TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)

Judgment Number: [2001] TASSC 154

1 I agree with the reasons for judgment prepared by Slicer J which I have had the advantage of perusing. The appeal should be dismissed.

2 This is an appeal against the dismissal of an action brought by Rosalina Melina Louis, Graham James Louis and Rachael Rose Louis. As the sole appellant is the second plaintiff, it is convenient to continue to use the designation "plaintiffs" when referring to them other than by name. The first and second plaintiffs are husband and wife, while the third plaintiff is their daughter. They lived with other members of their family at Cornwall during January 1992.

3 During the course of the afternoon of 9 January 1992, the young son in the family discharged an air rifle, an act which caused a neighbour, Mr Stefanescu, to make a complaint to police. Later in the day two police officers, Const Skeggs and Const Casboult, went to the family home to attend to the complaint. The ensuing events resulted in media publicity, a summary prosecution and dismissal, a civil action against the officers (later amended so as to be against the State of Tasmania), a trial lasting eight days, and this appeal comprising some 37 grounds. Because of what had occurred at the home the officers (on their version) arrested Mr Louis on the grounds that he had committed the offence of threatening police and subsequently arrested and charged Mrs Louis with the offences of refusal to give her name and address, and damage to Mr Stefanescu, events occurring after the arrival of the police.

4 Following a hearing on 9 July 1992, the complaints were dismissed by a magistrate sitting as a Court of Petty Sessions. One of the many issues at the hearing was whether Mr Louis had been arrested for obstruction of police rather than threatening. The issue was real in that, in their evidence, the police officers had contradicted an entry in the police brief which stated the charge to be that of obstruction. Police officers had gone to the home in respect of a firearms offence, but possessed no power of entry, search or seizure in the circumstances of this case under the then Firearms Act 1932. Const Skeggs, however, maintained that he believed both at the time of the incident and even at the date of trial that although he had no right of search, he did have a right to seize the air rifle. The position of Mr and Mrs Louis was that the charge of obstruction was wrongly added so as to retrospectively afford power once the officers realised that their conduct was not protected by statute. Their claims of hindrance and violence were said to be fabricated to justify their unlawful conduct.

5 The learned magistrate made findings adverse to the prosecution witnesses and in favour of the account given by Mr and Mrs Louis during their evidence at the hearing.

6 Following the dismissal of the complaints, Mr Louis, who had had previous grievances involving police and government, made a complaint to senior police officers, and in September 1992, issued a writ in his name, claiming damages for a variety of torts, including that of malicious prosecution. There followed procedural difficulties, occurring in part because the plaintiffs have always represented themselves.

7 The original claim against the police officers was amended by the naming of the State of Tasmania (Crown Proceedings Act 1993), and the addition of the wife and daughter of the appellant as plaintiffs, once he became aware of complications created by the doctrine of vicarious liability (Enever v R [1906] HCA 3; (1906) 3 CLR 969), and perhaps that of implied licence (Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635). Eventually, the action came on for trial in September 1996 and a judgment (5/1997) adverse to the plaintiffs and this appellant, pronounced on 24 February 1997. The learned trial judge determined that certain of the matters pleaded in the statement of claim (relating to 'demand', 'decision', 'impounding of property' and 'harassment') did not constitute a cause of action and that a claim of a second trespass was unsupported by any evidence. He summarised (at 3) the cause of action as:

"1 Trespass into the plaintiffs' house by Constable Skeggs (aided and abetted by Constable Casboult).

2 Battery of Mrs Louis by Constable Skeggs by kicking the front door into her.

3 Battery of Mr Louis by Constable Skeggs (aided and abetted by Constable Casboult) by grabbing him in his home and forcing him outside to a police car.

4 False imprisonment of Mr Louis (commencing with a wrongful arrest in his home and terminating with his release from a police station cell).

and particularised (at 2) the claim of malicious prosecution as:

"1 Institution of 'criminal' proceedings by the defendant (or a person for whose actions the defendant is legally responsible).

2 Termination of those proceedings in favour of the plaintiff.

3 Absence of reasonable and probable cause for the prosecution.

4 Malice, or a primary purpose other than that of carrying the law into effect."

8 Making every allowance for litigants in person especially those with an 'idée fixe', or a "persistent and pertinacious self-taught litigant of considerable forensic skill (with the assistance of his wife)", (Plenty v Dillon & Ors (1988) 50 SASR 407, White J at 409 - 410), the grounds of appeal are convoluted and embrace many subsidiary grievances.

9 I will attempt to summarise them according to category, identify the relevant approach taken by, and articulated in, the reasons for judgment by the learned trial judge and state my conclusions within each category.

10 Grounds 1, 2 and 3 relate to the alleged illegality of the second plaintiff, who is not a legal practitioner, instituting proceedings purportedly on behalf of the first and third plaintiffs and to an amendment of the pleadings on 14 September 1992 permitting each plaintiff to further his or her own action personally rather than have them dismissed because Mr Louis was prevented by law from acting on their behalf (see Louis v Bendall & Anor 137/1997; Charter of Justice (Wm IV 1823, cl 8); Australian Courts Act 1828 (9 Geo 4, cl 83); Co-Operative Property Developments of Australia Ltd & Ors v Mount & Ors and Australian Co-Operative Travel Society Ltd & Ors v Webster Ltd & Ors [1980] Tas R 7). The grounds were not seriously pursued at the hearing of this appeal.

11 The grounds are self-defeating. If upheld, they would result in the dismissal of the actions of the plaintiffs without determination of the merits of their respective cases. The amendments were made in an attempt to advance, rather than hinder, their respective actions.

13 Ground 17 refers to a claimed finding concerning the failure of the plaintiffs to call the younger son as a witness. Failure to call a relevant witness can give rise to an adverse inference (Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298), and the reasons for any failure might be a matter of weight. In his reasons for judgment, the learned trial judge made no adverse inference as claimed.

14 The learned trial judge made the statement at 7 "He [the son] was not called by the plaintiffs as a witness, I suspect because his evidence would not have assisted them" and in a preceding sentence stated "Mrs Louis' son, Ferdinand, was also trying to calm his mother down", which in turn formed part of the narrative of certain events. The fact that Ferdinand had discharged the air rifle was not in dispute, he did not go to the police station at any significant time and was not present at the door when entry was made by the police officers. His evidence would neither assist nor harm the plaintiffs' causes and, it is in that context, that the statement was made. If those comments are seen to amount to an adverse inference then, irrespective of the reason why the witness was not called (and no explanation had been advanced to the learned trial judge at trial), the course was permitted in accordance with Jones v Dunkel (supra).

16 This ground of appeal (29), has no separate existence, but is a compilation of other grounds which claim error. The sum total of those claims of error, especially those claiming bias, attaches to the conclusion rather than either the methodology or the specific findings and does not warrant interference with the judgment.

17 These ground (6 and 7) might be based on a misconception of either the doctrines of res judicata (the matter has been decided) or estoppel (you may not rely upon an identified matter). The findings made by the learned magistrate as to the lawfulness or otherwise of the arrest of the appellant, were irrelevant to the action for damages. The learned trial judge was required by law to act only upon the issue brought before him by the parties, the evidence presented by them, and to make his own judgment irrespective of what might have been decided on different evidence and the application of the criminal law. The plaintiffs were required to prove their respective causes of action (Plunkett v Bull [1915] HCA 14; (1915) 19 CLR 544), and their components (The Insurance Commissioner v Joyce [1948] HCA 17; (1948) 77 CLR 39) to the requisite degree (Cofield v Waterloo Case Co Ltd [1924] HCA 18; (1924) 34 CLR 363), and to present the necessary evidence in support of their cases (Henderson v Henry E Jenkins & Sons & Anor [1970] AC 282). The burden does not shift (Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164; Anchor Products Ltd v Hedges [1966] HCA 70; (1966) 115 CLR 493). As King CJ pointed out in Stateliner Pty Ltd v Legal and General Assurance Society Ltd (1981) 29 SASR 16 at 41, "Questions of onus of proof are notoriously difficult." Whether the issue of "lawfulness of arrest" remained a mixed question of fact and law and the burden of establishing both elements of the issue was not an exception to the general rule as that case suggests or whether in relation to the action for false imprisonment a plaintiff establishes a prima facie case if he proves that he was imprisoned by the defendant leaving the onus on the defendant to prove a justification (Myer Stores Ltd v Soo [1991] VicRp 97; [1991] 2 VR 597 at 625) need not be resolved, for the learned trial judge in any event made a positive finding on the balance of probabilities that the second plaintiff threatened Const Skeggs when the two officers were standing at the entrance to the house, thereby justifying the arrest and imprisonment.

18 The second plaintiff, in his notice of appeal, ground 15, claims that in making his decision the learned trial judge failed to take into account the emotional state of his wife and daughter and the difficulties experienced with language by the former. Many parties or their witnesses, are subject to emotional trauma, both in recounting a narrative in a formal or strange environment such as a court, and through the pressures of cross-examination. Judges are required, through experience, to recognise emotion and make allowance accordingly. Likewise they are required, through training, to understand 'meaning and nuance' in language inadequately expressed. A reading of the evidence of those witnesses shows that their expression of narrative indicated an understanding of both question and answer. Inconsistency or contradiction was the product of memory or reconstruction, a process commonly experienced and recognised by the courts. A reading of the reasons for judgment shows objective and careful analysis of the substance of the testimony of both witnesses rather than form of presentation. The learned trial judge expressly took into account the difficulties caused through language when he stated at 7:

"... It is possible I suppose that her reference to handcuffs was erroneous due to the difficulty she has with the English language, which was noticeable although not great. Mrs Louis said that her husband got into the police car without force and was driven away."

19 Competence is raised by ground 21, integrity by 21 and 29, and bias by grounds 5 and 10. They are but variations of the same theme and represent nothing other than reverse thinking. That theme is that of one who, convinced of the correctness of his or her cause, seeks reason for an adverse outcome.

20 The methodology adopted by, and the capacity for analysis of the learned trial judge (whether rightly or wrongly justifying the conclusion reached) demonstrates competence. Error in law is not a product of a denial of justice, but a matter well understood and recognised in any human institution and, in the case of the legal process, susceptible to review. That is the case here. Here it is not, by reverse reasoning, an example of incompetence, but objection to conclusion.

21 Integrity is more difficult to assess. Flawed thinking or methodology might be subject to differing interpretations, namely, difference of reasoning or policy rather than a desire by a judicial officer to reach a particular outcome. Reasoning by an approach based on outcome, absent a right of review is meaningless, because if integrity is absent in judges (a decision-maker entrusted by a State or religion) then there will be distrust of any other group or individuals appointed by the State to act as representatives of the society by any dissatisfied litigant or citizen accused of, claiming or refuting criminal or tortious conduct. Examination of the transcript in these proceedings shows that the learned trial judge attempted to assist unrepresented plaintiffs in their presentation of their case.

22 Bias might be actual or perceived (Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288), and be shown by prejudgment of the credibility of a witness (Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568). Examination must be carefully conducted. Here the claims are ones of actual (ground 29), perceived (ground 21) and prejudgment (grounds 5 and 10) forms of bias.

23 Any examination of a claim of actual bias by reference to transcript ought take into account the course of the trial including the context of an exchange between the judicial officer and counsel or the party, whether the matter complained of was of a nature simply procedural (delay, procrastination and the like), or a response to an attempt by an aggrieved party to depart from permitted legal principle. An expression of exasperation is not necessarily an illustration of bias. The aphorism 'the patience of a saint' remains as true within the discipline of the law as it does in the experiences of everyday life.

24 The claim of perceived bias has been dealt with in the commencement of this category of grounds of appeal and requires no further consideration.

25 The claim of prejudgment, based on claims of interruption (ground 5), is no more than a misunderstanding of the trial process. Interruption was no more than an attempt, often unsuccessful, by the learned trial judge to confine a witness to either give admissible and relevant evidence or to simply require an answer to the question asked. Interruption to cross-examination was designed for the same purpose.

26 The issue of allowance of 'a pursuit of irrelevances' (ground 5) arises because the plaintiffs pursued many irrelevancies or had raised them in the conduct of their case.

27 There is no substance in the claims referable to competence, integrity or bias.

28 This ground (30) which lies at the heart of this appeal, claims:

"The judge erred in law by failing negligently to accept that appellant was wrongfully arrested and false [sic] imprisoned in my home for obstructing a proposed search of my home purportingly to be carried out under the Firearms Act, then telling the police at the station they would pay for it. The police Charge Book was consistent with the above as the police entered the charges as follows:

The police Occurrence Book filled out by Con [sic] Skeggs stated: 'Visit made to Louis residence G J Louis refused to surrender firearm'. I appellant refused to allow an illegal search of my home without a warrant. The police Occurrence Book shows Con [sic] Skeggs primary concern find the air rifle. The judge erred in law."

29 There is no doubt that the police officers went to the plaintiffs' home in furtherance of an investigation into a claimed firearms offence. There is no doubt that they had an implied right to go onto the land, in furtherance of their enquiries until protest (Plenty v Dillon (supra)), and that statute did not permit forcible entry into the home (Firearms Act). The issue at trial was whether the police officers had trespassed or effected forced entry. The central finding appealed against was whether the police officers trespassed in entering into the 'house' or 'close' of the appellant. The finding of the learned trial judge was that:

"The evidence does not persuade me on the balance of probabilities that by an act or omission done or made in good faith in the exercise or discharge, or purported exercise or discharge, of any of Constable Skeggs powers, functions, duties, or responsibilities conferred or imposed upon him by the provisions of any Act or by law (see the Police Regulation Act 1898, s52), he kicked, pushed or in some other way caused the front door of the house to strike Mrs Louis. The tort of battery is an intentional wrong: the offensive contact must have been desired or known to be likely to result. (See The Law of Torts by John G Fleming 7 ed 24.) It is difficult to conceive, and the evidence does not establish it, that Constable Skeggs intentionally, in the sense I have just stated, caused the door to strike Mrs Louis 'in good faith'. In any event, the evidence does not satisfy me that Constable Skeggs caused the door to strike Mrs Louis at all. It is mainly her word against Constable Skeggs and Constable Casboult and I am not persuaded that she should be believed instead of them. I have mentioned a number of unsatisfactory aspects of her evidence, and there were a number of inconsistencies in it, which adversely affected her credit. I do not believe that she always told the truth when giving evidence. I also note in conclusion on this aspect of the case, that Mrs Louis' evidence was that when she turned her back to the door Constable Skeggs kicked it so that it struck her. That causes me to ponder whether she claims to have seen him kick it, or whether she only assumes that he did so.

Upon all of the evidence I am not persuaded that prior to Mr Louis' arrest either police officer entered the plaintiff's house. On the balance of probabilities I find that until Constable Skeggs moved forward to arrest Mr Louis he had remained on or about the doorstep. I generally prefer the evidence and credit of the police officers to that of the plaintiffs."

30 Had the learned trial judge found otherwise, this ground of appeal, if based on entry prior to arrest, might have been upheld.

31 The second plaintiff made a complaint to the media on 9 January 1992, and his complaint was published by Southern Cross television on the following day. The evidence relating to this occurrence did no more than establish consistency and could only have been admissible to rebut any suggestion of recent invention. It was not admissible by reason of the evidentiary rules against self-serving statements and hearsay. The notice of appeal, ground 33, claims:

"The judge erred in law when he failed to take into account that appellant lodged a complaint to Southern Cross Television, the morning after the night before, the incident appeared on television on 10th January 1992. The police at the trial couldn't, they said remember Acting Superintendent Mr Neil Cameron representing Tas police on TV. I don't think any reasonable person could accept that, especially when the police jobs should have been on the line, or at that time some sort of enquiry into their below standard work."

32 The claimed inconsistency was elicited during the course of cross-examination by the second plaintiff. It could only have been relevant to the issues of credibility or inconsistency, but was otherwise irrelevant. Failure to take the material into account in the determination adds nothing to the validity of this ground of appeal.

33 It is convenient to deal with these grounds of appeal under separate headings:

Some of the grounds of appeal 9, 19, 23 and 33, do no more than challenge the conclusion reached. Because the finding was adverse, the failure to accept the testimony of a particular witness is itself said to be an error. That approach is incorrect. A fact finder is required to assess differing versions and, as here, required to make that assessment by reference to factors such as inconsistency, contradiction of established facts, proven documentation and the like. An example of the methodology employed by the learned trial judge appear in the reasons for judgment at 8, namely:

"Mrs Louis' evidence was that Mr Louis was a peaceful man and had never been rough with her. It was put to her in cross-examination that in an affidavit sworn by her in the course of family law proceedings in about 1988 she had said that he had pulled her hair. That was all that counsel could put to her to contradict her claim that her husband had never been rough with her and I would regard the pulling of her hair on one occasion, in the course of a domestic argument, as insignificant. However, I found it to Mrs Louis' discredit that she endeavoured to explain it away, in an unconvincing way, by saying that Mr Louis had pulled her hair accidentally and she had only put it in the affidavit, without mentioning that it was accidental, because her lawyer told her to do so."

and in relation to the weight given to the evidence of the third plaintiff at 10:

"I did not find Miss Louis' evidence very convincing. She was unable to volunteer much detail of what occurred. She admitted however to having been shocked and upset with consequent difficulty in remembering some of the events. Mr Louis blatantly asked her many leading questions.

I know nothing of Miss Rachael Louis' prior courtroom experiences, but suspect there have been few if any. Mr and Mrs Louis have had experiences of that kind ..."

34 The challenged finding (ground 9), in relation to the evidence of Mr Stefanescu, the neighbour, was permitted on the evidence and the ground of appeal does no more than state disagreement with a conclusion.

35 Failure to take into account the making of a complaint to a media outlet (ground 33), or at least to refer to it in the reasons for judgment, is not an error. The matter introduced by Mr Louis in his cross-examination of Const Skeggs (transcript p610), was either irrelevant or at least did no more than show consistency. Certainly the purpose to which Mr Louis sought to use the matter (transcript pp610, 672 - 678), was irrelevant to the determination.

36 These grounds relate to findings or comments made about the credibility of both Mrs Louis and her husband (grounds 20, 23, 24, 27 and 28). Character was clearly in issue and the first appellant quite properly and, understandably, challenged the character and integrity of defence witnesses. Indeed a claim of malicious prosecution must necessarily raise character and, in many instances, past history of dealings between police and the claimant.

"The judge erred in law by saying appellant's wife was 'deliberately untruthful' in other words a lier [sic] for stating that she suffered a black out. The judge had no grounds on which to base his vicious attack and he is not a qualified medical practitioner."

38 The learned trial judge was entitled to reject portions of the evidence given by Mrs Louis. He did not accept her explanation of certain matters which she had stated in an affidavit sworn in the course of family law proceedings in 1988. His description that she was "emotionally upset" at the police station was fair and his conclusion understandable in the light of the events occurring on 9 January. He accepted some of her evidence.

39 The question of truthfulness arose from within her own testimony. Mrs Louis, in describing the manner in which her husband had been placed in the police car, had earlier said that there were some details which she could not remember. Her responses were fairly made and her inability to remember certain details understandable. Then followed this exchange with counsel:

"... Now, after ... was driven away ... you say you sort of blacked out; is that correct? ... Yes, in some ways. I was pretty upset.

Well, when you said you blacked out, what do you mean?

I, um, went out, I went out in the road. I remember I went out in the road and all I can see is black."

In response to further questioning about the throwing of rocks at the neighbour's property, she said:

"... I pick up some rocks and chuck it across the road to our next door neighbour when I, more or less, the only thing I could think of is empty and black.

"... As I said, I can't really remember that particular time when I can only remember and see blacked in my mind."

40 In relation to that evidence, the learned trial judge said at 7:

"Mrs Louis accepted that she threw the rocks although she claimed that her knowledge of that came from hearsay. Her evidence was that she could not remember throwing them and that at the time she threw them she had a blackout and all she can now see in her memory is black. She also said that she did not know why she threw the rocks. I do not believe her evidence about these matters and thought she was being deliberately untruthful. Similarly Miss Rachael Louis maintained that she could not remember supplying the rocks to her mother although she accepted that she could have done. These aspects of their evidence damaged their credit in my view."

The conclusion was apposite. His Honour was doing no more than recounting her own evidence using her terminology. Her use of the phrase was that of a gap in memory, not a claim of physical collapse or state of unconsciousness.

Grounds 20, 22, 24 and 28 relate to findings that Mr Louis was not accepted as a witness of the truth. The passages in the reasons for judgment are to be found at 8 and read:

"I turn to Mr Louis' evidence. I found him a most unsatisfactory witness. He is plainly of eccentric personality and must not be condemned for that, but I was left with a profound sense of dissatisfaction concerning his truthfulness. I would describe his performance as a witness at times as being that of an actor. For much of the time he appeared to be enjoying himself. He had a tendency not to directly answer questions and at times was plainly avoiding doing so. I often noted him as being evasive. His manner and his answers eventually led me to firmly conclude that his word could not be trusted.

Mr Louis revealed a vehement antagonism for police and government which originated prior to the events of 9 January 1992. In 1990 he wrote to the Tasmanian Premier complaining that his home (which he falsely described as 'my family's home owned by my Philippine children as beneficiaries') was bugged in what he said he believed was a joint operation of Commonwealth and State people and members of the public and he wrote that he believed Tasmanian police had him and his family unlawfully under surveillance. He wrote another letter to the Premier in the same year referring to 'unlawful bugging of my group by perverts, peeping toms and eaves-droppers'. He continued in the letter to say that he did not have any faith in the Tasmanian police or any other police in Australia and that 'police are not welcome in or at my children's property'. In evidence he maintained that he had good reason to be suspicious and distrusting of the police. He believed that his house was and is bugged and that the police were keeping an eye on him and his family. Challenged to state what evidence he had of such things, he became evasive and mentioned nothing. I can only conclude that he has a fertile and inventive mind and, as I said, a vehement antagonism for police which pre-dated the events in question in this action. It tends to explain why matters got so quickly out of control on 9 January 1992."

42 The learned trial judge was assessing credibility by reference to character, which in turn depends on history, inconsistencies within evidence, implausibility of certain answers, observation of demeanour, analysis of thought processes and an intuitive sense of feeling. They are all ordinary permitted methods of assessment. They rarely are considered separately and together provide a valuable guide to any decision-making process and not only to judicial methods. The history used by the learned trial judge had been put in evidence and he had heard and seen Mr Louis in the course of his evidence and presentation of his case. He was requested to assess credibility in order to determine which of the competing versions was to be preferred. His conclusion that he did not accept Mr Louis as an accurate or reliable witness was not an error in law and was permitted by the evidence. Grounds 20, 24 and 28 are not made out.

43 Ground 23 is in part a repetition of the previous grounds and the passage said to have given rise to this ground is set out above, and the reasoning attaching to those grounds applies here.

44 The remaining portion of ground 23 and that of ground 14 claim failure to refer to contradictions and inconsistencies contained in the respondent's case. Mr Louis was required to prove his case on the balance of probabilities, not the reverse. Many of the findings made were simply that the evidence did not establish the existence of a particular happening or event. That process requires identification and analysis of affirmative evidence rather than its converse. The learned trial judge did not fully accept the evidence of Const Skeggs stating, at different parts of his reasons for judgment (pp11 - 12):

"... I was not overly impressed with Constable Skeggs' performance as a witness however. I am not suggesting for a moment that he gave the appearance of being dishonest, but he was noticeably guarded in his answers to many of the questions put to him. He was of course the officer whose conduct was most under attack and that may have caused him to be more careful about how he answered.

It was in Constable Skeggs' mind that Mr Louis had committed the offence of obstructing a police officer in the execution of his duty (Police Offences Act 1935, s34B(1)(a)(i)) by refusing to surrender the firearm upon being requested to do so by him. If that was Constable Skeggs' belief he was wrong."

45 He gave detailed attention to the defence witnesses and did not ignore inconsistencies. But he found much of their evidence corroborated by Mr Stefanescu, other officers and documentation. These grounds ought fail.

46 Grounds 27 and 28 relate to the reception of evidence of prior convictions held by the appellant. Character was clearly an issue. Central to the cause of each plaintiff was the issue that police had victimised the family because of events previously occurring. Mr Louis had raised in his opening a claim of racial discrimination and harassment (transcript p45), malice (transcript pp37 and 39), the giving of perjured evidence (transcript pp37 - 38), and the racial origin of his wife (transcript p20). In cross-examination, he suggested that a police officer had drawn a firearm whilst taking him to the police station (transcript p688), and a general conspiracy between police officers. He suggested to Const Skeggs that on a previous occasion in 1990 he, Const Skeggs, had wrongly threatened to arrest him (transcript p726), and that the officer had obtained material adverse to Mr Louis from the Bureau of Criminal Intelligence (transcript pp726 - 727). He obtained an answer that Const Skeggs believed that the appellant had been deported from Hong Kong in 1980 (transcript p727) and sought details of what the Constable had heard about himself and his family from within the local community (transcript pp731 - 732). The cross-examination of the appellant was doubtless in response to the issues of character. There was no error in the reception of the evidence. The learned trial judge found the evidence of prior offences to be of little relevance in the proceedings and used evidence of history as a means of evaluating credibility, stating at 10:

"I know nothing of Miss Rachael Louis' prior courtroom experiences, but suspect there have been few if any. Mr and Mrs Louis have had experiences of that kind. They have previously been involved as parties in an action against Qantas and the Australian Government, in family law proceedings and in the proceedings against them in the court of petty sessions in 1992. Mr Louis also had a number of court appearances in the 1970s for a variety of offences including assaults, unseemly words and resisting arrest. His offences have little relevance to these proceedings, being of such age, although they suggest a tendency to act in some of the ways attributed to him by Constable Skeggs and Constable Casboult. More significant however were his responses as a witness when cross-examined about those offences. He had a largely innocent 'explanation' for each of them and gave me the impression that it is difficult for him to admit fault and instead tends to blame others for the trouble he gets into.

However, I raise the prior court experiences of Mr and Mrs Louis mainly for the purpose of comparing their credit as witnesses with that of the police officers."

47 Ground 4 is a general claim of error in the conclusion and requires no separate consideration. It is convenient to further refine the characterisation of the remaining grounds.

Ground 11 claims error in a finding that police, in responding to the complaint by Mr Stefanescu, first came to the plaintiffs' home. There was clear evidence that they first went to the Stefanescu household before approaching the second plaintiff. His Honour did not make the finding complained of, simply stating as part of the narrative, at 11:

"In the course of responding to the telephone call from Mrs Stefanescu, Constable Skeggs and Constable Casboult went to the front door of the Louis' house."

Grounds 16 and 32 relate to peripheral matters concerning an attempt to place handcuffs on the second plaintiff and the holding of a pistol. The findings made were permitted by the evidence. The onus was for the plaintiffs to prove the occurrence of the events.

48 Ground 25 claims error in the failure of the learned trial judge to find that on a previous occasion the second plaintiff had accidentally, rather than wilfully, pulled his wife's hair. In the course of cross-examination, Mrs Louis stated that her husband was a peaceful man who had never been violent to her. She mentioned that on one occasion he had accidentally pulled her hair, stating it to be an accident. She was shown an affidavit sworn by her in the course of family law proceedings in which she had stated that her husband had pulled her hair. When pressed she prevaricated (transcript p165), stated that a Legal Aid lawyer had wrongly expressed her version in the drafting of the affidavit (transcript pp165 - 166), and that "A husband and wife when they are aguing [sic] over kids they will say anything, wouldn't they?" (transcript p166). Her answers were treated as going to credibility rather than any specific finding as to the occurrence or otherwise of an event occurring some years' previous.

49 Grounds 13 and 26 go to the findings as to initial entry and conflict. In one respect, ground 13 is similar in terms to ground 23, already considered. Both grounds challenge the primary findings that the arrest had been effected before police officers entered the premises. On that finding depended the causes of action of trespass, battery and false imprisonment. The ultimate finding recounted earlier was permitted by the evidence and has not been shown to be erroneous.

50 Central to the grounds of appeal lie findings of credibility (see separate heading), and entry. The grounds are intermixed, but require identification by reference to sub-category. However, the central issue remains the 'occurrence' and 'basis' of entry (and hence, lawfulness of conduct), and many of the grounds of appeal concerning other matters, including credibility, which are peripheral to this claimed event.

51 The grounds central to the second plaintiff's basis of appeal are 13 and 26 while others, not unimportant, but peripheral to that issue, are grounds 4, 11, 16, 25 and 32.

52 The learned trial judge dealt with the central question of entry by means of a statement, in general terms, of the conflicting versions as to the occurrence, an analysis of his perception of the witnesses, and the requirement, imposed by law, of the requisite burden of proof. He concluded at 15:

"... On the balance of probabilities I find that until Constable Skeggs moved forward to arrest Mr Louis he had remained on or about the doorstep. I generally prefer the evidence and credit of the police officers to that of the plaintiffs.

On the balance of probabilities I find that Mr Louis was arrested by Constable Skeggs for refusing to give his name and address and that he was asked to give his name and address after he had said words of the kind attributed to him in evidence by Constable Skeggs and Constable Casboult and which were interpreted by the former as being threatening."

53 Given my conclusion as to other grounds of appeal concerning credibility, acceptance of witnesses' evidence and findings of fact, the conclusion was safely made and not subject to review.

54 During the course of hearing the second plaintiff did not pursue grounds 8 and 31, and they are to be dismissed.

55 Grounds 12 and 14 complain that the learned trial judge was in error in failing to observe and act upon contradictions between the versions given in the Court of Petty Sessions and at the trial of the action by each of the witnesses, Mr Stefanescu and Const Skeggs. As to the former, what was allegedly said in Petty Sessions was put to Mr Stefanescu, who said he could not recall having given the evidence attributed to him; but no transcript or other proof of what he had said in that court was put before the learned trial judge, thereby demonstrating any inconsistency. Ground 12 accordingly fails. Ground 14 relates to Const Skeggs' evidence in each forum. A transcript of his evidence in the Court of Petty Sessions was put in evidence on the trial. However, it was not put to him that there were contradictions between his evidence on the trial of the action and that given in Petty Sessions. The thrust of the cross-examination of Const Skeggs was that his evidence was substantially the same in both courts, but in both a fabrication. On the hearing of the appeal, the second plaintiff was unable to particularise such alleged contradictions.

56 The Court permitted the appellant to amend his notice of appeal to add four further grounds contained in a document entitled "Additional Grounds of Appeal". This document sets out 46 further grounds of appeal, 42 of which raised nothing which had not been covered by the 33 grounds in the original notice.

57 Additional grounds 4, 5 and 6 claimed that the learned trial judge was wrong in holding that conduct pleaded in par3 of the statement of claim did not constitute a tort or cause of action. The conduct complained of as constituting a cause of action was in the two constables taking "wrongful control" of the plaintiffs' home and harassing them, in Const Skeggs demanding "with menaces to wrongfully search" their home, and in their remaining in the home despite instructions by the second named plaintiff to leave, whereby they "continued to be a nuisance and trespassers". The learned trial judge held that the tort of nuisance had not been pleaded but that "it might be said that a continuation of the original trespass to the home is pleaded". I agree with the learned trial judge's ruling and comment, but the matter is academic because the conduct complained of was treated as capable of amounting to a continuing trespass which, if established, would sound in damages. The plaintiffs led evidence as to this conduct, but failed to establish that it had occurred as claimed. There is no merit in any of these grounds.

58 The final ground of appeal is additional ground 26 which was to this effect:

"The judge was wrong in not using contents of the police prosecution file, which he took into custody for eight days. The judge had ample time to discover damming evidence with in the said file. Which was relevant to the trial, appellant asked for the said file to be made an exhibit for the plaintiffs [sic]."

59 The plaintiffs called Sgt Filz who had prosecuted for the complainants in petty sessions. He produced the police file from which his brief was tendered as an exhibit. Towards the end of the sergeant's evidence-in-chief, Mr Louis sought to tender the balance of the file. There was an objection by counsel for the defendant, who submitted that no proper basis had yet been established for its tender but who foreshadowed that he might well later agree to its being put in evidence. It was thereupon marked for identification, the learned trial judge explaining to the plaintiffs that it would be retained in the custody of the court and later in the trial it could be determined whether or not it should become an exhibit. It does not appear that any further consideration was given to the tender of the file or any part of it. The question is whether or not there was anything in the file which might have been of advantage to the plaintiffs and whether there was any injustice done to them by the failure of the learned trial judge to revisit the issue, to rule on the admissibility of the file and to admit it if it was relevant and admissible. The second plaintiff claims not to have been aware at the time of the trial of the contents of the file, but has since procured, under the Freedom of Information Act 1991, copies of documents which he assumes formed part of the file. One such document is a report to his superior by Sgt Filz on the unsuccessful prosecution. The second plaintiff claims that there are discrepancies between the sergeant's summary of Const Skeggs' evidence and the transcript of it which went into evidence before the learned trial judge. If there is any such discrepancy, it simply demonstrates that the author of the report was in error. The document could not have been of advantage to the plaintiffs. In any event, the second plaintiff had access to the document and could have seen it and sought to tender it if he thought it was to his advantage. None of the other documents assumed by him to have been in the file was of any relevance or assistance to the plaintiffs' case. There is no substance in any of the additional grounds.

61 I have read the reasons for judgment prepared by Slicer J. I agree with them and the order he proposes.