Lassanah v State of New South Wales

District Court of NSW|2010-02-26

For the reasons set out above, none of the matters raised by the first defendant in written submissions is considered by me to be a basis upon which I should reject the evidence of Mr Lassanah.

This brings me to the question of the evidence of the second defendant.

The second defendant called no oral evidence and published the following apology in Court to the plaintiffs: " APOLOGY TO MR LASSANAH and Mr Oddie

By way of explanation, we wish to indicate that the staff of Tag Heuer were very concerned about the behaviour of Mr Oddie & Mr Lassanah at the time of the incident on 10 June 2008.

However now that we have become aware of the nature of his disability his perceived behaviour has been placed in its proper context.

As a result, we wish to apologise unreservedly for the hurt and upset occasioned to Michael Lassanah and Aaron Oddie when members of the NSW police attended outside our shop on 10 June 2008.

With the benefit of hindsight we acknowledge that neither Mr Oddie nor Mr Lassanah did anything wrong.

We hope that Mr Oddie and Mr Lassanah will accept our sincerest apologies expressed through our counsel and that they will once again feel welcome in our Tag Heuer stores." (Exhibit 3).

However, the second defendant's version given to police on the day in question was, according to the police officers who were called and were cross-examined, very different: (a) Leading Senior Constable Ansted said that the manager of Tag Heuer told him the plaintiffs were both acting suspiciously in the shop, in that they had been tapping on the glass, trying to lift the glass of the display cabinets, and that they were about to rob or attempt to steal from the shop. (T 207, 218). It was on the basis of that information that the plaintiffs were stopped (T 207).

"Q. When you went back the first time into the shop, were you told that all that information was wrong? A. No." (T 207)

(c) Sergeant Gibson told Leading Senior Constable Ansted that the plaintiffs were seen on footage tapping on glass and lifting up the lids. Sergeant Gibson gave evidence but had no independent recollection of what he had seen on the CCTV footage. There is nothing in the CCTV footage to show any conduct of either of the plaintiffs lifting up the lids of the cabinets, tapping on the glass or any other abnormal conduct. Accordingly, if Sergeant Gibson told Leading Senior Constable Ansted this, the most likely explanation is that he was told this by the manager of Tag Heuer, as this is what the manager of Tag Heuer also told Leading Senior Constable Ansted.

The explanation that is offered for the second defendant's conduct in pressing the hold-up button was that the Tag Heuer staff, observing the second plaintiff's conduct in the store, did not appreciate that he was intellectually impaired and assumed that his conduct in the store was an indication that he was going to steal. It is asserted that while it was observed in Court that Mr Oddie was obviously intellectually disabled (page 9, paragraph 27 of the second defendant's submissions) "We were all forewarned of his intellectual disability by reason of the Statement of Claim" (paragraph 27) and were expecting to see a person who was intellectually disabled. In addition, it is submitted that he was observed in Court for a longer period, and whilst his mother was present.

The written submissions of the second defendant conclude: "Some people are more perceptive than others and there is no particular reason to presume that the Manager of the store or Ms Ahmet shared the perceptive powers of Constable Axford or even the lack of perception of other officers. They may well have been left in a middle state of mind, that is, in a state of puzzlement or not knowing."

Although the second defendant called no witnesses and puts nothing to Mr Lassanah to the effect that his conduct was in any way furtive or suspicious, reliance is placed on the "apparent perception of the plaintiffs' conduct can be gleaned from the three different CCTV footage views" (second defendant's written submissions, paragraph 24). Reliance is placed upon the fact that Mr Oddie is wearing "a dark beanie pulled down to just above his eyes" (written submissions, paragraph 24) and that he is seen "pacing about, sitting down, moving over to the same cabinet several times, standing close to Mr Guidi and Mr Lassanah, moving to the entrance to the store several times as if to leave, moving to the cabinet on the left hand side of the store and placing his hands upon it (with his back to the store manager)" (written submissions, paragraph 24). He appears to lean down and look into the cabinet. I am invited to assume, without the benefit of any evidence being called, that the conduct of Mr Oddie during the period of time that he is in the shop (a matter of four and a half minutes) was the conduct that caused suspicion and concern. It should be noted that it is not until Mr Oddie has left the shop that the male shop attendant opens the cabinet to show Mr Lassanah a watch. Mr Lassanah is shown the watch and leaves two and a half minutes later.

I have set out below in more detail why I do not accept the submissions of the second defendant that it was while Mr Lassanah and/or Mr Lassanah and Mr Oddie were in the shop that the alarm button was pressed.

I am invited to accept (second defendant's written submissions, paragraph 27) that Mr Oddie's intellectual disability would not have been apparent to the shop staff. This is despite the fact that it is conceded in written submissions at paragraph 27 that "it was observed in Court that Mr Oddie was obviously intellectually disabled", although it was claimed that everyone was forewarned by reason of the fact that a tutor was appointed in these proceedings. It is further submitted that "some people are more perceptive than others and there is no particular reason to presume that the manager of the store or Ms Ahmet shared the perceptive powers of Constable Axford or even the lack of perception of the other officers. They may well have been left in a middle state of mind, that is, in a state of puzzlement or not knowing" (written submissions, paragraph 27).

In circumstances where no evidence has been called, these are bold submissions in circumstances where, as the High Court stated in Insurance Commissioner v Joyce (1948) 77 CLR 39 at 49, the failure to call such evidence means that the court, not the person failing to call the witness, is entitled to be bold.

The conduct of Mr Lassanah in the shop, and his demeanour, is not the subject of any submissions from the second defendant, nor was he cross-examined about it. If Mr Lassanah's demeanour in the shop was the same as his demeanour in the witness box, he could not have been the subject of any of these mistaken beliefs.

I am not prepared to accept any of these submissions in circumstances where none of the store employees has been called to give evidence. The CCTV footage shows nothing improper in the conduct of either plaintiffs and in particular, none of the allegations made by the Tag Heuer manager to Leading Senior Constable Ansted can be made out.

Mr Lassanah left the shop at 2:07 pm. The police arrive at 2.13 pm. The police came to the scene very quickly as it was an urgent call over the police radio (T 167), which meant that lights and sirens were activated as an emergency job.

The discrepancy in time between the police receipt of the call at 14:14:59 has been explained as being due to the nature of CCTV footage and to inaccurate time measurements. According to the police, the call was received at 14:14:59 and they left the Tag Heuer premises at 15:11:19, meaning that the whole incident took half an hour of police time, the police were on the scene between 14:51:19 (T 171) and 15:11:19. Three cars came to the scene of the reported robbery.

Given the speed with which the police respond to such urgent calls, and given that there were cars in the immediate vicinity, as the emergency operator calls confirm, the time between the operator call at 14:44:20 and the response of the police (14:45:20) and the giving of the address (14:45:40) it can be seen that the police arrived at approximately 14:50 pm. By 14:51 the police were able to radio back to the operator: "Just information there's been an attempt robbery on the store we are just going to try and work out what actually happened here at the moment um and we will be speaking to two POIs who have been stopped by security so if you can let that other car keep coming and um - we will go from there."

At 14:51:20 the police confirmed they were speaking with the POIs. The police were therefore at the premises a matter of six minutes after the call.

The plaintiffs had left the shop according to the CCTV footage, at 14:07:05, walked up to Rolex, where the first plaintiff looked at some more watches, following which he walked back down King Street towards where the Department of Community Service hire car was parked.

At the time that the police car came past, the plaintiffs were still walking back from Rolex; they are seen walking past the shop according to the CCTV time, at 14:15:30, followed by two uniformed police, and they are apprehended just past the Tag Heuer shop.

The speed of the police response to the urgent call means that the time between the button being pressed and the police response is too short to be consistent with the second defendant's assertion that the button was pressed at 14:04:54, the time at which a female shop attendant is seen reaching for something below the counter.

For these reasons, I accept the submissions of the plaintiffs that the alarm button was most probably activated after the plaintiffs had left the Tag Heuer shop, in circumstances where there is no explanation or evidence as to why this occurred.

Why did the second defendant's staff press the hold-up button?

Explanation of the reason for calling the police by a store assistant is of importance in cases such as these for the reasons explained by Ipp JA in Coles Myer Ltd v Webster; Coles Myer Ltd v Thompson [2009] NSWCA 299.

The police who were called said that in the majority of cases where the hold-up alarm button was pressed, it would turn out to be a false alarm. The emergency operator's report for 14:51 is revealing in that the police reported back to her: "Just information there's been an attempt robbery on the store we are just going to try and work out what actually happened here at the moment …" [emphasis added]

The use of the phrase "try and work out what actually happened here at the moment" is instructive. The police were aware this was not a robbery. They were not even sure there was "an attempt robbery". Secondly, it was not clear what had actually happened. In other words, there was no clear description given of what made the store think there would be "an attempt robbery". These words are important in determining the precise state of information that the police had when they first arrived at the premises.

If the explanation was some conduct of either or both of the plaintiffs which caused a store employee to believe a robbery was going to take place, even when they had left the shop, evidence to that effect would have been simple to call. Nor was there any evidence adduced of the robbery the second defendant's employees claimed had occurred in the shop the week before. The failure of the second defendant to call the shop assistants to explain when and in what circumstances the hold-up button was pressed, and about there being a recent robbery of the store, constitute grounds upon which I should draw the inference in Jones v Dunkel (1959) 101 CLR 298; [1959] ALR 367; (1959) 32 ALJR 395; (1959) 76 WN (NSW) 278.

Having made these findings of fact, I now set out the relevant legal principles concerning the claim for wrongful arrest and false imprisonment.

Does Mr Oddie's intellectual disability prevent him from making a claim for false imprisonment or defamation?

I briefly note a preliminary matter raised in oral submissions, namely whether Mr Oddie's intellectual disability means that he cannot make a claim for false imprisonment or defamation because he is intellectually incapable of knowing he has been restrained, or of suffering hurt to feelings.

The issue of false imprisonment of disabled persons was the subject of analysis in State of South Australia v Lampard-Trevorrow [2010] SASC 56 at [291] ff: "[291] In R v Bournewood Community and Mental Health NHS Trust, ex parte L [1998] UKHL 24; [1999] 1 AC 458 the House of Lords considered a claim for false imprisonment made on behalf of a man who was autistic and profoundly mentally retarded. He was unable to speak and his level of understanding was severely limited. He was incapable of consenting to medical treatment. The issue was the lawfulness of his removal to a hospital and detention there. The case turned on the application of provisions of United Kingdom legislation, and to that extent is not of any present relevance. The matter was somewhat complicated by the need to consider the question of necessity. The majority of their Lordships held, in all the circumstances, that there was not an actual detention, because the applicant had been placed in an unlocked ward and the possibility of lawful restraint, had he sought to leave, did not give rise to his detention in fact. However, we do not understand Lord Goff of Chieveley, with whose reasons the majority agreed, to have accepted that the applicant's mental incapacity, and lack of awareness of his situation, was a barrier to a claim for wrongful imprisonment succeeding: at 486. Lord Steyn dissented on the question of whether there was an actual detention, emphasising that an unconscious or drugged person can be detained: at 495.

[292] In Murray v Ministry of Defence [1988] UKHL 13; [1988] 1 WLR 692 the House of Lords considered a claim for damages for false imprisonment arising from an arrest. Lord Griffiths, with whom the other members of the House of Lords agreed, denied that it was "an essential element of the tort of false imprisonment that the victim should be aware of the fact of denial of liberty": at 701. He went on to refer with approval to the following passage from the article "False Imprisonment: Consciousness of Confinement" by Professor Prosser in (1955) 55 Columbia Law Review 847 at 849:

Let us consider several illustrations. A locks B, a child two days old, in the vault of a bank. B is, of course, unconscious of the confinement, but the bank vault cannot be opened for two days. In the meantime, B suffers from hunger and thirst, and his health is seriously impaired; or it may be that he even dies. Is this no tort?

Or suppose that A abducts B, a wealthy lunatic, and holds him for ransom for a week. B is unaware of his confinement, but vaguely understands that he is in unfamiliar surroundings, and that something is wrong. He undergoes mental suffering affecting his health. At the end of the week, he is discovered by the police and released without ever having known that he has been imprisoned. Has he no action against B? ...

If a child of two is kidnapped, confined, and deprived of the care of its mother for a month, is the kidnapping and the confinement in itself so minor a matter as to call for no redress in tort at all?

[293] The analogies between the examples given by Professor Prosser and the present case are evident. As Lord Griffiths acknowledged, the Restatement of Torts had already been changed to require that the person is conscious of the confinement or is harmed by it, but Lord Griffiths said that he did not agree with that approach.

[294] In Myer Stores Ltd v Soo [1991] 2 VR 597 two members of the Court said that a person can be imprisoned without knowing and appreciating that fact: Murphy J at 599, O'Bryan J at 615, cf McDonald J at 626.

[295] It follows that it should not matter that the victim of the alleged unlawful restraint lacks the mental capacity, permanently or temporarily, to choose to resist the restraint in question. In Bournewood Community and Mental Health NHS Trust there is no suggestion that the plaintiff's mental impairment meant that he could not be the subject of a wrongful detention. A person who is asleep or unconscious, as postulated by Atkin LJ, is temporarily incapable of making the choice to resist or protest the unlawful restraint, but can be the subject of wrongful detention. And as Professor Prosser points out (above), surely a very young child who was kidnapped has a claim for wrongful detention.

[296] Finally, we refer without setting them out to comments by Asche CJ in Go v The Queen [1990] NTSC 40; (1990) 73 NTR 1 at 20. His Honour said that there can be wrongful detention although it cannot be shown the detention was against the will of the victim, instancing as examples insane or very ill persons or very young children, each of whom might not possess the capacity to consent.

[297] Although there is no case on point, in our opinion it should not matter that the person who complains of wrongful detention lacks or lacked the physical capacity to exercise the freedom of movement that was denied by the restraint in question. For example, assume a person confined to bed by reason of serious injury or illness, the person being completely unable to leave the bed in the room in which the person is placed. Assume that that person, against his or her will, is removed in the bed to another place and kept there against his or her will. Being unable to move from the bed, that person is incapable of exercising any freedom of movement. But, once again, surely the fact of removal and detention in another location would amount to wrongful detention, even though the person was incapable of moving from the bed in which the person remained at all times."

The question of whether a person who is intellectually disabled or otherwise incapable of reading or understanding the matter complained of can bring a claim for defamation has not been the subject of judicial consideration. I see no reason, however, why the same principles should not apply.

The liability of the defendants for wrongful arrest and false imprisonment

Mere words may be sufficient to amount to an arrest if, in the circumstances of the case, they are calculated to bring, and do bring, to a person's notice that he is under compulsion and he therafter submits to the compulsion: Lewis v Norman [1982] 2 NSWLR 649 at 655E per Enderby J. If there has been an arrest, the onus to prove its lawfulness will shift to the defendant: Zaravinos v State of NSW (2004) 62 NSWLR 58 at 63.
However, as set out in more detail below, I am satisfied that the plaintiffs were not in fact arrested.

There is no need for an arrest for an imprisonment to exist: Coles Myer Limited v Webster; Coles Myer Limited v Thompson [2009] NSWCA 299 at [35] per Ipp JA. False imprisonment occurs when a defendant's actions directly, intentionally or negligently cause the confinement of the plaintiff, for however short a period of time: Goldie v Commonwealth [2004] FCA 156 at [17] per French J. A person may be "imprisoned" without realising it (Myer Stores Ltd v Soo [1991] 2 VR 597 at 599 per Murphy J); the restraint may be sufficient if the plaintiff has a justified apprehension that if he or she did not submit, force could be used: Myer Stores Ltd v Soo at 625 per McDonald J.

The place of the arrest can be "in the open field, or in the stocks, or in the cage in the streets or in a man's own house" (Myer Stores Ltd v Soo at 599 per Murphy J, citing Meering v Grahame-White Aviation Co Ltd (1919) 122 LT Rep 44).

Fault and malice are irrelevant to questions of liability: Ruddock v Taylor (2003) 58 NSWLR 269 at 272.

The elements of the tort of false imprisonment have helpfully been summarised by the Victorian Court of Appeal in McFadzean v Construction, Forestry, Mining and Energy Union (2007) 20 VR 250; [2007] VSCA 289 (McFadzean) (special leave to appeal to the High Court was refused: see McFadzean v Construction, Forestry, Mining and Energy Union [2008] HCATrans 213). These principles were reduced to a series of statements of principle in Whittaker & Anor v Child Support Registrar & Anor [2010] 264 ALR 473. I gratefully adopt the principles drafted by counsel for the respondent in those proceedings, as set out by Lindgren J at [177]: "(a) the plaintiff bears the onus of proof to establish that what happened (having regard to any restraints and any possibilities of egress) can be constituted as imprisonment;

(b) false imprisonment is constituted by unlawfully subjecting another to total restraint of movement;

(c) the restraint must be total but it need not involve the use of force - it is sufficient if there be submission to the control of another after being given to understand that without submission there will be compulsion;

(d) the restraint may be comprised of a threat against the person or valuable property;

(e) the restraint must be imposed contrary to the person's will;

(f) where there is no application of force there must be evidence of complete submission by the plaintiff;

(g) there is no false imprisonment if there is only partial obstruction of the will, whatever inconvenience it may bring, if the means of escape are available;

(h) the submission by the prisoner must be in response to duress sufficient to make any consent given ineffective to bar the action;

(i) it is not sufficient in law that conduct of the defendant has contributed to or influenced the plaintiff's decision to remain, the conduct must have overborne the plaintiff's will;

(j) in each case, it is a question of fact whether a restriction is so severe as to be characterised as false imprisonment;

(k) whether [sic - where] there is a reasonable means of egress, it does not matter that the plaintiff did not use it - there can be no false imprisonment;

(l) there are four factors to be considered in determining whether any ability to leave was a reasonable one:

(m) there may need to be a serious risk (possibly even life threatening) before a means of escape is considered to be unreasonable;

(n) an avenue of egress may be reasonable even if it requires a plaintiff to commit a minor trespass;

(o) a mere partial interference with freedom to travel by one route does not compel a person to remain."

Persons may not feel free to leave, or not be able to leave, in circumstances falling short of actual false imprisonment, as the court pointed out in State of South Australia v Lampard-Trevorrow [2010] SASC 56: "[282] We agree with counsel for the State that the fostering of Bruce Trevorrow does not readily fall under the heading of false imprisonment or wrongful imprisonment. In part this is attributable to the use of the word "imprisonment" to capture the factual essence of the cause of action. The factual essence of the cause of action is the placing of a "total restraint" on the plaintiff's movement. That restraint need bear no similarity to what one would normally describe as imprisonment. The law has moved on from any such limitation.

[283] But the restraint must be total. For example, an available means of escape from a restraint might mean (depending on the circumstances) that the restraint is not total."

In such circumstances, any such restraint is not confinement or imprisonment, because the person is in reality free to leave: Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379 at 387; 13 ALR 249 at 252; McFadzean at [54]-[89]; State of South Australia v Lampard-Trevorrow [2010] SASC 56.

The responsibility of the first and second defendant for the plaintiffs being detained is the next issue for determination.

The relevant legal principles concerning the first defendant

The first defendant accepts (written submissions) that it has the onus of proving that the stop search and detention of justified, submitting that it has discharged this onus by establishing that the plaintiffs were detained pursuant to s 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), which provides as follows: " 21 Power to search persons and seize and detain things without warrant

(1) A police officer may, without a warrant, stop, search and detain a person, and anything in the possession of or under the control of the person, if the police officer suspects on reasonable grounds that any of the following circumstances exists:

(a) the person has in his or her possession or under his or her control anything stolen or otherwise unlawfully obtained,

(b) the person has in his or her possession or under his or her control anything used or intended to be used in or in connection with the commission of a relevant offence,

(c) the person has in his or her possession or under his or her control in a public place a dangerous article that is being or was used in or in connection with the commission of a relevant offence,

(d) the person has in his or her possession or under his or her control, in contravention of the Drug Misuse and Trafficking Act 1985 , a prohibited plant or a prohibited drug.

(a) all or part of a thing that the police officer suspects on reasonable grounds is stolen or otherwise unlawfully obtained, and

(b) all or part of a thing that the police officer suspects on reasonable grounds may provide evidence of the commission of a relevant offence, and

(d) any prohibited plant or prohibited drug in the possession or under the control of a person in contravention of the Drug Misuse and Trafficking Act 1985 ,

The police stopped, searched and detained the plaintiffs because, it is submitted, they suspected on reasonable grounds that the plaintiffs had in their possession or under their control something stolen or otherwise unlawfully obtained and/or something used or intended to be used in connection with a relevant offence, namely an indictable offence for the purposes of s 20.

What were those reasonable grounds? Leading Senior Constable Ansted said at T 172: "The man said, the manager said to me that there were two males in the shop. There they are down the road. They were walking away. He said they were in the shop to me. They were acting suspiciously. They were lifting the cabinets on the - sorry, the glass tops on the cabinets and he identified them to me walking down the road and they were walking away from the Tag shop, so he pointed out their identification to me, described them. I noticed them walking away from the Tag Heuer shop. He then said they were attempting to rob the store. He believed they were going to steal something. Further, he said to me that there was a hold-up the previous week in the shop."

At T 211, it was put to Leading Senior Constable Ansted that he did not believe what the manager said, to which Leading Senior Constable Ansted said "That was the information he told me." Leading Senior Constable Ansted considered that the information given to him by the manager constituted "reasonable grounds to stop those persons to find out exactly what they did at the store, not that they robbed the store, attempted to rob the store." He said he believed that he had reasonable grounds (T 217-218) on the basis of information he had from the manager. He agreed that he told the radio operator that "two male persons have been in the shop behaving suspiciously" and that they had been "in the shop looking around suspiciously" and that this was what the manager told him "a couple of times" (see cross-examination at T 217-218).

Constable Lentfer said at T 297: "…the manager had told Chad Ansted that there were two males previously in the store that had been acting suspicious and they were tapping - or being very hard on metal casings which enclosed watches and trying to pull panels of the glass apart with their hands. The manager thought that they were either going to try to rob from him or steal from him, and he indicated that the two men that were stopped by police and we were talking with were the males the manager had indicated too."

Constable Lentfer described how he carried out the search at T 298, where he said he told each of the plaintiffs: "I said that, "My name is Constable Greg Lentfer and I'm from The Rocks police. We've got information from the manager of the store at TAG Heuer that youse have been acting suspiciously, banging on the glass cabinets and trying to pull the panels apart, and he felt like youse were trying to steal from him or rob him. This is the reason why I want to search you, just to see if youse have anything that might have been stolen, unlawfully obtained in your possession, or any implements that may be used to commit an offence.""

Constable Lentfer said he was told by Leading Senior Constable Ansted that the plaintiffs were acting suspiciously by "being quite hard on the glass cabinets which contained watches and - And they were attempting to pull panels of the glass panels apart." (T 309)

It is submitted that the police were responding to a hold-up button having been activated in circumstances where the store manager provided this information and that the plaintiffs were stopped, although not arrested, pursuant to the provisions of s 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).

The submissions of the first defendant are predicated upon there having been no arrest. At paragraph 126 of its submissions, the first defendant states that "all police officers said there was no arrest" (see the evidence of Leading Senior Constable Ansted at T 285 line 20; Constable Lentfer at T 314 line 17; Constable Coates at T 343 line 45; Sergeant Gibson at T 380 line 29 and Constable Axford at T 335 line 30, who refer to the plaintiffs being "stopped", not arrested). The plaintiffs were merely stopped, it is submitted, and that the plaintiffs claim of an arrest "must fail" because the preamble to the Law Enforcement (Powers and Responsibilities) Act 2002 states that it is an Act to permit the stopping and searching of persons in circumstances where an arrest has not occurred.

The plaintiffs submit that at common law it has been held that if a person is not free to go, then they have been arrested, referring to R v O'Donoghue (1988) 34 A Crim R 397: "An arrest occurs whenever it is made plain by what is said and done by the police officer that the suspect is no longer a free person. Words may be sufficient: Alderson v Booth [1969] 2 QB 216 at 220-221; but they are not always necessary - what must be done is what is reasonable in the circumstances: Tims v John Lewis & Co Ltd [1951] 2 KB 459 at 466; Wheatley v Lodge [1971] 1 WLR 29 at 36."

It is submitted that nothing in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) alters the common law definition of arrest. It is further submitted that these arrests were unlawful.

The powers of the police to stop and search under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

Part 4 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), which includes s 21, refers to a variety of powers including not only arrest but stopping, detaining and searching without arrest. It is Part 8 which deals with the power of arrest, which is a different concept from the power of stop, search and detention set out in Part 4.

I am satisfied that the plaintiffs were not in fact arrested. They were stopped and searched under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) because of the very serious allegations made by the servants and agents of the second defendant, namely that they had been behaving suspiciously in the circumstances where these persons believed that an armed robbery was being attempted.

The question of what amounts to reasonable suspicion has been set out by the High Court in Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266: "In the first place, the precise force of the word "suspect" needs to be noticed. A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to "a slight opinion, but without sufficient evidence", as Chambers's Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence."

I am satisfied that the police did not arrest the plaintiffs, either at common law or pursuant to Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). They were called to the scene to investigate a potential robbery of a store and were exercising their rights to stop and search under Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). That is not an arrest.

The relevant legal principles concerning the second defendant

The first question is whether the restraint occurred as a result of the conduct of the second defendant's servants or agents.

In Ruddock v Taylor [2003] NSWCA 262 Spigelman CJ explained the correct interpretation of Myers Stores Limited v Soo [1991] 2 VR 597 as follows: "[29] In Myers Stores Ltd v Soo at 629, referred to with approval in Spautz at 26 and Cubillo at [250], McDonald J said:

"To be liable for false imprisonment it must be the act of the defendant or his agent that imprisons the plaintiff or the defendant must be active in promoting and causing the imprisonment; Aitken v Bedwell (1827) Mood. & M 68; 173 ER 1084; Warner v Riddiford (1858) 4 CBNS 180; 140 ER 1052 and Halsbury , 4th ed, vol. 46, para 1326, para 1327. The act of imprisoning a person either personally or by an agent or by being active in promoting and causing the imprisonment thereby is the proximate cause of the imprisonment and is distinguished from the mere giving of information to a police officer or the mere signing of a charge sheet."

[30] The terminology of "proximate cause" is sometimes used in other areas of the law, e.g. insurance, to mean the "dominant" or "effective" or "direct" cause. (See e.g. Halsbury's Laws of England (4th ed) Vol 25, para 175.) The applicable terminology with respect to the tort of false imprisonment is "direct cause". (The Australian texts are unanimous on the need for directness. See Balkin and Davis, Law of Torts (2nd ed) Butterworths, 1996, p 59; Fleming, The Law of Torts (9th ed) LBC Information Services, 1998, p 36; Trindade and Cane, The Law of Torts in Australia (3rd ed) OUP, 1999, p 50.) There must be "direct violation of the protection which the law throws round the person" ( Williams v Milotin (1957) 97 CLR 465 at 474).

[31] In Aitken v Bedwell (1827) Mood & M 68; 173 ER 1084, which McDonald J applied in Myer Stores Ltd v Soo , a captain of a merchant ship in a foreign port had a seaman flogged and imprisoned by the port authorities. Lord Tenderden CJ's full charge to the jury was:

"The plaintiff contends that what was done on shore was the act of the captain, the defendant says it was the act of the Russian authorities only. The question for you is, whether the punishment inflicted on shore was done by the constituted authorities, on the mere complaint of the defendant, or whether the defendant was the actor and immediate promoter of it? If you think the defendant merely preferred his complaint, and left the constituted authorities to act as they thought fit, the defendant is entitled to your verdict; if, on the other hand, you think he did more, and was active in promoting and causing the punishment to be inflated, then he is answerable in this form of action." [emphasis added]

[32] The italicised words indicate that the Lord Chief Justice's concluding reference to "promoting and causing" should be understood in terms of whether the trespass by way of battery and imprisonment was, as a matter of substance, the act of the captain. In Myers Stores v Soo , O'Bryan J at 616, referred to the formulation "actor and immediate promoter" from Aitken v Bedwell and posed the issue in terms of whether "an act of [the instigator] caused the unlawful imprisonment". In the event his Honour concluded that on the facts of that case the instigator participated with certain police officers in "a common design to detain" the plaintiff.

[33] It is not the case that an act indicating a wish or expectation that another should be imprisoned establishes liability for the tort. There will be such liability if the person who ultimately confines the plaintiff would not have acted at all but for the urging on the part of another. (See e.g. Dickenson v Waters Ltd (1931) 31 SR (NSW) 593 at 595-596; Pike v Waldrum and Peninsular & Oriental Steam Navigation Co [1952] 1 Lloyd's Rep 431 at 454-455.) It is otherwise if the ultimate actor exercises an independent discretion. (See e.g. Davidson v Chief Constable of North Wales [1994] 2 All ER 59.) See generally Clerk & Lindsell on Torts (17th ed) Sweet & Maxwell, 1995 para [12-23] to para [12-32]. On the distinction between direct and consequential injury see Hutchins v Maughan [1947] VLR 131 at 133; Platt v Nutt (1988) 12 NSWLR 231 at 244-246.

[34] The element of directness - the sufficiency of the nexus between the Defendant's act and the imprisonment - is satisfied, in the present case. The detention was, as her Honour found, "an inevitable consequence". The issue is whether the element of intention has been satisfied.

[35] In this line of case law, the person who instigated the sequence of events which culminates in an imprisonment, has generally actively sought that result. In that way, the person manifested an intention that there be an imprisonment. In the present case, her Honour's finding that detention was the "inevitable consequence" of the Ministerial decision - or at least of its "communication" to the relevant officer - does not encompass a finding that the Minister intended the particular result of imprisonment.

[36] The tort of trespass requires a wilful or negligent act. ( Stanley v Powell [1891] 1 QB 86; Williams v Milotin at 474; McHale v Watson (1964) 111 CLR 384 at 388). The relevant intention for false imprisonment is the intention to detain. ( Cowell v Corrective Services Commission at 743E).

[37] There can be no doubt that each Minister had an intention that the Respondent be removed from Australia. That was the very point of the decision to cancel the visa and whether or not that should occur was the substance of the departmental paper before each Minister. Detention was an inevitable step brought about by the self-executing operation of the statute, of which the Ministers must have been aware.

[38] American case law has developed a "doctrine of substantial certainty" to the effect that knowledge of a high level of certainty is sufficient to amount to intent for purposes of the tort of trespass. (See Trindade and Cane p 30 - p 36; Francis A Trindade, "The Modern Tort of False Imprisonment" in Nicholas Mullaney (ed), Torts in the Nineties Law Book Co, 1997 p 235 - p 236; William Prosser, Law of Torts (4th ed) West Publishing Co, 1971 p 31 - p 32). In the present case the questions of degree that may arise in applying a doctrine of substantial certainty are not present. Here detention was certain.

[39] The position is similar to the well known case where a person threw a lighted squib into a market, where it was tossed from one stall to another in an automatic reflex action by two stallholders, Messrs Willis and Ryal. The leading judgment said:

"That the natural and probable consequences of the act done by the defendant was injury to somebody and therefore the act was illegal at common law ... Being therefore unlawful, the defendant was liable to answer for the consequences, be the injury mediate or immediate ... I do not think to maintain trespass, it is necessary that the defendant should personally touch the plaintiff; if he does it by a means it is sufficient ... He is the person who, in the present case, gave the mischievous faculty to the squib. That mischievous faculty remained in it till the explosion. No new power of doing mischief was communicated to it by Willis or Ryal". ( Scott v Shepherd (1773) 2 Wm BI 892; 96 ER 525.)"

In Ruddock v Taylor [2005] HCA 48, McHugh J at [152] - [153], referred to "police informant cases" setting out the circumstances in which a person who gives information to police that leads to a wrongful arrest may be liable to the plaintiff for false imprisonment. The liability of the informant who brings about the arrest by doing more than simply provide information is clearly demonstrated in this case: "[152] Similar conclusions are also demonstrated by the long line of "police informant" cases. These concern the circumstances in which a person, who gives information to police that leads to a wrongful arrest, will be liable to the person falsely imprisoned for false imprisonment. The liability of the informant remains open although the police officers concerned may be immune from liability under statutory provisions authorising them to arrest persons on the basis of reasonable suspicion.

[153] A clear example of this differentiation is Davidson v Chief Constable of North Wales . The plaintiff in that case was arrested by police on suspicion of theft after police received information from a store "detective". The plaintiff had not committed any offence. She subsequently brought an action for false imprisonment against the police and the employers of the store detective. The English Court of Appeal held that the police involved in the arrest and imprisonment were not liable. They were protected by s 24(6) of the Police and Criminal Evidence Act 1984 (UK). However, the Court considered separately the liability of the store detective. The outcome ultimately turned on factual questions concerning causation. However, the Court of Appeal was not in doubt that it was necessary to consider the distinct liability of those who initiated the steps leading to imprisonment and those who effected it. This approach is obviously correct in principle. The submission of the appellants, that there is a general principle of law that whoever causes imprisonment cannot be liable if the conduct of the detaining officer is authorised by statute, must be rejected as inconsistent with authority and legal principle."

By pressing the emergency hold-up button, identifying the plaintiffs as the reason for this and persisting in those allegations, the second defendant's servants or agents (see Martin v Watson [1996] AC 74) did not merely provide information but are the sole motivating force putting the prosecution in train. What is more, as was the case in Coles Myer Ltd v Webster; Coles Myer Ltd v Thompson [2009] NSWCA 299; Webster v Coles Myer Ltd; Thompson v Coles Myer Ltd [2009] NSWDC 4; (2009) 9 DCLR (NSW) 123, the second defendant's servants or agents appear to have adhered to what was claimed, judging by the police witnesses' accounts of their conversations with these persons.

The second defendant submits that the police were acting on their own initiative. Examination of the timeline shows that the police could not even have had the time to look at the whole of the CCTV footage from one camera, let alone all three. The police realized almost immediately that they had to work out what had really happened, and told the radio operator this. Nonetheless, as was the case in Coles Myer Ltd v Webster; Coles Myer Ltd v Thompson, supra; Webster v Coles Myer Ltd; Thompson v Coles Myer Ltd, supra, the second defendant's servants or agents appear to have persisted in claiming that the plaintiffs had been tapping on and trying to open the glass cabinets in their store.

The second defendant is vicariously liable for the conduct of its employees even for unauthorised acts, if they are sufficiently connected with authorised acts so as to be regarded as modes (although improper modes) of doing them: New South Wales v Lepore (2003) 212 CLR 511 at [42].

Whether an employer is vicariously liable is a question of fact in the circumstances of each case: Bugge v Brown (1919) 26 CLR 10. In broad terms, what the courts interpreting Lepore have done is to compare the wrongful conduct with the type of conduct the employee was engaged to perform and if there is a "sufficient connection" (Gleeson CJ at [40], [42], [52], [54], [67] and [74]), "sufficiently close connection" (Kirby J at [315] - [316], [319] - [320]) or a "close connection" (Gaudron J at [131] - [132], Gummow and Hayne JJ at [213]) the court may conclude the wrongful act was done in the course of employment, although in an "improper mode", to use Gleeson CJ's description at [2].

The decision in Lepore was referred to by Basten JA in Zorom Enterprises Pty Ltd (in liq) v Zabow (2007) 71 NSWLR 354; [2007] NSWCA 106 at [23]. In Lepore at [50], Gleeson CJ considered the liability of an employer for an employee's "act of personal retribution" and "spontaneous act of retributive justice". His Honour noted (at [54]), that where acts of physical violence are concerned, the nature and seriousness of the criminal act may be relevant to a judgment as to whether it is to be regarded as a personal, independent act of the perpetrator or whether it is within the scope of employment.

The pressing of the hold-up button, which is provided by the second defendant for use by its staff, clearly falls within the definition of conduct in ostensible pursuit of the employer's business activities.

Accordingly I am satisfied that the second defendant's servants or agents promoted and caused the plaintiffs being stopped, detained and searched by the police, and that their continued insistence that the plaintiffs had misconducted themselves in the store after the police arrived unnecessarily prolonged the plaintiffs' detention, in that the police were obliged to investigate the store employees' mischievous claims. I say "mischievous" because I am satisfied from the evidence that the button was pressed well after the plaintiffs left the store, in circumstances where there was no threat, and where it is clear from the CCTV footage that nothing untoward had occurred.

When the police came to the Tag Heuer store, they did not necessarily suspect a hold-up. Leading Senior Constable Ansted said that 99% of the time when he is called to answer a hold-up alarm it is a non-event (T 222). Although the store manager told him he thought there had been an attempt at a planned robbery, he was sceptical; at T 205 he said he was not prepared to say that the plaintiffs had been pointed out as the potential robbers. He did not believe that the two plaintiffs were about to rob or attempt to rob or steal from the shop (T 211). Nor did he believe, from what the manager had told him, as opposed to of his own belief, that the two men were about to rob or had attempted to rob the shop (T 212).

Constable Lentfer gave a similar account: "Q. So you suspected them of having stolen goods? A. Well, possibly, yes, from the information I obtained from the Manager.

Q. So you searched them? A. I wouldn't have stopped them otherwise.

Q. They were pointed out to you as potential robbers, is that right? A. No, I wouldn't say that, no."

In addition, the emergency operator records the police arriving at 14:51:00 and saying "There has been an attempt robbery at the store", qualified with "We are just going to try and work out what actually happened here at the moment um and we will be speaking to two POIs who have been stopped by security."

No security staff employed by the second defendant were called, and there was no cross-examination about the plaintiffs being apprehended by security men, so this reference is unexplained.

The plaintiffs were stopped and detained for between 8 and 9 minutes, while Leading Senior Constable Ansted went to the store to obtain further information. During this time it was clear to him that there was no armed robbery and there had been no watches stolen.

Leading Senior Constable Ansted considered (T 211) that he had "reasonable grounds to stop those persons to find out exactly what they did at the store, not that they robbed the store, attempted to rob the store". He did not believe, either of his own account or from what the manager told him, that the two men were about to rob or attempt to steal from the shop.

However, this does not entitle a police officer to stop and search unless there were reasonable grounds. There was no evidence the plaintiffs had any item in their possession which was stolen as there was nothing taken, and no evidence that the plaintiffs had used any items in the store in any attempt to open any of the cabinets.

Furthermore, there were reasons not to stop and search the second plaintiff other than in accordance with the regulations concerning persons with disabilities.

Regulations 24 and 27 - Law Enforcement (Powers and Responsibilities) Regulation 2005 (NSW)

Regulation 24 Law Enforcement (Powers and Responsibilities) Regulation 2005 (NSW) provides: " 24 Vulnerable persons

(1) A reference in this Division to a vulnerable person is a reference to a person who falls within one or more of the following categories:

(b) persons who have impaired intellectual functioning,

(d) persons who are Aboriginal persons or Torres Strait Islanders,

(e) persons who are of non-English speaking background,

but does not include a person whom the custody manager reasonably believes is not a person falling within any of those categories.

Note: If a person falls within more than one of the above categories, each provision of this Division relating to any category within which the person falls applies in relation to the person.

(2) Pursuant to section 112 (1) of the Act, the application of Part 9 of the Act to vulnerable persons is modified by this Division."

Regulation 27 Law Enforcement (Powers and Responsibilities) Regulation 2005 (NSW) provides: " 27 Support person may be present during investigative procedure

(1) A detained person who is a vulnerable person is entitled to have a support person present during any investigative procedure in which the detained person is to participate.

(2) However, a detained person who is a vulnerable person solely as a result of being a person of non-English speaking background is entitled to have a support person present only if an interpreter is not required to be arranged under section 128 (1) of the Act solely because of section 128 (3) (a) of the Act.

(3) Before any such investigative procedure starts, the custody manager for the detained person must inform the person that the person is entitled to the presence of a support person during the investigative procedure.

(4) If the detained person wishes to have a support person present, the custody manager must, as soon as practicable:

(a) give the detained person reasonable facilities to enable the person to arrange for a support person to be present, and

(b) allow the detained person to do so in circumstances in which, so far as practicable, the communication will not be overheard.

(5) The custody manager must defer for a reasonable period any such investigative procedure until a support person is present unless the detained person has expressly waived his or her right to have a support person present.

(6) An investigative procedure is not required to be deferred under subclause (5) for more than 2 hours to allow a support person to arrive at the place of detention.

(7) A custody manager is not required to comply with subclauses (3)-(5) if the custody manager believes on reasonable grounds that:

(a) doing so is likely to result in an accomplice of the detained person avoiding arrest, or

(b) doing so is likely to result in the concealment, fabrication, destruction or loss of evidence or the intimidation of a witness, or

(c) doing so is likely to result in hindering the recovery of any person or property concerned in the offence under investigation, or

(d) doing so is likely to result in bodily injury being caused to any other person, or

(e) the safety of other persons requires that the investigative procedure be carried out as a matter of urgency."

Conclusions concerning liability for first and second defendants for false imprisonment

The circumstances under which a person who gives information to the police that leads to wrongful detention will be liable to the person wrongfully or falsely detained have been explained by the Court of Appeal in Ruddock v Taylor (2003) 58 NSWLR 269; [2003] NSWCA 262 and more recently in Coles Myer Ltd v Webster; Coles Myer Ltd v Thompson [2009] NSWCA 299 at [104] per Ipp JA. What is necessary is for the person to be active in promoting and causing the imprisonment as opposed to the mere giving of information to a police officer.

In Webster v Coles Myer Ltd; Thompson v Coles Myer Ltd [2009] NSWDC 4; (2009) 9 DCLR (NSW) 123, the store employee gave evidence which I, as the trial judge, did not accept and this finding was upheld on appeal. In the present case, the store employees have elected not to give any evidence.

The presence of a "mischievous quality" (see Coles Myer Ltd v Webster; Coles Myer Ltd v Thompson [2009] NSWCA 299 at [113]) is not something that is limited to clear evidence of dishonesty or invention of the kind that occurred in Webster v Coles Myer Ltd; Thompson v Coles Myer Ltd. If that were the case, liability could be avoided merely by not calling evidence of the intention, dishonest or otherwise.

The deliberate giving of wrong information should be treated differently, whether or not there is evidence of it or not from the store employees in question. On any analysis, there is no conduct of the plaintiffs on the CCTV tape which could possibly lead to any suspicion that they were tapping on the glass or attempting to open the glass cabinet, and in particular no evidence that they were using any implement to do so. As was the case in Webster v Coles Myer Ltd; Thompson v Coles Myer Ltd, Mr Lassanah was not cross-examined about his conduct in the store.

In conclusion, I am satisfied that the second defendant or its servants or agents made false accusations about the plaintiffs to the police as follows: (a) The hold-up button was wrongly activated, after the plaintiffs had left the store premises and on any reasonable analysis, there was no question of there being any reason for concern.

(b) The manager of the store told Leading Senior Constable Ansted that the plaintiffs were acting suspiciously in the shop, tapping on the glass, trying to lift the glass of the display cabinets and attempting to rob or steal from these cabinets when it is clear from the CCTV that no such conduct occurred (T 217-218).

(c) These statements were repeated to Sergeant Gibson (T 262) and in particular Leading Senior Constable Ansted said that Sergeant Gibson was told that the plaintiffs had been "lifting up the lids" (T 265). The CCTV footage confirms that no such conduct occurred and Mr Lassanah was not cross-examined.

(d) Mr Lassanah was not cross-examined on his evidence that he was treated well in the shop and was not cross-examined on his evidence that as he left the manager said "Goodbye nice seeing you" (T 40).

(e) I accept the submissions of the plaintiffs that if the manager or other employees of the second defendant had really suspected the plaintiffs, they should have kept the door closed and rung for the police either when the plaintiffs were in the premises or shortly thereafter, and they should not be encouraging other persons to enter the store. No explanation has been provided as to why the alarm was activated after the plaintiffs left the shop. The submissions of the second defendant that the CCTV footage of one of the staff members bending over means that the alarm must have been activated in the shop while the plaintiffs were in the shop is incorrect as the times for the calling of the police demonstrate. The speed with which the police arrived after the alarm and the times on the radio call records for the police confirm that the alarm was activated after the plaintiffs had left the shop. It was simply coincidence that the plaintiffs were walking down the street from the Rolex shop when the police arrived.

(f) Nor do I accept the assertions that the second defendant's premises had been robbed the week beforehand. No material was put before the court to demonstrate that this had in fact occurred. 171. The facts of this case are very unusual. Unlike Webster v Coles Myer Ltd; Thompson v Coles Myer Ltd, there is CCTV footage of the whole of the event, and there is objective evidence that no criminal offence of any kind took place. Whatever the reason for pressing the hold-up button (and I decline to speculate as to what that may be), the claim that the plaintiffs were lifting up or trying to open the cabinets amounts to the giving of information that is so far removed form what occurred that it must have been false, in circumstances where it was virtually impossible for the police officers to do anything to exercise independent discretion or judgment, other than to detain the plaintiffs.

I also find it would have been apparent to the second defendant's staff, whether or not they knew of Mr Oddie's intellectual disability, that it was not possible to conduct a conversation with him. The essence of selling goods in a shop is oral communication with a customer. A customer who cannot speak, or with whom conversation is very limited, is clearly someone with a disability. Whether or not Mr Lassanah told the staff in the shop that Mr Oddie was intellectually disabled, his inability to speak and the unmistakable affect of his demeanour would make it very hard to miss that he is intellectually disabled. Neither he nor Mr Lassanah could have been mistaken for potential store robbers.

I am satisfied that the second defendant, by the conduct of its servants or agents, caused and procured the wrongful detention of the plaintiffs.

Accordingly I am satisfied that each of the first and second defendants are liable for the false imprisonment of each of the plaintiffs. I have considered issues of damages and the cross-claim separately. I shall next consider the claim for defamation.

The first issue for determination is publication. The question of proof of publication of a slander has been discussed in a number of decisions. In Sinclair v Bjelke-Petersen [1984] 1 Qd R 484 at 495-496, Kelly J noted that it was necessary for the plaintiff to establish the substance of the words complained of in the statement of claim were used, citing Lamb v West (1894) 15 NSWLR 120 at 126 per Darley CJ.

Even if words said to be spoken by the defendant are different to those pleaded, if they are capable of carrying some or all of the pleaded imputations, this may be sufficient to prove that the words spoken were substantially as alleged in that the same defamatory sting was conveyed: Smith v John Fairfax & Sons Ltd (1987) 81 ACTR 1; (1987) 86 FLR 343.

A crucial question, where there has been publication concerning such a limited audience, is whether or not the words spoken were heard by a third party. In the present case, the words that was spoken about each of the plaintiffs was heard by either of them, as well as by other police officers, and also by passers-by.

The first thing to determine is what was said and the second thing to determine is whether it was heard by a third person.

I have earlier set out the initial description given by Mr Lassanah as to what was said by the police officers (T 42 line 3). After Mr Oddie was interposed, I asked Mr Lassanah to repeat again what he had said, and I had difficulty understanding, given his strong accent, a number of things he had said, including in particular whether the police said to him "intending to steal" or "attempting to steal" (T 52).

At T 52, Mr Lassanah gave the following description of what was said: "Police said - the manager of the store said that..(not transcribable)..guy was in his - in the shop, intending to steal watches, and he said, "We are stopping you guys because the guy was in the shop, intending to steal." "Don't go in the shop. You guys were intending to steal." And they also said that we were holding on the drawer and glasses in an attempt to steal."

In cross-examination, it was apparent that this discussion was not a single discussion followed by silence for the rest of the time that the plaintiffs were being detained by the police officers. Mr Lassanah agreed with Mr Neil QC that the police initially said they were coming because of something that was said to them by the store manager, or somebody in the store, and that he denied doing anything wrong, handed over his driver's licence, was searched and that some time after this he and Mr Oddie were released (T 70). A more complete version appears at T 116-118: "Q. Did Mr Ansted say to you that the manager had said that you and Mr Oddie had been trying to lift the glass on the top of the display cabinet? A. Yes.

Q. Did Mr Anstead say to you that the manager had said to you - said to him that it was his view - the manager's view - that you and Mr Oddie were about to steal something, or that the shop was about to be held up? A. No, no.

Q. Did Mr Anstead say to you, "The manager has alleged that some of the cabinets were attempted to be opened in the store"? A. No. No.

Q. Let me ask you this. I'm coming to the matter complained of, your Honour. Did Mr Anstead say to you, "The manager of the Tag shop said you're intending to steal from the shop"? A. He did not use the term, "manager", all the time we're there. "Oh, you guys were intending to steal - acting like thief."

Q. Do you say that Mr Anstead did not say to you anything using the nomination of the position as manager?

Q. Did Mr Anstead say to you that the manager of the Tag shop had said things to him about you and Mr Oddie? A. It was once, and the rest of the time he said, "You guys were acting like thief. Doing this, doing that." He did not use the "manager" term always, just once. Once he used the "manager" term.

Q. I think you just said he did not say to you - is this what you're saying?

HER HONOUR: No, Mr Neil. He said he used the phrase "manager" once. The rest of the time, this witness said, he said, "You guys are acting like thieves." That's what he said, Mr Neil.

Q. Did he say to you these words - did Mr Anstead say these words to you: "The manager of the Tag shop said you were intending to steal from the shop"? A. Yes, he said one--

Q. Did Mr Anstead say these words to you: "We are stopping you because you guys were in the Tag shop, intending to steal"? A. Yes, yes.

Q. Did he say following that, anything further about, "You were intending to steal"? A. Yes. He said, "Don't go into the shop. You guys were intending to steal. Don't go in the shop."

Q. Did he say to you the manager had told him that you and Mr Oddie had been intending to steal? A. He just said, "You guys were intending to steal," as..(not transcribable).. "You guys were intending to steal, so don't go in the shop. You guys were intending to steal."

Q. Did he say to you he'd got that information from the manager? A. No, he didn't. Like I say, he used the "manager" just once, when he said, "The manager says..(not transcribable).." then the rest of the thing, "You guys were intending to do this. You guys were intending to do that. Don't go in the shop. Go home.""

It is clear from the evidence of all of the witnesses that Mr Lassanah was told to go home (without his driver's licence which was retained by the police) only after the enquiries had finished. In other words, the accusations about being a thief and intending to steal from the Tag Heuer boutique shop were not made once, but several times.

The first point that the first defendant make in written submissions is that the "very first version in evidence" (first defendant's written submissions paragraph 3) should be accepted. The first plaintiff has used the word "employee" three times, twice being what he said the police told him the employee said to him and once about himself talking to the employee. Similarly, the passage at T 52 line 20 referred in the first line to the manager. However, the second version, which was given after Mr Oddie left the court (it having been apparent that he was very frightened), does not refer to the manager as being the source of the allegations. In addition, when the first plaintiff was taken through evidence with some care by Mr Neil QC in cross-examination, he gave the third and more comprehensive version set out above. The first defendant does not refer to the version of the matter complained of given in cross-examination in its written submissions.

The first defendant's submission is that the matter complained of, in the version given by Mr Lassanah, is so different in substance from what was said that the publication pleaded was not made, and the imputations cannot therefore be conveyed.

I do not accept this submission. It is clear from the second and third account given by Mr Lassanah of his conversation with the police officers that the police officers were stating that he was a thief and that he intended to steal from the Tag Heuer shop. This is particularly the case in relation to the conversation in the course of which he was told to "go home". Any initial reference to the manager or some other unidentified store employee as being the source of the allegations was not, I find, made other than in the opening words of the police officers when they first arrived on the scene.

However, even if it were the case that the police were merely repeating what the store manager said and were using either the phrase "employees" or "manager", the substance of the allegation was that the plaintiffs were thieves and were attempting to steal from the Tag Heuer shop. The fact that words spoken by the police officers differ in some respect to the words pleaded is not sufficient to deny publication, for the reasons explained in Lamb v West, supra and Smith v John Fairfax & Sons Ltd, supra.

It is asserted that the first plaintiff's version of events using the word "manager" is consistent with the answer to interrogatory 8. The fact that the police officers said both employees had accused him of intending to steal from the Tag Heuer shop does not mean that the police officers did not directly accuse the plaintiffs of stealing. The answer to interrogatory 8 needs to be seen in its context. Nor is the alleged error of counsel for the plaintiffs in cross-examining Leading Senior Constable Ansted at T 221-222 (written submissions paragraph 10-11) of any significance. The actual words of Mr Lassanah should be preferred to a summary of them given by his counsel in cross-examination of Leading Senior Constable Ansted.

Fundamentally, the question of whether or not the police were merely repeating words that the manager had said concerning the manager's suspicions or directly accusing the plaintiffs is a distinction without a difference. Even in the version given by the police officers, it is clear that the police officers conducted the detention and search of the plaintiffs the way they did. For example, Constable Lentfer gave as his reason for wanting to search the plaintiffs as being "just to see if youse [sic] have anything that might have been stolen, unlawfully obtained in your possession, or any implements that may be used to commit an offence".

I have rejected the attack on Mr Lassanah's credibility made in paragraph 19 of the first defendant's written submissions. The police made no records of any kind during their visit to the premises, including a notation of what allegations, if any, were in fact made by store employees, and the store employees who spoke to the police were not called by either defendant to give evidence.

The next issue is, having found that the words were spoken, they can be proved to have been spoken on an occasion amounting to publication.

The first defendant in written submissions complains there is no evidence from any bystander who heard the publication and that the court is not allowed to speculate that the publication was heard by any third person.

First of all, the words spoken were in the hearing of each of the two plaintiffs (Zarth v Williamson [2006] NSWCA 246) and to the other police officers (Trantum v McDowell [2007] NSWCA 138). Publication to other potential tortfeasor, such as the other police officers, is itself a publication (Trantum v McDowell at [50] per Tobias JA). Secondly, Mr Lassanah said the words were spoken by the police in loud voices (T 45) and that these were within the hearing of passers-by although standing nearby. It is clear from the video and also the number count of the passers-by seen in the video tendered on behalf of the plaintiffs that many persons passing by would have heard what was said.

The first defendant in written submissions assert that the police spoke in a normal voice (Constable Axford at T 333; Constable Coates at T 347, Leading Senior Constable Ansted at T 183, 223-224; Constable Lentfer at T 301-305; and Sergeant Gibson at T 372). Constable Axford said that the words were not heard by any passers-by (Constable Axford at T 333). It is submitted that the plaintiffs were in an alcove on the footpath and therefore out of the pedestrian flow. It is therefore highly unlikely that any passer-by would have heard or absorbed the matter complained of.

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