Lovric v State of New South Wales

Background

1. On 2 May 2015 Mr Lovric was at his semi-detached home in Badminton Road, Croydon with his wife. They had an argument. She departed in his car. At about 3.45pm Mr Lovric telephoned triple-0 and reported a stolen vehicle but during the course of the phone call disclosed that it was taken by his wife and that he did not wish to pursue his complaint. He said he was told that as it was a domestic matter the police would have to attend.
2. At about 4.10pm Officers Taylor and Ellzmeter arrived by car at Mr Lovric's premises. They knocked and found no response at the neighbouring premises and then knocked on Mr Lovric's door. Mr Lovric was playing a video game which he had been playing for most of the day. He went to the door and checked who it was. He said in evidence that he had spent most of the day in bed, that he felt unwell with pneumonia and "Hashimoto's" and was taking thyroxine, asthma medication by puffers, buprenorphine and "boxes of antibiotics". He said he was tired and exhausted and accepted that this may have affected his memory.
3. Officers Taylor and Ellzmeter identified themselves as police and repeatedly said that they were making inquiries. Mr Lovric denied that they mentioned a stolen vehicle, although for reasons which follow, I am persuaded that they did. Mr Lovric declined to open the front door, spoke to the officers from behind the door, told the officers he would not be opening the door, and told the officers to leave. He gave evidence that he said, "I withdrew the complaint. That's all I can say to you. I'm now leaving…That's it for me," and he went back to his PlayStation.
4. Shortly thereafter, perhaps about 4.30pm, Mr Lovric needed to download an update for his video game and decided to take his young dog for a walk. He said that he had heard noises in his backyard. Although he did not investigate who or what had caused them, he attributed those noises to the police. Mr Lovric departed the house with his dog.
5. At that time, the officers were inside their police vehicle. They completed a U-turn on Badminton Road and drove towards Liverpool Road, a major cross street.
6. Mr Lovric walked out his driveway and turned to the direction the police car was travelling. He was some distance behind the police car. The police car was at or near the Liverpool Road intersection when Mr Lovric shouted words at the police vehicle. There is some dispute about what was said. Mr Lovric asserted that he said, "What the fuck were you doing in my fucking backyard you fucking dogs?" When Officer Taylor told him he could not swear or he would be arrested, Mr Lovric said, "Go fuck yourself you dog". He accepted that he said, "Fuck off you dog cunts" whilst Officer Taylor was in the vehicle. He said some of the profanities he uttered were in his native tongue or could not be heard through a closed car window.
7. Mr Lovric said Officer Taylor got out of the police vehicle and he was then told he was under arrest and a physical engagement occurred. Mr Lovric accepted that he also said to Officer Taylor "Go fuck yourself, you Aussie pig", "Fuck off, you dogs", "You fucking weak dogs, you fucking piece of shit. You're a fucking cunt" and words to the effect of "Fucking Anglo-Saxon dog. I'm gonna fuck your mum, you weak dog. I bet your father fucked you up the arse", but that these words were said after the arrest. He said he continued to yell words of abuse during the struggle after he was told he was under arrest, subsequently while he was in the caged vehicle and when at the police station. Any language and contact that occurred after the arrest cannot be used to justify the arrest.
8. Officer Taylor's account of the pre-arrest words of Mr Lovric was similar but different. They included, "You fucking dog cunts", "You fucking weak dogs, if you're going to talk to me get out of the fucking car, you pig" and "You weak dog, you fucking pig cunts". Officer Taylor also recounted that Mr Lovric "[C]ontinued to swear several times".
9. After Officer Taylor told Mr Lovric that he was under arrest, Mr Lovric walked briskly, on his account, or jogged and ran, according to Officer Taylor, away, along Liverpool Road. Officer Taylor pursued Mr Lovric and a physical encounter ensued. In the course of that encounter, Officer Taylor was kicked in the face. Mr Lovric gave evidence that this kick was in self-defence, and also submitted that it was unintentional, although he conceded at the police station that he may have said, "So what if I swore at youse and kicked you? I should have kicked you harder".
10. Mr Lovric was also struck in the head during the engagement with Officer Taylor and Officer Ellzmeter and felt knee strikes or pressure from a knee to his back. He spat out "blood" and "amniotic fluid…from pneumonia" (presumably mucus) which landed on Officer Taylor. Mr Lovric was handcuffed by the officers and searched, and photographic identification was found in his wallet.
11. Contrary to Officer Taylor's account, Mr Lovric asserted that Officer Taylor swore at him because "He had already sworn at me on a previous occasion", a matter which I did not find persuasive as a reason why that occurred in this instance.
12. Mr Lovric was placed in a caged police vehicle and taken to Burwood Police Station and released at 7.16pm. Mr Lovric was subsequently served with a Court Attendance Notice in relation to the offence of using offensive language in public, resisting officers in the execution of their duty and assaulting each of the officers. Mr Lovric pleaded guilty to the offensive language charge. The remaining charges were contested and were dismissed after a hearing.

Credit

1. There is probably little of relevant significance between the language Mr Lovric accepted he used and that contained in the account of Officer Taylor. To the extent that there was a difference between the evidence of Officer Taylor and Mr Lovric, I accept the evidence of Officer Taylor. Officer Taylor made a contemporaneous note of the encounter, which was reflected in a subsequent statement, which supported his oral evidence. Also, Mr Lovric was provided with a Facts Sheet prepared by Officer Ellzmeter as part of the police brief, which largely reflected Officer Taylor's account, and to which Mr Lovric pleaded guilty in respect of the offensive language charge. Mr Lovric's plea is an admission that is evidence of the accuracy of the language attributed to Mr Lovric in the Facts Sheet.
2. At the time of these events, Mr Lovric was, on his evidence, sick, medicated, tired, had been bedridden and accepted that his memory was affected. In these circumstances, I do not accept that his unassisted recollection years after the event of the words he used in a stream of profanity would be accurate.
3. Mr Lovric said he intended to defend himself with force and his leaping manoeuvre onto his back - the occasion where he kicked Officer Taylor in the face - succeeded in him being momentarily released from the police grip on him. This evidence - together with his admitted, continuing, aggressive, offensive language - is inconsistent with his evidence that he "didn't want to resist arrest" after he concedes to being told to stop resisting.
4. Mr Lovric's evidence that his kicking of Officer Taylor in the head was in self-defence [2] is inconsistent with his alternative submission that it was unintentional. His behaviour was irrational and erratic, repeatedly swearing loudly and offensively on the street at police as they were driving off when he claimed to be embarrassed by the neighbours seeing police attend his property.
5. Mr Lovric made a Jones v Dunkel submission arising from the circumstance that Officer Ellzmeter was not called as a witness. No questions about the availability of Officer Ellzmeter were asked of Officer Taylor. No submission was made as to how Officer Ellzmeter could have resolved some relevant dispute of fact between the evidence of Officer Taylor and Mr Lovric. The primary issue to which Officer Taylor's evidence was relevant was whether he was satisfied of reasonable necessity, that is, whether he was satisfied that it was reasonably necessary to arrest Mr Lovric. In large measure, that depends on Officer Taylor's appreciation of the incident.
6. The Court of Appeal in Newell; Muriniti v De Costi [2018] NSWCA 49 recently emphasised that whether a Jones v Dunkel inference is drawn is a matter of discretion for the judge and the drawing of any such inference is not mandatory. I do not think, in the circumstances noted, that any inference should be drawn. In any event, the conventional Jones v Dunkel inferences - that Officer Ellzmeter's evidence would not have assisted the defendant and that the inferences might more readily be drawn in favour of Mr Lovric - do not cause me to alter my view that Officer Taylor's account should be preferred for the reasons I have given.
7. Officer Taylor's credit was challenged on a number of other bases. He gave evidence that there were two ladies in a nearby bus shelter, although there was no reference to this in his notes or statement. The approximate times he gave in his statement were not precisely aligned with the times in the police computer record of his arrival and departure on that day. And thirdly, he said he was unaware of Mr Lovric's identity until a search produced Mr Lovric's driver's licence, despite Officer Taylor being present when Mr Lovric was spoken to some months earlier in relation to a complaint by a neighbour.
8. None of these matters in Officer Taylor's evidence were directly put to him as being wrong, nor do any of these matters appear to be of significance in assessing the credit of Officer Taylor's evidence as to the events that occurred and the words that were spoken.
9. Officer Taylor's additional observation of the two ladies, when asked about the presence of two ladies nearby, was of no legal significance to the offensive language charge to which Mr Lovric pleaded guilty, and so its absence from Officer Taylor's notebook record and subsequent statement is unsurprising.
10. The timing difference between the computer record and Officer Taylor's reference is hardly alarming. Evidence from a witness about timing is commonly not what was observed on a clock or watch but an opinion based on common experience. But it is also common experience that sometimes the time of day is accurately recalled, and other times not, sometimes time seems to pass slowly, at other times quickly. Officer Taylor made concessions about his inability to be accurate about the time and the duration of events.
11. The submission about Officer Taylor knowing of Mr Lovric's identity may have had slightly more substance. Officer Taylor had encountered Mr Lovric about three months earlier, but said that he did not know Mr Lovric's identity until he observed his driver's licence after the arrest and search. I found this unsurprising. The earlier encounter was of no particular significance and so far as the evidence revealed, did not result in any arrest or charges. A brief encounter in the course of everyday duties months earlier might not be expected to be recalled with any clarity and it would be surprising if details such as the person's name would readily come to mind. Officer Taylor's remembrance of the details of the earlier occurrence and the name of Mr Lovric could not have been assisted by only speaking to Mr Lovric through a solid, closed door.
12. On Officer Taylor's account (and perhaps even on Mr Lovric's, [3] noting that Officer Ellzmeter as the passenger would have been nearer to Mr Lovric before the U-turn was completed), he did not see Mr Lovric until near the intersection of Liverpool Road. I do not think Officer Taylor's failure to identify the name, Denis Lovric, prior to seeing the driver's licence is of significance in relation to credit. Notably, Mr Lovric did not recognise Officers Taylor and Ellzmeter by their voices through the door, or when he saw the officers in the police car. I would infer that the earlier occasion when the police officers came to his door was more unusual and memorable to him than it was to the police officers. If Mr Lovric could not readily identify the officers from the earlier occasion, it should not be assumed that the officers could readily identify him.
13. For all these reasons, I prefer the account of Officer Taylor over Mr Lovric's as to what Mr Lovric said and also as to the details of the struggle and arrest. However, I do not regard the differences between the two accounts as especially significant.

Satisfaction of reasonable necessity

1. Section 99(1)(b) of LEPRA provides: "99 Power of police officers to arrest without warrant (cf Crimes Act 1900, s 352, Cth Act, s 3W) (1) A police officer may, without a warrant, arrest a person if: (a) the police officer suspects on reasonable grounds that the person is committing or has committed an offence, and (b) the police officer is satisfied that the arrest is reasonably necessary for any one or more of the following reasons: (i) to stop the person committing or repeating the offence or committing another offence, (ii) to stop the person fleeing from a police officer or from the location of the offence, (iii) to enable inquiries to be made to establish the person's identity if it cannot be readily established or if the police officer suspects on reasonable grounds that identity information provided is false, (iv) to ensure that the person appears before a court in relation to the offence, (v) to obtain property in the possession of the person that is connected with the offence, (vi) to preserve evidence of the offence or prevent the fabrication of evidence, (vii) to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence, (viii) to protect the safety or welfare of any person (including the person arrested), (ix) because of the nature and seriousness of the offence." The State relied on reasons (i), (ii), (iii), and (iv).
2. Officer Taylor gave evidence that Mr Lovric was arrested for offensive language and because he was fleeing police, reasons which correspond with sub-paras (i) and (ii) of s 99(1)(b). The offence of offensive language was admitted by Mr Lovric. Mr Lovric's own account evidenced repeated instances of offensive language towards the police before he was arrested, including after he was warned that he would be arrested if he continued to swear. Mr Lovric's own account also evidenced that he was fleeing police.
3. Officer Taylor was not challenged on his evidence of the basis for the arrest, which plainly established his satisfaction that the arrest was for the reasons given in s 99(1)(b)(i) and (ii). Officer Taylor gave no direct evidence about arresting Mr Lovric to establish his identity, [4] but he did give evidence that he completed a search after the arrest where he found a driver's licence in Mr Lovric's wallet which provided him with Mr Lovric's address and identity. Further, it might be thought that the identity and address of Mr Lovric were necessary in order to ensure that he would appear in court.
4. Accordingly, there was evidence that might allow the inference that the arrest was for the purposes specified in ss 99(1)(b)(iii) and (iv). However, the principal subjective purposes for the arrest were those that Officer Taylor expressly mentioned, namely to prevent Mr Lovric continuing the offence and fleeing. It is unnecessary that I infer the existence of the other reasons.
5. Mr Lovric conceded correctly, given the chapeau in s 99(1)(b), that the State establishing one reason only of those listed in s 99(1)(b) is sufficient to establish the lawfulness of the arrest. But Mr Lovric submitted that arrest is a last resort and it was not reasonably necessary in the circumstances. If this submission was directed to the statutory requirements then it misconceives one of the elements of s 99(1)(b), which is not that the arrest be reasonably necessary, but that the police officer is "satisfied that the arrest is reasonably necessary".
6. As I noted in Shalhoub v New South Wales, [5] the expression "reasonably necessary" was considered in Thomas v Mowbray. [6] In some cases, "reasonably necessary" may refer to what is required for reasonable protection. [7] At [490] in Thomas, reference was made to the judgment of Gleeson CJ in Mulholland v Australian Electoral Commission [8] where "necessary" meant not "essential or indispensable" but "reasonably appropriate and adapted". The adjective "reasonably" in this case tends to buttress the applicability of such a construction.
7. While the term "reasonable" often imports some level of objectivity, in the context of "reasonable necessity" it moderates the meaning of "necessary" and makes clear that something less than what is essential is required. Here "reasonably necessary" concerns the satisfaction of the police officer, whether the police officer is satisfied that the arrest is "reasonably necessary" or "reasonably appropriate and adapted to stop the repetition of the offence". Thus "reasonable" in this context does not import an objective element. It is, "not what the judge thought, but what the officer thought was reasonably necessary in the circumstances". [9]
8. I accept Officer Taylor's evidence that he was satisfied of the necessity for the arrest. The objective circumstances - Mr Lovric continued to use aggressive and offensive language [10] after being warned that if he ceased to stop he would be arrested; Mr Lovric continued to move briskly away from the police when he was told he was under arrest; the language was directed at Officer Taylor; and it was seriously, not moderately, offensive - all provide support for the reasonableness and thus the likelihood that Officer Taylor was satisfied of the reasonable necessity for an arrest.
9. No other contrary or ulterior motivation for the arrest was put to Officer Taylor in cross-examination, nor did the evidence suggest any other reason for the arrest. Mr Lovric volunteered in evidence that the initial forceful apprehension of Mr Lovric after he was told he was under arrest "could have been justified".
10. Accordingly, I find the element that I have titled "Satisfaction of reasonable necessity", the element specified in s 99(1)(b) of LEPRA, to be established.
11. It follows that the arrest was lawful, as Mr Lovric abandoned any submission of unreasonable force or of an excessive period of confinement. It follows that the arrest and imprisonment remained lawful. Similarly, the force used to arrest Mr Lovric cannot constitute an unlawful assault. It follows that the claim for unlawful imprisonment and assault and battery must be dismissed.

Malicious prosecution

1. The elements of malicious prosecution include that the defendant acted maliciously, instituting or maintaining the proceedings and that there was an absence of reasonable and probable cause. [11] The other elements of this tort were not in issue. The allegation of malicious prosecution concerns only the proceedings for assault and resist arrest; Mr Lovric pleaded guilty to the offensive language charge. Mr Lovric must therefore establish malice and an absence of reasonable and probable cause in respect of the proceedings for assault and resist arrest brought against him.

Reasonable and probable cause

1. The High Court in A's case at [58] stated: "[T]o decide whether the prosecutor did not have reasonable and probable cause for commencing or maintaining the prosecution, the material available to the prosecutor must be assessed in two ways. What did the prosecutor make of it? What should the prosecutor have made of it?"
2. The Court referred to these two questions as indicating the "subjective and objective elements" of "the absence of reasonable and probable cause". [12]
3. Notwithstanding the use of the mandatory term "must" [13] by the High Court in determining what is assessed and the reference to "elements", it would be wrong to conclude that the High Court identified these two questions as representing two necessary components of proof for an absence of reasonable and probable cause. Rather: "[The] proposition [that the prosecutor acted without reasonable and probable cause] may be established in either or both of two ways: the defendant prosecutor did not 'honestly believe' the case that was instituted or maintained, or the defendant prosecutor had no sufficient basis for such an honest belief." [14]
4. I shall refer to these "two ways" as, respectively, the subjective element and the objective element identified in A's case. Conversely, "reasonable and probable cause" involves proof of two components: a subjective component (that the prosecutor believed that there was a proper case for prosecution) and an objective component (that there was a sufficient basis for a prosecution).
5. It follows that proof of the absence of reasonable and probable cause means proof that it is not the case that those two components exist, that is, proof that either is (or both are) absent. Otherwise the law, if it required proof of the absence of both these subjective and objective components: "would deny relief to the person acquitted of a crime prosecuted by a person who not only acted maliciously, but who is shown to have acted without forming the view that the material warranted prosecution of the offences"
6. and conversely would "favour the incompetent or careless prosecutor over the competent and careful". [15]
7. Accordingly, the plaintiff is able to establish the absence of reasonable and probably cause by proof of either the subjective or the objective elements identified in A's case, and the failure to prove one of these elements is not fatal to the plaintiff's case. A conclusion that "the inference that [the prosecutor] did not have such a belief is simply untenable" is not then "reason alone [that] the defendant's application for judgment in its favour must succeed", [16] for the absence of reasonable and probable cause could still be established by proving the objective element identified in A's case.
8. These principles must be applied to the two charges of assault and resist arrest that constituted the criminal proceedings commenced and maintained against Mr Lovric.
9. Mr Lovric was apprehended immediately after distancing himself from the police once words of arrest were spoken. He said he was "crash tackled". [17] He thought this "could have been justified", [18] but, to his mind, not the subsequent force to his back and head. However, he expressly abandoned any claim of unreasonable force, asserting rather that the unlawfulness of the arrest was what rendered his apprehension an unlawful assault.
10. On Mr Lovric's account, he briskly walked away from police when told he was under arrest. He accepted that tackling him could be justified. He leapt back to free himself from police when he was told to stop resisting. He kicked Officer Taylor in the head, and his spitting caused sickly phlegm to land on Officer Taylor. He continued to swear the basest obscenities at the officers. Whether or not these actions of Mr Lovric were all intentional, they formed a reasonable basis for an officer to believe that Mr Lovric was resisting arrest and assaulting the police. Objectively, a police officer can only judge conduct by what is perceived, and the thoughts of Mr Lovric are not perceptible. The objective element is concerned with "[t]he objective sufficiency of the material considered by the prosecutor". [19] It is satisfied here.
11. Proof of the subjective element may be established "by demonstrating that the prosecutor had no positive belief that the accused person was, or was probably, guilty". [20] The critical question is: "What does the plaintiff demonstrate about what the defendant prosecutor made of the material that he or she had available when deciding whether to prosecute or maintain the prosecution?" [21]
12. The plurality of the High Court in A's case at [71] stated: "If the facts of the particular case are such that the prosecutor may be supposed to know where the truth lies…the relevant state of persuasion will necessarily entail a conclusion (a belief of the prosecutor) about guilt."
13. That Mr Lovric is believed to have resisted arrest and assaulted the police officers is easier to infer in circumstances where there is objective support for that belief. Such a belief, if it was held, was reasonable. But ultimately the existence of the subjective belief concerns the mind of Officer Ellzmeter. There was no evidence to establish a contrary belief. Mr Lovric bore the onus of proof on this matter and led no evidence to suggest that Officer Ellzmeter remained subjectively unsatisfied that a prosecution was warranted. The absence of Officer Ellzmeter as a witness cannot create evidence of malfeasance where there is none. Mr Lovric initially proposed to tender the police brief, which was part of the plaintiff's tender bundle, but ultimately declined to do so. Whatever that material may have indicated, the Court had no material to infer an absence of a belief in Officer Ellzmeter of the sufficiency of the evidence and the correctness of the charges. The Facts Sheet, discussed below, leads to a contrary inference. Counsel for Mr Lovric rightly accepted that the malicious prosecution case was "thin". [22]
14. I am satisfied that there was a reasonable basis for the officers believing that Mr Lovric was resisting arrest and was assaulting them. I am not satisfied that Officer Ellzmeter held a contrary belief.
15. For these reasons, I accept that there was reasonable and probable cause.

Malice

1. Malice: "is an element that focuses upon the dominant purpose of the prosecutor and requires the identification of a purpose other than the proper invocation of the criminal law". [23]
2. The dominant purpose asserted in the statement of claim by Mr Lovric was that the prosecutor sought to justify the conduct of the arrest and assault on Mr Lovric. The likelihood of this purpose is not assisted by my finding that the force applied to Mr Lovric was lawful, and it is not in dispute that it was otherwise reasonable if it was lawful.
3. In any event, there was no evidence to support the allegation of this extraneous purpose. The circumstance that the proceedings were commenced immediately, well before any proceedings by Mr Lovric for assault, does not support the allegation. All that Mr Lovric could point to was his acquittal which is insufficient to establish malice.
4. In my view, the evidence establishes that the prosecutor believed and had reasonable grounds to believe that the proceedings were proper on the facts as he understood them, and were brought for that proper purpose. This finding is sufficient to reject both Mr Lovric's submission of an absence of reasonable and probable cause and his submission of the presence of malice.
5. Officer Ellzmeter, it can be inferred, created the Facts Sheet. He is listed as the informant and the document records at p 4 that the facts were created by him. To the extent that Officer Ellzmeter's belief can be inferred from documents, it may be inferred, in the absence of other evidence, that he believed what is in the Facts Sheet. That supports the subjective component of reasonable and probable cause and also contradicts the assertion of malice.
6. Accordingly, both for the reasons that there was reasonable and probable cause and that malice was not established, the claim for malicious prosecution must be dismissed.
7. An issue arose during the trial, somewhat faintly, as to whether Officer Ellzmeter was the prosecutor. However, he was the listed informant who prepared the charges and the Facts Sheet. This allows the inference that he commenced or instituted the proceedings. There was evidence that another officer attended at subsequent court dates. If Officer Ellzmeter ceased to be the prosecutor during the course of those proceedings, then he might not be liable for any malicious "maintaining" of the proceedings thereafter. That would only support a submission that he should not be responsible for all the damages of any malicious prosecution. The parties did not deal with this matter in submissions, and in view of the other findings I have made, it is unnecessary that I finally decide it.

Damages

1. I propose to give some brief comments on damages on the assumption that the causes of action were made out. This hypothetical exercise is made all the more difficult because I could see little or no merit in the proceedings, yet damages would be awarded in a case that necessarily is found to have some merit.
2. Deprivation of liberty is a serious matter. A substantial component of any award for false imprisonment is for the initial shock of being arrested. [24]
3. Mr Lovric submits an amount of $20,000 compensating damages for false imprisonment whereas the State submits a range of $5,000 to $15,000. The confinement was for slightly more than two and a half hours, a relatively brief but not insignificant period. The arrest occurred on a public street, perhaps in view of the passing motorists on Liverpool Road. There was no evidence of neighbours, friends or family seeing the arrest. I would award $10,000.
4. As to assault and battery, Mr Lovric was hit in the head and kneed in the back. He was left bruised and bloodied although with no ongoing consequences. No medical reports were provided and no special damages were claimed. $20,000 was claimed by Mr Lovric and the State submitted $5,000 to $15,000. The State relied on the concession that the force was not unreasonable. I am not satisfied that this significantly reduces the amount of compensatory damages if the assault was unlawful. It evidently involved significant force. In my view, an award of $15,000 for the assault would be appropriate.
5. The malicious prosecution persisted for one year. Mr Lovric seeks $25,000. The State proposes $15,000 to $25,000. If Officer Ellzmeter was the prosecutor for all of the time, a matter I have not determined, then I would allow the amount of $20,000.
6. I note that Mr Lovric gave evidence that his costs were awarded in the dismissed proceedings in the Local Court, and that no special damages resulting from the prosecution were claimed. I am not satisfied that any additional amount would be awarded for aggravated damages. Mr Lovric gave some general evidence about being angry and embarrassed, but it was no more than the similar emotions he felt when the police came to his property as a result of his own inquiry. His evidence that his arrest may have been justified and the absence of any evidence of belittling or offensive conduct of the police in his forceful arrest or the prosecution leaves me unpersuaded that any conduct of the police aggravated any compensatory damages and so none can be awarded.
7. Similar considerations dissuade me from awarding any substantial amount of exemplary damages, a head of damages designed to embrace a punitive element whereby the Court expresses its displeasure at the contumelious conduct of the defendant. However, as wrongful deprivation of a person's liberty is a significant matter if it is unlawful, I would be inclined to award an additional $5,000 as exemplary damages as a plain indication of the Court's displeasure at the wrongful deprivation of a person's liberty.
8. This would make a total of $50,000 for the assault, unlawful imprisonment and malicious prosecution if it were established. In my view, this estimate is of little utility given that the estimate of damages depends significantly on findings that I have not made.

Orders

1. As the causes of action were not established, the orders of the Court are: 1. Judgment for the defendant. 2. Plaintiff to pay the defendant's costs.

Endnotes

1. A v NSW [2007] HCA 10 ("A's case").
2. T129/3.
3. Cf T74/24-40 and T73/27-31.
4. Section 99(1)(b)(iii) of LEPRA.
5. [2017] NSWDC 363 at [61]-[62].
6. [2007] HCA 33.
7. see Thomas at [21]-[25].
8. (2004) 220 CLR 181 at 199 to 200 [39].
9. See State of New South Wales v Randall [2017] NSWCA 88 at [38] and also [142].
10. Cf T126/1-18.
11. A's case at [1].
12. At [61], also [70].
13. Cf Newell; Muriniti v De Costi [2018] NSWCA 49 at [79]-[81].
14. A's case at [77].
15. A's case at [68].
16. Clyne v State of New South Wales (No 1) [2011] NSWSC 629 at [51] contra.
17. T93/14.
18. T123/15.
19. A's case at [87].
20. Cf A's case at [76].
21. A's case at [77].
22. T172/12; 40.
23. A's case at [93].
24. Ruddock v Taylor (2003) 58 NSWLR 269 at 279 [49], per Spigelman CJ, Zaravinos v State of New South Wales (2004) 62 NSWLR 58 at [52]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 June 2018