Tort - Battery - Misfeasance in public office - False imprisonment - Malicious prosecution - Assessment of damages - Aggravated damages - Exemplary damages - Turns on own facts

Civil Liability Act 2002 s 3A, s 10A

Criminal Investigation Act 2006 (WA) s 16, s 27, s 128, s 128(3)

Police Act 1892 (WA) s 137

Second plaintiff's damages assessed at $1,024,822.11

First Plaintiff : Mr M D Cuerden SC and Mr T J Porter

Second Plaintiff : Mr M D Cuerden SC and Mr T J Porter

Fourth Defendant : State Solicitor for Western Australia

A v New South Wales (2007) 230 CLR 500

Adams v Kennedy [2000] NSWCA 152; (2000) 49 NSWLR 78

Ashley v Balchin [2006] NTSC 41; (2006) 161 A Crim R 497

Beckett v New South Wales [2013] HCA 17; (2013) 248 CLR 432

Beer v Duracraft Pty Ltd [2004] WASCA 192

Bell Group Ltd (in liq) v Westpac Banking Corp (No 9) [2008] WASC 239; (2008) 225 FLR 1

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Brocx v Mounsey [2010] WASCA 196

Bulsey v Queensland [2015] QCA 187

Calabro v The State of Western Australia [2012] WASC 418

Calabro v The State of Western Australia [No 3] [2014] WASC 84

Carmichael v McGowan [1967] WAR 11

Carter v Walker [2010] VSCA 340; (2010) 32 VR 1

Claremont Petroleum v Cummings [1992] FCA 446; (1992) 110 ALR 239

Cox v Robinson [2000] QCA 454; [2001] 2 Qd R 261

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E (A Child) v Staats (1994) 13 WAR 1

Elwin v Robinson [2014] WASCA 46

Farrington v Thomson [1959] VicRp 49; [1959] VR 286

Fazio v Fazio [2012] WASCA 72

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

George v Rockett [1990] HCA 26; (1990) 93 ALR 483

Hayward-Jackson v Walshaw [2012] WASC 107

Heanes v Herangi [2007] WASC 175; (2007) 175 A Crim R 175

Hewett v Medical Board of Western Australia [2004] WASCA 170

Houda v New South Wales [2005] NSWSC 1053; (2005) Aust Torts Rep 81-816

Innes v Weate [1984] TASRp 3; [1984] Tas R 14; 12 A Crim R 45

Ives v The State of Western Australia [2010] WASC 178

Johnson v Staskos [2015] WASCA 32

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Kerr v Minister for Health [2009] WASCA 32

King v Connor (Unreported, WASC, Library No 960444, 14 August 1996)

Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361

Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1

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Luetich v Walton [1960] WAR 109

Majindi v Northern Territory of Australia [2012] NTSC 25

Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638

McDonald v Coles Myer Ltd (1995) Aust Torts Report 81-361

McFadzean v Construction, Forestry, Mining & Energy Union [2007] VSCA 289; (2007) 20 VR 250

Medlin v State Government Insurance Commission (1995) 182 CLR 116

Mogridge v Foster [1999] WASCA 177

Montemaggiori v Wilson [2011] WASCA 177

Mustac v Medical Board of Western Australia [2007] WASCA 128

Myer Stores Ltd v Soo [1991] VicRp 97; [1991] 2 VR 597

Neat Holdings Pty Ltd v Karajan Holdings [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449

New South Wales v Delly [2007] NSWCA 303

New South Wales v Koumdjiev [2005] NSWCA 247; (2005) 63 NSWLR 353

New South Wales v Williamson [2011] NSWCA 183

New South Wales v Zreika [2012] NSWCA 37

Northern Territory of Australia v Mengel [1995] HCA 65; (1995) 185 CLR 307

Noye v Robbins [2010] WASCA 83

Nye v The State of New South Wales [2003] NSWSC 1212

Payne v Parker [1976] 1 NSWLR 191

Pollock v Wellington (1996) 15 WAR 1

Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164

R v Heaney [1992] VicRp 85; [1992] 2 VR 531

R v Howell [1982] QB 416

R v Skinner (1994) 99 Cr App R 212

Rice v Connolly [1966] 2 QB 414

Romito v Williams (Unreported, WASC, Library No 920649, 4 December 1992)

Savile v Roberts [1792] EngR 2096; (1698) 1 Ld Raym 374; (1698) 91 ER 1147

Shorey v PT Ltd [2003] HCA 27; (2003) 77 ALJR 1104; (2003) 197 ALR 410

Shum Yip Properties Development Ltd v Chatswood Investment and Development Co Pty Ltd [2002] NSWSC 13; (2002) 40 ACSR 619

State of New South Wales v Abed [2014] NSWCA 419; (2014) 246 A Crim R 549

State of New South Wales v Ibbett [2006] HCA 57; (2006) 229 CLR 638

State of New South Wales v Quirk [2012] NSWCA 216

State of New South Wales v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496

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Stohl Aviation v Electrum Finance Pty Ltd (1984) 5 FCR 187

Tomarchio v Pocock [2002] WASCA 156

Tradesman Technologies Pty Ltd v Ameduri [No 2] [2013] WASCA 252

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Young v Cooke [2013] NSWCA 79

Young v New South Wales; Young v Young (No 2) [2013] NSWSC 330

1 DAVIS J: In the early hours of the morning of 2 November 2008 outside the Esplanade Hotel in Fremantle, the plaintiffs, Ms Atoms and Dr Cunningham, were detained by the police, tasered, arrested and taken to the Fremantle Police Station. They were then charged with the offence of obstructing a public officer in the performance of the officer's functions contrary to s 172(2) of the Criminal Code. The charge against each plaintiff was dismissed after a trial in the Magistrates Court in April 2010.

2 In 2011 the plaintiffs commenced these proceedings as a result of the conduct of police officers on 2 November 2008 and subsequently. Arising from the plaintiffs' detention, arrest and tasering, they have claimed damages for battery and misfeasance in public office from the first three defendants (to whom I shall refer as Officer Traynor, Officer Clark and Mr Caldwell, as he has since retired from the WA Police). The plaintiffs also claim damages against the second defendant, Officer Clark, for malicious prosecution of the criminal charges, as he was the investigating officer who initiated and maintained the charges. The plaintiffs' claim against the fourth defendant, the State of Western Australia, is for damages for battery and false imprisonment.

3 All defendants deny liability, claiming that all police officers acted lawfully and fairly. Officer Clark has also counterclaimed for damages on the basis of two alleged assaults and battery by Ms Atoms on him.

4 For the reasons which are set out in this judgment, I am satisfied that all of the defendants are liable to the plaintiffs for damages. I dismiss the second defendant's (Officer Clark's) counterclaim.

5 As a result of the actions of the police, I am also satisfied that the second plaintiff, Ms Atoms, suffered a back injury and that both plaintiffs have suffered Post-Traumatic Stress Disorder ('PTSD'). Ms Atoms is, in my view, mentally fragile. Because of this there are some particular parts of these reasons for judgment which I have suppressed, dealing with those matters in a separate Schedule to these reasons, with publication of the Schedule limited to the parties and their legal advisers. I have also set out in the Schedule discussions and findings concerning other matters which I suppressed during the trial on the application of the parties.

1. Part One deals with the background to the claims, setting out a chronology of some of the facts which are not in dispute, and identifying the matters which are in dispute.
2. Part Two deals with the law and the issues relevant to liability in this case.
3. Part Three will deal with some general matters relating to the evidence, including findings I have made following my review of the CCTV footage from the Esplanade Hotel, footage from the lock-up at the Fremantle police station, and my general observations on the credibility of the parties.
4. Part Four will deal with my findings on issues relevant to liability.
5. Part Five will deal with my conclusions on liability, having regard to the pleaded claims by the plaintiffs.
6. Part Six will deal with the law and issues relevant to damages.
7. Part Seven will deal with the assessment of damages for the first plaintiff, Dr Cunningham.
8. Part Eight will deal with the assessment of damages for the second plaintiff, Ms Atoms.
9. Part Nine will deal with the second defendant's counterclaim, including my provisional assessment of his damages.

PART ONE - THE BACKGROUND TO THE CLAIMS AND THE MATTERS IN DISPUTE

7 The following summary is based on the evidence at trial, including documentary evidence, which is not in dispute. Where matters are in dispute, I have noted these.

8 As at 1 November 2008, Dr Cunningham, then aged 31, and Ms Atoms, then aged 37, were engaged. (They married in October 2013.)

9 Dr Cunningham is a lawyer, originally from NSW and he is now an associate professor of law at the University of Western Australia (UWA). He took up a position lecturing at the law school (Faculty of Law) at UWA in 2008.

10 Ms Atoms also came from NSW. In 2000 she obtained a Bachelor of Applied Science in leisure and health from the University of Sydney. She had, however, an interest in sustainability, having worked as a community engagement consultant in NSW for Sustainable Futures Australia. She worked there from 2003 until the end of 2007.

11 In January 2008 the plaintiffs came to Perth following Dr Cunningham's appointment at UWA. After finding a house in the Fremantle area, Dr Cunningham remained here while Ms Atoms returned to NSW to pack and make other arrangements, and also to visit her family, before moving permanently to WA to be with Dr Cunningham in about May 2008.

12 Ms Atoms enrolled in a sustainability development course at Murdoch University, and also obtained employment there, doing research for six months, then some guest lecturing and tutoring. Just before the night of 1 November 2008, Ms Atoms had an offer of employment as a community engagement officer at the Water Corporation and she was booked to undergo a drug and alcohol test for the purpose of that job, on 3 November 2008.

13 On the night of 1 November 2008 Dr Cunningham and Ms Atoms rode their bicycles into the centre of Fremantle for dinner at a pizza restaurant to celebrate Dr Cunningham's birthday and Ms Atoms' offer of employment from the Water Corporation. Apart from pizza, they each consumed one small bottle of beer, which Dr Cunningham described as 'craft' beer, with their meal.

14 During the meal Ms Atoms received a text message from someone they knew from NSW, Nathan Hicks. The text message said that he was in WA, attending a wedding in Fremantle, so it was arranged that Ms Atoms and Dr Cunningham would meet Mr Hicks for a drink at Little Creatures Brewery in Fremantle, which is on Mews Road, on the ocean side of a park known as the Esplanade. That park is bordered by Marine Terrace, Fremantle and a railway line.

15 While at Little Creatures, both Ms Atoms and Dr Cunningham had another beer (probably a full strength beer). Mr Hicks was also drinking.

16 After this, in the early hours of 2 November 2008, close to 1.00 am, the plaintiffs were walking back with Mr Hicks to where they had parked their bicycles in order to go home. They had crossed the Esplanade and Marine Terrace when they noticed three people - two young men and a young woman - in Essex Street, Fremantle, outside the Esplanade Hotel, which is on the corner of Marine Terrace and Essex Street.

17 These three people were strangers to the plaintiffs. They had been sitting on the low wall of a garden bed which ran along the outside of the hotel in Essex Street, when one of the men (Male 1) fell backwards into the bushes in the garden bed. The other male (Male 2) went to help him out and in doing so he was either pulled or fell into the garden bed, going in head first. Male 1 managed to get out but the other man remained in the garden bed.

18 The plaintiffs stopped to help. Ms Atoms approached first and stopped and stood on the footpath giving directions. Dr Cunningham tried, with another male (Male 3) who was one of two other males who also arrived at the scene, to pull Male 2 out of the garden bed. Male 3 fell forwards into the garden bed. Ms Atoms initially stood back with Mr Hicks on the footpath, but at one stage she moved in to grab the lower legs of Male 2. Another male, Male 4, then pushed Dr Cunningham into the garden bed. When this occurred, Ms Atoms let go of Male 2's legs and moved back, to stand 1 m - 2 m away on the footpath, with Mr Hicks, who stood to her right. Male 4 then also went into the garden bed. Mr Hicks and Ms Atoms stood on the footpath watching.

19 All of this was captured by closed circuit television (CCTV) footage taken from a camera outside the Esplanade Hotel (exhibit 7 - 'the CCTV footage').

20 The CCTV footage also captured the arrival of Officers Traynor and Clark.

21 Officer Traynor was aged 32 in November 2008. He started his career in England at the Royal Air Force Police, before joining the Metropolitan Police Force in London in the year 2000. After completing a two year probationary period he moved to the Greater Manchester Police, where he did general policing duties before joining specialist operations in a Tactical Aid Unit in 2005. He was in that position for two years before coming to Western Australia in July 2007. After completing a 12-week transitional course at the WA Police Academy he was posted to Fremantle Police Station as a first class constable.

22 Officer Clark was 27 years old in 2008. He had previously been employed for about five years as a police officer at the West Mercia Constabulary, and arrived in Western Australia in April 2008. After completing what he described as a three month 'direct entry accelerated learning course' at the WA Police Academy and qualifying as a first class constable, Officer Clark was also posted to the Fremantle Police Station.

23 Officers Traynor and Clark were on the same team at the Fremantle Police Station. On 1 November 2008 they were on duty together, on a shift which started at 5.00 pm and was due to finish at 3.00 am on 2 November 2008. Some time after 9.00 pm they started a patrol of the Fremantle central business district (CBD).

24 Both officers were wearing police uniforms, an accoutrement belt, which contain a firearm and a taser, and high visibility vests. These vests, also called load bearing vests, are bright yellow with fluorescent or reflective markings. In or on their vests they had handcuffs, pepper spray, a baton, a top-up magazine for the firearm, and a police radio (Traynor ts 875; Clark ts 1107). The handcuffs were rigid handcuffs, which have a steel bar between the two cuffs rather than a chain (Traynor ts 876). They drove a marked police vehicle, which Officer Traynor described as a mini bus. Other evidence indicates that this was a police van and I will refer to it as such.

25 Later that night, during their patrol, as they travelled down Essex Street they saw the group of people outside the Esplanade Hotel. Officer Clark was driving and he parked the police van on the left hand side of Essex Street, opposite the Hotel, facing Marine Terrace. Officers Clark and Traynor got out of the van and walked towards the group.

26 Officer Clark arrived at the footpath outside the Esplanade Hotel first, then Officer Traynor, who spoke to Ms Atoms. Officer Clark gave his attention to the other people who were in the area and were the real trouble makers (particularly Male 1 and Male 2). While Officer Clark was doing this, Officer Traynor kept talking to Ms Atoms. Dr Cunningham was able to get out of the garden bed and move along Essex Street away from Marine Terrace. Mr Hicks also moved away but returned to stand nearby. After attending to the other people, Officer Clark joined Ms Atoms and Officer Traynor.

27 There is no sound to the CCTV footage. There is a dispute about what was discussed or said between Ms Atoms and the two police officers. What is alleged against Ms Atoms is that she said 'Haven't you got anything better to fucking do. Go and arrest some proper criminals' ('the words'). Ms Atoms denies that she swore or said the words. The defendants allege that the words and the way in which they were spoken constituted disorderly behaviour.

28 The CCTV footage shows, however, that Ms Atoms tried to walk away on two occasions. On each occasion Officer Traynor grabbed her by the arm and detained her. Both officers gave evidence that Ms Atoms was asked for her name and address for the purpose of a move on notice, pursuant to s 27 of the Criminal Investigation Act 2006 (WA) ('CIA'), and that she did not give them these details. Ms Atoms' evidence was that she thought she was being asked to leave, and she was not asked for her name and address. There is thus a dispute about exactly what was said and done by the two officers and also Ms Atoms on each occasion before she was grabbed by Officer Traynor.

29 These two grabs give rise to Ms Atoms' claims of battery against the State (statement of claim pars 19, 25, 60(a) and 60(b) and 62). Ms Atoms also claims that in this conduct Officer Traynor engaged in misfeasance in public office (statement of claim pars 67 - 70).

30 Officer Traynor and the State claim that there was a lawful justification for detaining Ms Atoms for the purpose of issuing her with a move on notice.

31 Dr Cunningham then walked up to the two police officers and Ms Atoms. There is a dispute about what Dr Cunningham did and said. His evidence is that he identified himself as a solicitor and asked police whether Ms Atoms was under arrest or was to be given a move on notice. Officer Clark's evidence was that Dr Cunningham said nothing, but grabbed Ms Atoms. Officer Traynor in his evidence said nothing about Dr Cunningham grabbing Ms Atoms. Officer Traynor's evidence was that Dr Cunningham raised his arm towards his (Officer Traynor's) face.

32 What is shown in the CCTV footage is that Dr Cunningham was turned around by Officer Traynor (who let go of Ms Atoms as he did so) and Officer Clark then took hold of both Dr Cunningham's arms and put them behind his back. Officers Traynor and Clark then pushed Dr Cunningham from the footpath onto the road, Essex Street.

33 What occurs on the road on Essex Street is not recorded on CCTV. It is not disputed, however, that Dr Cunningham was pushed towards where the police van was parked. He had at least one handcuff on one of his arms. He was also kicked with what was called a 'knee strike'. Dr Cunningham has brought claims for battery against the State arising from Officers Traynor and Clark:

(a) grabbing his arms and pulling them behind his back causing him pain (statement of claim pars 28, 64(a) and 64(b) and 66);

(b) pushing him towards Essex Street while simultaneously holding his arms bent up his back causing him pain (statement of claim pars 31, 64(a) and 64(b) and 66);

(c) handcuffing him (statement of claim pars 34, 64(a) and 64(b) and 66);

(d) kicking him in the leg (the knee strikes - statement of claim pars 35, 64(a) and 64(b) and 66); and

(e) pushing him up against the police van (statement of claim pars 37, 64(a) and 64(b) and 66),

34 For each of these batteries, Dr Cunningham also claims against Officers Traynor and Clark for misfeasance in public office (statement of claim pars 75 - 78 (Traynor) and pars 79 - 82 (Clark)).

35 Officers Traynor and Clark and the State claim that there was a lawful justification for the arrest of Dr Cunningham because he was obstructing them from dealing with Ms Atoms, and that Officers Traynor and Clark were entitled to use the force which they did to effect the arrest and overcome Dr Cunningham's resistance to the arrest.

36 As Dr Cunningham was being pushed from the footpath and taken to the police van, Ms Atoms followed them. There is an issue about what she did as she followed them. Her evidence was that she had placed her hands on Dr Cunningham's back. Officer Clark's evidence was that she had grabbed hold of him (Officer Clark). This forms the basis of the first of two alleged assaults by Ms Atoms on Officer Clark as set out in his counterclaim. This is disputed by Ms Atoms.

37 The CCTV footage does show, however, that Officer Clark pushed Ms Atoms away. This forms the basis of a further claim for battery by Ms Atoms against the State (statement of claim par 33, 60 (c) and 62). (There is no claim for misfeasance in public office against Officer Clark in relation to this battery).

38 While Officer Clark admits pushing Ms Atoms, he says he pushed her away to defend himself from her and to overcome her resistance to his arrest of Dr Cunningham (second defendant's defence pars 23 and 42).

39 It is important to record here the difference in sizes of the plaintiffs and these two police officers. Ms Atoms is 5 foot 7 inches tall but a very slim and slightly built woman, weighing at the time (and now) between 50 kg and 53kg. She wears size 6 clothing which is a very small adult size. Dr Cunningham is 5 foot 11 inches (178 cm) tall with a weight at the time (and now) of 70 kg. Officer Traynor is also 5 foot 11 inches tall but at the time he weighed between 85 kg to 90 kg. Officer Clark is 5 foot 10 inches (175 cm) tall and weighed 73 kg.

40 After pushing Ms Atoms away, Officer Clark returned to help Officer Traynor with Dr Cunningham. Together the two officers pushed Dr Cunningham off the footpath onto the road.

41 The above summary is necessarily brief. I discuss the CCTV footage in more detail in Part Three of these reasons.

42 Officer Traynor made a call for assistance, or back up. This call and various officers' radio responses to it were recorded and those recordings, date and time stamped, were produced in evidence (exhibit 92). The first call was made at 00:57:42. Two minutes and 48 seconds later (35 seconds into a recording which began at 00:59:55, which on my calculation is at 01:00:30), Officer Traynor radioed again to say 'We have enough units here, you can cancel any further. Thanks very much'.

43 The responses recorded in exhibit 92 were those from other police vehicles, who made contact by the vehicles' police radio. There was evidence of a response by other officers in the Fremantle area who were not in vehicles, but on foot patrol. Two of these were the third defendant, Mr Caldwell, and another police officer who gave evidence in this trial, Senior Constable Ralph Stevenson ('Officer Stevenson').

44 Upon his arrival at the scene in Essex Street, Mr Caldwell tasered both plaintiffs. The police policy about the use of force, which included tasering, was contained in the Western Australia Police Manuals (exhibit 66, which I will refer to as the Manual). This set out a definition of 'Tasers' as a hand held remote stun system. As also set out in this definition, and confirmed from other evidence in this trial, a taser can be used in two modes. The first, known as the open mode, related to when a taser is fired from a distance and utilised the deployment of two metal probes connected by insulated wire to a power handle. The second, known as 'drive stun mode' is carried out by physically placing the power handle against a person's body. Contact with the probes or the power handle causes a temporary uncontrollable contraction of the muscle tissue, resulting in physical incapacitation of the person. This is known as Neuro Muscular Incapacitation (exhibit 6, page 6).

45 Mr Caldwell used the drive stun mode to taser Ms Atoms and Dr Cunningham. While it is admitted that Mr Caldwell tasered each of the plaintiffs, there is a dispute as to the circumstances of the tasering in each case and whether it was justified, particularly having regard to the police policy about the use of force as set out in the Manual.

46 The tasering gives rise to each of the plaintiffs' claims for battery against the State (in relation to Ms Atoms, statement of claim pars 38 - 42, 60 and 62; in relation to Dr Cunningham, statement of claim pars 43, 64(c) and 66) and a claim against Mr Caldwell for misfeasance in public office (Ms Atoms, statement of claim pars 71 - 73; Dr Cunningham, statement of claim pars 83 - 86). Ms Atoms has in fact claimed that she was tasered on two occasions by Mr Caldwell - the first while being held by two unidentified police officers and the second while she was on the ground. That is a matter also in dispute.

47 At some point while events were occurring on the road, someone on the balcony of one of the rooms of the Esplanade Hotel overlooking Essex Street yelled out something about police brutality or violence and the fact that he was filming or recording (Dr Cunningham ts 618; Officer Clark ts 1267, Officer Stevenson ts 1416).

48 After the tasering, the plaintiffs were handcuffed, picked up from the road surface and placed in the back of the police van. This gives rise to each of the plaintiffs' claims for battery against the State for the conduct of the unknown police officers who did this (in relation to Ms Atoms, statement of claim pars 46, 60(g) and 62; in relation to Dr Cunningham, statement of claim pars 46 and 66).

49 The two plaintiffs were then taken to the Fremantle police station where they were processed. There is CCTV footage taken from the lock-up at the Fremantle police station ('the lock-up footage'), including sound (exhibit 5). The time when that recording begins, as noted on the footage itself is 01:10:00.

50 Dr Cunningham was brought into the lock-up at 01:11:05. His handcuffs were removed and he was placed into a holding cell. Ms Atoms was brought in at 01:21:31.

51 A custody management record for Dr Cunningham (exhibit 1, tab 9) shows that he was first registered in custody and admitted to the lock-up on 2 November 2008 at 01:24:14. Another and different type of record for Ms Atoms (exhibit 1, tab 10) records her registration and admission to the lock-up occurring at 01:58:37. The difference in these two records and the lock-up footage has not been explained to me. It may be that the time on each of the records is the time when the entry was made, and not the exact time of the occurrence.

52 While the plaintiffs were being dealt with at the lock-up, Officer Stevenson, with other police officers, went to the Esplanade Hotel to find the person who had yelled out something about police brutality and to obtain any recording taken by that person. That person was identified as Mark Brophy. Officer Stevenson seized Mr Brophy's camera and returned to the Fremantle Police Station. After showing the camera screen to Officer Traynor in the lock-up (details of which I discuss later in these reasons), Officer Stevenson left the lock-up and went back to the Esplanade Hotel to return the camera to Mr Brophy. Officer Stevenson recorded in his police notebook that he returned the camera at 02:15 (exhibit 4).

53 Officers Traynor and Clark made entries in their police notebooks. The entry in each case was brief and neither officer made any further note.

54 The entry made by Officer Traynor (exhibit 1 tab 5) read:

0045: Mobile patrol with I/C 13348 CLARK ESSEX ST, OUTSIDE ESPLANADE HOTEL. VF107. Observed a group of 4 to 5 people outside side of hotel messing around in bushes. could hear laughing exited vehicle approached group could hear shouting also. on close inspection of the group I noticed 3 males in the bushes - for rest of notes see statement as original note.

55 The entry made by Officer Clark (exhibit 1 tab 4) read:

01.30: Arrest of ATOMS/CUNNINGHAM for obstruct police See statement for original notes.

56 Officers Traynor and Clark prepared written statements, which they have said constitute their original notes, but these statements were not prepared until 4 November 2008.

57 Officer Traynor also made the following entry in the Station's P13 Occurrence Book (exhibit 1 tab 6 and exhibit 91):

01.00: I/C TRAYNOR and I/C CLARK arrested violent prisoners ATOMS and CUNNINGHAM Handcuffs used for both prisoners I/C CLARK INJURED LEFT ELBOW. I/C TRAYNOR injured left arm.

58 Both Ms Atoms and Dr Cunningham were charged with the offence of obstructing a public officer in the performance of the officer's functions contrary to s 172(2) of the Criminal Code.

59 The custody management record for Dr Cunningham (exhibit 1, tab 9) records that he was charged at 01:48:10, granted bail at 01:54:42 and he gave a bail undertaking at 01:57:32. The record for Ms Atoms (exhibit 1, tab 10) shows that she was charged at 02:00:03, that bail was granted at 02:01:13 and gave a bail undertaking at 02:05:41. The lock-up footage shows that they were charged at the same time, and their bail was also dealt with at the same time, although Ms Atoms signed her bail papers first. The bail papers for each of the plaintiffs have been admitted into evidence (exhibit 1, tabs 12 and 13), but the time recorded on the Certificate as to Undertaking is illegible. From my review of the lock-up footage, however, Ms Atoms signed her bail papers at 02:07:35 (as recorded on that footage) and Dr Cunningham signed his at 02:09:15.

60 The two plaintiffs were, however, released at different times. The custody management record for Dr Cunningham records that he had his property returned and he was released on bail at 02:11. The record for Ms Atoms shows that she was released at 02:08:53. However, the lock-up footage shows that Ms Atoms left the lock-up at 02:09:51, while Dr Cunningham left at 02:13:18.

61 Ms Atoms and Dr Cunningham claim damages for the State for false imprisonment:

(a) In the case of Ms Atoms, for two periods (statement of claim pars 87 and 88):

(i) from when she was grabbed for the second time by Officer Traynor until he let her go in order to arrest Dr Cunningham; and

(ii) from the time she was placed in the police van to when she was released on bail.

(b) In the case of Dr Cunningham, for the whole of the period from the time when he was first taken hold of on the footpath in Essex Street until his release on bail (statement of claim pars 89 and 90).

62 Officers Clark and Traynor finished their shift at the Fremantle Police Station at 3.00 am.

63 Mr Caldwell, who remained on duty until 7.00 am, prepared a Use of Force Report in relation to the tasering (exhibit 1, tab 11) as he was required to do by the police policy set out in the Manual.

64 The plaintiffs took photographs of the marks on their bodies following the events of the night (exhibit 17). The photographs they took in the early hours of Sunday, 2 November 2008 showed red marks on Dr Cunningham's wrists (exhibit 17.3), red marks across Ms Atoms' left hip (exhibit 17.5), a graze on each of Ms Atoms' knees, the worst graze being on her right knee (exhibit 17.6), and two small marks in the lower lumbar section of Ms Atoms' back (exhibit 17.21). The marks on Dr Cunningham's wrists and forearms (front and back) were still noticeable some days later on 5 November 2008 (exhibits 17.10, 17.16 and 17.18) and 8 November 2008 (exhibits 17.14 and 17.15).

65 Later on the morning of Sunday 2 November 2008, Ms Atoms and Dr Cunningham attended the Fremantle Police Station to speak to the Sergeant in charge the night before, Sergeant Leahy, in an unsuccessful attempt to get the police to apologise and withdraw the charges.

66 Two days later, on the morning of 4 November 2008 at the time of 5.30 am Officer Traynor sent a draft of his witness statement to Officer Clark by email (exhibit 88). The email read:

Have a read of this please pal. What ya think? I need anything else? Take anything out?

67 Also on 4 November 2008, Officer Clark prepared a prosecution brief which he sent to his supervising officer, Sergeant Leahy. A prosecution notice for each of the plaintiffs was then produced and dated 4 November 2008 (exhibit 1, tab 14 and 15).

68 Officer Clark prepared a statement of material facts for the prosecution of the criminal charges (exhibit 1, tab 16). He also sent this to Sergeant Leahy, who made some slight amendments, and both Officer Clark and Sergeant Leahy signed that statement of material facts. It is dated 4 November 2008 and states as follows (referring to Ms Atoms as 'Atom' [sic] and Dr Cunningham as 'Cunningham'):

At about 12.45 am on Sunday 2nd November 2008, Police were conducting patrols along Essex Street, Fremantle when they observed a number of people shouting, swearing and jumping into bushes that were situated out the front of The Esplanade Hotel and as a result they stopped to speak to the group.

Both accused were standing outside of The Esplanade Hotel, laughing and cheering at the people jumping into the bushes (Atom was observed on CCTV giving another person a 'high five' when a male person fell into the bushes. Cunningham was also observed on CCTV falling into the bushes (a number of times).

Police asked the group to desist with their behaviour and leave the area.

Whilst Police were speaking to the group requesting they leave the immediate area, the accused 1 (Atom) has become argumentative towards Police stating 'Haven't you got anything better to fucking do, just go and arrest some proper criminals'.

Police advised Atom she will be issued with a move on notice in which [sic] she replied 'You can't do that I live in Fremantle' and proceeded to walk off.

Police have attempted to detain Atom in order to obtain her personal details allowing them to complete the move on notice.

Accused 2 (Cunningham) has approached Police and taken hold of Atoms left arm in attempt to pull her away from Police.

Police asked Cunningham to move away in which [sic] he ignored and continued to pull Atom away from Police.

Police then advised Cunningham he was under arrest. As Police attempted to handcuff him, he has resisted by tensing his arms and pulled away from the officers, and has continued to resist in the same manner.

Atom has started pulling at Constable Clark's arm in an attempt to free Cunningham. Atom was warned a number of times to get back before Constable Clark has had to push her away.

As Police endeavoured to place Cunningham into the back of the rear security van, Atom has again taken hold of Constable Clark's arm in attempt to loosen his grip.

Atom has then placed both of her arms around Constable Clark's neck which caused him to drop his handcuffs. Atom has picked up the handcuffs and proceeded to throw them across the road and then jumped on his back.

Police have requested immediate urgent back up in which several officers arrived and observed Atom on Constable Clark's back and Cunningham resisting against Police.

As a result of Atom's and Cunningham's demeanour, Police have deployed their TASER in attempted to [sic] subdue both accused.

Both were placed under arrest and conveyed to the Fremantle Police Station were [sic] present charges were preferred.

69 The emphasis in italics is mine. Based on the whole of the evidence, I have found that those italicised passages are erroneous and that some of them were fabricated by Officer Clark (as to which see [795] - [797] below).

70 Officer Clark also prepared his own witness statement for the purpose of the criminal charges. Officers Clark and Traynor then witnessed each other's written statements. The witness statements bear the date of 4 November 2008. Officer Clark's statement was recorded as signed and witnessed at 23:00 (exhibit 89) and Officer Traynor's statement was recorded as signed and witnessed at 23:30 (exhibit 86). There was no change in Officer Traynor's statement from the earlier draft he had sent by email to Officer Clark. (I discuss these witness statements later in my reasons (see [335] - [359] below).

71 The trial of the criminal charges against Ms Atoms and Dr Cunningham was originally listed to take place on 20 July 2009, but it was adjourned because there were issues raised as to the adequacy of disclosure by the prosecution (exhibit 93). The charges were eventually heard in the Magistrates Court on 29 April 2010 and dismissed.

72 The circumstances of the hearing and dismissal of the charges, as set out in the statement of claim pars 57 and 58 and either specifically admitted or not disputed by the defendants, is that the prosecutor at the trial, who was not Officer Clark:

(a) stated that he would call two witnesses, being Officers Clark and Traynor, and play the CCTV footage;

(b) agreed that the hearing would take about two days;

(c) called Officer Clark who gave evidence and was cross examined;

(e) after the evidence of Officer Clark and the playing of the CCTV footage, elected not to call any further evidence in the case; and

(f) after counsel for Dr Cunningham and Ms Atoms had made a no case submission, made no submissions opposing the application.

73 It is also admitted or not disputed by the defendants that:

(a) the prosecution of both Dr Cunningham and Ms Atoms was determined with them each being acquitted of the charges against them; and

(b) Dr Cunningham and Ms Atoms sought costs of $15,000. The prosecutor made no submissions in opposition to that application.

74 It is fair to say from the matters I have set out in [72] - [73] that the prosecution against the plaintiffs collapsed. Each of the plaintiffs claim damages from Officer Clark for malicious prosecution.

75 The Civil Liability Act 2002 does not apply to the plaintiffs' claims. Section 3A of the Civil Liability Act provides that pt 1A (dealing with the tests for liability for harm caused by the fault of a person), pt 1B (dealing with mental harm) and pt 2 (dealing with constraints on awards for damages) other than s 10A, do not apply to damages relating to personal injury caused by an unlawful intentional act that is done with an intention to cause personal injury to a person.

76 The provisions of s 137 of the Police Act 1892 (WA) have influenced what claims the plaintiffs have made against each of the defendants. Pursuant to s 137(3), an action in tort does not lie against a police officer for anything that he has done, without corruption or malice, while performing or purporting to perform the functions of his office. Pursuant to s 137(5)(a) if a police officer does commit a tort without corruption or malice, the State is effectively made vicariously liable for that tort. Accordingly in this case, the State is not liable for any act done with malice, while the first, second and third defendants can only be personally liable for an act done with malice.

77 For the purpose of this case it is necessary to set out the law relating to the use of move on notices, police powers of arrest, the use of force by police (including the police policy at the relevant time relating to the use of tasers), the law relating to the offences of disorderly behaviour and obstructing a public officer, as well as the law relating to the torts of battery, false imprisonment and misfeasance in public office, the meaning of 'malice' in s 137 of the Police Act and the law relating to the tort of malicious prosecution.

78 A police officer has the power to order a person who is in a public place to leave it, or a part of it, as specified by the officer. Section 27 of the CIA, as it applied on 2 November 2008, provided:

1. Suspects and others may be ordered to move on

(1) A police officer may order a person who is in a public place, or in a vehicle used for public transport, to leave it, or a part of it specified by the officer, if the officer reasonably suspects that the person -

(i) that involves the use of violence against a person;

(ii) that will cause a person to use violence against another person; or

(iii) that will cause a person to fear violence will be used by a person against another person;

(ii) cause a person to use violence against another person; or

(iii) cause a person to fear violence will be used by a person against another person;

(d) is hindering, obstructing or preventing any lawful activity that is being, or is about to be, carried out by another person;

(f) has just committed or is committing an offence.

(2) A police officer giving an order under subsection (1) may in addition do either or both of the following -

(a) order the person to go beyond a reasonable distance from the place, or the part of the place, set by the officer;

(b) order the person to obey the order or orders for a reasonable period set by the officer; but the period must not be longer than 24 hours.

(3) When giving a person an order under subsection (1), a police officer must take into account the likely effect of the order on the person, including but not limited to the effect on the person's access to the places where he or she usually resides, shops and works, and to transport, health, education or other essential services.

(4) For the purpose of giving an order under this section to a person whose personal details (as that term is defined in the Criminal Investigation (Identifying People) Act 2002 section 16) are unknown to the officer, a police officer may request the person to give the officer any or all of the person's personal details.

(5) If a request is made under subsection (4), the Criminal Investigation (Identifying People) Act 2002 section 16 applies to and in relation to the request in the same way as it applies to a request made under subsection (2) of that section.

(6) Any order given under this section must be in writing on a prescribed form.

(7) A person is not in breach of the move on order if the person is taking reasonable steps to comply with the order and move out of the area.

(8) This section does not prevent a police officer from charging a person with an offence without having exercised a power in this section.

79 The evidence I heard in this trial was that officers are issued with a book containing move on notices in the prescribed form referred to in s 27(6), although Officer Traynor's and Clark's evidence differed. Officer Traynor stated that he was issued with a move on notice book which was kept in the pocket of his vest, although he added that if stock of the books ran out, officers might go out in a pair with just one book (ts 926). Officer Clark gave evidence that move on notice books were not personal issue and officers have one book per vehicle (ts 1111).

80 A breach of the peace occurs when an act 'either actually harms a person, or in his presence his property, or is likely to cause such harm, or which puts someone in fear of such harm being done': R v Howell [1982] QB 416, 426; applied in Tomarchio v Pocock [2002] WASCA 156 [54].

81 It is not in dispute that in the circumstances of this case there was no 'serious offence' as defined within the meaning of s 128 of the CIA, and the applicable power of arrest is that contained in s 128(3). This provided (as at 2 November 2008):

(3) A police officer or a public officer may arrest a person for an offence that is not a serious offence if the officer reasonably suspects -

(a) that the person has committed, is committing, or is just about to commit, the offence; and

(i) it will not be possible, in accordance with law, to obtain and verify the person's name and other personal details; or

(ii) the person will continue or repeat the offence; or

(iv) the person will endanger another person's safety or property; or

(v) the person will interfere with witnesses or otherwise obstruct the course of justice; or

(vi) the person will conceal or disturb a thing relevant to the offence; or

82 Section 128 of the CIA replaces the common law. An arrest is lawful notwithstanding a failure to inform the person at the time of the arrest of the cause (i.e. reason) for the arrest: Johnson v Staskos [2015] WASCA 32 [11] - [15].

83 A move on notice is only justifiable if the police officer 'reasonably suspects' that the person is doing or is likely to do one of the acts set out in CIA s 27(1). Similarly a police officer can only arrest a person for an offence under CIA s 128(3) if that officer 'reasonably suspects' that the person has committed, is committing, or is just about to commit the offence and one of the matters set out in s 128(3)(b) will occur if the person is not arrested.

84 For the purposes of the CIA, a person reasonably suspects something at a relevant time if he or she personally has grounds at the time for suspecting the thing and those grounds (even if they are subsequently found to be false or non-existent), when judged objectively, are reasonable: Johnson v Staskos [26].

85 Reasonable grounds for a state of mind, including suspicion, requires the existence of facts which are sufficient to induce that state of mind in a reasonable person: George v Rockett [1990] HCA 26; (1990) 93 ALR 483, 488.

86 As was put by the Victorian Court of Appeal in R v Heaney [1992] VicRp 85; [1992] 2 VR 531, 548 (Phillips CJ, Crockett J and O'Bryan J) referring to Walsh v Loughnan [1991] VicRp 75; [1991] 2 VR 351:

Vincent J observed in his ruling: 'Although the creation of a suspicion requires a lesser factual basis than the creation of a belief, it must, nonetheless, be built upon some factual foundation.'

In our opinion, this observation is plainly correct. The section is not concerned with a state of mind founded upon speculation or 'mere idle wondering' ... but is concerned with a state of mind arrived upon consideration of known facts out of which an apprehension that a person might possibly have committed an offence is created.

87 As at 2 November 2008 the use of force by police was canvassed by the CIA, the Criminal Code.

(1) When exercising a power in this Act, a person may use any force against any person or thing that it is reasonably necessary to use in the circumstances -

(b) to overcome any resistance to exercising the power that is offered, or that the person exercising the power reasonably suspects will be offered, by any person.

(2) If under subsection (1) a person uses force, the force may be such as causes damage to the property of another person.

(3) Any use of force under subsection (1) against a person is subject to The Criminal Code Chapter XXVI.

89 The relevant sections of the Criminal Code are s 231 and s 260:

1. Force used in executing process or in arrest

(1) It is lawful for a person who is engaged in the lawful execution of any sentence, process, or warrant, or in making any arrest, and for any person lawfully assisting him, to use such force as may be reasonably necessary to overcome any force used in resisting such execution or arrest.

...

260. Excessive force is unlawful

In any case in which the use of force by one person to another is lawful, the use of more force than is justified by law under the circumstances is unlawful.

90 The effect of CIA s 16 and the Code s 231 and s 260 is that if a police officer uses more force than is reasonably required in the circumstances to effect an arrest, that use of force is unlawful: Elwin v Robinson [2014] WASCA 46 [60] (Mazza JA; Pullin & Newnes JA agreeing).

91 As to what force is reasonably required, this requires an objective evaluation of all the surrounding circumstances, remembering that the purpose of an arrest is not only a step in bringing an alleged offender to justice, it is also part of a police officer's general duty to preserve order. It also requires taking into account the reality that where there is a situation of sudden violence and mayhem or a public disturbance such as a street fight, an officer may need to act quickly and decisively and may have no time to make a fine judgment about what force is necessary: Elwin v Robinson [61] - [62].

92 Care should be taken to judge the conduct of police 'by reference to the pressure of events and the agony of the moment', not by reference to hindsight: Woodley v Boyd [2001] NSWCA 35 [37]. However, as stated in Elwin v Robinson [63]:

This is not to say that police officers are unaccountable and can act with impunity when arresting persons alleged to be involved in public disturbances. Acknowledging the difficulties that police officers face in such circumstances, the actions of police are subject to the scrutiny and judgments of the courts against the yardstick of what was reasonably necessary in all the circumstances of the particular case.

93 As to the use of tasers by police, the Manual (exhibit 66) provided (relevantly):

• Reflect WAPOL's commitment to providing operational sworn officers with less lethal force options to manage violent or dangerous persons.
• Identify the circumstances under which the Taser may be issued and deployed.

...

Definitions

'Tasers' - are a hand held remote stun system, utilising the deployment of two metal probes connected by insulated wire to a power handle, or by physically placing the power handle against a persons body. Contact with the probes or the power handle causes a temporary uncontrollable contract of the muscle tissue, resulting in physical incapacitation of the person. This is known as Neuro Muscular incapacitation.

Γ Γ Γ Γ Γ

FR-1.6.1 Responsibilities

Responsibilities of Members

A member issued with a Taser is accountable for the weapon at all times and will ensure that:

• When a Taser is deployed operationally an entry shall be made in the Station/Unit Occurrence Book (P13) recording the quantity of cartridges expended the serial number of the cartridge/s and nature of the circumstances warranting the expenditure.
• When a Taser is deployed operationally, a 'Use of Force' report in the approved format shall be submitted.
• The Taser and associated equipment is used in a manner consistent with the approved training and policy in relation to the Use of Force.

...

FR-1.6.4 Use of Taser

The Taser is an alternate force option designed to incapacitate a person from a safe distance.

The use of the Taser should be reasonable and appropriate in the circumstances and members will be accountable for any excessive use of force.

THE TASER SHALL ONLY BE USED TO PREVENT INJURY TO ANY PERSON AND SHALL NOT BE USED AS A COMPLIANCE TOOL.

Consideration must be given to the nature of the incident, the location of the person of interest and any overt susceptibilities of the person of interest.

Taser will cause incapacitation to the person of interest that is best described as causing all the muscles within the body to engage violently and immediately. Consequently the body will stiffen and the person of interest if standing may fall to the ground. Accordingly an appreciation of the surrounds should be made prior to deployment to minimise the potential for injury to persons of interest when incapacitation occurs.

...

FR-1.6.5 Warning Prior to Use

Unless it is impractical to do so in the circumstances, members are to issue a verbal warning, 'Taser, Taser' prior to discharging the Taser at another person.

Γ Γ Γ Γ Γ

...

FR-1.6.7 Aftercare

First aid, if required, should be administered to the subject as soon as practicable after the person has been incapacitated. Medical assistance should be provided if necessary.

As soon as is practically possible after a Taser is deployed, medical assistance shall be provided by a Medical Practitioner in circumstances where the subject:

Does not recover within a reasonable time; or

Asks for medical attention; or

is reasonably suspected of suffering from a medical condition.

...

FR-1.6.8 Reporting and procedures for retention and disposal of cartridges

When a Taser is used against a person, the member involved must:

• Ensure that a supervisor is notified as soon as possible; and

• Complete and submit a 'Use of Force' report in the prescribed manner.

94 The evidence I heard in this case was that in the course of their training, police officers were taught that the use of the words 'Taser, Taser' was to warn nearby police officers, rather than to warn the person who was going to be tasered (Mr Caldwell ts 1396 - 1397; Officer Stevenson ts 1438; Detective Ryan Rawlins ts 1459).

95 The offence of disorderly behaviour, (formerly contained in s 54 of the Police Act and referred to as disorderly conduct), is contained in the Criminal Code s 74A which provides, relevantly:

(a) to use insulting, offensive or threatening language; and

(b) to behave in an insulting, offensive or threatening manner.

(a) in a public place or in the sight or hearing of any person who is in a public place; or

is guilty of an offence and is liable to a fine of $6 000.

96 To be disorderly, the conduct or behaviour must have caused or been likely to cause a serious disturbance or annoyance to others present. It must disturb the 'order' of the particular public place at that particular time: Melser v Police [1967] NZLR 437; Heanes v Herangi [2007] WASC 175; (2007) 175 A Crim R 175 [176].

97 All the surrounding circumstances will have a bearing on the issue of whether the conduct or behaviour is disorderly: Mogridge v Foster [1999] WASCA 177 [7].

98 The conduct must seriously offend recognised and appropriate standards of behaviour. The conduct must also be serious enough to warrant the interference of the criminal law. This is tested objectively: Melser v Police; Romito v Williams (Unreported, WASC, Library No 920649, 4 December 1992) (Ipp J); King v Connor (Unreported, WASC, Library No 960444, 14 August 1996) (Steytler J); Mogridge v Foster [5] and [6] (McKechnie J).

99 Where the disorderly conduct or behaviour is the use of swear words or obscene language, the question as to whether the words were obscene, in the sense that they offended current standards of decency, is to be determined in the light of the standards of the community, not a particular witness. The ascertainment of the contemporary standard of propriety is entirely a matter for the tribunal itself and no evidence on it is admissible: E (A Child) v Staats (1994) 13 WAR 1, 5.

100 The offence of obstructing a public officer is contained in the Criminal Code s 172:

obstruct includes to prevent, to hinder and to resist.

(2) A person who obstructs a public officer, or a person lawfully assisting a public officer, in the performance of the officer's functions is guilty of a crime and is liable to imprisonment for 3 years.

101 The offence requires proof of three elements, namely:

(a) the person who was obstructed was a public officer;

(b) at the time of the commission of the offence the public officer was acting in the performance of his or her functions; and

(c) the conduct complained of obstructed, prevented, hindered or resisted the public officer in the performance of his or her functions.

102 Section 172(1) defines 'obstruct' as including _'_to prevent, to hinder and to resist'. The definition of 'public officer' in s 1 of the Criminal Code includes a police officer. The word 'function' is not defined by the Code, but there is a definition in the Interpretation Act 1984 (WA), s 5:

'function' includes powers, duties, responsibilities, authorities and jurisdictions

103 Whether a public officer was acting in the performance of his or her functions needs to be determined having regard to the nature of the public office held and the particular function or functions which the officer was attempting to perform at the time in question: Hayward-Jackson v Walshaw [2012] WASC 107 [22] (EM Heenan J).

104 Where the public officer is a police officer, it is part of his or her obligations and duties to take all steps which appear necessary for keeping the peace, for preventing crime or for protecting property from criminal injury. The powers and obligations of police include the duty to detect crime and to bring an offender to justice: Rice v Connolly [1966] 2 QB 414, 419 (Lord Parker CJ); Hayward-Jackson v Walshaw.

105 In Innes v Weate [1984] TASRp 3; [1984] Tas R 14; 12 A Crim R 45, 51 (applied in Hayward-Jackson v Walshaw) Cosgrove J stated:

There are two difficulties in this concept of duty. One is that it cannot be stated in other than general terms - the range of circumstances in which the duty to act may arise is too wide, too various, and too difficult to anticipate for the compilation of an exhaustive list. The other is that the existence and nature of the duty often depends upon a reasonable assessment by the constable of any given situation. That assessment may be examined in the courts and held to be right or wrong. These difficulties cannot be overcome. It is important that a constable should have a wide discretion to act swiftly and decisively; it is equally important that the exercise of that discretion should be subject to scrutiny and control so that he should not too easily or officiously clothe himself with the powers of the State and by doing so affect the rights and duties of other citizens.

106 If a police officer uses more force than is reasonably required in the circumstances to effect an arrest, that use of force is unlawful, the police officer will not be performing a function of his or her office and an offence against s 172 of the Criminal Code cannot be made out: Elwin v Robinson [60].

107 Similarly, if a police officer has a power which is predicated on a condition (such as the requirement of an officer to form a relevant view or belief), an offence against s 172 could not be made out. If the condition is not established, it could not be said that the police officer was performing a function of his or her office: Cox v Robinson [2000] QCA 454; [2001] 2 Qd R 261 [5].

108 As to what amounts to an obstruction, it has been held that 'to obstruct' means to make it more difficult for police officers to carry out their duty: Carmichael v McGowan [1967] WAR 11, 13; Hayward-Jackson v Walshaw [20] - [21] (EM Heenan J); Elwin v Robinson [54].

109 Battery requires a direct act of the defendant which causes contact with the body of the plaintiff: Carter v Walker [2010] VSCA 340; (2010) 32 VR 1 [215] - [216]. The elements of the tort of battery are that:

(a) there is a voluntary act by the defendant (voluntary in that the act is directed by the defendant's conscious mind);

(b) the act immediately or directly caused physical contact with the plaintiff; and

(c) such contact was offensive, in that it was likely to cause injury or affront.

110 The onus is on the plaintiff to prove that there has been some offensive physical contact by the defendant, but the tort does not require proof that the defendant intended the plaintiff any harm, or that the plaintiff suffered harm in fact: Carter v Walker [215].

111 Where a battery is proved in the context of the actions of police, the onus is on the police to establish that they acted with lawful justification (ie their actions were authorised or excused by law): Bulsey v Queensland [2015] QCA 187 [4] and [46].

112 If reasonable force is used in the course of effecting a lawful arrest, that can provide a legal justification for what would otherwise be a battery. However, an unlawful arrest is not a tort separate to battery: New South Wales v Williamson [2011] NSWCA 183 [24] (Campbell JA).

113 The tort of false imprisonment consists in the act of arresting or imprisoning any person without lawful justification, or otherwise preventing him, without lawful justification, from exercising his right of leaving the place in which he is: McDonald v Coles Myer Ltd (1995) Aust Torts Report 81-361, 62,690.

114 The elements of the tort of false imprisonment are:

(a) the defendant intentionally caused the total restraint of the plaintiff's liberty; and

(b) the restraint of the plaintiff's liberty was not lawfully justified.

115 It has been said that one of the 'pillars of liberty' is that every imprisonment is prima facie unlawful, and it is for a person directing imprisonment to justify his act: Bulsey v Queensland [4] (Fraser JA); see also Darcy v New South Wales [2011] NSWCA 413 [141] - [146]. As stated by Fullagar J in Trobridge v Hardy [1955] HCA 68; (1955) 94 CLR 147, 152:

The mere interference with the plaintiff's person and liberty constituted prima facie a grave infringement of the most elementary and important of all common law rights. It was for the defendant to justify, if he could, by reference to his office or otherwise.

116 The plaintiff is required to prove the fact or occurrence of imprisonment or restraint. To constitute the tort there need be no imprisonment in the sense of incarceration or being locked up. It is sufficient that the person in question has been deprived of his or her personal liberty for any time, however short: McDonald v Coles Myer Ltd; Houda v New South Wales [2005] NSWSC 1053; (2005) Aust Torts Rep 81-816 [349].

117 The action depends upon proof that were it not for the defendant's conduct, the plaintiff would not have submitted to or yielded to the restraint: McFadzean v Construction, Forestry, Mining & Energy Union [2007] VSCA 289; (2007) 20 VR 250 [41] - [48] and [52]; Young v Cooke [2013] NSWCA 79 [11]. The restraint must be upon a person's liberty to come and go and must be against his or her will: Darcy v New South Wales [144].

118 Imprisonment or restraint can occur where a police officer, without actually laying hands on or formally arresting the plaintiff, gives the plaintiff to understand that he or she should not go out of the presence or control of the officers: Myer Stores Ltd v Soo [1991] VicRp 97; [1991] 2 VR 597, 599, 625; see also Watson v Marshall & Cade [1971] HCA 33; (1971) 124 CLR 621 [6].

119 Once the imprisonment or restraint is proved, the onus shifts to the defendant to show that such imprisonment or restraint was justified or lawful: Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612 [97]; Darcy v New South Wales [143].

120 False imprisonment begins from the moment when the plaintiff is restrained until released on bail: Calabro v The State of Western Australia [2012] WASC 418 [42] - [45] (Beech J).

121 A cause of action for false imprisonment may be established by a plaintiff without needing to establish malice or, for that matter, establishing any improper motive or purpose on the part of an alleged defendant tortfeasor: Calabro v The State of Western Australia [No 3] [2014] WASC 84 [46] (Kenneth Martin J).

122 The tort of misfeasance in public office concerns an exercise of authority by a public officer other than in an honest attempt to perform the functions of his or her office: Northern Territory of Australia v Mengel [1995] HCA 65; (1995) 185 CLR 307, 357 (Brennan J) (Mengel).

123 The tort may apply to police officers in the exercise of their powers: Farrington v Thomson [1959] VicRp 49; [1959] VR 286.

124 The elements of the tort, as set out by Deane J in Mengel (370) are that:

(d) the act must be done in the purported discharge of the public officer's public duties; and

(e) the act must cause loss or harm to the plaintiff.

125 The onus of proof of all of these elements is on the plaintiff.

126 To prove malice the plaintiff must demonstrate the public officer's intention to cause harm, or that he was recklessly indifferent to harm, or that he knowingly acted in excess of his power: Mengel (347 - 348) (Mason CJ, Dawson, Toohey, Gaudron, McHugh JJ).

The meaning of 'malice' in the Police Act s 137

127 In Luetich v Walton [1960] WAR 109 the defendant police officer attended on a boundary dispute between neighbours, one of whom was the plaintiff. The officer called at the plaintiff's home but the plaintiff refused to discuss the matter with the defendant. The defendant threatened to obtain a warrant for the plaintiff's arrest. The defendant then went to the disputed boundary where the plaintiff's neighbour had started to erect a fence. The plaintiff then came out and a dispute ensued, during which it was alleged by the defendant that the plaintiff had thrown a fence post at him. The defendant then went back to the police station and did obtain a warrant for the arrest of the plaintiff on a charge of disorderly conduct. The defendant returned to the plaintiff's house, arrested him, took him back to the police station and formally charged him. The plaintiff was then released on bail. Subsequently a charge of assault was added. The plaintiff was convicted on the charge of assault, but the disorderly conduct charge was dismissed because the conduct had not occurred in a public place.

128 The plaintiff in Luetich v Walton succeeded in his claim for damages against the defendant for malicious prosecution and wrongful arrest and imprisonment on the disorderly conduct charge. It was argued by the defendant that he was not liable because there had been no 'direct proof of malice' (the requirement which then applied under the Police Act). Wolff CJ held (112) that the wrongful act of the defendant in arresting the plaintiff for disorderly conduct was the result of pique, and thus malice was proved.

129 In Trobridge v Hardy Fullagar J observed (155):

With regard to what is meant by 'malice' in the statute, I think that his Honour correctly held that it was used in the sense, familiar in cases of malicious prosecution, of personal spleen or ill-will, or some motive other than that of bringing a wrongdoer to justice.

130 Le Miere J in Ives v The State of Western Australia [2010] WASC 178 [27] - [28] reviewed the meaning of 'malice' in the Police Act s 137(5) in the context of the liability of the State and concluded ([28]):

The idea of malice is an element in certain forms of liability such as nuisance, malicious prosecution, malicious falsehood and defamation. At the heart of the notion of malice is the abuse of a power for some improper motive or purpose. In general, police officers have common law and statutory powers to enable them to carry out their duty of preserving the peace and detecting crime. It is not necessary to explore the outer limits of the meaning of 'without corruption or malice' in s 137(5) of the Act. At the heart of the notion of malice in s 137(5) of the Act is the notion of the abuse of power or acting for an improper motive or purpose.

131 Following two High Court authorities, A v New South Wales (2007) 230 CLR 500 [1] and Beckett v New South Wales [2013] HCA 17; (2013) 248 CLR 432 [4], to succeed in claim of malicious prosecution a plaintiff must establish that:

(a) proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated or maintained against the plaintiff by the defendant;

(b) the proceedings terminated in favour of the plaintiff;

(c) the defendant in initiating or maintaining the proceedings acted maliciously; and

(d) the defendant acted without reasonable and probable cause.

132 It has been suggested in a number of authorities, including Noye v Robbins [2010] WASCA 83 [61], and the parties in their submissions in this case also suggested, that there is a fifth element, namely that the plaintiff suffered damage within at least one of the three specific heads identified by Holt CJ in Savile v Roberts [1792] EngR 2096; (1698) 1 Ld Raym 374; (1698) 91 ER 1147, namely damage to the plaintiff's fame or reputation; damage to the plaintiff's person; and damage to the plaintiff's property.

133 However, damage has not been identified as an element in the High Court decisions of A v NSW and Beckett v NSW. Indeed in the joint judgment of Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ in A v NSW [1], their Honours specifically referred to 'the four elements of the tort of malicious prosecution', which are those in [131] above. These four elements were confirmed by French CJ, Hayne, Crennan, Kiefel and Bell JJ in their joint judgment in Beckett v NSW [4] and [49]. Accordingly, following the High Court, I do not consider that proof that the plaintiff has suffered damage is an element of this tort.

134 In relation to the first element, the plaintiff must show that the defendant was the 'prosecutor'. The defendant must play an active role in the conduct of the proceedings, and anyone responsible for initiating or maintaining the prosecution can be regarded as a prosecutor: Fleming, John G 'The Law of Torts' 10th ed [27.30]; A v NSW [34]; Young v New South Wales; Young v Young (No 2) [2013] NSWSC 330 [141].

135 On the second element, a plaintiff does not have to prove his or her innocence in order to succeed in a claim for malicious prosecution, even if the prosecution was terminated other than by an acquittal, such as by the entry of a nolle prosequi by the Attorney-General or a direction by the Director of Public Prosecutions under a statutory power that no further proceedings be taken against the plaintiff. The plaintiff has no control over the termination of the proceedings in any of these ways and in those circumstances it would be unjust to deprive him or her of the ability to recover for the tort. What the plaintiff requires for his action is not a judicial determination of his innocence, but merely the absence of any judicial determination of his guilt: Beckett v NSW [49] - [54].

136 Of course, the plaintiff must still prove the absence of reasonable and probable cause (the fourth element) before he or she can recover in a civil action: Beckett v NSW [51].

137 In relation to the element of malice (the third element), the plaintiff must establish that the sole or dominant purpose of the defendant was an improper purpose, ie a purpose other than the proper invocation of the criminal law: A v NSW [55], [91], [92]. Examples of improper purposes include spite or ill will, to punish the accused, and to stop a civil action brought by the accused against the prosecutor. However it is not possible to identify exhaustively when the processes of the criminal law may be improperly invoked: A v NSW [92].

138 In a claim for malicious prosecution the plaintiff does not have to prove the actual purpose or motivation for the prosecution. As stated in Trobridge v Hardy (164) in the context of a jury trial (and applied in State of New South Wales v Abed [2014] NSWCA 419; (2014) 246 A Crim R 549 [151]):

If they think it more probable than not that the prosecutor lacked a belief in the guilt of the accused, they are justified in taking the next step of concluding that the prosecution was not instituted from a genuine desire to serve the ends of justice and is not to be satisfactorily explained save on the supposition that the prosecutor was actuated by an indirect or improper motive. If so, they may legitimately make a finding of malice, even though they may not feel able to say precisely what the malicious motive was.

139 Proof of malice will often be a matter of inference, but 'it is proof that is required, not conjecture or suspicion': A v NSW [93].

140 The element that the defendant acted without reasonable and probable cause may be established in either or both of two ways: the defendant did not 'honestly believe' the case that was instituted or maintained, or the defendant had no sufficient basis for so believing: A v NSW [77].

141 In most cases, the allegation that the defendant did not 'honestly believe' the case will require consideration of what the defendant knew, believed or concluded about some aspect of the material that he or she had available when deciding whether to prosecute or maintain the prosecution: A v NSW [78].

142 The element of the absence of reasonable and probable cause is often intimately connected with the element of malice, and it is not easy to place the relevant factual matrix into neat compartments: Noye v Robbins [123]. Proof of particular facts may supply evidence of both the third and fourth elements. Thus, for example, if the plaintiff demonstrates that a prosecution was launched on obviously insufficient material, the insufficiency of the material may support an inference of malice as well as demonstrate the absence of reasonable and probable cause: A v NSW [90].

143 For all of the torts the subject of this action, and because of the gravity of the allegations made by each of the parties, the standard of proof in relation to anything on which either the plaintiffs or the defendants bear the onus of proof is the civil standard, but applying Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 361 - 363: see Ruddock v Taylor [97]; New South Wales v Koumdjiev [2005] NSWCA 247; (2005) 63 NSWLR 353 [61] - [63]; Nye v The State of New South Wales [2003] NSWSC 1212 [9].

144 That requires me to be actually persuaded as to the probability of a fact being true: Briginshaw (360 - 361) (Dixon J). It is important, however, when applying Briginshaw to bear in mind what the High Court stated in Neat Holdings Pty Ltd v Karajan Holdings [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449 [2] (Mason CJ, Brennan, Deane and Gaudron JJ) (endnotes and citations omitted):

... The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. ...

145 Having regard to the pleadings, the evidence and submissions of the parties at trial (and with some minor changes to the issues which I discussed with counsel for the parties during trial, and the addition of issues five, six and 10), I consider that the following issues relevant to liability are:

1. what happened before Ms Atoms was grabbed by Officer Traynor on the footpath and was she thereby detained?
2. was the detention of Ms Atoms lawful?
3. what happened before the arrest of Dr Cunningham?
4. was the arrest of Dr Cunningham lawful?
5. was there an excessive use of force by Officers Traynor and Clark against Dr Cunningham?
6. why did Officer Clark push Ms Atoms and was this justified?
7. was there any justification for tasering Ms Atoms?
8. was Ms Atoms' arrest lawful?
9. was there any justification for tasering Dr Cunningham?
10. how were Ms Atoms and Dr Cunningham handled after their tasering until the time they were placed in the police van?
11. was the imprisonment of Ms Atoms at any time until released on bail lawful, and therefore justified?
12. was the imprisonment of Dr Cunningham at any time until released on bail lawful and therefore justified?
13. was any of the individual conduct of the first, second or third defendants malicious?
14. was the prosecution of the criminal charges against Ms Atoms and Dr Cunningham malicious in the sense of being:

146 I am required to make findings on the ultimate issues on the balance of probabilities to the Briginshaw standard, based on the whole of the evidence, both direct and circumstantial. Where in this judgment I state that 'I am 'satisfied' of or that 'I find' certain matters, or set out my findings, those are findings I have made to the Briginshaw standard.

147 I am able to draw inferences from facts. Inferences 'from actual facts that are proved are just as much part of the evidence as those facts themselves': Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, 309 (Menzies J); see also Fazio v Fazio [2012] WASCA 72 [46] - [50] (Pullin JA).

148 In relation to the evidence from the witnesses, I may accept part, but not all, of a witness's version of events. In other words I may reject part of the evidence of a witness and accept other parts. I may also work out for myself a view of the case which does not exactly represent what either party has said: Williams v Smith [1960] HCA 22; (1960) 103 CLR 539, 545 (Dixon CJ, McTiernan, Fullagar, Kitto & Menzies JJ).

149 The assessment of the credibility or reliability of evidence is a multi-factorial task. The appearance and demeanour of witnesses are relevant factors, but there is a danger in too readily drawing conclusions about truthfulness and reliability solely or mainly from such considerations. As was stated in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [31], applied in Tradesman Technologies Pty Ltd v Ameduri [No 2] [2013] WASCA 252 [43], I should limit my reliance on the appearances of witnesses and reason my conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events.

The CCTV footage taken outside the Esplanade Hotel (the CCTV footage)

150 The best contemporary evidence I have is the CCTV footage taken on the footpath outside the Esplanade Hotel.

151 This lacks sound and I therefore need to have regard to the oral evidence. However, it is important to objectively assess what can be seen on the CCTV footage before I assess the oral evidence from all parties.

152 Counsel for the first, second and third defendants provided me with an aide memoire (MFI 98) with counsel's observations of the CCTV footage. This has obviously been prepared with the defendants' oral evidence in mind. From my own viewing of the CCTV footage, I am unable to agree with all of counsel's observations, and I discuss in this section those with which I am unable to agree.

153 Throughout the aide memoire, particularly towards the latter stages of the document, counsel for the first, second and third defendants has also made comments such as 'Cunningham continues to resist. He does not want to go with police' (at 01:06:30) and 'Atoms continues to interfere and obstruct police' (at 01:06:34). These are not observations of fact. They are conclusions or submissions which I will deal with in due course.

154 Following are my findings from the CCTV footage. The times are those shown on the footage. Where convenient I will pause to interpose subsidiary or circumstantial findings which inform my later substantive findings in particular ways.

155 The camera view is looking down the footpath on Essex Street in the direction of South Terrace. The top of the vision is the South Terrace end of the footpath. To the right of the vision is Essex Street and on the top right corner it is possible to see a number of parked cars facing the footpath. The bottom of the vision is the Marine Terrace end of the footpath. The left of the vision shows The Esplanade Hotel building. The garden bed runs along the wall of that building underneath a veranda, and a low garden wall runs along the edge of the veranda.

156 At 01:00:51 the two young men and the young woman who I have mentioned in [16] came into view. Male 1 had short dark hair and wore dark pants and a white shirt. Male 2 had lighter shoulder length hair, and wore light pants and a lighter shirt (almost white and possibly with a striped pattern on it). The young woman was wearing a dress. (I should record that in MFI 98 and counsel's submissions she referred to these two males in reverse order ie Male 1 in MFI 98 has been referred to as Male 2; Male 2 has been referred to as Male 1. I do not mean to be confusing, but I have found it easier to identify these males in the way I have in these reasons.)

157 Male 1 sat on the garden wall. The other two stood for a while in front of him, talking to him and then the young woman sat next to him. Male 2 continued to stand and wander in front of Male 1 and the young woman. Male 1 then started to fall backwards and fell into the bushes of the garden bed. Male 2 went to help him out and in doing so he was either pulled in or fell into the bushes, going in head first.

158 At 01:03:03 Male 1 managed to get out of the bushes and sit onto the wall but Male 2 remained in the garden bed. Throughout all of this the young woman had been sitting on the garden bed wall. She then stood up and picked up her handbag and shoes (which were off her feet). Male 1 stood up as well and offered a hand to Male 2 in the garden. The young woman also went over to help. Both of them tried to get Male 2 out of the garden bed, unsuccessfully (with the young woman herself going into the bushes at one stage).

159 At 01:04:16 the young woman walked to the front of the garden bed (closest to the camera) to put down her bag and shoes.

160 Six seconds later (at 01:04:24) Ms Atoms came into view, from Marine Terrace, moving away from the camera. She was wearing a black skirt, long sleeved dark top (which Ms Atoms later explained was a shirt and jumper) and her long dark hair was loose. It is possible to see that Ms Atoms was talking as she walked towards Male 1 and the young woman who were standing on the footpath. Ms Atoms was gesticulating with her hands.

161 Following Ms Atoms were Dr Cunningham, who was wearing light coloured trousers and a dark top, Nathan Hicks (who is recognisable because of his dreadlocks), and two other men both wearing dark pants and dark shirts. One of these men had a bald patch and I will refer to him as Male 3. The other man had short dark hair and I will refer to him as Male 4.

162 The following occurred between 01:04:28 and 01:04:45. Dr Cunningham and Male 3 both went to help to get Male 2 out of the garden bed. At 01:04:41 Male 3 fell forwards into the garden bed (he might have lost balance, or he may have been pulled in. It is difficult to tell). Ms Atoms initially stood back on the footpath with Mr Hicks and Male 4, but she then moved in and grabbed one of the lower legs of Male 2 who was still in the garden bed. Dr Cunningham had the other leg and together Dr Cunningham and Ms Atoms tried to pull Male 2 out. By this stage the young woman had also stepped in. She stood close to the edge of the garden bed, closer to the bottom of the vision, while Male 1 remained further away, on the footpath, watching.

163 At 01:04:46 Male 4 moved in and pushed Dr Cunningham into the garden bed. Male 4 then went into the garden bed himself. Ms Atoms then let go of Male 2's legs and moved back.

164 At 01:04:52 Ms Atoms can be seen standing 1 m - 2 m away from the garden bed. Mr Hicks was still on the footpath and at that stage standing to her right. Male 1, who had been watching from the footpath, then moved back towards the garden bed, seemingly to help, just next to the young woman. By this stage she had her back to the camera with one of her legs in the garden bed and the other out of the garden bed on the footpath (in other words, straddling the garden wall).

165 Between 01:04:54 and 01:05:01 Male 4 got out of the garden bed, swung around the veranda post and went back into the garden bed. Ms Atoms moved forward but did not touch anyone, although I saw her kick something at the edge of the garden bed with her foot. She then moved back. Mr Hicks remained in his position away from the garden bed on the footpath but from his body language and the way he threw his upper body back, I infer that he was laughing at this point - presumably at the antics of Male 4. Male 1 was still close to the garden bed and with the young woman (who was still straddling the garden bed wall), appeared to be trying to get people out.

166 At 01:05:02 and 01:05:03 Male 2 and Male 4 managed to remove themselves from the garden bed. As Male 2 climbed out of the garden bed, Male 1 turned to Ms Atoms and, with his back to the camera, sought to give her a 'high-five' (he put his hand up, palm open, towards her). Ms Atoms responded so that Male 1 and Ms Atoms gave each other a high five. (I note here that Counsel for the first, second and third defendants did not quibble with my observation during the trial that Male 1 went up to Ms Atoms to give her the high-five: ts 1668. In other words, Male 1 instigated the high-five.)

167 At this moment Officer Clark arrived from the right hand side of the vision, from Essex Street. He walked up and stood in the middle of the footpath, side on to the camera and looking at the garden bed. He stood right next to Ms Atoms, but did not look at her. His attention was directed at Male 2 and what was going on in the garden bed. He appeared not to be concerned with Ms Atoms at all.

168 At 01:05:04 the young woman stepped out of the garden bed and stood, with her back to the camera, on the footpath close to the edge of the garden bed, closer to the bottom of the vision. She was watching Males 1 and 2 just up the footpath from her. Male 1 and Male 2 faced one another, side on to the camera, with Male 1 standing between Male 2 and Officer Clark. Male 2 then moved towards Ms Atoms, who was standing in the middle of the footpath to the right of Officer Clark, but further towards the top of the vision. Officer Clark was simply watching what was going on. By this time Mr Hicks had moved away from the action down the footpath towards South Terrace (the top of the vision), with Male 4 beside him. Both stood and looked at what was going on.

169 At 01:05:05 Officer Traynor arrived at the footpath, from the right hand side of the vision. He walked directly up to Ms Atoms (who had Male 2 facing her). Officer Clark by this stage had directed his attention to Male 2, who then turned away from Ms Atoms. In fact I saw Officer Clark put his arm up and touch the right arm of Male 2. Officer Traynor stood side on to the camera on the right-hand (Essex Street) side of the footpath.

170 Between 01:05:09 and 01:05:12, Male 1 grabbed hold of Male 2 and pulled him away. Officer Clark talked to them both and began to follow them as they turned to walk away in the direction of Marine Terrace (ie down the footpath in the direction of the camera).

171 While this was happening, at 01:05:11 Ms Atoms turned towards Officer Traynor who remained where he was, and he appeared to speak to her. He stood about a metre away from her, but faced the garden bed. Ms Atoms stood facing the camera, but with her head down looking towards Officer Traynor and she pointed with her hands towards the garden bed.

172 While this was going on Male 4 had moved to Ms Atoms' right-hand side (between Ms Atoms and the garden bed) and Mr Hicks remained further away towards South Terrace.

173 Between 01:05:12 and 01:05:13 Males 1 and 2 continued to walk down towards Marine Terrace with Officer Clark following them. It looked to me like Officer Clark was escorting them away from the area. While this was occurring Ms Atoms and Officer Traynor were still talking, but they were looking together in the direction of Officer Clark, i.e. in the direction of the camera. Ms Atoms had her arms folded, although I could see one of her hands move (in other words, she was making a gesture with her hand). She appeared to be composed and calm.

174 Mr Hicks remained in his position further up the footpath. At this stage Male 4 was standing next to Ms Atoms looking at the garden bed. The young woman stood next to the garden bed closer to the camera (at the bottom of the vision) and Male 2 turned to look at her while being escorted away by Male 1, with Officer Clark following them.

175 At 01:05:14 to 01:05:15 Male 4 signalled towards the garden bed with what I would describe as a hand beckoning motion, presumably to Male 3, who was still in the garden. Officer Traynor stepped in front of Ms Atoms and turned away from her (facing the camera) to a position where he could observe Officer Clark and Males 1 and 2. So, at this time Officer Traynor had his back to Ms Atoms. He then turned to look to his right towards the garden bed. He had his hands in his pockets. Ms Atoms stood behind and to the right of Officer Traynor, with her arms folded. Both Officer Traynor and Ms Atoms appeared to be composed.

176 At 01:05:16, behind what was happening on the footpath, Dr Cunningham emerged from the garden bed on the top left hand corner of the vision. Mr Hicks, who at that time was still standing some distance away on the footpath (towards the top of the vision) was looking at Dr Cunningham.

177 While this was happening Officer Traynor, with his hands still in his pockets, looked quickly to his right and then turned back to Ms Atoms, moving his right foot back. He stood side on to Ms Atoms, with his chest facing the garden bed, but his head turned to the right towards Ms Atoms. Ms Atoms stood on the footpath, still with her arms folded.

178 Male 4 was still in the same position on the footpath. The young woman was picking up her bag and shoes. Males 1 and 2 were still heading off camera. Officer Clark then turned to his left and looked in the direction of Officer Traynor and Ms Atoms.

179 At 01:05:17 to 01:05:18 Officer Clark began to walk back towards Officer Traynor, passing the young woman who was still collecting her things. Ms Atoms was still standing in the same position with her arms folded. Officer Traynor still had his hands in his pockets and had taken another step back and stood next to Ms Atoms, looking at her. Ms Atoms then moved a little closer to Officer Traynor and inclined her head towards him. They appeared to be conversing. Both still appeared composed.

180 Meanwhile, Dr Cunningham had walked up Essex Street away from these events. Mr Hicks stood looking at Dr Cunningham. Male 4 remained standing on the footpath in the same position, to the left of Ms Atoms and Officer Traynor. The young woman who had accompanied Males 1 and 2 was still collecting her bag and shoes.

181 At 01:05:19 both Ms Atoms and Officer Traynor were facing each other talking. Ms Atoms still had her arms folded but took a step to her right and turned to face more towards Officer Traynor. Officer Clark was still heading towards them both. At this point he was about 1.5 m away from them. Dr Cunningham was still making his way up the footpath towards South Terrace. Mr Hicks had turned towards him and followed him, away from Ms Atoms and the two police officers.

182 Male 4 had turned towards the garden bed and was pointing to Male 3 who was still in the garden bed, but had his legs over the wall.

183 Males 1 and 2 were at the bottom of the vision. Male 2 looked like he wanted to return but Male 1 was pushing him away.

184 The following happened between 01:05:20 and 01:05:25. Male 2, followed by Male 1, walked back up the footpath to Male 4 who pointed to the ground. Male 4 then picked something up and handed it to Male 2. Officer Clark arrived at where Ms Atoms and Officer Traynor were standing. Officer Clark watched what passed between Male 2 and Male 4, while Ms Atoms and Officer Traynor were in conversation. While this conversation went on, Officer Clark did not appear to pay any attention to either of them. Officer Clark's attention was on the other males (particularly Males 2 and 4). Officer Traynor pointed with his hand towards the direction of the garden bed and nodded his head while talking to Ms Atoms. Ms Atoms still had her arms folded, but she moved her right forearm and put her hand up towards her face in an unremarkable fashion.

185 Meanwhile, Dr Cunningham was further up the footpath standing near a blue car parked on Essex Street at the top right hand side of the vision. Mr Hicks had stopped and turned to look back towards Ms Atoms.

186 Between 01:05:25 and 01:05:29 Male 4 was still having an exchange with Males 1 and 2. The young woman was standing looking at them. Officer Clark was still directing his attention to and looking at these males and in fact, appeared to me to be conversing with them. Officer Clark appeared to be unconcerned with Male 3, who was still in the garden bed.

187 Ms Atoms and Officer Traynor were still conversing on the right-hand side of the footpath. Officer Traynor turned to look to his left down the footpath (towards the bottom of the vision).

188 Another three people - a man in a suit jacket, a man in a shirt and another young woman - walked from the bottom of the vision along the footpath, towards South Terrace. They passed between where Ms Atoms and Officer Traynor stood and the edge of the footpath. They displayed no reaction as they walked past. That is to say, they did not look at Ms Atoms and Officer Traynor and minded their own business. From this I infer that from their perspective, nothing noteworthy was occurring.

189 Dr Cunningham was still standing near the blue car, but Mr Hicks began to move back towards Ms Atoms and Officer Traynor.

190 Between 01:05:30 and 01:05:32, Officer Clark turned his full attention to Males 1 and 2 and the young woman who was with them. Male 1 reached up with his right arm and gave Officer Clark a friendly pat on the back. While this was happening Ms Atoms and Officer Traynor were still conversing, Ms Atoms still with her arms folded.

191 I pause here to point out, once again, that the situation was composed and appeared calm. The two police officers were relaxed about the situation in the garden bed and there were no repercussions for the real culprits who had been in the garden bed (i.e. Males 1, 2 and 3, or Dr Cunningham either for that matter).

192 At 01:05:33 Male 3 eventually emerged from the garden bed (30 seconds after the police arrived) and joined Male 4. Although Mr Hicks had previously started to move towards Ms Atoms and Officer Traynor, he was at this stage some distance away. Ms Atoms and Officer Traynor were still conversing. Officer Clark was turned away from them, still looking at Males 1 and 2.

193 Between 01:05:34 and 01:05:41 Males 3 and 4, facing the camera and very close to Ms Atoms, could be seen saying goodbye to Males 1 and 2 and the young woman. Male 4 waved to Males 1 and 2 who waved in return. Males 3 and 4 turned and left, heading towards South Terrace. While Males 1 and 2 were still waving, Officer Clark turned back to join Ms Atoms and Officer Traynor. Males 1 and 2 then turned to leave. From my review of the CCTV footage it was not until 01:05:37 that Officer Clark gave his full attention to Officer Traynor and Ms Atoms.

194 During this period Ms Atoms was still talking to Officer Traynor. By this time she was standing side on to the camera with her back to the garden bed, with Officer Traynor in the same position, side on with his back towards Essex Street.

195 Initially at 01:05:34 Officer Traynor still had his hands in his pockets and Ms Atoms still had her arms folded. But at 01:05:36, her body language changed. First she gesticulated with her left arm, bending it at the elbow and moving it towards her face and holding the left palm up. At 01:05:37 (which coincides with my observation of when Officer Clark gave his full attention to her and Officer Traynor) she had unfolded both of her forearms and, with her elbows in, held both hands up and out (with open palms facing upwards) in a questioning way, while she talked. She appeared to be talking in what I would describe as an earnest way.

196 At 01:05:42 to 01:05:46 both officers looked downwards. I could not see what Officer Traynor did, because this was obscured by Officer Clark. However Officer Clark, who was standing with his back to the camera to the left of Officer Traynor, looked down and then moved his left hand up to the side of his vest, then to his left trouser pocket. Ms Atoms looked at Officer Traynor and the two of them were still talking.

197 By this stage (01:05:46) no-one else was nearby, although at the top of the vision Males 3 and 4 can be seen walking away and at the bottom right hand side of the vision, the top of the heads of Male 2 and the young woman can be seen. Mr Hicks was still some distance away at the top left hand side of the vision.

198 Between 01:05:46 to 01:05:49 Ms Atoms looked down, then took a step back, turned to her left to face away from the camera (towards South Terrace) and went to walk away. Officer Traynor grabbed her right upper arm (just above the elbow) with his right arm and pulled her back. Ms Atoms then turned back to face both Officer Traynor and Officer Clark, who had stepped closer towards Ms Atoms (at 01:05:48). By now Mr Hicks was heading down the footpath towards them.

199 Between 01:05:50 and 01:05:52, Officer Traynor let go of Ms Atoms, who stepped back and away from Officer Traynor, to the left of Officer Clark. She stood side on to the camera, facing Officer Traynor, who stood with his feet apart, his left hand on his hip and his head forward, while talking to her. Officer Clark still stood to the side of Officer Traynor, with his back to the camera, and Ms Atoms to his left.

200 Between 01:05:53 and 01:05:55 Ms Atoms stepped away, towards South Terrace. Officer Traynor stepped forwards towards her. Officer Clark stood a little behind and to the left of Officer Traynor. Mr Hicks had arrived and stood closer to, but to the left of, Ms Atoms. Dr Cunningham could be seen at the top right hand corner of the vision, starting to walk back towards Ms Atoms and the police officers.

201 At 01:05:56 to 01:05:57 Ms Atoms turned and appeared to be leaving again, but Officer Traynor followed her and, using his left hand, grabbed her right arm again and pulled her back, in my view quite aggressively and forcefully. At this second grab, Ms Atoms flicked her head around. Officer Clark followed Officer Traynor and positioned himself on the other side of Ms Atoms (the garden bed side). Mr Hicks was standing 1 m - 2 m away to the left closer to the garden bed and Dr Cunningham was still making his way down the footpath.

202 At 01:05:58 Ms Atoms turned and stood to face Officer Traynor. Officer Clark moved closer to them and was on Officer Traynor's left shoulder. Both officers had their backs to the camera. Officer Clark then took a step to the left and turned, with his back to the garden bed, to face Officer Traynor (who was to the right, or Essex Street side, of the footpath with his back to the camera). Ms Atoms was now between the two officers. Mr Hicks had not moved.

203 At 01:05:59 Officer Traynor still had a hold of Ms Atoms' right arm. Officer Clark was standing in the same position to the left and Mr Hicks was standing to the left of him. As Dr Cunningham approached, Ms Atoms pulled her right arm up and Officer Traynor let go of his hold on her arm, but then he immediately took hold of her left arm or wrist.

204 At 01:06:00 to 01:06:03 Ms Atoms moved to stand with her back towards Essex Street but her head turned to look at Officer Traynor. Officer Clark remained off to the side watching, this time with his back more towards the camera. Mr Hicks had not moved and was also watching. Dr Cunningham then arrived, walking up from the right-hand (Essex Street) side of the footpath. The view of Dr Cunningham's approach is partially blocked by Ms Atoms and Officer Traynor - as he came closer, only his head and shoulders can be seen. However, as Dr Cunningham came up to Ms Atoms and Officer Traynor I was able to see the left side of his body, and he appeared to bend his left elbow and move his hand and forearm forward. I was still able to see the top of his left arm, from the elbow up. In other words, he did not lift his arm. I did not see him lift either arm.

205 Between 01:06:04 and 01:06:06 Ms Atoms and Officer Traynor turned to look at Dr Cunningham. He now stood between Ms Atoms and Officer Traynor and slightly to their side, with his back towards Essex Street. Thus Ms Atoms, Dr Cunningham and Officer Traynor made a group - Officer Traynor with his back to the camera, Dr Cunningham to the right of him, and Ms Atoms to the right of Dr Cunningham and facing Officer Traynor. The left side of Dr Cunningham's body was still visible, and I was able to see the top of his left arm, but not his forearm. At 01:06:05 Officer Clark then moved closer, raised his right arm and put it between Ms Atoms and Officer Traynor, towards Dr Cunningham. Officer Clark then moved around Ms Atoms' right shoulder and then behind the back of her, towards Dr Cunningham. Officer Traynor's back was towards the camera and blocked my view of both Ms Atoms and Dr Cunningham.

206 In the aide memoire counsel for the first, second and third defendants suggested that at 01:06:06 to 01:06:07 Traynor 'pulls Cunningham's left hand away and down and then immediately lets it go. Clark at the same time attempts to touch Cunningham's right arm/shoulder. Cunningham lifts his right arm away and back from Clark but remains close'. I have played and re-played the CCTV footage at this point many times, and I am unable to entirely agree with those submissions.

207 What I did observe from 01:06:07 to 01:06:08 was that Officer Clark, who had moved behind Ms Atoms towards Dr Cunningham, used his left arm to push Dr Cunningham away. Dr Cunningham involuntarily took a step backwards, while moving his right arm backwards. As Dr Cunningham stepped backwards, I saw that Officer Traynor, with his right arm, was holding Dr Cunningham's left arm. I also saw Officer Clark's left arm move up and touch Dr Cunningham's right shoulder.

208 Then at 01:06:09, Dr Cunningham pulled his left arm away but then he immediately brought it back. He bent his left arm at the elbow, to bring his left forearm up to approximately waist height, parallel to the ground. At this point Officer Traynor again grabbed Dr Cunningham's left arm, this time his forearm. While this was happening, Officer Clark had his left arm out and towards Dr Cunningham. It is not possible, however, to see whether Officer Clark was actually holding Dr Cunningham at this stage.

209 In the aide memoire, counsel for the first, second and third defendants suggested that at 01:06:09 'Cunningham is close to Traynor pointing at Traynor. Traynor uses his right hand to take hold of Cunningham's hand that is pointing'. I am unable to see Dr Cunningham 'pointing at Traynor'. I watched this portion of the CCTV footage a number of times during cross-examination and re-examination of Officer Traynor, and since the trial I have again watched this section particularly carefully in light of not only the aide memoire but counsel's closing submissions. My findings are as I have set out in [207] and [208].

210 Officer Clark and Officer Traynor were by now facing each other - Officer Clark facing in the direction of the CCTV camera and Officer Traynor with his back towards the camera. Both of them looked at Dr Cunningham who was on Officer Traynor's right and Officer Clark's left.

211 While this was occurring, Ms Atoms moved slightly to her right and turned to stand on the footpath to the left of both officers. It is possible to see at 01:06:09 that Officer Traynor still had a hold of Ms Atoms' left arm or wrist with his left arm. Mr Hicks was still in the same position behind her, on the footpath but closer to the garden bed.

212 Between 01:06:10 and 01:06:12 Officers Clark and Traynor had their full attention on Dr Cunningham. Officer Traynor was still holding onto Dr Cunningham's left forearm and Officer Clark had his left arm on Dr Cunningham's right arm or side (it is difficult to see which). Ms Atoms was standing to the side and Mr Hicks standing to the side again 1 m - 2 m to her left.

213 At 01:06:12 to 01:06:14 Officer Clark appeared to again push Dr Cunningham, who could be seen taking an involuntary step backwards. Officer Clark kept his left arm up and out towards Dr Cunningham (although it is difficult to see if Officer Clark was also holding Dr Cunningham). Officer Traynor was still holding Dr Cunningham's left arm. At approximately 01:06:13, with Officer Traynor still holding his arm, Dr Cunningham then raised his left hand up near his own (Dr Cunningham's) face. His arm was close to his body, his elbow was bent and his index finger was pointing upwards.

214 In the aide memoire counsel for the first, second and third defendants suggested that at 01:06:13 'Cunningham moves forward again and is still trying to point at Traynor with his left hand. Traynor is trying to stop Cunningham pointing his (Cunningham's) hand towards Traynor'. I do not agree with that observation. I did not observe Dr Cunningham's finger point at Officer Traynor - it points upwards. Officer Traynor also had a hold of Dr Cunningham's arm at all times. In other words, Dr Cunningham did not lift his arm and point upwards until after Officer Traynor had grabbed his arm.

215 At 01:06:15 to 01:06:16 Officer Traynor still had hold of Ms Atoms with his left hand, and with his other (right hand), was still holding Dr Cunningham's left arm. Then at 01:06:17 I saw Dr Cunningham's left arm lifted up above his head. I am not sure on watching the footage whether it was Dr Cunningham who lifted his arm up himself, or whether Officer Traynor lifted Dr Cunningham's arm. However, whichever it was, Dr Cunningham's arm was not raised or lifted towards Officer Traynor; it was lifted up into the air above Dr Cunningham's head. As this happened, Officer Traynor then moved to the right, turning Dr Cunningham as he did so and also his releasing his grip on Ms Atoms. Dr Cunningham now faced Officer Traynor, looking towards the camera. Officer Traynor then moved backwards down the footpath, while pulling on Dr Cunningham's right arm. Officer Clark moved away from Ms Atoms and followed Dr Cunningham.

216 While this was happening, Ms Atoms and Mr Hicks were still standing in their previous positions on the footpath.

217 In the aide memoire counsel for the first, second and third defendants suggested that:

(b) At 01:06:16 'Cunningham continues to stand with his feet apart whilst leaning forward with his upper body towards Traynor. Traynor is still trying to keep Cunningham's hand away'.

218 I have carefully reviewed the CCTV footage with each of these observations by counsel for the third defendant in mind. I have replayed this passage numerous times. I have been unable to make the same observations as counsel has in the aide memoire. My findings of fact are as I have set out in [215].

219 At 01:06:18 to 01:06:19 Officer Clark was immediately behind Dr Cunningham, who had his back to Officer Clark. Officer Traynor let go of Dr Cunningham's arm. Officer Clark took hold of both of Dr Cunningham's arms and pulled them behind his back. As this happened, Officer Traynor put his left arm in an outstretched position up against Dr Cunningham's chest area while reaching, with his right hand, to the area of his belt.

220 Between 01:06:20 and 01:06:21 Officer Clark moved Dr Cunningham towards the road (Essex Street). Officer Traynor was on Dr Cunningham's right hand side (half off camera). For a split second Dr Cunningham had his arms up in the air until they were pulled down again by Officers Clark and Traynor. Ms Atoms was still on the footpath to the left of them and Mr Hicks behind her further to the left. Ms Atoms raised her right arm and followed them while putting both her arms up and out, initially with her wrists limp and fingers downwards, in what I would describe as a rather ineffectual manner, towards Dr Cunningham.

221 At 01:06:21 Officers Clark and Traynor had swapped sides - Officer Traynor had gone around in front of Dr Cunningham to his left hand side towards the top of the vision (the South Terrace side). Officer Clark had moved down towards the bottom of the vision, behind Dr Cunningham, and taken hold of Dr Cunningham's right hand side. Dr Cunningham was being jostled between the two police officers. Ms Atoms stepped towards the three of them with her hands out and fingers straight.

222 At 01:06:22 to 01:06:24 the two officers were pushing Dr Cunningham onto the road. Ms Atoms followed close behind. I saw her move closer to Dr Cunningham. While this was happening Males 3 and 4 could be seen walking back down the footpath towards the two officers and Dr Cunningham. One of them (who I find is Male 3) then moved forward towards Dr Cunningham.

223 At 01:06:24 to 01:06:31 it is very difficult to see exactly what was happening as the officers and Dr Cunningham were partly off the footpath by this stage. Ms Atoms was closer to Dr Cunningham. Officer Traynor pushed Male 3 away when he came into help. Male 3 moved back onto the footpath.

224 Also at 01:06:29 another man in a white shirt and wearing a black hat (the man in the hat) walked up the footpath from the bottom of the vision.

225 In the aide memoire counsel for the first, second and third defendants submitted that:

(a) At 01:06:22 'Atoms reaches in between Clark and Cunningham's back with both hands. She is trying to break Clark's hold of Cunningham's right hand'.

(b) At 01:06:23 to 01:06:26 'Atoms is still trying to break Clark's hold of Cunningham. She looks at Clark while she does this'.

(c) At 01:06:27 to 01:06:29 'Atoms is trying to pull Clark's hand off Cunningham's right arm'.

(d) At 01:06:30 'Atoms is still trying to get Clark to let go of Cunningham's right arm'.

226 I have carefully played and replayed the CCTV footage many times, with each of these submissions in mind. I am simply unable to see Ms Atoms reaching in and trying to break Officer Clark's hold of Dr Cunningham's right hand. I was unable to determine what part of Dr Cunningham's right side Officer Clark had a hold of. From my review of the footage, at all times it looked to me as though Ms Atoms was trying to reach Dr Cunningham. I could not see Ms Atoms 'trying to break' or 'still trying' to break Officer Clark's hold of Dr Cunningham, or trying to pull Officer Clark's hand off Dr Cunningham's right arm.

227 What I could see at 01:06:27 is Officer Clark turning his head to look at Ms Atoms and, at 01:06:30, I could see Ms Atoms' hands in the back of Dr Cunningham.

228 At 01:06:32 to 01:06:33 Officer Clark turned slightly to face Ms Atoms and, using his left arm, he appeared to pull Ms Atoms by the right arm. She fell forward slightly. Then he knocked her arm downwards and pushed her away with his left arm, quite forcefully. Ms Atoms stumbled backwards a couple of steps, but did not fall.

229 In the aide memoire counsel for the first, second and third defendants suggested that at 01:06:32 'Atoms breaks Clark's hold of Cunningham's right arm. She then tries with both hands to keep hold of Clark's left arm while Clark now has hold of Cunningham's right arm with his right hand. Clark waves his arm about and manages to break free of Atoms' hold. He then pushes Atoms back and away with his left hand'. Once again, I have many times replayed this part of the CCTV footage but other than Officer Clark pushing Ms Atoms with his left hand, I cannot see those things. My findings as to what happened at 01:06:32 are as I have set out in [228] above.

230 At 01:06:33 I saw Dr Cunningham stumble back, turn to his left and put his left arm out, before being grabbed again by Officer Traynor. At this stage I could see Officer Clark holding Dr Cunningham's right arm. Officers Clark and Traynor then pushed and pulled Dr Cunningham before pushing him back once more onto the road at 01:06:36.

231 After Ms Atoms recovered from Officer Clark's push, at 01:06:35 she followed the two officers and Dr Cunningham back onto the road with her hands up, reaching in to, or near, Dr Cunningham's back. Male 3 followed with his hand up as if signalling to someone to stop, giving the appearance as a whole of someone making a protest. Mr Hicks followed them while Male 4 stood on the footpath, watching.

232 At 01:06:37 all except Male 4 had left the footpath and were off camera, on the road.

233 At this time the man in the hat, who had walked up the footpath from the bottom of the vision, passed Male 4. At 01:06:40 the man in the hat stopped, turned and then moved across the footpath towards Essex Street, putting up his right hand as if in protest or to ask someone to stop. He stopped when he reached the edge of the footpath at 01:06:46, stood for a while and then walked onto the road. Male 4 remained standing on the footpath, alone and then he walked up to the edge of the footpath and stood there, watching.

234 At 01:07:06 Male 3 walked back onto the footpath, followed by the man in the hat. The two of them walked up the footpath towards South Terrace, talking to one another, with the man in the hat gesticulating by throwing his arms up into the air. At 01:07:12, the man in the hat turned to his left and looked back towards Essex Street, throwing his left hand up in the air in the direction of the road. He then watched as Male 4 turned and walked up to join him and Male 3, and the three of them walked together towards South Terrace.

235 Three other people, two men and a young woman, walked into the vision and up the footpath towards South Terrace. They followed Males 3 and 4 and the man in the hat. At the top of the vision, at 01:07:27 those three other people stopped and turned to look at Essex Street (at this point, only the lower halves can be seen on the footage, but these are turned towards Essex Street). At 01:07:31 they turned back and walked away off the vision.

236 At the same time, 01:07:31 a number of people, including a bride, walked from the bottom of the vision up the footpath but there was no reaction from them.

237 At 01:07:53 the man in the hat returned, walking from the top of the vision (the South Terrace end of the footpath) down towards Marine Terrace. He looked towards Essex Street but kept his hands in his pockets the whole time he walked until going off camera at 01:08:08.

238 That is, effectively, where the CCTV footage ends, although at 01:09:20 a reflection of a red light can be seen on the white veranda posts on the bottom left hand corner and then flashing police lights can be seen at 01:09:48.

239 Leaving aside what has been said in evidence and what the participants themselves perceived, based on my lay experience, my impression when watching the CCTV footage was that what the police were dealing with outside the Esplanade Hotel would be a reasonably common occurrence in Fremantle on a Saturday night. Officers Traynor and Clark saw a group of people including Ms Atoms, and Officer Traynor decided to speak to her. Ms Atoms had not done anything wrong, however.

240 What happened after this, based on the CCTV footage, was that:

(a) Officer Traynor was speaking to Ms Atoms from at least 01:05:11, when Ms Atoms turned towards him after his arrival.

(b) Neither Officer Traynor nor Officer Clark were interested in what I shall refer to as the 'real culprits' who had been in the bushes in the garden bed.

(c) The situation with Males 1 and 2 was resolved amicably, with Officer Clark attending to those two males and sending them on their way. (Officer Clark did, in fact, describe their behaviour as 'clowning around' (see [329] below).

(d) No-one appeared to notice Male 3 who remained in the garden bed for some time. Male 3 was also able to leave, without incident, after he emerged from the garden bed.

(e) While all of this was occurring, Ms Atoms and Officer Traynor were talking amicably and the situation was calm and composed.

(f) Officer Clark did not give his full attention to Ms Atoms and Officer Traynor until 01:05:37.

(g) By that time, everyone else had moved away from the immediate area.

(h) Ms Atoms appeared to be respectfully talking with Officer Traynor but suddenly (in the space of a few seconds, from about 01:05:34), the situation changed. Then when Ms Atoms went to leave, Officer Traynor grabbed her.

(i) The police began a series of escalating interventions, from Officer Traynor's grabbing Ms Atoms for a second time, to the forceful arrest of Dr Cunningham by both Officers Traynor and Clark.

241 Based on the vision alone, something must have triggered the police reactions. I must determine what did.

The footage from the Fremantle Police Station ('the lock-up footage')

242 This recording begins at 01:10:01. There is audio, however, at times it is difficult to hear what was being said. Counsel for the first, second and third defendants provided me with a transcript as an aide memoire (MFI 97). It is not a transcript of all that was said in the lock-up, however, and while I am largely in agreement with what is in it, I do not agree with everything and there are some things I heard which are not recorded in it.

243 It is not necessary to go through the lock-up footage in as much detail as the CCTV footage, however, there are matters I consider it necessary to record. The following are my findings from what I both viewed and heard from the lock-up footage and, where I have indicated this, the evidence I heard about certain aspects of this footage.

244 At the outset of the lock-up footage a young Aboriginal woman, who had obviously been dealt with by the police, was talking to the custody officer (who sat behind the desk of the lock-up in front of a computer screen). This young woman was present when Dr Cunningham was brought into the lock-up, until she was bailed and left at 01:21:00.

245 At 01:11:05 Dr Cunningham was brought in by Officers Traynor and Clark. Dr Cunningham was handcuffed behind his back. The handcuffs were removed by Officer Clark and Officer Traynor. Dr Cunningham was searched and was co-operative throughout. At 01:13:44 Officer Clark directed Dr Cunningham into the holding cell, which is a partitioned area on the left hand side of the vision, opposite the desk. Dr Cunningham was placed in that cell at 01:13:57 and the door shut.

246 Ms Atoms was brought into the lockup at 01:21:31 by a young female uniformed officer with blonde hair. Ms Atoms' handcuffs were then removed by the female officer. Ms Atoms was then taken into another room by the female officer for a search. At 01:24:17 Ms Atoms returned to the lock-up and sat on a bench against the wall opposite the desk and next to the holding cell.

247 At 01:15:31 the young Aboriginal woman who had been discussing the treatment of Aboriginal people distinctly swore, saying 'Fuck. Its fucked up'. Present in the lock-up at that time was the custody officer, Officer Clark (who was standing behind the desk, opposite the young Aboriginal woman and could not have failed to hear what she said), Officer Traynor and two other officers, one of them the female officer with blonde hair. None of those police officers reacted in any way when the young Aboriginal woman swore.

248 In fact, both the custody officer (sitting at the desk with Officer Clark standing next to him) and Officer Traynor (standing on the other side of the desk) swore. At 01:22:24, after being told there were another two people coming into the lock-up the custody officer uttered the words 'for fuck's sake'. Then at 01:22:47 the custody officer pointed to the other side of the passage way and said 'You still got your other fucker (indistinct)'.

249 Shortly after this, at 01.23:00 Officer Traynor said:

It didn't get (indistinct) or anything like that, it was just lack of fucking no energy because he was constant like ... you know what I mean, really strong.

250 Officer Traynor was obviously talking to the custody officer about the arrest of Dr Cunningham. I was not able to hear everything that was said, however, at 01:23:11 Officer Traynor said:

I had a cuff on him, I had a cuff on him with one hand.

251 Officer Traynor then watched while there was a discussion between Officer Clark and the custody officer. It is possible only to hear snippets of this exchange. However, I heard Officer Clark say at 1:23:18 (emphasis added):

She was on my back, literally standing against my back.

252 When saying this, Officer Clark lifted his arms up to shoulder height and pointed to his back. In context, I infer Officer Clark's phrase 'on my back' to mean pressing 'on' or against his back.

253 Officer Clark said something else I could not hear, to which Officer Traynor then added (finishing at 01:23:22):

254 While Dr Cunningham was in the holding cell Officer Traynor made a number of statements from which I infer that he assumed that the plaintiffs, and in particular Dr Cunningham, had been drinking to excess and were not sober.

255 First, when discussing whether the plaintiffs could be bailed Officer Traynor said at 01:22:45:

256 Then Officer Traynor spoke to both plaintiffs (first Ms Atoms and then Dr Cunningham, speaking through the door of the holding cell) between 01:25:00 and 01:25:33 (italics my emphasis):

Officer Traynor to Ms Atoms: 'Have you had a lot to drink tonight?'

Ms Atoms: (indistinct)

Officer Traynor to Dr Cunningham: Have you had a lot to drink tonight?

Dr Cunningham: (indistinct)

Officer Traynor: I'm asking if you had a lot to drink tonight ... might affect your being here.

Dr Cunningham: ... I'm giving my name and address but other than that I'm exercising my right to remain silent (indistinct).

Officer Traynor: Of course I do. I'm trying to assess whether you need to be here for a long time or not, to sober up that's all (indistinct) to do with the offence.

Officer Traynor (to the Custody Officer): We'll keep him here a bit longer cos he's obviously a bit drunk still.

257 Earlier, at 01:23:33, both Officer Traynor and Officer Clark were helping the custody officer with Dr Cunningham's details. Officer Clark asked Dr Cunningham where he was living and although Dr Cunningham's answer was inaudible, Officer Clark said at 01:24:09 'Ok, cool, that's what we've got'.

258 However, after this when entering Dr Cunningham's details onto the computer the custody office noticed an address in NSW and pointed this out to Officer Traynor (who by that stage was standing behind the desk next to the custody officer). Then between 01:26:31 and 01:27:05 the following exchange took place between Officer Traynor and Dr Cunningham (with Officer Traynor speaking from behind the desk, and Dr Cunningham still in the holding cell with the door closed):

Officer Traynor: Do you live in NSW do ya Robert?

Dr Cunningham: Didn't you hear me before Sir?

Officer Traynor: No I didn't, that's why I'm asking you again. Do you live in NSW?

Dr Cunningham: I'll say this again so you can hear me.

Officer Traynor: Thank you.

Dr Cunningham: My name is Robert Lee Cunningham. I'm living at [he gave his address] Fremantle, and this evening I am exercising my rights ...

Officer Traynor: Robert

Dr Cunningham: No listen. I'm exercising my rights to remain silent. Did you hear that?

Officer Traynor: Trying to establish your address mate.

Dr Cunningham: I understand that and I just told you ...

Officer Traynor: And I asked you...

Dr Cunningham: My address, it is [he gave it again] Fremantle WA.

Officer Traynor: WA. WA. Now we're getting somewhere. WA. WA.

259 During this exchange Dr Cunningham clearly gave his Fremantle address, for the second time that night. It could only have been Fremantle in WA. The reaction from Officer Traynor was, in my view, arrogant and disrespectful. During his last response when Officer Traynor said 'WA. WA, 'Now we're getting somewhere' he pointed aggressively each time towards the holding cell and his tone when he said this was sarcastic and mocking.

260 Another relevant exchange with Dr Cunningham took place between 01:34:39 and 01:36:50. Dr Cunningham asked when he would receive medical treatment for the injuries he had sustained during the arrest process. When he asked this question, both Officers Traynor and Clark were present, behind the desk with the custody officer, and the female officer was also present. None of these officers responded. When Dr Cunningham asked again when he would be medically treated for his injuries, the female officer asked him what were his injuries. Then the following exchange took place:

Dr Cunningham: I have sustained numerous injuries to my wrist, both wrists left and right. I have also sustained numerous bodily injuries as a consequence of the weapon that was used against me during the arrest process and I can go into more detail about those injuries as ...

Female Officer: What do you mean by bodily injuries?

Dr Cunningham: A number of weapons or I had a weapon applied to me, and I'm not sure of the name of that weapon during the arrest process. I was also thrown to the ground and various parts of my body were twisted so I have sustained various muscular injuries. I've also sustained various injuries as a consequence of the weapon that was used against me. What I'm asking is a time frame in terms in of when and how I will be treated in relation to the medical injuries I have sustained during the arrest process. If you don't answer this question right now, I want you to give me a time frame for when you will answer this question.

261 Officer Traynor then chipped in, and the following exchange took place (with my emphasis in italics):

Officer Traynor: Robert. Robert. You obviously seem a lot more sober now so as you're in that state we're probably gonna bail you very soon so you can go to the hospital and get looked at. We're not concerned about what injuries you have because to us you're fit and well, yeah?

Dr Cunningham: Could you repeat that please? Cause what I heard you say is you're not concerned about what ...

Officer Traynor: I am concerned but I'm not majorly ... Are you gonna listen to me?

Dr Cunningham: What I heard you say was that you are not concerned about the injuries that I sustained ...

Officer Traynor: I'm not too concerned ... Are you gonna listen to me? I said I'm not too concerned about your injuries.

Dr Cunningham: You're not too concerned about the injuries I sustained during the arrest process, is that what you just said?

Officer Traynor: Yes that's what I said.

Dr Cunningham: OK. We'll leave it at that.

Officer Traynor: So you can go to the hospital when you get out of here, can't you? If you're obviously concerned, but to me, you're fit and well mate at the moment. Yeah? If I think you need an ambulance, I'll call for one, but I don't, alright?

Dr Cunningham: So if I understand right, it's your medical opinion you do not believe that I need any medical assistance in relation to injuries I sustained during the arrest process. Can you please answer that question sir? Sir can you please answer that question?

Officer Traynor (over the top): I'll just speak to the sergeant and get him bailed.

262 Officer Traynor then left the lock up. The tone and demeanour of Officer Traynor during this exchange was, I find, high handed, patronizing and dismissive.

263 Sergeant Leahy entered the lock-up at 01:38:21 and took Dr Cunningham from the holding cell to another place, off camera. After Dr Cunningham had been taken away by Sergeant Leahy, Officer Traynor returned at 01:38:45 to stand behind the desk with the Custody Officer. They were going through Dr Cunningham's and Ms Atoms' personal effects, and this exchange took place between Officer Traynor and Ms Atoms between 01:41:05 and 01:41:20 (my emphasis in italics):

Officer Traynor (to Ms Atoms): Do you want this booked in separately, or are you happy for it to go together?

Ms Atoms: I wouldn't use the word happy in this situation.

Officer Traynor: Yeah I can understand that, I'm not very happy about it either to be honest.

Ms Atoms: I'm sure you have much better things to be doing with your time.

Officer Traynor: I do. I'd rather be at home now to be honest.

Ms Atoms: I would've been if you had just simply let me leave as I was asked to do sergeant, should I say constable?

264 Officer Traynor did not respond to the last comment by Ms Atoms. Earlier, when she said 'I'm sure you have much better things to be doing with your time' he gave no visible reaction (he did not lift his head and kept on looking at the personal effects), and his answer, both in the words he used and his tone and manner, was mild.

265 01:42:45 Officer Stevenson came in holding a camera. He went up to Officer Traynor who was standing behind the desk. At 01:43:00 Officer Stevenson held up the camera, screen up and showed it to Officer Traynor. Officer Stevenson said something indistinct, in response to which Officer Traynor said 'have ya' and then 'brilliant' and then 'we'll put it on a DVD, use it in court'. Someone then said '100 metre heroes'. Shortly after this Officer Stevenson left the lock-up.

266 Officer Stevenson in his evidence at trial confirmed that he was showing Officer Traynor the camera he had obtained from Mark Brophy. Officer Stevenson admitted that he said the words '100 metre heroes', however, he could not say what he meant by it or to whom he was referring when he said those words (ts 1446 - 1448).

267 The words '100 metre heroes' sound derogatory to me and although this was put to Officer Stevenson and denied by him (ts 1448), I find that he was referring in a derogatory way to Mr Brophy, a potential witness and a member of the public.

268 Ms Atoms then asked if she could make a phone call, and following from that, asked Officer Traynor why she was there. When she did so, Ms Atoms was not aggressive and she spoke in reasonably calm and measured tones (given the circumstances). The particular exchange went from 01:43:59 to 01:44:50 as follows (with my emphasis in italics):

Officer Traynor: Have you been arrested before?

Ms Atoms: No I haven't. I'm not exactly sure where we are, if you can tell me.

Officer Traynor: Basically you've been arrested right for obstructing police and assaulting public officer.

Ms Atoms: Can I ask you something? When I asked you if I could just leave and keep going with my night.

Officer Traynor: Yep.

Ms Atoms: why didn't you just let me go?

Officer Traynor: Because you were detained lawfully for the purposes of me issuing you with a move on notice.

Ms Atoms: What had I actually done wrong?

Officer Traynor: What were you doing wrong?

Ms Atoms: Yes, what had I done wrong, please?

Officer Traynor: Well, you and your friends were messing around in the bushes outside the Esplanade Hotel.

Ms Atoms: I actually didn't know that person that was in the bushes and I was trying to get him out of the bush.

Officer Traynor: Well, this is how we got to speak to you, isn't it, yeah: And then you were obstructing and we were giving you a move on notice ...

Ms Atoms: I was trying to get him out of the bushes.

Officer Traynor: ... and then it all went wrong.

Ms Atoms: I'd never met him before. He was falling down in the bushes. And I didn't even know who he really was. And then you actually grabbed me and started physically assaulting me.

Officer Traynor: Just so you're aware ...

269 Officer Traynor did not complete his sentence, as he was interrupted by two other police officers about to bring another arrested person into the lock-up.

270 Ms Atoms then made her phone call. She made the call to Nathan Hicks. During that call at about 01:46:15 some officers came into the lock-up, including Officer Stevenson. The following took place between 01:45:55 and 01:46:53:

Ms Atoms (on the phone): Hi .

Ms Atoms to Officer Traynor: Can I find out where I am please?

Officer Traynor: Fremantle Police station.

Ms Atoms (on the phone): Fremantle police station.

Ms Atoms to Officer Traynor: Can you give me the address please?

Officer Traynor: 45 Henderson St, Fremantle police station

Ms Atoms (on the phone repeats that information).

Ms Atoms (on the phone): And they have video footage?

Ms Atoms (on the phone): And the police came and confiscated the footage? ... he police came and confiscated the footage?

Ms Atoms (on the phone): OK. Can I tell you the badge number - its Stevenson, Senior Constable 8152 (as she leans towards Officer Stevenson, who leans forward showing his badge)

Officer Stevenson: Well done.

Ms Atoms (on the phone): Oh so you have actually other video footage?

Officer Stevenson: Oh good.

Ms Atoms (on the phone): Thank you, Well don't bring it with you when you come to the station.

271 At this point Officer Stevenson came around the desk, went up to Ms Atoms and took the phone from her, saying 'excuse me' and then spoke himself on the phone:

Officer Stevenson: Hello - yeah bring it with you mate, we'll be seizing it as evidence. Thank you. Bye.

272 Officer Stevenson then hung up the phone, and returned to behind the desk, saying in the process 'The more of the (indistinct) that come forward the better'.

273 Ms Atoms could not recall saying to Mr Hicks not to bring the footage into the station, but after watching this portion of the lock-up footage in cross-examination, she conceded that she had done so. When asked why she had done this, the reasons she gave were that she had earlier overheard police talking about deleting footage while she was in the police van at the Fremantle police station (ts 529) and she was of the opinion that the character of the officers at the station was not trustworthy (ts 530).

274 Officer Stevenson was cross-examined about his taking the phone from Ms Atoms and hanging up during this call. When asked why he did this, he answered that he did not know and he had no explanation for what he did (ts 1449).

275 At 01:47:02 Dr Cunningham was returned to the holding cell but the door was left open. He sat quietly. Ms Atoms remained seated on the bench opposite the desk.

276 At 01:47:08 Officer Stevenson walked around the desk, went up to the holding cell and shut the door. I asked him during his evidence why he did that. His answer was 'security' for the officers (ts 1450).

277 Sergeant Leahy removed Dr Cunningham from the holding cell at 01:58.25 and then both plaintiffs waited on the other side of the desk while their personal property was returned and bail papers were prepared. Sergeant Leahy called Dr Cunningham to sign his bail papers first at 02:02:19. She explained he had been charged with obstructing police and he was due to appear in the Fremantle Magistrates Court on 6 November 2008. When she explained that the conditions of bail included that he was not to enter or remain in the Fremantle CBD, Dr Cunningham said that those bail terms were unreasonable and he was not going to sign. Ms Atoms then came up at 02:03:17 and explained as follows:

It's Robert's birthday today. It's my understanding this arrest is a very poor use of your time and it's my understanding that these conditions are not reasonable, considering that it's his birthday today and that he has a birthday party arranged from him at a café in town today ... Sunday, that's today. So if he was to go to his birthday party today that would be in breach of his bail conditions. We live in Fremantle not far from the CBD. We have to go to the markets today to buy our vegetables. We always buy our vegetables on a Sunday. And it's his birthday.

278 Ms Atoms spoke in calm and measured tones when discussing the issue of bail. Sergeant Leahy agreed to remove the bail condition not to enter the Fremantle CBD.

279 At 02:06:06, Officer Stevenson left the lock-up again, this time with a camera in his hand, and accompanied by another police officer. Officer Stevenson identified this officer as PC Johnson, and confirmed he was leaving to return the camera to Mr Brophy (ts 1451).

280 My overall impression from the lock-up footage is that some officers had an animus or bias against anyone in custody. So far as the custody officer was concerned, a person in custody was a 'fucker'. So far as Officer Traynor was concerned, the plaintiffs were drunk and needed sobering up. His attitude towards both plaintiffs was arrogant and high handed, but he was particularly so towards Dr Cunningham. So far as Officer Stevenson was concerned, a person who accused the police of violence and attempted to record events was a '100 metres hero'. Officer Stevenson had no compunction in interrupting and bringing to an end a telephone call being made by a person in custody. And if an arrested person was quietly sitting in the holding cell, the door still needed to be shut for 'security' for police officers.

281 Officer Stevenson gave evidence in this trial that he did not put any of the video image from the camera on a disc before returning it to Mr Brophy because it was of no assistance, and 'of no value to us' (my emphasis). I asked him why the footage was of no value and his answer was (ts 1453):

... because it only showed a few wedding photos and the aftermath. So it's my belief that when I showed Traynor the screen he'd seen a police car with red and blue flashing lights---and thought maybe that's of value. But I found out later that it wasn't.

282 The return of the camera to Mr Brophy without downloading the footage, particularly given the exchange between Officers Stevenson and Traynor in the lock-up, does cause me concern. In my view, it is another example of judgmental behaviour by the police in this case i.e. if Officer Stevenson did not think it was relevant 'to us' - namely the police - it did not have to be downloaded and retained.

283 However, we do not have that footage and I must proceed to determine the case without it.

284 Ms Atoms impressed me as an honest person. Generally she spoke clearly and confidently, although there were times when she became teary and she obviously found parts of her evidence difficult (particularly when discussing her physical and mental symptoms).

285 Ms Atoms described herself as a strong and confident person before the events of 2 November 2008 (ts 190) and I have no doubt that this was the case. Dr Cunningham also described her as being able to look after herself, in the sense of 'being effective at dealing with other people as far as communication is concerned' (ts 670 - 671) and a 'strong and assertive woman' (ts 735). It is apparent from this and other evidence in this trial (see for example [960] - [963] below) that she was the type of person prepared to speak up for herself if she believed she was in the right.

286 As shown in the CCTV footage she was dressed very conservatively, and she was also very conservative in her dress and manner while she was in court, both during her evidence and at other times when she attended court during the trial.

287 I am conscious that, as I have already set out, I should limit my reliance on Ms Atoms' appearance or demeanour. However, that does not mean that her demeanour should not be taken into account, particularly in light of the allegations made by the defendants as to her conduct on the night.

288 Ms Atoms candidly admitted her memory was not always good, particularly with dates and times. For the most part, however, I found Ms Atoms' evidence to be generally credible and reliable. For example, most of her evidence about what occurred on the footpath outside the Esplanade Hotel is supported by the CCTV footage.

289 Much was made by both counsel for the defendants as to a particular part of Ms Atoms' evidence which related to her discussions with Officer Traynor (ts 137):

Okay. What happened after that---He said something like, 'I'm giving you an order to' - no, no. He said something like - may I have a minute, please?

DAVIS DCJ: Yes. Take as long as you need. If you need a break at any stage just ask for one---Thank you, your Honour.

It was something that he said after you were telling him that you hadn't entered the bushes. What was his reaction to that---Thank you. He said something like, 'I'm telling you to get out of Fremantle'. Something like that.

290 Her evidence then was that she responded by telling the officer (Officer Traynor) that 'I live in Fremantle. I don't understand, are you saying I have to leave Fremantle?', and then (ts 137 - 138):

He said something like - that reinforced the first thing that he said, which I still didn't understand, which was something like, 'I'm telling you to get out of Fremantle'. And - and he said something like, 'In 24 hours', or, 'For 24 hours', which I didn't try and understand more because the first part of it was about leaving Fremantle. So putting aside that I didn't understand whether it was in or for 24 hours, I - he said something like, 'I'm telling you to leave Fremantle'.

291 It was submitted to me by counsel for the fourth defendant that after asking for a minute to compose herself, Ms Atoms came up with a different form of words. Counsel for the first, second and third, defendants went further, using this passage of the evidence to submit that Ms Atoms had starting tell the truth but then had to change her evidence because she was 'suddenly admitting that the officer said they were going to give an order to move on' and this did not 'fit with the script' (ts 1684).

292 Having observed Ms Atoms, and listened to the evidence which followed (which I have set out in [398] and [399] below), I am satisfied that she was answering this question to the best of her recollection but realised that she had said something out of the correct order. From my observations all of the evidence given by Ms Atoms about the discussion was given honestly, and I do not consider she was changing or tailoring her evidence.

293 Counsel for the first, second and third defendants cross-examined Ms Atoms about her using the expression 'something like' to preface her evidence about what she said to Officer Traynor and he said to her. It was put to her that this was because she did not remember exactly what was said on the night. I believe Ms Atoms when she answered 'No, it's because I'm overly cautious and don't remember the exact words' (ts 491) and subsequently 'I'm especially cautious, given that I'm under oath, that I want to be as accurate as I'm capable of being' (ts 492). These are, in my view, honest answers and they accord with common sense and experience. It is highly unlikely that someone will be able to remember the exact words that were spoken in a situation which occurred many years before - a matter I will return to later in these reasons.

294 Counsel for the first, second and third defendants submitted that the phone call made from the lock-up by Ms Atoms to Mr Hicks where she said 'don't bring it with you' reflected badly on her credibility, because she was 'seeking to thwart the police actually having access to any footage that might have not only helped her but helped them'. In my view, given the way in which Ms Atoms had been treated by the police, the attitude of the police towards the plaintiffs in the lock-up as I have found, and the discussion about the camera which took place immediately before this phone call, it is quite understandable why she would tell Mr Hicks not to bring it to the police station.

295 Ms Atoms gave evidence that she joined a local Toastmasters club using the name Catherine Playmore, a name that she had previously used in New South Wales. Then, through a contact in the Toastmasters group, she obtained a job in a call centre. She used the name Catherine Playmore when completing the paperwork for that job (ts 125 - 126). It was submitted by counsel for the first, second and third defendants that Ms Atoms' use of the name Catherine Playmore reflects adversely on her credibility.

296 This was something that Ms Atoms volunteered herself in her examination-in-chief. There is no evidence that she gave any other false details and Ms Atoms' taxation documents for the year ended 30 June 2008 (exhibit 1, tabs 21 and 22) show she used her personal tax file number and paid tax for the job with the call centre. There are many people who use more than one name. For example, some married women use both their married name and their maiden name, the latter for the purpose of their profession or employment. Actors and performers regularly adopt a stage name which is not their real name. Ms Atoms herself used her name professionally before changing her name by deed poll (ts 544). In my view this does not adversely affect her credibility.

297 Ms Atoms prepared a curriculum vitae for the purpose of the court proceedings (exhibit 10). She explained that this was not significantly different to what she might have put before an employer, except that in her work history from 2014 to the current date, she set out that she was 'seeking work'. Making an application for a job, she would not have said this but might have applied a 'glossy cover story or such as it's expected to do on a CV' (ts 131). Counsel for the first, second and third defendants also submitted that this reflected badly on Ms Atoms' credibility and demonstrated that she is a woman who is 'used to glossy cover stories' and tends to 'gloss over details'. I am not able to accept this submission.

298 Ms Atoms demonstrated that she does not gloss over details when she gave evidence about what occurred on the road while Officers Traynor and Clark were pushing Dr Cunningham towards the police van on Essex Street. I have set out her evidence in full in [549] below, but in the course of her description she mentioned that she used a loud voice and also that Officer Clark said 'You shouldn't have used that language then', to which she responded 'Language? What language?' This evidence was part of the res gestae and was admissible evidence of what had occurred. However, it seems to have gone unnoticed - it was not the subject of either cross-examination or submissions by the defendants. Here Ms Atoms gave evidence which might be considered to be against her interests when a central issue in this case was whether she shouted and swore at the police. I discuss this evidence further below at [451] - [453], but it is, in my view, a favourable example of Ms Atoms' credibility.

299 Ms Atoms was, in my view, honest, credible and reliable when giving evidence about other matters, such as the state of her physical and mental health. She did not exaggerate her symptoms and, indeed in light of the medical evidence in respect of her PTSD, she probably underplayed them.

300 I am satisfied that Ms Atoms gave her evidence as best as she could remember, however, there are some difficulties with the reliability of her recall of the events of this night in some respects. In particular, there are some difficulties with her evidence about the events surrounding the tasering, which I will discuss below.

301 There was cross-examination of Ms Atoms highlighting differences between her evidence and what had been pleaded, on her behalf, in the statement of claim, and submissions made in closing by counsel for the first, second and third defendants to the effect that Ms Atoms was 'evasive' during this cross-examination. In my experience, this type of cross-examination on the pleadings is rarely helpful, and this case was no different.

302 Something said in the pleadings does not constitute a prior inconsistent statement by a party giving evidence unless the pleadings are verified on oath or at adopted in some way as the statement of the witness: Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 [30] - [34]; Stohl Aviation v Electrum Finance Pty Ltd (1984) 5 FCR 187, 202. And what goes into a pleading is usually a decision made by lawyers for the party. This is demonstrated by the following exchange between counsel for the first, second and third defendants and Ms Atoms (ts 515):

And do you know any reason why it is that if that's what you say had always happened, why it wasn't in your statement of claim in the first place?---That's a very good question for my solicitors.

Preliminary observations on the Dr Cunningham's credibility

303 Dr Cunningham impressed me as an honest, careful and conscientious person. He did not seek to embellish, exaggerate or reconstruct what occurred on this night, but gave his evidence as best as he was able to remember. His evidence of what occurred on the footpath outside the Esplanade Hotel is, in my view, supported by what is shown in the CCTV footage. I found him to be a generally credible, honest and reliable witness.

304 Dr Lawrence Blumberg, an experienced psychiatrist, who saw Dr Cunningham on two occasions described him as a 'credible historian' (Dr Blumberg's report, exhibit 30, page 6). I also found Dr Cunningham to be a credible historian.

305 I did observe him to be defensive at times during cross-examination by counsel for the first, second and third defendants, however, he generally made concessions where appropriate (for example, see [505] below).

306 In closing submissions, counsel for the first, second and third defendants submitted to me that Dr Cunningham's evidence about what happened on the footpath 'begs credibility' because he said he told Officers Traynor and Clark that he was a solicitor, when he was a law professor and was not practising as a solicitor in Western Australia. I do not consider this is a material matter which reflects poorly or otherwise on Dr Cunningham's credibility. On the contrary, it is the very thing I would expect him to say, since he was a solicitor, albeit from New South Wales, and his evidence (which was not disputed) was that he kept up his NSW practising certificate with a view to anticipated legislative changes to nationalise the legal profession.

307 Although not mentioned by counsel for the defendants in their submissions, there was one established inconsistency between the evidence at trial and a paragraph of a statement which Dr Cunningham had prepared and sent to the Corruption and Crime Commission of Western Australia (CCC) after the dismissal of the charges in the Magistrates Court in 2010. This was to do with his recollection of what was said during Ms Atoms' telephone call in the lock-up, at a time when Dr Cunningham had not seen the lock-up footage. He accepted that there were errors in the paragraph of the statement and there was a difference between his memory of that and the lock-up footage (ts 701 - 702). In my view, this inconsistency is not such that it affects Dr Cunningham's credibility about the material events of the night.

308 In my view Dr Cunningham's evidence was generally both truthful and reliable.

Preliminary observations on Officer Traynor's credibility

309 I was not impressed with the evidence of Officer Traynor. Very little of his evidence about what occurred on the footpath outside the Esplanade Hotel is supported by the CCTV footage. On the critical issues in this case I formed the distinct impression that his evidence was manufactured or reconstructed in an attempt to put himself in the best possible light or to justify what he did on the night of 2 November 2008.

310 For example, Officer Traynor gave evidence that as he approached the group of people on the footpath outside the Esplanade Hotel he was 'stopped' from going any further by Ms Atoms, and that 'she came right up to me'. From my observation of the CCTV footage Ms Atoms did not stop Officer Traynor, nor did she go up to him as he claimed. It was Officer Traynor who came up to her. Officer Traynor made no concession about this when this was put to him in cross-examination and he continued to maintain, even in the face of the CCTV footage, that 'I wasn't able to reach the group because she's standing right in front of me' (ts 932). That is just implausible. The CCTV footage shows that he strolled up to Ms Atoms, stopped and started speaking to her and she was not standing in front of him (see my findings in [169] and [171] above).

311 Another example is his evidence about what Dr Cunningham allegedly did when he arrived at the place on the footpath where the two police officers were with Ms Atoms. In his examination-in-chief, Officer Traynor gave evidence that Dr Cunningham raised his arm 'right towards my face ... I instantly reacted ... I believed that he was going to make contact with my face so I grabbed hold of his arm, I believe' (ts 896). In cross-examination he elaborated on this saying that he grabbed hold of Dr Cunningham's arm initially to defend himself, and then to arrest him for obstructing police, and that these were 'pretty much' one and the same manoeuvre (ts 942 - 943).

312 As I have found in [207] and [208] above, the CCTV footage showed that at 01:06:09 to 01:06:10 Officer Traynor was holding Dr Cunningham's left arm. Officer Traynor agreed in cross-examination (ts 947) that Dr Cunningham had not raised his arm at that stage. Also at 01:06:15 the CCTV footage then showed that Officer Traynor held, with his right hand, Dr Cunningham's lower left arm. Officer Traynor was then asked when Dr Cunningham had raised his arm. The following exchange took place (ts 949):

Are you able to describe at which point in that footage he raised his arm towards your face in the way that you described in your evidence-in-chief --- Well, I think it quite clearly shows that on the CCTV.

At which point is it? Is it a point before you have your hand on his arm or while you have your hand on his arm---I think at the time, if I recall correctly, I was explaining to him about obstructing us at that time and if he continued to obstruct us he would be arrested.

No, I'm asking about his arm. I'm asking you about him raising his arm. Was it before or after you had taken hold of his arm that he raised his arm towards your face---I think it was after, if I - going off the CCTV.

At a point in time at which you were holding his arm---Yes.

313 In re-examination the CCTV footage was shown again to Officer Traynor so that he could identify where Dr Cunningham had raised his arm. He identified the two occasions when he said that Dr Cunningham raised his arm as those occurring at about 01:06:10 (notwithstanding Officer Traynor's earlier concession in cross-examination that Dr Cunningham had not raised his arm at this stage) and 01:06:13 to 01:06:15. When I queried this based on what I had observed from watching the CCTV footage, Officer Traynor agreed with my observation that at 01:06:09 Dr Cunningham bent his left elbow so that his left forearm was at right angles to the ground at which point Officer Traynor grabbed his left arm (ts 1059 - 1060). Officer Traynor also agreed that at 01:06:13, he had grabbed Dr Cunningham's arm and then Dr Cunningham had lifted the arm, bending it at the elbow with Officer Traynor holding on to it; in other words Dr Cunningham did not lift his arm until after Officer Traynor had grabbed it (ts 1058-1059). Officer Traynor still maintained that these were the two times that he said Dr Cunningham raised his arm and then stated:

And you say it was near your face---Well, I had hold of his arm as he's bringing his arm up and - to try and control him from - to stop him from hitting my face.

314 Later in the re-examination Officer Traynor was taken to a portion of the CCTV footage between 01:06:13 and 01:06:20 and asked (in a leading way) if he could see Dr Cunningham 'acting in any way which indicates he is resisting you or obstructing you in dealing with Ms Atoms'. Officer Traynor said 'I think from the moment he raised his arm that he was obstructing'.

315 Officer Traynor's evidence on this issue continually changed. It changed from his initial evidence that he had reacted by grabbing Dr Cunningham's arm after Dr Cunningham had raised his arm, both in self defence and to arrest him as part of the one manoeuvre, to Officer Traynor having a hold of Dr Cunningham's arm as he was 'bringing his arm up' and trying to 'stop him from hitting my face'. It changed in terms of the timing, from two occasions when Officer Traynor said Dr Cunningham raised his arm at 01:06:09 and 01:06:13, to sometime between 01:06:13 and 01:06:20. Officer Traynor's evidence was unimpressive, objectively unreliable and unbelievable.

316 I move to another part of Officer Traynor's evidence which caused me considerable concern. He claimed that Dr Cunningham had said nothing when he first walked up to where the two officers were with Ms Atoms. In cross-examination Officer Traynor confirmed that Dr Cunningham did not utter a word. The relevant part of the CCTV footage was played to Officer Traynor in cross-examination and the following exchange occurred (ts 950):

And do you agree - and I'll play it back for you again if you'd like, but do you agree that on the footage Dr Cunningham appears to be talking to you?---It appears that his mouth is moving but he didn't talk to me.

So are you saying that he moved his mouth as if to mimic words but didn't actually voice the words?---No, I'm not saying that at all. Dr Cunningham was - he was kind of gritting his teeth. He was like in this sort of manner.

DAVIS DCJ: Sorry, in what manner?---Described - he's like doing all this with his movement of his mouth. He didn't actually talk.

Moving his mouth but not talking?---That's right.

And baring his teeth was what you just demonstrated to me?---Yes. I thought it was really extremely weird, and the way that he was pointing. He looked very, very aggressive and he was kind of like possessed.

317 The evidence that Officer Traynor gave about Dr Cunningham's gritting and baring his teeth, moving his mouth, along with his demonstration of this, and the evidence that Dr Cunningham appeared 'possessed' was simply unbelievable. It was not something mentioned before by Officer Traynor and it was certainly not put in cross-examination to Dr Cunningham. In my view this was an attempt by Officer Traynor to assert something new when confronted with the obvious, and it reflects badly on Officer Traynor's credibility.

318 There were inconsistencies between Officer Traynor's evidence at trial and what he said in the lock-up which were material to the issues in this case. For example, in his evidence at trial he did not suggest that either of the plaintiffs was intoxicated (ts 940). Yet at the lock-up he said a number of things suggesting that he was of the opinion that the plaintiffs were intoxicated and needed sobering up (as I have set out in my summary of the lock-up footage above, see in particular [255], [256] and [261]).

319 There were inconsistencies between Officer Traynor's evidence at trial and other evidence concerning the injuries he allegedly suffered as a result of having to deal with the plaintiffs. In his evidence at trial he claimed he had injured his back, yet he made no entry about any back injury in the P13 Occurrence Book (exhibit 1 tab 6 and exhibit 91). The only thing he recorded in P13 Occurrence Book was 'I/C Clark injured left elbow. I/C Traynor injured left arm'.

320 I heard no evidence at all of any injury to Officer Clark's left elbow. This in itself raises serious issues about the truthfulness and reliability of Officer Traynor's evidence of what occurred on this night.

321 In respect of the injury to Officer Traynor's left arm I heard nothing about this in his evidence in chief. He did give evidence about the injury in the course of cross-examination about the note he made in the P13 Occurrence Book (ts 916):

Now, I'm going to come back to the note later, but in the note you refer to First Class Constable Clark having injured his left elbow and you having injured your left arm. Do you see that? --- Yes.

Is that - that's the case, is it? You injured your left arm? --- Yes.

In the - in the events that you've described concerning the arrests of Ms Atoms and Dr Cunningham? --- Yes.

And what was the nature of the injury you suffered to your left arm? --- I think it was more strained.

Did you see a doctor about it? --- No.

322 Later, however, the following exchange occurred (ts 1023):

Would you agree that the term: Injured left arm - - suggests that there was some specific injury rather than a generalised pain in your arm --- I was suffering a lot of pain, to be honest, in my back as well but I think my arm was more sort of serious pain than my back that I put down my arm.

323 In the lock-up footage Officer Traynor moved freely and did not appear to be a man in pain. When it was put to him in cross-examination that for the hour he could be seen on the footage 'all of the occasions on which we see you on the CCTV you were experiencing significant pain in your left arm?', Officer Traynor then tried to explain that while he was in pain, it was not 'serious pain - not enough to go to hospital' (ts 1023). He then gave a description of aching 'more liked strained muscles rather than sort of severe injury. It was more like heavy straining' and that is why he missed his next shift at work (ts 1023 - 1024).

324 That evidence is another example of Officer Traynor changing his evidence in an attempt to explain away the obvious. The inconsistencies between the entry Officer Traynor made in the P13 Occurrence Book on the night and the evidence he gave in court have not been adequately explained by him and reflect poorly on his credibility.

325 These and other examples of unreliable and incredible evidence given by Officer Traynor, which I discuss further in these reasons in relation to each of the issues, lead me to conclude that I am unable to accept his evidence unless it is inherently probable or corroborated by other evidence which I am prepared to accept.

Preliminary observations on Officer Clark's credibility

326 During the course of giving evidence in relation to his counterclaim, Officer Clark stated that he honestly believed that everything he did that night was correct and he did nothing wrong (ts 1150). Officer Clark may well honestly believe that he did nothing wrong, however, I consider that he has reconstructed events and thus convinced himself that a fact was true when other objective evidence shows otherwise.

327 There were so many inconsistencies, not only between what Officer Clark has said on earlier occasions, but also within his evidence at trial, and between his evidence and the evidence of others, that on critical issues I have concluded that his evidence is neither accurate nor reliable.

328 For example, Officer Clark initially gave evidence that he was the one who gave Ms Atoms a warning that she would be issued with a move on notice and he asked for Ms Atoms' name and address. In cross-examination he then said he could not remember who told Ms Atoms she was going to get a move on notice (ts 1201). Then he was asked when he had asked Ms Atoms for her name and address. He did not answer directly, but said he could not remember whether it was himself or Officer Traynor who asked for her name and address (ts 1204). Later his testimony was that it was Officer Traynor who told her she was going to get a move on notice and asked for her name and address (ts 1204, 1206 and 1209). Then later Officer Clark stated that he may have also asked Ms Atoms for her details, but he was not sure (ts 1219).

329 Another example relates to the evidence from Officer Clark about Ms Atoms' behaviour and the offence he said she was committing to warrant a move on notice. In his evidence in chief he said (in an unhelpful, conclusionary way) that she was disorderly, committing a breach of the peace, hindering and obstructing. In cross-examination he went further and said that Ms Atoms was argumentative. He was asked to explain this (ts 1203) and gave evidence that 'She was getting asked for her name and address and she wasn't forthcoming with those details'. Then he gave this description (ts 1211; emphasis in italics added):

What was the offence that you say Ms Atoms had committed that caused you to form the view - or caused you to form the intention to issue her with a move on notice---Ms Atoms was present with the group that were causing a breach of the peace and acting in a disorderly manner. She further was argumentative with police. She was swearing at police. She was acting in a disorderly behaviour with insulting and offensive language and also her behaviour to be challenging police is insulting.

Okay. So --- And she was preventing us from carrying on with our lawful duty.

What was she doing? How was she preventing you from carrying on with --- By engaging with us and arguing with us.

By arguing with you ---Yes.

Well, hang on, what she'd said to you, on your evidence, was: 'Haven't you got anything better to do' - - et cetera --- Mm hmm.

And then she was asked for her details --- Yes.

So I'm asking about what she did before she was asked for her details that - that was the offence for which she was to be issued with a move on notice --- The swearing.

It's those quotes - words ---Yes.

Haven't you got anything better to fucking do? --- As well as the breach of the peace.

Well, what's the breach of the peace that she was committing --- She was with a group. She was present with a group of people who were falling in some bushes, acting in a drunk and disorderly matter and she was encouraging that behaviour by high fiving people from that group.

So when you say you formed the view she committed a breach of the peace, that's the conduct to which you're referring --- That she was present with this group of people - - -

Okay --- - - - who were clowning around.

330 This evidence from Officer Clark was, in my view, an attempt to bolster his evidence about Ms Atoms' alleged behaviour. I find this not only from the way in which he gave it but from the other evidence in this trial.

331 First, there is the CCTV footage, showing how Officer Clark dealt with the real culprits who had actually been in the bushes, in particular Males 1 and 2. (The other culprit, Male 3, had no interaction with the police at all). Male 1 was, of course, the person who had instigated the high five with Ms Atoms. None of the real culprits were issued with a move on notice. As Officer Clark later agreed in cross-examination (ts 1212) the fact that Ms Atoms was part of this group was, of itself, not a reason for issuing her with a move on notice.

332 Secondly, the evidence from Officer Clark about Ms Atoms' behaviour and the offence he said she was committing to warrant a move on notice is inconsistent with the evidence he gave during the hearing of the charges of obstructing police in the Magistrates Court in April 2010. In his evidence on this earlier occasion the reason for issuing the move on notice was disorderly behaviour. He did not say, on that earlier occasion, that she was committing a breach of the peace, or hindering or obstructing (ts 1213 and 1214).

333 Thirdly, in cross-examination Officer Clark stated that the reason for issuing her with a move on notice was because of the words (see [328] above and ts 1245).

334 Another example of an inconsistency between an out of court statement made by Officer Clark and his evidence at trial relates to what he said Ms Atoms was doing on the road, on Essex Street, before she was tasered. In the lock-up Officer Clark told the custody officer she was 'against my back'. At trial Officer Clark's evidence was that she had 'jumped' onto his back (ts 1121), but this then changed during cross-examination, when he said that she had her arms around his neck and was 'hanging' onto his back (ts 1261, 1262). This demonstrates that Officer Clark has a tendency to embellish and reconstruct material events.

335 There is another matter which, in my view, seriously affects the credibility of Officer Clark. That is the remarkable similarities between certain paragraphs of Officer Traynor's witness statement and paragraphs of the witness statement of Officer Clark, both prepared and signed for the purpose of the charges against Ms Atoms and Dr Cunningham of obstructing a public officer.

336 The two witness statements were tendered into evidence. Officer Traynor's statement is exhibit 86, Officer Clark's evidence is exhibit 89. As I have already set out, Officer Traynor sent a copy of his statement in his email of 4 November 2008 (exhibit 88) to Officer Clark.

337 There are no less than six paragraphs in each of the statements relating to critical aspects of the night which use exactly the same words to describe what was said to have occurred, down to having the same errors of grammar and punctuation, and the same quotes. In particular par 6 of Officer Traynor's statement and par 9 of Officer Clark's statement as to the words spoken by Ms Atoms - 'Haven't you got anything better to fucking do, just go and arrest some proper criminals' - are exactly the same save for different punctuation. (In Officer Clark's statement there is a full stop before the words 'just go and arrest some proper criminals, rather than a comma). And in par 13 of Officer Traynor's statement and par 21 of Officer Clark's statement, both of them quote Ms Atoms saying (about Dr Cunningham) 'This is my solicitor, let go of me'. Officer Clark suggested it was just a coincidence and in his re-examination he maintained this and denied he had copied from Officer Traynor's statement (ts 1288).

338 It is a matter of common experience, and indeed my own experience, that two people listening to another (third) person speak will rarely recall exactly what words that third person has spoken. There are usually differences in the two people's accounts, even when it has been only a short time after both people have heard the same words. It is also difficult to recall the exact words spoken in one sentence, let alone two sentences, as the allegation is in this case. That has also been the experience of the courts: Watson v Foxman (1995) 49 NSWLR 315, 318 - 319 (McLelland CJ).

339 There was extensive cross-examination of Officer Clark about the preparation of his statement. Given the identical wording and grammatical errors, I do not believe Officer Clark's denials that he did not cut and paste from Officer Traynor's statement. I am satisfied that Officer Clark used Officer Traynor's statement in the preparation of his own statement, particularly as to the words allegedly spoken by Ms Atoms.

340 I heard evidence from both Officers Traynor and Clark to the effect that they saw nothing wrong in one police officer providing his or her statement to another officer. Their counsel and counsel for the State also submitted, in essence, that there was nothing wrong with a police officer using the statement of another police officer in order to assist in preparing his or her own statement. Reliance was placed on Heanes v Herangi, a decision of a single judge of the Supreme Court, Johnson J. I am unable to accept the submission as it applies to this case, for the following reasons.

341 Needless to say, I accept the authority of Heanes v Herangi, but it is distinguishable. The situation in that case concerned whether the magistrate should have rejected, in the sense of excluding, evidence from police officers where there had been collaboration between them, as opposed to the issue of what weight should be given to their evidence. The reasons of Johnson J therefore canvassed the admissibility of the police officer's evidence. Johnson J ([50]) accepted the proposition that when assessing the credibility of a witness, it is relevant to consider whether his evidence is independent and uncontaminated. Her Honour also ([79]) understood the appellant's submission that the concern with the practice of discussing an event with another witness or being provided with a copy of the witness statement of another, is that such a process could result in a witness unintentionally adopting as his or her own recollection, the recollection of the other person.

342 However, despite what her Honour had earlier observed, Johnson J later stated [87] - [88]:

With respect to contentious matters, provided that police officers are aware that they may reproduce the recollection of another officer only if it accords with their own recollection, I can see no problem with using the statement of another officer as a template from which to produce their own statement. Constable Paul's knowledge and understanding of her responsibility to include in her witness statement only matters of which she had an actual recollection was not tested in cross-examination and there is, in my view, no reason to assume that she was unaware of such a fundamental point.

I consider the practice adopted to be a legitimate and efficient method of preparing witness statements, provided the content of the statement is in accordance with the particular officer's recollection of events; something which should be tested in cross-examination as it often is with lay witnesses.

343 I must respectfully express a contrary view to her Honour's comments. It may well be the practice that a police officer will use another officer's statement as a reference in preparing his or her statement. Perhaps that might be permissible on matters such as continuity, dates and times or things which are non-contentious. However, I do not consider it is a healthy practice on matters which are critical to the main elements of a criminal charge or anything that might be contentious.

344 As discussed by the English Court of Appeal in R v Skinner (1994) 99 Cr App R 212, 216, while it has been permissible for police officers to confer together in the making up of notebooks as an aid to memory, discussions between police officers about what evidence is going to be given is a different matter. In that case the Court of Appeal specifically disapproved of discussions between witnesses taking place, stating that 'it is hoped that they will not do so in the future', and explaining why this is so important in the case of police witnesses (Farquharson LJ, 216):

It is particularly important in the case of police officers because, as is well known, they are the only ones who give evidence fortified by the use of notes made at the time. In such a case, as indeed is the case here, witnesses can be attacked for giving evidence on grounds that they are giving not a true account of what occurred, but something which has been affected by the discussions they have had with somebody else.

345 In Houda v New South Wales [246] - [248] (referred to in Heanes v Herangi) Cooper AJ stated:

All of the police officers said that they saw nothing wrong with using the notebook or statement of another police officer in order to assist them in preparing their own statements. They emphasised that it was merely to help them refresh their memory and if something was said with which they did not agree they would not have adopted it as part of their own statement.

The fact, however, is that what each of the officers was doing was not writing down something that was his/her own independent recollection. What they were doing was accepting the recollection and statements of Constable Stebbing as their own recollection. This practice overlooks the fact that in relying upon another officer's statement as to the details of conversations there is a real danger of it being accepted as correct even though the personal recollection of the writer of the statement may be unclear or slightly different.

Furthermore, the value of evidence as corroboration is seriously diminished when that evidence is all based upon a statement of the witness sought to be corroborated.

346 I have had regard to the principles of judicial comity in Mustac v Medical Board of Western Australia [2007] WASCA 128 and Undershaft (No 1) Ltd v Commissioner of Taxation [2009] FCA 41; (2009) 175 FCR 150 [68] - [88]. To the extent that Johnson J in Heanes v Herangi expressed the view that it is permissible for police officers to confer in the making of witness statements, I must respectfully express a contrary view and a strong cautionary note. I agree with the comments expressed in Skinner and Houda. If it is a practice in this State that police officers confer in the making of their witness statements on any contentious issue or, as in this case, use a fellow officer's statement and cut and paste passages from it, I do not consider that to be either a legitimate or acceptable practice.

347 Be that as it may, the issue in this case is not the regularity of the procedure in Officer Clark using another officer's statement, but rather the implications for Officer Clark's credibility.

348 Counsel for the first, second and third defendants submitted that even if there had been a cutting and pasting, the question is whether Officer Clark had done that because he had no recollection of his own or no recollection having read the cut and pasted part, then supplanted his own recall. Relying on Heanes v Herangi [37], she suggested that counsel for the plaintiffs needed to go further and actually put that to Officer Clark, and counsel had not done so.

349 I do not agree with this submission. It was perfectly plain from the extensive cross-examination of Officer Clark (ts 1244 - 1255 and ts 1260), including that it was put that he was influenced by Officer Traynor's statement when preparing his own statement, and that he did cut and paste from Officer Traynor's statement, that what was being suggested was that the cutting and pasting meant that Officer Clark had no independent recollection.

350 Of course Officer Clark denied any cutting and pasting or using phrases from Officer Traynor's statement, and denied that he never prepared contemporaneous notes of these events because he wanted to wait until he had got his story straight with Officer Traynor (ts 1260), but having regard to all of the evidence I am unable to accept his denials.

351 The fact is that Officer Traynor did provide Officer Clark with a copy of his statement by email sent early on the morning of 4 November 2008. By using exact phrases and paragraphs from Officer Traynor's statement, which I have found that he did, Officer Clark was not writing down anything that was his own independent recollection. He adopted those parts of Officer Traynor's statement as his own recollection. I find that to be the case not only from looking at the two statements, but also having regard to the following two matters.

352 First, Office Clark made a scant notebook entry, (which I have set out in [55] above). Officer Clark admitted in cross-examination that the entry 'See statement for original notes' recorded an intention by him to prepare a statement at some time in the future, 'if there was one needed' i.e. if the matter was proceeding to trial or there was a plea of not guilty. Ordinarily it could take weeks or months before learning that an accused was going to plead not guilty. His intention at the time of making this entry was, therefore, that he would prepare a statement, potentially weeks or months in the future, without contemporaneous notes (ts 1181 - 1184).

353 Secondly, there are differences between the statement of material facts which Officer Clark prepared on 4 November 2008 and his witness statement. These include:

(a) In the statement of material facts it is stated that after Ms Atoms said the words, 'Police advised Atom [sic] she would be issued with a move on notice...' In other words, according to the statement of material facts, she was told she would be given a move on notice. However, in Officer Clark's witness statement (par 11) this is changed to say that after Ms Atoms said the words he said to her "Stop shouting and swearing and calm down. If you continue to act like this, I will issue you with a move on notice". In other words, he was giving her a warning. That is in line with par 8 of Officer Traynor's statement which states that Officer Clark 'warned Atoms to stop shouting and swearing'.

(b) In the statement of material facts Ms Atoms' response to being advised she would be issued with a move on notice reads 'in which she replied to say "You can't do that, I live in Fremantle" and she 'proceeded to walk off'. In his witness statement, Officer Clark Ms Atoms' response to being given the warning was 'You can't do that I live in Fremantle', but then he said (par 13 and 14 in his witness statement) she 'was intent on arguing and showed no signs of calming down' and that her 'friends had all walked off but she showed no intent to leave'. As Officer Clark admitted in cross-examination the two underlined passages cannot both be true. He had no explanation as to why the two documents he prepared conveyed the opposite effect (ts 1249). But what is in Officer Traynor's statement par 9 is that Ms Atoms 'continued to argue and would not move away'.

(c) In par 15 and 16 of his statement, Officer Clark stated that he then informed Ms Atoms she was detained in order for him to obtain her name and address allowing him to complete a move on notice, to which Ms Atoms shouted 'no, your [sic] not' and began to walk off towards South Terrace. There is no mention of this in the statement of material facts. The words in par 16 of Officer Clark's statement as to the words spoken by Ms Atoms are exactly the same as in Officer Traynor's statement par 10, with the same grammatical error in the use of the word 'your' instead of 'you're'.

(d) Another matter not in the statement of material facts but which was in Officer Clark's statement par 25 and 26 relating to the arrest of Dr Cunningham was an allegation that Officer Clark feared for his safety and Dr Cunningham had 'raised one of his arms in an aggressive manner'. (It was, however, another matter in Officer Traynor's statement, par 16.)

354 The differences between the statements of fact in these two documents said to have been prepared on the same day were not adequately explained by Officer Clark. His explanation that the statement of material facts is a summary only does not explain how the matters I have set out in [353](d) were not included in the statement of material facts relevant to Dr Cunningham's alleged obstruction of police when, during this trial, Officer Clark stated that 'it was at that point he was arrested' and 'that was part of him obstructing what we were doing' (ts 1254).

355 In these circumstances, Officer Clark's use and adoption of parts of Officer Traynor's witness statement as his own recollection particularly affects Officer Clark's credibility and really calls into question whether I can rely on any particulars in the evidence he has given about the disputed matters in this trial.

356 There are other matters which affect Officer Clark's credibility, which I discuss below in relation to each of the issues. Because of these matters I have concluded that I am unable to accept his evidence except to the extent that it is inherently probable or corroborated by other evidence which I am prepared to accept.

357 There is one final matter relating to the witness statements. These were tendered into evidence by counsel for the plaintiffs, without objection. Given the extensive cross-examination on the statements and their similarities, I understood the tender to be so that I could compare the two for the purpose of assessment of credibility: see the discussion in Cross on Evidence (9th Australian Ed, JD Heydon, LexisNexis Butterworths, 2013) [17205]. I did not understand those witness statements to be tendered as to the truth of what was in them.

358 However, subsequently in final submissions, counsel for the first, second and third defendants submitted to me that the witness statements 'went into evidence and they weren't said to be put forward to you for some limited purpose' (ts 1748). Counsel then asked me to take the statements into account as according with the evidence of her clients. This submission was made notwithstanding that when the plaintiffs' counsel sought to tender Officer Clark's statement, counsel for the first, second and third defendants told me at that stage (ts 1348):

... I don't have any particular difficulty. I wouldn't have thought that the statement needed to be tendered, given the cross-examination on it, but I don't have any difficulty, your Honour, if you need it.

(italics my emphasis)

359 I do not consider that the witness statements were tendered for all purposes, but even if they had been, what weight I am prepared to give to each of the statements is a matter for me, having regard to all of the other evidence in this trial. I am not prepared to give much, if any, weight to Officer Traynor's and Officer Clark's written statements. My reasons for doing so include not only the matters of credibility I have already discussed, but other matters in these reasons when I review the issues regarding liability and my findings.

Preliminary observations on Mr Caldwell's credibility

360 During his examination in chief Mr Caldwell gave me his history in the police force, including that he had been promoted to the rank of sergeant in March 2008 and then he had retired in October 2013. He gave evidence that he had a 12 months 'secondment' to Crime Stoppers. He also gave evidence that he had received the WA Police medal and the National Police medal. When I asked what these medals were for he told me that the National Police medal was for 'good conduct' as well as long service (10 years in the case of the WA Police medal and 15 years in the case of the National medal: ts 1297).

361 It transpired, only after cross-examination, that:

(a) the position Mr Caldwell held as sergeant was a brevet position, which was in the nature of an acting sergeant's role held until 2011 or 2012, and the rank he held on retirement was senior constable, although he had applied for the appointment of sergeant (ts 1324 - 1325);

(b) the National Police medal is only for 15 years' service, not good conduct, although he insisted it was also for 'diligent service' (ts 1325); and

(c) the 12-month period he spent at Crime Stoppers was part of the outcome imposed on Mr Caldwell by a police disciplinary tribunal for wilfully making a false statement, which he explained related to giving false evidence in the Magistrates Court (ts 1326, 1330 and 1332).

362 The cross-examination also revealed that while in the police force and before the events of 2 November 2008, Mr Caldwell had been the subject of other disciplinary proceedings including where he was found guilty of charges of conduct unbecoming and use of unnecessary force (ts 1335).

363 Mr Caldwell was openly dismissive of those disciplinary proceedings during cross-examination. When asked what the police disciplinary tribunal was called, he answered 'No idea. I call it kangaroo court but that's my opinion' (ts 1329). He had been ordered at one stage to undergo counselling, but he did not do this (ts 1338) and he told me this in an off-hand, almost dismissive way. He was ordered to undergo psychiatric assessment and he did not undergo that either (ts 1340).

364 After the tasering of the plaintiffs Mr Caldwell made no entry in his police notebook about the tasering, and no entry in the Police Occurrence book, but he did complete a Use Of Force Report for the use of the taser. When preparing this Report (exhibit 1 tab 11), Mr Caldwell:

(a) Noted both the time of the incident and the time of the report as 0100 hours. Both cannot be correct. In fact as Mr Caldwell admitted in cross-examination, he could not have prepared it before 3.00 am (ts 1367). He could give no explanation as to why he gave 1.00 am as the time of the report.

(b) Noted two other officers other than himself involved, Officers Clark and Traynor, and failed to mention the presence of a fourth officer in his incident report. Mr Caldwell's own evidence was there was a fourth officer present, whom Mr Caldwell asked to look after Ms Atoms before he tasered Dr Cunningham. Mr Caldwell's only explanation was that this was 'probably an oversight' (ts 1373 and also 1378).

(c) Noted that each of Officer Clark and Traynor had an injury described as 'swelling/sprain' for which there was medical treatment 'First Aid - At Scene'. I heard no evidence of either Officer Clark or Traynor suffering any swelling or sprain injury, and there was no evidence that either of them received medical treatment at all that night, whether at the scene or anywhere else. In fact, when I asked Officer Clark about this he told me he was not treated at the scene with first aid and did not have any swelling or sprain (ts 1290).

365 This was not the first time that Mr Caldwell had prepared a Use of Force Report. He was familiar with its requirements, as Mr Caldwell gave evidence that tasers were introduced for the general police force some time between 2005 and 2007 and before 2 November 2008 he had discharged a taser about 12 times. He agreed that this was the thirteenth time he had prepared such a report (ts 1344, 1345 and 1373).

366 Mr Caldwell made a written statement on 10 December 2008, which he knew would be used in the criminal proceedings against the plaintiffs. In that statement he described:

(a) Hearing an urgent call at 12.45 am. This conflicts with the Use of Force report which records the time of the incident was 1.00 am. When cross-examined about this he said 'I would say the 1 am's wrong'.

(b) The circumstances in which he said he discharged the taser on Dr Cunningham. He made no mention in the statement about another officer being present. He was asked why he did not mention this and this exchange took place (ts 1407):

Do you know why that was --- Nah, I don't know why.

Is that another oversight by you --- No, I may not have thought it was relevant. I - I don't know. I can't answer it. I - I did this statement seven and a half years ago so - - -

367 All of the above matters raise a real question as to Mr Caldwell's attention to detail, but in reality there is also a real issue about his honesty and whether I can rely upon any of the evidence he gave during the trial. He has a proven propensity to lie (see [361](c) above), a disrespect for the work of tribunals (see [363] above), and a cavalier tendency to give both inaccurate and self-serving accounts of events.

368 I am not prepared to act on any of his evidence unless it is inherently probable or there is confirmation of it from other evidence which I accept.

369 Mr Nathan Hicks was not called by either party to give evidence during this trial. The CCTV footage shows that he was there and, on the face of it, might have been able to give evidence about what was said on the footpath and also what happened on the road.

371 Counsel for all of the defendants asked me to draw a so-called Jones v Dunkel inference against the plaintiffs for their failure to both call Mr Hicks and Mr Brophy, arguing that both witnesses were in the plaintiff's camp and that I should draw the inference that what Mr Hicks and Mr Brophy might have said would not have helped the plaintiffs' cases. Counsel for the fourth defendant, the State, went further and submitted that I could more readily accept Officer Traynor's and Clark's evidence over that of Ms Atoms and Dr Cunningham where there is conflict between the two (ts 1625).

372 The rule in Jones v Dunkel provides that an unexplained failure by a party to call a witness or other evidence may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted that party's case: see Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 [63]; Bell Group Ltd (in liq) v Westpac Banking Corp (No 9) [2008] WASC 239; (2008) 225 FLR 1.

373 Whether the failure to call a witness gives rise to that inference depends upon a number of circumstances which were summarized by Owen J in Bell [999] - [1022].

374 The rule in Jones v Dunkel does not apply to the non-calling of a witness by a particular party unless it might be natural to expect that party to call that witness, or the party might reasonably be expected to call the witness: Bell [1015]; Cross on Evidence [1215] and Payne v Parker [1976] 1 NSWLR 191, 200 - 202. In Payne v Parker, as summarised in Bell [1015], Glass JA said that it would be natural to expect that a witness would be called by one party rather than the other where:

(a) the witness would be expected to be available to one party rather than the other;

(b) the circumstances excuse one party from calling the witness but require the other party to call him or her;

(c) the witness might be regarded as in the camp of one party so as to make it unrealistic for the other party to call him or her;

(d) the knowledge of the witness may be regarded as the knowledge of one party rather than the other; or

(e) a witness's absence should be regarded as adverse to the interests of one party rather than another.

375 The closeness of the relationship between the absent witness and the party who did not call the witness is relevant. So, for example, where the relationship with the party criticised for not calling the witness has ceased, no adverse inference can arise: Shum Yip Properties Development Ltd v Chatswood Investment and Development Co Pty Ltd [2002] NSWSC 13; (2002) 40 ACSR 619 [64], Claremont Petroleum v Cummings [1992] FCA 446; (1992) 110 ALR 239.

376 There are circumstances in which it has been recognised that a Jones v Dunkel inference is not available or, if available, is of little significance. The party may not know or be sufficiently aware of what the witness would say. A party is not required, under pain of the drawing of an adverse inference, to call a witness 'blind': Bell [1006] - [1007]; Hewett v Medical Board of Western Australia [2004] WASCA 170.

377 No adverse inference can be drawn if the failure to call a witness is explained by, for example, illness or other unavailability or by loss of memory: Bell [1008]; Cross on Evidence [1215]; Hewett [205].

378 Ms Atoms gave evidence that at the time of the incident on 2 November 2008 Mr Hicks was not a close friend but an 'associate'. Also, in her opinion, on the night of 2 November 2008 Mr Hicks was highly intoxicated, based on her observations of him being rowdy and a little silly (ts 135). The last time she had had any form of contact with him was several years ago and they had 'no relationship'. She explained why as follows (ts 155):

In - in going to defend ourselves against the charges that were put before us we asked for his support as a witness. And he said that he couldn't remember anything, that he was very drunk, that he - you know, he didn't really see anything, that he left. And then shortly after the event though when I tried to pursue him about the contact that he'd had with someone who had footage, which was very shortly after the event, he said that he didn't - he didn't remember anything about that, he didn't have any contact, and he - with - I didn't know him well enough, but I found - it was a really serious matter and I - not having his support in defending the charge made me discount him as a - anything more than someone who I'd known.

379 Ms Atoms later gave evidence during cross-examination by counsel for the State to the effect that she and Dr Cunningham had a falling out with Mr Hicks before the hearing of the charges in 2010. She confirmed that Mr Hicks said that he had spoken to someone else who had footage, and then afterwards Mr Hicks forgot that conversation about the footage and could not find the contact details he had taken for the person who had the footage. As Ms Atoms described it, 'I was very upset with him ... I don't think he understood how serious it was' (ts 230). The last contact she or Dr Cunningham had with Mr Hicks was leading up to the charges which were dismissed in 2010 when they were looking for his support.

380 Dr Cunningham also gave evidence of his observations of Mr Hicks on this night, whom he saw drinking on a 'relatively constant basis'. Dr Cunningham observed Mr Hicks staggering a little bit and slurring his speech a little bit and could see he was drunk (ts 609). The last time he spoke to Mr Hicks was before the trial of the criminal charges in April 2010 (ts 661). In cross-examination by counsel for the State, Dr Cunningham said that his views on Mr Hicks were neutral, although he considered that Hicks' evidence would always be affected by both the length of time and also his intoxication on the night (ts 727 and 728).

381 In addition, in relation to this Jones v Dunkel issue and to explain the decision not to call Mr Hicks, the plaintiffs twice sought to tender a letter dated 14 March 2011 from the CCC to Dr Cunningham. This appears to be written in response to a letter by Dr Cunningham of 9 December 2010 in which he stated he was 'grossly dissatisfied with the process and outcomes of the police internal investigation' about the actions of each of the first, second and third defendants. In the CCC letter there was a statement that the CCC had contacted Mr Hicks and he had said that he now has no recollection whatsoever of the incident. I twice ruled this letter inadmissible (ts 68 - 69 and ts 648 and ts 656 - 657), but in light of the Jones v Dunkel submissions made by counsel for the defendants (in particular, counsel for the State) in their closing submissions, I permitted the plaintiffs to re-apply to have this letter tendered into evidence. I was particularly concerned by the submissions on behalf of the State that, in effect, to overcome any Jones v Dunkel inference on the basis of loss of memory, the plaintiffs needed to call Mr Hicks to give such evidence in a direct and admissible way. This submission was made relying on West v Government Insurance Office of New South Wales [1981] HCA 38; (1981) 148 CLR 62, 70 where Murphy J stated:

If unavailability of witnesses or absence of recollection is the explanation for failure to call the witnesses this should be given by evidence. It is not to be presumed from passage of some years.

382 I have received and had regard to written submissions from all parties filed after the conclusion of the trial.

383 In my view, having considered all of the relevant Jones v Dunkel principles, the submissions made and authorities referred to me by counsel and the other evidence which I have about Mr Hicks, particularly that led by counsel for the State from Ms Atoms, I do not consider it is necessary to make a third ruling on whether or not the CCC letter should be admitted into evidence.

384 Even without the CCC letter I am not persuaded that the relationship between the plaintiffs and Mr Hicks was such as to create an expectation that the plaintiffs would call him. I do not accept the defendants' submissions that Mr Hicks was in the camp of the plaintiff so as to make it unrealistic for the defendants to call him, or that his knowledge might be regarded as the knowledge of the plaintiffs rather than the defendants. I am not satisfied that the absence of Mr Hicks should be regarded as adverse to the interests of the plaintiffs rather than the defendants. In my view it was equally open to the defendants to call Mr Hicks if, in fact, his evidence would have elucidated a matter.

385 I would add that I do not accept the State's submission that the plaintiffs needed to call Mr Hicks himself in order to overcome any Jones v Dunkel inference on the basis of loss of memory. I do not understand this to be required by the statement of Murphy J in West v Government Insurance Office of NSW (in which case, involving a motor vehicle accident, there was an unexplained failure to call four witnesses in the other car). Further, as a matter of logic and common sense the submission cannot be right, since if Mr Hicks was called by the plaintiffs, Jones v Dunkel would not even arise.

386 The significance to be attributed to the fact that a witness did not give evidence depends in the end upon whether, in the circumstances, it is to be inferred that the reason why the witness was not called was because the party expected to call him feared to do so: Bell [1022]. In all the circumstances I am not persuaded that the plaintiffs did not call Mr Hicks because they feared to do so.

387 In the case of Mr Brophy, I am also not satisfied that he was in the plaintiffs' camp or that it would be natural for the plaintiffs to call him, or that his knowledge might be regarded as the knowledge of the plaintiffs rather than the defendants. I should also observe that the defendants' Jones v Dunkel submissions concerning Mr Brophy were on the basis that he was a witness who had knowledge and would have elucidated a matter. Officer Stevenson spoke to Mr Brophy on the night of 2 November 2008 and, if in fact his evidence would have elucidated a matter, it was equally open to the defendants to call him.

388 In addition, there is evidence that Mr Brophy was affected by alcohol on this night and that evidence came from Officer Stevenson who described him as obnoxious and intoxicated (ts 1420 - 1421) and in Officer Stevenson's opinion 'pretty drunk' (ts 1440).

389 In these circumstances I am not prepared to draw any adverse inference against the plaintiffs because they did not call either Mr Hicks or Mr Brophy.

390 If I am wrong in my assessment, particularly in relation to Mr Hicks, and if, as urged upon me by the defendants the failure to call him is unexplained, the failure to do so may (but not must) allow me to infer that the evidence of Mr Hicks would not have assisted the plaintiffs' case: Fazio v Fazio [138].

391 In addition, the rule in Jones v Dunkel cannot permit an inference that the evidence from either Mr Hicks or Mr Brophy would in fact have been damaging to the plaintiffs: HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 [303]; Brandi v Mingot (1976) 12 ALR 551, 559 - 560.

392 Nor can it be used to fill gaps in the evidence, or to convert conjecture and suspicion into inference: Bell [1004]; Fazio [136].

393 Finally, the rule does not prevent my drawing any inference favourable to the plaintiffs. Other evidence may justify the drawing of the inference: Bell [1018]; Fazio [136].

PART FOUR - FINDINGS ON ISSUES RELATING TO LIABILITY

1. What happened before Ms Atoms was grabbed by Officer Traynor?

394 This issue deals with what happened on the footpath before Ms Atoms was grabbed by Officer Traynor, up to the point when Dr Cunningham walked up to the police officers.

395 Ms Atoms' evidence was that on seeing the man in the bushes outside the Esplanade Hotel, she went to help. Dr Cunningham and Mr Hicks were right behind her, and insisted on pulling the man out of the bushes. As Ms Atoms described it, it was a little bit comical because it was like he was in a bean bag and so she suggested that he had to roll out. She recalled taking the man's foot in order to help him turn himself over and off the bushes. At some stage she saw someone push Dr Cunningham into the bushes.

396 She then remembered turning around and 'there's a police officer there speaking to me' (ts 136). That police officer she now knows is Officer Traynor. He said something like 'you are going to have to pay for the damage to those bushes'. Ms Atoms' evidence was she explained that she had been stopping to help. In response, Officer Traynor said something like 'we have been standing here watching you jumping in and out of those bushes and we have got you on video jumping in and out of those bushes.' She said something like 'you might think that was me and it's good that you have video but I can assure you that I didn't enter the bushes.'

397 Ms Atoms then gave evidence that the officer said something like 'I'm telling you to get out of Fremantle'. She responded by telling the officer (Officer Traynor) that 'I live in Fremantle. I don't understand, are you saying I have to leave Fremantle?' Her evidence then was (ts 137 - 138):

He said something like - that reinforced the first thing that he said, which I still didn't understand, which was something like, 'I'm telling you to get out of Fremantle'. And - and he said something like, 'In 24 hours', or, 'For 24 hours', which I didn't try and understand more because the first part of it was about leaving Fremantle. So putting aside that I didn't understand whether it was in or for 24 hours, I - he said something like, 'I'm telling you to leave Fremantle'.

398 Ms Atoms' evidence then was that after Officer Traynor said, 'I'm telling you to go', she turned to leave. When she turned to leave he grabbed her arm quite strongly and pulled her backwards.

399 Ms Atoms then said something to Officer Traynor like 'please, you're really scaring me and I don't understand you'. She remembered trying to put some distance between herself and the officer and tried to explain that she did not understand what she was being directed to do. She told the officer that he was telling her to go, but not letting her leave. In response to this the officer said 'I'm giving you an order' or it may have been 'I'm telling you again' to leave. Her recollection, Ms Atoms admitted, was imperfect but what was said was something again that reinforced to her that she needed to leave, and so she tried to leave again.

400 She was then grabbed a second time and this time the officer kept hold of her. Ms Atoms gave evidence that when he grabbed her this second time it really hurt and she told him he was hurting her and said 'please let me go'. It was then that Dr Cunningham came up.

401 Ms Atoms stated that before she was grabbed she believed she was quite reasonable in the tone of her voice. She thought it was a simple misunderstanding. After she was grabbed she said she was a little bit scared. She expected she might have sounded different but she would certainly do her best to speak 'with respect in the very least'. She was certain that she did not swear and did not believe she shouted. She explained that the situation 'seemed to escalate disproportionately and my habit would be to de-escalate it by speaking in a more moderate tone' (ts 140).

402 In cross-examination by counsel for the first, second and third defendants, the following exchange occurred (ts 563):

Well, when you started to say in your evidence, 'I'm giving you an order to' --- Yes.

- - - that was a reference to a move-on order, wasn't it --- No.

You heard the police officers that night telling you that they were going to give you a move-on notice, didn't you --- No.

No. But you have a recollection of being told about needing to leave Fremantle, is that right? Is that your recollection of what was said --- Yes.

And your recollection was you heard the words either 'for 24 hours' or 'in 24 hours' --- Yes.

Is that right --- Yes.

Could it have been the case that what was said to you was, 'You're going to be required to leave the area for 24 hours' --- That would have been delightful if that was the case because I would have understood that clearly.

403 Ms Atoms was also asked why, when she saw the police arrive, she did not just walk away (ts 564):

Well, when you saw the police, why didn't you just walk away --- Because the police officer was speaking to me.

But you said you weren't involved in the matter, so why didn't you just walk away --- Because the police officer was speaking to me and it's quite rude to just walk away when someone's speaking to you.

404 Similarly, in cross-examination by counsel for the State Ms Atoms was asked why she was 'still around the police' and why she did not leave. This exchange took place between counsel for the State and Ms Atoms (ts 264 - 265):

Why are you still around the police --- The police officer was speaking to me.

Are you saying that when they came, you're the only person they spoke to --- I believe - I don't recall Traynor speaking to anyone else. I could be wrong.

The police said, 'Break it up. Get out of here,' didn't they, or words to that effect --- No. Clark may have said - I didn't recall anything that Clark said so I'm not - I can't answer to anything that Clark may have said at all.

So everyone else but you did get out of there - and Nathan, sorry. Everyone else did get out of there, didn't they --- They did, yes.

You didn't, did you --- I tried to leave.

No, initially. Before any laying of hands on anyone --- Constable Traynor was speaking to me. I'm not sure if it's constable, sorry, so I'll call him Traynor.

All right. Do you accept that you had the opportunity to get as far up the road as Robert did --- Do I accept that?

Yes. I'm putting to you that if Robert had dragged himself out of the bushes and got 20 metres up the road and the drunks had gone out of view the other way, that you had the opportunity to go at least as far as those persons --- With respect, I tried to leave.

405 Dr Cunningham's evidence was that as he approached the shrubs or bushes that are on the side of the Esplanade Hotel, he could see there was someone stuck in the bush, and he heard someone call for assistance or ask for help. 'And so we approached that person, with a view of seeking to lift them out of the bush' (ts 610). The 'we' was Ms Atoms and himself. Someone else was there but he was not sure who that other person was.

406 Dr Cunningham tried to get the person's legs and someone else was on his arms and they were trying to dislodge him. As he was holding the person's leg, trying to dislodge him from the shrubs, Dr Cunningham was pushed into the bush and he ended up in the shrubs.

407 Once he had been pushed into the bushes Dr Cunningham realised that this was more than just a call for help and perhaps the others he had been helping were just fooling around, and he should just remove himself from the situation (ts 610). He had got himself a bit stuck in the bushes, but as soon as he was able to dislodge himself he did that and walked away up Essex Street.

408 Dr Cunningham walked about 10 m from the area up to a pole. He stood there and then turned around after a little while to see where Ms Atoms was. He saw that two police officers had approached her, and they were talking with her at that point. He could not really hear any precise words that were spoken, but was able to see that Officer Traynor was doing most of the talking and his demeanour was 'quite aggressive'. When asked what he saw which led him to describe Officer Traynor as being aggressive, Dr Cunningham explained that he seemed to be 'quite pumped', tense in his body and to be 'in a sense ... standing over' Ms Atoms (ts 611).

409 In cross-examination Dr Cunningham described how Officer Traynor was in conversation with Ms Atoms at first, but he became progressively 'pumped' and more aggressive. He was standing with his feet spread apart, his chest out and an angry facial expression and the crux was when he 'manhandled' Ms Atoms (ts 673 - 675).

410 Dr Cunningham's evidence was that when Ms Atoms sought to move away from the police officers, he saw Officer Traynor grab her 'in quite an aggressive manner with what appeared to be some sort of pressure - pressure hold on her wrist, and she screamed in pain at that time ... She just went "Ow" '. Dr Cunningham had begun to approach both Ms Atoms and the police officers, who were in a group at this point. Up to the point to when Dr Cunningham reached her and the two officers, he did not hear Ms Atoms raise her voice or swear (ts 613 - 614).

411 Officer Traynor's evidence was that he and Officer Clark were on patrol 'looking for antisocial behaviour' (ts 875). As they travelled down Essex Street towards Marine Terrace he saw a group of 'loud, vocal people who appeared to be drunk' and 'falling in and out of bushes'. He formed the opinion that these people were drunk because they were 'staggering around, falling around, very vocal, loud'. He was not, however, able to identify who had been falling in and out of bushes, nor could he identify who in the group of people were drunk, or staggering and falling around.

412 Officer Clark, who was driving, stopped the police van, Officer Traynor got out of the passenger seat and walked towards the group. He stated that he did not reach the group of people because he was stopped by Ms Atoms - 'she stopped me from going any further. She came right up to me' (ts 880).

413 Officer Traynor gave evidence that the first thing which Ms Atoms said was 'Have you not got anything better to fucking do? Go and arrest some proper criminals'. (In cross-examination he was adamant that the words were the first thing Ms Atoms had said: ts 931, ts 934 and 935.)

414 Officer Traynor then gave evidence that Ms Atoms was loud, argumentative, aggressive and 'I just felt that she was very disrespectful' and that what she had said to him was 'quite insulting'. He said something to her which he was not able to recall and his evidence was that Ms Atoms 'continued to argue as if she knew better and as if she was above the law' (ts 881). He could not remember what she said, only that 'it was very much similar to the comments that I have earlier described'.

415 Officer Traynor assessed her as being disorderly, referring to her language 'which was offensive and insulting and disrespectful' (ts 882). He was then taken through what was involved in relation to a move on notice and at the conclusion of this he added (ts 883 - 884):

Sorry, there is - there is another condition which is hindering and obstructing a person as well which probably I should add in - in these circumstances.

416 Officer Traynor then gave evidence that he was 'considering' issuing a move on notice for Ms Atoms 'for the hindering and the disorderly behaviour', referring to her language and what he described as her 'disrespect, her insulting behaviour which I considered to be disorderly and probably not warranting an arrest at that time' (ts 884). I asked Officer Traynor:

What was the hindering --- I believe that her - by coming in front of me and questioning my authority at that time when I'm responding to dealing with a situation, that she was a hinder to me of conducting my role as a police officer.

417 In cross-examination (ts 938 and 939) Officer Traynor stated that he thought Ms Atoms' behaviour was insulting and disrespectful to him as a police officer dealing with an incident and that her behaviour was a hindrance to him completing his duties, because his intention was to move the group along and he had been prevented from doing that.

418 Officer Traynor's evidence was that Officer Clark asked him for a move on order book and so he looked in his vest for a book. He was not sure if he handed that to Officer Clark or not, adding 'we didn't get to the stage of being able to fill that out'.

419 In order to issue a move on notice, police are required to obtain the personal details of the person, however Officer Traynor's evidence was that neither he nor Officer Clark obtained Ms Atoms' personal details. At first Officer Traynor could not recall asking Ms Atoms for her personal details and he had no recollection of Officer Clark asking for them (ts 885). After purporting to refresh his memory from his statement (exhibit 86) (which was done without objection), Officer Traynor said he could recall that Officer Clark requested her personal details for the purpose of a move on order. At that point, after he requested that information, Officer Traynor's evidence was (ts 893):

... I believe I said that, 'You're detained for the purpose of providing that information,' and she said, 'No, you're not', or something like that.

420 As to what happened next, Officer Traynor had no independent recollection but, having seen the CCTV footage, he accepted that, in his words, he 'touched' Ms Atoms and that he did so twice, and he was also able to remember that he touched her the first time 'to get her attention ... because I was dealing with her in relation to her behaviour' (ts 895). That was really as far as he went in his evidence in chief, up to the time of seeing Dr Cunningham.

421 In cross-examination he agreed that he grabbed Ms Atoms or held on to her twice. He said the first time was to get her attention, the second time was to detain her for the purpose of obtaining her details for the move-on notice (ts 927). Then after watching the CCTV footage, he said he grabbed hold of her arm the first time 'to get her attention so I could continue to speak with her'. When he was asked if he had told her at that stage he was going to issue her with a move on notice, he answered that he believed Officer Clark 'may have' told her that (ts 928). Later his evidence was that the second time he grabbed her was to prevent her leaving because by that time Officer Clark had asked for her name and address. He said he had a conversation with Ms Atoms and explained that she was detained for the purpose of issuing the move-on notice (ts 941). It was then that Dr Cunningham came along.

422 Officer Clark recalled a group of people standing on the footpath and 'two or three people' jumping in some bushes. He could hear a lot of shouting going on, and laughing and joking and swearing, which he could hear over the sound of the police vehicle he was driving, but he could not distinguish who in the group were shouting and swearing. He said he wanted to speak to the group of people and ask them to stop doing what they were doing because 'They appeared to be mucking around, breaching the peace and causing a disturbance' (ts 1110). He parked the police van on the road, facing towards the Esplanade, on the left-hand side of the road, but not in a car parking area or bay. He got out and walked across with Officer Traynor slightly behind him.

423 Officer Clark dealt with the two males that walked towards him, who seemed to him to be very drunk, asking them to quieten down and to leave. His evidence was that he did not really pay attention to what Officer Traynor was doing. Officer Clark could remember having a laugh and a joke with the two males and he followed them for a few steps as they started to walk towards the Esplanade.

424 He then heard the voice of a female behind him, shouting. He turned around and could see a female, who he knows now to be Ms Atoms, arguing with Officer Traynor. They were about 2 m away from each other. She seemed angry and agitated. She was using a raised voice, and swear words and she was 'gesturing frantically with her hands towards Senior Constable Traynor'. Officer Clark explained 'gesturing frantically' as 'her hands were moving a lot'. He gave evidence he could remember her saying words to the effect of 'Haven't you got anything better to fucking do? Go and arrest some proper criminals' (ts 1113).

425 Officer Clark's evidence was that he then approached and said words to the effect of 'Stop shouting and swearing. Just calm down. Otherwise we'll issue a removal [sic - move on] notice'. He said these words because 'I reasonably suspected that she was committing the offence of disorderly behaviour'. When he was asked why he formed that view, his evidence was (ts 1113):

I suspected that the female was with the group that was causing the breach of the peace in the initial instance. She was arguing with a police officer. She was using offensive language by swearing. And she was also preventing us from conducting our lawful activities. We were unable to continue with our duties while she was arguing with Senior Constable Traynor.

426 Officer Clark gave evidence that after telling her about the move on notice, Ms Atoms said words to the effect of 'You can't do that. I live in Fremantle'. There was then a further conversation about the move on notice which Officer Clark could not recollect, nor could he remember whether that conversation was with him or Officer Traynor, but then Ms Atoms turned around and began to walk away. Officer Clark was then asked whether he did get a move on notice out for Ms Atoms. His evidence (ts 1114) then was that he reached into his load-bearing vest, unzipped it and that was when he realised he did not have it (the move on notice book) with him.

427 As to how Ms Atoms began to walk away, Officer Clark described how she took a couple of steps towards South Terrace and then she turned towards Officer Traynor. (Officer Clark did not give any evidence of the first grab by Officer Traynor).

428 Officer Clark's evidence was that he (ie Officer Clark) then asked Ms Atoms for her name and address and she did not give it. Officer Traynor then said something further about needing her name and address in order to complete the move on notice. Ms Atoms then said something about police not going to issue her with a move on notice, although Officer Clark could not remember the exact words she used, and she turned to walk off. Office Traynor then took hold of her arm and wrist, she turned and faced him and 'started arguing again' (ts 1115). Then Dr Cunningham walked up.

429 I have already set out in [328] above some of the inconsistencies between Officer Clark's evidence in chief and his later evidence under cross-examination about who told Ms Atoms about the move on notice and asked for her name and address.

430 I have a number of difficulties with the evidence from each of Officer Traynor and Officer Clark and considerable doubts about the veracity of their evidence about what occurred in their dealings with Ms Atoms on the footpath before the arrival of Dr Cunningham, for the following reasons.

431 I am not able to accept Officer Traynor's evidence that when he first walked up to the group of people on the footpath he was stopped by Ms Atoms. Contrary to the submissions made by counsel for Officer Traynor, and as I have already discussed in [310] above, Officer Traynor's evidence about this is inconsistent with the CCTV footage and implausible.

432 I am unable to accept the evidence of Officer Traynor and Officer Clark about the words Ms Atoms allegedly spoke, which from each of them was almost exactly the same words, for the following reasons.

433 First, as a matter of common sense and given the findings I have made about the CCTV footage, it is in my view inherently improbable that Ms Atoms said the words, because at no stage did either police officer actually arrest or seek to arrest anyone. There was no reason for her to raise that matter.

434 Secondly, it is in my view inherently improbable that each of these police officers could recall the exact words which were spoken and be able to, many years later, give almost exactly the same evidence.

435 Counsel for the first, second and third defendants submitted that the 'simple answer' to the fact that exactly the same expression is used by both Officers Traynor and Clark as to the words spoken by Ms Atoms was that 'if two people are standing within two metres of Ms Atoms and they both recall the exact same expression made by Ms Atoms on the night that is entirely explainable by the fact that they both heard exactly the same thing'.

436 I am unable to accept this submission. In my view, the fact that Officers Traynor's and Clark's recollections of an alleged statement made by Ms Atoms were identical, renders each of their versions less, rather than more, satisfactory.

437 As I have already discussed in [338] above, it is most unlikely that two people will recall exactly, word for word, something said by another person even if they are asked to recount what they heard a short time later. It is even more unlikely that anyone giving evidence at trial of something over seven years after an alleged event would be able to remember the exact words which were spoken during a conversation, and extremely unlikely that two different witnesses could remember the words spoken in exactly the same way. There are obvious difficulties with oral evidence as memories fade over time.

438 Other than the words as alleged, neither Officer Traynor nor Officer Clark was really able to remember words spoken during their conversations. Officer Traynor on more than one occasion had to be taken to his statement in order to purportedly refresh his memory, and when he was asked in cross-examination about his first exchange with Ms Atoms, he relied on the lapse of time (ts 936):

What I'm asking you is was that not only the first thing that she said to you, but the first thing said between you? --- I can't recall a conversation that I had with her. It's seven years ago.

439 Third, Officer Traynor's evidence was that the words were spoken right at the outset as 'she came right up to me' - it was the first thing she said. As I have already observed, she did not go up to him, but his evidence that the words were spoken at the outset does not fit with what is subsequently shown on the CCTV footage. This shows a continued conversation between Officer Traynor and Ms Atoms during which Officer Traynor can be seen facing the garden bed and pointing towards it. This, in my view, contradicts Officer Traynor's claim and supports Ms Atoms' evidence that there was a discussion about her being in or jumping in and out of the bushes.

440 Fourth, there is an irreconcilable difference between Officer Traynor's evidence and the evidence from Officer Clark about when they heard these words. Officer Traynor stated that Ms Atoms said the words right at the outset, adamant they were the first thing she said to him. At this stage, it can be seen on the CCTV footage that Officer Clark's attention was elsewhere, seeing off Male 1 and Male 2. His evidence was that after he had attended to those men he heard a woman shouting and turned to see Ms Atoms and then he heard her say these words. The time when he turned (at 01:05:16) occurred some seconds after the first exchange between Ms Atoms and Officer Traynor. I am not able to see any reaction from Officer Clark at the time he turned around. In fact, after walking up to Officer Traynor and Ms Atoms he really was not involved in their discussion and his attention was elsewhere until 01:05:37.

441 Moreover, Officer Clark's evidence about when he heard the words changed while under cross-examination. It changed from hearing the words when he first turned around after hearing shouting, to hearing those words at a later time when standing next to Officer Traynor, because 'that's when I unzipped my load-bearing vest to get the move on notice book out and realised it wasn't there' (ts 1204). This, in my view, is a significant change in his evidence which, together with the other difficulties in his evidence which I have already discussed and the inconsistencies between his evidence and the CCTV footage, leads me to conclude that I simply cannot accept Officer Clark's evidence. Accordingly, his evidence can provide no corroboration of and lends no support to Officer Traynor's evidence.

442 Fifth, the CCTV footage contradicts each of the officer's evidence about Ms Atoms' behaviour at the time she is alleged to have said the words. I observed nothing on the CCTV footage which would indicate that Ms Atoms was loud, argumentative and aggressive, as described by Officer Traynor, or 'gesturing frantically' as described by Officer Clark. From the time of the police officers' arrival and during her conversations with Officer Traynor I could see nothing from Ms Atoms which could be described as angry or agitated behaviour, or frantic gestures on her part, or indeed any behaviour one would expect to see from someone who is shouting, aggressive and swearing. She appeared to be calmly talking to Officer Traynor, usually with her arms folded but occasionally unfolding her arms and, while keeping her elbows in, moving her forearm and hand as if to make a point. She also used what I would describe as a 'questioning' gesture - with her elbows in by her sides, holding out both her hands, palm up. The only time she appeared to be speaking in what I have described as an earnest manner is at 01:05:36, which is consistent with her evidence that after being told to get out of Fremantle, she queried this with Officer Traynor, telling him she lived in Fremantle and she did not understand.

443 Sixth, the CCTV footage shows behaviour from each of the officers which contradicts their evidence that the words were spoken. Officer Clark was the one dealing with the real culprits, while Officer Traynor and Ms Atoms conversed. During these discussions Officer Traynor appeared relatively relaxed, with his hands in his pockets. That is not the behaviour of a police officer who is allegedly being prevented from doing his duty, or has been offended and insulted by an aggressive, loud, swearing woman who said the words, as Officer Traynor maintained, as her first utterance to a police officer.

444 Seventh, there is other evidence, which I accept, about Ms Atoms which indicates to me that it is highly improbable that she swore or spoke to police officers as the defendants allege. This evidence is:

(a) She was effectively sober, and not drunk or intoxicated. I pause here to note that the State in closing submissions (ts 1582), relying on Ms Atoms' cross-examination where she admitted that it was possible she was little tipsy after her second beer, submitted that she had had 'a few drinks', was possibly tipsy and seconds before the incident had been 'mucking around with a group of drunks'. I am not able to accept this submission in light of what is found on the CCTV footage. I accept the evidence of both Ms Atoms and Dr Cunningham that they stopped to help.

(b) She was 37 years old, educated, with excellent qualifications and experience in an area which required common sense and the ability to communicate with people.

(c) Ms Atoms' evidence, which I accept, was at the time she saw police as part of her family and the people that she worked with. Her sister-in-law and her two cousins were police officers and she had done a lot of work with the police. She respected the police and I have no doubt that she respected the law.

(d) Ms Atoms' answers to cross-examination as to why she did not leave (as I have set out in [403] and [404]), I found to be both logical and credible and consistent with her evidence about her respect for police.

(e) Ms Atoms' evidence was that her habit would be to 'de-escalate' (as she put it) by speaking in a more moderate tone. The manner of her speaking in the lock-up footage is telling in this regard. By this stage she had been subjected to quite an ordeal, but she generally spoke in measured tones, in particular, at the time when discussing the conditions of bail (as I have set out in [277] above).

(f) The evidence from Dr Cunningham that he had known Ms Atoms since the year 2000, that she has had a Catholic upbringing and still subscribes to that faith, and it is very rare for Ms Atoms to swear (ts 614). The same cannot be said of the police officers themselves, particularly Officer Traynor (see [249] above). I strongly suspect that Officer Traynor has gratuitously and wrongly attributed swearing behaviour to Ms Atoms. (The related question of whether the word 'fucking' would be insulting to the police is dealt with in my discussion of the second issue, [489] - [494] below).

445 Eighth, in the lock-up Ms Atoms said to Officer Traynor 'I'm sure you have much better things to be doing with your time', as I have set out in [263]. It occurred to me that Officer Traynor might have confused what Ms Atoms said in the lock-up with what he now said she said on the footpath outside the Esplanade Hotel. I asked him, but he denied this, stating 'absolutely not' (ts 1069). I do not accept his denial. If Ms Atoms had said the words as alleged earlier on the footpath, as a matter of common sense and experience, it is:

(a) most unlikely she would have said anything in the lock-up about police having better things to do; and

(b) highly likely that saying something again in the lock-up about police having much better things to do would have provoked a far different response from Officer Traynor than the one I observed on the lock-up footage as I have set out in [263] and [264] above.

446 In my view it is this conversation in the lock-up which is the likely source of the words attributed to Ms Atoms at the scene on the footpath outside the Esplanade Hotel.

447 Ninth, the words allegedly spoken by Ms Atoms on the footpath are said to have triggered everything which followed, including a decision to issue a move on notice. Yet whilst they made other entries (see [54] and [55] above), neither Officer Traynor nor Officer Clark made any entry in his police notebook that night of any swearing. Each of the officers had a police notebook with him (Officer Traynor ts 925; Officer Clark ts 1207). The purpose for the issue of notebooks to police, as recorded in the instructions on the first page of the notebook, is 'to record particulars of observations, conversations, versions of events, names, addresses and other relevant recordings made during the performance of their duty' (italics my emphasis). If the words had been used it would have taken very little time to make a note of them, and from my observations of each of these defendants in the lock-up footage, there was plenty of time for each of them to do so - if, in fact, the words had been spoken.

448 In my view it is significant that the one thing which Officer Traynor did choose to later record in his notebook related to people 'messing around in the bushes'. That demonstrates to me that uppermost in his mind that night was his belief that Ms Atoms had been in the bushes, not that she had sworn or used the words. I reject his explanation that his notebook entry was meant to be just a 'general description of the event' (ts 1061).

449 Finally, when Ms Atoms asked Officer Traynor in the lock-up that night what she had done wrong, his first response was to say 'You and your friends were messing around in the bushes outside the Esplanade Hotel' (see [268] above). This is a further indication of Officer Traynor's state of mind on this night - again, nothing to do with swearing or using the words.

450 For all of these reasons, I have concluded that the evidence from each of Officer Traynor and Officer Clark that the words were spoken by Ms Atoms is implausible. As it is not corroborated by other evidence which I am prepared to accept, I am unable to accept their evidence. On the contrary, I affirmatively accept Ms Atoms' evidence that she did not use the words at the scene.

451 In coming to this view I have considered the evidence given by Ms Atoms about what occurred on the road, which I have discussed when looking at her credibility (see [298] above and for the relevant transcript, see [549] below). On Ms Atoms' evidence she spoke loudly and Officer Clark also said to her 'You shouldn't have used that language then'. On the face of it this is circumstantial evidence that something she said had riled Officer Clark. However, her unchallenged evidence was that she never accepted using any 'language' at the time and she queried what Officer Clark had said, saying to him 'what language?'. As Ms Atoms' evidence about this was not challenged and I have found her evidence about what happened on the footpath to be supported by other evidence, in particular the CCTV footage, there is in my view no reason to doubt Ms Atoms' account of this exchange she had with Officer Clark, or that it occurred on the road.

452 In addition I do not consider this evidence assists the defendants in their case that Ms Atoms said the words, for a number of reasons. First, the two statements - the first by Officer Clark and Ms Atoms' response - tend to cancel each other out. Secondly, nothing said by Officer Clark at this stage (on the road), invoked or referred to the words as alleged. Thirdly, the defendants have placed no reliance on it.

453 So far as Ms Atoms in this particular piece of evidence accepted that she spoke loudly, in my view, Officer Clark has transposed Ms Atoms' loud voice on the road when the officers were arresting Dr Cunningham, to shouting on the footpath (in the same way as Officer Traynor attributed words which Ms Atoms spoke in the lock-up to what occurred on the footpath).

454 I am unable to accept the evidence from Officer Traynor to the effect that Ms Atoms was hindering or obstructing police. Watching Officer Traynor when giving his evidence, and listening to the language he used, this appeared to me to be rehearsed and an attempt to make out a case against Ms Atoms, rather than his genuine recollection of what actually occurred. His evidence is also contradicted by the CCTV footage. This shows that during his conversation with Ms Atoms, others who had been in the area were leaving and Officer Clark was escorting Male 1 and Male 2 away and watching to make sure they left. Ms Atoms was not 'coming in front' of Officer Traynor. In fact he was comfortably engaged in conversation with her. He was free to move in order to attend to others, if he wished.

455 Officer Clark's evidence about how Ms Atoms was disorderly or obstructive is also unbelievable and similarly inconsistent with the CCTV footage, which showed him dealing with the real culprits, without the need for any assistance from Officer Traynor and with no interference from Ms Atoms.

456 In relation to the exchange between Ms Atoms and Officer Traynor, therefore, I reject the evidence of Officer Traynor and Officer Clark and I prefer the evidence of Ms Atoms. I find that her evidence is both supported by the CCTV footage and inherently probable.

457 From the CCTV footage and Ms Atoms' evidence, these are my findings.

458 Ms Atoms was trying to help the man (Male 2) who was in the bushes in the garden bed outside the Esplanade Hotel. She did not commit any offence. She was not intoxicated. She was not screaming or shouting, and she was not swearing.

459 Officers Traynor and Clark saw a group of people near the bushes and assumed that Ms Atoms was part of the group. While that was not correct, it was open to them to make that assumption, particularly as she was later seen to high-five one of them (Male 1).

460 Officer Traynor decided to speak to Ms Atoms about this and she engaged with him. Her evidence fits with the CCTV footage and my findings in [169] and [171], including that Officer Traynor walked up to Ms Atoms and, consistent with her evidence, she turned and he was there speaking to her.

461 I find that Officer Traynor accused Ms Atoms of actually having been in the bushes. I am satisfied that he did this by first mentioning that she would have to pay for damage to the bushes, and then telling her he had been watching her jump in and out of the bushes. That was not correct, but in fairness to Officer Traynor, from his point of view it probably was a distinction without a difference if she had been part of the group.

462 The difficulty was that Ms Atoms spoke up for herself and explained to Officer Traynor that she had been stopping to help and had not been in the bushes. Ms Atoms' evidence about this fits with the findings I have made from on the CCTV footage (see [169] - [194] and [236] above), including that:

(a) there was an ostensibly passive discussion between Ms Atoms and Officer Traynor for over 30 seconds before she went to leave for the first time;

(b) during the discussion Officer Traynor looked towards the garden bed and pointed to it; and

(c) for most of the conversation Officer Traynor had his hands in his pockets and appeared relatively relaxed.

463 Ms Atoms was, in my view, lawfully and morally entitled to explain her position and assert her innocence. I am satisfied that she was not angry or aggressive when she spoke to Officer Traynor. She was calm and composed as seen on the CCTV footage.

464 Perhaps Ms Atoms was firm or forceful in her manner of speech, but I am positively satisfied that Ms Atoms did not shout or swear and I am positively satisfied that she did not say the words 'Haven't you got anything better to fucking do. Go and arrest some proper criminals'.

465 I find that Officer Traynor said something to Ms Atoms about having to get out of Fremantle. She responded by telling Officer Traynor that she lived in Fremantle, did not understand and then asked him 'are you saying I have to leave Fremantle?'. I find that this exchange began just before the time stamp of 01:05:36 as shown on the CCTV footage when Ms Atoms' body language changed (see [195] above). That she unfolded her forearms, and held both hands up and out, with palms facing upwards in a questioning way while she talked is, in my view, consistent with her evidence about her response to Officer Traynor.

466 I am satisfied that the two officers did have in mind to issue Ms Atoms with a move on notice, as this is consistent with Ms Atoms' evidence that she was told again she would need to leave Fremantle and she also heard mention of 24 hours. It is also consistent with what occurred next on the CCTV footage between 01:05:42 and 01:05:46 (see [196] above), when both officers looked down and Officer Clark appeared to look at his vest for something which he said in his evidence, and I accept, was the move on notice book.

467 What was the trigger for these officers' decision to issue a move on notice when, as I have found, Ms Atoms did not use the words? On my view of the evidence the only probable inference is that the two officers' decision was motivated by the fact that she had spoken up and asserted her innocence.

468 The evidence from each of the officers demonstrated to me that they had a particular mindset that night. As Officer Traynor stated in his evidence they were on patrol 'looking for antisocial behaviour'. They were going to deal with anything they considered to fit that description.

469 It is true that the people in the bushes (not Ms Atoms) were behaving in a disorderly way. That sort of behaviour was probably not unusual in the experience of a police patrol of the Fremantle CBD. What was unusual was that a sober person like Ms Atoms would stop to help someone who was being disorderly.

470 Ms Atoms' 'offence' was to refuse to accept Officer Traynor's judgment and tell him that she had not been in the bushes. So far as Officer Traynor was concerned, she had been part of the group doing something wrong and it annoyed him when she denied it. As it was put to Officer Traynor in cross-examination (ts 940 - 941), the true position was that Ms Atoms spoke for herself in a respectful and measured way, he took offence and regarded it as being disrespectful.

471 Both officers seemed to be of the view that a person like Ms Atoms should not be disagreeing with them. According to Officer Clark's evidence (as I have set out in [329] above) he did not believe that she should be 'engaging with' and arguing with police. As Officer Traynor said, she 'continued to argue as if she knew better and as if she was above the law'. In fact, she did know better and she had not broken the law. And, as I have observed in [285] above, she was the type of person prepared to speak up for herself if she believed she was in the right.

472 I find that Officer Traynor could not deal with the fact that Ms Atoms was questioning what he said and that he might have been wrong. He perceived Ms Atoms to be challenging his authority and judgment.

473 To compound matters, on being told to leave Fremantle, she told him that she lived in Fremantle and she did not understand. (It is, in fact, common ground that she said she lived in Fremantle.) Officer Traynor then found himself in a difficult situation. As s 27(3) of the CIA provides, when giving a move on notice, these police officers had to take into account the likely effect of the order on Ms Atoms, including where she lived and shopped.

474 I believe Ms Atoms when she said she was confused by what Officer Traynor was asking her to do and she did not know what she was being asked to do. I am satisfied that when Officer Traynor said something again about leaving Fremantle, Ms Atoms thought police were asking her to leave. In my view this is consistent with her body language - looking down, before turning to walk away - as shown on the CCTV footage between 01:05:46 and 01:05:49 (see [198] above).

475 I find that when Ms Atoms tried to leave, not understanding what she was to do, this served to annoy and irritate Officer Traynor further, which is why he then grabbed her the first time. He did not, as he claimed in his evidence, 'touch' her to gain her attention. As shown in the CCTV footage, he grabbed her and pulled her back. This is not the behaviour of someone who was calm. I find that Officer Traynor was annoyed.

476 After this first grab, Ms Atoms told Officer Traynor that he was scaring her and she did not understand him because he was telling her to go, but not letting her leave. I find that he was scaring her.

477 I accept Ms Atoms' evidence that she remembered trying to put some distance between herself and Officer Traynor and then tried to explain that she did not understand. This is consistent with what can be seen on the CCTV footage at 01:05:50 and 01:05:52 when Ms Atoms stepped back and away from Officer Traynor (see [199] above). I am satisfied that Ms Atoms did try to explain that she did not understand what she was being directed to do and told Officer Traynor that he was telling her to go, but not letting her leave. That evidence is also consistent with what can be seen in the CCTV footage between 01:05:53 and 01:05:55 (see [200] above). In response to this Officer Traynor said something which reinforced to her that she needed to leave, and so she tried to leave again.

478 Officer Traynor then aggressively and forcefully grabbed Ms Atoms a second time, this time grabbing her right arm with his left hand (as I have found from the CCTV footage in [201] above). That Officer Traynor was aggressive is consistent with Dr Cunningham's evidence that before his arrival, he saw Officer Traynor being aggressive, that he seemed to be quite 'pumped', tense and in a sense standing over Ms Atoms (see [408] - [410] above).

479 Ms Atoms told Officer Traynor he was hurting her and said 'please let me go'. This is consistent with Dr Cunningham's evidence that he saw Officer Traynor grab her in quite an aggressive manner with a pressure hold on her wrist, and she cried out 'Ow' (see [410] above). It is also consistent with the CCTV footage from 01:05:59 to 01:06:03 when Ms Atoms lifted her arm, Officer Traynor let go of his hold on her arm but then immediately grabbed her again by her left arm or wrist and then Ms Atoms moved to stand with her back towards Essex Street but her head turned to look at Officer Traynor (see [203] and [204] above).

480 I am satisfied that with the second grab by Officer Traynor, Ms Atoms was detained. She was clearly not free to leave. By the second grab Officer Traynor gave Ms Atoms to understand that she should not go out of the presence of the two officers.

481 There is one final factual matter I need to determine, and that is whether Ms Atoms was asked for her name and address. I have a number of different versions. Ms Atoms' evidence was that she was not asked for her name and address. Officer Traynor initially could not recall whether she was asked for these details but later stated that Officer Clark asked for these details. Officer Clark's evidence was that he asked for her details, but then in cross-examination this changed to evidence that he could recall Officer Traynor asking for her details; he may have also asked for her details, but was not sure.

482 Both Officer Traynor's and Officer Clark's evidence about when she was asked for those details also differed. Officer Traynor gave evidence that Officer Clark asked for those details after the first grab (ts 941). Officer Clark's evidence under cross-examination about when he asked for her name and address was, in my view, very confused. This was particularly so after it was pointed out to him that no request for Ms Atoms' personal details could be made until a decision had been made about a move on notice (ts 1203 and following) and then, later, that if he had given her a warning that he would issue a move on notice, he did not have the intention at that point in time to issue her with a move on notice (ts 1245 - 1246).

483 Thus I have conflicting accounts from Officers Traynor and Clark on whether or not Ms Atoms was actually asked for her name and address and, if so, which of them asked and when. While one or both of them may have been thinking of asking for Ms Atoms' personal details, I cannot be satisfied that she was so asked.

484 I prefer Ms Atoms' evidence and accept that she was not asked. As I have found, she told police that she lived in Fremantle. That this is what occurred, and that Ms Atoms was not actually asked for her personal details, is also consistent with the CCTV footage which showed that, just before Ms Atoms moved away the first time, Officer Clark looked in his vest for the move on notice book, but at no stage did either officer take anything out of his pocket (such as his police notebook) in readiness to take a note of Ms Atoms' personal details. (One of the purposes of the issue of notebooks is to record names and addresses - see [447] above).

485 I find that Ms Atoms had not been asked for her details when the decision to issue a move on notice was made and she was told to leave Fremantle. Asking for her personal details would have taken place, for the first time, later, if Officers Traynor and Clark got to that stage. That is why, in my view, they were both so unclear in their evidence about it.

486 The defendants submit that there was lawful authority to issue a move on notice to Ms Atoms and to detain her to obtain her personal details.

487 The basis for the move on notice was said to be that Ms Atoms was shouting and swearing, and that this constituted one of the acts set out in CIA s 27(1), namely disorderly conduct. It was also submitted that such behaviour could be reasonably suspected to constitute a breach of the peace given the time of night and location outside a residential hotel, or disorderly behaviour in a public place contrary to s 74A of the Criminal Code.

488 As I have found, Ms Atoms did not swear or use the words. I find that she did nothing which would constitute a breach of the peace or disorderly behaviour which entitled police to issue a move on notice.

489 Even if I had found that the words were spoken, I would not have been satisfied that the words constituted disorderly behaviour in the circumstances of this night. This is an assessment which I must make, having regard to contemporary standards of propriety, and disregarding what Officer Traynor said about being offended (allegedly).

490 Contemporary standards are such that the word 'fucking' is part of some people's everyday speech and it is often used as an expressive or descriptive word. It is relevant, in my view, when assessing this to take into account the reactions, if any of people on the footpath that night, and also what occurred in the lock-up.

491 In terms of reactions of others on the footpath that night, looking at the CCTV footage, there were no reactions that I could observe until police had arrested Dr Cunningham.

492 At the police lock-up no police officer reacted at all when the young Aboriginal female swore. The custody officer and Officer Traynor also swore without compunction. So, according to Mr Caldwell, did he before he tasered Dr Cunningham (see [699] and [707] below). Another officer swore at Dr Cunningham after he was tasered (see [724] below).

493 When Ms Atoms actually said in the lock-up 'I'm sure you have much better things to be doing with your time', there was a mild reaction from Officer Traynor and no reaction from any other officer in the lock-up.

494 I am not satisfied, even if the words were spoken by Ms Atoms, that they were serious enough to warrant the interference of the criminal law. The situation which existed on this night is distinguishable from the cases of Ashley v Balchin [2006] NTSC 41; (2006) 161 A Crim R 497 (where the language used included other, far more offensive swear words) and Heanes v Herangi (where the offender loudly, in Forrest Place, within hearing of a number of people including several children, told the police to 'fuck off').

495 I am also not satisfied, as submitted to me, that the words would constitute a breach of the peace. There is no evidence of any harmful behaviour on the part of Ms Atoms nor any behaviour from her which indicated it was likely that she would do a harmful act to anyone or anything. In fact, under cross-examination both Officer Traynor (ts 940) and Officer Clark (ts 1215) admitted that they did not form the view that she was committing a breach of the peace.

496 It has also been submitted that Ms Atoms' behaviour was 'hindering or preventing police from resuming their lawful duties'. I am unable to accept this submission, given what is shown in the CCTV footage and the matters I have already discussed and the findings I have made in relation to the first issue. Officer Clark was free to, and did, attend to the real culprits and Officer Traynor was able to move freely. By the time Ms Atoms was asked to leave Fremantle, before Officer Traynor's first grab of Ms Atoms, the CCTV footage shows there was no-one else in the area apart from Mr Hicks. Anyone who had been in the garden bed had left or was leaving.

(a) At no stage were there reasonable grounds for a suspicion that Ms Atoms had committed a breach of the peace, or the offence of disorderly conduct, or was hindering or obstructing either of these officers. In other words there are no facts sufficient to induce that state of mind in a reasonable person.

(b) There were no reasonable grounds for giving Ms Atoms a move on notice or telling her that she would be getting an order to move on.

(c) Neither Officer Traynor nor Officer Clark had any reasonable grounds for asking for Ms Atoms' name and personal details in respect of the subject matter of the planned move on notice (ie saying the words). It has not been said that she was a candidate for a move on notice in respect of the incident in the garden bed.

(d) Officer Traynor had no lawful reason to touch, grab or detain Ms Atoms.

498 Ms Atoms did nothing wrong. A move on notice was simply not required and she should never have been detained.

499 I find that Officer Traynor's detention or restraint of Ms Atoms was without reasonable grounds and was unlawful. Unfortunately, as counsel for the plaintiffs described, this was the 'precursor' for everything which followed.

3. What happened before the arrest of Dr Cunningham?

500 It seemed to be common ground that Dr Cunningham was arrested by the time Officer Clark had taken hold of and pulled both of Dr Cunningham's hands behind his back (as shown in the CCTV footage at 01:06:18 - 01:06:19 and see [219] above). The issue is what happened which led to that arrest.

501 Ms Atoms gave evidence that after Dr Cunningham arrived he said something about, 'Is she under arrest?'. In cross-examination (ts 569) she said that these words were part of a question from Dr Cunningham. After that Officer Clark and Traynor seemed to just leap on him and grab him. They never spoke to Dr Cunningham.

502 Ms Atoms also said that after the officers seemed to just leap on Dr Cunningham, Officer Traynor still had a hold of her (ts 142).

503 The two officers then started pulling Dr Cunningham's arms backwards or wrenching his arms. Ms Atoms knew that Dr Cunningham had an injury in his shoulder and heard him cry in pain. Officers Traynor and Clark then were 'jostling him around' (ts 142).

504 Dr Cunningham described how he approached the police officers, held up his index finger and said, 'I'm a solicitor and I have one question. Is she subject to arrest or a move on order?'. He directed this question to Officer Traynor because he was the person that 'seemed to be in a sense leading the communication'. The only reason he raised his finger was to indicate that he had one question (ts 612).

505 In cross-examination (ts 684) Dr Cunningham did not agree that when he lifted his arm with his index finger up, it was in the direction of Officer Traynor, although he agreed it was in the vicinity of Officer Traynor, to whom he was directing his question, and that he indicated with his index finger to Officer Traynor when asking the question.

506 Dr Cunningham gave evidence that he did not hear any oral response from the officers. He remembered that Officer Clark reached over and grabbed his arm. Dr Cunningham believed it was the arm which he was holding up. He was not able to remember which arm that was. He is right handed and thought 'that my left hand is my more passive hand, so I would use that in a situation which is more passive' (ts 684).

507 After Officer Clark took hold of his arm, Dr Cunningham's evidence was that there was 'a lot of commotion' and 'it all became very physical'. He essentially felt like a ragdoll from that point on. It was difficult for Dr Cunningham to recall precisely how this happened but both of his arms were taken behind his back within a very short period of time and he was pushed off the pathway onto the road of Essex Street (ts 614 - 615).

508 He could recall having handcuffs put on him, but he was unable to say at which point both cuffs were applied because he had two police officers holding his hands behind his back. He knew he had one handcuff on, because they were very uncomfortable, but it was not clear to him whether he had two handcuffs on or whether there was just one handcuff on and two police officers holding his hands behind his back (ts 616 - 617).

509 Dr Cunningham also gave evidence that he had an injury to his left shoulder. If his left arm is pulled in the wrong direction, it is very difficult for him to control the precise movement of that arm (ts 613). He expanded upon that in cross-examination, explaining it was an old football injury, that he has restricted movement to his left shoulder, and it is difficult for him to put his left arm behind his back. So if someone were to take his left arm and put it behind his back, it reflexes because it doesn't want to go behind his back (ts 685). He gave evidence that when his left arm was taken behind his back by the officers on this night, he did 'reflex' in this way (ts 742).

510 Evidence that Dr Cunningham had suffered such a shoulder injury, including that he demonstrated mild posterior tenderness on palpation and the restrictions in his movement of that shoulder, specifically a restricted internal rotation (involving the ability to put his hand behind his back) was confirmed by his general practitioner Dr Stubbs (exhibit 81; ts 775 - 778).

511 Officer Traynor remembered seeing Dr Cunningham further up the street, walking away, and then he was 'right where we were' - we being himself, Officer Clark and Ms Atoms. Officer Traynor then gave evidence that from his recollection Dr Cunningham 'basically raised his arm right towards my face', and so Officer Traynor 'instantly reacted'. He believed that Dr Cunningham was going to make contact with his face, so he grabbed hold of his arm (ts 896).

512 Office Traynor's evidence then was that Dr Cunningham said nothing, but that he said to Dr Cunningham, 'If you continue to obstruct us, you will be arrested'. (This latter part of his evidence was given after purporting to refresh his memory from his statement). Officer Traynor's evidence was that he said this before grabbing hold of Dr Cunningham's arm (ts 896).

513 As to what happened after Officer Traynor had grabbed hold of Dr Cunningham's arm, Officer Traynor stated that 'at that point all I could think of was that I was going to arrest him and that I needed to get handcuffs on him'. He was going to arrest Dr Cunningham for obstructing police, because he was obstructing them from 'dealing with Atoms' (ts 897). Officer Traynor then went to get his handcuffs out of his pouch and applied one of them to one of Dr Cunningham's arms.

514 I have already set out in [311] - [315] above the cross-examination of Officer Traynor on the matters to do with why, how and when he grabbed Dr Cunningham's arm.

515 Officer Clark saw Dr Cunningham walking down towards him from the direction of South Terrace. Dr Cunningham 'walked straight up to where we were standing and, without saying anything, took hold of the female's [Ms Atoms'] arm and pulled it towards him' (ts 1116, 1117). Officer Clark then told him to 'back away' or 'back off'.

516 When Dr Cunningham did not back away, Officer Clark remembered going around the back of Ms Atoms and putting his left arm up towards Dr Cunningham, to try and get a bit of distance between him and Ms Atoms. Dr Cunningham was then pushing against Officer Clark and he remembered saying 'stop obstructing us'. Officer Clark then just held his left hand up to stop Dr Cunningham from pushing forwards and then (ts 1117):

All of a sudden his left hand went up in the air. It was in close proximity to Constable Traynor's face so immediately I told him he was under arrest for obstructing us and tried to get his right arm in an arm lock behind his back ... To restrain him so the handcuffs could be put on.

517 In cross-examination Officer Clark added a further detail (ts 1255) that 'as soon as [Dr Cunningham] did it, I - I feared that he was raising it in an aggressive manner. That's why I took hold of him ... and arrested him'. According to Officer Clark, therefore this was the last thing that Dr Cunningham did before Officer Clark effected his arrest (ts 1236).

518 As to what happened next, Officer Clark's evidence was that he managed to get Dr Cunningham's arm behind his back but 'when you took a hold of his arm to try and put it up behind his back in the arm lock - I managed to get the arm behind his back but he resisted by tensing his muscles and basically moving his arm in the opposite direction to which I was trying to move it to' (ts 1117). Officer Clark then applied force to put Dr Cunningham's arm behind his back while watching what Officer Traynor was doing, which was trying to restrain Dr Cunningham's other hand.

519 There are two different justifications given by Officer Traynor and Officer Clark for Dr Cunningham's arrest. Officer Traynor's justification was that Dr Cunningham raised his arm in a threatening manner. Officer Clark's justification was first that Dr Cunningham pulled Ms Atoms' arm and pulled it towards him, then that he pushed against the police, and then that he raised his arm in a threatening manner.

520 I am not prepared to accept the evidence of Officer Traynor either that Dr Cunningham raised his arm right 'towards' Officer Traynor's face, or that he believed Dr Cunningham was going to make contact with his face. As I have already set out in [315] above, Officer Traynor's evidence about these matters was objectively unreliable and unbelievable.

521 The CCTV footage does not show Dr Cunningham raising his arm upon first approaching, as I have found in [204] above. Then the CCTV footage shows that Officer Traynor grabbed and then maintained his hold on Dr Cunningham's left arm almost continuously, as I have found in [205] - [215] above. Once Officer Traynor had hold of Dr Cunningham's arm, the only movement of his arm then shown on the CCTV footage was at 01:06:09 when Dr Cunningham bent his arm at the elbow, to bring his left forearm approximately to waist height, parallel to the ground. At 01:06:13, while Officer Traynor was still holding Dr Cunningham's left arm, Dr Cunningham raised his arm with his finger pointing upwards. He did not raise it towards Officer Traynor or near Officer Traynor's face. I do not understand, or accept, that Dr Cunningham could raise his arm in a threatening or aggressive way, given that Officer Traynor was holding his arm at all times.

522 The only other time when Dr Cunningham's arm can be seen to be raised was at 01:06:17 with Officer Traynor still holding onto Dr Cunningham's arm, but I cannot determine whether Dr Cunningham lifted or raised his arm himself, or Officer Traynor raised it as part of the process of arresting Dr Cunningham (see [215] above). Whichever it was, Dr Cunningham's arm was not raised or lifted towards or near Officer Traynor; it was lifted into the air.

523 I am unable to accept the evidence of Officer Clark to the effect that Dr Cunningham took hold of Ms Atoms' arm and 'pulled it towards him'. The CCTV footage does not clearly show either of these two things (as to which, see my findings in [204] and [205] above). Because of the numerous issues I have identified with Officer Clark's credibility and the fact that Officer Clark's evidence is not supported by the CCTV footage or any other evidence I am prepared to accept, I am unable to accept his evidence on this issue.

524 I am also unable to accept the evidence of Officer Clark that Dr Cunningham raised his arm in an aggressive way. This is inconsistent with the CCTV footage, as I have already set out.

525 Finally I am not satisfied that Dr Cunningham pushed against these two officers, as claimed by Officer Clark. In her closing submissions, when taking me through the CCTV footage, counsel for Officers Traynor and Clark submitted that Dr Cunningham had pushed against the two officers. Counsel also made another submission that in the CCTV footage at 01:06:15 Dr Cunningham had placed his arm in an unusual position and looked as though he was 'about to swing it'.

526 These submissions were made to me after a detailed frame by frame review of the CCTV footage, after which a number of still images from the CCTV were produced (exhibit 96). In my view it is artificial to look at the still images and the CCTV footage on a frame by frame basis. The CCTV footage must be viewed in real time. Having done that, I am unable to accept that Dr Cunningham either pushed against the two officers or looked like he was about to swing his arm. (In fact, Dr Cunningham was pushed twice by Officer Clark: see [207] and [213] above). These submissions are in my view clutching at straws; an effort to find some justification for Officer Traynor's and Officer Clark's handling of Dr Cunningham, which had no basis in fact.

527 The following findings I make based on Dr Cunningham's evidence about why he approached the two officers and Ms Atoms and what he did on his arrival, and the CCTV footage.

528 Dr Cunningham was a solicitor and, at the time, a lecturer at the Faculty of Law at UWA. I find that he was not intoxicated. I find that he identified himself to Officer Traynor as a solicitor and said 'I have one question. Is she subject to arrest or a move on order?'. (There was discussion during the trial as to whether this was one question or two. I will refer to this as 'the inquiry'.)

529 I find that Dr Cunningham's identification of himself as a solicitor probably occurs between 01:06:04 and 01:06:06 as shown on the CCTV footage (see [205] above) and that the inquiry followed after this.

530 I am satisfied that almost immediately after Dr Cunningham began to speak, as shown on the CCTV footage and as I have found in [205] - [207] above, he was grabbed and then pushed away by Officer Clark, and then grabbed by Officer Traynor.

531 I find that when Dr Cunningham began to speak he addressed Officer Traynor, and that when he began to make the inquiry, he held up his left index finger in the vicinity of Officer Traynor.

532 I am satisfied that when Dr Cunningham held up his finger, he was doing this to signify that there was one thing he wanted to ask about. I am satisfied that he was not doing so aggressively, nor making any threat, nor raising his finger towards Officer Traynor's face. Further, while he did this, as shown on the CCTV footage and as I have discussed in [521] for most of the time Officer Traynor had hold of Dr Cunningham's left arm.

533 I find that neither Officer Traynor nor Officer Clark answered Dr Cunningham's inquiry. The only response Dr Cunningham received was to be arrested.

534 The case of the first and second defendants (confirmed in final submissions by counsel, ts 1721) is that Dr Cunningham was obstructing basically from the moment he walked up to the two police officers who were then dealing with Ms Atoms. In closing submissions counsel for the State submitted that Dr Cunningham had been 'in the police officer's space'.

535 I am unable to accept any of the defendants' submissions given my findings from the CCTV footage and on the third issue above.

536 I do not consider Dr Cunningham's walking up to the police, identifying himself as a solicitor and making the inquiry while pointing with his index finger constituted obstructing police. Dr Cunningham was, in my view, perfectly entitled to find out what was happening to Ms Atoms and the inquiry was valid and not unreasonable. He made no challenge to the legitimacy of the police officer's actions, but rather was asking about the consequences of the decision they had taken.

537 This was not an affront or insult to police authority and no police officer acting reasonably could possibly have been affronted or insulted by such an inquiry, or considered the person making the inquiry to be obstructing. In other words, there are no facts sufficient to induce that state of mind in a reasonable person.

538 In fact, looked at in light of what was unfolding at the time and given that these officers intended to issue a move on notice to Ms Atoms (albeit without lawful justification), such an inquiry from a solicitor purporting to act for Ms Atoms could only have helped the officers to deal with her.

539 However, Officers Traynor and Clark saw things differently. They were already annoyed and irritated by Ms Atoms challenging or contradicting Officer Traynor and being confused by what police were asking her to do. As I have found, they both had a perception that no-one should be questioning them (see [471] above). Dr Cunningham's arrival and inquiry irritated and annoyed them further. In their mindset, they perceived Dr Cunningham's lawful, reasonable inquiry to be unlawful and unreasonable - another person questioning their authority. This perception on the part of Officer Traynor and Officer Clark caused them to become annoyed and angry, as reflected in their body language as shown on the CCTV footage and their immediate physical response towards Dr Cunningham, without answering his inquiry.

540 I find that Officers Clark and Traynor, had no reasonable grounds to exercise their powers of arrest against Dr Cunningham.

541 In any event, as I have found the two officers had no lawful basis to detain Ms Atoms, an offence by Dr Cunningham against s 172 of the Criminal Code could not be made out. In other words, it could not be said, at the time Dr Cunningham approached, that either officer, when dealing with Ms Atoms, was performing a function of his office.

542 There was no justification for the arrest of Dr Cunningham and his arrest (and everything which followed from his arrest) was unlawful.

5. Was there an excessive use of force by Officers Traynor and Clark against Dr Cunningham?

543 In case I am wrong in my conclusions about the fourth issue, it is necessary to consider the issue of the circumstances of Dr Cunningham's arrest and whether excessive force was used by police.

544 How Officers Traynor and Clark arrested Dr Cunningham and the force which they used against him, are relevant to Dr Cunningham's claims for battery and misfeasance in relation to these officers:

(a) grabbing his arms and pulling them behind his back causing him pain;

(b) pushing him towards Essex Street while simultaneously holding his arms bent up his back causing him pain;

545 Were Officers Traynor and Clark entitled to use the force which they did to effect Dr Cunningham's arrest and overcome what they say was his resistance to the arrest? Or was this an excessive use of force by them? If their use of force was excessive, his arrest would be unlawful even if it was lawful to begin with (see [106] above), and would constitute battery.

546 When looking at this issue, I must bear in mind the requirements of CIA s 128(3). To arrest Dr Cunningham, not only must Officers Traynor and Clark have reasonably suspected that Dr Cunningham had committed or was committing or was about to commit the offence of obstructing police, they must also have had reasonable grounds to suspect that if he was not arrested, one of the matters in s 128(3)(b) would occur.

547 In addition, when arresting Dr Cunningham, pursuant to CIA s 16, they could only use force which was 'reasonably necessary' to exercise the power of arrest given to them in s128(3), and to overcome any resistance to exercising the power that is offered, or that the person exercising the power reasonably suspects will be offered, by any person.

548 Ms Atoms gave evidence that after the two officers began pulling Dr Cunningham's arms backwards and she heard him cry in pain, she was trying to show Dr Cunningham that she was there by putting her hands in contact with his back. Then one of the officers, who she believed was Officer Clark, pushed her backwards (ts 142).

549 After this she asked what Dr Cunningham had done, and also told the police they were hurting him. Her evidence was as follows (ts 143):

At this point were you saying anything --- Yes, I was saying, 'What has he done? What did he do?'. You know, 'Please, you're hurting him. Please'.

What sort of voice were you using to say this --- I was pleading with them. A loud voice.

Now, we've seen on the CCTV that Robert was then moved towards Essex Street off the camera --- Yes.

What happened after that? Where did the three of them, the two police officers and Robert - where did they go? What happened after that --- So one of the officers actually spoke to me when he said, 'Call for backup', because I said - I did say, 'Backup? What's that for? Ask him to walk. What do you want him to do? What has he done?' and that was the only other time that the officers spoke to me before we were in the police station.

What did they say --- He said - - -

Can I ask you, do you know who said it --- I believe it was Officer Clark, yes.

Okay, and what did he say --- He said, 'You shouldn't have used that language then', something like that. 'You shouldn't have used that language then'. And I said, 'Language? What language?' and I thought - and I said, 'I was saying please. I was saying please'.

Did he respond to that---No, he didn't speak to me again.

Did you say anything else to the police officers---I continued to plead with them, "Ask him to walk. What do you want", you know? I think I was frustrated at their lack of response and said, "Use your words." You know? "Use your words. Ask him - tell him what you want him to do."

Okay. So - and did they respond to that---They didn't speak to me, no.

550 Ms Atoms described how Officers Traynor and Clark moved Dr Cunningham to the back of the police van which was parked in Essex Street and pushed Dr Cunningham up against the back of the van. It was unclear to Ms Atoms who was pushing and who was pulling, but Dr Cunningham was pulled away again from the police van and taken to the side of the van, where he was pushed up against the van again. He was then pulled away again from the side of the van and moved along the road towards the Esplanade, away from the van.

551 I have already summarised Dr Cunningham's evidence as to what occurred when his arms were placed behind his back (see [507] - [509] above).

552 Dr Cunningham then described how, as he was getting pushed off the gutter onto the road, he was kicked on numerous occasions in the thigh (ts 615):

Well, so one of the officer's legs was being put in front of my leg and then I was being pushed up against that leg so that I would fall over the leg. And I - I was seeking to stay on my feet because given I didn't have any hands to stop my fall, I was thinking about my glasses on my face and the fact that I would hit my face on the concrete. And I was also mindful of my - of my sore shoulder at that point, which causes a lot of pain when my arm is behind my back.

553 Dr Cunningham was not able to say which of the police officers was doing this as they were essentially behind him, on the side of him, kicking his leg. He gave evidence that as a lawyer he knew that the worst thing to do in that situation was to resist so he tried to be, in his words 'as passive as possible, while at the same time trying to protect my own safety by, for example, trying to keep my feet on the ground so that I didn't end up face first - face first into the - in - into the concrete.' (ts 616).

554 He gave evidence that for at least a minute to a minute and a half he was being pulled and pushed around at random, like 'I was part of a tug of war and just being pulled left, right and centre. And I just get - kept getting pushed into the middle of - of the road. There was a police vehicle on the road at that time. And I was just being pushed around like, as I said, like a ragdoll.' (ts 616).

555 He recalled he definitely had one handcuff on him, but he said it was difficult to say at which point both cuffs were applied because he had two police officers holding his hands behind his back.

556 Within a minute of being pushed onto the road he heard radio noises (from police handheld radios) and although he was not clear as to what was said, he knew that backup was called for.

557 As I have set out in [513] Officer Traynor's evidence was that he went to get his handcuffs out of his pouch and he applied one of them to one of Dr Cunningham's arms. He resisted by tensing his arms and pulling away. As to what happened next, Officer Traynor's evidence was (ts 897):

Well, my main concern was that I had one handcuff on him and I wanted to get the other arm handcuffed, so what I did was - there is a technique in police training where if somebody is resisting, then what you can do is you can use the rigid handcuffs to try and stop them from resisting by applying pressure on top of the handcuff that's on the wrist and with the handle of the cuff you move it towards yourself and you step back and at that point you lower that handcuffed arm down whilst stepping back and that basically should allow the person detained or arrested to actually fall down to the floor with their arm right out, but I tried to do that on Mr Cunningham and he was so strong I just could not - I just could not do it. He remained on his feet.

558 Officer Traynor then gave evidence that he was shouting, 'Stop resisting. Stop resisting,' and Dr Cunningham just continued to resist. When Officer Traynor was unable to apply the second handcuff, he thought 'he's in a good position that I could apply knee strikes to his thigh, and I think the whole point of that is to try and give him a dead leg so that I can try and control him.' So Officer Traynor gave him some 'knee strikes'. He explained (ts 898 - 899):

What's a knee strike?---It's where you're alongside the detained person who's resisting and you bring your leg backwards and apply knee at force - your knee at force to his thigh. I did that several times. I can't remember exactly how many times I did it but I did that.

....

What's the object of the knee strike?---To get him under control. To perhaps give him a dead leg so he stops resisting.

When you say a dead leg, what do you mean?---Like the dead muscle in the leg, the pain in the leg. The leg will drop, you know, become weak.

559 The knee strikes did not work. Officer Traynor's evidence was that he could remember being 'absolutely exhausted' and could hardly breathe. 'My back was hurting, my arms were hurting. I honestly felt that I could not do anything else. I felt defeated. I just didn't know what to do. I got on my personal radio and I pressed for urgent assistance.' (ts 899). This was the back up call which was made. In cross-examination he confirmed that the backup call was made after moving Dr Cunningham off the footpath onto the road (ts 952).

560 Officer Traynor then remembered still trying to get the other handcuff on Dr Cunningham, not being able to do that, then being alongside the police van. He said that Dr Cunningham did not say a single thing, but kept pulling away while Officer Traynor was telling him to stop resisting, as he tried to get the other handcuff on.

561 As to the initial arrest, I have already summarised Officer Clark's evidence that when he tried to get Dr Cunningham's arm behind his back he resisted by tensing his muscles and moving his arm in the opposite direction. Officer Clark then applied force to put Dr Cunningham's arm behind his back while watching what Officer Traynor was doing, which was trying to restrain Dr Cunningham's other hand.

562 Officer Clark's evidence was that he felt someone else pulling his left arm and turned to see it was Ms Atoms. He told her to back off but she kept pulling on his arm so he lifted his left arm up, and pulled it down in a sharp, quick motion which meant she released her grip and 'then I pushed her away as hard as I could with my left hand' (ts 1118). Officer Clark then said that after Ms Atoms went back a couple of steps, she came 'straight back at me and grabbed hold of me again', this time on his arm, although he was not sure whether it was his left or right arm (ts 1119). He then maintained a grip on Dr Cunningham's arm and started to push him towards the police van.

563 By this point, Officer Clark said 'there was a bit of a group of people that had arrived on the footpath'. He wanted to get Dr Cunningham across towards the police van away from this group, so he tried to maintain a grip on Dr Cunningham's arm and started pushing him towards the police van across the road. Dr Cunningham was 'still trying to straighten his arms, tensing his muscles, and basically putting the opposite force that I was applying to his arm on - like he was applying the opposite force so I wasn't able to maintain the arm behind the back' (ts 1120).

564 Officer Clark said he remembered Officer Traynor shouting, 'Stop resisting'. He also remembered Officer Traynor tried to do a knee strike or knee strikes to Dr Cunningham. Officer Clark's evidence was that the purpose of the knee strike was to try and get a person to the ground where it is a bit easier to gain control. The knee strikes were not successful, as Dr Cunningham remained on his feet. They eventually got Dr Cunningham to the police van.

565 In cross-examination Officer Clark was asked about the back up call. He remembered the call and gave evidence that this was made on the road on Essex Street, between the footpath and the police van. Officer Clark also made a call for back up 'within seconds' after Officer Traynor (ts 1178 - 1179).

566 Dr Cunningham was not a young drunken hooligan. He was a well-dressed and respectable older man, who was not drunk, and who came up to police and identified himself as a solicitor.

567 This was not a melee situation. The only people present on the footpath at the time when Dr Cunningham arrived were Officers Traynor and Clark and Ms Atoms. Mr Hicks was nearby but standing back and not in any way involved (see my findings as to the CCTV footage in [201], [202], [204], [211], [212] and [216] above).

568 As I have found, Dr Cunningham did not pose a physical threat to these police officers. All he did was make the inquiry of the police.

569 Accepting for the purpose of this discussion that Dr Cunningham did in some way obstruct Officers Traynor and Clark from dealing with Ms Atoms, I am not satisfied that Officers Traynor and Clark believed or had any reasonable grounds to suspect that if they did not arrest him, any of the matters in CIA s 128(3)(b) would occur.

570 There is no evidence that, without an arrest, it would not be possible to obtain Dr Cunningham's name and other personal details: s 128(3)(b)(i). These police did not even ask him for his details. They simply moved in and grabbed him.

571 Given my findings in [528] - [533] above, there were no reasonable grounds to suspect that Dr Cunningham would continue or repeat the offence of obstructing police, or commit another offence: s 128(3)(b)(ii) and (iii).

572 I turn now to s 128(3)(b)(iii) (the person will endanger another person's safety or property). Looking objectively at the CCTV footage no reasonable person in the position of either Officer Traynor or Clark could have had grounds for suspecting that by bending his arm at the elbow, slightly raising his forearm and pointing a finger, Dr Cunningham would endanger anyone's safety. As to the suggestion by Officer Traynor that he was acting in self defence and in fear that he might be struck as a reason for Dr Cunningham's arrest, Officer Traynor's evidence about this is, in my view, a post event reconstruction, manufactured to justify his arrest of Dr Cunningham.

573 The other matters in s 128(3)(b)(v), (vi) and (vii) do not arise.

574 I am also not satisfied that it was necessary to physically deal with Dr Cunningham in the way in which Officers Traynor and Clark did, for the offence of obstruction. An arrest could have taken place without the need to restrain him by putting his arms behind his back or by handcuffing him. With Officer Clark present to assist, it is difficult to understand why Officer Traynor perceived the need to handcuff Dr Cunningham at all.

575 Officers Traynor and Clark could have dealt with him in another way. They should have spoken to him, but did not speak to him.

576 In my view Officer Traynor's and Clark's treatment and use of force against Dr Cunningham in pulling his arms behind his back and proceeding to handcuff him was excessive and disproportionate to all of the circumstances, particularly taking into account the seriousness of the crime for which he was being arrested. I am not satisfied that it was necessary to pull his arms behind his back and I am not satisfied that it was necessary for him to be handcuffed.

577 After his arms were put behind his back, I find that Dr Cunningham was forcibly pushed and pulled by the two officers. This is apparent from the CCTV footage, particularly as I have set out in [220] - [221] and [230]. From that footage it does not appear that Dr Cunningham was resisting his arrest.

578 Dr Cunningham did have what he described as a reflex action relating to the pre-existing injury to his left shoulder. I accept that this action could reasonably have been interpreted by these officers as a resistance by Dr Cunningham to his arrest. However, to then use further force against Dr Cunningham, followed very soon after by the 'knee strikes' was, in my view excessive and unnecessary.

579 That the force was excessive and unnecessary is supported by the reactions of those bystanders shown on the CCTV footage at the time police arrested Dr Cunningham and took him onto the road. Male 3 went in to help (and he wasn't going in to help the police) and he was pushed away. Later he followed with his hand up in protest. The man in the hat also put up his hand as if in protest or to ask someone to stop (see my findings in [222], [223], [231] and [233] above).

580 I do not accept the evidence from either Officer Traynor or Officer Clark that Officer Traynor said to Dr Cunningham 'Stop resisting. Stop resisting'. I prefer the evidence of both Ms Atoms and Dr Cunningham that the police did not speak to him. I find that Officer Traynor was not talking to Dr Cunningham, but simply trying to get him to go to ground.

581 In my view, the knee strikes to Dr Cunningham were an inherently unsafe method of taking him to ground because it necessarily involved Dr Cunningham, who wore glasses, falling face first with his hands behind him. It may be a necessary and accepted method of controlling a violent suspect in a situation of sudden violence and mayhem, or a public disturbance such as a street fight (to invoke the case law I have set out in [91]), but this was not a situation of mayhem, there was no street fight and Dr Cunningham was not violent. I am not satisfied that Officer Traynor's decision to apply knee strikes to bring Dr Cunningham to the ground was an objectively reasonable one.

582 It is understandable that Dr Cunningham was trying to stay upright to avoid injury. I am not satisfied that he was resisting arrest and I believe his evidence as I have set out in [552] - [554] above.

583 I find that Officer Traynor's unsuccessful attempts to get Dr Cunningham to go to ground was the reason for his call for back up and when that occurred, things spiralled further out of control.

584 In all of the circumstances, I am satisfied that the use of the handcuff technique as described by Officer Traynor and the use of knee strikes exceeded the force that was reasonably necessary.

585 This is not a situation where I am applying the wisdom of hindsight, in the calm detachment of a court room. In the circumstances which then applied, as substantially evidenced by the CCTV footage, I am satisfied that Dr Cunningham posed no risk to the police. This was a situation where each of these police officers made an assessment which was wrong, then they became annoyed and angry, as I have found in [539] above, and then each of them 'too easily or officiously clothed himself with the powers of the State': Innes v Weates; Hayward-Jackson v Walshaw.

586 I find that the manner of Dr Cunningham's arrest and Officer Traynor's and Officer Clark's subsequent treatment of him was unnecessary and involved the use of force which was excessive. Accordingly their arrest of him was unlawful, even if it was lawful to begin with.

6. Why did Officer Clark push Ms Atoms and was this justified?

587 When I refer to Officer Clark's pushing of Ms Atoms, this is a reference to the way he handled her as shown in the CCTV footage as I have found in [228] above. I have already set out the evidence of each of Ms Atoms (in [548] above) and Officer Clark (in [562] above) relevant to this issue.

588 In light of all of my earlier findings as to Officer Clark's credibility, and also given what is shown on the CCTV footage as I have found in [220] - [228] above, I reject Officer Clark's evidence.

589 Officer Clark's pushing of Ms Atoms was not justified.

590 The police had wrongly arrested Dr Cunningham and Ms Atoms was entitled to go to his aid, and one can see on the CCTV footage that she was trying to get to him. I am not satisfied that Ms Atoms pulled on Officer Clark's left arm and I am positively satisfied that after he pushed her, Ms Atoms did not come back at Officer Clark and grab him again.

591 By this stage both officers had really lost control of the situation, through no fault of anyone except themselves.

7. Was there any justification for tasering Ms Atoms?

592 By the end of the trial there was consensus that Ms Atoms was not actually arrested until after she was tasered.

593 The allegation made by the defendants to justify Ms Atoms being tasered follows from their allegations that she was angry and agitated when she was approached by the police on the footpath outside the Esplanade Hotel, and this behaviour continued from the footpath onto Essex Street.

594 I pick up the evidence with events occurring after Officer Clark pushed Ms Atoms away and while the police moved Dr Cunningham onto Essex Street.

595 As I have already set out in [549], Ms Atoms gave evidence that after Officer Clark pushed her backwards, she was asking what Dr Cunningham had done, telling the police they were hurting him, and asking police to talk to him and ask Dr Cunningham to walk.

596 Ms Atoms' evidence then was that the two officers and Dr Cunningham went straight to the back of the police van which was parked in Essex Street. She saw the two officers push Dr Cunningham up against the back of the van. She was not sure who was pushing and who was pulling, but Dr Cunningham was pulled away and taken to the side of the van where he was, once again, pushed up against the van. The two officers then moved Dr Cunningham along the road towards the Esplanade, past the front of and then away from the van.

597 While this was happening, Ms Atoms was very close at first, when they were at the back of the van. She was pushed back again. She realised then that she could hurt herself staying close so she stayed back a little, a few metres away.

598 Ms Atoms then saw a car coming from the direction of South Terrace. Aware that she was dressed completely in black, she held up her hands with her palms facing outwards towards that vehicle. She saw lights going on top of the vehicle and realised that it was a police car.

The officers disembarked immediately with what appeared to be weapons drawn, crouched sort of behind these opened doors.

600 Ms Atoms gave evidence that these two officers were in uniform, and that the driver was a female and the passenger a male. They had 'weapons' that were pointed in the direction of Dr Cunningham, and she could see two little red dots drifting across his body. Seeing this, she moved in front and with her hands and palms up she said 'Please, don't shoot. Please, don't shoot.'

601 Ms Atoms then noticed a red dot on her clothes, and one of the officers, the driver of the vehicle (the female) started moving towards her while the other officer started making a curve around with his aim on Dr Cunningham. Ms Atoms continued to say 'Please, please, please don't shoot. Please.' The officers shouted something at her that she could not make any sense of. The last vision which Ms Atoms had was of the female officer shouting at her while standing an arm's length away (ts 147).

602 The next thing which Ms Atoms could recall was feeling the weight go out from under her, with a feeling like touching an electric fence. Her knees 'knocked out' and she dropped to the ground.

603 In cross-examination she was asked whether she had heard the words 'Taser, Taser, Taser'. Ms Atoms agreed that it was possible she heard those words, but the words she heard were not in a language which she understood (she did not know about tasering at the time). The words she heard came from the person in front of her, and not from behind (ts 555 - 557).

604 Ms Atoms' next memory was of being restrained with both of her hands behind her back, lying on her right-hand side on the road, with the two officers she had described, standing back, chatting and looking in the direction in which she had last seen Dr Cunningham. She followed their gaze and saw him a little bit farther along, still between the two officers (Traynor and Clark). She was not sure what they were doing with him, but they were pushing and pulling, 'or one of them was maybe sweeping with his foot'. In cross-examination when it was suggested that Officer Traynor, Officer Clark, and Dr Cunningham were struggling with each other she answered she did not see Dr Cunningham struggling, and 'he looked more like a puppet' (ts 558).

605 She then saw one of the two officers who had arrived in the police vehicle laugh. She called out 'Please, what's - what's happened? What's happening to me?' but nobody responded (ts 148 - 149).

606 Ms Atoms then described feeling her shirt lift off her back, and the cold air at her back. She called out again, to the person behind her, 'Please, what are you doing? What's happening? What's happened?'. She continued with her evidence (ts 149):

And what happened then---I felt something that I can only describe as like a - a stabbing - like, spasm of pain that brought to mind something like an epidural to my spine or - I - I - I couldn't describe it in any way. I didn't - it was just an intense stabbing of pain in my lower back.

607 In cross-examination she expanded on the description of this pain as being a 'very local, sharp, stabbing pain in my lower back, like a knife or a needle was being driven into my lower back' (ts 553).

608 Upon feeling this, she screamed. She panicked and then asked again 'Please, what are you doing? What's happening to me? What is this?'. Her hands were restrained, tied together in some way behind her back, and she felt wire coming out from her lower back. She also felt a gloved hand at her back around what appeared to be a wire. When she asked the person what was happening, a male voice said 'shut up'. After that she felt like every muscle in her body was in a cramp at the same time (ts 150 - 151 and 172).

609 In cross-examination Ms Atoms stated that she believed she had been tasered three times. The first time was when her legs went out from underneath her and she dropped to her knees. The second time she was laying on her side and felt the local, sharp, stabbing pain in her lower back, like a knife or a needle was being driven into her lower back. The third time was when she felt all of the muscles of her body cramping. There was not a long space of time between the second and third times (ts 553).

610 Dr Cunningham did not see what happened to Ms Atoms although he did hear Ms Atoms yell out 'Don't shoot. Don't shoot. He's done nothing wrong' (ts 616).

611 After hearing Ms Atoms say 'don't shoot', Dr Cunningham said there was a lot of commotion going on during the time he was being pushed and pulled around on Essex Street.

612 He was near the police van when he saw a red dot or dots on the van, which he understood at the time was a sight or target device for a gun. The red dots were coming from behind him, so he did not see where they were coming from. His evidence then was (ts 618):

What did you see the dots on---Principally on the police van, which I was near at that time. I'd been pushed up against the police van on at least one occasion, perhaps a few occasions, so the police van was within my immediate vicinity and I saw a laser on that particular van. And at this point I also heard from the balcony someone shout out something like - they said, "Stop the violence, you fucking pigs. This is being recorded."

613 He heard the noises of other police officers shouting and he thought the words 'Taser, Taser, Taser' were said. These words did not mean anything to him - at the time he did not know what a taser was and did not know what the word taser actually meant. Those words were said by another officer, a male, not Officer Traynor or Officer Clark. Dr Cunningham heard the words from behind him. At the time he was facing a building called Marine House, which is across the road on the corner of Marine Terrace and Essex Street, opposite the Esplanade Hotel (ts 619 - 620 and ts 691).

614 Dr Cunningham's evidence was that he was then tasered (the effect of which I set out in my discussion of the tasering of Dr Cunningham, the ninth issue below) and fell to the ground. He then remembered hearing Ms Atoms scream and the sound of her body hitting the ground. There followed an 'eerie silence'. He did not know what had happened and thought he was dead at that time. That feeling went on for 5 or 10 seconds (ts 622).

615 He could remember, after he fell to the ground, lying on Essex Street with his head towards Marine House. He looked to his left and could see two police officers, both young, one female with blonde hair and another male officer, both smiling and laughing and 'looking upon the scene' (ts 621 and ts 623).

616 He then heard Ms Atoms scream again. Each of her screams he described as very loud, 'very shrieking' and they sent a shiver down his spine.

617 All that Officer Traynor said in his evidence was that once up at the police van while he was trying to handcuff Dr Cunningham, he could remember seeing Officer Clark right next to him and Ms Atoms behind him, and then he recalled hearing the crackling of the taser (ts 901).

618 In cross-examination he said he could not recall hearing 'Taser, Taser, Taser' before the crackling sound, nor could he recall hearing a female scream after the crackling of the taser (ts 959).

619 Officer Clark's evidence was that after he pushed Ms Atoms he then maintained a grip on Dr Cunningham's arm and started to push him towards the police van across the road.

620 While he was pushing Dr Cunningham across the road to the police van, Ms Atoms was behind him. He was not paying attention to her but could hear there was someone behind him, although he did not know it was Ms Atoms at that stage.

621 On arrival at the police van with Dr Cunningham, Officer Clark took his handcuffs out of his vest and tried to apply them to Dr Cunningham's right wrist. He then heard that Officer Traynor had managed to get his handcuff on to the other wrist, so Officer Clark tried to put his handcuffs back into his vest. As he did this he felt someone 'jump' on his back. He leant forward and dropped his handcuffs. His evidence then was that he saw Ms Atoms reach down, pick up the handcuffs and throw them across the street. She threw them 'like a skimming sort of stone action', and they slid underneath a parked car on the opposite side of - the road (ts 1122).

622 She then 'jumped' back onto his back again and he could see arms around his neck and shoulders (ts 1122). In cross-examination Officer Clark's evidence was that Ms Atoms was 'hanging' onto his back. He was unable to say whether her feet were on or off the ground (ts 1261).

623 Officer Clark's evidence was that he then heard someone running up behind him, the weight came off his back and he turned to see Mr Caldwell standing there replacing the cartridge of his taser (ts 1121, 1122). He did not recall hearing the sound of a taser before Ms Atoms fell off his back, or the sound of a warning before the taser was fired (ts 1123, 1261 and 1262). All he felt was the weight coming off his back. He did not hear Ms Atoms scream; even though on his evidence she had her arms around his neck and was hanging onto his back (ts 1261, 1262). He did not know whether Mr Caldwell made any attempt to physically remove or restrain Ms Atoms before she was tasered (ts 1263).

624 In cross-examination Officer Clark said that after feeling Ms Atoms coming off his back he turned and saw Mr Caldwell removing his Taser cartridge and Ms Atoms on the ground (ts 1263, 1264). He could not remember her position on the ground. He then was dealing with Dr Cunningham with Officer Traynor (ts 1263 and 1264).

625 Mr Caldwell was on foot patrol in the Fremantle CBD that night with a female officer, Senior Constable Fourie, when he heard the radio call for backup. He heard another call from which he got a location of the Esplanade Hotel, then he took off on foot. He ran along South Terrace, turned right into Essex Street and ran down towards the Esplanade Hotel. As he went down Essex Street he observed the back of a police car in the middle of the road. As he got closer he could see two officers, in uniform, wearing high-visibility vests, on the left-hand side of the vehicle.

626 Mr Caldwell gave evidence that he then saw 'a person on the back of a police officer', whom he knew now to be Ms Atoms. However all he could recollect seeing at the time was 'long hair ... and they had their arm around the officer's throat from where I could see' (ts 1307). At the time he arrived at the scene he said he did not know what the gender of that person was, and that person had their (his or her) back to him. He also saw a male between the two police officers.

627 Mr Caldwell's evidence then was that he drew his taser 'to prevent injury to my officers'. He claimed that he had precluded every other option available to him and his concern was 'the arm over the shoulder around the neck, around the throat, sorry' and then went on as follows (ts 1308):

Yes?---If I had have pulled someone off, I'd hurt the officer there, putting more pressure on his neck. I've already - by the situation, the - obviously open hand is not working.

Why do you say, "Obviously open hand wasn't working"?---They were still struggling with this male and they had a person on their back. The officer had a person on their back.

All right?---And the physical presence of a police officer, ineffective, otherwise the situation would not have been where it is.

Right. So as at the time that you got to the scene where you see the officers in this situation with the other two people, what was your assessment then of what you should do?---Use my Taser.

628 So Mr Caldwell drew his taser from the holster on his hip, called out 'Taser, Taser' and then placed the taser in the small of the back of the person on the back of the officer. He then pulled the trigger.

629 Mr Caldwell was using the taser in drive stun mode, by placing the prongs of the taser directly onto Ms Atoms. When he pulled the trigger the prongs went into her back. He explained that after doing this, with the prongs still in her back, he moved the taser down to her right thigh, thereby giving her an electric shock (ts 1311), or more correctly in terms of the Manual, causing a Neuro Muscular Incapacitation.

630 Mr Caldwell's evidence was that after doing this, the person yelled or screamed and 'released their grip ... on the officer'. Mr Caldwell said he had a hold of the scruff of the neck, the clothing just on the shoulder with his left hand (the taser being in his right hand) and lowered the person onto the ground. The person, whom he knew was a female now, 'just basically flopped'. He gave evidence that as she went down he cradled her, and then was squatting over the back of her. She was face down on the ground.

631 He yelled at Officers Traynor and Clark to use their tasers, but had no response from them. Then another officer arrived, whom Mr Caldwell thought (but was not 100 percent sure) was Officer Stevenson. Mr Caldwell said, 'Take control of her', then reloaded his taser with a new, fresh cartridge and went forward and tasered the male (Dr Cunningham). (I discuss below in more detail the circumstances surrounding the tasering of Dr Cunningham).

632 After doing this, Mr Caldwell gave evidence that he went back to Ms Atoms to retrieve his taser cartridge, which was laying next to her. The prongs from the cartridge were still attached to her, so he pulled them out. He did so by placing his left hand into the small of her back while he pulled out the prongs with his right hand. At the time he removed the prongs he believed Ms Atoms was restrained by handcuffs.

633 In cross-examination Mr Caldwell's evidence was that he yelled 'Taser, Taser' as loudly as he could when he was behind Ms Atoms, running in, and that he was only 'two to three paces, maybe' away from her when he shouted those words. Mr Caldwell, while insisting in his evidence that he considered all of his options before firing the taser, admitted in cross-examination that (ts 1390):

(a) he did not wait at all after shouting those words before deploying the taser;

(c) he said nothing to Ms Atoms to try and persuade her to stop doing what he said she was doing, namely holding onto Officer Clark's neck;

(d) he did not consider the possibility of taking Ms Atoms' arm from Officer Clark's neck; and

634 Mr Caldwell insisted that until he tasered the person that we now know to be Ms Atoms, he had no idea whether that person was a female, stating that although he saw the person had long hair, and as he described it a 'slight build', he did not notice the dress or skirt she was wearing (ts 1391 - 1392).

635 Mr Caldwell maintained that she was on Officer Clark's back with her right arm around his throat, over his shoulder, but could not say whether her feet were on or off the ground. The following exchange then took place (ts 1393):

Can I suggest to you that it was the easiest thing in the world for you to have simply grabbed her right arm, pulled her away from Constable Clark's throat as you've described it and arrested her---The easiest thing in the world.

The easiest thing in the world, sir---No. The best option I took was to deploy the Taser.

636 Mr Caldwell subsequently gave the following evidence (ts 1397):

Do you recall receiving any training that you should consider and, if appropriate, use other options to dissuade the person to be tasered from whatever they're doing before you discharge the Taser---That would - that would come under your verbal commands, yes.

637 Officer Stevenson gave evidence that he was at the time stationed at Fremantle Police Station, and was on Officer Traynor's and Clark's team. He was also on foot patrol in the Fremantle CBD that night, near the corner of South Terrace and Essex Street, when he heard the call for urgent backup and something about the Esplanade Hotel. He turned right and ran down Essex Street towards the Esplanade and the Esplanade Hotel.

638 In cross-examination he said he responded to the backup call within seconds. He could also remember he was with another officer, but could not remember who that was, although it might have been PC Johnson, who was probably running with him (ts 1426-1429).

639 Just as Officer Stevenson was turning into Essex Street, he was overtaken by Mr Caldwell - as Officer Stevenson described it, 'he flashed past me' (ts 1428). Later in cross-examination, Officer Stevenson stated that he was standing on the corner of South Terrace and Essex Street when he heard the call, then Mr Caldwell ran past (ts 1430). Mr Caldwell ran south towards the Esplanade and the Esplanade Hotel, and Officer Stevenson ran in the same direction, following him.

640 In cross-examination Officer Stevenson added that before he started running, there was a collapsed female being dealt with by other officers at that corner. He remembered stopping quickly there and asking if they were okay, before he took off.

641 Officer Stevenson 'came across the scene'. In cross-examination (ts 1431) he estimated it took about 15 seconds to get to the scene outside the Esplanade Hotel.

642 He saw a marked police vehicle in the middle of Essex Street. This was about 60 or 70 metres from the intersection of South Terrace, probably 20 metres shy of the intersection of the Esplanade. He could recall no other police vehicles there at the time. At some later point in time he observed other police vehicles present but he did not see them arrive.

643 He also saw 'a number of officers' wearing police uniforms, and two people who weren't officers, because of their civilian clothing, who were being controlled in handcuffs. There was one male and one female (ts 1413 - 1414).

644 Officer Stevenson recognised Officers Traynor, Clark and Caldwell among the police officers.

645 Officer Stevenson explained that as he was running down Essex Street it was apparent there were people around that police vehicle. As he was overtaken by Mr Caldwell, as Officer Stevenson looked down the street he saw that there was a number of people around the vehicle (ts 1415). In cross-examination he said he did not see anything as he was running down Essex Street other than 'a mass of bodies and blue and red flashing lights' (ts 1431).

646 As he came closer, the first thing Officer Stevenson observed was the male person standing in handcuffs. Officer Stevenson could see Officer Traynor controlling the male person very close to the police vehicle. Officer Stevenson also saw a female who he described as tall and slim with dark hair, but he could not remember when he first saw her. Nor could he remember what she was doing (although in cross-examination he said she must have been standing up), whether she was handcuffed or who she was with. In cross-examination he said he did not see either the male or female being tasered, and was sure that if he had seen that, he would remember that (ts 1436).

647 He had no recollection now of when he first saw Officer Clark. All Officer Stevenson could remember of Mr Caldwell was seeing him 'being in amongst it'.

648 In cross-examination Officer Stevenson said he also saw two or three other uniformed officers present (ts 1434).

649 Officer Stevenson was then distracted by a man who was up in one of the rooms of the Esplanade Hotel, yelling and swearing, saying that he was filming the incident or had indicated that he was recording the incident with a camera. He was holding something up in front of him (ts 1416).

650 Officer Stevenson remembered that at this stage he was standing on the kerb on the opposite side of the road across from the Esplanade Hotel and spoke to Detective Randall Worthington who was at the scene. Officer Stevenson recalled there was at least one more police vehicle there, but he did not remember exactly where it was and he did not recall seeing that vehicle arrive.

651 He spoke to Detective Randall about speaking to the man who had yelled out from the Esplanade Hotel. After identifying which room he was in (by counting down the number of rooms), Officer Stevenson went with Detective Worthington and 'two or three other uniformed officers' to the Esplanade Hotel. Officer Stevenson could not recall who the uniformed officers were, but one was female. He did not know where those officers had come from or when they had arrived (ts 1418). As he did not recognise them, he believed the other officers in uniform who came to the Esplanade Hotel with him were not from Fremantle.

652 At the Esplanade Hotel, Officer Stevenson spoke to the man, who was Mark Brophy, noting that he was intoxicated. Officer Stevenson asked for and obtained Mr Brophy's camera, then went back to the Fremantle Police Station. He later went back to the Esplanade Hotel and returned the camera to Mr Brophy.

653 I also heard evidence from a number of other police officers, including Detective Worthington, who attended the scene in Essex Street in their police vehicles following the back up call. It is not necessary to set out their evidence in full. It is sufficient to say that none of those officers witnessed the tasering of either Ms Atoms or Dr Cunningham.

654 While some of the evidence from Dr Cunningham supports Ms Atoms, he has stated that his tasering happened before Ms Atoms was tasered. Having regard to all of the evidence, it seems clear that Ms Atoms was tasered first.

655 None of Dr Cunningham, Officer Traynor or Officer Stevenson saw her being tasered. So my findings will turn on the evidence given by Ms Atoms, Officer Clark and Mr Caldwell.

656 I accept Ms Atoms' evidence that she saw a uniformed female officer. That is supported by the evidence of Dr Cunningham who also saw a female officer with blonde hair. There was also a blonde haired female officer at the lock-up.

657 However, I have difficulties with Ms Atoms' evidence that the uniformed female officer arrived in a police vehicle with a male officer, also in uniform. I am also unable to accept Ms Atoms' evidence about how these two officers got out of the police vehicle and crouched behind the open doors of the vehicle with what appeared to be weapons drawn, which they first pointed at her and then pointed in the direction of Dr Cunningham.

658 As I have noted, those police officers who arrived in vehicles all gave evidence in this trial. None of those police officers were present at the time of the tasering - all arrived in their vehicles afterwards, and only one of those officers was a female. She was a detective who did not wear a uniform and she did not have blonde hair. None of them deployed tasers or other weapons.

659 It may well be that the experience of the tasering has affected and conflated Ms Atoms' memory and that this is a symptom of her PTSD (evidence about which I have set out when assessing quantum, see in particular [979] - [980] below). Ultimately for the purpose of this issue, I do not consider this to be a material factor.

660 What is material are the circumstances which led to the tasering of Ms Atoms, and where she was in relation to Officer Clark. I have different versions of those circumstances from each of Ms Atoms, Officer Clark and Officer Caldwell.

661 Dealing first with the evidence of Mr Caldwell, I cannot rely upon his evidence, because of:

(a) the observations I have made about his credibility generally in [360] - [368] above;

(b) the fact that his evidence as to what Ms Atoms was doing is not consistent with any other evidence I am prepared to accept;

(c) the matters I have set out in [634] above, which in my view cast considerable doubt on Mr Caldwell's powers of observation and generally whether he in fact saw Ms Atoms, as he claimed, with her arms around Officer Clark's neck.

662 I am also unable to rely on the evidence of Officer Clark as to what occurred before Ms Atoms was tasered. This is not only because of the issues I have with Officer Clark's credibility generally and that I am not prepared to act upon it unless it is supported by other evidence I do accept. I cannot accept Officer Clark's evidence that Ms Atoms acted in the way he has claimed. As I have found, Ms Atoms was not the angry, aggressive woman Officer Clark would have me believe she was on the footpath. I am unable to accept that in the space of minutes her behaviour changed from the limp wristed woman holding up her hands to her partner's back whom I observed on the CCTV footage, to someone who became irrational and aggressive and who, according to Officer Clark, reached down, picked up the handcuffs he had dropped, threw them across the street and then 'jumped' onto his back. It is, in my view inherently improbable that Ms Atoms behaved in this way and I do not believe him.