Fernando v State of New South Wales

22 May 2013 - arrest of Russell Morgan

1. At about 8.45am on 22 May 2013, Detective Sergeant Sharpe arranged for Senior Constable Wilson to carry out what was supposed to be covert surveillance of the plaintiff's property. I say, "what was supposed to be covert surveillance" because it is clear that the plaintiff, herself, identified a brown unmarked police car parked nearby early on that morning.
2. At about 9am on 22 May, Detective Sergeant Sharpe and Senior Constable Andrew Ryan attended the plaintiff's premises and asked for permission to search the house to ascertain whether Russell Morgan was inside. The plaintiff refused the police entry and said that she said to them, "No, youse have already been in twice before." According to the plaintiff the Detective Sergeant pointed out that he had a warrant for Russell's arrest, but she reiterated that she was not permitting police to enter the house on this occasion. According to the plaintiff, Russell Morgan was not within her house that day. She had not seen him that morning, and indeed had not seen him for about a week. She said that the police then left.
3. She sat down for a while in her lounge room, and then went to the kitchen sink to do the washing up. It was when she was doing the washing up at the kitchen sink that she noted one police car across the road on a corner, and another police car, "Up the road from my home" further up the front of her home. The brown unmarked car was the one that she described as being across the park.
4. The plaintiff's residence is on the southern side of the east-westerly section of Anthony Road. At the western end of that section, the road turns to the south-west until it meets Robert Street. Parallel to the relevant section of Anthony Road is Suzanne Street. Where Anthony Road turns direction there is a park called Electra Park. The plaintiff's residence is on the eastern side of Electra Park. That can be ascertained by some photographs of the plaintiff's residence, which are exhibit A.
5. At 9.30am, or thereabouts, another general duties police vehicle parked at the front of the plaintiff's residence, and Senior Constables Thomas and Stanley alighted from the vehicle and visited the plaintiff's residence. They asked the plaintiff if Russell Morgan was at the premises, and whether they could inspect the premises to ascertain if he were. The plaintiff told them that he was not present, and according to the plaintiff, the police told her that her house was under surveillance. She said that she refused these police admittance to her house because she was "sick of them. Coming to the house all the time, wanting to search the house for Russell." She said in her evidence that she told Senior Constables Thomas and Stanley that.
6. The two senior constables had been told by Detective Sergeant Sharpe that if they were refused admission to her house by the plaintiff, that they were to advise her that they would go away and return with Sergeant Sharpe and a search warrant. This, according to Detective Sergeant Sharpe, was a stratagem, or ruse, to try to flush Russell Morgan out of the plaintiff's house.
7. Shortly after the two senior constables left, the plaintiff walked from her front door to the letterbox at the front of her house. The letterbox can be seen in the first two photographs comprising exhibit A. According to police surveillance, the plaintiff looked up and down the street. The plaintiff said that she went to look out the front because one of her sons, who was an alcoholic, lived across the road from her, that is, also in Anthony Road and she was concerned for his welfare. According to police surveillance, a short time later the plaintiff's daughter, Tamara Fernando, left the front of the door of the premises and walked to the same letterbox and looked up and down the road.
8. According to the police, the next relevant event was that Senior Constable Wilson advised via a back channel on the police radio, "I've got a male in black clothing and a red jacket coming out of the house, he's going west in Anthony Road." A short time later, somewhere between 20 and 40 seconds, that male person was arrested and detained by Detective Sergeant Sharpe and Senior Constable Ryan, and that person was Russell Morgan. The Detective Sergeant said that he had walked, "maybe 60 metres" during the period between his learning of the male's leaving the plaintiff's house to the arrest. The arrest of Russell Morgan occurred at approximately 9.45am. He was taken to the Tamworth Police Station.
9. Exhibit L is an electronically recorded interview of Russell Morgan. That interview commenced at 12.20pm and concluded at 12.24pm. Russell Morgan did not admit being in the plaintiff's house. The relevant portion of that interview is this: "Q. What time did you walk down to mum's? A. About 9 o'clock. Q. About 9 o'clock? Okay. Were you, were you there when, when police spoke to... A. No, I wasn't there... Q. ...your mum? A. ...I came along just after it. Q. Okay. All right. Were you made aware that police were looking for you? A. Yeah. Q. Yeah. At any time were you were you in 95 Anthony Road? A. No, only this mornin' when I went there. Q. And you said you went there about, what time? A. About 9 o'clock. Q. Did you hear police knock at the door? A. Didn't go inside. Only got a smoke off them and kept going." One can hardly characterise that as an admission that Russell Morgan had been at the plaintiff's premises between 9am and about 9.44am, that is, about 40 seconds prior to his arrest at 9.45. The inference to be drawn from what Russell Morgan said is that he only turned up shortly before his arrest at the plaintiff's house, did not enter it, and was given a cigarette and left, or as he put it, "kept going".
10. The plaintiff gave evidence that she was visited by another daughter, Maude, who advised her that the police had "got Russell" down the other end of Anthony Road. That caused the plaintiff to drive down past the arrest site, and then she returned to her home and later went up to the police station. Accordingly, it was part of the plaintiff's evidence that she drove past wherever it was that Russell Morgan was arrested. The exact point has been shown by the placing of a Post it note on the map to which I referred during the evidence, and that is a relatively short distance consistent with 60 metres from the plaintiff's home. It appears to be extraordinary that Maude should have driven past the arrest scene and then visited the plaintiff, and then the plaintiff entered her vehicle and drove past the arrest scene, all of this happening in a matter of a few minutes.
11. The significance of the event, however, is that the plaintiff had suggested to her that she had a conversation with Detective Sergeant Sharpe at the scene of Russell's arrest. In cross examination she was asked whether she stopped at the scene of the arrest and said, "No, I never." The evidence continued thus: "Q. Did you approach Sergeant Sharpe at the scene of the arrest? A. No. Q. Did you say to Sergeant Sharpe words to the effect of, 'Sharpie, he only just came to my place and left?' A. No, I never. He wasn't even at home." However, evidence was given to the contrary by Detective Sergeant Sharpe. In chief at p 61, line 24 of the transcript this evidence is recorded: "Q. Did any person other than a police officer attend the scene of the arrest? A. Not long after we had him in custody on the grass, Patricia Fernando drove past from the direction of [her] house and said, 'Sharpie, he's only just turned up and then left'." In answer to further questions, the Detective Sergeant said that the plaintiff stopped the vehicle she was driving and stayed in the car and spoke to him through an open window, and he repeated that she said, "Sharpie, he's only just turned up at my house and then just left". After that, Russell Morgan was placed in the rear of the general duties "truck", being driven by Senior Constables Thomas and Stanley and was conveyed to the Tamworth Police Station.
12. I find it extremely implausible that Detective Sergeant Sharpe would have concocted this conversation or this statement allegedly made to him by the plaintiff. It did not serve any purpose for his case in the sense of assisting him in regard to any matter currently before this Court, or any matter that could be before a criminal court. Why would the detective sergeant give the plaintiff an "excuse" for how it came to be that Russell Morgan should be seen to have been leaving her home. I, therefore, accept the evidence of Detective Sergeant Sharpe on this issue and accept that the plaintiff did stop at the scene of the arrest of her grandson and say to the detective sergeant "Sharpie, he only just came to my place and left".

22 May 2013 - arrest of the plaintiff

1. I return to events at the police station. The plaintiff drove herself to the police station and arrived there at about 1.20pm. She attended at the police station to enquire about the health and wellbeing of her grandson, Russell Morgan. She was then arrested by the Detective Sergeant. He did not touch her in any way, but merely told her that she was under arrest, and the plaintiff merely complied with his directions. According to the Detective Sergeant, this occurred: "I saw her out the front of the counter. I said, 'At this stage, Patty, you're under arrest for hinder police. You're not obliged to say or do anything unless you wish to do so. Anything you do say will be taken down and given in evidence. Do you understand that?' She said, 'Yeah, no worries.' So I walked her through...a door and along a corridor and into the dock area. She wasn't handcuffed or anything. I didn't grab her or drag her. She just followed me in." He then had a conversation with her. He gave this evidence: "I said, 'You've told us lies. You told me that he wasn't at the house and he was. We saw him leave the place.' She said, 'No. He only just turned up. He rang me earlier and wanted a lift.' At that stage I had a look - she had a mobile phone on her, with her, and I looked on her mobile phone, her call log, there hadn't been an incoming call to her mobile phone between - I think it was 11.37 the night before and 12.54 on the day of the 22nd. So there I thought that I had her in a lie as well. So she was read her Pt 9 rights and I asked if she wished to be interviewed, which she said she did, which was good. I would have got her down to a version, and in the meantime while she was in custody I asked Senior Constable Thomas and Constable Stanley, because they had a good knowledge of what was going on that day, to go around and have a quick chat to - to try and get a statement out of Tamara Morgan and ask her where Russell had been earlier that day. That would be Tamara and Mr Wickey. So they were asked to do that. Obviously they were pretty busy with their general duties policing, but they - luckily for me they managed to fit it in."
2. The usual custody management record is before me. That confirms the arrest of the plaintiff at 1.20pm. The custody management records commenced at 1.25pm and record providing to the plaintiff of her rights under LEPRA at 1.28pm. They record that she was searched by the custody manager, Senior Constable Rebecca Bavister at 1.30pm. They record that at 1.55pm a phone call was made by or on behalf of the plaintiff to the Aboriginal Legal Aid office, but it would appear from other evidence that no one was available to assist the plaintiff at that time.
3. The plaintiff, as had been indicated by Detective Sergeant Sharpe, had agreed to be interviewed and arrangements were then made for such an interview to take place. However, whilst those arrangements were being made, the plaintiff felt unwell. According to the custody management records she complained of ill health at 2.01pm. Senior Constable Bavister made a triple-0 call, which is recorded on the ambulance records as being made at 1.58pm. The ambulance arrived at the police station at 2.24pm, and according to the custody management records, the plaintiff was released from custody at 2.34pm in order to be taken by the ambulance officers to a local hospital. She arrived at the hospital at 2.53pm. Her feeling of unwellness was because she had failed to take her anti diabetic medication. The ambulance officers found that her blood sugar levels were too high, and hence they needed to convey her to hospital.
4. Detective Sergeant Sharpe gave evidence that after the ambulance came, he didn't proceed with the attempt to interview the plaintiff. He gave evidence that the ambulance officers said that the plaintiff needed to be taken to the hospital. He then spoke to Senior Constable Thomas. I assume that was on the telephone. According to Detective Sergeant Sharpe, he was advised by Senior Constable Thomas that Senior Constables Thomas and Stanley were at the house in Anthony Road talking to Tamara Morgan, or Tamara Fernando, and Mr Wickey. The detective sergeant then said: "So based on Ms Fernando's welfare, and the fact that there was the collusion and the possibility of fabrication of evidence, it was being addressed, I saw no more reason to keep her in custody, so I un arrested her."
5. It is common ground that subsequently no charge was laid against the plaintiff, and, in particular, that she was not charged with hindering police contrary to the provisions of s 546C of the Crimes Act 1900. That the detective sergeant was considering charging the plaintiff prior to her attending at the police station cannot be doubted. The relevant entry on the Computerised Operational Police System, COPS, commenced to be made at 11.46am on 22 May 2013, obviously prior to the plaintiff's attending at the police station at 1.20pm.
6. Detective Sergeant Sharpe said that he made some inquiries with Sergeant Matthew Price, the police prosecutor at Tamworth. According to the Detective Sergeant, he told Sergeant Price this: "We've been looking for Russell Morgan, I went there this morning, Patty Fernando told me that he wasn't there. I then got the GD guys to go there, she told them he wasn't there as well, we had surveillance on the house, she wouldn't let them go through, and then 15 minutes later Russell Morgan walks out of the house - she comes out to the letterbox, she looks up and down the street, Anthony Road, and then goes back inside. Then Tamara Morgan comes out, looks up and down the street, looking for police. She goes back inside and then..." Ms Lewer, who appeared for the plaintiff then raised objection to the witness saying that Tamara Morgan had been looking up and down the street "for police". The objection was poorly made as that is not evidence of any fact, but rather the facts that Detective Sergeant Sharpe thought he had available to him, which he was giving to Sergeant Price in order to obtain Sergeant Price's opinion as to whether some offence had been committed. Eventually the Detective Sergeant pointed out that he asked Sergeant Price whether that was enough to establish a charge of hindering police, and according to Detective Sergeant Sharpe, "He said based on what you told me I think it is". In other words, on what the Detective Sergeant believed had happened, Sergeant Price thought there was sufficient evidence available to charge the plaintiff with hindering police contrary to the provisions of s 546C of the Crimes Act 1900.
7. I accept that, antecedent to the plaintiff's turning up at the police station, Detective Sergeant Sharpe was considering charger her with hindering police. He sought advice from the prosecutor, Sergeant Price, and then it appears to me that he commenced making the COPS entry at 11.46am.

Information available to arresting officer

1. The information available to the detective sergeant can be summarised in this fashion: 1. Police surveillance commenced at about 8.45am. That was carried out by Senior Constable Wilson. The evidence in that regard is this: no one had attended the house or left the house in the period between 9am when he attended the house and 9.30am when Senior Constables Wilson and Stanley had attended the house: Transcript p 59, line 46. 2. The plaintiff on this occasion forbad entry into her house of, firstly, Detective Sergeant Sharpe and Senior Constable Ryan, and, secondly, Senior Constables Thomas and Stanley. That was her lawful right. However, on two earlier occasions, she had permitted the police to make such an inspection. The only excuse offered by her for failing to permit inspection on this occasion was because she was "sick of it". It had last occurred a week earlier. It was not some regular daily or twice daily or the like visit by the police to her home with the intention of searching it. Of course failing to give permission for them to enter, being a lawful right, could not constitute an offence of hindering police. However, it might give some indication of the plaintiff's knowledge; that is, it might go to the issue of mens rea. If on earlier occasions she had permitted a search when he was not present, why forbid a search when it was thought he might be present? 3. Russell Morgan was seen to leave the house shortly before his arrest at 9.45am. He had not been seen going there, but he was seen leaving. If he was not seen going there at any time after 8.45, then he must have been there at 8.45, and, therefore, must have been present when the police made inquiries of the plaintiff at both 9am and 9.30am. 4. The activity of the plaintiff's walking to the front of the house and looking up and down the road is suspicious, and, again, might indicate some mens rea. If her alcoholic son lived across the road, one might think it was only necessary to look across the road and not up and down the street, or it might justify her going over to her alcoholic son's house to see if he were at home. 5. The activity of the plaintiff's daughter, Tamara, looking up and down and road raises another suspicion, that is, that a watch was being kept out for the police.
2. I accept that each of the things which I have just mentioned were known to Detective Sergeant Sharpe. They were based on either what he knew, or what other members of the New South Wales Police had told him, in particular, the officer conducting surveillance, Senior Constable Wilson. There are other matters that the senior constable was able to take into account in assessing whether to charge the plaintiff: 1. The plaintiff's driving past the scene of the arrest very shortly after it was made and then offering an excuse to Detective Sergeant Sharpe as to why she had not earlier admitted the presence of Russell Morgan at her home could be seen as evidence of consciousness of guilt. 2. The nature of the relationship between the plaintiff and Russell Morgan must be borne in mind. He was not merely her grandson. She was his effective mother. Indeed, in the electronically recorded interview, she was referred to as Russell Morgan's "mum". Our society accepts that the deepest level of love is of a mother for her child, and it is understandable that a person such as the plaintiff would be seeking to protect, insofar as she could, the interests of Russell.
3. The COPS entry, exhibit F, contains this matter: "Russell Morgan had earlier been spoken to by arresting police, Thomas and Stanley, and had made admissions to being in the house when they had attended." There was no such admission made in the electronically recorded interview given by Russell Morgan. The participants in that were Senior Constable Andrew Ryan and Senior Constable Nigel Thompson. However, I do know that when Russell Morgan was arrested, he was placed in the "general duties truck" being used by Senior Constables Thomas and Stanley. That is the only place in which such an admission is recorded, and it is not clear whether at that stage either Senior Constable Thomas or Senior Constable Stanley, or indeed Detective Sergeant Sharpe had given a warning to Russell Morgan. I, therefore, place no weight at all on that piece of information contained in the COPS entry. The COPS entry continues: "Morgan, during interview stated that he had stayed the night at Thompson Crescent and then walked to his nan's before leaving and that he hadn't heard the police at the front door." The words "before leaving" find no part to play in the electronically recorded interview, and appear to be some form of gloss. As I have mentioned already, Morgan admitted calling at his grandmother's home and receiving a cigarette from the occupants but not actually entering the house, so that what is contained in the COPS entry that I have just quoted appears to be incorrect. If he was not there when the police came, he could not have heard the police knocking at the front door: therefore, there was no admission by Morgan that he had not heard the police knocking at the front door because he would not admit to being there at the relevant time in any event.
4. The COPS entry then continues thus: "The accused was arrested in order to prevent fabrication of evidence through consultation with her daughter, Tamara Fernando, and her partner Mr Wickey. Both those persons were spoken to, however also claimed that Russell Morgan had only just attended the premises prior to police arrival. Fernando provided a statement to that effect, however Wickey declined." Again, that entry contains a gloss. Tamara Fernando did make a statement which is recorded in the notebook of Senior Constable Stanley, which is exhibit N. That refers to searching the house for Russell Morgan at about 9am when police attended the scene and asked if he was there. In essence, she denied that Russell Morgan was at the house at Anthony Road at any time that the police called; that is, at either 9am or 9.30am. The statement says nothing about whether Russell Morgan turned up at the house to cadge a cigarette immediately prior to his being arrested so that the use of the adjective "that" preceding the word "effect" appears to be somewhat misleading.

The power to arrest

1. It is up to the defendant, the State of New South Wales, to justify the arrest of the plaintiff. The relevant version of s 99 of LEPRA is that set out in State of New South Wales v Robinson [2016] NSWCA 334; (2016) 93 NSWLR 280. Subsection (2) provides that: "A police officer may, without a warrant, arrest a person if the police officer suspects on reasonable grounds that a person had committed an offence under any Act or statutory instrument." The chapeau to subs (3) is this: "A police officer must not arrest a person for the purpose of taking proceedings for an offence against the person unless the police officer suspects on reasonable grounds that it is necessary to arrest the person to achieve one or more of the following purposes: …" There are six paragraphs under subs (3). In the current proceedings, the State relies upon par (e): "to prevent the fabrication of evidence in respect of the offence."

Hindering police?

1. The first question is was there an arguable case of hindering police? Section 246C provides this: "Any person who resists or hinders or incites any person to assault, resist or hinder a police officer in the execution of his or her duty shall be liable on conviction before the Local Court to imprisonment for 12 months or to a fine of 10 penalty units, or both." It is clear that to resist a police officer in the execution of his duty requires the use of force. Such is established by R v Galvin (No 2) [1961] VR 740. However, on the law currently available to me, the use of force is not necessarily to establish a hindering of a police officer in the execution of his or her duty. The relevant legal principle has been recently stated by Adams J (with whom Beazley JA and Howie J concurred) in Taufahema v The Queen [2006] NSWCCA 152. Commencing at [26] his Honour said: "[26] In Leonard v Morris (1975) 10 SASR 528, Bray CJ (at 531) described the actus reus of the offence established by s 546C as 'any active interference or obstruction which makes the duty of the police officer substantially more difficult of performance'. This passage was adopted as correct by Sully J in Worsley v Aitken & Anor (1990) 9 Petty Sessions Review 4074. Worsley, it was alleged, took hold of the police officer's jacket when the officer was endeavouring to assist another officer then in the course of arresting another person during a melee, saying to the officer 'leave him alone, he's done nothing'. The officer desisted from his attempt to assist with the arrest of the suspect and pushed Worsley away before returning to his task. Of course, Sully J was there considering an actual physical interference by the accused person with the arrest which the officer was about to effect. That is not the use of hinder upon which the Crown relies in this case. [27] The description of the actus reus of this offence given by Bray CJ in Leonard v Morris has been regarded, in my experience, as applicable in this State for decades and I would not be prepared to extend the offence any further by a wider use of the word 'hinder' than that which it has hitherto been understood to have. I am of the view that the actus reus of the offence created by s 546C is indeed that ascribed to it by Bray CJ in Leonard v Morris. It follows that the foundational offence upon which the Crown relied did not exist..."
2. In Leonard v Morris, the facts can be found commencing at the foot of p 536 of the report, and concluding towards the end of p 537. The interference there was entirely the use of words by the offender which delayed the police officer in the execution of his duty. In Jones v Daire (1983) 32 SASR 369 Zelling J found that the offence was committed by an intervention by a husband in his wife's being spoken to by a police officer for a traffic offence, the wife having been the driver of a motor vehicle. After being warned not to intervene in the conversation between the motorist and the police officer, the husband was arrested. His Honour held that to be a hindering of police.
3. The first New South Wales authority is Worsley v Aitken (1990) 9 Petty Sessions Review 4074, a decision of Sully J in which the hindering was telling a policeman stop trying to arrest another person and pulling on the policeman's jacket to try to make him desist from assisting the arrest of another person.
4. The verb "to hinder" is also used in s 315 of the Crimes Act 1900, which has a heading, "Hindering investigation etc". The chapeau to subs (1) provides that, "A person who does anything intending in any way to hinder" and then it refers to police investigations and the apprehension of another person who committed a serious indictable offence. That section was considered by Bellew J in R v Weston [2012] NSWSC 1498. His Honour sets out the facts commencing at [7], and commencing at [14] the following occurs: "[14] At some stage shortly after the deceased's murder, Comber left the offender's home. After leaving, and when he was evading police, Comber kept in contact with the offender by telephone. The offender assisted Comber by making small cash deposits into his bank account when he asked her to do so. [15] Police surveillance established that on 25 December 2010 Comber had returned to the offender's home to visit her. At a time when he was, to the knowledge of the police, inside the premises, police attended and enquired as to his whereabouts. The offender said to police on that occasion (in reference to Comber): 'I haven't seen him since October.' [16] It is that statement which is the gravamen of the offence committed by the offender." In other words, the hindering there was merely telling the police that the person standing for sentence had not seen the person of interest, Comber, since October since the time of the murder of a victim.
5. Words can clearly constitute a hindering of police. Here it is arguable that the actus reus was the denial by the plaintiff to Detective Sergeant Sharpe and Senior Constable Ryan at 9am that Russell Morgan was present in the house, and a further actus reus could be the same denial to Senior Constables Thomas and Stanley at 9.30am.

Consideration

1. The first consideration is whether Detective Sergeant Sharpe suspected that the plaintiff had committed an offence under the Crimes Act 1900. He did have that suspicion. He was advised by Sergeant Price that that could be sufficient to lay the charge. He was later dissuaded from that view by advice given to him by Senior Constable Way who had been involved in a case in which he had been advised that more than mere words were necessary.
2. The next question is whether there were reasonable grounds to base that suspicion. In my view, there were reasonable grounds. Firstly, there was the surveillance commencing at 8.45, and during that period of surveillance, Russell Morgan was not seen to enter the house. However, he was seen to leave. An inference to be drawn from that is that he was present in the house from 8.45 onwards. If that be so, then when the plaintiff denied the presence of Morgan at her home at 9am and also at 9.30am, she was hindering police in the execution of their duty.
3. There is no dispute that the plaintiff knew who the people were who were inquiring of the whereabouts of Russell Morgan. Detective Sergeant Sharpe was well known to the plaintiff. She knew his mother, who ran an opportunity shop in Tamworth. Sergeant Sharpe had known the plaintiff since at least 2003 when he had coached one of her grandsons in a rugby league competition in Tamworth. They had known each other for some considerable period of time. She knew that Detective Sergeant Sharpe was a police officer. She knew that Senior Constables Stanley and Thomas were police constables because they were performing general duties. They were uniformed police. Furthermore, all of the calls were about police business; that is, the execution of warrants for the arrest of Russell Morgan. I, therefore, accept that the State has established what it must establish under s 92(2) of LEPRA as it stood at the relevant time.
4. The remaining inquiry is whether Detective Sergeant Sharpe intended to arrest the plaintiff for the purpose of taking proceedings against her. That is his sworn evidence. That sworn evidence is consistent with his commencing the COPS entry at 11.46am prior to the plaintiff's arriving at the police station at 1.20pm. This was not, for example, the plaintiff turning up at the police station to enquire about her grandson's health and welfare, and the police seizing the opportunity of arresting her and placing her in custody as some form of "punishment" or "payback" for the fact that she had not cooperated with them earlier in the day. Necessary paperwork, being the COPS entry, had been commenced well prior to her attending at the police station. I, therefore, am prepared to accept, and do accept, the evidence of Detective Sergeant Sharpe that he intended to charge the plaintiff. That is, to commence proceedings against her, to bring her before the Local Court.
5. The next question is whether Detective Sergeant Sharpe suspected on reasonable grounds that it was necessary to arrest the plaintiff to prevent the fabrication of evidence in respect of the offence. The plaintiff's case, of course, was that which she told Detective Sergeant Sharpe at the scene of the arrest that the "he has only just turned up and left". That was what she reiterated to Detective Sergeant Sharpe shortly after he arrested her as set out in the COPS entry: "She denied lying to police, asserting that her grandson had arrived at her house, got a smoke and then left, shortly before his arrest." Evidence to support the plaintiff in that regard could obviously be called from Russell Morgan, but there might be a suspicion that his evidence would be unreliable. Other evidence which the plaintiff could call would be evidence from her de facto husband, Mr Wickey, and from her daughter, Tamara Fernando, who were in the house at the relevant time.
6. The evidence of Detective Sergeant Sharpe is that he feared that had she been permitted to return to the house and speak with her partner and her daughter, they might give evidence supporting what she said, that her presence at the house could influence them in any evidence that they might give. Hence he elected to arrest her in order that two potential witnesses, Tamara Fernando and Robert Wickey, could be interviewed and their versions taken untainted by any input that the plaintiff might make.
7. The plaintiff approached this position of Detective Sergeant Sharpe cynically, but a momentary pause would indicate that it could have been a fair thing to do in that if Robert Wickey and/or Tamara Fernando gave evidence consistent with what the plaintiff was saying and what was being said by Russell Morgan, then that would be grounds for not proceeding further with the charge because it could not be suggested that any evidence either of the two might give was tainted by some approach by the plaintiff. In any event, Robert Wickey refused to give a statement to the police, but Tamara Fernando did make a statement in support of the plaintiff. However, it is clear that the police were at Anthony Road when the plaintiff was taken ill and, therefore, Detective Sergeant Sharpe elected to discharge the plaintiff from police custody so that she could be taken to hospital.
8. The plaintiff says that there were no reasonable grounds to suspect that the plaintiff could fabricate evidence relevant to the offence that Detective Sergeant Sharpe was considering charging. However, there is a pattern of conduct, if one approaches the matter from the police point of view, of some collusion at 95 Anthony Road. It appears odd that the plaintiff should have walked to the front of her house and looked up and down the street, and then more odd that Tamara Fernando should walk to the front of the house and look up and down the street when it might be thought they were waiting to see if it was "safe" for Russell Morgan to leave 95 Anthony Road. In other words, that might lead to a rational inference that there was some collusion between family members. If family members were prepared to collude to assist Russell Morgan, then they could well be prepared to collude to assist the plaintiff.
9. Human nature cannot be ignored. Close family ties cannot be ignored. Affection between people cannot be ignored. Judges are sworn to do right without regard to either affection or ill-will, without being in favour of one person or against another, but unfortunately many people in our society are motivated by questions of affection and questions of malice. It might be thought to be cynical, but bearing in mind what was going on in trying to find Russell Morgan, what attempts had been made to ascertain his whereabouts, and the fact of the close relationship between the plaintiff and Russell Morgan, I accept that Detective Sergeant Sharpe suspected on reasonable grounds that it was necessary to arrest the plaintiff in order to prevent her interfering with any evidence that might eventually be given one way or the other by Robert Wickey and/or Tamara Fernando.
10. The question of the meaning of fabricating evidence was considered by Latham J and in DPP v Aydogan (2006) 67 NSWLR 727; [2006] NSWSC 558. Essentially the fabricating evidence can include persuading another to make a statement which is false in any material particular. Such is the effect of the construction of the terminology given by her Honour and such is common sense. It is consistent with the primary meaning of the word "fabricate" which is based on the Latin noun "faber": an artisan, metalsmith or craftsman.
11. When the reason to keep her in custody had ceased, that is, the police were interviewing Tamara Fernando and Robert Wickey, she was released from custody, prompted probably more urgently than it might otherwise have been by the fact that the plaintiff was taken ill. It follows that the arrest of the plaintiff was lawful. It follows that the plaintiff's action for damages for false imprisonment must fail. There is no suggestion that the period that she was in custody was excessive or in any way prolonged as has been argued in other cases.

Damages

1. Lest the matter go further, I should say something about damages. The plaintiff claims both compensatory damages, aggravated damages and exemplary damages. This could hardly be a case for the award of exemplary or punitive damages. Recently McColl JA said in State of New South Wales v Smith [2017] NSWCA 194 this: "[168] The primary judge concluded that an award of exemplary damages was appropriate because of the 'contumelious nature of the initial and planned disregard of the plaintiff's rights that were infringed on grounds of the application of a police directive that was interpreted to require an arrest at the outset', that this resulted from a police training issue which resulted in the officers being unaware of the s 89, Domestic and Personal Violence Act alternative to arrest. [169] In my view, the respondent did not establish that Senior Constable Tye's ignorance of a s 89 alternative course of action represented a conscious wrongdoing in contumelious disregard of the respondent's rights, nor that it was the product of a police training issue as opposed to being the product of ordinary human fallibility." Much is explained by ordinary human fallibility. Much is explained by human negligence. It is very common these days for people to ascribe misfortunes which befall them to some form of conspiracy or deliberate malice. However, more often it is merely negligence which leads to the problem being complained of. The evidence I have heard does not suggest to me any conscious wrongdoing on the part of Detective Sergeant Sharpe, nor any contumelious disregard of any of the plaintiff's rights.
2. The issue of the award of aggravated damages as distinct from ordinary compensatory damages is an issue much debated in the case law. Suffice it to say that were the plaintiff to have been successful, I would have awarded her what I would consider to be appropriate compensatory damages leaving nothing further to be awarded by way of aggravated damages because of some thought that the damages ought be aggravated.
3. Here the lady was 62 years old. She was an elder in our society. She was an Elder in her Aboriginal society. She was the mother of ten, a wife, the grandmother of many. She was entitled to be respected. She was not enjoying good health, and although that may not have been known to Detective Sergeant Sharpe, it is clear that the plaintiff told the custody manager, Senior Constable Bavister, that she was on medication for diabetes, osteoarthritis, neural damage to a left leg, a heart condition which led to a "heart attack" in March 2001 and on a number of medications which she was unable to remember. She also told Senior Constable Bavister that because of her heart condition, stents were inserted into her body in March 2011, probably to keep open her coronary arteries.
4. The plaintiff, and I say so very respectfully, appeared to me to be older than her chronological age, perhaps representing the hard lived life of a mother of ten and a grandmother of many, a lady who had not only to care for her own children but also for her grandchildren. She behaved appropriately in custody. She was asked whether she wished to sit in the dock or in a cell. She said she did not care, and she was placed in a cell. She had previously sat in docks in police stations on perhaps three earlier occasions, and at least once in 2006 in a dock at Tamworth. There is an advantage to being in a police cell in that there is a bed on which one can lay down, or one can sit on. In a dock, one can only sit. The police cell also has a lavatory, so that if the plaintiff needed to use that convenience, she could. A dock does not have such a convenience. Indeed, in Rook v State of New South Wales No 3 [2015] NSWDC 154; (2015) DCLR(NSW) 204, one of the complaints made by the plaintiff was the fact that he was not permitted to use a lavatory because he was required to sit in the dock.
5. It is clear that the law requires that the quantum of damages depends largely on the initial shock of the arrest rather than its length. However, here the length of the arrest was relatively short, and the plaintiff did not suffer the humiliation suffered by many of being arrested at his or her home in the face of his or her family members, being taken to away to be observed by neighbours in a police vehicle to a police station and then placed in a dock or cell at a police station. The only persons who could have witnessed her initial arrest were, in fact, those working in the police station. There is no evidence of anybody else being present at the front counter of the Tamworth Police Station at 1.20pm on 22 May 2013.
6. Doing the best I can, I would have awarded, had the plaintiff succeeded, a sum of $2,500, including any entitlement of the plaintiff to an award of interest on that sum thereafter, provided some provision of the Civil Liability Act 2002 did not prevent such an award.

Orders

1. I have inquired of counsel for the parties whether at 5.52pm any further reasons for judgment are required. I am told that none is so required. For those reasons I give verdict to judgment for the defendant against the plaintiff.
2. I order the plaintiff to pay the defendant's costs on the ordinary basis until 27 April 2017, and thereafter on an indemnity basis.

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