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[2026] NSWDC 67
General information, not legal advice.
District Court of NSW
2026-03-27
Habib SC DCJ
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Darling v State of New South Wales [2026] NSWDC 67
Hearing dates: 15-19 September 2025 and 17-20 November 2025; final written submissions 27 February 2026
Date of orders: 27 March 2026
Decision date: 27 March 2026
Jurisdiction: Civil
Before: Habib SC DCJ
Decision: (1) The proceedings are stood over to 10:00 am on 10 April 2026 for the making of final orders.
(2) The Parties are to provide to my Associate on or before 2 April 2026 short minutes of order which give effect to these reasons and address the question of interest and costs if they can be agreed.
(3) If the Parties agree on short minutes of orders in accordance with Order 2, then subject to my review of the proposed orders, I will make them in chambers and vacate the hearing on 10 April 2026.
(4) If the Parties cannot agree on short minutes of orders in accordance with Order 2, then each party is to provide short written submissions of no more than three pages, together with any evidence they rely upon, on the question of interest and costs on or before 7 April 2026.
Catchwords: TORTS – false imprisonment – wrongful arrest – arrest without warrant under s 77(1) of Bail Act 2013 (NSW) – where Plaintiff’s bail conditions were incorrectly recorded on the COPS database – where arresting officer relied on the COPS database in forming a belief that Plaintiff had breached his bail conditions – whether arresting officer’s belief that Plaintiff had breached his bail conditions was held on reasonable grounds – whether arresting officer considered each of the matters in s 77(3) – lawful justification defence
TORTS – assault – battery – where Plaintiff lawfully arrested – whether Plaintiff was handcuffed in front or behind his back upon arrest – whether Plaintiff was handcuffed whilst detained in a dock/cell – where Plaintiff refused to give police his shoelace – whether use of force was reasonably necessary
TORTS – false imprisonment – wrongful arrest – arrest without warrant – plaintiff arrested by police for “intimidate police” where he was seen to be “filming” an officer’s private vehicle entering the police station – whether the arresting officer had reasonable grounds to suspect the Plaintiff had committed an offence – whether arresting officer had formed a contemporaneous intention to charge the Plaintiff with an offence – no lawful justification defence
TORTS – assault – battery – where Plaintiff unlawfully arrested – where arresting officer firmly grabbed Plaintiff by the arm led him to the police station
DAMAGES – compensatory damages – aggravated damages – not a case for exemplary damages
Legislation Cited: Bail Act 1978 (NSW), s 50(1)(a)
Bail Act 2013 (NSW), s 77(1), (3)
Civil Liability Act 2002 (NSW), s 3B(1)(a)
Civil Procedure Act 2005 (NSW), ss 56, 58, 66
Crimes Act 1900 (NSW), s 60C
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 99(1), (3)-(4), 230, 231, Pt 9
Cases Cited: AD v State of New South Wales [2022] NSWDC 546
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Associated Provincial Picture Homes v Limited v Wednesbury Corporation [1948] 1 KB 223
Ballantyne v Workover Authority of NSW (2007) 5 DDCR 97; [2007] NSWCA 239
BK v State of New South Wales [2026] NSWCA 6
Blatch v Archer (1774) 1 Cowp 63; (1774) 98 ER 969
Bugmy v Director of Public Prosecutions (NSW) (2024) 113 NSWLR 567; [2024] NSWCA 70
Clifton & Ors v Lewis [2012] NSWCA 229
Costa v Public Trustee of NSW (2008) 1 ASTLR 56; [2008] NSWCA 223
Costello v State of New South Wales [2017] NSWDC 152
Croucher v Cachia (2016) 95 NSWLR 117; [2016] NSWCA 132
Darcy v State of New South Wales [2011] NSWCA 413
Director of Public Prosecutions (NSW) v Greenhalgh [2022] NSWSC 980
George v Rockett (1990) 170 CLR 104; [1990] HCA 26
Ghanem v State of New South Wales [2024] NSWDC 213
Goldie v Commonwealth of Australia (No 2) (2004) 81 ALD 422; [2004] FCA 156
Gulic v Boral Transport Ltd [2016] NSWCA 269
Hall v Fonceca [1983] WAR 309
Harris v State of New South Wales [2021] NSWCA 208
Ho v Powell [2001] NSWCA 168; (2001) NSWLR 572
Houston Moran v State of New South Wales [2017] NSWDC 19
Hyder v Commonwealth of Australia [2012] NSWCA 336
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Konneh v State of NSW (No 3) (2013) 235 A Crim R 191; [2013] NSWSC 1424
Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39
Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86; [2013] NSWCA 180
Lule v State of New South Wales [2018] NSWCA 125
Lyons v Chief Constable of West Yorkshire (CA (Civ D), 24 April 1995)
Madden v State of New South Wales [2022] NSWDC 647
McIntosh v Webster (1980) 43 FLR 112
Murphy v New South Wales [2023] NSWSC 407
Nakhl Nasr v State of New South Wales; George Nasr v State of New South Wales (2007) 170 A Crim R 78; [2007] NSWCA 101
New South Wales Crime Commission v Vu [2009] NSWCA 349
PPK Willoughby Pty Ltd v Baird [2021] NSWCA 312
Pringle v Everingham [2006] NSWCA 195; (2006) 46 MVR 58
Prior v Mole (2017) 261 CLR 265; [2017] HCA 10
R v Rondo [2001] NSWCCA 540; 126 A Crim R 562
Reeves v State of New South Wales [2023] NSWDC 232
Reeves v State of New South Wales [2024] NSWCA 125
Rixon v Star City Pty Ltd [2001] NSWCA 265; (2001) 53 NSWLR 98
Ruddock v Taylor (2003) 58 NSWLR 269; [2003] NSWCA 262
Ruddock v Taylor (2005) 222 CLR 612; [2005] HCA 48
Sinclair v Tripodis Constructions Pty ltd (2013) 207 LGERA 1; [2013] VSC 722
Spautz v Butterworth & Anor (1996) 41 NSWLR 1.
State of New South Wales v Abed (2014) 246 A Crim R 549; [2014] NSWCA 419
State of New South Wales v Madden [2024] NSWCA 40
State of New South Wales v Radford (2010) 79 NSWLR 327; [2010] NSWCA 276
State of New South Wales v Robinson [2019] HCA 46; (2019) 266 CLR 619
State of New South Wales v Smith [2017] NSWCA 194; (2017) 95 NSWLR 662
Trobridge v Hardy (1955) 94 CLR 147; [1955] HCA 68
Williams v Milotin (1957) 97 CLR 465; [1957] HCA 83
Woodley v Boyd [2001] NSWCA 35
Texts Cited: JF Clerk, WHB Lindsell, and AM Dugdale, Clerk & Lindsell on Torts (17th ed, 1995, Sweet & Maxwell)
JG Fleming, The Law of Torts (9th ed, 1998)
Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Actions and Government Liability (7th ed, Thomson Reuters, 2021)
Category: Principal judgment
Parties: Steven Darling (Plaintiff)
State of New South Wales (Defendant)
Representation: Counsel:
Mr P Godkin (15 September 2025 and part of 16 September 2025) and Mr M Davis (17-20 November) (Plaintiff)
K Burke (Defendant)
Solicitors:
MGL Lawyers (15 September 2025 and part of 16 September 2025) and JSA NSW (17-20 November 2025) (Plaintiff)
Norton Rose Fullbright (Defendant)
File Number(s): 2024/200606
Publication restriction: Nil.
JUDGMENT
Introduction
Adjournment Application
Witnesses
Issues
First Event
First Event – 8 July 2018
Facts
The Plaintiff’s conveyance to MVPS
The Plaintiff’s detention at MVPS
Plaintiff released from custody
False Imprisonment
Legal Principles
Interrelationship between ss 77(1) and 77(3) of the Bail Act
Discretionary decision
Consideration
Was SC Bailey’s belief held on reasonable grounds?
Did SC Bailey take into account the matters in s 77(3)?
The exercise of discretion under s 77(1) of the Bail Act
Conclusion as to false imprisonment in Event 1
Assault and Battery
Legal principles
Consideration
Handcuffs – Initial arrest and conveyance
Handcuffs in Dock/Cell
The ‘shoelace incident’
Second Event – 23 August 2018
Facts
Absence of witnesses
Legal Principles
Suspicion on reasonable grounds
Intention to charge
Consideration
Suspicion on reasonable grounds
Intention to charge
Assault and Battery
Conclusion as to the Second Event
Damages
General Principles
First Event
Second Event
General damages
False imprisonment
Battery
Aggravated Damages
Exemplary damages
Notional Assessment of Damages for the First Event
General damages
False imprisonment
Battery – Handcuffs at Bundanoon Residence
Battery – the ‘shoelace incident’
Aggravated Damages
Exemplary Damages
Conclusion
Appendix A
Evidence
Consideration
(a) 8 July 2018 at Moss Vale Police Station (MVPS) (First Event); and (b) 23 August 2018 at Gosford Police Station (Second Event).
In respect of each event, the Plaintiff seeks general compensatory damages, aggravated damages, and exemplary damages.
In summary, the Plaintiff alleges that:
(a) police unlawfully placed him in custody in the First Event for breach of bail conditions which did not in fact exist. He also alleges that he was subjected to an assault and battery at the time of arrest by reason of the placement of handcuffs upon him and also during his custody at MVPS as part of the ‘shoelace incident’ (as defined below). The contemporaneous records in evidence describe the police station relevant to the First Event as variously MVPS and Southern Highlands Police Station. In this Judgment, I refer to the police station in which the Plaintiff was placed in custody in the First Event as MVPS; (b) police unlawfully placed him in custody in the Second Event because they suspected, wrongly, that he was filming police vehicles as they drove into the station driveway to intimidate police. The Plaintiff also alleges that the arresting officer committed a battery by firmly grabbing his arm to escort him into Gosford Police Station.
The Defendant accepts that it is vicariously liable for the conduct of the police alleged by the Plaintiff. The Defendant, however, denies that the Plaintiff is entitled to any of the relief he claims and denies the allegations of false imprisonment, assault and battery.
The Plaintiff also complains about a non-custody event, which he says is relevant to his damages claim, namely the service upon him on 17 August 2018 of a future Court Attendance Notice (CAN) for breach of bail conditions which again, the Plaintiff says, did not exist (Non-Custody E****vent).
The Plaintiff gave evidence. He called no other witnesses.
The Defendant called several police officers. I refer to those officers using their rank at the time of the relevant events.
I did not form any general adverse view of any witness’s credit when giving evidence. Nevertheless, there were inconsistencies between the accounts of the Plaintiff and the Defendant’s witnesses in relation to certain matters concerning the First Event and the Second Event. I have made findings on those matters based on the balance of probabilities given the state of mind and condition of the witnesses at the time of the relevant events, together with a consideration of contemporaneous documentary material. I have also considered the probabilities in relation to certain evidence in light of incontrovertible facts to which I will make reference when dealing with that evidence.
(a) Did the relevant police officer(s) have a belief on reasonable grounds that the Plaintiff was in breach of a bail condition? (b) Did the relevant police officers(s), in determining any action under s 77(1) of the Bail Act 2013 (NSW) (Bail Act), have regard to the matters set out in s 77(3)? (c) Did the relevant police officer(s) validly exercise the discretion provided by s 77(1) of the Bail Act in arresting the Plaintiff?
Second Event
(a) Did SC Brown, the arresting officer, suspect on reasonable grounds that the Plaintiff had committed an offence for the purposes of s 99(1) of the LEPRA? (b) If so, did SC Brown have a contemporaneous intention to charge the Plaintiff for that offence? (c) If the answer to (a) and (b) is yes, was SC Brown satisfied that arresting the Plaintiff was reasonably necessary for the purpose of s 99(1)(b) of LEPRA? (d) Did the plaintiff suffer the tort of battery when escorted into the police station, or was the use of force by police lawful by reason of ss 230 or 231 of the LEPRA?
Damages
(a) be of good behaviour, and (b) live at a designated address in Saratoga, NSW (Saratoga Address)
(Actual Bail Conditions).
The Plaintiff’s bail on the conditions imposed on 10 April 2018, was continued by the Local Court at Gosford on 24 April 2018, 8 May 2018, 15 May 2018 and 19 June 2018.
In the week of 10 June 2018, the Plaintiff was staying at his late grandfather’s house in Bundanoon (Bundanoon Residence). On 10 June 2018, the Plaintiff attended MVPS to speak to police regarding a property dispute in relation to the deceased’s estate. The Plaintiff spoke to Senior Constable Bailey (SC Bailey). The interaction between the Plaintiff and SC Bailey was the subject of conflicting evidence. SC Bailey gave evidence that he warned the Plaintiff about his bail conditions. The Plaintiff denies he was so warned. As will be seen, the bail conditions the subject of this evidence were different to the Actual Bail Conditions.
SC Bailey’s evidence was that because this was the first time he had interacted with the Plaintiff, he accessed the Computerised Operating Police System (COPS) database to conduct checks on the Plaintiff and confirm his identify. He gave evidence that the database indicated that the Plaintiff was subject to active bail conditions, namely, a curfew condition attached to the Central Coast area, and a condition that he not consume alcohol. The Actual Bail conditions did not include a curfew or any alcohol restriction.
SC Bailey testified that he warned the Plaintiff about his bail conditions, and in particular, that he was in breach of his curfew condition and should return to Saratoga. He said the Plaintiff responded with hostility and profanity and then left the police station. He conceded that he did not make a note in the COPS event or elsewhere regarding his warning to the Plaintiff. In cross-examination he rejected the possibility he was mistaken about giving the warning.
The COPS database contained bail conditions in relation to the Plaintiff that were consistent with the conditions SC Bailey said he saw on the COPS database on 10 June 2018. It seems to me probable that SC Bailey did seek to confirm the Plaintiff’s identity by accessing the COPS database when first approached by the Plaintiff at MVPS as it was his first dealing with the Plaintiff. In doing so, and noticing the bail conditions recorded on the COPS database, it is, in my view, probable that if he considered that the Plaintiff may be in breach of those conditions, he would raise it in some manner with the Plaintiff. Accordingly, I accept SC Bailey’s evidence that he gave a warning to the Plaintiff that he should return to Saratoga. Given that he did not record such a warning in the COPS system, it is likely that the warning was given during, and as part of, the conversation with the Plaintiff rather than as a separate formalised event.
On 19 June 2018, the Plaintiff attended Gosford Police Station to report a theft of his motorbike and bicycle. Whilst there, he asked the police to check their system to see what his bail conditions were and whether there were any outstanding warrants or apprehended violence orders in existence relating to him. Police told him that his bail was subject to conditions which included a curfew and an alcohol restriction. He explained to the officers that he had been in Court that day and his bail was continued without those conditions. Police told him that he needed to raise the issue with the Court.
(a) Curfew between 8:00 pm and 5:00 am at the Saratoga Address unless in the company of Denise Irwan (C****ondition 1); (b) Not to be outside the dwelling after 8:00 pm (C****ondition 2); and (c) Not to consume alcohol outside the dwelling (C****ondition 3)
None of these conditions were part of the Actual Bail Conditions.
When at the Bundanoon Residence, the Police Officers asked the Plaintiff if he had consumed any alcohol and whether his mother was inside the house. He told the police that he had been drinking beer at Bundanoon Hotel and his mother was not present.
SC Bailey gave evidence that he and LSC Maiorana arrived at the property intending to speak with the Plaintiff about his report of an assault. As they approached the entrance of the property, the Plaintiff exited the house and was aggressive and hostile, waving his arms around and yelling. He used various profanities, including calling the officers “fucking dogs”. He considered the Plaintiff was intoxicated because his speech was slurred and his balance was impaired. He determined it was not an appropriate time to take a statement or obtain information about the assault and explained to the Plaintiff that they would hear him at a later time when he was not intoxicated and hostile. I accept SC Bailey’s evidence. The effect of entries in contemporaneous police records (referred to in paragraph [145(b)] below) was that Mr Darling was intoxicated and aggressive. That evidence is consistent with SC Bailey’s evidence of his observations at the Bundanoon Residence.
SC Bailey formed the view that the Plaintiff was in breach of two of his bail conditions. First, because he was at the Bundanoon Residence (not the Saratoga Address). Secondly, because the Plaintiff admitted to drinking at Bundanoon Hotel (that is, outside the Saratoga Address). Police records state that the Plaintiff was arrested for breach of bail conditions at 3:25 am. The Plaintiff was told his arrest was for breaking curfew and drinking alcohol.
The Plaintiff’s evidence is that after he was told he was under arrest for breaching his bail, he told the officers that he did not have bail conditions that imposed a curfew or an alcohol restriction and that he had his “bail paperwork” inside the Bundanoon Residence. His evidence is that he said he could get that paperwork, or alternatively, the police could enter the house to obtain it. He said that the police did not permit him to obtain the paperwork and did not enter the house to obtain it themselves. The only bail acknowledgment signed by the Plaintiff in evidence was the one he signed on 10 April 2018 when he was originally given bail on the charge matters.
SC Bailey accepted, in his evidence, that the Plaintiff had told him that he was not in breach of his bail. He did not, however, recall the Plaintiff offering to retrieve “bail paperwork” from inside the house, or inviting the officers to enter the house to retrieve it themselves. In any event, he said he would not have considered the Plaintiff’s protestation to be a “significant matter” in deciding whether to effect an arrest because he found the Plaintiff to have “zero credibility” at the time, given he was highly intoxicated, aggressive, confrontational and unable to follow simple instructions. He also said that, in his 16 years of experience, there had been very few times where he apprehended that the COPS database incorrectly recorded someone’s true bail conditions. Further, he said as a matter of police safety he would not have entered the house or permitted Mr Darling to do that. I deal with SC Bailey’s evidence in this regard further below.
It was common ground that the Plaintiff was placed in the rear of the police van and conveyed to MVPS.
The Plaintiff’s evidence was that he was handcuffed behind his back and that he complained to the officers that the handcuffs were too tight, but they did not loosen them. He said that he was still handcuffed behind his back while he was in the rear of the police van.
His evidence was that he was unsupported by a seatbelt and was “thrown” from one side of the van to the other as the van was being driven. He said he sustained bruising on the sides of his body from hitting the sides of the van. He estimated the drive to have taken over 30 minutes.
SC Bailey could not recall whether the Plaintiff was handcuffed while conveyed. He conceded it was a possible, albeit very rare, measure that he has used in his 16 years of experience. It was generally reserved for persons who exhibited threatening, hostile, and defiant behaviour.
He said, in those circumstances, he would either allow the person to enter the vehicle by themselves or assist them in the pod. His evidence was that once a person is inside the vehicle, a slide bolt and chain is placed across the person to secure the person in place. He said the usual route for the drive takes about 16 minutes.
For the reasons set out below at paragraph [43] below, I accept that the Plaintiff was handcuffed but find that he was handcuffed in front and not behind his back. Further, I prefer SC Bailey’s estimate of the time taken to convey the Plaintiff from Bundanoon to the police station. SC Bailey had been an officer at MVPS for some time and had driven to the police station from Bundanoon many times. Given that he, unlike the Plaintiff, was not intoxicated at the time, and given his experience in this regard, his evidence is more reliable than that of the Plaintiff.
The Plaintiff alleges that an assault and battery was inflicted upon him while in custody at MVPS. This is denied by police witnesses called by the Defendant.
MVPS had both cells and a “dock” in which persons in custody were placed. The Plaintiff said he was detained in a locked cell. While detained in the cell, he said he was still handcuffed behind his back. I have found that the Plaintiff was not handcuffed behind his back but accept that he was handcuffed for a period of time while in custody at MVPS.
The Custody Sergeant at MVPS at the time was Sergeant Sharp. The Plaintiff claimed that Sergeant Sharp called him a “fucking wanker” and “fucking dickhead”. Sergeant Sharp did not recall saying any such thing. The Plaintiff admitted that he called the officer a “fucking wanker”.
While in custody, the Plaintiff removed one of his shoelaces. Then, while standing on the bench, he tried to attach the shoelace to the ceiling. He said that the police entered the cell and asked for the shoelace. The Plaintiff gave it to them. The Plaintiff was then asked to remove the shoelace from his other boot. The Plaintiff gave evidence that he said, “you can take it off, I’m not taking it off”, and “presented” his foot towards them. He said that Sergeant Sharp, who was positioned in front of the Plaintiff, put his arms behind the back of the Plaintiff’s knees and pulled his legs forwards. The Plaintiff said that he fell to the ground and onto his back. He said he was dragged out of the cell (I describe this incident as the ‘shoelace incident’ in this Judgment).
The Plaintiff gave evidence that while on his back, one officer applied his knee to his chest with “an incredible amount of pressure”. He said another officer was striking his legs. In evidence are two notes recorded by a medical practitioner on 9 July and 17 July 2018, each of which recorded the Plaintiff stating that a police officer kneeled on his chest or pressed his knee on his chest.
The Plaintiff’s evidence was that during his time in custody at MVPS, he told Sergeant Sharp that the police were incorrect about his bail conditions. Sergeant Sharp did not deny this, and I accept the Plaintiff’s evidence in this regard because it is consistent with his behaviour at the time of arrest.
Sergeant Sharp’s evidence was that when the Plaintiff arrived at the station, he was intoxicated, belligerent, aggressive and uncooperative. During his time in custody, the Plaintiff had called the officers “fucking wankers”, “dog c---s” and “weak c---s”. Sergeant Sharp believed there was nothing he could do to settle the Plaintiff.
Sergeant Sharp said the Plaintiff was detained in a police dock. He described the police dock as a small Perspex area which could fit two people, and which had a stainless-steel bench. He said the dock did not have a toilet inside. In cross-examination, he was taken to a document recording a visual assessment he conducted on the Plaintiff at 4:45 am, and in particular, a comment in the document that the Plaintiff was “lying and moving around on floor of cell next to the toilet”. In relation to this comment, Sergeant Sharp accepted that the Plaintiff was in a police cell at that point in time. He could not recall whether the cells at MVPS had a toilet but could recall that whether they did or not, MVPS had a separate toilet. Based on the comment in the visual assessment, it is probable, and I find, that the cell the Plaintiff was in had a toilet. The Plaintiff said in his affidavit that after he was taken into MVPS he was placed in a cell and after a period asked to go to the toilet. Given that the dock did not have a toilet, the Plaintiff must have been in the dock when he asked to go to the toilet. Given also Sergeant Sharp’s evidence concerning the visual assessment, I find that the Plaintiff was initially detained in the police dock and at some point prior to 4:45 am he was placed in a police cell. When in this Judgment I refer to “dock/cell”, I refer to this finding.
(a) when the Plaintiff’s shoelaces were removed, his handcuffs were also removed; (b) he recalled the Plaintiff raising his hands above his head which would not be possible if his hands were handcuffed behind his back; (c) it would not have been possible for the Plaintiff to hand police the first shoelace if his hands were handcuffed behind his back; (d) it was “not common” for a person to be in a locked police cell with handcuffs and that it would be recorded on the custody record.
I accept Sergeant Sharp’s evidence that the Plaintiff could not have been handcuffed behind his back while in the dock, at least at the times referred to in paragraph [42(b)]-[42(c)] above. Sergeant Sharp accepted that the Plaintiff was handcuffed when he arrived at the station. There is no evidence that the positioning of the handcuffs changed at any time. Accordingly, I find that to the extent that the Plaintiff was handcuffed in the First Event, he was handcuffed in front of his back.
In cross-examination, Sergeant Sharp was questioned about a note in an ambulance record (an ambulance was called for the Plaintiff at a point during his custody) which recorded that the ambulance arrived at 5:18 am and stated, “patient still handcuffed”. Sergeant Sharp said he could not recall whether the handcuffs were later applied back on the Plaintiff. He also conceded that he could not recall whether the Plaintiff was in a locked cell or still in a police dock at the time the ambulance arrived at the Station.
His evidence was that he believed the Plaintiff, when raising a shoelace towards the ceiling, was indicating self-harm, even though it would not have been reasonably possible to attach the shoelace to the ceiling.
With respect to the ‘shoelace incident’, Sergeant Sharp said he asked the Plaintiff for his shoelace a few times and the Plaintiff presented a difficult demeanour, including being aggressive and belligerent. Among other things, the Plaintiff said to Sergeant Sharp, “you come and get it” He said that when the Plaintiff presented his foot towards him to take the shoelace off, he interpreted that as an “action to bait” and potentially a “veiled threat” that if he proceeded to remove the shoelace, he would be kicked. Sergeant Sharp said he feared that if he tried to remove the Plaintiff’s shoelace, the Plaintiff would kick him in the head because of the Plaintiff’s elevation on the dock bench and because of his volatile behaviour.
He said that he grabbed the Plaintiff around the front of his legs to stop him from kicking and to remove the Plaintiff from the top of the bench. He pulled the Plaintiff’s legs out. The Plaintiff fell down the wall of the dock. He said the force he used was as minimal as possible.
He gave the following further evidence with respect to the removal of the Plaintiff’s shoelace:
Q. Can you describe to his Honour what you recall occurred?
A. … I think I put my hands around his legs to stop him from kicking and I've pulled his legs out and he has slid down the wall of the dock onto the bench …
Q. When he'd gone to the bench, did he go down to the floor?
A. No. I think he was sitting on the bench. I don't think it would be possible for him to go on the floor because it's a very confined space.
Q. Could the dock door have been opened and he was dragged out of the dock area?
A. I don't remember him being dragged out of the dock, no.
Q. … Do you have a recollection of him being dragged out of the dock where three police officers on top of him?
A. No, I don't think he was dragged out of the dock. My recollection is that, yes, I put my arms around his legs to stop him from kicking me and to take him off the top of the seat there. He slid down the wall and he was seated on the ‑ on the bench. His legs may have been out the dock door, and I don't think he was on the floor, maybe he was. I don't remember three police officers being on top of him, but there certainly might have been other police officers who were restraining his arms for stop him from hitting us while we took his laces out, yeah.
(Emphasis added.)
In cross-examination, he said that he was unsure whether the Plaintiff ended up on the dock bench or floor, but that it was possible the Plaintiff’s legs may have been outside the dock due to its small size.
He said the Plaintiff was still resisting at this stage. He said he did not strike the Plaintiff in the chest or legs. He did not recall SC Bailey applying his knee to the Plaintiff’s chest.
The shoelace was then seized from the Plaintiff.
SC Bailey also gave evidence concerning the Plaintiff’s detention at MVPS and the ‘shoelace incident’. He said that the Plaintiff arrived at MVPS a little after 4:00 am. He was placed in a police dock. He could not recall whether handcuffs were applied at the time of arrest, but said if handcuffs had been applied, they would have been removed when he was placed in the dock. While the Plaintiff was in the dock, he and LSC Maiorana completed a handover with Sergeant Sharp. He could not recall the specific details of the handover with Sergeant Sharp, however, based on his usual practice, he said he would have informed him of his intoxication, aggression and hostility.
He recalled the ‘shoelace incident’. He recalled the Plaintiff standing on the dock bench. He was yelling at the officers, saying “fucking dogs” and “weak c---s”. The Plaintiff’s arms were raised above his head with a cord in his hands (which he accepted could have been a shoelace). The Plaintiff was told to sit down and release the cord, to which he refused. SC Bailey said words to the effect of “if you don’t sit down and put them down, we’re going to have to take them off you”. The Plaintiff replied with words to the effect of “if you open the door, I’m going to bash you. Your head is going to be the first one I kick”. He also recalled the Plaintiff saying words to the effect of hanging himself and that it would be the officers’ fault. The Plaintiff then continued calling the officers “fucking dogs” and “weak c---s”. SC Bailey had a short discussion with Sergeant Sharp and LSC Maiorana about entering the dock and removing the cord from the Plaintiff.
SC Bailey said that he put his foot on the Perspex door, unlatched it and opened it. The Plaintiff continued to yell and swear. SC Bailey again verbally directed the Plaintiff to sit down. The Plaintiff refused. Sergeant Sharp then grabbed him by the ankles and pulled the Plaintiff towards him so that his backside fell to the seat. He was pulled out of the dock to an area between ‘the charge bench’ and ‘the dock’ which was described as being about 2 to 2.5 metres long. The Plaintiff was resisting by thrashing his arms and legs around, although he was not trying to strike the officers. He was still yelling and swearing. His evidence was that three officers rolled the Plaintiff onto his stomach to hold him in place. Each of the officers were kneeling around him. One officer was holding his legs, another was holding his torso, and the other holding his shoulders and arms. He was searched and the cord was seized. He was then put back in the dock.
At about 5:24 am on 8 July 2018, LSC Maiorana created a detention application alleging the Plaintiff had failed to comply with his bail conditions. The Plaintiff was then conveyed to Goulburn Police Station in a police van. The Plaintiff alleges in his Statement of Claim that, during his conveyance, he was handcuffed again but gave no evidence in support of that allegation and there is no other evidence establishing that allegation. Later in the day, the Plaintiff appeared in the Local Court at Goulburn.
The Plaintiff was granted bail in the original terms but with two additional conditions, being:
(a) that he is not to be absent from the Saratoga Address between the hours of 8:00 pm and 5:00 am unless in the company of Denise Darling; and (b) that he is not to drink alcohol or take drugs unless those drugs are prescribed by a doctor.
That is, conditions broadly consistent with those on the COPS database.
The Plaintiff said he was released from custody around midday. The Defendant said he was released at an earlier time, namely 10:30 am. In the Plaintiff’s submissions on damages, he submitted that he was detained for a period between 6 hours and 5 minutes and 6 hours and 55 minutes. On either view of the Parties’ allegations as to the time of release, the Plaintiff was detained for over 6 hours.
On 18 July 2018, the Plaintiff appeared in the Local Court at Goulburn where His Honour Magistrate Williams reinstated the original bail granted in April 2018 and removed the additional conditions imposed on 8 July 2018. His Honour said the following:
When I granted him bail on 10 April there were no curfews, no alcohol restrictions, nothing and no-one can tell me that there were any conditions on his bail other than to live at Saratoga and to be of good behaviour and yet he is arrested for breach of his bail in terms of drinking alcohol and curfew and gone before Goulburn Court and these very stringent bail conditions imposed upon him. I think it might be in everybody’s interests if I was to reinstate the original bail.
The Parties agreed that with respect to the tort of false imprisonment:
first, the Plaintiff bears the onus of proof to establish that there was a restraint upon him by police which amounted to ‘imprisonment’ within the meaning of the tort. In this regard, as noted above, the Defendant conceded that in relation to both the First Event and Second Event, the Plaintiff was ‘imprisoned’ for the purpose of the tort from the time of his arrest until the time of his release from custody by the Police;
secondly, consistently with authority, [1] upon the Plaintiff carrying his onus, the Defendant bears the onus of establishing that the ‘imprisonment’ was lawful.
With respect to the First Event, the Defendant’s case is that the Plaintiff’s ‘imprisonment’ was lawful pursuant to s 77 of the Bail Act.
Section 77 of the Bail Act relevantly provides:
77 Police officers may take actions to enforce bail requirements
(1) Unless section 77A applies, a police officer who believes, on reasonable grounds, that a person has failed to comply with, or is about to fail to comply with, a bail acknowledgment or a bail condition, may—
(a) decide to take no action in respect of the failure or threatened failure, or
(b) issue a warning to the person, or
(c) issue a notice to the person (an application notice) that requires the person to appear before a court or authorised justice, or
(d) issue a court attendance notice to the person (if the police officer believes the failure is an offence), or
(e) arrest the person, without warrant, and take the person as soon as practicable before a court, or
(f) apply to an authorised justice for a warrant to arrest the person.
…
(3) The following matters are to be considered by a police officer in deciding whether to take action, and what action to take (but do not limit the matters that can be considered)—
(a) the relative seriousness or triviality of the failure or threatened failure,
(b) whether the person has a reasonable excuse for the failure or threatened failure,
(c) the personal attributes and circumstances of the person, to the extent known to the police officer,
(d) whether an alternative course of action to arrest is appropriate in the circumstances.
(a) the relevant officer believes that the person on bail has failed to comply, or is about to fail to comply, with a bail condition; and (b) the belief of the relevant officer is based on reasonable grounds.
There was no genuine dispute that SC Bailey did have a subjective belief that the Plaintiff had breached his bail conditions in the manner described in paragraph [24] above. The Plaintiff, however, disputes that there were reasonable grounds for that belief.
In Prior v Mole (Prior): [2]
(a) Keifel and Bell JJ (as her Honour Keifel J then was), applying George v Rockett, [3] said, in relation to a power conditioned on the existence of reasonable grounds for belief, that the “facts and circumstances known to the relevant officer must be sufficient to induce in the mind of a reasonable person a positive inclination towards acceptance of the subject matter of the belief. That is not to say that it required proof on the civil standard … Facts and circumstances that suffice to establish the reasonable grounds for a belief may include some degree of conjecture”; [4] (b) Gageler J (as his Honour then was) noted that the relevant belief must be formed by “reference to objective circumstances. The relevant objective circumstances are those known to and taken into account by the member in forming the belief. That is not to say that those circumstances might not include information provided to the member by someone else;” [5] (c) Nettle J noted that the reasonable grounds relied upon need not be established on the balance of probabilities; [6] (d) Gordon J referred to the similar statements of principle to each of the other Justices. [7]
[15] …
(9) "The identification of a particular source, who is reasonably likely to have knowledge of the relevant fact, will ordinarily be sufficient to permit the Court to assess the weight to be given to the basis of the expressed [state of mind] and, therefore, to determine that reasonable grounds for [it] exist": New South Wales Crime Commission v Vu [2009] NSWCA 349 (at [46]) per Spigelman CJ (Allsop P and Hodgson JA agreeing) … ;”
(Some citations omitted.)
[43] It is important in this, as in other fields of legal discourse, to be careful not to judge the “reasonable grounds” issue with the benefit of hindsight. As I have earlier explained (see [15](8)), a reasonable belief may be based on information which turns out to be wrong.
In Bugmy v Director of Public Prosecutions (NSW) (Bugmy), [10] Leeming JA (with whom Mitchelmore JA and Basten AJA agreed) held at [45]-[46] that where a police officer exercises a power pursuant to s 77(1), the police officer must have regard to the matters in s 77(3), otherwise the arrest will be unlawful. That is, those considerations are mandatory considerations in the exercise of the power granted by s 77(1). They do not condition the enlivening of the power in s 77(1) but rather condition the exercise of that power. The mandatory considerations in s 77(3) do not arise unless and until the power in s 77(1) is enlivened by the relevant officer forming the required belief on reasonable grounds.
However, s 77(3) of the Bail Act does not codify all the matters that a police officer may take into account when exercising the discretion in s 77(1). That is clear because the mandatory considerations set out in s 77(3) are expressly non-exhaustive of the matters an officer may take into account. Further, the Bail Act does not expressly identify any considerations that an officer may not take into account in determining the exercise of the discretion in s 77(1). That is, there are no express statutorily identified “irrelevant considerations”.
In Bugmy, Basten AJA observed that:
[83] … it is far from clear that a trained officer would take any appreciable time to consider the matters in s 77(3). I find it difficult to contemplate circumstances where whether the non-compliance is serious or trivial, whether there is a lawful excuse, and which action is appropriate would not be at the forefront of the officer’s mind, and likewise if there are personal circumstances known to the officer, then they too are likely to be at the forefront of the officer’s mind.
[111] … The merits of the outcome are not reviewable by a court; the only factual inquiry is whether the process was undertaken. Further, the statute would not be read so as to impose an unreasonable burden on the officer.
Section 77(1) of the Bail Act provides a discretionary power to a police officer who forms the required belief and has taken into account the matters set out in s 77(3). The police officer may decide to take no action (s 77(1)(a)), or one of the actions set out in s 77(1)(b)-(f). The exercise by the police officer of that discretion is reviewable along “familiar lines in administrative law: for example, if the power was exercised for an improper purpose …” [11] The grounds for review are not limited to Wednesbury unreasonableness. [12] However, there is no merits review. The Court will not substitute its own view of an appropriate exercise of the discretion in s 77(1) for that of the relevant officer.
The Plaintiff submitts that on the proper construction of s 77(1), the exercise of the discretion granted to a police officer starts with the general proposition that arrest “should be seen as an option of last resort”. In support of that submission, the Plaintiff called in aid s 77(3)(d) (which requires a police officer to consider whether an alternative course to arrest is appropriate in the circumstances) and the reference in Bugmy to the New South Wales Law Reform Commission, Bail (Report No 133, April 2012) and the Second Reading Speech made by the Attorney-General upon introduction of the Bail Bill 2013 into the Legislative Assembly. [13] The Plaintiff also submits that a statutory provision should not be assumed to abrogate existing fundamental rights in the absence of clear language and submits the most elementary of those rights is the right to personal liberty.
Although in a case of ambiguity or uncertainty, “arrest as a last resort” should lead to a construction of a statutory power protective of the fundamental right to liberty, the Court of Appeal in Bugmy recognised that “[c]are must be taken in applying that principle in circumstances where the very purpose of the legislation is to authorise executive action which infringed the right of liberty”. [14] Further, as noted by the Gageler and Keane JJ (as Gageler J then was) in Lee v New South Wales Crime Commission, [15] “it is of little assistance in endeavouring to work out the meaning of parts of [a legislative] scheme, to invoke a general presumption against the very thing which the legislation sets out to achieve.”
The Bail Act addresses circumstances in which a person charged with a crime may have his or her liberty curtailed pending trial. Included amongst those circumstances is the circumstance of a person in relation to whom police believe on reasonable grounds has breached a bail condition. In such circumstances, the legislation expressly empowers police to arrest the person (amongst other powers).
In my view, the statutory language in ss 77(1) and 77(3) is clear. If the discretion in s 77(1) is enlivened, the section empowers a police officer to arrest the relevant person, as part of a suite of options. The only mandatory considerations that a police officer must have regard to in exercising that discretion are set out in s 77(3). Neither in s 77(1) nor in s 77(3) is arrest identified as a power to be exercised as a matter of last resort. Rather, s 77(3)(d) requires a police officer, when determining what, if any, action to take under s 77(1), to consider whether an alternative course to arrest is appropriate in the circumstances. In my view, that is not the same as mandating an approach, as a matter of construction, that arrest must be approached as a course of last resort. Having said that, and acknowledging the absence of a merits review with respect to the exercise of the discretion in s 77(1), it seems to me that if an officer forms a positive view that a course other than arrest is appropriate, that positive view would be expected to be a weighty consideration in the exercise of the discretion in s 77(1); moreover, a decision to arrest in the face of such a positive view that an alternative course is appropriate may be susceptible to challenge on administrative review grounds, although every case will turn on its own facts and circumstances.
The arresting officers in relation to the First Event were SC Bailey and LSC Maiorana.
As noted above, SC Bailey gave evidence. LSC Maiorana did not. However, the Defendant established that he was no longer a police officer and that a subpoena for him to give evidence was served but was not answered. The evidence makes plain that SC Bailey and LSC Maiorana acted as one in dealing with the Plaintiff at the Bundanoon Residence and LSC Maiorana prepared the paperwork in which he recorded the breach of bail relied upon by the officers. I proceed on the basis that SC Bailey’s evidence with respect to the basis of the Plaintiff’s arrest represents the state of mind of the arresting officers. Properly, no Jones v Dunkel [16] inference was sought by the Plaintiff with respect to the absence of LSC Maiorana in these proceedings.
The Defendant’s case is that the arresting officers had reasonable grounds for believing that the Plaintiff had breached his bail conditions. The facts upon which the Defendant relies in this regard are that the:
(a) COPS databases recorded that the Plaintiff had the bail conditions referred to in paragraph [21] above; (b) Plaintiff admitted to SC Bailey that he had been drinking alcohol and that the Plaintiff’s consumption of alcohol was outside of the Saratoga Address – at that time, as noted above, the Plaintiff was in Bundanoon; (c) Plaintiff was outside the Saratoga Address during the curfew period set out in the bail conditions recorded on the COPS database.
The COPS database, immediately prior to SC Bailey speaking with the Plaintiff, contained the bail conditions referred to in paragraph [21] above There is no genuine dispute between the Parties about that fact.
There was no evidence that, at that time, any systemic issue existed which would cause the COPS database to record incorrect bail conditions. In short, there was no evidence of any fact about the police databases which would cause an officer in the position of SC Bailey to generally doubt the correctness of the bail conditions recorded on the COPS database.
It is true that the NSW Police Force Handbook [17] implicitly identified that there existed a possibility that bail conditions recorded on the COPS database may be incorrect. For example, the Handbook contained the following entries:
If it is determined that bail conditions have been incorrectly recorded in COPS, liaise with the Court Process Officer … to ensure action is taken to correct those records to prevent the likelihood of bailees being incorrectly detained
…
Court P****rocess Officers (or equivalent)
Ensure bail reporting information is correctly entered into COPS by the end of the day on which the condition was imposed
Take immediate action to correct bail information that is in COPS but is incorrect.
However, the fact that there is a process to be adopted if it is known that an error exists, does not, without more, establish that an officer should have a doubt about the correctness of the database.
In Konneh v State of NSW (No 3), [18] Garling J held at [74] that there is no reason why the facts, matters and circumstances which are subject to the arresting officer’s belief on reasonable grounds referred to in s 50(1)(a) of the Bail Act 1978 (NSW) (being the predecessor of the current Bail Act) should not include the content and terms of the conditions which it is believed have been, or about to be, breached. In my view, his Honour’s opinion in this regard, has equal application to s 77(1) of the Bail Act. That is, if an officer has a belief based on reasonable grounds that a certain condition of bail exists then that is a relevant belief for the purposes of s 77(1) even if the relevant bail condition did not, in fact, exist.
The Plaintiff, however, submits that SC Bailey did not have reasonable grounds for his belief because, primarily, he told SC Bailey at the time of arrest, that he was not subject to the bail conditions identified by the police officers and he offered to retrieve, or allow the police officers to enter the Bundanoon Residence to retrieve, the “bail paperwork”. That is, the Plaintiff submitted that in those circumstances, SC Bailey:
(a) ought to have pursued an enquiry as to the correctness of his understanding of the Plaintiff’s bail conditions – whether by allowing the Plaintiff to enter the premises or by police entering the premises to obtain the “bail paperwork”; or (b) ought not to have taken any action until the position was clarified.
The Plaintiff relied on these matters by themselves, and in combination with the statements in the NSW Police Handbook referred to above.
In Lule v State of New South Wales, [19] McFarlan JA (with whom Beazley P and Barrett AJA agreed) observed at [64] that the existence of reasonable grounds for a belief “depends on the source of information and its context, seen in the light of the whole of the surrounding circumstances and, having regard to the source of that information, drawing inferences as to what a reasonable person in the position of the independent observer would make of it”.
In Hyder, the Court found, by majority, that a police officer had reasonable grounds for an arrest where he had based his belief of the commission of an offence on affidavits sworn by an officer of the Australian Taxation Office and a Statement of Facts prepared by that officer.
No doubt, at times, the surrounding circumstances may require an arresting officer to make further enquiries beyond the information at hand before the officer can form a belief on reasonable grounds. However, each case will turn on its own facts. In Lyons v Chief Constable of West Yorkshire, [20] police arrested a person alleged to have snatched a handbag from a woman. A witness chased the alleged thief but failed to catch him. The witness returned and stated that he recognised the thief as a Mr Lyons who he had worked with recently for some months. He gave a statement to the police to that effect. Police then attended the home of Mr Lyons, but he was not present – a Mr Ineson was present. Mr Ineson told the police that Mr Lyons could not have committed the crime because he had been working all day in Leeds with Mr Lyon. Police made no further enquiries and arrested Mr Lyons the next day. In holding that the arrest was lawful (that is, that there were reasonable grounds for the suspicion that Mr Lyons had committed a crime), Hutchison LJ observed that:
It seems to me that the attitude of the two officers to Mr Inseson’s observation can be fairly summarized by saying that, though they heard and understood it, they unhesitatingly concluded that it did not undermine their reasonably held suspicions to a significant or any extent. It is easy to understand why this should be so having regard to the strength of the evidence in their possession and the circumstances in which the observation was made. They were, as the authorities show, under no obligation at that stage to investigate the matter further: and in any event had good reasons for not doing so …
(a) He was highly aggressive and highly affected by alcohol; (b) He was slurring his words and had bloodshot eyes; (c) He was argumentative; (d) He would not answer police questions as to why he was in Bundanoon; (e) He had minor lacerations to the left side of his face and cuts on his right-hand knuckles.
Further, SC Bailey had inferred from the fact that Mr Darling had been at Bundanoon Hotel and had alleged he was assaulted, that he was likely the person to whom the manager of the hotel was referring when he told police, in an earlier phone call, that an individual was upsetting some of the locals at Bundanoon Hotel, and that the “locals” may take matters into their own hands if he did not change his behaviour.
Because of the way in which the Plaintiff presented himself to Police, SC Bailey did not think that the Plaintiff was credible in his protestations about his bail conditions. In any event, SC Bailey had what appeared to him an objective record of the bail conditions then imposed upon the Plaintiff.
Further, SC Bailey said in his evidence, in response to the Plaintiff’s statements about his “bail paperwork”, he would not have:
(a) permitted the Plaintiff to enter the Bundanoon Residence as that would have left the Plaintiff uncontrolled and potentially able to abscond or obtain an item which may have posed a threat to Police; (b) entered the house when Police had no idea of what it was they would be exposed to – that is, it would have been a dangerous course for the Police to take to enter premises which were not previously secured by them.
I accept this evidence as it is inherently plausible and it is likely that police safety would be very high in the mind of police officers.
Both SC Bailey and Sergeant Sharp gave evidence that bail conditions could not be checked until the next day (through JusticeLink or directly with the Court). There was no evidence suggesting otherwise, and I accept their evidence.
In my view, the statements by the Plaintiff to the police concerning his bail conditions did not “undermine” the reasonable grounds relied upon by SC Bailey, namely the bail conditions as recorded on the COPS database. I do not consider that the Plaintiff’s statements, together with the implicit acknowledgement in the NSW Police Handbook that it is possible that the COPS database may record incorrect bail conditions, alters the force of the objective material available to the Police. SC Bailey, in my view, had no obligation to make further enquiries about the Plaintiff’s bail conditions before properly forming a belief on reasonable grounds. In my view, that is the case even without regard to the matters set out in paragraph [93] above. Those matters, however, provide additional reasons, in my view, why the reasonable grounds relied upon by SC Bailey were not undermined. That is, the Plaintiff’s statements were made at a time in which he was aggressive and highly intoxicated. True it is that the Plaintiff might have been justifiably upset at the prospect of his arrest in relation to bail conditions which did not exist, however, at the time, the behaviour of the Plaintiff could not have inspired much confidence in a reasonable person in the position of SC Bailey as to the veracity of his statements. In my view, those facts are additional facts which negate any obligation, in the circumstances, for SC Bailey to make any further enquiries as to the Plaintiff’s bail conditions. In the absence of evidence of systemic issues within the COPS database, or evidence that there was, at the time, an objective basis for Police to have had a doubt about the accuracy of the COPS database in relation to the Plaintiff, in my view, the entries on the COPS database known to the Police at the time of arrest were sufficient to provide a reasonable basis for the belief referred to in paragraph [106] below.
Counsel for the Plaintiff observed that it would have been an odd circumstance for the Plaintiff to have called for the attendance of Police while he was breaching his bail conditions. That is, a fact that SC Bailey ought to have considered was that it was likely that the Plaintiff was correct with respect to his bail conditions because otherwise he was exposing himself to the very risk of arrest by calling for the attendance of Police at the Bundanoon Residence. SC Bailey did not, at the time, consider such a proposition. Nevertheless, the Plaintiff’s submission in this regard assumes that SC Bailey ought to have considered that the Plaintiff was, before calling police, thinking rationally such that he would not have called if in fact he was in breach of bail. Given the matters set out in paragraph [93] there is no proper basis to find that SC Bailey ought reasonably to have had had regard to these matters when determining whether to rely upon the COPS database. Moreover, the thought processes of the Plaintiff in deciding to call police after he considered he was the victim of assault were not known to SC Bailey.
(a) consumed alcohol outside of the Saratoga Address and had breached the alcohol bail condition he understood existed. The Plaintiff had admitted as much; (b) been outside the Saratoga Address outside curfew hours and had breached the curfew bail condition.
In my view, the evidence establishes quite clearly that the Plaintiff breached the alcohol bail condition (Condition 3) which SC Bailey believed (albeit wrongly) was imposed upon the Plaintiff.
However, the curfew bail condition which SC Bailey believed existed contained a proviso. That is, the Plaintiff could be outside the Saratoga Address beyond curfew times if he was in the company of “Denise Irwan”. The Plaintiff’s evidence was that the Officers did ask him whether his mother was present in the Bundanoon Residence. It is plain from the evidence that the reference to “Denise Irwan” was a mistaken reference to “Denise Darling”, the Plaintiff’s mother. Nevertheless, in evidence SC Bailey said he had no idea who “Denise Irwan” was. That is, the fact that the Plaintiff’s evidence is that he was asked about the presence of his mother, does not mean that SC Bailey considered whether “Denise Irwan” (the name mentioned on the bail conditions he relied upon) was present. In the absence of an assessment of whether the proviso in the Condition (concerning “Denise Irwan”) was engaged, in my view, SC Bailey did not have reasonable grounds to believe that the Plaintiff breached the curfew bail condition (Condition 1).
Nevertheless, the power under s 77(1) is enlivened if the arresting officer believes on reasonable grounds that the relevant person has breached “a” bail condition – that is, any – bail condition.
For the above reasons, in my opinion SC Bailey believed on reasonable grounds that the Plaintiff was in breach of the alcohol bail condition. Accordingly, the discretion in s 77(1) was enlivened.
In his evidence SC Bailey said that he did take into account the matters in s 77(3) before making the decision to arrest the Plaintiff for breach of bail pursuant to s 77(1).
SC Bailey said he:
(a) considered that the Plaintiff did not demonstrate an intention to comply with his bail conditions because he continued to be in Bundanoon despite the time that had elapsed since SC Bailey warned him to return to the Saratoga Address; (b) observed the Plaintiff was intoxicated and aggressive and thus presented a danger to the community and himself. He was aware that the Plaintiff was involved in an altercation at Bundanoon Hotel and that the Plaintiff had alleged that he was the victim of an assault. (c) did not look at the Plaintiff’s bail compliance history prior to the arrest because it was not readily available to him. (d) accepted that there were no exigent circumstances at the time, such as victim protection, and had not turned his mind to the possibility that the Plaintiff may fail to answer his bail when required to attend court.
(a) as noted above, the level of intoxication and aggression shown by the Plaintiff suggested that he may be a danger to himself or others; (b) it was not appropriate to return to Station and organise an arrest warrant because the Plaintiff could flee or commit an offence or further bail breaches. To organise an arrest warrant, the Police would have had to find an on-call Magistrate or wait until the following day (being Monday) during which time the Plaintiff would have had an opportunity to flee.
The level of intoxication of the Plaintiff was a matter separate to and distinct from the breach of the alcohol condition (Condition 3) that SC Bailey understood the Plaintiff was subject. That is, any consumption of alcohol (even one drink) outside the Saratoga Address would have constituted a breach of Condition 3. If the breach, for example, was a drink of only one light alcohol beer, it may well be that an officer’s response is a warning. Drinking to excess such that the Plaintiff was perceived to be highly intoxicated can reasonably be a matter which goes to the seriousness of the failure to comply with the bail condition.
As Basten AJA noted in Bugmy, it need not take any appreciable time for an experienced police officer to consider the matters in s 77(3) and that the section would not be read as imposing an unreasonable burden on a police officer.
I accept SC Bailey’s evidence that he did take into account the matters set out in s 77(3) including whether an alternative course of action to arrest was appropriate in the circumstances. In this regard, I refer to paragraphs [108]-[109] and [116]-[118]. There is no proper basis in the evidence, in my view, to suggest that three minutes, or approximately three minutes, in the circumstances, was such an objectively short time that SC Bailey could not have taken the s 77(3) matters into account.
SC Bailey decided to exercise the discretionary power in s 77(1)(e) to arrest the Plaintiff. In my view, there is nothing in his decision, in the circumstances described above at paragraphs [82]-[83], [93]-[97], [100], [103], [109] and [110] that could be described as arbitrary, capricious or so unreasonable that no reasonable officer could arrive at the decision. [21]
It was put to SC Bailey by Counsel for the Plaintiff that he could have taken alternative courses to arrest set out in s 77(1). While there are several courses of action available when the discretion in s 77(1) is enlivened, they can be grouped in the following way:
(a) Options which do not involve any court attendance (no action or warning); (b) Options which involve court attendance for breach with no immediate arrest (appearance or attendance notices; application for a warrant); (c) Arrest without a warrant.
As I have made plain above, there is no merits review of a police officer’s exercise of discretion under s 77(1). Although the Plaintiff suggested to SC Bailey that he could have taken an alternative course to arrest, he did not submit, other than in the way referred to below in paragraph [116]-[117] that SC Bailey’s decision was infected with error falling within established categories of administrative review.
The Plaintiff submitted that the “flavour” of SC Bailey’s evidence was that the arrest was in fact carried out for expediency rather than for the proper purpose of taking the Plaintiff as soon as practicable before a court (s 77(1)(e)). The Plaintiff relied upon the evidence of SC Bailey referred to in paragraph [109(b)] above. However, I do not regard that evidence as establishing that SC Bailey arrested the Plaintiff because it would have been too administratively burdensome to take another step. Rather, SC Bailey was explaining that other steps would have taken time and his concern arising from the Plaintiff’s presentation was that there was a risk the Plaintiff may flee or commit an offence or other bail condition breaches. The Plaintiff referred to State of New South Wales v Smith (Smith) [22] for the proposition that administrative convenience and expediency are purposes extraneous to the purpose for which the power of arrest is conferred. That decision did not concern s 77 of the Bail Act and it is trite to say that each case turns on its own facts. However, even applying Smith, I am satisfied that the arrest was not carried out for expediency or convenience. Rather, I am satisfied that SC Bailey determined, in light of the nature of the breach and the presentation of the Plaintiff, that arrest was the only appropriate course to take.
The Plaintiff also submitted that SC Bailey improperly took into account the possibility that the Plaintiff may flee or commit further breaches of bail or commit an offence if not arrested. Whilst not expressly framed this way, it appears that the Plaintiff was submitting that these were irrelevant considerations in the exercise of the discretionary power granted by s 77(1). As I have noted above, s 77 does not expressly identify any matter that a police officer is not permitted to take into account. A matter taken into account by a decision-maker which is claimed to be irrelevant will vitiate a decision as an irrelevant consideration if that matter was, by the relevant statute, forbidden to be taken into account by the decision-maker (whether expressly, or by implication from its subject matter, scope and purpose). [23] The risk that the Plaintiff may be a danger to himself or others, that he may flee or commit further breaches of bail or an offence if not arrested, are not matters forbidden by the Bail Act from being taken into account by SC Bailey in exercising the discretion in s 77(1). In my view, there is nothing in the Act which, by implication from its subject matter, scope and purpose, would lead to such a construction. Further, and in any event, in my view, they were not irrelevant matters. SC Bailey was not identifying that risk as a matter of theoretical analysis. He formed the view that those risks existed because the Plaintiff was:
(a) highly intoxicated; (b) aggressive; (c) involved in an altercation at Bundanoon Hotel which he alleged involved an assault upon him.
Further, the way in which the Plaintiff acted and presented were relevant to SC Bailey’s consideration of the action, if any, to take. The Plaintiff’s intoxication and his aggression made it less likely, in SC Bailey’s view, that taking no action, or giving a warning would be an appropriate or effective exercise of discretion.
It is not for the Court to form its own view about the risks identified by SC Bailey. It is also not for the Court to assess the merits of the exercise of discretion under s 77(1). In so far as the Plaintiff submitted that SC Bailey’s exercise of discretion was for an improper purpose (identified in paragraph [116] above) or was based on irrelevant considerations (identified in paragraph [117] above), I reject those submissions.
The Plaintiff has an understandable grievance that he was placed under arrest and detained for many hours because police believed he breached bail conditions which were not, in fact, imposed upon him. He suffered confinement in circumstances where an error in the COPS database led to incorrect information being provided to SC Bailey and LSC Maiorana. However, s 77(1) of the Bail Act recognises that an arresting officer’s belief of a breach of bail may ultimately be shown to be just that – a belief where in fact there was no breach of bail. The Bail Act controls the conduct of such a police officer by requiring the officer’s belief to be based on reasonable grounds. The Bail Act also imposes an obligation on the officer to consider the matters in s 77(3) as part of the exercise of the discretion enlivened under s 77(1). The Bail Act seeks to strike a balance between controlling the conduct of police with respect to potential breaches of bail, and empowering police to act when they appropriately believe a breach of bail has occurred. The terms of s 77(1) and(3) provide the mechanism by which that balance is struck. It is an unfortunate consequence of the necessity for that balance to be struck, that in some circumstances, such as the present, a person may be detained because of an administrative error.
For the above reasons, in my opinion, the Defendant has established, on the balance of probabilities, that the ‘imprisonment’ of the Plaintiff in the First Event was lawful and the Plaintiff’s claim for false imprisonment in relation to that event fails.
I have found that the arrest of the Plaintiff in relation to the First Event was lawful. Nevertheless, the Plaintiff alleged that the placement of handcuffs on him, the striking by police and the application of a knee to his chest during the ‘shoelace incident’, amounted to a battery on him. The Plaintiff also alleged that the way he was transported from the Bundanoon Residence to MVPS was erratic and resulted in him being “thrown” from one side of the police van to the other, causing him bruising.
After the hearing concluded, I asked the Parties to clarify whether the Plaintiff’s case with respect to battery arising from the application of handcuffs is contingent upon a finding of false imprisonment or whether it is advanced regardless of such a finding. The Plaintiff submits that his case on battery is independent of a finding of false imprisonment (but also clarified that there was no distinct claim with respect to the handcuffing of the Plaintiff while in the dock/cell at MVPS, although that fact was relied upon for both the assessment of damages and aggravation). The Defendant submits that the Plaintiff’s Statement of Claim is confined to a case in battery that was dependent upon a finding of false imprisonment.
In my view, the Plaintiff’s Statement of Claim is wide enough to advance his claims of battery independently of a finding of false imprisonment.
Paragraphs 8 to 71 of the Statement of Claim pleads a series of facts. Amongst those facts are the following:
(a) The New South Wales Police Force (NSWPF) officers handcuffed the Plaintiff’s wrists; (b) The Plaintiff complained that the handcuffs were too tight; (c) The NSWPF officers did nothing to loosen the handcuffs in response to the Plaintiff’s complaint.
After setting out the series of facts, including those referred to above, paragraph 74 of the Statement of Claim pleads: “As a result of the false imprisonments, assaults and batteries the plaintiff suffered the following loss and damage”. There is no indication, in my view, that the pleading of loss and damage as far as it concerns assaults and batteries is contingent on a finding of false imprisonment.
The Defendant submits that there were no material facts and circumstances pleaded in the body of the Statement of Claim to support claims in battery independently of the claim of false imprisonment. I reject that submission. The paragraphs of the Statement of Claim referred to in paragraph [125] plead facts supporting a claim in battery. Upon those facts being established, it is for the Defendant to plead that any such conduct was justified in law to escape liability. Indeed, the Defendant, whilst not admitting the allegation, pleaded in defence of the allegation concerning handcuffs that such a use of force was reasonable, necessary and consistent with ss 230 and 231 of the LEPRA.
The Defendant also submits that had the Plaintiff pleaded a separate claim for battery in addition to the claim for imprisonment, it may have put on evidence to address the practice and procedure with respect to the use of or application of handcuffs whilst a person was in custody. However, it seems to me that the issue concerning battery and the legal justification of the police officers’ conduct was joined on the pleadings as set out above, and such evidence would have been relevant to those pleadings on their face. Further, if the Defendant understood that the claims in battery were dependant on false imprisonment, then it is difficult to understand the Defendant’s reliance on ss 230 and 231 of the LEPRA. If the Plaintiff was unlawfully detained by Police such that his false imprisonment claim was made good, it is not clear to me how the Defendant could then rely on ss 230 and 231 of the LEPRA. It seems to me that ss 230 and 231 of the LEPRA have application when police officers are otherwise acting lawfully. Accordingly, the Defendant’s justification of the use of force assumes, as a matter of law, that the arrest and detention of the Plaintiff was lawful.
I find that the Plaintiff’s claim includes a claim in battery involving the placement of handcuffs on the Plaintiff at the point of arrest which is independent to his false imprisonment claim.
[56] A traditional definition of assault is ‘an overt act indicating an immediate intention to commit a battery, coupled with the capacity of carrying that intention into effect’; see Clerk & Lindsell 12-12. The irrelevance of the intention to carry the battery into effect is demonstrated by the act of presenting an unloaded firearm in such circumstances that if it had been loaded its discharge would have been likely to cause injury. Such an act is an assault unless the person at whom it is pointed knows that it is empty; see generally Clerk & Lindsell 12-13.
[57] According to Fleming, The Law of Torts, 9th ed, at 31-32:
‘Assault consists in intentionally creating in another person an apprehension of imminent harmful or offensive contact. … there may be an assault without battery if the threat to inflict unlawful force is not in fact carried out. … Since the gist of assault lies in the apprehension of impending contact, the effect on the victim’s mind created by the threat is the crux, not whether the defendant actually had the intention or the means to follow it up. The intent required for the tort of assault is the desire to arouse apprehension of physical contact, not necessarily to inflict actual harm.’
[58] Proof of assault requires proof of an intention to create in another person an apprehension of imminent harmful or offensive contact; see, for example, Hall v Fonceca [1983] WAR 309. If the assault lies in creating an apprehension of impending contact, proof of the assault does not require proof of an intention to follow it up or carry it through.
[21] A defendant who directly causes physical contact with a plaintiff will commit a battery unless the defendant proves that the defendant was “utterly without fault” …
[22] Although battery is an intentional tort, a battery may occur when the defendant is merely negligent. It was in those circumstances that a unanimous High Court said in Williams v Milotin (1957) 97 CLR 465 at 474 that “[i]t happens in this case that the actual facts will or may fulfil the requirements of each cause of action” (ie battery and negligence).
(Citation omitted.)
If the Plaintiff establishes that a battery was committed by police, the onus falls upon the Defendant to prove lawful justification under ss 230 or 231 of the LEPRA as a defence to the battery claim.
Sections 230 and 231 of LEPRA provide:
230 Use of Force Generally by Police Officers
It is lawful for a police officer exercising a function under this Act or any other Act or law in relation to an individual or a thing, and anyone helping the police officer, to use such force as is reasonably necessary to exercise the function.
231 Use of Force in Making an Arrest
A police officer or other person who exercises a power to arrest another person may use such force as is reasonably necessary to make the arrest or to prevent the escape of the person after arrest.
These provisions limit the force that a police officer may use to that force which is “reasonably necessary” for the purposes mentioned in ss 230 and 231. The test is whether “the reasonable person would not consider the use of force by the officer to be disproportionate to the risk or danger sought to be prevented”. [26] The matter is to not be evaluated and judged with the benefit of hindsight, but rather by reference to the overall situation, including the pressure of events and agony of the moment, including the excitement, turmoil, and panic that may have confronted the officer at the time. [27]
In Nakhl Nasr v State of New South Wales*; George Nasr v State of New South Wales*, [28] the Court of Appeal held at [104] that injuries sustained may be a relevant factor to consider in determining the amount of force applied, but they do not, without more, establish the existence of excessive force.
As noted above, SC Bailey was the only officer called by the Defendant who was present at the time of arrest and conveyance of the Plaintiff to MVPS.
He could not recall whether the Plaintiff was handcuffed while conveyed to MVPS. He said that although it was possible, it would have been a very rare measure. The Plaintiff’s evidence was that he was handcuffed. I accept the Plaintiff’s evidence in this regard. Although SC Bailey indicated that it would be rare to handcuff someone in the police van, he said it might happen in relation to a person exhibiting threatening, hostile and defiant behaviour. His evidence of the Plaintiff’s conduct when police attended the Bundanoon Residence appears to me to fall within the descriptors of hostile and defiant behaviour. Accordingly, in circumstances where SC Bailey does not have a clear recollection, I accept the Plaintiff’s evidence. I have had regard to the Plaintiff’s intoxication at the time; however, I consider an event such as being handcuffed as something the Plaintiff is likely to recall. However, for the reasons mentioned in paragraph [43] above, I do not accept that the Plaintiff was handcuffed behind his back. I note that the Counsel for the Plaintiff, in final oral address for the Plaintiff, conceded that at least when he was in the dock/cell he could not have been handcuffed behind his back at the time he removed a shoelace and sought to attach it to the ceiling (something that could not be possible if his hands were handcuffed at the back).
In my view, the touching of the Plaintiff and placement upon him of handcuffs constituted a battery subject to the defence of lawful justification. Accordingly, it is necessary to consider whether the Defendant has established lawful justification by reason of the powers in ss 230 and 231 of the LEPRA. Notwithstanding that SC Bailey described the placing of handcuffs on a person while inside the police van as a rare occurrence, I accept the Defendant’s submission that in circumstances where the Plaintiff was exhibiting aggressive conduct (though not seeking to strike or hit police) while highly intoxicated, the force used by police was reasonably necessary in the carrying out of the function of arrest and conveyance of the Plaintiff to MVPS. That force was the placement of handcuffs and the leading of the Plaintiff to the police van. I have earlier accepted SC Bailey’s evidence that the journey was approximately 16 minutes. By maintaining the handcuffs on the Plaintiff during that journey, the officers would be confident that at the journey’s end they could remove the Plaintiff from the van safely – for his and their safety given the manner in which he presented himself at the Bundanoon Residence. Absent the handcuffs there would have been uncertainty as to how the Plaintiff would have acted at the end of the journey when the van door was opened. I consider that “the reasonable person would not consider the use of force” by SC Bailey and LSC Maiorana in applying handcuffs to be disproportionate to the risk or danger sought to be prevented – namely the risk or danger to their and the Plaintiff’s own safety.
The Plaintiff claims that he suffered a battery during the Police Officers’ conduct when removing his shoelace. He claims that the manner in which Police brought him to the ground and restrained him, including his allegation that he was struck and had a knee forcefully applied to his back, amounted to a battery and that the use of force was beyond that which was reasonably necessary (noting, however, that it is for the Defendant to establish the defence of lawful justification by reference to ss 230 and/or 231 of LEPRA).
The incident in relation to the removal of the Plaintiff’s shoelace was fast moving and one in which the Plaintiff was not co-operative. There was no dispute that the Plaintiff had removed a shoelace from one shoe and that the police sought from the Plaintiff the shoelace from the other shoe. I am satisfied that Police did that for matters of safety, principally for the Plaintiff. There was no dispute that the Plaintiff refused to remove his shoelace and told police that if they wanted the shoelace removed, they would need to remove it themselves.
The contemporaneous police records describe the Plaintiff in the following way:
(a) When on the phone when he first called Police in relation to the alleged assault upon him, that he was “argumentative/abusive over the phone”; (b) When approached by Police at the Bundanoon Residence immediately prior to arrest, that he “was highly aggressive … highly affected by alcohol”; (c) Whilst in custody at MVPS, that “he was abusive towards Police and claimed to have knowledge of Police family members”; (d) Whilst in custody at MVPS, that he was “uncooperative, continually attempts to antagonise and bait police when spoken to”; (e) When asked to remove his shoelaces, that the “POI refused, POI became physically confrontational with Police. Police were required to physically control [the Plaintiff] who then threatened to assault Police.”
The Plaintiff accepted he was argumentative when in custody and to a degree abusive towards Police but also claimed Police were abusive to him. He said he co-operated with Police “to a degree.” He denied he baited police.
The Plaintiff gave no evidence about the ‘shoelace incident’ in his affidavit, nor did he allude to it in the additional evidence in-chief he gave in the witness box. The Plaintiff’s Statement of Claim relevantly makes the following allegations:
(a) At paragraph 37: “During his detention … the Custody Manager and two other … officers grabbed hold of the plaintiff in the cell and took the plaintiff to the ground to remove a shoelace…”; (b) At paragraph 38: “One or more of the … officers struck the plaintiff in the chest and legs when he was on the ground”.
Q. And you refused to comply with just simple questions such as removing your shoelaces
A. No, not at all.
However, later the Plaintiff gave the following explanation:
A. I stood in the loading dock on the bench, the seal bench, I removed one shoelace prior, I was looking to attach the shoelace to somewhere on the sealing (sic). And then the police saw this, they came and opened the door and asked for the shoelace which I gave to them. And they were demanding I take the other shoelace off the other boot, and I said, “You can take it off, I’m not taking it off”. I presented my foot towards them, and at that stage, the police officer put his arms behind the back of my legs, pulled it forward, which collapsed my legs which took me to the ground, dragged out of the loading dock, and then three police officers were on top of me, and until they chose not to do that anymore. So, that was an assault.”
(Emphasis added.)
Q. And you refused to remove the cord from your trackpants.
A. I don’t think I had trackpants on, but no, I did not refuse to remove anything”.
(Emphasis added.)
It was in re-examination that the Plaintiff first gave evidence that when he was on the ground, there were two other officers (apart from Sergeant Sharp) involved, with one putting his knee on his chest with “an incredible amount of pressure” and the other striking his legs. The Plaintiff tendered the notes from a medical practitioner referred to earlier in paragraph [38] which record his reporting of having had a police officer’s knee to his chest.
The Defendant relies on the evidence of SC Bailey and Sergeant Sharp with respect to the events occurring while the Plaintiff was in custody at MVPS, including in relation to the ‘shoelace incident’. I have referred to that evidence earlier. In short, their evidence of the Plaintiff’s behaviour in custody was consistent with the contemporaneous records referred in paragraph [145] above. SC Bailey’s evidence that the Plaintiff said: “if you open the door, I’m going to bash you. Your head is going to be the first one I kick”, when SC Bailey told the Plaintiff that if he did not remove his shoelace, the police would have to do it, is significant. The Plaintiff denied threatening police, however, SC Bailey’s evidence is consistent with the tenor of the contemporaneous notes, particularly that in paragraph [145(e)] which recorded, specifically in relation to the ‘shoelace incident’, that the Plaintiff became “physically confrontational.” I accept SC Bailey’s evidence. SC Bailey denied striking the Plaintiff and said he said he did not see any other officers strike the Plaintiff. SC Bailey also denied placing his knee on the Plaintiff’s chest. Rather his evidence of how the officers behaved, consistently with their training, was to kneel, with their knees protruding from their upper torso, using the Plaintiff as leverage. His evidence was that the Plaintiff was thrashing his arms and legs around. He also gave evidence that he and the other police officers rolled the Plaintiff onto his stomach because that was what they were taught to do to control someone and to avoid anyone getting hurt. There is no evidence contradicting the nature of that training and I accept that that reflects their training. I also accept SC Bailey’s evidence that the Officers acted in the way described by SC Bailey because it is consistent with their training.
In my view, Sergeant Sharp was an impressive witness who gave his evidence clearly and without any attempt to advocate the Defendant’s position, although in relation to some aspects, he did not have great recall of events. Consistently with the evidence of SC Bailey, Sergeant Sharp gave evidence that once the Plaintiff was on the ground, he was resisting the police. He said he did not strike the Plaintiff and cannot recall SC Bailey applying a knee to the Plaintiff’s chest.
The Plaintiff has the onus of proving, on the balance of probabilities, the conduct alleged to constitute the battery. Clearly, in my view, the conduct of the police in taking the Plaintiff down to the ground and restraining him while removing his shoelace constituted a battery subject to the defence of lawful justification. With respect to the Plaintiff’s allegations:
(a) I am not persuaded that any Officer struck the Plaintiff; (b) I accept that, given it was a fast-moving event, and given the contemporaneous reporting to his medical practitioner referred to at paragraph [38] above, it is probable that a knee or some other part of a Police Officer did come into contract with the Plaintiff’s chest or back during the struggle on the ground. However, I consider that occurred in the context of the Police acting in accordance with their training and in the context of the Plaintiff exhibiting the behaviour referred to in the documents at paragraph [145(c)]-[145(e)] while in custody.
(a) The documentary record referred to in paragraph [145(c)]-[145(e)] above which I accept as reflecting the facts. They are documents prepared contemporaneously with the events; (b) The documentary record in referred to in paragraph [145(b)] records that the Plaintiff was highly affected by alcohol. There is no suggestion that any officer was affected by alcohol – they were on duty at the time; (c) I prefer the evidence of SC Bailey and Sergeant Sharp with respect to the physical confrontation that occurred when they sought to remove the shoelace. The Plaintiff was affected by alcohol and his perception of a fast-moving event is not, in my view, as reliable as that of those Police Officers. I also consider their evidence is consistent with the documentary record of the way the Plaintiff presented himself immediately before and during the incident; (d) The documents, consistently with the evidence of SC Bailey and Sergeant Sharp, showed that the Plaintiff was being uncooperative, abusive and was resisting police efforts to remove his shoelace; (e) I accept Sergeant Sharp’s evidence that when the Plaintiff put forward his shoe, he considered that there was a risk the Plaintiff would kick him. I accept SC Bailey’s evidence that the Plaintiff said to him that he would kick him – such a statement is consistent with the way in which the Plaintiff is described in the documentary record.
In the circumstances faced by the Police, it is clear that the Police were required to use force to remove the Plaintiff’s shoelace. I am satisfied that the force used by the officers when confronting the Plaintiff to remove his shoelace, and in taking the steps they did to remove the shoelace constituted force that was ‘reasonably necessary’ within the meaning of s 230 of the LEPRA. That is, in my view, “the reasonable person would not consider the use of force by the officer to be disproportionate to the risk or danger sought to be prevented.”
Accordingly, in my view, the Plaintiff has failed in his claim for battery in relation to the ‘shoelace incident’.
With respect to the Second Event, the Plaintiff relies on his affidavit and oral evidence. The Defendant relies on an affidavit from Sergeant Vila and called Chief Inspector Webber and Sergeant James, both of whom were present at Gosford Police Station when the Plaintiff was brought into the Station after his arrest.
On 17 August 2018, the Plaintiff was assaulted (Terrigal assault). Ambulance attended the scene and conveyed him to hospital.
In his affidavit, Constable Vila stated that he was notified of the Plaintiff’s assault in Terrigal and attended the scene. When he arrived at the scene at about 12:05 am, the Plaintiff was inside the ambulance. He stated the Plaintiff was “uncooperative” and hesitated to provide details about the Terrigal assault. The Plaintiff was then conveyed to Gosford Hospital.
When he later returned to Terrigal Police Station, he conducted checks on the Plaintiff using the WEBCOPS system. The system recorded, incorrectly, that the Plaintiff had active bail conditions in relation to the charge matter which were:
(1) not to be absent from [the Saratoga Address] between the hours of 8.00pm and 5.00am unless in company of Denise IRWAN, with further conditions:
(a) Not to be outside the dwelling after 8pm;
(b) Not to consume alcohol outside the dwelling.
He formed the view, based on that incorrect information, that the Plaintiff breached his curfew condition. He attended Gosford Hospital. At about 2:10 am, he served the Plaintiff with a Field CAN. I accept the evidence of Constable Vila. It is, largely consistent, in material respects, with the Plaintiff’s evidence. I accept that the WEBCOPS system continued to contain incorrect active bail conditions in relation to the Plaintiff. The Plaintiff’s evidence is that he told the Officer when given the Field CAN that he did not have the bail conditions referred to in paragraph [160]. Given that in fact those bail conditions were not imposed upon the Plaintiff, I consider it probable that the Plaintiff would have told the Officer of that fact and accordingly, I accept the Plaintiff’s evidence in this regard.
The only written communication Constable Vila had with the Plaintiff about the Terrigal assault, was a text message he sent on 23 August 2018. Contrary to the Plaintiff’s evidence, Constable Vila did not ask the Plaintiff to contact him about the Terrigal assault. The message was as follows:
Hi Steve, The event number for the incident where you were punched in the head at Terrigal on Friday night is [xxxx]. Cst Vila, Gosford Police, ph [xxxx]”
(Certain details removed.)
On 20 August 2018, the Plaintiff appeared in the Local Court at Gosford. The breach of bail allegation was dismissed.
On 23 August 2018 at about 5:30 pm, the Plaintiff attended Gosford Police Station to speak with Constable Vila. He was told by an officer that Constable Vila was not present at the Station but that he could wait for him to return.
The Plaintiff waited outside the Station for Constable Vila to return. At times, he used his mobile phone. A short time later, two officers approached the Plaintiff. They accused him of filming cars entering the Station driveway. The Plaintiff told the officers he was not filming and that he was waiting for Constable Vila who asked him to come and see him about being assaulted. Four police officers then approached him and continued to accuse him of filming police. He repeated to the officers that he was not filming police and was simply waiting for Constable Vila.
The Plaintiff’s evidence was that SC Brown grabbed him by the arm and “manhandled”, “dragged”, and “forcefully led” him to the Station. He was not handcuffed. The following exchange occurred:
Plaintiff: You don’t have to grab my arm so tight I can walk.
SC Brown: Well, you are under arrest so I can do what I want.
Plaintiff: What am I under arrest for?
SC Brown: Intimidate Police.
There is no evidence contradicting the Plaintiff’s evidence set out in paragraph [166]. I find that the SC Brown placed a firm grip on the Plaintiff to lead him into the Station and the exchange between them referred to above occurred.
He was taken to the custody area and placed in a locked Perspex cell. The police took his property, including his phone. The Plaintiff’s phone was unlocked at the time and did not have an access pin.
He was later released without charge, and the officers gave his phone back to him. The officers found no evidence on his mobile phone that he had been filming Police.
The Plaintiff estimated that he was detained for about 1 to 1.5 hours. He said that this was because it was daylight when he entered the Station and almost dark when he left. He also said he arrived home at about 8:00 pm, and that it only took about 20 minutes to travel to his home. However, the Plaintiff did say he did not have his watch, and he “didn’t really take note of how many minutes I was in there.” Further, he said he was “quite distressed when leaving.” My finding with respect to the time the Plaintiff spent in custody is set out below.
On 23 August 2018, Chief Inspector Webber made the following entry in his End of Shift Report (EOSR) with respect to the Plaintiff:
5.30pm – Steven DARLING has entered the station to enquire as to if he had any outstanding warrants, then asked if Cst VILA was working, prior to leaving. He was then observed by Police to be using his phone to video vehicles / number plates of vehicles entering the Police station. He was subsequently questioned, phone searched with nil adverse – possible mental health issues – released and given a move along direction. Intel to be submitted by SC BROWN.
(Emphasis added.)
Chief Inspector Webber could not recall the specific incident of 23 August 2018. He assumed he was told the above information by the arresting officer, SC Brown, but again, he could not recall. SC Brown, the arresting officer, was the most probable source of that information.
In relation to the above entry, he said, and I accept (here being no evidence to the contrary) that:
(a) “phone searched with nil adverse” meant that there was nothing in the phone to suggest criminal activity; (b) “released and given a move along direction” meant that after checking the Plaintiff’s phone, the Plaintiff was released from police detention and directed to move on from the area outside the police station; (c) the Plaintiff would have been under arrest outside the Station, but he could not comment on whether the Plaintiff was taken into the custody area prior to the move on direction; (d) the word “intel” referred to the details of the Plaintiff’s conduct, being that he was seen (as the officers considered) filming police personal vehicles outside the Station, and that he had entered the Station to ask about outstanding warrants and then asked whether Constable Villa was working. He said such “intel” poses a potential risk to police, so an intelligence report is created for the police in case there are further incidents. In this regard, he said that the follow-up by Detectives Boyd and Howard on 28 August 2018 (referred to below) was a usual occurrence in circumstances where an intelligence report had been created. The purpose was for the officers to ascertain more information and confirm whether there is a risk to policy safety.
(a) the arresting officer would take the arrested person into the custody area. The custody area was overseen by a custody sergeant who was responsible for the care, control, and safety of all persons, including the police and arrested persons; (b) the arresting officer and custody sergeant would speak about the arrested person, including the reason for their arrest; (c) the arrested person would be searched and placed in the dock area. The dock area is a Perspex cell, and it is visible from the custody sergeant’s desk; (d) after the arrested person was detained in the dock area, the custody sergeant would aim to speak with them as soon as possible. Chief Inspector Webber could not provide an estimate of how long it usually took for the custody sergeant to speak with the arrested person as it depends, he said, on how many people are in custody at the given time. However, he did say that in his 31 years of working in the NSWPF, he had never seen a person detained in the dock area for 1.5 hours without the custody sergeant speaking to them (which leads to the creation of custody management records). He said, “It just would not happen.”
I accept Chief Inspector Webber’s evidence of the ordinary procedures referred to above, there being no evidence to the contrary. I set out my finding, however, with respect to the time period in which the Plaintiff was held in custody, below.
The Defendant called Sergeant Scott James. He did not have an independent recollection of the incident that occurred on 23 August 2018.
His evidence was that, as a custody manager, he could not provide a specific period of time that it took for a person to be kept in the custody area before charge paperwork was commenced. However, based on his 20 years of experience, he said that it would be “uncommon” for it to be longer than 15 minutes. This is because the person would only be kept in the custody area for the short period of time that it took to record details including the reason they were in custody and any charges to be laid, to complete a property docket, and observe their demeanour in custody. I accept his evidence of his experience, there being no evidence to the contrary. I set out my finding, however, with respect to the time period in which the Plaintiff was held in custody, below.
He gave evidence in relation to a ‘move along order’ consistently with the evidence of Chief Inspector Webber’s evidence.
The police notebooks of SC Brown and SC Noble and a Brisbane Waters Police District – EOSR were in evidence. The two notebooks contained an entry in the following terms:
POI seen to record S/Cst Brown as he entered the police driveway.
The EOSR stated the following in relation to the Plaintiff:
He was then observed by Police to be using his phone to video vehicles/number plates entering the Police Station”. A COPS entry dated 23 August 2018 stated: “The info then noted the POI hold up what appeared to be filming the inf in his private motor vehicle as he entered the driveway and continued to film the inf vehicle as it made its way into the grounds of the Police station and into the car park.
SC Brown, the arresting officer, was not called but his absence was explained due to medical reasons. There was no challenge by the Plaintiff to the legitimacy of the Defendant’s explanation of why SC Brown was not called. SC Noble was not called. None of the other officers present at Gosford Police Station at the point at which the Plaintiff was arrested were called. The Defendant did not explain why SC Noble and the other officers were not called. In my view, in circumstances where an extract of SC Noble’s notebook was tendered, and SC Brown was not called, a Jones v Dunkel inference is available against the Defendant with respect to SC Noble. SC Noble clearly was a person who witnessed the Plaintiff’s conduct. He was also present at the lead up to the arrest. Similarly, his notebook indicates that SC Cody, SC Cooper, Officer Cronin (his rank at the time is not established by the evidence) and Sergeant Parle were also present when the Plaintiff was spoken to about his conduct. The Defendant did not call any of those Officers nor was any explanation proffered for their absence. However, it is less clear that they witnessed the conduct of the Plaintiff which was the basis of his arrest. Accordingly, I do not consider it appropriate to draw any inference from the absence of those officers because their evidence in relation to the conversation with the Plaintiff is unlikely to have added to the evidence in the notebooks. [29]
In any event, given my reasons set out below, it is unnecessary for me to adopt inferences applying the principles in Jones v Dunkel. However, I think it is appropriate to approach the factual issues arising in relation to the Second Event on the basis identified in Blatch v Archer [30] as explained in Ho v Powell [31] by Hodgson JA (with whom Beasley JA, as her Honour then was, agreed):
[14] …in deciding facts according to the civil standard of proof, the court is dealing with two questions: not just what are the probabilities on the limited material which the court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision …
[15] In considering the second question, it is important to have regard to the ability of parties, particularly parties bearing the onus of proof, to lead evidence on a particular matter and the extent to which they have in fact done so …
As with the First Event, there is no dispute that upon his arrest by SC Brown, the Plaintiff was relevantly ‘imprisoned’ for the purposes of the tort of false imprisonment. The onus, therefore, is upon the Defendant to establish that the Plaintiff’s detention was lawful. The Defendant relies, in this regard, on the power of arrest under s 99(1) of the LEPRA.
Section 99 relevantly provides:
99 Power of police officers to arrest without warrant
(1) A police officer may, without a warrant, arrest a person if—
(a) the police officer suspects on reasonable grounds that the person is committing or has committed an offence, and
(b) the police officer is satisfied that the arrest is reasonably necessary for any one or more of the following reasons—
(i) to stop the person committing or repeating the offence or committing another offence,
(ii) to stop the person fleeing from a police officer or from the location of the offence,
(iii) to enable inquiries to be made to establish the person’s identity if it cannot be readily established or if the police officer suspects on reasonable grounds that identity information provided is false,
(iv) to ensure that the person appears before a court in relation to the offence,
(v) to obtain property in the possession of the person that is connected with the offence,
(vi) to preserve evidence of the offence or prevent the fabrication of evidence,
(vii) to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence,
(viii) to protect the safety or welfare of any person (including the person arrested),
(ix) because of the nature and seriousness of the offence.
…
(3) The arresting police officer or another police officer must, as soon as is reasonably practicable, take the person who has been arrested under this section before an authorised officer to be dealt with according to law.
…
(7) In this section—
arresting police officer means the police officer arresting a person under this section.
The principles referred to in paragraphs [67]-[69] above are apposite to an assessment of whether an arresting officer had reasonable grounds for the relevant suspicion required by s 99(1)(a) of the LEPRA.
The state of satisfaction required by an arresting officer under s 99 of the LEPRA is different to that of s 77 of the Bail Act. It requires the arresting officer to have formed a “suspicion” (rather than a “belief") on reasonable grounds. In R v Rondo, [32] Smart JA said at [53] that “[a] reasonable suspicion involves less than a reasonable belief but more than a possibility … [it requires] more than a reason to consider or look into the possibility of its existence.”
[109] … To comply with the requirement in s 99(3) immediately upon arrest, a police officer must at the time of arrest have an intention to take the person, as soon as is reasonably practicable, before an authorised officer to be dealt with according to law to answer a charge for that offence. If there is no intention to comply with the requirement in s 99(3), the arrest is unlawful. And a requirement for the police officer to have an intention to bring a person before an authorised officer means, as a matter of substance, a requirement to have an intention to charge that person.
…
[115] Reasonable suspicion requires an arresting constable to have reasonable grounds for suspicion of guilt. This is less than reasonable and probable cause for prosecution. The former is the necessary intention at the time of arrest. The latter is the necessary intention when making a decision to prefer a charge and then preferring it. Contrary to the submissions of the State of New South Wales, the requirement of an intention to charge at the time of arrest does not import, to the time of arrest, a requirement to have the mental state required at the time of charging. All that it means is that there is an intention to meet the requirements for charging at the time of charging, which is to take place as soon as is practicable after the arrest, unless it emerges after the arrest that there is not sufficient basis to bring a charge. And in that circumstance, the arrest should be discontinued pursuant to s 105.
(Emphasis in original. Footnotes omitted.)
[12] … it is impermissible for a police officer when making an arrest to do so on the basis that he or she may charge the accused following a period of questioning … It does not mean that a police officer making an arrest must disregard the possibility that, between the arrest and charging, matters may emerge – including through a permitted interview during the investigation period – that may negate the intention to charge. In other words, so long as when making the arrest the police officer has the intention to charge, the requisite intention exists. It is not inconsistent with having the requisite intention to charge that the police officer also contemplates utilising the investigation period by questioning the accused, so long as the intention is to charge unless it emerges after investigation that arrest is no longer required. In the words of the majority in Robinson:
“The intention required at the time of arrest is an intention to charge unless it emerges after the arrest that the circumstances do not justify such a decision.”
(Emphasis in original.)
There is no direct evidence of the precise conduct of the Plaintiff that led the Officers to record in their notebooks (and provide information leading to the entries in police records referred to above at paragraphs [171] and [179] above) that the Plaintiff was filming, at least, SC Brown’s private vehicle. The Plaintiff had a mobile phone with him at the time. He may well have been moving it in such a way as to mimic filming vehicles. That may be the basis for the police entries. However, there is no evidence to that effect. The entries in the documents referring to the Plaintiff “filming” amount to a conclusion from unstated facts, namely the precise conduct of the Plaintiff from which the inference he was filming was drawn.
Given the content of the police notebooks and COPS event entry, I find that SC Brown, the arresting officer, did suspect that the Plaintiff was filming his vehicle as he entered the driveway of Gosford Police Station. I also take into account, in this regard, that an ‘intel report’ was prepared and that two detectives attended upon the Plaintiff at his home following the incident. However, the ‘intel report’ and the visit by the detectives were based on the information provided by SC Brown (and most likely SC Noble) about the Plaintiff’s conduct. That is, they do not provide an independent source of fact regarding the Plaintiff’s conduct that caused SC Brown, the arresting officer, to form his suspicion. They are dependent on the prior observations of the officers, and those observations have not been the subject of evidence, other than the conclusionary statements referred to above. Having regard to all the material, in the absence of evidence identifying with some clarity the basis for SC Brown’s suspicion, I cannot be satisfied that it was based on reasonable grounds.
In any event, even if SC Brown’s suspicion was based on reasonable grounds, the arrest would only be lawful if he had a contemporaneous intention to charge the Plaintiff at the time of arrest. Again, there is no evidence from any officer addressing that matter. There is nothing in the contemporaneous documents indicating that such an intention had been formed at the time of arrest as opposed to, for example, an arrest without having formed that intention for the purposes of reviewing the contents of the Plaintiff’s mobile phone to determine whether the Plaintiff was in fact filming. The police notebooks indicate that the Plaintiff was “cautioned” when spoken to by police. However, the fact of a caution does not indicate a contemporaneous intention to charge the Plaintiff with a crime. I am unable to infer, simply from the fact of arrest and the entries in the police notebooks, that such a contemporaneous intention had been formed.
Further, apart from a reference to “intimidate police”, no section of the Crimes Act or any other Act is mentioned in the police notebooks. When the detectives later approached the Plaintiff at his home they took with them a copy of s 60C of the Crimes Act. I will not set out its terms, suffice it to say that it incorporates a number of elements that need to be satisfied before the crime is made out. Further, the COPS event record on 23 August 2018 recorded that the Plaintiff was advised by the detectives that “his activity at the Police Station may be harassment and may be an offence under S60C of the Crimes Act NSW” (emphasis added).
The Defendant bears the onus of establishing a lawful arrest which involves the existence of a contemporaneous intention to charge the Plaintiff at the time of arrest. For the above reasons, the Defendant has not discharged that onus. Accordingly, for that additional reason, I find that the Defendant has not established that the ‘imprisonment’ in the Second Event was lawful.
Given this finding, it is unnecessary to consider s 99(1)(b) of the LEPRA.
The Plaintiff’s evidence is that he was led by the arm into the Police Station by SC Brown. He has used various descriptors; however, the thrust of his evidence is that SC Brown’s grip was firm, and he was forcefully led into the Station. There being no evidence to contradict the Plaintiff, I accept his evidence.
Given that the Defendant has not satisfied the Court that the arrest of the Plaintiff was lawful, it follows in my view, that the physical contact made by police upon the Plaintiff constitutes a battery.
(a) false imprisonment in relation to the Second Event; (b) battery with respect to the physical grip of his arm by SC Brown when guiding him into Gosford Police Station during the Second Event.
The Plaintiff claims general, aggravated, and exemplary damages.
General damages are compensatory in nature. With respect to a claim of false imprisonment, damages are intended to compensate a plaintiff for the loss of liberty, and the loss of dignity and reputation. [36] Factors that are relevant in the assessment of damages for false imprisonment include the duration of the deprivation of liberty, the hurt or injury to a Plaintiff’s feelings, and, mental suffering, disgrace and humiliation suffered by the Plaintiff. [37] Courts have recognised that the basis of an award may be directed to, or largely directed to, the “initial shock” upon being arrested. [38]
General damages for battery seek to compensate the Plaintiff for the effect of the battery upon the Plaintiff – that effect may be physical or psychological. In relation to the Second Event, the Plaintiff claims that his arm was grabbed tightly. The Plaintiff did not, however, lead evidence of any injury arising from the Second Event.
Aggravated damages are also compensatory in nature and may be awarded in circumstances where the defendant’s conduct causes increased distress – that is, the manner of the defendant’s behaviour in carrying out the wrong, or thereafter, increased the plaintiff’s suffering. [39] Such damages may be awarded when the defendant’s conduct was unjustifiable, improper or carried out with contumelious disregard for the Plaintiff’s rights, or was high-handed or involved malice. The Plaintiff’s Statement of Claim particularises the matters he relies upon for his claim for aggravated damages.
Exemplary damages are intended to be punitive in nature and to serve as a means of both general and specific deterrence. Generally, such damages are reserved for conscious wrongdoing or for conduct that is high-handed, outrageous and shows contempt for others. The Plaintiff’s Statement of Claim particularises the matters he relies upon for his claim for exemplary damages.
Finally, both Parties proceeded on the basis that damages are to be assessed at common law and not pursuant to the Civil Liability Act 200**2 (NSW) (CLA). It appears that the Parties proceeded upon the basis that s 3B(1)(a) of the CLA applied to the Plaintiff’s allegations. Given the common position of the Parties that damages are to be assessed at common law, I will assess damages on that basis. In any event, on the findings I have made, the CLA has no application to the damages to which the Plaintiff is entitled. The Plaintiff’s claims are not based on allegations of negligence, and on my findings, the Plaintiff has not suffered personal injuries as defined in the CLA.
As noted earlier, the Plaintiff alleges he was detained in the Second Event for about 1 to 1.5 hours. The Defendant denies this and alleges it was no more than 15 minutes. I have earlier referred to the evidence of each Party on the issue.
Ultimately, it is the Plaintiff’s burden to establish the facts upon which he relies for the assessment of damages. I am not satisfied that the Plaintiff was detained for the period he alleges he was detained. His own evidence is unreliable given the matters referred to in paragraph [170] above and the evidence of the experience of the officers about the timing at which custody records are prepared was not undermined in cross-examination. Of course, it is plain, however, that the evidence that it was uncommon for custody records to take in excess of 15 minutes to prepare is itself necessarily an estimate – that is, the witnesses did not point to a formal procedure requiring custody records to be prepared within 15 minutes, nor did they indicate that they had consciously checked that timing on many occasions when a person was placed in custody. Nevertheless, the combined experience of the officers who gave evidence with respect to the relative promptness at which custody records are prepared in the ordinary course is persuasive and I prefer that evidence to the estimate provided by the Plaintiff. Having said that, as I have noted, the officers’ own assessments are necessarily estimates.
In light of the evidence to which I have referred, and accepting that each witness was providing a form of estimate, I find on the balance of probabilities that the Plaintiff was detained for a period of between 15 minutes to 30 minutes – that period is largely consistent with the evidence of the Police Officers called by the Defendant but allows for the fact that their evidence as to time is itself an estimate which was not shown to be based on direct observation.
The Plaintiff gave evidence that he was distressed by his arrest and detention.
The Defendant cross-examined the Plaintiff to establish that prior to the Second Event he had been in custody on other occasions. In short, the Plaintiff accepted that he had been in custody more than ten but less than 20 times. He also said that on one occasion, he was in custody for 10 days at Silverwater Correctional Complex having being bail refused. He said that prior to his custody in the First Event, he had not been in custody for 11 years. The Defendant submits that the Plaintiff’s prior experiences in custody is relevant in an assessment of damages for false imprisonment. [40] Here, however, given the length of time (11 years) between his previous custody experience and the First Event, I do not place weight on that experience as a matter having any real significance to an assessment of damages for the false imprisonment in the Second Event. Further, although the Plaintiff’s arrest and detention in the First Event was lawful, it nevertheless proceeded on an incorrect understanding of his bail conditions, and the Plaintiff was understandably indignant about his loss of liberty. That is, I am unpersuaded that the experience he had on 8 July 2018, would have lessened his shock, or otherwise lessened his feelings, with respect to his detention in relation to the Second Event.
The Plaintiff was escorted by the arm by SC Brown into Gosford Police Station. I accept the Plaintiff’s evidence that SC Brown’s grip was firm. There is no evidence of any injury to the Plaintiff from SC Brown’s grip. Nevertheless, the touching by SC Brown was a battery given that the arrest was unlawful.
I assess damages for this battery at $1,500.
There is no evidence contradicting the Plaintiff’s evidence set out at paragraph [166] above, of his exchange with SC Brown. There is no evidence that the Plaintiff was affected by alcohol in the Second Event, and I accept his uncontradicted evidence. In my view, such a statement would likely increase the hurt and humiliation suffered by the Plaintiff with respect to both the unlawful arrest and the battery which I have found. When he was ultimately released after Police realised that there was nothing on his phone that amounted to the filming of police, the Plaintiff said he was not told that he was not charged, and he left thinking he had been charged, having been told he would get paperwork in the mail. Again, there is no evidence contradicting the Plaintiff’s evidence, and I accept it. The failure of police to inform the Plaintiff of the outcome of his arrest and release would reasonably add to the hurt and humiliation suffered by the Plaintiff. There is no explanation from the Defendant of the failure of police to inform the Plaintiff that he was not being charged and that they had confirmed that no video of police had been found on his mobile phone.
The Plaintiff was subsequently attended upon at his home by two detectives who provided him with a copy of s 60C of the Crimes Act. An intelligence report was prepared following the Second Event. I accept that it was prepared because police had concerns about the Plaintiff’s behaviour during the Second Event. Nevertheless, the attendance of police upon the Plaintiff, including the use of the words that I accept Detective Boyd used (as to which see paragraph [180] above), occurred in circumstances where he had not been charged with any offence arising from the Second Event. I accept the Plaintiff’s evidence that the Plaintiff felt threatened and scared by this attendance upon him.
Aggravated damages are compensatory in nature and ought to reflect any additional hurt, embarrassment or injury arising from the wrongful act or acts. In my view, the matters referred to in paragraphs [215]-[216] warrant aggravated damages. The Plaintiff referred to several cases [47] in which aggravated damages were awarded. As I have indicated earlier, while it can be instructive to review assessments in other cases, ultimately, an award must reflect the specific facts and circumstances in this case. I assess aggravated damages for the two claims arising from the Second Event (false imprisonment and battery) at $3,000.
The Plaintiff also relies on the Non-Custody Event as a matter relevant to aggravation. However, it preceded the Second Event and did not involve the Police Officer who arrested the Plaintiff in the Second Event (or the other officers who approached the Plaintiff). Accordingly, it does not warrant any adjustment to my assessment of aggravated damages.
(a) “The New South Wales Police Force … failed to update their COPS system despite being aware of significant errors and inaccuracies that exist between the COPS and JusticeLink systems in respect of bail orders …”; (b) “The New South Wales Police Force, in contumelious disregard of the rights of the Plaintiff … created purported [bail] conditions … where such conditions did not exist … caused the false…conditions to be entered onto a computer database … used the false imprisonment … as an occasion to secure more onerous conditions of liberty upon the Plaintiff …”
Exemplary damages are sought to reflect society’s disapprobation and condemnation of such conduct by the NSWPF officers and to deter like-minded individuals from doing the same.
I do not consider that the conduct of the Police in the Second Event displayed such a disregard for the Plaintiff’s rights that it requires an award of exemplary damages. There is no evidence that SC Brown or other officers involved in the Second Event acted with conscious wrongdoing. I do not consider those matters warrant exemplary damages.
Accordingly, I assess damages, including aggravated damages, for the Second Event at $8,500.
The Plaintiff is entitled to interest on that amount.
(a) He was handcuffed at the moment of arrest and during the conveyance to MVPS; (b) He remained handcuffed for a part of the time he was in the dock/cell at MVPS (I refer to my finding at paragraph [236] below); (c) His ability to use the toilet for the period in which he was in the dock was at the discretion of the Police, although I do not find that the Police deliberately delayed in granting him permission to use the toilet; (d) He was the subject of physical restraint and force in relation to the ‘shoelace incident’; (e) He was conveyed from MVPS to Goulburn Police Station and then to the Local Court at Goulburn where he was eventually granted bail. That bail, however, was granted with conditions that were more onerous than the Actual Bail Conditions.
As I have noted above the assessment of damages for false imprisonment is an evaluative exercise.
The Plaintiff’s evidence was that during his conveyance from the Bundanoon Residence to MVPS, he “felt at a complete loss. I felt ashamed … trapped … scared … Lots of emotions”.
His evidence was that when in custody at MVPS he was called a “wanker” by an officer. No officer who gave evidence accepted that they said that. There is no evidence of that being said other than the Plaintiff’s evidence. The Plaintiff bears the onus of establishing the facts upon which damages are to be assessed. It would be misconduct, in my view, for a police officer to use such language to a citizen under arrest and a finding to that effect is a serious one. I am not satisfied that a police officer used that language. The Plaintiff accepted that it was quite possible that he said to police, “Fuck off, you c---t.” He accepted he did not have any trouble swearing at Police. The Custody Management Record of his time at MVPS records that the Plaintiff was “constantly swearing.”
Nevertheless, I accept that the Plaintiff would have been frustrated, humiliated and at a loss at being in custody for breach of bail conditions which he knew did not in fact exist. I accept the Plaintiff’s evidence that whilst at MVPS he reiterated to police that his bail conditions were not as understood by Police. No officer who gave evidence denied that the Plaintiff reiterated his position in relation to the bail conditions.
As a result of his arrest and detention, the Plaintiff was required to appear in the Local Court at Goulburn and supplicate himself before the Court. His evidence was that he was “totally humiliated in front of the Courts.” He also said, in relation to his detention, that he was “close to having a breakdown, a nervous breakdown because of being locked up for reasons which weren’t lawful in [his] … opinion.” I accept that the Plaintiff was embarrassed and hurt in being detained and having to appear before the Court to seek bail in circumstances where he was not in fact in breach of his existing bail conditions.
Taking all the factual matters to which I have referred into account, including the length of time the Plaintiff was detained, his continued handcuffing during his custody at MVPS, his evidence of the impact of the detention upon him, and having considered the various authorities to which I have been referred, I assess damages for the notional false imprisonment of the Plaintiff in the First Event at $15,000.
I have found that the placement of handcuffs on the Plaintiff at the point of arrest was lawful. I proceed, however, to notionally assess damages on the basis that the handcuffing of the Plaintiff was an unjustified battery because the his detention was notionally unlawful.
Sergeant Sharp’s evidence was that he thought that when the Plaintiff arrived at the MVPS he was in handcuffs.
An ambulance electronic medical record recorded that at approximately 5:20 am when the Plaintiff was medically assessed, the Plaintiff was “still handcuffed.” There is no reliable evidence whether the shoelace incident occurred before or after the ambulance attended MVPS.
The contemporaneous police records do not record whether the Plaintiff was handcuffed while in custody. It is understandable that no evidence was led as to why the Plaintiff remained in handcuffs for either all or a material period during his detention in the dock/cell. That is because the police officers called by the Defendant could not recall whether he was in fact handcuffed during that period.
Given Sergeant Sharp’s evidence that he thought the Plaintiff was handcuffed when he arrived at MVPS and given the ambulance record that the Plaintiff was still in handcuffs at 5:20 am, I consider it probable he was handcuffed for two to three hours during his time at MVPS.
The Plaintiff said that the handcuffs were “too tight” but there is no evidence that they caused any injury, accepting that they would have resulted in discomfort.
The Plaintiff seeks compensatory damages in the amount of $5,000 and aggravated damages in the amount of $2,500 for this battery. The Defendant submits that damages for this aspect of the Plaintiff’s claim should be at the lower end of the scale and in its Schedule of Damages served before the hearing commenced, submitted a figure of $2,000 for “assault and battery (8 July 2018)” – however, it is unclear if that includes the alleged battery during the ‘shoelace incident’. The Defendant denied that the Plaintiff is entitled to aggravated damages*.*
I have already included the impact of the continued handcuffing of the Plaintiff while in custody at MVPS in my notional assessment of damages for false imprisonment. Accordingly, I do not include an amount for that in the assessment of the battery referred to in this paragraph, because to do so would involve double counting of damages. I have also included in my assessment of aggravated damages below, the Plaintiff’s statement to police that the handcuffs were “too tight” and that police did not loosen them.
I notionally assess damages for battery being the placement of handcuffs on the Plaintiff at the point of arrest at $2,000.
Although the Plaintiff alleges in his Statement of Claim that he was handcuffed when conveyed to the Local Court at Goulburn, he led no evidence to that effect and there is no evidence that he was so handcuffed. Accordingly, I find that the Plaintiff has not established that fact.
I have made factual findings in relation to the ‘shoelace incident’. The Plaintiff’s Statement of Claim alleged that the Plaintiff was struck in the chest and legs when he was on the ground. In his final submissions on damages, the Plaintiff claimed general damages for the battery on 8 July 2018 “being the contact between the officer’s knee and the Plaintiff’s chest in the charge room of the [MVPS]”. I assess damages on the notional basis that the use of force in the ‘shoelace incident’ relating to the Plaintiff’s chest was unlawful (contrary to my findings).
I have regard to my findings at paragraph [153] in relation to the allegation that the Plaintiff was struck and the allegation that there was contact between an officer’s knee and the Plaintiff’s chest during the shoelace incident.
I assess damages for this battery at $4,000. On the facts that I have found in relation to the battery pleaded by the Plaintiff and the subject of his submission referred to above, I do not consider that any award of aggravated damages is appropriate for this battery.
The Plaintiff’s suffering of his notionally wrongful detention was exacerbated by the fact that he was subject to three conveyances in police vans – firstly, from the Bundanoon Residence to MVPS, then from MVPS to Goulburn Police Station and then to the Local Court at Goulburn. There is, in my view, a significant level of indignity in being transported in the back of a police van. The Plaintiff was then given bail by the Local Court in materially the same form as the incorrect bail conditions recorded on the police databases (and which were more onerous than the Actual Bail Conditions).
As noted above, the Plaintiff complained to Police that the handcuffs placed on him were “too tight.” The police did not loosen them. Indeed, there is no evidence that Police responded at all to the Plaintiff’s complaint. It seems to me that absent evidence that the Plaintiff’s complaint was not reasonable, the police were not justified in ignoring the complaint and should have checked the handcuffs and should have ensured that they were not unnecessarily tight. This is particularly so when the handcuffs remained on for some time.
In all the circumstances, I consider it appropriate, on a notional basis, to assess aggravated damages at $4,000.
The Plaintiff also relies on the Non-Custody Event that occurred on 17 August 2018 as a matter relevant to aggravated damages. However, the Plaintiff was released on bail with respect to the First Event on 8 July 2018 and his bail conditions were varied and returned to the Actual Bail Conditions on 18 July 2018. There is no connection between the conduct of Constable Vila in the Non-Custody Event and the conduct of the Officers in the First Event other than the fact that the COPS database continued to record incorrect bail conditions. That is not a matter which, in my view, can be attributed to the conduct of the Officers in the First Event. I do not consider it appropriate to adjust my assessment of aggravated damages of $4,000 because of the Non-Custody Event.
I would not award exemplary damages on the notional assessment of damages. The particulars upon which the Plaintiff relies are the same as those referred to above at paragraph [219].
The Plaintiff has not established facts to support his claim for exemplary damages because there is no evidence:
(a) to support the matters in paragraph [219(a)] above. That is, there is no evidence of any awareness of any police officer of the alleged significant errors and inaccuracies; (b) as to how the COPS database came to record incorrect bail conditions. Accordingly, the Plaintiff has not established that any officer acted in contumelious disregard of his rights in “creating” or “causing” the incorrect bail conditions being recorded. There simply is no evidence from which the Court can infer how the incorrect bail conditions came to be recorded, why they were incorrectly recorded, and the circumstances surrounding their incorrect recording; (c) to support the allegation that the “New South Wales Police Force” used false imprisonment as an occasion to secure more onerous conditions of liberty. There is no evidence that any officer knew that the bail conditions on the COPS database were incorrect prior to the granting of conditional bail by the Local Court at Goulburn.
Further, I have made no finding that any police officer engaged in any conscious wrongdoing, nor have I found that any police officer acted in contumelious disregard of the Plaintiff’s rights. Even on the notional basis that the First Event constituted false imprisonment and battery in the way described above, in my view the facts do not warrant an award for exemplary damages. I have considered the fact that the placement of handcuffs on the Plaintiff while he was in the dock/cell at MVPS was accepted by police witnesses as being unusual. There is no evidence that the police officers subjectively thought it was unnecessary to keep the handcuffs on the Plaintiff. Equally there is no evidence directed to their actual thought processes at the time because the police witnesses could not recall the position. It was not suggested to Police Officers in cross-examination that they knowingly or recklessly adopted a high-handed approach or acted in disregard of the Plaintiff’s rights in electing to keep the handcuffs on him.
Accordingly, on the notional basis set out above in relation to the First Event, I assess damages, including aggravated damages for false imprisonment and two batteries at $25,000.
The Plaintiff is entitled to judgment in the amount of $8,500.
The Parties did not address me on the issues of interest and costs. They should have an opportunity to address the Court on those issues.
Accordingly, the orders I make are:
The proceedings are stood over to 10:00 am on 10 April 2026 for the making of final orders.
The Parties are to provide to my Associate on or before 2 April 2026 short minutes of order which give effect to these reasons and address the question of interest and costs if they can be agreed.
If the Parties agree on short minutes of orders in accordance with Order 2, then subject to my review of the proposed orders, I will make them in chambers and vacate the hearing on 10 April 2026.
If the Parties cannot agree on short minutes of orders in accordance with Order 2, then each party is to provide short written submissions of no more than three pages, together with any evidence they rely upon, on the question of interest and costs on or before 7 April 2026.
The final hearing of this matter commenced on 15 September 2025. On 16 September 2025, the Plaintiff withdrew his instructions to his Solicitor and Counsel. He then represented himself. On 19 September 2025, I granted an adjournment application by the Plaintiff principally because I had a concern about his mental health in carrying on with the proceedings. I also referred the Plaintiff to the District Court’s Pro-bono Scheme.
Mr Teidt, solicitor, accepted the pro-bono referral and Mr Davis, of Counsel, similarly accepted a pro-bono brief pursuant to that referral. It is a credit to both of them that they accepted the pro-bono referral.
The matter recommenced on 17 November 2025 with five days set aside by the Court to conclude the matter. No application to vacate those hearing days was made prior to 17 November 2025.
At the commencement of the hearing on 17 November 2025, Mr Davis, on behalf of the Plaintiff, applied for an adjournment of the proceedings. The Defendant opposed the application. The Plaintiff relied on an affidavit of Mr Teidt. The Defendant relied on an affidavit of Ms Kastanias.
I refused the Plaintiff’s application and the matter proceeded. I indicated at the time that I would give my reasons for refusal in my reasons for judgment. Neither Party opposed that course. I now set out my reasons for refusing the application for the adjournment.
Section 66 of the Civil Procedure Act 2005 (NSW) (CPA) provides the Court with a discretion to adjourn proceedings at any time. That discretion must be exercised in accordance with the overriding purpose of the CPA and the rules of court which is “to facilitate the just, quick and cheap resolution of the real issues in the proceedings” [48] and with the dictates of justice as set out in s 58 of the CPA.
(a) He was first contacted in respect of this matter on 14 October 2025; (b) He had difficulty retaining counsel. Mr Davis confirmed he accepted the pro-bono referral as counsel on 30 October 2025; (c) Despite his efforts he did not receive a copy of the transcript of the proceedings to date until 12 November 2025; (d) He considered that the Defendant’s COPS entries in relation to the Plaintiff are of great importance to the Plaintiff’s case (though the reason for that view was not explained in his affidavit) and he was unsure whether a previous subpoena served by the Plaintiff’s previous solicitor was intended to capture that material; (e) A Notice to Produce (which was actually a Subpoena) was served by the Plaintiff on the Defendant on the morning of 13 November 2025 and no documents had yet been produced. The Subpoena called for production of various records relating to the Plaintiff; (f) He had recently become aware that SC Brown had been charged for assaulting a person. The article describing this, in evidence, was dated 28 April 2025; (g) That Sergeant Scott Marsh, who, at that stage, was a witness to be called was unavailable for cross-examination in the week of 17 November and therefore the hearing would have to be part-heard at the end of the week in any event; (h) That he had been informed by Mr Davis that he was concerned about certain ethical obligations about discrete matters and that as a result he may need to apply to re-open the Plaintiff’s case and he had not had the time yet to prepare a formal re-opening application; (i) That the Defendant had not offered any explanation as to how the bail conditions were incorrect in the COPS database, and that documents needed to be produced to examine or understand what had happened.
(a) The Plaintiff, throughout the proceedings, had been represented by experienced legal representatives in the area of intentional torts. He was firstly represented by Ms Dunlop, a very experienced practitioner in that area. Ms Dunlop had been involved in such proceedings on behalf of plaintiffs since at least 2016. By at least 2024, the Plaintiff had Counsel, namely Mr Boland. He is an experienced counsel regularly appearing in New South Wales and other jurisdictions involving intentional torts, including some high profile matters at first instance, namely Madden v State of New South Wales [49] (and the appeal in State of New South Wales v Madden [50] ) and Reeves v State of New South Wales [51] (and the appeal in Reeves v State of New South Wales [52] ); (b) The Parties participated in an informal settlement conference on 4 November 2024. On 8 November 2024, Ms Dunlop appeared before the Registrar seeking a hearing date and had indicated that the matter was ready for a hearing date. On 12 November 2024, the matter was listed for hearing on 15 September 2025 with an estimate of 5 days; (c) Ms Dunlop filed a Notice of Ceasing to Act by 14 February 2025; (d) On 16 June 2025, the hearing date was confirmed, and orders were made for the Plaintiff to file an application for pro-bono referral; (e) On 25 July Mr Warwick Ison appeared on behalf of the Plaintiff and the Defendant was made aware that Mr Godkin of Counsel was briefed; (f) In the week prior to 15 September 2025, Mr Ison withdrew from the proceeding due to an urgent medical issue. On 14 September 2025, Mr Lawrence Liew emailed the Defendant as solicitor for the Plaintiff and appeared on 15 September 2025 with Mr Godkin.
(a) He referred to the Plaintiff’s Central Name Index (CNI) and indicated that he considered the documents would be important for cross-examination. However, it does not seem to me properly explained why the CNI documents would likely show anything different to the rest of the COPS database in so far as it concerns bail conditions. Moreover, the Plaintiff was well able to always pursue this line of enquiry from the filing of his Statement of Claim. I accept that Mr Teidt and Mr Davis were relatively new to the matter, but the issue is whether the Plaintiff ought to be granted an adjournment of the hearing and that issue requires consideration of the Plaintiff’s conduct of the proceedings; (b) He referred to the desire to explore what was communicated to the COPS database from JusticeLink; (c) He referred to the charges concerning SC Brown and submitted the Plaintiff should be entitled to explore that matter. In my view, that matter could only possibly have gone to credit and Mr Davis candidly noted that the ‘exploration’ “might all come to nothing;” (d) He obliquely referred to the possible re-opening of the Plaintiff’s case and the possible need to amend the Statement of Claim; (e) He noted that the Plaintiff had only recently provided to Mr Teidt documents within “Steve’s book” concerning the matter. However, no clarity was given as to its contents and whether the contents took the relevant material any further than that which was available to Mr Teidt already. No explanation was given as to why the Plaintiff did not provide that material to Mr Teidt immediately upon his acceptance of the pro-bono referral.
(a) since commencement of the Plaintiff’s claim, there was only a period of about five months where the Plaintiff was unrepresented; (b) with Ms Dunlop’s involvement and experienced counsel, there was no basis to infer the matter was “undercooked;” (c) very little detail or precision had been provided relating to the concern about the Statement of Claim; (d) with respect to the charges concerning SC Brown, they occurred two years after the relevant events in these proceedings; (e) the Plaintiff’s case had closed; (f) although impecuniosity is not a reason for a party not to bring proceedings, it is not irrelevant that an adjournment would visit upon the Defendant further costs that are unlikely to be recovered. That is, the Defendant is ready to proceed, and an adjournment would likely result in wasted unrecoverable costs; (g) the Defendant relied on Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27; (h) an adjournment would not promote the objectives set out in s 56 of the CPA; (i) SC Bailey had given evidence of what it was he observed to form the belief of a breach of bail and the CNI material is not relevant. In any event, the suggestion that the material is important is based on speculation; (j) if Sergeant Marsh is not called during the week of 17 November, his evidence, when called, would be of very short compass.
In reply, it emerged that Mr Davis’ potential ethical concern was that he apprehended that Mr Godkin had asserted that police falsified records to include bail conditions that were not imposed upon the Plaintiff. I indicated that Mr Godkin had expressly disavowed any allegation of mala fides. I also indicated that Mr Davis could himself make clear that is not an allegation being made. That is, I did not regard the issue as one requiring an adjournment.
Further, following the submissions, Mr Burke indicated that subject to a subpoena being issued, the CNI records for the Plaintiff could be produced.
Prior to Mr Teidt’s involvement on behalf of the Plaintiff, the Plaintiff was represented by solicitors from commencement of the proceedings on 30 May 2024 (although there was a period in which he was not so represented – Ms Dunlop was the Plaintiff’s solicitor from 30 May 2024 through to approximately 14 February 2025; Mr Ison from approximately 25 July 2025 to approximately 8 September 2025; Mr Liew on 15 and part of 16 September 2025). He was also represented by Counsel, firstly Mr Boland and then at trial Mr Godkin.
While Ms Dunlop was his solicitor, she filed and served a subpoena on the NSW Police Commissioner calling for the production of various documents. An affidavit of the Plaintiff was filed by Mr Ison while he represented the Plaintiff.
Shortly before the hearing commenced on 15 September 2025, the Plaintiff’s legal representatives provided the Court with the Plaintiff’s Schedule of Issues and Damages.
The hearing commenced on 15 September 2025. Mr Godkin opened the case for the Plaintiff and called the Plaintiff. He led certain evidence in-chief and re-examined the Plaintiff. The Plaintiff closed his case.
On the second day of the hearing, 16 September 2025, the Plaintiff withdrew his instructions from Mr Godkin and Mr Liew. His principal reason for doing so was that he considered that contrary to the regime in the relevant Pro-bono Scheme, he had been required to sign costs agreements which were inconsistent with the Scheme. That issue had nothing to do with the legal and factual issues to be determined in the proceedings. He also complained about a certain proposition advanced by Mr Godkin. It was the Plaintiff’s own decision to remove his representation.
There is no evidence that the Plaintiff’s legal representation prior to Mr Teidt and Mr Davis did not adequately prepare the Plaintiff’s case. To the extent that Mr Teidt and Mr Davis wished to explore matters identified by Mr Teidt, there is no evidence that prior solicitors or counsel were unable to do so in a timely fashion prior to the commencement of the hearing on 15 September. This is important because, at least with respect to one matter, a forensic decision had been made by Mr Godkin not to permit evidence potentially going to an explanation as to how the incorrect bail conditions came to be on the COPS database. That is one of the issues sought to be explored by Mr Teidt. However, during the hearing, the Defendant sought leave to issue a subpoena to capture documents from JusticeLink which may have identified what bail conditions were on JusticeLink and may have led to an explanation of the error on the COPS database. Mr Godkin opposed leave being granted on the basis that the Plaintiff’s case had been prepared on a certain basis (namely, that the bail conditions were not on the COPS database prior to arrest), that the Plaintiff would be taken by surprise by production of the documents, and that the Defendant could have issued that subpoena well before the hearing date. I refused the leave sought by the Defendant to issue the subpoena.
Trobridge v Hardy (1955) 94 CLR 147 at 152; [1955] HCA 68, followed in Darcy v State of New South Wales [2011] NSWCA 413 at [143].
(2017) 261 CLR 265; [2017] HCA 10.
(1990) 170 CLR 104; [1990] HCA 26.
Prior at [4].
Prior at [24].
Prior at [73].
Prior at [98]-[100].
[2012] NSWCA 336.
Hyder at [15](7) citing Ruddock v Taylor (2005) 222 CLR 612 at 626; [2005] HCA 48 at [40] (Gleeson CJ, Gummow, Hayne and Heydon JJ).
(2024) 113 NSWLR 567; [2024] NSWCA 70.
Bugmy at [43]. Leeming JA noted that it was common ground that such administrative review was available. His Honour did not suggest that the parties’ common ground was wrong in any way.
Associated Provincial Picture Homes v Limited v Wednesbury Corporation [1948] 1 KB 223.
New South Wales, Parliamentary Debates, Legislative Assembly, 1 May 2013.
Bugmy at [105].
Lee v New South Wales Crime Commission (2013) 251 CLR 196 at 310-311; [2013] HCA 39 at [313]-[314].
(1959) 101 CLR 298; [1959] HCA 8.
New South Wales Police Force, New South Wales Police Force Handbook (16 February 2017).
(2013) 235 A Crim R 191; [2013] NSWSC 1424.
[2018] NSWCA 125.
(CA (Civ D), 24 April 1995).
Associated Provincial Picture Homes v Limited v Wednesbury Corporation [1948] 1 KB 223.
State of New South Wales v Smith [2017] NSWCA 194 at [124]-[127]; (2017) 95 NSWLR 662 at 694-695.
Ballantyne v Workover Authority of NSW (2007) 5 DDCR 97 at 126-127; [2007] NSWCA 239 at [113]; Sinclair v Tripodis Constructions Pty ltd (2013) 207 LGERA 1 at 6; [2013] VSC 722 at [21]; Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86 at 89; [2013] NSWCA 180 at [9]; Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Actions and Government Liability (7th ed, Thomson Reuters, 2021) at [6.90].
[2001] NSWCA 265; (2001) 53 NSWLR 98.
(2016) 95 NSWLR 117; [2016] NSWCA 132.
Director of Public Prosecutions (NSW) v Greenhalgh [2022] NSWSC 980 at [186]; BK v State of New South Wales [2026] NSWCA 6 at [240].
Pringle v Everingham [2006] NSWCA 195 at [67]; (2006) 46 MVR 58 at 73-74; Woodley v Boyd [2001] NSWCA 35 at [37], quoting with approval McIntosh v Webster (1980) 43 FLR 112 at 123.
(2007) 170 A Crim R 78; [2007] NSWCA 101.
BK v State of New South Wales [2026] NSWCA 6 at [218]-[219].
(1774) 1 Cowp 63 at 65; (1774) 98 ER 969 at 970.
[2001] NSWCA 168; (2001) NSWLR 572.
[2001] NSWCCA 540; 126 A Crim R 562.
[2019] HCA 46; (2019) 266 CLR 619.
Robinson at [63] (Kiefel CJ, Keane and Nettle JJ), [92]-[94], [109]-[111], [114] (Bell, Gageler, Gordon, Edelman JJ). But see s 99(4) which provides that a person who has been lawfully arrested under s 99 may be detained under Part 9 of the LEPRA for the purpose of investigating the alleged offence.
[2021] NSWCA 208.
Goldie v Commonwealth of Australia (No 2) (2004) 81 ALD 422 at 428; [2004] FCA 156 at [14].
Goldie v Commonwealth of Australia (No 2) (2004) 81 ALD 422 at 428; [2004] FCA 156 at [14]; State of New South Wales v Smith (2017) 95 NSWLR 662 at 699-700; [2017] NSWCA 194 at [153]-[154].
Ruddock v Taylor (2003) 58 NSWLR 269 at 279; [2003] NSWCA 262 at [49] (Spigelman CJ).
State of New South Wales v Radford (2010) 79 NSWLR 327 at 345-346; [2010] NSWCA 276 at [90]-[97].
The Defendant referred to AD v State of New South Wales [2022] NSWDC 546.
Costa v Public Trustee of NSW (2008) 1 ASTLR 56 at 72-73, 86-87; [2008] NSWCA 223 at [37], [39] (Ipp JA) and [103]-[105] (Baster JA); State of New South Wales v Abed (2014) 246 A Crim R 549 at 584; [2014] NSWCA 419 at [218].
Clifton & Ors v Lewis [2012] NSWCA 229 at [56]-[57] (Basten JA).
Spautz v Butterworth & Anor (1996) 41 NSWLR 1 at 13.
[2017] NSWDC 19.
[2023] NSWDC 232. The finding of false imprisonment was overturned on appeal but there was no appeal on quantum: see Reeves v State of New South Wales [2024] NSWCA 125.
[2023] NSWSC 407; Ghanem v State of New South Wales [2024] NSWDC 213 at [117] (and the cases cited therein), [128].
Madden v State of New South Wales [2022] NSWDC 647 at [318]; Ghanem v State of New South Wales [2024] NSWDC 213 at [121]; Costello v State of New South Wales [2017] NSWDC 152 at [631].
CPA, s 56(1).
[2022] NSWDC 647.
[2024] NSWCA 40.
[2023] NSWDC 232.
[2024] NSWCA 125.
27/03/2026 - Amendment to the numbering of Appendix A
Darling
State of New South Wales [2026] NSWDC 67
(2009) 239 CLR 175
(2024) 113 NSWLR 567
(2016) 95 NSWLR 117
(1990) 170 CLR 104
(1959) 101 CLR 298
(2013) 251 CLR 196
(2013) 85 NSWLR 86
(1980) 43 FLR 112
(2006) 46 MVR 58
(2017) 261 CLR 265
(2001) 53 NSWLR 98
(2003) 58 NSWLR 269
(2005) 222 CLR 612
(2013) 207 LGERA 1
(1996) 41 NSWLR 1
(2010) 79 NSWLR 327
(2019) 266 CLR 619
(2017) 95 NSWLR 662
(1955) 94 CLR 147
(1957) 97 CLR 465
On 7 July 2018, the Plaintiff, who was staying at the Bundanoon Residence since approximately 2 July 2018, went to Bundanoon Hotel at approximately 10:00 pm. He had earlier been to a street festival in Bundanoon. The Plaintiff’s evidence was that he had approximately four beers at the festival and two further beers at Bundanoon Hotel. He accepted in cross-examination, however, that he was estimating how much he had drunk – as he said, “it’s just what I thought I drank”. He left Bundanoon Hotel at approximately 11:40 pm and he claimed that while he was leaving, he was punched several times by an unknown male. He then returned to the Bundanoon Residence.
The Plaintiff called the police from the Bundanoon Residence about three times to report the assault and a piece of lost property. SC Bailey answered the first call. He told the Plaintiff that a job would be created on their system to attend the address, however, the Plaintiff did not provide his address. SC Bailey had not, at this point, recognised the Plaintiff as the person who he had spoken to on 10 June 2018. He said that he could tell from the call that the Plaintiff was “quite intoxicated” and used profanities, was hostile and aggressive. At some stage during the second or third phone call, the Plaintiff provided police with the address of the Bundanoon Residence.
In the early hours of the morning on 8 July, Leading Senior Constable (LSC) Maiorana and SC Bailey arrived at the Bundanoon Residence to speak to the Plaintiff regarding his report of the assault. A COPS event entry records that police attended the Bundanoon Residence at 3:22 am. The narrative part of that record, however, states that police attended the Bundanoon Residence at about 3:15 am. A separate document, being an Incident Narrative, records that the status of the response to the incident changed from ‘Acknowledged’ to ‘On Scene’ at 3:22 am.
Prior to arriving at the Bundanoon Residence, SC Bailey conducted a check on the Plaintiff. He could not recall the precise method in which he conducted that check. He said it was either via his MobiPOL device or the Weblinks on their car’s mobile data computer. These modes provided the same information as the COPS database but were presented in a different format. The information accessed by SC Bailey was consistent to that which he accessed on 10 June 2018. It recorded that the Plaintiff was on bail in relation to the charge matters and was subject to the following conditions:
I accept the Plaintiff’s evidence in relation to his statements concerning the “bail paperwork”. Given that SC Bailey accepted that the Plaintiff asserted that his bail conditions were not those as stated by the police, it seems to me likely that in the circumstances the Plaintiff would seek to establish that fact to the police. I have had regard to the fact that the Plaintiff was intoxicated. However, despite his intoxication, the Plaintiff was able to identify that SC Bailey was citing incorrect bail conditions. In those circumstances, there is no basis, in my view, to reject the Plaintiff’s evidence in this regard, and I find, on the balance of probabilities, he did make the statements concerning the “bail paperwork” and that the police neither allowed him to obtain it, nor entered the house to obtain it themselves.
Sergeant Sharp said the Plaintiff was handcuffed when he arrived at MVPS, but he could not recall whether he was handcuffed in front or behind his back. In any event, he said that the Plaintiff was not handcuffed while inside the dock because:
SC Bailey’s evidence was that he did not strike the Plaintiff on his chest or legs, nor did he see any other officer do so. He said he did not at any stage place his knee on the Plaintiff’s chest. However, he said that consistently with the way officers are trained, he and the other officers kneeled down so that their knees protruded from their upper torso, and they used the Plaintiff as leverage to maintain balance.
SC Bailey was cross-examined. He was asked about a COPS ‘Enquire Event General Details’ document which was created by LSC Mairona at 3:50 am. It recorded an “X” next to “Force Used”, however, at the bottom of the entry, it recorded “FORCE WAS NOT USED”. SC Bailey said the “X” meant that there were details in the “Force Used” tab and that these details had been verified by a supervisor. The “X” did not indicate either way whether force was used or not. He said he did not know why there was a note at the bottom of the entry indicating that force had not been used.
I set out my findings in relation to the ‘shoelace incident’ below when I deal with the Plaintiff’s claims of assault and battery in relation to the First Event**.**
In any event, for the reasons set out below, I am satisfied that SC Bailey formed the view that there was no alternative course to the arrest of the Plaintiff that was appropriate in the First Event.
The Plaintiff submits, further, that the bail conditions on the COPS database had internal inconsistencies such that SC Bailey ought not to have relied on them, particularly in the face of the Plaintiff’s protestations. In this regard, the Plaintiff submits that Condition 1 was inconsistent with Condition 2 because Condition 1 contained a curfew whilst Condition 2 provided for a complete ban on leaving the Saratoga Address after 8:00 pm. SC Bailey said he understood the two conditions to be read as one – that is, Condition 2 was not an additional obligation inconsistent with Condition 1. Although the two conditions are not well drafted, in my view, it was reasonable for SC Bailey to have taken that view. Condition 2 could not have had a literal operation because it does not identify a time after 8:00 pm on any given night (or indeed the next day) that the Plaintiff was permitted to leave the Saratoga Address. In my view, SC Bailey’s understanding of the two conditions was reasonable. I am not satisfied that, to the extent that there was any literal inconsistency in the bail conditions, it was such as to undermine the reasonable grounds relied upon by SC Bailey.
Whilst I have referred in the previous paragraph to the absence of material to effectively undermine the objective material available to SC Bailey, I have approached the issue considering the factual material as a whole, noting that it is the Defendant’s burden to establish the basis for enlivening of the discretion in s 77(1) of the Bail Act based on the totality of the relevant facts and circumstances established by the evidence.
As noted above, SC Bailey determined that the Plaintiff had:
Accordingly, in my view, the Defendant has established the defence of lawful justification in so far as it concerns the control of the Plaintiff from the moment of arrest at the Bundanoon Residence to his conveyance to MVPS.
With respect to the conveyance itself, SC Bailey gave evidence that once a person is inside a police van, a slide bolt and chain is placed across the person to secure them in place. The Plaintiff’s evidence was that he was unsupported by a seatbelt and was “thrown” from one side of the van to the other. There is no inconsistency between SC Bailey’s evidence and that of the Plaintiff with respect to the absence of a seatbelt. There is no reason, however, to conclude that the police departed from their usual procedure of utilising a slide bolt and chain. It seems to me that even with a slide bolt and chain, there is likely to be capacity for the relevant person to move about. I am unpersuaded that the police drove the van other than normally, and to the extent that the Plaintiff was moved about it was the inevitable consequence of the nature of the police van. The Plaintiff’s perception of how much he was “thrown around” is unreliable given his state of intoxication.
I am satisfied that any touching of the Plaintiff to place him in the police van was reasonably necessary in the exercise of the function of conveying the Plaintiff to MVPS. To the extent that leaving the Plaintiff in the van which resulted in him to touching the inside wall of the van constituted a prima facie battery (which I do not accept), I find that that placement was reasonably necessary in the exercise of the function of conveying the Plaintiff to MVPS and that the force used was no more than necessary and that the protective measures mentioned by SC Bailey to secure the Plaintiff were used.
The assessment of damages for false imprisonment is an evaluative judgment about which minds may differ. [41] It often involves “impression, speculation and estimation.” [42] I have referred to the matters by which such damages are assessed. There are numerous cases in which damages have been awarded for false imprisonment for varying lengths of time. However, whilst they may provide some guidance, [43] they should not be treated as indicating a clear range of appropriate damages in any particular case. For example, in Houston Moran v State of New South Wales, [44] the Court awarded $5,000 for false imprisonment for a period of just less than four hours where the Plaintiff had been treated courteously during her wrongful imprisonment. In Reeves v State of New South Wales (No 2), [45] the Court awarded $5,000 for false imprisonment for a 16 minute period – that amount also included an amount for the Plaintiff’s feelings of being ‘scared’ and ‘very anxious’. The Plaintiff relies on a number of decisions, including Murphy v New South Wales [46] in which the Court awarded $10,000 in damages for a false imprisonment that spanned 2 hours and 25 minutes.
The Plaintiff’s Statement of Claim does not allege any mistreatment of the Plaintiff while in custody at Gosford Police Station (as opposed to his allegation that SC Brown held his arm and escorted him into the Station in a heavy-handed way). Although the Plaintiff was only detained for a short time (15 to 30 minutes), any deprivation of liberty is a serious matter. In all the circumstances, in my view, damages for the false imprisonment in relation to the Second Event is appropriately assessed at $4,000.
In summary, in my view, prior to 15 September 2025, the Plaintiff was sufficiently represented by experienced lawyers who prepared his case in the way they considered it should be run. At the commencement of the hearing the Plaintiff was represented, and it was the Plaintiff who chose to alter that position by withdrawing instructions. No adjournment of the proceedings was sought by Counsel for the Plaintiff prior to the withdrawal of his instructions. That is, the matter was ready to proceed and was proceeding prior to my acceding to the Plaintiff’s adjournment application to which I referred above.
The fact that a new solicitor and counsel wish to explore other matters, or wish to revisit some matters is not, in my view, a sufficient reason to adjourn the resumption of the hearing which had already been adjourned to accommodate the Plaintiff’s condition.
Moreover, I was not persuaded that it was likely that any of the explorations desired by Mr Teidt would result in any probative material. Much of the evidence and submissions in support of the application, including with respect to proposed steps to obtain documents, were based on speculative reasoning – that is, the desire was to explore material to assess whether in fact relevant and probative material would arise. In this regard, as I have noted above, the Defendant undertook to produce the CNI documents sought by the Plaintiff on the issue of a subpoena.
In so far as Mr Davis expressed the possibility of an application to re-open, I formed the view that any application could be brought during the hearing and dealt with it at that time on its merits.
With respect to the Plaintiff’s submissions in relation to Sergeant Marsh, I took the view that even if the proceedings concluded part-heard, the evidence and cross-examination of Sergeant Marsh was likely to be of very short compass and any further hearing would be no more than half a day. The fact that such a short further hearing might be required was not, in my view, a material matter favouring an adjournment of the proceedings when all but Sergeant Marsh’s evidence could be dealt with during the hearing days allocated by the Court.
The Defendant was ready to proceed and had organised police witnesses to be available to give evidence. The Defendant was required to re-organise police witnesses previously because of the prior adjournment of the hearing in September 2025. Although police witnesses are more accustomed to giving evidence than ordinary citizens, the process remains stressful, or inconvenient, particularly given the allegations in this case, which involve allegations that police acted in a way that was unlawful. I also considered that a further adjournment would add to the costs of the Defendant in preparing once again at a future date. In that regard, I well appreciated that the Defendant was the State of New South Wales and costs considerations may not be as significant as they would be if the Defendant was an ordinary citizen, however, those considerations are not irrelevant.
Having regard to all the matters the subject of submissions, and the evidence on the application, I did not consider it consistent with ss 56 and 58 of the CPA to grant the adjournment sought by the Plaintiff. The Court had allocated a 5 hearing days for this matter. There was no prior notice to the Court of the application for the adjournment.
For those reasons, I declined to adjourn the hearing.