Gibb-Smith v State of New South Wales

Gibb-Smith v State of New South Wales - [2018] NSWDC 204 - NSWDC 2017 case summary — Zoe

[3]

Judgment Curia advisari vult

The plaintiff brings an action for damages for the torts of 1. assault and battery, 2. false imprisonment, and 3. malicious prosecution alleged to have been committed by members of NSW Police on the evening of Wednesday 14 April 2014 and in the early hours of Thursday 15 April 2014 at Glenbrook and at the Springwood Police Station and in between those two places. The statement of claim nominates as individual tortfeasors Constable Russell Budin, Constable Franjo Maracic and Constable Christopher Doyle. Each of those gentlemen has since been promoted to Senior Constable, but I shall refer to members (and a former member) of the NSW Police by the rank that each held at the relevant time. These police officers are deemed to be persons in the service of the Crown pursuant to the Law Reform (Vicarious Liability) Act 1983, s6. Pursuant to s8 of the same Act, the Crown is vicariously liable for the acts or omissions of these police officers in the service of the Crown. Pursuant to the Crown Proceedings Act 1988 s5, the plaintiff brings these proceedings against the defendant.
Assault and battery are separate torts: see Bullen & Leake & Jacob's, Precedents of Pleadings, 18th edition, Vol 1, 6-01 at p76. They often are conjoined, as battery is often preceded by assault, but battery can occur without an assault, for example, where a person is struck from behind by an assailant of whose presence he is unaware. The statement of claim does not differentiate between the two torts and pleads "assault and battery" as if it were the one tort.
It is alleged that the plaintiff sustained some physical injuries, in particular, a chipped front tooth which required dental treatment and capping. However, the plaintiff makes no claim for personal injury damages, merely "general damages" (T1.24). There could be one or two reasons for the plaintiff's so limiting his claim: 1. Civil Liability Act 2002 ('CLA') s21 provides that in an action for the award of personal injury damages where the act or omission which caused the injury was negligence, a court cannot award exemplary or punitive damages, or aggravated compensatory damages; and 2. where the amount of personal injury damages does not exceed $100,000, the Legal Profession Act 2004 s338 fixes the maximum costs recoverable from the unsuccessful party. The same provisions can now be found in Legal Profession Uniform Law Application Act 2014 section 61 and Schedule 1.

[4]

The plaintiff's background

The plaintiff was born in August 1996. At the time of the events now in question he was 17 years and 8 months old. During the hearing he was 20 years old but he has since reached 21 years. He is a single man with no dependants. Between 2008 and 2010 he attended Blaxland High School. In 2011 he went to Canada and studied at Forest Heights Community College in Nova Scotia. He returned to Australia in 2013. He then enrolled in a course which was the equivalent of the HSC at the Blue Mountains TAFE College at Wentworth Falls. He was studying this course at the time of the relevant events. He was living with this aunt and grandmother at Faulconbridge. When giving evidence he described his grandmother as being '91' which means that at the relevant time she was about 88 years old. This is relevant to an event at Springwood Police Station.
The plaintiff was, and is, an avid skateboarder. After completing his studies he found work in skateboard retail, including managerial work in an online business. His interest in skateboarding is also relevant to the events currently in question.
The plaintiff thought that in April 2014 he was 5'6" tall and weighed 52 kgs. He was then slightly built. He described himself as "petite", albeit that grammatically "petit" was appropriate. A photograph of the plaintiff taken that night is numbered 4 in exhibit E, the four photographs probably taken at Springwood Police Station. The plaintiff then looked younger than his chronological age. I shall discuss this matter later when it is raised during the course of the events in question.
In January 2014, the plaintiff was riding his skateboard in George Street, near Central Station "weaving in between groups of people". He was told by a police officer to "get off your skateboard". The plaintiff admitted that he may have said to that officer, "You're fucking joking". He was asked by an officer to provide his details. He thought he did say to an officer, "This is fucking ridiculous". The plaintiff admitted waving his arms around and accusing the police of being heavy handed. All of this arose in cross-examination, designed to elicit from the plaintiff his use of offensive language, at least in his dealing with police officers. However, for learned counsel for the defendant to have such information available to her, the plaintiff must have provided to the police officer(s), in January 2014, his details given that this incident could be recorded in the computerised operational policing system (COPS) as a matter "for intelligence". It is important to note that, when asked by an officer to provide his details, the plaintiff did so.
This case does involve the use of language which I shall describe, using the terminology of the Summary Offences Act 1988 section 4A(1), as "offensive language". Terminology used during the hearing included "bad language", "foul language", "swearing", "obscenities", "profanities", "the vernacular" and "vulgar language".

[7]

LSC Adams, as shift supervisor, would have been an Acting Sergeant and is often referred to both orally and in writing as "Sergeant". LSC Adams had a vehicle BL 14 ("Blue Mountains 14"). The car crew were in vehicle BL 16 ("Blue Mountains 16").

At 21.21.04, BL 16 were informed of this job and acknowledged that assignment. VKG then broadcast the incident to "all resources". That was acknowledged by NWM 246 (vide infra). At 21.28.01, BL 16 arrived at 4 Lucasville Road. At 21.32.33 LSC Adams spoke to VKG: "Yes, radio, I've just had a phone call from BL 16. I think they're off at Lucasville… Apparently they've got an out of control party down there, radio. I think the Highway Patrol's heading down there so if you can just let him know they shouldn't be too long. I'm stuck here at the Station. I can't go anywhere." "Highway Patrol" is a reference to NWM 246 ("North West Metro 246"), a Highway Patrol car manned by SC Bulpett and Constable Pavy. VKG then asked NWM 246 for its estimated time of arrival. The reply was this: "… we're just leaving Springwood Station. Can you find out if they want us to expedite or do you want us to make our way down. If not probably about 10 minutes." The police have a code for speeds at which vehicles are to travel. Officially there are only two levels: Code Blue: normal road speed; Code Red: with lights flashing and sirens sounding. Unofficially, there is also a "code purple", a "bit of both blue and red" which indicates to proceed without stopping or diverting (T218). VKG enquired of BL 16 what speed NWM 246 should use and advised "blue" which was then broadcast to NWM 246.
At 21.39.12 Cons Fulton of BL 16 advised VKG "We're all good here. Just talking to the home owner." Cons Fulton's statement (ex 9) contains this: "Cons Mammen and I were approached by a young male who introduced himself as the host of the party. Cons Mammen and I had a conversation with the male in regards to underage drinking and closing the party down." The statement might telescope two events as the party was not closed down then. NWM 246 arrived at 4 Lucasville Road at 21.55.41. Apparently BL 16 was parked in Lucasville Road and NWM 246 parked behind it. Cons Fulton's statement then says this: "I got out of BL 16 and approached SC Bulpett and Cons Pavy and I had a short conversation with them… I observed a number of people coming and going from the address and it appeared that a large number of partygoers were heavily intoxicated. I heard SC Bulpett have a conversation with the same young male that identified himself as the host of the party. I heard SC Bulpett tell him to shut the party down." Const Fulton advised VKG of that decision at 21.59.15. Accordingly, it can be seen that although BL 16 arrived at 4 Lucasville Road at 9.28 pm, the decision to close the party down was not made until a half hour later, just before 10.00pm. It also follows that Cons Fulton and Cons Mammen were probably "out the front" of the party for about half an hour before SC Bulpett directed that the party be closed down.
At 22.00.01 LSC Adams in BL 14 advised VKG that he had completed his job at the Police Station and was going to 4 Lucasville Road. He arrived there at 22.12.46 and, as senior officer, took charge of this police task. In the meantime, NWM 246 advised VKG at 22.00.24 that: ""It's not quietening down at all, so we're going to try and get everybody out." At 22.03.47 Cons Fulton asked VKG if LSC Adams "could come a bit quicker… We've just got a lot of drunken, argumentative people that are refusing to leave." This prompted LSC Adams to go to "code purple". At 22.07.12 NWM 246 advised VKG that: "Radio, everyone's leaving the property now. I don't think we're going to have any issues. It's just trying to explain to drunken people what they've got to do. But everything's fine." At 22.11.32 NWM 246 advised VKG: "We've cleared this house pretty much of everybody. The only issue that we're gonna have: most of them are heading towards the park at the end of Lucasville Road and once they get there we've got no control over what they're gonna do." VKG then said: ""That's the tennis park and that where the Glenbrook cinema and everything like that is?" To that NWM 246 replied: ""Yeah that's correct. We've got probably 40 odd people walking down that way." VKG then broadcast to those concerned at 22.11.57 that those leaving the party were heading to Glenbrook Park.

[8]

How many people left the party?

There are various estimates of how many people attended the party and/or left it. The most contemporary estimate is that provided by NWM 246 (either SC Bulpett or Cons Pavy) of "40 odd". Cons Mammen, in his statement of 5 July 2014 (ex 10), said: "I noticed there were 40-50 intoxicated persons between the ages of 16-19 in the residence." A little later at [5] Cons Mammen said: "5. When the party was shut down a large amount of persons between 16-19 years of age with the majority of these persons being under the age of 18 started walking towards the direction of Glenbrook Park. Most of these youths were intoxicated. Glenbrook Park consists of swings, public toilets, BBQs and tourist information facilities. This area is known for underage drinking and anti social behaviour." The host of the party, Mr Stewart, whose birthday it was, was assessed by Cons Mammen to be "heavily intoxicated". However, it appears to me to be unlikely that he would leave his own residence when the police shut the party down. He is likely to have remained "at home" with, perhaps, a small number of close relatives or friends. I can accept that not all of those who attended the party left for Glenbrook Park when the party was ended.
The plaintiff said that there were "50 to 60 people at the party" (T10.44). Various estimates were given by Cons Doyle (for whose role vide infra). In his notebook, written up on 17 April 2014 and signed at 2.30 am, he recorded "a large group of 36-40 people" in Glenbrook Park when he and his offsiders arrived there at 22.16.21 (exhibit 5). Cons Doyle also prepared "Facts Sheets" for the prosecution of two other young men who attended the party, Mr Zachary Baldock and Mr Kane Pembroke. Each of those Facts Sheets was prepared on 21 April 2014. Each refers to a "group of about 40 plus teenagers, ranging between 15 and 19 years of age." In his statement made on 26 May 2015 he said: "On arrival, I saw approximately 50-60 children and young persons aged between 13-18 years of age congregated in the Glenbrook Park." One ought note the hyperbole: on each recitation, the number increases and, when age is introduced, each time the age range decreases.
LSC Adams said, "there would have been between 60 to 80, easy" (T96.32) but, for reasons I shall later give, his evidence is unreliable, the subject of reconstruction. He made no relevant contemporaneous or near contemporaneous record. I am unable to accept his assessment. It smacks of hyperbole. There are no estimates provided by others closely involved in the relevant events, Cons Fulton, Cons Budin and Cons Maracic. The tendency to hyperbole was continued by learned Counsel for the defendant who said in her written submissions (MFI 15) [7d]: "Due to the large number of people, said variously, by attending police officers to be 50 - 100 in number…" The appropriate finding is, in my view, that about 50 people attended the party and that about 40 people subsequently made their way into Glenbrook Park.

[9]

The plaintiff leaves the party

At [9] above, I recited the plaintiff's evidence as to when he arrived at the party. Significantly, in my view, he did not give evidence of seeing a police vehicle (BL 16) out the front of 4 Lucasville Road. I infer, therefore, that the plaintiff reached the party before BL 16 first turned up at 9.28pm. He would have been at the party for at least half an hour prior to the police's first attempt to shut the party down at, or very shortly before, 10.00pm. That is consistent with the plaintiff's evidence. When asked how long he had been at the party before the police arrived he said, "around, I think, 40 minutes. It wasn't long" (T12.02). In cross-examination he said, "Around 40 minutes, 20, 40 minutes. I can't really remember" (T40.25). The plaintiff was not told directly by the police to leave. According to his evidence there was a consensus amongst the partygoers that it was time to leave as "the police had come" (T12.06). He walked from the backyard, around the side of the house, to its front where he saw "many" police officers. He was in company with his friend Kane Pembroke, his girlfriend Alexis (Lexie) Baldock and her brother, Zachary Baldock. At some stage arrangements were made for Kane Pembroke's sister to drive to Glenbrook to pick up this group of four. Kane Pembroke lived at Warrimoo and Zachary Baldock lived at Blaxland. The Blue Mountains villages west of Glenbrook are, as one travels west, Blaxland, Warrimoo, Valley Heights, Springwood and Faulconbridge. There was no challenge to the existence of this arrangement.
Cons Fulton, after stating that she heard SC Bulpett tell Mr Stewart to shut the party down, went on to say in her statement: "6. Amongst the group of intoxicated people I observed a male holding a skateboard with another male. I would describe this male as Caucasian, rosy complexion, about 160-170cm tall, medium build, about 16 - 18 years of age, has short sandy blonde hair, about 70 - 80kg, wearing a grey hoodie jumper, black jeans, black shoes, smelt strongly of intoxicating liquor, had slurred speech and glazed eyes. The male was belligerent and argumentative as he didn't listen to anything that was being said by any police officers. I heard him swear profanities and ignore police directions. 7. I would describe the other male with the skateboard as Caucasian, rosy complexion, about 160 - 170cm tall, about 16 - 18 years of age, has long brown wavy shoulder length hair, no facial hair, slim build, about 65 - 75kg, wearing a black t-shirt, black jacket, grey pants and socks, smelt strongly of intoxicating liquor and was carrying a skateboard with an octopus painted on it. The male was belligerent and argumentative as he didn't listen to anything that was being said by any police officers. I heard him swear profanities and ignore police directions." She then stated the directions that were given to her and Cons Mammen by LSC Adams about patrolling the area after the closing down of the party and her movement from that time on. The descriptions I have quoted were descriptions of two people she observed out the front of 4 Lucasville Road. There is no doubt in my mind that the young man described in [6] of her statement is Zachary Baldock and the young man with the skateboard described in [7] of her statement is the plaintiff. She saw these two later, after their arrest as they were conveyed by BL 16 to Springwood Police Station, and she also saw them at the Station. Her notebook entry (part of ex 9) appears to have been made at the Station. However, that is not inconsistent with Cons Fulton's having encountered both the plaintiff and Mr Baldock earlier, shortly after 10pm at the front of 4 Lucasville Road. It was never suggested to Cons Fulton by learned Counsel for the plaintiff that she did not see the plaintiff shortly after 10pm at 4 Lucasville Road. Cons Fulton appeared to me to have a good recollection of this event (in particular, about what happened to the plaintiff's skateboard) and I have no reason whatever to doubt her evidence. Accordingly, I accept that shortly after 10pm on 16 August 2014 the plaintiff was behaving as Cons Fulton said in [7] of her statement.
The plaintiff said that, after leaving the party, he "started walking and ambling through the park … to take a short cut." He then marked on exhibit B (an aerial photograph, enhanced by Google) the route his group took. Making allowance for his misplacing the venue of the party, the route taken was from the western end of Lucasville Road, diagonally across the park to its southern boundary near the T intersection of Park St and Euroka Rd, then along the northern side of Park St which they crossed east of the intersection of Park St and Ross St, then headed a short distance west along the southern side of Park St, till they arrived outside the "Bakehouse on Park", which is one shop east of the south eastern corner of the intersection of Park and Ross Streets. That corner is occupied by "Con's Continental Delicatessen". In front of the Bakehouse is a bus stop and, at the back of the bus stop, below the plate glass window of the Bakehouse, is a bench seat of the type commonly found as street furniture near bus stops. The plaintiff's group "sat down and waited to get picked up" (T15.06).

[10]

Further police activity

LSC Adams gave this evidence: "Q. Can you describe what was happening at the party or at the location when you arrived? A. I seen a large number of young persons. Now, when I say "young", 21 and below probably, in my eyes, leaving the party, all relatively intoxicated. Q. When you say someone is intoxicated, what are the various indicia of intoxication in your assessment? A. Well, they're obviously - they're louder. They're - most of them were jovial. You can just tell their - their experience of drinking perhaps probably wouldn't have been as good as someone a bit older, but they all seemed to be sort of coming - moving out - they did - they obeyed the direction of leaving the premises. They were moving away from the premises to the park, the majority. That's - and because you know, staggering up the street and wandering on the roads is a common - it's something common that they generally do. They don't stay on the footpaths. They wander on the road or they'll sort of wander and meander in the front - people's front yards and urinate and all sorts of things. So, it was my responsibility to try and keep it under control as much as I could with the car crews that we had. Q. How did you approach the task of keeping it under control? A. I just told Blue Mountain 16, Mammen and Fulton, to do a general patrol, "high visibility", we call it, and I would do the same. Q. So, a high visibility general patrol, what did that involve in the circumstances? A. That just - close proximity to the group of young persons let's them know that there's a police presence and we were trying to funnel them down to the railway station, Glenbrook Railway Station and up - sort of up near the service station area where it's really well lit." Two other police units had offered assistance to the Blue Mountains police. One unit was PTC 10 ("Public Transport Command 10"), an unmarked police vehicle, containing, in order of seniority, Cons Christopher Doyle Cons Russell Budin Cons Franjo Maracic Each of these officers was in plain clothes. They were attached to Parramatta PTC TAG North West. PTC 10 responded to a VKG broadcast at 22.06.35. At 22.12.29 VKG directed PTC 10 to make its way to Glenbrook Park. They arrived "on scene" at 22.16.04.
The other unit was Dog 68. This was SC Benjamin Cook together with "Gordon", a 42kg, black German Shepherd dog. SC Cook offered to assist at 22.05.22. LSC Adams asked at 22.06.04 if he could come quickly and SC Cook then went to "code purple". Like PTC 10, Dog 68 was directed to go to Glenbrook Park at 22.12.09. At the request of LSC Adams, VKG directed Dog 68 to go to the cinema area of Glenbrook Park "and get your little partner out and go for a walk". Dog 68 arrived at Ross St at 22.17.33. Much evidence was given about the activities of BL 14, BL 16, PTC 10 and Dog 68 in Glenbrook Park. This was to effect the plan given in evidence by LSC Adams which I have just quoted. The plaintiff gave this evidence: "Q. Did anything happen whilst you were in the park? A. Yeah, we were kind of told to move along, you know, go home kind of thing. Just the general people in the park. Q. Were you spoken to specifically? A. Say directly, no. Q. Who was doing the speaking? A. Uniformed officers." In cross-examination, the plaintiff said that he saw a policeman in uniform with a dog "across the road" from the Bakehouse (T43.46).
At 22.24.35 LSC Adams called VKG: "BL 14. I'm with a dog handler [Dog 68] and … PTC 10. Most of the crowd has moved over towards the shops. You might get some cars to drive there just to stop any mal-damage [malicious damage]. We're just wandering through the park at the moment with the dog." VKG then directed BL 16 to go to the Springwood shopping area and "just patrol the shops to stop any mal-damage".
At 22.36.05 LSC Adams asked VKG to direct a car to Ross St. Seconds later VKG directed BL 16 and NWM 246 to Ross St. A simplified geographical excursus may assist. Glenbrook Park can be described as a rectangular area, bordered on the north side by the Great Western Highway, on the east side by Green St (although the most southern section of the street is identified in exhibit B as part of Park St), on the south side by Park St and on the west side by Ross St. Ross St commences at the Great Western Highway and runs south. After crossing Park St it continues on to Burfitt Parade, which runs parallel to the railway and where Glenbrook Railway Station is to be found. Exhibit B and my street directory indicate that the shopping area of Glenbrook is between Park St and Burfitt Parade, mainly along Ross St, south of Park St. The Glenbrook Cinema is in the north-west corner of the Park and, beneath that, in the south-west corner of the Park, are three tennis courts and an adjoining pavilion. LSC Adams identified a community centre as being opposite the Bakehouse, in the Park, and that may be the structure identified as "30" in both exhibit B and exhibit 7. The Park also contains on its north side a Visitors Information Centre to which motorists may gain access from a lay-by (Hamment Place) off the Highway.

[11]

The plaintiff's version of his arrest

The plaintiff, Kane Pembroke, Alexis Baldock and Zachary Baldock were waiting out the front of the Bakehouse for Kane's sister to arrive. Kane, Alexis and Zack were sitting on the bench seat. The plaintiff was standing on the left side of those sitting on the bench, close to the delicatessen. He was leaning against the plate glass window of the Bakehouse. He was holding his skateboard on his left-hand side. Nearby at this time were Declan Renshaw, Morgan Vanderant and Dylan Watson. The plaintiff was in conversation with those gentlemen.
The plaintiff was only at the bus stop for less than 10 minutes when he was approached by "three big men". It is now common ground that these were the three constables from PTC 10. They were wearing "normal clothes". One of them approached Zachary Baldock "and grabbed his bottle of alcohol and started pouring it into the gutter". This was Cons Doyle. The bottle was Johnny Walker Black Label whisky. From exhibit 15 (papers relating to the prosecution of Kane Pembroke), Mr Pembroke was the first to be seen drinking from this bottle. He then passed it on. When the bottle was in the hands of Mr Baldock, Cons Doyle seized it and proceeded to pour the whisky into the gutter - exhibit 14. In these exhibits, Cons Doyle said that Mr Baldock yelled, "Fuck you, I'm 18." Mr Baldock was in fact 18 years old.
None of the lawyers involved in these proceedings appears to have observed that Mr Pembroke's date of birth was 16 April 1996 and, accordingly, that 16 April 2014 was his eighteenth birthday. That might explain his possession of a bottle of premium whisky (a birthday gift or a purchase made to celebrate his coming of age) and why he might (if he did) vehemently protest to police that he was in fact now 18 years old.
After attesting to the pouring out of the whisky, the plaintiff's evidence continued: "And I then said, "Hey, what are you doing? You're not allowed to do that." And then one of the guys approached me and kind of grabbed me …" There is no dispute that this "guy" was Cons Budin. The plaintiff then said: "He grabbed me by the scruff of my shirt, the front of it [and] swung me around." Attempts were made to describe this garment. From exhibit E it appears to be a black, Polo sweater (or imitation thereof). He then went on to say: "Q. You were swung around. Did you still have a hold of your skateboard? A. Yeah. Q. What happened next? A. My legs got taken out from beneath me and I fell to the ground pretty heavily. Q. When you say your legs were taken out from beneath you, do you know how that was done or not? A. I think it's a kick or a leg sweep. Q. Was that by the person that was holding you? A. Yes. Q. And I take you ended up on the footpath, where you were standing initially? A. Yes. Q. How did you come to rest on the footpath? A. Is this the initial fall, or is this once I'm on the ground? Q. Well, the initial fall, when your legs were swept from underneath you. A. I fell to my right side. Q. And which way was your head facing? A. To the left. Q. Was it close to the bakehouse, on park? A. No, it was closer to the gutter. Q. And what happened next? A. I was on my stomach and I was completely relaxed. I put my hands behind my head …"
The plaintiff then drew a sketch showing his position on the footpath outside the Bakehouse. It shows the plaintiff's feet as being close to the bench and his head as being close to the gutter. His evidence continued: "Q. You told his Honour that you fell onto your right hand side. What happened next? A. I ended up on my stomach at that point, put my hands behind my head, like in the movies, and was completely relaxed because-- Q. Were you told to put your hands behind your head? A. Yeah. … Q. But you remember putting your hands behind your head. A. I did. Q. What happened after that? A. As I said, they were there kind of ready to be - whatever needed to happen then. He grabbed them and manipulated them aggressively, and like was twisting them and then I turned my head to the right and saw my friend get pushed against the window, and then the officer then grabbed my head by the hair and picked it up and smashed it back into the concrete. Q. Did that cause you any pain or discomfort? A. Yeah. It chipped my tooth, and that's when I said to him, you know, "What have you just done? You've chipped my tooth." Q. Well, what did you say to that person? A. I said something to the effect of, "What have you just done? You've just chipped my tooth, you effing idiot." Q. And how did you become aware of the fact that your tooth was chipped? A. I felt it and it was in my mouth. Q. You could feel the chipped portion in your mouth. A. Was on my tongue. Q. Did it remain in your mouth? A. It did. Q. What happened-- HIS HONOUR Q. Which tooth was it? A. This one. Q. Your-- A. At the front. Q. One of your two front teeth. A. Front left. Q. Front left tooth. Right. A. Little bit of the right as well. CANCERI Q. So you were giving evidence that your hands were I think manipulated. A. Yeah. Q. And were handcuffs applied? A. Yes, once - after the-- Q. And were they applied with your hands behind your back? A. Yes. Q. Were you still on the ground when that happened? A. Yes. Q. And what happened next? A. I got picked up and pushed against the side of the paddy wagon and then pushed into the back - my friend's back. Q. How did you feel at that point in time emotionally? A. Humiliated, embarrassed, scared." The last mentioned friend was Mr Baldock. The "paddy wagon" was BL 16. The officer who pushed the plaintiff into BL 16 was Cons Budin (T25.02).
In cross-examination, the plaintiff denied that he knew that the "three big men" were police officers: T43.04 to T43.18, T48.50 to T49.13 and then this evidence was given: "Q. Did you see the police with their police badges and a torch shining over the top? A. No. Q. But is it possible that they were there with police badges and a torch? A. Well, I saw them and I didn't see anything identifying them as police. Q. They came up to you though, didn't they, and they said "Guys, we're the police"? A. No."
The plaintiff also denied "screaming profanities at the police officers" (T44.03). When asked whether his friends were screaming things such as "pig" and "cunt" at the police the plaintiff said "my friends don't talk like that". The cross-examination then turned to the issue of the plaintiff's use of offensive language, including the matter I discussed at [7] above. Eventually this evidence was given: "Q. So you are prepared to use the word "fuck" or "fucking" in conversations, correct? A. When I was younger, yes. Q. Well when you were 17, shall we put it that way? All right. So is it possible, therefore, that you may have used the word "fuck" or "fucking" when dealing with the police in April 2014 at Glenbrook? A. Yes, your Honour. I Q. Thank you. A. swore once I had been - my tooth was chipped, that's when I swore." Learned counsel for the defendant returned to the issue of offensive language (referring to the plaintiff's use of Facebook) at T60.15 to T60.21 and then from T65.48 to T75.35. Suffice it to say that I accept that the plaintiff does, from time to time, use offensive language (but so does the vast majority of the Australian population after puberty) and that he, at times, might use such language offensively. Even "four letter words" are these days used merely for emphasis (as intensifiers), as substitutes for forgotten words, or purely out of acquired habit, and even for comic effect, and sometimes even affectionately. Most Australians would find it difficult to say truthfully that they had never used offensive language.
Nevertheless, the plaintiff denied using certain words in his confrontation with Cons Budin: "Q. When these police came over to you, there were a number of profanities being used by people in your vicinity such as "Pig cunts", do you remember hearing that? A. No. Q. Do you remember hearing lots of use of the word "Fuck" and it's various derivations? A. No. Q. And one of the people who was swearing in amongst this group was you, wasn't t? A. No."
The plaintiff went on to deny a large number of things that were said by Cons Budin: "Q. And then a gentlemen who you've described as having piercing blue eyes, Constable Budin, came up to you and identified himself. He said "Guys, my name is Constable Budin", do you remember that? A. No. Q. He said "I'm from Parramatta Police Transport Command", do you remember him saying that? A. No. Q. And he said "These other guys are cops as well", do you remember him saying that? A. No. Q. And then he said "Now, you need to move on and leave this area", do you remember him saying that? A. No. Q. "You've been drinking", do you remember him saying that? A. No. Q. "Most of you guys are underage", do you remember him saying that? A. No. Q. And then he said "The worst thing is, the majority of you guys are intoxicated", do you remember him saying that? A. No. Q. "And from what I've just heard, I feel that other people around you are going to fear for their safety", do you remember him saying that? A. No. Q. "And for these reasons, I'm going to give you all a direction to move along". Do you remember him saying that? A. No. Q. "And further to that, I want to let you know that if you don't move on, you're going to be committing further offences", do you remember him saying that? A. No. Q. "And you could be arrested", do you remember him saying that? A. No. Q. And then he said "C'mon guys, don't wreck your night, just leave", do you remember he said that? A. No. Q. And then you sat there and you said to him "We can sit here, cunt, we're 18, fuck off". Do you remember saying that? A. No, I was 17. Q. Do you remember saying that? A. No. Q. Then, Constable Budin walked over to you and said "My name is Constable Budin". Do you remember he said that to you? A. No. Q. He said "I am from the Police Transport Command", do you remember he said that to you? A. No. Q. "You're under arrest for offensive language and for failing to comply with a move on direction, get up". Do you remember he said that? A. No. Q. You did stand up then, didn't you? A. No. Q. And you had your skateboard with you in your hand. A. I did. Q. And Constable Budin then took you by your right elbow, didn't he? A. I can't remember. Q. And you had your skateboard in your left hand. A. Yes. Q. And you then thrusted your skateboard towards Constable Budin, didn't you? A. No. Q. And then after that, Constable Budin let go of your elbow, didn't he? A. No. Q. And he took a hold of the skateboard. A. No. Q. And he tried to stop himself from being hit by the skateboard that you thrusted into his face, do you remember that? A. No. HIS HONOUR: To his face, are you saying? NOLAN: I'm sorry, into his upper chest area. Q. Do you remember that? A. No. Q. And then, you started yelling at him "Fuck you, fuck you". Do you remember that? A. No. Q. And then, Constable Budin tried to take the skateboard away from you and he said "Drop the board or you're going to hit the ground", do you remember that? A. No. Q. And you refused to drop your skateboard and you were still struggling with the police officer, weren't you? A. No. Q. And then what he did was he grabbed you by the arm and swung you around, didn't he? A. No. Q. He grabbed you by the scruff of your shirt, you told his Honour. Is that right? A. Yes. Q. And swung you around? A. Yes. Q. And then, he performed what you've described as a leg sweep. A. Yes. Q. Yes, so he's swept your leg out from underneath you and he was holding you at the time, wasn't he? A. I can't remember. Q. And you and he both fell to the ground. A. Yes. Q. And your head landed in his bicep as you both fell to the ground, didn't it? A. No. Q. And then, you were screaming and yelling and kicking, weren't you? A. No. Q. And he rolled you over onto your stomach, didn't' he? A. Yes. Q. And he said "Stop resisting", didn't he? A. Yes. Q. And he said "Give me your arms and stop tensing up", he said that? A. Yes. Q. And you refused to do that, you were thrashing you body around from side to side and you were kicking out with your legs, weren't you? A. No. Q. And then another police officer came in and assisted to keep you still, didn't he? A. I can't remember. Q. And then, you were handcuffed to the rear of your body, weren't you? A. I was handcuffed. Q. You were handcuffed to the rear of your body, weren't you? HIS HONOUR Q. When your hands were cuffed, they were behind your back? A. Yes, your Honour. NOLAN Q. And then you were taken to your feet, weren't you? A. Yeah. Q. And you were searched. A. I can't remember. Q. And then, Constable Budin, the man with the piercing blue eyes, said to you "You're under arrest for assault police", do you remember he said that? A. No. Q. And then he said "And resisting arrest". A. No. Q. "And failing to comply with a move on direction". A. No. Q. "And using offensive language". A. No. Q. And he said "More importantly, you don't have to do anything or say anything for anything you say or do, I'm going to make a record of it". Do you remember he said that? A. Yeah. Q. And then he said "That can be used in evidence against you, do you understand that?" A. Yes. Q. And then you said to him "But I didn't even hit you", remember you said that? A. No. Q. And then he repeated to you "Do you understand that?". Sorry, do you agree with me? Do you agree with me that Constable Budin repeated to you "Do you understand that?". A. No. Q. And then, you said to Constable Budin "But you fucking hit me, cunt". You said that, didn't you? A. No. Q. And then, Constable Budin said to you "So, you understand the caution and the fact that you're under arrest". Do you remember he said that? A. No. Q. And then, you said to him "You hit me, cunt, I'm going to sue you". A. No. Q. And then, the police officer said "Mate, I'm not going to argue with you anymore, maybe you should think about it before you drink and carry on like an idiot", do you remember he said that to you? A. Yes. Q. And you said "I'm not even drunk". A. Yes. Q. Then, the police officer, Constable Budin, and another police officer who was dark complexion, do you remember him? A. Yes. Q. They both tried to put you in the caged vehicle, didn't they? The police caged vehicle. A. They put me into the back. Q. Well, you resisted getting into the vehicle, didn't you? A. No. Q. You put your feet up against the vehicle. A. No. Q. To stop you getting in. A. No. Q. You didn't? A. No. Q. So you just got into the vehicle of your own volition, is that right? A. I was pushed into the van."

[12]

Cons Budin's version of his arrest of the plaintiff

Cons Budin's version of his arrest of the plaintiff is contained in his statement of 20 April 2014 (exhibit 18). He made no contemporary, handwritten notes. His record of events was a COPS entry he commenced at 12.21 am on 17 April 2014 at Springwood Police Station. In essence, that COPS entry became the Facts Sheet for the prosecution of the plaintiff in the Children's Court (exhibit 3). In essence, Cons Budin's evidence in chief on that issue was a commentary on his statement. Cons Budin said he was alerted to the plaintiff and his group of friends at the bench in front of the Bakehouse by hearing voices of people yelling. He had a distinct recollection of the plaintiff's saying, "We can sit here, cunt, we're 18, fuck off". Of course, if the plaintiff said that, not only might it be described as offensive, but also a lie, in so far as the plaintiff was maintaining that he was 18 years old. At the end of his being cross-examined, I asked Cons Budin some questions: "HIS HONOUR: Now, I have some questions I want to ask the witness. Q. Now, I'm going to show you a photograph that's numbered four in exhibit E, senior constable. Now, you can assume that that's a photograph taken of the plaintiff when he was in the police station at Springwood after being arrested, all right? A. Yes. Q. He looks very young, doesn't he? A. He does. Q. He looks to me like he's 12 or 13. A. Yes, your Honour. Q. Did you form the view that he was a youngster - under age? A. Once back at the station. Q. What about when you first saw him at Glenbrook out the front of the bakery? A. I suspected, but not 100%. Q. When he said to you words to the effect of, "He was entitled to be there because he was 18," did you believe him? A. No." Put shortly, Cons Budin did not believe that the plaintiff was 18 years old on 16 April 2014, and, had he done so, I could not find that any such belief was reasonable.
It must be noted that Cons Budin did not attribute any particular offensive language to the plaintiff prior to his saying "We can sit here, cunt, we're 18, fuck off". He gave evidence of offensive language coming from the group of people at the front of the Bakehouse, but the only words he could attribute to the plaintiff, prior to the arrest, are the ones I have just quoted. Furthermore, it should be noted that, in reality, no time was allowed to the plaintiff to move on prior to Cons Budin's arresting him. Accordingly to the Constable, the plaintiff was sitting, not standing. If he were sitting, he was not given an opportunity to stand up. Cons Budin's reaction to the plaintiff's statement was immediate.
Cons Budin was then asked what was going through his mind immediately after the plaintiff said the words attributed to him and the Constable decided to arrest the plaintiff: "… So basically I just wanted to get him out of the immediate area, reduce any further offences occurring. Q. Why did you want to get him out of the immediate area? A. Just so no one else got hyped up as well, reduce further incidents happening. Q. Why did you hold a concern that other people would get hyped up and there would be other incidents occurring? A. Due to the fact there were a number of people drinking. Normally you arrest one person, other people get involved. Q. Why did you choose to arrest Mr Gibb Smith if there were a number of other people there? A. Because he was the one who was continuing the offences. Q. What offences are you referring to? A. Offensive language, failing to move on direction. Q. And why did you take the decision to arrest him as opposed to some other police discretion you had at your disposal? A. Well, at that time that was all my options. He was still committing further offences. Q. Pardon me? I'm sorry. At that time - and I missed what you said? A. He was still committing further offences. Q. Yes, so what other options did you understand you had available to you at that time? A. None."
Cons Budin then went on to admit that prior to arresting the plaintiff he made no enquiry of him as to his identity. This was confirmed early in cross-examination at T296.27. The Constable said that he was not in a position to issue a Court Attendance Notice ("CAN") to the plaintiff as the plaintiff was "intoxicated" and "[i]t would not have stopped the offence". The Constable was then asked what led him to the view that the plaintiff was "intoxicated". He gave this evidence: "Q. Did you observe any things about his demeanour personally that suggested to you that he was intoxicated? A. Just angry. Q. Well, I can be angry but I don't have to have a drink to be angry. What about his anger made you believe that he was intoxicated? A. Just for no reason. I was just - straightaway aggressive. Q. Did you smell intoxicating liquor on him? A. Not at that stage." The Constable then said that he could not issue a CAN to persons who are intoxicated. When asked why, he said: "It's legislation, I think, something we've always been taught." I have not been directed by learned Counsel for the defendant to any legislation or Commissioner's Instruction, or the like, which supports Cons Budin's contention. I shall address the question of the plaintiff's intoxication and Cons Budin's knowledge of it later.
Cons Budin's evidence in chief then turned to the issue of the plaintiff's skateboard and how the plaintiff "used" it. I have quoted what the plaintiff said about that in cross-examination at [33] above. Cons Budin said that he attempted to remove the skateboard from the plaintiff by grabbing "the front kick underneath the track". He meant by those words "the metal bit that goes under the wheels of the skateboard". Nevertheless, the skateboard was still "coming towards" him and he thought "it was going to hit [him] in the face". After telling the plaintiff to drop the skateboard or else he would be taken to the ground, the Constable said he spun the plaintiff around. He then said: "Q. How did you spin him around? Can you identify that? A. I just leaned forward and took hold of his shoulder, I believe, and pulled him back around this way. Q. So how was he facing - in the same direction to you or another direction? A. When I pulled him around he had his back to my chest. HIS HONOUR Q. Well, you're indicating you're pulling with your left hand and pushing with your right to turn him around. A. I believe so, yes. Q. See, I have to say these things because the transcript will get read sometimes in the Court of Appeal and they won't know what you demonstrated because they don't see you. So what you demonstrated was pulling with your left hand and pushing with your right? A. Yes, your Honour. Q. To turn the fellow around. A. That's correct. NOLAN Q. And then at this point the young person's legs were swept from under him. Now, what do you mean by that? A. So basically using my left foot I took my - kicked his legs out. Q. Which leg - one leg, two legs? A. I think I went for one but I think I may have got both. I can't remember. Q. So Mr Gibb Smith was facing in the same direction as you. How were you holding him at this stage? A. I would've had probably one - right arm over his shoulder. Q. So the right arm over his? A. Over his shoulder. Q. His right shoulder. A. Down towards his chest. Q. His right shoulder. A. Yep. Q. And hand on his what? A. Chest. Q. Left breast? A. Yeah, probably underneath the shoulder or armpit. Q. Under left arm? A. Yep. Q. And where would your other hand have been, do you think? A. Most likely would've been locked onto here, onto my wrist. HIS HONOUR Q. So you're sort of putting him into a bear hug? A. More or less but over the shoulder and under the shoulder. NOLAN Q. And then you kicked with which leg, do you remember? A. I believe it would've been my left leg. Q. Why your left leg? A. Because my right is the dominant side. I just keep that on the ground. Q. So you hold yourself stable with your dominant leg and you kick out with your other leg. So you think you got both legs. Is that right? A. I must of, yes. Q. Why do you say you must have? A. Because he lost complete balance and I went down with him. Q. And then what happened? A. We both fell on the ground, his head was on my arm - bicep. Q. Which bicep? You've just indicated A. My right. Q. Your right bicep." I have quoted this in extenso as, if the question arise, it is relevant to the quantum of damage. The Constable then said that he rolled the plaintiff onto his stomach and attempted to handcuff him. The Constable said, "I would have knelt next to him as I pulled his right arm up first and then his left arm." This was made difficult by the plaintiff's "tensing up". In [12] of his statement Cons Budin said: "The Young Person thrashed his body from side to side and was kicking out. At this point Constable Franjo Maracic assisted me and held the Young Person's legs still. The Young Person was handcuffed to the rear." Cons Budin was asked whether he said anything else to the plaintiff that was not recorded in his statement and he said: "I would have said - I think I said, 'Stop resisting and give me your arm. Stop tensing up your arm. Give me up your - give me your arm, stop tensing up." This langauge, and other language used by Cons Budin which I quoted in this paragraph, raise the issue of possible reconstruction by the Constable of what actually occurred.
A little later Cons Budin expanded on the role of Cons Maracic in the arrest of the plaintiff: "Q. Then you've received some assistance from - then - Constable Maracic. How did he come in to assist you? A. He jumped in and went legs - he held the legs. Put pressure on them, held the legs down. Takes a body resistance and you can handcuff. Q. Pardon - sorry, you're speaking too fast. A. Sorry. Q. Someone's recording this to create a transcript so just slow it down. Would you say that again, please? A. So basically, when you put pressure on the legs just around the top of the calves, it enables his hips to stop lifting up and you can get a stable platform to handcuff. Q. How else did he assist you? A. He may have held an arm when I went to put the cuffs on - he may not have, I can't remember."
After the plaintiff had been handcuffed, Cons Budin assisted him to his feet and frisk-searched him. The Constable was unable to remember whether anyone helped him to get the plaintiff to his feet but he "imagined" someone would have. In his statement, the Constable recorded this conversation with the plaintiff: Budin: "Listen mate, you're under arrest for assault Police, resisting arrest, failing to comply with a move on direction and using offensive language, more importantly you don't have to say or do anything if you don't want to but anything you say or do I will make a record of, this can be used in evidence, do you understand that?" Plaintiff: "But I didn't even hit you" Budin: "Do you understand that?" Plaintiff: "But you fucking hit me cunt." Budin: "So you understand the caution and the fact that you're under arrest." Plaintiff: "You hit me cunt. I am going to sue you." Budin: "Mate I am not going to argue with you anymore, maybe you should think before you drink and carry on like an idiot." Plaintiff: "I am not even drunk." Despite using direct speech in his statement, the Constable said in oral evidence, when asked whether those were "exact words", they were words "to the effect", as far as his first remark was concerned but he was "pretty sure" that the remainder of the conversation was "exact". When asked why he was sure, he said: "Cause I remember him saying "you fucking hit me cunt" - I remember that. I remember him saying, "But I didn't even hit you and you hit me, cunt. I'll sue." I remember those words."
Paragraph 14 of Cons Budin's statement is this: "I placed the Young Person in the rear of a Police caged vehicle it was a four wheel drive, as closed the internal cage door the Young Person said I am going to fucking sue you. I told the Young Person not to say anything further. Whilst placing the Young Person in the rear of the vehicle was made aware the Young Person smelt heavily of alcohol, his eyes were red and blood shot. I formed the opinion that the Young Person was affected by alcohol he was of a well affected state. The Young Person did not appear to have any injuries from the arrest." In oral evidence, Cons Budin said: "Q. Can you describe for his Honour how you placed the young person in the rear of the caged vehicle? A. It would have been - I had him by - he would have been facing me and I would have pushed him in backwards. 'Cause it was the Pajero, so it's got a back step and it's got a cage inside the back. I would have waited 'till he got one leg up, he would have put his weight on me, I would have pushed him in backwards so his back end land on the seat. Q. Why did you place him in the vehicle that way? A. 'Cause I've never done - I have standard procedure of putting them in that way. That way if they're gunna kick out, they hit your legs not your face and chest. Q. It's a standard police procedure, is it? A. It's something I've always done. I'm assuming it's standard." No evidence was given by Cons Budin that the plaintiff resisted being put into the police vehicle, that the plaintiff put his feet up against the vehicle to stop his being placed in it, matters which were put to the plaintiff in cross-examination, but denied by the plaintiff.

[13]

Cons Doyle's evidence concerning the plaintiff's arrest

Cons Doyle's statement (exhibit 13) contains this matter: "8. About 10:30pm myself, Constable BUDIN and Constable MARACIC walked over to where the dog handler and the Supervisor were standing. They were standing opposite the bakery 'Bake House on Park' which is situated on the corner of Park and Ross Streets, Glenbrook. 9. I could see a number of 8-10 young people sitting on the bench outside the bakery. I could hear member of the group yell the words and "Pig cunt", "Fucking dog" and the word "Fuck". Additionally I saw an open bottle of 'Johnny Walker' whiskey being passed amongst the group. 10. Constable BUDIN, MARACIC and I approached the group. Constable BUDIN had a conversation with the group. I showed the group my NSW Police badge and Warrant card to the group and said "I am Constable DOYLE from the Police Transport Command. How old are you?" Only one member of the group replied and said "15". Whilst I was standing near the group Zachary BALDOCK drank form [sic] the bottle of spirit. I immediately removed the bottle from his hand and began to tip it in the gutter. 11. It was at this point Kane Pembroke became verbally aggressive towards me and said "You can't fucking do that. I'm 18". I formed the opinion that PEMBROKE was intoxicated as he stumbled when he spoke and additionally spittle was ejected from his mouth as he spoke, appeared to be sweaty and to have blood shot eyes. Additionally I could smell liquor on his breath as he yelled at me. 12. Following this I hear Constable BUDIN say word to the effect of "Ok, you're under arrest." This was shortly followed by the "Put the skate board down." I turned and looked towards Constable BUDIN to see a male who I now know as Riley GIBB-SMITH swing a skate board at Constable BUDIN's head. I saw Constable BUDIN take GIBB-SMITH to the ground. 13. Following this he was placed into the rear of the caged vehicle. Constable BUDIN, MARACIC and I attended Springwood Police Station where I continued my duties." In his note book (part of exhibit 13) Cons Budin recorded that: "The male [the plaintiff] attempted to swing his skateboard at Cons Budin [who] took the male to the ground." There is no mention of the skateboard being swung at Cons Budin's head. In oral evidence he did not recall the skateboard being swung at Cons Budin's head or, indeed, whether it was swung at his chest or abdomen. He did not see the plaintiff fall to the ground, he merely saw the plaintiff on the ground. He was unable to recall any interaction with the plaintiff at all at the Police Station (T206.36).

[14]

Cons Maracic's evidence concerning the plaintiff's arrest

Cons Maracic's statement (exhibit 17) contains this matter: "6. About 10:30 pm I observed a group of youths sitting on a bench out the front of a shop on the corner of Parkes and Ross, Street. Information received stated that these youths were underage and drinking alcohol. Constable DOYLE, Constable BUDIN, a police dog, his handler who was in full police uniform and the local supervisor approached the youths. 7. I removed my police identification and said "Guys, it's the police". Constable DOYLE and Constable BUDIN spoke with the youths in relation to their behaviour. A number of the youths began swearing at us and calling us 'pig cunts' and the word 'fuck'. One of the males involved was the young person who I now know to be Riley GIBB-SMITH. He was not happy and continuously kept on raising his voice and ignoring Constable BUDIN's directions. 8. Constable BUDIN then had a conversation with the group of youths. I heard Constable BUDIN say words to the effect of 'My name is Constable BUDIN from Parramatta Police Transport Command you need to leave the area". The young person replied to Constable BUDIN and said "We can sit here cunt we're 18 fuck off". 9. Constable BUDIN then approached the young person and said words to the effect of "My name is Constable BUDIN, from the Parramatta Police Transport Command; you're under arrest for offensive language". I saw the young person stand up, he was at the time holding a skateboard. Constable BUDIN took hold of the young person by his right elbow. The young person then raised the skateboard and swung the skateboard towards Constable BUDIN. The skateboard connected with the Constable's upper chest. 10. Constable BUDIN then conducted a leg sweep on the young person which resulted in both Constable BUDIN and the young person to fall on the ground. I then moved in and assisted Constable BUDIN. The young person continued yelling and kicking out at me and Constable BUDIN. I then said "stop resisting". Constable BUDIN handcuffed … the young person. I then heard Constable BUDIN say words to the effect of "You're under arrest for assault police, resisting arrest, you do not have to say or do anything if you don't want to, anything you say or do I will record. This recording can be used in court". 11. The young person was conveyed to Springwood police and entered into custody as per the requirements." In par 6, "his handler who was in full police uniform" is a reference to SC Cook, who was not in full police uniform, but "in blue marked overalls with 'POLICE' written on the back and the front and patches on the … shoulders" (T226.11). In the same paragraph the reference to the local supervisor is a reference to LSC Adams. The reference in par 7 to removing police identification is in fact a reference to showing or displaying police identification. At T235 the Constable gave this evidence in cross-examination: "Q. Do you remember why it is that you walked across the road? A. Yes, because there was a group of the youths sitting on the bench. We were also alerted to these youths by black - Blue Mountains 14. Q. Your concern was to prevent under age drinking, correct? A. That's correct, and just to disperse the crowd. Q. Were you in plainclothes? A. Yes, we were. Q. As you approached, did you show your identification? A. Yes, we did. Q. How did you do that? A. I removed it from my wallet, it was a, like, a wallet, sort of type flip, one side it has a warrant card and the other side it has a police badge on a light blue backing."
Of particular importance to the defence case is that Cons Maracic corroborated Cons Budin's assertion that the plaintiff said, "We can sit here cunt, we're 18, fuck off." Cons Maracic had given evidence in the Children's Court on 10 October 2014 in the prosecution of the plaintiff. He agreed that in those proceedings he had given this evidence: "Q. I suggest to you that independently, you don't have a specific recollection of what the young person Riley said as opposed to someone else in the group. A. Yep. Q. You'd agree with me? A. Yes. … Q. I suggest to you that the words you've attributed to the young person, "We can sit here cunt; we're 18, fuck off", I suggest to you that … if it was said, [it] was said by someone else in the group. A. Could have been. … Q. When you say you started to remember the incident, I take it that prior to reading the statement, you had no recollection of the young person saying that? A. Correct. Q. I think an answer you gave earlier but tell me if I'm wrong, is that as you sit here today and independently think about your own memories, you can't recall who said what? A. That's correct. Q. That I'm not misleading you, before you read Constable Budin's statement, you had no recollection of the young person saying it, and today you have no recollection of the young person saying it? A. Yes. Q. Again, I suggest to you that the reason that you said it in evidence, and put it in your statement, is because you read it in Constable Budin's statement, and that's why you've said it today. A. That's correct. HIS HONOUR Q. Just because it was in Constable Budin's statement, you put it in your statement? A. I said words to the effect of. Q. Whether you said words to the effect of or not, just because you saw that sentence in Constable Budin's statement, or a sentence that has been attributed to have been said by the young person, are you saying that just because it was there in his statement, you included it in your statement? A. Yes." Eventually, Cons Maracic after being cross-examined about that told me this: "Q. Now, the questions that are being read to you, and you've looked at, that are recorded as having been given in the Children's Court, strongly indicate that that statement, "We can sit here, cunt, we're 18, fuck off" was recorded by Constable Budin in his statement and you refreshed your memory from his statement, and based on that, you gave that evidence but you had no independent recollection of it. Is that a fair summary of what you told the Children's Court magistrate? A. That's correct." The relevant part of Cons Maracic's notebook is part of exhibit 17. He was cross-examined about its contents. On this issue, he gave this evidence at T242: "Q. … the only words that you attribute in your notebook to Mr Gibb-Smith are, "Fuck off, dogs" and the use of the word "cunts", is that right? A. Yes, yes." Put shortly, Cons Maracic provides no independent corroboration of the words attributed to the plaintiff by Cons Budin. He made no contemporaneous note of it, and only recorded it in his statement of 28 May 2014 after "refreshing his memory" from Cons Budin's statement of 26 May 2014 and he had no independent recollection of it when giving evidence in the Children's Court on 10 October 2014. This recollection could not plausibly improve between that time and giving evidence before me on 6 April 2017.
In his notebook, Cons Maracic recorded that the plaintiff "picked up his skateboard and raised it and swung the skateboard towards Cons Budin striking him in the upper body/chest area." In the Children's Court, Cons Maracic said on this topic: "A. … I saw the young person; he was holding the skateboard in the left hand. He swung it towards Constable Budin and it kind [of] connected with Constable Budin's upper chest. Q. [He] swung it towards his chest. A. Yes. It did connect but how much force he used, I don't think it was a lot, but it did connect." Cons Maracic told me that that was his recollection at that time and was still his recollection when giving evidence. The problem for the defence case is that neither Cons Doyle or, in particular Cons Budin, said that the skateboard actually struck any part of Cons Budin's body. In fact, Cons Budin's statement, exhibit 18 at [11] says that Cons Budin took hold of the skateboard to prevent his being struck by it.
Cons Maracic stoutly maintained in cross-examination that each of Cons Doyle, Cons Budin and he announced their office, producing identification, prior to the arrest of the plaintiff.
Cons Maracic's recollection of his assisting Cons Budin in his arrest of the plaintiff is not consistent with the evidence of Cons Budin (see [38] above): "Q. Do you remember if Mr Gibb-Smith was handcuffed? A. Yes, he was. Q. Were you involved in that process? A. I restrained him until he was handcuffed. Q. Do you agree that-- HIS HONOUR Q. How did you restrain him? Did you sit on his legs or hold his legs down or hold his arms? A. No, hold his arms, your Honour, or arm. Q. Which arm? A. The right. Q. You indicated your right. A. That's correct, your Honour. Q. So, you held his right arm? A. That's correct. Q. As far as you can recollect did Budin get hold of the left arm, did he? A. That's correct. Q. The cuffs belonged to Budin, did they? A. That's correct, your Honour. Q. He applied them, what, to the left first and then the right or-- A. I can't remember. CANCERI Q. I suggest to you that Mr Gibb-Smith was not offering any resistance to you and Constable Budin. Do you agree or disagree? A. Disagree."

[15]

The evidence of LSC Adams concerning the plaintiff's arrest

LSC Adams was attested as a probationary constable of police in May 1987. He performed general duties at St Marys, Penrith, Mt Druitt and Pennant Hills. He was then attached to the Rescue and Bomb Squad until 2009 when he joined the Blue Mountains LAC. Whilst serving in the Blue Mountains LAC he was still on call for the Rescue and Bomb Squad. He went on sick report on 28 May 2014 (six weeks after the events of 16 and 17 April 2014) with lower back and hip injuries and did not return to duties prior to being medically discharged from the NSW Police on 9 March 2017. At the time of giving evidence he had retired to a rural area of Victoria. These matters are relevant to his evidence for a number of reasons: 1. he did not make any statement relevant to the current proceedings; he made no statement for use in the Children's Court in the prosecution of the plaintiff nor, as far as I am aware, for the prosecution of either Zachary Baldock or Kane Pembroke in the Local Court; he was called without having made any statement for these proceedings; 2. over a period of 27 years he would have been involved in probably thousands of matters, involving many, many people; 3. like many people who do the same job regularly, he would have his normal routines and procedures, which might often inform his recollection of events; 4. he provided me with no particular reason for recollecting the events of 16 and 17 April 2014, in so far as individuals were concerned; 5. the only contemporaneous records available to him were the Custody Management Records; and 6. between 28 May 2014 and 9 March 2017 (three weeks before giving evidence), he would have been preoccupied with his own health concerns and questions relating to his medical discharge, which many members of the Police Force find burdensome.
Mr Adams presented as an impressive witness and his evidence appeared to be quite plausible. Indeed, learned Counsel for the defendant urged me to accept his evidence. In her revised written submissions, MFI 15, she said: "5. Leading Senior Constable Adams' recollection of the Incident is such as one would expect of a senior police officer who was supervising at the time of the Incident, and was also the custody manager for the Plaintiff and his friend, Zachary Baldock. As the Senior Constable went on sick leave shortly after the Incident, this would also contribute to explaining why his recollection is so clear; it has not been affected by the melee of various subsequent taskings as a police officer. His evidence was given in a fair-minded manner." Unfortunately, I have come to a different view. To accept that the evidence of Mr Adams was accurate and reliable would require me to reject evidence given not only by the plaintiff but also by Cons Budin, Cons Doyle, Cons Maracic, Cons Fulton and, probably, SC Cook.
The plaintiff's case is that he was standing with his back to the window of the Bakehouse, when he was approached from his right hand side by the three PTC Constables walking along the footpath on the southern side of Park Street, heading west. The evidence of the three constables is that they approached the plaintiff and his friends by crossing Park St from the park to the Bakehouse. The thrust of their evidence is that they were with LSC Adams and SC Cook in the park and that they were followed to the Bakehouse by the senior officers. SC Cook gave this evidence: "Q. What do you remember? A. My memory of walking through the park towards the shops and just keeping an eye out on some other police and just other groups of people walking around just to make sure that there was no offences being committed and that the police were all right and protected. Q. Do you remember if you went to the shops or not? A. I think from my memory I made it to the roadway of the shops but I don't really recall specifically about going and walking up and down the shops. I can't remember. HIS HONOUR Q. May I take it from what you've said previously that you were following other groups of police when you're in the park, that your role, job, is to back up other police? A. That's correct. My main role would be police protection. Q. So that you'd only have - your job would be there to unleash the dog if for example there started to be a brawl and the police were coming second in the brawl? A. Correct. Q. So, your primary role is in reserve? A. We're as support for police. Q. In battle terms, you were the "backup regiment"? A. Correct. NOLAN: Your Honour would get on splendidly with my father. Q. So, you recall coming to the roadway. Do you have any recollection thereafter of what happened? A. Not a very good memory of anything other than standing around and maintaining police protection. Q. Can I ask you just to have a look at one entry, please, page 4 of the CAD? At 22:39:12, read that entry. Does that refresh your memory in any way? HIS HONOUR: Sorry, 22? NOLAN: 39.12. Q. It's Blue Mountains 14, it's the supervisor. Does that refresh your memory? A. Yeah, I remember - I remember there was some type of incident but I wasn't involved in it. I was - it was, again, police protection. My main concern was just to make sure that no one would come in onto the police. But, again, it's very faded, my memory of it. I do remember - after reading, I do remember that there was something that happened but my objective was to make sure that the police were fine, that the other crowd of people didn't come up to them." A little later, SC Cook said this: "A. In general, if the police are in a fight, or jobs like this, they normally deal with the offender and our job then becomes to make sure that no one comes up from behind the police or - so, we're generally looking out away from what's going on because we're making sure no one sneaks up. Q. Anyway, your recollection, if you just go to the map again might be the easiest, if you can see there the shops in question, one that's marked with a big red dot, "Bakehouse on Park" you see that? A. I do. Q. Now, you see it's facing onto Park Street and your recollection is you stayed in the park which is on the other side of the street? A. I wasn't fully in the park. By that stage I'd moved on to Park Street. Q. Yes, onto the street itself. A. From my memory."
The evidence of Mr Adams is that things happened quite differently. The relevant evidence is this: "A. ... So part of the crowd had sort of come down towards where I was standing which was opposite - in Ross Street - in the park. I moved back to the shops on the other side of the road opposite the park which was-- EXHIBIT B AND EXHIBIT 7 SHOWN TO WITNESS Q. So exhibit 7 is a plain map and exhibit B is a map which has some markings on it. I'll ask you whichever one is better for you to identify. So did you walk all through the park when you were giving move on directions or were they taking a particular route? A. They were taking a particular route so on this exhibit B if you leave the Glenbrook Park and you head west on Park Street and then you turn left into Ross Street. That takes you down towards the railway station so they were following that route, a lot of the group, and also across the park directly in front you've got Glenbrook Rotary Markets. There's a Shell Service Station which is not quite - it's on the corner there of Ross and the Great Western Highway. Q. The little petrol icon? A. Yeah, so they were filtering up towards that as well. Q. So then you've got to a juncture in your evidence where the three police transport officers, they've moved through the park and they were in Ross Street, whereabouts in Ross Street were they? Can you identify it with any specificity? A. Look, they - they'd gone into the park. I'd moved back across the road to the Bakehouse on the Park. That's the bakery. Q. Yes, and what did you observe when you reached the Bakehouse on the Park? A. There were the two - sorry, three transit officers come back over towards me or they - they might have stood on the - near the roadway there." He then gave evidence about the police dog and its role and continued: "Q. You've come to the Bakehouse on the Park, and I've asked you what did you observe there and you've said that the police transport command were there also, can you just pick up from that point and tell his Honour what happened. A. Yes, so they moved to where I was so part of the crowd was sort of sifting coming across. We wanted to keep them away from that group - the shopping centre there on Park Street, big plate glass windows, small narrow corridor footpath area. There's a bakery, obviously there's a bakery, the food shop. There's a salon. So they've got big plate glass windows. My experience in the past is they get rowdy, get pushed and shoved, someone gets hurt perhaps pushing in a plate glass window, property gets damaged, so we try and follow them - try and keep them away from that. PTC come across to me. Q. When you try and keep them away from that what do you specifically do? A. I stood as a barrier in front of the Bakehouse. It's got the biggest plate glass window and it's on the corner. Q. And when you got to the Bakehouse what did you observe? Were there any people there? A. There were - they were sort of - there was a group of people who stopped and questioned our authority to move them on. That group would've been around about four or five persons. Now, that would've been on the corner of Ross Street and Park Street. Q. And do you remember the words that these people used? A. "You can't tell us what to do." There was some offensive language coming from that group. Now, they hadn't quite got to Ross Street at that stage so they were probably opposite me at the Bakehouse on the Park there. So they hadn't got to Ross Street and it may have been only 20 metres or so before they got to Ross Street and would've turned left but they questioned, "You can't tell us what to do. You've got no authority to tell us what to do." They were - some of them were carrying alcohol, I remember that - and then there was sort of two or three out of that five come across to where I was standing which was now on the footpath at the Bakehouse along with the PTC officers and again questioned our authority and we can't do this, we can't move them on. Now, that's an alcohol-free zone all through there, okay, all that area is alcohol free. I remember saying to the group, "Tip your alcohol out," I remember saying that, that they were carrying bottles, to "tip it out", there were too many people to pull aside and issue infringement notices to, there was just too many, and that can cause more of an altercation with other crowds, so while - we were trying to do this. Q. Why do you say that giving out infringement notices causes an altercation? A. Because we - because we don't want to upset, you know, the remaining 40 or 50 there, we were still outnumbered, you know, probably about four to one at that stage, five to one. So just by getting them to tip it out, move on, go home, you've had a good night, just trying to keep things at low key, just to keep them moving and get them down to the station, and then the idea was just to monitor the station. Q. You're aware that these proceedings concern an incident which occurred at the Bakehouse. A. Yes. Q. Do you have any personal recollection, or did you see what went on? A. I remember there were - there were three people, out of the five, there were three that actually came across and stood with us, there may - three. Again, they challenged - one was on a skateboard, one had - was carrying Q. The one that was on the skateboard, did you have an encounter with him later on in the evening at the police station, did he come into your custody? A. Yeah, he was in my custody, yes, later on, he was arrested. Q. Was he among the three who were challenging your authority? A. Yes, yes. Q. Was he using offensive language? A. They were all using offensive language. Q. What sort of words were they using? A. "You've got no fucking right, you pigs are always on our case," all that type of - type of language. Again, I was keeping it fairly low key, "Why don't you fuck off?" Q. Why are you keeping it fairly low key when you've got youths coming up to you and using offensive language and questioning your authority? A. Because I still had another 40 or so people in that park who had stopped and were watching what was happening with the group that were now being, confronting with us." The questioning then turned to police practices and Mr Adams then said that the group opposite him watching developments grew larger. The evidence then continued: "Q. So opposite where? Let's just return to the map. A. So that would have been opposite the Bakehouse, probably to the right of where the Bakehouse is. Opposite the Bakehouse is a - I think it's a community centre from memory. So right of that is obviously, there's an open area, so they were sort of - there was a group starting to stop there and sort of watching on and seeing what was happening because we were being challenged. Q. How did police deal with this situation after that? A. Well, I remember the PCT officers, all three of them including myself, were telling the three just, "Move down to the station, tip your alcohol out and keep walking, just keep walking, just go to the station, keep moving." I'm trying to deescalate the situation not have it escalated. They refused, they just kept challenging - challenging. I remember then, the gentleman who was on the skateboard, flipped the skateboard up - one of them moves that the young'uns do that I could never do when I ride a skateboard - flicked it up and had it in his hands and sort of thrusted it towards one of the PCT officers. Q. Were they having a conversation? A. We were all - well, the three of us were having conversations with - with sort of, with that group that were on our side of the road, so there was a group of three Q. How big would that group have been? A. Well, there were three, and then I think two more filtered across and they were standing sort of in the middle of the road, so the group was sort of starting - we had three directly with us and there was another two or three that had started to filter across, and they started saying, "Let them go, leave them alone, they're doing nothing wrong," because as that stage, when the - when the skateboard was being thrust at one of the PCT officers, he was placed under arrest. Q. And then what happened, do you remember? A. I remember that there was a confrontation, a quite a - after he was - he was told he was placed under arrest. Now the PCT officers, I think, were in plainclothes, these people were told that they were police officers, once the skateboard was thrust into - I guess, the face of - of one of those police officers, he was - he was taken hold of, he was told he was being arrested, he was taken hold of, there was a scuffle, there was a pull push, pull push, pull between the gentleman with the skateboard and - and another gentleman. The third person took off, I remember he took off and went around the corner, maybe, he retreated, and then - and then the person with the skateboard was pulled to the ground - because he was trying to pull away at that stage - he was pulled to the ground and restrained. Q. What was going on in the group around at the time? A. They were - they were - we were being heckled at the time, so the group across the road were heckling us. There had been a couple of stragglers come across the road, and telling us that we can't do that, you know, just that type - that type of situation. I remember there was a - one of the - one of the two boys was carrying alcohol, and it was taken from him and tipped down the gutter, it was a bottle."
In short, Mr Adams placed himself and the three PTC Constables in front of the Bakehouse, with a large crowd of "40 or so" people opposite in the park, and the plaintiff and his group approached the police and there was a confrontation with the police "in the middle of the road", i.e. Park Street, whilst the rest of the crowd was "heckling" the Police. This appears to me to be a reconstruction by Mr Adams, perhaps based on a lingering recollection of his being concerned about the physical security of the shops. Furthermore, no other witness says that the plaintiff was standing on his skateboard or that he performed the manoeuvre deposed to by Mr Adams. He may have seen that manoeuvre performed many times before by youths and that has found its way into his reconstruction of the events of 16 April 2014.
A little later Mr Adams gave this evidence: "Q. Can I just take you - just focus your mind on did you observe what was happening between the arresting officer and the gentleman with the skateboard when you got to the point when he was taken to the ground? A. Yeah. So, he was taken to the ground. I remember the skateboard coming loose and it started rolling down the street. And then one of the other PCT blokes stopped it, grabbed it, so the two were restrained because they were quite physical and quite violent, I guess. There was lots and lots of physical interaction between the police and the two, quite physical. Now, I - because there was three - there was two, I didn't need - I was supervising, okay, and I think the skateboard may even have been passed to me at one stage. But they were eventually restrained." However, were I to accept his recollection of one of the PTC Constables taking possession of the plaintiff's skateboard, I would have to reject the evidence of Cons Fulton on this issue. In her statement (exhibit 9) she said: "I got out of BL 16 and assisted Constable BUDIN by picking up and seizing a skateboard that was lying on the ground near him as I saw it as a hazard. I placed the skateboard and some property that was on the ground into the rear of BL 16." In her oral evidence she said this: "Q. Did you pick up the skateboard? A. Yes. Q. Where did you put the skateboard? A. Into the back seat of Blue Mountains 16. Q. And what happened to the skateboard after that? A. I left it in the back seat until we arrived at the police station and then I've pulled all the property and I've walked it into the charge room. Q. What did you do with it? A. I lent it up against the counter, because it was too big and it was on wheels, so I didn't want to put it on the counter, it would just roll off, so I've lent it on the - against the counter and I've told Constable Budin that's where I've left it, and he saw me leave it there and said, "Yep, that's fine."" Mr Adams' recollection is, clearly, faulty.

[16]

The evidence of Cons Fulton concerning the plaintiff's arrest

In addition to what Cons Fulton said in her statement about the plaintiff's skateboard, she said this in her statement: "9. About 10:36pm I heard Sergeant ADAMS call for assistance on the police radio. Constable MAMMEN and I immediately responded to the corner of Ross Streeet and Parke Street. I observed Constable MAMMEN stop the police vehicle on Parke Street out the front of a bakery. I observed two males already in custody and being handcuffed. One was already on the ground and the other was restrained up against the wall. … 11. I observed Constable BUDIN and Constable MARACIC wrestling with the male in the black jacket on the ground as he was resisting arrest. I observed them lay the male in the black jacket on his stomach on the footpath and handcuff the male. I observed Constable BUDIN and Constable MARACIC pick up the male wearing the black jacket off the ground and walk him to the rear of BL 16 and attempt to put him in the back. I observed the male wearing the black jacket to resist and refuse to get in. I observed Constable BUDIN place a young male into the rear of BL 16 beside the male wearing a grey hoodie and close the door." In cross-examination, Cons Fulton said that when BL 16 arrived at the scene of the plaintiff's arrest, the vehicle was parked "almost directly out the front" of the Bakehouse. She observed that plaintiff prone on the footpath as he was being handcuffed. She said the plaintiff was resisting being handcuffed, that he was not bringing his arms around to his back. She also thought he was kicking, but was unable to remember that clearly. She was not cross-examined to suggest that she did not see the plaintiff's resisting being placed in the police vehicle BL 16. Accordingly, there is unchallenged evidence that the plaintiff resisted being placed in the police vehicle, but no specific evidence that he put his feet up against the vehicle, as was suggested to the plaintiff in cross-examination.

[17]

The evidence of Cons Mammen concerning the plaintiff's arrest

Cons Mammen's statement of 5 July 2014 is exhibit 10. It contains this: "6. About 10:00pm I heard Senior Constable ADAMS in Blue Mountains 14 calling for assistance on police radio. I responded to the call, I attended the intersection of Park street and Ross Street, Glenbrook in BL 16 along with Constable FULTON. I saw a number of youths swearing and abusing at Police. I heard the youth calling Police "Fucking cunts". 7. I saw three plain clothes constables struggling to control two males who were violent and intoxicated. I saw Constable BUDIN from Parramatta Police Transport Command speak with the males. I assisted one of the plain cloth constable to handcuff a male person and search him. 8. I assisted Constable BUDIN in placing the young person in the rear of BL 16, Police caged vehicle. While the young person was in the caged area of the police vehicle I heard him say "I am going to fucking sue you". I closed the rear door of BL 16." Since Cons Mammen identified Cons Budin in [7] of his statement, one of the other plain clothes constables was either Cons Doyle or Cons Maracic. Since Cons Budin first searched the plaintiff, I infer that Cons Mammen assisted in the search of Mr Baldock.
In cross-examination Cons Mammen gave this evidence: "Q. Can I take you to paragraph 7 of your statement of 5 July 2014. You say, "I saw three plainclothes constables struggling to control two males who were violent and intoxicated." Was that opposite the Bakehouse in Glenbrook? A. I can't remember the shop name, but it was at the intersection, it was on the footpath. Q. Do you remember the names of those two males? A. I don't. Q. You say they were violent and intoxicated. What do you mean by "intoxicated"? A. The person's speech, balance and coordination was affected by intoxicating liquor. Q. So those things mentioned in LEPRA about speech, balance and coordination, you observed all of that, did you? A. I saw that they were on the ground, they were swearing and they were behaving, not behaving like normal people. Q. So in terms of speech, you heard them saying things? A. I could smell intoxicating liquor. Q. From how far away from these people could you smell intoxicating liquor? A. Because I am lifting up the person on the ground, I could smell it in the Q. Intoxicating liquor on their breath? A. I can smell the liquor, yes. Q. And did you have the chance to observe their balance when they were on their feet? A. Absolutely, because I have placed them in the back of the - in the caged vehicle, so. Q. Did you notice any injuries to the person on the ground's face? A. I did not. Q. Did you hear anyone complaining about a chipped tooth? A. I did not."

[19]

Events at Springwood Police Station

The plaintiff said that the trip to Springwood Police Station in BL 16 was "roughly 20 minutes, 25 minutes". The usual travel time from Glenbrook "CBD" to Springwood Police Station is 10 minutes (LSC Adams, T95.15). The plaintiff's Custody Management Record (CMR) (exhibit 2) shows his time of arrival at the police station as 10.55 pm. However, the same record for Mr Baldock (exhibit 8) records his time of arrival as 10.53 pm. However, they both arrived there in the same vehicle, BL 16. Each Custody Management Record gives the same length of time for the journey: 10 minutes. I know from the VKG transcript that BL 16 was in transit to the police station at 10.41 pm, so the length of time when the plaintiff was confined in BL 16 was about 12, perhaps 13, minutes.
BL 16 was the first of the police vehicles to leave Glenbrook en route to the police station. According to the VKG transcript, PTC 510 was en route to the police station at 22:44:37. According to the CAD records, BL 14 became "available" again at 22:51:34, which means the job at Glenbrook was completed, and LSC Adams was on his way back to the police station where he was both OIC and the custody manager. The inferences which I draw are that PTC 510 arrived at the station at 10.54 or 10.55 pm and that LSC Adams arrived there about 11.00 pm.
Mr Baldock's CMR shows his being placed in a dock at 10.53 pm, the same time as he arrived at the station. The plaintiff's CMR shows his being placed in a dock at 10.55 pm, the same time as he was recorded as arriving at the station. The two minute discrepancy continued! LSC Adams "processed" Mr Baldock before he dealt with the plaintiff. He provided this explanation: "I remember that his [Baldock's] mother came in. He was more compliant and he didn't seem to be at the same level of intoxication, so when you're … doing these processes, you generally [do] the … least intoxicated first and then the other one goes in what they call a 'time out' of their level of intoxication which doesn't interfere in the four hour time period that police have." There is evidence to support LSC Adams' assertion that Mr Baldock was more compliant at the police station than the plaintiff, but no convincing evidence that he was much more affected by alcohol that was Mr Baldock. LSC Adams distinguished three levels of intoxication: lightly affected, moderately affected and highly affected (T136.17). He described the plaintiff as "moderately affected" (T123.21 and T134.34) but he had so described Mr Baldock in Mr Baldock's CMR.
At the time of his arrest Mr Baldock was 18 years old. The following is the chronology of his time in custody, further to that I have already recorded: 11.04 pm Introduced to Custody Manager 11.09 pm Details entered into CMR 11.27 pm Caution and Summary of LEPRA completed 11.27 pm Questioning begins 11.40 pm Questions recorded 11.45 pm Released, following issue of a field CAN
Before there was interaction between the plaintiff and LSC Adams as Custody Manager, there was further interaction between the plaintiff and Cons Budin. It ought be clear from what I said at [59] above that it is unlikely that Mr Baldock and the plaintiff were each placed in one of the two lexcen docks at the police station by LSC Adams. It appears to me to be likely that the plaintiff was placed in a dock by either Cons Mammen or Cons Fulton. Cons Budin completed a Field Arrest Form (exhibit 20) indicating that he searched the plaintiff at 11.10 pm and located this property: • $30.30 cash • a telephone, with a broken screen ("smashed") • a beanie This was about the time the plaintiff "calmed down" according to the Constable. He gave this evidence: "Q. Was the plaintiff, Mr Gibb-Smith, in the custody room when you arrived? A. Yes. Q. Can you tell his Honour what you observed when you came into the custody room? A. I remember walking into the counter and he was sitting into dock 2, which is right in front of the door to the cells. He was still handcuffed at that point and just kept continuing to call me a "cunt." Q. That it? Just calling you a "cunt"? Anything else? A. Yeah, he said he was going to sue me, wanted my badge number. I told him we don't have badge numbers. He kept on saying, "You have to give me a badge number." Q. Did you provide him with any details? A. Yeah. I told him, I said, "My name's Constable Budin, Police Transport Command. It'll be on the paperwork." Q. Can you describe for his Honour your observations of Mr Gibb-Smith beyond what he said? A. He's well affected by alcohol, intoxicated. Q. Why do you say that? You need to tell his Honour the bases for your assessment. A. His eyes were red, bloodshot, smelt intoxicating liquor, aggressive, quarrelsome, continued to repeat himself over and over, "I'm going to sue you. I want your badge number. I want your name. I want your badge number. I want your name. I'm going to sue you."" … Q. How long were you in the custody room, do you remember? A. I was back and forth. Q. Where were you alternating between then if you were back and forth? A. The van dock and the custody room. Q. The van dock? A. The van dock. That's where the cage truck comes through and then the person gets out of the truck and walks through rather than walking them through the station. They go straight into the custody area. Q. Why were you alternating between those two? A. Because I didn't have phone service in the custody area. Q. Why did you need to make telephone calls? A. Speak to my supervisor, tell him we got to lock up and we're going to be not back in time for taskings and all that. Q. You say here that you spoke to the young person asking him for his name and address and date of birth and then, "The young person eventually supplied me with these details." What was the young person's initial response to that request? A. "I'm not telling you, cunt. I'm going to sue you." Q. When you say he eventually supplied you with those details, can you describe why you included the adjective "eventually" or the adverb? A. Because it took a certain amount of time to get it so-- HIS HONOUR Q. "A certain amount of time" is like the old "piece of string." I mean, how long? Did it take 10 minutes, a quarter of an your, three seconds? A. Probably about two minutes, your Honour. Q. Two minutes? A. Around about. NOLAN Q. Was it just the single question? How many times would you have asked him a question to obtain his details? A. Four, five, six times. Q. When you asked him for support person details, what did you ask him? A. Asked him for his parents' details. Q. How did you ask him for those details? A. "What's your parents' name?" Q. And what did he say? A. "My parents are dead."" LSC Adams had given evidence that the plaintiff "kept hitting his hands on the dock, yelling out" (T123.36), "bashing his hands on the door [of the dock] and so on" (T126.08). However, the plaintiff was not cross-examined about that and Cons Budin gave no evidence to that effect, so I am not persuaded that the plaintiff behaved in that particular fashion. That the plaintiff failed to give details of his next of kin is confirmed in his CMR by LSC Adams. Juvenile Legal Aid could not be contacted nor was any legal representative available that night.
According to the plaintiff's CMR, this chronology can be established: 11.50 pm Plaintiff is received by Custody Manager 12.10 am Caution and summary of LEPRA completed 12.10 am Questioning begins 12.14 am Details entered into CMR 12.24 am Charging process commenced 12.28 am Questions recorded 2.15 am Charging process completed 2.22 am Plaintiff signs Bail Undertaking 2.28 am Released into the care of Support Person, Ms Amanda Webb 2.30 am Plaintiff signs "Receipt of Records" form Ms Amanda Webb is the mother of Mr Zachary Baldock. She went to the Springwood Police Station to pick up her son after he was released from custody. She very generously agreed to be the plaintiff's Support Person, a responsible adult seeking to ensure the plaintiff's welfare. The plaintiff's CMR contains a "Role of Support Person" form (P692) which Ms Webb has timed at 12.15 am and LSC Adams at 12.20 am. Ms Webb took photographs of the plaintiff when he was in custody, attempting to show damage to one of the plaintiff's teeth and other marks on his body resulting from his arrest and being handcuffed. After the plaintiff's release he spent the balance of the night at the home of Ms Webb/Mr Baldock, to save waking his grandmother and/or aunt.

[22]

The plaintiff's sobriety on the evening of 16 April 2014

Whether the plaintiff was affected by alcohol at the time of his arrest, and, if so, the extent of that affectation are relevant to a number of issues: 1. the extent to which the plaintiff accurately perceived what was occurring, 2. the extent to which he accurately remembers what occurred, and 3. a defence raised by the State under Civil Liability Act 2002 ('CLA') section 50. At [19] above I have already quoted Cons Fulton's observations of the plaintiff shortly after 10 pm, "smelt strongly of intoxicating liquor … belligerent and argumentative…" The arrest of the plaintiff was at 10.37 pm - about a half hour later.
At [41] above I quoted [14] of Cons Budin's statement in which he states that he was made aware that the plaintiff "smelt heavily of alcohol, his eyes were red and blood shot" when he was placing the plaintiff in the back of BL 16 after his arrest of the plaintiff. At [62] above I quoted oral evidence given by Cons Budin as to the plaintiff's being "intoxicated" at the Police Station.
The VKG transcript (exhibit 11) contains this observation made by Cons Fulton (as observer in BL 16) at 22:41:45: "Thanks radio, we've got two on board, taking back to Springwood Police Station. They're drunken idiots from this party at Lucasville." This is a contemporaneous record that Cons Fulton believed that both the plaintiff and Mr Baldock were "drunk" on this evening, even before she was able to observe them more closely at the Police Station. Finally, from the defendant's point of view, there is contemporaneous reporting by LSC Adams, as Custody Manager, that the plaintiff was moderately affected by alcohol. The CMR contains this matter: "Does the person complain of, or have you observed any sign of intoxication, pain, injury or illness? intoxication Does the person show severe agitation or aggressiveness? aggressive at times Is the person's behaviour suggestive of being under the influence of drugs or alcohol? alcohol Gibb-Smith was also [too] aggressive and intoxicated to be interviewed but due to the nature and [seriousness] of the incident he was charged." That the plaintiff was moderately affected by alcohol was LSC Adams' evidence in chief (T116.22 to T116.37) and maintained in cross-examination (T134.34 to T136.44). As I pointed out earlier, LSC Adams had three levels of affection: lightly affected, moderately affected and highly affected. Whilst I have reservations about much of his evidence, this aspect of his evidence is corroborated by contemporaneous records, and he brought into his assessment of the plaintiff's sobriety nearly 30 years of experience as a police officer.
On the evidence of LSC Adams, Cons Fulton and Cons Budin, the plaintiff was affected by alcohol at the time of his arrest and I accept that he was moderately intoxicated. The evidence to the contrary is solely the plaintiff's own evidence. I cited the plaintiff's evidence in chief as to what alcohol he consumed at the party at Lucasville Street at [9] above. In cross-examination, the plaintiff gave this evidence: "Q. How long do you say you had been there before word has passed around that the police had arrived? A. Around 40 minutes, 20, 40 minutes. I can't really remember. Q. You were drinking with your friends during that time, weren't you? A. Yeah. Not heavily. I think I had about a beer and a half before the party got shut down. Q. Why do you think it was only a beer and a half? A. Because I wasn't there for long and it was a Wednesday night and I had TAFE. Q. You've told his Honour that you were at the police station insisting on being breath tested. Why would you do that? A. Why would I do that? Q. Yes. Why would you do that? A. Just to show that I wasn't heavily intoxicated or-- Q. Why did you feel the need to show that you weren't heavily intoxicated? A. I thought that might have something to do with the way I was being treated or the way-- Q. Is it perhaps because you did have the demeanour of somebody who was intoxicated and you wanted to convince the police that you were not heavily intoxicated? Is that perhaps a better description? Would you agree with that? A. Sorry, could you just repeat that? Q. Is it perhaps that you had in fact been drinking to such an extent that you had the appearance of somebody who was intoxicated? A. No. Q. Is that why you were asking for the breath test? A. No. Q. So if you'd only had one and a half beers, you wouldn't need to convince the police of your sobriety, would you? A. Well, no, but I felt like I had to. Q. Because you had been drinking more than one and a half beers. Isn't that right, Mr Gibbs-Smith? A. No. It was because I got attacked and I wanted to prove that I wasn't drunk. Q. It's a pretty odd thing to ask police to do in circumstances where you say that you had been the subject of an attack by police, isn't it, Mr Gibb Smith? A. I don't think so."
There were possible sources who might corroborate the plaintiff's evidence as to his state of sobriety: 1. those with whom he was at the party: Kane Pembroke, Lexie Baldock and Zachary Baldock; 2. those who were nearby when the plaintiff was out the front of the bakery: Declan Renshaw, Morgan Vanderaut and Dylan Watson; and 3. Ms Amanda Webb, the mother of Zachary Baldock, who attended the Springwood Police Station to pick him up, and generously agreed to be the plaintiff's support person and appears to have been with him from 12.15 am to his release at 2.30 am and then took the plaintiff to her own home to spend the rest of the night. Nevertheless, none of these people was called nor was any, or any adequate, explanation provided for his or her failure to give evidence. If the plaintiff were sober or only slightly affected by alcohol I would have expected Ms Webb to be called to tell me that, but she was not called. Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 permits the Court to draw an inference because of an unexplained failure of a party to call a witness. Such a failure "may lead rationally to an inference that the evidence would not help that party's case" (Jones v Dunkel at 321; Holloway v McFeeters (1956) 94 CLR 470; [1956] HCA 25 at CLR 480-481). It also enables the Court more readily to draw an affirmative inference in support of the opposing party's case (Commonwealth of Australia v McLean (unreported, NSWCA, 31 December 1996); Manly Council v Byrnes [2004] NSWCA 123 at [51]; Carolyn Sappideen & Prue Vines, Fleming's Law of Torts (10th Ed., 2011, Lawbook Co) at 13.50. Given the strength of the police evidence on this issue, I infer that the failure of the plaintiff to call, at least, Ms Webb not only does not assist the plaintiff's case but that it also supports the defendant's case. Furthermore, if the plaintiff was, in essence, sober (which is what he wishes me to infer) I find it difficult to understand how his interaction on this night with the police would have occurred.

[23]

Findings on the circumstances of the plaintiff's arrest

The plaintiff's evidence is that Kane Pembroke, Lexie Baldock and Zachary Baldock were sitting on the bench seat in front of the Bakehouse and that he, the plaintiff, was standing to the left of it, learning against the plate glass window of the Bakehouse, holding his skateboard. Both Cons Budin and Cons Maracic said that the plaintiff was, initially, sitting on the bench seat. Both Cons Budin and Cons Maracic stated that the plaintiff was seated on the bench seat and denied in cross-examination that he was standing up, leaning against the plate glass window of the Bakehouse. Little turns on this issue but, bearing in mind the evidence of the Constables and bearing in mind that the plaintiff was moderately affected by alcohol and that, therefore, his recollection might be faulty, I am prepared to accept that the plaintiff was initially sitting down. However, it appears likely to me that, in his interaction with Cons Budin, the plaintiff stood up, although that is not Cons Budin's position. In his notebook Cons Maracic recorded this: "… the POIs were sitting near a bench on the corner of Ross and Park St talking loudly and yelling. Cons Budin, Doyle and myself walked toward the POIs and a number of other youths who were with them. Cons Budin, Doyle and myself identified ourselves as police and produced our police identification. Majority of young persons moved on. However some refused. I also noticed that one of the youths was passing Black Label around. Cons Doyle then tipped out the alcohol down the drain. In the process POI 1 [the plaintiff] stood up and walked towards Cons Budin. Cons Budin has asked him to leave, however he refused. POI 1 then began saying "fuck off dogs", "cunts" in a loud voice. He was again warned in relation to his language and issued a move on direction which he refused to comply. POI 1 then picked [up] his skateboard …" The plaintiff may remember standing up in his confrontation with Cons Budin but forgotten that initially he was sitting down.
I accept that Cons Budin, Cons Doyle and Cons Maracic identified themselves as members of the NSW Police and produced appropriate identification. The three constables were consistent in that regard and the presence of LSC Adams and other police would have ensured that they followed proper police procedure. I reject the plaintiff's repeated assertions that those police did not identify their office (T43.07, T48.42).
After considered reflection, I do not accept that the plaintiff said the words attributed to him by Cons Budin, "we can sit here, cunt, we're 18, fuck off". As discussed at [34] above, if the plaintiff said that he was telling a lie, as he was in fact only 17. Furthermore, the statement would have been implausible to most people as the plaintiff looked much younger than his chronological age. I have little doubt that these words were said. However, it is more likely that Kane Pembroke said them - it was his eighteenth birthday. Cons Budin may have misattributed the words. It is also clear to me, however, that the plaintiff said something which caused Cons Budin to react, and to react promptly. The plaintiff might well have used the words attributed to him by Cons Maracic in his notebook, "fuck off dog(s), cunt(s)". Other offensive language directed at the police by the group which included the plaintiff were: "Pig cunt", "Fucking dog", "Fuck" (Cons Doyle, supra at [42]); "Pig cunts", "Fuck" (Cons Maracic, supra at [43]); "Fucking cunts" (Cons Mammen, statement exhibit 10, at [6]). I accept on the balance of probabilities that the plaintiff said to Cons Budin "Fuck off dog, cunt". I formed the view at the hearing and have maintained that view on reflection that Cons Budin was insulted by this personal and professional slight, causing him to react precipitately, to arrest the plaintiff. This position was put to Cons Budin in cross-examination (T319.29 to T319.43) but the Constable denied being insulted, upset, annoyed or angered. However, I do not accept that part of his evidence.
I do not accept that the plaintiff used his skateboard as a weapon either to strike Cons Budin with it or to attempt to strike Cons Budin with it. I accept that it came between the plaintiff and Cons Budin in the scuffle that ensued after Cons Budin told the plaintiff that he was under arrest, but I did not form the view that the plaintiff attempted to or used his skateboard deliberately to strike Cons Budin. The probability is that it came between the plaintiff and Cons Budin and, in what would have involved pushing and pulling and the like, it "got in the way" of the interaction between the two bodies. Assault is a crime. Whilst in civil proceedings it only need be proved on the balance of probabilities, the famous dictum of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-363 needs to be borne in mind: "The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency. Thus, Mellish L.J. says: "No doubt the court is bound to see that a case of fraud is clearly proved, but on the question at what time the persons who have been guilty of that fraud commenced it, the court is to draw reasonable inferences from their conduct" (Panama and South Pacific Telegraph Co. v. India Rubber, Gutta Percha, and Telegraph Works Co.). In the same way, in dealing with the question in what county the publication of a criminal libel had taken place, Best J. said: "I admit, where presumption is attempted to be raised, as to the corpus delicti, that it ought to be strong and cogent; but in a part of the case relating merely to the question of venue, leaving the body of the offence untouched, I would act on as slight grounds of presumption as would satisfy me in the most trifling cause that can be tried in Westminster Hall" (R. v. Burdett). It is often said that such an issue as fraud must be proved "clearly", "unequivocally", "strictly" or "with certainty" (Cf. Mowatt v. Blake; Kisch v. Central Railway Co. of Venezuela Ltd.; Lumley v. Desborough). This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues (Doe d. Devine v. Wilson; Boyce v. Chapman; Vaughton v. London and North Western Railway Co.; Hurst v. Evans; Brown v. McGrath; Motchall v. Massoud; Nelson v. Mutton; Gerder v. Evans; sed quœre as to the statement of Swift J. in Herbert v. Poland; see, further, Wigmore on Evidence, 2nd ed. (1923), vol. v., p. 472, par. 2498 (2) (1)). But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected."
On the other hand I do not accept that Cons Budin "grabbed my head by the hair and picked it up and smashed it back into the concrete … It chipped my tooth," as alleged by the plaintiff. Again the dictum just quoted must be borne in mind. Furthermore, chipping of a tooth in such circumstances is implausible. If the plaintiff's face was deliberately smashed onto the pavement (see exhibit C, a photograph taken of the area in front of the Bakehouse, which shows a concrete kerb, a double line of brick pavers to highlight the kerb and then concrete to the shop front) then one would expect some soft tissue damage to areas of the face which come into contact with the bricks/concrete, such as the forehead, nose and lips. One would also expect some soft tissue damage within the oral cavity as the tooth would presumably need to strike the hard surface and it is likely that the inside of a lip would be lacerated by the tooth. There is no suggestion of any such further physical damage. On the other hand, the plaintiff's skateboard could easily have struck him during the scuffle with Cons Budin and the tooth could have been chipped in that fashion. I accept that the plaintiff's left upper front tooth was chipped somehow on this evening but I do not accept that it was done deliberately as a result of any act of Cons Budin.

[24]

Was the arrest of the plaintiff justified?

Paragraph 16 of the Amended Defence filed by the State is this: "16. The defendant denies paragraph 16 of the Statement of Claim and says further that the Plaintiff's arrest was lawful and justified. Particulars (a) The plaintiff: (i) had failed, refused and/or neglected to abide the lawful directions of police; (ii) had verbally resisted police so as to effect and demonstrate that failure, refusal and neglect; (iii) behaved in a way which created an unreasonable risk of damage or injury to himself, members of the public, property and police; and (iv) behaved in a manner which constituted a breach of the peace. (b) Budin, in announcing his intention to arrest the plaintiff, for committing offences, which he reasonably suspected to constitute a breach of the peace, was acting in the exercise of lawful authority. (c) Further and in the premises, Budin lawfully arrested the plaintiff. Particulars (i) Budin suspected on reasonable grounds that the plaintiff had committed offences of assault, resist officer in the execution of his duty, use offensive language and continued intoxicated behaviour after failure to abide by move on directions and that it was therefore necessary to arrest the plaintiff pursuant to section 99(1) LEPRA. (d) The defendant says that at all times reasonable force was used to detain and arrest the first plaintiff pursuant to the common law to prevent a breach of the peace and sections 230 and 231 of LEPRA." This pleading conflates the fact that initially Cons Budin arrested the plaintiff for offensive language and failing to comply with a move on direction. It is only after he announced his arrest of the plaintiff that Cons Budin says that he was assaulted and that the plaintiff resisted Cons Budin in the execution of his duty. The original arrest must be justified by at least one of the initial two charges or on another ground advanced by the defence: an imminent breach of the peace. This is not merely a question of logic but one of law, well established by the authorities: DPP v CAD & Ors [2003] NSWSC 196 (Barr J) at [25]; DPP v AM [2006] NSWSC 348; 161 A Crim R 219 (Hall J) at [59]; DPP (NSW) v Mathews-Hunter [2014] NSWSC 843 (Fullerton J) at [45].
It is convenient to deal with the "fail to move on" allegation first. Law Enforcement (Powers and Responsibilities) Act 2002 ('LEPRA') as it was on 16 August 2014 provided: "198 Move on directions to intoxicated persons in public places (1) A police officer may give a direction to an intoxicated person who is in a public place to leave the place and not return for a specified period if the police officer believes on reasonable grounds that the person's behaviour in the place as a result of the intoxication (referred to in this Part as relevant conduct): (a) is likely to cause injury to any other person or persons, damage to property or otherwise give rise to a risk to public safety, or (b) is disorderly. (2) A direction given by a police officer under this section must be reasonable in the circumstances for the purpose of: (a) preventing injury or damage or reducing or eliminating a risk to public safety, or (b) preventing the continuance of disorderly behaviour in a public place. (3) The period during which a person may be directed not to return to a public place is not to exceed 6 hours after the direction was given. (4) The other person or persons referred to in subsection (1) (a) need not be in the public place but must be near that place at the time the relevant conduct is being engaged in. (5) For the purposes of this section, a person is intoxicated if: (a) the person's speech, balance, co-ordination or behaviour is noticeably affected, and (b) it is reasonable in the circumstances to believe that the affected speech, balance, co-ordination or behaviour is the result of the consumption of alcohol or any drug. 198A Giving of directions to groups of persons (1) A police officer may give a direction under this Part to persons comprising a group. (2) In any such case, the police officer is not required to repeat the direction, or to repeat the information and warning referred to in section 201, to each person in the group. (3) However, just because the police officer is not required to repeat any such direction, information or warning does not in itself give rise to any presumption that each person in the group has received the direction, information or warning. 199 Failure to comply with direction (cf Summary Offences Act 1988, s 28F) (1) A person must not, without reasonable excuse, refuse or fail to comply with a direction given in accordance with this Part. Maximum penalty: 2 penalty units. (2) A person is not guilty of an offence under this section unless it is established that the person persisted, after the direction concerned was given, to engage in the relevant conduct or any other relevant conduct. 201 Supplying police officer's details and giving warnings (cf Crimes Act 1900, s 563, Police Powers (Vehicles) Act 1998, s 6) … (2C) If a police officer exercises a power that involves the making of a request or direction that a person is required to comply with by law, the police officer must, as soon as is reasonably practicable after making the request or direction, provide the person the subject of the request or direction with: (a) a warning that the person is required by law to comply with the request or direction (unless the person has already complied or is in the process of complying), and (b) if the person does not comply with the request or direction after being given that warning, and the police officer believes that the failure to comply by the person is an offence, a warning that the failure to comply with the request or direction is an offence. (2D) In addition, if a police officer exercises a power that involves the making of a direction under section 198 on the grounds that a person is intoxicated and disorderly in a public place, the police officer must provide the person the subject of the direction with a warning that it is an offence to be intoxicated and disorderly in that or any other public place at any time within 6 hours after the direction is given. Note. See section 9 of the Summary Offences Act 1988. …" The Summary Offences Act 1988 section 9 then provided: "9 Continuation of intoxicated and disorderly behaviour following move on direction (1) A person who: (a) is given a move on direction for being intoxicated and disorderly in a public place, and (b) at any time within 6 hours after the move on direction is given, is intoxicated and disorderly in the same or another public place, is guilty of an offence. Maximum penalty: 15 penalty units. (2) For the purposes of this section, a move on direction is a direction given to a person by a police officer, under section 198 of the Law Enforcement (Powers and Responsibilities) Act 2002, to leave a public place and not return for a specified period. Note. The maximum period for which a person can be directed not to return to a public place is 6 hours. It is a requirement under section 201 of the Law Enforcement (Powers and Responsibilities) Act 2002 that the police officer warn a person given a move on direction for being intoxicated and disorderly in a public place that it is an offence to be intoxicated and disorderly in that or any other public place at any time within 6 hours after the move on direction is given. (3) In proceedings for an offence against this section, it is necessary to prove that a move on direction was given within 6 hours before the person was found to be intoxicated and disorderly in a public place, but it is not necessary to prove that the person contravened the move on direction by being so intoxicated and disorderly in the public place at the time concerned. (4) A person cannot be proceeded against or convicted for both an offence against this section and an offence against section 199 of the Law Enforcement (Powers and Responsibilities) Act 2002 (Failure to comply with direction) in relation to the same conduct. (5) It is sufficient defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant had a reasonable excuse for conducting himself or herself in the manner alleged in the information for the offence. (6) For the purposes of this section, a person is intoxicated if: (a) the person's speech, balance, co-ordination or behaviour is noticeably affected, and (b) it is reasonable in the circumstances to believe that the affected speech, balance, co-ordination or behaviour is the result of the consumption of alcohol or any drug."
Antecedent to Cons Budin's providing a move on direction to the plaintiff, he had to be satisfied that the plaintiff's behaviour was noticeably affected and that it was reasonable in the circumstances to believe that his behaviour was the result of the consumption of alcohol: s198(5). In cross-examination, Cons Budin gave this evidence: "Q. Before you issue a move on direction to a person under that section, you need to be satisfied, don't you, that they're intoxicated? A. Under 198? Q. Yes. A. Yes. Q. So in respect of Mr Gibb Smith, before you gave him the direction as part of the group, you needed to be satisfied that he was an intoxicated person, would you agree? A. Yes. Q. Prior to give Mr Gibb Smith and the group a direction to move on, I suggest that you did not conduct an assessment as to whether or not Mr Gibb Smith was intoxicated. Do you agree or disagree? A. I can't remember. Q. What was your answer? A. Just thinking about it, I don't remember at this stage. Q. But you'd agree that before give such a direction, you need to be satisfied that a person is intoxicated. A. Yes. Q. If you got to page 28 of the transcript, the evidence which you gave in the Children's Court, at about line 30, the question is, "Q. He told you that he wasn't intoxicated, do you agree with that? A. He said, 'I'm not even drunk, yeah.' Q. Your evidence was that at the time that you put him in the truck, I think your words were you became aware that he was intoxicated, and you formed the opinion he was intoxicated. Do you remember that? A. Yes." So that was when you first became aware that Mr Gibb Smith might have been intoxicated, is that the case? A. Yeah. Q. And your evidence before the Children's Court magistrate is consistent with what you've said in paragraph 14 of your statement dated 20 April 2014. If you could go to that paragraph of your statement please, senior constable. Can you see there in paragraph 14, you say you placed the young person in the rear of a police caged vehicle. "It was a four wheel drive. As closed the internal cage door, the young person said, 'I'm going to fucking sue you.' I told the young person not to say anything further. Whilst placing the young person in the rear of the vehicle -" there should be an "I" there, "- I was made aware the young person smelt heavily of alcohol, his eyes were red and bloodshot. I formed the opinion that the young person was affected by alcohol, he was of a well affected state." That was the first time that you formed an opinion about Mr Gibb Smith's intoxication, correct? A. Yes." Not having formed the view that the plaintiff's behaviour was the result of his consumption of alcohol, Cons Budin was not entitled to give the plaintiff a move on direction.
However, the plaintiff was a member of "a group" and a police officer is entitled to give a direction to persons comprising "a group". I know of no decision as to the interpretation of the words "a group" in s198A. Does the "speech, balance, co-ordination or behaviour" of each member of the group need to be "noticeably affected" and that is the result of each member of the group being affected by "the consumption of alcohol or any drug"? What if there be a group of 20 and 19 are affected by alcohol or a drug but one is quite sober? What if there be a group of 20 but only one is affected by alcohol or a drug? Section 199 makes it an offence to fail to comply with a move on direction as does section 9 of the Summary Offences Act. In theory, the provision should be strictly construed, but a strict construction might make practical policing difficult. However, this question of statutory construction can expediently be avoided.
In any event Cons Budin and none of his colleagues complied with the second limb of s198(1), directing those told to move on not to return for a period of 6 hours or less. In cross-examination Cons Budin agreed that he told the Children's Court that he did not specify a time in which the plaintiff was not to return and he told me the same (T309.34 to 311.17). Accordingly, no valid move on direction was made as Cons Budin did not comply with ss 198(1), 198(3), 201(2C), 201(2D). Cons Budin therefore could not lawfully arrest the plaintiff for failure to comply with a move on direction.
Summary Offences Act 1988 section 4A provides: "4A Offensive language (1) A person must not use offensive language in or near, or within hearing from, a public place or a school. Maximum penalty: 6 penalty units. (2) It is a sufficient defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant had a reasonable excuse for conducting himself or herself in the manner alleged in the information for the offence. (3) Instead of imposing a fine on a person, the court: (a) may make an order under section 8(1) of the Crimes (Sentencing Procedure) Act 1999 directing the person to perform community service work, or (b) may make an order under section 5(1) of the Children (Community Service Orders) Act 1987 requiring the person to perform community service work, as the case requires. (4), (5) (Repealed) (6) However, the maximum number of hours of community service work that a person may be required to perform under an order in respect of an offence under this section is 100 hours." Under subsection (1), the maximum penalty for this offence is a fine. Under subsection (3), however, the court may order an offender to perform community service work. Whilst both Crimes (Sentencing Procedure) Act 1990 section 8(1) and Children (Community Service Orders) Act 1987 provide that community service work is an alternative to imprisonment or detention (a "control order"), this penalty for this crime is an exception, as the general rule to be found in the two statutes regulating the imposition of this penalty is that it is an alternative to imprisonment or detention which are not available penalties for this offence. Nevertheless, subsection (3) does not in any way "deem" this offence to be one punishable by imprisonment or detention.
The proposition that a person ought be arrested, i.e. have his or her liberty removed, effectively being imprisoned, for an offence not punishable by imprisonment offends not only common sense but principle. The authorities on this point are clear. In DPP v Carr [2002] NSWSC 194; 127 A Crim R 151, Smart AJ said at [35]: "This Court in its appellate and trial divisions has been emphasising for many years that it is inappropriate for powers of arrest to be used for minor offences where the defendant's name and address are known, there is no risk of him departing and there is no reason to believe that a summons will not be effective. Arrest is an additional punishment involving deprivation of freedom and frequently ignominy and fear. The consequences of the employment of the power of arrest unnecessarily and inappropriately and instead of issuing a summons are often anger on the part of the person arrested and an escalation of the situation leading to the person resisting arrest and assaulting the police. The pattern in this case is all too familiar. It is time that the statements of this Court were heeded." In DPP v CAD & Ors [2003] NSWSC 196 Barr J said: "6. The defence in the Children's Court asserted that the complainant had acted unlawfully or improperly in that he had arrested a young person for a minor offence in circumstances that did not call for an arrest. It was submitted that some means short of arrest should have been employed to ensure that the unidentified person was appropriately dealt with. 7. The law about the arrest of and the commencement of criminal proceedings against persons, especially children, for minor offences is uncontroversial. Arrest should be reserved for circumstances in which it is clearly necessary: Lake v Dobson Supreme Court of New South Wales, Court of Appeal, 19 December 1980 unreported. It is inappropriate to arrest when service of a summons will suffice: Fleet v District Court [1999] NSWCA 363. It is inappropriate for powers of arrest to be used for minor offences where the defendant's name and address are known, where there is no risk of his departing and where there is no reason to believe that the summons will not be effective: Daemar v Corporate Affairs Commission Supreme Court of New South Wales, Court of Appeal, 4 September 1990 unreported; Director of Public Prosecutions v Carr [2002] NSWSC 194. 8. These principles apply all the more when any person suspected of having committed an offence is a child. Although it makes no reference to arrest and does not purport to limit the powers of arrest in a proper case, s 8 Children (Criminal Proceedings) Act provides that a criminal prosecution should not be commenced against a child other than by summons or attendance notice." In DPP v Mathews-Hunter [2014] NSWSC 843 Fullerton J dealt with an appeal by a young man for a graffiti offence on a southbound train between Gosford and Woy Woy. Her Honour made these observations: "25. As a general proposition, the Magistrate observed that it has been authoritatively held that police powers to arrest should be a last resort and should be exercised sparingly. He also observed that once the defendant's marker had been confiscated, there could be no suggestion that he was at risk of committing further offences and, further, that there was no evidence that the defendant was known to the transit officers as a repeat graffiti artist or a person who was generally known to damage property. In short, he was not known to them at all. 26. The Magistrate also expressed concern that the defendant was only slightly over 18 years of age at the time of his arrest and that he looked "very young", such that the transit officers should have been alert to the possibility that he was under 18. Were that the case he would be subject to a different statutory arrest regime. (Although the Magistrate did not make explicit reference to the arrest regime applicable to children, I note that criminal proceedings against a child suspected of committing an offence should not be commenced other than by summons or court attendance notice: see DPP (NSW) v AM [2006] NSWSC 348; DPP v CAD & Ors [2003] NSWSC 196; see also s 8(1) of the Children (Criminal Proceedings) Act 1987 (NSW))." Later, her Honour said: "49. In the present case the defendant was subjected to the additional punishment of being deprived of his liberty and being physically restrained for the commission of an offence that is punishable only by a fine, in circumstances where the arresting transit officer must be taken to have been aware that there were alternatives available to him even if he may not have been certain as to what they were. 50. Although Smart AJ was dealing with arrest powers under s 352 of the Crimes Act (since repealed), I note that the second reading speech to the Bill introducing LEPRA in 2002 makes it clear that the legislature intended that both ss 99 and 100 would be subject to the restrictions on the exercise of the power to arrest, including that arrest should be exercised only when necessary, and only as a last resort. In any event, s 352 did not displace the common law with regards to limitations on the power to arrest; neither did the enactment of ss 99 and 100 of LEPRA which replaced that provision (see Zaravinos v State of NSW [2004] NSWCA 320; 62 NSWLR 58 per Bryson JA at [23]). In Zaravinos, at [23], Bryson JA observed that because of the high value the law places on personal liberty, "a statute which authorises the detention of a person must be strictly construed". 51. In Williams v R [1986] HCA 88; 161 CLR 278, Mason and Brennan JJ considered the "jealousy" with which the common law protects the right to personal liberty: The right to personal liberty is, as Fullagar J described it, "the most elementary and important of all common law rights": Trobridge v Hardy. Personal liberty was held by Blackstone to be an absolute right vested in the individual by the immutable laws of nature and had never been abridged by the laws of England "without sufficient cause" Commentaries on the Laws of England ... He warned: "Of great importance to the public is the preservation of this personal liberty: for if once it were left in the power of any, the highest, magistrate to imprison arbitrarily whomever he or his officers thought proper... there would soon be an end of all other rights and immunities." That warning has been recently echoed. In Cleland v The Queen Deane J said: "It is of critical importance to the existence and protection of personal liberty under the law that the restraints which the law imposes on police powers of arrest and detention be scrupulously observed." The right to personal liberty cannot be impaired or taken away without lawful authority and then only to the extent and for the time which the law prescribes. 52. Although his Honour did not say so expressly, it is implicit in his reasons that he was satisfied that the transit officer's decision to arrest the defendant was the result of either expediency or uncertainty as to how to respond in the circumstances, not, as the plaintiff submitted, because it was the appropriate response. Far from the power to arrest being executed as the last resort as is required at law, it was the transit officer's first response. There is no evidence to suggest that obtaining the defendant's details and passing them on to the police would not have been an effective way of dealing with the graffiti offences. In my view, in all the circumstances, the evidence supports his Honour's finding that the arrest was unlawful and improper."
The fact that the plaintiff was a minor, "a child", ought to have been obvious to Cons Budin. He suspected that the plaintiff was under age but was not sure ("100%"). He maintained that the plaintiff protested that he was 18 years old but Cons Budin did not believe him: see [34] above. Cons Budin made no enquiry as to the plaintiff's identity prior to arresting him: see [37] above. There is no suggestion that the plaintiff was seeking to run away or escape. As I found at [72] above, offensive language used by the plaintiff was taken by Cons Budin as a personal and professional slight, causing him to react precipitately, to arrest the plaintiff. There were a number of things Cons Budin could have done: 1. tell the plaintiff to stop using offensive language; 2. make the plaintiff provide his personal details: name, address and date of birth; 3. ask the plaintiff to provide identification; or 4. ask the plaintiff to move away a few metres from his friends in order to facilitate (b) or (c) or both.
LEPRA section 99(1) was at the relevant time this: "99 Power of police officers to arrest without warrant (1) A police officer may, without a warrant, arrest a person if: (a) the police officer suspects on reasonable grounds that the person is committing or has committed an offence, and (b) the police officer is satisfied that the arrest is reasonably necessary for any one or more of the following reasons: (i) to stop the person committing or repeating the offence or committing another offence, (ii) to stop the person fleeing from a police officer or from the location of the offence, (iii) to enable inquiries to be made to establish the person's identity if it cannot be readily established or if the police officer suspects on reasonable grounds that identity information provided is false, (iv) to ensure that the person appears before a court in relation to the offence, (v) to obtain property in the possession of the person that is connected with the offence, (vi) to preserve evidence of the offence or prevent the fabrication of evidence, (vii) to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence, (viii) to protect the safety or welfare of any person (including the person arrested), (ix) because of the nature and seriousness of the offence." The verb "may" in the chapeau of the subsection clearly gives a police officer a discretion. The conjunction "and" between the two paragraphs requires that both be satisfied. In the present case the plaintiff had used offensive language, so par (a) was satisfied. The defendant sought to justify the arrest by relying on subparagraphs (i) and (viii) of subsection (b). How could Cons Budin be reasonably satisfied that the plaintiff would continue to use offensive language without giving the plaintiff a direction to desist using such language? Subparagraph (viii) was relied upon initially, as I understood it, to protect the plaintiff himself from the effects of his insobriety but was not available as Cons Budin did not perceive at the time of arrest that the plaintiff was intoxicated. However, this was not ultimately pressed by learned Counsel for the defendant in her written submissions (MFI 15).
The propriety of an arrest must be considered in the context of "all of the circumstances": DPP (NSW) v Mathews-Hunter (supra) at [45]. Summary Offences Act 1988 section 4A(1) proscribes conduct which might offend members of the community going about their business in a public place. It can be validly surmised that it is designed, in particular, to protect the young, the innocent (hence the reference to "a school"), and others who might be offended by indecorous language such as the elderly. The conduct in question happened in the shopping area of a quiet suburb at about 10.30 pm on a Wednesday night. The evidence only describes the plaintiff, his friends, acquaintances, other partygoers and the police. There is no evidence of any members of the public being nearby, in particular children, or, for example, those leaving a meeting of senior citizens. Even if the plaintiff continued to use offensive language, in my opinion, Cons Budin was not entitled to arrest in such circumstances unless the plaintiff refused to identify himself or produce some form of identification. If the plaintiff did identify himself, sufficiently for police purposes, he could have been charged later by a "future" CAN, formerly a Summons. If the plaintiff failed to do so, Cons Budin could justify his arrest of the plaintiff under s 99(1)(b)(ii). In these circumstances, the defendant has failed to justify the arrest of the plaintiff on the charge of using offensive language.
However, an unjustified decision to arrest may become justified by subsequent events: DPP v CAD & Ors (supra) at [25]. The only relevant considerations could be the allegations made of resisting Cons Budin in the execution of his duty and assaulting him. The actions of Cons Budin in seeking to arrest the plaintiff, without proper justification, amounted to an assault on the plaintiff which he was entitled to resist: self-defence. As recorded at [73] above, I do not accept that the plaintiff used his skateboard as a weapon to strike Cons Budin with it or to attempt to do so. I do not accept that the plaintiff assaulted Cons Budin, other than seeking to resist his unjustified attempt to arrest him. Subsequent events do not justify the arrest.
In so finding, I do not overlook the argument that the plaintiff's lack of cooperation with police at the police station indicates that the plaintiff would not have identified himself or produced identification if asked to do so by Cons Budin rather than the Constable's seeking to arrest him. His attitude at the police station could have been substantially affected by the circumstances of his apprehension and transportation to the police station.

[25]

Arrest for breach of the peace?

In Poidevin v Semaan [2013] NSWCA 334; (2013) 85 NSWLR 758, Leeming JA (with whom Ward and Emmett JJA agreed) said: "18. At common law a police officer has a power of arrest where there is a reasonable apprehension of an imminent breach of the peace. That was held by the Court of Appeal (after an elaborate argument) in Reg v Howell [1982] 1 QB 416 at 426, and confirmed by the House of Lords in Albert v Lavin [1982] AC 546 at 565 and R (Laporte) v Chief Constable of Gloucestershire [2006] UKHL 55; [2007] 2 AC 105 at [29]-[33], [62], [101], [114] and [141]. In this State, see Thompson v Vincent [2005] NSWCA 219; (2005) 153 A Crim R 577 at [152] (Mason P, Handley JA and Pearlman AJA agreeing). 19. Further, a police officer had power at common law to take steps short of arrest. Indeed, as Gleeson CJ said in Coleman v Power at [10], a citizen in whose presence a breach of the peace is about to be committed has a right at common law to use reasonable force to restrain the breach in an appropriate case. As Glanville Williams put it, in "Arrest for Breach of the Peace" [1954] Criminal Law Review 578 at 590: "At common law the police may interfere in some limited ways, even with an innocent person, for the preservation of order. The leading case is Humphrey v Connor (1864) 17 Ir R 1, an Irish decision that has won approbation in English books. It was there held that a constable could commit what would otherwise have been an assault upon an innocent woman (taking an orange lily from her, which was causing offence to others), if that were the only way of preserving the peace." 20. The common law power to deprive an owner of possession in order to prevent a breach of the peace continues to be part of the common law of Australia. Thus the High Court spoke in Gollan v Nugent (1988) 166 CLR 18 at 45 of: "those powers which a citizen has, be he a policeman or not, to prevent the commission of a crime or a breach of the peace. Rights arising from ownership would not prevail against those powers but they only come into being when there is an immediate threat of a physical kind ..." 21. The LEPRA expressly presupposes the continued existence of the police officer's powers at common law. Indeed, it was not suggested that statute authorised Sergeant Poidevin's conduct against Mr Semaan, which, absent lawful authority, amounted to an assault and battery. Section 4(1) states that the Act does not limit the functions, obligations and liabilities that a police officer has as a constable at common law, unless it otherwise provides expressly or by implication. Section 4(2) provides that without limiting subsection (1), nothing in the Act affects the powers conferred by the common law to deal with breaches of the peace."
In Johnson v Phillips [1975] 3 All ER 682, the Court (Lord Widgery CJ, Milmo and Wien JJ) said at p 685: "The first function of a constable has for centuries been the preservation of the peace. His powers and obligations derive from the common law and from statute. It is his general duty to protect life and property: see Glasbrook Brothers Ltd Glamorgan County Council where Viscount Finlay said ([1925] AC at 285, [1924] All ER Rep at 586): 'There is no doubt that it is the duty of the police to give adequate protection to all persons and their property.' Stemming from that duty is his duty to control traffic on public roads. The powers and obligations of a constable under the common law have never been exhaustively defined and no attempt to do so has ever been made: see, for example, R v Waterfield where Ashworth J, who delivered the judgment of the court, said ([1963] 3 All ER at 661, [1964] 1 QB at 170): '… it would be difficult, and in the present case it is unnecessary, to reduce within specific limits the general terms in which the duties of police constables have been expressed.' Also there is the case of Rice v Connolly, where Lord Parker CJ said ([1966] 2 All ER at 651, [1966] 2 QB at 419): 'It is also in my judgment clear that it is part of the obligations and duties of a police constable to take all steps which appear to him necessary for keeping the peace, for preventing crime or for protecting property from criminal injury. There is no exhaustive definition of the powers and obligations of the police, but they are at least those … ' In attempts to keep pace and to deal with the volume and complexity of road traffic the legislature has often made enactments to deal with certain problems. An example may be given by reference to s 22 of the Road Traffic Act 1972. Section 22(1), so far as is relevant, reads as follows: 'Where a constable is for the time being engaged in the regulation of traffic in a road … a person driving or propelling a vehicle who - (a) neglects or refuses to stop the vehicle or to make it proceed in, or keep to, a particular line of traffic when directed so to do by the constable in the execution of his duty … shall be guilty of an offence.' Such statutes cannot be considered as totally determining a constable's powers or obligation. One-way streets for vehicles are doubtless a comparatively modern method of coping with traffic congestion, but it cannot be said that Parliament either by statute or regulation has purported to deal with every situation that might conceivably arise. The precise question that has to be answered in the instant case may be put thus: has a constable in purported exercise of his power to control traffic on a public road the right under common law to disobey a traffic regulation such as going the wrong way along a one-way street? If he himself has that right then it follows that he can oblige others to comply with his instructions to disobey such a regulation. If, for example, a bomb had been planted in the Windsor public house and the exit from Cannon Street had in some way been blocked, could he lawfully reverse a police vehicle and oblige any other motorist then present in the road to reverse his own vehicle? The answer is, Yes, provided that in the execution of his duty he was acting to protect life or property: see Hoffman v Thomas." Their Lordships expressed the view that the preservation of the peace required a constable to protect life and property, the protection of life including the protection of personal integrity.
A real issue in this case is: what constitutes a breach of the peace? There are a large number of decisions, most of which are referred to by Campbell JA in State of NSW v Tyszyk [2008] NSWCA 107: "Common Law Duties Concerning Keeping the Peace 85. Another aspect of the duties of a constable concerns preventing or assisting in preventing disturbances or breaches of the peace: Horne v Coleman (1929) 46 WN (NSW) 30 at 31; Glasbrook v Glamorgan Council at 277; Thomas v Sawkins [1935] 2 KB 249 at 256; Duncan v Jones [1936] 1 KB 218 at 223; Rice v Connolly at 419. The notion of a "breach of the peace" is a multifaceted one, and includes a wide range of actions and threatened actions that interfere with the ordinary operation of civil society. Something of the idea is expressed in A Harding, A Social History of English Law (1966) Penguin at 15: "England was not a land of a single peace but of many, one belonging to each great lord and one to the church. Peace was something precious and almost tangible which went along with a priest or a lord, and which great lords could give to their followers to take with them: in that case peace was often called protection. There could be different values of peace. Long after the idea had grown up that the high roads and then the whole country were in some sense automatically within the King's peace, it remained more heinous to infringe the King's 'hand-given' peace, the peace which the king had explicitly declared. Just as one could injure a man himself, one could injure his peace, by committing a crime in his house, or in his presence, or against his protected servant; and there was a traditional compensation for the breach of his peace." 86. The concept continues to find operation in the office of the justice of the peace, and until recently in the practice of binding over to keep the peace. 87. The medieval origins of the notion of "peace" show a frequent connection with violence - the allegation in a writ of trespass that an action was done "vi et armis and contra pacem domini regis" (with force and arms and against the peace of our lord the King) made that allegation one that could be tried only in the King's court (T Plucknett, A Concise History of the Common Law, 5th ed (1956) Butterworths at 93). H Potter, An Historical Introduction to English Law and its Institutions, 3rd ed (1948) at 343 explains how immediately before the Conquest "the King had a special Peace which was in force everywhere, but this peace only covered deeds of violence done to persons". Potter there also explains how upon the death of Edward I the precedent was established that a King's peace would be proclaimed and enforced immediately upon his succession, and that: "The King's Peace was destined to grow and flourish till it had covered the face of England at all times and in all seasons. When this had come to pass no man committed violence without being liable to a fine at the suit of the King." 88. In R v Howell [1982] QB 416 Watkins LJ, delivering a joint judgment of himself and Cantley and Hollings JJ went so far as to say, at 426: "… we cannot accept that there can be a breach of the peace unless there has been an act done or threatened to be done which either actually harms a person, or in his presence his property, or is likely to cause such harm, or which puts someone in fear of such harm being done. There is nothing more likely to arouse resentment and anger in him, and a desire to take instant revenge, than attacks or threatened attacks upon a person's body or property." 89. Their Lordships referred to a statement in Halsbury's Laws of England, 4th ed, vol 11, par 108 that: "For the purpose of the common law powers of arrest without warrant, a breach of the peace arises where there is an actual assault, or where public alarm and excitement caused by a person's wrongful act. Mere annoyance and disturbance or insult to a person or abusive language, or great heat and fury without personal violence, are not generally sufficient." 90. They said, at 427 that that statement: "… is in parts, we think, inaccurate because of its failure to relate all the kinds of behaviour there mentioned to violence. Furthermore, we think, the word "disturbance" when used in isolation cannot constitute a breach of the peace. We are emboldened to say that there is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance. It is for this breach of the peace when done in his presence or the reasonable apprehension of it taking place at a constable, or anyone else, may arrest an offender without warrant." 91. The explanation of what amounts to a breach of the peace given in Howell has often been followed: Parkin v Norman; Valentine v Lilley [1983] QB 92 at 102-103; Innes v Weate at 52; Percy v Director of Public Prosecutions [1995] 3 All ER 124 at 132-3 (per Balcombe LJ and Collins J, holding that the exposition in Howell applied to binding over to keep the peace, as well as to powers of arrest to prevent a breach of the peace - "breach of the peace is limited to violence or threats of violence"; Edwards v Raabe [2000] VSC 47; (2000) 117 A Crim R 191; McConnell v Chief Constable of the Greater Manchester Police [1990] 1 All ER 423 at 425; Bhattacharya v State of New South Wales & Anor [2003] NSWSC 261 at [38] per Mathews AJ; Tomarchio v Pocock [2002] WASCA 156 at [54] (a decision of Pullin J sitting alone, notwithstanding the medium-neutral citation which suggests it is a decision of the Court of Appeal of Western Australia). 92. Lord Denning MR took a wider view of what counts as a breach of the peace in R v Chief Constable of the Devon and Cornwall Constabulary, ex parte Central Electricity Generating Board [1982] QB 458. That case was an application for mandamus seeking to compel the police to provide assistance to prevent protesters from interfering with a building project of which the protesters disapproved. The order was refused on discretionary grounds, but Lord Denning said at 471: "There is a breach of the peace whenever a person who is lawfully carrying out his work is unlawfully and physically prevented by another from doing it. He is entitled by law peacefully to go on with his work on his lawful occasions. If anyone unlawfully and physically obstructs the worker, by lying down or chaining himself to a rig or the like, he is guilty of a breach of the peace." 93. However, Lawton and Templeman LJJ, the other judges in the Court of Appeal, did not endorse those statements, and later English cases have declined to follow them: Parkin v Norman at 103; Percy v Director of Public Prosecutions at 132. I note that Angel J in R v Van Bao Nguyen [2002] NTSC 38; (2002) 139 NTR 15 at [11] has cited Lord Denning's remarks with apparent approval, without adverting to the later English disapproval of them. 94. Judges who have followed Howell have recognised that sometimes the connection between a breach of the peace and violence is not a direct one. In Percy v Director of Public Prosecutions the Court accepted that there could be a breach of the peace even if a protester trespassed on a defence installation in a completely non-violent way, if there was a real risk that such conduct might provoke others to violence. 95 But the acceptance of the account of breach of the peace given in Howell has not been universal. In Nicholson v Avon [1991] 1 VR 212 Marks J said at 221: "A number of cases have been cited by counsel in which a definition of breach of the peace has been attempted: R v Howell (1981) 73 Cr App R 31, at p. 37; R v Chief Constable of Devon and Cornwall [1982] QB 458, at p. 471; Valentine v Lilley [1982] 2 All ER 583, at p. 590; Simcock v Rhodes (1977) 66 Cr App R 192; Parkin v Norman [1982] 2 All ER 583, at pp. 587-8; Innes v Weate [1984] Tas R 14, at p. 22 and articles "Arrest for Breach of the Peace" by Glanville Williams, and Leigh, "Police Powers in England and Wales". I am not persuaded that I should regard the attempted definitions as exhaustive of the meaning to be given to the expression "breach of peace" or "threatened breach of peace". The facts in a particular case will or will not appeal to a court as justifying a conclusion by police officers that there was a breach of the peace or a threat of it." 96. In State of New South Wales v Kuru [2007] NSWCA 141; (2007) Aust Torts Reports 91-893 at [149] Ipp JA said: "A breach of the peace occurs when an act "either actually harms a person, or in his presence, his property, or is likely to cause such harm, which puts someone in fear of such harm being done": R v Howell (Errol) [1982] QB 416 at 427 per Watkins LJ, in delivering the judgment of the English Court of Appeal. This statement of the law was followed by the English Court of Appeal in Addison v Chief Constable of West Midlands Police [2004] 1 WLR 29 at 30 to 31. See also Nicholson v Avon [1991] 1 VR 212 at 222." 97. That statement was neither agreed with nor disagreed with by other members of the court (Mason P and Santow JA). Further, I note that it was made in a context where the prime concern was to decide whether a police officer had, at common law, a power to enter private property when a breach of the peace was apprehended. There was no doubt that the police officers in Kuru had reason to believe there may be violence, because they were attending the premises in response to a complaint of a violent domestic incident. 98. For centuries, constables who were appointed to keep the peace have been given functions other than ones with an immediate connection with detecting or preventing violence. The Ordinance for the Preservation of the Peace of 1242 identified one function of the constables as being to keep watch at each city gate during the night and arrest any suspicious foreigners who passed by them. It also required that: "… in each hundred there shall be established a chief constable at whose command all men sworn to arms in his hundred shall be assembled; and to him they shall be obedient in carrying out necessary measures for the conservation of our peace. The chief constables of the various hundreds, moreover, shall be obedient to the sheriff and the two knights aforesaid, in coming at their command and in carrying out necessary measures for the conservation of our peace …" That authority seems fairly open-ended. 99. When the Statute of Winchester required the appointment of constables, it did so as part of c 6, that began by requiring each householder to maintain in his house certain weapons and armour, that shall be presented for inspection every two years. It continued: "And in every Hundred and Franchise two Constables shall be chosen to make the View of Armor: And the Constables aforesaid shall present before the Justices assigned such Defaults as they do see in the Country about Armor, and of the Suits of Towns, and of Highways, and also shall present all such as do lodge Strangers in uplandish Towns, for whom they will not answer; and the Justices assigned shall present at every Parliament unto the King such Defaults as they shall find, and the King shall provide Remedy therein …" 100. (Translation from the Norman French from O Ruffhead, Statutes at Large, new edition (1786)). That likewise does not seem to restrict the activities of constables to activities connected with violence or its prevention, except perhaps in the extremely extended sense that any system of law can be seen as a discouragement to self-help through violence as a means of remedying wrongs. There is authority that a party may be bound over to keep the peace even if no person has been put in bodily fear, and even if nothing has been done which tends to a breach of the peace in the sense of something which is calculated to lead to violence: Lansbury v Riley [1914] 3 KB 229; R v Sandbach; ex parte Williams [1935] 2 KB 192 esp at 196; Ackers v Taylor [1974] 1 WLR 405. 101. If the account of breach of the peace given in Howell is correct, in the present case the danger posed by the downpipe did not give rise to a breach of the peace or any apprehended breach of the peace, because there was no violence or threats of violence or reasonable apprehension that violence might occur. However the account of breach of the peace given by Howell suggests that the concept of breach of the peace has lost some of the protean quality it once had. When my own examination of the notion of breach of the peace has been incomplete, and the decisions in Lansbury, Sandbach and Ackers were not cited in Howell, I would prefer to leave the question of whether Howell is correct in that respect to an occasion when it is necessary to decide it. Thus, I shall not decide the case specifically on the basis that there was no actual or apprehended breach of the peace."
Tyszyk provides me with no binding, relevant ratio decidendi: the cause of action relied upon by the plaintiff/respondent was negligence and Giles JA (with whom Mason P agreed) said at [3]: "I assume, without deciding, that the constables owed to the respondent a duty to take reasonable care to protect him from injury from the dangling downpipe." Campbell JA did not accept that the police involved owed the plaintiff a duty of care but, in any event, like his two brethren, his Honour held that there was no breach of any duty of care in any event. Similarly, State of NSW v Kuru [2007] NSWCA 141; (2007) Aust Torts Reports 81-893 provides me with no binding ratio. The case concerned police powers under statute and at common law to enter and remain upon private premises. The relevant statutory provisions were Crimes Act 1900 ss 357G and 357H. Although the police entered the residence through an open doorway the occupier subsequently asked them to leave. The police were responding to a neighbour's telephone call about a "violent domestic". By the time the police arrived the occupier's girlfriend had left the premises with the occupier's sister, the occupier was in the shower and the only others present in the premises were two male friends of the occupier. At [92] Santow JA said: "I do not consider that the common law entitles an occupier to withdraw an invitation when the invitation was originally to do that which the police were still in the course of doing, namely to investigate whether there was a victim of a violent domestic assault on the premises or nearby. It must not be forgotten that Lord Denning MR in Southam v Smout (1964) 1 QB 308 at 320 concluded his peroration against even the King of England entering a poor man's cottage with this important qualification: "unless he has justification by law". Here the police did have that justification, at common law at least. I would here apply, as does Ipp JA in his judgment, what is cited from McGowan v Chief Constable of Kingston upon Hull [1968] Crim LR 34 (also reported at (1967) 117 NLJ 1138), Kay v Hibbert [1977] Crim LR 226 at 227 (also reported at (1977) 141 JPJo 157) and Ledger v Director of Public Prosecutions [1991] Crim LR 439 at 440 applying Kay v Hibbert." At [178] Ipp JA said: "Similarly, in the present case, even though the police were told to leave by Mr Kuru, they were, in my opinion, entitled, at common law, to stay until they had taken reasonable steps to satisfy themselves that no offence had been committed in the apartment (whether by making a closer inspection of the premises or by telephoning Mr Kuru's fiancée or his sister and speaking to one, or other, of them)." There was a successful appeal to the High Court: Kuru v State of NSW [2008] HCA 26. The majority (Gleeson CJ, Gummow, Kirby and Hayne JJ) in a joint judgment held that there was no statutory or common law justification for the police to remain on the premises. They said: "… the State's submission that police may enter for 'preventative and investigative purposes' would, by its reference to 'investigative purposes' extend the [common law] power much further than any description of common law power given in the English cases. There is no basis for making that extension." A little later they said: "…in the present matter, by the time police went to the appellant's flat, there was no continuing breach of the peace and nothing in the evidence of what happened thereafter suggested that, but for the police officers not leaving the flat when asked to do so, any further breach of the peace was threatened or expected, let alone imminent. However broadly understood may be the notion of a duty or right to take reasonable steps to make a person who is breaching or threatening to breach the peace refrain from doing so, that duty or right was not engaged in this case. It was not engaged because, by the time police arrived at the appellant's flat there was no continuing or threatened breach of the peace. And no breach of the peace was later committed or threatened before the eruption of the violent struggle that culminated in the appellant's arrest."
Neither Tyszyk nor Kuru provides me with any binding decision as to the extent of the concept of a breach of the peace. I note, however, that Campbell JA declined to decide Tyszyk specifically on the basis that there was no actual or apprehended breach of the peace because R v Howell had not considered Lansbury, Sandbach and Ackers. However, R v Sanbach, ex parte Williams [1935] 2 KB 192 was considered in Percy v DPP [1995] 3 All ER 124 at 132e: "In R v Sandbach, ex p Williams [1935] 2 KB 192 at 196, [1935] All ER Rep 680 at 681 Avory J said: '… I must say I am not prepared to assent to [the] proposition that there can be no binding over of a person to be of good behaviour unless he has done something which tends to a breach of the peace in the sense of something which is calculated to lead to violence, that is, to personal violence. In my view, the phrase "calculated to lead to a breach of the peace" is far more extensive in its meaning …' That seems, with respect, to be conflating the two elements in the 1361 Act or the justices' common law powers, namely the prevention of breaches of the peace and the prevention of conduct which is contrary to a good way of life, whatever that expression may comprehend."
The weight of the case law, in my opinion, both in England and Australia favours the correctness of R v Howell [1982] QB 416; [1981] 3 All ER 383 and the cases which follow and apply it. There must be violence or threatened violence for there to be a breach of the peace to justify arrest. Using offensive language is not an offence of violence. However, using offensive language may lead to threatened violence. In R v Percy, their Lordships said at 130e: "Mr Fitzgerald on behalf of the appellant submitted that a breach of the peace in the context of the 1361 Act and s 115 of the 1980 Act must involve violence or the threat of violence. That violence need not be perpetrated by the defendant; it suffices that his conduct is such that the natural consequence of it is violence from some third party. This follows from Wise v Dunning [1902] 1 KB 167, [1900-3] All ER Rep 727. In that case the appellant was a Protestant lecturer who had held meetings in Liverpool in public places in the course of which he had used gestures and language which were highly insulting to Roman Catholics. There had been disorder at these meetings and such disorder was found to be the natural consequence of the appellant's activities. After citing Beatty v Gillbanks (1882) 9 QBD 308, [1881-5] All ER Rep 559, Lord Alverstone CJ said ([1902] 1 KB 167 at 175-176, [1900-3] All ER Rep 727 at 730): 'I have referred to those cases, not for the purpose of endeavouring to deduce from them any new rule of law, but for the purpose of pointing out that, in a number of cases and before different judges, what I may call the essential condition has been stated, substantially in the same way though in different language, that there must be an act of the defendant, the natural consequence of which, if his act be not unlawful in itself, would be to produce an unlawful act by other persons.' He went on to state that in considering the natural consequence of a man's acts who had used insulting language in the public streets towards persons of a particular religion, the magistrates were bound to take into consideration the fact that there was a large body of those persons in the town. Darling J adopted the same approach and Channell J, in a short concurring judgment, said ([1902] 1 KB 167 at 179-180, [1900-3] All ER Rep 727 at 732-733): 'I am of the same opinion. I agree with the proposition for which counsel for the appellant contended - namely, that the law does not as a rule regard an illegal act as being the natural consequence of a temptation which may be held out to commit it. For instance, a person who exposes his goods outside his shop is often said to tempt people to steal them, but it cannot be said that that is the natural consequence of what he does. Again, the House of Lords has recently held that, where a blank space is left in a cheque which enables a person to increase the amount by adding figures, it is not the natural consequence that somebody should be led to commit forgery by writing figures into the cheque. The proposition is correct and really familiar; but I think the cases with respect to apprehended breaches of the peace shew that the law does regard the infirmity of human temper to the extent of considering that a breach of the peace, although an illegal act, may be the natural consequences of insulting or abusive language or conduct. Possibly this is an exception to the rule which the appellant's counsel pointed out to us; but I think it is quite clearly made out upon the cases which have been cited to us.'" The present is not such a case.
Drinking alcoholic beverages whilst under 18 years of age in a public place is not a crime of violence, albeit that intoxicated youths and young men sometimes behave violently after drinking alcoholic beverages. However, on the evidence in this case the plaintiff was sitting on a seat at a bus stop, awaiting the arrival of Kane Pembroke's sister to pick him and his friends up, to take them home. The plaintiff was not behaving violently or threatening violence. The defendant's written submissions (MFI 15, at [21] to [24]) indulge in stereotypification: the plaintiff was a person in "large numbers of irrational, intoxicated youths who made plain their intention to disregard and disobey police instructions, and to stay in the vicinity of the park and its environs, endangering themselves and others …" There is no evidence that the plaintiff or his friends were offering any threat to any other person. Police were conscious that malicious damage might occur to a shop window but that was only a fear - there is no evidence of any such damage or of any attempt to inflict it. The defendant has not discharged its onus of proving that the arrest of the plaintiff was justified in order to prevent a breach of the peace.
The defendant has not justified the arrest of the plaintiff by Cons Budin. It follows, therefore, that Cons Budin's physical interaction with the plaintiff in taking him into custody amounted to assault and battery upon the plaintiff. It also follows that the plaintiff's being in police custody between 10.37 pm on Wednesday 14 April 2014 and 2.30 am on Thursday 15 April 2014 amounted to false imprisonment.

[27]

Malice

The Statement of Claim, par 19, alleges that the plaintiff was maliciously prosecuted for the three crimes of which he was acquitted. The pleading continues thus: Particulars of malice (i) The prosecution was brought for a purpose other than the proper invocation of the criminal law, namely, attempting to justify the false imprisonment and assault and battery of the plaintiff by Officer Budin and the other officers. (ii) The prosecution of the said charges was brought out of personal animus the officers mentioned herein, in particular Officer Budin, had towards the plaintiff, and (iii) Further particulars may be provided in due course.
In A v New South Wales, the plurality said this: "91. What is clear is that, to constitute malice, the dominant purpose of the prosecutor must be a purpose other than the proper invocation of the criminal law - an "illegitimate or oblique motive". That improper purpose must be the sole or dominant purpose actuating the prosecutor. 92. Purposes held to be capable of constituting malice (other than spite or ill will) have included to punish the defendant and to stop a civil action brought by the accused against the prosecutor. But because there is no limit to the kinds of other purposes that may move one person to prosecute another, malice can be defined only by a negative proposition: a purpose other than a proper purpose. And as with absence of reasonable and probable cause, to attempt to identify exhaustively when the processes of the criminal law may properly be invoked (beyond the general proposition that they should be invoked with reasonable and probable cause) would direct attention away from what it is that the plaintiff has to prove in order to establish malice in an action for malicious prosecution - a purpose other than a proper purpose. 93. Two further observations should be made about the element of malice. First, its proof will often be a matter of inference. But it is proof that is required, not conjecture or suspicion. Secondly, the reference to "purposes other than a proper purpose" might be thought to bring into this realm of discourse principles applied in the law of defamation or in judicial review of administrative action. No doubt some parallels could be drawn with the principles applied in those areas. But drawing those parallels should not be permitted to obscure the distinctive character of the element of malice in this tort. It is an element that focuses upon the dominant purpose of the prosecutor and requires the identification of a purpose other than the proper invocation of the criminal law." Earlier, when discussing reasonable and probable cause, the plurality at [40] pointed out that absence of reasonable and probable cause may, in a given case, be evidence of malice, but, nevertheless there are two separate elements to be established, two separate questions to be decided.
In State of NSW v Abed [2014] NSWCA 419; (2014) 246 A Crim R 549, Gleeson JA (with whom Bathurst CJ and Macfarlan JA agreed) said: "150. Absence of reasonable and probable cause in maintaining a prosecution may, in a given case, be evidence of malice, but as the High Court emphasised in A v New South Wales at [40] there are two separate issues to be decided. The High Court also warned (at [90]) against attempts to reduce the relationship between absence of reasonable and probable cause and malice to an aphorism such as - absence of reasonable cause is evidence of malice, but malice is never evidence of want of reasonable cause. The joint judgment continued (at [90]) by recognising that "proof of particular facts may supply evidence of both elements", but noted that "no universal rule relating proof of the separate elements can or should be stated". 151. In Trobridge v Hardy [1955] HCA 68; 94 CLR 147 Kitto J at 163 referred to the "indirect route" of proving malice. His Honour continued (at 164), in the context of a jury trial: "If they think it more probable than not that the prosecutor lacked the belief in the guilt of the accused, they are justified in taking the next step of concluding that the prosecution was not instituted from a genuine desire to serve the ends of justice and is not to be satisfactorily explained save on the supposition that the prosecutor was actuated by an indirect or improper motive. If so, they may legitimately make a finding of malicious, even though they may not feel able to say precisely what the malicious motive was." 152. However, whilst proof of malice will often be a matter of inference, it bears repeating that "it is proof that is required, not conjecture or suspicion": A v New South Wales at [93]."
In essence, the plaintiff in the Statement of Claim gives two particulars of malice: 1. an attempt to justify unlawful behaviour on the part of Cons Budin, and 2. a personal animus of Cons Budin towards the plaintiff. I am completely unaware of any further particulars being delivered by the plaintiff to the defendant. I am comfortably satisfied on the evidence that Cons Budin's arrest of the plaintiff triggered off the subsequent chain of events that led to the decision of the Children's Court on 5 December 2014. That arrest was precipitated by Cons Budin's reaction to the plaintiff's using offensive language towards him, which insulted or slighted Cons Budin: see [72] above. That was not the proper invocation of the criminal law: the Constable was motivated to punish the plaintiff for this personal insult or slight, probably believing that he could pass what he did off under the colour of his office. I am persuaded on the balance of probabilities that the plaintiff's arrest was dominantly motivated by the animus felt by Cons Budin towards the plaintiff immediately prior to the plaintiff's arrest because of the plaintiff's insulting language directed at the Constable. This element of the tort has been made out.

[28]

Reasonable and probable cause

Paragraph 20 of the Statement of Claim is this: "In prosecuting the plaintiff for the charges referred to in paragraph 13(i), (ii) and (iv) above, Officer Budin and the other officers acted without reasonable and probable cause. Particulars of absence of reasonable and probable cause (i) Officer Budin did not honestly believe there was sufficient material on which to commence and maintain proceedings for the offence under s 58 of the Crimes Act 1900 (NSW) because he knew that he was not in the execution of his duty at the relevant time; (ii) Alternatively, if it is established that Officer Budin honestly believed that there was sufficient material on which to commence and maintain proceedings for the alleged offences under s 58 of the Crimes Act, Officer Budin did not have reasonable grounds for holding such a belief because he knew that he was not in the execution of his duty. (iii) Officer Budin did not honestly believe there was sufficient material on which to commence and maintain proceedings for the alleged offence under s 9(1) of the Summary Offences Act 1988 (NSW) because he knew that he had failed to provide the plaintiff with a lawful direction pursuant to s 198 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW); (iv) Alternatively, in the event that it is established that Officer Budin honestly believed there was sufficient material on which to commence and maintain proceedings for an offence under s 9(1) of the Summary Offences Act, Officer Budin did not have reasonable grounds to hold such a belief because he knew that he had failed to provide the plaintiff with a lawful direction pursuant to s 198 of the Law Enforcement (Powers and Responsibilities) Act; and (v) Further particulars may be provided in due course." Again, I am completely unaware of any further particulars being delivered by the plaintiff to the defendant.
In A v New South Wales, the plurality said: "Absence of reasonable and probable cause 60. It is important to recognise that, in an action for malicious prosecution, the plaintiff must establish a negative (the absence of reasonable and probable cause). The forensic difficulty of proving a negative is well known. At least some of the questions presented in this appeal arise because there is an inevitable tendency to translate the negative question - whether the defendant prosecutor acted without reasonable and probable cause - into the different question - what will constitute reasonable and probable cause to institute criminal proceedings. The logical relationship between the two forms of question tends to obscure first, the importance of the burden of proof, and secondly, the variety of factual and forensic circumstances in which the questions may arise. 61. Because the absence of reasonable and probable cause is understood as containing both subjective and objective elements, one of the chief forensic difficulties confronting a plaintiff is how to establish what the prosecutor (the defendant in the civil proceeding) had in his or her mind when instituting or maintaining the prosecution. Absent some admission by the defendant, the plaintiff must make the case by inference and, if the defendant gives evidence, by cross-examination. The shape of the forensic contest in the particular case will inevitably dictate the way in which the plaintiff puts the argument that absence of reasonable and probable cause is established. In particular, what, if anything, the defendant prosecutor says in court, or has said out of court, about why he or she launched the prosecution, will loom very large in the plaintiff's contentions about absence of reasonable and probable cause. It must be recognised that much of what is said in the decided cases about want of reasonable and probable cause is moulded by the nature of the forensic contest in the particular case. 62. Especially in the nineteenth century cases, the focus of the forensic contest was upon what the prosecutor knew or believed when instituting or maintaining a prosecution. It was inevitable that this should be so, if only because much more often than not the prosecutor brought or continued the prosecution on the basis of what was alleged to be personal knowledge of the matters giving rise to the charge. It was, therefore, only comparatively late in the development of the law relating to malicious prosecution that consideration was given to the launching of criminal proceedings because of what had been reported to the prosecutor. In Lister v Perryman, the House of Lords decided, albeit in the context of an action for wrongful imprisonment, that absence of reasonable and probable cause was not necessarily established by showing that the prosecutor acted "upon the information of a trustworthy informant [but had] not made inquiry of some one else who could have repeated and confirmed what was told him". But until well into the twentieth century, most cases of malicious prosecution arose in circumstances where the prosecutor was to be supposed to have had personal knowledge of at least the central facts upon which a criminal charge had been based." Their Honours then considered whether there were two different tests and continued: "What is absence of reasonable and probable cause? 70. There are several questions bound up in the proposition that absence of reasonable and probable cause requires an examination of what the prosecution "made" or "should have made" of the material available to the prosecutor when he or she decided to prosecute, or to maintain an existing prosecution. As has already been noted, two kinds of inquiry are postulated: one subjective (what the prosecutor made of the available material) and the other objective (what the prosecutor should have made of that material). Does proof of the absence of reasonable and probable cause require proof of the absence of a state of persuasion (a "belief") in the mind of the prosecutor? What is the subject-matter of the state of persuasion that is to be considered? Is it a persuasion about the likelihood of a particular outcome of the prosecution (the conviction of the person prosecuted)? Is it a persuasion about what the material considered by the prosecutor reveals ("guilt" or "probable guilt" of the person prosecuted)? Or is it a persuasion about that material's sufficiency to warrant setting the processes of the criminal law in motion? What, if any, weight may be given by the prosecutor to the existence of various checks and balances, like the interposition of committal proceedings and the assignment of particular functions to the Director of Public Prosecutions, that form an integral part of the system of criminal justice? 71. Those questions should be answered as follows. If the plaintiff alleges that the defendant prosecutor did not have the requisite subjective state of mind when instituting or maintaining the prosecution, that is an allegation about the defendant prosecutor's state of persuasion. The subject matter of the relevant state of persuasion in the mind of the prosecutor is the sufficiency of the material then before the prosecutor to warrant setting the processes of the criminal law in motion. If the facts of the particular case are such that the prosecutor may be supposed to know where the truth lies (as was certainly the case in Sharp v Biggs) the relevant state of persuasion will necessarily entail a conclusion (a belief of the prosecutor) about guilt. If, however, the plaintiff alleges that the prosecutor knew or believed some fact that was inconsistent with guilt (as the plaintiff alleged in Mitchell v John Heine) the absence of reasonable and probable cause could also be described (in that kind of case) as the absence of a belief in the guilt of the plaintiff." Their Honours then turned their attention to cases in which a prosecutor was acting on the basis, not of personal knowledge, but on the statements of third parties. They then said: "77. There are three critical points. First, it is the negative proposition that must be established: more probably than not the defendant prosecutor acted without reasonable and probable cause. Secondly, that proposition may be established in either or both of two ways: the defendant prosecutor did not "honestly believe" the case that was instituted or maintained, or the defendant prosecutor had no sufficient basis for such an honest belief. The third point is that the critical question presented by this element of the tort is: what does the plaintiff demonstrate about what the defendant prosecutor made of the material that he or she had available when deciding whether to prosecute or maintain the prosecution? That is, when the plaintiff asserts that the defendant acted without reasonable and probable cause, what exactly is the content of that assertion? 78. As noted earlier in these reasons, the jury questions formulated by Cave J in Abrath v North Eastern Railway Co asked whether the prosecutor "honestly believe[d] the case ... laid before the magistrates". But the content of the question - "did the prosecutor believe the case which [he or she] laid before the magistrates?" - is not altered if the word "honestly" is added before "believe". The word "honestly" may therefore be thought to have no substantive function to perform. Nonetheless, the qualitative element of the contention that the defendant prosecutor acted without reasonable and probable cause may often be captured best by the word "honesty". In most cases, honesty, or more accurately, the allegation of lack of honesty, will require consideration of what the prosecutor knew, believed, or concluded, about some aspect of the material. If the prosecutor's knowledge or belief must be considered, honesty will add nothing to the inquiry. But it will not always be necessary or appropriate to look only at what the prosecutor knew or believed. Not least will that be so where the prosecutor's knowledge or belief is confined to knowledge or belief of what others have said or done. 79. In Mitchell v John Heine, did the prosecutor know, or believe, that the accused person had been given the property which the accused was or was to be charged with stealing? If "yes", the prosecutor would not have acted honestly in launching the prosecution. And it would also be right to describe the prosecutor as not believing the case. The prosecution would have been instituted without reasonable and probable cause. In Sharp v Biggs, did the prosecutor know, or believe, that the evidence which the accused had given about the prosecutor's actions was right? Again, if "yes", the prosecutor did not act honestly, the prosecutor did not believe the case, and there was no reasonable and probable cause to institute a prosecution for perjury. In both cases the plaintiff would show, in the words of the jury question, that the prosecutor did not "honestly believe" the case that was to be laid before a magistrate. If, however, the answer is "no", it may or may not be apt to describe the prosecutor as believing the accused to be guilty. The aptness of the description would turn on the nature of the material at issue. … 81. The expression "proper case for prosecution" is not susceptible of exhaustive definition without obscuring the importance of the burden of proving the absence of reasonable and probable cause, and the variety of factual and forensic circumstances in which the questions may arise. For the reasons given earlier, it will require examination of the prosecutor's state of persuasion about the material considered by the prosecutor. That should not be done by treating the five conditions stated by Jordan CJ in Mitchell v John Heine as a complete and exhaustive catalogue of what will constitute reasonable and probable cause. First, to focus upon what is reasonable and probable cause distracts attention from what it is that the plaintiff must establish - the absence of reasonable and probable cause. And secondly, because those conditions are framed in terms of belief about probable guilt, they are conditions that, for the reasons already given, do not sufficiently encompass cases where the prosecutor acts upon information provided by others."
The next section of the plurality's judgment ([82] to [87]) deals with the objective aspect of the element of the absence of reasonable and probable cause. What is required to be shown is an absence of sufficient evidence to establish the charges made, viewed objectively. As was pointed out at [2] of the plurality's judgment, in a jury trial this is a question for a judge, although it may be necessary for the judge to obtain the decision of the jury upon any disputed matter of fact relevant to the issue.
The "Details of Offence" in the CAN for Sequence 4 are these: "Summary Offences Act 1988, Section 9(1) Continue intoxicated etc after move on direction at 10.40 pm on 16/04/2014 at Glenbrook. did fail to comply with move on direction, the accused remained in the vicinity and refused to leave." Cons Budin agreed that in order to charge the plaintiff with this offence he needed to have given to the plaintiff a "move on" direction pursuant to LEPRA section 198(1). He also agreed that before he could issue a move on direction under that provision, he needed to be satisfied that the plaintiff was an intoxicated person (T306.24) and went on to agree that the first time he formed an opinion that the plaintiff was intoxicated was when he was placing the plaintiff, after the arrest, in the rear of BL 16 (see T306.38 to T307.19). He also admitted that he had failed to state in his move on direction a period within which the plaintiff (and others) had to stay out of the area (see T309.30 to T311.17). As to the laying of the charge, this evidence was given: "Q. Senior Constable, before issuing the court attendance notice to Mr Gibb Smith for the offence under section 9(1) of the Summary Offences Act, did you have a look at the terms of that section? A. No. Q. Isn't that something which you would agree is important to do before using the court attendance notice? A. Yes. Q. Because if you did that, you would be able to satisfy yourself, whether that was the proper charge or not, correct? A. Yes. Q. And I suggest that if you did that in this case before issuing the court attendance notice, that you should have appreciated that the move on direction was invalid because you had not specified a time period less than six hours. Do you agree or disagree? A. Agree. HIS HONOUR Q. You're obviously making that concession with the benefit of hindsight, Senior Constable. A. Yes, your Honour. Q. Now that the terms of section 9, subsection 1 of the Summary Offences Act has been drawn to your attention, you realise that you shouldn't have laid that charge. A. Yes, your Honour. Q. What I want to know is, did you know that when you laid the charge? A. No, your Honour. Q. But you could've looked up and seen what was required, but you didn't do it. A. Yes, your Honour. CANCERI Q. Did you bother asking anybody else? A. I think we had a discussion between us and we all agreed on the same thing. Q. Constable Doyle, as he then was, was senior to you. Is that right? A. No, other way around. Q. You were the senior of the three. A. Not by much. Q. Did you ask Leading Senior Constable Adams? A. No, your Honour."
The formal parts of the Police Brief of Evidence are exhibit 4. All the substantive parts of the brief are otherwise in evidence. The contents of the brief are: Number Item 1 Brief cover sheet 2 Contents of Brief 3 Local Court listing 4 Witness list and summary of evidence 5 Court Attendance Notice Juvenile copy 6 Court Attendance Notice Parent/Guardian Copy 7 Court Attendance Notice Record of Service 8 Court Attendance Notice Prosecutor Copy 9 Court Attendance Notice Court Copy 10 Fact sheet 11 Statement of Constable BUDIN 12 Statement of Constable DOYLE 13 Statement of Constable MARACIC 14 Statement of Constable FULTON 15 Statement of Constable MAMMEN 16 Custody records of the Young person whilst in custody 17 Unavailable dates of officers involved

[29]

There is no evidence in any of the statements of any of Cons Budin, Doyle and Maracic giving any move on direction to any intoxicated person that contained a time limit before which the person could not return to e.g. Glenbrook Park. The prosecutor was Cons Budin. He knew that he was not aware that the plaintiff was intoxicated until after the arrest. He knew that his move on direction was invalid or ought, objectively, to have known that. There was no other evidence to fill this evidentiary hole. There, accordingly, was no reasonable and probable cause for prosecuting the plaintiff on the Sequence 4 charge.

Sequence 2 (resist Cons Budin executing his duty) depended on the validity of his arrest of the plaintiff. If the arrest be unlawful (as I have found) then the plaintiff was entitled to resist Cons Budin's attempt to take him into custody. Similarly, the Sequence 1 charge (assault Cons Budin in the execution of his duty) depended on the validity of the arrest. The plaintiff was charged under s 58 of the Crimes Act 1900. That offence carries a maximum penalty of 5 years imprisonment. The relevant parts of section 58 are: "Whosoever … assaults any officer whilst in the execution of his or her duty, such officer being a constable … shall be liable to imprisonment for 5 years." Two essential elements of the charge are (1) that the complainant was a constable of police and (2) who was executing his duty at the time of the assault.
Cons Budin ought to have known that he ought not to have arrested the plaintiff. In chief, on 6 April 2017, Cons Budin gave this evidence: "Q. You give evidence in your statement with respect to your reaction to these words at paragraph 10 ["we can sit here cunt we're 18 fuck off"] where you say that you placed the young gentleman under arrest for offensive language. Do you see that? A. In paragraph 10? Q. Yes. A. Yes. Q. Can you tell his Honour when you were met with what you've attributed to the plaintiff at paragraph 9 what was going through your mind when you took the decision to place Mr Gibb-Smith under arrest at this stage? A. So basically I just wanted to get him out of the immediate area, reduce any further offences occurring. Q. Why did you want to get him out of the immediate area? A. Just so no one else got hyped up as well, reduce further incidents happening. Q. Why did you hold a concern that other people would get hyped up and there would be other incidents occurring? A. Due to the fact there were a number of people drinking. Normally you arrest one person, other people get involved. Q. Why did you choose to arrest Mr Gibb-Smith if there were a number of other people there? A. Because he was the one was continuing the offences. Q. What offences are you referring to? A. Offensive language, failing to move on direction. Q. And why did you take the decision to arrest him as opposed to some other police discretion you had at your disposal? A. Well, at that time that was all my options. He was still committing further offences. Q. Pardon me? I'm sorry. At that time - and I missed what you said? A. He was still committing further offences. Q. Yes, so what other options did you understand you had available to you at that time? A. None. Q. Why not? Why did you understand not to have any other option? A. Well, couldn't use court attendance notices, couldn't use tickets at that time. Q. Well, let's stop. Why couldn't you use a court attendance notice? A. Didn't know who he was at the time. Q. Did you make any inquiries as to his identification? A. Not at that stage, no. Q. Why not? A. Didn't get the chance to. Q. When you say you didn't get the chance to, what do you mean? A. I placed him under arrest and then the incident went forward." In cross-examination on 7 August 2017, Cons Budin said: "Q. Now, in your evidence yesterday at page 261 this question was put to you at line 8, "Why did you want to get him out of the immediate area?" Answer, "Just so no one else got hyped up as well, reduce further incidents happening." And then the next question, "Why did you hold a concern that other people would get hyped up and there would be other incidents occurring?" And your answer, "Due to the fact there were a number of people drinking. Normally, you arrest one person, other people get involved." So, from your last answer, I take it that arresting someone normally escalates the situation? A. Sometimes, yes. Q. Would you agree that it's preferable not to arrest so as not to escalate a situation? A. In which case scenario? Q. Well, in the case of, say, someone using offensive language. Would you agree that the preferable option is not to arrest? A. No. Q. You've said "No" to that? A. Not to arrest. Q. Yes. A. Can you ask the question again so I can understand it, please? Q. In the case of someone using offensive language, would you agree that it's better not to arrest? NOLAN: I object. This is not simply a case of someone using offensive language. The hypothetical is of no assistance and no relevance. HIS HONOUR: Yes. It is so general. I mean, in the case of using - I mean, is this one person in the middle of the desert using bad language, or is this one person in the middle of a crowd? Is this one person at a sports arena or in church? I mean, it's just-- CANCERI: Yes, I understand. Q. In the circumstances of this case, you would agree that, and this is your evidence, that Mr Gibb-Smith says to you, "We can sit here, cunt. We're 18. Fuck off." And then immediately after that you arrest him, correct? A. Yeah. Q. You have already agreed that you didn't give him any warning to stop using the foul language or tell him to shut up. Correct? A. Correct. Q. And I'm suggesting to you that in those circumstances, where he merely says, "We can sit here, cunt. We're 18. Fuck off", you didn't have to arrest. Correct? A. No. Q. Because in your evidence yesterday arresting someone sometimes escalates a situation in that other people get involved. A. Are you telling me that or-- Q. Yes. A. Okay. Q. That's what you said yesterday. "Other people get involved and get quite hyped up as well", when someone else is arrested. Do you agree that was your evidence yesterday? A. Yeah. I said that if that's what's on the transcript." It is clear that the plaintiff was not committing any "further offence" of using offensive language because he was (1) not given any chance to do so by Cons Budin who then took the physical steps of arresting the plaintiff and (2) had not been given any direction or advice by Cons Budin to desist from using offensive language. Cons Budin frankly conceded in cross-examination that he did not have to arrest the plaintiff and, consistent with other admissions made by the Constable, he ought not to have arrested the plaintiff. Cons Budin also agreed that there was an alternative way of dealing with the plaintiff, by seeking to establish his identity, by recording details of that identity and providing him with a certain time within which to present himself to a police station with a support person so that a caution under the Young Offenders Act 1997 could be administered to him.
When Cons Budin "took hold of the Young Person by his right elbow area" (exhibit 18, [10]) he was not executing his duty. What occurred thereafter was not in the execution of Cons Budin's duty. The Constable know or, at least, ought to have known that. The plaintiff has established on the balance of probability that there was no reasonable or probable cause for either of the charges in Sequences 1 and 2. The plaintiff has accordingly made out the tort of malicious prosecution pleaded by him.

[30]

Specific Defences

Paragraph 12A (k) to (s) of the Defence is this: "12A. In further answer to the matters pleaded at paragraphs 3 - 14 of the Statement of Claim the Defendant says as follows: … (k) Budin then made a lawful announcement of his intention to exercise the power to arrest the plaintiff. Particulars (i) Budin said words to the effect: "My name's Constable Budin. I'm from the Police Transport Command. You're under arrest for offensive language and failing to comply with a move on direction. Get up." (l) The plaintiff then stood up with a skateboard in his hand and thrust it at Budin. (m) Budin took hold of the skateboard in self-defence and pulled it towards him. (n) The plaintiff held on to the skateboard and came towards Budin. (o) Budin turned him around and attempted to restrain the plaintiff with the intention of protecting himself and those in close proximity. (p) Budin then directed the plaintiff to release the skateboard. (q) The plaintiff did not let go of the skateboard. (r) With the intention of preventing injury to himself and those in close proximity, Budin performed a police approved leg sweep. (s) The plaintiff forcibly resisted Budin as he attempted to place the plaintiff's arms behind his back." Paragraphs 19A, 19B and 19C of the same pleading are: "19A. In respect of the matters pleaded at paragraphs 12A (k) to (s) herein, Budin was acting in self-defence. Partciulars (i) Part 7 (Self Defence) of the Civil Liability Act 2002 (NSW) and more particularly sections 51-53. (ii) The conduct of the plaintiff to which Budin and Maracic were responding was unlawful. (iii) Budin and Maracic each believed on reasonable grounds that what he did was necessary for the protection of himself and others around him. (iv) Budin's and Maracic's conduct was a reasonable response in the circumstances as each perceived them. 19B. Further, if it the actions of Budin and Maracic were not a reasonable response in the circumstances, which is denied, the defendant relies upon section 53 of the CLA as each perceived them to be, and says that any damages awarded in favour of the plaintiff ought to be reduced. In addition to the defence raised pursuant to sections 51 to 53 of the CLA, the defendant also pleased self-defence at common law to the plaintiff's claim, for reasons hereinbefore pleaded. 19C. Further and in the alternative, the defendant pleads the doctrine of necessity that, in order to protect himself, Budin was obliged to take the action which he did in attempting to stop the plaintiff from hitting him with his skateboard."
Cons Budin's physical interaction with the plaintiff was not in self-defence by Cons Budin. The plaintiff was seeking to protect himself from Cons Budin's assault on the plaintiff. What Cons Budin did, and the assistance rendered to him by Cons Maracic, were assaults upon the plaintiff. No adverse finding is made against Cons Maracic as his state of mind appears to have been to assist his colleague Cons Budin and I doubt that Cons Maracic thought to question the legality of Cons Budin's arrest of the plaintiff. Similarly, necessity does not justify Cons Budin's assault of the plaintiff.
Paragraph 19D of the Defence is this: "19D. In further answer to the relief sought in the Statement of Claim, he the defendant says that the plaintiff is not entitled to damages for any injury or damage alleged because the said injury or damage occurred at the time of, or following conduct of the plaintiff that, on the balance of probabilities, constituted an assault against a police officer, and that conduct contributed materially to any injury or damage as alleged. Particulars (a) Section 54 of the Civil Liability Act 2002 (NSW) and s 60 of the Crimes Act 1900 (NSW)." CLA s 54 is in these terms: "54 Criminals not to be awarded damages (1) A court is not to award damages in respect of liability to which this Part applies if the court is satisfied that: (a) the death of, or the injury or damage to, the person that is the subject of the proceedings occurred at the time of, or following, conduct of that person that, on the balance of probabilities, constitutes a serious offence, and (b) that conduct contributed materially to the death, injury or damage or to the risk of death, injury or damage. (2) This section does not apply to an award of damages against a defendant if the conduct of the defendant that caused the death, injury or damage concerned constitutes an offence (whether or not a serious offence). Note. Sections 52 and 53 can apply to prevent or limit recovery of damages even though the defendant's conduct constitutes an offence. (3) A serious offence is an offence punishable by imprisonment for 6 months or more. (4) This section does not affect the operation of the Felons (Civil Proceedings) Act 1981. (5) This section operates whether or not a person whose conduct is alleged to constitute an offence has been, will be or is capable of being proceeded against or convicted of any offence concerned." The only offence which I am satisfied the plaintiff committed is that found by the Children's Court, using offensive language. The maximum penalty for that offence is a fine of $660 or a community service order. I am not therefore satisfied that the plaintiff committed a "serious offence", i.e and offence punishable by a term of imprisonment of 6 months or more. This defence also fails.
Paragraph 26A of the Defence is: "26A. In further answer to the plaintiff's claim for aggravated damages, the defendant says that the plaintiff is not entitled to an award of aggravated or exemplary damages in respect of those damages. Particulars (i) Section 21 of the Civil Liability Act 2002 (NSW)" As I pointed out at [3] above, the plaintiff made no claim for personal injury damages, thereby obviating this defence, but potentially limiting his compensatory damages.

[31]

Intoxication

Paragraph 26B of the Defence is this: "26B. In further answer to the claim for damages, as alleged in the Statement of Claim, the defendant says that: (a) at the time of the plaintiff's alleged injury and damage, he was under the influence of alcohol, such that he was intoxicated to the extent that his capacity to exercise reasonable care and skill was impaired; Particulars (i) The plaintiff had ingested alcohol that evening. He was slurring his speech, was unsteady on his feet, was irrational in argument with police officers, who observed him that evening. His eyes were red and glassy. He displayed inappropriate force, emotional display, and violence in his interactions with police. (b) the plaintiff's alleged injury or damage was unlikely to have occurred were he not so intoxicated; (c) in the premises the defendant relies on section 50 of the Civil Liability Act 2002 (NSW) to say that the plaintiff is not entitled to the damages he seeks."
CLA section 50 provides this: "50 No recovery where person intoxicated (1) This section applies when it is established that the person whose death, injury or damage is the subject of proceedings for the recovery of damages was at the time of the act or omission that caused the death, injury or damage intoxicated to the extent that the person's capacity to exercise reasonable care and skill was impaired. (2) A court is not to award damages in respect of liability to which this Part applies unless satisfied that the death, injury or damage to property (or some other injury or damage to property) is likely to have occurred even if the person had not been intoxicated. (3) If the court is satisfied that the death, injury or damage to property (or some other injury or damage to property) is likely to have occurred even if the person had not been intoxicated, it is to be presumed that the person was contributorily negligent unless the court is satisfied that the person's intoxication did not contribute in any way to the cause of the death, injury or damage. (4) When there is a presumption of contributory negligence, the court must assess damages on the basis that the damages to which the person would be entitled in the absence of contributory negligence are to be reduced on account of contributory negligence by 25% or a greater percentage determined by the court to be appropriate in the circumstances of the case. (5) This section does not apply in a case where the court is satisfied that the intoxication was not self-induced." Section 50 is in Part 6 of CLA - sections 47 to 50. Section 47 provides: "47 Part applies to civil liability for death, injury or property damage (1) This Part applies to civil liability of any kind for personal injury damages (as defined in Part 2) or damage to property. (2) This Part does not apply to civil liability that is excluded from the operation of this Part by section 3B." Part 2 comprises sections 9 to 26. Section 11 provides definitions: "11 Definitions In this Part: injury means personal injury and includes the following: (a) pre-natal injury, (b) impairment of a person's physical or mental condition, (c) disease. personal injury damages means damages that relate to the death of or injury to a person." The plaintiff is not claiming "personal injury damages", meaning damages for personal injury (i.e. injury to any part of his body), for impairment of his physical or mental condition or for any disease. Impairment of his mental condition might include damages for anxiety, depression, post-traumatic stress disorder or pure mental harm. In that regard I must be careful in assessing the plaintiff's compensatory damages.
Section 47(2) provides that Part 6 does not apply to a civil liability that is excluded from the operation of that Part by section 3B. That section is lengthy. The relevant parts of it appear to me to be these: "3B Civil liability excluded from Act (1) The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows: (a) civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person - the whole Act except: (i) section 15B and section 18 (1) (in its application to damages for any loss of the kind referred to in section 18 (1) (c)), and (ii) Part 7 (Self-defence and recovery by criminals) in respect of civil liability in respect of an intentional act that is done with intent to cause injury or death, and (iii) Part 2A (Special provisions for offenders in custody), …" This section refers to not merely a "civil liability in respect of an intentional act" but to such a civil liability "that is done … with intent to cause injury." Thus, the mere fact that the plaintiff has proved intentional torts, assault, battery and false imprisonment, is not enough to fall within this provision. He must also prove that it is done with the intention to cause, relevantly, injury. When Cons Budin grasped the plaintiff's elbow, he did so deliberately. What was his intention? To arrest the plaintiff. What would he do to effect that result? Probably whatever he needed to do to effect his purpose. Would that include manhandling the plaintiff? Yes. Could that involve injuring him? Yes. Is recklessness sufficient? In Hamilton v State of New South Wales (No 13) [2016] NSWSC 1311, in the context of a claim for damages following upon an unlawful arrest, Campbell J held that the deliberate infliction of physical force intended to cause pain and submission to the will of a police officer was an act done "with intent to cause injury" for the purposes of s 3B(1)(a). Clearly in this case, Cons Budin's actions were calculated to make the plaintiff conform to his will, to submit to him. He was at least reckless as to the infliction of pain or greater hurt. In those circumstances I hold that the plaintiff falls within the exclusion provided by s 3B(1)(a).
Furthermore, the form of s 47 needs to be considered. If a case does not fall within subsection (1), one does not need to establish that it is excluded under section 3B. Only if the case falls within subsection (1) does one need to consider whether it be excluded under subsection (2). In my view, section 50 does not apply to the present case.
If I be wrong in so finding, I need refer back to my discussion of the plaintiff's sobriety between [65] and [69] above. At [68] I held that the plaintiff was, to use the words of LSC Adams, "moderately intoxicated". CLA s 48 provides a definition of "intoxication": "48 Definition of "intoxication" A reference in this Part to a person being intoxicated is a reference to a person being under the influence of alcohol or a drug (whether or not taken for a medicinal purpose and whether or not lawfully taken)." I accept that the plaintiff was under the influence of alcohol at the time Cons Budin purported to arrest him and for some time thereafter. Was he intoxicated to the extent that his capacity to exercise reasonable care and skill were impaired? One must ask: reasonable care and skill for what? Fortunately, this question has been addressed by the Court of Appeal in Amanda's On The Edge Pty Ltd v Dries [2011] NSWCA 358. The plaintiff in that case had attended a wedding reception of the defendant's restaurant in the Hunter Valley. By 12.30 am only about six or eight persons remained in the area of the marquee erected on the lawn of the restaurant to accommodate the reception. Those included the plaintiff and his partner, the bride and groom, and two other guests. At [5] Allsop P (with whom Beazley and Giles JJA agreed) recited these facts: "At the end of the evening, Mr Dries and his partner Ms Amy Tunbridge had headed off from the marquee in a northerly direction, that would have taken them across the lawn in front of the restaurant to where their car was parked, to the north of the restaurant. While they were walking in that direction, they were called by friends who were standing approximately at the lamp post at the top of the driveway to the south of the restaurant building, at about the point where the road heads west. Mr Dries and Ms Tunbridge apparently turned and retraced their steps in a southerly direction, to a point roughly adjacent to the southern part of the restaurant building. At this point, hearing the voices of those at the top of the drive, Mr Dries proceeded to the right (to the west) in that general direction. This took him into a garden bed which he crossed and through some shrubs and bushes. On the other side of the bushes, some feet further, was the concrete wall and a drop from where he fell some six feet." The plaintiff conceded that he had drunk five to six beers and one to two bourbons and cokes during six and a half hours. He was holding an unopened stubby of beer at the time he fell from the top of the wall. The defence pleaded under s 50 was unsuccessful. At [36] the President said: "The requirement of s 50(1) was not established. The "extent" of the intoxication relevant for such a finding will depend on the circumstances and the subject or subjects in respect of which the reasonable care and skill may be impaired. Operating machinery, driving a car or flying a plane may be tasks where very little alcohol would be required for the person's capacity to exercise skill and care to be impaired (adequately satisfied by six beers and two bourbons). Here, the care and skill was walking over open ground to get to a destination. There was no reason for him, in the dark, to suspect such a danger as befell him."
In the present case, the plaintiff was sitting and a little later standing at a bus stop awaiting the arrival of a motor vehicle driven by Kane Pembroke's sister who was to drive him home. Even moderately intoxicated, he could sit, stand leaning against a wall, walk a few paces to the kerb, enter a motor car, sit and be driven home. The argument can be raised that the plaintiff's intoxication gave him the "Dutch courage" to speak to Cons Budin in the way he did this evening which led to the Constable's reaction: intoxication, disinhibition, poor judgment. Unfortunately, however, there are some sections of our community which have an animus against authority figures, in particular, the police. Some young people fall into such categories, viewing the police as "wowsers" or "party-poopers", although their terminology might be otherwise. As far as this plaintiff is concerned, one must have regard to how he addressed the police in January 2014, as discussed at [7] above. There was no suggestion that the plaintiff was inebriated at that time. In my view, the requirements of s 50(1) have not been established. Furthermore, if it were, it does not justify Cons Budin's overreaction to the plaintiff's use of offensive language, his immediate decision to arrest a person he believed to be underage. At that time, Cons Budin had not formed the view that the plaintiff was intoxicated, so the events would have occurred even if the plaintiff had not been intoxicated. In other words, section 50(2) was engaged, as was subsection (3). In any event, contributory negligence is not a defence to an intentional tort.

[32]

(a) Assault and Battery

The plaintiff claims: compensatory damages: $50,000 aggravated compensatory damages: part of $20,000 (which sum is claimed for these torts and false imprisonment) exemplary damages: part of $25,000 (which sum is claimed for these torts and false imprisonment) See Plaintiff's Schedule of Damages, part of MFI 13.
These torts are actionable per se, without proof of actual damage, "it is the 'mere trespass' which is the harm": Battiato v Lagana [1992] 2 Qd R 234. The plaintiff is able to recover damages for insult, indignity, disgrace or humiliation if the torts were committed in circumstances that were humiliating or insulting. Compensatory damages are also available for the injured feelings of the plaintiff. In the Schedule of Damages, I am referred to the particulars of loss and damage regarding these torts as pleaded in par 17 of the Statement of Claim. However, particulars (iii) to (ix) are allegations of personal injury e.g. pain and discomfort, a chipped tooth, bruising and abrasions, but no claim for personal injury was advanced at the hearing. It is clear, however, that Cons Budin took hold of the plaintiff, swung him around, swept his legs from underneath him causing the plaintiff, and Cons Budin, to fall onto the footpath where the plaintiff was turned to lie on his stomach and thus, according to the evidence of Cons Budin and Maracic, despite the plaintiff's resistance, his arms were placed behind his back and he was handcuffed. The plaintiff was then assisted to his feet, frisked searched and taken to BL 16 into which he was placed, despite his resistance. At the time the plaintiff was 17 years and 8 months old, to use the language of the civil law, "a minor" or, to use the language of the criminal law, "a child" or "young person". He was petit. He was being manhandled by a mature man, a constable of police. This occurred in a public place, but the only persons nearby were his friends and police officers. His friends were Kane Pembroke, Lexie Baldock and Zachary Baldock. Zachary Baldock was also arrested and conveyed with the plaintiff in BL 16 to Springwood Police Station. Kane Pembroke decamped but later went to Springwood Police Station to check on the welfare of his friends but was then himself arrested. The persons most likely to have observed these indignities being experienced by the plaintiff was Ms Lexie Baldock and police officers. This was not, e.g., an arrest gone wrong outside a person's house with all his neighbours standing by, watching. This was, however, a new and unexpected experience for the plaintiff, the antithesis of a pleasant experience. The plaintiff was asked in chief how he felt at the time he was forced into BL 16. He said, "Humiliated, embarrassed, scared" (T23.45). I allow $15,000 for compensatory damages.
In Lamb v Cotogno (1987) 164 CLR 1 at 8, the Court (Mason CJ, Brennan, Deane, Dawson and Gaudron JJ) said: "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." In New South Wales v Ibbett [2006] HCA 57; (2006) 229 CLR 638, the Court (Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJ) said at [31]: "Aggravated damages are a form of general damages given by way of compensation for injury to the plaintiff which may be intangible." See also State of New South Wales v Zreika [2012] NSWCA 37 at [60] per Sackville AJA (with whom Macfarlan and Whealy JJA agreed). I have allowed for injury to the plaintiff's feelings and other intangible losses in the award I have already made. There is no call for aggravated damages for this head, in this case. Traditionally, aggravated compensatory damages were awarded where the compensatory damages were for personal injury.
In Lamb v Cotogno (supra), the judgment continued: "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 a proof of the detestation of the jury to the action itself': Wilkes v Wood …, per Pratt LCJ." In New South Wales v Ibbett (supra) the Court said of exemplary damages: "33. In Uren v John Fairfax & Sons Pty Ltd, Taylor J, after observing that aggravated damages fix upon the circumstances and manner of the wrongdoing of the defendant, contrasted the function of exemplary damages as punishment and deterrent of the wrongdoer. His Honour added that: "in many cases, the same set of circumstances might well justify either an award of exemplary or aggravated damages". Subsequently, in Lamb v Cotogno, in the joint reasons of five members of the Court, the conceptual distinction was drawn between the compensatory nature of aggravated damages and the punitive and deterrent nature of exemplary damages. Their Honours added that in some cases it might be difficult to differentiate between aggravated damages and exemplary damages. Gleeson CJ, McHugh, Gummow and Hayne JJ spoke in like terms in Gray v Motor Accident Commission. 34. In the present case, awards were made under both heads. However, Spigelman CJ was alive to the conceptual distinctions involved, as appears in the following passage: "In this regard it is relevant to note that the matters to which I have referred as justifying an award of exemplary damages are also pertinent, as is often the case, to an award of aggravated damages. The difference is that in the case of aggravated damages the assessment is made from the point of view of the Plaintiff and in the case of exemplary damages the focus is on the conduct of the Defendant. Nevertheless, it is necessary, as I have noted above, to determine both heads of compensatory damages before deciding whether or not the quantum is such that a further award is necessary to serve the objectives of punishment or deterrence or, if it be a separate purpose, condemnation."" In State of New South Wales v Zreika (supra) Sackville AJA said: "61. Exemplary damages go beyond compensation and are awarded as a punishment to the guilty, to deter similar conduct in the future and to reflect "detestation" for the action: Lamb v Cotogno [1987] HCA 47; 164 CLR 1, at 8. Exemplary damages are awarded rarely and not every finding of fault warrants an award: Lamb v Cotogno, at 6 [12]. Nonetheless, such damages can be awarded in a wide variety of circumstances. Generally speaking, what is required for an award is "conscious wrongdoing in contumelious disregard of another's rights": Gray v MAC, at 7 [14]. 62. Exemplary damages may be awarded against the State in respect of the conduct of police officers for whose torts the State is responsible: NSW v Ibbett; NSW v Landini, at [114]. The assessment of exemplary damages in a case of conscious and contumelious disregard of the plaintiff's rights by the police: "should indicate ... that the conduct of the [police] was reprehensible, [and] mark the court's disapproval of it. The amount should also be such as to bring home to those officials of the State who are responsible for the overseeing of the police force that police officers must be trained and disciplined so that abuses ... do not happen." Ibbett, at 653 [51], citing Adams v Kennedy (2000) 49 NSWLR 78, at 87, per Priestley JA. 63. In a frequently cited passage, Brennan J in XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd [1985] HCA 12; 155 CLR 448, at 471, observed that the considerations that enter into the assessment of compensatory damages are quite different from those that govern the assessment of exemplary damages and that there is no necessary proportionality between the assessment of the two categories. Nonetheless, in NSW v Ibbett, at 647 [34], the plurality endorsed the proposition that it is necessary to determine both heads of compensatory damages before deciding whether or not a further award is necessary to serve the objectives of punishment, deterrence or condemnation. Their Honours also said (at [35]) that where the same circumstances increase the hurt to the plaintiff and also make it desirable for the Court to mark its disapprobation of the conduct, a single sum may be awarded. Such an award would represent both heads of damage and ensure that no element is compensated more than once. 64. I endeavoured to summarise the effect of the authorities in New South Wales v Radford [2010] NSWCA 276, at [97], as follows (Beazley and Macfarlan JJA agreeing): "These authorities demonstrate that the various categories of damages that may be awarded for trespass to the person, including assault and false imprisonment, are not self-contained. There is a close relationship between an award of ordinary compensatory damages for injury to the plaintiff's feelings and an award of aggravated damages. It is necessary to assess compensatory damages, including aggravated damages, before determining whether exemplary damages should be awarded and, if so, the quantum of any such award.""
Cons Budin ought not to have arrested the plaintiff. His assault and battery of the plaintiff followed upon his decision to arrest the plaintiff. The Court must decry such behaviour towards a minor. Cons Budin, indeed all members of the Police Force, must be extremely careful when dealing with minors. They must be deterred from acting as Cons Budin acted: precipitately and out of self-interest. I allow $10,000 for exemplary damages.

[33]

(b) False Imprisonment

The plaintiff claims: compensatory damages: $30,000 aggravated compensatory damages: part of $20,000 (see [119] above) exemplary damages: part of $25,000 (see [119] above)
It must always be borne in mind that the highest penalty known to modern Australian law is the deprivation of liberty: imprisonment. False imprisonment is the unlawful deprivation of liberty. The common law has zealously guarded the liberty of the subject and the unlawful deprivation of that liberty must be adequately compensated. The plaintiff must be compensated for the period in which he was detained: 10.37 pm on 16 April 2014 to 2.30 am on 17 April 2014, a few minutes short of 4 hours. However, the length of the incarceration is not the only consideration. In Zaravinos v State of New South Wales [2004] NSWCA 320; (2004) 62 NSWLR 58; (2004) 151 A Crim R 24, Bryson JA (with whom Santow JA and Adams J agreed) said at [52]: "It is reasonably arguable that his Honour should have treated the time in involuntary custody as in the order of three and a half hours not two and three-quarter hours, but the difference could have little effect on the outcome and is not an appropriate subject for leave to appeal. Damages are not capable of being related proportionately to the length of the period of detention, and "a substantial proportion of the ultimate award must be given for what has been described as 'the initial shock of being arrested'". - Ruddock v. Taylor [2003] NSWCA 262 Spigelman CJ at 49. That substantial proportion of the ultimate award of damages could not vary according to whether the detention was for about two and three-quarter hours or for about three and a half hours." In addition, damages for the hurt to the plaintiff's feelings such as indignity, mental anguish, disgrace or humiliation suffered as a result of the false imprisonment are to be taken into account.
These are some portions of the plaintiff's evidence: (i) "Q. How did you feel when you were in the back of the caged vehicle? A. Terrified. I was upset. I was shocked. Very traumatic." (T25.21) (ii) "Q. And was that an officer in uniform who put you into the dock? A. I can't say for sure. Q. Were you told by anyone what was going to happen to you? A. The only point I remember is the officer that hurt me came in and said, "We've got your weapon," with the two people that he was with when it happened, kind of like jokingly amongst themselves and like I was really confused at that point because I had no idea what he was talking about. HIS HONOUR Q. Sorry, what did he say? A. He said, "We've got your weapon." Q. "We've got your weapon." A. Yeah. Later I learned that he was referring to my skateboard, but at the time I had no idea and I was completely like freaking out and I -" (T26.40) (iii) "Q. Near the dock that you were in do you remember there being a desk with a police officer behind it? A. Yeah, at times. Q. Do you remember if you made the request of that particular officer? A. Yeah. I remember asking him. When the officer that did it was in the room, I remember asking, "Do you have like a bag I can put this chipped tooth into", and then he replied, I think it was Officer Budin, with, "I'm not your drug dealing mates", which was Q. How did that make you feel? A. Offended and embarrassed. I - confused." (T27.33) (iv) "Q. Do you remember what time it was when you were given documents? A. I think it was roughly 2.30. Q. Do you remember what documents you were given? A. Yes. Just - I remember that - seeing that they had charged me with two charges, and then two Q. Do you remember what the charges were? A. Yes. They were assault on an officer, and resist arrest. Q. Just pausing there, when you read those charges, how did you feel? A. Terrified, and confused. Yes, really - I kind of thought my life was sort of over. Q. What about the other two charges? Do you remember those? A. I got - I was not listening to a move along warning, and the other one was swearing in a public place. Q. When you were given these documents, were you still inside the dock, or not? A. I can't remember." (T33.44)
It must also be borne in mind that the plaintiff was detained at a police station, a place of adult custody, when, as a "child", he ought not to have been arrested, but to have been charged by CAN. I allow $30,000 for compensatory damages. In making that assessment, I have taken into account the plaintiff's feelings and other intangibles. There is no need to award further compensatory damages. The conditions of the plaintiff's incarceration were what one would normally expect at a police station. Having awarded exemplary damages for the arrest, to award exemplary damages for the consequent incarceration would, in my view, serve no further purpose and I decline to award such damages.

[34]

The plaintiff claims: compensatory damages: $25,000 aggravated compensatory damages: $25,000 exemplary damages: $25,000
Malicious prosecution is an action in case rather than in trespass and so the plaintiff must prove damage. It is not actionable per se. The types of damage that may be recovered include economic loss, e.g. legal costs incurred in defending the prosecution; lost income from the need to take time off work to attend upon one's lawyers or the courts; necessary travelling expenses for those purposes. The damages include: 1. loss of or damage to reputation: see State of New South Wales v Landini [2010] NSWCA 157 at [40], [102]; 2. the conditional loss of liberty by reason of one's liberty being curtailed by being on bail: ibid at [42], [104]; 3. "mental distress and agitation" which includes anxiety and depression: ibid at [43], [105]-[110]; and which would also include "the stress and uncertainty" experienced while proceedings were pending, whilst awaiting the court's decision.
The plaintiff was handed CANs at Springwood Police Station prior to his discharge from custody on 17 April 2014. Proceedings in the Children's Court were not concluded until 5 December 2014, a period of some 7 and a half months. The plaintiff was released on conditional bail: "1. That the accused will not be at any time intoxicated in a public place. 2. That the accused be of good behaviour at all times. 3. That the accused notifies the Officer in charge, Springwood Police Station, in the event he changes addresses within 24 hours." (Part of exhibit 2) He had to attend court on two days for the trial of the charges, 10 October and 5 December 2014, and probably also when the CANs were first returnable on 16 June 2014. The venue of the prosecution was Parramatta, when a more convenient venue might be Penrith or Katoomba. Whilst the plaintiff was legally represented, no claim is made for legal costs, nor is there any other claim for economic loss.
The plaintiff gave no evidence of a loss of reputation or standing in the community. After arriving at the home of Ms Amanda Webb and Zachary Baldock after his release from custody, the plaintiff said this occurred: "Q. What did you do when you got to Zach's place? A. We just talked about it all, and I was freaking out. I read over the documents, and tried to sleep. Q. There were a number of court attendance notices that specified you had to attend the Children's Court. A. Yes. Q. How did that make you feel? A. Scared. I was pretty traumatised from the whole thing, and just really - just confused. Q. Did you sleep at all that morning when you were at Zach's place? A. I wouldn't say it was - it was pretty weird. I was kind of just thinking about the whole events of the night, and they were kind of flashing through my mind." As to the proceedings in the Children's Court, the plaintiff gave this evidence: "Q. How did you feel in the morning before the proceedings commenced? A. I was pretty scared. I kind of had just been trying not to think about it. But it was pretty prominent. It was pretty there. Q. You had a barrister representing you? A. Yes. Q. On 10 October a number of police officers gave evidence, and you were in Court to listen to their evidence? A. Yes. Q. How did you feel at that time when you were listening to their evidence? A. Really confused and scared. I felt like I was being, like, I don't know, like set up. It was - yes. It was pretty scary. Q. Your hearing was stood over from 10 October 2014 to 5 December 2014. Do you remember that day? HIS HONOUR: 5 December, did you say? CANCERI: December, yes. 5 December 2014. Q. That was the final day of the hearing. How did you feel leading up to that point in time? That is between 10 October 2014, and 5 December 2014? A. Very unsure about what was going to happen, because it was three policemen's word against mine, and I was scared." Although it was not highlighted in evidence, one must consider the anxiety that any person in the plaintiff's position would have been under from the time he was handed the CANs to the time that the Children's Court Magistrate announced his findings. By "anxiety" I do not mean pathological anxiety but normal human concern, disquiet and apprehension.
Bearing in mind all those considerations, I believe the proper sum to award the plaintiff is $30,000, including matters which are open taken into account in awarding aggravated damages. The plaintiff's entire claim for compensatory damages is, after all, $50,000.
There remains the issue of exemplary damages for this tort. Such damages should be awarded. Cons Budin could have decided in Springwood Police Station not to prosecute the plaintiff for anything other than using offensive language. He did not. If he had bothered to identify the elements of the charge under Summary Offences Act 1988 section 9(1) he would have known that he could not lay such a charge. He could have reflected on the other two charges and considered whether, when he acted precipitately to arrest the plaintiff, he was entitled to do so. When he was advised that the plaintiff had pleaded "not guilty" to the charges, he could have considered whether to persist with them. He did not. His reaction was to send an email (exhibit H) to Cons Fulton, Mammen, Doyle and Maracic which commences: "Hey hey all our incident from glenbrook has gone not guilty (winner). You have any unavailable dates let me know VIA email …" In cross-examination the Constable was extremely coy in explaining why he described the plaintiff as a "winner" (T338). He, as prosecutor, persisted with three charges which were bound to fail. All litigation is burdensome - for each party and for the court which must decide it: the criminal courts of this State have been heavily burdened for years. Persisting with charges which are bound to fail must be discouraged. I award $15,000 by way of exemplary damages.

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