Exton v State of NSW

District Court of NSW|2017-02-22

Table of Contents Nature of case [1] - [3] Evidence overview [4] - [5] Uncontested factual background [6] - [19] Issues [20] - [21] Legal principles to be applied [22] - [30] Review of factual evidence [31] - [108] The plaintiff [32] - [44] Mr Cotroneo [45] - [49] Senior Constable Chapman [50] - [82] Senior Constable Quinn [83] - [103] Senior Constable Archibald [104] - [105] Detective Senior Constable Hoffman [106] - [108] Filmed images [109] - [128] Pre-arrest CCTV footage [111] - [113] Moment of arrest [114] Post-arrest restraint of plaintiff [115] - [125] YouTube footage [126] - [128] Issue 1 - Resolution of significant factual matters [129] - [187] (1) Removal of vehicle ignition key [130] - [134] (2) Whether a warrant existed [135] - [139] (3) Request or direction to get out of vehicle [140] - [155] (4) Plaintiff's manner of exit from vehicle [156] - [173] (5) Stage at which plaintiff was grabbed by arms [174] - [185] (6) Timing of arrest [186] - [187] Issue 2 - Whether the arrest of the plaintiff was lawful [188] - [193] Issue 3 - Whether assault and battery occurred [194] - [195] Issue 4 - Whether false imprisonment occurred [196] - [200] Issue 5 - Assessment of damages [201] - [226] General damages - assault & battery [204] - [208] General damages - wrongful arrest & false imprisonment [209] - [211] Aggravated damages [212] - [214] Exemplary damages [215] - [222] Interest [223] - [225] Summary of damages and interest [226] Disposition [227] Costs [228] Orders [229]

Nature of case

The plaintiff, Mr Trent Exton, an Aboriginal youth who at the relevant time was aged 17 years, and intoxicated, was arrested by police officers shortly after 1.00am on Saturday 20 April 2013, in Keen Street, Lismore, NSW.
The relevance of referring to the plaintiff's age, Aboriginality and intoxication, is that according to applicable police protocols, his situation indicated he fitted within applicable police criteria for being regarded as a vulnerable person.
The plaintiff brings these proceedings against the defendant, the State of New South Wales, claiming damages, including compensatory, aggravated and exemplary damages, for alleged wrongful conduct, which he alleges comprised assault and battery, wrongful arrest, and false imprisonment at the hands of the arresting police officers for whose actions the defendant is vicariously liable: s 5 of the Crown Proceedings Act 1988; s 8 of the Law Reform (Vicarious Liability) Act 1983.

Evidence overview

The plaintiff was the only witness to give oral evidence in his case. He had very little recollection of the events in question because, on his own account, he was very intoxicated at the time. In the defendant's case, oral evidence was given by Mr Dominic Cotroneo, a security guard carrying out street patrols and related duties for Lismore City Council, the arresting police officers, Senior Constable Timothy Chapman, Senior Constable Brian Quinn, and other police officers who came to their assistance, namely, Senior Constable Peter Archibald and Detective Steven Hoffman.
Some of the events which preceded and which followed the arrest of the plaintiff were recorded on Council CCTV cameras. Some of the events which followed the arrest of the plaintiff were also filmed by a bystander known in the locality by the name Big Rob, who, amongst other things, is a sometime local journalist. He made a recording of some of the events on the camera function of his mobile telephone, and then posted the images on the internet site, YouTube. Those materials, and some police records that were also tendered, will be referred to where it becomes relevant to do so. The question of why the events of the actual arrest of the plaintiff were not the subject of tendered CCTV footage, was not explained.

Uncontested factual background

During the course of the evening of Friday, 19 April 2013, the plaintiff was drinking alcohol with a group of friends and family members at various places, including in Keen Street, Lismore.
In the course of that evening, the group of which the plaintiff was a member came under the notice of remote camera operators and security personnel engaged by Lismore Council. The job of those security officers was to patrol the streets of Lismore for the purpose of minimising the occurrence of street crime. At the time, Keen Street was part of the central business district of Lismore which had been declared an alcohol free zone.
At about 9.00pm on that evening, those Council security officers approached a group of young males, of which the plaintiff was part, and asked them to move away from where they had congregated. The group initially complied with that request and moved away, but about 15 - 20 minutes later, the security officers noticed the group had congregated on another corner of Keen Street, and were said to have been apparently annoying passers-by, and were exhibiting larrikin behaviour. The security officers then attended at that location and again asked the group to move on, and they apparently complied with that request.
Some hours later, the security officers were notified that members of the same group of young males were again present and walking around in Keen Street. The group were seen by Council foot patrol security officers to be crossing the road. Those security officers then became aware of a nearby police presence, and they requested the police officers to attend and talk to the group: T55.48. Those police officers, who then attended the scene, were Senior Constable Chapman and Senior Constable Quinn. At the time, they were on plain clothes duties, and they were in an unmarked police vehicle.
By the time those first attending police officers had arrived, the group which included the plaintiff were in the process of moving towards, and entering a Tarago vehicle which was parked nearby, and which was under the control of an older cousin of the plaintiff. She was the designated driver who was unaffected by alcohol consumption. There is no dispute that the police officers at the scene were satisfied she was a suitable person to drive the vehicle. It was her intention to drive the group away from the scene, and to the plaintiff's home.
The two police officers decided to approach that vehicle. At that time, the driver was then asked to ensure that her vehicle continued to remain stationary whilst those officers looked at the occupants of the vehicle. In those events, Senior Constable Chapman, who had recognised the plaintiff from some prior but affable dealings with him, opened the passenger door of the vehicle and requested that the plaintiff remove himself from the vehicle. At that time the plaintiff was seated in the last of three rows of passenger seats at the rear of the vehicle.
In the ensuing moments, Senior Constable Chapman made two requests of the plaintiff for him to get out of the vehicle. At the time he made those requests, he conceded that he had no reasonable grounds for suspecting that the plaintiff had either committed, or was about to commit, a criminal offence of any kind.
The plaintiff did not appear to immediately accede to Senior Constable Chapman's first request that he get out of the vehicle. Senior Constable Chapman then made a second request for the plaintiff do so. There is no dispute that he made that second request in the following terms which he described in his oral evidence: "Trent, can you get out of the car? I don't want to have to drag you out. Can you get out?": T66.39.
There is no dispute that at the time Senior Constable Chapman spoke to the plaintiff in those terms, he knew that he did not have the power to compel the plaintiff to get out of the vehicle. He said that his request for the plaintiff to do so was a bluff on his part, and he further explained that he would not have carried out the threat to use physical force to drag the plaintiff out of the vehicle if the plaintiff had not complied with his direction. Senior Constable Chapman proffered two varied justifications for having asked the plaintiff to get out of the vehicle. Those explanations will be reviewed in the course of identifying my findings of fact on significant matters in dispute.
Although the plaintiff took his time to oblige Senior Constable Chapman's second request, he did eventually comply, in a slow manner that I consider to have been commensurate with his intoxicated state. In the course of doing so, he expressed an attitude of annoyance, he was swearing volubly, and he was using offensive language as he moved forward towards the door of the vehicle. In order to move to that position, and to the exit door on the left or passenger's side, he had to climb over some seats, and over some other passengers who were located on the seats in front of him.
As the plaintiff did so, according to the descriptions given by the police officers, he was inco-ordinate in his arm movements, he was upset, and he was swearing. As the plaintiff neared the passenger's side door to exit the vehicle, and as he proceeded to get out of the vehicle, Senior Constable Chapman and Senior Constable Quinn each grabbed one of his arms. By the time the plaintiff's feet were on the ground, without warning to either the plaintiff or to Senior Constable Quinn, Senior Constable Chapman then carried out a leg sweep manoeuvre, which had the effect of taking both the plaintiff and Senior Constable Quinn down onto the pavement, whereupon, the plaintiff was further restrained, and at some stage it appears he may have been handcuffed, with his hands behind his back.
In the course of that further restraint, Senior Constable Chapman was maintaining the plaintiff in a position of laying face down on the pavement. He continued that hold on him as he applied both of his knees to various parts of the plaintiff's back. The plaintiff was maintained in that position until a caged police vehicle arrived to transport him to Lismore Police Station where he was charged with the alleged offences of assaulting a police officer in the execution of duty and behaving in an offensive manner in or near a public place or school. Those charges were later withdrawn at a court mention on 13 September 2013.
At the scene, whilst the plaintiff was on the ground as described above, he was in an extremely distressed state. There is no dispute that at some stage he was banging his head on the concrete pavement. He was screaming volubly, maintaining that he had done nothing wrong, and at that time, he was variously expressing a desire to kill the police officers, and in the alternative, inviting the police officers to kill him.
During those events, at some stage, at least one of the plaintiff's companions got out of the vehicle and punched a police officer in the back of the head. At that time the police had an escalating situation on their hands. Senior Constable Quinn then felt obliged to deploy OC spray at that person and this also affected others in the vicinity. In those events, a cousin of the plaintiff, Mr Reece Gomes, was also arrested. Other police officers then arrived at the scene to assist in taking control of the situation, and to transport the two arrested men to Lismore Police Station, where those arrests were processed.

Issues

On reviewing the pleadings, the evidence and the submissions of the parties, and the factual conclusions that arise from the consideration of the evidence, the issues for determination in the proceedings may be conveniently identified to be as follows: Issue 1 - The resolution of factual matters of significance that surrounded the circumstances of the plaintiff's arrest, including: (1) whether or not a police officer had removed the ignition keys from the vehicle in which the plaintiff was seated; (2) whether at the time an arrest warrant existed in relation to the plaintiff; (3) whether Senior Constable Chapman had directed the plaintiff to get out of the vehicle, as claimed on behalf of the plaintiff, as distinct from making a request that he do so, as claimed by Senior Constable Chapman; (4) the manner and circumstances of the plaintiff's exit from the vehicle; (5) the stage at which the police officers grabbed the plaintiff by the arms and whether excessive force had been applied by the police; and (6) the actual stage or timing of the plaintiff's arrest; Issue 2 - Whether the arresting police officers had executed a lawful arrest of the plaintiff on account of the officer who initiated the arrest having at the time suspected, on reasonable grounds, that the plaintiff had committed, or was in the course of committing an offence; Issue 3 - Whether unreasonable force was applied by police officers to effect the arrest of the plaintiff, and if so, did this result in an assault and battery to the plaintiff; Issue 4 - Whether the plaintiff was falsely imprisoned after his arrest, and if so, for what period of time; Issue 5 - The assessment of damages for unlawful arrest, assault and battery, and false imprisonment, including claimed general compensatory, aggravated and exemplary damages.
The pivotal factual question which arises for determination in the proceedings is at what stage of the interaction between Senior Constable Chapman and the plaintiff, was the plaintiff actually arrested. The finding of fact on that question will be identified after a detailed review of the prevailing context and circumstances described in the evidence.

Legal principles to be applied

The principal function of the tort of wrongful arrest is to provide a remedy in damages for an "injury to liberty", and not to signify fault on the part of those for whom the defendant is responsible. Where the tort is made out, damages are awardable to vindicate interference with personal liberty, rather than to compensate for personal loss: Ruddock v Taylor [2005] HCA 48, (2005) 222 CLR 612, at [141].
The exercise of the power of police to arrest an individual must be considered to be an act of last resort, as it involves the extreme step of deprivation of liberty. Before a lawful arrest can be made, including an arrest made without a warrant, a police officer must have reasonable grounds for suspecting that a person is committing, or has committed, an offence: s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 ("LEPRA").
The power of a police officer to make an arrest without a warrant extends to the situation where an officer is satisfied that the arrest is reasonably necessary in order to stop the person committing or repeating an offence: s 99(1)(b) of LEPRA; Chen v State of NSW [2014] NSWCA 41, at [35].
Once an arrest has been made, there is a heavy burden which rests on a defendant, having vicarious liability in respect of the conduct of the arresting police officers, to show that there was lawful justification for that arrest: Ruddock v Taylor [2005] HCA 48, (2005) 222 CLR 612, at [140] - [141].
The power to make an arrest must be exercised according to the common law notion of good faith: Zaravinos v State of New South Wales [2004] NSWCA 320, (2004) 62 NSWLR 58, at [24]. In that case, at [37], it was determined that in cases such as the one under present consideration, where the defendant bears the burden of proof to show that the arrest and the resultant detention were lawful and justified, not only the question of lawfulness was examinable, but so was the question of whether the decision to arrest was made in good faith, and not exercised for some extraneous purpose.
The expression to act "In good faith" is generally taken to mean to act honestly, and with no ulterior motive: Central Estates (Belgravia) Ltd v Woolgar; Liverpool Corporation v Husan [1971] EWCA J0728-1; [1971] 3 WLR 571, at p 575G-H, p 577C.
The propriety of actions taken in the events leading to the point of arrest inform the question of whether or not the arresting officer was acting in good faith, or other than in good faith, and whether reasonable and probable cause for the arresting police to engage the criminal process: Hamed v State of NSW [2009] NSWSC 242, at [89].
In State of NSW v Tyszyk [2008] NSWCA 107, at [111], the observation was made that courts have long recognised the duty of police to enforce the criminal law, and similarly in that context, it has also been long recognised that the police have a large discretion as to the manner in which that duty is performed, citing Glasbrook Bros v Glamorgan County Council [1925] UKHL 3; [1925] AC 270, at p 277.
At common law, a person is to be considered to be under the compulsion of a police officer to the extent of being prevented from freely leaving a place, not just by an obstruction or a coercion of will, but to the point of restraint upon the ability to leave, which may be evidenced in a variety of ways, including by a rendering or a submitting of him or herself to the power of the arresting officer: Symes v Mahon [1922] SASR 447, at pp 449, 451, 453 and 454. Whilst that case may be arcane authority, it nevertheless remains good authority that is available for the consideration required in this case.

Review of factual evidence

Before addressing the issues calling for decision as identified at paragraph [20] above, in the paragraphs that follow, I set out my review of the array of the factual evidence relevant to determining those issues which incorporates relevant parts of the contemporaneous documentation. I set out that review in detail as a matter of fairness not only to the plaintiff but also to the police officers concerned, given that the plaintiff's case attacks the propriety of the conduct of those officers in the performance of their public duties. In that review, the relevant matters of conflict which emerge from the evidence, and which require resolution, are identified in the consideration of Issue 1 in these reasons.

The plaintiff

At the time the plaintiff gave his evidence he was brought to court as an incarcerated prisoner. He was in the custody of Corrective Services Officers. I was not informed of the reasons for such circumstances. The only purpose in recording those circumstances is to make it clear that I draw no adverse inferences about the plaintiff's credit as a consequence of his incarceration, which I infer from the circumstances, to be unconnected with the present case.
At the time the events in question occurred, the plaintiff was aged 17 years. He weighed about 50kgs, and he was about 5' 8" in height. In the course of the Friday evening, and over a number of hours, he and a number of his friends and relatives had been drinking alcohol at various locations in Lismore. He conceded that by about 9.00pm, he had been "pretty drunk": T30.27. He said, and I accept, that he did not recall having been approached by Council security officers during the course of the evening: T31.2; T37.38; T38.23; T39.16.
By about 1.00am on the following morning, he and his companions had gone to the vicinity of Cocktails, a nightclub in Keen Street, Lismore. After the group had been standing around outside that nightclub for a while, the plaintiff's cousin went to fetch her vehicle to drive the group home. It was shortly after the group had entered the vehicle, a Toyota Tarago, that the plain clothed police officers, Senior Constable Chapman and Senior Constable Quinn arrived on the scene. In his evidence in chief, the plaintiff stated his limited recollection of the ensuing events, to be as follows: "Q. Do you recall being approached by any police officers while you were just standing there? A. Probably. Q. Do you remember it? A. No, not really. Q. You'd been standing around near the Torago (sic), what happened then? A. That's when we all jumped in the car. Q. Do you remember where you were sitting once you'd got into the car? A. The four of us sat at the back of the car. Q. And just describe the car, in terms of its size. A. It's a bus and there's a front seat, middle and the back, right at the back. Q. And you were in the back seat? A. Yeah. Q. Do you remember what side of the car you were on? A. The passenger side. Q. The passenger side? A. Yeah. Q. Once you were sitting in the rear passenger seat, do you remember what happened after that? A. Two police officers come, one went around to the driver's seat, took their keys out of the ignition and one come to the sliding door. Q. The officer that you've said turned off the key for the ignition, do you remember him saying anything? A. "Don't go nowhere." Like, before he grabbed the keys out of the car. Q. And who was he talking to? A. Natasha. Q. And she was driving the car, is that right? A. Yeah. Q. The officer that you've just said came round to the sliding door, what did he do? A. He opened the door and told me to come out. Q. Do you remember what he said to you exactly? A. Not really. Q. Did he tell you why he wanted you to get out? A. Possibly there's a warrant out for my arrest. OBJECTION. NOT CLEAR HIS HONOUR: Would you like to clarify that? ANDERSON Q. Did he tell you that there was a warrant out for your arrest? A. Yeah, he said there was a warrant. Q. What happened after that? A. He told me to get out, and I was getting out of the car, and yeah. Q. And what did you do? A. I was getting out of the car - trying to get out the car, but I was too intoxicated. Q. Could you just describe the process of getting out of the car from where you were sitting? A. I had to go over another set of seats and then, yeah, exit the car. Q. And how many other people were in the car with you? A. There was a couple. Q. And who were they? A. Grant, Natasha - I don't remember the other two people, but it was Reece Gomes in that car, too. Q. So you climbed over the middle set of seats? A. Yep. Q. And what happened after that? A. So then I got out of the car, they reckon I was swinging. HIS HONOUR Q. Sorry, say that again, I missed that. A. I exited the car. ANDERSON Q. How did you exit the car? A. Just like a normal person would get out of the car. Q. And what, if anything, did the police do while you were getting out of the car? A. Nothing, he just got too - thing - I was taking my time to get out of the car, and I mustn't have just - he got me out of the car. Q. Sorry, I missed that. A. He - I was taking my time to get out of the car, and yeah, he just grabbed me. Q. Did he grab you while you were in the car, or after you'd got out? A. I'm not too sure. Q. How did he grab you? A. He just put his thing like that. Q. Could you just describe, in words, how he grabbed you? A. I don't know, I was pretty intoxicated. I don't remember. Q. And what did you do, if anything, in response to being grabbed? A. I'm not too sure. Q. After you were grabbed, do you remember what happened after that? A. I was placed on the ground. Q. And what happened after you were placed on the ground? A. I was put under arrest. Q. How were you put under arrest? A. My hands behind my back. Q. And what were the police officers doing while they were placing you under arrest? A. One of them had their knees in my back." [T31.28 - T34.3] [Emphasis added]
The plaintiff readily conceded he did not have a good recollection of the events: T34.49; T37.10; T40.30; T41.35; T42.2. He does however recall that after he had been arrested, and whilst laying on the ground, he was banging his head on the ground. I infer that, in the circumstances, his actions in that regard arose out of frustration on his part, as he felt he had done nothing wrong: T35.10.
Notwithstanding the plaintiff's view that he had done nothing wrong, earlier that evening he had been involved in some form of wrongdoing in that he had been engaged in drinking alcohol whilst under age, in a declared alcohol free zone. However, that was not the matter with which the attending police officers had been concerned at the time, and he was never charged with any offences of that kind. Therefore, that matter does not form part of the consideration required by this case.
The plaintiff recalls being kept in his restrained position on the ground whilst waiting to be placed in a police vehicle, whereupon he was taken to Lismore Police Station and charged with the two already described offences. Those charges were subsequently withdrawn, which he said, led to his dislike of police because he felt he had done nothing wrong. The implication from the plaintiff's evidence was that he felt he had been mistreated by the police officers.
In cross-examination, the plaintiff conceded there was a gap of about 3 hours in his memory of the events of the evening in question: T37.49. This was most likely due to his state of intoxication. He conceded that at the time, he had probably been argumentative with passers-by: T38.10. He also conceded he had been drinking alcoholic spirits in company: T38.50 - T39.6. He recalled being asked to move on earlier in the evening, possibly by security officers requesting that he do so: T39.22.
The plaintiff did not recall having been approached by the two police officers who had introduced themselves as such: T40.30 - T41.1. He gave a "maybe" answer to the question of whether a police officer had asked him to get out of the vehicle: T41.49 - T42.5. However, he did recall, in a conflated fashion, that a police officer had taken the car keys out of the ignition of the vehicle and that shortly afterwards, he was taken down to the ground: T42.7 - T42.16.
In the events in question, the plaintiff could not recall that at the time he was alighting from the vehicle, he was, as claimed by police officers, hyperventilating and breathing heavily (T42.19), or addressing the police officers as "motherfuckers" (T42.25), and he did not recall saying, as was put to him, "Let's go. I'll fucking go you, you copper cunts": T42.43. He did not concede that he had alighted from the vehicle with his arms swinging at the police officers (T43.21), he denied throwing punches at the officers (T43.34 - T43.38), and he denied that at the time the officers grabbed his arms, they were simply trying to restrain him from punching them: T43.30 - T43.50; T44.11. The plaintiff acknowledged that after he had been taken down to the ground, his cousin, who was also later arrested, had hit a police officer in the head: T44.13 - T45.5.
The plaintiff acknowledged that when he was down on the footpath, he had been informed that he had been arrested for assaulting police and resisting arrest: T45.9 - T45.18. He agreed that at that time, he had tried banging his head on the ground whilst face down: T45.20 - T45.25. It was put to the plaintiff, and he denied, that whilst he was on the ground and already handcuffed, with at least one knee of a police officer in his back, he had been continually using the expression: "Motherfucker. I'll kill you, motherfucker. Kill me motherfucker": T45.30 - T45.34; T46.4 - T46.7. The YouTube footage suggests otherwise. He later said that he did not recall using the expression "Motherfucker. I'll kill you motherfucker. Kill me, motherfucker": T45.30 - T46.7. He said all he could recall in those events was that his hands were behind his back, and that a police officer had his knee in his back, and that he had been "pretty intoxicated": T46.6 - T46.40.
It was put to the plaintiff that when a police officer was speaking to him, whilst he was still in the vehicle, he had said: "Let's go. I'll fucking go you, you copper cunts", but he could not recall saying this: T42.47 - T43.13.
Whilst the plaintiff candidly conceded he had no memory of the events whilst he was in his cousin's vehicle, he nevertheless believed that he had exited the vehicle in a normal manner, and he denied that he did so with his arms swinging at the police officers: T43.11 - T43.21. He denied trying to punch the police officers: T43.46. He was aware that another member of the group who was present had punched a police officer in the head: T44.48. I infer from the context, and from the sequence in which the events occurred, that this occurred after the plaintiff had already been arrested.
When the plaintiff completed giving his evidence, he left me with the impression that he was endeavouring to be a truthful witness to the best of his limited recollection. He made appropriate concessions when cross-examined. He properly and fairly conceded that his recollection was limited. He had ample opportunity to embellish his evidence in order to improve his case if he were so minded, particularly in light of his acknowledged dislike of the police, yet he did not do so. I am satisfied that he gave his evidence honestly, without guile, and to the best of his recollection, which was necessarily limited due to his intoxication at the time. That qualification obviously has implications for the reliability of his evidence, which indicates that other evidence, unaffected by intoxication, may be more reliable.

Mr Cotroneo

At the time of the events Mr Cotroneo was employed as a security officer. His contracted duties were to patrol the streets of Lismore by foot, and to attend to locations wherever he was directed by the remote operators of Council security cameras maintaining surveillance of street events. Where he considered it necessary to do so, he was empowered to ask persons in the CBD area to move on: T49.48. He had seen the plaintiff drinking alcohol in the CBD area, "carrying on a bit like a larrikin" and "yahooing with his mates", and being argumentative when challenged over his use of alcohol at that location: T52.7 - T52.33.
Mr Cotroneo could not recall the detail of the plaintiff's yahooing activities: T53.42. Mr Cotroneo had occasion to go to see the plaintiff's group again a couple of hours later in the evening: T54.8 - T54.22. At that time, the remote security camera operator informed Mr Cotroneo that there was a nearby police presence, and that they would deal with the group: T55.12. Mr Cotroneo related his subsequent conversation with Senior Constable Quinn when the police arrived at the scene: "Q. Can you tell the Court and tell his Honour what you said and what he said in reply? A. I told him that I had some Aboriginal males around in Keen Street who have been drinking and arguing with people in the streets and we're not getting anywhere with them, like they won't move on for us or they wouldn't hand over ID for us. One did but he left town after the first incident sort of thing, and the other three just wouldn't comply with us and we can't do - our boundaries are restricted so we can't do anything else than - any more than what we did, so I went and asked him if he could do something and he said yeah, he'll go around and talk to them." [T55.39 - T55.48]
At that time, the effect of the conversation between Mr Cotroneo and Senior Constable Quinn was that Senior Constable Quinn "would go down and deal with it", meaning that the police officers then present would deal with the street behaviour of the group of which the plaintiff was a member: T58.5 - T58.44.
Mr Cotroneo then left the scene for a short time to attend to another task associated with his job. He then returned to the scene, having heard screaming, and when he arrived, he saw the plaintiff, and another male person, both of whom were on the ground, with police officers having taken a hold of the plaintiff: T55.30 - T56.26. He then noted the plaintiff and the other man on the ground being restrained by Senior Constables Quinn and Chapman, and he said he saw the plaintiff thrashing about trying to get up and being very upset and argumentative: T59.5 - T59.31. Mr Cotroneo can be seen to have been present in the various CCTV and YouTube images of the events at the scene.
The factual evidence given by Mr Cotroneo was not controversial and no adverse credit issues arose from his evidence.

Senior Constable Chapman

At the relevant time, Senior Constable Chapman was a police officer attached to the Richmond Target Action Group, based in Lismore. That unit was staffed with plain clothes officers who were principally engaged in targeting street level crimes.
At the time Senior Constable Chapman had been a police officer for 5 years, and had been involved in frontline policing for 2 years. At the time he recognised that the plaintiff was an Aboriginal person, and as such, one of the LEPRA criteria for being considered to be a vulnerable person applied to the plaintiff: T76.37.
Senior Constable Chapman said of his prior good relationship with the plaintiff, and the group with which he was associated, that: "They [intending to refer to the plaintiff] always used to get along with us pretty well. We used to talk to them. We'd see them regularly. Most of them knew us by first name": T92.15 - T92.24. It was in that context that the following question was led from him in re-examination: "Q. Was it your intention that that type of relationship where you could have a chat with him would occur that night as well? (sic) A. Yes." [T92.26 - T92.28]
It is difficult to understand why on the night in question, Senior Constable Chapman had been insistent that the chat he wanted to have with the plaintiff had to occur with the plaintiff outside of the vehicle. He had no sound basis upon which to ask the plaintiff to get out of the vehicle whilst intoxicated.
Senior Constable Chapman said he had an independent recollection of the underlying facts of the events in question, but he had also refreshed his memory from a statement that he had made on 30 May 2013: T61.35 - T61.44; Exhibit "3". He had also seen the YouTube footage referred to earlier, and he had also seen the CCTV footage of the incident, which had also refreshed his memory to a degree.
Senior Constable Chapman recalled that at about 12:50am on the morning in question, he had been called by a Council security officer because of a street disturbance involving some Aboriginal youths. He said he had arrived, along with Constable Quinn, in an unmarked police vehicle. They were both in plain clothes. His vehicle had pulled up near to where the plaintiff and his companions were located (T63.43), and whilst he could not recall precisely what had been said at the time, he believed that he had identified himself as a police officer, and that he was there in connection with Aboriginal youths being intoxicated: T64.30 - T64.36. His recollection was that the youths said nothing to him in response, and that they then entered a nearby vehicle, and that an older female who was present, said something to the effect: "Bear with me. I'm taking them home now": T64.30 - T65.3.
In those events, Senior Constable Chapman said he had heard one of the youths nearby and on the street say words to the effect "See you later, Gomesie", which then led to him recalling that there was an outstanding warrant on the system for someone with the name Gomes. At that point, Constable Chapman said that he had asked Constable Quinn to stop the vehicle so he could determine whether that person was in the vehicle, because if that was so, he intended to arrest him: T65.10 - T65.30.
At that time, Constable Chapman noticed that the plaintiff was in the back seat of the vehicle and that he was making rude middle finger gestures and yelling comments the particulars of which he could not now recall: T65.40 - T66.19. He said he had recognised the plaintiff from many prior dealings: T66.11. From the prevailing circumstances, it would have been plain to Senior Constable Chapman at that time, that the plaintiff was intoxicated, and that his described behaviour was consistent with that state.
Senior Constable Chapman said he wanted to speak to the plaintiff as there had been "a warning circulated about him", about an assault: T66.24. His evidence on that topic was as follows: "Q. What, if anything, did you do or think at that point in time? A. At that point in time, there was a warning. I don't recall exactly what the warning said, but there was a warning circulated about - he needed to be spoken to about an assault. Q. Did that give you cause to do anything knowing that warning was out in respect of Trent Exton? A. Yeah. I just wanted to speak to him about that. Q. Did you say anything to Mr Exton? A. I opened the door up of the vehicle and I said, "Trent, can you jump out for me?" Q. What was Mr Exton's response? A. He pulled his hood right over his head and crossed his arms like this and pretended I wasn't there. Q. Did you say anything further to Mr Exton? A. Words to the effect of, "Trent, can you get out of the car? I don't want to have to drag you out. Can you get out?" Q. When you said this to Mr Exton, what tone did you adopt? A. Similar to-- Q. If you were to say it now to his Honour how you said it on the night, how did you say it? A. Along the lines of, "Trent, can you get out of the car. I don't want to have to drag you out. Let's go." Q. I will take you back before we go any further. You have talked about Trent being wanted in respect of an assault. There wasn't a warrant out for his arrest though in respect of that assault, was there? A. No. I don't believe so, no." [T66.21 - T67.3] [Emphasis added]
Senior Constable Chapman stated that he wanted to speak to the plaintiff about that other matter because, at that time, the plaintiff had not yet been spoken to about that allegation, which at that time, was not the subject of proof: T69.17 - T69.26. At that time, the plaintiff was a person of interest: Exhibit "2". The utility of Senior Constable Chapman formally speaking to the plaintiff about that matter whilst he was in an intoxicated state was doubtful, if not questionable, to say the least.
Senior Constable Chapman disagreed with the proposition that at that time he was "directing" the plaintiff to get out of the vehicle, and instead, he asserted that he "was asking him to get out": T80.37 - T80.42. That is a question which stands to be resolved in connection with the consideration of Issue 1.
After the conversation cited above took place, in which Senior Constable Chapman asked the plaintiff to get out of the vehicle, Senior Constable Chapman described the plaintiff's responses as follows: "Q. Moving back to upon seeing Mr Exton in the car, you have given some evidence about what you said to him. What was his response to that? A. He began to hyperventilate as though he was psyching himself up. Q. When you say he began to hyperventilate, can you describe the physical presentation of him? A. It was like he was - because he was hiding himself and then when I told him to get out of the car, he - it was just like he snapped and he became aggressive instantly. Q. Did he say anything to you between starting to hyperventilate and exiting the car? A. Words to the effect of, "Let's go, mother-fuckers. Let's go." Q. Was anyone else in the vehicle saying anything during this period of time? A. There may have been. I can't recall. Q. So upon Mr Exton starting to hyperventilate, as you said, and saying those words, what was his physical actin, if anything, after that? A. He jumped over the back seat of the car into - because it was a Tarago van, so he jumped over the back seat into where the door was open and he's lunged out towards myself and Senior Constable Quinn was on the left of me - yeah, on the left of me. Q. When he came out of the vehicle, did he proceed out calmly like a normal person? A. Definitely not. Q. How did he proceed out? A. Like he wanted to assault us. Q. What was he doing to make you feel that he wanted to assault you? A. He was just aggressive, almost like he wasn't making sense because he was so angry. He was-- Q. Was he doing anything with his body or was it just a temperament that you noted? A. He had his - I can't recall exactly if his fists were clenched but he lunged at us to the point where myself and Brian, Senior Constable Quinn, held on to him to prevent being assaulted. Q. When you say to prevent being assaulted-- A. Yes. Q. --what was he doing to make you think that he was going to assault you? A. From the comments he made, by the breathing, the hyperventilating, like psyching himself up, yelling, like - I can't recall exactly what happened. It was in an instant. Q. How many seconds? A. From Mr Exton saying, "Let's go, mother-fuckers. Let's go," to us holding him, two seconds at the most and then he was - as we were holding on to him he wasn't - he was continually trying to get at us, like-- Q. What do you mean "he was trying to get at us"? What was he physically doing to give you the feeling that he was "trying to get at"? A. Putting his whole body weight - trying to get out of the car, like out of the doorway. I was using all my strength on one side. Senior Constable Quinn, I'm not sure how much strength he was using but he was holding him as well and I've had to tell him at least three times to relax. Q. Do you genuinely say that you felt your safety was at risk-- A. Yes. Q. --at that time? A. Yes. Q. Upon that happening did Mr Exton actually get out of the vehicle? Did he land on the street next to the vehicle at all? A. When we were holding on to him I believe, to the best of my knowledge, he was just outside the door, like sort of against the car but standing on the gutter there because it was parked in the gutter. Q. What happened next? A. I told him to relax three times - I was in a little bit of disbelief at the time - and he wouldn't stop, he was still going and I-- Q. What was he doing to make you (1) be in disbelief and (2) to make you say he was still going? A. Just his aggressive actions and they just weren't stopping. He was - like we were holding him and we were trying to calm him down, telling him to relax and he was still - nothing was getting through. He just - he wanted me. He wanted to get to me, in my opinion. That's what I believe, and yeah, the next action I took was to prevent being assaulted. Q. And what did you? A. I conducted a leg sweep. Q. What was the outcome? Well, if you can just describe a leg sweep. A. A leg sweep is where you put - it's out of the police handbook, we get it taught at the academy - you put your leg behind their leg, in a way, and you take the other - you take hold of the shoulder and you pull them down to the ground, using your body weight. Q. And that's what you did to Mr Exton on this occasion? A. Yes." [T70.23 - T72.18] [Emphasis added]
The question which arises at this point is: at what stage did the police officers first take hold of the plaintiff, and whether at that time, the plaintiff was still in the vehicle. In my assessment of the evidence of Senior Constable Chapman, as highlighted in the above extracts, he was uncertain as to precisely what stage of the plaintiff's exit the police officers started holding onto him.
In those events, Senior Constable Chapman said that after he had carried out the leg sweep manoeuvre on the plaintiff, the plaintiff and Senior Constable Quinn had fallen over, and Senior Constable Chapman said that he had been struck on the back of the head by Mr Gomes. At that point, Senior Constable Chapman described how Senior Constable Quinn had then deployed OC spray towards Mr Gomes. As a result of that deployment, others in the vehicle were affected by secondary contamination from that spray. The ensuing events were described by Senior Constable Chapman as follows: "Q. In terms of after that happened, did anything else occur by other people in the area when you were in that position, to your recollection? A. At some point, Senior Constable Quinn deployed OC Spray, which hit Mr Gomes, and I think there was secondary contamination because the other parties in the car got out, were yelling. I secured Mr Exton on the ground. Senior Constable Quinn had Mr Gomes on the ground, and then we had the car yelling and carrying on at us, and then people coming over started filming, and-- Q. Now, I'll just stop you there. At some point, did you inform the plaintiff that he was under arrest? A. I did. Q. When was that? A. I don't recall exactly. Maybe a minute or two, once he was on the ground. Once I, sort of, calmed and got my wits together. Yeah. Q. Was he restrained, at that time, with handcuffs? A. I can't recall if he had handcuffs on or not. Q. Do you recall whether he was handcuffed at all? A. I can't recall. Q. At any time in the night, to your recollection, was Mr Exton handcuffed behind his back? A. I can't recall. I imagine he would have been, but I can't recall if I did or not. Q. During the period that - well, you've restrained Mr Exton is your evidence, did you remain in the vicinity right next to that Toyota Torago? A. Yes, it was parked 2 metres in front of us. Q. And in terms of restraint of Mr Exton, at some point did it settle down, in terms of the amount of pressure that was having to be applied? A. From myself? Q. From yourself. A. Yeah, I didn't have much pressure on him. Once Mr Exton was on the ground, he was screaming about how he was going to kill us and all, let him up, "Let me up, let me up, I'm going to kill you guys," and then - or words to that effect. And I was looking at Senior Constable Quinn; I said, "I'm not really applying any pressure. Like, he's not fighting to get up." Q. At that point, what parts of your body, if any, were applying pressure to Mr Exton's body, and where? A. So we get shown down at the academy, there's a technique were you have one knee - so I'm in a crouch position, so my weight's shifted between my feet and my knees on either side of the spine. So not on the spine, but in the fleshy part of the back, and his arm would be in a position - up like this, so it's - so my - so one knee's up here, and the other one's down here, but his arm is in between my legs." [T72.36 - T73.35]
At that point, whilst the plaintiff was still being restrained on the ground, Senior Constable Chapman said that his left knee was up on the upper left area of the plaintiff's back, but he said he was barely putting weight on him but in that time, he said the plaintiff was screaming "quite aggressively" throughout: T74.1 to T74.26.
Senior Constable Chapman said the plaintiff was screaming throughout those events, but he also stated that the plaintiff was not offering much physical aggression, and then he added that there was no resistance at all: T74.34. At that time he said that the plaintiff was engaged in the process of attempting to hit his head on the concrete pavement: T74.40. When other police officers arrived with an appropriately caged vehicle, he was then taken by police vehicle to Lismore Police Station: T75.2.
Senior Constable Chapman later obtained some CCTV footage from Lismore City Council street cameras, as well as some YouTube footage taken from a mobile telephone camera by a local person known as "Big Rob": T75.17 - T75.20.
Senior Constable Chapman acknowledged that when he had spoken to the woman driver of the vehicle in question, who had said she was taking the group of young people including the plaintiff home, and when the group got into the Tarago, he considered that his initial mission in attending at the scene, had been completed: T77.17.
Senior Constable Chapman agreed that when he looked into the vehicle, he did not see the person named Gomes whom he had been seeking to locate: T77.43. He said when he saw the plaintiff in the vehicle, it was in the following circumstances: "Q. You saw Trent Exton and your evidence today was that you knew that he wanted for questioning in relation to an assault. That's right? A. I knew there was a warrant on the system about something to do with an assault. I didn't know the ins and outs of it. Q. You knew there was a warning on the system so you wanted to ask him some questions in relation to that warning. Is that right? A. Yes. Q. You wanted to ask him for information about an assault that was listed in the warning system. Is that right? A. At that point I didn't know the details of the assault or what the warrant was for, so more or less it could be a radio check to find out - "Listen, there's a warning on there. Can you go through the details and explain what he's wanted for or why he's listed as wanted?" Q. But you didn't do any of that, did you? A. No. I didn't have a chance. Q. You didn't have a chance? A. No. Q. Well, you did, didn't you? You could have done it as soon as you saw Trent in the car. Couldn't you have gone either on - did you have a portable phone on you? A. No. Q. You were working with Senior Constable Quinn in a vehicle though. A. Yes. Q. You could have gone to the vehicle and made those checks. Is that right? A. We could have, yes. Q. Of course on your own evidence the driver of the car had been told not to leave by Senior Constable Quinn. That's right, isn't it? A. Yes. Q. So you could have gone back and conducted the check at your vehicle whilst Senior Constable Quinn ensured that the car didn't leave. That's right, isn't it? A. Yes. Q. But that's not what you did, is it? A. No. Q. What you did was say to Mr Exton, "Trent, can you jump out of the car for me?" A. Words to that effect, yes. Q. Then your evidence was that he pulled his hood down over his eyes and folded his arms. That's right, isn't it? A. Yes. Q. You understood that to be him refusing to get out of the vehicle after you had asked him. Is that right? A. I guess so, yes. Q. You must have because the next thing you said was, on your evidence, words to the effect of, "Trent, get out of the car. I don't want to have to drag you out." A. Yes." [T78.16 - T79.26]
Senior Constable Chapman agreed that if the plaintiff had not got out of the vehicle, he would have carried out the required checks about the plaintiff on the police radio equipment that was available to him nearby: T79.43; T80.14 - T80.21. He claimed that his statement which he had addressed to the plaintiff, to the effect he would drag him out of the vehicle, was in the nature of a bluff to get the plaintiff to come out of the vehicle to speak to the police: T80.30.
In my assessment, Senior Constable Chapman obfuscated when answering questions as to whether the driver of the vehicle from which the plaintiff had alighted was free to drive away notwithstanding the request to remain stationary. In that regard, his evidence was as follows: "Q. Just to be clear, at the time that you asked Trent to get out of the vehicle the driver of the car was not free to drive away. That's right, isn't it? A. I'm not sure what Senior Constable Quinn said to the driver. I don't know if he directed her. I said to Senior Constable Quinn, "Can you get her to hold up so we can do these checks - while I see if Mr Gomes is there?" Q. Did you observe Senior Constable Quinn speak to the driver of the car? A. Yes. Q. Was it your understanding at that time that the driver of the car was not free to leave? A. I think if she left there was no - we had no power to hold her. We were just trying to observe if there was someone with a warrant in the car." [T80.44 - T81.6]
In the described circumstances, it is difficult to discern a legitimate basis for requiring the plaintiff to get out of the vehicle for the purpose identified in the cited evidence of Senior Constable Chapman.
Senior Constable Chapman had opened the door of the Tarago, and he acknowledged that at the time he had no power to do so: T85.35 - T85.39. Senior Constable Chapman also acknowledged that in the circumstances that prevailed, he had no power to direct someone to exit a vehicle for the purpose of answering questions about a criminal investigation: T85.5 - T85.14. I infer from his rank of Constable at the time, that he had previously undergone the requisite training on police powers and procedures, including powers of arrest as conferred and limited by statute, and that he also knew of that limit to his powers of arrest on the night in question.
Senior Constable Chapman's evidence of his perception that the plaintiff had exited the vehicle in a lunging manner in "an attempt to assault" him and the other police officer present, was challenged as to its factual basis. Senior Constable Chapman rejected that challenge: T85.40 - T85.46. Senior Constable Chapman also denied that the plaintiff had been grabbed by both himself and Senior Constable Quinn as he was getting out of the vehicle, and that the plaintiff only became aggressive after he had been touched by police: T85.48 - T86.5.
I find it difficult to accept that evidence where the described conduct was said to have occurred as the plaintiff came "flying" out of the vehicle. The evidence suggests the police made physical contact with the plaintiff, at least by touching him on the chest, whilst he was still in the vehicle. Notwithstanding Senior Constable Chapman's denial that the plaintiff was grabbed as he was getting out of the vehicle, paragraph 10 of his contemporaneous statement recorded the version that: "As EXTON exited the vehicle, Senior Constable QUINN and I took hold of him requesting him to 'Relax', on at least three occasions". That evidence, which Senior Constable Chapman repeated in his oral evidence at T82.20 - T82.23, also suggests the plaintiff was grabbed by the police officers before he completed his exit from the vehicle.
Senior Constable Chapman also rejected the proposition that the plaintiff had only used words to the effect "Let's go, motherfuckers", and had flailed his arms about to attempt to have the police hold of him released after he had already been grabbled by the police officers: T86.3 - T86.17.
I consider that Senior Constable Chapman was not being entirely accurate in his evidence, and that he would not make due concessions when he said he would not accept the proposition that it would have been difficult for the plaintiff to climb over the seats of the vehicle from where he had been seated, and that the plaintiff had "come flying out … quickly" as he had related in his evidence: T86.15 - T86.40. I do not accept his evidence in that regard. I base my rejection of that evidence on the plaintiff's indisputable state of intoxication, his indisputable state of inco-ordination, his described flailing movements, and the presence of the physical obstacles within the vehicle, over which he had to climb in order to exit the vehicle.
Senior Constable Chapman agreed that as the plaintiff exited the vehicle, he and Constable Quinn were each holding one of the plaintiff's arms and he said they did this "to prevent from being assaulted when he got out of the car": T87.33 - T87.42. Accordingly, there was an internal tension within Senior Constable Chapman's evidence on the issue of when the police officers took hold of the plaintiff, when he added that this occurred when the plaintiff got out of the car, and not beforehand: T87.46 - T87.50. He said they grabbed the plaintiff immediately when he got out of the vehicle: T88.3. He later modified that evidence to assert, in a vague manner, that the plaintiff was "Sort of, half-out, half-in, in the doorway", at which time the two officers each had hold of one of the plaintiff's arms as he exited the doorway: T88.6 - T88.27.
Senior Constable Chapman claimed the subsequent leg sweep manoeuvre which he had carried out, and which had the effect of placing the plaintiff on the ground, was necessary as the attempts made to calm the plaintiff were unsuccessful, and they were unable to restrain him without taking him down to the ground: T88.33 - T88.46.
Senior Constable Chapman said that when the plaintiff was on the ground, he had one knee (his left knee) on the top of the plaintiff's left side, at the top of the left shoulder, and his right knee was at the base of the plaintiff's back on the right side: T89.10 - T89.20.
Senior Constable Chapman conceded in cross-examination that he had two knees on the plaintiff's back (T89.27) in accordance with the technique that was taught to him (T73.30 - T74.2), and that he had an arm up his back: T89.30; T89.12 - T89.31. There is a portion of the YouTube footage that is consistent with that evidence. In those events, Senior Constable Chapman denied that he used more force than was needed to restrain the plaintiff: T89.35.
Senior Constable Chapman ultimately charged the plaintiff with offensive behaviour and assaulting police officers in the execution of duty: T81.16. Those charges did not proceed and were ultimately withdrawn: T89.46.
In light of my assessment of Senior Constable Chapman's evidence as identified at paragraph [76] above, and in light of the internal tensions in his evidence, as cited at paragraph [77] above, the varying evidence he gave concerning his manner of restraint of the plaintiff, as cited at paragraph [61] above, and the conflicting evidence he gave as to when it was, during the course of his exit from the vehicle, that the plaintiff's arms were grabbed, I had reservations about accepting the accuracy and the reliability of Senior Constable Chapman's evidence on those key matters of fact in dispute.

Senior Constable Quinn

Senior Constable Quinn was on duty on the night in question, in the manner and in the circumstances already described by Senior Constable Chapman as related in the preceding paragraphs. His evidence in which he recounted the events was heavily reliant on a statement he had made about the subject incident: T94 - T95.7.
Senior Constable Quinn's oral evidence given on 21 February 2017 concerning the sequence of the plaintiff's behaviour was at variance with a statement made by Senior Constable Chapman in May 2013 in which he described the actions of himself and Senior Constable Quinn, and said (at T99.34) that he did not grab the plaintiff, but just put his hand on his chest, and had only grabbed him later.
Senior Constable Quinn said he had approached the vehicle in which the plaintiff had been seated, and after identifying himself to the driver as a police officer, he related the ensuing conversation as follows: "Q. Do you recall what was actually said to the youths and any response that you received from that? A. I just told them we'd had a complaint about alcohol being consumed and I could see alcohol with them. I don't think I got a response back. It wasn't much longer after that that they started getting into a car that was parked right next to us. Q. Was that a Toyota Tarago? A. I think it was. It was a van, yeah. Q. A van. Okay. When the youths or the group of people started to get into the vehicle - going back a step. Were you aware or not Lismore was an alcohol free zone, the CBD? A. The CBD is. Q. In 2013? A. I'd only be assuming that it was. As far as I can remember, as long as I can remember the CBD was always an alcohol-free zone. Q. Did you take any steps, to your memory, to dispose of the alcohol that was in the possession of the youths on the street? A. I don't recall so, no. I think they got into the car quicker than I could do that. Q. Now, when the youths got into the car, where did you position yourself? A. Initially, I was on the footpath, and then, from my recollection, is that I went over to the driver and had a little chat with her. Q. And, in terms of the nature of that conversation, was it friendly, was it aggressive, was it questioning? A. No, it was friendly. She was fine with me, we - I had a quick chat with her and she was really good. Q. Is there a reason that you placed yourself next to the driver, as opposed to remaining on the footpath at all? A. No, they were getting into the car, I'm pretty sure she told me that they were going, and that's - that was the best outcome. Q. And when you say "best outcome", why was that the best outcome? A. If there's a group of people drinking in the street, and they're going to go home, they'll go out of the CBD, that's great. Q. When you were standing next to the driver, was anything said to you by your offsider, Constable Chapman? A. Initially, no, I was just talking to her, and then he did ask for me to ask her to wait a second. Q. And what did you say - well, did you ask her to wait a second? What words did you use to her? A. I can't recall them exactly, without the use of my statement, but it was just a friendly, "Do you mind holding up a second?" Q. What was her response to that? A. She was fine, yep. Q. Did you remove the keys from, or turn her ignition off? A. No, I don't recall doing that. Q. Is it something that you would usually do in that situation? A. I don't recall doing that, or having to do that, at all. Q. When you say you don't recall doing that, there's two ways that can be interpreted; either you've got no memory of doing it, or it's something you didn't do, by reference of your recollection. Where does it-- A. I don't recall doing it. I know I've been asked if I did do that and I don't recall doing that, I'm sorry." [T96.46 - T98.11]
Senior Constable Quinn said that after speaking with the driver of the vehicle in the terms that he had described, he heard the plaintiff yelling from within the vehicle, and he went around to join Senior Constable Chapman on the passenger's side, where he said the following conversation took place: "Q. Now, upon you saying, "Can you just hold up for a minute," can you recall what happened next, in terms of what you saw and observed? A. Yep. I could hear Senior Constable Chapman talking to someone from the outside of the car to someone inside the car, so I walked around to the footpath and joined up with him. And that's where - Mr Exton was in the vehicle, and he'd started becoming verbally - well verbally yelling. Q. What was he yelling? A. He eventually started yelling, "Let me out, or I'll have you." He used the word "cunt", things like that. Q. And who was that directed at? A. I'm assuming it was Senior Constable Chapman and I. Q. And where was Mr Exton when he was saying this? A. In the back row of seats of the vehicle. Q. And where were you positioned at that point in time? A. More closer to the front of the vehicle, so further away from him than Senior Constable Chapman. Q. Were you able to see what Mr Exton did while he was in the vehicle? A. He began, then, climbing over the rows of seats, towards the sliding door of the vehicle. Q. And how was his physical presentation when he was doing that? A. He was very animated; his arms were - he was basically trying to throw himself over the seats instead of however else you would get through. There were other people in the car that weren't moving or anything like that, so he had to jump over the seats to get out, and he was wailing his arms around and-- Q. Were the other people in the car saying anything to him? A. Yeah, they were telling him to calm down and not to do it. Q. And when you say he was flailing his arms about, can you just describe what you mean by that? A. It wasn't up because it'd hit the roof, but he trying to go through - climb over the car - like, it more animated than speed. I don't know if he was trying to put on a show or something like that, but it was just - it was more, just seeing more of a show than-- Q. Did Mr Exton actually get out of the vehicle? A. Eventually, yep. Q. Did he step out in a regular, normal way? A. No, he was - he appeared aggressive, agitated, probably intoxicated. He wasn't happy. Q. Well, where you when he was getting out of the vehicle - actually exiting out of the vehicle? A. Still in the same spot, roughly around the passenger front door. Q. And, physically, how was he presenting? A. Well, he was aggressive? Q. What do you mean by aggressive? What was happening to give you cause to say he was aggressive? A. He was still - he puffs his arms up, flapping them by his side, sort of making grunting style - just wasn't listening. Q. When you say he wasn't listening, what were you or your offsider saying? A. Yeah. I put my arm on his - my hand on his chest or arm and said, "Just calm down and relax," because we were only there talking to him. Q. Did you grab him at all? A. I didn't grab him. I put my hand on his chest or his arm and just said, "Just relax." Q. At some point did you grab him by the arm or hold one of his arms? A. A little bit later on we did, yeah. Q. When was that? A. When he threw his arms around in an offensive manner which I believed he was either going to hit myself or Senior Constable Chapman. Q. How did you restrain his arm at that point in time? A. I just would've held on to his arm and then somehow, through the force of Senior Constable Chapman and I, we've gone to the ground. Q. You don't know what caused you to fall to the ground? A. No." [T98.18 - T99.49] [Emphasis added]
Putting aside any variations of detail between the evidence of Senior Constable Quinn and Senior Constable Chapman concerning the form and content of the words attributed to the plaintiff, and the sequence of the events which transpired, questions emerge from Senior Constable Quinn's evidence as to precisely when the plaintiffs' arms had been grabbed by these two police officers. In the moments before the plaintiff was grabbed, Senior Constable Quinn had placed a hand on either the plaintiff's chest or on his arm: T99.21.
Senior Constable Quinn described how, after the plaintiff had been taken down to the ground, he was "resisting in a sense" and, that some others then got out of the vehicle, and at that stage he had felt a punch to the back of his head: T100.1 - T100.6. It was not suggested that blow had come from the plaintiff.
At that point, against a background of screaming occurring, Senior Constable Quinn said that he was in fear of his own safety, and he said he was in fear of being overpowered. At that point, he released some OC spray in order to gain control over Mr Gomes: T100.27 - T100.48. It was not suggested the plaintiff's behaviour was the source of Senior Constable Quinn's fear concerning Mr Gomes, or that the plaintiff's behaviour was the cause for his need to deploy the OC spray.
At that point in the course of their hold of the plaintiff, Senior Constable Quinn's role in restraining the plaintiff ceased, and Senior Constable Chapman then continued to maintain restraint of the plaintiff. This was whilst the plaintiff was being knelt upon by Senior Constable Chapman, during which time the plaintiff was seen to be wriggling about, and deliberately hitting his forehead on the pavement: T100.45 - T101.17.
Senior Constable Quinn was cross-examined on the content of a July 2013 statement which he had prepared in relation to the incident. That statement was not tendered into evidence.
Senior Constable Quinn agreed that once the group of youths had got into the Tarago vehicle, then from his perspective, "it was effectively mission accomplished" in relation to clearing the street, as the driver of the vehicle was about to take the group of youths home, and she was considered by the attending police officers to be in an appropriate state to do so: T105.43 - T106.47; T107.25.
Senior Constable Quinn said he had not said or done anything to make it clear to the driver of the vehicle that she, and by inference, those in her vehicle, were free to leave at any time if they wished to do so, despite being asked by police officers to stay: T107.47. He confirmed that at the time, he considered that he had no power to prevent her, or by inference, them, from leaving the scene: T107.50.
Senior Constable Quinn conceded it was possible that he had taken the keys of the vehicle out of the ignition as was asserted by the plaintiff, or that he might have used the key to turn off the ignition: T108.15 - T108.47. However, he said he doubted that he had done so: T108.15 - T108.23. My impression of his evidence was that he was uncertain about the detail of any such occurrences.
Senior Constable Quinn confirmed that the plaintiff had been seen to be located in the back row of the passenger seats in the vehicle: T109.47. He could not remember the form of the actual words used by Senior Constable Chapman to encourage the plaintiff to get out of the vehicle: T110.1. He confirmed that he saw the plaintiff climb over the seats after Senior Constable Chapman had spoken to him, and the impression from his evidence was that this sequence had occurred quite quickly: T110.9 - T110.26.
In Senior Constable Quinn's answers to questions asked of him in cross-examination, he denied that he had exaggerated his evidence to the effect that the plaintiff was as animated or as aggressive as he had earlier suggested at the time the plaintiff was climbing over the seats in the vehicle: T110.35 - T110.42. In support of that denial, he claimed that others in the vehicle had been telling the plaintiff to just relax and to stay in the vehicle: T111.2. He described the plaintiff's movements at that time as involving the flailing of his arms, and him moving slowly, consistent with a state of intoxication, and as if he was "putting on a show" for those present: T111.1 - T111.21; T111.40. When asked what he meant by that expression, Senior Constable Quinn explained his interpretation of the events, as follows: "Q. I'm not quite sure what you mean by "putting on a show"? A. All the other guys in the car because of the remarks he was saying, "I'll have youse before it," and wanting to bash us or whatever his words were, just showing off in front of those guys I think. That's my interpretation of the way he was acting." [T111.44 - T111.48]
In my view, Senior Constable Quinn's interpretation as cited above, was coloured by the drama of the ensuing events, and by his own reaction to those events.
Senior Constable Quinn confirmed that he had no fear for his own safety whilst the plaintiff was still in the vehicle (T112.6), but that he did have such a fear once the plaintiff was out of the vehicle: T112.2. At that point, Senior Constable Quinn described the ensuing events as follows: "Q. Could you tell us what happened next? A. He got out of the car and that's where he was still - is that what you're after? He got out of the car and he was still agitated, so that's when I put my hand on his chest or his arm and said, "Just relax." Q. Just to be clear, he didn't come out of the car throwing punches at you, did he? A. He was still moving around really erratic. Q. To answer my question though, he wasn't throwing punches at you when he came out of the car, was he? A. Throwing punches at us? No. Q. You then put your arm, I think you said, on his chest or his arm. That's right, isn't it? HIS HONOUR: Hand, he said. ANDERSON: Sorry. Q. You put your hand on his chest or his arm, I think was your evidence yesterday. A. Yeah. Q. And Constable Chapman did the same thing. Is that right? A. Yeah - I'm led to believe, yeah. Q. When you say you're led to believe, do you remember him-- A. I don't, no. I just remember what I did. Q. You told Mr Exton, I think your evidence was, to relax. Is that right? A. Yeah. Q. It was after you had touched his chest or arm that he then started swinging his arms around at you. Is that right? A. That's correct. Q. So there was no contact between Mr Exton and you before you put your hand on Mr Exton. That's right, isn't it? A. That's correct. HIS HONOUR Q. I take it from that description that he was not at risk of falling over before you put your hand on his chest. A. I didn't see that he would have. He was still pretty close to the side of his (sic) car." [T112.24 - T113.20]
Senior Constable Quinn agreed that at various times, he had previously been exposed to the kind of language he had attributed to the plaintiff: T113.36. He went on to describe the circumstances of the plaintiff alighting from the vehicle, as follows: "Q. Was there anything specific about Mr Exton's manner of delivery of those words as you remember them that caused you to be in fear for your safety? A. Probably not in the way that he said it. Like you said, I've heard that before but in the way he was carrying on at the same time in conjunction with what he said, there was a high possibility that he was going to do something as to what he just said. He was going to carry out something. He didn't come out casually. He was enraged. He was pretty cranky. ANDERSON Q. Am I right that after Mr Exton had exited the vehicle, he was then standing on the kerb very near the vehicle. Is that right? A. Yeah. He wasn't far away from it. Q. Sorry. I missed that. A. Yeah. He wasn't far away from it. … Q. At that time, what was he doing with his hands and arms, if anything? A. Just going back like that. Q. Can you describe that? A. Back and forth. He clenched his fists and he was swinging - sort of not swinging them at us but he just-- Q. You're adopting a position where your fists are clenched; your elbows are bent at 90 degrees and held reasonably close to the body, making a slight backward and forward movement over the course of about six inches. A. Yeah." [T113.38 - T114.30] [Emphasis added]
Senior Constable Quinn related his recollection of the prevailing circumstances and the plaintiff's physical location at the time he said he had placed his hand on the plaintiff's chest. His recollection of the plaintiff's behaviour at that time, and the ensuing leg sweep manoeuvre which had been performed by Senior Constable Chapman, as follows: "Q. It was whilst he was doing that that you placed your hand on his chest or arm. That's right, isn't it? A. Yeah. Q. He was standing on the kerb at this time. That's right? A. He was on the footpath of the kerb, yeah. Q. Both yourself and Constable Chapman were standing in front of him. That's right, isn't it? A. On an angle in front of him, yeah. Q. You were reasonably straight-on to him though. Is that right? A. Pretty close, yeah, because I was within arm's reach. Q. I will ask you this again. Was Constable Chapman also holding on to the plaintiff at this time? A. I don't know. I'm assuming he was. Q. So both you and Constable Chapman were in contact with the plaintiff before he started throwing punches at you. That's right? A. That's correct, with an open hand. Q. He started throwing punches with an open hand. A. No. I had an open hand touching him. Q. After Mr Exton on your evidence started throwing punches at you, the three of you fell to the ground. I think that was your evidence yesterday. A. Yeah. Q. But it wasn't physics that took the three of you to ground, was it? A. Sorry. Can you explain that a little bit more then? … Q. You didn't fall over by accident. Constable Chapman performed a leg sweep on the plaintiff. A. Yeah. I think that's what caused me to fall over. Q. Each of you had hold of Mr Exton. That's right? A. I had a hold of him. I know that, yeah. Q. I think you said you were reasonably certain that Constable Chapman did also. That's right? A. Yeah. Q. How tall are you? A. 189 centimetres. Q. How much do you weigh? A. Back then I was probably 110 kilos. Q. A fairly big man, it is fair to say. A. Heavy. Q. Constable Chapman to your recollection is a fairly strong fellow as well. Is that right? A. Yes. He is very strong. Q. Mr Exton at that time - did it sound like he was about 50 kilograms? A. Yeah. He was probably the same as he is now, yeah. Q. Was he possibly smaller than he is now? A. Yes, sorry - in four years, definitely, yeah. Q. Constable Chapman didn't need to perform the leg sweep in order for the two of you to restrain him, did he? A. That's his choice that he used, not mine. Q. But you were there. What's your view? A. I didn't perform a leg sweep. I was holding on to him and within seconds it was done. A leg sweep is an approved technique that we can conduct to subdue someone if they're hitting us. Q. Any manoeuvre you perform needs to be reasonably necessary in the circumstances. You know that, don't you? A. Yeah, of course. Q. So the fact that it's an approved technique isn't the only question you need to ask yourself, is it? A. I think it was justified in its use. Q. But the two of you could have restrained Mr Exton without the leg sweep. Is that the case? A. I don't know. Q. After the three of you had gone to ground, Constable Chapman then placed Mr Exton's hands behind his back, didn't he? A. I'm pretty sure that's how it ended up. Q. And he placed handcuffs on Mr Exton's hands, didn't he? A. Yeah. Q. He didn't need to place handcuffs on him in order to restrain him, did he? A. Yeah. Q. There were two of you and he was on the ground. You didn't need the handcuffs in addition to that, did you? A. 100% we did. Q. You feared for your safety, did you, at the point at which Mr Exton was on the ground with the two of you on top of him? A. Not directly from just Mr Exton but we had numerous people over the top of us. I'd copped a few hits - or I copped a hit definitely on the back or the side of my head. People were pulling on my shirt. They'd all come out of the car so 100% he needed to be secured." [T114.34 - T116.40] [Emphasis added]
It is clear from the evidence cited above, that the plaintiff was not "hitting" either of the police officers. It is also clear from the evidence of Senior Constable Quinn that the level of restraint that had been applied to the plaintiff was because of the reactions of other persons who were present, and not because of the behaviour of the plaintiff at that time: T116.37 - T116.40.
My impression of the evidence of Senior Constable Quinn was that in relation to the events in question, he took the lead from Senior Constable Chapman. His recollection was limited to the terms of his statement, which was not tendered in evidence, so it was difficult to assess that statement for its reliability. With regard to the handcuff issue, as highlighted in the extract of evidence reproduced at paragraph [100] above, it is difficult to tell from the YouTube footage as to whether or not the plaintiff was handcuffed and if so, at what stage.
The essential points which emerge from the evidence of Senior Constable Quinn are first, there appeared to be no sound reason for Senior Constable Chapman demanding that the plaintiff get out of the vehicle, secondly, his evidence on the manner of the plaintiff's exit from the vehicle and the circumstances in which the plaintiff was grabbed were in apparent tension with the account given by Senior Constable Chapman, and it was arguable that Senior Constable Chapman had acted excessively in the circumstances, because the physical force that had been used on the plaintiff could have been avoided, a matter which will be taken up in connection with the consideration of Issue 3.

Senior Constable Archibald

At the relevant time, Senior Constable Archibald was a uniformed Constable. He was on night duty and he had responded to a radio call to assist Senior Constables Chapman and Quinn in dealing with the plaintiff who was being held in restraint on the ground by Senior Constable Chapman: T120 - T121; T123.39. Senior Constable Archibald had no independent recollection of the events, but in his refreshed memory, he recalled the plaintiff shouting: "I'll kill you, you motherfuckers": T121.35 - T121.45; T123.19 - T123.25. Those events obviously occurred whilst the plaintiff was in an upset state following his arrest.
In his refreshed recollection, Senior Constable Archibald said he saw the plaintiff "sort of thrashing around", so he went to assist by restraining him on the ground to avoid the plaintiff sustaining injury on the cement pavement as he had been hitting his head "quite forcefully into the concrete": T122.1 - T122.9; T124.34. He said that in his observation, the plaintiff was upset, agitated, not distressed: T123.45 - T124.9. I reject Senior Constable Quinn's assertion that the plaintiff was not distressed. The YouTube soundtrack clearly demonstrates otherwise. The plaintiff was clearly very distressed. Senior Constable Archibald said he had placed his arm under the plaintiff's head until he could be safely moved into a caged police vehicle, and he had also assisted the other police in that task: T122.31. There were no concerns over the credibility or the reliability of the evidence of Senior Constable Archibald.

Detective Senior Constable Hoffman

At the relevant time, Detective Senior Constable Hoffman was working with Lismore detectives as part of the on-call team on duty in Lismore that night. He was driving in a vehicle in the Lismore CBD, and as he drove past the scene, he visually identified the unmarked police vehicle in which Senior Constables Chapman and Quinn had arrived, and he turned his own vehicle around in order to render assistance.
Detective Hoffman had initially seen Senior Constable Chapman and Senior Constable Quinn standing on either side of the vehicle in which the plaintiff was a passenger, with Senior Constable Quinn standing near the driver's side window and apparently leaning into it, and Senior Constable Chapman on the passenger side, also leaning into the van: T129.1 - T129.34.
On viewing that scene, Detective Hoffman then turned his vehicle around and drove quickly to the scene, and when he had arrived, he saw 4 - 6 people of Aboriginal appearance standing around, with Senior Constable Chapman and Senior Constable Quinn each restraining a person who was in the face down position on the ground: T130.15 - T130.46. He recalled that the person who was being restrained by Senior Constable Chapman (indisputably the plaintiff) was vocally aggressive, and he was screaming and yelling: T131.6. He did not recall the plaintiff offering physical resistance: T131.17 - T131.27. Detective Hoffman was keeping an eye on the assembled crowd: T131.48. He recalled at some stage seeing the plaintiff head-butting the ground over and over again, with Senior Constable Archibald trying to prevent him from continuing to do that: T132.10 - T132.18.

Filmed images

The CCTV footage and the YouTube footage do not show all of the relevant events. I have viewed those images in continuous real-time sequences, and frame-by-frame. Absent from the CCTV footage are any pre-arrest images of the Tarago vehicle in its stationary position, Senior Constable Quinn and Senior Constable Chapman in juxtaposition to that vehicle; the plaintiff making his exit from the vehicle; the plaintiff being grabbed; the plaintiff being taken down to the ground by Senior Constable Chapman's leg seep manoeuvre; and the steps taken by those police officers to restrain the plaintiff whilst he was on the pavement.
Although it was not suggested that there had been a selective editing of the CCTV footage, no explanation was proffered as to why those images showing the arrest of the plaintiff were not available or tendered. Whilst this is a matter of some curiosity, given that the general area where the vehicle, which I infer to be the maroon coloured Tarago referred to in the evidence, was parked, and where the plaintiff was held in restraint, was filmed in the context of later occurring events identified in the CCTV and YouTube footage. The timed sequences in the YouTube footage which persuade me the maroon coloured van was the Tarago vehicle, are at 5 mins 17 seconds, 5 mins 45 seconds, 5 mins 56 seconds and 7 mins 27 seconds. Nothing seems to turn on this absence of footage of the plaintiff's arrest as the existence or absence of such footage was not the subject of cross-examination or submissions.

Pre-arrest CCTV footage

The first segment of CCTV footage is identified as coming from CCTV Keyboard 1, commencing at 01:04:32 hours on 20 April 2013. In the distance it shows four young men outside an open shop with lights on in Keen Street: 01:04:45 hours. At least one of them is seen to be moving about, and actively gesticulating with arms waving, including at a passing vehicle, at 01:04:58 hours. That vehicle looks very much like the unmarked police vehicle that later arrived at the scene a few minutes later: 01:05:52 hours, and which was shown again at 01:05:59 hours.
At 01:05:20 hours, two men are seen to appear in Keen Street from around the corner and in the foreground. They are then seen to start to walk towards those youths: 01:05:25 hours. I infer from the context of the oral evidence, that those two men were security officers, one of which included Mr Cotroneo, whose distinctive appearance was recognisable in the footage. That sequence of CCTV footage ceased at 01:05:55 hours.
The next segment shows that after Mr Cotroneo had taken about 10 paces forward whilst in a line of sight with those youths, one youth is seen to have immediately run across the road (at 01:05:26 hours), and as the two security officers walked closer to the location of the other youths, another of those youths is then seen to then proceed to run across the road (at 01:05:30 hours), followed by others, at which time Mr Cotroneo and his associate change direction at (01:05:35 hours), and then proceed to run across the road towards the direction and in pursuit of where those youths had gone. At that point the camera operator zoomed in to follow the course taken, but from a closer perspective. By then, all the youths had run across the road, with the security officers seen to have been in running pursuit: 01:05:45 hours.

Moment of arrest

The circumstances surrounding and immediately following the arrest of the plaintiff were not shown on any recorded CCTV images.

Post-arrest restraint of plaintiff

At 01:05:57 hours, and continuing for some minutes until 01:08:47 hours, a different CCTV footage sequence is seen. The camera view was panned down the street, and a four wheel drive vehicle similar to the one shown earlier, is seen to pull up suddenly and at an angle, on the opposite side of the road. A young man in plain clothes (a police officer, as it later transpired) quickly left the driver's door and walked toward the footpath and to the adjacent shopfronts. There, a young man is seen being held down on the pavement. I infer this to be the plaintiff. Others are seen milling around, and other police officers are seen to then arrive, including a female uniformed officer who was not called as a witness in the proceedings.
In those events, a young woman of Aboriginal appearance is seen to be actively remonstrating with those persons surrounding and having hold of the plaintiff, with Mr Cotroneo, variously standing around and moving around in the background and in the foreground.
At 01:08:48 hours, a different camera angle is shown with sequences continuing to 01:08:58 hours, and showing a longitudinal footpath view with numerous police officers moving about in the distance.
At 01:08:59 hours, the filmed sequence changes to show footpath activity from a camera apparently located across the road. In this sequence, a number of police officers are seen actively moving about, and a young man is then seen to be brought to his feet (at 01:09:57 hours) whilst being held by at least two police officers and then being taken away (presumably to a police vehicle). The police officers are then seen to be tending to someone else on the pavement, whilst a young man of Aboriginal appearance is remonstrating with them, in the course of which he is gently pushed away by an open handed push to the chest by someone who appears to be a police officer (at 01:10:26 hours and 01:10:39 hours).
At this stage of the CCTV footage it becomes evident that multiple changes occur in the camera views and angles from which the footage is filmed, although the time signatures on the footage continue.
At 01:12:21 hours a person is shown being manhandled by police into a police wagon. It is not clear as to whether this was the plaintiff. At 01:13:08 hours that police wagon is seen to drive off. At 01:13:33 hours there is a view of the rear of a parked vehicle which is partly obscured by the unmarked police four wheel drive vehicle. I infer from what is there shown, in combination with a viewing of the YouTube footage, that this vehicle was the Tarago that the plaintiff had been seated in before he was arrested.
At 01:13:55 hours, a young woman of Aboriginal appearance enters the Tarago vehicle on the driver's side. At 01:14:24 hours, a large man appears on the roadway apparently holding up what appears to be a mobile phone and apparently filming. This may have been Big Rob.
At 01:17:08 hours, the other police vehicles which had been at the scene started to drive away. The CCTV footage ceases at 01:18:33 hours.
There are time discrepancies which emerge from the time signatures on the Council's CCTV footage and the manually timed entries on the custody management records which comprise Exhibit "1", Tab 4. These discrepancies were unexplained. They may possibly be accounted for by different time settings on the cameras and the watches or clocks used by police to note the time of significant events. Nothing seems to turn on those discrepancies.
The CCTV footage did not show a full view of the Tarago, either from the driver's side, or any other perspective whilst that vehicle was at the scene. Those views came from the YouTube footage.
The CCTV footage described above, whilst showing the plaintiff's distress at the events, both visually and audibly, throws no light on the circumstances of his arrest.

YouTube footage

The YouTube recording of images and the accompanying sound track makes for disturbing viewing. The plaintiff is shown as the figure on the right of the screen: T48.10. It plays for 7 mins 45 seconds. It is difficult to co-relate the times shown on the CCTV footage with the YouTube footage. The footage clearly shows the plaintiff to be in a very distressed state, swearing loudly, and in parts, yelling at the police officers who were restraining him. At 1 min 20 seconds he is heard saying "Knock me out". At 4 mins 14 seconds he is heard saying "You wait you motherfuckers. I'll kill you… Kill me, Kill me motherfuckers", and multiple variants on those themes. It shows that a crowd had gathered, including numerous police officers, and at 6 mins 30 seconds and following, it shows Mr Cotroneo issuing forth with commentaries on the events of the evening.
The footage between 3 mins 15 seconds and 3 mins 40 seconds shows a police officer who identified himself as Senior Constable Brian Quinn, trying to get the person filming to move on "50 metres", and some resistant challenges in response to that direction. Another police officer is later seen and heard indicating that the names of the officers will be provided, but badge numbers were not required to be given.
Disturbing as the footage is, it is of limited assistance to the principal issues to be determined in the case because it does not show the critical events in dispute concerning the arrest of the plaintiff, and because it is difficult to discern from that footage, the level of force being applied to hold the plaintiff in a position of restraint.

Issue 1 - Resolution of significant factual matters

Having reviewed the array of evidence of the respective witnesses outlined in the preceding paragraphs, I now turn to consider the key factual matters in dispute in order to arrive at findings on those matters. There are six significant and emergent matters of fact which require resolution in the consideration of the various witness accounts of the events in question.

(1) Removal of vehicle ignition key

The first key matter of factual significance which arises for resolution is whether or not, after approaching the driver's side window of the vehicle in which the plaintiff was located, Senior Constable Quinn removed the ignition key from that vehicle, as was related by the plaintiff in his evidence: T32.5 - T32.10. The evidence of Detective Hoffman was that he saw Senior Constable Quinn leaning into the driver's side window of the van: T129.1 - T129.34. I consider that evidence suggests that at the very least, Senior Constable Quinn was temporarily preventing the vehicle from being driven away from the scene. This is confirmed by the evidence of Senior Constable Chapman, who had told Senior Constable Quinn to stop the driver of the vehicle from driving off: Exhibit "3", par 6. The evidence of Senior Constable Quinn was to the effect that whilst it was possible he could have taken the ignition key, he could not recall whether or not that was so: T98.1 - T98.16. The CCTV footage was non-contributory to this question.
Given the cited concession by Senior Constable Quinn, and given the plaintiff's level of intoxication, which tends to cast doubt upon the reliability of his stated recollection, on balance, I consider that ultimately, the matter of the alleged removal of the ignition key to be of neutral significance. The undisputed fact is that the actions of the police officers prevented the vehicle from being driven away. That is a convenient and sufficient starting point for the consideration of the matters that subsequently occurred.
Apart from the plaintiff's level of intoxication, I see no sound reason to discount his description on this point. However, in my view, it seems immaterial to decide whether or not the ignition key in the vehicle was turned off, or whether it was removed, or whether the driver had simply been asked by police officers to keep the vehicle stationary for the time being. As the driver was not called as a witness by either party, it is not possible to satisfactorily resolve this contested issue.
Whichever of the above alternatives applied in the circumstances, it is clear that the vehicle, and those within it, were being required by police officers to at least temporarily remain at the place where the vehicle was parked. As such, they were at least temporarily prevented from leaving the scene. This occurred because of the formal intervention from police officers to that effect. It therefore seems to me to be immaterial as to whether that intervention was either verbal, or physical in the form of key removal, or both.
The undisputed result was that the plaintiff's intended journey home from the scene had been interrupted by police officers. At that point, subject to any lawful directions given to the plaintiff by police officers that would have restricted his movements, the plaintiff was free to either remain in his seated position in the vehicle, or to get out and leave, as he wished, and until he received a lawful direction to the contrary, at that time, there was no lawful constraint upon his freedom of movement, or non-movement, at his choosing.

(2) Whether a warrant existed

The second key matter of factual significance which arises for resolution is whether or not the plaintiff had been told by Senior Constable Chapman that there had been a warrant for his arrest, as the plaintiff had stated in his evidence: T32.25 - T32.35. The evidence of Senior Constable Chapman on that question was that he believed no warrant had been issued for the arrest of the plaintiff: T67.3; T67.31 - T67.32.
There was ambiguity, or at least a lack of clarity in the evidence of Senior Constable Chapman on this question. In his statement he described the plaintiff as having been wanted for an assault that occurred on 3 March 2013: Exhibit "3", par 9. The document tendered by the defendant on this issue showed the plaintiff to have been a person of interest in relation to an incident on 8 February 2013: Exhibit "2". The differences and reconciliation of those matters was not explained in the evidence.
Senior Constable Chapman explained that when he saw the plaintiff, he said, speaking of the plaintiff, that he "knew there was a warrant on the system about something to do with an assault. I didn't know the ins and outs of it": T78.16 - T78.19.
In my opinion, that level of vague imprecision in the evidence of Senior Constable Chapman did not suggest the existence of a proper legal basis for detaining the plaintiff, or at least requiring him to get out of the vehicle at that point, let alone arresting him, on that vague understanding as to whether or not a warrant existed. In my opinion, that level of stated knowledge on the part of Senior Constable Chapman was an insufficient basis to be characterised as comprising a reasonable ground for believing the plaintiff had either committed, or was about to commit, a criminal offence.
Senior Constable Chapman said that in the ensuing circumstances, he did not have a chance to carry out a radio check about whether and why a warrant existed, before the incident in question occurred: T78.25 - T78.36. It is therefore necessary to examine those ensuing circumstances in some close detail.

(3) Request or direction to get out of vehicle

The third key matter of factual significance which arises for resolution concerns the manner in which the plaintiff was initially spoken to by Senior Constable Chapman, and whether this amounted to a direction to get out of the vehicle.
The plaintiff's account consisted of what I considered to be a rather neutral unembellished statement in the terms that Senior Constable Chapman had simply asked him to get out of the car.
A more amplified and detailed version of that conversation came from the evidence of Senior Constable Chapman, as cited at paragraph [13] above, namely that he had said to the plaintiff: "Trent, can you get out of the car? I don't want to have to drag you out … can you get out?": T66.39. The other iteration in the oral evidence of that conversation was: "Trent get out. I don't want to drag you out": T80.17. In his statement dated 30 May 2013, Senior Constable Chapman related that conversation in words to the effect: "Trent jump out, I don't want to drag you out": Exhibit "2", par 9. Senior Constable Chapman characterised his use of that cited language as comprising a bluff (T80.35) and he said that he was "just asking him to get out": T80.42. Either way on Senior Constable Chapman's account, his manner of addressing the plaintiff was a not too thinly veiled threat of the use of force, bluff or not.
In his oral evidence, Senior Constable Chapman gave two differing accounts as to the reasons why he had wanted to speak to the plaintiff at the time.
The first such account was that in the events, he had seen a man walking away from the vehicle in which the plaintiff and the others were seated, and he had heard that man yell out towards the vehicle words to the effect "See you later, Gomesie". Senior Constable Chapman stated that he took that comment, as heard by him, to be a reference to a Mr Samuel Gomes, a person with whom he wanted to speak. He said that as a consequence, he had looked into the vehicle, and he said that he did not see Mr Samuel Gomes because he was not there, but that in doing so, Senior Constable Chapman said that he had recognised the plaintiff: T77.23 - T78.15. It was at that point he made his cited remarks to the plaintiff, directing him to get out of the vehicle.
The second such account of those events as given by Senior Constable Chapman as to why he had wanted to speak to the plaintiff at that time, concerned an alleged assault, the details of which he had known nothing without first checking the details by means of making a call on the police radio: T78.16 - T80.61. It is indisputable that at that point, Senior Constable Chapman had no reasonable ground for suspecting the plaintiff was the alleged assailant in that matter.
In respect of that second account of why he wanted to speak to the plaintiff, namely the matter of an alleged assault, Senior Constable Chapman acknowledged that he could have undertaken a radio check about that matter without requiring the plaintiff to get out of the vehicle, especially in light of the good rapport that he acknowledged had hitherto existed with the plaintiff: T79.41 - T80.17.
Senior Constable Chapman denied that the proper construction of the events was that he had directed the plaintiff to get out of the vehicle. Instead, he characterised his cited statement to the plaintiff as being just a request in terms that he "was asking him to get out" of the vehicle: T80.42.
If the words used by Senior Constable Chapman as cited at paragraphs [13] and [142] above had been attributed to Senior Constable Chapman by the plaintiff's evidence alone, given the plaintiff's state of intoxication, I would have had serious doubts about the reliability of such evidence. However, the position here is markedly different, in that, although the plaintiff's account was vague and perhaps unreliable, and was recounted in benign terms, Senior Constable Chapman's account was, in contrast, candidly precise, and there is no reason for concluding that it was either inaccurate or unreliable.
I am satisfied that Senior Constable Chapman used the words cited at paragraphs [13] and [142] above. The circumstances and the dynamics of the situation which prevailed at that time, namely the imperative nature and tone of those words, coming from someone the plaintiff knew to be a police officer in authority, would most probably have given the plaintiff the understanding that if he did not oblige what was being said to him and get out of the vehicle, then he would be dragged out by someone whom he knew to be a police officer, in circumstances where, if a police officer had to resort to force, the consequences of not obliging such a directive, could be troublesome to someone in the plaintiff's position, to say the least.
In my opinion, the plaintiff would have been too intoxicated to interpret matters of sophisticated nuance, and possible alternative interpretations, such as making an assessment as to whether or not Senior Constable Chapman's cited statement was likely to be a bluff, as he had claimed in his evidence.
The determination of the question of how Senior Constable Chapman's words should be interpreted, in terms of a request on the one hand, or a direction on the other, must come from the context.
The context was that an intoxicated Aboriginal youth, with some prior experience of the police officer in question, was being told by that police officer, using his ostensible authority, that he was being required to get out of the vehicle on pain of being dragged out by the use of physical force.
In my opinion, those circumstances indicate that Senior Constable Chapman was using his authority to direct the plaintiff to get out of the vehicle. To suggest that this was a mere request, as claimed by Senior Constable Chapman, involved an understatement, which should not be taken literally.
I find that the plaintiff interpreted and understood those words as a command to get out of the vehicle. The circumstances involved an assertion of authority by Senior Constable Chapman. That authority was backed up by the power known to be invested in him to act along the lines that he had foreshadowed in the event the plaintiff did not comply, namely to use physical force to get or drag the plaintiff out of the vehicle.
The meaning was plain. The plaintiff had to get out of the vehicle or he would be dragged out. Senior Constable Chapman's ostensible power and authority as a police officer to say what he said must have been sufficiently known to the plaintiff from the prior dealings that had passed between them: T79.47; T92.15 - T92.24. I find that the plaintiff reasonably took Senior Constable Chapman's words to be a direction comprising a command to get out of the vehicle, and one which demanded his compliance, on pain of the use by police of a degree of foreshadowed physical force if he did not comply. In the circumstances, Senior Constable Chapman's use of the word "drag" could have no other reasonable meaning. It was a direction issued by a police officer in authority, in the course of his official duties. This was the catalyst for the events that subsequently unfolded.

(4) Plaintiff's manner of exit from vehicle

The fourth key matter of factual significance which arises for resolution is the manner in which the plaintiff was making his way out of the vehicle, namely, whether or not he did so in what he considered and described as being a normal manner, or whether or not he was swinging his arms, or whether or not his arms were flailing or "wailing" (sic) about, which according to Senior Constable Chapman, and his interpretation of the plaintiff's attitude at the time, indicated that he was about to attack the police officers present.
There is little room for doubt that in the described circumstances, the plaintiff exhibited an attitude of resentment at having been told by Senior Constable Chapman to get out of the vehicle in the manner in which he had been addressed, hence his subsequently described offensive utterances.
I find that the circumstances most probably gave the plaintiff an apprehension of uncertainty as to what was about to occur next, and in my view, this was very likely to have given rise to a feeling of resentment on the part of the plaintiff, towards the police. I find that as a consequence of the plaintiff's intoxicated state at that time, this also meant that in his response to such a direction, he was more likely than not to be disinhibited, and to be less than polite and civil in his choice of the words he used to either express his opinion on what was happening, or as to how he generally addressed the police officers who were then present.
That attitude on the plaintiff's part doubtless heightened the state of concern and the trained preparedness of the police officers to be ready and able to quickly physically respond to any attack that the plaintiff might possibly carry out on them in the circumstances. Amongst the array of possibilities to be considered by the police officers at the time, was that the plaintiff might proceed to assault them, consistent with the attitude that was embedded within the resentful content of his mutterings, taken together with the uncoordinated nature of his arm movements, as was described by Senior Constable Chapman. That said, the possibility of such an attack was speculative in nature.
However, the analysis as to the options available to the police officers in dealing with the situation at that time does not stop at that point, as is apparent from what follows.
The tense situation that had developed with the plaintiff at its centre was entirely of the making of the police officers, and in my view, may be properly described as being an unnecessary occurrence.
If the situation truly was that the police officers held a reasonable apprehension that they may be attacked by the plaintiff in his intoxicated state on exiting from the vehicle, thus requiring the pre-emptive response of grabbing him and putting him on the ground by means of a leg sweep, then this must be recognised as being a situation which they had provoked by their own conduct.
But for the vehicle in which the plaintiff was seated being required to remain stationary, and but for the plaintiff being directed to get out without reasonable cause, the situation was, to cite the evidence, "mission accomplished" in relation to the street disturbance: T106.24. The situation for which the police officers had attended had been satisfactorily resolved by the youths in question getting into the vehicle to be driven home.
Instead, the language of bluff, which suggested the plaintiff would be taken from the vehicle by threatened force, as suggested by Senior Constable Chapman, escalated the situation by causing the intoxicated plaintiff to become aggravated where he was otherwise being relatively innocuous as a passenger in the vehicle, waiting to be driven home. At the time, Senior Constable Chapman had no legitimate reason for rousing up or inflaming the plaintiff.
That too is not the end of the analysis, as is explained in the further reasons that follow.
Accepting for the purpose of analysis that the plaintiff behaved in a verbally or even physically threatening manner to the police officers present, four salient features arise from the stated context.
The first such feature is that it must have been plain to both Senior Constable Chapman and Senior Constable Quinn, that they were dealing with an intoxicated young Aboriginal person, irrespective of his actual age, and that he should be considered as being a vulnerable person.
The second such feature is that the situation at hand had escalated by the unjustifiable and imperative manner in which Senior Constable Chapman had addressed his remarks to the plaintiff, directing him to get out of the vehicle. This included the threatened use of physical force to get the plaintiff out of the vehicle when Senior Constable Chapman had no reasonable basis for having adopted such a high-handed tone or stance.
The third such feature was that the plaintiff's verbal responses were obviously mediated by his significant level of intoxication, a matter that ought to have been made plain to the two police officers because of the words used by the plaintiff, the context, the very circumstances that took them to the scene, the plaintiff's manner of speech, and his inco-ordinated movements. In the circumstances, I find that Senior Constable Chapman's actions were provocative, with the result that Senior Constable Quinn then felt obliged to go to the assistance of Senior Constable Chapman in order to deal with the ensuing tense and escalated situation which Senior Constable Chapman had created.
The fourth such feature was that the police officers, principally, Senior Constable Chapman, having created the circumstances which generated the plaintiff's resentful and verbally abusive response at having been commanded to get out of the vehicle, had a reasonable alternative course available to them instead of taking the extreme step of grabbing and overpowering the plaintiff, including by taking him down to the ground in the described leg sweep manoeuvre.
In that regard, they, or at least Senior Constable Chapman, knew they were dealing with a drunken inco-ordinate individual. Given that Senior Constable Chapman had initiated the process by which the plaintiff was making his exit from the vehicle, in obedience to the command issued to him by Senior Constable Chapman, and given that there were two police officers present, it is difficult to understand why they did not simply step back and away from the doorway of the vehicle, and away from the plaintiff as he made his way out of the vehicle, thereby avoiding any physical interaction with the plaintiff. Clearly, it was unlikely the plaintiff would take flight, and if he then became physically aggressive towards the officers, or one of them, they were adequately equipped, including by their numbers and by their equipment, to neutralise any such behaviour.
The escalation was created by Senior Constable Chapman. It needed to be calmed. The police response of grabbing the plaintiff was unnecessary and excessive. If there was truly a risk of the plaintiff attacking the police officers, they had other means at their disposal to overpower an enraged intoxicated plaintiff, such as the use of the OC spray that Senior Constable Quinn had used in the events that followed.
In my view, the events may be properly summed up as unnecessary and overzealous policing, and disproportionate to the circumstances, which had been unnecessarily precipitated by the conduct of Senior Constable Chapman.

(5) Stage at which the plaintiff was grabbed by the arms

The fifth key factual matter of significance which arises for resolution is whether the plaintiff's arms were grabbed by the two police officers before or after the plaintiff had completed making his exit from the vehicle, and whether excessive force had been employed by the police officers.
On this question, the plaintiff stated that he got out of the car "like a normal person would get out of the car": T33.19. He said that whilst he was taking his time to do so, Senior Constable Chapman "… got me out of the car": T33.24. The plaintiff elaborated by stating he had been "grabbed": T33.27. He said he was "not too sure" whether he had been grabbed by the police officers whilst he was still in the vehicle, or after he had got out: T33.31. He said that after he was out of the vehicle, he was then "placed on the ground": T33.43.
Given that the reliability of the evidence of the plaintiff must be seen to have been materially affected by the discounting factor of his intoxication, it is necessary to consider this question in light of the content of the explanatory evidence given by Senior Constable Chapman and Senior Constable Quinn.
Senior Constable Chapman stated the plaintiff jumped over the back seat of the vehicle and into the area of it where the door was open, and that on his perception, the plaintiff then lunged out towards both him and Senior Constable Quinn, at which time both officers then held onto him: T70.44 - T71.12. According to Senior Constable Chapman this occurred before the plaintiff was standing outside the vehicle: T71.42 - T71.44.
Senior Constable Quinn's account of the above accounts differed to the account given by Senior Constable Chapman in that he described the plaintiff as being in an unhappy and animated state as he was "trying to go through - climb over the car" and "put on a show" before he eventually got out of the vehicle: T98.40 - T99.8. Senior Constable Quinn also stated that he had not grabbed the plaintiff at that point but he did so later, after he had first placed a hand on the plaintiff's chest in an attempt to calm him down: T99.34 - T99.38.
An examination of the surrounding circumstances without adequate recognition of dynamics, would be sterile and artificial. The relevant dynamics are that the plaintiff was very intoxicated and unco-ordinated, and there were two police officers who would have had no difficulty in stepping away from any attempts on the part of the plaintiff to attack them, and they would have had no difficulty in neutralising any such behaviour on the plaintiff's part, if it occurred, by deploying their OC spray equipment, or delaying their use of force to see if they could de-escalate the situation by other, non-physical means. I find that in the circumstances, they could have easily stepped back and away from any threat of danger posed by the plaintiff's intoxicated behaviour. Instead, I consider that they used unjustifiable and excessive force in the form of grabbing him by the arms and carrying out a leg sweep manoeuvre to bring him to the ground.
Returning then to the circumstances in which the plaintiff was grabbed by the police officers, on considering the cited array of evidence on this issue including Exhibit "2", at par 10, in my opinion the plaintiff was grabbed by the police officers whilst he was still in the vehicle, and well before he had the chance to complete his exit according to the direction that was given to him by Senior Constable Chapman to get out of the vehicle.
I do not accept that the plaintiff was out of the vehicle when he was grabbed by the police officers. The evidence that he was "sort of, half-out, half-in", in the doorway, suggests otherwise: T88.6 - T88.27. The cited evidence of the police officers supports the plaintiff's account to the effect that he was grabbed by the police officers who then got him completely out of the vehicle by that means.
In coming to that view, I find it improbable that in his intoxicated and unco-ordinated state, within the relatively confined space of the vehicle, and having to clamber over seats and other passengers, that the plaintiff was making his way to the exit at "flying" speed, and in the process, lunging towards the police officers. Those descriptions suggest to me that he was still in the vehicle when the police officers grabbed him.
Even if, for the purpose of analysis, it was accepted that the plaintiff had made a lunging movement as claimed, its effect could have been readily dissipated without resultant physical contact, by the officers simply stepping away from the tense situation that had been created by Senior Constable Chapman. If the danger of an attack still remained at that point, they were readily equipped to deal with such a circumstance by using their OC spray, batons, or other non-physical encouragements, to neutralise any threatening behaviour of the plaintiff, whether real or perceived.
In coming to that view I consider that Senior Constable Quinn's account of the events is unlikely to represent an accurate account in that if the plaintiff was coming out of the vehicle in a lunging movement, at speed, it was unlikely that Senior Constable Quinn would have had time in those "flying" events to attempt to calm the plaintiff by placing a hand on his chest and trying to get him to relax, as he stated. I consider that explanation as given by him to be improbable in the described circumstances.
I therefore find that the plaintiff was grabbed by the police officers in the manner described by Senior Constable Chapman, and that this occurred before the plaintiff had made his exit from the vehicle. What then followed, was the unjustified use of excessive force.

(6) Timing of arrest

The sixth key factual matter of significance which arises for resolution is the particular timing of the plaintiff's arrest, namely, whether the arrest occurred when the plaintiff was told he was under arrest, which was at a time when he had already been taken down onto the ground by Senior Constable Chapman's leg sweep manoeuvre, or whether it should be inferred from the circumstances that the plaintiff had been arrested at an earlier time in the events, whilst he was still in the vehicle, and when he had been directed to get out of the vehicle, and at a time when he had been told that if he did not comply with that direction, he would be dragged out, at which time he commenced his attempts to comply with that direction.
In those circumstances, I find that the plaintiff's response in moving forward to get out of the vehicle, indicated he had already been arrested. Satisfactory evidence of that fact was his submission to the command or direction given to him by Senior Constable Chapman to get out of the vehicle: Symes v Mahon [1922] SASR 447, at pp 449, 451, 453 and 454. I find that at that time, the plaintiff was under the power of Senior Constable Chapman. As a consequence, I find that he had been arrested at that time, which was well before he had actually got out of the vehicle, and well before he was grabbed by the police officers and then leg swept to the ground. All those subsequently occurring events must be viewed in that light.

Issue 2 - Whether the arrest of the plaintiff was lawful

The plaintiff was not to know that at the time he was directed to get out of the vehicle, Senior Constable Chapman had exceeded the powers of arrest which were invested in him by virtue of his status as an attested police officer, and that he was engaging in a process of bluffing in order to secure the plaintiff's compliance.
The statutory power of a police officer to carry out an arrest without a warrant is founded upon s 99 of LEPRA, which provides as follows: 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. (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) A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person before an authorised officer to be dealt with according to law. Note : The police officer may discontinue the arrest 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.
In my opinion, neither Senior Constable Chapman nor Senior Constable Quinn had reasonable grounds for suspecting the plaintiff had committed an offence when he was directed to get out of the vehicle, which I find was the time of arrest: s 99(1)(a) of LEPRA. At the time of the arrest the plaintiff was simply seated in the rear seat of the vehicle, irrespective of what construction should be placed on his manner of speech, or gestures, or to whom such matters were being directed. Accordingly, none of the criteria justifying arrest as set out in s 99(1)(b) of LEPRA applied.
In my opinion, that discretion vested in a police officer must be exercised in good faith, and not otherwise than in good faith. That obligation extends to informing a person arrested of the reason for the arrest. Senior Constable Chapman did not inform the plaintiff of the reason why he was being required to get out of the vehicle, as is required by law. In the circumstances, he was not given a lawful reason for his arrest. This is because Senior Constable Chapman had been bluffing the plaintiff.
To engage in a bluff is to deceive or intimidate by a pretence of strength: Shorter Oxford English Dictionary, 6th ed, 2007 reprint, p 257. Such a bluff, or pretence, cannot amount to be acting in good faith. An arrest based on such circumstances should not be seen as being lawful.
I therefore find that the arrest of the plaintiff was unlawful. The subsequently occurring events must also be viewed in that light.

Issue 3 - Whether assault and battery occurred

An assault is constituted by: "… creating in another person an apprehension of imminent harmful or offensive contact. If the threat is actually carried out, the whole incident is properly described as an 'assault and battery'. Usually both offences occur in rapid succession, and in common parlance, the word 'assault' is frequently used to include a battery": John G Fleming, The Law of Torts, 10th ed, 2011, p 34, [2.70].
On the evidence I have cited, I find that an assault and battery occurred to the plaintiff when one of the police officers placed his hand on the plaintiff's chest, and the police officers grabbed the plaintiff whilst he was still within the vehicle. This was compounded when the plaintiff was taken down onto the ground by the leg sweep manoeuvre carried out by Senior Constable Chapman, and by the subsequent maintenance of restraining knee pressure to points on the plaintiff's back whilst he was laying face down on the pavement, and again, when he was physically placed into the caged police vehicle for transportation to the Lismore Police Station.

Issue 4 - Whether false imprisonment occurred

It follows from the above findings that the plaintiff was falsely imprisoned from the time he was arrested, and this state of false imprisonment then continued until the time when he was released from police custody.
The police custody management records indicate: the time of arrest was 01:20 hours; the journey to the police station commenced at 01:25 hours; the arrival at the police station was at 01:30 hours; the plaintiff was then placed in the dock at 01:56 hours where he was scheduled to be inspected every 10 minutes until 03:00 hours, at which time he was then placed in a cell until 05:53 hours, where he was to be inspected at 20 minute intervals, until his release on bail at 06:41 hours at which time it was considered that he was no longer intoxicated: Exhibit "1", Tab 1.
Although it was argued that part of the period of the plaintiff's detention was due to the fact that he was intoxicated, this does not alter the fact that such detention should be properly characterised as being a wrongful or false imprisonment, as it would not have occurred but for the unlawful or wrongful arrest of the plaintiff. He would have been taken home in his intoxicated state.
The law places a high value on the right to personal liberty and this cannot be taken away without lawful authority: Williams v The Queen [1986] HCA 88; (1988) 161 CLR 278, at pp 292 - 296. When that right is unlawfully infringed, this gives rise to a remedy in damages. The effect of my findings is that the plaintiff has established an entitlement to an assessment of damages for false imprisonment.
In a case where exemplary damages are claimed in addition to general compensatory damages, including aggravated damages, compensatory damages must be assessed first, before determining whether the disapprobation of the conduct of the arresting police should be marked by an award of exemplary damages, and if such damages are considered to be called for, no element should be compensated more than once: NSW v Radford [2010] NSWCA 276, at [97]; State of NSW v Zreika [2012] NSWCA 37, at [63] - [64]. This is because, it is necessary to maintain the distinction between the compensatory nature of general and aggravated damages, and the separate element of the punitive and deterrent nature of exemplary damages: State of NSW v Abed [2014] NSWCA 419, at [230].

Issue 5 - Assessment of damages

Consequent upon the above findings, in the paragraphs that follow I set out my findings and assessments relating to the damages issues calling for decision.
The respective submissions of the parties on the assessment of damages was as follows: Head of damage Plaintiff's submissions Defendant's submissions (1) Assault/battery $7,500 $5,000 (2) Wrongful arrest and imprisonment $12,500 $10,000 (3) Aggravated damages $10,000 $Nil (4) Exemplary damages $5,000 $Nil Total $35,000 $15,000

My assessment of damages, and interest on components of such damages, now follows.

General compensatory damages - assault and battery

On behalf of the plaintiff, it was submitted that general compensatory damages for assault and battery should be awarded in the sum of $7500. On behalf of the defendant, it was submitted that such damages should be limited to the sum of $5000.
In reviewing this head of claim, such damages are directed at compensating the plaintiff for his removal from the vehicle, which in the final stages, involved the use of force from physical contact by grabbing him by the arms, then bringing him down to the ground in a leg sweep manoeuvre, and then holding him there in a restrained position, and causing the plaintiff to experience significant distress at such wrongful conduct.
In Smith v State of NSW [2016] NSWDC 55, at [247] - [256] I reviewed and summarised the various approaches taken to the assessment of damages in such cases, each of which must be assessed on their own facts. That review also guides my approach to the assessment of damages in this case.
As was observed in Zaravinos v State of New South Wales [2004] NSWCA 320, at [52], the damages are not proportionately relatable to the length of time spent in detention, and the substantial portion of the award should be allocated to the initial shock of being arrested: Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612. In the present case, the wrongful detention was for a period of a little over 5 hours.
In my view, the quantum submission made on behalf of the plaintiff for damages for assault and battery is modest, and is towards the lower end of the range for such damages. That is an appropriate position, in recognition that an award for aggravated damages is also justifiably claimed. In those circumstances, I accept the submission made on behalf of the plaintiff, and I assess the plaintiff's claim for general compensatory damages for assault and battery in the amount of $7500.

General compensatory damages - wrongful arrest and false imprisonment

On behalf of the plaintiff, it was submitted that general compensatory damages for wrongful arrest and imprisonment should be awarded in the sum of $12,500. On behalf of the defendant, it was submitted that such damages should be limited to the sum of $10,000.
I consider that the prolonged period that the plaintiff was held in restraint on the pavement whilst in distress, and the consequential prolonged 5 hour period of deprivation of liberty, justify an award of general compensatory damages for wrongful arrest and false imprisonment in the sum submitted by the plaintiff, which I consider to be reasonable.
I therefore assess such damages in the amount of $12,500.

Aggravated damages

On behalf of the plaintiff, it was submitted that aggravated damages for assault and battery should be awarded in the sum of $10,000. On behalf of the defendant, it was submitted that no such damages should be awarded at all.
I consider that aggravated damages are called for in this instance because of the fact that the wrongful arrest and the false imprisonment involved the plaintiff experiencing a prolonged period of distress and discomfort whilst he was being held in a restrained position on the pavement. In arriving at that conclusion I recognise that overlapping of damages should be avoided. To ensure that principle is observed and applied, the amounts awarded for general compensatory damages for assault, battery, and wrongful imprisonment, have been assessed at the lower end of the range: Radford v State of NSW [2010] NSWCA 276, at [97]; State of NSW v Zreika [2012] NSWCA 37, at [63] - [64].
With those considerations in mind, and recognising the need to preserve the distinction between general damages and aggravated and exemplary damages, as stated in State of NSW v Abed [2014] NSWCA 419, at [230], I assess the plaintiff's claim for aggravated compensatory damages in the claimed amount, which I consider to be reasonable, namely $10,000.

Exemplary damages

On behalf of the plaintiff, it was submitted that exemplary damages for assault and battery should be awarded in the sum of $5000. On behalf of the defendant, it was submitted that such damages should not be awarded.
To establish an entitlement to exemplary damages, the plaintiff must show that his arrest and detention was not only wrongful, but also, that the circumstances involved or amounted to conscious wrongdoing on the part of the police, in contumelious disregard of his rights, such that the conduct should be seen as being reprehensible, and requiring an expression of disapproval to bring home to those officials of the State responsible for overseeing the workings of the police force, that police officers must be appropriately trained so that unlawful and contumelious infringement of personal liberty does not continue to occur in other instances: State of NSW v Zreika [2012] NSWCA 37, at [61] - [62], following Gray v Motor Accidents Commission [1998] HCA 70; (1998) 196 CLR 1, at p 7, [15]; NSW v Ibbett [2006] HCA 57; (2006) 229 CLR 638, at pp 646 - 647; [31], [33]; NSW v Landini [2010] NSWCA 157, at [14]; Adams v Kennedy [2000] NSWCA 152; (2000) 49 NSWLR 78, at 36.
Conduct that is high-handed, outrageous, and which shows contempt for the rights of others, even if not malicious, or not involving conscious wrongdoing, may still properly form the basis for an award of exemplary damages where an award of compensatory damages alone does not sufficiently express the court's disapproval of the conduct in question: State of NSW v Abed [2014] NSWCA 419, at [233]; State of NSW v Riley [2003] NSWCA 208; (2008) 57 NSWLR 496, at [138]; State of NSW v Quirk [2012] NSWCA 216, at [163].
In assessing exemplary damages, I recognise that care must be taken when identifying the disapproved conduct that attracts such an award, to ensure that no element of the compensation is awarded more than once: State of NSW v Quirk [2012] NSWCA 216, at [154], citing NSW v Ibbett [2006] HCA 57; (2006) 229 CLR 638, at [35].
In my opinion, the bluff or ruse perpetrated upon the plaintiff by Senior Constable Chapman, which was accompanied by a threatened use of force, contumeliously disregarded the plaintiff's rights. By those means, instead of the plaintiff remaining seated in the back of the vehicle as he was entitled, albeit presumably in an intoxicated and annoyed state, but still nevertheless free to express his chagrin for being delayed in his journey home by police officers, his freedom was taken from him. This occurred in a brusque manner of speaking, and he ended up being drawn into a position of physical conflict with the police, whereby his liberty was taken from him. This was in circumstances where an alternative reasonable course was open to Senior Constable Chapman at the time, as explained at paragraphs [170] to [172] above.
In my opinion, that bluff which was adopted by Senior Constable Chapman requires an expression of censure by an award of exemplary damages "to bring home to those officials of the State who are responsible for the overseeing of the police force that police officers must be trained" so that such problems do not recur: Adams v Kennedy [2000] NSWCA 152, at [36].
In my assessment, that bluff, where Senior Constable Chapman knew that there was no warrant for the plaintiff's arrest, and which resulted in the plaintiff submitting to the power of Senior Constable Chapman, was not communicated in good faith, as explained at paragraph [192] above: Zaravinos v State of New South Wales [2004] NSWCA 320, at [24].
In my view, the circumstances as found, indicate there should be an award of exemplary damages that signifies the court's disdain and disapproval for such a contumelious disregard of the plaintiff's rights. I therefore accept the assessment of exemplary damages as submitted on behalf of the plaintiff, namely the sum of $5000.

Interest

The damages awardable for assault, battery, wrongful arrest and false imprisonment are assessed as at the commencement of the hearing, namely on 21 February 2017, for an infringement of rights that occurred on 20 April 2013, a period of 3.84 years: Ruddock v Taylor [2005] HCA 48, (2005) 222 CLR 612, at [141].
In MBP (SA) Pty Ltd v Gogic [1991] HCA 3; (1991) 171 CLR 657, the selected interest rate on general damages was 4 per cent. In comparison, over the relevant period the average Reserve Bank of Australia cash rate between 30 April 2013 and 21 April 2014 is 2.5 per cent, and the average rate for the same period as provided by s 100 of the Civil Procedure Act 2005 and UCPR 6.12(8) is 5.66 per cent: Furzer Crestani, Assessment Handbook, October 2016, pp 14 - 15. In light of those comparisons, I consider that the appropriate rate for the calculation of interest on general compensatory damages in this case is 4 per cent: MBP (SA) Pty Ltd v Gogic [1991] HCA 3; (1991) 171 CLR 657.
I consider that in this case, the award of interest should be restricted to the elements of the assessment that are compensatory, and assessed as at the time of the events, and not in relation to the aggravated and exemplary elements. Accordingly, I assess interest on the sum of $20,000, at 4 per cent over 3.84 years, namely $3072.

Summary of damages and interest

My assessment of the plaintiff's damages is summarised as follows: Head of damage Award (1) Assault/battery $7,500 (2) Wrongful arrest/false imprisonment $12,500 (3) Aggravated damages $10,000 (4) Exemplary damages $5,000 (5) Interest $3,072 Total $38,072

Disposition

The consequence of the foregoing findings is that there must be a verdict and judgment for the plaintiff in these proceedings, in the aggregated sum of $38,072.

Costs

It follows that the defendant must pay the plaintiff's costs of the proceedings on the ordinary basis unless a party can show an entitlement to some other costs order.

Orders

I make the following orders: 1. Verdict and judgment for the plaintiff including general compensatory damages, general aggravated damages, exemplary damages, and interest, in the total sum of $38,072; 2. The defendant is to pay the plaintiff's costs of the proceedings on the ordinary basis unless otherwise ordered; 3. The exhibits may be returned; 4. Liberty to apply on 3 days' notice if further or other orders are required.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 April 2017

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