V. Lydiard Solicitor for First and Defendants : Morris Fletcher and Cross Counsel for Third Defendant : B.F. Martin QC Solicitor for Third Defendant: Solicitor for NT ORDER Total award of compensatory, aggravated and exemplary damages will be $32,000.00. 2. There will be judgment against the first and second defendants for the sum of $32,000-00 with costs. There will be judgment for the third defendant against the plaintiff with costs. 3. Otherwise reserve the question of the liability of the first and second defendants to pay such costs as are found to be due by the plaintiff to the third defendant and the question of any reserved costs. JUDGE1 Action for damages, including aggravated and exemplary damages for wrongful arrest, false imprisonment, assault and battery. First and second defendants being police in the employ of the third defendant. The third defendant sued as being vicariously liable for torts of the first and second defendants. First and second defendants deny all torts. Third defendant denies vicarious liability in the event of first and second defendants being held liable. 2. On 24 April 1982 the plaintiff Gary Mark Lackersteen was living with a Mr Peter Compolides in a shack at Berry Springs Road. The shack had been constructed by himself and Mr Compolides after they had purchased the block of land. The plaintiff had arrived in the Northern Territory in September 1981. Prior to that he and Compolides had been working in Karratha Western Australia. In April 1982 the plaintiff was 24 years old. The plaintiff is now proprietor with Compolides of a road-house, caravan park and motor repair place in Kynuna in Queensland. 3. It is fair to say that nothing has been said to suggest that since April 1982 the plaintiff had not led a respectable life. 4. In April 1982 the plaintiff was neither a respectable character nor a desirable one. On his own description he was a liar, a forger, a confidence man and a thief. Many of the goods in the Berry Springs Road property were stolen by himself and Compolides. He makes no bones about this. When he was being cross-examined about his activities in the early part of 1982 it was put to him "You were running around the place at night stealing other people's property too, weren't you?" his answer was "Yes". The area in which he conducted these activities has a number of small dwellings or caravans used by Darwin residents as holiday or recreation places or places in which they can get out in the bush and enjoy themselves in their own way. Necessarily these places are left unattended and undoubtedly the feelings of people who return to such places to find them burgled would be extremely hostile towards those who had carried out such activity. One of the witnesses who was called before this Court had his caravan and many of the goods in it stolen. He was an extremely angry man. He cannot be blamed for that and one would think that his reaction reflected the feelings of most of the people from whom goods had been stolen. It is said by Mr Pauling QC who appeared for the plaintiff that persons who act like the plaintiff, scurrying around the bush and stealing from unoccupied dwellings are known as "cockroaches". It is by no means an inapt description. 5. At Karratha the plaintiff and Compolides had acquired certain power tools which the plaintiff alleged he had purchased with no knowledge that they were stolen. In his evidence he varied that to say that when he bought them he probably had a suspicion that they were stolen. He admitted that what he had previously said in a written statement, namely that he had bought them with no knowledge that they were stolen, was a lie. He denied at that stage any knowledge of one item, a Tirfor winch, which he had in fact in his possession. 6. After arriving in the Territory the plaintiff and Compolides were looking for land which they eventually purchased at Berry Springs. They built some sort of shack on the property. They needed various household items for the shack. They stole them. 7. In late March 1982 the plaintiff received information that Police were making some enquiries about the property on the block owned by himself and Compolides. After consulting a solicitor the plaintiff voluntarily went to the Police Headquarters and made two statements. He made those statements to the first and second defendants, Detective Jones and Detective Smith who were making the investigations. In the first statement he was asked about certain items stolen from Lot 26 Elizabeth Valley Road. The items mentioned were a gold medallion, a chain saw, a Singer sewing machine, a set of telescopic sights, an electric griller and assorted pot plants and linen. He admitted that he had taken the telescopic sight and the electric griller. He said he had no knowledge of any other items. He was then asked about a pair of binoculars also taken from the property and he replied that he had no knowledge of the binoculars either. He said that he had entered the property at Elizabeth Valley Road because it looked deserted. He said that he walked into the premises and found a mess. He said he believed at the time that nobody was living there. He said he picked up the rifle sights on the floor and they were broken and he picked up the griller which he then believed to be a gas cooker. He said that he just walked into the premises that the doors were wide open. He was again specifically asked whether he had removed any other items from the place other than the griller and the telescopic sights and he said, "No". He said he took the stove because he needed it and the telescopic sight because he wanted it to plot a fence line. He said that the grass surrounding the house was low but did not appear to have been recently slashed or mown and he denied that the house was in fact in a neat and tidy condition with kept gardens. He agreed that he did not have permission to enter the residence or take the stove and telescopic sight. This Record of Interview appears as Exhibit "2". He remained in the Police Station, and a short time later took part in a second Record of Interview. This second Record of Interview is Exhibit "M" and a copy is also in evidence as Exhibit "3". On this occasion he was asked about the construction of the dwelling on the block owned by himself and Compolides. He said that the building was constructed from concrete, timber and iron. He said that he and Compolides had obtained much of the iron from the Humpty Doo tip, but that the new iron and the concrete and timber had been purchased by himself and Compolides. He was then asked about a ride-on mower on the premises owned by himself and Compolides. He gave a story about purchasing that mower from a person called Jeff at the Noonamah Hotel for $300-00. The story was totally false. He had already admitted being unemployed for some months and he was asked how he came to have so much money in his possession at the time. He said that it was savings from the previous employment. When it was put to him that the lawn mower was stolen he said he had no knowledge of this. He was then questioned about a generator which he admitted to have owned but said that he had left it at the Berry Springs tip because it had been unsatisfactory. Asked how he obtained the generator he said that he had purchased it for $350-00 after he had placed an advertisement on the door of the Noonamah Store. He described the owner in some detail and even produced a "receipt" (Exhibit 1). That "receipt" purported to come from the alleged owner a "Bill Paterson". This was all nonsense and the plaintiff had written the receipt himself. He admitted this in the evidence before me. This was not the only time the plaintiff had forged documents. He had, some little time before, sold a car to a dealer, justifying the price with a forged receipt purporting to come from the owner. 8. The plaintiff was then asked about a spirit level and said that there could have been a similar one at the lot but that he could not remember whether he had ever purchased a spirit level. A spirit level was then shown to him and his attention was directed to the fact that the letters "PH" were on the end of the level. At that stage he declined to answer further questions. He declined to sign the Record of Interview. He had signed the earlier Record. I will examine later the basis of his reasons for not signing the second Record of Interview. At the conclusion of the second interview he was arrested and charged with theft of the items which he had admitted taking. He was granted bail and left the Police Station. 9. On 10 April he appeared at the Darwin Police Station and participated in two further Records of Interview. In this case the officers conducting the interview were the second defendant Smith and Detective Sergeant Jennings. In the first of these interviews (which is Exhibit No. 4) he told the Police that for some part of the time before the dwelling was erected on the block owned by himself and Compolides, he and Compolides had lived in a caravan on the block. He admitted that he and Compolides had taken the caravan from another block on Fred's Pass Road via Humpty Doo. He said that their intention was to use the caravan for a couple of weeks and return it. He said that he and Compolides had driven into the block and examined the caravan and that it was apparent that nobody had been there for quite a long time because the van was in an appalling condition. He said that they had looked for the owner to see if they could borrow the caravan and when they were unable to locate the owner they had a quick look inside the caravan and believed that it would be "OK to borrow it". He reiterated that he and Compolides intended to borrow it only. He said that when the caravan was towed to their block they cleaned it and fixed up one of the bedroom windows. They asked a female friend to repaint the stripes on the outside of the caravan. He denied that that was for the purpose of disguising it. He said they lived in it for two or three weeks and then took the caravan back. He said that later, and not at the time that they took the caravan, he came back and took a sit-on lawn mower and a generator. He agreed that nobody had given him permission to take the caravan or alter it or use it. Shortly after this first interview he participated in a second Record of Interview that same day. This is Exhibit 5. On this occasion he admitted taking from the block at Fred's Pass Road a generator as well as the ride-on lawn mower. He said that the generator was extensively damaged and ultimately he took it down to the Berry Springs tip. He agreed he had taken it without permission. 10. The admissions made on 10 April made it abundantly clear that the stories he told on 1 April about how he acquired the lawn mower and the generator were plain lies. Furthermore he was, I believe, lying and continued to lie in evidence before me as to the state of premises at Elizabeth Valley Road which he described as a "mess", and the state of the caravan and the block at Fred's Pass Road. He persisted in saying that the caravan was in appalling condition and the condition of the surroundings indicated that there had not been anybody at the property for a long time. Those statements are directly contradicted by the evidence of the two owners of the properties. Mr Lawrence was the owner of the property at Elizabeth Valley Road. He says that he would travel there at least three times per week and the house was neat and tidy. When he arrived there on about 26 September 1981 his suspicion was aroused by the fact that there were no tyre tracks leading into the building because his own tyre tracks at least should have been there. He found brushing marks on the driveway and a broken off tree branch on the side of the road. He then entered the dwelling and found that the side door had been forced, that the place had been turned over and a number of items were missing including a sewing machine, binoculars, chain saw, electric grill, various gas bottles, a St Christopher medal and various other household items. (See pages 785-89). 11. Mr Howell was the owner of the property on Fred's Pass Road. He said that the property consisted of about 15 acres and that at the relevant time it had all been mowed. He said that he went there every weekend. He said that when he arrived there in late 1981 everything was gone, the caravan, the lawn mower, a couple of generators, building gear, and corrugated iron stacked beside the caravan. The only thing wrong with the caravan itself, he said, was that it had one broken window. He said there was a refrigerator, a stove, clothes, food and domestic appliances in the caravan. There had been a ride-on lawn mower in the premises and 2 generators and sundry tools. Among these tools was a spirit level which had his initials "PH" scratched on it. Mr Howell identified that spirit level in Court. That was the one taken by the Police from the property owned by the plaintiff and Compolides. 12. I have no doubt of the truthfulness of both Mr Lawrence and Mr Howell. It is, I suppose, possible that before the plaintiff and Compolides came to these premises, someone else had broken and entered and stolen some of the items which were neither found on the premises owned by the plaintiff and Compolides nor admitted as having been taken by them. That still does not explain the plaintiff's assertions that both these properties looked unused and unoccupied. I must accept that not only did he tell some lies in his Record of Interview which he now admits to be lies, but that he told other lies about the state of the two properties; in which lies he still persists. 13. In examining the evidence of the plaintiff of certain events which he alleged took place on 24 April 1982 I have therefore kept constantly in my mind that he is a self-confessed thief, forger, confidence man and a person who is prepared to make up false stories to explain his possession of stolen goods, and a person who has even told lies in the witness box about the circumstances in which certain goods came into his possession. These are grave and weighty matters and the evidence of the plaintiff must be treated with the greatest caution. Furthermore, he has failed, on what seems to me a flimsy excuse, to call at least one witness who, while not present during the happening of the major part of the events of 24 April, was in a position to corroborate certain important parts of the plaintiff's evidence of the occurrences of that day. 14. Despite all this, and giving careful attention to the plaintiff's demeanour in the witness box and his performance under a most thorough and competent cross-examination, I have no doubt that what the plaintiff tells me happened on 24 April 1982 is substantially correct. Unfortunately, in this case, the plaintiff has no monopoly on lying. 15. This is the story which the plaintiff tells and which I accept as substantially correct. On the morning of 24 April 1982 he and Compolides and another person called Alan Withers left their block of land for a fishing trip. They were driving in a white utility owned by the plaintiff. Shortly after they left they were intercepted by a Police car. They stopped, and the first and second defendants got out of the Police car. The defendant Jones approached the plaintiff at the passenger side window and said "Where do you think you fucking pair are going?". The plaintiff replied "We're going fishing". Jones replied "You pair of fucking cockroaches are coming with us". When asked "Why" he said that some con-men had tried to "con" a bloke to buy a car. This, I think, was a reference well understood by the plaintiff who had, some time earlier, sold a car to a used car salesman for the sum of $4,500-00. In fact that car had been purchased by the plaintiff and Compolides for $1,400-00 although the plaintiff says that it had been repaired since their purchase. They had told the salesman that they had purchased it for $4,500-00 and when the salesman asked for proof of that the plaintiff admits that he went away and wrote out a receipt purporting to be a receipt from the previous owner for the sale of the car to the plaintiff and Compolides. The receipt was, of course, both false and a forgery. 16. According to the plaintiff the Police, having asked them to come, he and Compolides felt they had no option and accompanied the Police in the Police car. I am satisfied that the Police were extremely forceful in their approach to the plaintiff and Compolides and made it plain that they were in custody. I am also satisfied that they were not told that they were under arrest. The plaintiff and Compolides were driven to the Police Station at Mitchell Street and placed in separate interview rooms. 17. The plaintiff was left in one interview room for about three-quarters of an hour. The defendant Jones then came in and said to the plaintiff "Get around here in front of me". The plaintiff says that he said this in a very abrupt manner. The plaintiff pulled the chair around and sat in front of him. Jones then asked a question which the plaintiff cannot now remember and the plaintiff says that he, the plaintiff, answered "I don't wish to answer any questions". The defendant Smith then said "Don't give me that fucking bullshit. I'll start bouncing you off these walls, boy". The plaintiff says the defendant Jones then started to ask questions about the theft of property from the dwelling at Elizabeth River and that he, the plaintiff, started to answer them. Jones told the plaintiff that he had read a letter from the plaintiff's mother which Jones had found on the premises occupied by the plaintiff and Compolides during the execution of a search warrant. The letter disclosed that a sewing machine had been sent by the plaintiff to his mother in Sydney. That was in fact the sewing machine which was stolen by the plaintiff from the Elizabeth Valley property. The defendant Jones told the plaintiff that if the plaintiff got the sewing machine back the Police would not go around to plaintiff's mother and interview her. But Jones said also that the plaintiff had to show them where the chain saw was. The plaintiff told the defendant Jones that the chain saw was hidden in the bush. 18. To explain this requires a short digression. The plaintiff says that a week before i.e., on 17 April, he had left his premises driving a truck with the chain saw in the back intending to take it to the Police Station. On the way he was diverted by an incident which, though bizarre, seems to be undoubtedly correct. The plaintiff was taking a short cut on what appears to have been on all accounts a road used infrequently. He observed a Kombi van, and upon investigation, discovered a dead man in the van. The plaintiff reported to the Police by telephoning from the Noonamah store. Not unnaturally he was asked to wait for the Police and while doing so he says he disposed of the chain saw by hiding it in some grass near the 40 kilometre post on the main roadway into Darwin. The plaintiff's explanation was that he did not want to be questioned by the Police about this chain saw, at least until he had taken it into the station. He had some idea, which he says emanated from the defendant Smith, that he could otherwise be charged twice in relation to the chain saw. Although the matter is by no means free from doubt I am satisfied on the balance of probabilities that the plaintiff did hide the chain saw in this fashion. 19. I return to the narrative. When the defendant Jones told the plaintiff that part of the bargain was that he must show them where the chain saw was the plaintiff explained that it was hidden at the 40 kilometre post. Jones then asked the plaintiff about certain other property and the plaintiff said that that property had been taken away and that he would not tell Jones where it was. In evidence before me he gave a reason for this attitude which seemed somewhat strange; and prompted by a mistaken belief. But I am satisfied that although the plaintiff had that mistaken belief he was sincerely convinced of the truth of that belief. On the second interview (Exhibit "3" and Exhibit "M") of 1 April 1982 the plaintiff had been asked questions in relation to a ride-on lawn mower and a generator. At that stage he had given false answers. He was then asked about a spirit level that had been taken from Block 1762 under a search warrant. He agreed that there was a spirit level similar to that at the block. The initials "PH" on the spirit level were then shown to him. At that stage the plaintiff refused to answer any further questions. Now I am satisfied both by the fact that the plaintiff abruptly stopped answering questions at that stage and by the quite insistent way in which the plaintiff gave his evidence about this later that the plaintiff did at that time form the impression that the Police were trying to frame him; and that they had done this by scratching initials on a spirit level which they had found at the premises. The plaintiff believed that the spirit level did in fact belong to Compolides and had been given to Compolides by Compolides' brother John. Yet the spirit level clearly did belong to the witness Peter Edwin Howell who gave evidence that he himself had scratched those initials on it; and the Police were not endeavouring to "frame" the plaintiff. Whether Compolides had taken the level without the plaintiff's knowledge or whether Compolides did in fact have another spirit level of the same make or whether the plaintiff somehow believed that this level was at all times the property of Compolides it is difficult to say. But I am satisfied that, for some reason or other and on erroneous grounds, the plaintiff genuinely believed that the Police had scratched initials on a spirit level which was really the property of Compolides, and were now falsely trying to allege that the spirit level had been stolen by the plaintiff from Mr Howell. The plaintiff therefore stopped answering questions and later complained to the defendant Smith about what he saw as a deceptive action by the Police. Mr Howell certainly concedes that that particular brand of spirit level was quite a common brand. I note also that he says that he had three spirit levels. Much has been made of this part of the plaintiff's evidence and it is put that he was deliberately lying about this. Quite apart from the fact that his demeanour does not suggest to me that he was lying, there seems little reason for him to do so. It was no advantage to him to tell this sort of story and he does not make any similar allegations about the Police framing him on any of the other matters. 20. Jones then asked the plaintiff about a Tirfor winch which was part of the property the plaintiff had in fact stolen or illegally obtained or received in Karratha. He told Jones that that too was out in the bush, although I am satisfied that neither he nor Jones took it that he was suggesting that the winch was at the same place where the chain saw was. 21. There now took place another strange series of events, much of which, however, is conceded by the defendants as having actually happened. Indeed it is only a matter of degree as to how far one accepts the plaintiff's version; for much of it runs with the version given by the defendants and the two witnesses called by them. 22. There were present at the Police Station that day two members of the New South Wales Police Force, Detective Sergeant Davidson and Detective Sergeant Grady. They had come to the Territory to extradite a man charged in Sydney with conspiracy to murder and two counts of solicit to murder. This man who had absconded from bail and was believed to be in the Northern Territory. The defendant Jones had been deputed to look after the living arrangements for these Sydney detectives while they were in Darwin so he was known to them. At the Police Station Jones says he mentioned to the New South Wales Police the names of the persons he was presently interviewing. Davidson said that he knew Compolides as an associate of a man called Flaherty who had been injured in a car bombing. He says he thought Compolides might have some information. Davidson says he therefore asked and was granted permission to interview Compolides; which he did for about 10 minutes. At that time he said that the name Lackersteen meant nothing to him but that when he subsequently saw Lackersteen he recognised him as somebody he, Davidson, had seen in company with Compolides in Sydney. He therefore saw Lackersteen, again with permission, and asked him if he knew certain persons who he named. Lackersteen denied knowledge of any of these persons. Now he says he was with Lackersteen only a few minutes (p 368). He says (p 370) "I only spoke to Mr Lackersteen and Mr Compolides really with the intention that they might have been prospective witnesses in the Flaherty matters". What he admits saying to Lackersteen is, "We were there to extradite a man in regard to a conspiracy to murder charge". He says there was some conversation then as to their being in the Breaking Squad. 23. Sergeant Grady gave evidence that he was present with Davidson at the time that Davidson interviewed Lackersteen. He says that after some preliminary enquiry in which Davidson told the plaintiff they were from the CIB in Sydney and the plaintiff asked whether they were from the Motor Squad and Davidson said they were from the Breaking Squad. Davidson then said something like this:- "We're up here to take a man back to Sydney who is wanted for a solicit to murder but we are informed by the local Police here that you are an associate of the man Compolides. We've just had a talk to him about a bombing or car bombing incident in Sydney where a man named Flaherty had his leg and a portion of his hand blown off and his little girl blinded. Do you know the man Gary Flaherty?". Davidson says the plaintiff either said no or shook his head. Davidson then asked him about certain named persons and the plaintiff said he did not know them. 24. Now the plaintiff says that he was told by these Police that they were going to charge him with conspiracy to murder. In evidence-in-chief (p 360) Davidson says that he said to Lackersteen "We're up here to extradite a man for conspiracy to murder and we've spoken to the two Darwin Police who inform us that they suspect you've been stealing motor cars from Sydney bringing them up to the Northern Territory and reselling them". He says that the plaintiff replied with words to the effect "Yes, they mentioned that to me but it's not right. I don't have any worries". 25. Now even on the version given by the two New South Wales Police the situation was most unusual. They learn, by accident, that two men are being questioned about various thefts in the Darwin area. One of them recognises the name of one of these persons and believes he may have some information in relation to a crime in Sydney because this person, (Compolides), apparently knew a man Flaherty who was the victim of a bombing attack. It is not suggested that either Compolides or the plaintiff was involved, at the most the suggestion is that Compolides knew Flaherty. The Sydney detectives were not at this point enquiring into that situation; they were in the Territory on other matters. Yet they felt the matter so urgent that they must immediately speak to Compolides and then to the plaintiff while those two were being interviewed about totally unrelated matters. And their questioning of the plaintiff occurred at a point where the plaintiff was not being very co-operative about where some of the stolen property was. Why were the Sydney Police at such pains to tell the plaintiff that they were up here to extradite a man for conspiracy to murder? They were certainly not questioning him about that. On their own version the questioning look only a few minutes. Yet in that short time they tell him not only of one case relating to conspiracy to murder but of another case in which he is given some lurid details (see p 360). Then he is asked certain names and that is the end of the interview. 26. Now here is a man, the plaintiff, already in a stressful situation. He has been abused by the Police, and threatened, and prior to that left alone in an interview room for some time. Then two strange New South Wales Police come into the room and tell him that they are here to extradite a man for conspiracy to murder and give him details about another murder. I am prepared to accept that these Police did not tell the plaintiff in so many words that they intended to extradite him to Sydney for conspiracy to murder. I am, however, equally prepared to accept that the plaintiff might well have got the impression that that was what they were saying. I am convinced that the real purpose of this intrusion was as a sort of friendly gesture to the defendant Jones to give the plaintiff a fright and, in colloquial terms, "soften him up". Everyone agrees that the expression "conspiracy to murder" was certainly used. I have no doubt that the New South Wales Police knew that their proceedings were irregular and the way in which they introduced themselves, whatever the precise terms they used, was calculated to frighten the plaintiff. The plaintiff in his statement of 4 May 1982 (erroneously dated on the first page 4 April 1982) states positively that these Detectives told him he would be charged with conspiracy to murder and also accessory to murder. That was a statement made by the plaintiff ten days after the interview and I am prepared to accept that a vivid impression remained with him at that time. 27. Some criticism was made of the Sydney detectives inquiring through Police sources but long after these events, what was known, if anything, of Compolides and the plaintiff. They admit to doing this as a favour to the defendants and, in the circumstances, it is understandable, and I would not censure them for that. Nevertheless it indicates an equally understandable partisanship, that is, the desire to help the defendants by frightening the plaintiff and making him more malleable to answering questions. 28. The defendant Jones returned after this questioning and enquired of the plaintiff what illness it was that Compolides had. The plaintiff said he thought it was some sort of incurable disease and said to Jones "I wouldn't go punching him in the stomach. You might find him dead on the floor". The plaintiff says the defendant Jones answered "That's too bad because he already has". Again I am satisfied that something like that was said perhaps principally to frighten the plaintiff. Subsequently the defendant Jones said to the plaintiff "You're coming with us". The plaintiff asked "Where" and Jones replied "To get the chain saw". I emphasise that in my view the plaintiff had not been told he was under arrest, had not been cautioned and had not been charged. The evidence of the defendants on this aspect is conflicting and unreliable. 29. By answers to interrogatories 19(a) and (b) (Smith) and 20(a) and (b) (Jones) the defendants swear that at the time the plaintiff was taken away from the Darwin Police Station he was not under arrest but he was in custody. In his interview with Chief Inspector Pope on 20 May 1982 the first defendant said he arrested the plaintiff just before they went out to Noonamah, apparently just before they got into the car. (Exhibit "H" p 195, 193, 185). However the first defendant maintained that the plaintiff was, earlier, "Technically under arrest" (Exhibit "H" p 194). The charges were put to him by the second defendant according to the first defendant in his interview with Pope. (Exhibit "H" pp 195-194). "POPE : What charge had you told him he was going to be charged with? JONES : If, we at that particular stage we were in on several, he was in on several different matters which I had told him

that with the false pretences in regards to the sale of a vehicle. The varying number plates on vehicles which he pulled up from down south, and the vehicle which he sold. POPE : You told him this? JONES : Smithie told him yeah.". Later the first defendant says that during the afternoon he, the first defendant, charged the plaintiff with unlawful possession of a Tirfor winch. (Exhibit "H" p 191). Yet at p 189 of Exhibit "H" the first defendant says that when they left the Darwin Police Station to go to Noonamah the plaintiff was under arrest on suspicion of unlawful possession of a Tirfor winch. (See also p 199). 30. The defendant Smith in his interview with Chief Inspector Pope on 20 May 1982 does not say that he, Smith, told the plaintiff he was going to be charged and what the charges were. Defendant Smith says the plaintiff before they went to Noonamah was placed under arrest by Jones for unlawful possession of a Tirfor winch. (Exhibit "J" p 129) - although the plaintiff at this stage had not admitted to having had possession of a Tirfor winch. (Exhibit "J" p 128, also p 111). Defendant Smith says that when he and defendant Jones first intercepted the plaintiff and the others in the car on 24 April 1982 he and Jones would have arrested them on suspicion if they had declined to come. Asked by Pope "Suspicion of what?", the defendant Smith replied "Of the offences which I mentioned a while ago". (Exhibit "J" p 146). These offences were theft of sewing machine, Tirfor winch and unlawful use of number plates on a vehicle and false pretences. (Exhibit "J" p 147). Defendant Smith however admitted they had no evidence about the sewing machine (p 146) but would have arrested on false pretences (p 145). 31. The plaintiff and the defendants Jones and Smith then got into a Police car. They travelled down the Stuart Highway and the plaintiff observed the speedo at 120 kilometres per hour which continued up to Noonamah. The plaintiff said that he noticed a vibration in the vehicle; and that becomes of significance later. The plaintiff had promised the defendants that he would show them where the chain saw was hidden so the plaintiff and defendants travelled along the Stuart Highway to Noonamah. They passed the forty kilometre marker and the plaintiff told them they had gone too far; so the car was turned around and pulled off the road and parked near that marker. The defendant Jones told the plaintiff to go and get the chain saw. The plaintiff walked over and started looking for it. He could not find it and he was joined by the defendants. He was still unable to find it. There are three possibilities arising out of that. Firstly, the plaintiff had never put the chain saw there. Secondly, the plaintiff had hidden the chain saw in the grass and was unable to find it at least for the short period that they were searching. Thirdly, the plaintiff had put the chain saw in the grass in such a position where it could have been seen by a passerby and taken by him. The defendants obviously assumed the first of those alternatives and from their point of view it was not unreasonable of them to assume so. From their point of view the plaintiff had told them lies on other occasions and this was just another example. From an objective point of view, however, I consider the second or third alternatives are more likely. There was no reason for the plaintiff to say that he had hidden the chain saw in the grass at Noonamah if he had not done so. He had already refused to reveal the whereabouts of certain other items and there was no reason for him to tell a particular lie about this one. Nor was there any reason for him to make up a complicated lie in describing the circumstances in which he had hidden the chain saw. I accept that he had in fact hidden the chain saw on 17 April and his inability to find it on 24 April was due either to the fact that he had hidden it in a slightly different position from where he was looking or that a passerby had discovered it and taken it. It may well be that the undergrowth at this stage was not very thick. But even if one were to accept the fact that the plaintiff was deliberately deceiving the Police, that behaviour in no way justified the Police treating him as I find they did on that day. 32. Up to this point I am prepared to have some sympathy with the defendants. It was not unreasonable for them to assume that the plaintiff had taken them on a wild goose chase. Police are only human and their perception was that a rather undesirable and unpleasant and somewhat "cocky" character who had lied to them previously had now taken them 40 kilometres out of Darwin and had them tramping about in grass and bushes in the heat of a Darwin day and finding nothing. I am prepared to accept that they genuinely thought that the plaintiff was making a fool of them. That situation may well have warranted a certain amount of abuse and bad language which, even if it had exceeded the standard of behaviour normally expected of a policeman, could have been excused by these circumstances. But in no sense did it excuse what I find actually happened. Even accepting the Police evidence, at this time the plaintiff was not being aggressive, nor was he attacking the Police physically, nor was he goading or insulting them. Had the defendant Jones done no more at this stage than say to the plaintiff "You're a fucking little liar" which the plaintiff says Jones did say, one might not have been too concerned; but I am satisfied that not only did the defendant Jones lose his temper but from that time onwards he commenced to manhandle the plaintiff. His first action in this direction was to punch the plaintiff very hard in the top of the chest. He then told the plaintiff to get into the car using the expression "Get in the fucking car you little cunt; get in the car". He then had a conversation with Smith and they all got into the car, the car was turned round and headed south and ultimately into the Strauss airstrip. There the car was pulled up at a clearing. This clearing was out of sight of the roadway and was normally unused by cars and the indications were that it would be unlikely that anyone else would be there. I accept the evidence of the plaintiff that the defendants drove to this clearing and I reject the evidence of the defendants that they did so at the instigation of the plaintiff or that the plaintiff had admitted that he had not left the chain saw near the 40 kilometre mark but had left it somewhere in this clearing. I am in no doubt that the purpose of taking the plaintiff to this deserted part off the highway was because the defendants had decided to administer some chastisement to the plaintiff because of the trouble they thought he had caused them. Mixed with the resentment which they felt towards the plaintiff because of his supposed deception of them on this day, there was, I believe, a certain amount of self-righteousness. They despised the plaintiff. No doubt they had been influenced by the indignation of people such as the witnesses Lawrence and Hickey and no doubt they felt that they were justified in teaching a rather unpleasant person a lesson and encouraging him to leave the Territory. 33. Thereafter ensued a number of acts which I accept happened and which, making allowances for the sort of human frailty I have mentioned, can still only be described as disgraceful and certainly shameful to the good name of an honourable police force. 34. The plaintiff says that when they arrived at the clearing the defendant Smith said to him "You'll wish you were dead after we've finished with you. You'll be lying on the ground coughing blood". The defendant Jones got out of the vehicle, came round to the door where the plaintiff was sitting and said, "Get out here you fucking little cunt". As the plaintiff got out of the door the defendant Jones struck him on the side of the face and grabbed his shirt. The defendant Jones said "Are you going to talk?". The plaintiff said "No". The defendant Jones directed another blow towards the plaintiff who put his hand up to ward off the blow. The defendant Jones did not continue with his action to the point of striking the plaintiff and he said to the plaintiff "Take your watch off". The plaintiff said "Why". The defendant Jones replied "'Cause sometimes people put their hands up to stop me hitting them and I get cut". The plaintiff took his watch off. The defendant Jones pulled the plaintiff away from the vehicle, grabbed his t-shirt, twisted it around with his left hand and started to hit him. He hit him once across the left hand side of the face with his open hand - the plaintiff says the hard part of his hand. He had just prior to that asked the question "Are you going to tell us where the gear is from your house?" and the plaintiff had said "No". The plaintiff says that this questioning went on for some time. Each time he replied "No". The defendant Jones then hit him again. The plaintiff says that this went on for "heaps of times". While this may be some exaggeration I accept that several blows were struck. 35. Some time during this series of assaults the defendant Jones said something which I accept was said and which has considerable significance in the light of certain arguments put for the defendants. What Jones said was "We don't leave marks either". The defendant Jones then punched the plaintiff in the stomach. The plaintiff says that he was winded and he turned around and the defendant Smith grabbed him by the hair and pulled him back into an upright position. Smith said "Are you going to tell us where the gear is?". The plaintiff said "I can't". The defendant Smith then got the plaintiff's head, leaned the plaintiff against the boot of the car at the rear so that the right side of the plaintiff's body was leaning over in a sideways position. He then started bashing the plaintiff's head against the boot. The plaintiff described that part of the car where his head came into contact. He says it was the area towards the bottom window. 36. The plaintiff says at this time he was in pain that the defendant Smith was yelling at him but he couldn't hear what he was saying. He was able to note that something was written on the window of the car. He described it as a sticker or a manufacturer's note. Finally this action stopped and the plaintiff said this "He let go of me. I naturally wanted to stand up because one leg was already off the ground. So I stood up and turned around to face Smith who was standing at the back of the boot. Jones then came up behind me because he was standing maybe a step or so away and whacked me behind the - behind the ears really hard with both hands at the same time". Smith then said, "Do you want any more of that?" and I took him to be referring to the bashing on the boot because I was still facing Smith. Then I turned around to face Jones, after he hit me across the ears and the side of the head. He grabbed me around the t-shirt again and said "Are you going to start telling us where the gear is from the house?". I said "No" and then he hit me across the left hand - the right hand side of the face with his left hand. He done it again after I answered "No", and the third time across the left hand side of the face with his right hand". 37. The plaintiff says Jones then said to him "Do you want me to lift you up in the air and spear drive you into the ground?". The plaintiff replied "No". There was some further conversation in which Jones said "You don't think I can do it, can you - do you?", and the plaintiff said "Yes I know you can". 38. The defendant Smith then approached the plaintiff pushed him over the door of the car and put his right arm up to his throat and started choking the plaintiff over the gutter of the car. The plaintiff says that he was being asked questions at the same time but couldn't answer because he was nearly out of breath. Smith then grabbed him on the right shoulder and threw him down next to the left hand rear wheel of the car. Jones lifted him up from the ground to the upright position, put his right arm underneath his crutch, left hand on the right shoulder, and, again, I quote direct from the plaintiff "He picked me up in the air, right up in the air and spear drived me into the ground with my head hitting the ground. I then went - as I fell - it was very peculiar because I tried to sort of stop me hitting the ground, but I couldn't and I fell in an unusual way and ended up - I don't sort of remember because I was dazed from hitting the ground and I ended up lying on my back facing back towards Jones." 39. While the plaintiff was in this position the defendant Smith aimed a kick towards his face which the plaintiff avoided. When he stood up, the defendant Smith brought his right hand up and hit him underneath the chin causing a cut on the inside of the mouth. Again I use the plaintiff's own evidence "Then I walked over to Jones. He

said 'Get over here'. When I got over there he grabbed me and just threw me like you throw a bit of water out of a bucket and I landed ten feet or so away from him. A long way. I rolled, just rolled as he threw me and stood back up from the

ground. He yelled out 'Get back over here', so I got up and walked back over to him. As I got to him he must have asked me another question then because he hit me across the face. He didn't grab hold of my t-shirt like before. He then grabbed me straight after hitting me, grabbed me by two shoulders and started walking me around - walking towards me and I just kept walking backwards trying to walk away from him and I walked around in a semicircle direction, and when he got around to

about 180 or maybe a bit more from where we started, he kneed me in the groin and I went down in pain, and I was leaning down on the ground close to the ground. Then he said "Don't worry, there's plenty more of that". 40. At this stage the plaintiff was in pain and shaking his head and some insulting remarks were passed suggesting he had a sexual relationship with Compolides. Jones then forced him to sit on the ground. He told him to stop shaking his head. Jones aimed a blow at the plaintiff and the plaintiff says that he must have moved back to miss the hit and the blow did strike the plaintiff but glanced off him and hit the defendant Smith. The plaintiff's description of this is as follows:- "I must have moved back a little bit, to miss the hit and he just got me, and hit Constable Smith, he was standing on the right side of me, Jones was there. He said, in a real sarcastic sort of a way, I suppose, he said 'Sorry about that Constable Smith, I got two birds in the one stone' and he said 'That's all right Constable Jones'". The plaintiff remembers Smith talking to him at that time but the plaintiff also observed Jones getting something out of the car. The plaintiff says that Smith then said "Why don't we kill him here? We'll dump him down the tip where he dumped everyone else's stuff. Why don't we - no-one even knows we are out here. Why don't we kill him and dump him down the tip where he dumped everyone else's stuff. No-one even knows we are down here - out here". 41. While this was going on the defendant Jones had come away from the car and as he approached the plaintiff the plaintiff saw that he had a gun in his hand in a holster. The plaintiff saw him undo the strap but Jones still held the gun in his right hand in the holster. He walked over towards the plaintiff, got to the right hand side of him and said "I think I'll kill him here". At that stage the plaintiff who was on the ground pulled his legs up in a crouching position with his hands over his ears and closed his eyes. He heard nothing for ten to fifteen seconds and looked around. He still had his ears covered. As he looked around he looked directly at the barrel of the gun. Jones had it facing his head on the right hand side. The plaintiff says "I looked at the barrel of the gun and realized he was going to shoot me, and turned back around to the front. I closed my eyes and heard the shot fired behind my ear, my right ear." 42. He said the noise was deafening and bells rang in his ears. For the next happening I again adopt the plaintiff's own words "Then I had both my - that's right, before he shot the - before Jones made the

shot, I had my hands on the ground. Smith was over on the left hand side and Jones was on the right and Smith had his foot grinding it into my left hand from the top. Jones had the heel of his shoe on the right hand; that was before he made the shot. Then Smith came over after the shot and said 'Why don't we play Russian roulette with him'." He said "Leave one in there". I wasn't looking up at that stage. He then took the gun from Jones. I didn't see where Jones stood, must have walked around there. Then Smith came around to my left side and I took the same position, my hands over my ears, closed my eyes and pulled my legs up towards me in a crouched position, or whatever you call it. Then Smith had the gun. I didn't hear anything or see anything for a second and turned around and seen Smith pointing the gun at me. It was just there". The plaintiff indicated the left hand side of his head. The plaintiff then said "I turned around with my eyes closed and heard 'click' - the hammer of the gun was hitting the firing pin and making the noise. Smith said 'We'll try again'. I could hear the noise, I didn't turn around, I just had me eyes closed. I heard the noise of the chamber spinning and he said, 'We'll try again'. Then I heard 'Click' the same noise as before. He then spun the chamber again." 43. Question: It's the third time? ... No, twice. 44. Question: You're right? ... He spun the chamber again and I heard him say, "Oops, I nearly had you that time", but he didn't pull the trigger. 45. The plaintiff was then made to get up against the car and the plaintiff observed Jones, who by then had the gun in his hand, throwing something over his left shoulder which the plaintiff deduced at that time was the spent cartridge. The plaintiff did not actually see the cartridge fall to the ground. Similarly at about the same time Jones disposed of the cartridge case. Jones then told the plaintiff that he had better get out of the Territory. Smith repeated the threat and said words indicating that they would harass him if he did not. Jones then pulled the plaintiff's wrist down and kept pulling it down, which became painful. He then punched the plaintiff in the stomach. The plaintiff went down to the ground and was obviously winded. Again I use the plaintiff's description. "I couldn't breathe properly and all funny noises were coming out of my throat, and Smith was yelling out, saying to Jones - Jones was standing - Smith was still standing on - I had my back to the car, he was still standing where he was standing before on my left and Jones must have been standing over me because Smith was saying 'I think he wants to tell you something, Mel. I think he wants to tell you something.' He said that about four or five times." 46. At that stage the defendants noticed some movement in the bush nearby and Jones said "I think we'd better go". They threw the plaintiff in the back seat of the car and drove about fifty metres out of the clearing and pulled up. At this stage the plaintiff says that he was lying down, not completely on the seat and was still coughing and was in pain. When they pulled the car up, Jones got out and walked backwards towards the direction of the clearing. Smith meanwhile told the plaintiff to shut up and told the plaintiff to put his watch on. The plaintiff said that Jones was away for a few minutes. One may reasonably infer that he was looking for the spent cartridge case. 47. Jones then asked the plaintiff where the gas bottles were and the plaintiff said they were at the Berry Springs tip. They drove to the tip and the plaintiff pointed to a hole in which he said the bottles were. Jones' reply was "Well they wouldn't be fucking well there now", and drove out of that place. The plaintiff says that they then drove back to the Police Station travelling at about 120 kilometres per hour. His estimate of the time they were at the Strauss airstrip was about three-quarters of an hour to an hour. They came up the back stairs of the Police Station where Smith told the plaintiff to wash his mouth out. When the plaintiff asked "Why?", the defendant Smith said "So I don't get anymore blood on my hands when I hit you again". The plaintiff washed his mouth out. They returned to the interview room. The defendant Jones asked the plaintiff whether he wanted to see an Inspector and the plaintiff said "No, I am not going to say anything". 48. There was then some conversation with the defendant Smith about making a statement, in the course of which the plaintiff said, "I don't wish to answer any questions" and Smith who had a number plate in his hand swung it at the plaintiff's face but stopped an inch or so away. He said "I ought to smash this across your head". There was further conversation about the plaintiff putting the chain saw out at Noonamah and some conversation about the plaintiff finding the body. The defendant Jones suggested that the plaintiff might have left the body there. To that the plaintiff replied "But what if he was still alive?" and the defendant Jones did not answer. 49. The next incident occurred when both defendants and plaintiff were in the room and there was a reference to a cap which the plaintiff had left in the interview room before he went with the defendants down the track. The defendant Smith said to the plaintiff "Is that hat stolen too?". The plaintiff did not answer him. The defendant Smith told him to put the hat on and when the plaintiff did not do so the defendant Smith put it on the plaintiff's head and put both his thumbs under the plaintiff's nose and, again to use the plaintiff's words "With his other - his hands on top of the cap and just pulled and pushed, pushed down with his hands and pulled up with his thumbs as hard as he could - like that, and I was just yelling and I couldn't say much". 50. The plaintiff was then questioned about the Tirfor winch. He said he would not answer questions about that. He was then taken out of the interview room and charged with various offences. He was left in charge of two other constables. He was refused the use of the telephone on the basis that he would be getting out soon and could use his own money. 51. The plaintiff says, and this is admitted by several witnesses, that during this time there was a certain amount of agitation at the Station. Another prisoner had become hysterical and was endeavouring to hang himself and was shouting out and there was a great deal of turmoil with Police rushing around to prevent or subdue him. During this time the plaintiff says that he finally told the defendant Jones he would bring in the Tirfor winch. The defendant Smith said "Well you'll have to write a statement". The plaintiff said "I don't wish to make any statements". The defendant Smith replied "Well if you don't make a statement you won't bet getting out of here". The plaintiff then made a short statement about the Tirfor winch and the defendant Smith typed certain questions at the end which the plaintiff answered by writing in the answers underneath. This is Exhibit 6. It is not, in fact, a confession of theft. It is a statement that the plaintiff purchased certain items not knowing that they were stolen. The very most that can be constructed against the plaintiff from this statement is his answer to one of the typed questions when he was asked did he suspect that the goods might have been stolen and he wrote in his reply "I suppose that is a possibility". The plaintiff was charged and released. Compolides was also released at the same time and they ran out of the Police Station. 52. Compolides immediately telephoned their solicitor. The plaintiff also telephoned his grandmother. After that they went to the hospital. They waited there a long time. In the end the plaintiff left without receiving any treatment. 53. When the plaintiff arrived back at the Police Station he described his condition. He said he had blood in his mouth, he was completely exhausted and in pain and in shock. He said that he had some marks on his legs, his right ear was sore, his head and stomach were sore and his face was very sore. His pants had been split and he described his t-shirt as being twice the size. He says that the clothes had marks with dirt on the pants and the t-shirt was dirty. It is not disputed that he was wearing thongs at the time. Although the plaintiff initially refused to give his clothing to police investigating his complaints against the defendants, he did eventually surrender the clothing. Somehow that clothing has become lost. I make no complaint about this because of the lapse of time since the investigation. I accept that the clothing was in the state the plaintiff says it was; but it is doubtful whether, even if the clothing could be produced, it would assist the case either way. The plaintiff was leading a sort of bush existence and the state of his clothing might have been very little different whatever had happened. 54. The next morning the plaintiff accompanied by Compolides drove to that part of the Strauss airstrip where the plaintiff said he had been assaulted. What they did there was important. The plaintiff had noted the approximate position where the spent cartridge case and the bullet had been thrown and he was anxious to retrieve it. He found the cartridge case and took it to his solicitor. Later, with the use of a sieve, he found the cartridge itself. The significance of this is that at that stage neither defendant had reported the firing of a service pistol on 24 April 1982. There is no doubt that they were obliged to do so by the Police Regulations. 55. The plaintiff returned to the hospital the next day. It is appropriate to set out the results of his visit as established by the hospital records which were admitted into evidence. The first note on the hospital record is dated 24 April 1982 and merely records "plaintiff states he was assaulted by Police". The next note contains the figures 0100 (obviously referring to the time) and the letters "DNA" which obviously mean did not appear. That is consistent with the plaintiff's account that he waited at the hospital but ultimately went home. The next note is for 25 April at 1235. I confine myself to the notes of injuries. They are:-

1. Behind left ear small bruise also involving cartilage of ear.
2. Small bruise left parietal area.
3. Superficial scratches around right knee and one very superficial scratch 3 inches long over the left shin.
4. On the abdomen it was noted that there were no marks on the skin, a very slight tenderness but no "guarding" in epigastrium.
5. Slight tenderness over sternum.

Three very small lacerations in the left cheek. 56. It is appropriate, therefore, at this stage to deal with the obvious and undoubtedly important argument put by Mr Stratton for the defendants. It is inevitable, of course, that the plaintiff's description of the assaults upon him would necessarily imply far more serious injuries than those recorded. Ergo, the plaintiff must be lying or grossly exaggerating. The defence bolstered this argument by calling a wellknown forensic pathologist. Dr Lee's evidence in chief was certainly that in view of the account given by the plaintiff there should have been considerably more signs of injury. That is a perfectly valid comment. But it is significant that Dr Lee stresses probabilities rather than certainties. His answers in examination in chief are couched in such terms as "I would expect", "there may well be", "this is the kind of injury normally associated with", "There would be a wide variety of injuries which I might expect him to sustain". Now this, of course, is no criticism of Dr Lee but rather a tribute to his scientific detachment. Obviously if a person is struck on a certain part of the body, even repeatedly, there will be a wide degree of potential injury ranging from superficial abrasion to serious bruising. Certain parts of the body can take more of this treatment than others without showing external signs. Dr Lee agreed the abdomen was such a part, although he did indicate that hard blows to the abdomen would at least make it very sore. 57. Nevertheless Dr Lee was still prepared to go to this extent, "These injuries do not have the characteristics that I would normally associate with an assault". 58. Under cross-examination, Dr Lee was perfectly frank and prepared to concede certain important matters. For instance, at page 836, it was put to him Question: You agree with me that the absence of signs does not allow you as a forensic pathologist to say that this means no blow was struck? Answer: I accept that, yes. Question: And I know that you have qualified that by saying certainly so in relation to the stomach and probably not in relation to the face? Answer: Yes. At page 837, it was put to him:- Question: So that if one has bruising to the cartilage of the ear and there's no other explanation for it, one may conclude that a blow to the ear was the cause of it? Certainly there had to be some trauma to the ear, didn't there? Answer: Yes, certainly trauma to the ear. Question: If the only trauma one is told anything about is a direct blow to the ear by Detective Jones, then one would be entitled to conclude that the blow by Jones caused the bruise? Answer: If that was the only explanation then one would have to accept it. Question: So that a finding of a bruise to the ear is consistent with Lackersteen's allegation that he sustained a blow to the ear is it not? Answer: It certainly is consistent. I think the only point that I would like to make is to say that it is not a specific form of injury. In other words as I was describing yesterday there are certain injuries which are really quite specific to assaults; particularly those at the backs of the forearms; but this is not a specific injury. At page 840 he said "Yes, it is obviously possible to sustain deep injury without anything particularly obvious being visible on the outside". 59. He conceded that it would be possible to produce tenderness to the sternum as a result of a punch. He conceded that bruising to the left parietal region could be consistent with the head being forced into contact with a solid object, his reply being, "Yes, that would be one way of producing it". He agreed that it was "Quite possible to produce extensive damage to the scalp, in other words there is bruising within the scalp that is not clearly visible on the outside. However it would be usually very easily identifiable as an area of swelling of the scalp and would obviously be tender". Again he conceded that a complaint of pain in the abdomen is consistent with a blow or blows to the abdomen. His answer to that sort of question was "Yes, again an impact to the abdomen would be expected to produce tenderness". Again at page 842: Question: So that being winded by a blow doesn't require that blow to be very severe or even severe; it needs merely to be in the right spot? Answer: If it's in the right spot it can be produced by a relatively light blow, yes. He conceded that scratching to the right knee and left shin were consistent with those parts of the body coming into contact with something hard and irregular. He conceded that a person who had been hit a number of times over the face with an open hand would end up with some swelling, some apparent bruising and some superficial lacerations. To that he added also tenderness. Question: So that the appearance on the cheek of three lacerations is consistent with a blow to the cheek is it not? Answer: Yes, once again an impact has obviously been received by that part of the cheek. He conceded that a significant hit to the side of the face forcing the cheek against the closed teeth could produce lacerations. 60. Now, of course, all this is common sense and Dr Lee gave his evidence in a professional manner making the appropriate allowances for the degrees of force which might or might not produce injuries. 61. Since, however, I accept substantially what the plaintiff has said, I am satisfied that these things could have happened to him without there necessarily being much in visible signs. I am quite prepared to accept Dr Lee as an impartial expert and I am even prepared to accept his general observation that in the description of the assaults as given by the plaintiff one would normally expect to find more signs than there were. The answer, I fear, lies in the fact that the defendants knew how to inflict a considerable amount of pain and fear without leaving many visible marks. The blows to the face were with the open hand. There were blows to the abdomen which winded but did not show. There were tuggings of the hair which would not show. Even the banging of the back of the head on the car could be done skilfully enough to avoid damage. Even the "spear driving" so dramatically described need not have caused visible injuries. As the plaintiff described (page 140) it was his head that hit the ground not his face. He said he ended up lying on his back. Even the throwing, as the plaintiff described it "like you throw a bit of water out of a bucket" caused the plaintiff, on his own account, to roll as he was thrown. That too could have caused no more than superficial scratching on the parts of the plaintiff's body which were not clothed e.g. the legs. 62. I am also prepared to accept that the blows which the plaintiff received seemed more severe to him than they actually were. It is not surprising that a man who is being slapped, punched in the stomach and winded or being submitted to a series of other assaults in a short time could believe that he was being struck much harder than he actually was. 63. In the ultimate result, while it is a perfectly legitimate comment for the defendants' counsel to make that the plaintiff should have had more visible bruising or cuts, the injuries which the plaintiff did suffer are not inconsistent with his account and it is not an impossible or even an improbable situation that he had no other marks on him than he did have. 64. Furthermore, I am convinced that not only did the defendants use the expression "We don't leave marks" but that they meant to and did put into operation a policy which involved a conscious withholding of severe blows unless those blows were in a part of the body where they were not so likely to show. Added to that and further to explain the lack of severe injuries is the fact that the plaintiff himself took some actions for his own protection. For instance, when he was thrown by Jones on to the ground he describes that in cross-examination as "I just landed like a beach ball, just rolled" (see page 251). The smashing of the back of his head on the boot of the car could have been done with some force without cutting the head or causing concussion. It is not inconsistent with the plaintiff's story that he said that his head was "All bruised around the back here and one there" (page 244). As to the "spear driving" the plaintiff says (at page 140) that Jones "spear drived me into the ground with my head hitting the ground. I then went - as I fell - it was very peculiar because I tried to sort of stop me hitting the ground but I couldn't and I fell in an unusual way and ended up - I don't sort of remember because I was dazed from hitting the ground and I ended up lying on my back facing back towards Jones". 65. Violent though the assault had been, it was not necessarily such an assault as to cause cuts or woundings and I strongly suspect that Jones controlled his actions to prevent the plaintiff's face from coming into contact with the ground. It was the plaintiff's head and mainly the top and back of his head which connected with the ground. 66. A matter, which in my view tells very much in the plaintiff's favour and speaks for his consistency is that on 4 May 1982 the plaintiff gave a most detailed statement to Detective Sergeant Charlwood. That statement is Exhibit "D". It is wrongly dated 4 April 1982 but the evidence leaves no doubt that the date was 4 May 1982. In that statement of twelve pages the plaintiff sets out in detail what he alleges occurred and the evidence the plaintiff has given in these proceedings has been substantially the same as what he told Sergeant Charlwood on 4 May 1982. He was not, in my view, shaken in cross-examination over these details, and he has repeated them with substantial accuracy when cross-examined. 67. Now of course it is possible that a lying person may be sufficiently sophisticated to garnish the lie with a number of details which are designed to make it sound more convincing. And, of course, the allegation is that the plaintiff is an accomplished liar and an experienced one who is perfectly capable in the immortal words of W.S. Gilbert of "giving an air of verisimilitude to an otherwise bald and unconvincing narrative". But, having observed the plaintiff, I cannot for a moment, accept him as so sophisticated a liar as to have filled in the bald allegation of assault with so many specifics. One need give only a few of the examples which are scattered throughout the story he tells. The details about how he was hit, the detail of Smith asking him to take his watch off, the "spear driving", the throwing, the account of Jones accidentally hitting Smith as well as the plaintiff, the very detailed account of the use of the gun and remarks made during its use are just some of the matters which indicate either truthfulness or a liar of the most sophisticated description. Mr Stratton points to the fact that the plaintiff had told lies earlier to the Police in which he put in details which were as untrue as the lies themselves. This is correct, but the details given in those earlier examples are far removed from the depth of detail given by the plaintiff here. Indeed, in one sense, they support the plaintiff; because the earlier lies are really just the sort of lie one would expect from the original premise of "I bought it from a man at the pub" type of lie. Even the most unsophisticated liar, commencing with that opening, is capable of adding obvious details of the description of the man and some conversation about the purchase. In my view the account which the plaintiff gives of the assaults is far removed from this sort of lying and I am satisfied that the plaintiff is incapable of garnishing his account so thoroughly with these details or of persisting in them with substantial accuracy to his earlier allegations even under skilled cross-examination. To me he had the air of a man telling the truth under cross-examination and in substantial measure I accept his evidence. I certainly accept the assaults were as he said they were, that the conversations between himself and the defendants were basically as he said they were. 68. Furthermore the plaintiff saw his solicitor almost immediately after the assaults, he presented himself for examination at the hospital, he made almost immediate complaints to the Police. Again, these may of course be the actions of an embittered person setting out on a deliberate course of attacking policemen against whom he had some grievance for charging him with offences. The plaintiff does not strike me as that sort of person. It is true that in cross-examination he admitted to a previous occasion in which he had complained about the conduct of a policeman. But, on his account, the complaint was a justified one and the policeman was duly dealt with. All that that establishes is that the plaintiff, though not always a desirable character, is prepared to stand up for himself if he feels he has been wrongly treated. Mr Pauling I think puts his finger on the whole genesis of this case when he says that the defendants' great mistake was that they simply did not believe that a man of this character, charged with numerous offences of theft or dishonesty, and admitting to many of them, a man who seemed inconspicuous, a man who had said that he would not make trouble, could turn around and make these sort of allegations and persist in them. It explains why the defendants took few precautions to cover their tracks. 69. Certainly I consider that they were taken considerably by surprise to hear, as they did at a later time, that the plaintiff had done something which they could not have dreamed he would do. The very next day accompanied by Compolides, he had gone to the Strauss airstrip at the scene of the assault and recovered both the cartridge case and later the cartridge itself which he handed to his solicitor. No doubt he may have received that advice from an experienced solicitor who would have realised the significance of recovering these things. That action led the defendants, and only after they had heard of what the plaintiff had found, to produce an explanation, about which the kindest thing that could be said is that it is highly improbable. 70. This brings me to the evidence of the defendants which, I regret to say, was marred by a number of significant discrepancies and which, in substantial points, I do not accept. 71. The defendants did not deny that they apprehended the plaintiff and Compolides on 24 April, that they took them to the Police Station for questioning or that they questioned them. They do not deny the presence of two New South Wales police engaged on an investigation totally unconnected with the investigation which the defendants were conducting. They do not deny that these Police spoke with the plaintiff. They agree that after an interview with the plaintiff they drove the plaintiff to Noonamah to recover the chain saw. They agree that they stopped at the 24 kilometre post where indicated by the plaintiff and that he searched for the chain saw and could not find it. They agree that the plaintiff's action led them to abuse him and that Jones, in particular, may have used some bad language on the occasion. They agree that they then travelled to the Strauss airstrip, that there was an occasion in which a revolver was discharged by Jones, and that they then travelled to the Berrimah tip although they did not remain there very long. They agree that they travelled back to Darwin, where the plaintiff was further questioned and that he made a statement relating to the Tirfor winch and that he and Compolides were charged and then discharged. 72. Those matters are substantially common ground between the plaintiff and the defendants and to a great extent necessarily have to be admitted by the defendants. What the defendants deny entirely is that the plaintiff was threatened or ill-treated in any way. Every one of the various allegations of assault made by the plaintiff are specifically denied. Every one of the alleged threats is specifically denied. At the most they concede to no more than annoyance or even anger at the action of the plaintiff in leading then to believe that he could recover the chain saw when he could not and their belief was that he had led them on a wild goose chase. 73. While fully appreciating that the defendants have given evidence on oath denying the plaintiff's allegations, while fully appreciating that the onus is on the plaintiff to establish his case on the balance of probabilities but bearing in mind the seriousness of the allegation made (see Brigenshaw v Brigenshaw ; at 362), I am quite satisfied that the plaintiff has made out his case. I am the more satisfied because of the discrepancies in the defendants' evidence to which I now turn. 74. (1) Perhaps the most dramatic of these discrepancies is the one I have already referred to, namely the explanation given by the defendants for the discharge of the revolver at the Strauss airstrip on the basis that he had deceived them as to the position of the chain saw, that he had not hidden it at the 40 kilometre mark, but then said that he had hidden it at this new location. They say that the plaintiff then looked through the scrub but indicated that the chain saw was not there. Jones says that at this stage he was frustrated and angry with the plaintiff. He says that he informed the plaintiff they had no option but to get the New South Wales police to visit the plaintiff's mother and repossess the sewing machine. He says that the plaintiff then became agitated and said that Compolides would kill him if he showed where the goods were. The evidence of Jones then reads:- "At that particular stage I decided I needed to urinate and then I was aware that Smith had started to walk around towards the back of the vehicle and I turned my back sort of towards Lackersteen as I undid my fly and the next minute I was aware of a movement and as I looked Lackersteen was running away from the Police vehicle. I called out something to the effect, 'He's off' - that being directed at Ken Smith - and in the same motion I bent down and I removed a service issue revolver which was strapped to my ankle inside of my left ankle and then extracted that pistol and I fired a shot into the ground. At the same time there was a sort of shouting going on, 'stop, come back,' and that sort of thing. I discharged the firearm and Lackersteen did stop and I said something along the lines - I think I might have maybe taken a couple of paces towards him. He was sort of walking back and I think Ken Smith was walking over towards him and I said something along the lines, you know 'What did you do that for you stupid bastard. What are you up to?' Lackersteen went through the same repetition of, 'Mr Jones, I can't show you where the stuff is,' and I was just totally frustrated with the whole issue. I couldn't be bothered waiting around any more. I just told him to get back in the car (see p 44). 75. Smith's version is given at page 668-9: "I continued around the back of the car. When I got around - approaching in the area of the right rear corner, the driver's rear corner of the car, Jones yelled out something about, 'He's off,' and then there was a gun shot and I looked up and Mr Lackersteen was about possibly 20 metres or a little bit further away. I was around at the - I ran straight around to the other side of the vehicle as soon as Jones yelled out. When I got around to the passenger side

of the vehicle, Jones had his snub nosed revolver in his hand - I believe it was his right hand. It was still pointing at the ground just in front of him. I could see that he had fired into the ground just not very far in front of his own feet." 76. Smith also said that Jones had called out to Lackersteen to come back and Lackersteen did come back, that Jones had said something like 'What the fuck did you do that for?' and Lackersteen had said to Jones words to the effect that he could not tell him where the property was because someone else would kill him and he mentioned the name 'Peter'. 77. It was common ground at this time the plaintiff was wearing a t-shirt, shorts and thongs. 78. Because I accept the plaintiff's evidence I do not accept that it was at the plaintiff's suggestion that the parties went to the clearing at the Strauss airstrip but, for these purposes, it does not matter. What one is asked to believe is that, having taken the defendants to some scrub country off the bitumen, and having made some attempt to find something which, by inference, he admits was not there, the plaintiff expressed some fear of Compolides and then, having been told to get back into the car, runs off. With the agreement of all counsel I have seen the location of these events and it can in any event be observed in some of the photos in Exhibits "N" and "O". Bearing in mind the ordinary heat of an ordinary Darwin day in April and the fact that the plaintiff was in thongs it seems improbable at the least that he should attempt to escape in this sort of country. The defendants suggested that he was trying to get to a telephone box in order to communicate with his parents, presumably to ask them to get rid of the sewing machine. Jones, at page 611, conceded that the nearest public telephone was at the Noonamah Hotel and that the plaintiff was not even running in the same direction as that telephone; so the account seems improbable from the start. However, let us assume that the plaintiff panicked and in panicking did not act rationally, that is, he ran wildly into the bushes dressed in thongs in some misconceived attempt to escape. Accepting those circumstances, I find it wildly improbable that an experienced constable should have considered it necessary to fire a revolver before making any other attempt to recapture the plaintiff. It is not suggested that the defendants were also in thongs and it is not suggested that they were unfit. It would not, on the face of it, have seemed particularly difficult for two Police, properly shod, to run down and intercept a man who was running through bushes in thongs. Certainly it was the most obvious thing to do, at least at first. Furthermore the plaintiff was unarmed. There is no suggestion that they considered him violent or that he had shown any propensity to violence, and there is not the slightest likelihood that the defendants felt themselves in any danger from him. 79. It is elementary that Police do not or should not discharge firearms save in the most serious of occasions; and there is nothing in the incident as described by the defendants themselves which suggests the slightest justification for the use of a firearm in these circumstances. That this was known to the defendants is obvious by their failure to record the use of the firearm in any report made by them or to report the fact that ammunition had been expended as they were required to do under Police General Orders (see Exhibit "V"). The defendant Jones explains this lack of records in a way which I do not find convincing. He says, first, that his reaction or over-reaction was prompted by the fact that he had recently had a prisoner escape from his custody and that he had had some mockery by his brother officers about that and he was anxious not to repeat such an incident. For that reason also he says he did not charge the plaintiff with escaping from custody nor did he report the discharge of a firearm. He says that in hindsight he did not consider it as a serious attempt to escape. The evasiveness of both the defendants about this incident leads me to believe that they concealed the fact of the discharge of a firearm in the manner which the plaintiff says they did, because they obviously did not want to report such an incident, they knew that their alleged justification would be unconvincing and they did not believe for a moment that the plaintiff would make a complaint about this incident. Nor did they believe that, if the plaintiff did make such a complaint, he would take the trouble to go to the Strauss airstrip and recover the spent cartridge and the cartridge case. 80. (2) Times - The plaintiff's counsel makes something of the time between when the plaintiff and the defendants left the Police Station and the time they returned. The significance, he says, is this:- Defendant Jones admits that according to his diary they departed at 4.10. Again according to his diary they returned at 6.50pm. Hence they were away a total of 2 hours 40 minutes. In about April 1987 Inspector Charlwood travelled the route taken by the plaintiff and defendants stopping at the three locations at Noonamah, Strauss airstrip and Berry Springs tip estimating the time it would have taken (page 81). On the first occasion the journey took 2 hours and 7 minutes. On the second occasion, when the defendant Jones was driving, the journey took 2 hours and 16 minutes approximately. The plaintiff's counsel submits that the difference of 24 minutes, allowing for the longer time, i.e. the second journey, is significant and unexplained and can only be explained by the fact that the defendants were engaged in assaulting the plaintiff during that time. The defendant, Jones, however, now says that the times as recorded in his diary were not accurate. They were, he says, "block times". He adds that the road was somewhat different in 1982 to 1987 and that would have the effect of making the journey slower in 1982. Inspector Charlwood agrees that there were some differences in the roadway in 1982 but on his evidence I do not consider that the difference amounted to very much. Both defendants also say that this particular Police car had some audible defect in it which affected the driving above 90 kilometres per hour and they say that therefore they restricted themselves to 90 kilometres per hour. This is in conflict with the plaintiff's evidence. He says that the speed generally was 120 kilometres per hour, although he does mention in his first statement on 4 May 1982 that the constables were talking about a wheel balance problem in the car and "were speeding up to I saw at one stage 120 kph and backing off, the steering was shaking". The defendant Jones says that now he believes that they arrived back in the Station at 1830 rather than 1850 hours. To some extent here he relies on the plaintiff himself who said that when he arrived back at the interview room he looked at his watch and it was 6.27. The defendant Jones says that the time 1850 given in his diary was the time Compolides was brought out of the watchhouse. He said at page 618 "I generalised the return from Noonamah, having Mr Compolides out of the cell into the CIB muster room". He was cross-examined about the 20 minutes between arrival back at the Station at 1930 (assuming that to be the case) and taking Compolides out of the cell. I was not satisfied with his evidence and I am the less satisfied because of the efforts of the defendant Jones to compress these times with certain facts not before mentioned to Inspector Pope such as getting a Polaroid camera and discussing with Smith where they would go before actually setting out. I consider very weak his suggestion that he "generalised" the time which he had specifically recorded. None of this was said earlier or in answers to interrogatories and one cannot escape the suspicion that this evidence was hurriedly marshalled after the plaintiff's counsel had emphasised its importance in his opening. However I am prepared to accept at least this, that the plaintiff's estimate of the time spent at the Strauss airstrip may be defective because the very nature of his ordeal may have made the time seem longer to him that it actually was. I am satisfied however, that, whatever the time taken it certainly included time enough to assault the plaintiff and if the evidence of the defendants is proffered to suggest that no such time would have been available I do not accept it. 81. (3) The Interviews - On 5 May 1982 the defendant Jones had a conversation with Inspector Charlwood then a Detective Sergeant of Police and Officer in Charge of the Darwin Criminal Investigation Branch. Jones told him that "Rumours are flying out there". By this he was referring to rumours that both Compolides and Lackersteen had made various allegations of assaults. Charlwood summarized for Jones the allegations that the plaintiff had made. Jones' reply was "The lying shit. You've no idea what these two are like. They're into everything". Subsequently he said "I'll tell you what happened. It's not like they say". At this stage Detective Charlwood said "I don't really want to know. I'm merely informing you of the complaint so you won't be misled by the rumours". The defendant Jones then gave an account which basically sets out the events as he gave them in his evidence before me. However he did, according to Sergeant Charlwood, make certain admissions. He said "I lost my temper; I admit that. I yelled at him. I called him a liar. I said he was wasting our time. I went right off. I grabbed him and threw him in the car. I admit mishandling him but that's all". On 3 June 1982 there was a conversation between Detective Chief Inspector Pope and the first defendant. Sergeant Charlwood was also present. A written statement from Sergeant Charlwood which recorded the interview he had had with the defendant Jones on 5 May was put to the defendant. The defendant said that he agreed with the overall content of the conversation but disagreed with a couple of phrases and words. He said he had no recollection of using a word such as "mishandling" and he said it was not a word he used. He denied that the plaintiff had been forcibly put into the car. He admitted that he, Jones, was agitated and expressed his agitation. Later he said that he did not agree with the terminology that he (the first defendant) had grabbed the plaintiff and thrown him in the car. At the end of the interview Sergeant Charlwood commented that "Only that I would have to accept Detective Jones' account of the conversations perhaps being more accurate than the account that I've given in that statement. My statement was prepared from memory of the conversation that no notes or tape recordings were made to record. I have challenged Detective Jones in his corrections of that conversation". 82. In evidence at page 67 Sergeant Charlwood admitted those comments. He said however "You may disagree but because I felt Jones' recall of the conversation was more accurate than mine I am not accepting that my recall was inaccurate." 83. Accepting, therefore, that Charlwood was making some concessions about his recall but was not claiming to be inaccurate, I am still of the view that Jones used the word "mishandling" and the phrase "threw him in the car" in his interview with Charlwood. I find it difficult to see how that could be misinterpreted by Charlwood and I do not understand Charlwood as saying that he did so misinterpret it. I do not, however, put too much weight on the expression because it could certainly mean much less than what the plaintiff said was done to him. It could mean no more, and I believe that this is what Jones meant when he used the expression, that in a moment of anger Jones had physically grabbed the plaintiff and put him in the car. I have no particular difficulty about that as being the limit to which Jones was prepared to make any admission at all. I am satisfied that Jones at that time was going as far as he thought he could safely go without seriously incriminating himself. I think he regretted saying even as much as this, realizing that it could be construed as an admission of some irregularity. He therefore resiled from it in his next interview. I am quite satisfied that he used the word "mishandling" and "threw him in the car and I do not accept his denial of these statements and I consider that his denial of these statements adversely affects his credibility. 84. (4) The plaintiff's counsel has provided me with a list of inconsistencies which he submits indicates that the defendants are not telling the truth. I do not really gain very much assistance from this list. They are mainly as to details in which the defendant Jones may be said to have differed with the defendant Smith or vice versa. An example of this list can be taken as random to indicate the sort of inconsistencies complained of. The plaintiff's counsel says that in Jones' interview with Pope he, Jones, said to the plaintiff "Show Detective Smith where the chain saw is". It is pointed out in evidence-in-chief Jones swore that he said "Where is it?". Similarly at the time the shot was fired Jones said in evidence that Smith was getting into the right hand side rear door whereas Smith said in evidence that he was approaching the right hand rear corner when Jones fired the shot. I am not prepared to come to any adverse conclusion on this sort of evidence. It is not surprising that there should be some discrepancies as to details. 85. My view is, I hope, based on sounder foundations namely that on the whole and despite certain lies which I accept that the plaintiff has told even before this Court relating to matters not connected with the actual occasion, I accept his evidence as to what happened at the Strauss airstrip and on the occasion when he was with the defendants that day and I do not accept the explanations of the defendants and I find that on several important matters of substance they have not told the truth. Particularly I refer to the explanations for the discharge of the revolver, the account of the plaintiff trying to escape, and the reasons given for not recording those matters in their diaries. I find these matters incredible. In conflicts of evidence in relation to what took place that day I prefer the evidence of the plaintiff rather than the evidence of the defendants. 86. There is, however, one important and valid criticism which Mr Stratton raises as to the plaintiff's case and which has certainly given me concern. That relates to the failure to call Compolides and, to a much lesser extent, the failure to call Withers. So far as Withers is concerned he was only present at the time when the plaintiff and Compolides were apprehended by the defendants as they were going fishing. Obviously the plaintiff would say that, if he were called, he would corroborate at least the conversation between the plaintiff and defendants part of which is denied by the defendants. The plaintiff gives an explanation that when he, the plaintiff, was considering calling Withers in this case he found that this witness was very ill or told him that he was very ill. No other evidence is tendered on that aspect. 87. Much more importantly the absence of Compolides is a matter of comment. Compolides was certainly not involved in the events from the time the plaintiff was interviewed in the Police Station and taken down the highway and until he was brought back to the Police Station. However he was obviously present when the plaintiff and himself were apprehended, and he was obviously present after the plaintiff and he were released from the Police Station. He could have spoken about the initial conversation between the defendants and himself and Lackersteen on that day and he could have spoken about the condition of Lackersteen when he saw him again on his return from the Strauss airstrip. I am not impressed by the plaintiff's explanation of Compolides' absence. It seems that Compolides was in fact present either at the commencement of this trial or just before it. The plaintiff says that he and Compolides had left their business in Queensland in charge of someone inexperienced. The plaintiff alleges that it was necessary for Compolides to return to look after the business. In view of the importance of the case and in view of the importance of Compolides' evidence I find this a very strange explanation. 88. In Jones v Dunkel [1959] HCA 8; (1958) 101 CLR 298 the question was whether the evidence called on behalf of the plaintiff was sufficient to establish negligence, the defendant not having given evidence. At the conclusion of the trial Judge's summing up to the jury a juror said to His Honour: "Rightly or wrongly I have it in my mind that the defendant could have come here today and given evidence. Am I entitled to regard

that in my mind as a weakness in the case of the defendant that he did not?" Windeyer J. at page 317 said: "The proper answer to this question, if an answer were to be given in one word was 'yes' ". Menzies J. at page 312 said: "In my opinion a proper direction in the circumstances should have made three things clear: (1) that the absence of the defendant Hegedus as a witness cannot be used to make up any deficiency of evidence; (2) that evidence which might have been contradicted by the defendant can be accepted the more readily if the defendant fails to prove evidence; (3) that where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference." Later at page 313 Menzies J. said: "I agree with the Full Court that the failure of Hegedus to give evidence could not be used to fill gaps or convert suspicion into inference but I treat this as a case where the

failure to give evidence could be used to assist the jury in deciding which of the inferences open to them they should draw". Kitto J. said at page 308: "In my opinion, the direction which the judge proceeded to give was insufficient, and, because of its incompleteness, was incorrect. His Honour told the jury that the fact that Hegedus had not gone into the box left them in this position, that they could accept the facts given by the plaintiff as proved, and that the question for them then was whether they thought that from the proved facts an inference of negligence ought to be drawn. It was right enough to point out, in effect, that the evidence given might be the more readily accepted because it had been left uncontradicted, and that the omission to call Hegedus as a witness could not properly be treated as supplying any gap which the evidence adduced for the plaintiff left untouched. But what should have been added, and not being added was in the circumstances as good as denied, was that any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence. The jury should at least have been told that it would be proper for them to conclude that if Hegedus had gone into the witness-box his evidence would not have assisted the defendants by throwing doubt on the correctness of the inference which, as I have explained, I consider was open on the plaintiff's evidence." 89. I think I must conclude therefore that the evidence of Compolides would not have assisted the plaintiff and that is a weakness in the plaintiff's case but that does not mean that I necessarily must disbelieve the plaintiff in toto or that the plaintiff's case must automatically fail. As I have already mentioned, the evidence of Compolides would have been on two matters only, albeit important matters. The first would be as to the conversation when Compolides and the plaintiff were apprehended in the car. The second would be as to the state of the plaintiff at the time that he and Compolides were released from the Police Station. As to the first occasion, while I accept that the plaintiff's evidence is weakened by the failure to call either Compolides or Withers, I remain satisfied that a conversation such as the plaintiff deposes to did take place. Having regard to the subsequent actions of the defendants and their remarks to the plaintiff, I am quite prepared to find on the balance of probabilities that some such insulting language was used as the plaintiff deposes to. As to the second incident I think that is covered by the medical evidence given. Although the failure to call Compolides must be regarded as a weakness in the plaintiff's case, the plaintiff's evidence is not substantially in doubt about his injuries because those injuries were observed at the hospital and no doubt all that Compolides could give in evidence would be the fact that the plaintiff was agitated and that these relatively slight injuries were observable that night on the plaintiff. In R v Buckland (1977) 2 NSWLR 452 at 458, Street C.J. repeated the remarks he had earlier made in Dilosa v Latec Finance Pty Ltd (1966) 84 WN (Pt 1) (NSW) 557 at 581-2 "The inference which a court can properly draw in the absence of a witness where such absence is not satisfactorily accounted for, is that nothing which this witness could say would assist the case of the party who would normally have been expected to have called that witness ... at its highest, however, the inference does not ordinarily extend beyond a negation of favourable evidence from the absent witness. Failure to call a witness will not support a positive inference that the witness would have in fact given evidence damaging to the case of the party who omitted to call him. Failure to call a witness will assist materially in determining what findings or inferences might fairly be made or drawn from the evidence of the opposing party, but it will not ordinarily provide a legitimate basis for supplying what is a clear deficiency in the case of the opposing party." 90. In view of the medical evidence and my assessment of the plaintiff's overall credibility on what happened on 24 April 1982 I cannot draw the positive inference that Compolides' evidence would have harmed the plaintiff's case. It is a corroborative factor missing without cause and gives one pause in considering the evidence as to the effects of the assault. But there is at least one further corroborating factor, the evidence from the hospital, which is sufficient in the overall circumstances to allow the plaintiff's evidence to be accepted if I am otherwise satisfied of its basic credibility on the events of 24 April 1982. 91. I now deal with the point that something like six Police witnesses saw the plaintiff after he had arrived back in the Police Station and every one of those witnesses swore that they noticed nothing about him to suggest that he had been injured. There is a perfectly simple answer to this and it is in no way derogatory of the Police who gave evidence. On a casual inspection - and it is quite clear that all these witnesses speak of no more than a casual inspection - there would have been nothing to see. At the most his clothing may have been somewhat dirty, and perhaps torn. I would not expect the Police to have taken particular note of dirty clothing of a man coming into the Police Station in t-shirt, shorts and thongs. No doubt many persons passing through the Police Station would have had the same sort of clothing and in many cases that clothing would have been dirty and torn. Again, such scratches and marks as the plaintiff had would not have been inconsistent with the state of many people who had come through the Police Station. There was no visible bruising. The plaintiff had washed his mouth out and there was no sign of blood about his mouth. It may be that a careful observer might have noticed some agitation about the plaintiff, but there is nothing in the plaintiff's evidence to indicate that he showed any particular agitation to those Police who were no more than casual observers. No doubt, many persons at Police Stations are agitated. Furthermore the evidence indicates that there was certainly something like bedlam going on at the Police Station at the time when another prisoner was, apparently somewhat theatrically, attempting to commit suicide. The two New South Wales Police could have observed the plaintiff for no more than a few minutes at most and one would assume that they were more preoccupied with their other duties. Constables Corey and Delany were at that time very junior Police, each of about 8 months' experience, and their duties were confined to having the plaintiff sign the charge book and the bail form. Inspector Brabin was in charge of the watchhouse but it is not surprising that in his general supervisory duties he was not called upon to make a detailed examination of the state of the plaintiff. 92. The plaintiff at this stage was "co-operating" in the sense that he had indicated to the defendants that he was not going to make a fuss and he did not make any complaints when asked if he had any complaints to make. So that to the Police who were not directly concerned with the investigation there was really no reason to make any detailed observation of a man who came in with no injuries which indicated anything untoward, who made no complaints and whose clothing may have been no dirtier or torn than that of many people who passed through the station that day. 93. The plaintiff seeks damages for wrongful arrest, false imprisonment and assault i.e. trespass to the person. I consider that the plaintiff makes out a case for each of these torts but the last one was overwhelmingly what this case was all about. That is not to suggest that the other torts were not serious in themselves, but in the circumstances of this case, I treat them basically as aggravating factors to the prolonged assault on the plaintiff by the defendants. 94. On the question of arrest the plaintiff maintains that when apprehended on the Stuart Highway in the morning on 24 April 1982 he was not told that he was under arrest (see page 127). That, in fact, is what the defendants also say. They say that when they apprehended the plaintiff and Compolides they requested them to come back to the Police Station, giving as a reason to the plaintiff that the plaintiff and Compolides were "con men" who "tried to con a bloke to buy a car". The defendant Smith in his interview with Chief Inspector Pope on 20 May 1982 says that "It was just said that we'd like them to come back with us and er ... they came back and got in the car". Chief Inspector Pope then asked Smith "Was the request for them to come back given to them in such a way that they had an opportunity of declining?". To that the defendant Smith replied "Oh, they could have, they could have declined if they wanted to". Pope then asked "And what if they had of declined?". Smith replied "Oh, we would have arrested them on suspicion". 95. Since I accept the evidence of the plaintiff as to the circumstances in which he and Compolides were apprehended on the morning of 24 April 1982, I accept that they were arrested at that time. I am quite satisfied that they were not told that they were arrested, but I am equally satisfied that it was made perfectly plain to them that they were required, not requested, to come back to the Police Station with the defendants. The whole circumstances of the apprehension make this quite plain. The plaintiff says that after the Police car had pulled up behind them the defendants got out of the vehicle and the defendant Jones said "Where do you think you fucking pair are going?". The plaintiff says he replied "We're going fishing". The plaintiff then says that Jones' reply was "You pair of fucking cockroaches are coming with us". The plaintiff says that he then tried to explain that it was he and not Compolides who was involved in the transaction for the sale of a motor car in which the plaintiff had given a false receipt and which was the reason for the defendant Jones' remark of the plaintiff and Compolides being "con men". Jones said "No, I want you to come in and answer some questions about the matter". The plaintiff then says "It was no good talking to him. He just said, 'Well let's go'". 96. In my view that was a plain arrest. The circumstances are stronger than in Alderson v Booth (1969) 2 All ER 271. In that case a constable, having asked the respondent to provide a specimen of breath for a breath test, and noting that the result of the test was positive, informed the respondent of the result of the test and said "I shall have to ask you to come to the Police Station for further tests". It was held that there had been an arrest. At page 273 Lord Parker C.J., (with whom Blain and Donaldson JJ. agreed) said "There may be an arrest by mere words, by saying 'I arrest you' without any touching provided of course that the accused submits and goes with the police officer. Equally it is clear as it seems to me, that an arrest is constituted when any form of words is used which, in the circumstances of the case, were calculated to bring to the accused's notice, and did bring to the accused's notice, that he was under compulsion and thereafter he submitted to that compulsion." 97. The contrast can be illustrated by R v Inwood(1973) 2 All ER 645 where the appellant went voluntarily to a Police Station and was questioned and ultimately was told that he would be charged with offences. At that stage the appellant tried to leave and was prevented from so doing. It was held by the Court of Appeal that in order to establish that the Police were entitled to use force to restrain the appellant from leaving the Police Station it was necessary to show that it had been made clear to the appellant that he was under arrest and that was a question of fact. 98. In the present case the circumstances, in my view, point overwhelmingly to a situation where it was made clear to both Lackersteen and Compolides that they must go with the defendants. 99. Furthermore, I am convinced that at no time during the remainder of that day was the plaintiff told in so many words that he was under arrest nor upon what charges he was being arrested for. The defendants, in their answers to Chief Inspector Pope in 1982, and their Answers to Interrogatories and answers given in the witness box show such a lamentable confusion that one is only strengthened in this view. For instance, the defendant Jones in his interview with Chief Inspector Pope on 19 May 1982 was asked whether he had made the plaintiff and Compolides aware of the reasons why he wanted them to return to the Police Station and replied "They were made exactly aware of the fact". He then gives a confusing and unconvincing account of what he said to them. When asked what he would have done if they had refused to go back with him he says "I felt that I had enough there anyway to lay charges against them and I probably would have used s. 123". He was asked by Pope "In relation to what?". His answer is "Probably in relation to just one of the matters, not all of them". He then gives a very confusing reply when asked to be more specific. Similarly Smith in his interview with Chief Inspector Pope on 20 May 1982 says that if the plaintiff and Compolides had declined to come with himself and Jones they would have arrested them on suspicion. He then also gives a somewhat confusing and indecisive account at pages 12 to 16. On the journey back to Darwin Compolides asked to buy some cigarettes and after he had been away a few minutes the defendant Jones sent the defendant Smith to follow him. The defendants deny any intention to keep Compolides under surveillance but since they say they would have arrested the plaintiff and Compolides on suspicion had they endeavoured to leave, the picture seems clear that the defendants had no intention of allowing the plaintiff or Compolides their freedom. I cannot accept the allegations of Jones and Smith that the plaintiff and Compolides came voluntarily. They have not satisfied me that they had any bona fide intent to act under any of the provisions of s. 123(2) of the Police Administration Act or that in apprehending the accused they consciously turned their minds to those provisions. 100. In evidence at page 434 the defendant Jones says that after interviewing Lackersteen about a number of offences he told him "a short time later" that he was under arrest. He elaborates on that at page 435 when he says that he informed the plaintiff that they were going to leave the Station and with the plaintiff's assistance recover the stolen chain saw, Tirfor winch and the gas bottles. It is at that stage that Jones says he told the plaintiff that he was under no obligation to go down there and that he was doing so of his own free will. Jones adds "I also informed him that he was under arrest at that stage" and says that the plaintiff says he understood that. At page 194 of the interview Jones/Pope Jones uses the interesting phrase that the plaintiff and Compolides had been "Technically under arrest from the time that they had first been picked up this morning". He says at page 195 that he, Jones, informed the plaintiff that he was under arrest. Asked at page 194 about what charges he had put to Lackersteen, he is not specific. He becomes very confused about a "technical" arrest (page 193). Pope, in my view, quite understandably, voices the comment that he cannot at this stage determine when he arrested them and for what or why. A reading of pages 192 and 191 of the Pope/Jones interview indicates the confusion of answers given by Jones. It is not a satisfactory interview from Jones' point of view. 101. In the Pope/Smith interview of 20 May 1982 the defendant Smith is a little more specific because he says that Jones placed the plaintiff under arrest for unlawful possession of the Tirfor winch although at that stage Lackersteen had not admitted having had possession of the Tirfor winch. At page 719 of the transcript Smith, under cross-examination, seems to contradict the statement which he had made to Pope if the plaintiff and Compolides had refused to go with them that he and Jones would have arrested them on suspicion. At page 719 he says that the plaintiff and Compolides were at liberty to go at all times until they were arrested. At page 722 the defendant Smith says that the plaintiff was arrested in respect of the Tirfor winch and some motor car offences and a false pretence. He says that the plaintiff was taken down the track to find a chain saw and some gas bottles; but those were items for which the plaintiff had already been arrested and bailed on an earlier occasion. 102. Smith is in considerable confusion at pages 724 and 725. He says that the plaintiff was "later charged after we came back from down the track", but he says that Lackersteen was already under arrest just before they started down the track. See page 725. The Answers to Interrogatories of both Smith and Jones, however, say that at that time, i.e. just before the plaintiff and the defendants went down the track the plaintiff was not under arrest but he was in custody. See Answer 20(a), (b) of defendant Jones and Answer 19(a) and (b) of defendant Smith. 103. The confusion of these Answers in relation to arrest and charge coupled with the fact that I accept the plaintiff's evidence leads me to the conclusion that at no time was the plaintiff ever told that he was under arrest although he was in fact under arrest from the time that he had been apprehended on the Stuart Highway in the morning and he was not informed of the reasons for his arrest. He was certainly questioned about various offences but at no time during that day was he charged with them until the formal charge at the watchhouse before he was permitted to leave. I am convinced that from the time that the plaintiff was apprehended it was made clear to him that he would not be permitted to leave the custody of the defendants. Although I accept that he did subsequently agree to go down the track to recover the property he was still in the custody of the defendants who would have prevented any attempt by him to escape; and I am satisfied that in these circumstances the plaintiff was wrongfully under arrest and wrongfully imprisoned and that the period of his wrongful arrest and wrongful imprisonment lasted from his apprehension in the morning of 24 April until he was released after having been charged at about 11pm that night. 104. In the particular circumstances of this case, it is, however, the assaults upon the plaintiff which took place at the Police Station, at the 40 kilometre mark, at the Strauss airstrip and again at the Police Station at a later time that constitute the most substantial part of the plaintiff's case and which have, I think, rightly occupied the greater part of the time of the Court. I do not propose to repeat them. The question is not whether the circumstances call for damages, about which I have no doubt, but rather whether the circumstances call for aggravated or exemplary damages or both. 105. The plaintiff seeks compensatory damages and in addition aggravated damages and exemplary damages. Furthermore the plaintiff seeks these damages under several heads namely wrongful arrest, false imprisonment, assault and battery. So far as compensatory damages are concerned there would seem to be little point in differentiating between these various torts. Whatever the cause the plaintiff's damages must be assessed upon the headings of pain and suffering, loss of amenities and economic loss if such headings are applicable. In the present case there is no evidence of any economic loss suffered by the plaintiff nor that such injuries as he received caused significant loss of amenities or enjoyment of life. At the most the plaintiff says at page 174 that he has had over the years following the assaults "very bad dreams about - not the actual incident but of Police shooting at me." There was no elaboration of this in the evidence but I accept it so far as it goes and it goes this far - that the plaintiff has had some loss of enjoyment of life over the last few years. As to the physical injuries which the plaintiff suffered it is plain that they were minor and it could not be said that the plaintiff suffered any consequential physical damage after 24 April 1982. I accept, however, that on that day he suffered to a substantial degree of pain, fright and anxiety. There is no evidence of special damage and none is claimed. The compensatory damage is therefore necessarily limited and I would award $2,000-00. 106. I turn therefore to the question of whether the plaintiff should receive aggravated damages or exemplary damages or both. Again I am of the view that the appropriate award should encompass the torts of wrongful arrest, false imprisonment, assault and battery (i.e. trespass to the person) and I consider that if damages are to be awarded, on the basis of aggravation or punishment, which I take to be the broad distinction between the two, that such damages necessarily flow from the combination of torts committed upon the plaintiff on that day; although I express the view that by far the greater part of those damages would be in relation to the assault and battery i.e., trespass to the person. I appreciate that there may be a distinction between the torts of false imprisonment (which in the circumstances of this case I would couple with the wrongful arrest as being the fons et origo of the false imprisonment) on the one hand, and the assaults on the other in this sense that what might be considered aggravated damages under the heading of assault may be general damages under the heading of false imprisonment. In McGregor on Damages 1980 14th Edition at paragraph 1357 the statement appears that damages for false imprisonment are generally "not a pecuniary loss but a loss of dignity and the like and is left much to the jury's or judge's discretion. The principal heads of damage would appear to be the injury to liberty, i.e., the loss of time considered primarily from a non-pecuniary viewpoint, and the injury to feelings i.e., the indignity, mental suffering, disgrace and humiliation, with any attendant loss of social status. This will all be included in the general damages which are awarded in these cases:

no breakdown appears in the cases." (Emphasis added). 107. The items there mentioned would more appropriately be considered aggravated damages so far as the tort of assault or trespass to the person is concerned. Nevertheless, in my view, little is to be gained in compartmentalizing the damages flowing from a continuous action and series of torts which took place on 24 April 1982. 108. I turn therefore to the next question of the difference between aggravated and exemplary damages. It is difficult to draw the dividing line. See e.g., the judgment of Lord Devlin in Rookes v Barnard [1964] UKHL 1; (1964) 1 All ER 367 at 407-414: Bahner v Marwest Hotel Co Ltd (1969) 6 DLR (3d) 322 at 330: Lamb v Cotogno [1987] HCA 47; (1987) 74 ALR 188 at 192. In Uren v John Fairfax and Sons Pty Ltd [1966] HCA 40; (1965) 117 CLR 118 at 129 Taylor J. said "It is perhaps desirable to point out that there had been a degree of confusion between 'aggravated' and 'exemplary' damages and sufficient attention has not, in the past, been given to the distinction between these two concepts. The former are, of course, given by way of compensation for injury to the plaintiff, though frequently intangible, resulting from the circumstances and manner of the defendant's wrongdoing. On the other hand exemplary damages are awarded, as Lord Devlin says in Rookes v Barnard to 'punish and deter' the wrongdoer though, in many cases the same set of circumstances might well justify either an award of exemplary or aggravated damages". 109. In Lamb v Cotogno their Honours of the High Court followed and approved the reasoning in Uren v John Fairfax and Sons Pty Ltd [1966] HCA 40; (1965) 117 CLR 118 where the High Court rejected the restrictions placed by the House of Lords in Rookes v Barnard upon awards of exemplary damages. Their Honours of the High Court confirmed that in actions for tort exemplary damages may still be awarded for conduct of a sufficiently reprehensible kind. At page 191 their Honours say: "Notwithstanding that their Lordships (in Rookes v Barnard) confined their remarks to the law of libel, it is plain that what was said by this court in Uren v John Fairfax and Sons Pty Ltd was not so restricted and that the well settled judicial approach in Australia extends exemplary damages to a wider range of torts." 110. While Rookes v Barnard placed certain restrictions on awards of exemplary damage, which restrictions are not accepted by the High Court, (nor for that matter in New Zealand or Canada see Taylor v Beere (1982) NZLR and McElroy v Cowper-Smith and Woodman 62 DLR (2d) 65 at 71) Lord Devlin, with whom the other Lords agreed, did not suggest any restrictions to aggravated damages and indeed said at page 412 "aggravated damages in this type of case can do most, if not all, of the work that could be done by exemplary damages". Hence I do not understand their Honours of the High Court as suggesting that Rookes v Barnard creates any change in the law in relation to aggravated damages and I do not understand Lamb v Cotogno as suggesting that aggravated damages does not remain a head of damage and a separate head from exemplary damages. Indeed their Honours set out the distinction at page 191-192 although conceding that there may be cases in which it will be difficult to differentiate. What their Honours say is this: "Aggravated damages, in contrast to exemplary damages, are compensatory in nature, being awarded for injury to the plaintiff's feelings caused by insult, humiliation and the like. Exemplary damages, on the other hand, go beyond compensation and are awarded 'as a punishment to the guilty, to deter from any such proceeding for the future, and as to proof of the detestation of the jury to the action itself': Wilkes v Wood (1763) 98 R 489 at 498-99 per Pratt L.C.J." 111. These remarks, coupled with the remarks of their Honours in Uren v John Fairfax and Sons Pty Ltd and particularly the remarks of Taylor J. in that case which I have already quoted make it clear that in Australia there is a recognised distinction between aggravated and exemplary damages and in appropriate cases either or both of these types of damages can be awarded. Nevertheless, and although the exercise may be difficult, care should be taken to avoid "double dipping" where the circumstances permitting either category overlap. 112. Turning first to aggravated damages it seems therefore that the basis lies in compensation but compensation of a particular kind based not on physical injury or discomfort but on humiliation and injury to feelings. In that sense it may simply be a factor in the calculation of compensatory damage and not a separate heading or sub-heading of damages. In this case however and particularly when I am awarding also exemplary damages it seems important to specify a distinction even if it may not really exist between compensatory damages and aggravated damages even if that category may be no more than compensatory damages inflated by circumstances of aggravation. 113. It seems to me, although I can find no authority directly in point and counsel were unable to refer me to any, that in so far as aggravated damages for trespass to the person are concerned the character or reputation of the plaintiff may have some relevance. McGregor on Damages (14th Edition) is silent on this point though it is stated at paragraph 211 that "In certain torts, particularly those of defamation, false imprisonment and malicious prosecution, the measure of damages may be affected by the conduct, character and circumstances of both plaintiff and defendant." No doubt however it could be argued that aggravated damages may be the more aggravated in trespass if the person who was assaulted was a person of good standing and his humiliation in the community as a result of such actions therefore the greater. It is a somewhat delicate line to tread because it must not carry any implication that a person of bad reputation can be humiliated and insulted as the plaintiff was on this occasion. I think the appropriate approach is to remind oneself that the extent of aggravated damages will vary with the circumstances of the case and one of those circumstances may be the reputation of the plaintiff. The plaintiff here has suffered considerable and indeed excessive insult and humiliation for which he must be entitled to aggravated damages. It cannot be suggested that because of his reputation (and I bear in mind what his counsel reminds me that until these events he had no criminal convictions) he has no feelings to be insulted and no emotions of shame or humiliation to be assuaged. The plaintiff is entitled to aggravated damages. 114. In my view he is also entitled to exemplary damages. The damages are sometimes described as "punitive" because they are there to punish or mark the disapproval of the Court; and in this respect there is a thin line between the processes of the civil law and the criminal law. However the plaintiff has not invoked the criminal law and has sought from the civil law an award appropriate to deter and discipline. Brennan J. in XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd [1985] HCA 12; (1985) 155 CLR 448 at 471 contrasts exemplary damages and compensatory damages and says "an award of exemplary damages is intended to punish the defendant for conduct showing a conscious and contumelious disregard for the plaintiff's rights and to deter him from committing like conduct again". 115. In my view, there could be no more apt description of the defendants' conduct than that they acted in contumelious disregard for the plaintiff's rights. 116. In Fontin v Katapodis [1962] HCA 63; (1962) 108 CLR 177 Owen J. said at p 187: "In an action for assault, as in many other cases of tort, the conduct and motives of the parties may be taken into account either to aggravate or mitigate damages. In a proper case the damages recoverable are not limited to compensation for the loss sustained but may include exemplary or punitive damages as, for example, where the defendant has acted in a high handed fashion or with malice." 117. Again I have no hesitation in concluding that in this case the defendants have acted in a high handed fashion and with malice. 118. The plaintiff's counsel has argued that the damages in toto should be "huge". I agree that a substantial sum should be awarded but there must be rational limits. For aggravated damages those limits should not go beyond a proper solatium for the injured feelings and insults the plaintiff himself has suffered. In awarding exemplary damages or what are sometimes called vindictive damages the court should not itself be vindictive. If the principle is "rather like imposing a fine ... to hit the defendant hard if he has disregarded the rights of others" (per Devlin J. as he then was - in Loudon v Ryder (1953) 2 QB 202 at 209) or "to punish or deter" (per Lord Devlin in Rookes v Barnard) or "a penalty for a wrong committed in such circumstances or in such manner as to warrant the Court's signal disapproval of the defendant's conduct" (per Taylor J. in Uren v John Fairfax and Sons Pty Ltd at p 131) then there should be limits to the penalty or fine. The criminal law is not invoked and of course the criminal law can have a wider range of penalties. But an oversubstantial civil penalty may have more lasting and unfortunate effects upon a defendant than even a gaol sentence. One must hold the scales of justice in equal poise for defendants as well as for plaintiffs. Nor in my view can one totally put out of one's mind the obvious - that the penalty, which in all logic should go to the State, becomes a windfall for the plaintiff who, so far as his own damage is concerned, should already have been compensated in full by the award of aggravated damages. 119. I hasten to say that this is not suggesting - and indeed I am prohibited from so suggesting

• that exemplary damages should never be awarded. On the contrary I regard this case as eminently one where they should be awarded. But the considerations I have set out are, I consider, proper to take into account.

120. This is a gross case of interference with the person, the liberty, the rights and the feelings of the plaintiff. In my view that must be expressed in substantial aggravated damages and substantial exemplary damages.
121. For the injury to the plaintiff's feelings, the insults and humiliation to which he was subjected I award by way of aggravated damages the sum of $15,000-00.
122. For the wanton, malicious and outrageous conduct of the defendants, for their deprivation of the personal liberty of the plaintiff, for their disregard of the law which they are sworn to uphold I award by way of exemplary damages the sum of $15,000-00. The total award therefore of compensatory, aggravated and exemplary damages will be $32,000-00.
123. At the commencement of the trial though obviously somewhat spectacularly out of time the defendants were given leave to amend their defence to plead S.162 of the Police Administration Act. Sub-s. 1 of that Act reads: "1. All actions and prosecutions against any person for anything done in pursuance of this action shall be commenced within two (2) months after the act complained of was committed and not otherwise." The plaintiff did not commence his action within two months after the acts complained of.
124. Although I permitted the defendants to amend their defence in this manner, subject of course to the question of costs which no doubt would have been considerable had the defendants succeeded on this plea, it seems to be clear on the facts as I have found them that the defence does not avail the defendants. In the circumstances it does not seem possible for the defendants to argue that the acts which they perpetrated upon the plaintiff on 24 April 1982 were done "in pursuance of this Act".
125. In Hamilton v Halesworth [1937] HCA 69; (1937) 58 CLR 369 the defendant was a special constable appointed under the Police Offences Act of New South Wales. The plaintiff and two companions were walking through Centennial Park and one or other of the parties plucked pansies and made off with them. The defendant took them to the Superintendent's house. Later all three were charged with stealing the pansies. The plaintiff was discharged and commenced an action in the Supreme Court against the defendant charging him with wrongful arrest, assault and malicious prosecution and claiming damages. The action was commenced within six months but more than two months after the acts alleged against the plaintiff. The defendant pleaded the protection afforded by the New South Wales Police Offences Act1901-1936 s.114(1) which reads: "1. All actions and prosecutions to be commenced against any person for anything done in pursuance of this Act shall be commenced

within two months after the act was committed." The trial Judge directed a nonsuit. An appeal to the Full Court of the Supreme Court of New South Wales was dismissed and the plaintiff then appealed to the High Court which also dismissed the appeal. Their Honours Starke, Dixon and McTiernan JJ. held that the section protected special constables and that the defendant could rely upon that protection. Starke J. at page 374: "The learned judge directed a nonsuit and his decision was affirmed on appeal. The object of a provision such as that set forth is to protect a person acting illegally but in supposed pursuance of and with a bona fide intention of discharging their duty (Theobald and Crichmore 1818 1 B and Ald 227). The defendant is entitled to protection if he honestly believes in the existence of a state of facts which if they had existed would have justified him doing the acts complained of. Some facts must exist such as might give rise to an honest belief but it is not necessary that the belief should be reasonable (Chamberlain v King (1871) LR 6 CP 474). It was contended that the question of the honesty of the defendant's belief in this case was a question of fact for the jury. But ample facts were proved on which the defendant might honestly believe that the appellant and his companions were stealing pansies and not the slight evidence was adduced that he did not so believe. It would have been wrong in such circumstances to leave the question of the honesty of the defendant's belief to the jury." Dixon and McTiernan JJ. in a joint judgment said at page 380: "In the present case, however, the defendant took the plaintiff into custody on the footing that he had just been a party to the commission of the offence of stealing plants. If the defendant honestly intended to put the law in motion and he really believed in the state of facts which if it existed would have justified his act or he intended to act according to the duties of his office as a special constable then it would be a thing done in pursuance of the statute although it turned out that the plaintiff was not in fact guilty. (See Hermann v Seneschal [1862] EngR 720; (1862) 13 CBNS 392 at 402, 404: Selmes v Judge (1871) LR 6 QB at 728). When a defendant is found purporting thus to execute what is actually a statutory power the burden rests upon the plaintiff of proving that he was not actuated by an honest desire to do his

duty: that he was not acting in the intended, but in the pretended, execution of his functions (cf G. Scammel and Nephew Limited v Hurley (1929) 1 KB at 427, 429)." Later at page 381 their Honours said: "The burden of proving an indirect motive or mala fides lies upon the plaintiff and, in our opinion he has not discharged it." 126. In my view the facts in this case make it abundantly clear that actions of the defendants were mala fide. Their actions were totally unjustified. No doubt it could be said that they honestly believed that the plaintiff was a thief and a liar. Had they proceeded in any reasonable course of action complying with the provisions of the Police Administration Act, had they either properly arrested the plaintiff or properly questioned him with due caution and using proper procedures they would have been entitled to the protection of this section. Even if they had wrongfully arrested him in the course of any mistaken but honest belief as to their powers they may properly have brought themselves within the section. In my view they had no mistaken belief as to their powers, they were sufficiently experienced to be fully aware that what they were doing was at the very least irregular and could more properly be described as outrageous, and such honest belief as they may have had in the plaintiff's complicity in various crimes did no more, in this case, than give them a sense of self-justification for perpetrating a series of wrongs against the plaintiff which they fully knew were wrong and which they believe would not be discovered; because the plaintiff had committed thefts; because he, as they thought, was an unpleasant character whose word would not in any event be believed; because they took precautions to see that no substantial marks of violence could be seen on his person; because they believed they had reduced him to abject humiliation; and because he had himself told them that he would make no complaint. They believed that they could do what they would with him. Such "honest" belief as they had was no more therefore than a justification for ill-treatment. It is conduct so far outside the conduct to be expected of a police officer that it cannot be said to have been done "in pursuance of this Act". 127. So in Theobald v Crichmore (1818) 1 B and Ald 227 the defendant constable acting under the warrant of a Magistrate broke open the door of the plaintiff's dwelling and took away his goods. It was admitted that the defendant was not justified by warrant in breaking the outer door. To action for trespass the defendant pleaded that the action would not be maintained because it was not brought within three calendar months after the act had been committed as required by the statute. On appeal it was held that that was a good defence. Lord Ellenborough C.J. said: "It is perfectly clear that the defendant had no right to break the outer door for the purpose of executing his warrant of distress. The question is, then, whether he can be said to have acted in pursuance of the statute within the meaning of that term as there used: if it meant only acts lawfully done under the authority of the statute, he would not be protected. But the object was clearly to protect persons acting illegally, but in supposed pursuance, and with a bona fide intention of discharging their duty under the Act of Parliament. The argument goes to shew, that in every case where the law is exceeded, the officer loses the benefit of the statute: but in those cases only can he require its protection. It was evidently the intention of the Legislature to give this protection in a case where he had acted illegally through ignorance or inadvertence. There is no evidence in this case to shew that he acted with any other intention than that of executing the authority delegated to him by the warrant; and I am therefore of opinion that the action is commenced too late, and that this rule should be made absolute." Bayley J. concurred. He said: "It appears to me that the officer acted illegally, but in the supposed bona fide execution of his duty and that he is therefore entitled to the protection of this statute." 128. The emphasis is on the bona fides of the actors. I find positively here that the defendants were not acting bona fide. To paraphrase Lord Ellenborough they did not act illegally through ignorance or inadvertence. See also Siebert v Miller (1896) 12 WN (NSW) 87 where Darley C.J. held that the defendant, a constable, was entitled to notice of an action against him for malicious prosecution and false arrest. His Honour said: "But throughout the plaintiff's case there was not one word of evidence to show that the defendant was acting in any way except in his official capacity as police constable ... The defendant may have acted very wrongly and upon insufficient grounds in arresting the plaintiff, but that does not alter the fact that he was acting as a constable, and was therefore entitled to notice." 129. I do not read His Honour's judgment as suggesting that "acting as a constable" meant doing anything however improper provided that one was on duty at the time. 130. Mr Stratton, in the course of his able address, conceded that a constable, to obtain the protection of this statute, must be acting bona fide. I repeat that in my view the defendants were not acting bona fide. I go further and find they were acting mala fide, i.e. with malice. 131. It may follow from what I have already said that the third defendant i.e., the Northern Territory of Australia is not vicariously liable for the torts of the first and second defendants in this case. The first and second defendants must rely on s. 163 of the Police Administration Act because at common law the relationship of master and servant did not exist between the Crown and a member of the Police force. See Enever v The King (1906) CLR 969: Attorney-General for NSW v Perpetual Trustee Co Ltd [1952] HCA 2; (1952) 85 CLR 237 and particularly per Kitto J. at 303-4. That position is altered so far as the Northern Territory is concerned by s.163 of the Police Administration Act. 132. Section 163(1) states:- "(1) Subject to sub-section (3) the Crown is liable in respect of a tort committed by a member in the performance or purported performance of his duties as a member in like manner as a master is liable in respect of a tort committed by his servant in the course of the employment of that servant and, shall in respect of such tort, be treated for all purposes as a joint tortfeasor with the member." 133. "Member" is defined in s. 4 as meaning "a member of the Police Force". 134. Sub-section (3) precludes liability of the Crown to pay damages in the nature of punitive damages. 135. The question therefore fails to be decided on whether, within the ordinary bounds of vicarious liability, the Crown as master is liable for the torts of its servants the first and second defendants on 24 April 1982. 136. In my view and in the circumstances of this case the Crown is not so liable. It seems to me unanswerable that what the first and second defendants did that day was completely outside the course of or the scope of their employment. At the most (and I do not concede this in the present circumstances) it might be possible to argue that the original wrongful arrest was no more than excessive zeal which would come within the concept of vicarious liability. But, as I have, I hope, already suggested the actions of the first and second defendants must be looked at as a whole and it is axiomatic that nothing in the Police Regulations, nothing in any instructions of a superior (and there were no instructions here) nothing in the Police administration generally could conceivably warrant the assaults, the threats, the menaces with a revolver and the actual shooting of a revolver close to the crouching and terrified plaintiff that occurred here. It would indeed be a sad day for our society if it were otherwise. 137. It is almost unnecessary to cite authority in circumstances as plain as this. However the case of Deatons Pty Ltd v Flew [1949] HCA 60; (1949) 79 CLR 370 assists in the general approach. There a barmaid after an altercation with a customer first threw into his face beer out of a glass and then threw the glass at him with the result that he lost the sight of one eye. It was held that the barmaid's act was an independent personal act which was not connected with or incidental in any manner to the work which she was either expressly or impliedly authorized to perform. At p 378 Latham C.J. said:- "An employer is liable for the act of his servant only if the act is shown to come within the scope of the servant's authority either as being an act which he was employed actually to perform or as being an act which was incidental to his employment." 138. The first and second defendants here were certainly not authorized to perform the sort of acts which they did nor were such acts incidental to their employment. 139. See also Keppel Bus Co Ltd v Sa'ad bin Ahmad [1974] UKPC 2; (1974) 2 All ER 700 where a bus conductor inflicted gratuitous violence on a passenger. Lord Kilbrandon delivering the judgment of the Privy Council said at p 703, "the evidence falls far short of establishing an implied authority to take violent action where none was called for". For an Australian that case should, if I may respectfully say so, carry a special aura of authority since one of the members of the Judicial Committee on that day was Sir Harry Gibbs. 140. The action as against the third defendant must be dismissed. That renders it unnecessary to deal with the flurry of contribution notices which took place between the defendants. At the commencement of these proceedings the first and second defendants served a notice of contribution or indemnity upon the third defendant. The third defendant retaliated by serving notices, and subsequently amended notices, of contribution or indemnity against the first and second defendants. That situation would no doubt have raised interesting questions had it become an issue. But it does not save perhaps on the question of costs. 141. There will be judgment against the first and second defendants for the sum of $32,000-00 with costs. There will be judgment for the third defendant against the plaintiff with costs. 142. I otherwise reserve the question of the liability of the first and second defendants to pay such costs as are found to be due by the plaintiff to the third defendant and the question of any reserved costs.