plaintiff.
Similarly, I am not satisfied that s 99(3)(b) of LEPRA provided the police officers with justification for the arrest of the plaintiff on account of a necessity to prevent the commission of another offence in the form of "another" alleged assault on Mr Staff. I consider that conclusion applies because Mr Staff would have been physically well able to keep a distance between himself and the plaintiff, if in fact the plaintiff had shown any signs of approaching him with the intention of assaulting him.
The plaintiff had shown no signs of resisting or being argumentative according to the evidence: T391.19; T391.31. She had not made threats to either Mr Staff, or in relation to his vehicle: T392.13.
In my view, it is fanciful to suggest that if Mr Staff had remained outside the plaintiff's home, as an ablebodied person, that he was at risk of a possible assault by the plaintiff where at all times, he had the capacity to keep a physical distance from her, assuming that was the relevant circumstance which the police officers were contemplating as constituting reasonable grounds for arresting the plaintiff.
For those reasons, I consider that the defendant has not justified the plaintiff's arrest on account of an alleged apprehension or suspicion, that the plaintiff might repeat a claimed assault on Mr Staff. An arrest of the plaintiff was not something that had to be done or could not be dispensed with: State of New South Wales v Robinson [2016] NSWCA 334, at [27].

[55]

Whether continuation of an offence : second element of s 99(3)(b)

In light of my findings that the only reasons given for the plaintiff's arrest at the time of arrest were assault and malicious damage, a consideration of the elements of justification for arrest as provided by s 99(3)(b) of LEPRA that relate to a suspicion of a continuation of an offence can only apply to those two identified categories of offence.
In my view, the existence of a reasonable ground for suspecting the continuation of an offence relating to either an alleged assault or alleged malicious damage to property cannot be properly or reasonably made out on the evidence as being something "that cannot be dispensed with": State of New South Wales v Robinson [2016] NSWCA 334, at [27].
This is because at the time of the arrest, and immediately beforehand, none of the alleged offences of assault or malicious damage were in progress or continuing. Therefore they could not be the subject of a "continuation" of any act of commission by the plaintiff.
Whatever alleged activity had occurred beforehand with regard to alleged assaults and vehicle damage, as claimed by Mr Staff, such activity had ceased by the time the police officers had arrived. There was no possibility of a relevant continuation of an offence which required prevention within the meaning of s 99(3)(b) of LEPRA.
Whilst at the time of the plaintiff's arrest, there was a "continuation" of the absence of Mr Staff's car keys, as I have found that the plaintiff was not told she was charged with the larceny of those keys, within the meaning of s 99(3)(b) of LEPRA, there could be no relevant "continuation" of an offence concerning those missing keys.
In arriving at that finding, I have not overlooked the fact that Sergeant Ahrens had repeatedly disbelieved the plaintiff, and had accused her of lying about her knowledge of the whereabouts of Mr Staff's car keys. Those accusations were a predominant theme throughout the police presence at her home, and in the course of the police communications with her.
In circumstances where the plaintiff should have been treated as a vulnerable person, the reasons for arresting her should not be left unstated, and left for her, as a vulnerable person, to infer from the surrounding circumstances.
The act of deprivation of the liberty of an individual by means of an arrest that invoked lawful authority is a step of a most formal kind that must be based on a communicated reason which justifies that step. The essential element of a communication along those lines is that it must be explicit, and not implied from the circumstances.
It is insufficient to simply argue that the plaintiff must have known the reason why she was arrested was because of the protracted dispute over the missing car keys. I do not accept that to be a correct approach in this case. A person in her position, especially a vulnerable person with disabilities, was entitled to know of the precise reasons for the arrest, at the time the arrest was made. It is unreasonable to suggest otherwise. The plaintiff was not expected to have to work it out and analyse it for herself from the surrounding circumstances by using a deductive process of reasoning.
The reasons for the arrest had to be specifically stated. I find that larceny of Mr Staff's car keys was not the stated reason for the arrest of the plaintiff. A similar analysis applies to the matter of the plaintiff's use of a carriage service to allegedly harass Mr Staff. I find that too, was not given as a reason for the arrest. I find that the contemporaneous content of the Field Arrest Form puts those matters clear and beyond dispute.
In those circumstances, the arrest of the plaintiff has not been shown to be something that could not be dispensed with, either on account of the alleged assaults, the alleged malicious damage, or the allegedly missing car keys: State of New South Wales v Robinson [2016] NSWCA 334, at [43]. Mr Staff could have been asked to leave the scene, and a tow of his car could have been arranged.
This leaves for consideration the remaining elements of (1) and (3) as identified at paragraph [531] above, namely the possibility of a repetition of an earlier offence or the need to prevent the commission of another offence.

[56]

Whether possible commission of another offence : third element of s 99(3)(b)

This then leaves for consideration the remaining element of whether the police officers had reasonable grounds for suspecting the plaintiff might commit another offence, which in the circumstances, might involve causing malicious damage to Mr Staff's parked vehicle: s 99(3)(b) of LEPRA.
That factor seems improbable in light of the concessions made by Senior Constable Cook concerning the plaintiff's behaviour in that she had not been argumentative with them, and had not offered any resistance to them in the performance of their duties. On the evidence of the police officers, they believed that the plaintiff's co-operation had extended to allowing them to search her home.
If that was their understanding, it is difficult to see how the police officers could have reasonably assumed that the plaintiff might commit "another offence" once the police officers had left the scene.
In that regard, Senior Constable Cook agreed that she had not heard the plaintiff make any threats towards Mr Staff or in relation to his vehicle, which was parked nearby, but not on the plaintiff's property: T492.15 - T492.22; T492.24 - T492.30.
In those circumstances, recognising that the police attendance was in relation to a report of domestic violence at the plaintiff's home, as an alternative to an arrest, the police had available to them another obvious option, as provided by s 27 and s 89 of the Crimes (Domestic and Personal Violence) Act 2007.
Section 27 of that Act (as at 17 November 2011) provides that a police officer must investigate instances of reported domestic violence. In this context, an investigation required ascertaining both competing versions of the circumstances. Only one such side of the circumstances was obtained. The plaintiff's version was not contemporaneously noted.
At the time, there were statutory mechanisms available to assist police officers when seeking an AVO. In that regard, s 89 of that Act (also as at 17 November 2011) provides as follows: 89 Detention of defendant for making and service of provisional order (1) If a police officer makes or is about to make an application for a provisional order, the police officer may direct the person against whom the order is sought to remain at the scene of the incident concerned or, in a case where the person has left the scene of the incident, at another place where a police officer locates the person. (2) If the person refuses to remain, the police officer may arrest and detain the person at the scene of the incident or other place, or arrest and take the person to a police station and there detain the person, until the provisional order is made and served.
In circumstances where the plaintiff had been co-operative, non-argumentative and had offered no resistance to the police officers, I consider that neither Sergeant Ahrens nor Senior Constable Cook had any reasonable basis upon which to believe that the plaintiff would not obey the terms and the requirements of a direction if given to her pursuant to s 89(1) of that Act.
Such a direction was a readily available option for the attending police officers to pursue or implement whilst they waited to obtain an AVO or an interim apprehended personal violence order. Such an order would have had the effect of requiring the plaintiff to remain in her home on suitable conditions as an alternative to an arrest. In those circumstances, an arrest was not "something that could not be dispensed with": State of New South Wales v Robinson [2016] NSWCA 334, at [43].
If an order or a direction had been made pursuant to s 89(1), it would have had the effect of protecting Mr Staff and his vehicle for so long as he and his vehicle remained in the vicinity of the plaintiff's home, and until an appropriately framed AVO, or an interim order, could be obtained and take effect, and until arrangements could be made for the removal of the vehicle.
Had such a course been taken, the arrest of the plaintiff, a vulnerable person, would have been unnecessary.
In arriving at that conclusion, I have not overlooked the fact that Mr Staff claimed that he was unable to move his vehicle. Arresting the plaintiff to protect Mr Staff's vehicle was an extreme and unnecessary step where the plaintiff showed no signs of making relevant threats to either Mr Staff or in relation to his vehicle, and the police officers had recourse to the making of a direction pursuant to s 89 of the Crimes (Domestic and Personal Violence) Act 2007 No 80.
In those circumstances, if it was considered necessary to press charges against the plaintiff, the appropriate course would have been to issue court attendance notices as an alternative to an arrest.

[58]

Issue 6 - Transportation of plaintiff to Lismore Police Station

Once the attending police officers had made the decision to arrest the plaintiff, the necessary consequence of that decision was the requirement that she be safely transported to Lismore Police Station. The decision to arrest the plaintiff also required consideration of the most appropriate means by which this should be achieved, given that her presenting circumstances, her appearance and her disclosures indicated she was to be regarded as being vulnerable on account of her disabilities.
The question of appropriate means by which to transport the plaintiff to Lismore Police Station arose at that time because, by the stage when those officers were in the process of placing the plaintiff into the back of the police wagon, they already knew that the plaintiff had a disability which obviously included physical restrictions.
I find that by that time, those officers knew that the plaintiff was demanding to be taken to the police station by a means that had regard for her disability. I accept the evidence given by the plaintiff to the effect that she had requested to be transported in either the back seat of the police wagon, or in a vehicle that was fitted with a proper seat and seatbelt: T25.48 - T25.49.
I find that the police officers were aware of that request by the plaintiff. I make that finding notwithstanding the evidence of Sergeant Ahrens to the contrary, which I do not accept. His evidence on this topic vacillated, as shown by the following extracts from his evidence.
At one point, Sergeant Ahrens acknowledged the plaintiff indicated she needed assistance, as follows: "Q. Did you make any inquiries of Ms Costello at that point as to what the physical implications or disabilities were for her as a result of having cerebral palsy? A. I may - we made inquiries in regards to what her physical capabilities were in regards to her being able to - was she able to get into the back of the truck, of her own volition, 'cause ideally that's how - the most appropriate and easy way to do it, for, for her well - safety and wellbeing, as well as our own. Q. To whom did you make those inquiries? A. With Rhani. Q. Can you tell me, to the best of your memory, what you said to Ms Costello about that? A. "Are you" - words to the effect of, "Are you able to get into the rear caged area of the truck?" Q. To the best of your memory, what did she reply? A. From memory it was words along the lines of, "I may need some assistance." Q. Isn't it true that when you told Ms Costello to get in the paddy wagon she told you that given her physical disabilities she couldn't get in the back unaided, is that right? A. No, she told us that she may need some certain assistance, or some help." [T393.1 - T393.25]
In Sergeant Ahrens' evidence which immediately followed the extract cited in the preceding paragraph, his evidence continued, as follows: "Q. Is it true that she also told you that because of her disabilities she couldn't sit in the caged area and should be placed in a seat with a seatbelt? A. No, she did not. SAIDI: I object to the "also." HIS HONOUR: No, there's an objection. SAIDI: I object to the use of the word "also." He denied the previous proposition, there's no also that can follow it. SMITH: I'll withdraw the "also." Q. She told you that because of her disabilities she couldn't sit in the caged area and should be placed in a seat with a suitable restraint, is that right? A. Sorry, can you repeat that question? Q. Sure. Ms Costello told you, when you took her to the back of the paddy wagon, that because of her disabilities she couldn't sit in the caged area and should be placed in a seat with a suitable restraint. A. No, that's not correct. Q. Never said anything like that to you? A. No. Q. Had she said something like that to you would you have placed her in a seat with a restraint? A. I would've taken the - that information under advisement and probably given what had already been disclosed, I would've called for a caged sedan to come and - come to that location. I have no need at - either on that day or at any, any point in time that if someone had physical limitations and is not able to either get in the rear of the caged truck by, by themselves or with some assistance from us, I had no need to forcefully, for lack of a better way of describing it, throw someone in the back of a truck. I would simply ring the supervisor here at Lismore and ask them to bring - I've got - explain the situation, get a sedan up there and place her in the sedan and have her escorted back to the police station here." [Emphasis added] [T393.27 - T 394.14]
The cross-examiner picked up on Sergeant Ahrens' use of the word "throw" as emphasised above, as follows: "Q. Can I ask why you chose the words "wouldn't be any need for me to throw her in the back"? A. Why? Q. Yes, why did you use those words? A. Well that's an excess escalation, from thereon, is some kind of physical force to put them in the back of the truck. You're either getting in the back of the truck yourself physically and doing it yourself, you're getting in because of some physical impairment with the assistance of police or the third option is to some force, what level of force that is, to get that person in the back of the truck. Hence the word "throw." There's some force involved. Q. Did you at any stage ask Ms Costello whether she was able to sit in the back of a police wagon without restraint because of her disabilities? A. No I don't believe we, we actually asked that question, but by the same token at no point in time did she indicate to, to either Senior Constable Cook or myself that she was not able to sit in the back of the truck." [Emphasis added] [T394.22 - T394.38]
I have considered Sergeant Ahrens' use of the word "throw" in the context cited. I considered the use to have been colloquial. I do not consider the plaintiff was thrown into the back of the police wagon in the sense of acting indifferently to her.
Senior Constable Cook had simply stated that the plaintiff had requested she be allowed to sit in the back seat, but this request was declined because of safety issues: T470.1 - T470.9. Sergeant Ahrens said that he had no safety concerns about the plaintiff: T392.14. The plaintiff did not provide any resistance (T391.19; T391.31), she did not make any threats to the police officers or indicate an attitude of non-compliance on her part: T392.13.
It seems that the plaintiff's seating request was disregarded by the police officers on a consideration of their own safety: T470.1 - T470.13. Whilst the attending police officers were properly entitled to consider questions of their own safety during the transportation of the plaintiff, given the plaintiff's physical disabilities, the compelling conclusion is that they should have called for an alternative vehicle, which apparently would have been possible in the circumstances, as was acknowledged by Sergeant Ahrens: T394.5 - T394.12.
The only matters upon which the plaintiff was offering protest to the police officers, in polite terms, was first, concerning her alleged involvement in the disappearance of Mr Staff's keys, which was the reason for her arrest, and secondly, the prospect of being placed in the back of a police wagon without restraint, in the circumstances of her disability. She was otherwise "very, very co-operative" with the police officers: T68.43; T69.1; T383.5; T383.13. Sergeant Ahrens later clarified that by conceding that she was co-operative, except as to the issue of the keys: T451.14 - T451.16. Senior Constable Cook said the plaintiff had been co-operative, and did not resist: T482.22 - T482.25; T486.5.
In those circumstances, especially given the earlier police contact with the plaintiff's disability support worker by telephone, it appears that the police did not give any further consideration to the implications of the plaintiff's disabilities in the context of the intended mode of transport they were going to employ to transport the plaintiff to the police station.
Alternatively, if the police officers did give any such consideration to that question, they concluded, wrongly, that it was appropriate to transport the plaintiff to the Police Station whilst unrestrained in the back of a police wagon.
Either way, those decisions failed to have proper regard to the limiting effects of the plaintiff's disabilities in terms of her safe transportation, particularly the fact that her left forelimb and hand was affected by contractures. Proper consideration of her transportation to Lismore meant that the officers should have considered that matter in relation to the inevitable need for the plaintiff to try and steady herself by taking a handhold, which would have been difficult for her. She needed to maintain a safe and non-injurious position in the back of the police wagon, whilst being transported to the Police Station.
I find that the failure to give consideration to that matter was because the arresting officers did not pay sufficient attention to the plaintiff's disability-related need for special consideration to be applied to the task of transporting her to the Police Station.
This was in circumstances where the plaintiff's safe transportation to the Police Station could have been readily achieved, to the knowledge of Sergeant Ahrens, the officer in charge of the arrest and subsequent processing of the plaintiff: T394.5 - T394.12.
Given her presenting physical issues, as described by Dr Miller, the plaintiff should not have been loaded into the back of the wagon without restraint. The failure to properly consider the plaintiff's special needs in those circumstances should attract strong disapproval, which in this context, must be a matter that is reflected in assessing an award of damages.

[61]

Approach to assessment

The law places a high value on the right to personal liberty and this cannot be taken away without lawful authority: Williams v The Queen [1986] HCA 88; (1988) 161 CLR 278, at pp 292 - 296. When that right is unlawfully infringed, this gives rise to a remedy in damages.
The Field Arrest Form and the Custody Management Record shows that the plaintiff was arrested and detained for a period of three and three-quarter hours. That period of detention was not a quiet or a calm experience for the plaintiff. At the time of the arrest she became concerned at the possible use of handcuffs in light of her upper limb disabilities. She also became concerned because of the choice of police vehicle to transport her to the Police Station. She was concerned about the way in which she was handled and placed into the rear of the police wagon, in an undignified manner, and over the way in which she was removed from the police wagon at the Police Station. The process by which she was fingerprinted was distressing to her because of her hand disability. Her time in the police cell was more uncomfortable than might ordinarily have been the case because of her disabilities which militated against her achieving a comfortable position in that situation. The whole period of her detention was a very distressing experience for the plaintiff.
The effect of my findings on the issues calling for decision is that the plaintiff has established an entitlement to an assessment of damages for wrongful arrest, false imprisonment and the consequential assault and battery, which later occurred when she was unnecessarily physically handled by the police.
That process of physical handling was deemed to be necessary by the police officers because a suitable vehicle had not been obtained for the purpose of transporting her to the Police Station in a manner commensurate with her disabilities, which I have found were at the time, well known to both Sergeant Ahrens and Senior Constable Cook. A suitable vehicle could have readily been summoned: T394.5 - T394.12. If this had been done, there would have been no need to physically handle the plaintiff in a way that constituted trespass to the person, comprising an assault and battery. The plaintiff had not been resisting the arrest.
The fact of arrest and deprivation of liberty gives rise to a right to compensatory damages. The circumstances were aggravated by the plaintiff's disabilities, and the needlessly distressing effect those circumstances had upon the plaintiff. This gives rise to a right to aggravated damages.
In a case where exemplary damages are claimed in addition to general compensatory damages and compensatory aggravated damages. The components comprising compensatory damages must be assessed first, before determining whether damages reflecting disapprobation of the conduct of the arresting police should also be marked by an award of exemplary damages, and if such damages are found to be called for, then care should be taken to ensure that no element should be compensated more than once: NSW v Radford [2010] NSWCA 276, at [97]; State of NSW v Zreika [2012] NSWCA 37, at [63] - [64].
That approach is necessary in order to appropriately maintain the distinction between, on the one hand, the compensatory nature of general and aggravated damages, and on the other hand, the separate element of exemplary damages, which are of a punitive and deterrent nature: State of NSW v Abed [2014] NSWCA 419, at [230].
Particular reference to the amounts awarded in other decided cases is of limited guidance to the assessment of damages in this case, where the facts are intrinsic and relatively unique in the sense of their impact upon the plaintiff.
My assessment of the plaintiff's entitlement to damages, and allowable interest on components of such damages, now follows.

[63]

Damages for wrongful arrest and false imprisonment

In Zaravinos v State of New South Wales [2004] NSWCA 320, at [52], it was observed that damages for wrongful arrest and false imprisonment are not necessarily proportionately related to the length of time spent in detention. The substantial portion of the award of such damages should be allocated to the initial shock of being arrested: Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612.
On behalf of the plaintiff, it was submitted that general compensatory damages, including a component of aggravated damages, for wrongful arrest and imprisonment should be awarded in the sum of $30,000. On behalf of the defendant, reference was made to comparable awards of damages in the range $7000 to $10,000: Hage-Ali v State of NSW [2009] NSWDC 266; State of NSW v Abed [2014] NSWCA 419.
In my view that submission made by the defendant should be rejected, as those cases were not comparable to the present case, particularly having regard to the element of the plaintiff's disabilities. The defendant's suggested range does not represent adequate compensation for the humiliation, embarrassment expressed by the plaintiff, as well as the emotional and physical discomfort she suffered as a consequence of being arrested.
The plaintiff was arrested in clear view of anyone who may have been present in the neighbourhood. The arrest was particularly humiliating to her and it left her feeling degraded, belittled and scared: T109.11 - T109.17. Instead of feeling comforted by the fact that the police were meant to protect persons like herself (T27.19 - T27.21), the plaintiff has been left feeling afraid of, and anxious about the police: T27.12 - T 27.15.
This was in circumstances where, at the relevant time, her own father was employed as a Communications Officer in the NSW Police Force at Parramatta: T27.4 - T27.10. The plaintiff now experiences anxiety and flashbacks about the events, and does not sleep very much: T48.13 - T48.29.
The plaintiff's claim for general compensatory damages relates to the humiliation, embarrassment and emotional distress of the events of her arrest, and the physical bruising, and the pain and discomfort she experienced in being bounced around in the back of the police wagon on the journey to the police station. This was in circumstances where, due to her physical limitations, she was unable to brace herself inside the caged portion of the police wagon when she was jostled around as the vehicle negotiated the bends, corners and roundabouts en route.
The aggravating features of the plaintiff's false imprisonment, which call for an award of aggravated damages include: having her home searched without her consent, including the police officers permitting Mr Staff to participate in that search; having to submit to a pat-down search; having to have her jewellery removed; being fingerprinted and photographed; the recording of an inaccurate history in the police records of the plaintiff attempting to take her own life, a matter that now remains within an official police record: Exhibit B, p 78.
In light of my findings at paragraph [206] above, where I have recorded that due to her disabilities, the plaintiff has conflated her perceptions of being treated by the police officers with dismissive rudeness or disrespect, I do not include any component for those matters in my assessment of damages.
I consider that aggravated damages are called for in this instance because of the fact that the wrongful arrest of the plaintiff and her false imprisonment, involved the plaintiff experiencing a prolonged period of distress and discomfort whilst she endured the unrestrained, uncomfortable and bruising journey to the police station, where she was locked in a cell that was not accommodating of her disabilities, and which caused her further discomfort. This was in circumstances where, she should have been recognised as being a person who was vulnerable, as I have found, at paragraphs [269] to [330] above. This was in circumstances where the police officers took no notes of their interactions with the plaintiff, they undertook an imbalanced investigation of a domestic violence incident, in which they did not record her version of events, where in such a setting such incidents required a serious and high level of investigation. A proper and balanced investigation would have indicated that if an arrest was being contemplated, court attendance notices would have been preferably indicated, such that an arrest was not necessary. Despite this, her disability-related needs were nevertheless effectively ignored. In my view, those matters, and the failure by the police officers to give effect to the CRIME Code comprising Exhibit "D", at page 15, and the related regulations, calls for the inclusion of an award of aggravated compensatory damages.
In light of the significant period of time the plaintiff had been detained, namely three and three-quarter hours, most of which the plaintiff spent unhappily and in discomfort in a police cell, I consider that this deprivation of her liberty, justifies an award of general compensatory damages for wrongful arrest and false imprisonment in the sum submitted by the plaintiff, which I consider to be reasonable, and not at the upper end of the range. I therefore assess such damages in the amount of $30,000.
In arriving at that conclusion I recognise that the potential for overlapping of damages should be avoided. To ensure that principle is observed and applied, the amounts awarded for general compensatory damages for assault, battery, and wrongful imprisonment, should ordinarily be assessed more towards the lower end of the range for such damages: Radford v State of NSW [2010] NSWCA 276, at [97]; State of NSW v Zreika [2012] NSWCA 37, at [63] - [64].
However, in this case, and counter-balancing those considerations, the conduct of the defence has, in my assessment, added to and increased the plaintiff's feelings of hurt and distress. Those matters should be reflected in the assessment of damages: Spautz v Butterworths & Anor [1996] NSWSC 614. In that regard, the plaintiff's submissions argued, correctly in my view, that the manner in which the defendant's case was conducted was offensive to the plaintiff.
The defendant's conduct at the trial in that regard was to suggest, without a reasonable factual or evidentiary foundation, that the plaintiff told "barefaced lies" to the court about her time in police custody: T197.28. Another of the defendant's approaches to the case that added to the plaintiff's hurt was to suggest, without medical evidence, that the plaintiff had a history of mental health and self-harm issues. This was most distressing for the plaintiff in the context of the defendant's attempts to discredit her evidence. Additionally, the defendant raised the speculative suggestion, not supported by Mr Staff's witness statement, that the plaintiff had kicked Mr Staff's vehicle whilst she had been laying on her back on the ground. That unfounded attack also added to the plaintiff's feelings of hurt and indignity: T194.15 - T194.25. None of those suggestions were justifiable on the evidence: Spautz v Butterworths & Anor [1996] NSWSC 614.
Also relevant were the adamant and repeated assertions by Sergeant Ahrens, in which he expressed his opinions to the effect that the plaintiff had been lying about Mr Staff's missing car keys. This occurred in the context of his inadequate investigation of the circumstances, where he never recorded a version of events from the plaintiff when investigating the domestic violence report he was called upon to attend.

[64]

Exemplary damages

On behalf of the plaintiff, it was submitted that exemplary damages should be assessed in the sum of $25,000. On behalf of the defendant, it was submitted that there should be no award of exemplary damages.
To establish an entitlement to exemplary damages, the plaintiff must show that her arrest and detention was not only wrongful, but also, that the circumstances involved or amounted to conscious wrongdoing on the part of the police, in contumelious disregard of her rights, such that the conduct should be seen as being reprehensible, and requiring an expression of disapproval to bring home to those officials of the State responsible for overseeing the workings of the police force, that police officers must be appropriately trained so that unlawful and contumelious infringement of personal liberty does not continue to occur in other instances: State of NSW v Zreika [2012] NSWCA 37, at [61] - [62], following Gray v Motor Accidents Commission [1998] HCA 70; (1998) 196 CLR 1, at p 7, [15]; NSW v Ibbett [2006] HCA 57; (2006) 229 CLR 638, at pp 646 - 647; [31], [33]; NSW v Landini [2010] NSWCA 157, at [14]; Adams v Kennedy [2000] NSWCA 152; (2000) 49 NSWLR 78, at 36.
Conduct that is high-handed, outrageous, and which shows contempt for the rights of others, not being malicious, or not involving conscious wrongdoing, may still properly form the basis for an award of exemplary damages where an award of compensatory damages alone does not sufficiently express the court's disapproval of the conduct in question: State of NSW v Abed [2014] NSWCA 419, at [233]; State of NSW v Riley [2003] NSWCA 208; (2008) 57 NSWLR 496, at [138]; State of NSW v Quirk [2012] NSWCA 216, at [163].
In my view, there are a number of factors in this case, which, alone and in aggregate, call for an award of exemplary damages in this case.
In my opinion, the high-handedness of the police arrest of the plaintiff, without having ever first recorded or noted her version of events in the context of investigating a complaint of domestic violence, and without having investigated her complaint of having been assaulted by Mr Staff, where that version might well have been exculpatory of the plaintiff, and the police use of force to get her into the police wagon without securing her on account of her disability in light of her protests, and therefore resulting in her having to endure an unsecured, uncomfortable and bruising ride to the Police Station, requires censure in the form of an award of exemplary damages.
In addition, in my view, the failure of the police officers to comply with the requirements of the CRIME Code comprising Exhibit "D", page 15, and the related regulations was egregious in this case because of the plaintiff's obvious disabilities. On behalf of the plaintiff it was submitted that if Sergeant Ahrens had complied with that Code, and if he had written down in his notebook the reasons for the plaintiff's arrest at the time, he would have been compelled to explicitly identify the grounds for her arrest, and this ought to have required him to look at the prevailing circumstances more critically than he did: MFI "19", par 134. I accept that submission.
Furthermore, the deliberate actions of Sergeant Ahrens, where he "massaged" the facts, as outlined in my findings at paragraphs [215] - [218] and [230] - [235] above, also calls for an expression of censure in the form of exemplary damages.
Police conduct which has the effect of inaccurately describing the effect of an investigation in a factual summary ultimately intended for use in a court, is a matter of great concern.
The representations that Sergeant Ahrens made in his "terminology" adjustments to the factual circumstances that were contained and set out in Mr Staff's statement undermined the public interest of ensuring the proper administration of justice. It is fundamental that the parties who are affected by a criminal investigation, and the courts, should be entitled to rely on the accuracy of factual renditions of events as prepared by police officers for use in court proceedings. The "massaged" facts prepared by Sergeant Ahrens did not have that descriptive quality.
In this case, on behalf of the plaintiff, it was put to Sergeant Ahrens that his actions in the morphing of Mr Staff's admissions in his statement of having twice pushed the plaintiff, changing that description into the description of having "shepherded" her, was done deliberately to conceal his inadequate investigation of the domestic violence incident he was called upon to attend: T422.20 T422.24. Notwithstanding Sergeant Ahrens' denial of that proposition, I have not accepted his denial. I accept the plaintiff's submissions to the contrary. He should have followed-up rather than ignored the plaintiff's complaints of having been assaulted by Mr Staff. Mr Staff's own statement was confirmatory of what the plaintiff had said regarding such an assault. This requires censure.
It follows that the plaintiff has established her entitlement to an award of exemplary damages on that account.
In assessing exemplary damages, I have had due regard to the need to recognise that care must be taken when identifying the disapproved conduct that attracts such an award, to ensure that no element of the compensation is awarded more than once: State of NSW v Quirk [2012] NSWCA 216, at [154], citing NSW v Ibbett [2006] HCA 57; (2006) 229 CLR 638, at [35].
In my opinion, the disregard by the police officers of the provisions of the Code and related regulations designed to meet the needs of persons with disability requires censure. The notebooks of the attending police officers do not reflect that they had due regard to the requirements of that Code. Before the decision was made to arrest the plaintiff, the police officers knew they had before them a person with significant physical disabilities, if not cognitive disabilities. The post-arrest journey to the Police Station was undertaken in a vehicle that was inappropriate to the plaintiff's condition. The "massaged" rendition of the facts, and Sergeant Ahrens' glib defence of that course, was not justifiable.
Those decisions made by Sergeant Ahrens indicate the need for censure, and require an expression of censure by an award of exemplary damages "to bring home to those officials of the State who are responsible for the overseeing of the police force that police officers must be trained" so that such problems do not recur: Adams v Kennedy [2000] NSWCA 152, at [36].
In my view, the circumstances as found, indicate there should be an award of exemplary damages that signifies the court's disdain and disapproval for what I find has amounted to a contumelious disregard of the plaintiff's rights. I therefore accept the plaintiff's submission that the assessment of exemplary damages should be in the sum of $25,000.

[70]

Custody Management Record relating to plaintiff - 17 November 2011 Item Time Event Source Reference in Ex "B" & Ex "C"

18:50 Arrival of plaintiff at Lismore Police Station Ex "B" p 77; Ex "3" p 1
18:50 Plaintiff located in Cell 1 Ex "B" p 83; Ex "3" p 7
18:59 Plaintiff's detained persons details entered Ex "B" p 77; Ex "3" p 6
19:00 Plaintiff received by Custody Manager. Original grounds for detention were stated to be domestic violence, assault and malicious damage Ex "B" p 82; Ex "3" p 6 19:03
-to- Caution and Summary of Pt 9 of LEPRA read to plaintiff. Plaintiff is assessed by Snr Const Devine. Plaintiff noted as having impaired intellectual functioning which may impair investigations Ex "B" p 82; Ex "3" p 6 19:15 19:07
-to- Telephone call made by custody manager to Tony (Iuso) New Horizons Support: "Support person informed" Ex "B" p 80; Ex "3" p 4 19:13 19:13
-to- Arrival of visitor: "awaiting arrival of support person for costello" Ex "B" p 83; Ex "3" p 7 20:13
19:17 Property Docket completed by Snr Const Devine Ex "B" p 86; Ex "3" p 1
19:18 Visual assessment of plaintiff completed: "Nil apparent issues" Ex "B" p 78; Ex "3" p 2 - 3
19:18 Inspection frequency set at 30 min intervals Ex "B" p 79; Ex "3" p 3
19:33 Plaintiff placed in cell 1. Observed to be kneeling: "Nil apparent issues." Ex "B" p 79; Ex "3" p 3 19:48
-to- Telephone call made to Richard New Horizons Support: "Support person informed" Ex "B" p 80; Ex "3" p 4 19:51
19:53 Plaintiff observed in cell 1: "Nil issues apparent." Ex "B" p 79; Ex "3" p 3
19:53 "Second call to New Horizons to find out how much longer for support person to attend" Ex "B" p 81; Ex "3" p 5 19:53
-to- Telephone call made to Matt New Horizons Support: "Support person informed" Ex "B" p 80; Ex "3" p 4 19:55 19:56
-to- Plaintiff "taken to toilet" Ex "B" p 80; Ex "3" p 4 19:58
20:15 Plaintiff observed in cell 1: "Nil apparent issues." Ex "B" p 79; Ex "3" p 3 20:15
-to- Tony Iuso of New Horozons (sic) present as support person: "consulting with support person tony iuso - new horizons" Ex "B" p 80; Ex "3" p 4 20:35 20:36
-to- Charging process Ex "B" p 83; Ex "3" p 7 22:00
20:43 Plaintiff observed in cell 1: "Nil apparent issues." Ex "B" p 79; Ex "3" p 3
20:58 Plaintiff observed: "in cell 1 with support person. Nil apparent issues" Ex "B" p 79; Ex "3" p 3
22:12 Plaintiff released on bail Ex "B" p 83; Ex "3" p 7
22:15 Completion of custody record Ex "3" p 9

Costello v State of NSW

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