Emde v State of New South Wales

The ADVO and Richmond Marketplace

1. As at April 2022, Mr Emde was 78 years old and lived at Bowen Mountain, approximately 14 kilometres from Richmond. At the time, his daughter was 24 years old, and worked at Woolworths at Richmond Marketplace.
2. Mr Emde and his daughter's mother had divorced when she was a small child and Mr Emde's relationship with his ex-wife appeared still to be acrimonious many years later. In early 2022, Mr Emde attended the Woolworths at Richmond Marketplace almost daily and often had heated conversations with his daughter, in which he shouted at her.
3. The plaintiff's daughter eventually asked her father to stop contacting her. He carried on doing so because, in his own words, "I didn't have the AVO, I can go there whenever I want to go". Even though the plaintiff's daughter had asked her father to stop contacting her, he requested that she look after him while he recovered from an operation. The plaintiff's daughter eventually texted her father telling him to stop contacting her, which message he disregarded. When his daughter's mother also texted him to say, "Don't see [plaintiff's daughter's first name]; don't go to Woolworths," he responded, "Okay, fuck off". The plaintiff's daughter sent Mr Emde a second text on 1 April 2022 saying, "Please stop contacting me. It is against the law to stalk me at Woolies every day".
4. On 3 April 2022, police officers served Mr Emde with a provisional Apprehended Domestic Violence Order (the provisional ADVO), which relevantly included the following orders: "Orders about behaviour 1. You must not do any of the following to [name of plaintiff's daughter], or anyone she has a domestic relationship with: A) assault or threaten her, B) stalk, harass or intimidate her, and … For example: … • You must not do or say anything that may make [name of plaintiff's daughter] feel frightened, or feel that you may harm her or damage her belongings in any way … Orders about where you cannot go 8. You must not go into: A) any place where [name of plaintiff's daughter] lives, or B) any place where she works, or C) any of the following places Woolworths Richmond, Richmond Market Place, Paget Street and Lennox Street, Richmond, NSW 2753 For example: • You are not allowed to go within the boundary of those places. …"
5. The provisional ADVO operated until revoked or a further order made by the Court becomes effective. It required Mr Emde to attend Windsor Local Court on 14 April 2022.
6. On that day, Mr Emde appeared at court, without representation, and consented to final orders in substantially the same as the terms of the provisional ADVO (the ADVO). There were some slight differences, which the parties did not treat as significant as they both approached the hearing on the basis that the terms of the provisional ADVO applied. One slight difference, which was not referred to by either party, was the phrase "any of the following places", where it appears in paragraph 8.C) of the provisional ADVO, which was replaced with the phrase "any place listed here" in paragraph 8.C) of the ADVO.
7. There is no evidence that Mr Emde breached either the provisional ADVO or ADVO at any time, or in any way, other than the two occasions on which he attended Richmond Marketplace on 19 and 21 April 2022.
8. On 19 April 2022, Mr Emde went to Richmond Marketplace. On his account, he went there on that occasion for coffee at Jamaica Blue, a café within Richmond Marketplace which was not close to the Woolworths but from which there was a direct line of sight from certain tables to Woolworths' entrance. There was no evidence that he entered Woolworths, or saw or attempted to make contact with his daughter on that occasion. The CCTV footage, however, showed him walking to the café from a direction consistent with him having been to the Woolworths.
9. The plaintiff's daughter appears not to have been working on that day. She was shopping at Richmond Marketplace, however, and she saw Mr Emde sitting at Jamaica Blue. She did not see him from her place of work at Woolworths but, rather, from an escalator within the common area of the shopping centre. Distressed, she called her mother to report the sighting. Mr Emde did not see her and the two did not speak. The plaintiff's daughter reported the matter to the police.
10. On 21 April 2022, Mr Emde returned to Richmond Marketplace. He briefly visited Jamaica Blue and spoke to the proprietor before leaving the shopping complex.
11. Although it was put to Mr Emde that on each occasion he went to Richmond Marketplace to see his daughter, I accept that he did not, that he did not enter Woolworths and that, at least on the second occasion, he went to the Marketplace to see his doctor and his pharmacist.
12. Mr Emde did not see his daughter on either occasion. It was put to Probationary Constable Lucinda Warren, in cross-examination, that there had been no violence from Mr Emde on the occasions of his attendance at Richmond Marketplace, and PC Warren responded that she "would consider a breach of an ADVO to be violent". Whether a breach of an ADVO is necessarily "violent" is considered below.

The decision to arrest Mr Emde

1. After the plaintiff's daughter reported the matter to the police, the report was picked up by then Senior Constable David Newbould, an experienced officer with over 20 years of experience in the police service at the time. It came to his attention by way of a CAD (or Computer Aided Dispatch) message, which was a broadcast over police radio, which he accepted. This, it appears, was the common procedure by which officers take responsibility for new investigations. SC Newbould brought PC Warren, whom he was supervising, into the investigation.
2. SC Newbould and PC Warren commenced the investigation by establishing that Mr Emde had, in fact, attended Richmond Marketplace in breach of the ADVO. They did this first by taking a DVEC (domestic violence evidence in chief) statement from the plaintiff's daughter. She appeared shaken and uncertain of herself. Contrary to the submission made on behalf of Mr Emde, I accept that she, at least, considered her father to be precluded by the ADVO from attending Richmond Marketplace. She would not have contacted the police to report the alleged breach if she did not.
3. SC Newbould then verified the terms of the ADVO by having its terms read to him over police radio. He and PC Warren attended Richmond Marketplace where they reviewed CCTV footage, which showed Mr Emde had been there on 19 and 21 April 2022, and spoke to the proprietor of Jamaica Blue, who confirmed that Mr Emde had been there on both occasions.
4. It was by this point that both SC Newbould and PC Warren formed the view, both that Mr Emde had twice committed the offence of breaching an ADVO and that it was necessary to arrest him.
5. As to the formation of these views, SC Newbould's evidence was: "My view was that there was an AVO ‑ current AVO in place, and that if a Court had deemed it necessary to protect her, it was a serious offence, and he had breached it twice, so there was a repetition of the offence. She was scared of him, and he needed to be arrested."
6. SC Newbould also stated that he made the decision to arrest Mr Emde on the basis of his daughter's statement, the existence and the terms of the ADVO, and the CCTV footage. In cross-examination, he also gave the following evidence: "Q. What were the factors that led you to make a decision that he needed to be arrested? A. Factors were ‑ okay. It was a breach of an AVO. There was a current AVO in place. The seriousness of it. The repetition of it. Her [the plaintiff's daughter's] welfare. Welfare of her. Q. Anything else? A. No. Well, that an offence had occurred and had to be investigated. Q. I understand that that was your view, but did you contemplate taking any steps other than making an arrest? A. No. Q. You didn't give that any consideration at all. A. No."
7. When asked in re-examination to explain why he did not contemplate any alternatives to arrest, SC Newbould stated: "Q. Why didn't you contemplate alternatives to arrest? A. Because, as I explained before, the New South Wales Police Force takes domestic violence very seriously. It's their number one priority. Now, there was a current AVO in place where a Court has deemed it necessary to have ‑ to protect the person in need of protection. So, if ‑ like I said, because there was an AVO in place, a ‑ well I believe it's a serious offence, whether others do or don't I'm not sure, but I believe it was a serious offence, he breached it twice, she needed protection and that's what we do. Q. You were asked some questions about bringing suspects to Court? A. Mm‑hmm. Q. Other than arrest, what are the other ways to bring them to Court? A. Field CAN, summons. Q. Were they appropriate in this case? A. No. Q. Why not? A. Like I explained, it was ‑ it was a breach of an AVO, I can't ‑ I can't put enough emphasis and stress on the importance of protecting the victim. Now if a Court deemed it necessary to have that AVO, well he can be charged under that AVO, if he commits the offence, and that's what he'd done." [Emphasis added].
8. PC Warren had agreed with SC Newbould that Mr Emde was to be arrested. She explained that her reasons were the nature and seriousness of the offence and "to prevent any further repetitions of a breach". Those reasons were based on Mr Emde's breach of the ADVO, which stated that he could not be at Richmond Marketplace, which PC Warren had considered was inherently an act of violence. In cross-examination, she also gave the following evidence: "Q. My question is directed to whether you gave consideration to any of the matters in section 99 of LEPRA in coming to the decision to arrest Mr Emde? A. Of course, sir. Q. What were they? A. To ensure that there was no repetition of the offence, to ensure that he was to appear before the Court, because of the nature and seriousness of the offence, being a DV, domestic violence incident. New South Wales Police Force takes those very seriously. Q. Any others? Any other matters? A. We could say all of them really, almost."
9. In the Custody Management Record, the reason recorded for the Original Grounds of Detention was "LEPRA 99(1)(b)(viii) Protect the safety and welfare of any person (including person arrested)".

The arrest

1. On 21 April 2022, SC Newbould and PC Warren sought out Mr Emde at his home in Bowen. When they discovered that he was not there, they called him on his mobile phone and he told them he was at Lisa's Café in Kurrajong Village. He was still there when they arrived.
2. There is some dispute about what occurred at the arrest. According to SC Newbould, he approached Mr Emde and, after identifying himself, said: "I've spoken to your daughter. She's made a complaint that you've breached an AVO, so at this point, you're under arrest. You don't have to say or do anything if you don't want to. Anything you say and do can be recorded and may be used as evidence." He went on to say, "Come on. We have to go back to Windsor Police Station".
3. Noting that he was old and used a walking stick, SC Newbould offered to Mr Emde that he could drive himself to the station, even though he was under arrest. PC Warren agreed that SC Newbould had explained that he would allow Mr Emde to drive himself to the station. According to the police officers, Mr Emde then got into his car, which he drove to Windsor Police Station and parked in the disabled parking space just outside the station.
4. Mr Emde's account is different in some significant respects. He agreed that the officers identified themselves. He said that they approached him in the café and asked him to come outside. He said that they held him physically and were going to put him in the back of their police wagon. He then remonstrated with them, saying that he feared he would die if they put him in the van. They then relented and allowed him to drive his own car to the station. He did not dispute, however, SC Newbould's account that he told Mr Emde, immediately after identifying himself, that Mr Emde was under arrest. It follows, therefore, that SC Newbould had decided, prior to his arrival at the café, that he was going to arrest Mr Emde.
5. SC Newbould and PC Warren deny ever touching Mr Emde or trying to lift him into their wagon. PC Warren gave unchallenged evidence that the police wagon was about 100 to 150 metres from the café, whereas Mr Emde's car was between 20 and 50 metres from the café.
6. The most significant factual issue that requires determination is whether or not the police officers touched and/or physically tried to lift Mr Emde into the back of the wagon. There is no objective contemporaneous evidence that tends to corroborate either party's account. None of the witnesses, in my view, gave dishonest evidence. Nevertheless, I do not accept that Mr Emde has established his allegation that he was touched by either officer or that they attempted to lift him into the back of the wagon.
7. There is no particularised allegation, in any version of the Statement of Claim, that the officers touched Mr Emde at the café or in its vicinity. In a response to a request for particulars on 10 July 2023, the plaintiff, by his solicitor, stated that the officers touched him when asking him to exit the café. In describing the events when the officers asked him to get in the van, to which Mr Emde said that if he did he would die, Mr Emde denies that they handcuffed him or grabbed, held or touched him.
8. Where a fact is in issue, a plaintiff must demonstrate that the circumstances raise a more probable inference in favour of the fact alleged: Transport Industries Insurance Co v Longmuir [1997] 1 VR 125. The process of fact finding should be informed as far as possible on the basis of contemporary materials, objectively established, and the apparent logic of events: Fox v Percy (2003) 214 CLR 118 at [30]-[31]. Where proof of a fact is required: "the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality": Helton v Allen (1940) 63 CLR 691 at 712; Briginshaw v Briginshaw (1938) 60 CLR 336 at 361.
9. All evidence, including documentary evidence, must be submitted to rational analysis, including with respect to the drawing of inferences, having regard to the whole of the evidence and the conduct of the trial: State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3 at [63], [94], [149] and [155].
10. Even though I do not consider any of the witnesses before me to have given dishonest evidence, I am mindful of the approach of Lord Pearce in Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd's Rep 403 at 431, where his Lordship stated: "… though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. … And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process."
11. Taking the above principles into account in assessing the evidence, I am not persuaded that Mr Emde's account is correct.
12. Mr Emde's evidence that he was touched whilst still inside the café is, at best, unclear and ambiguous. His evidence was that he was grabbed when they were outside. However, as was pointed out by the defendant's counsel, the first time that Mr Emde alleged that he was grabbed outside the café was in the course of his oral evidence. He did not make that allegation in his particulars correspondence. It seems unlikely to have occurred, as described, in any event, given the unchallenged evidence of PC Warren as to the wagon's distance from the café. It is inconsistent with the latitude that the officers gave Mr Emde, to drive himself to the station, that they would have made physical contact with him either in, or outside, the café. There was no occasion, physically, to restrain Mr Emde as he was compliant. Considering the whole of the available evidence, and taking into account additional matters relating to Mr Emde's credit, which I consider below, I prefer the evidence of SC Newbould and PC Warren to that of Mr Emde.

At the station

1. As indicated above, Mr Emde was permitted to drive himself to Windsor Police Station. Once there, he was taken into custody. The parties did not agree on the course of events.
2. According to Mr Emde, he "went through hell". In chief he said, "they" - which, conformable with the pleading, must be a reference to SC Newbould and PC Warren - took hold of him and put him in a holding cell, although in cross-examination, he accepted that no one touched him at all from the time he got out of his car to the time he was released. He accepted that the door to the cell was left open. He was photographed and his fingerprints were taken. He claimed that he was in custody for eight hours. He became emotional whilst giving this evidence.
3. The defendant's Custody Management Record for Mr Emde for 21 April 2022 shows that he arrived at the station at 12:45pm and that he was released at 3:05pm the same day. It records that Mr Emde was permitted to stand at the charge desk because he found sitting down uncomfortable. He was charged with two counts of breaching s 14(1), Crimes (Domestic and Personal Violence) Act and granted bail on the condition that he not enter Richmond Marketplace. He was given a Court Attendance Notice requiring his attendance at Windsor Local Court on 28 April 2022. Before leaving the station, SC Newbould told him that he could seek a variation of the ADVO from the Court on 28 April 2022.
4. The only real matter of contention between the parties as to the events at the station was how long Mr Emde was there. I do not accept that he was there for eight hours, which would be an unusually long period. The contemporaneous written records, as well as the evidence of SC Newbould and PC Warren, was to the effect that Mr Emde was in custody for less than three hours. I accept this to be more likely than Mr Emde's account. It also conforms with the apparent logic of events.

At Windsor Local Court

1. On 28 April 2022, Mr Emde attended Windsor Local Court in accordance with the Court Attendance Notice. Contrary to his evidence before me, he was represented by a solicitor. On that occasion, by his solicitor, Mr Emde applied to vary the ADVO by deleting "Richmond Marketplace" from the specified locations. This was explained to the magistrate as being to allow Mr Emde to visit his chemist and doctor, but still precluding him from going near Woolworths. The ADVO was then varied with the consent of the prosecutor.
2. By his solicitor, Mr Emde admitted the breaches, apologised to the Court, explained that he had understood that he was permitted to go to Richmond Marketplace under the terms of the ADVO, but accepted that he was wrong. He pleaded guilty to both offences under s14(1), Crimes (Domestic and Personal Violence) Act. The learned magistrate noted that Mr Emde had no criminal record since 1997 and, having regard to the circumstances, indicated that he was prepared to give Mr Emde "the benefit of the doubt". Both matters were dismissed under s 10(1)(a), Crimes Sentencing Procedure Act 1999. A foreshadowed application to vary the bail conditions was, therefore, otiose and was withdrawn.
3. Mr Emde later changed his view as to the correctness of his pleas of guilty. He commenced and then withdrew an appeal to the District Court and, on 4 October 2023, he applied to the Attorney General for an order under s 5, Crimes (Appeal and Review) Act 2001 for an annulment of his conviction or sentence (although he was neither convicted nor sentenced) and for his matter to be returned to the Local Court for hearing. In his 4 October 2023 application to the Attorney General, by his solicitor, he stated that he had been unrepresented in court on 28 April 2022 when pleading guilty to the breach of ADVO offences. This was not true, and is a factor on which the defendant relies in its submissions as to Mr Emde's credit.

Tort of battery

1. The tort of battery is an act of the defendant (or of a person for whose acts the defendant is liable) which directly, and either intentionally or negligently, causes some offensive physical contact with the person of the plaintiff. Like all suits in trespass, the tort is actionable per se without proof of damage. It is the protection of the right to bodily integrity in itself that is the gist of the action, not the suffering of harm.
2. I am not satisfied that Mr Emde has established that either SC Newbould or PC Warren made physical contact with him at, or near, the café in Kurrajong. I do not accept that they had their hands on him, at any stage, and I expressly reject the allegation that they tried to lift him into the back of the police wagon.
3. Mr Emde has not made out a cause of action in battery.

Tort of assault

1. The tort of assault is directed to the apprehension of contact. Assault is an intentional offer or threat of force or violence to the person of another, who reasonably believes that the threat will be carried out forthwith. The menace must be accompanied by an intention to raise, in the mind of the person threatened, an apprehension that violence is about to be committed. It is committed when a defendant commits an act which causes a plaintiff reasonably and immediately to apprehend contact with his or her person.
2. There was no evidence directed to any of these elements. It was not put to either SC Newbould or PC Warren that they had the requisite intention for the tort to be made out.
3. Mr Emde has not made out a cause of action in assault.

Tort of false imprisonment: was there imprisonment?

1. The parties treated wrongful arrest and false imprisonment as relevantly the same cause of action, which is the approach I have also taken.
2. False imprisonment is a direct act of the defendant which confines the plaintiff within an area delimited by the defendant. The law attaches supreme importance to the liberty of the individual and if he or she suffers a wrongful interference with that liberty, it is actionable without proof of special damage. Damages are awarded to vindicate personal liberty rather than as compensation for loss per se: CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514; [2015] HCA 1 at [155]. The gist of the action for false imprisonment is mere imprisonment.
3. False imprisonment is a tort of strict liability and lack of fault is irrelevant to the existence of the wrong: Ruddock v Taylor (2005) 222 CLR 612 at [140]. A plaintiff who proves that his or her imprisonment was caused by the defendant has a prima facie case. At common law it is the defendant who must then show lawful justification for his or her actions. Once the plaintiff shows that the defendant, by a direct act, caused the plaintiff to be imprisoned, the onus shifts to the defendant to negative the case for liability: Ruddock at [140].
4. There is no dispute that Mr Emde was imprisoned in the sense understood by the common law authorities. The dispute before the Court concerns whether the imprisonment was lawfully justified.

Lawful justification: section 99 LEPRA

1. The defendant relies on s 99, LEPRA, which provides: 99 Power of police officers to arrest without warrant (cf Crimes Act 1900, s 352, Cth Act, s 3W) (1) A police officer may, without a warrant, arrest a person if - (a) the police officer suspects on reasonable grounds that the person is committing or has committed an offence, and (b) the police officer is satisfied that the arrest is reasonably necessary for any one or more of the following reasons - (i) to stop the person committing or repeating the offence or committing another offence, (ii) to stop the person fleeing from a police officer or from the location of the offence, (iii) to enable inquiries to be made to establish the person's identity if it cannot be readily established or if the police officer suspects on reasonable grounds that identity information provided is false, (iv) to ensure that the person appears before a court in relation to the offence, (v) to obtain property in the possession of the person that is connected with the offence, (vi) to preserve evidence of the offence or prevent the fabrication of evidence, (vii) to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence, (viii) to protect the safety or welfare of any person (including the person arrested), (ix) because of the nature and seriousness of the offence. (2) A police officer may also arrest a person without a warrant if directed to do so by another police officer. The other police officer is not to give such a direction unless the other officer may lawfully arrest the person without a warrant. (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. Note - A police officer may discontinue the arrest of a person at any time and without taking the arrested person before an authorised officer - see section 105. (4) A person who has been lawfully arrested under this section may be detained by any police officer under Part 9 for the purpose of investigating whether the person committed the offence for which the person has been arrested and for any other purpose authorised by that Part. (5) This section does not authorise a person to be arrested for an offence for which the person has already been tried. (6) For the purposes of this section, property is connected with an offence if it is connected with the offence within the meaning of Part 5. (7) In this section - arresting police officer means the police officer arresting a person under this section.
2. It may be seen that s 99(1) relevantly has two limbs: 1. that the officers suspected on reasonable grounds that Mr Emde had committed an offence; and 2. that the officers were satisfied that the arrest was reasonably necessary for one or more of the reasons enumerated in s 99(1)(b).
3. Each limb requires the officers to have reached a particular state of mind, whereupon they could exercise a discretionary power to arrest. The state of mind required under each limb must be held at the time of the arrest: Ruddock at [40].

Whether the officers suspected on reasonable grounds that Mr Emde had committed an offence

1. To satisfy s 99(1)(a), the defendant must establish that the officers suspected on reasonable grounds that Mr Emde entered the Marketplace, that doing so was contrary to the ADVO and that Mr Emde did so knowing that entering the Marketplace was contrary to the ADVO.

Did the officers suspect on reasonable grounds that Mr Emde entered the Marketplace?

1. As to the first of these matters, I am satisfied that the officers suspected on reasonable grounds that Mr Emde had attended Richmond Marketplace on 19 and 21 April 2022. This was not really in dispute. The officers had the benefit of their interview with the plaintiff's daughter, interview with the proprietor of the Jamaica Blue café at the Marketplace and the CCTV footage which showed Mr Emde had been to the Marketplace. Mr Emde did not dispute that he had done so.

Did the officers suspect on reasonable grounds that entering the Marketplace was contrary to the ADVO?

1. Mr Emde disputed both that the officers subjectively believed that it was an offence for Mr Emde to enter the Marketplace and that it was reasonable for them to do so.
2. On the basis of their evidence before me, I am satisfied that the officers subjectively believed that it was an offence for Mr Emde to enter the Marketplace during the currency of the ADVO. This is also consistent with the logic of events and the charges that were subsequently brought against him.
3. The principal issue before the Court with respect to s 99(1)(a) was whether there were reasonable grounds for the officers to suspect that, by entering the Marketplace, Mr Emde had committed an offence. This largely turned on the question of whether the ADVO, properly construed, prevented Mr Emde from lawfully entering Richmond Marketplace at all or whether it merely prevented him from entering the Woolworths at the Marketplace. Mr Emde contended that the ADVO only prevented him from entering the Woolworths.
4. The authorities to which I was taken, that addressed s 99(1)(a), were concerned with the question of whether there were reasonable grounds to suspect that the person had committed the acts which constitute the offence, rather than whether those acts (even if proved) constitute an offence.
5. There is nothing in the language of subs (1)(a) that confines the test of "reasonable suspicion" to a suspicion as to the factual circumstances of the offence. Rather, the test in subs (1)(a) appears to apply globally to the question of whether there are reasonable grounds to suspect an offence has been committed. There would appear to be no textual, contextual or purposive reason to draw a distinction between there being a reasonable suspicion that the conduct occurred and a reasonable suspicion that such conduct amounted to an offence.
6. Neither party directed any submission to the question of how to determine the s 99(1)(a) issue in the event of ambiguity in the ADVO. Each party simply proceeded on the basis that their preferred construction was correct. If the defendant's construction is correct, there is no doubt that this element of the test in s 99(1)(a) is satisfied. If Mr Emde's construction is correct, the position is less clear.
7. That is because, in the present case, I consider that the language of the ADVO admits some ambiguity. Paragraph 8.C) of the ADVO prevented Mr Emde from going into: "any place listed here Woolworths Richmond, Richmond Market Place, Paget Street and Lennox Street, Richmond, NSW 2753."
8. Mr Emde says that, properly construed, the words "Richmond Market Place, Paget Street and Lennox Street, Richmond, NSW 2753" only serve to provide more specific detail of the address of the Woolworths and are part of the same description of a single place. This construction is supported by the formatting of the ADVO.
9. The competing construction, relied on by the defendant, is that "any place listed here" is construed distributively to apply to each of Woolworths and the Richmond Marketplace separately. This is supported by the textual context of paragraph 8.C) after 8.B) which refers to "any place where she [the plaintiff's daughter] works". Where the terms of the ADVO are heard, rather than read, a distributive construction would seem more natural.
10. In my view, however, the task before the Court is not to choose a single, correct construction of the ADVO. I consider that both of the above constructions are reasonably available and would have been reasonably available to the police officers when they were informed of the terms of the ADVO by police radio on 21 April 2022.
11. Rather, the question is whether the test in s 99(1)(a) is satisfied. In my view, it is satisfied because I consider that it was reasonably open to the officers to construe the ADVO in the way contended for by the defendant. With the benefit of argument, reflection and consideration of the principles to apply to the construction of court orders, it might not be considered to be the single best construction, however, I do not consider that to be the test which I must apply. Police officers are required to make assessments in real time, with immediate consequences of acting or failing to act, which might prove extremely serious. What is reasonable must be understood in this context.
12. Further, I consider that the circumstances in which SC Newbould and PC Warren were informed of the terms of the ADVO contributed to the reasonableness of the distributive construction for which the defendant contends. On their unchallenged evidence, in accordance with usual practice, they heard the terms of the ADVO over police radio. They did not see, and were not privy to, the formatting of the ADVO document. They would have heard "any place listed here" and then references to Woolworths and to Richmond Market Place. It was reasonable for them to believe that the ADVO applied distributively to the Woolworths and to Richmond Marketplace. It certainly would not have been manifestly unreasonable for them to form that view.

Did the officers suspect on reasonable grounds that Mr Emde entered the Marketplace knowing it to be contrary to the ADVO

1. In my view, it was a reasonable inference available to the officers that Mr Emde breached the ADVO knowingly. On the material they had available to them, at the time they decided to arrest Mr Emde, they were aware he had entered the Marketplace twice over the course of three days, that he was seen to have been walking from the direction of the Woolworths to the Jamaica Blue café and that his presence there had frightened and alarmed his daughter. They did not consider or accept that there was any ambiguity in the terms of the ADVO. In the circumstances, they were entitled to suspect that each element of the offence had been made out.
2. In my view, on the basis of a reasonably available construction of the ADVO in the circumstances, the officers' suspicion that Mr Emde had committed the offences of breaching the ADVO was on reasonable grounds and s 99(1)(a) is satisfied.

Whether the officers were satisfied that the arrest was reasonably necessary for one or more of the reasons enumerated in s 99(1)(b)

The test

1. The solicitor for Mr Emde relied on Jankovic v Director of Public Prosecutions [2020] NSWCA 31, in which Barrett AJA found that a process of comparison and evaluation of the alternatives to arrest was called for by s 99(1)(b). He submitted that, in the present circumstances, the officers did not properly evaluate alternatives to arresting Mr Emde and that the defendant had not shown that Mr Emde's arrest was reasonably necessary for any of the reasons enumerated in s 99(1)(b). He contended that it was manifestly unreasonable for them to form the view that it was.
2. Counsel for the defendant relied on AD v State of New South Wales [2023] NSWCA 115 and State of New South Wales v Randall [2017] NSWCA 88, which considered the grounds on which reasonable satisfaction could be impeached, generally being where it can be shown that the state of satisfaction was manifestly unreasonable, or arbitrary, capricious, irrational or not bona fide. It was, he submitted, not available on the evidence to reach such a finding in respect of the decision by SC Newbould or PC Warren to arrest Mr Emde.
3. AD and Randall have since been affirmed in Reeves v State of New South Wales [2024] NSWCA 125, which the Court considered to be consistent with the language of LEPRA, particularly taking into account legislative changes in 2013, in which the requirement as to objective reasonableness in the satisfaction of the police officer as to the necessity of arrest were removed. In Reeves, it had been submitted that both AD and Randall had been wrongly decided and that the arresting officer had failed properly to engage in the process of comparison and evaluation of the alternatives to arrest called for by s 99(1)(b), which submission effectively picks up the test in Jankovic. Neither appeal ground was made out in Reeves.
4. In Reeves, Bell CJ considered that there was no conflict between the decision of Barrett AJA in Jankovic and Basten JA in Randall and AD, but if there was, the interpretation of s 99(1) given by Basten JA should be preferred (at [116]). The relevant test, for the purpose of s 99(1)(b), is as set out by Basten JA in AD. Bell CJ referred to the explanation in AD as follows: "[111] In AD, the Applicant sought leave to appeal from a decision dismissing her three causes of action, namely false imprisonment, trespass and misfeasance in public office. In relation to the arresting officer's state of satisfaction pursuant to s 99(1)(b) of LEPRA, the primary judge had held that the decision to arrest could only be impugned on the basis of 'Wednesbury unreasonableness' and dismissed any suggestion that the availability of review on this basis had been disapproved of in Jankovic v Director of Public Prosecutions [2020] NSWCA 31; (2020) 281 A Crim R 357 (Jankovic). [112] On appeal, albeit without reference to Jankovic, the Applicant argued that the primary judge had erred in applying the concept of 'Wednesbury unreasonableness' to s 99(1)(b). In dismissing those arguments, at [25]-[28], Basten JA, with whom Meagher JA agreed (at [1]), held in respect of s 99(1)(b) of LEPRA that: 'It is convenient to return to the grounds on which a state of satisfaction may be challenged. There was criticism of the judge's statement that the arresting officer's decision could 'only be impugned on the basis of the principle often referred to as 'Wednesbury Unreasonablenes' [sic.]'. The judge found support for that proposition in the reasons of McColl JA in Hyder v Commonwealth of Australia [[2012] NSWCA 336; (2012) 217 A Crim R 571 at [15]]. McColl JA stated that the decision 'whether or not to arrest and … the lawfulness of the way in which the discretion was exercised in a particular case could not be questioned in any court of law except upon the principles Lord Greene MR enunciated in [Wednesbury] … applied in Zaravinos v State of New South Wales'. There are risks in relying upon English cases and cases under Commonwealth law in addressing the terms of a State statute, without identifying points of similarity or difference. However, the approach in Hyder was subsequently adopted in relation to s 99 by this Court in State of New South Wales v Randal'… '13 … Most challenges to the validity of arrests turn on whether or not there were reasonable grounds for the suspicion, the grounds being a matter for assessment by the court. By contrast, both the first limb and the second requirement involve a precondition to the exercise of the power of arrest which depends, not upon objectively verifiable circumstances, but on the state of satisfaction of the officer. Accordingly, unlike the requirement for reasonable grounds, a challenge to the existence of a suspicion or state of satisfaction will only be available where it can be shown that the suspicion or state of satisfaction was manifestly unreasonable, or 'arbitrary, capricious, irrational, or not bona fide', as explained by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu.' The Court in Randall was divided as to whether the State should be granted leave to appeal, but not as to the principles to be applied to the substantive question. The basis of the challenge must turn on proof that the decision-maker has committed legally reviewable error in forming the requisite state of satisfaction. While the wholehearted endorsement of the arresting officer's views need not be accepted, the applicant has not established either that he did not hold the state of satisfaction as to reasonable necessity of the course taken, as he asserted in his evidence, or that such a state of satisfaction was manifestly unreasonable, or arbitrary or capricious in the sense identified in the authorities." (Footnotes omitted and emphasis added.)
5. According to AD, Randall and Reeves, therefore, once a defendant establishes that the officer subjectively held the relevant state of satisfaction, it falls to the plaintiff to challenge that state of mind on the basis that it was manifestly unreasonable, or arbitrary, capricious, irrational, or not bona fide. If a plaintiff cannot do so, the exercise of the power to arrest is valid under s 99(1).
6. The Court of Appeal in Reeves considered that, except in one respect, there is no conflict between the decisions in AD and Randall, on the one hand, and Jankovic, on the other. The approach identified by Barrett AJA in Jankovic requires that the arresting officer consider lesser alternatives to arrest in reaching a state of satisfaction as to whether arrest is reasonably necessary to achieve the law enforcement objectives enumerated in s 99(1)(b). The exception identified in Reeves appears to be that the relevant inquiry should not, contra Jankovic at [61], require the officer to conduct an objectively reasonable assessment that immediate arrest is a proportionate response to the risk posed, by measures short of arrest, to the attainment of the law enforcement results identified in s 99(1)(b).
7. Nevertheless, by not otherwise disapproving the test in Jankovic and finding that there is no conflict between it and AD and Randall, the Court of Appeal appears to have preserved the general approach in Jankovic, That is, whether the arresting officer considered alternative courses short of arrest is relevant to determining whether the state of satisfaction that arrest was reasonably necessary to achieve one or more of the law enforcement outcomes enumerated in s 99(1)(b) was manifestly unreasonable, or arbitrary, capricious, irrational, or not bona fide.
8. So much is tolerably clear in respect of the outcomes enumerated at s 99(1)(b)(i) to (viii), each of which identifies a particular outcome. However, the position appears different with respect to s 99(1)(b)(ix), which does not refer to an outcome, but to "the nature and seriousness of the offence". In respect of this ground, it does not seem possible that any counterfactual comparison can be made in order to establish whether arrest was reasonably necessary and, therefore, the test of Wednesbury unreasonableness as described in AD, Randall and Reeves does not embrace the comparative process described by Barrett AJA in Jankovic.

Application

1. It was submitted for Mr Emde that the officers did not comply with the requirements of s 99(1)(b) and, accordingly, his arrest was unlawful. The point was made, by reference to authority and the Police Handbook, that the deprivation of a citizen's liberty is a last resort and alternatives ought always be considered before an arrest is made. The purpose of the power of arrest is to bring a person before the Court for the purpose of charges against him or her to be heard. The arrest of Mr Emde was not for this purpose and was not reasonably necessary for any of the reasons enumerated in s 99(1)(b). The subsequent release of Mr Emde on the day of arrest and, more significantly, the amendment of the terms of the ADVO by the Local Court (with the consent of the prosecutor) on 28 April 2022 ought be taken into account in considering whether the arrest was justified.
2. The defendant submitted that it was not possible to find, on the evidence, that the officers' conduct in arresting Mr Emde was manifestly unreasonable, or arbitrary, capricious, irrational or not bona fide. They had good grounds to arrest Mr Emde. The subsequent course Mr Emde's prosecution took, including the variation of the terms of the ADVO, was not relevant to the validity of the exercise of the power of arrest.
3. The officers' evidence, described above, was that they determined to arrest Mr Emde primarily because they considered it necessary to do so to protect the safety and welfare of his daughter and to prevent repetition of the offence.
4. The plaintiff's daughter had been frightened and distressed by seeing Mr Emde at the Marketplace. He had been there twice over a period of three days. The CCTV footage was at least consistent with him walking to the Jamaica Blue café from the direction of the Woolworths, which suggested that he may have gone there first. Given that the officers construed the ADVO as preventing him from going to the Marketplace, some response was clearly called for.
5. On the other hand, Mr Emde was 78 years old at the time of arrest and physically frail. The evidence did not establish that the officers considered that Mr Emde ever tried to make contact with his daughter or that she alleged to them that he did so. There was no evidence before the officers that Mr Emde had behaved violently on either occasion that he attended Marketplace. While PC Warren suggested in her evidence that a breach of an ADVO is inherently violent, this is contradicted by s 14(4) of the Crimes (Domestic and Personal Violence) Act 2007, which imposes different penalty considerations for that subset of breaches of ADVOs involving an act of violence.
6. The officers did not consider any alternative response. They accepted that Mr Emde could have been brought before the Court to answer charges of breaching the ADVO by issuing him with a Court Attendance Notice. However, they considered it inappropriate to do so because of the perceived need to protect the plaintiff's daughter and the repetition of the offence, and their evidence was that they did not ever consider it as an option for these reasons.
7. They further each gave evidence that the nature and seriousness of the offence was a matter they took into account. This is the reason provided in subs 99(1)(b)(ix), which does not provide a basis for a counterfactual comparison of steps which might achieve a particular law enforcement objective. They pointed out that breaches of ADVOs are regarded as serious. There was no dispute that, as a general proposition, this is correct.
8. Having regard to the evidence, I consider that it was not manifestly unreasonable, or arbitrary, capricious, irrational or not bona fide for the officers to have arrested Mr Emde on 21 April 2022. While they did not actively consider alternatives to arrest, I am satisfied that, in circumstances where they were concerned for the welfare of the plaintiff's daughter, there had been a repetition of the apparent offence over a short space of time and the offence was breach of an ADVO, a failure expressly to advert to such alternatives, is not sufficient to contravene the test of Wednesbury unreasonableness. The nature and seriousness of the offence was, in the present case, a further sufficient basis for the arrest to have been lawful.
9. Further, in relation to the submission that the subsequent course of Mr Emde's custody and charge ought to be taken into account, I do not consider this derogates from the validity of the arrest at the time it was made. In AD, in the context of considering whether an arrest for the purpose of imposing bail conditions was unlawful, Basten JA stated at [20]: "The arresting officer is not required to form a view as to whether bail would be granted, or on what conditions; however, as a practical matter it is likely that in many circumstances (including the present) release on bail almost immediately is to be expected and it is the imposition of appropriate conditions which may well provide protection to others, or render the commission of further offences less likely."
10. Accordingly, I find that Mr Emde has not made out his claim with respect to wrongful arrest or false imprisonment.

Damages

1. Against the possibility that I am wrong in respect of liability, I set out below my consideration of Mr Emde's claim for damages.
2. Mr Emde seeks damages in a global sum of $140,000 for wrongful arrest, false imprisonment, assault and battery. Contrary to my findings above, I have assumed that Mr Emde has succeeded in all questions of liability.
3. Damages may be, and commonly are, awarded for assault, battery and false imprisonment, whether or not the plaintiff is injured or suffers loss. Damages are "very much at large": Louis v Commonwealth (1987) 87 FLR 277. See also, with respect to false imprisonment, Ruddock at [140].

Assault and battery

1. Compensatory damages in the case of the torts of assault, battery and false imprisonment are assessed on the basis of the harm to the plaintiff's interest in bodily integrity and liberty. It is unnecessary for the plaintiff to establish economic loss or personal injury in order to recover compensatory damages.
2. Other than the bare allegation of assault, Mr Emde did not identify any facts on which such a finding could have been made. I am unable to assess damages in respect of this cause of action on the evidence before me. As assault is actionable per se, if the evidence before me disclosed that an assault had occurred, Mr Emde would only be entitled to nominal damages for it.
3. If I had accepted Mr Emde's evidence, that he was touched either in the café or that the officers had attempted to lift him into the police van, this would have constituted an interference with his bodily integrity. Even if I had accepted his evidence, it would have been minor, fleeting and brought to an end when he protested that he could not travel to the police station in the van. If the allegations had been made out, I would have assessed damages at $500.

False imprisonment

1. False imprisonment trenches upon not only a person's liberty, but also on his dignity and reputation, and this is reflected in the calculation of damages: J Fleming, The Law of Torts (8th ed, 1992, LawBook Co) at p 29. Compensatory damages are assessed by reference, inter alia, to the duration of the deprivation of liberty and to the hurt or injury to the plaintiff's feelings, that is to say, the injury, mental suffering, disgrace and humiliation suffered as a result of the false imprisonment: F Trindade and P Cane, The Law of Torts in Australia (3rd ed, 1999, Oxford University Press) p 302; Goldie v Commonwealth of Australia No 2 [2004] FCA 156; (2004) 81 ALD 422 at [14].
2. An interference, even for a short period, is not a trivial wrong: Watson v Marshall & Cade (1971) 124 CLR 621 at 632. While there is little to be gained by comparing damages awards in different circumstances, in State of New South Wales v Riley [2003] NSWCA 208, false imprisonment of about an hour, during which tight handcuffs were applied, resulted in an award of $40,000. In Zaravinos v State of New South Wales (2004) 62 NSWLR 58, however, it was noted that damages are not capable of being related proportionately to the length of time in detention, and the substantial portion of the award must be applied to the initial shock of being arrested: see also Ruddock.
3. In the present case, I have found that Mr Emde was held for no more than three hours. Unusually, he was allowed to drive himself to the station. He was not locked in a cell and was accommodated by being permitted to stand at the charging desk, rather than sit in accordance with usual practice.
4. On the other hand, Mr Emde was 78 years old at the time of arrest and physically frail. He was asked by the officers to leave the café, in the presence of many of his acquaintances, and did not return. To some extent, it might be inferred that this establishes a degree of injury, mental suffering, disgrace and humiliation. He was not, however, handcuffed, physically restrained or transported in a police van to the station.
5. If the facts, as I have found them relevant to Mr Emde's arrest, disclose that his arrest was unlawful, I would have assessed compensatory damages at $5,000.

Aggravated and exemplary damages

1. On the evidence before me, I do not see any basis for a claim for aggravated or exemplary damages, and do not see any principled basis on which I could assess it.

Conclusion

1. For the above reasons, I have found that Mr Emde has not made out any cause of action against the defendant with respect to the circumstances of his arrest on 21 April 2022.
2. As costs ordinarily follow the event, I would ordinarily order the plaintiff to pay the costs of the defendant as agreed or assessed on the ordinary basis. The defendant, however, has asked to be heard on costs.

Orders

1. The Court orders that: 1. Judgment for the defendant. 2. Direct the parties to liaise and seek to agree on an order for costs. 3. In the event that the parties have not reached agreement on an order with respect to costs, and notified my Associate of such agreement by 2pm on 4 July 2024, list the question of costs for hearing on Friday, 5 July 2024 at 10am part heard before Andronos SC DCJ with an estimate of one hour.

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