Hamilton v State of New South Wales

Factual issues in dispute

1. The following questions of primary fact require determination: 1. Was Mr Hamilton intoxicated after the Christmas party, which he denies? 2. What happened during the taxi journey - did Mr Hamilton assault the taxi driver, Mr Siddiquee? 3. What happened between Mr Hamilton and S/Cst Mildenhall in Grosvenor Place - did S/Cst Mildenhall assault Mr Hamilton? 4. What occurred after the incident at Grosvenor Place?

Was Mr Hamilton intoxicated after the Christmas party?

1. The question of Mr Hamilton's intoxication is relevant to the resolution of the other key facts in dispute.
2. Mr Hamilton was on board the boat for around four hours. He says that during this time there was a "smorgasbord" of food on offer, and approximates that he consumed about "three or four glasses" of wine (51.36T). When asked by his counsel Mr Steirn SC (who appeared with Mr Morgan) to rate his level of intoxication on a scale of one to ten he rated himself a "three". In written submissions he is described as intoxicated to a "mild degree". When asked by Mr Bodor QC (who appeared with Mr Woods) for the State, he denied not having his full wits about himself.
3. Mr Thomas, the host of the party similarly rated Mr Hamilton's level of intoxication as a "three". Another of his friends, Mr Clements, said that "[Mr Hamilton] was perfectly normal…Just over three or four hours whatever you drink…it wasn't a rush to drink everything in sight. It was just a normal social gathering" (288.45-50T). Mr Hamilton's case is that he was only mildly affected by the alcohol he consumed and remained at a reasonable level of alertness. This is consistent with the view that he was "perfectly normal".
4. The State says that Mr Hamilton's self-assessment is at variance with other evidence which "ought to be afforded greater collective weight, as it is objective and unvarnished" (Defendant Written Submissions at [8]). It also says that the views of other persons with whom Mr Hamilton was in company that night as to his level of intoxication should be understood in the context that they all admitted to consuming alcohol whilst on board the boat and were therefore all affected to some degree. Mr Thomas rated himself on a scale of one to ten as a "four, five". He also said that Mr McGregor was "probably a little more affected than I was" and that Mr Clements was about a "two" as "[h]e wouldn't have drunk as much as we did" (209.31T). Mr McGregor similarly described himself in terms of sobriety as a "five" at the end of the evening having consumed "four or five beers and maybe a couple of glasses of wine with our dinner" (512.20T).
5. Mr Bodor also relies upon the evidence of Mr Siddiquee, Mr Benjamin Lally a paramedic, Dr Daniel Brungs a senior resident medical officer at St Vincent's Hospital and, indirectly, the clinical records of Dr Adsett, the latter of whom is Mr Hamilton's general practitioner. I do not think the evidence of Mr Siddiquee should be afforded much greater weight than that of Mr Hamilton or his friends. I accept that unlike Mr Hamilton's friends he was not under the influence of any alcohol, however his opinion that Mr Hamilton was "drunk" which was volunteered in response to questions asked about racial slurs allegedly directed at him in the taxi by Mr Hamilton does not add much to the question whether Mr Hamilton was intoxicated. His statement was conclusionary, and his antipathy (perhaps understandably) was palpable.
6. The only wholly objective contemporaneous material going to Mr Hamilton's level of intoxication is the evidence of Mr Lally and Dr Brungs. Mr Lally was the paramedic who rendered assistance to Mr Hamilton in George St following the incident in Grosvenor Place. His ambulance report completed then forms part of Exhibit C (p 34-35). In oral testimony he said that he has no independent recollection of this event. Underneath the section titled "Patient/Incident History" he records: "admits to 'lots' of alcohol tonight, denies any drugs". He says that the inverted commas around 'lots' meant that "[Mr Hamilton] probably said that word when I asked a question" (618.15T). I understood this as evidence about his usual practice when recording "history" in his reports. He agreed with the question put by Mr Bodor that "that's a quote, so far as you, in the creation of your records, would note?" He also later agreed that he was unable to say definitely where the information in his report other than questions relevant to his profession came from and that "[i]t's possible" that the police may have told him other things, such as how much Mr Hamilton had had to drink if they knew. In my view, whilst such a scenario may have been possible, the more logical inference, as the State submits, is that the evidence that Mr Hamilton had "lots" of alcohol came directly from his own mouth. Indeed, the presence of the word "admits" prior to "lots" is telling and I find that this is the most likely explanation.
7. Dr Brungs, like Mr Lally, admits to having no independent recollection of assessing Mr Hamilton at St Vincent's Hospital. This is not at all surprising in either case given, not only the lapse of time, but also the nature and demands of their respective professions. He relies therefore entirely upon the clinical notes he made when he examined Mr Hamilton (Exhibit C, p 40-41) amplifying them by reference to his professional experience and practice. Mr Hamilton was triaged sometime before 1am and Dr Brungs' notes indicate that he first saw Mr Hamilton at 3:10am, which may not be uncommon, by the sounds of it, on a busy night at a busy time of year. Obviously, this is a number of hours after the incident with S/Cst Mildenhall in Grosvenor Place and indeed after the harbour cruise which, I remind myself, concluded at around 11:20pm. His notes state that Mr Hamilton "admits to [alcohol] tonight". A few lines below this Dr Brungs records that on examination he observed him to be intoxicated. He says this entry (712.45 - 713.5T): "…summarises my clinical suspicion that his overall state was consistent with his drinking history so when I've written intoxicated I guess that's incorporated there the history that he admitted to alcohol. I haven't written specific signs in the notes and as you say I don't have any recollection of the examination. I would have been relying on so I guess more generally speaking what I would normally rely on would be things like smelling strongly of alcohol, mild incoordination, you know, deficit to attention and judgment."
8. As Dr Brungs said, none of these signs for assessing intoxication which he would normally rely on were recorded in his clinical notes. When asked by Mr Steirn whether there are similarities between intoxication and concussion he said that there were, such as altered levels of consciousness, confusion, incoordination and slurred speech. He also said that as suspected head injury or intoxication were "really the crux of the care" he "would've definitely been trying to tease out this issue" (729.30-.35T). Moreover, it was routine practice in the emergency department to keep patients who are suspected of having even mild head injuries, especially if they are intoxicated, for observation for at least 4 hours.
9. No information was provided to Dr Brungs, nor was any clinical note made, suggesting a decline in Mr Hamilton's neurological state while he was at the hospital from around 1am when he was triaged; through to 3:10 am, when he saw the doctor; until 3:50 am. This indicates to me that the symptoms exhibited by Mr Hamilton as observed by Dr Brungs were more suggestive of intoxication than concussion or mild head injury. This view is bolstered by the entry made by Dr Brungs at 3:50am at the bottom of his clinical notes "suitable for [waiting room], discharge when sober in…the morning". At 3:50 am he considered that Mr Hamilton "was still displaying enough signs of intoxication to be at risk to go home straight away" (717.50-718.5T). He thought it best he spend some more time under the general observation before leaving.
10. Mr Hamilton denies making any comments or observations concerning his intoxication level to any medical professional. He does not remember telling, and specifically denies that he would have told Mr Lally that he had "lots" to drink. He also does not remember and denies telling Dr Brungs that he had been drinking or that he was told to remain in the emergency department to "sober up".
11. There is also the evidence from the clinical records Dr Adsett, Mr Hamilton's general practitioner. The following past history of alcohol intake is recorded: in August 2004 Mr Hamilton reported consuming the equivalent of about 8 standard drinks in a session; in January 2006 he reported drinking one litre of wine daily for approximately 10 years; and in May 2006 he voiced concerns regarding alcohol and his lifestyle.
12. Mr Hamilton strongly denies having made these complaints, and disputes the accuracy of the record. Given the circumstances in which GP notes are generally made, that is during a private conversation in consultation with the patient, it seems highly likely that Dr Adsett simply recorded in his own words the effect of what Mr Hamilton told him about his alcohol consumption. One may accept that errors may be made in medical record keeping, but it is highly unlikely that Dr Adsett's records would be inaccurate on each of these three occasions. I prefer the contemporaneous records of Dr Adsett to Mr Hamilton's denials especially given the likely effect of the effluxion of time on Mr Hamilton's memory.
13. Even though Dr Adsett's notes were made more than three years prior to the evening of 12 December 2009, no evidence has been put before me to suggest any change in Mr Hamilton's drinking habits in the interim. I consider therefore that his notes offer circumstantial evidence that it was Mr Hamilton's usual habit to drink more than three or four glasses at a party. When added to the evidence of Mr Lally and Dr Brungs, which I accept, I think that it is highly likely that Mr Hamilton was quite intoxicated when he got into the taxi. I reject his evidence, and that of his companions, to the contrary.

What happened in the taxi - did Mr Hamilton assault the taxi driver, Mr Siddiquee?

The route the taxi was to take

1. The first issue is whether Mr Siddiquee was directed what route he was to take by any of his then passengers, as distinct from which available route was better or best. Mr Hamilton, Mr Thomas, Mr McGregor and Mr Clements hailed Mr Siddiquee's taxi from Lime St near King Street Wharf. Their destination was Harrington St, The Rocks. Mr Thomas was the front seat passenger and Mr McGregor was seated directly behind him. Mr Clements was in the middle and Mr Hamilton was seated behind Mr Siddiquee. Mr Siddiquee said that he was not given any direction, simply "one word 'Quay West Apartment' " by the "front man", that is Mr Thomas and that he headed for George St, via Margaret St, because there would be "less traffic, and avoiding the traffic light". Mr Thomas however disputes this saying he would have said, "Via Clarence Street" because "I always told the cab drivers which route to take" (249.25-30T). He does not recall whether Mr Siddiquee said anything in reply.
2. The route that the taxi took was the subject of extensive examination by counsel for both Mr Hamilton and the State particularly in regards to what was, objectively, the quickest way to Harrington St. In my view and with respect, the question of the route followed, and whether it was the best route, helps very little in resolving the facts in issue in this case. It is therefore not necessary for me to make any factual findings about whether the route followed was the most efficient way of delivering the four men to their destination. What is relevant however is that the taxi passengers became unhappy with the route; and Mr Siddiquee likewise with their conduct.
3. I do not therefore propose to attempt to work out whether Mr Thomas or Mr Siddiquee should be preferred on whether a specific direction was given. Their evidence about this is of equal probability. A passenger may well have a preferred route, and a taxi-driver a view about the best route. In saying that I accept that a driver has an interest, especially at busy times, in taking the most efficient route to enhance turn-over of fares.

The argument in the taxi

1. I have no doubt that an acrimonious mood quickly developed in the taxi. Mr Hamilton presents as being oblivious to any trouble because he says that he only found out later what caused the argument which developed. He says that it was Mr Thomas who apparently started the argument "because he'd given the driver instructions which the driver didn't follow" and that later Mr McGregor was involved. He is unable to recall the substance of the argument between Mr McGregor and Mr Siddiquee saying they were "screaming and yelling at each other and I wasn't really listening to what was being said" (53.33-34T). He also denies any verbal exchange between himself and Mr Siddiquee (355.10T). Later he says that he spoke to the taxi driver asking him to stop turning around and arguing "because you need to keep your eyes on the road" (368.17-18T). Also in cross examination when asked about answers that he gave at an interview on 20 January 2011 he remembered stating that Mr Siddiquee "started on me" when Mr Hamilton suggested to him that he concentrate on the road in front.
2. Mr Siddiquee's version of events is vastly different. He says that when the taxi was approaching the northern end of Lime St, Mr Hamilton reached from behind, rising out of his seat and 'honked' the car horn three times at five girls who were on the pedestrian crossing. He also says that Mr Hamilton was yelling to the girls (666.50-667.40T). The implication is not that he was attempting to clear the way. He said Mr Hamilton was yelling to the girls "not in English, rather in other language I don't understand". Immediately after this, Mr Siddiquee says the following exchanges with Mr Hamilton took place: (668.5-40T) "Q. Did you say something? A. In that time I said, can you please sit back and relax. Q. Did somebody then say something? A. Yes. Q. Who said what? A. Just right behind, on the just, behind the passenger seat. He just, with a loud voice, and excuse me language. He say, fucking driving, that's you job. … Q. What did you say? A. I said, why you use that F word. Q. Was there any further conversation from him or anyone else? A. He replied, you fucking black cunt, I'm from Scotland. I know what I'm doing. … Q. What did you say? A. I said, if you using this word one more time, I refuse the fare and you have to take another taxi. Q. … When you were still in Margaret Street, was there anything said by anybody toward you? A. The passenger, right behind on me, he said, you fucking black cunt, just driving. If you don't like it, leave the fucking country." The reference to a passenger "behind the passenger seat" created confusion. He was Mr McGregor. Despite his name he is not from Scotland; he is Welsh and has a very pronounced Welsh accent. However I think the reference was a slip of Mr Siddiquee's tongue because at 669.3-10T he said: "The passenger is right behind on me, he just keep yelling, and keep shouting. Around ten to 30 second, and he say, you fucking black cunt, just driving. And he just yelling, 30 second, [other than the] English." This makes it quite clear that the whole of this evidence is directed to Mr Hamilton and not Mr McGregor. I will return to the other language below.
3. Mr Siddiquee said the passenger in the middle, that is Mr Clements, then said to Mr Hamilton "why you talking the shit to the driver. We almost [at] the hotel". Mr Hamilton however "just keep yelling, and keep shouting…and he say, you fucking black cunt, just driving" (669.5T). The implication is that Mr Hamilton was saying this repeatedly. In cross-examination Mr Siddiquee said that he was not upset at the racial slurs being directed towards him but rather they made him feel bad - "I'm giving them a service but they don't respect my job" (784.2T).
4. Versions different from Mr Siddiquee's are given by the other passengers. Mr Thomas said that he pressed the horn at the beginning of the taxi journey in Lime St as "there were some pretty girls going across the zebra crossing" (213.7T). He does not recall Mr Siddiquee reacting at this point. It was his opinion that Mr Siddiquee later became "aggressive and…angry" after he and Mr McGregor raised objection about the route being taken when they ended up on George St. He said that he believed Mr Siddiquee was arguing with Mr McGregor and "he was turning around and acting irrationally". Mr Thomas does not recall any verbal exchange between Mr Hamilton and Mr Siddiquee, however he admitted to having a "doze" in the taxi and was unable to recall whether he fell asleep from Lime St until George St.
5. Mr Clements also said that it was Mr Thomas who honked the horn. He also said Mr Thomas "drifted off a couple of times" during the journey, although he could not remember when this occurred. He said it was Mr McGregor who got into "a fair dinkum argument" with Mr Siddiquee and denied hearing any verbal exchange between Mr Hamilton and Mr Siddiquee.
6. Mr McGregor said that Mr Thomas certainly was not asleep for the whole trip. The latter blew the horn in Lime St, and later asked why they were going up George St. He was unable to say whether he was asleep in between these times, although he says he "he might have had a power nap, which he is prone to do occasionally" (533.49T). He said that he entered the conversation when the taxi was in George St and described the conversation between himself and Mr Siddiquee as "not an altercation but a robust discussion" telling him he would have definitely been told to go via Clarence St. He says there was nothing that occurred in the taxi justifying Mr Siddiquee stopping to get the police. He also denied that Mr Hamilton was being abusive and racist towards Mr Siddiquee.
7. As I have already said, and what the evidence makes abundantly clear, is that the taxi journey was not a pleasant one. Given that Mr Thomas admits to it and is corroborated by the other passengers I am prepared to accept that he initially honked the horn at the young women on Lime St. I find that he then did not completely pass out from intoxication but that he dozed, as he is apparently prone to do, until the taxi was on George St. I cannot find it probable that Mr Thomas specifically requested, at the start of the fare, that they were to go via Clarence St. I accept that in his opinion Clarence St is the most direct route but he may not have voiced this at the start of the journey. When the taxi ended up on George St it became obvious that it was not following his anticipated or expected route I accept that it was Mr Thomas who initially questioned the route being taken even if he may have dozed off again. It was then that Mr McGregor expressed his anger towards Mr Siddiquee for taking George St. Mr McGregor said that he has travelled the "Darling Harbour to [the Rocks] journey" on a number of occasions. As Mr Hamilton, who it will be remembered lived in Queensland, and Mr Clements were not as familiar with this area it makes more sense that Mr McGregor would be the one to engage Mr Siddiquee in a "robust discussion" over the route being taken.
8. I find Mr Hamilton then joined in on the "robust discussion" between Mr McGregor and Mr Siddiquee, in support of Mr McGregor against Mr Siddiquee, who, understandably, was already agitated over what had happened so far. With the possible exception of Mr Clements the behaviour of the passengers appears to have been boisterous to the point of boorish.
9. Having heard all the evidence I am satisfied on the balance of probabilities that Mr Hamilton did not utter any of the racial slurs ascribed to him by Mr Siddiquee (see [17]). I am satisfied that the atmosphere in the taxi became extremely unpleasant and Mr Siddiquee may have suspected racist undertones. However none of the other passengers have any recollection of any form of racial vilification being uttered in the taxi by anyone, including Mr Hamilton. It would be a very large thing to find one or other of the passengers had used the grossly, and racially, offensive language ascribed by Mr Siddiquee to Mr Hamilton. I find Mr Siddiquee's account of Mr Hamilton referring to him repeatedly as a "fucking black cunt" (see 668.25T; 668.40T; 669.5T; 674.10T) unpersuasive. In saying this, I have not overlooked that Mr Hamilton gave evidence of Mr Siddiquee getting out of the taxi to get the police for you "racist bastards" (54.30T). Moreover in his notebook entry made soon after the events S/Cst Mildenhall records: "the taxi driver alleges that [Mr Hamilton] has made racial slurs towards him and has struck him to the rear the head." (Notebook F 467763, p 31; Ex F.) This was not said to police immediately as part of the initial complaint but after the arrest of Mr Hamilton when S/Cst Mildenhall left him in the custody of S/Cst Liebrand, and returned to talk to Mr Siddiquee. However Mr Siddiquee declined to make a statement at the time pleading the pressure of work commitments. A full account was not given until 4 January 2010, nearly one month later. It contains the details, somewhat expanded upon in evidence, which I have found unpersuasive.
10. While all of this suggests some use of racist language I think the explanation lies in Mr Siddiquee's perception, rather than in demonstrable fact. Indeed, from my observations of Mr Siddiquee in the witness box, it is safe to say that he is no shrinking violet. Had Mr Hamilton (or any other passenger) used the racially offensive language ascribed to him in evidence and in his police statement I have no doubt that Mr Siddiquee, rightly, would not have stood for it. He would have told the men to get out regardless of whether police were nearby or not, just as he said he threatened to do.
11. In support of Mr Siddiquee's version the State submits that the "coincidence of [Mr Siddiquee] correctly identifying [Mr Hamilton's] birthplace is breathtaking". This is a reference to Mr Siddiquee's evidence that the assailant said "I'm from Scotland". I accept that Mr Hamilton was the only Scottish man in the taxi. Mr Hamilton said he understood Mr McGregor was of Scottish origin and described his accent as more Scottish than Welsh (336.20-35T). He did not hear Mr McGregor say "I'm from Scotland, I know what I am doing". He heard no-one utter those words and denied saying them himself (336.10T). Mr McGregor did not confirm that he identified as Scottish, although his father was a Scotsman. He was born and brought up in South Wales until the age of 22 when he emigrated to Australia (515.15T). He did allow that "some strains of Scottish [might come] through having lived with my father for 22 years" (519.50T). His father apparently had a broad Glaswegian accent. In cross examination he denied hearing anyone shout out "I'm from Scotland" (540.45-50T).
12. I am certainly not persuaded that Mr McGregor claimed to be from Scotland. It is possible that at times his obvious Welsh accent may be influenced by his father's Scots. It is also possible that the uninitiated may have trouble at times distinguishing Scots from Welsh from Irish. Most likely an experienced taxi-driver like Mr Siddiquee would be familiar with different accents. To my own ear Mr McGregor was unmistakably Welsh; I would not have taken him for anything-else. In my view Mr Hamilton's description of Mr McGregor's accent was disingenuous, and I reject it.
13. Mr Siddiquee certainly thought the man sitting behind him was the troublemaker. I have borne in mind that Mr Hamilton had had a memorable holiday in the land of his birth some months earlier and his pride in his heritage may have been re-ignited. Intoxicated disinhibition could possibly have brought the phrase to his lips. He first left his native Glasgow at about the age of five when his family moved, first to London, then during his teenage years to Australia. Like many emigrants his accent is layered by many influences. It could not be said that he is unmistakably Scottish in his speech. I certainly did not regard him as being possessed of a broad Glaswegian accent. This consideration makes it unlikely that Mr Siddiquee could have picked Mr Hamilton as a Scot just from his voice even influenced by alcohol. These factors make it likely that sometime during the exchanges in the taxi Mr Hamilton uttered that phrase. On the other hand the suggestion that he ranted in a language other than English is probably an embellishment for self-corroborative purposes. There is no evidence that Mr Hamilton is fluent in the Gaelic language nor is the evidence of his intoxication such as to support the idea that his speech was in any way incomprehensible. It must be said that in evidence he was very well-spoken.
14. For these reasons I am persuaded that the words were spoken even though, in context, the statement involves a complete non-sequitur. It is possible that something irrelevant and illogical like that could be said by an intoxicated person in the heat of an argument, perhaps the more so in this case given that the argument was over the route being taken by a taxi driver, a not unknown cause of acrimony. However, I do not consider that this evidence is of any particular significance in confirming the detail of Mr Siddiquee's evidence about what happened in the taxi.
15. On the balance of probabilities I find that there was an argument in the taxi involving principally Mr McGregor and Mr Siddiquee, to which Mr Hamilton, and Mr Thomas, contributed. Mr McGregor seems the most obvious protagonist. He himself says so and as a Sydney-sider he would have more interest than the Queenslanders in the route taken; Mr Thomas's propensity to doze-off probably reduced his capacity for argument; and Mr Clements seems not to have been involved much if at all. Un-pleasantries were doubtless exchanged. I find that Mr McGregor, Mr Siddiquee and Mr Hamilton became increasingly hot and agitated to the point where Mr Siddiquee had had enough. Spotting the police nearby presented the opportunity and occasion to rid himself of these troublesome passengers.

The alleged assault on the taxi driver

1. Mr Siddiquee says that as Mr Hamilton was repeating the deeply offensive phrase "you fucking black cunt" and telling him to keep driving he "pushed and hit my head with [his] open palm" (675.50T). He says his head "almost [came] to the steering wheel" (676.4T). The push was accompanied by a further iteration of the racial vilification. This incident occurred shortly after the taxi crossed the entrance to Jamison St on George St when the taxi was outside the National Australia Bank. He says that he did not initially say anything to Mr Hamilton, continued to drive north in traffic and as he was nearing the intersection of George St and Grosvenor St, which is the next intersection only a short distance further on, he spotted a police van heading South and said "Now I'm going to call the police" (676.35T).This account is broadly consistent with what he told police on the night, and with his statement of 4 January 2010.
2. In his evidence in chief, Mr Hamilton gave no evidence of any conduct by him that could possibly constitute an assault, verbal or otherwise. He described the argument between Mr McGregor and Mr Siddiquee about the route in vague terms. It involved "screaming and yelling" (53.32T). When the taxi stopped he said Mr Siddiquee said, "I'm going to get the police for you racist bastards" to which he responded (54.35T; 355.40T): " 'You're a fool. You're wasting everybody's time. If you're going to get the police, you go and get them but I'm not hanging around'." Having a key to Mr Thomas's apartment, he then took his leave of his friends, alighted from the cab and walked into Grosvenor Place on his way to Harrington St (see also Mr McGregor at 517.30T). He knew the way as he had stayed there before. He accepted under cross examination that this may have been the least direct route to take (376.30T). He did not see Mr Siddiquee get out, although on my findings his exit must have occurred almost simultaneously.
3. Mr Hamilton categorically denies that this or any other assault occurred. He says that when he was trying to intervene in the argument, I infer between Mr McGregor and Mr Siddiquee, to settle things down, he "literally tapped [Mr Siddiquee] on the shoulder" and said he should stop turning around and concentrate on the road. He does not know where the taxi was at this time or whether it was before Mr Siddiquee pulled over. He recalls asking the police in Grosvenor Place whether touching on the shoulder is an assault, something, I observe, he denied saying at the Local Court on 7 December 2011 (457.10 - 458.10T).
4. Mr Clements says he did not see Mr Hamilton "lay a finger on [Mr Siddiquee] ever. Ever, in that whole trip" (329.38T). He says, specifically, he did not see Mr Hamilton push Mr Siddiquee in the back of the head and he saw no reason for Mr Siddiquee to go and get a policeman. Mr McGregor had a "clear line of sight of both [Mr Clements] and [Mr Hamilton] and didn't see [Mr Hamilton] do anything to the taxi driver" (535.40T). Mr Thomas also did not see anyone push the driver in the back of the head.
5. From the evidence given I am not prepared to accept that Mr Hamilton "pushed" Mr Siddiquee in the back of the head causing his head to "almost [come] to the steering wheel". Nor do I accept that racial vilification again occurred at the same time. Had that occurred it could not have gone unnoticed by the other men in the taxi, or at least those in the back seat, if Mr Thomas had dozed off then. Mr Hamilton himself admits to touching, or "tapping" Mr Siddiquee when telling him to concentrate on the road. Indeed, I accept that after his arrest at Grosvenor Place Mr Hamilton asked the police whether touching on the shoulder was an assault. Given that this statement was made in the aftermath of Mr Hamilton exiting the taxi I am prepared to accept that Mr Hamilton did make physical contact with Mr Siddiquee in some way. I appreciate that this finding sits at odds with the evidence of the other three passengers who all say in effect that they did not see Mr Hamilton "lay a finger" on or "push" Mr Siddiquee in the head. From their evidence I infer that nothing of any moment occurred. But from his "admission" to police I accept that Mr Hamilton did deliberately touch Mr Siddiquee without his permission. It was probably a fleeting contact which explains why no one else noticed.
6. The apparent logic of events suggests that Mr Hamilton gave the taxi-driver a shove on the shoulder sometime during the argument, probably just before Mr Siddiquee saw the police van (see 789.5T). His reference to a "tap" is a likely understatement. The "incident" probably occurred further north than the corner of George and Jamieson Streets, outside Grosvenor Place, just north of the intersection of George and Grosvenor. This would have been just before Mr Siddiquee got out of the taxi.
7. Naturally when must allow for a degree of hustle and bustle in ordinary life. Not every unlooked for contact will be an assault. But the finding I have made is one of Mr Hamilton assaulting Mr Siddiquee. I acknowledge that Mr Siddiquee's occupation of taxi-driver makes this finding worse because of their vulnerability: s 21A(2)(l) Crimes (Sentencing Procedure) Act 1999 (NSW). On the other hand the actual physical violence involved did not amount to much. That others did not see it and, palpably, no injury was inflicted which suggests it was the type of thing about which ordinary people would say "there was nothing in it." Indeed that no injury occurred is confirmed by the consideration that Mr Siddiquee was too busy with his work to get around to making a statement to police until 4 January 2010, nearly 4 weeks later: 778.10-20T; 781.45T; 784.15T; but cf 688.5-10T and 785.11T.

Taxi security measures - did Mr Siddiquee push the 'emergency (M13) button'?

1. At the time the incident occurred all taxis operating in the metropolitan area were required by law to be fitted with an "approved duress alarm system" and an "approved security camera system": cll 112 and 114 Passenger Transport Regulation 2007 (NSW) ("the Regulation"). Taxis under the control of Combined Services were fitted with in-board security audio-visual recording equipment which in normal mode operated independently of the taxi driver. The camera in the taxi took a series of silent still images in response to certain functions within the taxi. For example images were captured when a passenger opened the door; when the driver turned the meter on and off; when a passenger exited the taxi; and so on. Still images were also taken periodically during the journey however, Mr Douglas Lawman, a solicitor in the employ of the Cabcharge Australia Ltd, called to prove these functions, was unable to say at what rate or frequency this occurred (552.15T).
2. The approved duress system was a "button" known as M13 to be activated by the taxi-driver when necessary. When activated events in the taxi were audio-visually recorded on a continuous basis. Sound was monitored by the radio-room of the taxi network. The visual recording may not have been in real time. In 2009, the storage capacity on a taxi camera was limited, so it was possible for the recording to be lost by the camera being reset for subsequent fares and the recording-over of later images, if earlier recordings were not downloaded first. Mr Siddiquee gave evidence that he believed wiping by over-recording had occurred here (685.49T).
3. Mr Siddiquee says that the M13 in his taxi in December 2009 was located underneath the dashboard. He gave evidence that he pressed the button when Mr Hamilton pushed his head. If this evidence was correct, this would then initiate the on-going recording, and active monitoring by the radio-room. However as it turns out, no recording from the evening of 12 and 13 December 2009 was tendered. Nor was there any evidence from any controller in the radio-room to corroborate Mr Siddiquee. Mr Steirn put to Mr Siddiquee that he had "made up [a] story about pressing M13 button" as a self-serving statement to support his version of events (790.35-45T).
4. The absence of the in-board AVL recording was a collateral issue that assumed some importance in the presentation of the plaintiff's case. Mr Hamilton had maintained from an early stage that the recording would support his version of events. S/Cst Mildenhall recorded at p 31 of his notebook (Exhibit F) that Mr Siddiquee said the assault was recorded "both on audio and video from within the taxi". He said he "asked the driver to save the footage." Patently no "footage" was "saved". This raises more than one question. Both parties assumed there was "footage" to save and offered different explanations for its absence. The implication in the stance of each of them was that footage would obviously advance their own case. Apart from the sequence automatically recorded stills I am not persuaded that there was ever any audio-visual footage because I am not satisfied that Mr Siddiquee activated the duress or M13 button. Accepting footage may be wiped by the recording of subsequent events does not explain the absence of evidence of radio-room monitoring of events. Moreover for reasons explained below I found Mr Siddiquee's evidence on this topic unsatisfactory.
5. I should interpolate however that the "failure" of the police to secure the footage immediately was treated with great suspicion by Mr Hamilton's legal team. It was said to be a factor tending to prove malice for the tort of malicious prosecution. It is necessary therefore to analyse the evidence. The argument has two limbs. The first is that there is no footage because Mr Siddiquee did not press the emergency button, implicitly because there was no need to. The second is as there was nothing to see, that circumstance was in fact favourable to Mr Hamilton. By failing to secure compelling, affirmative evidence of the absence of footage the police deliberately suppressed evidence consistent with Mr Hamilton's innocence, or at least evidence that would have shown that the "assault" was, at worst, minor.
6. There were probably a number of reasons for S/Cst Mildenhall not obtaining a signed statement from Mr Siddiquee on the spot, including the need to accompany Mr Hamilton to the hospital and Mr Siddiquee's desire to keep working. Mr Siddiquee's evidence about continuing to work is muddled, but I am inclined to think he did. I do not accept his evidence that he was too upset to continue. He also said that S/Cst Mildenhall (the police are apparently familiar with these things) did not tell him that in order to download the footage the taxi would need to be taken back to base straight away. Forty-five minutes later S/Cst Mildenhall called Mr Siddiquee requesting that he take his taxi back to base. He replied that the recording could have already been overridden, demonstrating Mr Siddiquee had some knowledge of these things too, as one would expect. In the forty-five minutes between giving his details to the police and S/Cst Mildenhall calling him, Mr Siddiquee continued driving and only stopped taking fares after he spoke with S/Cst Mildenhall on the phone. This was around 12:30-1:00am, just over 2 hours before his shift was meant to conclude. When asked why he did not take his taxi at this point to the base to look at the footage he said, somewhat inconsistently in my view (786.4-6T): "I don't know the procedure. First of all, I don't know the procedure, how to do it, and second of all, the ‑ I also told to the Court that they are not going to download the picture on my order." He meant there had to be a request from the police.
7. Mr Siddiquee also said the base closes at 11:00pm and there would have been no technician there after this time. In any event they would not download the images without a request from an authorised person. Mr Siddiquee said that he did contact the radio-room operator who said that he needed to contact his taxi operator, Ahmed. His evidence was that he was unsuccessful in contacting Ahmed that night. Nothing further was done by Mr Siddiquee to download the footage. Sunday and Monday were his days off, and he was not prepared to pay for the car to be off the road while the technician retrieved any extant recording.
8. In cross examination, Mr Siddiquee said (776.22-34T): "Q. At that time you were told to save the footage, weren't you? A. Yes. Q. You understood what was meant, did you not? A. Yes. Q. You understood the police wanted to listen and view the in car visual and the in car audio? A. That's true. Q. Because you told them at the same time that you had pressed the M13 button? A. That's true."
9. I take "that time" as being the time that S/Cst Mildenhall spoke to Mr Siddiquee in George St. S/Cst Mildenhall, on the other hand, has no recollection of a conversation with Mr Siddiquee about activating the duress button (917.1-14T): "Q. You also knew about M13, didn't you? A. M13? Q. The taxi emergency button, does that refresh your memory? A. No. Q. Didn't he tell you about M13? A. No. Q. About pressing the emergency button that night? A. I don't recall M13, no. Q. You've never heard that word before today? A. No."
10. It was Mr Siddiquee's belief that a policeman would know about the M13 or the emergency button. He agreed with the proposition put by Mr Steirn that "if a policeman knew about the M13, that was something you would have volunteered at the time when you made your statement" and indeed said that he did volunteer that information (790.10-20T). In his statement to police however, which forms part of Exhibit F, there is no mention that he pressed the emergency button. While a plausible explanation may be that Mr Sidduiquee though he had included that he pressed the button in his statement, the fact that S/Cst Mildenhall also has no recollection of being told about the emergency button suggests to me, contrary to what Mr Siddiquee asserts, that he did not press the button. His police statement was made on 4 January 2010. I think it is safe to say his recollection back then, a few weeks after the incident, would have been more accurate than his memory at the hearing. This is not to say that I think Mr Siddiquee necessarily lied or deliberately "made up" a story about pressing the button. I am of the view that his evidence that he activated the duress system is another embellishment made later to support his version. The whole of the evidence suggests that he did not press the button.
11. It was not until 17 December 2009 that Mr Siddiquee's taxi was taken into the communications section of Taxis Combined. This was in response to an inquiry S/Cst Mildenhall made direct to Taxis Combined about the footage from the taxi. Taxis Combined informed S/Cst Mildenhall that footage starts to re-record after the taxi is hired again and for footage to be saved it has to be downloaded after the particular hiring, unless it is a newer model camera with greater storage capacity. By email, dated 18 December 2009, Ms Margaret Haslam, an employee responsible for co-ordinating, inter alia, police requests for recorded images, wrote to Mr Mark McKay, a technician charged with the burning of images that are downloaded from a taxi onto a CD ROM. The relevant contents of the email are as follows (Exhibit 16): "David Lao did the download for T4394. If you do the CD-ROM I will phone JARED MILDENHALL to advise him. However this incident was dated 12.12.2009-13.12.2009, are there any images on this date?" David Lao is an employee who has the security agent's licence required todownload images from a taxi. (There are issues about the privacy of innocent passengers: cl 114(4) and Sch 1 of the Regulation.)
12. There is also evidence (Exhibit D) of a letter from Mr Lawman to Paul Kenny & Associates, who were then acting for Mr Hamilton, dated 24 March 2010 which says: "I have to hand your email of [24 March 2010], seeking images in relation to an incident that allegedly occurred on 12 December 2009 involving the driver of T 4394. Our investigations into the matter reveal that on or about 12 December 2009 a request for images to be downloaded was received and a download was accordingly undertaken. … the downloaded images were kept for 30 days and then destroyed. During the 30 day period no request for the images was made by the NSW Police … Accordingly to the best of my knowledge no image exists "
13. On their face, these pieces of documentary evidence may seem inconsistent with other evidence in the trial, in as much as they may support an inference that images from Mr Siddiquee's taxi were available, but the police neglected to pick them up and that they were accordingly destroyed after the statutory 30 days (see Sch 1 cl 5(1) of the Regulation). Under Cl 5(2) of Sch 1, the recording may be given to a police officer if it is to be used for an authorised purpose. It is apparent from Mr Lawman's evidence that his letter was written after he made inquiries in relation to the matter. It certainly suggests that images were downloaded but in the absence of a request from S/Cst Mildenhall's. They were, as I have said, destroyed. I do not think that this is correct.
14. S/Cst Mildenhall gave evidence about his attempt to secure any images from the security camera. It must be said that not all of the evidence is entirely consistent. I have already recorded his evidence that he had not heard of M13 before giving evidence. He also said that as at 12 December 2009, he had no knowledge of the appropriate procedures for requesting images from taxi security cameras (854.28T). He was not aware of how they worked. I infer that the possible significance of the evidence was not lost on him. He acknowledged, however, at the hospital that the plaintiff had requested that he obtain the footage from the taxi (919.40T). He told Mr Hamilton that "we'd be viewing the taxi footage (855.18T). When he left the hospital he rang Mr Siddiquee's mobile phone about the footage (as I have said above) and Mr Siddiquee told him the taxi had been rehired and that the footage had failed to be recorded. I interpolate this is surprising evidence given that the taxi driver had volunteered that there was audio visual images of the incident, and the police officer had asked him to save it at the scene.
15. Notwithstanding what he was told by the taxi driver on the phone, S/Cst Mildenhall contacted Taxis Combined on 17 December. His evidence about this is not entirely consistent. It seems obvious, however, that such a telephone call prompted action on Ms Haslam's part, as shown in the email. I infer that this is the request referred to in Mr Lawman's letter (Exhibit D) and that it was made on 17 and not 12 December 2009. I would also infer that Ms Haslam arranged for Mr Lao to "[do] the download". For reasons that are not clear, Ms Haslam was uncertain about whether any images had been successfully downloaded. She queried whether there would be "any images" for 12 - 13 December 2009.
16. He said he was told the follow (presumably by Ms Haslam) (862.8-11T): "They told me that the footage starts to rerecord after the taxi is hired again, that for any footage to be saved it has to be saved after the hire of that taxi although they have the newer model cameras and if it was one of the newer model cameras there was a possibility that footage was available." This, of course, is consistent with the evidence given by Mr Lawman. S/Cst Mildenhall rang Mr Siddiquee again to arrange his statement. He says that Mr Siddiquee told him "that the footage had failed to record" (862.23T).
17. I infer that S/Cst Mildenhall took this as inquiry enough. When the contents of Exhibit 16 and Exhibit D are considered together the probabilities are that S/Cst Mildenhall made no further inquiries about the CCTV footage after 17 December 2009. He took a statement from Mr Siddiquee on 4 January 2010 (in which statement Mr Siddiquee did not mention activating the duress button) and spoke to Mr Hamilton on 6 March to inform him that he would be charged. Mr Hamilton inquired about the footage and the police officer informed him that there was none.
18. His evidence in cross-examination was a little inconsistent. He said that he was now aware of the existence of "an emergency button" (921.8T). He agreed that any footage would have been "important" evidence and he made a note on the COPS system that he was "waiting to view the footage to determine what action would be taken in [the] matter" (922.5T). He also said that he in fact spoke to Mr Hamilton on 17 December and that the latter again brought up the subject of the footage. S/Cst Mildenhall informed Mr Hamilton "The taxi company were calling the taxi back into the depot to see if there was any footage" (922.50T) and that by then Mr Siddiquee "hadn't responded" (923.6T). His belief on that day was that "there's a chance the footage would be there" if the taxi had been fitted with the newer camera. It is apparent that the police officer made no further inquiries of the taxi company after 17 December. However, from Exhibit 16, the better view is that he left it with Ms Haslam on the basis that she would contact him if relevant images were recovered.
19. I spent quite some time on this evidence because the parties, in particular, Mr Hamilton, placed great emphasis on the absence of images, as I have said. As I have explained, I am satisfied that Mr Siddiquee did not press the duress button. He did not press it because in spite of the argument and the boisterous, boorish conduct, nothing of sufficient significance which would justify that step in his mind occurred. It seems incredible, if anything of any real significance occurred, in the face of a request from the police that the images be saved that he would simply continue with his work in the apparent knowledge that the reactivation of the security system on the next hiring would have the effect of erasing whatever images were previously there. Moreover, the absence of any suggestion of any involvement of the radio supervisor in monitoring the cab on 12-13 December 2009 is itself compelling evidence that the duress button was not activated.
20. I am satisfied that S/Cst Mildenhall did make an inquiry of Ms Haslam on 17 December; that she caused Mr Siddiquee's cab to be called in; arranged for Mr Lao to download any available images; and for Mr Mackay to prepare a CD. Had there been images, I am satisfied that Ms Haslam would have so informed S/Cst Mildenhall. The obvious explanation for the absence of footage from the taxi is that there was none. It was perhaps surprising that there is no record of Ms Haslam getting back to S/Cst Mildenhall, but it seems likely that she did, indeed more likely that the police officer acting just on the say-so of the driver. Mr Lawman's suggestion that the images were destroyed after 30 days because "no request for the images was made by NSW Police" probably was based on an erroneous assumption made by him rather than specific information he received during his inquiries. As I have said, repeatedly, the NSW Police did make a request for any available images when S/Cst Mildenhall spoke to Ms Haslam.

Mr Hamilton alights from the taxi

1. There is an issue about the manner of Mr Hamilton's exit from the cab and his purpose. The State submits that this is significant because it evinces a clear attempt to avoid or evade the police which evinces a consciousness of guilt of the assault on Mr Siddiquee and justifies the manner in which S/Cst Mildenhall reported to exercise his powers of arrest. Again, it is necessary to go through the evidence in a little detail. The elements of the argument on behalf of the State include Mr Hamilton leaving the taxi at all, the direction of travel, the speed and manner of his movement. Mr Hamilton, on the other hand, says effectively he'd had enough and took the opportunity to get out of the cab and make his own way back to Mr Thomas's apartment. As I have previously recounted, he accepted the route he chose through the Grosvenor Place was not the most direct route he could have followed.
2. Mr Siddiquee says that after he said, "Now I'm going to call the police" he saw on his right hand side a police car. The traffic at this point on George St was bumper to bumper. Mr Siddiquee says that he put "the hazard lights on and parked…safely…in front of the Brooklyn Hotel" (676.45T). He described the police vehicle as a "big van" and agreed it was the same type of van as shown in Exhibit 18. The police van was in the centre lane. Mr Siddiquee says that after he pulled up he crossed the road and spoke to the police through the driver's window: (678.39-42T) "And I said, in the meantime, when I just turned my body, point out the man, like the older one assault me, when I put my body to show the police, that man, and he already out from the taxi, and the door is wide open. And I said, that man is assaulting me, and hit my head."
3. He says that the passenger driver's side door was open when he turned around and Mr Hamilton was on the road for a few seconds before he "just dipped behind the taxi, he just keep [sic] running between the Brooklyn and Grosvenor Place, there's a dark area" (679.16-17T). After speaking with the police Mr Siddiquee says that one of the police officers crossed the road and told him and the other three passengers to "just stay here" (680.35T).
4. Mr Hamilton says that prior to stopping the taxi Mr Siddiquee said "I'm going to get the police for you racist bastards". In reply he said (54.35T): "You're a fool. You're wasting everybody's time. If you're going to get the police, you go and get them but I'm not hanging around."
5. He says that Mr Siddiquee got out of the taxi first and then he got out after because he was "extremely annoyed by the screaming and yelling…I had tried to subdue it a bit but nobody was listening" (55.3-4T; 387.10T). He left the taxi intending to meet the other men back at Mr Thomas' place. He says that he did not at any time see the police van (356.5T).
6. Mr Clements said that Mr Hamilton got out of the taxi at the same time as Mr Siddiquee. He agreed that Mr Hamilton may have exited as Mr Siddiquee was getting to the police van but "as far as [he was] concerned" they left at the same time (311.25T). Mr McGregor says there was a 45 second to 1 minute gap between Mr Siddiquee getting out of the taxi and Mr Hamilton leaving. He says that he lost sight of Mr Siddiquee after he got out and did not see him walk over to the police van or the policeman come across the road.
7. Given that Mr Hamilton, Mr Siddiquee and Mr McGregor say that it was Mr Siddiquee who got out of the taxi first I accept that this was the case. I also accept that Mr Hamilton got out very soon after, within seconds after informing the other men in the taxi that he had had enough and would meet them later. I think it very likely that Mr Hamilton noticed the police van and Mr Siddiquee walking towards it before getting out of the taxi. S/Cst Mildenhall said that he was part of an operation in the northern CBD district that night (807.29-31T) and Mr Thomas observed a "huge" amount of police around. Likewise, Mr Clements said because it was "a high alert weekend", a fact he picked up from the media. He figured Mr Siddiquee pulled over because there would have been police cars everywhere and ran over to one of them. I accept then that as it is likely that Mr Hamilton would have seen the police van in George St when he heard Mr Siddiquee say he was going to get the police, he was not going to hang around to talk to them.

Mr Hamilton's exit pace

1. After alighting from the taxi Mr Hamilton says he "moved quickly" from the road to the footpath "to avoid the oncoming traffic that [was] coming from south to north" (387.49-50T) and once he got to the kerb "I slowed down to normal pace" (388.32T). He was then at normal walking pace when S/Cst Mildenhall came into contact with him.
2. S/Cst Mildenhall described Mr Hamilton as "running away" (809.8T) in a westerly direction from the kerbside lane onto the footpath and into a covered area behind the Brooklyn Hotel. S/Cst Liebrand similarly described Mr Hamilton moving at a "fast jog" from the footpath to behind the Brooklyn Hotel (1017.11T). Mr Hamilton expressly denied that he ran onto the footpath and under the building. Upon encountering Mr Hamilton in the foyer S/Cst Mildenhall observed that Mr Hamilton had "slowed his pace from a run down to a brisk walk" (811.26T).
3. Mr Stephen Hope and Dr Glen Lichwark produced expert reports based on the CCTV footage of Grosvenor Place (Exhibit 24 tabs 5 and 7). Both Mr Hope and Dr Lichwark provide a similar estimate of the preferred walking speed of an adult male being in the vicinity of 5.22 - 5.5 km per hour (Dr Lichwark) and 5.5 - 6.5 km per hour (Mr Hope). Mr Hope's view, based on his calculations from the CCTV footage and visit to Grosvenor Place, is that Mr Hamilton's movement when coming into view of CCTV camera 1, located at the entrance to Grosvenor Place, indicates he was travelling at a speed of 7.838 km per hour. He says that in the 3.4 seconds between Mr Hamilton leaving the view of camera 1 and coming into view of camera 2, where the incident between Mr Hamilton and S/Cst Mildenhall took place, he has slowed his pace before being stopped by S/Cst Mildenhall. Similarly, Dr Lichwark calculated the minimum speed of the plaintiff based on CCTV camera 1 to be 7.59 km per hour. This figure is based on a number of assumptions including the measurements of Mr Hope and the visibility of Mr Hamilton in the frames. He says that Mr Hamilton's speed range from CCTV camera 1 "is certainly above that which would be considered to be a preferred or average walking speed" and walking at his speed would be "much more similar to power or speed walking." He even says that Mr Hamilton's calculated speed range is "certainly within or above" that where running would be preferred (Exhibit 24, p 105).
4. I accept that when exiting the taxi Mr Hamilton "moved quickly" onto the footpath. I do not accept that he was running away from the taxi but I find he was moving at an accelerated pace. The "Southern Plaza Entry" CCTV camera (Exhibit A) shows Mr Hamilton emerging from a walkway into the foyer of Grosvenor Place. I agree with Mr Hope and Dr Lichwark that the camera depicts him moving at a speed more closely aligned with "power or speed walking", rather than jogging. As Mr Hamilton comes into the second frame, of camera 2 his pace appears to slow down until he is intercepted by S/Cst Mildenhall. From my view, this slower pace is faster than the "normal pace" which Mr Hamilton says he was moving at before being intercepted and more closely aligns with the "brisk walk" pace described by S/Cst Mildenhall. Mr Hope expresses a similar view. I find therefore that upon Mr Hamilton exiting the taxi he moved quickly onto the footpath, proceeded to power walk at an accelerated pace into the walkway in Grosvenor Place and once through the walkway and in Grosvenor Place he slowed his pace somewhat to a brisk walk before being intercepted by S/Cst Mildenhall. This should be kept in perspective. S/Cst Mildenhall was not running as he approached but had no difficulty catching-up.
5. I do not accept that Mr Siddiquee had pulled over with the intention of calling the police before he saw the large police van. As I have said before, I find that it was him seeing the van that caused him to pullover to take the opportunity to report the matter to the police because he had had enough. I am also persuaded that Mr Hamilton noticed the police at least at about the time that Mr Siddiquee got out of the taxi and I am of the view that this was born of a desire to avoid having a discussion with the police about his conduct in the taxi including shoving Mr Siddiquee in the course of the acrimonious exchange. This conduct was a fact which I took into account when I found that Mr Hamilton had assaulted Mr Siddiquee, in what I regard as a minor way. I accept that he moved away from the cab and entered the Grosvenor Place building quickly in the hope of avoiding the police. He slowed his speed probably when he thought he was more or less clear of them. I am not persuaded, however, that he had any real apprehension of being arrested rather, as he said in evidence, if Mr Siddiquee was going to get the police, Mr Hamilton was not going to hang around to be questioned by them.

The reliability of the evidence of the main participants in the arrest of Mr Hamilton

1. The events with which this case is concerned occurred about six years before the main participants were required to give evidence before me. In the meantime there have been two prosecutions in the Local Court, one of Mr Hamilton for assaulting Mr Siddiquee and resisting police in the execution of their duty, and the other a prosecution of S/Cst Mildenhall for allegedly assaulting Mr Hamilton. Additionally, the second Local Court prosecution was preceded by proceedings before the Police Integrity Commission. The prosecution against Mr Hamilton was resolved in his favour in as much as both charges were withdrawn and the proceedings were dismissed. S/Cst Mildenhall was acquitted in the Local Court after a summary trial. Both men have therefore been called upon to give a number of versions of these events over a number of years. I did not feel that practice made perfect. Both of them freely admitted repeated viewing CCTV footage of the incidence (Exhibit A and Exhibit B). Both had obviously played and replayed the CCTV footage and at various speeds. Mr Hamilton agreed that he had looked at the CCTV footage "so, so many times" (390.5T). S/Cst Mildenhall said that he had used the CCTV footage to refresh his recollection (818.39T) at least after the first Local Court prosecution. Indeed, S/Cst Mildenhall at some stage obviously went through the CCTV footage very slowly printing off very many individual stills that he said supported his version of events.
2. S/Cst Mildenhall's partner S/Cst Liebrand had also viewed the CCTV footage out of court on more than one occasion (1159.10-20T). This phenomenon has led to a situation where the account of each of them is not really borne of an actual recollection of the events as they occurred. Rather each has engaged in a process of reconstruction, or perhaps construction, of an account favourable to or supportive of their side of the story. For this reason quite apart from specific areas where I find that their evidence should be accepted, the accounts given by them are generally unreliable. I should say, in fairness,that of these three main witnesses Mr Hamilton has engaged in the least reconstruction. Notwithstanding viewing the CCTV many times his memory frequently failed him as to what was happening when.
3. Although I will take into account what the witnesses say is depicted on the CCTV footage - the images are not always very clear - I too have viewed the CCTV very many times. It was shown frequently in court to various witnesses, sometimes more than once and I have reviewed it in chambers, more than once, during the time taken for consideration for my decision. In my view, it provides, more or less, real evidence of what happened. Having said this, it is of course, necessary to review the evidence of the main protagonists for the purpose of evaluating what is shown on the CCTV footage.

Mr Hamilton's version of events

1. Mr Hamilton, through his counsel, says his evidence is to be assessed in the context of his "understandable difficulties recalling all events" due to, inter alia, the passing of time and the violent nature of his apprehension. He was a witness who was "doing his best to give a truthful account" of matters on which he was questioned.
2. It was put that it is beyond argument that there was forceful physical contact to a significant degree made by S/Cst Mildenhall. This included grabbing, pulling, pushing and other forceful physical contact. The CCTV shows the area where he was arrested was a foyer or pedestrian walkway; it was not open to the elements, being confined by a wall on one side and the Brooklyn Hotel on the other. The Brooklyn Hotel has an outside courtyard and music from that bar was very loud.
3. Mr Hamilton said that while he was walking up Grosvenor Place (55.30T): "… somebody grab [sic] me in my left arm, and as I was turning round to see who it was I was swung and my head hit the ‑ so, the granite wall and there's a bench... And I was, I was propelled. And my legs couldn't go forward so my body did. My head and my body did, and hit the wall…"
4. And then (55.37T): "I felt myself being forced down onto the bench, and I can remember having a hand on the bench and a hand on the floor…"
5. The physical force used by S/Cst Mildenhall at this time caused his head to strike the wall forcefully. Further force was also used after the arrival of S/Cst Liebrand causing him to fall forwards and come into forceful contact with the ground. He was "being held by a person on either side and they were both kneeing me in the ribs". He fell to the ground twice, first when he hit his head and went down on the bench and second when "I was thrown to the ground" (58.20T) and then felt "the knees coming in again". He was left on the ground for a significant period with his hands handcuffed behind him before being moved to the bench seat.
6. When first grabbed on the shoulder, he believed he was being mugged because - "I was grabbed from behind and swung into the wall" (99.17T). It was only after he was on the ground the second time that he heard "[i]t's police, you are under arrest". After this, his recollection is being handcuffed and sitting on the granite bench.
7. When Mr Hamilton was taken through Exhibit B, the enhanced version of the CCTV footage, it became clear that he had little recollection of the incident from the point where he thought he was being mugged until he later came to be sitting on the bench (105.40 - 106.5T).
8. He does not recall experiencing any pain when his head first hit the wall (56.43T). It was his ribs being kneed that caused pain and later when on the bench he was in "excruciating pain" (60.11T) and thought his ribs were broken. Speaking "was hurting my ribs" (60.18T).
9. He denies at any point during the confrontation offering resistance in any way, shape or form to S/Cst Mildenhall and does not recall S/Cst Mildenhall asking him to "stop resisting". He denies swinging his arm with a clenched fist towards S/Cst Mildenhall or later pushing S/Cst Mildenhall in the chest after he was on the bench for the first time (448 - 449T). He agreed it was a possibility that what he took to be kneeing in the ribs, when he was on the ground the second time could have been S/Cst Liebrand falling on top of him after losing his balance however he maintained "that I was kneed on either side" (450.28T).
10. It was put to Mr Hamilton that his head did not hit the wall after S/Cst Mildenhall first made contact with him, and that the grazing on his face (Exhibit C, p 161-163) occurred when he was on the ground the second time. It was also said that his recollection of his head hitting the wall comes entirely from the CCTV footage and that, until he saw the footage, he had no memory of that occurring. He was cross examined on his interview with the Police Integrity Commission undertaken with his solicitor Mr Kenny on 20 January 2011. Mr Kenny there remarks that they did not know Mr Hamilton's head hit the wall until they saw the CCTV (439.45 - 441.5T). This was denied. He said the grazing around his eye was from hitting the wall and the grazing on his chin from hitting the ground (412.40T). Similarly, he did not agree that his memory was manufactured from viewing the CCTV footage and that he was "trying to attribute a more violent act occurring…than happened in reality" (441.7T).

S/Cst Mildenhall's version of events

1. S/Cst Mildenhall said that at all times during his interaction with Mr Hamilton he complied with appropriate, trained and established police protocol. His actions were in "no way gratuitous or punitive in nature" and, were it accepted that the contact was forceful, it was force that was reasonably necessary in the circumstances to make the arrest.
2. S/Cst Mildenhall was dressed in full riot squad uniform. This includes dark blue overalls with the word "POLICE" on the front chest and back middle area. After running into the foyer he called out "Stop, police" but Mr Hamilton did not respond. I interpolate that Mr Hamilton challenges that this was said. He points out there is no record of this phrase in S/Cst Mildenhall's contemporaneous COPS entry and the first record of this phrase was in his statement for the initial local court proceedings. According to S/Cst Mildenhall these words were "not necessarily" one of the very first things he would have recorded in his COPS entry.
3. The noise in Grosvenor Place was extremely loud. He continued towards Mr Hamilton and "grabbed him on the left upper arm with my left hand" (812.14T). He then said "Stop there, mate" and he considered Mr Hamilton under arrest; he did not know who he was and had just received a complaint that he had assaulted someone and was fleeing the scene. He needed to know who he was to potentially bring him before a court (853.20-35T). In response to questions about why he did not use the common phrase "you are under arrest" he said he did not have time as he was not expecting Mr Hamilton to turn around and try and assault him. The next thing that happened was Mr Hamilton twisted his body away from him and looked in his direction.
4. S/Cst Mildenhall agreed that there were other options available in this initial situation of attracting Mr Hamilton's attention. These included running around to get in front of Mr Hamilton or calling out again. As to the former, he said such action would have been dangerous based on his training as he had no back up; as to the latter, he had already unsuccessfully called out a number of times (816.40 - 817.25T). He agreed there is less danger in an offender knowing he is being stopped by a policeman as opposed to a person being grabbed from behind, not knowing who it was (899.40-47T).
5. S/Cst Mildenhall said that Mr Hamilton, after moving his left arm away twisted his upper body counter clockwise so that his right shoulder was coming forward and his left going back. At this time Mr Hamilton's right arm was "parallel to the ground" with a stiff upper arm and clenched fist. He said thought he "was about to be assaulted". To avoid being struck he moved his head back and slid his arm from Mr Hamilton's upper arm down to grip his left wrist in an attempt to perform an arm bar takedown. An arm bar takedown is a method exacting compliance by inflicting pain. He is a taught and approved police manoeuvre. The aim is to put a person on the ground in a position of submission. He did this "because of the assault that…in my mind was imminent upon myself" (823.42-3T).
6. In describing the sequence of an arm bar takedown he said (at 824.1-9T): "Q. Can you describe the actual manoeuvre, what you do with your hands and elbows, any other part of your body and to what part of the body of the plaintiff you do it to? A. Yes. So my left wrist ‑ my left hand, sorry, was on his left wrist. Q. Yes? A. My right forearm was then placed ‑ I extended my ‑ his left arm so that it was straight, and my right arm was placed into the muscular area behind the plaintiff's left upper arm." And further at 824.37-46T: "Q. ‑‑how does the arm bar takedown proceed in this case? A. Then I put my weight towards the ground. Q. How do you do that? A. So I bear down, my weight forward and downwards, in a downward direction. Q. When you say bear forward and downwards, please try and explain that in non‑police terms? A. I moved my body towards the ground."
7. As he was completing the manoeuvre, that is, once he had hold of Mr Hamilton's left wrist and right forearm, Mr Hamilton moved forward and instead of going straight to the ground in a controlled manner he moved towards the bench seat area in a downward motion (826.14T). This caused Mr Hamilton's right hand and then shoulder to come into contact with the wall before his chest area came into contact with the bench seat. At no time during this manoeuvre was Mr Hamilton's body intentionally driven or swung so that his head would hit the wall. His main concern was to gain control of the situation.
8. After this Mr Hamilton tried to get up; he was pushing on the bench seat with his right hand. S/Cst Mildenhall struggled in getting a wristlock on Mr Hamilton's left wrist and told him to "stop resisting". A wristlock is another pain compliance technique applied by getting one hand over the other and putting a downward pressure on the wrist. Mr Hamilton continued to struggle so he stepped forward and pushed him off balance. At this stage his left hand was on Mr Hamilton's upper left arm and his right on the base of his neck so he was able to push Mr Hamilton forward, bringing him to a horizontal position. Mr Hamilton continued to struggle, so an attempt was made to gain control of his left wrist again. It was about this time that S/Cst Liebrand arrived.
9. S/Cst Liebrand attempted to get a wristlock on Mr Hamilton's right arm and then Mr Hamilton stopped resisting. S/Cst Mildenhall then relaxed his grip on Mr Hamilton and Mr Hamilton immediately stood up from his position across the bench seat kneeling on the ground. He turned and faced him and with his right hand pushed him in the chest and started pulling away. Whilst this was happening he had hold of Mr Hamilton's left arm and both he and S/Cst Liebrand continued to tell Mr Hamilton to "stop resisting."
10. Following this a leg sweep was performed. A leg sweep is designed to get a person to the ground quickly by pushing the person off balance and then using your leg to take their balance away, effectively tripping them up. Whilst undertaking this manoeuvre S/Cst Liebrand was still holding onto Mr Hamilton's right arm. But as S/Cst Mildenhall performed the leg sweep he lost his grip and both Mr Hamilton and S/Cst Liebrand went forward to the ground. S/Cst Liebrand fell across the middle of Mr Hamilton's back. Another wristlock was put on Mr Hamilton and S/Cst Liebrand handcuffed his hands behind his back. S/Cst Mildenhall agreed that once Mr Hamilton was on the ground the fight had gone out of him and the police officer was now in control of the situation. When asked why then was there a need to handcuff him he responded that "just because he wasn't resisting at that stage didn't mean that he wouldn't in the future so it was to prevent further assault upon myself or Senior Constable Liebrand" (912.20-22T).
11. After Mr Hamilton was handcuffed S/Cst Mildenhall left the area briefly to talk to Mr Siddiquee. When he returned he introduced himself to Mr Hamilton who then complained his rib was broken. Mr Hamilton was escorted a short distance away, still under the cover of Grosvenor Place to a low wall where he was able to sit down and S/Cst Liebrand called an ambulance. Whilst the ambulance was being called S/Cst Mildenhall had a conversation with Mr Hamilton and recorded this in his notebook. The contents of this conversation in general terms included allegations of what occurred in the taxi.
12. He did not believe that during the confrontation at Grosvenor place he was applying disproportionate force in relation to the resistance offered by Mr Hamilton. He also denies any infliction of violence.

What did S/Cst Liebrand say happened?

1. S/Cst Liebrand said Mr Siddiquee approached the public order and riot squad van to inform the police that he had been robbed. Mr Siddiquee pointed over his shoulder at Mr Hamilton who was running away behind the Brooklyn Hotel. S/Cst Liebrand ran in that direction, following S/Cst Mildenhall, and when he arrived Mr Hamilton had his knees against the edge of the long seat with S/Cst Mildenhall applying a wristlock to his rear.
2. At this point, Mr Hamilton was trying to pull away from the wristlock and move around. This caused Mr Hamilton to lean forward across the seat as his arm was restrained behind him by S/Cst Mildenhall then "shouted very loudly, "Stop resisting"" (1018.6T). S/Cst Liebrand grabbed hold of Mr Hamilton's left arm and applied a wristlock. He says (1018.27T): "…I could feel that he was tensing against us, we were trying, we did not have control of him, but…we were gaining control. It wasn't excessive, but there was resistance."
3. Shortly after the wristlock Mr Hamilton stopped resisting and S/Cst Liebrand felt Mr Hamilton go limp so he released his hold. Mr Hamilton then "immediately swung around" to face S/Cst Mildenhall standing almost upright and trying to pull away. He did this is in a "threatening way" bringing his right arm up across his body from a down position (1142.39T). S/Cst Mildenhall was unsuccessfully trying to apply another wristlock on him and S/Cst Liebrand believed Mr Hamilton was about to assault him. I interpolate here that S/Cst Liebrand conceded that he made no mention of this assault in his contemporaneous notes made in his police note book. He grabbed him by the right arm but there was resistance. Mr Hamilton was not under control. He shouted "Stop resisting" and then he attempted an arm bar takedown causing Mr Hamilton to fall forwards onto his chest with his head and body striking the pavement. S/Cst Liebrand says that an arm bar takedown was necessary, despite there being two officers present because Mr Hamilton had resisted, started to resist again and they needed to restrain and gain control of him (1144.5 - 1145.10T).
4. When performing the arm bar takedown, S/Cst Liebrand was also pulled off balance and fell on top of Mr Hamilton's torso across his back. When asked why Mr Hamilton was then handcuffed after he was on the ground he replied that Mr Hamilton "demonstrated to me that he tried to assault an officer, and he was restrained to prevent escape and injury to others" (1147.1T). And when asked why he was not cuffed at the front he said that it is preferable to handcuff to the rear unless there is a reason to do so at the front. At no stage was Mr Hamilton observed to be semi-conscious or unconscious.
5. After this, Mr Hamilton was assisted to a seat. He was groaning and complained of extreme pain shouting ""my ribs are broken"" (1020.6T). S/Cst Liebrand "attempted to speak to him, to apply the safeguards required under the Law Enforcement (Powers and Responsibilities) Act 2002" however the noise from the Brooklyn Hotel was too loud and Mr Hamilton could not hear him. The following exchange occurred (1020.28-37T): "Q. What did you say senior constable? A. I shouted, "You're under arrest for attempting to rob the taxi driver". BODOR Q. Did he say anything? A. Yeah, he shouted back to me. Q. What did he shout back? A. "No, I didn't try to rob him." This occurred in the absence of S/Cst Mildenhall and upon his return Mr Hamilton was moved away from the noise to facilitate better communication. Mr Hamilton complained of being kneed in the back to which S/Cst Liebrand responded "That was me, I fell on you trying to restrain you. I did not knee strike you" (1021.32-33T). An ambulance was called for Mr Hamilton.
6. Mr Hamilton then said to S/Cst Mildenhall, "The black taxi driver was very rude. I challenged him on that…If I touched him on the back of the shoulder, is that an assault" (1022.14-16T). There was no further conversation at this point and shortly after the ambulance arrived.
7. Before finishing his shift, S/Cst Liebrand made notes following the incident in his police notebook. He agreed that there were a number of omissions from his notebook compared to what appeared on the CCTV. He said that a re-examination of the CCTV clarified "parts of the scuffle that I was unaware of". (1159.15T) He denied falsifying or altering any of the documents he created in relation to this incident and the related proceedings.
8. Finally, S/Cst Liebrand disagreed with a number of propositions put to him by Mr Steirn about what happened in Grosvenor Place including: that there was no true resistance to himself or S/Cst Mildenhall; the only reaction of Mr Hamilton was in response to pain applied; that S/Cst Mildenhall already had control of Mr Hamilton by the time he arrived; and at no stage did Mr Hamilton assault S/Cst Mildenhall in his presence (1158.15-40T).

The Significance of the CCTV footage recorded at Grosvenor Place

1. In evaluating what is shown on the CCTV footage (Exhibit A and B), I have had some regard to the expert reports of Mr Hope and Dr Lichtwark. Mr Hope is an expert in audio visual production and post-production. Dr Lichtwark is a biomechanical expert specialising in human movement. He is currently a lecturer at the University of Queensland. The main relevance of his report (Exhibit 24.7) is the information he provides about walking speeds, already referred to. As I have already said, I have relied upon my own impressions of the CCTV footage informed by the other evidence.
2. From the CCTV one sees that the foyer of the Grosvenor Place building joins an outdoor bar. The bar is separated from the foyer by a high concrete wall with a low ledge protruding into the foyer at about seat height. Over the wall one can see that the bar is crowded and there are balloons adorning what appears to be a DJ's sound-deck. Some people are dancing and there is an obvious atmosphere of revelry. The witnesses all agree that the noise emanating from the bar was very loud. I infer from what each of Mr Hamilton, S/Cst Mildenhall and S/Cst Liebrand have said that it was impossible to converse in close proximity to the wall. Mr Hamilton enters the frame first, proceeding as I have said, at what appears to be a brisk walk. A pursuing man proceeding at a faster walk catches up to him some distance short of the steps depicted at the top of the frame. He appears to be attired in navy blue overalls. From the evidence I accept that this is S/Cst Mildenhall's public order and riot squad uniform.
3. As S/Cst Mildenhall catches up with Mr Hamilton he grabs his left arm with both hands and Mr Hamilton is seen to flex his elbow so that his forearm is in a horizontal plane. In one fluid movement S/Cst Mildenhall swings Mr Hamilton around in an anti-clockwise direction towards the concrete wall. As his body is swung around, Mr Hamilton's right arm moved upwards. It did not appear to me that this was a deliberate or willed action on the part of Mr Hamilton and I am not satisfied that he had a clenched fist or the movement of his arm was directed in any way towards S/Cst Mildenhall.
4. S/Cst Mildenhall continued to attempt to manipulate Mr Hamilton's left arm behind his back and as he did so, Mr Hamilton continued forward crashing into the concrete wall face first, although his right arm may have made contact with the wall at about the same time. S/Cst Mildenhall then forced Mr Hamilton forward onto the bench, still pulling at his left arm and putting his right hand on Mr Hamilton's neck forcing him down, face first onto the rough concrete ledge. It is obvious from the footage that S/Cst Mildenhall was exerting considerable force holding Mr Hamilton down. At one point Mr Hamilton attempted to push up with his left palm from the ground and his right forearm from the Bench. I would not have regarded this as a sign of overt resistance; again, it has the flavour of a reflex action from someone who by now seems significantly groggy.
5. Whilst S/Cst Mildenhall continues to hold Mr Hamilton down by pushing on his neck and holding his left arm, S/Cst Liebrand arrives on the scene and assists S/Cst Mildenhall to pull Mr Hamilton to his feet. As they do so they turn Mr Hamilton around towards them. S/Cst Mildenhall had him by the left arm and S/Cst Liebrand was on his right side, but did not appear at that time to have any contact with Mr Hamilton. One can see his right arm come up from his waist across his own chest and flexed at the elbow. But this does not strike me as in any way an aggressive move. If anything he appears to be putting his right hand up in a plaintive fashion. By this time he is clearly extremely unsteady on his feet.
6. S/Cst Mildenhall recommenced to manipulate Mr Hamilton's left arm presumably to apply another arm bar manoeuvre. S/Cst Liebrand then attempted to get hold of Mr Hamilton's right arm and as he did so, Mr Hamilton tumbled forward probably in response to S/Cst. Mildenhall's execution of the leg sweep and S/C Liebrand appears to fall on top of him. It's probably then that Mr Hamilton suffered his rib injury. The officers seemed to have taken considerable time to apply handcuffs to Mr Hamilton. I did not form the impression he was struggling or resisting at that time, but the officers were having difficulty for some other reason. When Mr Hamilton was handcuffed, S/Cst Mildenhall left the foyer, leaving Mr Hamilton in the custody of S/Cst Liebrand who is seen to be at times moving Mr Hamilton around on the floor perhaps trying to make him more comfortable. Eventually S/Cst Liebrand assisted Mr Hamilton to his feet, sat him down on the ledge. Mr Hamilton was seen attempting to talk to S/Cst Liebrand. I infer the noise was such that he could not make himself heard and twice the officer bent well forward with his ear close to Mr Hamilton's mouth apparently in an attempt to hear him. I repeat that S/Cst Liebrand said in evidence that the officers had to move Mr Hamilton away from the wall to converse with him. After several minutes, S/Cst Mildenhall reappeared. There was some attempt to talk to Mr Hamilton. He was then assisted to his feet by an officer on either side and is seen to walk with the assistance of the officers out of view. He was moving extremely gingerly.
7. I also reviewed Exhibit B, the enhanced version of the footage for the purpose of preparing this judgment. It did not alter the impressions I formed as recorded above. From the timer superimposed on the image I find that the total time between first contact by S/Cst Mildenhall with Mr Hamilton until the former left him in the custody of S/Cst Liebrand was about one minute and fifty seconds.

Findings concerning what happened in Grosvenor Place

1. I accept the evidence of Mr Hamilton as to what occurred in Grosvenor Place. I reject the conflicting testimony of S/Cst Mildenhall and S/Cst Liebrand. Mr Hamilton's recollection is not full and I accept that this probably due to the passage of time, the violence inflicted upon him which would have been traumatic and confusing, unexpected as it was, and the effects of what I accept is a post-traumatic stress disorder (as to which see below).
2. I accept the account of Mr Hamilton that without warning he was grabbed by his left arm and swung around into the wall and he was forced down onto the bench. I accept that he believed he was being mugged. As I have previously found, it was clear that he has very little recollection of the precise course of events between being forced into the wall and being sat on the bench. However, from the CCTV footage, I am satisfied that he did not attempt to punch S/Cst Mildenhall and that he did not in any way seek to resist either him or S/Cst Liebrand.
3. When he was being forced down onto the bench by S/Cst Mildenhall it is true that he appears to be attempting to push up off the bench with his hands. I would hardly regard this as resistance of a police officer. He offered no violence to any officer. As I have said, at the time he thought he was being mugged and he was attempting to free himself from the painful posture into which he had been forced by, from his point of view, an unknown assailant. I repeat that he did not attempt to punch S/Cst Mildenhall or strike him in any way at any time. I accept that the grazing and abrasions on the right side of Mr Hamilton's face and temple depicted in Exhibit C were inflicted when he was swung into the wall. I accept that the fractures to his ribs were caused by the circumstances of him falling in response to S/Cst Mildenhall's deliberate leg sweep, which also overbalanced S/Cst Liebrand causing him to fall heavily onto Mr Hamilton.
4. I reject the evidence of S/Cst Mildenhall that he called out "stop, police". S/Cst Mildenhall accepted the noise in the foyer was extremely loud. He may have decided not to announce his office because of the futility in the circumstances. However, when he got close he simply said "stop there, Mate". Given the swiftness of what then occurred, it could hardly be expected that Mr Hamilton would have recognised that S/Cst Mildenhall was dressed in full riot squad uniform. I reject the evidence that Mr Hamilton twisted away looking directly at S/Cst Mildenhall before attempting to assault him. I reject the officer's evidence that he applied the "arm bar takedown" in response to a perception that he needed to defend himself. In my viewing of the footage the movement of Mr Hamilton into the wall is fluid and continuous. I observe that the purpose of such a manoeuvre is to inflict pain to extract compliance from a suspect. It may be that S/Cst Mildenhall did not intend to swing Mr Hamilton into the wall. But he certainly intended to inflict force upon him and move him in that direction. That the specific consequence of him colliding with the wall was unintended, in my judgment, it is not to the point.
5. I formed the strong impression after he struck the wall that Mr Hamilton was disorientated and unsteady on his feet. I am satisfied that he was not attempting to struggle to evade a person he knew to be a police officer. Rather he was simply attempting to regain his feet and his balance. S/Cst Mildenhall forcibly pushed his head down onto the bench from the base of his neck while attempting to gain control of Mr Hamilton's left wrist. However, in the position in which he was forced by S/Cst Mildenhall, Mr Hamilton was in a position of complete disadvantage. Pushing his left hand out towards the ground was a reflex reaction to support himself and as I have said push himself back onto his feet. The police officer may have been saying "stop resisting", but given the difficulty with the noise from the bar Mr Hamilton probably did not hear this. In any event, in all of the circumstances I am satisfied that if that was said, it was said in a self-serving manner (904.40 - 906.25T).
6. Given these findings, I reject the evidence that Mr Hamilton "stopped resisting" when S/Cst Liebrand arrived. He was not resisting to start with. I find that Mr Hamilton was then assisted to his feet, rather than rising of his own accord. I reject S/Cst Mildenhall's evidence that Mr Hamilton then pushed him in the chest and started pulling away. There was a movement of Mr Hamilton's right hand and arm, but I find that he moved his right arm up in a plaintive manner, not in an aggressive manner and that he at no time struck S/Cst Mildenhall.
7. I accept that Mr Hamilton and S/Cst Liebrand fell to the ground in response to the leg sweep. That fall was really the end of Mr Hamilton, as I have said. He suffered a painful broken rib at that stage and with two police officers present it is difficult to understand why there was a perceived need to handcuff him.
8. I think it notable that in the account he wrote in his notebook before completing his shift, S/Cst Liebrand only mentions compliance with Law Enforcement (Powers and Responsibilities) Act 2002 ("LEPRA") in his narrative of what occurred after his return from speaking to Mr Siddiquee (pp 32 - 33 notebook; Exhibit F). He records: "… However, that was impeded by the excessively loud noise emanating from the Brooklyn Hotel. The male was moved approximately 20 metres away where a conversation could be carried out. I told the male that he was under arrest for assault." This, of course, is inconsistent with what Mr Hamilton was told by S/Cst Liebrand who was under the mistaken impression that he had wronged Mr Siddiquee, on what basis it is impossible to say.
9. In rejecting these aspects of S/Cst Mildenhall's evidence, I have also taken into account that his evidence before me was inconsistent in some material respects with the evidence he gave in the Local Court on 19 August 2010. On that day he was cross-examined on the voir dire by Mr Steirn by reference to the CCTV footage which he had not seen previously. He was given the opportunity to view the whole of it during the course of the voir dire and indeed viewed it on a court computer three times (1002.45-1003.30T). He agreed that he was wrong in previous evidence when he had disagreed that Mr Hamilton's head had been slammed into the wall. He accepted from his viewing of the video that he "slammed him in one movement into the wall" (Local Court Transcript page 56; Exhibit E). He also accepted that Mr Hamilton was held down by him for an extended period of time on the bench.
10. I am satisfied that in the years since, through the process of reconstruction that I have previously referred to, S/Cst Mildenhall has deliberately reconstructed a version of events from repeated viewing of the CCTV footage for the purpose of exculpating himself from any wrongdoing. I accept the argument advanced on behalf of Mr Hamilton that his account of some of the critical aspects of the arrest and detention of the plaintiff were not truthful but were rather provided in an attempt to justify what in fact had occurred (915.5T; 945.20-35T; 955.15T; 964.45T;990.40-45T).
11. I also reject S/Cst Liebrand's evidence where it conflicts with the findings I have made based upon Exhibits A and B and my appreciation of other evidence. S/Cst Liebrand was not there during the whole of the action in the foyer. He came on the scene when S/Cst Mildenhall had Mr Hamilton on the bench forcing him down with his right hand on the base of his neck and attempting to apply a wrist lock to Mr Hamilton's left arm. I reject the evidence that Mr Hamilton was trying to pull away from the wrist lock. As I have said, he was attempting to push up. I accept that S/Cst Liebrand grabbed hold of Mr Hamilton's left arm and applied a wrist lock. I am not persuaded that there was resistance, rather Mr Hamilton was responding to the painful stimuli being deliberately applied by the police officers.
12. I reject the evidence that when he was assisted to his feet, Mr Hamilton immediately swung around to face S/Cst Mildenhall. I reject the evidence that he threatened S/Cst Mildenhall with his right arm. As I have said, his right arm came up across his own body, but he was extremely unsteady on his feet and I thought it a plaintive gesture. I reject S/Cst Liebrand's evidence that he believed Mr Hamilton was about to assault S/Cst Mildenhall. It is not insignificant that there is no mention of such a serious matter, were it true, in his police notebook.
13. It's not clear why two burly younger police officers had apparent difficulty in "subduing" Mr Hamilton. It seems that the purpose of both officers each applying an arm bar takedown was that Mr Hamilton would respond to the pain by going down to the floor to relieve it. I accept these are trained techniques. Unfortunately they seem to have been inexpertly applied in this case, or at least applied in an ill co-ordinated manner in that the leg sweep was applied by S/Cst Mildenhall before S/Cst Liebrand had hold of Mr Hamilton's right arm. I accept that the noise from the bar was too loud for S/Cst Liebrand to communicate with Mr Hamilton. However, he appears to have shouted "you're under arrest for attempting to rob the taxi driver". This was only said after Mr Hamilton had been handcuffed and had been left lying on the floor for some not insignificant time before being assisted to the seat.
14. It is necessary for me to repeat that Mr Hamilton was conveyed to St Vincent's Hospital in police custody where he was eventually examined by Dr Brungs before being released from custody without charge at that time.
15. It is obvious from viewing Exhibits A and B that S/Cst Mildenhall caught up with Mr Hamilton easily. As I have said, when he entered the foyer he was walking, not running. I don't accept that he called out "stop police" when he entered the foyer. It is not mention in his COPS entry (Exhibit G). Nor is the thump or punch to the chest. All that is said after he was assisted to his feet was that Mr Hamilton was thrashing about. I must say, from viewing the video he is not seen to be thrashing his body about, as I have said he is unsteady on his feet. I also find it significant that Exhibit G describes Mr Hamilton's alleged level of resistance as "unarmed; resisted control, wrestle". There is no mention whatsoever of him offering or inflicting any actual violence to or on either officer, whether by punch, push or otherwise. Whilst dealing with that exhibit, it is clear that when it was created at 4:13 am on 13 December 2009 no decision had been made to bring Mr Hamilton before a court. Exhibit G records the following pertinent details: "Police are waiting to view the footage from the taxi to determine what action will be taken in this matter. Nil injuries were sustained by the taxi driver as a result of the assault."
16. There were matters in S/Cst Mildenhall's statement prepared for the Local Court prosecution of Mr Hamilton which are of some significance. The typed statement was not made until 18 March 2010. It forms part of Exhibit F and is largely derived from the notebook entries at pages 28 to 35. Paragraph 11 records an incident alleged to have occurred at the hospital which at best seems of the most doubtful relevance to the proposed prosecution. I should say no reliance was placed upon this before me. It is in the following terms: "As a doctor was assessing the accused and prodding the affected area, the accused has clenched his fist and jerked it quickly forward and backward in the direction of the doctor. In my opinion he appeared to be about to punch the doctor but refrained. The doctor and the treating nursing had separate conversations with me about this."
17. When Dr Brungs was called to give evidence he was not asked about this incident. There is nothing in his clinical notes, which he was taken through very carefully, about the incident, or to suggest that Mr Hamilton was in any way aggressive towards Dr Brungs or other medical staff. Mr Hamilton was obviously much affected by chest pain and was found by the doctor to be tender on palpitation over the sixth, seventh and eighth left ribs. Rib fracture was a suspected diagnosis. In the case of acute and painful injury, one can well understand the patient flinching perhaps to the extent of clenching one's fist in response to a doctor's prodding examination. The incident was not recorded in S/Cst Mildenhall's statement prepared for the purpose of this case (MFI 23). Although Dr Brungs had little independent recollection, understandably, of his examination of Mr Hamilton, he had a clear independent recollection that he was in police custody at the time of his examination. Had a patient been aggressive towards him, I expect that he may have had some recollection of that matter and certainly one would have expected that he would have made a record of that occurrence because it may have been of some significance to the question he was interested in of determining whether Mr Hamilton had any significant head injury, which Dr Brungs decided he did not. Although not relied upon by the defendants, these entries may not be without significance when determining the questions relevant to malicious prosecution.
18. The statement also records that when the police officers released Mr Hamilton from custody at the hospital, they informed him that he would be charged with assault and resist officers by court attendance notice (Mildenhall's statement at [13]). This is inconsistent with the COPS entry I have referred to above and with the evidence given by S/Cst Mildenhall at (860.35T) where the police officer said: "I told him I'd be checking the taxi footage and that I may be issuing a future court attendance notice for assault and resist arrest" [Emphasis added.] The difference is significant.
19. There are certain omissions from the police document which I find significant. It is clear that the documents forming Exhibit F and G fail to record that Mr Hamilton complained at the hospital of police treatment of him. He mentioned he had in mind seeking advice about a civil case. He was not given any information about the proper avenues for complaint.
20. Moreover, it was wrong to say that the police only had the driver's version. Mr Hamilton had told them that he had tapped the driver on the shoulder whilst remonstrating with him to drive properly. This version is not entirely correct on the findings I have made. Nonetheless it was erroneous for police to say they had received no version from Mr Hamilton. He simply declined to answer questions about his alcohol consumption. These admissions may be significant in terms of S/Cst Mildenhall's motivation in bringing the charges.

What occurred after the incident at Grosvenor Place?

1. After Mr Hamilton had been handcuffed S/Cst Mildenhall returned to the taxi where Mr Siddiquee and the other three passengers Mr Clements, Mr Thomas and Mr McGregor were waiting. Once again, there are inconsistent accounts of the conversation that took place. The focus of these inconsistences is on whether S/Cst Mildenhall informed the other three passengers that Mr Hamilton was under arrest and whether they subsequently denied being an acquaintance or friend of his.
2. The State says that these matters are important because I can draw from them an inference that the three men knew Mr Hamilton was the aggressor of the assault on Mr Siddiquee and did not want to become involved in the investigation. With respect this is not so. That would be an entirely impermissible use of the evidence and I reject it.
3. S/Cst Mildenhall believes he told the three men that Mr Hamilton was under arrest and asked them for their details to which they said: "that they didn't know him and they didn't want to get involved" (834.40T). Mr Thomas expressly denies being told by the Senior Constable that Mr Hamilton was under arrest: "we didn't know till the following day" (270.45T). He also believes that it was Mr Clements who S/Cst Mildenhall spoke to. Mr McGregor has a similar recollection. Mr Clements says (290.49 - 291.8T): "…the policeman, came out, came across the road with the driver. And the policeman came up and said: "This man claims he's been assaulted". And I, I said: "How? Like, where? He was sitting next to me. Who assaulted him? What happened?"… It's, it's rubbish". I said to the policeman…'Get the film, have a look at it and you will see nothing's happened. Absolutely nothing' ". The next thing he recalls is standing on the footpath and the policeman asking for his particulars. In reply to this request he says that he did not refuse to provide his particulars but rather "I'm not giving you my particulars…and neither will [Mr Thomas and Mr McGregor]" because "there's no point in it because nothing's happened" (291.15T).
4. Mr Clements's recollection of a policeman coming over with Mr Siddiquee from the van following his complaint seems to suggest that this initial conversation may have taken place before the incident in Grosvenor Place.
5. Neither S/Cst Mildenhall nor S/Cst Liebrand make any mention of such a conversation before pursing Mr Hamilton into Grosvenor Place and given that the next thing that Mr Clements recalls happening is a request for his particulars from S/Cst Mildenhall, I find that this conversation took place after the incident in Grosvenor place.
6. The three men then left, with Mr McGregor going home, and Mr Thomas and Mr Clements returning to Mr Thomas' place where they continued to have a few drinks before going to bed.

Relevant facts not in dispute

1. It is important to record the following facts relating to the prosecution of Mr Hamilton which are not in dispute: 1. The decision was made on 6 January 2010 to charge Mr Hamilton with common assault contrary to s 61 Crimes Act 1900 (NSW) resist officer in the execution of his duty contrary to s 58 of the same Act. The Court attendance notice commencing proceedings in the Local Court and the Facts Sheet brought into existence by S/Cst Mildenhall on the same day; 2. The Court Attendance Notice was served on the plaintiff at his home on the Gold Coast by the Queensland Police on 17 February 2010; 3. The matter was first mentioned in the Local Court on 10 March 2010; 4. The brief (Exhibit F) was completed on 15 April 2010; 5. The charges were listed for hearing in the Local Court and when part-heard were withdrawn and dismissed on 19th August 2010; 6. The plaintiff was interviewed by the Police Integrity Commission on 20 January 2011; 7. A Court Attendance Notice was created in the matter of the Director of Public Prosecutions and Mildenhall which was served on S/Cst Mildenhall on 12 June 2011; 8. The prosecution of S/Cst Mildenhall was heard on 7 and 8 December 2011 and 12 and 13 June 2012 S/Cst Mildenhall was acquitted of charges of unlawful arrest and assault on 21 June 2012.

Preliminary point

1. The averments in the Amended Statement of Claim are to say the least taciturn and some complaint of this is made by the defendant. It seems tolerably clear from the language used and the facts pleaded that the plaintiff relies upon the torts of battery (or assault), false imprisonment, malicious prosecution, and misfeasance in public office. The State complains that false imprisonment, in terms, is not pleaded. With respect, I do not think it appropriate to allow the State to rely upon that consideration. A "Statement of Agreed Issues", albeit undated and unsigned, was handed up at the commencement of the trial and marked MFI 3. It makes clear that the averment in [8] of the Amended Statement of Claim that "the plaintiff was wrongfully arrested and unlawfully detained" is to be taken as a reference to the tort of false imprisonment. And in opening the case for the plaintiff (1.20T), Mr Steirn SC, who appeared for the plaintiff with Mr Morgan, said without objection: "…. the plaintiff claims damages based on intentional torts of (1) assault and battery; (2) false imprisonment; (3) malicious prosecution; and (4) misfeasance in public office. The majority of the plaintiff's damages relate to personal injuries suffered from the assault and battery."
2. Mr Bodor QC, who appeared for the State with Mr Woods, opened the case for the State at (20.2 - 27.25T). The only form of cause of action directly addressed in terms was the claim for misfeasance in public office (26.10T) in as much as it was said not to have been appropriately pleaded (26.25T). Learned Senior Counsel for the State summarised the issues as follows (26.12-18T): "We say ultimately if the arrest was lawful, the plaintiff loses. Despite whatever consequences occurred from the fact of arrest and from the injuries sustained during the course of the arrest, the plaintiff loses. If the plaintiff wins, if the arrest is unlawful, then we recognise that the Court may well factor aggravated and/or exemplary damages either in respect of the process of arrest or the prosecution of the plaintiff."
3. In my judgment, the parties well understood the nature of the issues and how the claim was advanced on behalf of the plaintiff at the outset of the trial and I consider it would be inappropriate to refuse to consider the claim for false imprisonment because of a deficit in the pleadings. This, is a case where the parties have allowed the issues and the evidence to run beyond the pleadings and should be bound by their conduct of the case, even if the plaintiff should be required to file a further amended statement of claim specifically pleading false imprisonment: Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70; Leotta v Public Transport Commission (NSW) (1976) 50 ALJR 666. In my judgment, State of NSW v Radford (2010) 79 NSWLR 327; [2010] NSWCA 276 at [61] does not displace this exception to the rule that parties are bound by their pleadings.
4. During the time taken by me for consideration, many of the legal issues which arise for determination in this case have been considered by the Court of Appeal in Croucher v Cachia [2016] NSWCA 132. The parties, of course, have not addressed this matter in written or oral submissions. However, at least so far as the tort of battery and its interrelationship with the provisions of s 3B and Pt 7 Civil Liability Act 2002 (NSW) are concerned, Croucher draws together and explains principles arising from previous decisions of the Court of Appeal which were referred to by the parties. It conveniently gathers together and summarises what may now be taken as settled principle at least so far as the tort of battery is affected, or modified in its application, by the Civil Liability Act.

Unlawful arrest

1. As I have pointed out, a central issue in the case was the lawfulness of the arrest of Mr Hamilton. To put this in legal context the State referred me to State of New South Wales v Williamson [2011] NSWCA 183 where Campbell JA said at [24]: "One minor matter, not affecting questions of construction of the legislation, is that the judge, and to some extent the submissions on appeal, spoke as though unlawful arrest was itself a tort. That is not strictly correct. A lawful arrest can provide the legal justification for what would otherwise be the tort of false imprisonment. If reasonable force is used in the course of effecting a lawful arrest, that can provide a legal justification for what would otherwise be an assault or battery. However, unlawful arrest is not a tort separate to assault, battery and false imprisonment."
2. It makes sense therefore to start with this central question. I think it can be said that S/Cst Mildenhall principally was the arresting officer. Having said that, I am conscious that S/Cst Liebrand was described as the prosecutor in the Court Attendance Notice (see Exhibit F). There is no doubt on the evidence that S/Cst Mildenhall was put forward by the State, and accepted by the plaintiff, as the arresting officer. He was in charge of: the investigation; drawing up of the facts; gathering the evidence; and making the recommendation that charges be brought.
3. Although put forward as more or less black or white by the State in opening, the question of whether the arrest was lawful is of more nuanced significance in the circumstances of the case. By that I mean unlawfulness may be relevant in two senses. The first sense is whether the power to arrest has been engaged at all and the second sense is, if it has been, whether those powers have been lawfully exercised including whether the force undoubtedly used to affect the arrest was reasonable. Even if the occasion to exercise the power of arrest had arisen, the manner of exercise of the power, including the force exerted against Mr Hamilton may yet constitute battery. In this regard, the incidence of the onus of proof will vary.
4. There are three aspects of the arrest relevant to the question of its lawfulness in the circumstances of this case: first, was the power to arrest without warrant engaged; secondly, were the statutory requirements to be observed at the time of arrest complied with; and thirdly, was the force used to effect the arrest reasonable.

Was the power of arrest engaged?

1. In New South Wales a constable's common law powers of arrest are modified by statute. Relevant to the issues in this case are the following provisions of LEPRA: subss 99(2); 99(3) (a), (c), and (e); 99(4); ss 105, 201, and 231. Sections 99 and 105 are relevant to the first aspect; that is, the power to arrest without warrant. The relevant parts of s 99 are: "… (2) A police officer may, without a warrant, arrest a person if the police officer suspects on reasonable grounds that the person has committed an offence under any Act or statutory instrument. (3) A police officer must not arrest a person for the purpose of taking proceedings for an offence against the person unless the police officer suspects on reasonable grounds that it is necessary to arrest the person to achieve one or more of the following purposes: (a) to ensure the appearance of the person before a court in respect of the offence, (b) to prevent a repetition or continuation of the offence or the commission of another offence,… (e) to prevent the fabrication of evidence in respect of the offence… (4) A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person, and any property found on the person, before an authorised officer to be dealt with according to law." The reference in s 99(4) to an "authorised officer" should be understood by reference to the definition in s 3 to include a judicial officer or a designated court official. Further, an arrest can be discontinued at any time (s 105): "(1) A police officer may discontinue an arrest at any time. (2) Without limiting subsection (1), a police officer may discontinue an arrest in any of the following circumstances: (a) if the arrested person is no longer a suspect or the reason for the arrest no longer exists for any other reason, (b) if it is more appropriate to deal with the matter in some other manner, including, for example, by issuing a warning or caution or a penalty notice or court attendance notice or, in the case of a child, dealing with the matter under the Young Offenders Act 1997."
2. The plaintiff relied upon the common law rule that there is no power to arrest for the purpose of questioning or conducting inquiries with the assistance of the person arrested: Williams v the Queen (1986) 161 CLR 278; [1986] HCA 88 at 284 - 5; 300 and 306. In Williams, Wilson and Dawson JJ in their joint judgment at 305 - 6 said: "A person who is arrested may be detained only for the purpose of bringing him before a justice (or nowadays before some other person with power to deal with him) to be dealt with according to law. For arrest is the beginning of imprisonment and, whilst it is recognized that imprisonment before trial may be necessary in the administration of criminal justice, it must be justified in accordance with the law. … This being the purpose of arrest, any delay in bringing a person under arrest before a justice, even if it is to effectuate some other purpose such as the questioning of that person in order to dispel or confirm the suspicion which was the basis of the arrest, is to defeat, however temporarily, the true purpose."
3. This principle is used to advance an argument that as Mr Hamilton was released from police custody without being brought before an authorised officer; and as S/Cst Mildenhall acknowledged in the COPS entry (Exhibit G) that police were waiting to view the footage from the taxi to determine what action will be taken, the arrest was unlawful because it was for the purpose of investigation only rather than as a necessary anterior step in the initiation of the judicial process.
4. In my view this argument must be rejected. The first statutory test is whether S/Cst Mildenhall suspected on reasonable grounds that Mr Hamilton committed any offence. This is a well understood and relatively undemanding test. In George v Rockett (1990) 170 CLR 104; [1990] HCA 26 at 116, the High Court of Australia said: "The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture."
5. It is also necessary to bear in mind that the question of whether S/Cst Mildenhall suspected on reasonable grounds that Mr Hamilton had committed an offence under an Act must be judged from his standpoint at the time of his decision to arrest or not in the circumstances then actually pertaining. The Court's evaluation is not to be made retrospectively. A circumstance of particular relevance in the present case was that Mr Hamilton was getting out of the cab and hurrying away. This and the apparently credible complaint from a taxi driver that he had been assaulted in my judgment provided reasonable grounds for S/Cst Mildenhall's suspicion. The consideration that Mr Hamilton was later released and that further inquiries were thought to be necessary before a decision to prosecute could be made are not relevant to this determination, particularly in light of the provisions of s 105 of LEPRA.
6. Moreover, the second question posed by s 99(3) was, I accept, also satisfied. That an unknown taxi passenger suspected of assaulting the driver was hurrying away provided S/Cst Mildenhall with reasonable grounds to suspect that it was necessary to arrest him to ensure his appearance before a court. Successful flight may have entirely defeated that end. It may also have led to the loss of evidence of the identity of Mr Hamilton. That his companions proved uncooperative adds some confirmation of this, even if only ex post facto. I am, however, unpersuaded that there were any reasonable grounds to suspect that he might manufacture an alibi if not arrested. I am therefore persuaded that the s 99 power to arrest was engaged.

Were the statutory requirements to be observed at the time of arrest complied with?

1. The second question is whether S/Cst Mildenhall complied with the provision of s 201 LEPRA. As at 12 December 2009, to the extent relevant, it was in the following terms: "201 Supplying police officer's details and giving warnings (1) A police officer must provide the person subject to the exercise of a power referred to in subsection (3) with the following: (a) evidence that the police officer is a police officer (unless the police officer is in uniform), (b) the name of the police officer and his or her place of duty, (c) the reason for the exercise of the power. (d) (Repealed) (2) A police officer must comply with subsection (1) in relation to a power referred to in subsection (3) (other than subsection (3) (g), (i) or (j)): (a) if it is practicable to do so, before or at the time of exercising the power, or (b) if it is not practicable to do so before or at that time, as soon as is reasonably practicable after exercising the power. (2A) A police officer must comply with subsection (1) in relation to a power referred to in subsection (3) (g), (i) or (j) before exercising the power, except as otherwise provided by subsection (2B). (2B) If a police officer is exercising a power to give a direction to a person (as referred to in subsection (3) (i)) by giving the direction to a group of 2 or more persons, the police officer must comply with subsection (1) in relation to the power: (a) if it is practicable to do so, before or at the time of exercising the power, or (b) if it is not practicable to do so, as soon as is reasonably practicable after exercising the power. (2C) If a police officer exercises a power that involves the making of a request or direction that a person is required to comply with by law, the police officer must, as soon as is reasonably practicable after making the request or direction, provide the person the subject of the request or direction with: (a) a warning that the person is required by law to comply with the request or direction (unless the person has already complied or is in the process of complying), and (b) if the person does not comply with the request or direction after being given that warning, and the police officer believes that the failure to comply by the person is an offence, a warning that the failure to comply with the request or direction is an offence. (3) This section applies to the exercise of the following powers (whether or not conferred by or under this Act): (a) a power to search or arrest a person, (b) a power to search a vehicle, vessel or aircraft, (c) a power to enter premises (not being a public place), (d) a power to search premises (not being a public place), (e) a power to seize any property, (f) a power to stop or detain a person (other than a power to detain a person under Part 16) or a vehicle, vessel or aircraft, (g) a power to request a person to disclose his or her identity or the identity of another person, (h) a power to establish a crime scene at premises (not being a public place), (i) a power to give a direction to a person, (j) a power under section 21A to request a person to open his or her mouth or shake or move his or her hair, (k) a power under section 26 to request a person to submit to a frisk search or to produce a dangerous implement or metallic object. (3AA) Despite subsection (3), this section does not apply to the exercise of a power to enter premises or to search premises or a vehicle, vessel or aircraft that is conferred by a covert search warrant. (3A) If a police officer is exercising more than one power to which this section applies on a single occasion, and in relation to the same person, the police officer is required to comply with subsection (1) (a) and (b) in relation to that person only once on that occasion. (4) If 2 or more police officers are exercising a power to which this section applies, only one officer present is required to comply with this section. (5) However, if a person asks another police officer present for information as to the name of the police officer and his or her place of duty, the police officer must give to the person the information requested. (6) This section does not apply to the exercise of a power that is conferred by an Act or regulation specified in Schedule 1."
2. The arrest of Mr Hamilton commenced at the moment S/Cst Mildenhall "grabbed" his left arm, for it was then that the officer restrained his liberty. At that time none of the requirements of s 201(1) had been complied with. Indeed the earliest point in time in which paragraphs (b) and (c) of subsection (1) were complied with was when Mr Hamilton was assisted away from the ledge to a quieter place where a conversation could be had. There the officers identified themselves and S/Cst Mildenhall told him he was being arrested for assault on Mr Siddiquee.
3. I have not overlooked that S/Cst Liebrand attempted to inform Mr Hamilton in S/Cst Mildenhall's absence that he was being arrested for robbing Mr Siddiquee. But there was never any lawful justification for arresting Mr Hamilton on such a charge. That idea was wholly based upon S/Cst Liebrand's complete misunderstanding of what Mr Siddiquee had said when he approached the police officers. There were never any reasonable grounds to suspect Mr Hamilton of robbery.
4. The question then is whether it was practicable for S/Cst Mildenhall to provide his name (he was in uniform), place of duty and the reason for the arrest before, or when, he first put a hand on Mr Hamilton.
5. I bear in mind that a test of practicability is stricter than a test of practicality. The ordinary meaning of practicable is feasible. But the expression must be read in its statutory context which includes the consideration that the statute confers, and conditions, state power to restrain the liberty of the person for limited, albeit important public, purposes. Only if compliance is not practicable at the time of arrest, may it be done when first reasonably practicable, a less stringent requirement. The exception however should not govern the rule. In State of New South Wales v Abed (2014) 246 A Crim R 549; [2014] NSWCA 419 Gleeson JA (with whom Bathurst CJ and Macfarlan JA agreed) (at [92]) said: "...what is required will depend on the particular circumstances and will range from not needing to be told anything to being told both the facts which have given the police officer cause for suspicion that an offence has been committed, as well as what that suspected offence is." [Citations omitted.] Even at common law, which may have been more beneficial to the person than the statutory scheme, the rule was flexible. In Christie v Leachinsky [1947] AC 573; [1947] 1 All ER 567, Viscount Simon (at 587 - 588) said: "The person arrested cannot complain that he has not been supplied with [the statutory information] as and when he should be if he himself produces the situation which makes it practically impossible to inform him, e.g., by immediate counter-attack or by running away. There may well be other exceptions to the general rule in addition to those I have indicated …" See Adams v Kennedy (2000) 49 NSWLR 78; [2000] NSWCA 152 at [24] - [26].
6. I accept that it was not possible and therefore practicable to have a conversation with Mr Hamilton in the foyer close to the wall separating it from the bar because of the noise of the bar. Were that the only issue I would have no difficulty in deciding that it was not practicable to comply with s 201(1) until a conversation could have been had in a quieter place. This is consistent with S/Cst Mildenhall's notebook entry (Exhibit F, pp 32-33). It is notable that after Mr Hamilton was led away he was told he was under arrest for assault (not for resisting police). S/Cst Mildenhall regarded this as his "first opportunity" to comply with LEPRA.
7. The particular circumstances of the case, however, are not limited to, or even by, the noisy environment. They include, of course, the consideration that Mr Hamilton was leaving the scene and that S/Cst Mildenhall's perception was that he was seeking to evade police. It was not known then that Mr Hamilton's companions would not assist. Circumstances also include what is evident from the CCTV footage that Mr Hamilton was walking, albeit at a brisk pace, and not running. Neither was S/Cst Mildenhall running at the time that he caught up with Mr Hamilton. He caught him easily and could easily have overtaken him before he reached the stairs. Had he done so, he would have given Mr Hamilton the opportunity to see his uniform which may well have been enough to stop him in his tracks even though he was hoping, and attempting, to avoid having to explain himself to police.
8. There is also the consideration that Mr Hamilton was then 61 years of age. It may be said that he maintained a level of fitness of which he was proud. The police officer was a younger man trained in the skills of the public order and riot squad. He was also more generally trained in techniques for subduing persons of interest determined to abscond.
9. The officer may have had some concerns for his safety having been told that Mr Hamilton had assaulted the taxi driver. But it was equally obvious to the officer that no injury had been inflicted and there was absolutely no reason to suppose that Mr Hamilton was dangerous. In most circumstances presentation, and identification, as a police officer will be sufficient to extract co-operation and compliance from the ordinary citizen. Grabbing a person from behind on the other hand is calculated to extract a "startle" response introducing tension, or even fear, to the encounter.
10. I am not satisfied, judged subjectively from S/Cst Mildenhall's prospective, knowing what he knew and equipped with his police training and experience, that it was not practicable, notwithstanding the noise, for him to comply with s 201 LEPRA.
11. The section must be taken to be predicated from the consideration that responsible members of the community, even those who have breached laws, will co-operate and comply with police. It is not designed merely to impose burdensome procedures on them like "so much red tape". I am satisfied that the arrest was unlawful for breach of s 201 LEPRA. I am not satisfied that by hurrying away Mr Hamilton produced a situation which made it practically impossible for S/Cst Mildenhall to comply with s 201 LEPRA.
12. It is not without relevance that when s 201 was belatedly complied with, Mr Hamilton identified himself, provided an explanation which he believed was exculpatory, and suggested "further inquiries", namely the taxi footage, that "may save [the police] from the consequences of false accusation": State of New South Wales v Delly (2007) 70 NSWLR 129; [2007] NSWCA 303 at [9].

Was the force used to effect the arrest reasonable?

1. The third aspect relates to the force used to effect the arrest of Mr Hamilton. Section 231 of LEPRA is relevant and is in the following terms: "Use of force in making an arrest A police officer or other person who exercises a power to arrest another person may use such force as is reasonably necessary to make the arrest or to prevent the escape of the person after arrest."
2. There can be no question that S/Cst Mildenhall and S/Cst Liebrand in concert used force to arrest Mr Hamilton.
3. From the findings I have made at [116] - [128] above and my findings in relation to the practicability of complying with s 201 LEPRA at the time of first arrest, I am not satisfied that the force used would have been reasonably necessary to arrest Mr Hamilton. Indeed, on each of my many viewings of Exhibit A and Exhibit B I was struck by what I regard as the unnecessary violence inflicted upon Mr Hamilton. I accept that there are occasions in the execution of the often difficult responsibilities of police officers when great, even deadly, force is reasonably necessary to make an arrest or to prevent the escape of the person after arrest. What occurred here was not great or deadly force, but it was excessive and disproportionate to all the circumstances of the case, including the seriousness of the crime for which he was being arrested.
4. In finding the force exerted was unreasonable, I have borne in mind that the precise consequences of the violence suffered by Mr Hamilton were not specifically intended by the officers. I have also borne in mind my finding that S/Cst Mildenhall did not deliberately force Mr Hamilton's head into the concrete wall. This was, however, a natural and probable consequence of the force exerted against Mr Hamilton. Accepting that the consequences of police action were not specifically intended does not lead me to the conclusion that the force exerted was otherwise reasonably necessary.
5. I accept that the consideration that the officers were attempting to apply learned and accepted techniques for the subjection of violent offenders is relevant to the evaluation of reasonableness. But it can hardly be decisive. That one is trained may make the infliction of violence so much more efficient, but it does not mean its use by an arresting officer must always be taken as reasonable.
6. Nor have I concluded that what was done to Mr Hamilton was borne of each officers' perception that he posed a threat to S/Cst Mildenhall. The State's case in relation to the force used is not that it was reasonably necessary to effect the arrest per se, but it was called for on the part of S/Cst Mildenhall in self-defence and on the part of S/Cst Liebrand in defence of S/Cst Mildenhall. It must follow from this that the onus of establishing that the force is reasonable, in the circumstances of this case falls upon the defendant: Presidential Security Services Pty Ltd v Brilley (2008) 73 NSWLR 241; [2008] NSWCA 204 at [162]. But I have not decided this issue on the question of where the onus lies. From the whole of the evidence, I am well satisfied the force used was not reasonably necessary. I am also not satisfied that either officer genuinely believed the force exerted was necessary. Rather, in my judgment what was done to Mr Hamilton was done out of indifference to his right to be at liberty and to have the integrity of his person preserved. I am also of the view that the officers were labouring under a misconception about what may be justified in the case of any suspect they believed was attempting to evade arrest.
7. For these reasons I am satisfied that the arrest of Mr Hamilton was unlawful.

The tort of battery and s 3B Civil Liability Act 2002

1. In Croucher at [21] Leeming JA explained the elements of the cause of action in battery in these terms: "A defendant who directly causes physical contact with a plaintiff will commit a battery unless the defendant proves that the defendant was "utterly without fault". [Citations omitted.] At [23] his Honour said: "It is clear law in this country that trespass to the person caused by a blow does not require the plaintiff to prove anything about intention." As I have stated already, a defendant may escape liability by proving the absence of fault or by proving lawful justification, such as self-defence or statutory authority.
2. At [20] his Honour pointed out that use of the convenient and conventional label of "intentional tort" in relation to battery to distinguish it from negligence may "obscure the necessary analysis of (a) the elements of the tort; and (b) how the tort is affected by statute"
3. At [30] he made reference to ss 3B(1)(a) and 21 of the Civil Liability Act which are in the following terms: "3B Civil liability excluded from Act (1) The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows: (a) civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person - the whole Act except: (i) section 15B and section 18 (1) (in its application to damages for any loss of the kind referred to in section 18 (1) (c)), and (ii) Part 7 (Self-defence and recovery by criminals) in respect of civil liability in respect of an intentional act that is done with intent to cause injury or death, and (iii) Part 2A (Special provisions for offenders in custody)… 21 Limitation on exemplary, punitive and aggravated damages In an action for the award of personal injury damages where the act or omission that caused the injury or death was negligence, a court cannot award exemplary or punitive damages or damages in the nature of aggravated damages."
4. His Honour explained the interplay between the tort of battery and s 3B in the following terms (at [31]-[34]): "[31] The consequence of s 3B (1) (a) (noting that no question of sexual assault or sexual misconduct arises in this litigation) is that a key question is whether Mr Croucher is liable "in respect of an intentional act that is done by the person with intent to cause injury or death". If so, then various limiting provisions on damages in the Act, including the prohibition upon exemplary damages in s 21, cease to apply. [32] The primary judge did not mention s 3B(1)(a). Her Honour adopted the approach which appears to have been common ground between the parties that the effect of s 3B(1)(a) was that most of the provisions of the Civil Liability Act did not apply to the alleged battery (irrespective of how it was established), but did apply to the alleged negligence (irrespective of how it was established). It may be that paragraph 7 of the pleading was drafted with a view to achieving those results, although if so it would have been preferable to refer to the section in terms and not to depart from the statutory language. [33] There is some subtlety in the application of s 3B(1)(a) and s 21. It will be seen that s 3B(1)(a) does not operate upon the particular cause of action, but instead upon the particular act which gives rise to the civil liability and the intent of the person doing that act (I pass over the question whether and if so how s 3B(1)(a) applies to intentional omissions to act). This was the point made by Basten JA in Dean v Phung [2012] NSWCA 223 at [10]: "the statutory scheme is not identified by reference to a particular cause of action". [34] A cause of action in battery may be established where the defendant's conduct is either intentional or alternatively merely negligent. The former would engage s 3B(1)(a) and the latter would not. In other words, the language of "intentional tort" is an unsafe guide to whether s 3B(1)(a) is engaged; it is necessary instead to look at the character of the underlying conduct, as explained in White v Johnson[2015] NSWCA 18 ; 87 NSWLR 779 at [132]."
5. It is important to set these basal principles out now because Mr Hamilton claims damages assessed free of the restrictions imposed by Pt 2 of the Civil Liability Act including or extending to "exemplary or punitive damages".
6. From the facts as I have found them to be, the elements of battery are firmly established; negligence (or the absence of it) is not an issue; nor now the defence of lawful justification by reference to the provisions of LEPRA.
7. The issues relating to the application of the Civil Liability Act remain. The central question, for Mr Hamilton, is whether the State's vicarious liability for the conduct of the police officers is a "civil liability … in respect of an intentional act that is done … with intent to cause injury" (s 3B (1) (a)).
8. From the State's perspective, given that s 3B does not exclude the operation of Part 7, the question is whether it has established self-defence both under s 52 of the Civil Liability Act, and at Common Law (see 3A Civil Liability Act); or the statutory defence under s 54.

Intentional act done with the intent to cause injury?

1. From the findings I have made there can be no question that the act of S/Cst Mildenhall in grabbing Mr Hamilton's left arm, and swinging him round to apply an "arm bar takedown" was an intentional act. I have found, however, in doing so he did not intend to swing him head-first into the wall. Having said that, his subsequent act in persisting with his attempt to take Mr Hamilton down, which is a reference to putting Mr Hamilton on the ground, by forcing him down onto the ledge; by pushing Mr Hamilton's head down with his right hand grabbing the base of his neck; and his left hand attempting to impose an arm bar on Mr Hamilton's left arm was also an intentional act.
2. The assistance given to those latter acts by S/Cst Liebrand when he arrived was an intentional act. The imposition of a further arm bar takedown and leg sweep by S/Cst Mildenhall were intentional acts. So too were S/Cst Liebrand's fumbled attempts to assist in that operation, but him falling onto Mr Hamilton when the latter was taken down by S/Cst Mildenhall's leg sweep was not.
3. Were these intentional acts done with the intent to cause injury? The requisite intent is an actual specific intent to do some injury. It is not necessary that the defendant or here, S/Csts Mildenhall and Liebrand, actually intended to inflict the specific injuries that ensued as a natural and probable consequence of their acts.
4. There is a question which seems as yet unresolved by the jurisprudence of the Court of Appeal as to what injury means in the statutory phrase "intent to cause injury".
5. There is no generally applicable definition of "injury" in the Civil Liability Act. Section 3B appears in Part 1 of the Civil Liability Act and its subject matter is the identification of matters of civil liability to which the Act does not apply and the specific provisions that apply to civil liability under the Motor Accidents Compensation Act 1999 (NSW) (3B (2)). For the purpose of Part 2 only, s 11 defines injury as meaning personal injury. There is a similar definition in s 26A referable to Part 2A.
6. Injury's juxtaposition with death in the phrase "cause injury or death" and its proximity to "sexual assault" and other "sexual misconduct" make clear in subs 3B(1)(a), of course, that it covers personal injury; as does the subject matter of each of the civil liabilities identified in paragraphs (b) to (h) of subs 1.
7. But does the word "injury" connote as a matter of law any particular necessary degree of severity? The question is of more than academic interest in the present case. It may be accepted that neither officer in their deliberate actions intended to injure Mr Hamilton's face, fracture a rib, or inflict psychological harm in the form of a post-traumatic stress disorder. On the other hand, the intention of each of them in exerting force on Mr Hamilton in the various ways I have described was to inflict pain of such a degree and for such duration as would bring him down to a position of submission on the floor where he could be restrained by handcuffs. Is the intent to cause injury of that type sufficient for the purposes of s 3B?
8. In State of New South Wales v Ibbett (2005) 65 NSWLR 168; [2005] NSWCA 445 Spigelman CJ said at [11]: "I can see no reason why the word "injury" in s 3B(1)(a) should not be given its natural and ordinary meaning. That meaning would encompass the harm occasioned by an apprehension of physical violence." [Citation omitted].
9. Basten JA (at [218]) agreed with the Chief Justice and said that "the concept of injury" in s 3B(1)(a) is not restricted to, although it would include, "personal injury". Ipp JA favoured reading the definition of injury in s 11 into s 3B(1)(a), however his Honour added at [125]: "In my opinion, irrespective of whether the ordinary meaning of the word is attributed to "injury", or whether it is given the meaning defined in s 11, the word is wide enough to encompass anxiety and stress." In Ibbett the intentional act was a plain clothes police officer pointing his gun at an elderly lady demanding that she open the door. The injury he intended to cause was the anxiety and distress occasioned by the apprehension of physical violence.
10. There would be no doubt that the infliction of a deliberate blow accompanied with the intention to cause some injury even of a temporary nature would be sufficient. I can see no reason why the deliberate infliction of physical violence intended to cause pain and submission to the will of the police officer is not an intent to cause injury within the meaning of the Act. I am satisfied that s 3B(1)(a) applies.
11. I am satisfied therefore that Mr Hamilton's damages for the natural and probable consequences of the battery, subject to s 3B(1) (a)(i), are at large to be assessed in accordance with common law principles if the defendant fails to make out its remaining defences.

Part 7 Civil Liability Act - self-defence common law

1. Section 52 of the Civil Liability Act is in the following terms: " (1) A person does not incur a liability to which this Part applies arising from any conduct of the person carried out in self-defence, but only if the conduct to which the person was responding: (a) was unlawful, or (b) would have been unlawful if the other person carrying out the conduct to which the person responds had not been suffering from a mental illness at the time of the conduct. (2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary: (a) to defend himself or herself or another person, or (b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or (c) to protect property from unlawful taking, destruction, damage or interference, or (d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass, and the conduct is a reasonable response in the circumstances as he or she perceives them. (3) This section does not apply if the person uses force that involves the intentional or reckless infliction of death only: (a) to protect property, or (b) to prevent criminal trespass or to remove a person committing criminal trespass."
2. Section 53 applies to cases where the "defendant believes" limb is established, but the "reasonable response" limb is not. In those circumstances, limited damages may be available where the court is satisfied that the circumstances of the case are exceptional and in those circumstances, a failure to award damages would be harsh and unjust.
3. Section 54 of the Civil Liability Act is in the following terms: "(1) A court is not to award damages in respect of liability to which this Part applies if the court is satisfied that: (a) the death of, or the injury or damage to, the person that is the subject of the proceedings occurred at the time of, or following, conduct of that person that, on the balance of probabilities, constitutes a serious offence, and (b) that conduct contributed materially to the death, injury or damage or to the risk of death, injury or damage. (2) This section does not apply to an award of damages against a defendant if the conduct of the defendant that caused the death, injury or damage concerned constitutes an offence (whether or not a serious offence). (3) A serious offence is an offence punishable by imprisonment for 6 months or more. (4) This section does not affect the operation of the Felons (Civil Proceedings) Act 1981. (5) This section operates whether or not a person whose conduct is alleged to constitute an offence has been, will be or is capable of being proceeded against or convicted of any offence concerned."
4. I have already found in the context of the primary facts of the case that Mr Hamilton did not shape up to punch S/Cst Mildenhall; did not thump him in the chest; and did not offer any other form of resistance to the actions of the police officers. I have already found that neither officer actually believed that their conduct of exerting the force they applied to Mr Hamilton was necessary for the defence of S/Cst Mildenhall. Accordingly, the first limb of statutory self-defence is not made out and it is not therefore necessary to consider the "reasonable response" limb.
5. On the facts as I have found them, however, as there was no threat to the person of S/Cst Mildenhall, the application of the force exerted could not be a reasonable response. Had the officers, through some understandable mistake in the circumstances as each of them perceived them, actually believed that Mr Hamilton was assaulting, or attempting to assault S/Cst Mildenhall, the application of the trained technique of an arm bar takedown would have been a reasonable response. On the other hand, I am not satisfied that the prolonged application of force after Mr Hamilton had hit his head on the wall was reasonable. In my view, the conduct of the officers was disproportionate in the circumstances.
6. The elements of self-defence at common law are set out in State of New South Wales v McMaster [2015] NSWCA 228; 328 ALR 309. Beazley P (at [166]) held that the formulation of self-defence by Wilson, Dawson and Toohey JJ in Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645 at 661 was equally applicable to civil cases, with the exception, of course, that the defendant carries the onus of proof. Their Honours said: "The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it … then he is entitled to an acquittal."
7. Her Honour also approved as applicable in civil cases their Honours' statement at 662-3 of the desirability of approaching a decision about self-defence "in a practical manner and without undue nicety, giving proper weight to the predicament of [the defendant] which may have afforded little, if any, opportunity for calm deliberation or detached reflection".
8. Her Honour also approved of the statement of principle in Watkins v State of Victoria (2010) 27 VR 543; [2010] VSCA 138 at [72] - [75] to the effect, and to the extent to which, "proportionality of response is relevant to the conclusion whether the defendant believed on reasonable grounds it was necessary for him or her to do what he did, the burden of establishing proportionality rests on the defendant" (at [74]). It is also notable that her Honour (at [161]) approved the statement at [99] in the judgment of Ashley JA and Beach AJA that an "alleged belief … anchored to a factual circumstance the existence of which" has been rejected cannot be based upon reasonable grounds.
9. Applying these principles to the facts as I have found them, it is clear that the common law defence of self-defence in the case of S/Cst Mildenhall, or defence of another in the case of S/Cst Liebrand, has not been established. Indeed even had I found that through misperception each of them actually believed that Mr Hamilton was attempting to strike S/Cst Mildenhall, since I have rejected that scenario as baseless, the common law defence would have failed in any event.
10. Turning then to the application of s 54 Civil Liability Act. I have found that Mr Hamilton did, by shoving Mr Siddiquee on the back in circumstances then pertaining, assault him. No injury was inflicted but that conduct, on the balance of probabilities, constitutes the serious offence of common assault contrary to the provisions of s 51 Crimes Act because it is punishable by imprisonment for six months or more. In truth, it is unnecessary for me to analyse the application of s 54 in any great detail because on the findings I have made, s 54(2) clearly applies as the arrest of Mr Hamilton by S/Cst Mildenhall, with the assistance of S/Cst Liebrand, was unlawful for the reasons I have fully rehearsed then their conduct causing the injury Mr Hamilton complains of also constitutes an offence. For the purpose of s 54(2) that offence need not be a serious one. The conduct of each of them would likewise constitute an offence contrary to the provisions of s 61, and probably at least an assault occasioning actual bodily harm contrary to s 59 Crimes Act which carries a maximum penalty of imprisonment for 5 years. For this reason, s 54 does not apply.
11. Were it otherwise necessary to consider closely the elements of the defence established by s 54(1), the difficulty with s 54(1)(a) is defining the full ambit of the necessary temporal connection between the injury, the subject of the proceedings, and the conduct that constitutes the serious offence, connoted by the expression "at the time of, or following". With great respect I would be inclined to agree with Young CJ in Eq (as his Honour then was) in Sangha v Baxter [2007] NSWCA 264 at [84]. That is to say the question will always be one of fact and degree. His Honour said: "It seems to me that it cannot be that every action after someone has committed a serious offence can be caught by the words "following … ". Just where the cord must be cut is unclear. It may be that if one were to set down a test one would do it in similar words to those of Lord Normand in the Privy Council in Teper v R [1952] AC 480 at 487 (a res gestae case) that the injury must occur "if not absolutely contemporaneous with the" crime then "at least so clearly associated with it, in time, place and circumstances" that it can be considered part of the criminal conduct."
12. Given that I have held that Mr Hamilton was hurrying away in an attempt to avoid contact with the police for the reasons I have explained, I would have been satisfied had subsection (2) not been engaged, that his injury occurred at a time having the relevant statutory connection with him assaulting Mr Siddiquee. It must follow that, had the arrest involving the exertion of force which inflicted injury been lawful, Mr Hamilton's conduct in assaulting Mr Siddiquee contributed materially to the injuries inflicted on him by the police officers.

False imprisonment

1. In Croucher, Leeming JA described the tort of false imprisonment as one of three forms of trespass to the person. According to Professor John Fleming, the elements of the tort are the intentional restraint of a person's liberty without lawful justification (Fleming's The Law of Torts, (9th ed 1998, LBC Information Services) at 33). It need not involve actual incarceration. But the necessary constraint must be applied against the person's will.
2. The facts upon which the plaintiff relies are his unlawful arrest commencing with S/Cst Mildenhall first grabbing his left arm, the subsequent physical restraint by force, the application of handcuffs, being kept in the custody of the police officers whilst examined by paramedics, being conveyed to St Vincent's Hospital by ambulance and during his time in the hospital until the police released him from their custody by leaving the hospital after the examination by Dr Brungs. As S/Cst Mildenhall commenced his COPS entry at about 4:13 am, Mr Hamilton was probably released from custody at about 3:30 am. Accordingly, from the evidence of the CCTV footage he was held against his will from about 11:45 pm on 12 December 2009 until 3:30 am on 13 December 2009, a total time of about 3 hours and 45 minutes.
3. On my findings already made, I am satisfied that the arrest and subsequent restraint of his liberty were unlawful, intentional, and imposed against his will. I find the plaintiff has made good his cause of action.
4. I will deal with quantum later in these reasons.

Malicious prosecution

1. The plaintiff's case in malicious prosecution is directed only to the charge of resisting S/Cst Mildenhall in the execution of his duty brought under s 58 Crimes Act and being sequence two on Court Attendance Notice H40877455. Sequence one was the charge of assaulting Mr Siddiquee.
2. It is well established that the tort of malicious prosecution lies in respect of only one of several charges brought in the proceedings. In Birchmeier v Council of the Municipality of Rockdale (1935) 51 WN (NSW) 201, Jordan CJ said (at 202): " There is no doubt that if a person is prosecuted in respect of several matters, it is no defence to an action of malicious prosecution in respect of one of those matters to prove that reasonable and probable cause existed for prosecuting the others; and evidence directed to this purpose only is inadmissible." [Citations omitted.]
3. In A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10, six justices of the High Court of Australia identified the elements of the tort as follows (at [1]): 1. That criminal proceedings (at least generally) were initiated against the plaintiff by the defendant; 2. That the proceedings terminated in favour of the plaintiff; 3. That the defendant, in initiating or maintaining the proceedings, acted maliciously; and 4. The defendant acted without reasonable and probable cause. In this case, there is no issue about elements one and two. The sole questions relate to three and four, and of course damage (which is of the gist): State of New South Wales v Zreika [2012] NSWCA 37 at [59].
4. Malice is established where it is proved that the prosecutor's dominant purpose for bringing the proceedings is one other than "the proper invocation of the criminal law": A v State of New South Wales at [91]. It is not possible to categorise the classes of improper purpose. The High Court pointed out spite, ill-will, a desire to punish the defendant, and to stifle a civil action brought against the prosecutor are all examples.
5. I am satisfied that Mr Hamilton has established that S/Cst Mildenhall's purpose in bringing the resist arrest prosecution was for one other than the proper invocation of the criminal law. In my judgment, it was to justify the officer's conduct in unlawfully arresting Mr Hamilton and inflicting personal injury, of which he complained, in the process. I draw this inference from a number of considerations based upon the facts that I have found them to be.
6. First, the charge of resist police was based upon false facts namely, the assertion that Mr Hamilton was offering S/Cst Mildenhall significant violence to avoid or evade arrest; secondly, S/Cst Mildenhall's conduct, and to a lesser extent, that of S/Cst Liebrand caused actual physical injury for which he required medical treatment and for which he indicated he would sue; thirdly, the officers failed to provide Mr Hamilton with information about how to go about exercising his right to complain to a senior officer; and fourthly, when s 201 LEPRA was finally complied with, he was told only that he was under arrest for assaulting Mr Siddiquee, and no mention was made of any charge of resisting police.
7. I have rejected the plaintiff's argument that S/Cst Mildenhall did not take steps to secure the taxi footage as a ground of malice or as evidence supporting malice. In my judgment, he did take reasonable steps in that regard.
8. In arriving at this conclusion about malice, I have borne in mind that this private law remedy is not available to all who have been prosecuted unsuccessfully. Moreover, I have kept in mind s 140(2) Evidence Act 1995 (NSW) given the seriousness of the allegations made against serving police officers.
9. Turning to the separate requirement of reasonable and probable cause, I have borne in mind that Mr Hamilton complains about the resist arrest charge only. The assault charge also terminated in his favour, but he implicitly accepts no action for malicious prosecution lies in respect of that matter. In deciding whether S/Cst Mildenhall acted without reasonable and probable cause, I will confine myself to the charge of resist police.
10. I am aware of the difficulty the plaintiff faces in effectively proving a negative.
11. In A v State of New South Wales, the plurality pointed out that this element of the tort covers complex ideas.
12. As I have already decided, S/Cst Mildenhall was the officer in fact responsible for bringing the prosecution. This is a case where the prosecutor "may be supposed to know where the truth lies": A v State of New South Wales at [71]. I am persuaded that this case is covered by the principal discussed by Dixon J (as his Honour then was) in Sharp v Biggs (1932) 48 CLR 81; [1932] HCA 54. At 106 his Honour said: "Reasonable and probable cause does not exist if the prosecutor does not at least believe that the probability of the accused's guilt is such that upon general grounds of justice the charge against him is warranted."
13. On the findings I have previously made, the materials put forward to support this prosecution were false. I have found that neither officer had any genuine belief in Mr Hamilton offering violence to the officers to resist his arrest. I accept the argument on behalf of Mr Hamilton that S/Cst Mildenhall charged Mr Hamilton with resisting an officer to justify his conduct in unlawfully arresting and assaulting the plaintiff (964.45T; 990.35-45T). I am conscious that during the arrest, S/Cst Mildenhall and S/Cst Liebrand said they repeatedly directed Mr Hamilton to "stop resisting". I have previously referred to this as self-serving. I accept that the use of that expression during the course of an arrest can be a stratagem (890.10-15T).
14. I will deal with damages below.

Misfeasance in public office

1. I am not persuaded that the tort of misfeasance in public office lies. As pleaded in [18] of the Amended Statement of Claim, the allegation is an attempt to cover all of the aspects of unlawfulness which constitute the elements of the other causes of action advanced. This impression is enhanced by reference to [23]-[25] of the plaintiff's written submission in reply dated 4 June 2015.
2. I accept that the tort may apply to police officers in the exercise of their powers: Farrington v Thompson [1959] VR 286. However, to employ it as Mr Hamilton seeks to do offends the principle of legal coherence. The various torts should be confined within their proper sphere of application. It might also be said that there is no discernible head of damage claimed not covered by the other causes of action brought forward: Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59 at [55]-[56]; [60].

Damages

1. I propose to deal with damages for each cause of action separately. As Mr Steirn opened the case, the most significant matter is the damages for personal injury for the tort of battery. In the circumstances of this case, those damages are to be assessed according to common law principles. Although I will assess damages for each cause of action individually, I will aggregate the damages and enter a single judgment in favour of the plaintiff. Counsel agreed that this was an acceptable approach to avoid unnecessary double counting.

Damages for the battery

1. For the tort of battery, the plaintiff is entitled to recover damages for all of the natural and probable consequences of the tort. He is entitled to be put in the position he would have been in if the tort had not been committed, at least so far as much as money can.
2. Mr Hamilton was born on 3 July 1948 in Glasgow, Scotland. He was 61 years of age in December 2009 and is now 68 years of age.
3. He left school at the age of 15 following his father's death. Apparently, he had been a good student. By the age of 18 he had started his first business successfully selling potatoes door-to-door in London. The family migrated to Australia in 1969. After a short period in Sydney, the family moved to Queensland where Mr Hamilton and his mother established a successful cafe. They then opened a guesthouse which was also successful and Mr Hamilton moved into buying and selling real estate and eventually property development. He clearly had entrepreneurial flair.
4. He met his wife in 1979, marrying in 1985 and settling on the Gold Coast. There are three daughters of the marriage but the marriage broke down following the recession of the early 90's when his business floundered. By dint of his abilities he was able to re-establish himself as a developer and operated successfully in Queensland for many years.
5. As at December 2009 the plaintiff was conducting his enterprise through a number of corporate entities which he controlled, as is common for property developers. As at December 2009, the plaintiff was not involved in a current development but he had not retired from employment. He was then not involved in projects because in the aftermath of the global financial crisis, finance was tight and it would not have been "a wise thing" to be involved in a project on the Gold Coast (49.50T).
6. There is no doubt that the plaintiff suffered a mild head injury and grazes and abrasions around his right eye and temple as a result of the assault. I accept that he probably suffered a fracture of the seventh rib on his left side as he was exquisitely tender on examination by Dr Brungs and an x-ray suggested such a fracture. At one time there was an allegation that he suffered an undisplaced fracture of his scull in the temple region however that particular of injury was not pressed and I note in this regard that he was struck on the head by a falling fan in late January 2010.
7. More significant than these physical injuries is a diagnosis of post-traumatic stress disorder ("PTSD") made initially by his long-term treating GP, Dr Adsett. Dr Adsett treated him with Zoloft and referred him to Dr Tervor Lotz, psychiatrist, who first examined him on or about 17 December 2010. Dr Lotz confirmed the diagnosis and continued treatment with Zoloft, doubling the dose.
8. Dr Lotz described the symptoms as loss of confidence, social withdrawal, flat moods, a feeling of impaired cognitive abilities, fatigue, anxiety, nightmares with hypervigilance and increased startle response.
9. In his report to the plaintiff's solicitor of 12 June 2012, Dr Lotz confirmed the history and clinical signs. He referred to Mr Hamilton complaining of memory lapses and poor concentration in particular. Dr Lotz considered that Mr Hamilton continued to suffer from uncontrolled PTSD directly related to the assault of 12 December 2009. He did not regard the prognosis as favourable and thought that progress would be protracted. Dr Lotz believed that the condition would be permanent.
10. Mr Hamilton was seen twice by Dr Bruce Westmore at the request of his solicitors and provided two reports of 12 March 2012 and 13 November 2014. Dr Westmore also diagnosed PTSD but with co-morbid symptoms of depression and anxiety and a post-concussion syndrome. He related the condition to the assault. He was of the view that he required more active treatment. He described his condition as moderately affecting him and noted his loss of confidence, saying that his condition has "impacted on his ability to undertake his pre-injury employment, certainly at the level he was functioning at before the assault." Dr Westmore felt his capacity to perform at work would continue to be adversely affected. When he saw him in October 2014, Mr Hamilton stressed his difficulties with concentration and his reliance on his daughter. He was then continuing with Dr Lotz and was also on anti-depressants. Mr Hamilton reported continuing violent nightmares. Dr Westmore said he continued to suffer from what he regarded as quite severe disabling symptoms associated with PTSD which was chronic, treatment resistant and intractable. The prognosis was poor. He thought Mr Hamilton totally unfit and maintained that he needed ongoing psychiatric care.
11. Mr Hamilton has been examined for the defendant by Dr Robert Lewin on 13 December 2012. His reports of 13 December 2012 and 12 June 2013 were tendered in the plaintiff's case. He received a history that Mr Hamilton was then working on an affordable housing project although he struggled with certain aspects of the task, including concentration, creativity and cognitive functions. He became visibly distressed talking about the incident of 9 December 2009. Dr Lewin diagnosed a partially treated PTSD and a depressive reaction, in the nature of a Major Depressive Episode. Dr Lewin thought that more active treatment was called for. Dr Lewin thought it reasonable that the condition would cause reduced creativity and drive, notwithstanding Mr Hamilton's return to work. Absent a response to treatment, "he is likely to continue to struggle" (p 12 of report dated 13 December 2012).
12. In his second report, Dr Lewin was asked to consider the report of Dr Roldan who undertook neuro-psychological testing of Mr Hamilton. Dr Lewin was of the view that the results confirmed his diagnosis and that the difficulties with cognitive functioning were due to the PTSD.
13. Dr Roldan's report of 15 January 2013 is also in evidence. He was able to exclude traumatic brain injury. He considered the onset and pattern of cognitive difficulties to be consistent with PTSD.
14. Mr Peter Rawlings also carried out neuro-psychological testing on 6 March 2012. He said that his results were indicative of wide-ranging and clinically significant impairment. He too excluded traumatic brain injury and considered that Mr Hamilton's problems with memory and concentration were those commonly seen in PTSD. His test results were worse than Mr Rawlings expected them to be. He also reviewed Dr Roldan's report and in his second report of 25 August 2013, considered that he and Dr Roldan were in agreement.
15. In cross-examination, it was made apparent that, notwithstanding the PTSD, Mr Hamilton still managed an active social life, although I accept he is less active and experiences less enjoyment than before December 2009.
16. Mr Hamilton has complained of an increase in his alcohol intake since his injuries but on the basis of the cross-examination, I am not so sure that is correct. I have already referred to the clinical records of Dr Adsett in another context. It seems to me that periods of overconsumption of alcohol have been a long term feature in Mr Hamilton's lifestyle. However, so far as his disabilities are concerned, especially given the unanimous medical and other expert opinion, I otherwise regard him as an accurate historian.
17. There is much debate about Mr Hamilton's entitlement to damages for economic loss and this largely arose out of what I will refer to as an extensive claim for actual economic loss. I appreciate that I am required to assess his diminution of earning capacity to the extent to which it is, or may be productive, of financial loss. That claim for actual economic loss has not been pressed, and rather I am invited to assess economic loss on the basis of a "cushion" as arithmetical precision is impossible in the circumstances of the case.
18. I accept the strength of the State's argument that he was not actively involved in work as at December 2009 for the reasons he gave, and he has returned to development work in the social housing development I have referred to. He was continuing with that as at the date of the trial. I accept that he relies more heavily on others these days, including his daughter who he is no doubt pleased to train in the business.
19. However, I accept that successful capitalism depends upon entrepreneurial flair, the ability to think quickly and creatively. All of these faculties have been diminished in Mr Hamilton's case by virtue of his PTSD and his prognosis is poor. It was not put to me that his age was a barrier to continuing in his line of work and I would accept that property developers can continue in that industry well beyond what might be regarded as normal retirement age.
20. I accept however, that the property market is likely to be cyclical with periods of boom and bust.
21. I have had the benefit of a joint report from the parties' expert accountants dated 24 November 2014 admitted as Exhibit 20. The experts also gave concurrent evidence before me. They disagreed about whether one should average past performance, pre-injury, over five or seven years. The plaintiff's expert Mr Robertson favoured five, and the defendant's expert, seven, as in her opinion, that was likely to better reflect the longer business cycle in the property market. Taken on the five year cycle, the average net annual profit of the entities controlled by the plaintiff was $217,342. Over the seven year cycle, pre-injury, the net annual average income was $139,308.
22. I note that the average of these figures is $178,325.
23. On the available figures, the experts are agreed that since 2010, the average adjusted net loss per annum of the plaintiff's entities is $156,241. I think it unnecessary to resolve the difference between the experts as to the appropriate length of the business cycle. It seems to me that the average of those positions is as good a starting point as any. Moreover, although I accept Mr Hamilton is the engine driving these businesses, they are at best a faint guide as to his previous earning capacity. Likewise, I would not attribute the financial losses since 2010 to his injury. There are too many imponderables to justify using these before and after figures as a basis for calculating economic loss. I am satisfied that he does have a diminution of earning capacity because of his PTSD, and I am satisfied that it has been productive of actual financial loss and may be in the future. Having said that, those losses are not susceptible of precise calculation. For this reason, a cushion approach seems appropriate, especially as he continues in the industry and his financial performance is likely to be governed by its ups and downs. I assess damages as follows: General damages: $250,000 Mr Hamilton suffered this condition for seven years, on the life tables he has a life expectancy of 18 years, during which he is likely to continue to suffer from his symptoms of PTSD. Interest on past general damages: $14,000 Interest on $100,000 of past general damages at 2% for seven years Past out of pocket expenses: It is indefinite, but he has received medical attention on a continuing basis and must have suffered some loss. In the absence of precise evidence, I will allow: $5,000 Future medical treatment: Including psychiatric care, psychological counseling and medication. The evidence is scant. I will allow: $15,000 Past economic loss: Bearing in mind the plaintiff was not actively engaged in the industry as at December 2009 for other reasons, and has resumed engagement since with the assistance of his daughter, I think it appropriate to commence past economic loss from January 2012. I allow four and a half years as a cushion, including interest: $100,000 Future economic loss: Say to the age of 75, seven years, allowing 15% for the Vicissitudes, I will allow: $120,000 Aggravated damages: Plaintiff claims aggravated damages. On the findings I have made as to the manner in which the injuries were inflicted upon Mr Hamilton I think it appropriate to make such an award, bearing firmly in mind the distinction between aggravated damages and exemplary damages. I allow: $25,000 Exemplary damages: I have set out at [179] my findings as to the conduct of the police officers. Having regard to the considerations of denunciation, deterrence and to vindicate the interest of the community in law enforcement officers acting according to law, I allow exemplary damages in the sum of: $15,000 Total damages for battery is: $541,000

Damages for false imprisonment

1. Damage is not of the gist of the tort of false imprisonment. As the State point out, there is little or no evidence from Mr Hamilton about how this matter affected him. I think however, I can infer that he was subject to great embarrassment in being dealt with in public, handcuffed, under arrest, outside the Grosvenor Place building, dealing with ambulance officers and with staff and the public at St Vincent's Hospital. The time was relatively short, about 3 hours and 45 minutes and it was probably unnecessary to keep him in handcuffs for most of that period. In my judgment, a global figure is appropriate and I allow the sum of $8,000 inclusive of aggravated damages and interest. To avoid double counting, I do not consider it appropriate to award exemplary damages in respect of this separate tort.

Damages for malicious prosecution

1. Again, there is little evidence about this matter. I can however infer that the prosecution for resist arrest were dealt with summarily as a table offence, carried a maximum penalty of two years imprisonment. The proceedings continued for months until 19 August 2010. During that period of time, Mr Hamilton would have suffered ongoing worry, anxiety, vexation and the obvious reputational damage that comes with facing criminal charges. However in this case, it must be borne in mind that he may well have faced the assault charges in any event, suffering something like the same injury. This ameliorates in the State's favour somewhat what the damages would otherwise have been. I do not think that any case has been made out for aggravated damages. Given however, that the resist officer charges were brought for an ulterior purpose (by definition) for the reasons I have addressed above, I am satisfied that a separate award of exemplary damages is called for in this case. For compensatory damages including interest $20,000; exemplary damages $ 10,000 - total: $30,000 Total damages: $582,000

1. My orders are: 1. Judgment for the plaintiff against the defendant in the sum of $582,000 2. The defendant to pay the plaintiff's costs of the proceedings. 3. Parties have liberty to apply for ancillary orders on short notice.

Amendments 19 September 2016 - Paragraph [161]: Correct date of citation; change "Simonds" to "Simon". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 September 2016