Cullen v State of New South Wales

Evidence

1. The plaintiff provided an evidentiary statement. After some of the contents of the statement were withdrawn from evidence, the plaintiff was not required for cross-examination. Her retrograde amnesia extends to her having no memory of attending the rally.
2. The first witness to give oral evidence was Mr Harry Holbrook. He currently works in Melbourne for the Victorian Department of Justice and Community Safety in a policy role. In 2016 and 2017 he was living in Sydney. He also attended both the 2016 and 2017 rally. He said the latter was significantly larger than the former.
3. Mr Holbrook described the rally making its way down Broadway and then coming to a stop near the intersection with Buckland Street. The path of the rally can be seen in the map (Exhibit A, p 228).
4. Mr Holbrook described the events concerning Mr Dunn-Velasco. He said a circle formed around Mr Dunn-Velasco but there was some distance between him and the public, which was confirmed in a video shown to the Court (Exhibit B).
5. Also confirmed in the video is that Mr Dunn-Velasco's speech was "emotive in parts". But he said that the "crowd was calm and listened closely". Mr Holbrook said that Mr Dunn-Velasco said he was going to burn the Australian flag and then poured liquid onto a flag that was on the ground. Mr Holbrook continued: "While Birrugan (Mr Dunn-Velasco) was bent over, suddenly and without warning, some police officers came bursting into the circle from behind me. The officers broke into the circle to my right, and opposite Birrugan. ….. the officers were right on top of everyone before I knew what was happening. One minute it was a peaceful, emotive rally and the next it was bedlam. ……. I felt somebody touch my shoulder and turned around. I saw the police pulling at my friend, Hayden Williams. Hayden and I lived together at that time and attended the rally together. It did not look like Hayden was trying to get away. I saw a young woman get knocked to the ground and hit her head on the median strip in the middle of Broadway as the police tussled with people."
6. In relation to his general impression of the rally Mr Holbrook said: "As stated, I had attended many other protests before and since the 2017 rally and have rarely seen police conduct so overtly aggressive. I have never seen police charge into a group like they did at the 2017 rally."
7. Under cross-examination Mr Holbrook said that Mr Dunn-Velasco was giving his speech on the roadway, close to the pavement. He said the crowd was generally on the southern side of Broadway.
8. Mr Holbrook said that he knew a Mr Raul Bassi who was one of the organisers of the rally. He said Mr Bassi gave directions to various persons concerned with monitoring the rally and general guidance.
9. Mr Holbrook said that the police moved in immediately after Mr Dunn-Velasco bent down to light the flag. He noticed what he thought was either smoke or fire extinguisher fumes in the air. These are clearly visible in the video (Exhibit B). He said the police were aggressive and some panic emerged in the crowd. There was some pushing and shoving. He did not recall the throwing of water bottles. I note here that the video footage does depict one airborne water bottle.
10. When Mx Williams touched him on the shoulder Mr Holbrook thought that Mx Williams was moving away from the police. An officer was trying to grab Mx Williams. A woman fell to the ground while the police officers were trying to pull Mx Williams down. Mr Holbrook did not recall the crowd grabbing Mx Williams. He remembered Mx Williams being placed in handcuffs at some stage.
11. Mr Holbrook accepted that his memory, having regard to the passage of time, was not precise but he did not back away from the contents of his statement or concede any inaccuracy.
12. The next witness was Dr Byron Smith. Dr Smith is an occasional lecturer with a Doctorate in ethics. His statement commences at p 119 of Exhibit A. He attended the rally which he described as: "….. [a] peaceful protest against the celebration of Australia Day and against the continuing injustices by the Australian government against First Nations Peoples of this land."
13. He stated that the crowd stopped from time to time to hear speeches. At one of these stops he noticed "what looked like a cloud of chalk or smoke". He simultaneously saw "a line of between 15 to 20 police rushed forward directly into the thickest part of the crowd where the speaker and mobile PA system were." He continued: "Just a metre or two from me, I had an unobstructed view of a male police officer grabbing the hair of a male protester from behind and yanking it forcefully backwards as he rushed past into the thickest part of the crowd, almost causing the man to fall backwards while crying out in pain. I had not seen this person do anything to provoke the police; he was not moving or holding anything; he was not even standing in the officer's way."
14. There was no challenge to the above quoted observation. He then went on to say: "Approximately ten metres away from me, as the police charged into the crowd, I briefly saw a young woman knocked to the ground by police, hitting her head as she fell. I saw her go down but did not see what happened afterwards."
15. Under cross-examination an attempt was made to suggest that the woman referred to above was not the plaintiff. It is difficult to say whether Dr Smith was referring to the plaintiff. However, if he was not, his evidence is at least an indication of police officers forcefully coming into contact with more than one female member of the public.
16. Dr Smith said he did not see any person arrested. In his statement he confirms that at least one empty water bottle was thrown.
17. The next witness was Mr Padraic Gibson, a senior researcher at the University of Technology Sydney. He has a Doctorate in history. In 2017 he was an active member of Fighting in Resistance Equally (FIRE). In this capacity he took part in organising the 2017 rally. He was familiar with the Summary Offences Act 1988 (NSW) and knew that a notice of intention needed to be served on the police seven or more days before the intended rally, pursuant to s 23.
18. In 2017 the role of notifying the police had been performed by Mr Bassi. The notification is referred to as a Form 1. Mr Gibson said that he had been involved in promoting the rally including arranging posters and contacting trade unions. He said he had not taken part in the Form 1 process, and he did not know whether there had been conditions attached to the permission granted for the rally.
19. Mr Gibson said that there were more people than expected and he did not know if marshals had been appointed.
20. In his statement Mr Gibson said that he attended the rally with his partner and their two young children. He said that he "sensed a change in the atmosphere" as the rally approached Railway Square. He noticed that most of the police "were in dark coloured uniforms as opposed to the usual light blue shirt and navy pants." He thought these police were part of the Riot Police. He thought their attitude was unfriendly, stating that "they were stony-faced and seemed unresponsive".
21. Mr Gibson stated that at the 2016 rally the Australian flag had been ignited without incident or confrontation with the police. Under cross-examination he said that Mr Dunn-Velasco had told him that he would burn a flag but he, Mr Gibson, had not been aware of a condition to the contrary. It is worth noting here that, without more, it is not an offence to burn the Australian flag.
22. Returning to his statement, Mr Gibson stated that he saw Mr Dunn-Velasco crouched down and then: "Suddenly there was chaos and confusion. The air became thick with gas and a chemical smell as police rushed into the crowd making their way to where Birrigun [Mr Dunn-Velasco] was. The police were spraying the fire extinguishers as they rushed into the crowd. People were getting pushed over by the police as they rushed towards Birrugun. The fire extinguishers were being used like weapons. I did not hear the police give any warning or announce that they were about to run into the crowd. It caught me by surprise. I moved as quickly as I could away from the chaotic situation as I was very concerned for the welfare of my young son who I was carrying my shoulders."
23. Mr Samuel Kwon gave evidence. He is a senior service desk officer for Hearing Australia. He was concerned about "Aboriginal causes and human rights". This is why he attended the rally.
24. Mr Kwon stated that the rally was "completely peaceful", but he noticed "a heavy police presence. Many of the police were dressed in riot gear and were very large and strong." He continued: "All of a sudden I saw police rush into the crowd. I saw police shoving and pushing innocent people that were just standing there. I saw many people get knocked to the ground by police."
25. Mr Kwon then goes on to describe his interactions with a Constable Russell, stating that "[Constable Russell] knocked a female to the ground". He continued that: "The crowd and police were in danger of trampling the people already on the ground. I was scared for myself and for the people he had knocked down. And for people he might assault."
26. Mr Kwon was later charged in relation to his interaction with Constable Russell. Under cross-examination he was asked some questions about the preparation of his statement. He was shown some video and agreed that the female person he had seen knocked down was a person with a purple sash. This is not the plaintiff. Once again, however, the knocking down of persons other than the plaintiff does not assist the defendant.
27. Mr Kenneth Canning is "a writer and a poet". He has a Masters degree in oral and applied history. He works at the Rainbow Lodge as a senior mentor. In 2017 he was a member of FIRE and also of the Indigenous Social Justice Association (ISJA). He said that FIRE was a type of umbrella organisation which covered ISJA. FIRE has since been dissolved but Mr Canning continues to be a member of ISJA.
28. Mr Canning took part in organising both the 2016 and 2017 Invasion Day rally, alongside Mr Bassi, but was not involved in submitting a Form 1 for the rally nor did he know about any conditions that had been imposed. These matters fell under the responsibilities of Mr Bassi.
29. Under cross-examination Mr Canning agreed that he had spoken to a Detective Constable Freudenstein who had said "[p]olice expect a safe march".
30. Mr Canning stated that he was "shocked to see some of the Riot Police were carrying fire extinguishers." He had not seen this before. He told members of the rally "the riot squad is here be careful". He said that some members of FIRE were designated safety officers. They wore 'Hi Vis' vests.
31. Mr Canning described the rally as moving along, but with stops for persons to make speeches from time to time. Some of the speeches were planned but others were not. The speech given by Mr Dunn-Velasco was not planned. Nevertheless, he was provided with a microphone and portable speaker. During his speech Mr Dunn-Velasco said he was going to burn the flag.
32. Mr Canning was more interested in the unseemly language being used by Mr Dunn-Velasco. He knew there were children in the crowd and thought the language was inappropriate. He told Mr Dunn-Velasco to moderate his language. Mr Canning stated: "At the 2017 Invasion Day Rally, I was satisfied, from seeing the reaction of the crowd to Birrigun, that it could be done safely. The crowd was calm and in control. There was a safe distance between the crowd and the flag."
33. Under cross-examination Mr Canning said he did not hear Mr Dunn-Velasco tell the crowd to move in or say that he wanted to cause a disturbance. In his statement Mr Canning continued: "[Mr Dunn-Velasco] had not even taken a lighter from his pocket to light the flag when the police in the dark overalls came barging into the crowd spraying the fire extinguishers. When the police charged into the crowd many people were pushed around by everyone responding. There was no provocation to explain the response from the police. The only thing which might be considered as some type of provocation was the emotional statements of Birrigun (Mr Dunn-Velasco) but those are not unusual at rallies like the 2017 Invasion Day Rally." The crowd, until the police barged in, were calm in observing the symbolic act and were leaving sufficient space between themselves and the flag. There was no warning given by the police that they would barge into the crowd. There was confusion and panic in the crowd after the police intervention because it had happened suddenly and without warning. All the smoke caused confusion as well. I believe the smoke came from the fire extinguishers."
34. Mr Canning said he asked the crowd to move on, which it did. Thereafter the police withdrew. At [41] of his statement he describes some actions taken by a Senior Constable Baker. He agreed that the officer involved may not have been Senior Constable Baker.
35. Ms Eimhear Glackin provided two statements. The first, handwritten, was prepared on the same day as the incident. The second was prepared some days later. Ms Glackin was, and is, a friend of the plaintiff. She gave her evidence by audio-visual link from Ireland.
36. Ms Glackin referred to the police officer grabbing hold of Mx Williams as executing a rugby tackle upon them. She did not think that Mx Williams was specifically fleeing from the officer, rather they were moving away in the same manner as the rest of the crowd.
37. Ms Glackin was very critical of the police officer. She said that he and Mx Williams remained on top of the plaintiff for some "minutes". This is probably an over-estimation.
38. Ms Glackin stated that before the tackle she had seen "four to five police in riot gear run down to the crowd". She continued: "I did not see any civilians do anything to warrant this. At this point I was confused and scared. Laura and I started to turn to walk away from the crowd towards the median strip. The police had charged in. I saw them with fire extinguishers, and I saw a lot of smoke. There was a panic, we moved away faster. The whole crowd dispersed. We got a bit separated, but I could still see Laura. There was a person between us. I saw a police officer going in for a rugby tackle on a young lad. I had noticed him shortly before. He looked like he was trying to get away also. I did not see any member of the crowd be violent towards the police. All I saw was police being aggressive and charging in on innocent bystanders. As we were walking away, the officer rugby tackled the young lad to the ground. As he took the man down, the officer and the male banged into the back of Laura, causing Laura to fall down."
39. Under cross-examination Ms Glackin identified herself and the plaintiff, then unconscious, near the median strip on Broadway. She emphasised that the scene was frightening, and that the young person did not have a chance to resist. She said the officer was much larger than them. She thought the rugby tackle was unprovoked.
40. Ms Glackin distinguished between the police who had "charged in" and the 'normally' dressed police officers who arrived a little later. While Ms Glackin clearly had a view about the conduct of the police, I thought her evidence seemed truthful with perhaps some unconscious exaggeration, as already stated, about the length of time the police officer and Mx Williams were in contact with the plaintiff on the ground.
41. Mx Williams was the final lay witness called by the plaintiff. Mx Williams is a social worker working in the mental health field. Mx Williams gave evidence from Melbourne by audio-visual link. Earlier objections to Mx Williams giving evidence at all, and remotely, were ultimately withdrawn.
42. Mx Williams was closely cross-examined, but generally kept to their statement. They stated that they were about 30 metres from Mr Dunn-Velasco who was "surrounded by the crowd". They said that: "A group of police in dark coloured uniforms ushered along the crowd via the empty Southbound lanes and congregated. I saw one of these Police officers retrieve a red fire extinguisher. From my position I could not see what the aboriginal man was doing. I then saw the group of police in dark coloured uniforms charge into the crowd towards where I knew the aboriginal man to be. ….. I noticed a cloud of white coloured dust in the air around where the police had run in. The dust in the air was hanging low over and around the crowd. While the dust was in the air it did not prevent me from seeing what was going on around me. …… I felt a combination of fear and anger. The actions of the police in storming in and spraying the fire extinguisher did not feel respectful or proportionate to the events I witnessed. I noticed a police officer holding a small handheld video recorder standing near where I was standing next to the median strip on George Street. They were holding the recorder with their arm elevated so the camera seem to be looking down on the crowd of people. …… With my open hand I slapped the camera out of Constable Lowe's hand."
43. Under cross-examination Mx Williams endeavoured to explain why they had taken this action. They said they were fearful that indigenous people would be charged. Mx Williams could not understand why a camera was needed and why body cameras were not sufficient. Mx Williams' intent in disrupting the filming was motivated by their fear of unfair persecution of indigenous people. They wanted to stop the filming of Aboriginal people. They expressed fears about the safety of Aboriginal people in the company of police.
44. Mx Williams said that following the interaction with Constable Lowe they moved backwards in a "fight or flight response". They could not recall members of the crowd pulling them away. They said they were trying to escape their feelings of anger and fear. They wanted to go somewhere else to calm down.
45. As they were moving away, they said that they were grabbed along their ribs and shoulders by another person. This was Sgt Livermore. Mx Williams said that as they were grabbed, they swung around and came into contact with a female (the plaintiff).
46. Mx Williams stated that they and the officer "tripped over the median strip and fell onto the road with Sgt Livermore falling on top of me".
47. Mx Williams stated: "I did not hear any announcement from the police about what they were going to do before they ran into the crowd with the fire extinguisher. They did not tell everyone to move away. While there were a lot of people, the crowd had gone quiet as the Aboriginal man stopped speaking on the microphone prior to the police charging in. I did not see any police with loudspeakers."
48. There was some cross-examination about whether Mx Williams fell on the median strip or on the northern or southern side of the strip. I am not sure what the intent of the cross-examination was. Suffice to say that the defendant suggested that the pair had fallen on the southern side but Mx Williams thought it was the northern side.
49. This is a convenient point to say that I thought all of the plaintiff's witnesses were impressive and doing their best to tell the truth. I have deliberately included some of their occupations and academic achievements to indicate that they were not random protestors taking part in an unruly demonstration but rather, intelligent persons with a common interest in highlighting their individual perceptions of injustice.
50. The first witness called by the defendant was Sgt Amy Lowe. For convenience, I will refer to the ranks of the police officers according to their current status. In January 2017 Sgt Lowe was a Constable working in the Redfern Police Area Command. Her task during the rally was to film the protest, "paying particular attention to any person committing offences or breaching conditions of the Form 1." The Form 1 is attached to her statement (Exhibit A, p 136). For present purposes the conditions include: "20. There will be no flag or effigy burning 22. No missiles will be thrown 23. No damage to property"
51. Sgt Lowes states that she saw Mr Dunn-Velasco during the day with a red container which she thought looked like lighter fluid. She stated that she "had been told earlier in the day by a Sergeant unknown to me, while we were walking along Lee Street, that there was lighter fluid in the container and to film him." One wonders why Mr Dunn-Velasco was not challenged about the lighter fluid when it was first identified.
52. Sgt Lowe says that she was watching Mr Dunn-Velasco speaking to the crowd with a microphone. She says, "the crowd was tightly packed together as they were listening to speeches". Notably, she does not say that the crowd was standing close to Mr Dunn-Velasco. Sgt Lowe continued: "A few minutes later, I observed him kneel down. I then observed a number of police officers with fire extinguishers run into the crowd towards this man."
53. I think the just quoted description is important. There were a number of police officers carrying the extinguishers. They ran into the crowd. One police officer could have made their way through the crowd with an extinguisher to put out any fire that may have emanated from the small flag.
54. Equally significant is Sgt Lowe then stating: "While I was filming the police officers with fire extinguishers running into the crowd, I felt a hard strike to my left on. This caused me short-term pain. I observed a man who I now know to be Hayden Williams swinging his arms and turning around. As a result of the strike to my left arm, the Sony Handycam was knocked from my hand and I was not able to use it again as the battery ejected and broke on the ground."
55. The importance of this description is that the strike to Sgt Lowe's hand occurred while the police officers with the fire extinguishers were running into the crowd. In other words, the actions of Mx Williams occurred during the rush of the officers bearing the fire extinguishers. It is therefore difficult to view the two incidents (the intervention into the crowd and the interaction with Mx Williams) as not being part of the same event.
56. Sgt Lowe stated that three charges were laid against Mx Williams by the issuing of Court Attendance Notices. They were assault a police officer in the execution of the officer's duty, resist an officer in the execution of duty and destroy or damage property. Sgt Lowe said that on 14 September 2017 Mx Williams "was sentenced to a s 10 Bond at the Downing Centre Local Court for the offences he was charged with." I don't think much turns on the point, but I note that Mx Williams was in fact acquitted of the charge of resisting arrest.
57. Under cross-examination Sgt Lowe agreed that the purpose of her filming included being able to identify persons at a later time. This is entirely consistent with Exhibit E which is a document entitled "Actions On" referred to in the sergeant's statement. When this document was tendered by the plaintiff, as being a document that was omitted from the court book, it was suggested by the defendant that it may not have been seen by Sgt Lowe. I initially found this suggestion difficult to understand. Sgt Lowe states at [5b] of her statement that she was provided with a copy of the operational orders which are annexure B to her statement. Exhibit E is specifically included within Sgt Lowe's annexure. The plaintiff tendered the document immediately after Sgt Lowe had given evidence. Not only had the defendant not asked her to clarify this point but made no attempt to recall Sgt Lowe.
58. I would have drawn an inference that Sgt Lowe was provided with Exhibit E. It seems to be a document specifically aimed at the officers in the field. However, the waters were significantly muddied by the following witness, Inspector Baker, whose evidence was a little confused but, I think, he effectively gave evidence that Exhibit E was not given to officers like Sgt Lowe although its contents would have been the subject of explanation during the briefing.
59. Acting Inspector Baker's evidence is not consistent with Sgt Lowe's evidence. He did not think she would have been given the Operational Orders, which she clearly stated she did receive. Initially I thought Inspector Baker had indicated that Exhibit E would have been received by the team leaders, such as Sgt Livermore. However, even that conclusion later came into doubt when he seemed to suggest that may not have taken place.
60. Ultimately there may not be much difference between whether or not the police officers were given Exhibit E or simply taken through it, even in a shortened form. The document, or the messages contained under the headings "Detection of an offence during a static gathering or mobile procession" and "Fire - burning flags, effigies or other articles, flares etc." are particularly important,
61. In relation to the detection of an offence, the obligation of the officer is to bring the matter to the attention of a Team/Field Supervisor. It is not to immediately make an arrest unless "immediate action required to prevent a serious risk to public safety that is occurring or imminent". That was not the case here. Once Mx Williams had knocked the camera out of Sgt Lowe's hand Mx Williams was, to quote her, "walking away". There is no suggestion of any continuing assault upon Sgt Lowe or any other person.
62. In relation to burning a flag, again the incident is to be brought to the attention of a superior. Immediate action is not to be taken unless "a person has been injured or a serious risk to public safety or property is imminent". None of the conditions were present.
63. I note here that the guidelines in Exhibit E are effectively expressions of common sense. The police would not want to inflame a large crowd of protesters when there is no imminent danger and appropriate action, such as arresting or identifying a person, can be taken at a later time.
64. Returning to the cross-examination of Sgt Lowe, she confirmed that there were two separate interactions between Sgt Livermore and Mx Williams. He initially tried to take hold of them but was unsuccessful. He then took the action of grabbing Mx Williams which ultimately resulted in the fall and contact with the plaintiff. Returning to the guidelines in Actions On, Sgt Livermore should not have engaged in the second encounter, perhaps not even the first.
65. Sgt Lowe said that she had seen Mr Dunn-Velasco making his speech. She was about ten metres from him. She agreed that a circle had formed around him with one or two metres between him and the crowd. She also agreed that the police officers who rushed in with fire extinguishers had necessarily needed to pass the members of the public in the rear of the circle who were between the officers and Mr Dunn-Velasco.
66. The next witness was Acting Inspector Baker. I did not find his evidence particularly helpful. Not only were the inconsistencies mentioned above about Exhibit E exposed but other inconsistencies arose. For example, he stated that only one fire extinguisher was set off and that it was used to extinguish a fire. The evidence is clear to the effect that there were at least two fire extinguishers discharged and no fire had actually been lit.
67. In his statement Inspector Baker attempted to explain why it was necessary for the OSG to act in the manner that it did. He referred to the following matters: 1. The crowd was larger than he had anticipated. He thought there were about 5000 people. 2. After being informed that Mr Dunn-Velasco was seen with an appearance of lighter fluid in his pocket he spoke to a Sgt Hogan who responded: "we are a fire team and we have fire extinguishers". Sgt Baker gave this instruction to Sgt Hogan: "if he tries to burn the flag and there is a risk to public safety, you should extinguish the fire." 3. Inspector Baker spoke to Mr Bassi and asked him to talk to Mr Dunn-Velasco to make sure a fire wasn't started. Mr Bassi replied: "okay, I will talk to him but I don't think he'll listen to me". 4. Inspector Baker spoke to Mr Bassi a second time to the same effect.
68. All of the matters raised by Inspector Baker certainly justify the OSG being put on alert and being ready to extinguish any fire. But this conclusion is very different to the OSG rushing into the crowd, discharging at least two fire extinguishers and doing all of these actions in the absence of a fire. One might even observe that if the fire retardant had been expended by the time they reached the fire, their actions would have been both useless and dangerous. The fire extinguishers were small, as seen at the very beginning of the footage (Exhibit C).
69. Inspector Baker is obviously wrong when he refers to the OSG officers extinguishing the fire. His statement is consistent with my view that he was endeavouring to give Mr Dunn-Velasco's actions an aura of more peril than they deserved.
70. The next witness was Sgt Livermore. He also refers to receiving the operational orders during the pre-rally briefing and the annexure to his statement refers to the Actions On document (page 201 of Exhibit A).
71. Sgt Livermore stated that he was a team leader on the day. He was in charge of three teams of seven officers who had crowd control duties. As a team leader, on Inspector Baker's evidence, he would have been given the Actions On document. He did not remember if that was the case or not. One can assume however that he would have been familiar with its contents.
72. In relation to Mx Williams, Sgt Livermore said that he was standing near Sgt Lowe when he saw "a couple of police officers with fire extinguishers together with other officers from the OSG dressed in overalls move quickly into the crowd and activate the fire extinguishers. At this point, I saw the crowd moving in toward police officers with the extinguishers and I saw some members of the crowd pushing and kicking the police officers."
73. Sgt Livermore then stated that he saw Mx Williams "run" up to Sgt Lowe and "with their right arm raised over his head, [Mx Williams] swung with force in a downward motion on to Sgt Lowe's left arm, causing her arm to drop down and the camera to fall out of her hand and onto the road and break apart." He said that Mx Williams "then went to run back into the crowd". The two lots of running observed by Sgt Livermore are to be contrasted with the walking described by Sgt Lowe.
74. Sgt Livermore stated: "Based upon what I had seen, I formed the view that Mr Williams had assaulted Constable Lowe by striking her arm and that he should be arrested. I reacted immediately as I was concerned he was running away and would disappear into the crowd. I did not know his identity or address at the time, and I was concerned that he had assaulted a police officer in the middle of a large protest in which thousands of people were present and commit further offences if he was not apprehended."
75. One has to wonder what further offences Sgt Livermore had in mind. He also refers to the thousands of people that were present, again highlighting the sensibility of the Action On guidelines which counsel against unnecessarily provocative actions within a large crowd of protesters.
76. Returning to his statement, Sgt Livermore stated: I ran a few steps after Mr Williams and grabbed him from behind with my left arm over his left shoulder and across the chest. I tried to pull him back away from the crowd and back towards the middle of the roadway, where there were fewer people. He resisted by pulling away from me and moving his feet in an attempt and move back into the crowd. I could also see and feel other people pulling at him and at me. It seemed like they were trying to assist him to get away from me. Eventually, I was able to pull Mr Williams away from the other protesters who were pulling at him, and back toward the median strip and away from the crowd. During the course of me attempting to restrain Mr Williams and him attempting to evade my grasp and move away from me, he and I both fell onto the median strip. As we fell, I attempted to turn him around to force him to the ground so that I could better control him. As we fell, I felt myself collide with another person before landing on the ground. I can't recall the exact position we were in when we hit the median strip but believe he landed on his stomach with me partially on top of him. I do not recall seeing where this person, who I now know to be the plaintiff, landed when we collided into her, but I do not believe that I landed on her legs. I then raised myself on to my knees."
77. In relation to the OSG officers, Sgt Livermore stated: 1. There was more than one fire extinguisher, although he did not know how many OSG officers had been present. 2. The crowd was dense and packed together. No request was made of the crowd to part their way for the OSG officers. 3. There was necessarily physical contact between the officers and the public as they made their way through the crowd. 4. The OSG officers "rushed" through the crowd. 5. He never saw a fire lit by Mr Dunn-Velasco or anyone else.
78. When cross-examined about the arrest of Mx Williams, Sgt Livermore said: 1. Mx Williams ran across in front of him, from his left, to get to Sgt Lowe. 2. He was certain that it was Sgt Lowe's arm that was hit. 3. He was certain that Mx Williams was running and not walking. 4. At about the same time, as a result of the rushing of the OSG officers, there was pushing and kicking between the police and the crowd. He did not intervene. 5. He was annoyed by the actions of Mx Williams. He did not warn them or ask them to stop. He did not speak to Mx Williams at all prior to telling them that they were under arrest. 6. He agreed that, depending on the circumstances, a verbal arrest was preferable to a physical arrest, but that was not the case here. 7. While he characterised his contact with Mx Williams as a grab rather than a tackle, he agreed that he had put his left arm over Mx Williams's shoulder and his right arm around their torso. He had run towards the back of Mx Williams and came into contact with them with some force, possibly propelling them forward. He denied that he swung them around. 8. When the relevant events occurred, there were bystanders present in the area. The bystanders were on the southern side of the median strip.
79. A telling aspect of Sgt Livermore's evidence was that he was annoyed by the actions of Mx Williams. Those actions were uncalled for, to some degree illegal and well capable of inducing annoyance on the part of an observer. But Sgt Livermore was an experienced police officer. Sgt Lowe was assaulted but this was a single action before Mx Williams tried to leave into the crowd. There was no continuing assault upon Sgt Lowe. There was no imminent danger to her or to anybody else.
80. Sgt Livermore made no attempt to apprehend Mx Williams by other than physical capture. He did so in the midst of a crowd containing both protesters and bystanders. He paid no regard to the proportionality of his grabbing of Mx Williams to the surrounding circumstances.
81. The final witness called by the defendant was Senior Constable Halsted. She stated: "At 10am, I attended a briefing at Redfern Police Station run by Superintendent Freudenstein with all officers deployed to Operation Goldsmith. During the briefing Superintendent Freudenstein or Acting Inspector Baker informed us of the conditions within the Form 1 and went through the Operational Orders and instructed us of our particular roles within the operation."
82. Senior Constable Halsted's evidence was consistent with Inspector Baker to the extent that the operational orders were explained rather than handed out in hard copy form. Whatever the case however, the orders were brought to the attention of the officers.
83. Senior Constable Halsted was in a team led by Sgt Livermore and had the task of crowd control.
84. Under cross-examination she agreed that the crowd was dense and tightly packed.
85. On her observation of the arrest of Mx Williams, she thought Sgt Livermore could have swung Mx Williams around. She thought it possible that they both made contact with the plaintiff. She accepted, contrary to her statement, that the plaintiff may have been a bystander, rather than a protestor.
86. Senior Constable Halsted confirmed that the camera had been knocked out of Sgt Lowe's "hand". This is also recorded in her statement, at [19]: "[Sgt] Amy Lowe then approached me and told me that Mr Williams had been arrested by Leading Senior Constable Livermore after hitting a camcorder out of her hand…."
87. The final witness was Mr Daniel Halpin, the chief executive officer and managing director of Cybertrace Pty Ltd. He produced a report dated 9 May 2022 which was tendered by the plaintiff in support of her case.
88. The whole of the report was subject to objection as well as, if the report was admitted, significant individual portions of it. The basis for the overall objection was that Mr Halpin did not have the expertise to give the opinions included in the report. It was submitted that, as far as policing was concerned, his experience went no further than about six years as a general duties officer in the New South Wales Police Force.
89. I indicated that I disagreed with the submission, referring to the statement of qualifications and experience commencing at p 2 of the report. In my view Mr Halpin's relevant expertise is based on matters going well beyond his time as a general duties officer. It extends to assorted roles in different security type organisations, admittedly not all as a police officer, but certainly in the fields of security and the protection of the public.
90. In addition, in respect of his comments on Aboriginal culture and sensitivities I noted his police service in a remote New South Wales town in respect of which he stated, at [48]: "As a police officer, I was stationed (at) Dareton which is a remote aboriginal community in the far south-west of NSW. I was posted at Dareton for six years and during this time I developed a solid understanding of the cultural and political sensitivities within aboriginal communities in contemporary Australia. I also gained specific understanding of the potential for conflict between Police and aboriginal communities."
91. In respect of the objections to individual parts of the report, I dealt with them in argument, allowing many of the objections, but not all of them. Most of them fell away in consequence of my informing counsel that I was satisfied that Mr Halpin had the expertise to express his opinions, but with some exceptions, such as his comments on the existence of a duty of care.
92. The main conclusion drawn by Mr Halpin, at [151], was that the OSG officers, as "professional crowd controllers….. should have demonstrated a higher level of restraint when the flag burning was attempted".
93. As will be seen below, this is a conclusion that I think is easily drawn on the evidence. I do not think Mr Halpin's opinion has much bearing on this conclusion. The conclusion would have been reached without the report.
94. I also make the following comments about Mr Halpin's report: 1. At [41] he refers to s 100 of LEPRA. As he conceded, the section does not apply to the current circumstances. 2. In relation to LEPRA generally, he said he was not aware of changes to the legislation after 2014. I would have thought an expert commenting on the law would be aware of such significant changes. 3. Mr Halpin was under the misapprehension that Sgt Livermore was a member of the OSG. He was not asked whether this fact changed his opinion. I can see no reason why his opinion would be changed, bearing in mind that Sgt Livermore was a senior and experienced officer.
95. Overall, I derived little assistance from Mr Halpin's report. To the extent that his conclusions accord with mine, they are conclusions that are matters of common sense flowing from a simple interpretation of the evidence.

Obstacles faced by the plaintiff.

1. The defendant submitted that there were a number of obstacles facing the plaintiff. Without any disrespect to the detailed submissions made by the defendant, I summarise the obstacles as follows: 1. The police did not owe the plaintiff a duty of care. 2. If there was a duty of care, it was not breached. 3. The establishment of a breach required meeting the high standard imposed by s 43A of the CLA. 4. The actions of the OSG officers, even if excessive, were essentially irrelevant because the link (of causation) from them to the plaintiff's injury was broken by the actions of Mx Williams and their subsequent arrest. 5. The arrest of Mx Williams was lawful. It fell within the bounds of s 99 of LEPRA. 6. Section 43A of the CLA also applied to the plaintiff's attempt to establish that the arrest was not lawful.
2. The above obstacles must be seen in the light of the following conclusions, each of which I will explain below: 1. The actions of the OSG officers may be subject to a duty of care even if the arrest by Sgt Livermore was not subject to such a duty. The defendant conceded this possibility, but submitted that as a matter of practicality the actions of the police should be treated together. 2. Accordingly, if there was a duty of care owed by the OSG, and it was breached, then, subject to causation, the plaintiff could succeed even if the arrest of Mx Williams was lawful and carried out in the absence of any duty of care owed by Sgt Livermore. 3. Section 43A did not apply to the question of whether or not the arrest by Sgt Livermore was lawful. This is because the onus to establish the lawfulness of the arrest rested on the defendant. 4. Section 43A did apply to the plaintiff's obligation to establish a breach of any duty found to be imposed on the OSG officers or on Sgt Livermore. 5. Causation does not depend on there being a single cause of a result. There may be more than one cause provided each cause materially contributed to the result.

Did the OSG owe the plaintiff a duty of care?

1. The defendant submitted that the existence of a duty of care was irreconcilable with the statutory regimes under which the police operated.
2. This was said to be the clear message of the authorities. Particular reference was made to Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 at [57] (Sullivan): "In Hill v Chief Constable of West Yorkshire, the House of Lords held that police officers did not owe a duty to individual members of the public who might suffer injury through their careless failure to apprehend a dangerous criminal. Lord Keith of Kinkel pointed out that the conduct of a police investigation involves a variety of decisions on matters of policy and discretion, including decisions as to priorities in the deployment of resources. To subject those decisions to a common law duty of care, and to the kind of judicial scrutiny involved in an action in tort, was inappropriate."
3. Then, at [60], is this passage: "The circumstance that a defendant owes a duty of care to a third party, or is subject to statutory obligations which constrain the manner in which powers or discretions may be exercised, does not of itself rule out the possibility that a duty of care is owed to a plaintiff. People may be subject to a number of duties, at least provided they are not irreconcilable. A medical practitioner who examines, and reports upon the condition of, an individual, might owe a duty of care to more than one person. But if a suggested duty of care would give rise to inconsistent obligations, that would ordinarily be a reason for denying that the duty exists. Similarly, when public authorities, or their officers, are charged with the responsibility of conducting investigations, or exercising powers, in the public interest, or in the interests of a specified class of persons, the law would not ordinarily subject them to a duty to have regard to the interests of another class of persons where that would impose upon them conflicting claims or obligations."
4. In my view the last quoted passage from Sullivan allows for the existence of a duty of care, provided that the duty is not irreconcilable with other duties, in particular statutory duties, imposed upon the alleged tortfeasor. My initial thought was that a common law duty of care might be excluded because of its inconsistency with the statutory powers given to the police by legislation like the Police Act 1900 (NSW) or LEPRA. In Hunter and New England Local Health District v McKenna [2014] HCA 44, the High Court said at [29]: "The core of the relatives' complaint in this matter is that each was injured because a decision was made not to continue to detain a mentally ill person. But, as in Sullivan, those who made that decision had other duties. Particularly relevant was the obligation imposed by s 20 not to detain or continue to detain a person unless the medical superintendent was of the opinion that no other care of a less restrictive kind was appropriate and reasonably available to the person. Performance of that obligation would not be consistent with a common law duty of care requiring regard to be had to the interests of those, or some of those, with whom the mentally ill person may come in contact when not detained. And, as explained in Sullivan, 'if a suggested duty of care would give rise to inconsistent obligations, that would ordinarily be a reason for denying that the duty exists.'"
5. McKenna was concerned with the inconsistency arising between a duty of care and the Mental Health Act 2007 (NSW). This Act, however, does not contain a section equivalent to s 4 of LEPRA: 4 Relationship to common law and other matters (1) Unless this Act otherwise provides expressly or by implication, this Act does not limit - (a) the functions, obligations and liabilities that a police officer has as a constable at common law, or (b) the functions that a police officer may lawfully exercise, whether under an Act or any other law as an individual (otherwise than as a police officer) including, for example, powers for protecting property. (2) Without limiting subsection (1) and subject to section 9, nothing in this Act affects the powers conferred by the common law on police officers to deal with breaches of the peace.
6. The defendant, relying on authorities such as Tame v State of New South Wales [2002] HCA 35; 211 CLR 317 (Tame), Cran v State of New South Wales [2004] NSWCA 92; (2004) 62 NSWLR 95 and State of New South Wales v Klein [2006] NSWCA 295, submitted that the existence of a duty of care would inhibit the capacity of the police to carry out their duty.
7. One of the passages I was referred to from Tame is at [57] in the judgment of Gaudron J: "Apart from the absence of any special relationship or any special feature of the relationship between Acting Sergeant Beardsley and Mrs Tame, two matters tell against his owing a duty of care to her. The first is that it is to be assumed that the exercise upon which Acting Sergeant Beardsley was engaged was the investigation of the question whether either Mrs Tame or the driver of the other vehicle involved in the accident which led to the making of the traffic accident report had committed a traffic offence. It would be incongruous and perhaps, give rise to incompatible duties if a person charged with the investigation of a possible offence were to owe a duty of care to the person whose conduct is the subject of that investigation."
8. This passage, I think, highlights a very significant distinction with the current case. The plaintiff here is not Mx Williams or Mr Dunn-Velasco, both of whom might be seen as persons who were the subject of the police action. Quite to the contrary, the plaintiff was a bystander, who fell victim to the actions of the police in their pursuit of entirely unrelated persons and events.
9. In Tame at [125] McHugh J, said it seemed "preposterous to suggest that an officer has a duty of care" in taking down a statement. He said a duty would "impose on them (the police) either an intolerable burden or a meaningless ritual". Once again, the circumstances in Tame are vastly different to the present case. It is to be remembered that the question of whether or not a duty of care exists can vary according to the factual circumstances of the case.
10. Hayne J, at [298] said: "Police officers investigating possible contravention of the law do not owe a common law duty to take reasonable care to prevent psychiatric injury to those whose conduct they are investigating. Their duties lie elsewhere and to find a duty of care to those whom they investigate would conflict with those other duties."
11. The same distinction that I have already mentioned arises again from this passage. While a duty of care to a person being investigated may be denied, that does not mean there is no duty of care to an entirely innocent person who is not being investigated.
12. The cases make it clear that police do not have a general immunity. There is scope for the existence of a duty of care. As I have said, this is clear from [60] in Sullivan.
13. The plaintiff submitted that this case fell squarely within the ambit of the decision of the Supreme Court of the United Kingdom in Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4 (Robinson). I was taken to [55] and then [74]: 55. "The case of Hill is not, therefore, authority for the proposition that the police enjoy a general immunity from suit in respect of anything done by them in the course of investigating or preventing crime. On the contrary, the liability of the police for negligence or other tortious conduct resulting in personal injury, where liability would arise under ordinary principles of the law of tort, was expressly confirmed. Lord Keith spoke of an "immunity", meaning the absence of a duty of care, only in relation to the protection of the public from harm through the performance by the police of their function of investigating crime." 74. "It was not only reasonably foreseeable, but actually foreseen by the officers, that Williams was likely to resist arrest by attempting to escape. That is why Willan summoned assistance in the first place, before attempting to arrest Williams, and why it was decided that DS Roebuck and DC Green should be positioned on the opposite side of Williams from Willan and Dhurmea, so as to block his escape route. The place where the officers decided to arrest Williams was a moderately busy shopping street in a town centre. Pedestrians were passing in close vicinity to Williams. In those circumstances, it was reasonably foreseeable that if the arrest was attempted at a time when pedestrians - especially physically vulnerable pedestrians, such as a frail and elderly woman - were close to Williams, they might be knocked into and injured in the course of his attempting to escape. That reasonably foreseeable risk of injury was sufficient to impose on the officers a duty of care towards the pedestrians in the immediate vicinity when the arrest was attempted, including Mrs Robinson."
14. The case of Hill referred to in [55] of Robinson, is Hill v Chief Constable of West Yorkshire [1989] 1 AC 53 which was approved by the High Court in Sullivan as well as in a number of decisions of the NSW Court of Appeal.
15. In my view, subject to the particular facts of the case, there is no reason why a common law duty of care cannot be imposed on a police officer in the manner described in Robinson at [55].

Would the duty of care be inconsistent with the Police Act 1990 (NSW)?

1. The defendant submitted that ss 6 and 13 of the Police Act 1990 (NSW) were sections inconsistent with, and therefore irreconcilable with, a common law duty of care. Section 6 states: (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 (NSW).
2. Section 13 is the oath or affirmation taken by a police officer. As at January 2017, it was in the following terms: "I [oath or affirmation] that, I will well and truly serve our Sovereign Lady The Queen, as a police officer without favour or reflection, malice or ill-will, until I am legally discharged, that I will see and cause Her Majesty's peace to be kept and preserved - and that - I will prevent to the best of my power - all offences against that peace - and that - while I continue to be a police officer- I will- to the best of my skill and knowledge- discharge all the duties thereof - faithfully - according to law."
3. The keeping of the peace extends not only to dealing with people who are not peaceful but also to not disrupting those who are at peace. The latter is precisely what was done by the OSG officers in their sudden entry into the circle surrounding Mr Dunn-Velasco. Looking at the video footage, the crowd surrounding Mr Dunn-Velasco seems to be a combination of the interested, the vaguely interested and the entirely disinterested. However described, the crowd is certainly at peace before the intervention of the OSG officers.
4. Section 6 of the Police Act 1990 (NSW) specifically imports the provisions of LEPRA, which at s 4 states: (1) Unless this Act otherwise provides expressly or by implication, this Act does not limit - (a) the functions, obligations and liabilities that a police officer has as a constable at common law, or (b) the functions that a police officer may lawfully exercise, whether under an Act or any other law as an individual (otherwise than as a police officer) including, for example, powers for protecting property. (2) Without limiting subsection (1) and subject to section 9, nothing in this Act affects the powers conferred by the common law on police officers to deal with breaches of the peace.
5. The obligations of a police officer at common law are consequently relevant to the actions of the officer under the Police Act 1990 (NSW). Further the definition of "police services" in s 6, includes "the protection of persons from injury or death".

Some salient features.

1. The defendant further submitted that when looking at the relevant salient features I should take into account that: 1. A duty of care was inconsistent with the police attending crowded situations where "they are required to make quick decisions as to whether to take action to prevent a breach of the peace, or arrest individuals for assaults and other crimes, whether during protest marches, in a busy hotel on a Saturday night, at music festivals and at sporting events." 2. The police were not in control of the circumstances on Broadway. Control fell within the ambit of Mr Bassi's obligations. Mr Bassi had apparently not informed other organisers, like Mr Gibson, of the specific conditions such as not setting fire to the flag. 3. The "Police were responding to a dynamic situation, organised by someone else and attended by thousands of people…" and in which other persons like Mr Dunn-Velasco and Mx Williams were creating risks.
2. I think the answer to all of these points is that there was no need for the OSG officers to take the actions they decided upon. The situation was peaceful. Mr Dunn-Velasco had not lit the flag and there was probably little danger even if he did. Of course, police are called upon to make quick decisions but that does not give them permission to intervene where intervention is either not necessary or can be achieved in a non-violent manner. Police do not have carte blanche to act as they please. It is a crucially salient feature of this matter that there was no reason for the OSG officers to intervene with fire extinguishers 'blazing'.
3. The participants in the rally, and the bystanders, were persons entitled to protection from injury or death.
4. The police were understandably apprehensive about Mr Dunn-Velasco burning a flag. Between the police and Mr Dunn-Velasco was a crowd of innocent persons. Mr Dunn-Velasco had not yet ignited the flag. The flag, for want of a better word, was a small object, perhaps better described as the size a pillow slip with all the attributes of the Australian flag (as seen in Exhibit B in the Buzzfeed footage). I reject the suggestion that the police had an effective immunity to charge through and amongst innocent persons in order to prevent the lighting of the flag.
5. Police abandon chasing a speeding motor vehicle because of the potential of harm to themselves, to the public and even to the law-breaker driving the vehicle. Police would not discharge a firearm to disable a villain if it was necessary to fire the shot through a crowd.
6. I think the circumstances in the present case, while obviously not precisely the same, are closely analogous to those in Robinson. The OSG were faced with the rear of a crowd into which they rushed, without warning, bearing at least two fire extinguishers. Not only was the risk of injury to the crowd reasonably foreseeable but so too was the chaos and panic that was likely to arise by the sudden arrival of the officers, together with the discharging of the fire extinguishers. This in turn created the circumstances in which Mx Williams reacted, by assaulting Sgt Lowe, and then came to be arrested by Sgt Livermore.
7. I am satisfied that a duty of care was owed to the public, including bystanders like the plaintiff, present at the rally.

Did the OSG breach its duty of care?

1. In relation to s 5B of the CLA, a risk of harm consequent upon rushing unannounced into the crowd with fire extinguishers operating is plain. The risk was not insignificant so that a reasonable person would have taken precautions to avoid the risk. In this case simply announcing their arrival to the crowd would probably have sufficed. A single officer with a fire extinguisher walking through the crowd to arrive at the scene of the possibly impending ignition would have achieved all of the objectives the OSG team seems to have had in mind.
2. The next issue that requires consideration is s 43A of the CLA, which states: (1) This section applies to proceedings for civil liability to which this Part applies to the extent that the liability is based on a public or other authority's exercise of, or failure to exercise, a special statutory power conferred on the authority. (2) A special statutory power is a power - (a) that is conferred by or under a statute, and (b) that is of a kind that persons generally are not authorised to exercise without specific statutory authority. (3) For the purposes of any such proceedings, any act or omission involving an exercise of, or failure to exercise, a special statutory power does not give rise to civil liability unless the act or omission was in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power. (4) In the case of a special statutory power of a public or other authority to prohibit or regulate an activity, this section applies in addition to section 44.
3. There is no dispute that the police force is a public authority. Therefore, in deciding breach, not only is s 5B of the CLA relevant but so too is s 43A. The following factors stand out: 1. There was no fire. 2. The flag was small. 3. The crowd around Mr Dunn-Velasco had given him space. 4. The crowd was peaceful and included children, some atop their parents' shoulders. 5. The OSG officers rushed into the crowd from behind the crowd. 6. The OSG did not announce their arrival or intention. 7. The OSG discharged their fire extinguishers. 8. Not a single member of the OSG was called as a witness to explain their actions. An inference that their evidence would not have assisted the defendant's case flows (as per Jones v Dunkel (1959) 101 CLR 298).
4. In respect of (h) in the previous paragraph, the defendant submitted that an inference could not be drawn because there was no "vacuum" in the evidence which could be filled by the drawing of an inference. I disagree. Inspector Baker stated that he had a conversation with Sgt Hogan about extinguishing a fire if necessary. But there was no evidence to explain why Sgt Hogan and his team decided to rush into the crowd without warning and discharge their fire extinguishers, all to extinguish a fire that did not exist.
5. I think the conclusion that the OSG officers acted recklessly or unreasonably in the terms of s 43A(3) is easily reached.
6. My view is reinforced by Exhibit E, in particular the Actions On document. Under the heading "Fire - burning flags, effigies or other articles, flares etc." the following is stated: "- Incidents are to be brought to the attention of the Team/Field Supervisor via VKG. - If required, take immediate and appropriate action to prevent or respond to a serious incident where a person has been injured or a serious risk to public safety or property is imminent? This includes taking action to contain or isolate the hazard. - The Team/Field Supervisor is to converse with the officers on-scene, assess the situation and provide a SITREP via VKG including the following:- - Is police intervention required to prevent a serious injury to members of the public or prevent any burning item from spreading and causing damage to other objects or buildings in the area? - Is an OSG Fire Team or the NSWFB required to extinguish any fire? - Would police intervention to prevent injury to persons or damage to other objects/structures result in officers being hindered or assaulted? NB: The act of burning a flag, effigies or other article by a person who owns the property is not an offence, however their actions can endanger public safety."
7. The Actions On document is only a guideline, but its exhortations are an indication of what could be considered a reasonable exercise of the statutory power. Here there was no communication with any supervisor, there was no need for immediate action or the isolation of a hazard, there was no apparent risk of serious injury and, of course, there was no fire.
8. The video footage is probably enough to sustain the conclusion that the actions of the OSG team were reckless and out of proportion to the danger possibly threatened and certainly in comparison to the risk of injuring members of the crowd either by direct contact with the rushing officers or through the panic and confusion that was likely to emerge.

Did the breach of duty by the OSG officers cause the injury to the plaintiff?

1. Causation is governed by s 5D of the CLA. It essentially imposes a 'but for' test. The onus rests and remains squarely on the plaintiff.
2. I have found above that the intervention of the OSG into the crowd was negligent. The defendant submitted that even if this finding was made the intervention did not cause the harm to the plaintiff because the actions of Mx Williams in assaulting Sgt Lowe were an intervening act which broke the chain of causation.
3. I disagree. Firstly, the panic created by the OSG officers initiated the actions of Mx Williams and the chaos was the catalyst for Mx Williams' attack upon Sgt Lowe. In this way, the OSG officers initiated a domino effect, culminating in the injury to the plaintiff. Otherwise stated, the plaintiff would not have been injured but for the actions of the OSG officers. Mx Williams was arrested within the melee that had been created by the OSG officers.
4. I was also reminded by counsel for the defendant that the entire incident took place within a very short period of time. The reminder was intended to minimise the effect of the OSG intervention. It serves, more importantly, to strengthen the connection between the actions of the OSG officers and the arrest of Mx Williams.
5. Further the proximity of the moving and panicked crowd dominated the manner in which Sgt Livermore arrested Mx Williams. Sgt Livermore said that members of the crowd were assisting Mx Williams and were punching and kicking police officers. This was a scene, clearly evident in the video footage, of chaos, created (caused) by the actions of the OSG officers.
6. Secondly, proof of causation is not dependent upon there being only one causative act. There may be more than one. In Strong v Woolworths Limited [2012] HCA 5, the High Court said, from [20]: " [20] Under the statute, factual causation requires proof that the defendant's negligence was a necessary condition of the occurrence of the particular harm. A necessary condition is a condition that must be present for the occurrence of the harm. However, there may be more than one set of conditions necessary for the occurrence of particular harm and it follows that a defendant's negligent act or omission which is necessary to complete a set of conditions that are jointly sufficient to account for the occurrence of the harm will meet the test of factual causation …" (emphasis added) ……… [24] The Ipp Report distinguished the concept of "material contribution to harm" applied in Bonnington Castings from the use of the same expression merely to convey "that a person whose negligent conduct was a necessary condition of harm may be held liable for that harm even though some other person's conduct was also a necessary condition of that harm". Allsop P made the same point in Zanner v Zanner: '[T]he notion of cause at common law can incorporate 'materially contributed to' in a way which would satisfy the 'but for' test. Some factors which are only contributing factors can give a positive 'but for' answer.' His Honour illustrated the point by reference to two negligent drivers involved in a collision that is the result of the conduct of the first, who drives through the red light, and of the second, who is not paying attention. His Honour went on to observe: "However, material contributions that have been taken to be causes in the past (notwithstanding failure to pass the 'but for' test) such as in Bonnington Castings Ltd v Wardlaw [1956] AC 613 are taken up by s 5D(2) which, though referring to 'an exceptional case', is to be assessed 'in accordance with established principle'." [25] This observation is consistent with the discussion in the Ipp Report of cases in which an "evidentiary gap" precludes a finding of factual causation on a "but for" analysis and for which it was proposed that special provision should be made. The Ipp Report instanced two categories of such cases. The first category involves the cumulative operation of factors in the occurrence of the total harm in circumstances in which the contribution of each factor to that harm is unascertainable. Bonnington Castings was said to exemplify cases in this category….."
7. In March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506 at 509, Mason CJ said: " … at law, a person may be responsible for damage when his or her wrongful conduct is one of a number of conditions sufficient to produce that damage".
8. It is important to emphasise, both in relation to breach and causation, that the police moving through the crowd was for the purpose of preventing the lighting of the flag. It was not to arrest Mx Williams. The need for their arrest arose from their reaction to the police as they made their way towards Mr Dunn-Velasco. In other words, but for the police intervention no issue would have arisen with Mx Williams. In turn there would have been no need to apprehend Mx Williams and no confrontation would have occurred leading to the plaintiff being knocked to the ground.
9. Thus far I have found that the OSG officers owed the plaintiff a duty of care, that the duty was breached, and the breach caused the injury to the plaintiff. The plaintiff is thereby entitled to a verdict for the amount agreed upon by the parties.
10. It is not necessary to consider the balance of the allegations against the defendant, namely that the arrest was lawful under s 99 of LEPRA, and s 43A of the CLA. However, I will do so in case I am wrong on the liability stemming from the actions of the OSG officers.

Was the arrest of Mx Williams lawful?

1. Section 99(1) of LEPRA is as follows: Power of police officers to arrest without warrant (1) A police officer may, without a warrant, arrest a person if - (a) the police officer suspects on reasonable grounds that the person is committing or has committed an offence, and (b) the police officer is satisfied that the arrest is reasonably necessary for any one or more of the following reasons - (i) to stop the person committing or repeating the offence or committing another offence, (ii) to stop the person fleeing from a police officer or from the location of the offence, (iii) to enable inquiries to be made to establish the person's identity if it cannot be readily established or if the police officer suspects on reasonable grounds that identity information provided is false, (iv) to ensure that the person appears before a court in relation to the offence, (v) to obtain property in the possession of the person that is connected with the offence, (vi) to preserve evidence of the offence or prevent the fabrication of evidence, (vii) to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence, (viii) to protect the safety or welfare of any person (including the person arrested), (ix) because of the nature and seriousness of the offence.
2. The first point to note is that the onus is on the defendant to establish that the arrest was lawful. The defendant must prove that the arrest took place in compliance with s 99(1). It must follow that s 43A has no part to play in deciding if the arrest was lawful.
3. The second point is that arrest is a last resort. The then Attorney-General in the Second Reading Speech of the LEPRA Bill told Parliament: "I turn now to powers relating to arrest. Part 8 of the bill substantially re-enacts arrest provisions of the Crimes Act 1900 and codifies the common law. The provisions of part 8 reflect that arrest is a measure that is to be exercised only when necessary. An arrest should only be used as a last resort as it is the strongest measure that may be taken to secure an accused person's attendance at court. Clause 99, for example, clarifies that a police officer should not make an arrest unless it achieves the specified purposes, such as preventing the continuance of the offence. Failure to comply with this clause would not, of itself, invalidate the charge. Clauses 107 and 108 make it clear that nothing in the part affects the power of a police officer to exercise the discretion to commence proceedings for an offence other than by arresting the person, for example, by way of caution or summons or another alternative to arrest. Arrest is a measure of last resort. The part clarifies that police have the power to discontinue arrest at any time."
4. In Re Bolton; ex parte Beane (1987) 162 CLR 514 at 528, Deane J said: "The common law of Australia knows no lettre de cachet or executive warrant pursuant to which either citizen or alien can be deprived of his freedom by mere administrative decision or action. Any officer of the Commonwealth Executive who, without judicial warrant, purports to authorize or enforce the detention in custody of another person is acting lawfully only to the extent that his conduct is justified by clear statutory mandate. That being so, it is the plain duty of any such officer to satisfy himself that he is acting with the authority of the law in any case where, in the name of the Commonwealth, he directs that a person be taken and held in custody. The lawfulness of any such administrative direction, or of actions taken pursuant to it, may be challenged in the courts by the person affected: by application for a writ of habeas corpus where it is available or by reliance upon the constitutionally entrenched right to seek in this Court an injunction against an officer of the Commonwealth. It cannot be too strongly stressed that these basic matters are not the stuff of empty rhetoric. They are the very fabric of the freedom under the law which is the prima facie right of every citizen and alien in this land. They represent a bulwark against tyranny. They provide the general context of the present case."
5. Deane J's comments about a Commonwealth police officer are equally applicable to a State officer.
6. I accept, and it was conceded, that Sgt Livermore suspected on reasonable grounds that Mx Williams had committed an offence.
7. The defendant emphasised that it was enough to satisfy s 99(1)(b) if Sgt Livermore subjectively believed that the arrest was "reasonably necessary", for any of the reasons set out in the subsection. It was submitted that he had stated that he had such a belief, and no question was put to him to challenge that belief.
8. In his statement, at [15], Sgt Livermore stated: "Based upon what I had seen, I formed the view that Mr Williams had assaulted Constable Lowe by striking her on and that he should be arrested. I reacted immediately as I was concerned he was running away and would disappear into the crowd. I did not know his identity or address at the time, and I was concerned that he had assaulted a police officer in the middle of a large protest in which thousands of people were present and commit further offences if he was not apprehended."
9. The plaintiff submitted that: 1. Mx Williams, having knocked the camera out of Sgt Lowe's hand (whether by striking her hand or her arm), was walking away from the encounter. There was no reasonable basis to suspect that Mx Williams would commit another offence. 2. Mx Williams was not "fleeing" from police. Again, they were walking away. Mx Williams was not asked to halt and there is no reason to conclude that they would not have stopped had they been asked. 3. Mx Williams was not known to the police and their identity could obviously be more quickly obtained if immediately arrested. But that does not mean other inquiries could not have been made, and again, there is no reason why Mx Williams could not have been simply asked before the physical capture took place. 4. Sgt Livermore stated that he was annoyed by the actions of Mx Williams. This seems to have been his motivating factor especially when seen against his evidence that he did nothing about police officers being punched and kicked by the crowd.
10. I suspect that Sgt Livermore acted because of his personal perception of what had occurred. Nevertheless, I agree with the defendant that Sgt Livermore only needed to establish a subjective belief and that his belief, as expressed above, was not dismantled under cross-examination. He was certainly questioned about the alternatives available to him, including a verbal arrest, but I do not think there was a specific challenge to his asserted beliefs.
11. Consequently, I do not think I am able, despite my suspicions, to reject Sgt Livermore's evidence. It follows that a finding that the arrest was lawful is inevitable. I think this finding puts to rest the plaintiff's allegations of assault and battery against Sgt Livermore.

Did Sgt Livermore owe the plaintiff a duty of care when arresting Mx Williams?

1. The fact that the arrest was lawful does not necessarily exclude liability arising from the arrest if a duty of care was owed by Sgt Livermore and if that duty was breached. A police officer might well lawfully arrest a person but in doing so negligently cause harm to the person for which he could be liable.
2. The starting point here is whether Sgt Livermore owed the plaintiff a duty of care.
3. The defendant submitted that in order to gauge whether a duty of care existed on the part of Sgt Livermore I needed to examine the "salient features" of the factual circumstances. The defendant's written submissions concentrate on the features attached to crowd control as opposed to the arrest by Sgt Livermore.
4. The plaintiff made the point that the various authorities concerning the existence of a duty of care, in particular those where no duty was found, concerned factual situations which might be seen as unusual. They did not concern 'every day' police activity such as the arrest of a suspected offender. The duty of care was therefore not novel.
5. Nevertheless, submitted the plaintiff, the salient features identified by Allsop P in Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 76 NSWLR 649; [2009] NSWCA 258 favoured the existence of a duty of care. I do not propose to go through each salient feature listed by his Honour at [103]. I think features such as "the foreseeability of harm", the "nature of the harm alleged", the "degree of vulnerability of the plaintiff to harm", "knowledge (either actual or constructive) by the defendant that the conduct will cause harm to the plaintiff" and "a proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant" all speak for themselves as being evident in the current case.
6. One of the salient features is the "consistency with the terms, scope and purpose of any statute relevant to the existence of a duty". Sections 230 and 231 of LEPRA state: 230 Use of force generally by police officers It is lawful for a police officer exercising a function under this Act or any other Act or law in relation to an individual or a thing, and anyone helping the police officer, to use such force as is reasonably necessary to exercise the function. 231 Use of force in making an arrest A police officer or other person who exercises a power to arrest another person may use such force as is reasonably necessary to make the arrest or to prevent the escape of the person after arrest.
7. The "reasonably necessary" component required in the use of force and in the making of an arrest are consistent with a duty of care imposing a requirement not to act negligently. Negligence, at its essence, is a failure to act reasonably.
8. Accordingly, I think that Sgt Livermore owed the plaintiff, who must have been standing very close to him as a member of a crowd surrounding him, a duty of care which made him susceptible to an allegation of negligence in the manner in which he arrested Mx Williams. The defendant conceded that if the arrest of Mx Williams was carried out negligently then causation would logically follow.

Was the arrest of Mx Williams carried out negligently?

1. I think it was. The following reasons are relevant to both ss 5B and 43A of the CLA: 1. Sgt Livermore and Mx Williams were within an agitated crowd. 2. The agitation included the kicking and punching of police officers and necessarily a good deal of volatility in the actions of the police and the crowd. They were all moving around a great deal within a small space. 3. In order to effect the arrest, Sgt Livermore was required to grab, perhaps tackle, Mx Williams in a manner that included coming forward and capturing Mx Williams forcefully. The possibility of colliding with members of the crowd was obvious. 4. Before effecting the physical capture, Sgt Livermore made no attempt to halt the departure of Mx Williams. He did not call out to them and he did not attempt any physical contact of a less forceful nature such as a tap on the shoulder. 5. Sgt Livermore, perhaps as an expression of his annoyed state, simply came quickly across and forcefully grabbed Mx Williams in a manner that propelled them both to the ground and included the contact with the plaintiff.
2. In respect of s 5B, a risk of harm of colliding with persons when taking physical action within a small crowd is foreseeable and not insignificant. Precautions were available, including attempting a verbal arrest or even an arrest not involving a forceful grabbing. If persons are caught up in a physical altercation between others there is a probability that harm will occur and, as seen in this case, that the harm could well be serious. The burden of taking precautions was easily overcome by, at the very least, attempting other means of arrest or not arresting Mx Williams at all at that time.
3. As to s 43A I think Sgt Livermore's conduct was reckless because it ignored the strong potential of harm to persons close by, to a degree "that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of….. its power".
4. I refer once more to the Actions On document in support of my conclusion. Under the heading "Detection of an offence during a static gathering or mobile procession" the first guideline is that "[a]ny offences detected are to be brought to the attention of the Team/Field Supervisor via VKG". Mx Williams had committed the offence. Mx Williams was not on a rampage of attacking police officers. There was no need for "immediate action required to prevent a serious risk to public safety that is occurring or imminent".
5. Again, I think the Actions On document is a reflection of what might be expected of a statutory authority exercising a statutory power. The forceful arrest of Mx Williams within the crowd and without a need to prevent further offending, or stop current offending, amounted to a reckless exercise of the power of arrest.
6. As I have mentioned above, the defendant did not dispute a finding of causation if I found negligence in the manner of the arrest. It follows that the plaintiff is again entitled to a judgment in her favour derived from the negligence of Sgt Livermore.

Orders

1. I will delay the making of final orders until I have been informed of the amount of the quantum agreed by the parties. I will also give the parties the opportunity to make any submissions on special costs orders.
2. (Following the handing down of reasons, the Court was informed that quantum had been agreed in the sum of $800,000.00. The following final orders were made: 1. Verdict and judgment for the plaintiff in the sum of $800,000.00. 2. Subject to further order, the defendant is to pay the plaintiff's costs of the proceedings.)

Amendments 22 June 2023 - Changed 'his' to 'their' in 2 places in the third sentence. 22 June 2023 - Changed 'his' to 'their' at paragraph 105[4] Second paragraph of 113 changed to be a new paragraph [114] 22 June 2023 - Removed quotation marks from legislation cited at paragraphs [125], [135], [152] and [168] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 June 2023