Glavinic v Commonwealth [2023] ACTSC 361

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: Glavinic v Commonwealth Citation: [2023] ACTSC 361 Hearing Dates: 26 June – 30 June, 3 July – 7 July, 10 July, 12 July 2023 Last submissions: 16 November 2023 Decision Date: 1 December 2023 Before: Mossop J Decision: See [411]-[413]. Catchwords: TORTS – TRESPASS, BATTERY AND WRONGFUL IMPRISONMENT – Police forced entry into residence – plaintiff arrested for obstructing police – where plaintiff resisted arrest and violent melee occurred – plaintiff injured during course of struggle – no unreasonable use of force – actions of police rendered tortious due to unlawful entry onto premises POLICE POWERS – ENTRY – Police forced entry into residence while responding to report of suspected family violence – police claimed to be exercising powers of emergency entry – consideration of ss 188 and 190 of the Crimes Act 1900 (ACT) – whether there were reasonable grounds for belief held by police – reasonable grounds for belief not established – entry unlawful CIVIL PRACTICE AND PROCEDURE – LIMITATION PERIODS – Limitation period of six months under s 435 of the Crimes Act 1900 (ACT) – whether entry done, or reasonably supposed to have been done, under the Act – meaning of “reasonably supposed to have been done” – s 435 requires subjective enquiry into what person supposed they were doing and objective qualification of reasonableness of the supposition – must accommodate circumstances of mistake of fact or law in the purported exercise of statutory powers – police believed they were acting lawfully – defence applies – judgment for defendants POLICE POWERS – ARREST – Reasonable force – ss 212 and 222 of the Crimes Act 1900 (ACT) – plaintiff claims police used excessive force during violent melee – police exercised a degree of restraint consistent with training – use of force not unreasonable TORTS – NERVOUS SHOCK – whether s 36 of the Civil Law (Wrongs) Act 2002 (ACT) applies to Commonwealth officers in proceedings in the ACT Supreme Court – not appropriate to determine basis upon which it applies where parties agree that it does and no proper contradictor for Commonwealth submissions Legislation Cited: Australian Capital Territory (Self-Government) Act 1988 (Cth), s 48A Australian Federal Police Act 1979 (Cth), ss 9(1)(b), 64B Borough of Balmain Electric Lighting Act 1906 (NSW), s 38 Borough of Newcastle Electric Lighting Act 1892 (NSW), s 33 Borough of Redfern Electric Lighting Act 1895 (NSW), s 32 Civil Law (Wrongs) Act 2002 (ACT), s 36 Court Procedures Rules 2006 (ACT) Crimes Act 1900 (ACT), ss 188, 189, 190, 212, 221, 222, 435 Crimes Act 1900 (NSW), s 563 Crimes (Amendment) Ordinance 1987 (ACT) Criminal Code 2002 (ACT), s 361 Criminal Law Amendment Act 1883 (NSW), s 450 Domestic Violence Ordinance 1986 (ACT), ss 349A, 349B, 349C Domestic Violence (Miscellaneous Amendments) Ordinance 1986 (ACT) Human Rights Act 2004 (ACT), s 18(7) Limitation Act 1985 (ACT), ss 4, 30, 36 Judiciary Act 1903 (Cth), s 64 Justices Protection Act 1848 (UK), 11-12 Vict., c 44, ss 8-12 Metropolitan Police Act 1829 (UK) Municipal Council of Sydney Electric Lighting Act 1896 (NSW), s 38 Notice of Action and other Privileges Abolition Act 1977 (NSW) Cases Cited: Beechey v Sides (1829) 9 B & C 806; 109 ER 300 Bresatz v Przibilla (1962) 108 CLR 541 Cann v Clipperton (1839) 10 A & E 582; 113 ER 221 Chamberlain v King (1871) LR 6 CP 474 Collector of Customs (NSW) v Brian Lawler Automotive Pty Ltd (1979) 41 FLR 338 Cook v Leonard (1827) 6 B & C 351; 108 ER 481 Donaldson v Broomby (1981) 54 FLR 66 Donaldson v Broomby (1982) 60 FLR 124 Duncan v Theodore (1917) 23 CLR 510 G Scammell & Nephew Ltd v Hurley [1929] 1 KB 419 George v Rocket (1990) 170 CLR 104 Grincelis v House [2000] 201 CLR 321 Hamilton v Halesworth (1937) 58 CLR 369 Hazelton v Potter (1907) 5 CLR 445 Hermann v Seneschal (1862) 13 CBNS 392; 143 ER 156 Hussein v Chong Fook Kam [1970] AC 942 Innes v Weate [1984] Tas R 14 Kuru v New South Wales [2008] HCA 26; 236 CLR 1 Lamb v Cotogno (1987) 164 CLR 1 Lavin v Albert [1982] AC 546 Little v The Commonwealth (1947) 75 CLR 94 Maleverer v Spinke (1538) 1 Dyer 35B; 73 ER 79 NSW v Ibbett [2006] HCA 57; 229 CLR 638 Plenty v Dillon (1991) 171 CLR 635 Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266 R v Howell [1982] 1 QB 416 R v Johnson [2018] ACTSC 242 R v McCarthy [2015] SASC 11 Roberts v Orchard (1863) 2 H & C 769; 159 ER 318 Sharman v Evans (1977) 138 CLR 563 Spooner v Juddow (1850) 6 Moo PC 257; 13 ER 682 Spooner v Juddow (1850) 4 Moo Ind App 353; 18 ER 734 State of New South Wales v Delly [2007] NSWCA 303; 70 NSWLR 125 State of New South Wales v Riley [2003] NSWCA 208; 57 NSWLR 496 Surfling v Nurse (1846) 11 JP 279 Theobald v Crichmore (1818) 1 B & Ald 227; 106 ER 83 Thomas v Sawkins [1935] 2 KB 249 Todd v O’Sullivan (1985) 122 LSJS 403 Western Australia v Ward [2002] HCA 28; 213 CLR 1 Wilkinson v Downtown [1897] 2 QB 57 XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 nd Texts Cited: Halsbury’s Laws of England (2 ed, vol 26) New South Wales Law Reform Commission, Consolidation of the Criminal Law, first Report from the Commissioners Appointed to Inquire into Law Reform; together with, Draft Bill (Government Printer, 1871) Alfred Stephen and Alexander Oliver, Criminal Law Manual: comprising the Criminal Law Amendment Act of 1883 (Government Printer, 1883) New South Wales Law Reform Commission, Third Report on the Limitation of Actions: Special Protections (Report No 21,1975) A Goodhart, ‘Thomas v Sawkins: A Constitutional Innovation’ (1936) 6 Cambridge Law Journal 22 J Spigelman, ‘The Principle of Open Justice: a Comparative Perspective’ (2006) 29 UNSWLJ 147 Parties: Justin Glavinic (Plaintiff in SC 283 of 2021) Carol Glavinic (Plaintiff in SC 285 of 2021) Heather Williams (Plaintiff in SC 286 of 2021) Commonwealth of Australia (1st Defendant) Simon Hill (2nd Defendant) David Edwards (3rd Defendant) Alexander Tutt (4th Defendant) Caleb Boxx (5th Defendant) Representation: Counsel B Kelleher SC with J Tyler-Stott and L Beange (Plaintiffs) M Fordham SC with K Musgrove and N Oram (Defendants) Solicitors Ken Cush & Associates (Plaintiffs) Ashurst (Defendants) File Numbers: SC 283 of 2021 SC 285 of 2021 SC 286 of 2021 MOSSOP J: Introduction

1. Three plaintiffs have claimed damages arising from an alleged unlawful entry by police into their home. Police attended in response to radio messages which indicated the possibility of a domestic violence incident in progress. When police were not permitted to enter the property, they forced entry, allegedly pursuant to their emergency entry powers in s 190 of the Crimes Act 1900 (ACT). There was then a very significant altercation between the police and one of the plaintiffs. This is alleged to have involved a battery and unlawful imprisonment. The two other plaintiffs are alleged to have suffered a recognisable psychiatric illnesses as a result of observing the altercation.

2. For the reasons which follow, I have reached the conclusion that the plaintiffs’ claims are statute-barred by s 435 of the Crimes Act, which imposes a six-month limitation period for actions brought against a person for anything reasonably supposed to have been done under the Crimes Act. Because of that, judgment will be entered for the defendants in the proceedings. In case I am wrong about the operation of s 435, I have proceeded to consider the substance of the claims and made a contingent assessment of damages in relation to each of the plaintiffs.

People involved in this case

3. The plaintiffs are: (a) Justin Glavinic (Mr Glavinic); (b) Heather Williams (Ms Williams); and (c) Carol Glavinic (Mrs Glavinic).

4. The first defendant is the Commonwealth. The other four defendants are the individual police officers who were involved in the incident. The police officers are identified by reference to their ranks at the time of the events in question: (a) Constable Simon Hill; (b) First Constable David Edwards; (c) Constable Alexander Tutt; and (d) Senior Constable Caleb Boxx.

The pleaded claims

5. Each of the plaintiffs pleaded several causes of action. Justin Glavinic

6. Mr Glavinic pleads: (a) that the police officers had no lawful justification for entering the residence and that the conduct of First Constable Edwards, assisted by Senior Constable Boxx, in unlawfully forcing entry into the residence, followed by the other police officers, amounted to a trespass; (b) that the actions of the police officers in pushing Mr Glavinic out of the way to force entry, taking hold of him, forcing him to the tiled floor, deploying Oleoresin Capsicum spray (OC spray) to his face, striking him with a baton and on the back of his head, deploying a Taser towards him, kicking him in the face, forcing his face to the tiled floor, placing him in a spit hood, forcing his right arm over his back and placing him in handcuffs amounted to an unlawful battery of the plaintiff because either: (i) the police officers had no lawful justification for applying any physical force to the plaintiff; or (ii) any physical force applied was unreasonable and disproportionate; and (c) that the police officers had falsely imprisoned or unlawfully detained the plaintiff because there was no lawful justification for his arrest, detention or deprivation of liberty.

7. There were claims of breaches of Mr Glavinic’s rights under the Human Rights Act 2004 (ACT) and a claim for compensation under s 18(7) of that Act. In final submissions, counsel for the plaintiffs did not press these claims. It is not necessary to say anything more about them.

8. Mr Glavinic claims damages, aggravated damages and exemplary damages as well as interest and costs.

9. The Commonwealth is said to be liable for the actions of the police officers pursuant to s 64B of the Australian Federal Police Act 1979 (Cth) (AFP Act). The Commonwealth is also said to be vicariously liable for the actions of the officers.

Carol Glavinic

10. Mrs Glavinic pleads: (a) that the conduct of First Constable Edwards in wedging his foot in the door to prevent it from closing and unlawfully forcing entry into the residence, assisted by Senior Constable Boxx who pushed Mr Glavinic out of the way, followed by the other police officers, constituted a trespass; and (b) that the actions of the police in wedging a foot into the door, pushing Mr Glavinic out of the way, forcing entry into the residence, taking hold of Mr Glavinic, forcing him to the tiled floor, deploying OC spray to his face, striking him with a baton and on the back of his head, deploying a Taser towards him, kicking him in the head, forcing his face to the tiled floor, placing a spit hood over his head, handcuffing him and directing ACT Ambulance Services to administer a tranquilising medication “caused the plaintiff to suffer nervous shock” as the actions occurred in her presence, within her sight and hearing.

11. The Commonwealth is alleged to be liable for the actions of the police officers pursuant to s 64B of the AFP Act. Alternatively, the Commonwealth is said to be vicariously liable for the actions of the officers.

12. Mrs Glavinic claims damages, aggravated damages and exemplary damages as well as interest and costs.

Heather Williams

13. Ms Williams pleads: (a) that the police officers had no lawful justification for entering the residence and that the forcing of entry by police into the house constituted a trespass; and (b) that the conduct of police in forcing Mr Glavinic face down onto the floor, deploying OC spray to his face, striking him on the back with a baton, striking the back of his head, deploying a Taser towards him, kicking him in the head, forcing his face to the tiled floor, placing a spit hood over his head, handcuffing him, directing ACT Ambulance Services to administer a tranquilising medication, charging him with seven criminal offences and attending the ACT Magistrates Court to give evidence against him “caused the plaintiff to suffer nervous shock” as the actions occurred in her presence, within her sight and hearing.

14. The Commonwealth is said to be liable for the actions of the police officers pursuant to s 64B of the AFP Act. Alternatively, the Commonwealth is said to be vicariously liable for the actions of the officers.

15. Ms Williams claims damages, aggravated damages and exemplary damages as well as interest and costs. The Defences

16. The Defences filed on behalf of the defendants allege that the police officers were entitled to enter the premises under ss 188 and 190 of the Crimes Act and under the general law. They assert that the use of force against Mr Glavinic was lawful as it was necessary and reasonable for the police officers exercising their functions under the AFP Act and the Crimes Act, as well as under the common law. They assert that Mr Glavinic’s arrest was lawful under ss 212, 222 of the Crimes Act and under the general law. Finally, they assert that each action is not maintainable because it is brought outside the limitation period set by s 435 of the Crimes Act and the plaintiffs did not comply with the notice requirements in that section.

Witnesses who gave evidence

17. The following lay witnesses gave evidence at the trial: (a) each of the plaintiffs; (b) each of the police officer defendants; (c) Jeffrey McConnell, the neighbour who made the original reports to police (called by the defendants); (d) Kristi Swan, now a doctor, but at the time of the relevant incident, one of the ambulance officers who attended the premises (called by the defendants); (e) Rebecca Williams, a Senior Constable from Gungahlin police station who attended the scene (called by the defendants); (f) Kara Chapman, who was present on the evening of the incident and Acting Sergeant from Gungahlin police station (called by the defendants);

18. A number of expert witnesses were also called. Dr Antonella Ventura (called by the defendants) and Dr Malcolm Foxcroft (called by the plaintiffs) gave concurrent evidence about Mr Glavinic’s mental health. Dr Ventura gave some additional evidence about the circumstances surrounding her second consultation with Mr Glavinic. Dr Patricia Jungfer gave evidence as to the mental health of Mrs Glavinic and Ms Williams.

19. A number of expert reports prepared for the purposes of the proceedings were tendered without the need for the witnesses to give oral evidence or be cross-examined. Those included the reports of Dr Jan Tomlinson and Dr Mark Ridalgh, orthopaedic surgeons whose evidence related to Mr Glavinic’s shoulder injuries. What happened?

20. It is convenient to first give an overview of the events, as substantial portions of the narrative are uncontroversial. Within the framework of those events, it will then be necessary to address a number of significant factual allegations made by the plaintiffs which were contested by the defendants.

The 2017 incident

21. In 2017, there was an incident involving Mr Glavinic during which he was tasered, subject to OC spray and forcibly arrested by police. Following that incident, he became increasingly paranoid about police. He suspected that his phone was being tapped by the police.

The tenancy

22. Mr Glavinic and Ms Williams were the lessees of the premises in Miljanovic Street, Forde, pursuant to a lease which commenced on 5 July 2018.

First complaint

23. At 2:01am on 14 July 2018, a neighbour from an adjoining street (Mr McConnell) rang the police enquiry line (131 444) to report a “domestic disturbance”. He said: Somebody else may well have reported it already. They’re very, very – they have been very, very loud, and it’s sort of that, um, like uncontrolled screaming at one another.

24. He described it as “an argument” and “that sort of guttural screaming”. He said: It’s, um, we have experience with mental health problems in our family, and it sounds like one of them may well, you know, like, just totally lost it.

25. He did not know the address, but he thought it was somewhere around 8 or 10 Miljanovic Street.

First radio message

26. At 2:05am, the Australian Federal Police (AFP) central dispatch unit (referred to as “One AFP”) sent a radio message to police mobile units: One AFP: Thanks, Gungahlin four two, I’ve got job details of a disturbance in Forde. Further details when you’re ready. Gungahlin 42: Send. One AFP: Thanks, four two. Location is Miljanovic Street in Forde. That one’s Mike India Lima Juliet Alpha November Oscar Victor India Charlie Street in Forde. Either number eight or ten. Complainant states it sounds like someone is having a mental health episode. I’ve got here one yell – one person yelling at the top of their lungs. Apparently it’s been ongoing for some time. POI starts up then goes quiet. Second complaint

27. At 2:06am, the same neighbour rang police again. He said that “they’re really going again” and “the woman was calling out, ‘Don’t touch me, don’t touch me,’ in a fairly scared voice”.

28. He was asked some further questions by the operator and said: And she – I can hear her crying and – ah, I have a feeling she might have been locked – sounds like she might be locked out or something. Or she might be outside. I can’t see her, though. … Yeah, I can hear her crying, I think, in their al fresco area around the back.

29. The operator said that police were on their way.

Second radio message

30. At 2:07am there was a further radio transmission that said: One AFP to those Gungahlin units. Complainant’s called back and say that they can hear a lady yelling, “Don’t touch me,” and crying. She believes it’s the house directly behind number ten Jessie Street in Forde. Police arrive at the address

31. Constables Edwards and Hill were the first police officers to arrive. They reported arriving in the street at around 2:11am. First Constable Edwards identified the house, knocked on the door and observed a male (Mr Glavinic) approach. Mr Glavinic opened the door slightly. There was some difference in the evidence as to precisely how far he opened the door. There was a brief conversation. First Constable Edwards told Mr Glavinic that police had received reports of a disturbance at the location and they had come to make sure that everyone was okay. Mr Glavinic said that it was just him and his mother at home and that everything was fine.

32. Mr Glavinic then closed the door and moved from the entry area to the kitchen.

Mr Glavinic calls police

33. After he had left the front door, at 2:14am, Mr Glavinic made a telephone call to police. In that call, which lasted 48 seconds, he said: My name’s Justin. Um, we had a bit of violence tonight from my girlfriend. She got, um, on Coke and a bit of M. She’s gone a bit crazy. … Yeah, yeah. She’s lost it. … She was getting aggressive. Like, kicking the door down, um, she made me bleed. I got blood all over me so.

34. At the point where he was starting to give his address he disconnected the phone.

35. There is no evidence that the police who attended the scene were aware at the time of the contents of this call.

36. First Constable Edwards was knocking hard on the door and calling out for Mr Glavinic to come back to the front door.

Return to the front door

37. Mr Glavinic then returned to the front door with his mother, Carol Glavinic. He opened the door and had a further conversation with First Constable Edwards. First Constable Edwards could see that Mrs Glavinic was there.

38. First Constable Edwards put his foot into the open door so as to stop it being closed. First Constable Edwards decided to exercise the emergency powers of entry and pushed the door open. Mr Glavinic resisted the opening of the door and the entry of police.

The melee

39. There was then a melee during which the police officers attempted to restrain Mr Glavinic and Mr Glavinic violently resisted. That melee included: (a) First Constable Edwards using a “seatbelt takedown” manoeuvre to get Mr Glavinic from a standing position onto the ground; (b) police officers attempting to restrain Mr Glavinic’s arms and legs; (c) Mr Glavinic biting the upper thigh of Constable Tutt; (d) Mr Glavinic being sprayed with OC spray on two occasions; (e) a Taser being deployed; and (f) handcuffs being applied to Mr Glavinic’s left wrist and then subsequently to his right wrist.

40. There is substantial dispute as to some aspects of the melee. Mr Glavinic’s evidence was to the effect that the conduct of the officers went substantially beyond what was necessary to restrain him and included unwarranted acts of violence. Those included: (a) punching and kicking him gratuitously; (b) striking the back of his head with a baton; (c) deploying OC spray for longer than appropriate; and (d) banging his head against the ground.

Radio call by Senior Constable Boxx

41. At just after 2:17am, in the midst of the melee, Senior Constable Boxx of Gungahlin 43 made a radio call to One AFP seeking urgent assistance and saying “we have one highly hostile male. He’s still resisting. He’s assaulted several officers. Need additional members, it is urgent”.

42. Other police reported that they were responding.

43. When the other officers arrived, they assisted in restraining Mr Glavinic who continued to violently resist. There is a dispute as to whether he was resisting at the time when First Constable Edwards successfully applied a Taser to him.

Radio call by Acting Sergeant Chapman

44. Subsequently at about 2:26am, Acting Sergeant Chapman from Gungahlin 40 reported, “We have a highly irate male. He has been restrained with handcuffs, however he’s unmoveable at this stage. We may need ACTAS assistance – or please, if we can get ACTAS assistance to help sedate this male.”

45. One AFP indicated that it was on the phone to the ACT Ambulance Service (ACTAS).

ACT Ambulance Service arrives

46. An ambulance was called at 2:28am. It arrived at the scene at 2:45am and was with Mr Glavinic at 2:46am. The ambulance officer, Kristi Swan, recorded: … [Patient] very aggressive towards police, has assaulted them with punching, [spitting] and biting. Currently in AFP custody & they have placed under EA. Required 6-8 police & multiple handcuffs to restrain him. Self inflicted facial swelling from smashing face against ground. AFP have used 1 x taser drive stun, 2 x doses of pepper spray to face, several baton strikes on [patients] back & arms which were ineffective, & applied spit face shield to him. …

47. Ms Swan gave evidence that, of the matters recorded in her note, she had personally observed: (a) the patient hitting his face against the ground; (b) six to eight officers restraining the patient; and (c) that the patient remained combative to the extent to which she was unable to conduct a full examination until he was sedated.

48. Ms Swan administered intramuscular ketamine to sedate him. She did so based upon her medical judgment and that of her fellow paramedic and not at the direction of the police.

49. At 3:13am, Mr Glavinic was transported by ambulance to the Canberra Hospital where he arrived at 3:36am.

Canberra Hospital

50. The records from the Canberra Hospital indicated that Mr Glavinic remained sedated and intubated in order to control his behaviour and allow him to be properly assessed. He had bruises on his face. He was extubated on the morning of 15 July 2018. He later became agitated again and he was sedated on the evening of 15 July 2018. On the evening of 16 July 2018, he was discharged to a ward following a bedside hearing by a magistrate. He was, however, readmitted to the Intensive Care Unit (ICU) shortly afterwards with worsening renal function. He was given dialysis there. He was transferred again to a ward on 18 July 2018. He remained there until 26 July 2018, when he was discharged from hospital and transferred to the Alexander Maconochie Centre. On 4 August 2018, he was released on bail.

Evidence of the principal witnesses

51. What occurred upon police arriving at the house and during the melee is significant for the purposes of determining whether the actions of the police officers involved a trespass on the premises, whether they used unreasonable force to detain Mr Glavinic and whether the arrest was lawful. The evidence as to what occurred is also significant for the purposes of assessing the credibility of the various witnesses. So far as police witnesses are concerned, their credibility is significant when assessing the evidence as to their states of mind at the point of entry and hence whether they were entitled to do so under ss 188 and 190 of the Crimes Act. To that end, I have outlined the evidence of the principal witnesses concerning their recollection of the events on 14 July 2018.

Mr Glavinic

52. Mr Glavinic gave evidence of the events prior to the police arriving as well as their arrival and the resulting melee.

53. Mr Glavinic described returning home from work at around 6pm on 13 July 2018. He had dinner with Ms Williams and his mother, and they all had a glass of red wine with dinner. After dinner, he said he began unpacking some boxes for the house before watching TV. At around 8:30pm, Ms Williams went to the shops to buy more wine and poured herself another glass of wine when she returned. The two then did a line of cocaine each. Mr Glavinic said he received a text from a family friend and Ms Williams questioned him about it. He recalls Ms Williams drinking more wine and watching TV with her before going to bed.

54. Sometime in the night, Mr Glavinic said he received another text message. He said that Ms Williams questioned him about the text, believing it to be from a woman that Mr Glavinic previously slept with. He said that Ms Williams requested to see the phone and that he refused to give it to her. He told her to “leave me alone”. He said that Ms Williams then threw herself on the floor and began screaming. He walked away to the bedroom and shut the door. Ms Williams banged on the door and then tried to enter through the sliding door from the alfresco area. He said that he attempted to close the door, but Ms Williams stuck her arm in the door to stop it closing and yelled at him. He said to her “what the hell are you doing” and she began crying.

55. Mr Glavinic says that he tried to hug her and comfort her, but Ms Williams told him to “leave her alone, get away from her”. He told her that he would go to a friend’s house and went to the garage. After realising that he was parked in by Ms Williams, he said that he went back inside to get Ms Williams’ keys. He recalls that she told him “don’t take my car”. He moved her car out of the way and returned to the bedroom to find his car keys. He said that Ms Williams asked him to tell her that he loved her before throwing herself on the floor and “hysterically crying”.

56. Mr Glavinic said that his mother then entered the room and tried to comfort Ms Williams. He recalls moving to the kitchen and standing at the island bench. He said that Ms Williams approached him smiling and showed him her phone. He observed that she had typed “Gungahlin police station” into the google search bar. He said that he had an adverse reaction to this as he had a “history with Gungahlin police”. He then smashed the phone on the countertop and said, “how fucking dare you”. He told Ms Williams that he would call the police. He said he then googled Belconnen police, as he had a history with Gungahlin police so had to “be very cautious for my own safety with the police”.

57. While the phone was dialling, Mr Glavinic said that he pretended to talk to the operator and noticed Ms Williams had settled down. He said that he changed his mind about calling the police and hung up the phone. He recalls that Ms Williams walked away and that his mother tried to convince him to actually call the police. He said that he called again and began to speak to the operator before changing his mind and hanging up.

Ms Williams

74. Ms Williams gave evidence of events prior to the arrival of police as well as after they had entered the premises.

75. She said that since the incident in 2017 Mr Glavinic had become paranoid and thought that she was in league with the AFP, attempting to hurt him.

76. On 13 July 2018, Ms Williams, Mrs Glavinic and Mr Glavinic had eaten dinner. She had a glass of wine with dinner. She described having suffered a sense of betrayal as a result of Mr Glavinic having a relationship with another woman while she and Mr Glavinic had been separated. After dinner, she kept drinking red wine from the bottle that she had shared with Mr Glavinic at dinner. At some stage, Mr Glavinic got a message from a mutual female friend and Ms Williams reacted badly to that. She continued to drink red wine in her bedroom. She then went out and bought two more bottles of wine. She drove home. She asked Mr Glavinic if they could have some cocaine. At that stage, she had almost finished the second of the three bottles of wine.

77. Ms Williams asked Mr Glavinic to show her the message from the mutual female friend, but he declined. Ms Williams felt immediate rage and started breaking things around the house. She kicked a hole in the door and was screaming. Mr Glavinic went into the bedroom to get away from her. She tried to break the door open. At that stage, she was unable to do so. She went to the alfresco area under the pergola and tried to get into the bedroom through the sliding door. She said that Mr Glavinic jumped up to shut the door but she put her arm in the door as it was closing. She was screaming. He came out and tried to hug her and she screamed “don’t touch me”. She described herself as feeling “immense feelings of rage” and going “absolutely out of control”.

78. She then went back into the house and broke the master bedroom door by running against it in order to get into the bedroom. She recalled Mr Glavinic said something like, “I’m going out. I’m leaving” and tried to leave the house. He then went into the garage. At some stage, he put his phone to his ear and told her he was calling the police. When he did that she calmed down. She walked to the bedroom and took three Valium tablets.

79. She said that 10 to 15 minutes later, she heard Mr Glavinic saying “mum, the police are here”. She denied saying anything or making any noise between that time up until the time that she attended the front door. She cleaned up the signs of cocaine use and then walked to the front door.

80. She saw Mrs Glavinic there. She saw the front door wide open and Mr Glavinic face down on the floor with four police officers on top of him. She said she could smell pepper spray. She said that Mr Glavinic’s left hand was already handcuffed behind his back. A police officer was repeatedly hitting the back of Mr Glavinic’s head at the base of his skull and this occurred on about six occasions.

Mrs Glavinic

87. Mrs Glavinic is Mr Glavinic’s mother. In the years prior to the 2018 incident, Mrs Glavinic, who had divorced her husband Frank in 2013, had either been living by herself or living with Mr Glavinic. In the year prior to the incident, she had been living by herself. She had, however, moved in with Mr Glavinic and 13 July 2018 was the first evening that she spent at the house at Forde.

88. Mrs Glavinic appeared to have a patchy recollection of what had occurred earlier in the evening. She said that she was unpacking and getting her room ready for the night. Later in the evening she noticed that Ms Williams was unhappy and heard Ms Williams and Mr Glavinic arguing about something. She asked Ms Williams and Mr Glavinic to be quiet. However, Ms Williams continued to argue and her voice got louder. Although she had heard them arguing before, she described Ms Williams as being a lot louder and a lot angrier. She said that she asked them a second time to be quiet. Then she went and did some work around the house. She recalled that Ms Williams completely lost her composure. She observed Ms Williams chase Mr Glavinic from room to room. While doing so she was yelling and screaming. At one stage, Mr Glavinic locked himself in the master bedroom and Ms Williams threw her body against the door to break it down. Later, Mr Glavinic went into the alfresco area to try to get away from Ms Williams. Mrs Glavinic said that at some point Ms Williams said she would call the police. Mrs Glavinic asked Ms Williams why she wanted to do that. She got no response.

89. She said she did not know why the police came to the door. She recalled hearing Mr Glavinic make what sounded like a phone call to police.

90. When the police came to the door, she was either in the kitchen or her bedroom. She said she was making herself a cup of tea and planning on going to bed. Mr Glavinic told her that the police were at the door and that he wanted her to go and talk to them. Mrs Glavinic put on her pants “so I looked more presentable”. She took the cup of tea or coffee that she had made to the front door.

91. When she went to the door it was closed. Mr Glavinic opened the door and the police were there at the door. She could not remember what was said. However, one of the police officers put a foot in the door. Mrs Glavinic said she was just standing there and they pushed the door open and got into the house. She said all of them went for Mr Glavinic. None of the police had spoken to her before that occurred.

92. Her recollection of what happened after that was limited she said “I can’t talk about it. It’s just too painful, sorry.” She said “Horrible things happened to Justin”. She recalled Mr Glavinic being “smashed to the floor”, by which she meant thrown to the ground by the police. She remembered Mr Glavinic screaming in pain. She remembered Mr Glavinic being sprayed with OC spray and tasered more than once. She remembered Mr Glavinic being “kicked and punched”. She said he was punched in the back repeatedly and kicked “to the sides and head”. She said that the police were screaming at her and “threatening to hurt” her if she tried to help Mr Glavinic. She felt that what had occurred was inhumane.

First Constable Edwards

97. Sergeant Edwards was a First Constable at the time of the incident. He had been an AFP officer for about six years at the time of the incident in 2018. He was in patrol car Gungahlin 42 with Constable Hill when the first radio message was received. Constable Hill was driving. At that stage, he understood that there was some sort of altercation and that it was a single person causing a disturbance. He said that the second radio message changed matters because the female screaming “don’t touch me” gave him the impression that there was a second person there and that there was an element of violence involved.

98. He said that the AFP had, and still has, a “pro-charge policy” if family violence is suspected.

99. First Constable Edwards identified the house because it was the only one in the street with lights on. He and Constable Hill arrived first. A second police vehicle arrived shortly afterwards. He went to the front door, looked through the window and knocked on the door. He could see a male, now known to him to be Mr Glavinic, in the back of the residence with a cigarette in one hand. He could hear some murmuring but could not hear anything in particular. He said that Constable Hill and Senior Constable Boxx were behind him, and that Constable Tutt was at the side of the house. Mr Glavinic came to the door and opened it about six inches. First Constable Edwards informed Mr Glavinic that there had been some calls in relation to a disturbance at the location and that “we needed to come and make sure that everyone there was okay”. At some point, he asked whether there was a female in the house and Mr Glavinic told him that his mother was home.

100. He remembered thinking at the time that Mr Glavinic’s mannerisms were a little bit odd. He said that Mr Glavinic said “Everything’s fine, you can go”. He said that Mr Glavinic managed to slam the door and then left the area. He said that Mr Glavinic was inside and away from the front door for about two minutes. Mr Glavinic moved away from the door and First Constable Edwards could see him talking to someone off to his right. Mr Glavinic did not appear to be aggressive or violent towards whoever he was speaking to.

101. First Constable Edwards kept knocking on the door to get Mr Glavinic’s attention because he was uncomfortable with the door being locked in light of the history of the female screaming “don’t touch me”. He wanted to get access “To ensure that she was okay”. He said he “began punching the door fairly hard and yelling for him to come back to the front door”. Although he lost sight of Mr Glavinic, “which made [him] very uncomfortable”, Mr Glavinic came back and opened the front door. It was open slightly more than last time. He could see a female (Mrs Glavinic). He said this led to his concerns dying down because she did not appear to be harmed. She was very quiet.

102. Mr Glavinic said “See, here she is. She’s fine. You can go”. First Constable Edwards wished to speak to the parties individually so he tried to get Mrs Glavinic to step outside if they did not want him to come inside. While he was speaking to them, he heard another female voice from inside the house. As a result of hearing the voice, his concerns increased because he believed that Mr Glavinic had been lying to him and trying to hide something that had occurred in the house.

Constable Tutt

119. Senior Constable Alexander Tutt was a Constable in 2018. On 14 July 2018, he was in the vehicle Gungahlin Patrol 43 with Senior Constable Boxx. Senior Constable Boxx was driving. He recalled the two radio transmissions. He thought that the situation was one in which “a female may or may not have been requiring assistance”. He saw Constable Hill and First Constable Edwards at the front door, which was closed. After a short conversation with First Constable Edwards and Constable Hill, he moved to the side gate. He entered the side of the residence through the gate. He went to where he could see through the window into the kitchen of the residence. He observed Mr Glavinic talking to Mrs Glavinic. He could not make out what was said. He observed them walking towards the front door and went back to the front door.

120. He heard Mr Glavinic saying “You’re not coming in”. He saw First Constable Edwards put his foot against the door and Mr Glavinic was pushing against the door. Constable Tutt formed the view that he needed to enter the residence to ensure the safety and welfare of all persons inside. First Constable Edwards, Senior Constable Boxx and Constable Hill entered, and he followed them. He saw Mr Glavinic grab First Constable Edwards and then the other two police officers grabbed Mr Glavinic. He manoeuvred around the four people and saw Mrs Glavinic sipping a cup of tea. Ms Williams attended the location as he was walking around the group. Mr Glavinic said to her “This is all your fault. I’ll fucking kill you”. Constable Tutt then used OC spray on Mr Glavinic. He said he did so because of the threat to Ms Williams as police were unable to control Mr Glavinic. He applied a one to two second burst of OC spray towards Mr Glavinic’s eyes. It had no effect on Mr Glavinic.

121. He saw First Constable Edwards use a seatbelt takedown and Mr Glavinic ended up on the ground facing the ceiling. Constable Tutt then went towards Mr Glavinic’s left shoulder and tried to restrain his left arm. On the way down, he saw Mr Glavinic grabbing at First Constable Edwards’ face or chest. Constable Tutt had his right knee on Mr Glavinic’s left cheek and chest. Mr Glavinic demonstrated strength like nothing Constable Tutt had ever faced before.

122. He said he saw Mr Glavinic reach around First Constable Edwards’ lower back and grab at his firearm. He described Mr Glavinic pressing down on the locking mechanism on the holster. He said he remembered it because it was a “fluent motion” and “it was very unusual for me”. The weapon was close to being withdrawn from the holster. He yelled “Dave he’s going to your gun”. First Constable Edwards manoeuvred his body to put pressure onto the area and secure the firearm. The magazine ended up on the floor.

123. A short time after that, Constable Tutt was bitten in the upper right leg by Mr Glavinic. Mr Glavinic continued to resist police and was flailing his arms with clenched fists. At various times he was yelling “police brutality”. Constable Tutt was consistently saying “stop resisting”.

Senior Constable Boxx

132. Acting Sergeant Caleb Boxx was, in July 2018, a Senior Constable stationed at Gungahlin police station. He was in the vehicle Gungahlin Patrol 43, with Constable Tutt. He said that after he heard the second radio call “it further enforced my suspicion at that point in time that it was a disturbance, and that it had apparently escalated from being a potential verbal only disturbance to a physical disturbance with potentially a female having hands put on her”. Although he observed First Constable Edwards talking at the front door, by the time he got there the door had been closed. He was told by First Constable Edwards that the occupant had gone back inside “to speak to his mum”.

133. He went to the left side gate. He said that he thought it was necessary to enter the yard and look through the window to establish whether a person may have suffered or was at imminent risk of suffering an injury, or whether an offence was occurring or was about to occur. He saw Mr Glavinic making a telephone call and Mrs Glavinic sipping from a teacup. When he saw Mr Glavinic on the phone, he went back to the front door. By the time he returned, the front door was open and Mr Glavinic was speaking to First Constable Edwards. He heard First Constable Edwards saying, “We need to come in and make sure everyone’s all right”. Mr Glavinic said “She’s not here. She’s left.” Mr Glavinic then said “Everything’s fine. She’s left”, and “You’re not coming in”.

134. Senior Constable Boxx thought that either Mr Glavinic was lying about his mother being there or there was a third person. That caused him to “suspect even more so that someone had suffered harm or that there was an offence occurring”. He said he believed it “prudent to enter the residence and confirm the safety and welfare of all persons in that residence”.

135. He might have heard First Constable Edwards say “We need to come in” but then he heard him say “Stop trying to close the door on my foot”. He placed his hand on First Constable Edwards’ left shoulder to indicate that he was there. Police then pushed the door open. Mr Glavinic’s right fist was clenched and he held a mobile phone in his left hand.

136. Based on Mr Glavinic’s demeanour and posture, Senior Constable Boxx thought that he would assault or resist police and went to grab his right arm. First Constable Edwards also grabbed his right arm and Constable Hill grabbed his left arm. At this stage, Mr Glavinic had not done anything apart from holding the door. He described Mr Glavinic as an imposing person whose tensed and flexed muscles made it feel like “holding onto concrete”. He and other police officers were telling Mr Glavinic to not resist.

137. Within a few moments, Mrs Glavinic moved forward from the kitchen area and a short time after that Ms Williams came to the kitchen door. Mrs Glavinic did not say anything. Ms Williams ran up screaming, “Don’t hurt him, don’t hurt him” and “let him go”. Senior Constable Boxx put his hands up and told her to “move back, move back.”

Constable Hill

143. Senior Constable Simon Hill was a Constable stationed at Gungahlin police station in July 2018. He was working with First Constable Edwards in a marked caged vehicle (Gungahlin Patrol 42). His initial assessment based on the first radio call was that there was a possible disturbance or a mental health episode. The second radio call indicated that it may be a possible family violence incident. He said that First Constable Edwards told Mr Glavinic that police had received reports of someone screaming and that police needed to come in and check on the occupants of the residence. Mr Glavinic said “It’s just me and my mum here. We’re fine” and “You’re not coming in”. Mr Glavinic then closed the door and walked off towards the rear of the residence.

144. The door reopened after one or two minutes. He described his intention at that stage as “To check the welfare of the occupants”. Mr Glavinic opened the door a little. First Constable Edwards said that police needed to come in and check the welfare or words to that effect. Mr Glavinic said, “You’re not coming in”. He recalled that First Constable Edwards had put his foot inside the door. Mr Glavinic attempted to close the door. First Constable Edwards said “We’re coming in”. Constable Hill said that he believed there was a family violence offence that had been committed and that he wished to check on the occupants to make sure that no one was seriously injured.

145. Constable Hill recalled that, upon entry, Mr Glavinic’s left hand was free and he went to control it. He heard First Constable Edwards say that Mr Glavinic was in custody. Mr Glavinic was extremely hostile, agitated and very aggressive towards the police officers. He observed Mrs Glavinic with a cup of tea in the lounge room. Mr Glavinic said to her “This is your – all your fucking fault”. He observed Constable Tutt use OC spray. It had no effect on Mr Glavinic. First Constable Edwards performed a seatbelt takedown. Constable Hill fell to the ground and as he was turning back Mr Glavinic grabbed him around the face and then grabbed his vest.

146. Constable Hill then attempted to control Mr Glavinic’s legs. Constable Tutt called out “He’s going for your gun” and he saw Mr Glavinic’s hand on the holster of First Constable Edwards’ gun. Constable Hill remained on Mr Glavinic’s legs and observed First Constable Edwards rotate his hips to prevent Mr Glavinic from accessing his gun.

147. Constable Hill heard others saying “Stop resisting”. He heard Constable Tutt yell out “He’s just bitten me”. He saw First Constable Edwards attempt to use a Taser, yelling “Taser – Taser – Taser”. He did not hear any zapping sound from the Taser. There was no change in Mr Glavinic’s demeanour. Constable Hill did not use or see anyone else use their baton.

148. He heard Senior Constable Boxx make two calls on the radio. Up until the arrival of additional police officers, Mr Glavinic had not stopped struggling and had not been unconscious at any time. He said that Mr Glavinic was not unconscious at any time prior to a sedative being administered by ambulance officers. After other officers arrived, one of them took over control of Mr Glavinic’s legs and Constable Hill left the premises. When he came back, he saw Mr Glavinic banging his head on the tiled floor. A folded blanket was placed under Mr Glavinic’s head to prevent further injury. He thought that First Constable Brownlie initially put his foot under Mr Glavinic’s head to stop him while the blanket was being placed under his head. He observed Mr Glavinic in a spit hood but did not see it being put on.

Assessment of the evidence

149. There was obviously a substantial conflict between the evidence given by Mr Glavinic and Ms Williams on the one hand and the evidence given by the police officers on the other. There was little conflict between the evidence of Mrs Glavinic and the police officers because Mrs Glavinic’s recollection was not very detailed. It is likely that the recollection of all witnesses was affected by the stressful and chaotic events that occurred as well as by the passage of time since those events. The recollections of police officers were recorded at a time more contemporaneous with the events due to the necessity to prepare documentation in the immediate aftermath of the incident as well as to prepare statements for the purposes of the criminal case against Mr Glavinic that arose from the incident.

150. While recognising that there were significant differences between the evidence given by the police officers, that evidence is to be accepted in preference to the evidence given by Mr Glavinic and Ms Williams. For reasons which are explained in detail below, I considered Mr Glavinic and Ms Williams’ evidence about the events surrounding the entry by police and the melee involving Mr Glavinic to be unreliable. As a result, it is not possible to accept their evidence concerning the actions of police where it conflicts with other evidence in the case.

Mr Glavinic

151. Mr Glavinic’s evidence was given earnestly but in my view reflects a detailed yet inaccurate reconstruction and embellishment of what occurred. He appeared to be intelligent and very well prepared to give evidence. The tendency towards reconstruction is likely to have been influenced by his pre-existing paranoid beliefs about police, the sense of injustice that he feels as a result of the consequences of the violent melee and his desire to achieve a successful outcome in the case. Leaving aside reconstruction, the reliability of his evidence is likely to be affected by his consumption of cocaine prior to the melee, his participation in the melee and the fact that he was sedated immediately after the events and remained under sedation until the morning of 15 July 2018.

152. Two particular features of the evidence which indicate its unreliability are the descriptions of being rendered unconscious and the description of conduct on the part of police indicating that they were making light of the situation in a way that was suggestive of malice on their part.

153. So far as unconsciousness is concerned, Mr Glavinic’s evidence was that, as a result of the police officers’ use of force, he was rendered unconscious on at least four occasions prior to an occasion which would coincide with the administration of ketamine by an ACT ambulance paramedic. This evidence involved an unrealistic level of detail as to what had occurred during a chaotic struggle recalled five years after the event. More significantly, it is unlikely that he was rendered unconscious on two different occasions prior to the time when he was handcuffed and yet continued resisting during that time in a manner which prevented four police officers from gaining enough control over his limbs to be able to handcuff him. If he had actually been rendered unconscious or his consciousness sufficiently affected to subdue him, then the police officers would have been able to handcuff him. Yet that did not occur, despite the best efforts of four police officers to do so.

154. So far as police officers making light of the situation, his evidence, if accepted, would indicate that the police were dealing with the circumstances in a light-hearted manner and maliciously tormenting him. That was illustrated by his evidence that: (a) First Constable Edwards was smiling prior to forcing entry into the property; (b) the police officers were laughing and joking at the time when Constable Tutt had been bitten on the upper thigh; (c) at the time police officers were lifting his head and banging it into the floor they were calling out “stop hurting yourself”; and (d) the police officers were laughing when they put the spit hood on him.

155. Obviously, if this evidence was accepted it would be very serious and reflect outrageous conduct on the part of the police officers. However, I do not accept that the police officers made light of the situation that they were facing or demonstrated the kind of malice directed towards Mr Glavinic that is reflected in his evidence. Rather, the evidence of the police officers about the circumstances of the interaction and their reaction to it indicates that they had simply been attending a routine callout where there was the possibility that some domestic violence had occurred. Unexpectedly, they became involved in a desperate and challenging struggle and one which they did not make light of at the time. So far as contemporaneous records are concerned, the gravity of the situation is reflected in what can be heard in Senior Constable Boxx’s radio call seeking urgent assistance (see [42] above). Mr Glavinic’s evidence that police were making light of the incident reflected, in my view, a paranoid reconstruction of the events that occurred.

Ms Williams

157. Ms Williams’ evidence mirrored some aspects of Mr Glavinic’s evidence. The following matters were aspects of her evidence that I considered were clearly unreliable and indicative of the general unreliability of her evidence: (a) That, at the point when she arrived, Mr Glavinic’s hand was already handcuffed behind his back. It is clear from the evidence of the police officers that she arrived close to the beginning of the incident, but that the left handcuff was only applied much later after Acting Sergeant Chapman arrived. (b) That she heard the electric sound when the Taser was first deployed. The rest of the evidence in the case indicates that the Taser did not work on that first occasion. (c) That she observed Mr Glavinic to go unconscious and quiet after his right hand was secured. This is inconsistent with the evidence of all police officers in the case. (d) That she saw a police officer other than First Constable Edwards deploy the Taser a second time. The evidence establishes that it was First Constable Edwards who used the Taser. (e) That she saw First Constable Edwards holding Mr Glavinic by the back of his hair and slamming his face into the tiles while saying “Stop fucking resisting” in a sarcastic or joking manner and giggling as though he thought it was funny. (f) Her description of the continuous beating for 10 to 15 minutes after the spit hood was placed on Mr Glavinic, set out at [84․5] above; (g) That somebody other than a paramedic administered an injection into Mr Glavinic’s feet. (h) She was intoxicated, having drunk most of two bottles of wine, done one line of cocaine and taken three Valium. This was likely to have affected the quality of her recollection.

158. While I considered her evidence as to her own bad behaviour prior to police arriving to be generally accurate, I consider that her evidence following the arrival of police is likely to be unreliable, affected by a sense of responsibility for what occurred and by a desire to advance Mr Glavinic’s claim against the police. That is consistent with her desire to retract the statement she made to police on 14 July 2018. I considered her evidence of unfair police conduct surrounding the making of the statement to be implausible having regard to the evidence of Acting Sergeant Chapman and Senior Constable Williams as to what occurred.

Mrs Glavinic

159. Mrs Glavinic’s evidence was more limited and impressionistic. At a number of points, her memory failed her. When giving her evidence she said that she was “frozen”. She said that she would have to go back there in her mind to recall matters. Often, she said “I don’t know how to answer that question”. I considered her evidence to be of limited value in determining the issues in dispute as to what occurred during the incident.

First Constable Edwards

160. First Constable Edwards was quite a sophisticated witness. His recollection was obviously and understandably affected by the passage of time and the chaotic circumstances surrounding the melee. He was well aware of the legal framework in which the police were operating. He was someone who would, in the context of this case, have understood at an early stage the legal significance of having heard a voice at the critical moment when he was at the door. As a result, in circumstances where Mr Glavinic, Ms Williams and Mrs Glavinic denied hearing any noise and none of his police colleagues heard any such noise, there is the potential that this aspect of his evidence was an invention designed to assist his claim that he was acting pursuant to s 190.

161. The other aspect of his evidence to which the plaintiffs paid particular attention was the evidence that he had conversations with Sergeant Wills outside the Magistrates Court when that court was dealing with criminal charges arising out of the incident. Although the CCTV footage from outside the Magistrates Court was consistent with there having been a discussion of some aspects of Sergeant Wills’ evidence, it was not established that there was anything of significance discussed or that First Constable Edwards engaged in any inappropriate conduct in his discussions with Sergeant Wills.

162. Overall, I considered that his evidence is likely to be reliable. Having regard to the fact that I did not consider Mr Glavinic or Ms Williams’ evidence to be reliable and that it is understandable that the other police officers may not have heard everything that was going on in the house due to where they were standing, I do not reject First Constable Edwards’ evidence that he heard another voice within the house prior to making his entry. Rather, it seems likely that there was something, such as hearing another voice, that triggered his decision to enter the premises immediately rather than persist in his attempts to speak to Mr Glavinic and Mrs Glavinic separately in order to find out what had been going on.

Constable Tutt

163. I considered that Constable Tutt’s evidence was generally reliable except in two respects. I was not confident that his evidence that, on both occasions that First Constable Edwards deployed the Taser, First Constable Edwards yelled “Taser, Taser, Taser”. Further, only Constable Tutt gave evidence of Mr Glavinic making an attempt to obtain Constable Tutt’s gun. There was some evidence from Senior Constable Boxx that Constable Tutt yelled that Mr Glavinic was going for his (Constable Tutt’s) gun, but he then saw Mr Glavinic grabbing First Constable Edwards’ (not Constable Tutt’s) gun. However, it was only Constable Tutt who gave evidence of an occasion, separate to that involving First Constable Edwards’ gun, that involved an attempt to grab Constable Tutt’s gun and him striking Mr Glavinic with his knees in response.

164. Notwithstanding my doubts about these aspects of the evidence, I did not consider that this should result in the rejection of his evidence on any specific issue that was of significance for determining the plaintiffs’ claims. I considered his evidence was generally consistent with that of the other police officers who gave evidence and inconsistent with the version of events propounded by Mr Glavinic and Ms Williams. I did not consider that my doubt about whether there was a separate occasion on which Mr Glavinic grabbed for a police officer’s gun indicated that he was not telling the truth when he said that he believed that this had occurred. Further, it did not lead me to conclude that the knee strikes that he subsequently made on Mr Glavinic were unreasonable in the circumstances that he faced.

Senior Constable Boxx

165. I found Senior Constable Boxx to be a credible witness. His evidence was corroborated to a degree by the audio of the radio call that he made seeking urgent assistance from other police officers during the melee.

Constable Hill

166. I found Constable Hill, the most junior of the police officers, to be a credible witness.

Conclusion as to what happened

167. Having generally accepted the evidence of the police officers in preference to the evidence of Mr Glavinic, Ms Williams and Mrs Glavinic where there was a conflict, it is possible to state in summary form my conclusions as to what occurred.

168. When Mr Glavinic opened the door for the second time, First Constable Edwards put his foot into the door so as to prevent it being closed upon him again.

169. Immediately prior to entering the premises, First Constable Edwards heard Ms Williams say something which led him to conclude that there was a third person in the premises.

170. As First Constable Edwards entered the premises, Mr Glavinic briefly grabbed his vest leading to the commencement of the melee.

171. During the melee: (a) Constable Tutt applied a one to two second burst of OC spray while Mr Glavinic was still standing. (b) First Constable Edwards used a seatbelt takedown to get Mr Glavinic to the ground. The seatbelt takedown did not involve any manoeuvre intended to make Mr Glavinic’s head hit the floor. (c) Mr Glavinic continued to violently struggle with the police officers before, during and after the seatbelt takedown. (d) Mr Glavinic dislodged First Constable Edwards’ gun so that it came partially out of its holster. (e) At about this time, Senior Constable Boxx made the radio call seeking urgent assistance. (f) Senior Constable Boxx deployed OC spray against Mr Glavinic but it did not disrupt his resistance. (g) Mr Glavinic bit Constable Tutt on the leg. (h) Senior Constable Boxx made a second radio call for urgent assistance. (i) Senior Constable Boxx used a baton to deliver closed strikes to Mr Glavinic’s shoulder region, not to the back of his head. (j) At some point prior to the arrival of other police officers, First Constable Edwards attempted to deploy the Taser in drive stun mode (not to Mr Glavinic’s groin) but the Taser did not work. (k) After additional police officers arrived, First Constable Edwards successfully deployed the Taser but it did not affect Mr Glavinic’s resistance. (l) Constable Tutt delivered several knee strikes to the side of Mr Glavinic’s chest. (m) After Acting Sergeant Chapman arrived, she and First Constable Edwards placed handcuffs on Mr Glavinic’s left hand. (n) After that, First Constable Edwards managed to control Mr Glavinic’s right arm and completed the process of handcuffing him. This was done in a controlled manner by First Constable Edwards. It was done without the cooperation of Mr Glavinic by First Constable Edwards using an underhook manoeuvre to bring the arm around to where it could be handcuffed. (o) Mr Glavinic continued to resist and call out up until the point where he was sedated. He called out words including “police brutality” and “help” and attempted to articulate the name of one of the police officers involved in the 2017 incident. (p) Mr Glavinic banged his head against the ground and Senior Constable Boxx ultimately placed a blanket under his head so as to minimise further injury. (q) A spit hood was applied by First Constable Edwards because Mr Glavinic was spitting blood from his mouth and it was ultimately removed by the ambulance officer. (r) Mr Glavinic only ceased resisting when the ambulance officer, Ms Swan, administered intramuscular ketamine.

Limitation defence based on s 435 of the Crimes Act

The defence

174. In each case, the defendants have pleaded that the plaintiff’s action is not maintainable because: (a) the proceeding was commenced more than six months after the facts pleaded in support of the claim were committed; and (b) notice of the claim was not given to each of the defendants at least one month before the commencement of the action.

175. The statutory provision relied upon to support this defence is s 435 of the Crimes Act. That section provides: 435 Protection of persons acting under Act (1) All actions against any person, for anything done, or reasonably supposed to have been done under this Act, shall be commenced within 6 months after the fact committed, and written notice of any such action, and of the cause of it, shall be given to the defendant 1 month at least before commencement of the action, and in any such action the defendant may plead the general issue, and give the special matter in evidence.

176. The section is available to be pleaded as a defence by the defendants either as part of the “powers” (which includes “immunities”) of police picked up by s 9(1)(b) of the AFP Act or by operation of s 64 of the Judiciary Act 1903 (Cth).

Legislative history of s 435

177. Section 435(1) has not been amended since the Territory was established in 1911, other than by some editorial changes and renumbering. As at the establishment of the Territory it was s 563. In 2001 it was renumbered and became s 435. It is therefore effectively the same as s 563 of the Crimes Act 1900 (NSW) (NSW Act) as that provision was first enacted.

178. Section 563 of the NSW Act was one of many special notice and limitation provisions operating in New South Wales up until 1977. They were the subject of the New South Wales Law Reform Commission’s Third Report on the Limitation of Actions: Special Protections (Report No 21, 1975). The Commission recommended that such provisions be repealed and that government authorities generally be placed in the same position as private entities. The New South Wales legislature implemented those recommendations by the Notice of Action and other Privileges Abolition Act 1977 (NSW). No equivalent action has been taken in the Australian Capital Territory.

179. When it was enacted, s 563 was not an innovation. Rather it was a re-enactment of s 450 of the Criminal Law Amendment Act 1883 (NSW) (1883 Act) which provided, relevantly: 450. All actions against any person for anything done or reasonably supposed to have been done in pursuance of this Act shall be commenced within six months after the fact committed and notice in writing of any such action and of the cause thereof shall be given to the defendant one month at least before commencement of the action and in any such action the defendant may plead the general issue and give the special matter in evidence thereupon …

180. That, in turn, was a product of the work of the Law Reform Commissioners who reported on the consolidation of criminal law in 1871. Included in their report was a draft bill which included cl 452 in the terms ultimately enacted in s 450 of the 1883 Act: Consolidation of the Criminal Law, first Report from the Commissioners Appointed to Inquire into Law Reform; together with Draft Bill (Government Printer, 1871). The President of the Law Reform Commission was Sir Alfred Stephen, the Chief Justice, and the secretary was Alexander Oliver.

181. At the time of the enactment of the 1883 Act, the late Stephen CJ and Alexander Oliver were responsible for the Criminal Law Manual published by the Government Printer which contained an annotated Act. In relation to s 450 the annotation included: Founded in some degree on the 11 and 12 Vict., c 44, sections 8 to 12. But that Statute embraces the case of Justices only. The present enactment extends to all persons acting, or reasonably supposing themselves to have acted, under this Act.

182. The reference to 11 and 12 Vict., c 44 is a reference to the Justices Protection Act 1848 (UK). The long title of that Act was “An act to protect Justices of the Peace from vexatious Actions for Acts, done by them in execution of their Office”. Sections 8 to 12 required a month’s notice to be given of an intended action against a Justice of the Peace. It prevented an action being brought in a County Court for anything done by the Justice of the Peace in the execution of their office and contained provisions relating to payment of money into court and confining any award of damages.

Relevant authorities

194. In Little v The Commonwealth (1947) 75 CLR 94, Dixon J considered the operation of a provision which provided that no action would lie against the Commonwealth or any Commonwealth officer, any constable or other person “acting in pursuance of this section in respect of any arrest or detention in pursuance of this section …” The discussion of the United Kingdom authorities and the conceptual issues to which they gave rise is a masterful exercise in synthesis and explanation. His Honour identified that protective provisions requiring notice of action and limiting the time within which actions may be brought “have long been common in statutes affecting persons or bodies discharging public duties or exercising authorities or powers of a public nature” (at 108). Such provisions, his Honour identified, have been construed as giving protection “where an illegality has been committed by a person honestly acting in the supposed course of the duties or authorities arising from the enactment” (at 108). That is because if the provisions of the statute had been followed, then the protection provided would be unnecessary. th th

195. His Honour engaged in a review of the authorities from the 18 and 19 centuries. He identified that it has not been easy to define the exact conditions which must be fulfilled to qualify for statutory protection, saying (at 109): Bona fides has been regarded as indispensable. But the difficulty has been to give such provisions an operation which, on the one hand, will not be so narrow that it goes little, if at all, beyond what is authorized by the substantive parts of the enactment, and, on the other, will not be wide enough to cover wrongful acts so outside the scope of the authority given by the statute that it can hardly be supposed that it was intended to protect those responsible.

196. His Honour recorded that some cases had included a requirement that “the defendant must have proceeded on reasonable grounds in supposing he was acting in pursuance of the statute”. However, his Honour ultimately concluded that the course of authorities recognised that it was sufficient that the belief was honest and that the existence of reasonable grounds was evidential only: at 111. His Honour accepted the statement from the second edition of Halsbury’s Laws of England: “A defendant who honestly intends to act in execution of a public duty may be protected although he acts in ignorance, or under a mistake, as to the law.” Dixon J then said (at 112): The truth is that a man acts in pursuance of a statutory provision when he is honestly engaged in a course of action that falls within the general purpose of the provision. The explanation of his failure to keep within his authority or comply with the conditions governing its exercise may lie in mistake of fact, default in care or judgment, or ignorance or mistake of law. But these are reasons which explain why he needs the protection of the provision and may at the same time justify the conclusion that he acted bona fide in the course he adopted and that it amounted to an attempt to do what is in fact within the purpose of the substantive enactment.

The proper interpretation of s 435

211. In my view, the language of s 435 “or reasonably supposed to have been done” involves a subjective question with an objective qualification as explained by Fisher J. It is a subjective question because it enquires as to what the person supposed they were doing. It involves an objective qualification because effect will only be given to what the person “supposed” they were doing if that supposition was reasonable. However, having regard to the purpose of the provision, it must accommodate circumstances in which the person has made a mistake of fact or law about, or in the purported exercise of, statutory powers. If that was not the case, then the provision would be of little or no utility.

212. This interpretation of the language of s 435 is consistent with what the drafter, Alexander Oliver, said in the annotations to s 450 of the Criminal Law Amendment Act. It is an interpretation which is inconsistent with the reasons of Franki J in Donaldson as his Honour (at 76) treated the expression as involving only a subjective test which would be satisfied by an honest belief. It thus left open the possibility that an honest but absurd or unreasonable belief would still lead to protection despite the use of the word “reasonably”. It is not inconsistent with the majority judgment of Deane J in Donaldson, although his Honour (at 137-138) described reasonableness as only to be enquired into as an element of determining the honesty of the belief. It is difficult to see how this should be the case in a statutory provision which contains an express standard of reasonableness and the authority that his Honour cited (Chamberlain v King (1871) LR 6 CP 474) is one which did not incorporate the statutory language that existed in the case before him. It is consistent with the explanation of the operation given by Fisher J in his dissenting decision in Donaldson.

213. In my view, these considerations are best accommodated by accepting that there is an objective qualification of reasonableness, but understanding that the requirement for reasonableness is simply to exclude honest beliefs that are absurd or colourable. The reference to the absurd is drawn from the judgment of Barton J in Duncan v Theodore (1917) 23 CLR 510 at 544 where his Honour referred to Lord Campbell’s statement in Spooner v Juddow (1850) 6 Moo PC 257 at 282; 13 ER 682 at 692. In other words, the requirement for reasonableness is a relatively low threshold, designed to eliminate the unreasonable. That such a low threshold is intended is made clear by the approach taken in the earlier authorities which sought to formulate a test that guarded against a wholly subjective test that would excuse absurd or unreasonable beliefs (see, for example, Cann v Clipperton (1839) 10 A & E 582 at 589; 113 ER 221 at 224, where Williams J attempted to formulate a test which lay “between a mere foolish imagination and a perfect observance of the statute”).

214. Such an interpretation makes sense in the context of the provision which is designed to protect people who have made mistakes about the law or the facts. In one sense, any belief in a wrong fact or a misunderstanding of the law could be characterised as being unreasonable. But to adopt such an interpretation would deny to the section its obvious purpose of protecting those who are honestly trying to exercise a power given under statute. It would only give the section a reasonable scope, consistent with the more generally worded protective provisions that have existed in other legislation, if the effect of the words “reasonably supposed to have been done” is only to exclude honest errors from protection in a significantly confined class of cases.

Application of s 435 in this case

215. Whether or not s 435 provides a defence to the defendants in the present case will depend upon whether the actions of the police officers fall within the scope of the expression “anything done, or reasonably supposed to have been done” under the Crimes Act. In the circumstances of this case, that depends principally upon the operation of ss 188 and 190 and the extent of any departure from the requirements of those sections when entry was made. It will also depend upon whether any use of force during the arrest would fall within the scope of the language of s 435. It is therefore necessary to examine those two issues before reaching a conclusion on the application of s 435. Defence based upon statutory right of entry

Introduction

216. In answer to the claim that the entry of police onto the premises amounted to a trespass, the defendants relied upon the power to enter premises given by ss 188 and 190 of the Crimes Act and also “under the general law”. The claim of a common law power to enter will be addressed later in these reasons.

217. The fundamental starting point is that unless authorised by law, the entry by police onto the dwelling of a citizen is unlawful and constitutes a trespass: Plenty v Dillon (1991) 171 CLR 635 at 639. The defendants contend that ss 188 and 190 of the Crimes Act provide legal authorisation for the entry made by the police officers in the circumstances that existed.

Statutory provisions

218. The terms of ss 188, 189 and 190 of the Crimes Act are as follows: Division 10.2 Preventative action 188 Police powers of entry A police officer may enter premises, and may take the action that is necessary and reasonable to prevent the commission or repetition of an offence or of a breach of the peace or to protect life or property— (a) when invited onto the premises by a person who is or is reasonably believed to be a resident of the premises for the purpose of giving assistance to a person on the premises who has suffered, or is in imminent danger of suffering, physical injury at the hands of some other person; or (b) under a warrant issued under section 189; or (c) in circumstances of seriousness and urgency, in accordance with section 190. 189 Issue of warrant (1) If a magistrate is satisfied, by information on oath, that— (a) there are reasonable grounds to suspect that a person on premises has suffered, or is in imminent danger of, physical injury at the hands of another person and needs assistance to prevent, or deal with, the injury; and (b) a police officer has been refused permission to enter the premises for the purpose of giving assistance to the firstmentioned person; the magistrate may issue a warrant in writing authorising a police officer, with the assistance that is necessary and reasonable and by the force that is necessary and reasonable— (c) to enter the premises specified in the warrant at any time within 24 hours after the issue of the warrant; and (d) subject to any conditions specified in the warrant, to take the action that is necessary to prevent the commission or repetition of an offence or of a breach of the peace or to protect life or property. (2) The police officer applying for a warrant shall give the further information about the grounds on which the warrant is sought, either orally on oath or by affidavit, that the magistrate requires. 190 Entry in emergencies A police officer may enter premises where the officer believes on reasonable grounds that— (a) an offence or a breach of the peace is being or is likely to be committed, or a person has suffered physical injury or there is imminent danger of injury to a person or damage to property; and (b) it is necessary to enter the premises immediately for the purpose of preventing the commission or repetition of an offence or a breach of the peace or to protect life or property. Legislative history

219. The provisions which are now ss 188-190 were originally inserted on 4 September 1986 by the Domestic Violence (Miscellaneous Amendments) Ordinance 1986 (ACT). That was an ordinance making amendments consequential upon the Domestic Violence Ordinance 1986 (ACT). The inserted provisions were ss 349A, 349B and 349C. The explanatory statement relating to the Ordinance said, in relation to the power, in what is now s 188, to enter upon invitation: “The section enables a police officer to enter premises when invited by any person, including a child, who is apparently a resident of the premises.” That reflected the terms of the provision as inserted. A subsequent amendment by the Crimes (Amendment) Ordinance 1987 (ACT) removed the word “apparently” and amended the provision so that it referred to a person who “is or is reasonably believed to be” a resident. In relation to the powers granted under what is now s 190, the explanatory statement for the 1986 Ordinance recited the terms of the provision and said: “This provision reflects the common law powers of police to enter premises without warrant.” The terms of ss 188-190 have not been amended except for renumbering since 1987.

Matters arising from the text of ss 188-190

220. There are a number of significant points which should be noted about the text of these provisions and the relationship between them.

221. First, as will be explained further below, each of these provisions was introduced into the legislation at the same time and, as a consequence, should be understood as part of a package of measures that are to be read together.

222. Second, s 188 is a somewhat unusual provision. The title indicates that it is articulating “Police powers of entry”. The paragraphs (a)-(c) do in fact refer to circumstances in which there is a power of entry. However, (b) and (c) are powers of entry given not by s 188 but by other provisions, namely, ss 189 and 190. Paragraph (a) is, however, a self-contained power of entry which is granted by s 188 itself.

223. Third, in addition to identifying in its paragraphs the circumstances in which police have a power of entry, the chapeau then identifies what police may do once that power of entry is exercised: “take the action that is necessary and reasonable to prevent the commission or repetition of an offence or of a breach of the peace or to protect life or property”. This is significant because it both grants and at the same time constrains the powers that may be exercised once an entry pursuant to the section has occurred.

224. Fourth, the chapeau is also significant for the power that it does not contain. It contains no power to enter for the purposes of investigating whether or not an offence has occurred. That is consistent with the fact that, insofar as the power relates to a breach of the peace or an offence, it does not extend to past offences that may be investigated. It only relates to the interruption or prevention of such matters (“prevent the commission or repetition”).

225. Fifth, notwithstanding the powers granted by the chapeau to s 188, when the power of entry is exercised pursuant to a warrant under s 189, the powers that may be exercised are not those under the chapeau, but those outlined in s 189(1)(d). That paragraph describes powers in the same terms as the chapeau, but makes them subject to “any conditions specified in the warrant”.

226. Sixth, the three paragraphs in s 188 may be summarised as: (a) invitation, (b) warrant or (c) in cases of “seriousness and urgency”, entry without invitation or warrant. So far as (c) is concerned, a question arises as to whether or not the reference to “circumstances of seriousness and urgency” involves a statutory precondition to the exercise of the power of entry that goes beyond the preconditions stated in s 190. In my view, those words must be given some substantive effect. Although, having regard to the terms of s 190, it might be thought that the circumstances identified in that section would generally involve circumstances of “seriousness and urgency”, that is not necessarily the case. The reference to “seriousness and urgency” ensures that s 190 excludes circumstances which are either not “serious” or do not require urgent action on the part of police.

Application in the circumstances of this case

237. I am satisfied that each of the relevant officers held the belief that it was necessary to enter the premises immediately for some or all of the reasons set out in s 190. Each was aware of the power of entry in s 190. Each believed there was power to enter under that provision. The critical question is whether or not there were “reasonable grounds” for such a belief.

238. Each officer articulated their belief somewhat differently.

239. First Constable Edwards articulated his belief as being that a family violence offence had occurred and that it was necessary to enter the premises to prevent the continuation of the offence or to protect the safety of the female he had heard.

240. Senior Constable Boxx said that he thought that an offence was occurring and that someone had suffered harm, and that he believed it was necessary to enter the residence and confirm the safety of all persons in the residence.

241. Constable Hill said he believed a family violence offence had been committed and that it was necessary to make sure nobody was seriously injured.

242. Constable Tutt gave a rather formulaic explanation of his belief, reflecting a belief that there was either an offence or a breach of the peace or physical injury to someone and that it was necessary to enter to prevent the commission or repetition of the offence or to protect life or property.

243. The relevant sources of information available to police that might provide reasonable grounds for a belief under s 190 were: (a) the first radio transmission; (b) the second radio transmission; (c) police observations of Mr Glavinic and Mrs Glavinic; (d) what police were told by Mr Glavinic at the front door; (e) the female voice heard by First Constable Edwards; and (f) what, if anything, First Constable Edwards told the other police officers.

244. It is clear that First Constable Edwards had the most information, being the one who communicated directly with Mr Glavinic, who was closest to the door and who heard the female voice. While Constable Tutt and Senior Constable Boxx had seen things that First Constable Edwards had not seen when they looked down the side of the house, that additional information was not information which would increase the likelihood of there being reasonable grounds. It is therefore possible to consider the question of reasonable grounds on the basis most favourable to the defendants, namely by considering the grounds for First Constable Edwards’ belief.

245. Suspicion and belief are different states of mind: George v Rocket (1990) 170 CLR 104 at 115. Suspicion “is a state of conjecture or surmise where proof is lacking”: Hussein v Chong Fook Kam [1970] AC 942 at 948, quoted in George v Rocket at 115. Suspicion is “a slight opinion but without sufficient evidence”: Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266 at 303, quoted in George v Rocket at 115.

Defence based upon common law right of entry

261. The defence raised by the defendants based upon a common law entitlement to enter is not one which is directly relevant to the limitation defence under s 435 because it seeks to invoke a common law power rather than one under the Crimes Act. However, it is convenient to deal with it at this point.

262. The defence was only the subject of minimal submissions. The defendants did little more than point to the decision in Kuru v New South Wales [2008] HCA 26; 236 CLR 1. In that case, the High Court referred to, but ultimately did not need to resolve, the scope of the common law power of entry into private premises. The judgment of a majority of the court said (at [40]): The common law has long recognised that any person may justify what would otherwise constitute a trespass to land in cases of necessity to preserve life or property. The actions of fire-fighters, police and ambulance officers will often invoke application of that principle. There being no evidence of danger to life or property, it was not suggested that this was such a case.

263. The authority relied upon for that proposition was Maleverer v Spinke (1538) 1 Dyer 35b at 36b; 73 ER 79 at 81: Yet we will well agree that in some cases a man may justify the commission of a tort, and that is in cases where it sounds for the public good … So also is it, if the sheriff pursue a felon to an house, and in order to take him break open the doors of the house, this is justifiable, because it is for the public good that such felons should be taken.

264. Later in Kuru (at [43]): As was pointed out in this Court's decision in Plenty v Dillon, it is necessary to approach questions of the kind now under consideration by recognising the importance of two related propositions. First, a person who enters the land of another must justify that entry by showing either that the entry was with the consent of the occupier or that the entrant had lawful authority to enter. Secondly, except in cases provided for by the common law and by statute, police officers have no special rights to enter land. And in the circumstances of this case it is also important to recognise a third proposition: that an authority to enter land may be revoked and that, if the authority is revoked, the entrant no longer has authority to remain on the land but must leave as soon as is reasonably practicable. (Citations omitted.)

265. The court recognised (at [46]-[47]) that the scope of the common law power of entry was not free from difficulty: Argument in this Court about an asserted common law justification for the police officers remaining in the appellant's flat necessarily referred to general statements made in decided cases, about "preventing" a breach of the peace, especially some statements on that subject made in the decision of a Divisional Court of the King's Bench Division in Thomas v Sawkins [[1935] 2 KB 249]. Particular emphasis was given to two statements in that case. First, Avory J said that "[t]o prevent ... a breach of the peace the police were entitled to enter and to remain on the premises". Secondly, Lord Hewart CJ said that "a police officer has ex virtute officii full right [to enter and remain on private premises] when he has reasonable ground for believing that an offence is imminent or is likely to be committed". It is to be noted that neither of these statements countenances an entry or remaining on premises for investigating whether a breach of the peace has occurred or determining whether one is threatened or imminent. Nothing else that was said in Thomas v Sawkins would support such a power and no reference was made to any decision that would cast the power so widely. Rather, the focus of what was said in Thomas v Sawkins was upon prevention of a breach of the peace, not upon any power of investigation. (Citations omitted.)

No use of unreasonable force

274. The final component of Mr Glavinic’s claims was that even if the entry by police was lawful either by reason of the provisions of the Crimes Act or, alternatively, by reason of the common law power of entry, then the police officers exceeded their lawful powers of arrest by using excessive force during the course of the melee and hence committed a battery.

275. I have rejected earlier in these reasons those aspects of Mr Glavinic, Ms Williams and Mrs Glavinic’s evidence which indicated malicious or gratuitous use of force directed to Mr Glavinic. While there is no doubt that the struggle was desperate and violent, I am not satisfied that the police officers deployed force which was unreasonable so as to take them outside the scope of s 221 of the Crimes Act, which prohibits the use of “more force” than “is necessary and reasonable to make the arrest”. Rather, while accepting the violent and desperate nature of the struggle, the police exercised a degree of restraint consistent with their training.

276. So far as the application of s 435 is concerned, having rejected the claim of unreasonable force, the only other basis for the arrest being unlawful was that it followed from an unlawful entry, that is, a trespass by the police. Given my earlier conclusions as to the application of s 435 to the entry to the premises and the fact that, had the entry been lawful, police would clearly have been entitled to arrest Mr Glavinic for hindering or obstructing them following their entry, the conduct of each of the police officers in arresting Mr Glavinic and using force to do so fell within the scope of s 435. It was conduct which was “reasonably supposed to have been done” under s 212 of the Crimes Act, which is the statutory power to make the arrest.

Conclusion on liability

277. The claim made by Mr Glavinic appeared to adopt the following chain of reasoning: (a) the entry by police onto the premises amounted to a trespass; (b) Mr Glavinic was lawfully entitled to resist the entry of trespassers and hence police could not have had reasonable grounds to suspect that he was obstructing them; and (c) because of this, police were not entitled to arrest him and their conduct amounted to a battery and subsequently an unlawful detention.

278. This chain of reasoning would require some consideration of whether or not the arrest could be lawful even if the entry was unlawful. Mr Glavinic would need to contend that if the entry amounted to a trespass, a police officer would not have reasonable grounds to suspect that he (Mr Glavinic) was hindering them “in the exercise of [the police officer’s] functions as a public official” for the purposes of a charge under s 361 of the Criminal Code 2002 (ACT) because the officer’s functions did not extend to an unlawful trespass.

279. Subject to the limitation defence, the submissions of the parties have proceeded on the basis that liability would be established if the entry was unlawful, counsel for the plaintiffs saying in opening, “I apprehend from my discussions with [counsel for the defendants] he agrees, if your Honour finds that the entry was unlawful, it does not matter about the arrest because everything that followed from thereafter was without legal cause and justification”.

280. The alternative basis for liability, which was not dependent upon the initial entry being unlawful, was that the police officers used more than the “necessary and reasonable” force permitted by s 221 of the Crimes Act during the course of the arrest and hence, to the extent to which that was the case, the actions of the officers amounted to a battery.

281. My conclusion above is that the entry by each of the officers was not justified by ss 188 and 190 of the Crimes Act and not justified by the common law. However, I conclude that the actions of police in entering the premises were within the scope of the protective provision in s 435 of the Crimes Act. I reject the submission made on behalf of the plaintiffs that the common law causes of action relied upon do not fall within the scope of “all actions against any person, for anything done, or reasonably supposed to have been done” under the Crimes Act. That is because I have concluded that: (a) the actions of the police officers when entering the premises were actions “reasonably supposed to have been done under” ss 188 and 190 of the Crimes Act; and (b) the actions taken by the police officers in arresting Mr Glavinic and their use of force to do so were actions “reasonably supposed to have been done” under s 212 of the Crimes Act.

282. The claim that each plaintiff was under a disability pursuant to s 30 of the Limitation Act 1985 (ACT) was not pressed. Although each plaintiff’s Reply impliedly sought an extension of time under s 36 of the Limitation Act, no submissions were made in support of such application and: (a) by reason of s 4 of the Limitation Act, s 36 has no application to the limitation period set by s 435 of the Crimes Act; and (b) in any event, no evidence was led which would provide a proper basis for the granting of such an extension.

Additional conclusions on liability

284. Although, having regard to the conclusion reached above it is strictly unnecessary to do so, the following additional matters should be noted. Mrs Glavinic’s trespass claim

285. Mrs Glavinic’s claim of damages for trespass would have failed because she had no immediate right to possession. She was not a lessee of the premises. So far as the evidence disclosed that she was a mere licensee, without a legal right to possession she is unable to sue in trespass: Western Australia v Ward [2002] HCA 28; 213 CLR 1 at [502]-[504] (McHugh J).

The claims for nervous shock

286. The claims by Mrs Glavinic and Ms Williams for “nervous shock” were inadequately pleaded. The identification of the cause of action did not make it clear whether it was an action on the case for damages for nervous shock based on Wilkinson v Downton [1897] 2 QB 57 or a cause of action in negligence. As there was no pleading of an intention to inflict nervous shock, it can be inferred that the intention was to plead a cause of action in negligence or under s 36 of the Civil Law (Wrongs) Act 2002 (ACT) (CLW Act).

287. The final submissions identified that the claims by Mrs Glavinic and Ms Williams were under s 36 of the CLW Act. That there was a basis upon which liability may be established was consistent with the way the parties conducted the hearing.

288. On 9 October 2023, well after the conclusion of submissions and the reservation of the court’s decision, the Commonwealth identified that it wished to make submissions as to whether, and if so how, the CLW Act, including s 36, applied to the defendants for the purposes of the proceedings. No issue had previously arisen as to the application of the provisions of the CLW Act. The issue was one not raised on the pleadings and had not been an issue during the course of the running of the case. The parties had proceeded on the basis that the provisions of the Act, to the extent that they were relevant, could apply. At the time that the request was made to file further submissions, the Commonwealth had not formulated its own position. There was a hearing on 16 October 2023 and a timetable was set for the filing of submissions.

289. The Commonwealth subsequently filed submissions in which it accepted that ss 36 and 100 of the CLW Act applied to the Commonwealth in the proceedings. The essential contentions put forward by the Commonwealth were that the CLW Act did not apply of its own force but, instead, applied because the proceedings involved an exercise of federal jurisdiction and s 64 of the Judiciary Act applied the provisions of ss 36 and 100 of the CLW Act to the proceedings. It contended that s 48A of the Australian Capital Territory (Self-Government) Act 1988 (Cth) was not, of itself, a source of jurisdiction which would result in the proceedings being characterised as being within federal jurisdiction. The plaintiffs provided submissions in response contending that there was no controversy for the court to determine. They submitted that the court should be satisfied that the CLW Act applies but need not be satisfied of the particular path of reasoning.

290. Having regard to the conclusions that the proceedings must be dismissed for other reasons, it is strictly not necessary for the applicability of the CLW Act to be determined. Had the proceedings not been dismissed for other reasons, I would have been satisfied that the CLW Act applied but would not have found it necessary to determine by which jurisdictional route that came about in circumstances where the issue was not necessarily straightforward and there was no properly motivated contradictor.

Contingent assessment of damages

292. Notwithstanding that I will give judgment for the defendants, in case I have erred in reaching that conclusion, I will undertake a contingent assessment of damages in relation to each of the plaintiffs.

Contingent assessment of damages – Justin Glavinic

Introduction

293. The contingent assessment of damages is based upon the assumption that the claim was not barred by the operation of s 435 of the Crimes Act and that the entry was not justified by s 190 of the Crimes Act. If entry was not justified by s 190, then that would result in police officers being trespassers and Mr Glavinic would have been entitled to use reasonable force to resist their entry. As pointed out above, there might have been an issue about the entitlement to make an arrest even if the entry was unlawful. However, the manner in which the parties conducted the case indicated that the defendants accepted that if the entry was unlawful then, subject to the successful limitation defence, liability to Mr Glavinic for damages would be established.

294. The nature of the damages claimed involved damages for trespass to property, trespass to the person, damages for the immediate harm done and damages for consequential harm. So far as the personal injury component of the claim is concerned, in the present case, that includes damages for: (a) the immediate personal distress as a result of the assault; (b) wrongful imprisonment; (c) the physical injury and the costs and consequences of treating those injuries; (d) the diagnosed psychiatric injuries as a consequence of the assault; (e) an increased need for household support; and (f) past and future economic loss as a result of physical and psychological injuries.

295. These damages must be assessed by reference to the counterfactual. The appropriate counterfactual analysis assumes that, having regard to the circumstances in which the police attended the premises, namely a report consistent with domestic violence, the police would not have left without speaking to Ms Williams. That is likely to have elicited the complaint which she in fact made to police on the evening, namely that Mr Glavinic had destroyed her phone. That in turn would have led to Mr Glavinic being arrested having regard to the AFP’s “pro arrest” policy. In those circumstances, he is likely to have been taken into custody and released on bail later that day.

Trespass to property

296. For the bare trespass to property I would have awarded damages of $5000.

Injuries suffered

297. Following Mr Glavinic’s removal from the premises to the Canberra Hospital on 14 July 2018, he was admitted to the ICU. He was intubated and sedated. He remained handcuffed and under police guard. The next day, his sedation was reduced and his intubation was removed. He continued to be handcuffed or otherwise restrained. He remained under police guard. A bedside hearing occurred on 16 July 2018 at which he was charged and remanded in custody. He was then transferred to a general ward in the hospital and remained under the guard of corrections officers. He was either handcuffed or restrained. That evening he was readmitted to the ICU with worsening renal function. He required dialysis that day, and on 17 and 18 July 2018. On 19 July 2018, he was transferred to a general ward. He continued to be handcuffed or restrained and under the guard of corrections officers until 26 July 2018, when he was removed to the Alexander Maconochie Centre (AMC). On 4 August 2018, he was released on bail and remained on bail conditions until the conclusion of the criminal case on 19 February 2020.

298. On 6 August 2018, he saw Dr Tsai, an orthopaedic surgeon, in relation to his right shoulder. On 8 August 2018, Dr Tsai recommended urgent surgery. That occurred on 13 August 2018 and involved a repair of his subscapularis tendon. He had a second surgery on 24 May 2019. This involved an arthroscopic repair of his left shoulder by Dr Biggs.

299. The criminal charges arising from the incident on 14 July 2018 were heard over four days from 30 July 2019 to 2 August 2019, and a further two days on 19 and 20 February 2020. Five of the charges were dismissed on day five of the hearing when the prosecution led no evidence to support the allegations. Of the remaining two charges one was dismissed. The final charge relating to the mobile phone resulted in a finding of guilt with no conviction recorded.

300. Mr Glavinic received Jobseeker payments and then the Disability Support Pension. He received psychological treatment from Dr Christie between August 2018 and October 2021. It was Dr Christie who prepared a report in support of Mr Glavinic’s application for a disability support pension recording a diagnosis of Post-Traumatic Stress Disorder (PTSD) which had not improved within three years and was not likely to improve within the next two years. He has seen another psychiatrist, Dr Blanch, in 2021 and 2022. He continued to see Dr Biggs in relation to his shoulder and had a third operation on his shoulder on 15 July 2021.

301. The expert orthopaedic evidence of Dr Ridhalgh and Dr Tomlinson indicates that Mr Glavinic suffered, as a result of the incident: (a) a posterior dislocation of the right shoulder with an acute tear of the subscapularis tendon with consequential instability; (b) a left rotator cuff tendinosis/bursitis in his left shoulder; and (c) investigations which were consistent with bilateral carpal tunnel syndrome although the symptoms were fairly minor.

General damages

304. When one compares what was likely to have occurred on the evening of 14 July 2018 and in the days, weeks, months and years following, had the police merely arrested Mr Glavinic for damage to the phone pursuant to the counterfactual analysis, the grave extent of the damage suffered is apparent. The significant matters which would go towards an order of general damages are for wrongful imprisonment, infliction of significant injuries upon him, the necessity for immediate treatment of those injuries, the consequential loss of liberty while detained in hospital and subsequently while detained at the AMC, the requirement to have medical treatment over the subsequent years and the infliction of a long-term disability, disabling him from working in his previous profession as a painter with consequences for his identity and purpose in life. Recognising that the assessment of general damages is ultimately a matter for the court, the parties were invited to include, in the schedule of damages provided as part of their final submissions, a submission as to the appropriate level of general damages. The plaintiff’s and defendants’ submissions were $250,000 and $200,000 respectively. In my view, the circumstances would warrant an award of $300,000.

305. Having regard to the traumatic nature of the events in question and the three surgeries endured by the plaintiff since then, that amount would be allocated $200,000 to the past. That would give an award of interest in the amount of $21,600 (5.4 x 0.02 x $200,000).

Economic loss Past economic loss

306. Prior to these events, Mr Glavinic was working in his own business as a painter. His taxable income in the preceding three financial years was $91,337, $159,292 and $182,106. He has not returned to work as a painter since the incident. The expert evidence indicates that he is unable to do so. The only matter that would otherwise have detracted from his capacity to earn would be the condition that arose from his earlier interaction with the police in 2017. Whether or not that would have manifested itself in a reduction in earning capacity is uncertain. That was certainly not the case in the year following the incident, the 2017-2018 financial year, during which his level of earnings reflected a very successful business. I do not accept the submission that the pre-existing condition arising from the 2017 incident warrants any substantial departure from the level of earnings evidenced in the preceding years. A source of moderation in the award is achieved by averaging his taxable income over the previous three years. This recognises that his earnings as a sole trader were significant and may not have been maintained at the high level demonstrated in the 2017-2018 financial year.

307. The submissions of the plaintiff derived a net weekly earnings figure based upon the two previous financial years rather than the three previous financial years. The effect of this was to generate a higher figure than would be arrived at by averaging over the three previous financial years. Given the relative newness of the business, the significant income being earned and the fact that Mr Glavinic was a sole trader who had the capacity to control his level of work, it is safer to adopt the three year average for the purposes of assessing economic loss. That takes into account that he may have chosen, over the longer term, to not work at the level that generated maximum income.

308. Further, the submissions of the plaintiff did not take into account the liability for the Medicare levy and surcharges indicated in the Australian Taxation Office notices of assessment.

309. Mr Glavinic’s income was as follows:

Financial Taxable income Tax payable Net income Net weekly Year income 2015-2016 $91,337 $23,568 $67,769 $1303 2016-2017 $159,292 $52,145 $107,147 $2061 2017-2018 $182,106 $59,648 $122,458 $2355

310. Adopting the average of his taxable income in the three financial years prior to the incident would result in an after-tax income of approximately $99,125 per year or $1906 per week. This gives a past loss of income of $535,586 (281 weeks at $1906 per week). Interest on this amount at Court Procedures Rules 2006 (ACT) rates is $74,783.

Future economic loss

311. So far as the future is concerned, the orthopaedic evidence indicates that Mr Glavinic will not return to manual work, particularly as a painter. However, he indicated in his evidence that he was motivated to return to work if suitable work was available.

312. There was a dispute as to the extent to which his psychological condition results in a loss of earning capacity. On that issue the competing evidence was that of Dr Foxcroft and Dr Ventura.

313. In her first report, Dr Ventura concluded that Mr Glavinic suffered from PTSD. She found that this was caused initially by the 2017 altercation with police, but his condition deteriorated after the July 2018 incident. She characterised what had occurred in 2018 as an exacerbation of the existing PTSD. This was directly related to the incident. She described it as moderately severe and chronic.

314. However, in her second report of May 2023, Mr Glavinic failed to respond to open-ended questions and Dr Ventura was unable to elicit reports of any specific symptoms. She concluded that he was evasive in his history and did not cooperate fully with a psychiatric assessment. His thought content revealed numerous inconsistencies in his history. As a consequence, she was unable to make a formal psychiatric diagnosis.

315. Dr Foxcroft described Mr Glavinic as “a vague and rambling historian at times” and suggested that this was evidence of impaired concentration. Dr Foxcroft considered that although, as a result of the 2017 incident he likely qualified for a diagnosis of PTSD, by July 2018 it was in remission. Based on the history that he was given, Dr Foxcroft made a diagnosis of PTSD. He expressed the opinion that Mr Glavinic was totally incapacitated for work, having anxiety symptoms, flashbacks and panic attacks. He considered that his impairment for work was likely to continue for the foreseeable future. He considered that the likelihood of treatment improving his condition so that he was able to return to work would be low. He disagreed with the opinion expressed by Dr Ventura that Mr Glavinic’s condition would improve with treatment.

316. In oral evidence, Dr Foxcroft said that as at July 2018 he had some residual symptoms of PTSD from the 2017 incident. He described Mr Glavinic subsequent to condition as an exacerbation and continuation of the earlier condition. However, he said there was no functional impairment. Dr Ventura agreed that if he was working and his interpersonal relationships were not impaired as a result of the 2017 incident, then the 2018 incident was a major exacerbation of his condition.

317. I consider that both doctors were giving evidence to the best of their ability. Dr Foxcroft’s approach accepted the reliability of the history that he was given. Dr Ventura’s approach in her second report reached the conclusion that the history that she was being given was unreliable.

318. Having regard to my own conclusions as to the unreliability of certain aspects of the evidence given by Mr Glavinic, I consider that the evidence of Dr Foxcroft is affected by that unreliability. I do not accept that it is possible to reliably reach the conclusion as to the extent of Mr Glavinic’s PTSD or its consequences for his ability to work. I consider that while, having regard to his personality and the nature of the incident, he is likely to suffer from that disorder, I cannot be satisfied on the balance of probabilities that he will remain without any working capacity for the foreseeable future as a consequence of his psychological (as distinct from physical) condition.

Out-of-pocket expenses Past out-of-pocket expenses

327. Past out-of-pocket expenses are subject to an agreement between the parties. It is agreed that they are $44,602.39. Both parties accepted that interest would be payable on that amount. Both parties agreed that the relevant rate of interest would be four percent, although the defendants’ calculation reduced it to two percent based on the assumption that the expenses were paid throughout the period. The submissions of the parties did not identify why an interest rate of four percent would be applicable, as distinct from the Court Procedures Rules rates. Had this assessment not been a contingent one, I would have required the parties to make further submissions as to: (a) the liability for interest, having regard to the fact that it is likely that a substantial portion of the agreed amount involves amounts that were paid by Medicare; (b) the rate of interest that was applicable; and (c) whether interest should be calculated on the assumption that payments were made over the whole of the period or in some other way.

Future out-of-pocket expenses

328. In relation to future out-of-pocket expenses, the plaintiff claimed damages based upon: (a) the evidence of Dr Foxcroft; (b) fortnightly sessions for at least three years with a psychologist or psychiatrist; (c) a buffer of $10,000 for ongoing pharmacotherapy; and (d) a buffer for ongoing psychotherapy for maintenance and during periods of exacerbation.

329. In relation to physical injury, the plaintiff claimed $5000 to $10,000 for shoulder surgery at some point in the future and a buffer of $5000 for physiotherapy or exercise physiology. The quantum of this claim was based upon the evidence of Dr Tomlinson, Dr Biggs and Dr Ridhalgh.

330. The aggregate of the amounts referred to in the plaintiff’s written submissions was $37,976 plus a buffer of $10,000-$15,000 giving between $47,976 and $52,976.

331. The submissions made on behalf the defendants were that, of the particularised claim of $213,939, the court should allow $45,167. The matters in relation to which damages should be awarded differed in some respects from those referred to in the plaintiff’s submissions. In particular, they included an amount for shoulder replacements which was substantially greater than the amount referred to in the plaintiff’s submissions.

332. Although no surgical intervention was indicated currently, there is a chance that he may require shoulder arthroplasty surgery in the future. The defendants’ submissions accepted that this was attributable to the 2018 incident.

333. The award of damages for future out of pocket expenses would be as follows: (a) $6240 for fortnightly physiotherapy for two years. (b) An amount of $10,000 as a result of the chance of requiring shoulder surgery in the future. (c) Additional general practitioner visits at the rate of two additional visits per year for the rest of Mr Glavinic’s life, giving an amount of $3779. I accept that there is a prospect of an increase of this order in his requirement to attend his general practitioner and the amount claimed is reasonable in the circumstances. (d) So far as psychiatric treatment or medications are concerned, I would have allowed an amount of $8000 for treatment by either a psychologist or psychiatrist. I do not consider that an award as large as that suggested by Dr Foxcroft is warranted having regard to my concerns about the reliability of the history given by Mr Glavinic. (e) $10,000 on account of future medication requirements. The evidence on this was limited, Dr Foxcroft indicating an amount of $30 when obtained as part of the pharmaceutical benefits scheme. The cost outside that scheme was not identified.

334. The total award for future out-of-pocket expenses would therefore be $38,019 ($6240 + $10,000 + $3779 + $8000 + $10,000). Domestic assistance

335. There was not a great deal of difference between the parties in relation to past domestic assistance. In submissions, each accepted the need for significant care during his periods of convalescence and following surgery. In some respects, the calculations made on behalf of the defendants were more generous in terms of rates but for lesser periods than those contended for by the plaintiff. The periods of convalescence following the surgeries were 12 weeks, eight weeks and eight weeks, a total of 28 weeks. The evidence of Ms Williams indicated that Mr Glavinic received higher levels of assistance from her for a period of eight weeks following those surgeries. Ms Williams estimated this at five to six hours per day. Mr Glavinic said it was a “couple of hours a day”. It involved substantial assistance including shower and personal care needs.

Aggravated and exemplary damages

342. The plaintiff claimed both aggravated and exemplary damages.

343. In Lamb v Cotogno (1987) 164 CLR 1 at 8 the judgment of the court explained that: Aggravated damages, in contrast to exemplary damages, are compensatory in nature, being awarded for injury to the plaintiff’s feelings caused by insult, humiliation and the like. Exemplary damages, on the other hand, go beyond compensation and are awarded “as a punishment to the guilty, to deter from any such proceeding for the future, and as a proof of the detestation of the jury to the action itself”: Wilkes v Wood per Pratt LCJ. (Citation omitted)

344. In NSW v Ibbett [2006] HCA 57; 229 CLR 638 at [31] the judgment of the court provides: Aggravated damages are a form of general damages, given by way of compensation for injury to the plaintiff, which may be intangible, resulting from the circumstances and manner of the wrongdoing. (Footnote omitted)

345. In Lamb v Cotogno at 9, the judgment of the court approved Brennan J’s formulation in XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 (at 471): As an award of exemplary damages is intended to punish the defendant for conduct showing a conscious and contumelious disregard for the plaintiff’s rights and to deter him from committing like conduct again, the considerations that enter into the assessment of exemplary damages are quite different from the considerations that govern the assessment of compensatory damages … The social purpose to be served by an award of exemplary damages is … ‘to teach a wrong-doer that tort does not pay’.

346. The court continued (at 9): The object, or at least the effect, of exemplary damages is not wholly punishment and the deterrence which is intended extends beyond the actual wrongdoer and the exact nature of his wrongdoing … It is an aspect of exemplary damages that they serve to assuage any urge for revenge felt by victims and to discourage any temptation to engage in self-help likely to endanger the peace …

347. I would have made no separate award of aggravated damages. The award for general damages incorporates compensation for the intangible injuries to the plaintiff arising from the circumstances, as I have found them to be, of the trespass, his arrest and the circumstances that followed from that. It is not necessary to make a separate award in relation to those consequences.

348. So far as exemplary damages are concerned, I would have made no award for exemplary damages. The findings that I have recorded above do not involve, in the case of any of the plaintiffs, a “conscious and contumelious disregard for the plaintiff’s rights”. Rather, they involved a misunderstanding of the scope of police powers of entry in particular circumstances and the unfortunate consequences of the entry into the premises. The conduct of the police officers did not involve any conscious wrongdoing. It was not “high-handed”, “outrageous” and did not demonstrate “contempt for the rights of others”: State of New South Wales v Riley [2003] NSWCA 208; 57 NSWLR 496 at [138]. The commission of the tort of false imprisonment does not of itself constitute a conscious and contumelious disregard of the plaintiff’s rights giving rise to an entitlement to exemplary damages: State of New South Wales v Delly [2007] NSWCA 303; 70 NSWLR 125 at [25], [117]. Thus, while the circumstances would require a very substantial award of compensatory damages, they do not require an award of exemplary damages.

Summary

349. The damages that would have been awarded are summarised in the following table.

Component Amount Damages for trespass $5000 General damages $300,000 Interest on general damages $21,600 Past economic loss $535,586 Interest on past economic loss $74,783 Future economic loss $894,395 Past out-of-pocket expenses $44,602 Interest on past out-of-pocket Not calculated Future out-of-pocket expenses $38,019 Past domestic assistance $93,600 Interest on past domestic assistance $13,094 Future domestic assistance $58,000 Total $2,078,679.00

Contingent assessment of damages – Heather Williams

Introduction

350. Notwithstanding the fact that I have not accepted that Ms Williams’ evidence as to what she observed during the 2018 incident is accurate, her evidence about the consequences of the incident is substantially corroborated by documentary records and provided an appropriate foundation for the opinion of Dr Jungfer, which I accept.

351. The evidence disclosed that she has a complicated psychiatric history described in the report prepared by Dr Jungfer. [One sentence redacted]. She has a history of depression, a diagnosis of Borderline Personality Disorder and alcohol abuse. Since 2012, she has had a number of dissociative episodes such as that which occurred on the evening of 13 July 2018.

352. She left school at the end of Year 10. Between 2010 and April 2016, she worked in a large number of different jobs in Canberra. She moved briefly to Newcastle in 2012, but returned to Canberra when the job that she had ended. In April 2016, she joined the Commonwealth public service as an APS3. From the middle of 2017, she moved to a Commonwealth agency where, after a time, she became executive assistant to the head of the organisation. She held that position at the time of the 2017 incident. Following the 2017 incident, she moved jobs to a different Commonwealth agency where she was the executive assistant to the chief information officer.

353. She was off work for six weeks following the 2018 incident. She continued to have nightmares about the incident. She found that she was forgetful and exhausted at work. A general practitioner prescribed her drugs for anxiety and insomnia. She was downgraded to an executive assistant’s assistant. In 2020, she was demoted from that position to a “regulatory officer”, a new role that was different to being an executive assistant. She found that she could not absorb the information and made mistakes in doing the audits that she was required to do for her job. She was subject to a process of performance management and managed to keep her job. However, in January 2022 she was advised by her doctor to reduce her workload to three days a week. She was working from home with an obligation to attend the office either once a fortnight or once a month. She ultimately resigned from the public service in May 2023.

354. She said she started drinking heavily after the 2018 incident. She gained 27 or 28 kg during 2019 and 2020. She attended a private hospital for a three week stay in 2020 after which she ceased drinking for a period of six months. [One sentence redacted].

355. The documentary evidence is consistent with the July 2018 incident having a significant effect upon her from the time that it occurred. She received treatment from her general practitioner, psychologists and psychiatrists in the second half of 2018 and in 2019. In 2019, she was diagnosed with PTSD arising from the incident.

356. Dr Jungfer reached the conclusion that she did not have pre-existing PTSD. The effect of the earlier traumas in her life was to lower the threshold for the development of such a disorder. The 2018 incident was the cause of the onset of PTSD. It resulted in a worsening of her Alcohol Use Disorder. It was not causally related to the Borderline Personality Disorder. Trespass to property

General damages

358. The effect of the 2018 incident came against the background of a significant level of vulnerability as a result of Ms Williams’ personality structure and previous trauma. It has had very significant impacts upon Ms Williams resulting in an ongoing condition of PTSD and a worsening of her Alcohol Use Disorder. These conditions have in turn had significant consequences for her capacity to work. When assessing the counterfactual situation in which the incident had not occurred, there was a significant risk as a result of her pre-existing Alcohol Use Disorder that events in her life would have adversely affected her mental state and work life in any event. That is made clear by the evidence of her behaviour on the evening in question which clearly demonstrated a significant level of dysfunction. Her prognosis for the future is uncertain. There would be some prospect that, following the conclusion of the litigation and further treatment, she would be able to make progress towards her previous level of functioning. I would have awarded general damages in the sum of $160,000. Attributing half of that to the past and half to the future gives interest of $8640 (5.4 x 0.02 x $80,000).

Economic loss Past economic loss

359. Ms Williams joined the Australian public service in 2016. She had various roles and by April 2018 she was a personal assistant to the head of a Commonwealth agency and two executive directors within that organisation. She moved to a different agency in April 2018. As at the date of the incident, she was on a salary of $68,968. This resulted in after-tax earnings of $1037 per week.

360. Ms Williams claims the difference between the amount that she actually earned ($223,776) in the period 2018-2023 and the amount that she would have earned had she continued to receive the income that she did in the 2017-2018 financial year. This gives a figure of $34,970 ($274,125 - $223,776). She also claims superannuation on this amount based on a rate of 14.5 percent, being an amount of $5071. As these amounts are less than the amounts contended for by the defendants, they would have been awarded as claimed. The total is $40,041. She would be entitled to interest on those amounts at Court Procedures Rules rates in the sum of $5601. Future economic loss

361. Ms Williams was 32 years of age at trial and 33 at the time of judgment. On the assumption that she would work until pension age, she has an expectation of working for a further 34 years.

362. In her statement of particulars filed in June 2023, after her resignation from the public service, the claim for future economic loss had two components. The first component was the difference between her pre-injury earning capacity and her average weekly earnings in her last public service job. This was assessed as an amount of $293.24 per week. Calculated over the 38 years until retirement age and with a 15 percent allowance for vicissitudes, this gave a claim of $296,862 (293.24 x 1191 x 0.85).

363. There was then an additional claim for a buffer for the difference between $44,748, reflecting her most recent annual salary in the public service, and the average annual salary of a lawyer, said to be $110,000. This was said to be a loss of equivalent to a loss of $60,000 per year. This was based on the submission that Ms Williams “could have gained entry into university, completed a law degree and … could have become a lawyer”.

364. In final submissions, notwithstanding that there was no application to amend the statement of particulars, although she submitted that a finding of total incapacity for the balance of her working life would be “difficult on the evidence”, she submitted that it was appropriate to award damages on the basis of a total incapacity for five years ($270,848 for loss of wages and $39,273 for loss of superannuation) followed by a substantial buffer ($500,000) in relation to the balance of her working life.

365. In contrast, the defendants’ submissions were targeted at the claim identified in the statement of particulars. The submission was that the award should not be based upon, or reflect the possibility that, Ms Williams would obtain a law degree. She had only got as far as enrolling in, but never commenced, a university preparation course that might have allowed her to start a law degree in circumstances where she had not completed Year 11 or 12 at school.

Future out-of-pocket expenses

373. Dr Jungfer recommended future treatment as follows: (a) 20 sessions of clinical psychology support at $300 per hour; and (b) two years of pharmacotherapy ($100 per month) reviewed by a psychiatrist every two months ($395 per session).

374. These give totals of $6000 and $7140 respectively, a total of $13,140.

375. In her submissions, Ms Williams did not repeat the claims documented in her statement of particulars for general practitioner costs in the future of $4141 and a buffer of $10,000 for medication in the future. The defendants do not disagree with these components of damages. However, given that those claims were not repeated in the final submissions and her psychiatric condition is fully explored in the report of Dr Jungfer, those amounts would not be awarded. The award would be the amount of $13,140 recommended by Dr Jungfer.

Domestic assistance

376. No claim is made for domestic assistance.

Aggravated and exemplary damages

377. Ms Williams submitted that an award of $50,000 for aggravated damages should be made having regard to the fact that the assault on Mr Glavinic occurred in her home, that the trespass involved the use of force and was against the express refusal of Mr Glavinic, that she witnessed the violent incident and that she was subject to “a prolonged interview whilst having no sleep and experiencing the effects of her alcohol and drug consumption”.

378. I do not consider that any additional award of aggravated damages is necessary. I have taken into account each of the matters referred to as part of the assessment of general damages.

379. Ms Williams submitted that she had been exposed to conduct involving a “high-handed and contumelious disregard for her well-being” and that the police officers had forced entry to the premises “on untrue grounds and in a callous, high-handed and arrogant fashion”. She submitted that an award of $50,000 for exemplary damages should be made.

380. For the reasons given earlier in relation to Mr Glavinic, I do not consider that an award of exemplary damages is appropriate in the present case.

Summary

Component Amount Damages for trespass $5000 General damages $160,000 Interest on general damages $8640 Past economic loss $40,041 Interest on past economic loss $5601 Future economic loss $300,573 Past out-of-pocket expenses $22,751 Interest on past out-of-pocket Not calculated Future out-of-pocket expenses $13,140 Total $555,746.00

Contingent assessment of damages – Carol Glavinic

Introduction

381. Mrs Glavinic was 64 years old at the time of trial and judgment. She came to Australia with her parents from Croatia at the age of 13. She completed Year 10 and did a secretarial course at the Canberra Institute of Technology. She worked at the Canberra Hospital and subsequently qualified as a nurse. She worked as a nurse for five years. She ceased paid employment when she had her first child in 1983. After her children had commenced school, she did administrative work in her husband’s painting business. That continued up until 2013 when she was divorced from her husband. After the divorce she lived with her son from time to time. In 2016, her son’s ex-wife moved with the children to Melbourne. Mrs Glavinic moved there too. She did a course in aged care in order to be able to establish herself in employment. She returned to Canberra in 2016 because her grandchildren came back to Canberra. She then got a job with Goodwin Aged Care Services assisting people living in the community.

382. She described herself as being in a state of shock when witnessing the events. She thought her son had died as a result of the altercation with police. She cleaned up the blood after police had left. She found it distressing to visit her son when he was in hospital and in prison. She said that the incident left her feeling that “all the joy is gone”. At the time of the 2018 incident, she was doing sleepover shifts with a single client who was bedridden. That continued for about a year until the client died. She then had to go and visit a number of different clients in the community. She found this very stressful and tiring. She described being traumatised by what happened and being unable to switch off her mind and fall asleep. She described being exhausted and said that simple tasks became a lot harder than before. She became fearful of making medication errors. She ceased working in aged care in 2022. She currently receives a disability support payment. Her social life has become more restricted, and she no longer attends church, but she is still able to socialise at clubs on a reasonably regular basis.

General damages

383. Consistent with the observations made by Dr Jungfer, the evidence given by Mrs Glavinic was characterised by a degree of vagueness. She was not very articulate, particularly in relation to explaining the reasons for the impact of the 2018 incident upon her. However, I generally accept her evidence and consider the evidence given by Dr Jungfer on the basis of what she was told by Mrs Glavinic to be reliable. There was, however, evidence that cast some doubt upon the extent of Mrs Glavinic’s self-isolation, in particular evidence that she went to clubs more often than she indicated in her oral evidence. Consistently with the evidence of Dr Jungfer, there is a prospect that following the completion of the litigation and with some treatment, Mrs Glavinic’s condition will improve. However, having regard to her age and the likely continuation, to some degree, of her PTSD and depression, it is unlikely that she will return to paid employment prior to the date on which she would have retired in any event.

384. Dr Jungfer diagnosed Mrs Glavinic with PTSD and a major depressive illness. The PTSD was severe, the major depressive illness was moderately severe. She described major depressive illness as a common complication of PTSD. These conditions emerged in the weeks and months following the incident and have persisted, not responding to the treatment that she had received. She noted that Mrs Glavinic does not appear to have had extensive treatment and hence left open the possibility that there may be a change in her symptoms with such treatment.

385. I would have assessed general damages at $120,000.

386. Attributing half of this amount to the past and half the future gives an award of interest of $6480 (5.4 x 0.02 x 60,000).

Economic loss Past economic loss

387. So far as the past is concerned, Mrs Glavinic gave evidence that after the single client who she cared for overnight died, she attempted to return to more general work with Goodwin Aged Care Services but found that she was unable to do so. She gradually wound back her work hours until ceasing work in 2022. I accept her submission that her cessation of work was caused by the PTSD that she suffered, which in turn was caused by what she witnessed during the 2018 incident.

388. Her net income for the tax years ending in 2017-2021 was as follows: (a) 2018: $40,995; (b) 2019: $50,352; (c) 2020: $48,128; (d) 2021: $16,062; and (e) 2022: $5009.

389. As can be seen, she did not suffer any loss of income prior to the end of the 2020 financial year. Based upon her earning capacity reflected in the 2018 financial year, her loss of income from the end of the 2020 financial year up until the date of judgment is $118,312 (3.4 years x $40,995 - ($16,062 + $5009)). This method of calculating damages is different to (and more favourable to the plaintiff than) that contended for in the plaintiff’s final submissions which were based upon the net difference between earnings over the financial years ending 2018 to date. However, it is within the scope of the statement of particulars and more accurately captures the losses suffered.

390. Loss of superannuation calculated at 11 percent of the assessed loss would be $13,014. This gives a total amount for past loss of wages and superannuation of $131,326. Interest calculated at Court Procedures Rules rates, assuming a uniform rate of loss over the period since July 2020, would be $11,595.

Future economic loss

391. Mrs Glavinic was aged 64 at the date of judgment. On the assumption that she would otherwise have worked until entitled to a Commonwealth age pension, her working life is another three years. It is likely that, had she not suffered from PTSD and depression as a result of witnessing the incident, she would have continued to work. Although she appeared to be relatively frail for her age, having regard to her efforts to re-enter the workforce in 2016, her history of work from that date up until 2022 and the benefit of having an independent income, it is likely that she would have continued that work until entitled to an age pension. In the financial year ending 2018, her earning capacity was $788 per week. She would have maintained that capacity for an additional three years. Given the relatively short period in the future, I would have made a deduction for vicissitudes of 7 percent rather than 15 percent. That would have resulted in an award of damages for loss of wages of $109,472 ($788 x 149.38 x 0.93). Superannuation at 11 percent would add a further $12,042. This gives a total of $121,514.

Out-of-pocket expenses Past out-of-pocket expenses

392. Past out-of-pocket expenses are agreed at $1580. The parties did not indicate any agreement as to when those expenses were incurred or the extent to which they were covered by Medicare.

393. Although their calculations differed, both the plaintiff and defendants calculated interest at the rate of four percent, the plaintiff over the whole period and the defendants reducing it to two percent to take account of the expenses being incurred over the period rather than at the beginning of the period. The submissions did not address why four percent rather than Court Procedures Rules interest rates would be used. I would have allowed further submissions as to the award of interest.

Future out-of-pocket expenses

394. Dr Jungfer noted that, although Mrs Glavinic had been seen by a psychologist and psychiatrists, she had not received comprehensive trauma therapy nor an extensive trial of various antidepressant agents. So far as future treatment was concerned, she said: (a) It is possible that Mrs Glavinic would benefit from an inpatient program, although this may result in her being exposed to police who are also participating in such a program. (b) Mrs Glavinic should see a psychologist who can offer treatment such as eye movement desensitisation, reprocessing and cognitive schemata therapy. The cost of this would be 30 sessions at approximately $300 per consultation. (c) So far as pharmacotherapy was concerned, she suggested fortnightly appointments with a psychiatrist for six months and then, once stable, two monthly appointments for a further 18 months.

395. In final submissions, Mrs Glavinic claimed the following components of an award for future out-of-pocket expenses: (a) $9000 for 30 sessions with a psychologist ($300 x 30); (b) $8670 for fortnightly treatment by a psychiatrist for six months; (c) $3962 for treatment by a psychiatrist every two months for a further 18 months; (d) a buffer of $5000 as an estimate for inpatient treatment; (e) a buffer of $2562 for one or two additional general practitioner visits per year for the balance of her life; and (f) a buffer of $10,000 for the cost of ongoing pharmacotherapy.

396. The defendants did not dispute items (a), (e) or (f).

397. The calculations for (b), (c) and (e) incorporated multipliers based upon a three percent discount rate as well as a 15 percent reduction for vicissitudes. So far as any discount for vicissitudes was concerned, in their calculations the defendants made no such reduction. Such a reduction appears to be inconsistent with the judgment of Windeyer J in Bresatz v Przibilla (1962) 108 CLR 541 at 546, and of Gibbs and Stephen JJ in Sharman v Evans (1977) 138 CLR 563 at 587.

398. My conclusions on these claims are as follows. (a) The amount of $9000 for 30 psychological sessions is consistent with the recommendation of Dr Jungfer and not disputed by the defendants. It would be allowed. (b) The amount of $8670 for treatment by a psychiatrist is based upon the recommendation of Dr Jungfer of intensive treatment by a psychiatrist in the first six months of the two year period. Having regard to the modest period into the future, I would simply calculate it in today’s dollars and without a reduction for vicissitudes. The evidence disclosed a cost of $395 per consultation and hence, notwithstanding the claim of $8670, the award would be $5135 (13 x $395). (c) The amount for treatment by a psychiatrist in the balance of the two-year period is consistent with the recommendation of Dr Jungfer and not disputed by the defendants. The figure would be $3555 (9 x $395). (d) I would make no allowance for the possibility of inpatient treatment having regard to the qualified nature of Dr Jungfer’s recommendation and the absence of any evidence as to the cost of such a program. (e) The need for some additional general practitioner visits is consistent with Dr Jungfer’s recommendation that once a drug regime has been established and stabilised under the consultation of a psychiatrist, the management of those drugs be conducted by Mrs Glavinic’s general practitioner. The claimed amount of $2562 is appropriate. (f) The amount of $10,000 must be understood as including the drugs to be taken during the two-year period subject to supervision by the psychiatrist the subject of (b) and (c) above as the cost of those drugs are not claimed elsewhere. The defendants do not contest a buffer of this amount and, having regard to the likely need for ongoing drug use, it would be allowed.

Domestic assistance

400. In final submissions no claim was made for domestic assistance.

Aggravated and exemplary damages

401. Mrs Glavinic submitted that she was entitled to a “modest” award of aggravated damages because the assault which she witnessed occurred in her home and the trespass to land occurred using force and against the express refusal of Mr Glavinic. The submissions in support of an award of aggravated damages also referred to the descriptions of her demeanour by the police officers who were at the scene of the incident (officers Chapman, Tutt, Boxx, and Edwards). This refers to evidence by a variety of officers that Mrs Glavinic did not appear to react or be upset at the scene of the incident. The submission was made that these are “demeaning descriptions of a woman clearly affected by the shock of the assault on her son”. I do not accept that these are demeaning descriptions of what the officers observed. In my view, they were honest recollections of an unusual feature of her demeanour in the circumstances.

402. In my view, the circumstances do not warrant any award of aggravated damages in addition to the award of general damages referred to earlier.

403. So far as exemplary damages are concerned, Mrs Glavinic submitted that the defendants forced entry “on untrue grounds and in a callous, high-handed and arrogant fashion”. The submissions also relied upon the observations by police made for the purposes of the criminal proceedings that Mrs Glavinic did not appear to react to what had occurred. This was said to reflect a “freeze reaction” in response to the sudden violent and aggressive actions of police. The significance of the officers’ descriptions of Mrs Glavinic’s conduct or the existence of a “freeze reaction” was not explained.

404. As outlined earlier in these reasons, I do not accept the characterisation of the police officers’ conduct involving callous, high-handed or arrogant conduct. I do not consider the description of Mrs Glavinic’s reaction as being relevant to an award of exemplary damages. I would not have made any award for exemplary damages.

Summary

405. The damages that would have been awarded are summarised as follows:

Component Amount General damages $120,000 Interest on general damages $6480 Past economic loss $131,326 Interest on past economic loss $11,595 Future economic loss $121,514 Past out-of-pocket expenses $1580 Interest on past out-of-pocket Not calculated Future out-of-pocket expenses $30,252 Total $422,747.00

Orders

406. As a result of the defendants succeeding on their limitation defence, judgment must be entered for the defendants in each of the proceedings.

407. Section 435(3) of the Crimes Act provides: (3) If a verdict passes for the defendant, or the plaintiff becomes nonsuit, or discontinues his or her action after issue joined, or if on demurrer, or otherwise, judgment is given against the plaintiff, the defendant shall recover costs as between solicitor and client.

408. Given the statutory mandate, a costs order to that effect will also be made, but, as the parties have not been heard in relation to costs, an opportunity for further submissions will be provided in case there is some reason why the statutory position should not be applied.

409. Had it not been for the terms of s 435(3), I would have awarded each plaintiff the costs of the hearing on 16 October 2023 and the costs of addressing the jurisdictional point raised by the Commonwealth at that time, including the costs of the written submissions.

410. The orders of the Court are as follows.

411. In proceedings SC 283 of 2021 (Justin Glavinic) the orders of the Court are: 1. Judgment for the defendants. 2. The plaintiff is to pay the defendants’ costs of the proceedings on a solicitor and client basis. 3. Order 2 does not take effect for 14 days and, if any party notifies the associate to Mossop J by email (copied to each other party) that it wishes to be further heard in relation to costs, the order does not take effect until further order of the court.

412. In proceedings SC 285 of 2021 (Carol Glavinic) the orders of the Court are: 1. Judgment for the defendants. 2. The plaintiff is to pay the defendants’ costs of the proceedings on a solicitor and client basis. 3. Order 2 does not take effect for 14 days and, if any party notifies the associate to Mossop J by email (copied to each other party) that it wishes to be further heard in relation to costs, the order does not take effect until further order of the court.

413. In proceedings SC 286 of 2021 (Heather Williams) the orders of the Court are: 1. Judgment for the defendants. 2. The plaintiff is to pay the defendants’ costs of the proceedings on a solicitor and client basis. 3. Order 2 does not take effect for 14 days and, if any party notifies the associate to Mossop J by email (copied to each other party) that it wishes to be further heard in relation to costs, the order does not take effect until further order of the court.

I certify that the preceding four hundred and thirteen [413] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 1 December 2023