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[2016] WADC 168
District Court of WA
2016-12-09
Original judgment source is linked above.
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
CITATION : CUNNINGHAM -v- TRAYNOR [2016] WADC 168
HEARD : 16 - 27 NOVEMBER 2015 & 8 - 17 MARCH 2016
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
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
Darcy v New South Wales [2011] NSWCA 413
Duvall v Godfrey Virtue & Co (a firm) [2001] WASCA 163
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
Lancee v Willert [2008] WASCA 120
Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70
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
State of Victoria v McIver [2005] VSCA 50; (2005) 11 VR 458
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
Transfield Services (Australia) Pty Ltd v Wieland [2014] WASCA 41
Trobridge v Hardy [1955] HCA 68; (1955) 94 CLR 147
Undershaft (No 1) Ltd v Commissioner of Taxation [2009] FCA 41; (2009) 175 FCR 150
Van der Velde v Halloran [2011] WASCA 252
Walsh v Loughnan [1991] VicRp 75; [1991] 2 VR 351
Walter v Alltools Ltd (1944) 61 TLR 39
Watson v Foxman (1995) 49 NSWLR 315
Watson v Marshall & Cade [1971] HCA 33; (1971) 124 CLR 621
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158
Weir v Tomkinson [2001] WASCA 77
West v Government Insurance Office of New South Wales [1981] HCA 38; (1981) 148 CLR 62
Williams v Smith [1960] HCA 22; (1960) 103 CLR 539
Woodley v Boyd [2001] NSWCA 35
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.
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) 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) 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):
...
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:
...
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:
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.
663 It was interesting that while Officer Clark gave evidence that Ms Atoms threw the handcuffs 'like a skimming sort of stone action', and they slid underneath a parked car on the opposite side of the road, I heard nothing from him about how or when he retrieved those handcuffs. I heard no other evidence from anyone which would support Officer Clark's evidence. In my view his evidence about this is both improbable and unbelievable.
664 However, the fact that I am unable to accept and rely upon either Mr Caldwell's or Officer Clark's evidence does not mean that I should accept Ms Atoms' version of events. As I have already set out, I do have difficulties with her account.
665 I am permitted to come to a view of the case which does not exactly represent what any party has said and this is such a situation.
666 I will deal first with the number of times Ms Atoms was tasered. She believed, and I think honestly (and it was pleaded) that she was tasered twice, and in cross-examination she said it was possibly three times (see [609] above).
667 It is easy to understand her belief that she was tasered more than once, given her description of the occasions when she experienced pain. In addition, the Taser Discharge information (exhibit 1, tab 20, page 7 of 39) shows a discharge of 4 seconds at 01:03:59, followed immediately by a discharge of only 1 second at 01:04:00 (recorded firing date sequence numbers 0116 and 0117), then, 15 seconds later at 01:04:16, a discharge of 5 seconds (sequence number 0118). The last discharge, from all the evidence in this case, I find was the tasering of Dr Cunningham. The 15 second gap between sequence number 0117 and 0118 is consistent with the other evidence I heard about the time between Ms Atoms' tasering and Dr Cunningham's tasering.
668 The Taser Discharge information is troublesome, to the extent that there appears to have been a second discharge of one second (sequence number 0117). That one second discharge is puzzling, and has not been explained, however, it does immediately follow, without a break, from sequence number 0116 and does not fit with Ms Atoms' description of the occasions of pain, separated in time.
669 I am satisfied that Ms Atoms was only tasered once by Mr Caldwell. While there is very little of Mr Caldwell's evidence about the circumstances surrounding the tasering which I accept, I do accept that he was issued with two cartridges, each of which would administer one charge lasting five seconds. I accept that he used the first cartridge to taser Ms Atoms and the second cartridge to taser Dr Cunningham. That Ms Atoms was only tasered once is consistent with the photographs taken of her injuries including that there is only one set of marks on her lower back, which is consistent with the prong marks from a taser (exhibit 17.21). I am also satisfied that the sensations and pain which Ms Atoms experienced while she was on the ground, as I have set out in [606] - [608] above, are consistent with the removal of the prongs from her back, as described by Mr Caldwell.
670 I therefore proceed on the basis that Ms Atoms was tasered only once.
671 As to what led to the tasering, I find that Mr Caldwell heard the back up call, and responded to that call. This represented a call for help where two police were, ostensibly, not able to handle the situation. I accept that Mr Caldwell was entitled to think, in those circumstances, that force of some kind might be required.
672 Weighing all of the evidence, while I am not satisfied that Ms Atoms jumped onto Officer Clark's back, nor am I satisfied that she had her arm around Officer Clark's neck, I find that Ms Atoms was close behind Officer Clark's back and that he felt her there (which is what he said at the lock-up: see [251] above. It is also what Officer Traynor saw, ie he saw Ms Atoms behind Officer Clark: see [617] above).
673 I am satisfied that as Mr Caldwell ran down Essex Street from South Terrace, he first saw the police car in the middle of the road and then he saw two officers, in uniform, on the left hand side of the vehicle and then he saw a person close to the back of one of those police officers.
674 Such contact by Ms Atoms to Officer Clark's back as occurred, happened in the process of his unlawful arrest of Dr Cunningham and at a time when he came between Dr Cunningham and Ms Atoms, who was concerned for his welfare. Mr Caldwell, however, did not know and could not have known this, so it must be said that the possibility of high level force being necessary would reasonably occur to him.
675 I do not have any reliable evidence as to how far away Mr Caldwell was when he made the decision to pull out his taser, but on all of the evidence, I find that his decision to do so was made at a time when he was some distance away. My reasons are as follows.
676 Officer Stevenson described how quickly Mr Caldwell was running and overtook him. I assume Mr Caldwell was travelling between 8 km - 10 km per hour, which equates to 2.2 m - 2.8 m per second.
677 I am satisfied that Mr Caldwell shouted 'Taser, Taser, Taser' ('the warning'). I find that he was running when he gave the warning. Seconds later he shot Ms Atoms from close range in the small of her back. I am satisfied that he was further away than he said he was when he called out the warning.
678 At the speed he was travelling, in order to shout the warning and give his fellow officers time to protect themselves, Mr Caldwell must have been a minimum, in my view, of 3 seconds away. He was therefore at least 6 m to 7 m away.
679 Before shouting the warning, he must have reached for and taken out his taser. Therefore he must have decided to do this at a much earlier stage, further away again. Assuming that there was at least one second between the time he took out his taser and shouted the warning, he was between 8.2 m - 9.8 m away.
680 I find that his decision to use the taser was made on an inadequate appreciation of the facts. He did not even recognise that Ms Atoms was a female. It follows that the distance away and his inability to recognise her as a female means that Mr Caldwell did not really see what Ms Atoms was doing at the time. It also means that he had time for reflection.
681 The only conclusion I can draw is that he formed the view that the use of a taser was necessary, without any proper assessment of the situation. In doing so, he was limiting his options.
682 I am satisfied that Mr Caldwell did not re-assess the situation when he was close enough to actually put the taser prongs in the small of Ms Atoms' back. I am not satisfied that at this time Ms Atoms was 'on' Officer Clark's back or that she could have been considered a danger or risk to the safety of Officer Clark. Mr Caldwell nonetheless fired the taser.
683 In short, Mr Caldwell deployed his taser on a very slim, slightly built female who was no physical threat to anyone. The fact that he was not deterred from using his taser once he was within close range goes to demonstrate how in his mind he was going to use his taser, come what may.
684 There was an alternative to tasering Ms Atoms, as illustrated by the ease with which Officer Clark pushed her away on the footpath when arresting Dr Cunningham (as shown on the CCTV footage). In my view, it would have been a simple thing for Mr Caldwell to go up and remove Ms Atoms from Officer Clark's proximity without firing his taser.
685 In all of the circumstances, I find that Mr Caldwell had no proper regard for the situation on that night. He undertook no proper assessment of the situation before tasering Ms Atoms. I am not satisfied that he had any reasonable grounds for his stated belief that his officer's safety was at risk. Even on the police version of events, Ms Atoms could easily have been restrained without the use of a taser.
686 I find that there was no justification for tasering Ms Atoms.
687 Given my findings in relation to both the first, second, sixth and the seventh issues, which relates to her tasering, I find that Ms Atoms' arrest which followed was not lawful.
9. Was there any justification for tasering Dr Cunningham?
688 After seeing the red dots on the police van and someone yell the warning (Taser, Taser, Taser), Dr Cunningham's evidence was that he was tasered. He came to that view because (ts 620):
...I lost all control of my body, so my central nervous system essentially shut down. And I had an excruciating pain throughout my whole body.
689 He described how this was a whole body experience and that he was unable to stand or continue standing while he experienced 'this excruciating pain'. He dropped to the ground and as both hands were behind his back, he landed heavily on the front part of his body. His face did not hit the ground, but all other parts of his body landed on the road.
690 It was while he was on the road that he heard Ms Atoms scream, and the sound of her body hitting the ground, then he experienced the eerie silence when he thought he was dead.
691 Officer Traynor gave evidence that while alongside the police van with Dr Cunningham, he was holding what he described as the rigid bar attached to the cuff on one of Dr Cunningham's arms (ts 902). He could not remember if he held any part of Dr Cunningham's body (ts 903)
692 After hearing the crackling of the taser the first time, Officer Traynor heard the crackling of the taser again and then saw one of the barbs (prongs) of the taser stuck in Dr Cunningham's belt. Dr Cunningham lowered to the ground as Officer Traynor was holding on to him (or more correctly, the rigid bar of the handcuff). He then got the other arm in the handcuff so that Dr Cunningham was 'properly restrained' (ts 901).
693 Officer Traynor heard the sound of the taser from over his right shoulder. He could remember being alongside the police van, but could not say how far away from the van he was.
694 He could not recall seeing Officer Clark or anyone else after hearing the crackling of the taser a second time and seeing Dr Cunningham going to the ground.
695 In cross-examination he said he could not recall hearing 'Taser, Taser, Taser' before the second time he heard the crackling sound. He could not recall hearing Mr Caldwell say anything (ts 960 and 961). It was only after he had applied the second handcuff to Dr Cunningham that he realised Mr Caldwell was there (ts 962).
696 In evidence in chief Officer Clark said that after he saw Ms Atoms on the ground and Mr Caldwell present, he was still trying to restrain Dr Cunningham with Officer Traynor and 'We still both had hold of an arm each'. They were up against the police van. Then next thing he could remember happening was that Mr Caldwell 'came over and tasered the man in the back'. Dr Cunningham's legs went from underneath him and he went to the ground (ts 1124).
697 In cross-examination, Officer Clark's evidence was that after Ms Atoms was tasered, and he then turned his attention to Dr Cunningham, he took hold of one of Dr Cunningham's arms while Officer Traynor had a cuff on one of Dr Cunningham's arms and was holding either the handcuffs or Dr Cunningham's body. Officer Clark then saw Mr Caldwell apply the taser in drive stun mode to Dr Cunningham's back. He heard no warning ('Taser, Taser, Taser') before the taser was applied. The lapse of time between Ms Atoms falling off his back and Mr Caldwell applying the taser to Dr Cunningham was between 5 and 10 seconds (ts 1265).
698 Officer Clark did not hear Mr Caldwell otherwise try and communicate with Dr Cunningham. Officer Clark did not remember Mr Caldwell assisting to physically restrain Dr Cunningham or apply handcuffs to him without the use of the taser (ts 1266). Officer Clark agreed that no attempt was made by Mr Caldwell to assist him and Officer Traynor to deal with Dr Cunningham without resorting to the taser (ts 1267).
699 As I have already set out, Mr Caldwell's evidence was that after he tasered Ms Atoms, he yelled at Officers Traynor and Clark to use their tasers, but had no response from them. In cross-examination Mr Caldwell gave evidence that the exact words he yelled at Officers Traynor and Clark were 'Zap that fucker' (ts 1393).
700 He then loaded his taser with his spare cartridge. In cross-examination he was asked about how long this would take (ts 1394):
So you - how long - how long did it take you to reload your Taser---Takes seconds.
Well, one second, five seconds, 10 seconds---No, well, it doesn't take long at all cos you just - it's a clip, grab the other one, put it in. I - I couldn't - one second, two seconds.
701 Mr Caldwell gave evidence that after reloading his taser he went 'in-between the two officers and tasered the male that they were fighting with'. That male was, of course, Dr Cunningham. Mr Caldwell gave evidence that the male person had his back to him and Mr Caldwell put his taser into the small of his back. At the same time, with his arm on the scruff of the neck, Mr Caldwell pulled the trigger, then moved the taser down to the right thigh. The male person went limp and was lowered to the ground by, Mr Caldwell thought, 'a combination of all three of us. I had a hold of his shoulder, the scruff of his shoulder, and the other two officers still had a hold of his arms.' (ts 1314).
702 Mr Caldwell left to go back to remove the prongs from Ms Atoms and then returned to retrieve the prongs from Dr Cunningham. The prongs were in his belt. At the time he removed the prongs from Dr Cunningham, Mr Caldwell believed he was restrained and he was standing up against the side of a police van.
703 In cross-examination Mr Caldwell was asked about alternatives to tasering. His evidence was to the effect that he could not have assisted Officers Traynor and Clark because there were 'too many hands in there. I wouldn't have been able to get a hold' of Dr Cunningham because of 'the tightness of the group'. Mr Caldwell agreed that he had received training that he should consider and, if appropriate, use other options to dissuade the person to be tasered from whatever that person was doing before discharging the taser, noting 'that would come under verbal commands'. He agreed he did not give a verbal command to Dr Cunningham, saying that he did not have time, it was not practical to and he had already yelled out (ts 1396 and 1397).
704 Mr Caldwell was then cross-examined as to the danger to the officers posed by Dr Cunningham. He answered 'getting injured as they are trying to effect an arrest'. Mr Caldwell then gave evidence that he could not see if Dr Cunningham did or did not have a weapon, but 'from the back he didn't have a weapon'. Mr Caldwell then stated that he had formed a view that both officers were likely to be injured. He was then asked (ts 1319):
What was the nature of the injury that you formed the view they might suffer---Well, it can be falling over, moving into the parked vehicles, injuries to muscles. There's a multitude of things.
In other words, the injury of effecting an arrest on a person who you believed to be resisting arrest---Yes.
So is it your view that it is always appropriate to use a Taser on a person who is resisting arrest---No, that's not - not what I'm saying at all.
What circumstances would it not be appropriate to use a Taser on a person resisting arrest---If there's no chance of injury.
705 Mr Caldwell disagreed that he tasered Dr Cunningham at a point at which he was already restrained by Officers Traynor and Clark. Mr Caldwell rejected the suggestion that the obvious and logical thing to do would have been to assist Officers Traynor and Clark to physically restrain Dr Cunningham and effect his arrest, stating 'they didn't have control of the situation'. In Mr Caldwell's view, as a third police officer he would not have assisted to obtain control of the situation and 'that's why I deployed my taser.' (ts 1399).
706 My comments about issues with Mr Caldwell's credibility as I have set out when discussing the tasering of Ms Atoms, apply equally to the tasering of Dr Cunningham. I need, however, to specifically address two aspects of Mr Caldwell's evidence.
707 The first is that before he tasered Dr Cunningham, he shouted out 'Zap that fucker'. No-one else heard these words. I find it is highly improbable that Mr Caldwell actually said those words at the time. It is, in my view a post event effusion of his opinion and not what he actually said at the time. However, those words which he used during this trial indicate his attitude to the plaintiffs and lack of compunction in expressing it. The fact that he thought he had said them is entirely consistent with his attitude to Dr Cunningham at the relevant time. To this day Mr Caldwell thinks he did nothing wrong and that Dr Cunningham was some sort of reprehensible character.
708 Mr Caldwell's evidence that he said 'Zap that fucker', along with the evidence I heard about the 12 previous occasions he had used a taser before this night and the findings I have made in [709] below, also demonstrate that he is the kind of person who would taser first and ask questions later and that he had no regard for police policy for the use of tasers, as set out in the Manual (including that a taser should not be used as a compliance tool).
709 The second aspect of Mr Caldwell's evidence I need to address is his assessment of the risk to Officers Traynor and Clark as I have set out in [704]. It is improbable and I do not believe it - it is, in my view, an attempt by Mr Caldwell to find some justification for tasering Dr Cunningham. I do not accept that the circumstances which existed at the time gave rise to any real risk of injury, or could have been considered by any reasonable police officer in the position of Mr Caldwell to have given rise to a risk of injury. His stated belief about concern for the safety of his officers is inconsistent with the fact that he shouted no warning before firing the taser on this second occasion, even when both officers were in close proximity to the intended recipient.
710 The circumstances which existed at the time were that Mr Caldwell had just tasered Ms Atoms and she was out of the way. The situation really was under control. Backup had arrived - there was at least one other officer there (which one is not clear). During the 15 seconds between completing the tasering of Ms Atoms and tasering Dr Cunningham, Mr Caldwell stood over Ms Atoms and handed control of her to another officer. Dr Cunningham was between Officers Traynor and Clark who were dealing or attempting to deal with him. Mr Caldwell had time to assess the situation.
711 It is clear Mr Caldwell made no assessment of the situation. He was now seeing a man who had two officers on either side of him. How dangerous was that man? Was he a risk to police? In my view he was no risk at all.
712 No-one suggested to Mr Caldwell that the man needed to be tasered (not even Officers Traynor or Clark who could have easily used their own tasers). There was no evidence of Dr Cunningham being armed in any way. There was no evidence that Dr Cunningham was doing anything to either Officer Traynor or Officer Clark or that either of these officers was at any real risk of injury. All Mr Caldwell needed to do was go up to assist Officers Traynor and Clark, but he did not do this.
713 In all of the circumstances, I find that Mr Caldwell undertook no assessment of the situation before tasering Dr Cunningham. I am not satisfied that Mr Caldwell had any belief that either Officer Traynor's or Officer Clark's safety was at risk. Nor am I satisfied that he had any reasonable grounds for his stated belief that his officers' safety was at risk.
714 Mr Caldwell simply reloaded his taser without thinking and without any assessment of the situation. He then walked up and, without saying anything to either Officer Traynor of Officer Clark, or to Dr Cunningham, fired the taser directly into Dr Cunningham's back (and although it hit his belt, it still achieved neuro muscular incapacity).
715 I find that there was no 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?
716 It is necessary to consider the evidence and make findings about what occurred after the tasering. This is relevant to the plaintiffs' claims against the State for battery and false imprisonment. It is also relevant to the issue of causation for Ms Atoms' back injury, a matter I deal with when assessing damages.
717 I have set out in [602] above Ms Atoms' evidence about how after she was tasered, her knees 'knocked out' and she dropped to the ground. Then, as she lay on her side, the prongs were removed from her back (see [604], [606] - [608] and [669] above).
718 Ms Atoms gave evidence about how as she lay on her side, feeling wire coming out of her back, her hands were restrained behind her back. She did not know how, but they were tied together in some way. There was someone behind her. She asked them what was happening. The person said 'shut up'. It was a male voice who said these words (ts 150). Those words were said to her, on her evidence, before she experienced the muscles in her body cramping as she explained it (ts 151).
719 After this, Ms Atoms lay on the ground before somebody came along to pick her up. She could not be sure how long she lay there before she felt two people pick her up from behind. One person picked her up by taking hold of the top of her left arm near the shoulder. The other person took hold of her feet. She was held in this way briefly. The person who held the top of her arm let go, and she dropped to the ground. The person holding on the bottom still had hold of her feet but that person then let go of her right foot and still had hold of her left leg. Then that person dropped her left ankle and she remained on the ground (ts 151, 545 and 548).
720 After that, someone came along and took hold of the area around her wrist in some way, picked her up backwards by her wrists and steered her to the police van and put her in the back of the van. Dr Cunningham was put into the police van not long after she was. He tried to speak to her and asked her if she was ok. She shook her head. She remembered she was quite terrified to speak and tried to express she did not want to speak (ts 152).
721 I have already set out how, after he was tasered, Dr Cunningham experienced excruciating pain, was unable to continue standing and dropped to the ground, landing on the front of his body on the road (see [689]).
722 It was while he was on the road that he heard Ms Atoms scream, and the sound of her body hitting the ground, then the eerie silence when he thought he was dead.
723 I have already mentioned Dr Cunningham's evidence about the two police officers (one male, the other a blonde haired female) whom he saw smiling and laughing (see [615] above).
724 Another clear memory he had when he was on the ground was of seeing a police officer with dark hair and a solid build. Dr Cunningham looked up at this officer and said 'I've done nothing wrong', and the officer said, 'We don't give a fuck what you've done or what you haven't done' (ts 621).
725 Dr Cunningham conceded that he was not sure who this officer was. Initially he thought it was Mr Caldwell but his evidence was it might have been the officer he saw at the lock-up (Officer Stevenson). It was possible that he had mixed up Mr Caldwell with Officer Stevenson. There were two police officers with dark hair and solid build, and Dr Cunningham could not be entirely clear who was who.
726 After hearing the second of Ms Atoms' screams Dr Cunningham gave evidence that he was handcuffed and could not get to his feet without assistance. The police officers who assisted him to his feet (Dr Cunningham thought there were two officers) were behind him and he could not tell who they were. No words were spoken and the police used what Dr Cunningham described as 'brute force' to give him directions. He was pushed towards and eventually placed in the police van (ts 623).
727 Dr Cunningham asked a police officer to loosen the handcuffs because they were extremely tight, but that request was denied without any response.
728 Once he had been put into the van, he saw those two police officers and thought that he saw Officers Traynor and Clark. It was thus Dr Cunningham's belief that they were the two officers who put him into the police van.
729 He saw two other uniformed police officers (not Traynor and Clark) bring Ms Atoms to the van. He did not know who those officers were.
730 In the van he spoke to Ms Atoms, advising her to give her name and address, but otherwise stay silent. He also asked if she was okay. She did not speak, but shook her head.
731 A minute or two after being placed in the back of the van, it left and took them to the police station.
732 Officer Traynor's evidence was that after seeing the barbs of the taser stuck in Dr Cunningham's belt, Dr Cunningham then just 'lowered to the ground' as Officer Traynor was holding on to him. He then got Dr Cunningham's other arm into a handcuff.
733 Officer Traynor then could not remember a lot because, he said, 'I was so exhausted....I just remember once I'd got my breath back that Dr Cunningham and Ms Atoms was in the back of a police van. I don't know how they got there. I don't know if I put them there. I just - I can't remember' (ts 904).
734 He did remember approaching the back of the van and telling them the reasons why they were under arrest. He could not recall seeing Officer Clark at that point. After that, he just remembered being back at the police station.
735 Once Dr Cunningham had been handcuffed, Officer Clark walked away to get his breath. At that point he noticed that other police officers had arrived and at least two other police vehicles. He remembered two plain-clothed detectives but could not say how many other police officers there were.
736 Officer Clark described himself as tired, out of breath and his muscles were aching (ts 1127). He recalled only that he went back to the Fremantle Police Station. He could not remember how he got there and he could not remember who conveyed Ms Atoms and Dr Cunningham to the police station.
737 As I have already set out in [630], Mr Caldwell's evidence was that he was holding Ms Atoms' clothing just on the shoulder with his left hand and lowered her onto the ground. She 'just basically flopped'. He gave evidence that as she went down he 'cradled' her.
738 Mr Caldwell thought that Dr Cunningham was lowered to the ground by 'a combination of all three of us. I had a hold of his shoulder, the scruff of his shoulder, and the other two officers still had a hold of his arms.' (ts 1314).
739 After Dr Cunningham had gone to the ground, Mr Caldwell went back to Ms Atoms to remove the prongs from Ms Atoms and retrieve the taser cartridge. Mr Caldwell's evidence was that he then returned to remove the prongs from Dr Cunningham's belt. By that time Mr Caldwell believed that Dr Cunningham was restrained and standing up against the side of the police van. Mr Caldwell noticed other police officers there at this time, three of whom he recognised from the Fremantle Police Station, including Officer Stevenson.
740 Mr Caldwell said he did not speak to either of the plaintiffs. After collecting his taser cartridges he returned (on foot) to the Fremantle Police Station.
741 I reject the evidence of Mr Caldwell that as Ms Atoms went down, he lowered her to the ground and cradled her. I am positively satisfied that she dropped to the ground on her knees, as she described. Her evidence about this is supported by the photographs of the grazes to her knees, with the graze on her right knee being worse than the one on the left (exhibit 17.6).
742 I also reject both the evidence of Mr Caldwell that he helped to lower Dr Cunningham to the ground, and the evidence from Officer Traynor that Dr Cunningham was just 'lowered to the ground' as Officer Traynor was holding on to him. It may well be that Officer Traynor was holding onto the bar of the rigid handcuff attached to one of Dr Cunningham's arms, as Dr Cunningham went to ground, however I do not consider it to be a case of Dr Cunningham being 'lowered to the ground' with anyone's assistance. I accept his evidence that he dropped to the ground. This, too is supported by a photograph of a graze to Dr Cunningham's knee taken after the event on 5 November 2008 (exhibit 17.7).
743 I am satisfied that after her tasering Ms Atoms was handcuffed, spoken to and handled in the way she described before being placed into the police van.
744 While Dr Cunningham may be confused about the order of events (in particular that he was tasered first), I find his evidence about the way he was spoken to, handcuffed, then handled and placed into the police van is credible, and I accept it. His evidence about how the handcuffs hurt him is also supported by the photographs taken after the event (exhibit 17.3 in particular).
745 I am satisfied, in each case, that this constitutes a battery for which there is no justification and the State is liable.
11. and 12. Was the imprisonment of Ms Atoms or Dr Cunningham at any time until released at the police station lawful, and therefore justified?
746 It follows from all of the findings I have made in relation to the first to tenth issues that the imprisonment of Ms Atoms and Dr Cunningham was neither lawful nor justified.
747 They should never have been detained, arrested or tasered and they should never have been charged.
748 There is one further matter which I need to address relevant to the plaintiffs' claims for false imprisonment. Counsel for the first, second and third defendants submitted that neither Ms Atoms nor Dr Cunningham was falsely imprisoned at any point in time except for after they were handcuffed and placed in the police van, because until that time they were not 'totally restrained'. In fact, it was suggested that Ms Atoms was not totally restrained because she had movement of her upper arms (ts 1750 - 1753), and while Dr Cunningham's liberty was impacted upon by the two officers, there were periods of time where he had his hands free (ts 1754).
749 I am unable to accept that submission, given the authorities which I have set out in [116] - [118] above.
750 I am satisfied that Ms Atoms was not free to leave after the second grab by Officer Traynor. After the first grab, she was confused and thought she was being asked to leave again. To that extent, she did not understand that she had to submit or else be compelled. After the second grab, however, it was clear she had to submit and was not able to leave. Even after Dr Cunningham's arrival, Officer Traynor continued to hold her. His hold on her continued until Officer Traynor turned Dr Cunningham around just before his arrest (see [215] above). While there was no formal arrest of Ms Atoms at that stage, I am satisfied that she was not free to go.
751 There can be no dispute that Ms Atoms was again totally restrained after she was tasered until her release from custody on bail.
752 I am also satisfied that Dr Cunningham was not free to leave from the moment he was first grabbed by Officer Clark. As I have found in [530] that was between 01:06:04 and 01:06:06 according to the CCTV footage. Two seconds later, Officer Traynor had hold of Dr Cunningham's left arm, more or less continuously as I have found until his arrest (see [521] and [532] above). It is also common ground that Dr Cunningham was arrested by the time his hands were held behind his back by Officer Clark, which occurred according to the CCTV footage at 01:06:18 to 01:06:19 (see [219] above). In light of this, I do not understand counsel's submissions in respect of Dr Cunningham. Once he was arrested, even if handcuffs were not successfully placed on both arms until after he had been tasered, it is clear Dr Cunningham was restrained and, as I have found, falsely imprisoned.
753 The imprisonment of both plaintiffs continued until their release on bail (the times for which I have set out in [59] and [60]). It is not possible to give an exact time for the imprisonment of each of them given the differences in times shown on the CCTV footage and the other police records, however, I am satisfied that for each of them the total time of their imprisonment was approximately one hour.
13. Was any of the conduct of the first, second or third defendants malicious?
754 This relates to the claims by the plaintiffs against the individual police officers for battery and misfeasance in public office. It is necessary for malice to be found before any of them can be individually liable to the plaintiffs. Of course, if malice is found, the State is not liable for the battery: see my discussion of this at [76] above.
(a) Officer Traynor was acting with malice when he grabbed Ms Atoms on the footpath;
(b) Both Officers Traynor and Clark acted with malice when arresting and dealing with Dr Cunningham;
(c) Mr Caldwell acted with malice when he tasered Ms Atoms; and
(d) Mr Caldwell acted with malice when he tasered Dr Cunningham.
756 There is no pleaded claim of malice or misfeasance in public office in relation to Officer Clark's pushing of Ms Atoms.
757 Once a police officer becomes personal or is acting in pique, that is malicious: Luetich v Walton; Trobridge v Hardy. That is what happened here.
758 As I have found, Officer Traynor was annoyed with what he perceived as Ms Atoms' challenge to his judgment and authority. He could not deal with the fact that she was not inclined to accept that she had been involved in the garden bed incident. He reacted badly and personally, and everything developed from there.
759 He was annoyed because she did not understand what she was being told about leaving Fremantle and then, when she said she lived in Fremantle, that raised a problem for him in terms of dealing with her by way of a move on notice.
760 It is telling, in my view, that the way in which Officer Traynor has justified his conduct in this trial has not been on the basis that Ms Atoms was a candidate for a move on notice in respect of the garden bed incident. The principal justification was that she said the words, which allegedly constituted disorderly conduct, although Officer Traynor added in his evidence another matter in justification of his conduct, namely hindering. She did not say the words, she was not disorderly and she did not hinder Officer Traynor.
761 If there was, indeed, a basis to issue Ms Atoms with a move on notice and thus the power to detain her, he could and should have moved alongside her and blocked her path, or called on her to stop. Even on his evidence, he did not do so. He exhibited anger and spite, ie malice.
762 When Officer Traynor grabbed Ms Atoms, particularly on the second occasion, I am satisfied that he did so with personal spleen or pique.
763 I am also satisfied that when Officer Traynor grabbed Ms Atoms, he knew he did not have the power to grab her, and he was acting with a motive other than that of bringing a wrongdoer to justice. He was exercising his authority other than in an honest attempt to perform the functions of his office, and acting maliciously.
Officer Traynor's and Clark's dealings with Dr Cunningham
764 When Dr Cunningham approached the two officers and made his inquiry, he did not challenge their authority in any way. He did not behave in any physically intimidatory way (notwithstanding the officers' efforts to paint such a picture in their evidence). As a person with legal experience he quite reasonably inquired on Ms Atoms' behalf as to the legal ramifications of what the police were doing with her ie arresting her, or giving her a move on notice. He was not challenging the basis for either.
765 He was acting lawfully and, if Officers Traynor and Clark had looked at the inquiry for what it was, he was actually helping them in dealing with Ms Atoms.
766 Unfortunately, the attitude of each of these two officers was blinkered. They had stereotyped the plaintiffs as drunken, disrespectful, anti-social troublemakers (for which there was no call whatsoever). When Dr Cunningham came up, Officers Traynor and Clark regarded him as potentially obstructing them from dealing with Ms Atoms when clearly that was not the case.
767 They were irritated and annoyed by Dr Cunningham's arrival and inquiry. As I have found (see [585] above), Dr Cunningham posed no risk to the police. In their annoyance and anger, these two officers too readily and officiously 'clothed himself with the powers of the State' and used excessive force to deal with what could only ever be regarded, on their own evidence, as a technical type of offence. I am satisfied that Officers Traynor and Clark were activated by ill will and anger, not any misplaced opinion that in order to effect an arrest they needed to use force. Their ill will then infected their decision making.
768 Their decision to react as they did escalated the incident. That there was such an escalation is apparent from the body language of each officer on the CCTV footage and the reactions of Ms Atoms, Male 3 and the man in the hat.
769 The matter then became badly out of hand with a need to call for backup when they should have been trying to diffuse the situation.
770 I am satisfied that the behaviour of each of Officer Traynor and Officer Clark towards Dr Cunningham was motivated by spite, ill will or pique towards him. For some reason these officers were offended by the actions of a normal person who acted reasonably but who, in their mind, was questioning their authority.
771 I am satisfied that when each of these officers took hold of Dr Cunningham they were each acting with a motive other than that of bringing a wrongdoer to justice. They were exercising their authority other than in an honest attempt to perform the functions of their office, and acting maliciously.
772 As to whether there was any malice by Mr Caldwell when he tasered the plaintiffs, this must be considered in the context of his hearing and reacting to the backup call. From his point of view he was initially entitled to prepare for the worst. As I have already stated, the backup call represented a call for help where two police were ostensibly not able to handle the situation. Force of some kind might be required.
773 I have found that Mr Caldwell undertook no proper assessment before tasering Ms Atoms. Mr Caldwell's actions were clearly unprofessional and incompetent, but was there any malice in his actions in tasering Ms Atoms?
774 Here it is necessary to consider Mr Caldwell's general attitudes. As I have discussed in my preliminary observations about his credibility (see [363] - [367] above), he has displayed a range of disrespectful and, in my view, malicious attitudes. He considered the Police Tribunal a 'kangaroo court'; he ignored the sanctions imposed by the Tribunal; he was cavalier and inaccurate when completing the Use of Force Report after the tasering.
775 Mr Caldwell has also demonstrated, for the reasons I have set out in [708] and [709], an attitude that anyone who is being dealt with by his fellow officers on a Saturday night is a 'fucker' and should be tasered, without questions being asked first and without regard to police policy on the use of tasers.
776 The situation in relation to the use of the taser against both Ms Atoms and Dr Cunningham was that Mr Caldwell disregarded the risk of harm, save for the police. He did not pause to properly assess the situation. So far as he was concerned (and contrary to my reading of the policy in the manual, FR-1.6.4), the welfare of the recipient of the tasering was totally irrelevant. That might be proper in some cases, such as where the person being tasered was acting violently and the risk of injury to police officers was high, but this was not that case.
777 Mr Caldwell's first tasering was on a slight, well dressed female who was crowding Officer Clark, but could have been easily removed and arrested. Once she was immobilised, the male (Dr Cunningham) was a simple matter. He was in the hands of two police officers and tasering was unnecessary.
778 The findings I have made in relation to the tasering of each of the plaintiffs lead me to conclude that at the time Mr Caldwell tasered each of them, he was tasering as a means of compliance rather than as a means of officer safety. The use of the taser was neither reasonable nor appropriate.
779 Detainees or persons of interest do have rights. Mr Caldwell did not care about either Ms Atoms' or Dr Cunningham's rights to the point of gross recklessness. To this day Mr Caldwell is happy to have it known that Dr Cunningham was just a 'fucker' who needed to be 'zapped'.
780 Mr Caldwell did not use his taser with a proper motive or purpose and he acted with reckless indifference to harm to each of the plaintiffs. I am satisfied that he was not honestly attempting to perform the functions of his office. I am satisfied that when he tasered each of the plaintiffs, he did so maliciously.
781 An integrated view of this issue is needed. In the same way as a frame by frame review of the CCTV footage was not helpful, an examination of the night's events moment by moment is not entirely helpful either.
782 Each of the first, second and third defendants exhibited at various times their personal attitudes. With everything I have seen and heard in this trial, including the lock-up footage, it appears to me that all three of them made a prejudgment about the plaintiffs.
783 Officer Traynor's attitude at the lock-up was that these plaintiffs were drunk and needed to sober up. That is, in my view, an extension of the attitude he displayed towards Ms Atoms on the footpath outside the Esplanade Hotel. He similarly showed no respect to Dr Cunningham.
784 Officer Clark demonstrated a similar disregard for the plaintiffs. This is demonstrated by the way he grabbed and pushed Dr Cunningham and then later pushed Ms Atoms. She could have easily been kept at arm's length or pushed less forcibly, but he assaulted her.
785 Mr Caldwell was indifferent to the plaintiffs, even to this day. He believed that tasering was necessary without any proper assessment and, in fact, he escalated the situation, irrespective of the need to do so.
786 This attitude towards the plaintiffs appears to reflect an attitude and culture at the Fremantle Police Station in 2008 of antipathy towards members of the public, which is demonstrated by:
(a) people in police custody, either on the road or in the lock-up, being referred to as a 'fucker' or being told that police did not 'give a fuck';
(b) Officer Stevenson describing the person (Mr Brophy) who shouted out something about police brutality and attempted to film the proceedings as a '100 metre hero'; and
(c) Officer Stevenson's interruption and shut down of a telephone call being made by a person in custody.
787 All of the first three defendants also exhibited a real facility to conflate innocuous events out of sequence and produce an account of what, in their common experience (which was not this case) would be yet another instance of drunken anti-social behaviour involving obstructing and insulting police. This is demonstrated by:
(a) Officer Traynor attributing the words used by Ms Atoms in the lock-up to the footpath outside the Esplanade Hotel;
(b) Officers Traynor and Clark attributing to Ms Atoms the use of the word 'fucking'. It is the language which drunken Saturday night offenders use and the police themselves were not averse to using that word;
(c) Dr Cunningham being cast as yet another interfering officious bystander or acquaintance of a Saturday night offender;
(d) the conflation of Dr Cunningham's use of his index finger, signifying that he had one question, to a violent threat towards Officer Traynor;
(e) Officer Clark transposing the loud voice used by Ms Atoms on the road in Essex Street after the violent arrest of Dr Cunningham, to Ms Atoms shouting on the footpath; and
(f) any member of the public concerned about Dr Cunningham's violent arrest by the police being forcibly pushed away (as Officer Traynor did to Male 3 - see [223] above - and Officer Clark did to Ms Atoms).
788 All of these matters confirm for me that each of the first three defendants, when dealing with the plaintiffs, acted with malice.
14. Was the prosecution of both Ms Atoms and Dr Cunningham malicious?
789 There is no issue about the first and second elements of the tort of malicious prosecution. I have no doubt that Officer Clark was involved in and played an active role in the conduct of the criminal charges. While he was not the prosecutor at the trial in the Magistrates Court, Officer Clark initiated the charges, set up the prosecution brief in the police computer system (ts 1129 and ts 1132), drafted the statement of material facts (which he signed as the investigating officer), issued the prosecution notice and maintained the conduct of the prosecution for some time. Officer Clark also attended to requests by Dr Cunningham and the plaintiffs' lawyer for disclosure, at least until 10 July 2009 (see exhibits 60, 61 and exhibit 93).
790 It is interesting that Officer Clark was at some pains to explain during his evidence that he did not 'physically' charge the plaintiffs (the expression he used at ts 1129) because the charges had to be discussed with the supervising sergeant, and Sergeant Leahy issued the charges and bail papers from another part of the police computer system (the 'custody system') separate from the system used to generate the prosecution brief.
791 Officer Clark also twice denied that he was the investigating officer (ts 1132 and ts 1165). There can be no doubt that he was the investigating officer, given what he did as I have set out in [789] above. Indeed, Officer Traynor considered him to be the officer in charge of the investigation (ts 988). Officer Clark eventually had to concede that he was the investigating officer when presented with the statement of material facts, which he had actually signed as the investigating officer (ts 1191). This is an example, in my view, of Officer Clark having reconstructed events and thus convinced himself that a fact was true when other objective evidence shows otherwise.
792 So far as Ms Atoms was concerned, Officer Clark's evidence was that the reason she was being prosecuted for obstructing police was because on the road, she was 'on' or hanging from his back which obstruction ceased once she had been tasered (ts 1271).
793 So far as Dr Cunningham was concerned the obstruction was at the time he went up to the police on the footpath, allegedly preventing them from dealing with Ms Atoms.
794 The statement of material facts prepared for the purpose of the prosecution of the criminal charge against each of the plaintiffs of obstructing a public officer, was prepared by Officer Clark on 4 November 2008 after he had seen the CCTV footage (ts 1140). Indeed the statement of material facts refers to the CCTV footage having been obtained.
795 The statement of material facts (which is set out in [68] above) contained the following information which was untrue:
(a) 'Both accused were standing outside of The Esplanade Hotel, laughing and cheering at the people jumping into the bushes'. Ms Atoms and Dr Cunningham were both trying to get a man out of the bushes. There is no laughing or cheering obvious on the CCTV footage. Neither Officer Traynor nor Clark gave any evidence that Ms Atoms and Dr Cunningham were standing, laughing and cheering at people jumping in the bushes.
(b) Ms Atoms was observed on CCTV 'giving another person a 'high five' when a male person fell into the bushes'. She did not give the high five when a male person fell into the bushes - it was after Male 2 got out of the bushes, and she gave the high five in response to Male 1. This is obvious from the CCTV footage (see my findings at [166] above).
(c) 'Cunningham was also observed on CCTV falling into the bushes (a number of times)'. Officer Clark's evidence was that this was wrong, and one of two 'mistakes' he had made in the statement of material facts. He admitted that in fact Dr Cunningham had been pushed into the bushes on one occasion (ts 1140). Officer Clark's evidence was that he came to the realisation that this was wrong when it was pointed out to him during the trial of the criminal charges in the Magistrate's Court (ts 1289). However, it is readily apparent from the CCTV footage.
(d) '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' (the words). As I have found Ms Atoms did not use the words. Nor was she being argumentative - she was entitled to respectfully assert her innocence.
(e) 'Police advised Atom she will be issued with a move on notice in which she replied 'You can't do that, I live in Fremantle' and proceeded to walk off'. Having regard to my discussion and findings on the first issue, the only truthful detail in this part of the statement of material facts is that Ms Atoms told the police that she lived in Fremantle.
(f) 'Police have attempted to detain Atom in order to obtain her personal details allowing them to complete the move on notice'. While in fact police did attempt to detain Ms Atoms, there were no reasonable grounds to issue her with a move on notice, she could not have been lawfully detained for that purpose and she was not asked for her personal details.
(g) Dr Cunningham 'has approached police and taken hold of Atoms left arm in an attempt to pull her away from police'. Dr Cunningham did not attempt to pull Ms Atoms away from police. It certainly cannot be seen on the CCTV footage.
(h) Dr Cunningham 'was asked to move away in which [sic] he ignored and continued to pull Atom away from Police'. As I have found, Officers Clark and Traynor said nothing to Dr Cunningham about moving away. During the Magistrates Court trial Officer Clark agreed that the statement in the statement of material facts that 'Police asked Cunningham to move away, which he ignored and continued to pull Atoms away from the police', was wrong (ts 1257). In this trial Officer Clark gave no evidence that Dr Cunningham continued to pull Ms Atoms away; his evidence changed to Dr Cunningham pushing against the officers.
(i) Police then advised Cunningham he was under arrest. He was not told he was under arrest, but simply arrested. In fact, even on Officer Traynor's evidence, neither plaintiff was told they were under arrest until after they had been placed in the police van, after the tasering.
(j) As police attempted to handcuff Dr Cunningham_, 'he has resisted by tensing his arms and pulled away from the officers, and has continue to resist in the same manner'_. As I have found Dr Cunningham did not resist arrest (see my discussion and findings on the fifth issue). The claim that he 'pulled away from the officers' is another example of conflation by Officer Clark, in my view.
(k) 'Atom has started pulling at Constable Clark's arm in an attempt to free Cunningham'. As I have found when dealing with the sixth issue, she did not do this and she cannot be seen doing this on the CCTV footage.
(l) 'Atom was warned a number of times to get back before Constable Clark has had to push her away'. Even on Officer Clark's evidence when he said he shouted at her to back off before pushing her away (ts 1118), there was never any mention of being warned a 'number of times'. As I have found in relation to the sixth issue, there was no justification for Officer Clark to push her away.
(m) As police endeavoured to place Dr 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'. As I have found when dealing with the sixth issue, she did not do this.
(n) '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'. As I have found, Ms Atoms did none of this.
(o) After requesting back up 'several officers arrived and observed Atom on Constable Clark's back and Cunningham resisting police'. Officer Clark admitted at trial that part of this statement was wrong, because the only three police officers present at the time those things happened were himself, Officer Traynor and Mr Caldwell (ts 1126). However, this statement is also wrong in other ways because, as I have found Ms Atoms was not 'on' Officer Clark's back, nor was Dr Cunningham resisting police.
(p) 'As a result of Atom's and Cunningham's demeanour, Police have deployed their TASER in attempted to [sic] subdue both accused'. Ms Atoms' tasering was unnecessary and she did not need to be subdued. At the time Dr Cunningham was tasered he was actually being held by both Officers Clark and Traynor, his tasering was unnecessary, and he did not need to be subdued.
796 Officer Clark as prosecutor 'may be supposed to know where the truth lies': A v New South Wales [71]. He was there on the night and also had the benefit of the CCTV footage which he admitted he viewed before the preparation of the statement of material facts. In light of the CCTV footage I am satisfied that Officer Clark fabricated the parts of the statement of material facts in [795](a), (b), (c) and (k) above. As to the other facts, he must have known them to be false or at the very least he was reckless and wilfully tendentious about the statement of material facts that he prepared. (An example of tendentiousness is the reference to Ms Atoms being warned a number of times' in [795](l), and the reference to 'several officers' in [795](n).)
797 It is true that not all of the facts in the statement of material facts related to the charges of obstructing a public officer. The first six or seven paragraphs were, as Officer Clark described it 'painting a picture' and was 'background' (ts 1196). But it was background which he thought important enough to include for the purpose of the prosecution, and the picture he was painting was a false one of an angry, aggressive and argumentative Ms Atoms who swore at the police, and an interfering Dr Cunningham who grabbed Ms Atoms, allegedly to pull her away from police. It was a very different picture from that which the CCTV footage actually shows.
798 Officer Clark knew the statement of material facts was an important document which went to the prosecutor and the accused person or persons (ts 1193). He knew that, while it was a summary of the incident and changes could be made to the document, the document could affect the proceedings in court (ts 1194).
799 Officer Clark also prepared a witness statement which did not actually record what he remembered, but which adopted passages from Officer Traynor's statement, as I have previously found. This was not a case of him adopting parts of Officer Traynor's statement as a matter of expediency because it accorded with his memory. His adoption of passages from Officer Traynor's statement (particularly of the words allegedly spoken by Ms Atoms) did not represent his true recollection of events. Officer Clark adopted a reconstruction rather than the truth. This demonstrates, at the very least, a reckless indifference to the truth of the allegations on which the charges were based.
800 The way in which he conducted the prosecution after 4 November 2008 is also telling. Officer Clark gave evidence that in the early hours of the morning of 2 November 2008 Officer Stevenson told him that he had viewed some footage on a camera that had come from someone at the Esplanade Hotel. While Officer Clark was told that the footage did not show anything relevant, he could not remember asking Officer Stevenson for the details of the person he had spoken to. Officer Clark did not go and speak to the person at the Esplanade Hotel. Nor did he go back to the Esplanade Hotel and make any inquiries about the existence of witnesses (ts 1268-1270). He did, however, ask Officer Stevenson to provide a witness statement for the purpose of the prosecution of Ms Atoms and Dr Cunningham (ts 1286), although it is not clear when he asked Officer Stevenson for that statement and I do not know what was in it.
801 What is clear, however, is that in January 2009 Dr Cunningham wrote by email to Officer Clark asking for the CCTV footage and also seeking disclosure concerning details of witnesses at the Esplanade Hotel who were questioned by the police, and any evidence viewed or obtained from those witnesses. In response Officer Clark emailed on 18 January 2009 (exhibit 61) stating:
Regarding witnesses from the Esplanade Hotel, nobody was identified who had witnessed the incident ...
802 When this was written, as Officer Clark admitted during cross-examination, he knew that someone had been identified and spoken to by Officer Stevenson (ts 1271).
803 The following exchange then took place which in my view reflected poorly on Officer Clark's credibility (ts 1271 - 1273):
Would you accept that that first sentence from that email conveys the impression that you were not aware of any witnesses---My understanding of that sentence is there was no one identified that witnessed the incident.
But there was someone who witnessed some part of something that night, wasn't there, because they'd yelled out some words during the event---It's in relation to the disclosure for the offences of obstruct police.
Well, for - the allegation of obstruction against Ms Atoms was that she was on your back, so - correct---Yes.
And the alleged obstruction against her continued until the point at which she was tasered by Sergeant Caldwell and fell off your back---Yes.
So did you draw a - so what was the distinction that you were drawing in terms of your disclosure obligations---My disclosure obligations were to provide details - if there were witnesses that had seen anything in relation to the offences of obstruct police, then they should be spoken to.
But you knew there was somebody who had been identified, they'd been spoken to by a police officer, detective - sorry - Senior Constable Stevenson, identified who had, during the course of the events, yelled out something about police brutality. You were aware of that, weren't you---Senior Constable Stevenson told me that he spoke to some people and some - viewed some footage, but none of it was relevant to the offences that were being investigated.
So there was some footage, but it wasn't relevant---That's correct.
What was the footage of, do you know---I don't know.
Did you know why it wasn't relevant---He told me that it was footage relating to police cars parked in the street.
But wouldn't that be very relevant to ascertain exactly which police officers might have been there that night---Not if that's turned up after the incident.
Well, at least you'd have a starting point for investigating who the officers were who attended, and then one can work out by speaking to them where they were, what time they arrived---I'd been advised that Sergeant Caldwell, when he arrived, there - there weren't any other police there. In my - in my view, the offence of obstruct police ended once constable - Sergeant Caldwell arrived.
Well, this is 18 January. As at 4 November, you were of the view that there were several police officers who had witnessed the event, weren't you---Yes.
When did - did you at some point change your mind about that and form the view that in fact there were no police officers there---Yes.
When did you change your mind------I've---
- - - about that---I've already explained that that's a---
No, when - but when did you change your mind?
DAVIS DCJ: You're being asked when---I don't know.
CUERDEN, MR: Was it before 18 January 2009---I don't know.
So the mere fact that - I mean, the - the fact that the police officers were there and seen by someone - there might be video footage of the cars could have been relevant, could it not---I didn't think it was. No.
Do you - would you agree then in fact it was a matter for Dr Cunningham, who was defending these criminal charges, to work out whether it was or it wasn't relevant to his defence---Sorry? Say again?
Would you accept that it was up to Dr Cunningham - if there was video footage of some part of the events, it was for Dr Cunningham to decide whether it was - it was or wasn't relevant to his defence---No.
It was up to you, was it---No.
DAVIS DCJ: Who was it up to then---Well, it's up to me, yes. It was up to me.
CUERDEN, MR: Can I suggest to you that the sentence that I've read from this email conveyed, and was intended by you to convey, the misleading impression that there were - there was nobody - you - you did not have the details - by you, I mean the police - did not have the details of any person who might be able to say something relevant about the matter---It simply says that there was no witnesses identified.
804 His attempted explanation as I have set out was simply unbelievable. I was most unimpressed by this evidence from Officer Clark and particularly his conflicting answers during the last passage. This evidence also says much about his bias against the plaintiffs and his reckless disregard of their rights.
805 That is further demonstrated by Officer Clark's subsequent email of 10 July 2009 (exhibit 93). He had been asked a month earlier to comply with a request from the plaintiffs' lawyer (Mr Maughan) for disclosure. A follow up email was sent to him on Friday 10 July 2009 by Sergeant Craig Haven, asking him to treat his request as urgent because an application had been made by the plaintiffs' lawyer to vacate the trial dates for the hearing of the criminal charges. Officer Clark responded (with my emphasis in italics and underlining):
I received a request for further disclosure a few weeks ago. The problem was that I was in Collie relieving for 8 weeks. I had already served the disclosure which I thought was relevant to the case. However, the problem is that the defence has obtained details of a witness who was staying in the hotel. On the evening in question this male attempted to record the incident on his camera. Some officers seized this camera and viewed the footage. The only footage on the camera was after the incident had finished and the 2 people were in the back of the vehicles. The camera was returned that night. The defence allege that the footage was deleted. I am currently in the process of trying to find out who attended the hotel and seized the camera as Maughan is demanding statements from each officer. This is proving slow at present as there was no CAD job created and I don't know all the officers who entered the hotel....
806 The remarks by Officer Clark in italics confirm for me his biased attitude towards the plaintiffs as I have found. The remarks which I have underlined are a lie to his superior officer in the face of a question about the viability of the trial dates, when Officer Clark knew that Officer Stevenson had entered the hotel, and that he had viewed the footage (see also ts 1277). The superior officer obviously had an eye on the administration of justice; the opposite can be said about Officer Clark.
807 In all of the circumstances, I am satisfied that Officer Clark acted maliciously in initiating and maintaining the criminal charges against the plaintiffs, and that he did not honestly believe the case which he instituted and maintained. I am satisfied that the prosecution against the plaintiffs was not brought from a genuine desire to serve the ends of justice and that the bringing and maintaining of these charges cannot be satisfactorily explained other than by the fact that Officer Clark was solely or predominantly actuated by an indirect or improper motive.
(a) the findings I have already made about what is shown on the CCTV footage and what occurred both on the footpath and on Essex Street;
(b) the findings I have made about the malice of Officers Traynor and Clark towards the plaintiffs on the night. The pique and ill will which had infected their earlier decision making on the footpath and Essex Street, spilled over to Fremantle Police Station and the decision to charge the plaintiffs;
(b) the findings I have made about the statement of material facts and Officer Clark's knowledge of the falsity of some of the statements and his recklessness in making others ([795] - [797] above);
(c) the fact that Officer Clark knew that Dr Cunningham was a lawyer. (He knew this not only from what Dr Cunningham said, as I have found, but also from what was set out in Officer Traynor's statement: see [337] above);
(d) the evidence from Officer Clark that he was embarrassed that he was not able to 'deal with the situation' (ts 1143, something he repeated soon afterwards). When asked to clarify this, he answered (ts 1144):
Because - as in deal with these two people without having anyone else having to assist us, as in restraining Mr Cunningham and also restraining Ms Atoms.
(e) the lies in his correspondence to Dr Cunningham (exhibit 61) and his superior officer (exhibit 93).
809 While it is not necessary for the plaintiffs to prove what actually motivated Officer Clark, in my judgment the only reasonable explanation for the initiation and maintenance of the charges was to give legitimacy to or justify Officer Traynor's and Officer Clark's earlier conduct towards and treatment of the plaintiffs, Officer Traynor's call for back-up and then Mr Caldwell's tasering of the plaintiffs.
810 I am also satisfied that the prosecution of the criminal charges was launched on obviously insufficient material, which demonstrates both malice and the absence of reasonable and probable cause. In my view no reasonable person, or any ordinary prudent and cautious person, in the position of Officer Clark would have considered what occurred on this night sufficient to constitute reasonable and probable cause for the bringing of a charge against these plaintiffs of obstructing a public officer. The bringing and continuation of the charges amounted to a misuse, or wrongful or unreasonable use of power by Officer Clark for a purpose other than the proper invocation of the criminal law.
811 In light of my findings, it is necessary to record the claims on which the plaintiffs have succeeded.
(a) against both Officer Traynor and Officer Clark for battery (as misfeasance in public office and thus malice has been proved) in relation to these officers grabbing his arms and pulling them behind his back causing him pain, pushing him towards Essex Street while simultaneously holding his arms bent up his back causing him pain, handcuffing him, the knee strikes, and pushing him up against the police van;
(b) against Mr Caldwell for the tasering (because misfeasance in public office malice has been proved);
(c) against the State for battery for his handling after the tasering and placement in the police van;
(d) against the State for false imprisonment for the whole of the period from the time when he was first taken hold of by Officers Clark and Traynor on the footpath in Essex Street until his release on bail; and
(e) against Officer Clark for malicious prosecution.
(a) against Officer Traynor for battery in relation to his grabbing of her on the footpath (as misfeasance in public office and thus malice has been proved);
(b) against the State for the battery by Officer Clark when he pushed her away;
(c) against Mr Caldwell for the tasering (as misfeasance in public office and thus malice has been proved);
(d) against the State for the way she was handled and placed into the police van after her tasering;
(e) against the State for false imprisonment for the two periods from the time when she was grabbed for the second time by Officer Traynor to when he let her go, and later after her tasering, until she was released on bail; and
(f) against Officer Clark for malicious prosecution.
814 A plaintiff in a claim for battery, misfeasance in public office, false imprisonment or malicious prosecution may claim general damages, aggravated damages, exemplary damages and any special damages: Weir v Tomkinson [2001] WASCA 77 [109] - [119]; Nye v The State of New South Wales; Noye v Robbins.
815 Insofar as a battery results in physical injury to the plaintiff, damages will be calculated as in any other action for personal injury. Beyond this, the tort effects protection from insult which may arise from interference with the person. General damages awarded for the tort of battery may be awarded to compensate the plaintiff for distress and mental upset - injury to feelings, indignity, disgrace and humiliation caused as a consequence of the tort: State of New South Wales v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496 [116] - [117]; Weir v Tomkinson [108] - [109].
816 Damages are recoverable for psychiatric injury of which a tort of battery or false imprisonment is a material contributing cause: see State of Victoria v McIver [2005] VSCA 50; (2005) 11 VR 458 [10] - [15].
817 General damages for a false imprisonment or malicious prosecution arise out of curtailment of liberty and associated hurt feelings. Damages are awarded for the humiliation, anxiety and distress and indignity caused by the commission of the particular torts. Damages will also cover loss of reputation, if applicable (including disgrace and loss of status): New South Wales v Delly [2007] NSWCA 303 [75] - [77]; Noye v Robins [261]; Houda [359]. In addition damages may be recovered for any resultant personal injury: McDonald v Coles Myer Ltd (62,690).
818 In a case of malicious prosecution, damages will also be awarded for the inconvenience and disturbance to the plaintiff's life, as well as the stress constituted by the fear of conviction: Coyle v New South Wales [2006] NSWCA 95 [92]; Weir v Tomkinson [112] - [114].
819 Damages for false imprisonment are not calculated by reference to the period of time the plaintiff was detained: see Beckett v New South Wales [2015] NSWSC 1017 [670].
820 Aggravated damages are compensatory in nature, resulting from the circumstances and manner of wrongdoing: State of New South Wales v Ibbett [2006] HCA 57; (2006) 229 CLR 638 [31]. Aggravated damages are additional compensation for the injured feelings of a plaintiff. It is a key requirement that the defendant's conduct increased the plaintiff's suffering: Carter v Walker [283]. Aggravated damages may be awarded where the defendant has acted, either in committing a tort or thereafter, with 'contumelious disregard' of the plaintiff's rights, in an insulting or high-handed way, or with malice: Nye v State of New South Wales [249]; Carter v Walker.
821 In Myer Stores Ltd v Soo McDonald J observed (633) that the tort of false imprisonment 'is a tort by its nature that gives rise to aggravated damages'.
822 In relation to aggravated damages for both false imprisonment and malicious prosecution claims, it is proper for the court to take into account the whole of the conduct of the defendant to the time of verdict which may have the effect of increasing the injury to the person's feelings: State of New South Wales v Delly [20]; Houda [349] - [355].
823 The fact that a defendant continues or perseveres with the allegation or charge the subject of a false imprisonment is relevant to aggravated damages: Walter v Alltools Ltd (1944) 61 TLR 39, 40; McDonald v Coles Myer Ltd (62, 690); Weir v Tomkinson [115] - [118]. In my view the same principle must apply to the continuation of allegations where there has been a malicious prosecution.
824 The conduct of the defendant at trial, including the failure to tender an apology, is also relevant to the question of aggravated damages: Myer Stores Ltd v Soo (618, 633-634); Houda.
825 There is often some overlap between general and aggravated damages. A higher award of general damages may have the effect of reducing an award of aggravated damages, and vice versa. If, therefore, a court has awarded damages for hurt feelings as part of general compensatory damages, it is necessary to avoid double counting when awarding any aggravated damages: State of New South Wales v Riley [133]; State of New South Wales v Quirk [2012] NSWCA 216 [158] and [162].
826 Exemplary damages go beyond compensation and are awarded as a punishment to the guilty, to deter that person from any such proceeding in the future, and as proof of the detestation of the defendant's conduct: Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1, 8. In a claim against police officers, exemplary damages have been awarded as a way of ensuring that those responsible for overseeing the police force ensure that officers are trained so that abuses do not happen: New South Wales v Ibbett [51] and [54]; Adams v Kennedy [2000] NSWCA 152; [2000] NSWCA 152; (2000) 49 NSWLR 78 [36].
827 High-handed conduct by police officers is a common circumstance justifying an award for exemplary damages: Majindi v Northern Territory of Australia [2012] NTSC 25 [74]; Adams v Kennedy.
828 In many cases the same set of circumstances may justify either an award of aggravated damages or exemplary damages and it may often be difficult to differentiate between them: New South Wales v Ibbett [33].
The issues relating to the claim for damages in this case
829 In this case both plaintiffs claim personal injury in the form of PTSD. While the defendants do not dispute that Ms Atoms suffered PTSD (a matter which was conceded by counsel for the State, ts 1636), they dispute that Dr Cunningham suffered that injury.
830 Ms Atoms also claims she suffered an injury to her back. There is no issue that since the accident Ms Atoms has suffered problems with her back, but issues of causation for that back injury have been raised by the defendants (although these were not pleaded).
831 Both plaintiffs claim general damages, and past and future medical expenses. Dr Cunningham makes no claim for loss of earning capacity or gratuitous services. Ms Atoms makes no claim for gratuitous services, but does claim loss of earning capacity, both past and future.
832 The plaintiffs also claim both aggravated and exemplary damages.
833 While the plaintiffs have separate claims for damages arising from each specific battery, misfeasance in public office, false imprisonment and malicious prosecution against each defendant, their particulars of damages do not differentiate between the different causes of action against each defendant. The way the matter has been approached seems to be that I should make one assessment of damages for each of the plaintiffs.
834 As counsel for the plaintiffs submitted to me, the case has been run on the basis that 'it is all or nothing'. The only submissions made by counsel for the first, second and third defendants on causation were to seek to attribute the cause of Ms Atoms' back injury to a police officer for whom she does not act. There have been no other submissions that seek to distinguish between the defendants, and there are no contribution proceedings before me.
835 There is authority to suggest that I do need to award damages for each tort separately, while being careful not to double dip or double count: State of New South Wales v Quirk [162]. That is an easy matter where there is only one defendant, or multiple defendants vicariously liable for the acts of one person arising out of one particular incident. It is not an easy matter in this case and I discuss this further, below, in relation to each plaintiff.
836 However, it does seem to me that I do need to make a separate determination of the damages for each tort, because of the provisions of s 137 of the Police Act and the submissions made to me (ts 1567 to 1569) that if one of the first three defendants was found to have engaged in battery and misfeasance in public office because of a finding of malice, the State's position is, although not pleaded, that judgment should not be entered against the State because of the existence of malice.
837 I have no doubt that Dr Cunningham has been greatly affected by the actions of police on the night of 2 November 2008, and the prosecution against him. His evidence which I found credible and I accept, is set out below, along with the medical evidence.
838 At the time of the incident Dr Cunningham had a pre-tenure contract with the University of Western Australia. This was described as something in the nature of a probation for three years. During the pre-tenure period there was a lot of pressure to perform and no guarantee of becoming a tenured academic.
839 Dr Cunningham did suffer some physical injuries as a result of the events of the night although in his own words these were not 'huge physical injuries'.
840 As a lecturer in law, Dr Cunningham found having a criminal charge against him was 'very trying' (ts 635). He was concerned to 'seek justice'. The outcome that he sought was initially an apology from the police and to have the criminal charges dropped. When that did not happen he sought an acknowledgment that a mistake had been made and that things had gone wrong, but he did not receive that.
841 He gave evidence about having made formal complaints to the police, the Corruption and Crime Commission, the Police Commissioner, the Attorney General, the Ombudsman and the Parliamentary Inspector of the Corruption and Crime Commission. As Dr Cunningham described it he became disillusioned with the legal system and he stated (ts 636):
For me, this matter always been about one thing, which is that I feel like the rule of law has been compromised in this - in this particular matter, and I had hoped that I would be able to get some acknowledgement of that fact and - and then essentially move on. But the truth is that that never happened. The only sympathetic ear that I think we had within the system was the Parliamentary Inspector of the Corruption and Crime Commission, and even then his power was - was very much limited in terms of what he could actually do. So it has become increasingly difficult for me to teach law as I have gone along, given that I feel like the rule of law has been compromised.
842 In terms of his mental state he described how initially in order to cope he buried himself in work and tried to compartmentalise things. When he did not, in his words, 'get any redress through the institutional mechanisms' (ts 638) he became very disillusioned and found it difficult to work and to concentrate. He found it difficult to leave the house.
843 He began to wake up almost all of the time between 2.30 am and 3.30 am. He described that as happening from 'the beginning' but it did not happen as much then as it happened now - it had actually got worse over time (ts 639). Sometimes he was able to go to sleep but other times he would stay awake for a few hours.
844 The incident affected the relationship that he had with Ms Atoms and in mid-2009 they separated for several months. Dr Cunningham described how Ms Atoms had lost her confidence and 'mojo' and had suffered from the effects of PTSD. She did not want to leave the house or go anywhere or do anything. She cried a lot and was upset a lot. He also described how she was bedridden as a result of problems with her back (which I will come to when I discuss Ms Atoms' damages). Dr Cunningham was trying to maintain a full-time job but also trying to care for her (ts 638).
845 Ms Atoms refused to talk about the incident at all and this made things very stressful. With the criminal proceedings on foot Dr Cunningham had to make decisions on behalf of both of them all of the time.
846 In terms of his work he found that a large number of his colleagues were circumspect towards him and kept him at arm's length. He had experienced situations where people did not want to be seen walking next to him, if walking past the Dean or some other person at the university (ts 639).
847 Originally he was teaching international trade law, and corporate finance and securities regulation, which were his two areas of academic expertise at the time. He was removed from teaching those subjects without any consultation or explanation, although he believed his performance had been of good quality (ts 640).
848 He began to seek professional treatment in relation to his mental wellbeing, first seeing his general practitioner Dr Alison Stubbs in June 2009. According to Dr Stubbs' report of 12 March 2014 (exhibit 81), Dr Cunningham sought help for symptoms of low mood and problems with intimate relationship, difficulties working due to low concentration and motivation, decreased ability to retain information and procrastination. However, it is apparent from Dr Stubbs' evidence and her reports that Dr Cunningham was reluctant to disclose the incident of 2 November 2008 until his consultation with her on 17 May 2011. Dr Stubbs made no record of the reason why he had been so reluctant and could not recall whether he had in fact given her a reason (ts 768 - 769).
849 Dr Stubbs administered a Beck Depression Inventory (a document used in general practice to work out the severity of someone's depression: ts 758 - 759) and prepared a mental health plan for Dr Cunningham on the following dates:
850 Dr Cunningham's score in each Beck Depression Inventory indicated moderate depression (Dr Stubbs ts 759).
851 In June 2009 Dr Cunningham was referred by Dr Stubbs to Dr David Bonser, a clinical psychologist. Dr Bonser wrote a report to Dr Stubbs dated 14 September 2009 (exhibit 72). In that report Dr Bonser stated that Dr Cunningham met the criteria for generalised anxiety disorder and had completed his first sessions of psychotherapy to manage his anxious episodes. Dr Bonser recommended an additional six sessions of psychotherapy to prevent or at least minimise the possibility of a relapse.
852 After the charges against him and Ms Atoms were dismissed in April 2010, Dr Cunningham agreed in cross-examination by the State (ts 719) that this was a relief. He then agreed that his feelings about the difficulties he had with the institutional bodies he particularised did not include the legal system so far as it was comprised of courts, but related to institutions such as the CCC, Parliamentary Inspector of the CCC, the Parliamentary Commissioner or Ombudsman, the Attorney General and the DPP (ts 720).
853 After the disposition of the criminal charge against him Dr Cunningham obtained tenure at the University of Western Australia in 2010.
854 However, he was still suffering from mental health issues. On 17 May 2011 Dr Cunningham completed another Beck Depression Inventory form (exhibit 75). This time the score had increased to a total of 27 which still fell within the moderate range for depression, however, was slightly elevated from his previous scores. Dr Stubbs prepared another GP mental health care plan on that day (exhibit 76) and another referral was made for Dr Cunningham to see Dr Bonser again (exhibit 77).
855 On 13 September 2011 Dr Cunningham was reviewed by a consultant psychiatrist, Dr Lawrence Blumberg. Dr Blumberg provided reports dated 19 September 2011 (exhibit 30) and 13 May 2014 (exhibit 31) and also gave evidence in this trial.
856 In his report of 19 September 2011 Dr Blumberg set out a history given to him by Dr Cunningham which is largely consistent with the evidence I heard from Dr Cunningham about the events of the night. He described the charge of obstructing a police officer and as a result having to defend that charge and that he had to 'relive the experience in defending his charge'.
857 Dr Blumberg then described the symptoms reported to him by Dr Cunningham. These included being melancholic and on the low side, feeling flat and unmotivated. Dr Cunningham described at that stage a normal sleep pattern but with early morning wakening on occasions. He described low energy levels and a decreased libido. He was amotivated and not enjoying pleasurable activities as he had prior to the incident. He described being anxious and hypervigilant (which Dr Blumberg explained at trial is a post-traumatic stress symptom), at times being 'irritable and on edge', being short-tempered and at times feeling angry and aggressive and finding it difficult to relax. He described symptoms of social withdrawal and stress in the relationship with his partner (Ms Atoms). He continued to experience recurrent and intrusive distressing recollections of the traumatic incident. He experienced flashbacks of the incident and not a day went past where he did not think about it. He was constantly reminded of the incident when he saw police and heard sirens of police cars. He had a diminished interest in participating in certain activities, felt detached and described a sense of a foreshortened future.
858 Dr Blumberg also recorded that Dr Cunningham was extremely angry towards the police and the treatment he had received. He had stated that the incident was undermining the work that he (Dr Cunningham) did. Dr Cunningham described going through a difficult period trying to deal with the incident and cope with the trauma to which he was subjected. He was having difficulty coming to terms with it and difficulty moving forward with his life. He also described feeling extremely angry and frustrated towards the police force and the way the police handled the case.
859 Dr Blumberg described how Dr Cunningham became emotional at times when discussing the incident and observed that his thought content was preoccupied with being humiliated by police and finding it distressing that the system in which he worked was in his opinion 'a failure'. He was having difficulty coming to terms with the way he was allegedly treated. Dr Blumberg explained in cross-examination by the State that Dr Cunningham was angry at how he was treated, felt he was unfairly treated and did not think he had done anything wrong (ts 390).
860 Dr Blumberg confirmed from a mental state examination that Dr Cunningham was an anxious and stressed man, consistent with the history he provided. He recorded how Dr Cunningham returned to work after the incident and initially found work a good distraction, but was also finding it extremely difficult coping and functioning at his premorbid level, and that was when he started experiencing flashbacks of the traumatic incident.
861 In Dr Blumberg's opinion as at 19 September 2011 Dr Cunningham fulfilled the criteria of PTSD. Dr Blumberg explained in his report that PTSD is a severe anxiety state following a specific trauma and Dr Cunningham exhibited the following symptoms consistent with that disorder:
862 In terms of the severity of the PTSD Dr Blumberg described it as moderate (ts 397).
863 Although the diagnosis of PTSD was made, Dr Blumberg noted (at page 8 of exhibit 30) that in his opinion the ongoing medico-legal process and stress associated with defending the criminal charge had perpetrated Dr Cunningham's symptoms.
864 On 12 November 2013 another Beck Depression Inventory form was completed by Dr Cunningham and the score was 26 (exhibit 78). Dr Stubbs prepared another GP mental health care treatment plan on that date (exhibit 79) and again referred Dr Cunningham for further treatment from Dr Bonser (exhibit 80).
865 Dr Blumberg reviewed Dr Cunningham again on 6 May 2014. In his second report of 13 May 2014 (exhibit 31) Dr Blumberg outlined Dr Cunningham's current psychiatric symptoms which were fluctuating mood, feeling angry, frustrated and irritable and 'I feel like I'm drowning'. He described his disruptive sleep patterns and experiencing early morning wakening. He would ruminate at night about his medico-legal issue and found it difficult switching off. He was also focused on getting justice and the need to stand up for his rights.
866 Dr Cunningham described how his social and occupation functioning had been impacted, how he was amotivated and not enjoying pleasurable activities as he had in the past, and was not engaging in recreational activities. He described an escalation in anxiety symptoms but was not experiencing any panic attacks. He felt hypervigilant on occasion. Generally he disclosed work was a good distraction for him. He continued to experience feelings of aggression, frustration and anger, matters that he was addressing with his clinical psychologist. Again Dr Blumberg recorded how Dr Cunningham was extremely angry towards the police and the legal system, feeling that there had been an injustice and how the incident undermined what he stood for and the work involved in his position at UWA.
867 Even at this time Dr Cunningham was continuing to think about the incident on a daily basis and ruminating about it, although he was not experiencing nightmares or flashbacks at the time, a matter he had dealt with through treatment with his clinical psychologist.
868 Dr Blumberg's findings as at 13 May 2014 were that Dr Cunningham's symptoms were in keeping with Chronic Adjustment Disorder with anxiety and depressed mood. His PTSD was in remission because he had no flashbacks and was not experiencing or re-experiencing the trauma of suffering from nightmares.
869 In his evidence at trial Dr Blumberg explained that the diagnosis of Chronic Adjustment Disorder was very similar to a diagnosis of anxiety and stress but the adjustment disorder related to some event as opposed to generalised anxiety and depression (ts 383).
870 Dr Blumberg also gave evidence that there had been a change in the diagnostic tool, known as the DSM criteria, from DSM-IV, which applied at the time of Dr Blumberg's reports, to the current DSM-V criteria. Dr Blumberg gave evidence that if he was making a diagnosis on the symptoms with which Dr Cunningham presented at the second assessment, based on DSM-V Dr Cunningham would still fulfil a diagnosis of PTSD, despite not having flashbacks (ts 384).
871 In addition under DSM-V there would be another diagnosis of an adjustment-like disorder with a prolonged duration of more than six months (ts 386). This diagnosis is called 'other specified trauma and stressor related disorder'. This differs from Chronic Adjustment Disorder because it relates to trauma.
872 Dr Blumberg gave evidence that part of his recommended treatment was the prescription of antidepressants for Dr Cunningham, however he was reluctant to take anti-depression medication as he was concerned about the adverse side effects and the impact it might have on his academic work and functioning. In his evidence at trial Dr Blumberg explained that there was a basis in fact for these concerns (ts 387 - 388).
873 Dr Blumberg also gave evidence that at the second visit Dr Cunningham had experienced frustration about writing letters and not getting any answers. Dr Blumberg was of the opinion that getting closure from what happened to him would enable him to move forward with his life. The anger and frustration related to the whole legal process, the whole medico-legal process, being a lawyer and working in the legal fraternity (ts 390).
874 Dr Blumberg also explained in cross-examination (ts 391) that the diagnosis of Chronic Adjustment Disorder was based on Dr Cunningham's anxiety symptoms, and symptoms of frustration and anger, but clarified that these were residual PTSD symptoms, in addition to symptoms as a result of the frustration of the legal process (ts 391).
875 Notwithstanding his mental health state, Dr Cunningham continued to work and to do well in his career. In late 2013 he completed a PhD and in September 2014 he published a book. In cross-examination he agreed that in writing the book he had visited several universities in 2011 and 2012, and in 2012 the Dean of the Faculty of Law at UWA allowed Dr Cunningham a sabbatical to finish the book.
876 In November 2014 Dr Cunningham was promoted from assistant professor to associate professor.
877 In 2015 he commenced practice as a barrister at the independent bar in Western Australia. Although he had taken up a position at the bar at the time of the trial he had not yet been practising a great deal because this litigation had taken up most of his spare energy (ts 663).
878 He agreed in cross-examination that 'objectively speaking' in a professional sense he had done fairly well. In re-examination Dr Cunningham explained this answer (ts 747):
It was suggested to you both of my learned friends that in a professional sense you had done well since 2008 and your answer to each of the questions was objectively speaking you agreed---Yes.
What do you mean by that---Well, I mean that what happens in the external world and what happens in the inner world of a person are two different things and it's been an increasing struggle to achieve the things that I have achieved and over time things have got more and more difficult and it's true that I've achieved some great things - well, some good things over the last seven years, but it's become increasingly difficult to do those things.
879 In her report of 12 March 2014 (exhibit 81) Dr Stubbs reported how Dr Cunningham continued to experience episodes of low mood and helplessness and was tearful when he thought about the tasering incident. He also stated he felt exhausted by the legal process following the incident. He was experiencing intermittent attention and concentration problems and was unable to enjoy his work as he had done before the incident and was less efficient in performing it.
880 He also complained of ongoing left shoulder pain and restriction of movement, his previous left shoulder injury being aggravated by the incident. However, Dr Stubbs noted this did not cause him any practical restrictions.
881 Dr Stubbs also prepared a second report dated 9 March 2015 (exhibit 82). Enclosed with that report was another Beck Depression Inventory, and two reports from the psychologist Mr Matt Dunsire. (Dr Cunningham was referred to Mr Dunsire after Dr Bonser moved from Perth).
882 On 22 May 2014 Mr Dunsire reported (his report being attached to exhibit 82), that Dr Cunningham had issues of depression, chronic pain and post-trauma issues as a result of the incident and he was undergoing mindfulness based cognitive behaviour therapy.
883 On 3 December 2014 Mr Dunsire reported again to Dr Stubbs (the report annexed to exhibit 82) that at a most recent session on 17 November 2014 Dr Cunningham had reported significant improvements with regard to his mood and outlook for the future. This followed his successful publication of his book, his promotion and the prospect of his legal dispute (this action) coming to a conclusion. Dr Cunningham had requested more sessions with the aim to continue to work on his issues and prevent any relapse in major symptoms.
884 Mr Dunsire prepared a further medico legal report dated 7 April 2015 (exhibit 85) and gave evidence at trial. In this report Mr Dunsire confirmed he had been treating Dr Cunningham since 13 May 2014. He currently presented with symptoms of repeated disturbing memories and thoughts about the tasering assault from police, feeling distressed when cues reminded him of the assault, and experiencing physiological anxiety symptoms triggered by thoughts of the assault. He also avoided activities which reminded him of the assault and had trouble remembering certain parts of the assault. He had other symptoms including mild insomnia, irritability, difficulty concentrating, feeling on guard and alert to other threats and being easily startled. He also presented with symptoms of Major Depressive Disorder, anxiety and stress. Mr Dunsire's opinion was that Dr Cunningham had PTSD and Major Depressive Disorder.
885 In cross-examination by counsel for the first, second and third defendants, Mr Dunsire was asked and answered (ts 859):
In the time that you've been seeing Mr Cunningham have you noticed a preoccupation on his part for feelings that he's described relating to his frustrations over complaints to various bodies like the Corruption and Crime Commission, the attorney-general, parliamentary inspector of the Corruption and Crime Commission, about the events of 2 November 2008---I wouldn't describe them as a preoccupation but it's certainly been part of what we talk about.
Do you understand that's something that's caused him a great deal of concern in the time that you've been seeing him---Correct.
And when he describes his concerns over that, what is his mood and affect like in his sessions with you---I think it's difficult to tease out the content because we talk about a lot of things in a single session, but I would say he's frustrated, has a sense of injustice at the way this has been managed, and that can certainly morph into other emotions like feeling despondent, a bit helpless.
And what about is he tearful in sessions with you when he talks about these things, and specifically I'm talking now about his frustrations and his sense of injustice---Not about that, no.
886 Mr Dunsire then explained that when using the word 'injustice', he did so synonymous with unfairness, 'in the sense of being out on your birthday and these series of events happened. It was that sense of unfairness.'
887 The defendants dispute that Dr Cunningham suffered from PTSD. Counsel for the State submitted that this was because Dr Cunningham did not report any psychological complaints to doctors until some eight months later (June 2009) and when he did, what he reported was problems with his relationship with Ms Atoms and nothing to do with the incident (ts 1652).
888 The submission to the effect that all Dr Cunningham reported was problems with his relationship is not correct. The evidence from Dr Stubbs, along with the Beck Depression Inventory form completed by Dr Cunningham in June 2009 demonstrated that Dr Cunningham had symptoms of low mood, difficulties working due to low concentration and motivation, decreased ability to retain information and procrastination.
889 It is also clear from the evidence from Dr Cunningham, as I have set out in [842] - [843] above, as well as Dr Blumberg's evidence, which I accept, that Dr Cunningham was suffering symptoms of PTSD within a short time of the incident. As recorded in Dr Blumberg's report of 19 September 2011 (exhibit 30, page 8):
Mr Cunningham resolutely returned to work shortly after the incident and has found work a good distraction refuge and "safety haven". During this period he was finding it difficult coping and functioning at his premorbid level, and he started experiencing flashbacks of this traumatic incident.
890 In cross-examination Dr Blumberg also stated that he had recorded in his notes that Dr Cunningham reported that he saw a psychologist to deal with the stress and trauma he was exposed to at the time (ts 405).
891 Dr Blumberg also confirmed in re-examination that in early 2009, Dr Cunningham continued to experience flashbacks, which was like reliving the incident, and he was struggling to cope both at home and at work during that period of time (ts 413).
892 Finally, the relationship problems which Dr Cunningham was having with Ms Atoms were, in my view, causally linked to the PTSD he suffered as a result of the traumatic events of 2 November 2008 and the criminal charge. In Dr Blumberg's first report (exhibit 30, page 5) he recorded how Dr Cunningham stated at 'times he feels on edge which has caused a lot of interpersonal relationship difficulties'. Of course the incident also affected Ms Atoms, which in itself must have had an effect on their relationship. The evidence I heard from two psychiatrists who were called in relation to Ms Atoms, Dr Jane Fitch (called on behalf of Ms Atoms) and Dr Olivia Lee (called by the State), was that Ms Atoms' symptoms of PTSD had social consequences and affected, among other things, her ability to interact with her partner, Dr Cunningham: see [981], [1022] and [1029] below. I am satisfied that similarly, Dr Cunningham's own PTSD symptoms affected his ability to interact with Ms Atoms.
893 From all of the evidence I am satisfied that Dr Cunningham suffered from PTSD as a result of the events of 2 November 2008 and their sequelae.
894 In terms of how that PTSD has progressed, I have two different opinions from each of Dr Blumberg (who came to the view that by May 2014 Dr Cunningham's PTSD was in remission and his symptoms were in keeping with a Chronic Adjustment Disorder with anxiety and depressed mood), and Mr Dunsire (who in July 2015 reported that Dr Cunningham still suffered from PTSD). Having heard evidence from both of these witnesses and having regard to their qualifications and experience, I prefer the evidence of Dr Blumberg.
895 I will therefore assess damages on the basis that Dr Cunningham suffered moderate PTSD until May 2014, which with psychological counselling has improved, and since then he has suffered from Chronic Adjustment Disorder with anxiety and depressed mood.
Causation - other contributors to Dr Cunningham's mental condition
896 Before I assess Dr Cunningham's damages, there are two further aspects of causation I need to address.
897 The first is a matter which, as pointed out by counsel for the plaintiffs, was not pleaded but was the subject of cross-examination of the medical witnesses, particularly Dr Blumberg and Mr Dunsire and also the subject of submissions by the State in closing (ts 1653). This relates to Dr Cunningham's concern, anger and frustration with various bodies like the CCC, the Attorney-General, and the Parliamentary Inspector of the CCC, about the events of 2 November 2008. The submission by the State was that if there has been deterioration of Dr Cunningham's mental condition it comes out of his frustration with the institutional response to his complaints about the night, more so than the events of the night itself.
898 I must reject the State's submissions for the following reasons.
899 A plaintiff does not have to prove that a defendant's negligent act or omission was the sole cause of the plaintiff's injury. It is enough that the plaintiff shows that the event is 'a' cause of the condition for which damages are claimed: Shorey v PT Ltd [2003] HCA 27; (2003) 77 ALJR 1104; (2003) 197 ALR 410 [44] - [49]; Van der Velde v Halloran [2011] WASCA 252 [95]. Causation will be established if the relevant act or omission contributed materially to the damage suffered: Van der Velde v Halloran [95] - [96].
900 Where a defendant seeks to assert another cause or causes of the plaintiff's condition, there is an evidentiary onus on the defendant to disentangle and quantify the extent of the plaintiff's condition caused by such other causes: Shorey v PT Ltd; Watts v Rake [1960] HCA 58; (1960) 108 CLR 158, 160; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164, 168.
901 There is ample evidence that all of the events, from Dr Cunningham's initial arrest, the excessive force used by the police on the footpath and the road, his tasering (after which he thought he was dead - see [614] above), his time in the lock-up and then the criminal charge against him materially contributed to Dr Cunningham's mental condition for which damages are claimed.
902 In light of all the evidence it is, in my view, not possible to disentangle the consequences of the trauma of these events from his concern or preoccupation with complaints to various bodies.
903 Finally, and in any event, for the torts of both false imprisonment and malicious prosecution, damages are to compensate for 'injury to feelings' which include humiliation, anxiety, distress and indignity. I am satisfied that Dr Cunningham's frustration with the institutional response to his complaints arise as a result of what he suffered at the hands of the police, both on this night and subsequently. After his arrest he suffered the indignity, anxiety and stress, inconvenience and disturbance to his life caused by both the prosecution of the criminal charge against him and the experience of the trial of that charge, all of which contributed to Dr Cunningham's symptoms of PTSD. After the trial he was seeking an acknowledgement that things had gone wrong and attempting to obtain some redress following the events of the night and the malicious prosecution.
904 While this was not the subject of submission, or pleaded, counsel for the first, second and third defendants also cross-examined Dr Blumberg about other possible causes of Dr Cunningham's depression or anxiety or post-traumatic stress disorder, including an ulcerative colitis condition he also suffered from in around June 2009, and an accident in March 2011 in which Dr Cunningham was knocked from his bike by a motor vehicle (ts 409 - 410). I am not satisfied that the defendants have adduced evidence sufficient to prove that either of these matters actually contributed to Dr Cunningham's mental condition. The defendants have also, in my view, not satisfied the evidentiary onus to disentangle and quantify the extent of Dr Cunningham's condition caused by those matters.
905 The second aspect of causation is which of the relevant torts caused Dr Cunningham's mental condition.
906 I find that Dr Cunningham was subjected to one traumatic event starting from the time Officers Clark and Traynor first laid hands on him until the dismissal of the criminal charge against him. This is a case of one continuous incident where different defendants did different things in arresting, manhandling, tasering Dr Cunningham and depriving him of his liberty and then charging him with a criminal offence which, from his point of view (as a lawyer) was the final straw.
907 All of this combined to materially contribute to Dr Cunningham's suffering, including his PTSD and Chronic Adjustment Disorder. The conduct by each defendant materially contributed to Dr Cunningham's damages.
908 As to the judgment which should be entered against each defendant, it is very difficult to disentangle the effects of each separate act of the police officers which occurred during Dr Cunningham's arrest. In any case, each of these separate acts, plus the tasering, form part of the claim against the State for false imprisonment.
909 It is almost impossible, on the evidence, to disentangle the effects of the false imprisonment from the effects of the malicious prosecution, because of the considerable amount of overlapping between the heads of damages recovered in each of these classes of action (as to which, see Houda [498]).
910 However, given the matters I have identified in [836] above, I must do my best to apportion between the torts and the defendants. I will do this by the allocation of damages in five ways:
(a) All of the batteries by Officers Traynor and Clark, up to the point of Dr Cunningham's tasering (as I have identified and discussed in [812](a). I consider that Officers Traynor and Clark are equally liable (in other words, joint tortfeasors) for this, since this was all part of his arrest by these two officers. When apportioning damages, as a matter of convenience I will refer to these matters as 'the arrest';
(c) The battery for which the State is liable in relation to how Dr Cunningham was handled after the tasering and placed into the police van ('the battery after the tasering');
(d) The false imprisonment, for which the State is liable (which includes Dr Cunningham's wrongful arrest and tasering, the handling of Dr Cunningham after the tasering, and the time at the police station); and
911 For a lawyer, and particularly one who holds a teaching position at a university law faculty, the experience of being wrongly arrested, handcuffed, manhandled, tasered, deprived of his liberty and then charged with a criminal offence must be particularly humiliating, embarrassing and stressful. I find that it was in Dr Cunningham's case, even though the offence of obstructing a public officer was not a serious offence.
912 In addition to these matters, however, Dr Cunningham has also suffered from PTSD, of a moderate severity. While this has improved over the years as a result of the psychological counselling he has undergone, he still suffers from residual PTSD symptoms, encompassed in the diagnosis of Chronic Adjustment Disorder. I take into account, however, that these symptoms are likely to improve with the finalisation of this case.
913 In the circumstances I consider an appropriate award for general damages is $75,000. Doing the best I can, I apportion this by allocating $10,000 for the arrest, $12,500 for the tasering, $2,500 for the battery after the tasering, $25,000 for the false imprisonment and $25,000 for the malicious prosecution.
914 The trial was originally listed for two weeks but was part heard and not completed until March this year. The conduct of both Dr Cunningham and Ms Atoms on this night was under continual examination and criticism throughout the whole trial, with serious allegations of misconduct made against them, despite the dismissal of the charges in 2010. Arguably, the defendants were entitled to do this: Lancee v Willert [2008] WASCA 120. However, in doing so, they ran the risk of an award for aggravated damages (something about which counsel for the plaintiffs reminded them throughout the trial).
915 In my view, by pleading and arguing justification and persevering with the allegations the subject of the criminal charges, the defendants exhibited the same ill will and contumelious disregard of the plaintiffs' rights as Officers Traynor and Clark and Mr Caldwell exhibited on the night of 2 November 2008 and subsequently, in maintaining the prosecution of the charges against the plaintiffs.
916 Dr Cunningham was also subjected to cross-examination on personal details about his relationship with Ms Atoms (ts 728 - 729), which in my view was unnecessary.
917 I have no doubt that this conduct by the defendants during the trial increased Dr Cunningham's suffering and increased the injury to his feelings, and I consider it appropriate to award aggravated damages.
918 I consider the appropriate amount for aggravated damages in the case of Dr Cunningham to be $10,000.
919 I also consider this a case where an award for exemplary damages should be made because of the high-handed way in which the first, second and third defendants dealt with Dr Cunningham, and then charged him with a criminal offence. It is appropriate to mark my disapproval of the conduct of those police officers, which in my view was reprehensible.
920 While the conduct of these police occurred a long time ago now, it is also appropriate to award exemplary damages as a 'spur' to the State to ensure that police officers are properly trained and understand their heavy responsibilities, particularly in relation to the use of tasers and as prosecutors: New South Wales v Zreika [2012] NSWCA 37 [62].
921 I consider the appropriate amount for exemplary damages to be $10,000.
922 Special damages are claimed in the sum of $5,874.10 for past expenses and $8,830.00 for future expenses. These amounts as claimed appear reasonable and are not disputed by the defendants and I will allow those amounts. (These should be apportioned in the same way as I have apportioned the general damages.)
923 Dr Cunningham also claims costs relating to the claim for malicious prosecution. The actual costs including legal fees and transcript fees total $630.25 (exhibit 63) but the claim is $600. I will allow this amount. (This should be apportioned to the malicious prosecution only).
924 My assessment of Dr Cunningham's damages is as follows:
925 I will hear from the parties as to the final amount which should be entered by way of judgment for Dr Cunningham against each defendant (taking into account my apportionment), and the issue of costs.
926 I now turn to Ms Atoms and the medical evidence about how the incident of 2 November 2008 and the criminal charge affected her physical and mental wellbeing. I found Ms Atoms' evidence inherently probable, credible and reliable. While she was, as she admitted, not good with dates, she was still able to provide a sequence of events which accorded with the documentary evidence.
927 To the extent that there were some discrepancies between the history of the events of the night of 2 November 2008 as set out in the medical reports and notes, and the evidence of Ms Atoms at trial, I do not consider these were substantial or material discrepancies which affected either Ms Atoms' credibility or the weight of any medical opinion: Pollock v Wellington (1996) 15 WAR 1; Beer v Duracraft Pty Ltd [2004] WASCA 192 [78] - [80] (McLure J).
928 For example, in the report of Dr Desmond Williams dated 7 May 2014 (exhibit 25), he recorded a history of what occurred on the footpath as 'she was pulled by her left wrist towards the policeman and then pushed backwards and let go so that she was off-balance and fell'. Ms Atoms she did not give evidence about falling on the footpath, and it is clear from the CCTV footage that Ms Atoms did not fall at that time, but this does not affect Dr Williams' opinion about the mechanics of the back injury she suffered, which I discuss in [1060] below.
929 Before this incident Ms Atoms had a contract with Murdoch University as a research officer in the School of Sustainability. She had commenced in this role on 7 July 2008. After she started that research contract she was invited to tutor in two subjects and did some guest lecturing (ts 126, 127, exhibit 1, Tab 46).
930 Ms Atoms had also enrolled in a postgraduate diploma course at Murdoch University in 2009 (ts 127).
931 As I have mentioned, Ms Atoms had an offer of employment at the Water Corporation and was scheduled to attend a drug and alcohol test for that employment on 3 November 2008.
932 Before the Water Corporation contract, she gave notice to Murdoch University that she did not want to do any research work. However, she was also doing other work at Murdoch University relating to her job as a tutor and also marking work (assignments). She intended to complete her studies at Murdoch University and continue in lecturing and tutoring while working at the Water Corporation (ts 165 - 166).
933 Ms Atoms was in good health. She suffers from scoliosis, a lateral curvature of the spine. (She described her scoliosis as mild; Dr Williams, with the benefit of radiological evidence, described it as moderate: ts 288). The symptoms which Ms Atoms experienced from her scoliosis were in her mid and upper back, which felt like a pinch in the vertebrae. She managed any back pain from her scoliosis with regular yoga, stretching and the practice of mindfulness as well as, at times, chiropractic and osteopathic treatment (ts 173, 174).
934 After her release from Fremantle Police Station in the early hours of the morning of 2 November 2008, on arriving home, Ms Atoms realised she was in a lot of pain. She had difficulty getting up the stairs to her apartment (ts 156).
935 Immediately after the incident, Ms Atoms had sore knees and had difficulty standing up straight (ts 175). She was shaky and emotional. She had difficulty getting to sleep. She experienced sleeplessness and was unable to put the events out of her mind (ts 172, 225).
936 Within the first week after the incident, Ms Atoms experienced pain down the back of her left leg and in her left ankle. The pain was particularly worse in the morning, although it was mild. Ms Atoms experienced pain in her upper back and in her left shoulder, as well as intermittent pain in her lower back. (This was different from her scoliosis pain.) She also experienced headaches, tension in her head and jaw, and teeth grinding (bruxism). She had not experienced symptoms of this type before 2 November 2008 (ts 173, 174, 177, 541 - 542).
937 Ms Atoms' intermittent lower back pain and left leg pain continued up until an event in 2013 (which I describe below), at which point it became severe.
938 In the days following the incident Ms Atoms was doing marking work for Murdoch University. She was having difficulty holding a pencil and could not stop shaking. After completing her marking work she made a decision not to do any more work for Murdoch University because she was not doing very well emotionally (ts 165).
939 By the time she was due to start her new job with the Water Corporation on 17 November 2008, Ms Atoms was not well. She was distressed, shaking a lot and had not really taken stock of what had happened. While she undertook a four week induction with the Water Corporation from 17 November to 17 December, she requested and obtained leave without pay for period from 17 December 2008 to 16 January 2009 (ts 168, 169, exhibit 11).
940 During the four weeks of leave without pay, Ms Atoms became very emotional and upset and could not stop crying. Ms Atoms travelled to New South Wales for Christmas with her family and remembered crying the day before she left and during the flight (ts 172 - 173).
941 In early 2009 Ms Atoms was still suffering from pain behind her left shoulder blade, in her lower back and left leg pain. She saw a chiropractor in January 2009 while she was in New South Wales visiting her family (ts 546, ts 594). She sought osteopathic treatment for the pain behind her left shoulder blade (ts 176).
942 The pain with her lower back was very intermittent and irregular. It was a hard thing to seek treatment for because often it would not be present at the time of her appointment. The pain down her left leg and in her left heel and ankle was also irregular and usually occurred in the morning (ts 176 - 177).
943 Ms Atoms found that she was unable to complete assignments or assessments which were due for her postgraduate diploma course at Murdoch University. In her words, she 'wasn't very capable of doing a lot of things' and 'let a lot of things go' (ts 127).
944 Ms Atoms first sought treatment from a doctor (general practitioner or GP), Dr Hanrahan, on 5 March 2009. There were two issues that caused her to see Dr Hanrahan. One was that Ms Atoms was not doing well emotionally and was failing to put the event aside. She was also concerned about urinary incontinence which she had started to experience in late November or December 2008. Dr Hanrahan recorded that Ms Atoms had been assaulted by police, and was dropped on her knee (exhibit 54). Ms Atoms told Dr Hanrahan she was having flashbacks of an event, could not put it out of her mind, was not sleeping well and was easily distressed (ts 179, 180, exhibits 18, 53 and 54). Dr Hanrahan referred her to the psychologist, Sophie Henshaw (ts 180).
945 Ms Atoms attended her first appointment with Ms Henshaw on 11 March 2009 and continued to see her until 25 June 2009 (exhibit 18).
946 Ms Atoms also tried to find a physiotherapist and saw a number of physiotherapists for the pain in her back and down her left leg, the pain in her scapula, and the jaw tension she was experiencing. She also went to a number of chiropractors and started having massages (ts 181 - 183).
947 She left the care of Dr Hanrahan after disclosing to her that she had been assaulted in Fremantle and was having difficulty with it. Dr Hanrahan asked her if she had been to the police. When Ms Atoms said that the police were involved in the assault, Dr Hanrahan's response to that was something like 'you must have been doing something wrong'. Ms Atoms found that comment very upsetting. That then created a great deal of difficulty for Ms Atoms in discussing what had happened with health professionals (ts 181).
948 After that, Ms Atoms began to see a different GP or GP's from the Leeuwin Medical Group, primarily Dr Shannon Ballard whom she first saw on 24 March 2009. At that appointment Ms Atoms volunteered that she had suffered an emotional trauma for which she was already seeing a psychologist, but explained she did not want to talk to Dr Ballard about it because it was 'too difficult to talk about' (ts 455 - 456; exhibit 46).
949 In May 2009 Ms Atoms took three or four days' sick leave from her job with the Water Corporation when she became very distressed after being told by the planning director that another division had told him not to accept her advice on a project. At this time, Ms Atoms said that 'things were piling up' around her. She was not managing to stay on top of simple tasks, or her studies and she felt that her reputation was being questioned which really affected her (ts 189).
950 Ms Atoms took the time to try to deal with some of those things piling up around her. This included asking Ms Henshaw to write a letter to support Ms Atoms' application to retrospectively withdraw from the postgraduate diploma course at Murdoch University (exhibit 8; ts 128 - 129). Ms Henshaw provided that letter on 4 June 2009 (exhibit 9) in which she stated that Ms Atoms was her client and:
...she is currently being treated for symptoms of post-traumatic stress following exposure to a traumatic event in 2008. Her high anxiety levels make it difficult for her to function efficiently, particularly in an educational environment where she requires high levels of concentration in order to complete assignments.
951 On 19 June 2009 Ms Atoms attended an appointment with Dr Ballard who recorded that Ms Atoms was suffering from insomnia (exhibits 18, 37 and 26). Dr Ballard also noted that she had broken up with her partner, was not sleeping, was seeing a clinical psychiatrist and 'probably is depressed'.
952 At a follow up appointment on 17 July 2009 Dr Ballard noted that Ms Atoms had a court case coming up next month, although she did not say what that was about, and felt that her anxiety and insomnia should improve after that (exhibit 46).
953 By late 2009 Ms Atoms' urinary incontinence issues had resolved, but she was still suffering from her other issues.
954 She was enjoying her work at the Water Corporation, but in September 2009 she had a performance review in which she was told that her manager was under pressure to 'mark' her as unsatisfactory. Following that review she received a letter from the Manager of the Infrastructure Planning Branch dated 30 September 2009 advising that she had achieved a performance rating of '3 - fully effective' and thanking her for her commitment and ongoing contribution in the Infrastructure Planning Branch (ts 185 and exhibit 12).
955 Following that review, there was an announcement that she was leaving the Infrastructure Planning Branch and would be moved into the Community Engagement team. She moved either in late 2009 or the commencement of 2010. When she reported to the new manager, she was told that her work was unsatisfactory. She did not cope with that very well so went to see Human Resources. She was then placed into what she described as a 'performance management process' (ts 186).
956 Ms Atoms was very upset at being told her work was unsatisfactory and took some days leave (ts 190). In her evidence she said she could now see that she was not coping at all (ts 191).
957 Her next appointment with a GP was on 17 March 2010, with Dr Fariss, another doctor at the Leeuwin Medical Group, who noted Ms Atoms as being emotionally labile (unstable). Dr Fariss recorded that Ms Atoms was stressed and tearful about her situation at work, describing tension and problems with her manager, HR and others (exhibit 46).
958 Ms Atoms had two more appointments with Dr Fariss on 7 and 14 April 2010, where it was again recorded that Ms Atoms was stressed and tearful and, on 14 April, that she was booked to see a psychologist the next day (exhibit 46).
959 The hearing of the criminal charges against the plaintiffs was coming up on 29 April, and Ms Atoms was distressed by the approaching court hearing. She found the trial 'highly distressing' because she could not make sense of what had happened (ts 191). The dismissal of the criminal charges did not, however, resolve Ms Atoms' problems.
960 Email correspondence between Ms Atoms and her manager on dates between 9 and 14 July 2010 was admitted into evidence (exhibit 1, tab 51). To summarise very briefly, the manager was not happy with Ms Atoms' performance, raising (among other things) that she had recorded no outputs or outcomes on particular projects. Ms Atoms argued that she was doing a good job and keeping up to date. She agreed in cross-examination that in her emails she did not seek to attribute any difficulties in performance to any physical or mental illnesses or incapacities (ts 580). Ms Atoms also gave evidence that there were personality issues between her and her manager from the very beginning (ts 581).
961 Soon after this in July 2010, Ms Atoms' employment at the Water Corporation was brought to an end and the reason given to her was that her work was unsatisfactory (ts 187).
962 I interpose here something from the evidence of the psychiatrist called by the State, Dr Yue Chong (Olivia) Lee. Dr Lee reviewed Ms Atoms on 9 August 2014 and wrote a report dated 3 September 2014 (exhibit 94) and also gave evidence at trial. The history taken by Dr Lee included Ms Atoms' description of events which had occurred at her workplace, consistent with the evidence of Ms Atoms' in this trial, and the following:
Over this time, she felt that she lost confidence in not being able to speak up for herself. This might have been why she, normally a very articulate person, had not been able to voice her perceived mistreatment.
963 Dr Lee agreed that what Ms Atoms was conveying was that ordinarily she felt that she would have been able to speak up to defend herself against the allegation of inadequate performance but, in these circumstances, she felt unable to do that. This was consistent with PTSD and major depression (ts 1545 - 1546).
964 Ms Atoms sought other work, and on 19 August 2010 she began work at the City of Swan as a community engagement advisor. She had a 12 month contract working part-time, two and a half days per week (ts 192 - 193; exhibit 1, Tab 34). The reasons she obtained only part-time work was that it had been put to her she was underperforming and she realised that psychologically she was not coping and emotionally she was not very well. She thought that part-time work would enable her to manage her health better (ts 194).
965 She enjoyed the work at the City of Swan, but found the time alone travelling to work quite stressful. She often found herself crying while on the train to work. She also found time at home alone stressful. In her words 'I found myself trying to avoid my feelings a lot at home and very unhappy and crying a lot'. She felt she was failing in a lot of ways in her personal life (ts 194 - 195).
966 On 15 October 2010 Ms Atoms was back to see Dr Fariss. At this appointment Dr Fariss recorded that Ms Atoms recounted her experience on 2 November 2008, describing how she was handcuffed, tasered by police, and had been assessed as suffering PTSD. It was recorded that Ms Atoms 'lives with an underlying level of stress/anxiety' (exhibit 46).
967 Ms Atoms also completed a K10 assessment. The K10 assessment is used by medical practitioners to assess symptoms of anxiety and depression and to get an objective view of how severe those symptoms are (Dr Ballard ts 431). The result for Ms Atoms' K10 assessment was a score of 26 which represents a moderate level of distress (exhibit 38, ts 432).
968 Ms Atoms was referred to another psychologist, Jane McNabb, whom Ms Atoms saw on 1 November 2010. She continued seeing Ms McNabb until 16 March 2012 (exhibits 18 and 36; ts 187).
969 She had previously used the strategy of trying to put what had happened out of her mind as she had been advised by Ms Henshaw. She found that was not working. When she began seeing Ms McNabb she was predominantly concerned about being well enough to work. She was working on her mental health and strategies to reduce stress and get on top of things in her personal life (ts 195).
970 Ms McNabb reported to Dr Fariss by letter dated 2 February 2011 that Ms Atoms had undergone therapy sessions to resolve problems 'including workplace issues and some post-traumatic stress symptoms relating to a situation involving a scuffle with police in Fremantle' (exhibit 48).
971 Ms Atoms saw Dr Fariss again on 25 February 2011, when she completed another K10 assessment, again scoring a moderate level of distress. A GP Mental Health Plan was prepared (exhibits 39 and 40).
972 In 2011 Ms Atoms was still suffering lower back pain and pain down her left leg. She began seeing David Dawes, a physiotherapist (ts 181 - 182).
973 At an appointment with Mr Dawes on 27 April 2011 Ms Atoms reported intermittent intense pain in her left lower back. She also reported pain in her ankle in the mornings with weight bearing, which had become worse over the last 6 - 12 months. Ms Atoms reported that she had been grabbed from behind 2 - 3 years ago (by police) and tasered - 'included fall from height' - and that it was difficult to walk afterwards. Ms Atoms reported that her lumbar pain was worse around her menstrual cycle (exhibit 28).
974 Ms Atoms had further appointments with Mr Dawes on 8 June and 23 June 2011 (exhibit 29).
975 Ms Atoms continued seeing Ms McNabb. A letter from Ms McNabb to Dr Fariss dated 1 May 2011 recorded that Ms Atoms was receiving therapy for signs and symptoms of ongoing trauma memories (PTSD). Ms McNabb recorded that Ms Atoms appeared 'quite overwhelmed by the disabling emotions experienced since 2008'. She had just started to respond to therapy and was making some progress, but the process required more time (exhibit 49).
976 On 9 May 2011 Ms Atoms attended an appointment with Dr Ballard after she had been seen by an ear, nose and throat specialist and diagnosed with bruxism. She was prescribed Endep for a week or so to help with bruxism and tension headaches. Dr Ballard recorded that Ms Atoms needed to continue with her psychologist to treat anxiety. Dr Ballard also reviewed Ms Atoms' mental health plan and wrote to Ms McNabb recommending a continuation of Ms Atoms' mental health plan (ts 436 - 437; exhibit 46; exhibit 41).
977 On 9 August 2011 Ms Atoms ceased working at the City of Swan after her 12 month contract came to an end. She was offered an extension of the contract, but she wanted to return to a suitably challenging job and so declined the offer (ts 194).
978 In September 2011 the solicitors for Ms Atoms requested a medico-legal report regarding Ms Atoms from a psychiatrist, Dr Jane Fitch. Dr Fitch saw Ms Atoms on 23 September 2011 and prepared a report dated 8 January 2012 (exhibit 83). In her evidence at trial, Dr Fitch described Ms Atoms as 'quite fragile' and 'quite unwell' at the time she saw her (ts 782).
979 Dr Fitch described (page 15 of her report) how Ms Atoms was highly distressed and overwhelmed during the event and did not have a full recollection, noting that Ms Atoms may have 'dissociated' or simply been in shock. She described the situation as being surreal, with some detachment, numbing and horror. As Dr Fitch stated in her report and at trial, these are markers of and symptoms consistent with a clinical diagnosis of Acute Traumatic Stress Reaction.
980 Dr Fitch also explained dissociation at trial (ts 783):
It's a psychiatric term, but to explain it in layman's - well, in everyday language, essentially dissociating is when one part of the brain, perhaps the thinking brain, is not connecting with the feeling brain. They're quite split off. And so she may become just demonstrating all the feelings and being quite trapped within that somatosensory experience, but she can't think at that time. She can't really access - she doesn't know what she's done at that time and wouldn't be able to respond logically to questions. Her responses would be just about survival and keeping safe. Though I didn't ask her questions at that time because she was quite hysterical. So this is a feature of severe PTSD. There's - specify to have with dissociation because it does mean that the person can no longer cognitively and emotionally integrate the experience, or it wasn't at that stage.
981 Dr Fitch went on in her report to explain how after the assault Ms Atoms developed insomnia, anxiety with panic, re-intrusive images, nightmares and mood lability. She avoided talking or thinking about the trauma and could not discuss it with her partner, Dr Cunningham. She tried to bury herself in her new job and had a different view of the future. Dr Fitch explained these were symptoms in keeping with clinical PTSD. In her view the symptoms had become chronic and entrenched.
982 Dr Fitch explained in her report and at trial that Ms Atoms' main coping mechanism was avoidance, which was not sustainable with the stress of the pending court case (ie the criminal charge against her), media publicity and the involvement of Dr Cunningham, her partner. Over the subsequent 12 months Ms Atoms' trauma symptoms continued and she developed low mood and tearfulness. She started to lose interest, enjoyment and pleasure. She stopped socialising and her confidence was reduced. She continued to have prominent anxiety with panic and her relationships were affected.
983 Dr Fitch was also of the view that Ms Atoms' occupational functioning was impaired. Her work performance was below capacity (and Dr Fitch explained at trial, ts 812, that both the standard of her work and her capacity to engage with people was below capacity) and her contract with the Water Corporation was eventually terminated early. An attempt to study was unsuccessful. This was out of keeping with her previous occupational and academic performance and productivity. All of these symptoms were consistent with a clinical diagnosis of major depressive disorder.
984 At trial, Dr Fitch explained that Ms Atoms would not have been functioning well at work. Initially she insisted on going to work when Dr Fitch thought most people would not have, but going to work gave Ms Atoms structure and something to think about. She probably was not fit for work (ts 612). While Ms Atoms loved work, she had never accepted that she was impaired in her work and has realized since how it was affecting her at the time (ts 813). She also felt threatened and bullied, which Dr Fitch explained is a manifestation of PTSD (ts 812).
985 Dr Fitch also recorded that while Ms Atoms had been seeing a clinical psychologist, her symptoms of anxiety and depression had not abated. Her mood started to improve as was the 'natural history of untreated depressive disorders'. However Dr Fitch observed that the symptoms of PTSD remained and fluctuated in intensity and were re-triggered by external circumstances and internal feeling states.
986 Dr Fitch's diagnosis (exhibit 83, page 18) was PTSD of chronic moderate severity and major depressive disorder in partial remission. Dr Fitch went on to advise that Ms Atoms remained symptomatic, fragile and in need of treatment.
987 In terms of prognosis, Dr Fitch advised that there were some poor prognostic factors. There had been an extended period of symptomatology without remission and her PTSD had become chronic and entrenched (exhibit 83, page 23). She had not had an adequate trial of psychiatric treatment and had developed co-morbid depression. Her social and occupational functioning had been affected very significantly. The prognosis for full resolution of her PTSD symptoms was poor and her vulnerability to depression would remain.
988 On 17 October 2011 Ms Atoms attended an appointment with David Dawes, presenting with symptoms of lower back pain 'intermittent over last 3 years' (exhibit 29, ts 366 - 367).
989 On 21 October 2011 Ms Atoms completed a further K10 assessment. The result was a score of 30 and another mental health care plan was prepared for her (exhibit 42 and 43).
990 On 6 March 2012 Ms Atoms commenced working full-time at Parsons Brinkerhoff, an engineering and consulting group, as leader of the stakeholder engagement team (ts 197, exhibit 1, Tab 48). This was a full-time position which she enjoyed and found challenging (ts 198).
991 However, it is apparent from the medical evidence that Ms Atoms was not really coping all that well.
992 On 8 May 2012 Ms Atoms attended an appointment with Dr Ballard and completed another K10 assessment. It is recorded that her K10 result is 34 and 'worse than previously - lots of anxiety' (exhibits 44 and 46).
993 On 22 February 2013 Ms Atoms attended an appointment with Dr Ballard, who recorded that Ms Atoms was 'going very well' with regard to PTSD but that she had recent 'PA', a panic attack (ts 467, exhibit 46). Ms Atoms completed a K10 assessment with an improved score, reflecting a mild level of distress (ts 467, exhibit 45).
994 In March 2013 Ms Atoms experienced what has been described as a 'visceral flashback' of the event of 2 November 2008 and felt her lower back spasm. Dr Cunningham, who was in the bathroom, had invited her to listen to a Radio National program on PTSD. She listened to some, but not all, of the program which dealt with a woman's story about her experience with PTSD. The next morning when she was getting ready for work in the bathroom, standing at the sink, Ms Atoms had a 'visceral flashback' of the event of 2 November to the point where she felt her body spasm and in particular her lower back spasm. While she went to work, by the time she arrived there she was in extreme pain and left work early (ts 198 - 200; ts 265 - 267).
995 When she got home she made an appointment with a physiotherapist at LifeCare Physio (as the physiotherapist she usually saw, David Dawes, had moved to Melbourne). After undergoing physiotherapy that afternoon, she was given a medical certificate for two weeks off work. She worked from home, checking her emails and so on. When the pain eased she returned to work, as she was very busy.
996 Later in the month she had to travel to Sydney for work. She found the flight difficult, spending most of the flight standing up. On her arrival in Sydney she experienced a severe escalation of the back pain and the pain down her left leg. Ultimately Ms Atoms found herself unable to sit and barely able to walk. The pain was intense and constant (ts 201, 202).
997 While in Sydney, on 3 April 2013 Ms Atoms went to see a chiropractor, who booked her for an MRI at North Shore Radiology and Nuclear Medicine (ts 201). The report obtained (exhibit 20) recorded that she had presented with acute left lumbar sciatica and that at L4/5, one of the lower lumbar disc levels, there was a disc protrusion and sequestration:
L4/5
There is some loss of intervertebral disc height. There is a broad based posterior disc protrusion which is eccentric to the left with a focal disc protrusion/sequestration. There is an associated annular tear. The disc fragment lies behind the L5 vertebral body in the left effacing the left lateral recess. The size of this disc fragment measures 15mm transverse x 8mm anteroposterior x 14mm superior inferior...
998 As explained by Dr Desmond Williams, the orthopaedic surgeon called on behalf of Ms Atoms, a disc lesion occurs because of damage to the disc with a tear. The sequestration implied there was a fragment of disc which had protruded but then broken off. Dr Williams described the size of the disc fragment as a 'pretty big size protrusion out in the spinal canal' which was pushing out to the left. An annular tear was a tear at the back of the disc, at a posterior part near the spinal cord. Sciatica, namely radiating pain down the leg, was caused when a protrusion or sequestration of the disc pressed on the nerve roots at the bottom of the spinal cord (the lower lumbar nerves travel down the legs) (ts 286, 291 - 293).
999 The pain in Ms Atoms' lower back and down her left leg was very bad the whole time she was in Sydney. Upon her return to Perth she saw Dr Ballard on 5 April 2013. Dr Ballard's notes recorded 'no obvious injury but [has had] some pain since assault a few years ago'. After referring to pain becoming significantly worse and the MRI which showed a disc bulge L4/5 with a large sequestered fragment and some L5 nerve root, Dr Ballard recorded that Ms Atoms stated that 'pain is severe' and wanted the strongest painkillers possible. She was prescribed Tramadol, Naproxen and Panadeine Forte (exhibit 46).
1000 The next day, 6 April 2013, Ms Atoms attended an appointment with Dr Anita Manes (another doctor from the Leeuwin Medical Group). Ms Atoms described nausea from Tramadol. Dr Manes discussed why she would not prescribe stronger pain medication at that stage (exhibit 46).
1001 Ms Atoms attended a follow up appointment with Dr Ballard for her back on 16 April 2013. Ms Atoms' back pain remained much the same. Dr Ballard recorded that Ms Atoms 'needs more analgesics' and was not sleeping well due to pain (exhibit 46).
1002 Ms Atoms attended an appointment with Dr Smith, a chiropractor, on 22 April 2013. Ms Atoms attended three appointments with Dr Smith, the last of which was on 21 May 2013 (exhibit 19).
1003 On 1 May 2013 Ms Atoms attended an appointment with Dr Fariss who recorded that Ms Atoms still had sciatic pain and was not sure if she was making much improvement. Dr Fariss prescribed Naproxen, an anti-inflammatory medication (ts 449; exhibit 46).
1004 After her return from Sydney, Ms Atoms returned to work at Parsons Brinckerhoff, but her work performance was poor. She was affected by her back and leg pain and the medication, Tramadol, she was taking for the pain, which she said put her in a bit of a cloud and made her quite 'foggy' (ts 202, 203). After Parsons Brinckerhoff expressed concern about her capacity, they offered her redundancy which she accepted. She finished work on 3 May 2013 (ts 204; exhibit 1, Tab 48).
1005 On 7 May 2013, Ms Atoms attended her first appointment with another psychologist, Dr Vance Locke. Ms Atoms continued seeing Dr Locke until at least 10 September 2014 (exhibit 18). In a report dated 3 December 2013 (exhibit 62), Dr Locke confirmed Ms Atoms had symptoms of flashbacks of the night she was tasered, vivid dreams, anxiety, unexpected mood changes and tears, anxiety concerning the police, pain patterns consistent with re-experiencing the traumatic event and avoidance of areas and people involved in the traumatic experience. These were symptoms consistent with PTSD. After treatment Dr Locke was of the view her symptoms had reduced significantly, but she still had ongoing anxiety and ongoing back pain for which future treatment was necessary.
1006 On 17 May 2013 Ms Atoms attended an appointment with Dr Ballard. It was recorded that Ms Atoms still had back pain but was slowly improving. Ms Atoms requested a referral to Dr Salmon, a pain specialist (exhibit 46).
1007 Dr Salmon subsequently saw Ms Atoms and recommended a procedure called a nerve root sleeve injection. Because of the cost, Ms Atoms requested her GP to arrange that procedure through the public health system. In the meantime Dr Salmon prescribed Norspan for Ms Atoms' back pain. Norspan is an opiate analgesic in the form of a patch, stronger than Tramadol (ts 200, 204; Dr Ballard ts 450).
1008 On 24 May 2013 Ms Atoms attended an appointment with Justin Mazzucchelli, a chiropractor, for treatment for her jaw pain and bruxism. Ms Atoms attended 6 sessions with Mr Mazzucchelli, the last of which was on 11 June 2013, and this resolved her symptoms (ts 176, ts 226, exhibit 19).
1009 Ms Atoms saw Dr Ballard again on 14 June 2013 for 'low back pain'. It is recorded that Ms Atoms was using Norspan but felt she needed a higher dose because she was still using Tramadol for breakthrough pain, that is, pain that was able to break through the analgesic effect of the Norspan and the Tramadol gave her nausea. Ms Atoms was occasionally using Temazepam for sleep (exhibit 46).
1010 Ms Atoms' symptoms from her back continued. Ms Atoms was seen at the Neurosurgery Triage Clinic at Sir Charles Gairdner Hospital, on 12 December 2013. Ms Mountford, an Advanced Practitioner Physiotherapist, reported to Dr Ballard by letter also dated 12 December 2013 (exhibit 21, 22).
1011 Ms Atoms received her first nerve root sleeve injection for back pain on 15 January 2014. It was successful in stopping break through pain, for which she had been taking Tramadol. She was able to come off Tramadol and started looking for work (ts 205 - 206, ts 450 (Dr Ballard); exhibit 23).
1012 Ms Atoms attended her first appointment with another physiotherapist, Mr L McManus, on 26 March 2014. Ms Atoms saw Mr McManus on four occasions, the last being on 16 April 2014 (exhibit 18).
1013 Ms Atoms was reviewed by the orthopaedic surgeon, Dr Desmond Williams on 25 March and 15 April 2014. Dr Williams also arranged further x-rays and an MRI of her lumbar spine which were undertaken on 4 April 2014, receiving a report of Dr Peter Morgan (exhibit 24).
1014 Dr Williams produced a report dated 7 May 2014 (exhibit 25). In terms of the history of the physical injuries suffered on the night, Dr Williams recorded the following (page 2 of his report):
She recalled she was pulled by her left wrist towards the policeman and then pushed backwards and let go so that she was off-balance and fell. She apparently fell onto the road and her first recall was lying on her right side with her arms restrained behind her and two officers were standing nearby. She recalled being lifted from behind and during this period she recalled screaming. She recalled being lifted up from behind about a metre and then dropped and she fell onto her left side. She noted that at one point when she was being held, without warning, a taser gun was placed against her back area and was discharged. She recalled that was prior to her falling to the ground and she had a loss of clear recall. She was then placed on her right side on the ground with her hands handcuffed behind her back. She recalled that apparently while she was lying on the ground handcuffed on her right side, she was again tasered in the back.
1015 In the same report Dr Williams recorded how immediately following the assault Ms Atoms had noticed lumbar back pain and pain radiating to her left leg. The leg pain was initially intermittent from the time of injury until it increased significantly while she was in New South Wales. Dr Williams also reported how in March 2013 Ms Atoms had a flashback of the event of the assault and there was a further increase in her back pain and radiating left leg sciatica.
1016 Dr Williams noted that significant radiated pain in the left leg to the left ankle had been documented in earlier physiotherapy assessments and when she had the flashback in March 2013, her radiating left leg sciatica became more significant.
1017 Dr Williams also noted that the Northshore Radiology MRI undertaken on 3 April 2013 demonstrated the large sequestrated disc fragment behind the L5 vertebral body. Both the x-rays and MRI taken on 4 April 2014 showed L4/5 mild to moderate disc space narrowing. The MRI showed that the early sequestrated disc had resolved, but Ms Atoms still had lower lumbar disc degenerative changes particularly evident at L4/5.
1018 Ms Atoms' current symptoms as reported to Dr Williams were a persistence of pain in the left buttock and radiation to the left leg, although she had obtained significant benefit from the root sleeve injection undertaken in January 2014. Sitting for lengthy periods increased her pain, she had limitations with walking distances and she often woke at night with back pain and radiating leg pain (exhibit 25, page 10).
1019 Ms Atoms had a second nerve root sleeve injection on 15 May 2014. It reduced her back pain to negligible levels and she was able to be withdrawn from Norspan (ts 205 - 206). Ms Atoms' problems with sleeplessness began to improve (ts 225).
1020 Ms Atoms continued to look for work. During the period from March 2014 to March, Ms Atoms applied for about 30 jobs and undertook 10 interviews. She did obtain a job which she commenced in March 2015, which I will discuss in a moment.
1021 While looking for employment, on 19 August 2014 Ms Atoms was reviewed by Dr Lee. Dr Lee in her report dated 3 September 2014 (exhibit 94) also diagnosed Ms Atoms as suffering from PTSD and major depressive order, although that was in partial remission. This was based on the information provided by Ms Atoms that in the past two months she had felt a noticeable improvement mainly because of the treatment she had received for her back and relief from back pain.
1022 Dr Lee confirmed that symptoms of PTSD and major depressive disorder had been reported by Ms Atoms almost immediately after the incident. Those symptoms had progressively affected her function in her ability to work, socialise and interact with her partner. Dr Lee was of the opinion that Ms Atoms began to experience those symptoms within days to weeks of the incident. Dr Lee also noted (exhibit 94, par 9, page 38) that while Ms Atoms had made improvement with psychological input, she had suffered 'quite severe impairment mainly due to complication of the back injury exacerbating the depressive illness'.
1023 Dr Lee anticipated some improvement or remission in the next 6 - 12 months. There were good prognostic indicators, in the sense that she described her symptoms generally improving and that she was having less pain, she described motivation and was actively applying for work. She was also in a stable social situation, supported by her partner and those were all good indicators for further recovery (ts 1534).
1024 Ms Atoms was reviewed by a consultant orthopaedic surgeon, Dr Anthony Cairns, at the request of the State and he prepared a report dated 29 August 2014 (exhibit 27). He found that Ms Atoms' presentation was consistent with his clinical findings (exhibit 27, page 25). He made a clinical diagnosis of:
(1) L4/5 intervertebral disc extrusion with L5 radiculopathy. Disc extrusion apparently resolved, L5 radiculopathy significantly alleviated by nerve root sleeve corticosteroid injection.
(2) Probable postural and emotion-induced cervicothoracic discomfort with probable symptomatic aggravation of pre-existing cervicothoracic discomfort.
(3) Significant biopsychosocial potentiation of the underlying musculo-skeletal conditions.
1025 On the basis of the history provided by Ms Atoms, Dr Cairns was of the view that her conditions resulted from the 2008 incident. He also considered that Ms Atoms was partially incapacitated for work as a result of the ongoing impairment. He anticipated that with ongoing appropriate psychiatric and psychological treatment and support she 'may' regain capacity for full-time employment. He expressed the reservation, however, that she presented with ongoing significant physical impairment approaching six years following the incident and had not undertaken gainful employment since May 2013.
1026 Dr Fitch saw Ms Atoms again on 13 August 2014 and 8 February 2015 and prepared a report dated 3 June 2015 (exhibit 84). In the executive summary of her report Dr Fitch advised as follows:
Ms Atoms developed severe chronic PTSD in clear relation to the police/tasering incident. She has the full gambit of DSM-V criteria for PTSD with the additional severity specifier of dissociation. Her condition has been intensified and perpetuated by the initial legal proceeding instigated by the police; her public record referencing of the incident readily available to all; the disc injury and chronic pain; the secondary social consequences with effects on her partner and on her employment; and the current medico-legal matter. Her capacity to work in the community has become fundamentally affected due to her lack of trust, and to apprehensions about further episodes of physical complications from somatosensory re-experiencing.
1027 The principle psychiatric diagnosis made by Dr Fitch was PTSD with dissociation and she described this as a severe, persisting, chronic condition, with a significant and substantial permanent psychiatric impairment.
1028 In her report Dr Fitch addressed the circumstances of Ms Atoms' episode of back pain experienced in March 2013 - what has been described as the 'visceral flashback'. Dr Fitch noted in her report (exhibit 84, page 18) that Ms Atoms' signs and symptoms relating to her lumbar sacral disc injury during the flashback may seem perplexing to general, medical and surgical colleagues, but noted that:
...her body is still subject to recurrent re-firing of her traumatised neuro-circuitry. This is the nature of PTSD and is not under Ms Atoms' conscious control. It is termed 'somatosensory memory' in the psychiatric literature.
It has left her stuck, physically, emotionally and cognitively in an injurious segment of her life that is being replayed.
While this disc prolapse is healing, it is possible that the same injury could recur with further retriggering. She has made some progress with somatic bodywork and yoga which has demonstrated symptomatic benefit in PTSD. However, her main coping capacity is now avoidance and a severely limited daily routine.
1029 Dr Fitch also noted that the fact that her husband, Dr Cunningham, was also subject to the same incident meant that their relationship had been indelibly affected by the incident. When PTSD had such profound effects on physical and mental health, personhood, relationships, occupation and reputation, Dr Fitch said it was classified as an enduring personality change as a result of trauma. Ms Atoms' prognosis was poor given the intensity, duration and panoply of symptoms and the 'profound psycho-social consequences'.
1030 When asked about the prognosis and whether Ms Atoms' condition had now stabilised Dr Fitch reported (exhibit 84, page 20) (italics my emphasis):
Her condition has stabilised in that her diagnosis is clear chronic, severe and entrenched over a 7-year period. It will persist and not remit. It will fluctuate according to stressors and triggers.
The deterioration and development of physical complications with somatosensory flashbacks is an especially worrying sign. Chronic pain associated with triggering is a poor prognostic sign.
Despite Ms Atoms' optimism, I must provide the realistic and considered opinion that she will remain significantly psychiatrically symptomatic and disabled on an indefinite basis.
Patients with PTSD have a reduced quality of life, an increased number of suicides and hopsitalisations, high frequency of depressions and alcohol drug abuse; with profound effects on social, family life and work...
PTSD is now known to have long term effects on physical health, mental health and cognitive functioning...
1031 Dr Fitch also expressed concern that Ms Atoms' somatosensory flashbacks had the capacity to continue to re-injure her.
1032 Dr Fitch addressed Ms Atoms' capacity to work, noting 'she has had no real capacity to work or study since the disc protrusion' (exhibit 84, page 18). Dr Fitch also noted that Ms Atoms expressed her optimism about upcoming job opportunities and her hope that she would be able to return to her past occupational and personal capacities. However, Dr Fitch was of the view that the severity of the PTSD coupled with Ms Atoms' decimated personal and professional reputation, meant that such optimism had little bearing in reality.
1033 Dr Fitch's views about Ms Atoms reduced capacity to work because of the severity of the PTSD coupled with Ms Atoms' decimated personal and professional reputation, were portentous.
1034 After a year of applying for work, Ms Atoms was successful in obtaining employment at a public relations firm in March 2015 (exhibit 13, ts 206 and 207). Unfortunately, on her first day at the job she was asked if she was 'Dr Cunningham's wife' and when she said that she was, she was told 'I have read about you'. She was then told she was not required for work and that she was not the right 'cultural fit', a matter confirmed in a letter from the firm dated 8 March 2015 (ts 208, exhibit 14).
1035 After this Ms Atoms did a few hours of facilitation work funded by the City of Fremantle and was paid $700 (ts 209). She also started casual work as a cleaner for the body corporate of the residential property where she lives. She is paid $900 per month (ts 209, exhibit 15).
1036 Dr Lee did not see Ms Atoms again but on 6 November 2015 she provided a further medico-legal report after being provided with Dr Fitch's second report (exhibit 84). In her report of 6 November 2015 (exhibit 95), Dr Lee agreed with Dr Fitch's diagnosis of Acute Stress Disorder and PTSD. Dr Lee also agreed with Dr Fitch that Ms Atoms would fulfil the criteria for a chronic PTSD with dissociative symptoms.
1037 Dr Williams reviewed Ms Atoms on 2 September 2015 and prepared a report dated 22 September 2015 (exhibit 26). He recorded some improvement in the flexion of her spine. Dr Williams reviewed reports from both Dr Cairns and Dr Fitch noting that:
(a) Dr Cairns accepted that Ms Atoms' presentation related to the incident of injury in November 2008; and
(b) Dr Fitch's suggestion that Ms Atoms incurred the lumbosacral disc injury during a flashback associated muscle contraction.
1038 As to Dr Fitch's suggestion, Dr Williams opined as follows (exhibit 26 page 9):
...it is not clear to me that that is supported by the evidence as the most force this patient has had on her lumbosacral spine relates to the original assault of November 2008, and it was in March 2013 that she had further progression of disc symptoms and disc protrusion impinging on nerve roots and becoming sequestrated, and then subsequently being resorbed. I see the original incident being the trigger for the disc pathology at L4/5.
1039 In terms of Ms Atoms' disability of her thoracolumbar spine, Dr Williams was of the view she had a 15% - 20% disability, expressed as a percentage disability of the whole functional spine, noting that she has had an identified disc protrusion with a sequestrated disc. While the current MRI showed the sequestrated disc could not be identified (ie had disappeared), Dr Williams was of the view that there would be a progression of the disc pathology with the emergence of arthritic changes. In his opinion Ms Atoms would remain with a range of limitations with regard to the function of her thoracolumbar spine. At trial Dr Williams was of the view that the arthritic changes would inevitably occur in 5 - 10 years and he saw her prognosis as poor.
1040 Dr Cairns agreed at trial that there will be progression of the disc pathology with the emergence of arthritic changes, and that Ms Atoms will remain with a range of limitations with regard to thoracolumbar spinal function, but he was less pessimistic about when and even if the changes would occur. While he agreed that there was a risk that she may experience a worsening of her symptoms in the future, he did not agree that it was a significant risk. He first placed the risk at 50%, but then revised this to 'Thirty-thirty-thirty. She may stay the same, she may get slightly better, she may get worse' (ts 374).
1041 As to Ms Atoms' current back symptoms, her evidence was that she has negligible pain although she had the occasional gripping or spasm in the sacrum, and sometimes pain or cramping in the back of her leg (ts 206).
1042 In relation to her mental health, Ms Atoms is currently seeing another psychologist, Ms Karen Ingram (ts 187; exhibit 18).
1043 She finds herself in distressed states easily and startles easily, but then she considers she has made substantial progress in terms of her mental health. She bursts into tears easily (and I observed her in tears at various times during the trial, not just in the witness box). As she explained on the third day of the trial (ts 223):
I recognise that being in court is quite stressful and I recognise that I'm anxious and stressful currently, but in the last weeks and months I think that my mental health is very good. I still observe that I become distressed or stressed quite quickly. I startle quite quickly and I don't recover very well, so I might - if I can give an example?
Yes---When we left yesterday someone jumped out and pointed a camera at me and I burst into tears. It was extremely difficult. I shut down and asked them to please leave me alone. I just found myself in a very quickly distressed state. Otherwise I think I'm generally very good. I think I have excellent medical care at the moment. I have a very strong team of medical professionals around me and I feel like I've made substantial progress back to a good state of health. I am aware - it has been suggested to me by my psychologist that I can overestimate my health, so I try and express some level of caution in telling you about how well I believe I am.
Do you feel you have any particular limitations from an emotional or mental perspective---When I'm under stress I shake a lot and so I don't perform as well under - or I find situations that I didn't previously find stressful, I find them very stressful. For example, I've tried to return to study. In returning to study we were asked around the room to introduce ourselves and during that introduction I broke into tears. So I find things which I have previously found quite simple and straightforward to be more stressful and distressing, which I guess is a demonstration that I can overstate my state of health because I do say that I'm doing really well.
1044 Ms Atoms gave another indication of her current mental state when she said that she had recently become aware that 'I have been living with a sense of terror that I have been suppressing' (ts 261).
1045 In cross-examination Ms Atoms was asked whether she felt like she was confident of performing a job for which she was mentally capable and she answered 'no, I - I think I - I think I'm not quite up to where I would like to be' (ts 274). She also agreed she was aware she might be overestimating her capabilities (ts 274).
1046 The defendants do not dispute that Ms Atoms had a sequestered disc in 2013. What is in issue is whether this was caused by the incident of 2 November 2008 and, if I find that it was, what act or acts by the defendants caused this injury. Neither of these matters was pleaded, but since they were raised in closing submissions, I will address them.
1047 The submissions by the defendants were that there was no 'compelling evidence' that Ms Atoms' back problems relate to the events of 2 November 2008. I am unable to accept this. The evidence was that:
(a) Before the incident of 2 November 2008 Ms Atoms suffered no lower back symptoms. Those back symptoms which she suffered by reason of her scoliosis were of a different nature, in a different area of her spine;
(b) She suffered a violent physical experience in a number of ways on this night;
(c) After 2 November 2008, Ms Atoms began to suffer lower back symptoms and sciatica almost immediately (within a week); and
(d) Both Dr Williams and Dr Cairns were of the opinion that the cause of the problems with her back are the events of 2 November 2008.
1048 Dr Williams explained that the findings of the MRI scan taken on 3 April 2013 and the nature of the description of the disc fragment lying behind the L5 vertebral body facing the left lateral recess showed that it had been there for some time, and that didn't happen just recently (ts 291).
1049 Dr Williams also explained it is possible to have a disc protrusion and be asymptomic until some further event. In some cases the protrusion increases. In this case, the protrusion had not only increased, but it had sequestrated and broken off, going down behind the vertebrae (ts 291 - 292).
1050 Dr Williams was of the view that the sequestration may well have happened the day after the visceral flashback and it could have happened at both the psychological and physical level. He explained that Ms Atoms had been suffering back pain and neck pain but had made nothing of it and did not seek review. The pain which she then had in March 2013 related to the pathology of disc damage which had progressed over time (ts 336). Ms Atoms had a major avoidance characteristic, one pillar of PTSD which was a major component of Ms Atoms' response to her injury. She had a pathology in the disc which progressed over time and came to a point where she could no longer just deny its existence (ts 337 - 338). As Dr Williams explained it:
...we had a bulging disc, a bigger bulging disc and then the disc drops down behind the next vertebra so that may well have been a progression into the pathology. But don't underestimate the psychological issues, they are fierce in terms of the effect of that post-traumatic stress on her behaviour and her coping and so on.
1051 While in order to change the anatomy there needed to be something to have happened to the spine, not just contraction of muscles and feeling tight, Dr Williams stated (ts 340):
...But remember, she's had it for some time and that protrusion was significant. It's a big protrusion, very big. So she mightn't have had much force, it might've just picked the day to progress and pop out a little more. So it doesn't have to have a significant physical incident on that day because we're not dealing with a normal disc that pops out into protrusion, we're dealing with a disc that's already protruded and there's some progression. So we don't even have to allocate significant forces.
There mightn't have been much force---Mightn't have been much force because it was just waiting to happen.
1052 Dr Williams was asked in cross-examination whether he might be more confident in making a link between the issues with the disc in 2013 and the November 2008 incident if Ms Atoms had presented with symptoms closer in time. Dr Williams disagreed with this, explaining that it did not always happen ts 342):
No, it doesn't always happen. Sometimes it's dramatic and clear and the person reports it to the GP, and as I said, in the workers' compensation system this wouldn't have happened because you have to have a definitive statement at the end of 12 months of what the injury consequences are and where you're going, and with her not being in a system no one followed things through and she had this dissociation that wanted her to not bring up the injury incident. So those two factors led to her wobbling through these years without appropriate early assessment and management.
1053 Dr Cairns also gave evidence that if Ms Atoms' disc structure was damaged on 2 November 2008, this could result in segmental instability where the relationship of the two vertebrae adjacent to the damaged disc is disturbed. Mechanical instability at one or more levels can be the source of low back pain. Then, as the disc pathology progresses, more bulging or splitting of the disc casing occurs, which allows a chemical reaction to occur. That could lead to a recurrent and ongoing source of symptoms over the ensuing interval of time until there was another mechanical stress placed on this basic pathology and the disc bulge is increased (ts 351-352 and 353).
1054 Dr Cairns was of the view, in relation to the March 2013 flashback, that there was a fundamental pathology there, subjected to some form of stress or other, which precipitated the extension or aggravation of the underlying situation. He agreed that with respect to disc injuries they were notoriously unpredictable. Some people may have underlying pathology and can be completely asymptomatic, some people will develop pathology which will become symptomatic for no particular reason and there are some people who would have an underlying pathology and then something else, some other physical trauma, even a light trauma could cause it to become symptomatic from previously being asymptomatic (ts 358).
1055 Dr Cairns in his report (exhibit 27) did note concern with the fact that in the medical notes he had been provided from the Leeuwin Medical Group, the first entry of any complaint of back pain made by Ms Atoms was 5 April 2013. However, the history provided by Ms Atoms to Dr Cairns was (exhibit 27, second page) that:
(a) In the days following the assault she became aware of left ankle pain and soreness across the lumbosacral level of her back.
(b) She suffered an 'aggravation' following an episode of flashback in or about March 2013.
(c) She did not seek treatment for her injuries for a long period.
(d) Despite the first entry about back pain recorded in the Leeuwin Medical Group notes being 5 April 2013, she had in fact complained to doctors about her back before this time.
(e) She was picked up by two police and also dropped by at least one of them. She felt like she was being picked up like a dead weight.
1056 Dr Cairns in his report (exhibit 27) and evidence at trial (ts 356 - 357) confirmed that on the basis of the history provided by Ms Atoms her back problems do result from the November 2008 incident. He also confirmed at trial that the records of the physiotherapist, David Dawes (exhibits 28 and 29) recording intermittent lower back and leg pain were consistent with the history given to him by Ms Atoms and the sort of thing he would expect her to have been experiencing at that time (ts 361 - 367). Dr Cairns also confirmed that he would not have made any comments about concern in his report if he had seen those records (ts 377).
1057 I accept Ms Atoms' evidence about the symptoms from which she suffered following the incident, including her intermittent lower back pain and sciatica. I accept that she did not initially seek treatment for her back and that when she did, in 2009, she sought help from chiropractors and physiotherapists. A medical specialist like Dr Cairns may not consider that to be seeking medical treatment - it might not be considered to be conventional medical treatment, or treatment from a 'doctor'. However, this was the treatment which Ms Atoms had sought in the past for her scoliosis symptoms, and this is the treatment she sought before the visceral flashback in March 2013. After this, she had to resort to conventional medical treatment and required prescribed medication for the pain. As Dr Williams explained it, she never hid from people that she had some back pain and leg pain, and people knew she had that pain but made nothing of it and did not seek review (ts 335 - 336).
1058 I find from all of the evidence, including the expert evidence from each of the medical witnesses, Dr Williams and Dr Cairns, that the cause of Ms Atoms' back problems, including the sequestered disc, is the incident of the night of 2 November 2008.
1059 As to which of the defendants' acts on this night caused these back problems, Dr Cairns was not asked about this, however, Dr Williams underwent extensive cross-examination on this topic (ts 318 - 323). (I should note that he was taken by surprise about this; it was not something he had previously been asked when providing his reports. This was, of course, because this was not a matter previously raised or pleaded by any of the defendants.)
1060 Dr Williams advised that a well-known disc injury mechanism was flexion and extension. In Dr Williams' opinion, being pulled and then pushed backwards (which was the history provided by Ms Atoms as I have set out in [1014] above and is consistent with the CCTV footage, as I have found in [228] above), could have been a factor that damaged the disc, as it involved flexion and extension. The injury did not just depend on the force used. Other factors included whether Ms Atoms protected her spine with her own muscles, and whether she was alert and contracting and aware of it, because that was helpful to protect herself from the forces of flexion and extension. Dr Williams saw the pulling and pushing as consistent with damage to the disc. So too was being lifted up and then dropped on her side (which is consistent with the history given by Ms Atoms and her evidence at trial as I have set out in [719] above). Finally, Dr Williams was of the view that the application of the taser to Ms Atoms' back was a possible cause if there was some flexion with that instant of her spine or some element of stress on the spine.
1061 In light of the evidence from Dr Williams I consider I am able to discount Officer Traynor's battery (ie his grabbing of Ms Atoms on the footpath) as a contributing cause of Ms Atoms' back injury. I am not, however, able to discount either Officer Clark's battery of Ms Atoms or Mr Caldwell's tasering of her as a cause or contributing causes of her back injury.
1062 In my view, Ms Atoms suffered a violent physical experience in a number of ways on this night. She was pulled and pushed away by Officer Clark. She was tasered to her lower back by Mr Caldwell (which including going to the ground after being tasered and experiencing pain in her lower back when the taser prongs were removed). She was also roughly manhandled when she was picked up by unknown police officers and let go, falling back onto the ground, and then picked up by her wrists in order to be placed into the police van. It is not possible, on the evidence, to disentangle the effects of each of these events on Ms Atoms' lumbar spine. I am satisfied that all of these events combined to materially contribute to Ms Atoms' back injury.
1063 The malicious prosecution obviously played no part in Ms Atoms' back injury, which will be relevant when apportioning damages.
1064 When Ms Atoms recounted the events of the night to each of the psychiatrists, Dr Fitch and Dr Lee, she started with the officer who told her to get out of Fremantle and grabbed her. She then described how she saw police being violent towards her husband (Dr Fitch's report exhibit 83, page 7; Dr Lee's report exhibit 94, second page), followed by the tasering and other events of the night. It is apparent from the reports of Dr Fitch and Dr Lee that Ms Atoms was also affected by the prosecution of the criminal charge against her.
1065 Each different defendant did different things in manhandling, tasering, arresting Ms Atoms, depriving her of her liberty and then initiating and maintaining the criminal charge against her. The psychiatrists have not sought to segregate the individual components, nor have the defendants.
1066 The issue is whether it is possible to disentangle the effects of each of the torts in this case.
1067 I have already found that Officer Traynor's battery of Ms Atoms played no role in her back injury. In my view, if the only thing which had happened that night was this grabbing, it is most unlikely that she would have developed any symptoms of PTSD or Acute Stress Disorder or depression as identified by Dr Fitch and Dr Lee.
1068 I find that the real trauma for Ms Atoms began with the violent arrest of Dr Cunningham, closely followed by Officer Clark's battery and then her tasering by Mr Caldwell. I am satisfied that the latter two torts and all of the torts against Ms Atoms which followed, including the malicious prosecution, combined to cause to Ms Atoms' mental conditions.
1069 In the same way as I have already observed when considering the contribution of all defendants to the damages of Dr Cunningham, each of Officer Clark's battery of Ms Atoms, Mr Caldwell's tasering of her and the battery for which the State is liable in relation to how Ms Atoms was handled after the tasering and placed into the police van ('the battery after the tasering'), form part of the claim against the State for false imprisonment. In my view it is also impossible to disentangle the traumatic (mental) effects of the false imprisonment from the effects of the malicious prosecution.
1070 For these reasons I will first assess Ms Atoms' general damages. I will first make a stand - alone assessment of general damages for the battery by Officer Traynor, followed by an assessment for the balance of Ms Atoms' damages. In that assessment I will do my best to apportion general damages between the following events:
(a) Officer Clark's battery of Ms Atoms (for which the State is liable);
1071 For Officer Traynor's battery of Ms Atoms, as I have found the second grab in particular was aggressive and forceful.
1072 Ms Atoms suggested in her evidence that Officer Traynor's grabbing of her caused bruising. There is certainly evidence that Ms Atoms did suffer bruising on her left wrist and forearm as shown in a photograph taken on 8 November 2016 (exhibit 17.20). However, Officer Traynor's grabbing of Ms Atoms as shown on the CCTV was a grab of her right arm on each occasion. Officer Traynor did subsequently hold her left arm (see [203] above), however, other police officers later grabbed her by the wrist in order to lift her up and place her in the police van. In the circumstances I am unable to be satisfied that Officer Traynor caused the bruising to Ms Atoms' left wrist and forearm.
1073 The amount I award for the battery of Ms Atoms by Officer Traynor is therefore $1,000.
1074 For everything which followed, the damages suffered by Ms Atoms are considerable. Ms Atoms' quality of life has been severely affected by her psychiatric distress and by the pain from her back injury. I have already canvassed the nature and extent of her injuries, both mental and physical, and surveyed the medical evidence.
1075 In my assessment a significant award is warranted for the back injury alone, having regard to her ongoing pain, most significantly between March 2013 and March 2014. She has been left with altered mechanics in the L4/5 level of her spine, and as Dr Cairns put it, Ms Atoms will remain with a range of limitations with regard to thoracolumbar spinal function. There will be arthritic changes in that level of her spine, which may lead to further problems in the future.
1076 Ms Atoms' psychiatric injuries have also had a significant effect upon her. She has suffered severe and chronic PTSD, symptoms of which still persist. With the resolution of these proceedings, time and also treatment, she may achieve some improvement in her residual symptoms, however, there is the real risk of an increase in symptoms from time to time in the future, triggered by stressful events in her life and any future back problems. As Dr Fitch explained in her evidence, there will be an interplay between pain in her back and her symptoms of PTSD, and it is hard to manage pain if one's nervous system is on 'high alert'. If the pain has emotional triggers to PTSD then it will intensify and perpetuate it (ts 788-789).
1077 In the circumstances of this case I consider an appropriate award for general damages (non-pecuniary loss) is $135,000. Doing the best I can and taking into account my findings on causation, I will apportion $30,000 each to Officer Clark's battery, the tasering, the battery after the tasering and the false imprisonment, and $15,000 for the malicious prosecution.
1078 This allocation between defendants is in different proportions to Dr Cunningham's damages. My view from all of the evidence is that while it made a material contribution to Ms Atoms' mental suffering, the effects of the malicious prosecution have been less significant than the other torts, and also comparatively less significant for Ms Atoms than it was for Dr Cunningham as a lawyer. In addition, as I have found, the malicious prosecution is not a contributing cause to Ms Atoms' back injury.
1079 With the $1,000 damages for Officer Traynor's battery of Ms Atoms, the total of general damages is $136,000.
1080 In my view Ms Atoms is also entitled to an award for aggravated damages. Like Dr Cunningham, her conduct on this night was under continual criticism throughout the whole trial (see [914] to [915] above). In Ms Atoms' case it was also suggested that she should not have stopped to help the man who had fallen into the bushes, and she should have just left when the police arrived.
1081 Dr Lee in her evidence was of the opinion that the failure of the police or the State to accept responsibility for what occurred to Ms Atoms would 'increase her sense of lack of agency and ... helplessness in this situation' and may negatively impact on her recovery' (ts 1555). There was also this evidence from Dr Lee (ts 1556):
... if I ask you to assume that throughout these proceedings the police officers in question and the State have continued to assert or maintain that Ms Atoms herself did something wrong on the night in question which led to the events that she described to you, is that similarly something you would expect to have an adverse impact upon her psychiatric condition and improvement---The whole medical legal - the whole legal process is a constant stressor for her.
1082 It is a general principle, of course, that damages cannot be recovered for the general stresses of litigation: Duvall v Godfrey Virtue & Co (a firm) [2001] WASCA 163 [30] and [40]. However, the way the defendants chose to run this case at trial, as I have already noted when discussing this in the context of Dr Cunningham's claim for aggravated damages has, in my view, led to additional suffering for Ms Atoms which has exceeded the usual general stresses of litigation, and increased the injury to her feelings. Following the authorities I have set out in [823] and [824], I consider this should be the subject of an award of aggravated damages.
1083 Further, despite not pleading any issue of causation in relation to her PTSD, Ms Atoms was subjected to cross-examination on a number of matters. Counsel for the State submitted that (ts 1636):
... Ms Atoms clearly suffered PTSD as a result of the incident. And despite what I would say was appropriate exploration of matters, given what was in the documents, no other trauma that would give rise to PTSD was identified. It was appropriate, in my submission, to explore those issues.
1084 These issues which were explored in cross-examination included:
(a) a previous accident in a playground in 2005 where she hit her head (ts 246 - 248 and ts 481 - 485), with a suggestion in a psychologist's note that it had been suggested Ms Atoms had suffered PTSD following that accident;
(b) intimate details of her relationship with Dr Cunningham and her reactions when she and Dr Cunningham separated in 2009 (ts 250 - 255), and
(c) other matters which I have set out in the Schedule (par [20] onwards).
1085 In my view the cross-examination of Ms Atoms on these matters was neither appropriate nor justified, and it was a further demonstration of the defendants' ill will towards Ms Atoms. On the medical evidence, including in particular that from Dr Lee who was called by the State, there was no issue about causation of Ms Atoms' PTSD. Further, it is a well-established principle that a defendant must take his victim as he finds her and pay damages accordingly: Shorey v PT Ltd [44], [46]; Watts v Rake; Purkess v Crittenden.
1086 In the particular circumstances of this case I am satisfied that the cross-examination of Ms Atoms on these matters added to Ms Atoms' suffering and the injury to her feelings as a consequence of the defendants' torts.
1087 In Ms Atoms' case, to properly give effect to the matters of aggravation I have identified, I make an award for aggravated damages of $20,000.
1088 For the same reasons I have set out in relation to Dr Cunningham, I also consider an award of exemplary damages is appropriate, in the same amount of $10,000.
1089 Special damages are claimed in the sum of $7,978.50 for past medical and expenses and $5,000 for pharmacy costs, travel and 'gap' fees. These amounts are not disputed by the defendants and I will allow them.
1090 As to future expenses, there have been recommendations and estimates made by Dr Fitch in her second report (exhibit 84). The costs set out in Dr Fitch's report are $2,500 per annum for GP costs, $3,000 per annum for the costs of a clinical psychologist and trauma specialist - what has been referred to as psychotherapy, $1,500 per annum for the costs of a psychiatrist, $10,400 per annum for somatic integrative and expressive therapies (such as massage, yoga and mindfulness meditation), and $10,000 per annum for hospitalization and 'higher order care', should Ms Atoms deteriorate. The annual treatment costs are estimated at '$17,400 plus or minus $10,000 'indefinitely'.
1091 It is clear from Dr Fitch's report (including the matters I have set out in [1030] above) that this is for comprehensive medical care for both her mental and physical health.
1092 The sum of $265,000 is claimed for future expenses, calculated by taking an annual figure of $20,000 or $384 per week and applying the multiplier for 43 years (the current life expectancy of a female of Ms Atoms' age), which multiplier is 822. This produces, on the calculations set out in the Further Amended Particulars of Damage, a total of $315,648 but this has been reduced to $265,000.
1093 The defendants have disputed these costs on the basis that the more conservative treatment as recommended by Dr Lee should be accepted. In her second report (exhibit 95, page 4), Dr Lee held a more optimistic view of the future prognosis for Ms Atoms, stating that the trajectory of trauma experience is that it improves with time. This was based upon published research and studies, and Dr Lee explained it is a 'general understanding of the prognosis of PTSD'. She was of the opinion that Ms Atoms would only need intensive psychotherapy (once or twice a week) for a year, and then the sessions could be tapered to 2 - 3 times per year. The frequency of sessions may vary, depending on the life stressors. Dr Lee was also of the view that hospitalization costs were likely to be unnecessary.
1094 Dr Fitch is a very experienced psychiatrist, who qualified in 1994 and PTSD is a particular area of expertise and interest for her. Dr Lee is less experienced (six years post qualification at the time of trial) and acknowledged Dr Fitch's expertise and the regard with which she is held in the medical profession (ts 1551). Dr Lee also agreed during the course of her evidence at trial that:
(a) The more severe the trauma, the more likely that improvement would take a protracted course (ts 1539).
(b) Ms Atoms had not had the usual expected trajectory of a PTSD condition (ts 1540).
(c) Ms Atoms had a co-morbid back injury which does complicate her recovery and that is why her PTSD symptoms have been more protracted than normal (ts 1549).
(d) Having a prior psychiatric condition makes Ms Atoms vulnerable to developing psychiatric complications from any chronic pain (ts 1550).
(e) People who have PTSD have been found to have a lower immune response (ts 1559).
(f) In addition to psychotherapy, Ms Atoms warrants a review by a psychiatrist, on a three month or six monthly basis (ts 1559).
(g) As Ms Atoms has found the somatic integrative treatments (yoga, mindfulness mediation and so on) helpful, Dr Lee would certainly encourage that treatment. Dr Lee saw mindfulness as part of the psychotherapy which Ms Atoms should receive (ts 1560).
1095 This is a situation where I accept part, but not all, of each of Dr Fitch's and Dr Lee's evidence and I have taken a view of Ms Atoms' future treatment needs which does not exactly represent what either of the medical experts has said.
1096 In my view there should be provision for some future medical care for Ms Atoms (ie physical, psychological and psychiatric) however, I am not prepared to allow the amount claimed based on the estimated costs of treatment set out by Dr Fitch for the following reasons:
(a) First, it is relevant to take into account the quantum for past expenses and that, with the treatment she has undergone, Ms Atoms has achieved some improvement.
(b) Secondly, with the resolution of these proceedings and further treatment there should be some improvement again. There should, however, be an allowance for treatment for Ms Atoms' PTSD for between one to three years (the first year requiring the most intensive treatment as Dr Lee has advised).
(c) Thirdly, while Ms Atoms may, from time to time, require increased visits to her GP and other practitioners because of the injuries she suffered in this incident, this is unlikely to be at a constant throughout her life time.
(d) Fourthly, I need to take into account the likelihood that, even without this incident and the injuries she has suffered, Ms Atoms would require comprehensive medical treatment as she aged, in any event.
(e) Finally, I am not satisfied that the costs of future hospital treatment should be allowed, given that Ms Atoms has not previously required hospitalisation, even when her PTSD was at its most severe.
1097 Dealing first with GP costs, Dr Fitch allowed for 12 visits a year at $175 per hour (I assume that is per visit) which equates to $2,100, but also made allowance for 'annual blood tests for complications'. In my view 12 visits per year for Ms Atoms' life time is not warranted. I will allow 12 visits a year for the next 3 years, which in my view is the period when she will be most in need of regular review. This equates to $5,798.57 ($40.38 per week, applying the multiplier for three years of 143.6), which I will round up to $6,000. I will allow a global amount thereafter of $10,000. The amount I will allow for GP costs is therefore $16,000.
1098 The next item I will allow is the costs of psychotherapy. Dr Fitch calculated a sum of $3,000 based on 6 visits a year, which equates to a cost of $500 per visit, and Dr Lee agreed with that cost. I wil allow for intensive psychotherapy twice a week for one year ($52,000), then once a week for the next year, to allow for tapering off as recommended by Dr Lee ($26,000) and then three visits for the third year ($1,500). I do not propose to apply any multiplier for these next three years to allow for the possibility that the tapering process may take a little longer. I will then allow a global amount of $20,000 for future psychotherapy, accepting that Ms Atoms' needs after these three years or so should be only on an infrequent basis in the event of a particular stressor or trigger. The amount I allow for psychotherapy is $99,500.
1099 Both psychiatrists agree that Ms Atoms should be reviewed by a psychiatrist. Dr Fitch's allowance of $1,500 per annum was based on four visits per year at a cost of approximately $360 per visit. I will allow this for three years (to coincide with Ms Atoms' psychotherapy needs). The amount I will allow for three years is $4,165 ($29 per week x the multiplier for three years, 143.6). I will allow a global amount of $10,000 for the cost of a psychiatrist thereafter. That produces a total for future psychiatric costs of $14,165.
1100 Both psychiatrists agree that an allowance should be made for somatic integrative and expressive therapies (such as massage, yoga and mindfulness mediation). Dr Fitch's allowance was $10,400 per annum at a cost of $100 per session at least twice weekly. Given that Ms Atoms was already practicing yoga and mindfulness for her pre-existing scoliosis condition and that is her established pattern which she is likely to have continued in any event, I do not consider it appropriate to allow all of this cost for her lifetime. To the extent that her need for sessions like this has been increased, I will allow one session per week for the next three years, and a global amount thereafter. For the next three years I will allow $15,000 ($100 x the multiplier for three years, 143.6, rounded up). The global amount I will allow for the period thereafter is $30,000. That is a total of $45,000 for these therapies.
1101 The total amount I will allow for future costs, adding the amounts in [1097] - [1100] above, is $174,665. This amount should be apportioned in the same way as I have apportioned Ms Atoms' general damages.
1102 Following the trial, with my leave and after consultation with the solicitors for the defendants, the solicitors for the plaintiffs filed Further Amended Particulars of Damage dated 6 May 2016. A further amended version of this document was filed at my invitation when I found some errors in the calculations for past loss of superannuation. Unfortunately, the Further Amended Particulars of Damage dated 29 November 2016 still contains errors (including a further error I failed to pick up earlier). I correct these errors below (and these are indicated where they appear).
1103 There is some dispute both as to Ms Atoms' claim for past loss, which has been calculated to 3 May 2016, and her claim for future earning capacity.
1104 The Further Amended Particulars of Damage have stated that 3 May 2016 was selected as a convenient date from which to distinguish past from future loss, since it reflects the anniversary date in the calculation of past loss, and is a date falling between the completion of the trial and the delivery of judgment. Future loss has then been calculated from 3 May 2016.
1105 It has been submitted in the Further Amended Particulars of Damage that although judgment will be delivered after 3 May 2016, to adjust these figures to reflect that fact should, in principle, result in some part of the future loss being added to past loss, so that the ultimate result is the same. In any event, given the nature of the calculations, any difference between the two methodologies is likely to be insignificant and in the nature of tinkering.
1106 It is sensible, in my view, to adopt the date of 3 May 2016 for the purpose of calculations and I agree with the reasoning expressed in the Further Amended Particulars of Damage on this issue.
1107 It does need to be remembered that I am assessing loss of earning capacity, and not loss of earnings. An assessment of loss of earning capacity does not strictly turn on a precise mathematical calculation. Earning capacity is an intangible asset and the assessment of damages for its loss is not an exact science. It is governed by considerations of practical common sense in the context of the facts of the particular case: Medlin v State Government Insurance Commission (1995) 182 CLR 116); Montemaggiori v Wilson [2011] WASCA 177 [28] (Buss and Newnes JJA).
1108 Ms Atoms' earning capacity, but for her injuries, is demonstrated by the income she received while was able to manage her employment at the Water Corporation (which varied from time to time), and also her earnings from Parsons Brinkerhoff Australia.
1109 For past loss of earning capacity, Ms Atoms has claimed loss of income for the four-week period 17 December 2008 - 16 January 2009 when she arranged with the Water Corporation to have four weeks off without pay, calculated as follows:
Plus superannuation at 9% of gross salary or $128.43 per week:
1110 I am satisfied from both the evidence of Ms Atoms and the evidence of the psychiatrists, Dr Fitch and Dr Lee, that Ms Atoms' PTSD was affecting her day to day functioning, including her functioning at work during this time.
1111 After Ms Atoms ceased work at the Water Corporation in July 2010, she was paid out on her contract until 16 November 2010. At the time her income was $87,336 gross ($1,679.54 gross per week; $1,254.54 net per week).
1112 On 17 August 2010 she started part-time work two days per week with the City of Swan on a 12-month contract, earning approximately $561.54 gross ($497.54 net) per week. I find that she was not able to work more than on a part-time basis at this stage.
1113 Ms Atoms has claimed the difference between her earnings at the City of Swan and the amount she would have earned if she had been able to work full-time from 17 November 2010 to 9 August 2011, taking her earnings at the Water Corporation as the measure of her full-time earning capacity. The loss for this period in the Further Amended Particulars of Damage contains an arithmetical error in the calculation for superannuation. I have re-calculated this follows.
1114 The submission from counsel for the State (on behalf of all defendants) was that this portion of her claim should not be allowed because Ms Atoms' employment at the Water Corporation ended because of a personality or character clash between Ms Atoms and her manager, not psychological or physical issues (ts 1647).
1115 In light of all of the evidence, but in particular the evidence which I have set out in [954] - [957] and [960] - [964], the evidence from Dr Fitch which I have set out in [983] and [984], and the evidence from Dr Lee in [962], [963] and [1022] above, I am satisfied that the PTSD from which Ms Atoms undoubtedly suffered while she was working at the Water Coproration was a material contributing cause to the termination of her employment there. While Ms Atoms might have thought at the time she was working well, clearly her functioning was impaired and her work performance was below capacity. The difficulties Ms Atoms had at the time with her manager may also be explained by the symptoms of PTSD. In my view the claim for the period after the end of her contract with the Water Corporation is reasonable and I will allow it.
1116 From 9 August 2011 to 6 March 2012 Ms Atoms was unemployed. She claims an income loss of $757 per week for this 30 week period. (I have corrected an arithmetical error in the calculation of superannuation).
1117 These calculations take into account that Ms Atoms was capable of the work she was doing on a part-time basis at the City of Swan, but she left that job to seek more challenging work. Of course, while she believed she was capable of more challenging work, in light of the evidence from Dr Fitch and Dr Lee, her symptoms of PTSD and depression affected Ms Atoms' function and ability to work. Thus the claim for this period does reflect that she had some retained earning capacity for work such as that she had being doing at the City of Swan. I consider that this is reasonable and I will allow it.
1118 In addition to these claims Ms Atoms has made a claim for loss of income as a tutor and casual lecturer at Murdoch University. She has claimed an amount of $30,000, based on $10,000 per year for three years from 2009 to 6 March 2012. Her actual earnings from the University for the year ending 30 June 2009 were $15,856 gross and $12,904 net (exhibit 1, tab 26 and tab 47). That was for half a year's work (from August to December), however, this included her work as a research officer.
1119 The defendants have disputed this claim on the basis of other evidence from Ms Atoms that she had not approached Murdoch University for this additional work (ts 127). That evidence must be looked at in context. She did not approach Murdoch University because she was unwell, her work was poor and in her words 'she let a lot of things go' (ts 127). Thus the reason why Ms Atoms did not approach Murdoch University was because of the injuries she suffered as a result of the events of 2 November 2008.
1120 While I am satisfied that she would have approached the university had she not been injured, that does not mean that she should succeed in this claim. Ms Atoms' claim is in the nature of a claim for loss of a chance based on a hypothetical event. While I can take account of future or hypothetical events in assessing damages, I can only do so in terms of the degree of probability of those events occurring: Montemaggiori v Wilson [30]. The difficulty with Ms Atoms' claim is that there is evidence, in an email from the Employee Services Officer at the University (exhibit 1, tab 47, page 212) that Ms Atoms' jobs were causal positions and there would be no expectation that this work would continue past the end date of her contract (which was December 2008). I also have no information about her likely hours (particularly given she would be working full time for the Water Corporation, and also studying). In my view, the probability that, had Ms Atoms not been injured, she would have both obtained and sustained work lecturing and tutoring for three years is low, although I do not consider it to be so low as to be speculative: Montemaggiori v Wilson; Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638, 643. Accordingly, to reflect my assessment of the degree of probability at about 25%, I will allow this claim in an amount of $7,500.
1121 On 6 March 2012 Ms Atoms commenced work at Parsons Brinckerhoff as a full-time employee earning approximately $120,000 gross or $85,000 net per annum ($2,307.69 gross per week; $1,634.69 net per week). As a result of the problems with her back she ceased working with Parsons Brinckerhoff on 3 May 2013 and has since been unable to find suitable employment.
1122 It is an agreed fact (as set out in the Further Amended Particulars of Damage) that Ms Atoms received an employment termination payment for net amount of $5,091 ($7,432 gross of which $2,341 was tax withheld). Ms Atoms' claim for past loss of income from 3 May 2013 to 3 May 2015 is calculated to take into account this termination payment:
Less 15% for administration costs ($3,239.96) $18,359.80
1123 In respect of this part of the claim for loss of earning capacity, the defendants have submitted that Ms Atoms made an informed choice to accept a redundancy package. Her employer could not have sacked her or made her redundant because of her back problems and 'people get sick, have injuries and take time off work' (ts 1650).
1124 In my view these submissions ignore the complexities of Ms Atoms's injuries. While Ms Atoms believed that she would recover from her back injuries (ts 271), she was not just someone who was suffering from back problems. She was suffering from chronic and severe symptoms of PTSD and depression and when she suffered her disc protrusion, this exacerbated her symptoms. The medical evidence from Dr Fitch is that Ms Atoms was not fit for work following the disc protrusion (see [1032] above). The evidence from Ms Atoms was that (ts 204):
Parsons Brinckerhoff lost confidence in - expressed - they expressed uncertainty about my capacity and they expressed a preference to put someone else in - in my place. I was given the opportunity - I was given two weeks' opportunity to come up with other work. As a consultant, we're expected to have a projection of a pipeline of work but that project had been our major focus for quite some time. I had no other pipeline of work that I could give to them and they offered me redundancy.
1125 It was in this context that Ms Atoms accepted the redundancy package. Her acceptance of redundancy is, in my view, explicable by Ms Atoms' mental state - a similar situation to that involving the Water Corporation, as discussed by Dr Lee (see [963] above). I am satisfied, based on all of the medical evidence, that Ms Atoms was not fit for work between 3 May 2013 to 3 May 2015 and I will allow the claim for this period as set out in [1123].
1126 Since 3 May 2015 Ms Atoms has been working as a cleaner receiving $900 per month ($225 per week) (exhibit 15, ts 209 - 210). Ms Atoms therefore claims a past loss of income from 3 May 2015 to say 3 May 2016. (There is an arithmetical error in the first part of this calculation in the Further Amended Particulars of Damage page 6, which I have corrected as indicated by striking through and underlining):
Less 15% for administration costs ($1,462.03) $8,284.85
1127 In my view, this is a reasonable claim, and I will allow it.
1128 Adding the amounts in [1109], [1113], [1116], [1120], [1122] and [1126] above gives a total of $334,520.11. In the Further Amended Particulars of Damage, the total as calculated is $305,858.37, and the claim has been limited to $300,000.
1129 I should record that there is no claim for interest on past losses, in either the pleadings or the Further Amended Particulars of Damage.
1130 Dr Williams was of the opinion that Ms Atoms could not currently physically handle a desk job. She did, however, have the potential with the physical rehabilitation and appropriate psychological care and management. In cross-examination he said that she had a current work capacity to undertake light sedentary work, but she would need work conditioning and any work would have to start on a part-time basis and work up to full-time over 6 - 12 months. However this was on the current physical consequences alone (ts 345).
1131 In his report Dr Cairns stated that Ms Atoms was partially incapacitated for work. At trial he explained that reference to partial incapacity would be a combination of both the duties she can perform and the hours she can work. But with suitability of work and improvement in other areas (namely her psychological difficulties) he would anticipate she would be capable of full-time employment of a suitable light manual nature (ts 375). He was not able to put any timeframe as to when she might become suitable for full-time work of that nature mainly because of Ms Atoms' psychological difficulties. Dr Cairns expressed the professional opinion that if Ms Atoms' difficulties arising from the experience mitigated, then her physical impairment would not prevent her from working full-time in suitable employment, but he had no professional ability to predict when the other factors might be adequately addressed and to him that was, as he put it, the winning factor (ts 375).
1132 From a psychiatric point of view I have set out in [1032] above Fitch's views on Ms Atoms' capacity for work as at the time of her second review of Ms Atoms. Dr Lee in her report and in her evidence at trial agreed that while Ms Atoms is enthusiastic for a return to work, she may not have good insight into her ability to work. Dr Lee thought Ms Atoms was improving and while she may take more time than one would expect, if she was going to have more ongoing therapy, one of the goals would be to at least try and attempt to return to work (ts 1542).
1133 In the Further Amended Particulars of Damage there is a claim for two further years in the sum of $167,269.84 and then a 'capital amount' of $300,000 for future loss of earning capacity.
1134 In my view the claim for loss for the first two years is reasonable, based on the fact that Ms Atoms will likely be unable to regain her full-time working capacity while she undergoes treatment for her PTSD. This is consistent with my assessment of Ms Atoms' claim for special damages, that Ms Atoms will require treatment for her PTSD for between one to three years (the first year requiring the most intensive treatment).
1135 The first two years of future income loss, plus loss of superannuation is calculated using the same figures as for past loss:
Less 15% for administration costs ($3,330) $18,869.84.
1136 In my view, it is appropriate to recalculate these to apply the 6% multiplier for two years (98.5). My calculation is as follows:
1137 As to the claimed loss after the first two years of $300,000, it has not been explained to me how this figure has been arrived at, however, in submissions I was informed this was to reflect the issues identified by the medical experts, particularly Dr Williams and Dr Cairns, and it was calculated on the basis of 'a 15% loss after the next two years' (ts 1952). In the Further Amended Particulars of Damage (page 7) the following is stated:
Given the nature of this aspect of the claim, the second plaintiff has not proposed to apply any discount for contingencies. However, if a deduction were to be made, the second plaintiff would invite the court to apply a discount of 5%, which the second plaintiff says is the accepted rate applied in this State. Applying a discount of 5% would reduce this figure to $285,000.
1138 The way this has been approached and the lack of information provided to me as to how the $300,000 has been calculated, has really not been helpful. The defendants, while conceding that some allowance should be made for reduced earning capacity because of the risk of future back problems (ts 1651), have submitted simply that the claim should be less, without providing any calculations or alternative assessment.
1139 I have tested the claimed amount by calculating future loss of earning capacity in the following ways.
1140 First, I have assumed a future earning capacity after the first two years of 85% of her net weekly earnings from Parsons Brinckerhoff of $1,634.69 - in other words, a 15% loss of earning capacity as submitted to me. Thus her net weekly loss is $245.21. I have applied the appropriate multiplier for 22 years (to age 67) less the multiplier for two years (647 - 98.5 = 548.5) and no further discount for contingencies. The 85% assumes that after two years she will effectively regain her pre-incident earning capacity, but it allows for periods of unemployment and the chance that, while she will generally be able to work on a full-time basis, she will be unable to obtain similarly remunerative work. This produces a total of $134,498, to which should be added superannuation.
1141 I have calculated future loss of superannuation using the same assumption of a 15% loss. Based on Ms Atoms' gross weekly wage from Parson Brinckerhoff $2,307.69, her gross loss is $346.15 per week.
1142 Using this first method of calculation produces a total for future loss of earning capacity of $150,406 ($134,498 plus $15,908).
1143 Secondly, I have assumed that after two years, Ms Atoms will be able to work full-time but that because of her injuries she will have to stop work or retire at age 60, rather than age 67. In other words, this assumes that in 15 years hence, Ms Atoms will be unable to work at all. I have used the net weekly earnings of $1,634.69 but applied a multiplier of 125.25. I have arrived at this multiplier by applying the multiplier of 548.5 (see [1140 above]), less 423.3 (which is the multiplier to age 60 or 15 years, 521.8, less the multiplier for two years ie 521.8 - 98.5 = 423.3). This produces a total of $204,745.
1144 In my view this should be discounted for contingencies. Applying what the plaintiffs' solicitors have said is the usual discount 5% produces an amount of $194,508, to which superannuation should be added.
1145 There is, however, authority that for future loss like this, a discount for contingencies of 10% is appropriate: Brocx v Mounsey [2010] WASCA 196 [61] - [70]; Transfield Services (Australia) Pty Ltd v Wieland [2014] WASCA 41 [26] - [28]. I consider it appropriate to apply a discount of 10% in this case to reflect the possibility that even if Ms Atoms is forced to retire at age 60, she will still retain some earning capacity. This produces an amount of $184,270.50, to which should be added superannuation, which I calculate as follows:
1146 Using this second method of calculation produces a total for future loss of earning capacity of $204,724 ($184,270.50 plus $20,453).
1147 There are a number of variables relating to Ms Atoms' lost future earning capacity, however, in my assessment, these calculations best reflect the likely range of future loss for Ms Atoms after the first two years.
1148 In the circumstances I consider the appropriate amount for a capital sum or global amount for future loss of earning capacity after the first two years is by using a midway point in the range I have identified of $180,000. Adding the claimed loss for the first two years from [1136] above produces a total amount of $336,658.50 for future loss of earning capacity.
1149 That is my assessment. I will hear from the parties as to the final amount (in particular, as to the amount for past loss of earnings) which should be entered by way of judgment for Ms Atoms against each defendant (taking into account my apportionments), and the issue of costs.
1150 I am not satisfied that Ms Atoms assaulted Officer Clark as he has claimed. I am not satisfied that she grabbed his arm, for the reasons I have set out in [588] and [590] above. Nor am I satisfied that she jumped on his back, for the reasons I have discussed in [662] above. I have found she was close behind his back, however, I am not satisfied that this is a battery. For the reasons I have discussed in [672] and [674], I am not satisfied that this was a voluntary act by Ms Atoms, in the sense that it was an act directed by Ms Atoms' conscious mind.
1151 Accordingly I must dismiss Officer Clark's counterclaim.
1152 It is necessary that I make a provisional assessment of Officer Clark's damages to cover the situation where, if my decision on liability is varied on appeal, the matter need not be remitted back to the District Court for assessment of damages: Kerr v Minister for Health [2009] WASCA 32 [10].
1153 In relation to the first assault, that is Ms Atoms grabbing Officer Clark's arm, there is no evidence of any physical injury.
1154 For the second assault, which relates to the alleged jumping on Officer Clark's back, his evidence was that after the tasering of both Ms Atoms and Dr Cunningham he was tired, out of breath and his muscles were aching (ts 1127). He was struggling to stand upright and he experienced 'local pain' in his shoulders and neck while she was on his back and 'a few minutes afterwards' (ts 1143). However, he did not seek any medical attention. When he was asked by his counsel why he did not do so, the reason he gave was that it was 'a bit embarrassing' that he was not able to deal with the situation. When I queried what he meant by this, he changed his evidence to say 'Well I didn't need medical attention' (ts 1143).
1155 Back at the Fremantle police station after Ms Atoms' and Dr Cunningham's arrest, from my review of the lock-up footage, Officer Clark showed no signs of injury or discomfort and the times he was in the vision I observed him to be moving freely. He also made no complaint of injury when talking to the Custody Officer.
1156 Further, Officer Clark was able to work, creating the entries required on the police computer system to enable the prosecution papers required for a court prosecution, before he finished his shift at 3.00 am. His next shift was in the afternoon of 2 November 2008. There is no suggestion he was unable to work.
1157 I find that Officer Clark was not injured by the second assault.
1158 Officer Clark gave evidence that he had to recount to his superiors what had happened and that when he told them he 'did not feel good about it'. He was under the impression that Ms Atoms should be charged with an assault and he was advised by his superiors that it was easier not to bother doing that. He did not think they were taking him seriously and 'being told not to charge her with assault made me feel a little - you know embarrassed that I couldn't deal with the situation', which he clarified as dealing with the two plaintiffs without having anyone else to assist (ts 1144).
1159 When asked whether his professional colleagues had said anything to him, he gave evidence that he had been phoned up by people who had seen media reports about the case (ts 1144 - 1145).
1160 Officer Clark said that he had lost confidence in being a police officer. He avoided going into Fremantle and said that he could not walk down Essex Street any more. He avoided working in units where he would be put in the same sort of situation and looked for 'investigation-based positions within the police force' as opposed to positions where there were direct interactions with the public. He had not sought promotion, explaining that while he had been encouraged to apply for detective training school, he did not feel as though he had the confidence or the drive to do that (ts 1145).
1161 Officer Clark then continued in his evidence to say that he felt that he was being persecuted for what happened that night, he felt as though he had no faith in the police system, no faith in the job, and he had no confidence in his own ability as a police officer 'because look where it's ended me'. He agreed that the problem with his confidence arises from this civil action (ts 1150).
1162 He immediately went on to say, however, that it (the problem with his confidence) started from having his arm grabbed or Ms Atoms jumping on his back, that he 'still get[s] nightmares about her doing that', his sleep had been bad, and he still suffered from disturbances with his sleep. He was not able to identify when his nightmares started. He had not sought medical attention for this or his sleep problems, although he had tried herbal remedies. About 18 months before this trial he contacted the Police Department's Health and Welfare section but they had no psychiatrist for him to speak to. He was given a recommendation for someone to speak to but he did not do anything about this.
1163 It is important to note that there is no pleaded claim for loss of income or for psychiatric or psychological injury. This evidence is relied on to support the claim for damages, extending to 'injury to feelings' ie the indignity, mental suffering, disgrace and humiliation that may be caused: Weir v Tomkinson [109].
1164 I had a number of difficulties with Officer Clark's evidence, not least of which is that his evidence about sleep disturbances and nightmares was not something he had raised before and necessitated a late change to his pleadings, which I permitted. Another difficulty I have is that he gave no adequate details about when the nightmares and sleep problems began. Finally, on his own evidence he attempted to speak to a psychiatrist only 18 months before trial (which began in November 2015 and then was part-heard until March 2016, the latter part being when Officer Clark gave evidence), for a problem which allegedly began soon after 2 November 2008. That is a delay of well over five years.
1165 In my view it is more probable that Officer Clark's feelings of distress, humiliation and embarrassment have their origins in one or more of the following:
(a) the fact that he and Office Traynor were unable to deal with the events of the night without assistance;
(b) the dismissal of the Magistrates Court charges against Ms Atoms and Dr Cunningham;
(d) the commencement of these civil proceedings against him, particularly given the evidence I have set out in [1161] above.
1166 With these and the other difficulties I have with Officer Clark's credibility as I have discussed throughout these reasons, I am not satisfied that his feelings of distress and humiliation have their origin in any assault or battery by Ms Atoms.
1167 My provisional assessment of damages for the two alleged occasions of assault and battery is therefore a nominal amount of $500 for each.
(1960) 103 CLR 539
(1976) 12 ALR 551
(2003) 77 ALJR 1104
(2007) 230 CLR 500
(2000) 49 NSWLR 78
(2008) 225 FLR 1
(1938) 60 CLR 336
(2010) 32 VR 1
(1992) 110 ALR 239
(1994) 13 WAR 1
(1990) 93 ALR 483
(1990) 170 CLR 70
(1990) 169 CLR 638
(1995) 182 CLR 116
(1992) 110 ALR 449
(1996) 15 WAR 1
(2003) 57 NSWLR 496
(2005) 11 VR 458
(1955) 94 CLR 147
(2009) 175 FCR 150
(1995) 49 NSWLR 315
(1981) 148 CLR 62
(2008) 235 CLR 334
(2013) 248 CLR 432
(2003) 214 CLR 118
(1959) 101 CLR 298
(2011) 243 CLR 361
(1987) 164 CLR 1
(2007) 20 VR 250
(1992) 67 ALJR 170
(2005) 63 NSWLR 353
(1995) 185 CLR 307
(1965) 114 CLR 164
(2003) 197 ALR 410
(2006) 229 CLR 638
(1984) 5 FCR 187
(1971) 124 CLR 621
(1960) 108 CLR 158
(2005) 222 CLR 612