Madden v The State of New South Wales

District Court of NSW|2022-12-16

Introduction

At about 4:30pm on 30 December 2019 the plaintiff, whilst walking with Dylan Turner ('Turner') on Evan Street South Penrith ('Evan Street'), was stopped, searched, and detained by New South Wales Police officers, who were members of the Proactive Crime Group. A search of a bag in Turner's possession uncovered a knife. Shortly thereafter the plaintiff was arrested for the summary offence of custody of a knife in a public place. The plaintiff was subsequently involved in a physical altercation with several police before being transported to Mount Druitt Police Station. She was charged with three offences before being bail refused and remanded in custody.

The plaintiff's claim

The plaintiff claims that she was falsely imprisoned from the moment she was stopped by Darnton and Senior Constable Kelly ('Kelly'). It is alleged that the officers did not have a lawful basis upon which to stop the plaintiff (by reference to s 21 of Law Enforcement (Powers and Responsibilities) Act 2002 ('LEPRA')), failed to provide a reason why the plaintiff had been stopped (rendering the detention unlawful), and that each action thereafter performed by the officers constituted a trespass to the person. The plaintiff further alleges that a subsequent search performed by Senior Constable Munt ('Munt') constituted a strip search which occurred at the time the plaintiff was falsely imprisoned. The subsequent forcible restraint of the plaintiff by three officers, to remove a necklace worn by the plaintiff, was similarly unlawful.
Accordingly, the plaintiff alleges that she was falsely imprisoned from the moment she was stopped until her refusal of bail the following day at Parramatta Local Court. It is further alleged that the plaintiff was subjected to an assault and battery arising from the conduct of Kelly (applying handcuffs) and the subsequent interaction between the plaintiff and the three police officers. It is further alleged that the plaintiff was subjected to a malicious prosecution by Darnton given the circumstances in which the prosecution was initiated and maintained. General damages as well as aggravated and exemplary damages are claimed.
The defendant denies the plaintiff's claim that she was unlawfully detained, unlawfully arrested or subjected to a malicious prosecution and/or misfeasance in public office.

Issues to be determined

The defendant articulated in its written submissions the issues to be decided encapsulated as follows: 1. Was the plaintiff subjected to a false imprisonment prior to being told by Darnton that she was to be detained for a search? 2. After the plaintiff was told she would be detained for a search, and before being placed under arrest, was the plaintiff lawfully detained and subsequently searched pursuant to s 21 of LEPRA? 3. Was the plaintiff lawfully arrested by Darnton pursuant to s 99 of LEPRA? 4. Whether the physical contact between the plaintiff and the police officers, including a subsequent search performed by Munt, was lawful and/or constituted an assault and battery. 5. Whether s. 43A of the Civil Liability Act 2002 ('the CLA') applies. 6. Whether the plaintiff was prosecuted maliciously. 7. An assessment of the plaintiff's damages in the event she succeeds on any or all of her causes of action.

The plaintiff

The plaintiff attended Cambridge Park public school from Kindergarten to Year 4 and Emu Plains Public School from Year 4 to Year 6. She attended Nepean High School in Year 7 however was expelled from there that same year. Following her expulsion, the plaintiff was diagnosed with ADHD for which she saw a psychiatrist and was prescribed Ritalin.
The plaintiff thereafter attended Penrith Adolescence Centre, but "didn't stay long", only having attended approximately three times throughout Year 8. At this time the plaintiff was living with her grandmother. She and her siblings did not live with their parents, which the plaintiff says was a result of them not "getting on well". The plaintiff further explained that when she and her siblings were younger, they were removed from living with their parents due to domestic violence and drug abuse. The plaintiff's evidence was that the domestic violence was predominantly between her parents but at times would also involve her and her siblings.
At the time of the alleged offending on 30 December 2019, the plaintiff claims to have been suffering from borderline personality disorder, anxiety, and depression. She recalled being diagnosed with borderline personality disorder "a few years ago" while she was in jail.
The plaintiff gave evidence of an experience she had with police when she was fourteen years old. She recalled that whilst being strip searched by two female officers at Penrith Police Station two male officers knocked on the door. The two female officers then left the room and the two male officers continued to strip search her before returning her to her cell naked.
The plaintiff gave evidence that she experiences anxiety when near police officers, especially male officers. She claimed to have felt that anxiety on the day of the arrest and stated that she still feels it presently.
The plaintiff has a son named Jackson who was born in 2018. He was subsequently taken into foster care that year. The plaintiff maintains contact with Jackson and does this by making arrangements with his carers to organise visits.
In relation to offences committed in September 2019, the plaintiff was sentenced to three years of imprisonment with a non-parole period of 1 years and 3 months which expired on 8 November 2019. On 5 December 2019, the plaintiff was subsequently released from the correctional centre on parole. The sentence had been backdated to an extent.
The plaintiff gave evidence that the first thing she did upon leaving custody was contact her son. She claimed to have wanted to see him for Christmas however was informed by his carers that this would not be possible as they were taking Jackson on vacation over the Christmas period. This news significantly upset her, and she subsequently "sat at home for two days depressed" before relapsing into drug use, namely ice. The plaintiff stated she had only one relapse that spanned over a few days, throughout which she was smoking and injecting ice.
The plaintiff gave evidence that on 30 December 2019, she had woken up at her father's house before attending her mother's home to pick up money and the handbag she took to her community corrections meeting. The plaintiff shared the handbag with her mother; she did not recall looking into the bag after picking it up.
At approximately 2:30pm the plaintiff met Turner at Penrith and together they took a train to Mount Druitt. At approximately 3pm the plaintiff attended Mount Druitt Community Corrections to meet with her parole officer where she returned a negative result from an "on the spot" drug test.
Following the meeting with her parole officer, the plaintiff returned to Mount Druitt train station with Turner from where they travelled together to Kingswood Station. From Kingswood Station the plaintiff and Turner were walking to the Jamison Hotel Pub, or "Jammo", via Evan Street. During cross-examination, the plaintiff denied consuming ice between leaving the correctional facility in Mount Druitt and being stopped by police on Evan Street.
The plaintiff was walking down Evan Street with Turner when they witnessed a man being arrested and sitting on the side of the street. Turner made a comment directed towards attending police to the effect of it being "slack" that the man was being kept on the ground in the heat. The plaintiff recalls laughing at this comment before a female officer responded to Turner with words to the effect of "you can join them if you want". They saw another car stopped and two police officers alight from the vehicle. The plaintiff could not recall how many police officers were there at that time.
The plaintiff alleged that she and Turner continued to walk down the street when the police officers, following them, instructed them to stop. The plaintiff specifically recalls being directed by Darnton to stop.
The plaintiff denied that she and Turner were only asked to stop after being informed that they would be searched. The plaintiff conceded that she was free to walk around the grass and footpath while speaking with police, and that the first time a police officer physically came into contact with her was when handcuffs were placed on her.
The plaintiff gave evidence that the officers were being "smart arses" during this interaction, making comments about her son's father, and asking if she was still in a relationship with him. In cross examination, the plaintiff recalled feeling offended and embarrassed by these comments. The police officers then asked herself and Turner what they were doing and where they were going. The plaintiff conceded that she did not answer all their questions.
In cross-examination, the plaintiff was shown the footage of the body worn camera of Darnton (Ex P2). The plaintiff agreed that at the beginning of the footage she was free to walk around the road and grass, and that no police officer had physically touched her. She agreed that she engaged in a handshake with Turner and appeared jovial. The plaintiff recalled being told by Darnton that his camera was being turned on. The plaintiff agreed she was told she would be searched, although she was not told why. The plaintiff accepted that in response to being told about the search, she said words to the effect of "I want a female" and later, making reference to Munt, said words to the effect of "can you get miss down there to search me". The plaintiff agreed that she did not feel frightened whilst in the presence of the male police officers.
The first time the plaintiff was shown the footage was approximately three days prior to the commencement of the hearing. When asked if her memory of the event was imperfect prior to watching the footage, the plaintiff candidly conceded that she had forgotten some details. The plaintiff, however, insisted that Darnton had approached herself and Turner on Evan Street and told them to stop.
A female officer, identified as Munt, pat searched her before asking her to stand against a metal fence to continue the pat search. The plaintiff got into an argument with her and subsequently organised to be searched at the station. The plaintiff contended that the officer then attempted to force her to sit on the ground. The plaintiff resisted, alleging that she did not want to be seated on the ground as she was wearing a skirt, and there were male officers in attendance.
The plaintiff was escorted by Munt to the back of a police vehicle where she was strip searched. The plaintiff was required to show Munt the inside of her bra by pulling out the front of the bra and lifting her breasts. The plaintiff was standing in the back of the paddy wagon while Munt stood outside of the paddy wagon looking in. Munt was holding the door partially closed but open enough so that her body could fit in the gap. The plaintiff stated that the only item found in her bra was a parole card from that morning. The plaintiff recalled feeling embarrassed during this process.
The plaintiff was asked by Munt to remove a necklace she was wearing. The plaintiff refused, resulting in Munt calling over another two male officers who restrained the plaintiff on the ground while the necklace was removed. The plaintiff stated that she felt "really upset" by the process of being restrained on the ground by the two male officers. The plaintiff was further questioned by Darnton before being taken to Mount Druitt Police Station.
In cross examination, the plaintiff stated that the items of clothing found in her handbag at the time of the arrest, including men's underwear and a t-shirt, belonged to Turner; they were placed in her bag by him between the time she met up with him in Penrith and before attending her parole meeting in Mount Druitt.
The plaintiff was unable to recall whether she was transported to Amber Laurel Correctional Centre on the day of the arrest or the following day but recalled appearing at Paramatta Local Court by AVL on 31 December 2019 in relation to her bail application. The plaintiff gave evidence that although she was able to speak to her solicitor prior to the bail application, the conversation lasted no more than 5 minutes.
The plaintiff recalled feeling "really upset" when hearing that the Magistrate had refused her bail as she believed she "shouldn't have been arrested". She was on parole at the time of her arrest and felt concerned that her parole would be revoked.
The plaintiff remained at Amber Laurel for 2 to 3 days before being transported to Silverwater Women's Correctional Centre. Upon arrival at Silverwater Women's Correction Centre, the plaintiff was required to isolate for two weeks, in line with the Centre's Covid procedures. The plaintiff conceded that she may have been mistaken as to the timing of this isolation given the Covid issues did not arise until early 2020.
The plaintiff gave evidence that no visitors were allowed at the Silverwater Women's Correction Centre for approximately two months due to Covid restrictions. AVL visits were eventually enabled but in-person visitation remained prohibited. As result, the plaintiff had no contact with her son Jackson during her time at Silverwater. The plaintiff further recalled that during this period of custody, she worried about being convicted of the offences which had been laid by Darnton.
The plaintiff gave evidence that she had served two previous custodial sentences for separate offences, including 3 months in Silverwater Women's Correctional Centre and Mary Wade, and 12 months at Silverwater Women's Correctional Centre and Emu Plains Correctional Centre.
On 1 June 2020, the plaintiff made a successful bail application in which bail was granted on very strict conditions.
In cross-examination the plaintiff stated that she was required, by way of a parole condition, to reside at her father's home at 9 Cremona Place Oakhurst. The plaintiff was able to recall some of the additional parole conditions including the requirement to report to parole, not to commit any further offences and not to consume illicit drugs.
The plaintiff stated that on the day of her arrest she had spoken to her parole officer about moving from her father's address as she had an argument with him the night before. She was told she had seven days to do so.
The plaintiff conceded that she had lied to other parole officers in the past, but that she had not lied to her most recent parole officer, Storm. The plaintiff alleged that she had been honest with Storm about her drug use and recent relapse.
When it was put to the plaintiff that she had lied to Storm on one occasion in relation to being sick, the plaintiff stated that she was not lying as she had been unwell but conceded that she may have used the word "lie" in that context.
The plaintiff accepted that from her past experiences, she had a general understanding of the consultation process that occurs with a nurse when going into custody. She accepted that in these consultations, the nurse, using a visible computer screen, would ask a series of standard questions about topics such as health, mental health, and drug usage, and would record given answers. When asked about her attendance at a consultation on 31 December 2019, the plaintiff stated that although she accepted that she would have attended a consultation, she did not have a clear recollection of the event. The plaintiff could not recall whether she had told the truth during the consultation or whether she had told the nurse that she had been smoking and injecting ice leading up to her arrest.
The plaintiff conceded that she had lied during these consultations in the past in order to be promptly placed on the Buvidal injection program. When asked to elaborate on this point, the plaintiff told the Court words to the effect of "if you tell the nurse that you have been using drugs, they will put you on the program".
The plaintiff could not recall how old she was when she was first arrested, although stated that she was "young". Although the plaintiff was unable to recall, or estimate, how many times she had been arrested in the past, when put to her, she conceded that it would have been on "multiple occasions" between 2012 and 2019.
The plaintiff had contact with Darnton on only one previous occasion when she was arrested on 3 September 2019 in relation to an offence involving a car.
In relation to the plaintiff's prior experiences with police and Corrective Services, the plaintiff conceded that she had "more often than not" been handcuffed when taken to a police station. When asked if she recalled being searched by police on every occasion that she had been arrested, the plaintiff said that she had been searched "50/50" of the time. The plaintiff further confirmed she had not been strip searched every time that she has been arrested by the police, however, had been strip searched every time she had gone into Corrective Services. The plaintiff confirmed that she had been asked to remove items such as belts and jewellery when being placed in a cell and further, confirmed that she had been told and understood this procedure to be for her own protection.
When asked about her diagnosis of ADHD, the plaintiff confirmed that she was diagnosed in Year 5 and prescribed the medication Ritalin for symptom management. She further stated that whilst in custody she was prescribed a different medication called Avanza to stabilise her mood. The plaintiff confirmed that she was not taking any medication for her ADHD at the time of the incident in 2019.
When asked about Hayley Reitano Taylor ('Taylor'), the plaintiff confirmed that she was a friend and gave further evidence that Ms Taylor's partner resided on Evan Street, but that she understood Ms Taylor to live at her mother's home.

Body Worn Video Recordings

The interaction between the plaintiff, Turner and police on the afternoon of 30 December 2019 was recorded on cameras worn by Darnton and Kelly.
The video recording commences at 16:29:13. The first minute is without sound. It was explained that when the camera is activated the recording "back captures" the previous minute of video without audio. The audio was transcribed, and an agreed transcript was in evidence (Ex P26).
At the commencement of the audio Darnton informs the plaintiff that she is to be detained for a search "for an item in connection with an offence or a drug" and "just because of your history". The plaintiff immediately insists that any search be undertaken by a female. The plaintiff does not directly respond to a question of Darnton as to where she is living. Darnton then engages, in a teasing manner, in an exchange with the plaintiff relating to the person Heckle. Darnton suggested to the plaintiff that she had "dropped him like a hot potato". He then, in a similarly teasing manner, says to Turner: "You and Gaige are mates and now you've hooked up with his Mrs?"
Darnton then directs the plaintiff to move off the footpath onto the grass verge. He commences a search of the subject bag, having taken it from between the legs of Turner. After removing various clothing items and aerosol spray from the bag, Darnton then announces, in a self-satisfied tone, "Breach, breach". The plaintiff is seen to express shock and dismay at what is found in the bag saying, "what the fuck". Kelly asks, "whose bags that?" to which Darnton immediately replies "it's Ebonie's". The plaintiff replies "fuck off".
Darnton asks the plaintiff where she is living, and before she has even had an opportunity to reply, Darnton announces, in a grandiose tone "because you are under arrest". He tells the plaintiff his name and advises that she is under arrest for custody of a knife in a public place. Immediately thereafter Turner is heard to say, "it's mine chief". This comment by Turner is directed at Darnton whilst they are facing each other and are only a short distance apart.
Immediately after the arrest is announced, Kelly is seen to move forward, requesting the plaintiff put her hands out. She cooperates and handcuffs are immediately applied. The plaintiff then states, "I don't even know how they got in there".
Munt is then heard to be saying, "That's what happens when you're mouthy… you get searched, full stop." to which Darnton observes "we've got our cameras on, Sarg" (a comment clearly directed to Munt in response to her "mouthy" comment).
A further search of the bag by Darnton uncovers men's underwear. Turner immediately states they belong to him and that he had "paid for them today", having purchased them from K-Mart.
Darnton requests Munt undertake a search of the plaintiff, and in so doing he directs the following comment towards the plaintiff: "Who has the last laugh now, hey? … You're an interesting one, Ebony, I'll give you that. Stealing a car in front of a police officer, that's a first for me"
The latter comment is referring to an interaction between Darnton and the plaintiff in September of the same year which resulted in the plaintiff being charged with various offences.
Following a preliminary search of the plaintiff performed by Munt, a further conversation ensues in respect to a more thorough search. The plaintiff indicates that she is not prepared to undertake such a search in front of the males, to which Munt replies, "I'll strip search you at the station."
It is apparent that Munt takes exception to the plaintiff using expletives. The video shows Munt attempting to restrain the plaintiff, including attempting to sit her down from behind. The plaintiff is caught unaware by Munt's unexpected actions and reacts accordingly. She declines to sit down, as directed by Munt, given the fact that she is wearing a short skirt.
Darnton intervenes and, in a condescending tone, tells the plaintiff to "relax darling". He tells the plaintiff to "behave" and "stop acting like an animal… behave like an adult please darling". These comments were unjustified in circumstances where the plaintiff was merely reacting to an overly aggressive approach towards the plaintiff, from behind, by Munt. No doubt referring to the incident in September, Darnton says to the plaintiff, "you carried on like this last time".
A further discussion then ensues between the police and Turner in respect to the possession of the male underwear. In the meantime, the plaintiff is seen to be escorted by Munt to a caged vehicle some distance away. During a further interaction between police and Turner, the plaintiff's raised voice is heard in the background, in the vicinity of a caged truck.
Kelly is heard to answer his mobile phone, at which time Darnton is seen and heard to be laughing, with the comment directed towards Kelly, "tell him the latest". Whilst not appearing on the transcript (P 26), according to the body cam video recording of Kelly (P1), Kelly is heard telling the caller: "We just had a run in with Ebonie Madden and her friend… She is kicking off… We were just standing here, and they walked past. She started mouthing off."
Following a further exchange with Turner, Darnton is heard to say to Turner in a condescending tone: "I like you… yeah I like you, do you like me? … we're going to be seeing more of each other sir".
A discussion then ensues between police during which Kelly suggests that the plaintiff be given a "field CAN". Darnton is then heard to say, "this is the gift that keeps on giving this place".
Munt informs the officers, whilst smiling, that the plaintiff's necklace was forced off, in which case Kelly suggests that the plaintiff be issued with a "field CAN" for resist. Darnton asks Munt if her "body worn" was on. In reply Munt asked whether the light is green or red. Darnton is seen to check the camera fitted to Munt and advises "nothing". Accordingly, Munt advises that her body worn camera must have been off. Significantly, Darnton asks where the plaintiff is living, and following the reply from Kelly that she does not know, Darnton then says: "I'll write her out a field CAN quickly".
Darnton then walks to the police vehicle and retrieves from the back seat what is presumably a field CAN book before returning to the group of police. A further discussion between police ensues as to the offences with which the plaintiff will be charged. There is a suggestion that the plaintiff also be charged with "resist" because of the altercation with police during the forced removal of the necklace. Munt, whilst laughing, says, "we pulled her out of the truck".
Darnton is then seen talking to the plaintiff in the rear of the caged vehicle. The plaintiff denies any knowledge of the knife in the bag, having borrowed the bag from her mother earlier in the day. Towards the end of the recorded conversation Darnton says to the plaintiff: "Hey if you can't give me an address right now I'm going to be straight up. If I can't confirm where you are living. If you are staying with your mum that's all good but I'm going to take you back and charge you, bail refuse you."
The plaintiff then provides an address where she is living.

Senior Constable Kelly

Kelly, at the time of the incident, was attached to the Nepean Proactive Crime Team. He was working primarily with Darnton, although at the time of the incident he was present in Evan Street with other police, including Munt and Senior Constable Jamieson.
Kelly made a statement dated 9 March 2020 (Ex P8). Whilst the statement purported to be in the prosecution of Turner for the offence of goods in custody, Kelly conceded that the statement was also prepared as part of the police brief arising from the prosecution of the plaintiff.
In that statement Kelly referred to having stopped a male leaving a well-known drug house whilst in the company of other officers. He later observed the plaintiff and Turner walking south towards the same house. At paragraph 4 of the statement Kelly said the following: "As a result, Darnton stopped the accused Turner and accused Madden. I active (sic) my body worn video and commenced recording." (emphasis added)
He described the plaintiff as being well affected by a prohibited drug as she was "in an extremely good mood, laughing at everything". He claimed that the plaintiff's mood changed "in an instant", becoming violent and aggressive towards police. The statement essentially documents the conversations which are otherwise recorded on the body worn video, with some notable exceptions traversed in cross examination of the witness.
Kelly's evidence in chief confirmed that on the date of the incident he was performing duties with Darnton as part of the Proactive Crime Team. He referred to earlier in the day (approximately 10 am) stopping two males on Castlereagh Street, one of whom was Turner. The two males appeared to be attempting to avoid police and therefore thought that they should "go and have a chat to them". The male was searched although Turner was not searched.
Later that afternoon, having transferred to an unmarked police vehicle, they patrolled Evan Street, being the location of a known drug house. At the time they noticed a person by the name of Ty Williams leaving the drug house. He was stopped, searched, and subsequently issued with a field Court Attendance Notice arising from items found in his possession. A further offender with outstanding warrants was subsequently located near the drug house who was then arrested.
The police were waiting for a caged vehicle when Kelly observed the plaintiff and Turner walking in their direction. The plaintiff was known to police because of an incident some weeks earlier with Darnton. He also referred to his own knowledge of the plaintiff dating back to 2013. He was aware that the plaintiff was a drug user.
The police exited the vehicle and approached the plaintiff and Turner. He did not recall telling them to stop; they merely wanted to have a conversation with them. The plaintiff appeared to be affected by drugs or alcohol in that she was laughing, walking around and couldn't sit still. Turner appeared agitated and slightly aggressive with police.
A handbag was being held between Turner's legs. Darnton subsequently took hold of the handbag, and during a search, a knife was found. A further search of the bag resulted in finding male clothing. Turner was asked questions about that clothing.
The plaintiff was then formally arrested, and handcuffs were placed on her. When asked the reason for using handcuffs, Kelly stated that as the plaintiff at that time was becoming aggressive, he did not want anyone assaulted. It was also to prevent injury to police or others and to prevent escape.
Kelly thereafter referred to the subsequent search of the plaintiff by Munt, including the strip search due to the plaintiff playing with her bra towards the top of her breast. He overheard a further conversation between Darnton and Turner in relation to the clothing found in the handbag.
Kelly referred to knowing Taylor lived at the drug house with her partner. He knew of an association between the plaintiff and Taylor from 2013 and was aware that they were friends or associates from high school. It was suspected that the plaintiff had drugs on her due to her mental state.
In cross examination Kelly conceded that in assessing the performance of police attached to the Proactive Crime Team reference is made to the number of searches performed by an individual officer.
Kelly was asked about the circumstances of the initial interaction between the plaintiff, Turner and police. The plaintiff and Turner had walked past their vehicle, which was stopped facing a northerly direction, as seen on the body cam. Whilst continuing to walk in a southerly direction the plaintiff and Turner were approached by the police.
Kelly claimed that the pair stopped when approached by police; he denied they were directed to stop. Kelly was then cross-examined on paragraph 4 of his statement in which he stated that the plaintiff and Turner were "stopped" by Darnton. Kelly stated that the use of the expression "stopped" in his statement was merely a figure of speech. He maintained his previous evidence that at no stage were the pair physically stopped. He denied the police were exercising their powers to stop in accordance with s 21 of LEPRA. Kelly acknowledged that stopping a person is a specific power provided in s 21 of LEPRA and, in those circumstances, the term has particular significance. Despite acknowledging this was the case, Kelly maintained his earlier evidence that the expression used in paragraph 4 of his statement was not intended to suggest that the police were exercising their specific power under a 21 of LEPRA.
Given Kelly's experience as a police officer, including regularly stopping and searching suspects as part of this duties in the Proactive Crime Unit, I found his answers on this issue were evasive and unconvincing.
These findings were reinforced by cross examination of Kelly in relation to his earlier interaction with Turner. That interaction was also the subject of a video recording utilising Kelly's body worn camera. The recording was played during the cross-examination. It showed Kelly riding a bike for a period before changing direction, crossing a street, and changing direction again, before stopping his bike in front of two males, one which was identified as Turner. The start of the video shows Turner and the unidentified male in the foreground crossing the street at a marked pedestrian crossing, with a second police officer riding immediately behind them. The second police officer was later identified as Darnton. The video shows Turner walking past Kelly and out of view of the camera before returning into view. It also shows Darnton stopping behind the two males opposite Kelly.
There is an interaction between the two males and Kelly during which both males produce wallets and apparently provide some form of identification. The first part of the recording is without sound.
Kelly conceded that at the start of the video he was riding with Darnton before the two police move in different directions. It is apparent that Kelly changes direction to approach the two males as they walk towards him. At the same time, it is readily apparent that Darnton adopts a different direction so as to ride behind the two males as they cross the pedestrian crossing and approach Kelly.
Kelly had no explanation as to why Darnton took a different path. Whilst conceding that the video depicted Darnton following the two males from behind, he did not accept that this was in any way a deliberate tactic leading to the two males being approached by police.
It was suggested to Kelly that, given what was shown on the video footage, he was exercising his police powers under s 21 of LEPRA to stop the two males. Kelly claimed that this was not a stop in the sense of powers exercised under LEPRA, but merely involved a consensual and innocuous interaction between police and the two males. I find Kelly's evidence in this respect unconvincing. The video clearly shows the two police taking divergent paths, with Kelly approaching the two males from the front whilst Darnton follows them from behind. It is apparent that the two males immediately stop having been approached from separate directions by police. I do not accept Kelly's evidence that he was "just having a chat to them", as opposed to exercising his powers under s 21 of LEPRA.
The assessment of Kelly's evidence in this respect is important given his denials that his approach to the plaintiff and Turner on the afternoon of the same day was again merely to "have a chat with them".
Kelly was then cross-examined on the contents of his statement relating to his interactions with the plaintiff and Turner. He acknowledged that he did not refer in the statement to the fact that the bag in which the knife was found was in the possession of Turner prior to it being searched. He claimed that the omission in this respect was "a mistake". Further, Kelly did not include in his statement the fact that Turner had claimed that the knife was his. Kelly accepted that, given the offence related to custody of a knife in a public place, these matters were relevant to the issue of custody.
Kelly agreed that he had an obligation, when preparing statements, to include any relevant evidence, whether exculpatory or inculpatory. Whilst acknowledging that this evidence was relevant, and should have been included in the statement, he sought to justify its exclusion in part by suggesting that it was in the body worn footage. This was despite including in the statement conversations otherwise recorded in the body cam footage of less significance than the issue of custody of the knife.
The absence of such evidence from Kelly's statement, given its importance to a central fact in issue in a criminal proceeding, does not reflect well on his credit.
Kelly was cross-examined on his subsequent inquiries at the Kmart located in Penrith arising from Turner's claim that he had purchased various clothing items from Kmart at Mount Druitt. Kelly stated that he had made these enquiries as he suspected that the items had been stolen from Penrith Kmart. However, he accepted that similar inquiries were not made of footage from Kmart Mount Druitt to confirm Turner's original claim that he had purchased the items from that store. No such enquiries were made as Turner later claimed that this may have been a "white lie". Whilst not as significant, it is consistent with Kelly's exclusion of other evidence already discussed which may have tended to exculpate either the plaintiff or Turner in respect to the charges they were facing.
Kelly was also questioned as to his decision to handcuff the plaintiff at the time of her arrest. He claimed this was necessary to avoid the police being assaulted in circumstances where the plaintiff was demonstrating aggressive characteristics. He further claimed that the use of handcuffs was necessary to prevent injury or escape. However, Kelly agreed that the plaintiff's demeanour was generally happy prior to the use of handcuffs.
Understandably the plaintiff reacted in a somewhat aggressive tone when informed she would be searched, insisting that any such search be undertaken by female, before returning to a non-combative demeanour. Kelly's evidence in seeking to justify the immediate use of handcuffs was unconvincing given the demeanour of the plaintiff as demonstrated in the video.
Re-examination of Kelly, in which he was essentially "lead" into providing other reasons for the immediate use of handcuffs, including the alleged proximity of the knife, and concerns arising from her playing with the bra, were unconvincing given they were not volunteered by Kelly at the time he was first questioned on this issue.

Senior Constable Munt

In January 2020 Munt prepared a statement for the plaintiff's prosecution, referring to her initial attendance at Evan Street where an offender was in custody in respect to an outstanding warrant. Whilst waiting for a caged vehicle to arrive the plaintiff and Turner walked past. Turner said words the effect of "how slack making him sit there in the heat". Munt replied, "why don't yous come sit down and join him then", to which the plaintiff replied, "nah miss you can sit down with him".
Munt later observed Darnton and Kelly leave a police vehicle parked further south and begin speaking to Turner and the plaintiff. A short time later she observed Kelly place handcuffs on the plaintiff and Darnton was seen looking through a bag Turner was previously holding. Presuming a search would be required, Munt approached the group and said "see, that's what happens when you're mouthy, you get searched." Munt then referred to her interaction with the plaintiff, consistent with the recording on the body cam video.
Munt decided that a more invasive search was required as she was concerned that the plaintiff may be secreting a weapon, such as a knife, possibly within her bra. In this context Munt told the plaintiff that she would be "strip searched" at the station. A further interaction occurred between the plaintiff and Munt involving the plaintiff using an expletive. It was then decided that the plaintiff would be searched inside a caged vehicle which had arrived in the meantime. The plaintiff was placed inside the caged vehicle and the plaintiff cooperated with Munt in showing the officer the inside of her bra.
Munt thereafter requested the plaintiff remove a necklace as she considered it a "safety risk". In response to the plaintiff's refusal to remove the necklace, Munt said to her, "stop trying to be a tough bitch Ebonie, the necklace needs to come off. If you don't take it off, I will have to get you out of the truck and get it off which I don't want to do just hand it over". Due to an ongoing refusal the plaintiff was forcibly removed from the caged vehicle and forced to the ground and restrained by the three officers.
In her evidence Munt confirmed she was part of the Proactive Crime Team and was working, on the day of the incident, with Darnton, Kelly and Senior Constable Jamieson. Whilst driving in an unmarked police vehicle along Evan Street, police sighted a male coming out of a known drug house. The male was stopped and searched. As a result, the male was issued with various court attendance notices. Whilst processing the offender, a further male in a vehicle came to the attention of police. He was subsequently arrested for outstanding warrants and placed in police custody in the gutter on Evan Street. When the plaintiff and Turner walked by Munt heard Turner say words to the effect, "get him out of the gutter it's hot", to which Munt responded, "why don't you come and join him." She considered that this exchange was merely "banter".
Munt subsequently noticed Darnton searching through a bag that Turner had been carrying. She thereafter heard her colleagues talking about a knife and saw that they had placed handcuffs on the plaintiff. She then appreciated that the female would need to be searched and accordingly walked south towards the group. As she approached, she said to the plaintiff words to the effect "that's what happens when you get mouthy, you get searched". Munt clarified this comment, suggesting that what she meant to say was that "this is what happens when you get yourself involved in things you should stay out of", in the sense that if you want attention, you will get attention. She denied that it was stated as a justification for the search.
Following a brisk search Munt considered it was necessary to undertake a more invasive search, particularly to determine whether the plaintiff was secreting anything in her bra. In response to the plaintiff's request that it not be done in front of males it was agreed that it would be done "at the station". The plaintiff then directed an expletive towards Munt and was subsequently warned about her language. A brief exchange thereafter occurred in which the plaintiff said on several occasions to Munt "watch yourself". She attempted to sit the plaintiff down as a form of control so that she would not hurt anyone.
A caged vehicle subsequently arrived and Munt performed what she accepted was a "strip-search" in the rear of the caged vehicle. This involved the plaintiff cupping her breasts to give her privacy and leaning forward so that the bra area could be seen. The specific request to search the breast area was in response to information provided by fellow officers that the plaintiff "had been fiddling" in that area.
Munt, at the time the plaintiff was in the caged vehicle, requested the plaintiff remove her necklace, which she refused. Munt told the plaintiff to "stop being a tough bitch". Due to her persistent failure to comply with her requests for the removal of the necklace, the plaintiff was forcibly removed from the caged vehicle where further unsuccessful attempts were made to remove the chain. Munt then performed a manoeuvre involving holding the plaintiff's upper body whilst effectively taking her legs from under her, so she was lying on the ground facedown. It was whilst this occurred that the chain was forcibly removed.
In cross-examination Munt denied there was any quota in respect to the number of searches performed by an individual police officer, and she had never been involved in any discussion with her superiors about the number of searches performed as part of an appraisal.
Munt maintained that the comment that you "get searched when mouthy" was mere banter; she denied being annoyed about Turner's earlier comment. She again denied that this comment demonstrated the reason why the plaintiff and Turner were searched, observing the decision to undertake the search was made prior to the comment. She agreed that the comment was unprofessional, and it should not have been said. The later 'tough bitch' comment, whilst the plaintiff was being searched, was not banter but said out of frustration. However, she again denied being frustrated by Turner's earlier comment whilst the male was in custody in the gutter.
Munt was cross-examined on her failure to activate the camera whilst performing the strip search on the plaintiff. Munt acknowledged that when the camera is activated the person being filmed needed to be warned. While she maintained her earlier evidence that, in her own mind, the camera was on the whole time, she conceded that at no time had she warned the plaintiff this was the case. Munt further acknowledged that when activating the camera two beeps are heard. She acknowledged that at no time did she hear such beeps.
Munt's evidence in respect to her failure to activate the camera lacked creditability. She claimed, during evidence, that she was unsure as to whether the camera was activated, and it was for this reason that she made such an enquiry of her fellow police officer. However, this was inconsistent with the actual video which showed that a colleague specifically asked Munt whether her body video was on at the time the search was conducted. Munt's insistence that she believed the camera was on is inconsistent with the fact that she did not hear the two beeps at any time, and had not warned the plaintiff that the camera was activated. Further, Munt was particularly defensive when cross-examined on her comment in relation to the search being conducted in circumstances where the plaintiff was "mouthy".
Munt agreed that she was smiling whilst telling other officers that the plaintiff had been forced to the ground to have her necklace removed; this was because she thought the whole situation was "ridiculous". It is concerning that a police officer would find such use of force in respect to a person in police custody amusing. Munt's demeanour in this respect, evident on the body cam video, is consistent with her earlier "mouthy" comment directed to the plaintiff. It is demonstrative of the unprofessional attitude adopted by the police in their dealings with the plaintiff on the day in question.
Munt justified performing the strip search in circumstances where she was concerned that the plaintiff may have been carrying a knife in her bra, despite the plaintiff wearing a tight dress. Her justification for requiring the plaintiff to remove the necklace, in that she was concerned the plaintiff may swallow the necklace, is difficult to accept in circumstances where Munt conceded there was no way the plaintiff was able to unlatch the necklace whilst wearing handcuffs.

Senior Constable Darnton

On 25 June 2020 Darnton prepared a statement in respect to the plaintiff's prosecution. He denied that his failure to prepare the statement at an earlier time was because he thought that the plaintiff would simply plead guilty to the charges, and instead, cited a heavy workload as the cause of the delay. In his statement, Darnton referred to having earlier arrested the plaintiff and her partner Gaige Heckle ('Heckle') in September 2019 when they attempted to steal a car in his presence. Darnton stated that due to this incident he had become aware of the plaintiff's criminal history, and other information recorded on the COPS database. Darnton then referred to his interactions on the morning of 30 December 2019 with Turner and Brett Plummer ('Plummer'), whilst patrolling Henry Street, Penrith in the company of Kelly. As result of this interaction, he became aware that Turner was on parole for the offence of robbery in company.
Darnton then referred to the incident with the plaintiff on the afternoon of the same day. He had observed the plaintiff and Turner walking in a southerly direction on Evan Street. He recognised Turner from the interaction earlier that morning as well as recognising Madden from the arrest in September. Darnton referred to having a "brief conversation" with Madden and Turner, whilst Kelly commenced conducting checks on a MOBIPOL device. He commented that while speaking to the plaintiff she was acting in a "peculiar manner by laughing and behaving immaturely". She was moving on the spot and unable to stand still. Darnton thereafter described the interaction as recorded on the body worn camera. Darnton then said the following: "Due to my personal knowledge of MADDEN, the area she was in and the way she was acting I formed the reasonable grounds to suspect that MADDEN was in possession of a prohibited drug or an item in connection with a relevant offence. I intended on searching MADDEN pursuant to s 21 of the Law Enforcement (Powers and Responsibilities) Act 2002."
In his statement Darnton referred to the following direction, recorded in the body cam video: "You're going to be detained for a search okay?" … "Relax, for an item in connection with an offence or a drug OK. Just because of your history. What are you doing darling? Where are you living at the moment?"
The statement refers to searching "Madden's handbag". He said in the statement that "moments" after he commenced searching the handbag he located a large knife which was located "at the very top of the bag on top of clothing items". He then said the following to the plaintiff: "So, where are you living now Ebony? Because you are under arrest. My name is Senior Constable Darnton, you are under arrest for custody of a knife in a public place."
The statement records Turner as then saying: "It's mine chief"
The statement documents the conversation which is otherwise recorded in the body cam video, which includes the following remarks made by Darnton directed to the plaintiff: "Who has the last laugh now hey? …" "You're an interesting one Ebonie, I'll give you that. Stealing a car in front of a police officer that's a first for me."
Darnton also refers to the later conversation with the plaintiff at the caged vehicle in which, relevantly, the following conversation took place: Darnton: "Can you tell me why you are carrying around a knife in a public place Ebony?". Plaintiff: "I didn't know it was in my bag." Darnton: "You didn't know it was in your bag?" Plaintiff: "No I honestly didn't".
He subsequently returned to Penrith Police Station where he created event number E72810337, including a "Facts Sheet outlining the circumstances of the incident that could be used for the charging process".
Darnton gave evidence over three days. As a member of the Proactive Crime Team he regularly reviewed intelligence reports and attended team briefings. As of 30 December 2019, he had knowledge of the plaintiff's criminal activities, including an interaction leading to her arrest and charge in September 2019. He also knew of the plaintiff through her partner Heckle.
Darnton gave detailed evidence of the earlier interaction with the plaintiff on 3 September 2019. As part of an ongoing investigation relating to Heckle, he had detected a stolen vehicle in Cranbrook. The owners of the vehicle were contacted and attended the scene. Whilst interacting with the owners, Heckle, in the company of the plaintiff, attempted to steal the motor vehicle.
Darnton gave detailed evidence of a subsequent altercation with Heckle and the plaintiff whilst they were both occupants of the vehicle they were attempting to steal. This included the plaintiff seeking to obstruct police who were attempting to enter the vehicle and remove Heckle from the driver's seat. Eventually both were arrested and charged with various offences. A search of the stolen vehicle detected items including an imitation firearm, baseball bat, drug paraphernalia, identity documents, sledgehammer, ski mask balaclava, tools, and clothes. Subsequent enquiries in relation to the identification documents revealed that those documents were linked to previous break and enters and robberies. In cross examination, Darnton conceded that the plaintiff had not been charged with possession of these items, and instead, Heckle had made admissions that these items were his.
On 30 December 2019 Darnton was partnered with Kelly, commencing their shift at 7 am. As part of their morning bicycle activities, whilst riding through the CBD of Penrith, they sighted two males who appeared to be avoiding police. The males were subsequently spoken to. Darnton spoke to the male identified as Plummer who was searched, although nothing was found. Kelly spoke with Turner and later discovered that Turner was on parole.
In the afternoon Darnton was patrolling with fellow officers in an unmarked vehicle when they detected a male leaving a known drug house. The male was stopped and searched, and a knife and methamphetamine were found in his possession. He was issued with a court attendance notice. Shortly thereafter another male was spoken to who was sitting in a car nearby. It became apparent that this male was the subject of an outstanding arrest warrant, and he was arrested and remained at the scene on the side of the road.
Darnton then heard a conversation between Munt and two persons walking south on Evan Street. He recognised them as the plaintiff and Turner, to whom he had spoken earlier that morning. Darnton stated that he and Kelly engaged in conversation with the two individuals. He alleged that there was nothing sinister; they commonly engaged in conversations with people throughout their shift. He could not recall the precise details of the conversation although they "exchanged pleasantries" and there was a "bit of banter" which was not uncommon. When pressed, Darnton stated that his intention was to merely engage the two in conversation; that it was part of his role "to speak to all people of all backgrounds".
Darnton confirmed that searches were subsequently conducted, identifying the following factors justifying such a search: 1. He had a detailed knowledge of the plaintiff's criminal history - he had the benefit of the earlier interaction in September 2019 leading to her arrest and had also accessed her profile. The plaintiff was extremely well known for serious criminal activity, with more than 50 convictions including offences of violence and weapons. The information also revealed that she was a user of methamphetamine. 2. She had stolen a car in September 2019 knowing full well that there were police guarding that car. 3. The stolen vehicle contained items used in serious crimes. 4. The plaintiff's companion, Heckle, had been using methamphetamine in the days and weeks leading to the offence of September 2019. 5. Turner was on parole for robbery in company and possession of a drug. 6. The individuals were near a proven drug house. 7. The plaintiff was acting in a very peculiar manner. 8. From his previous experience he was aware that drugs and robbery were commonly linked as a means of financing a drug habit.
Taking all these matters into account Darnton formed the opinion that the plaintiff was either in possession of a drug or something else related to an offence. The significance of Turner's criminal history was that he was not linked to the area; he was originally from Orange. Darnton suspected that the plaintiff may have been taking Turner to the drug house. He acknowledged that he had not detailed in his previous statement the grounds upon which the search was conducted and that in hindsight it should have been contained in that document. However, he stated that at times it was difficult to know whether such material should be contained in the statement given it may be potentially prejudicial and inadmissible. He further acknowledged that such information was not provided in the original Facts Sheet. He noted that there were differing schools of thought as to whether such details should be contained in the Facts Sheet given it may be potentially made public and disclose police methodology.
Darnton then gave evidence of his interaction with the plaintiff, generally consistent with the video recording of such interaction once the body worn camera was activated. The bag that was searched was in Turner's possession. Darnton confirmed that the knife was located first and then other clothes and items in the bag including identification, seafood sauce, deodorant and "the typical things you find in a handbag".
Darnton gave evidence about his conversation with the plaintiff regarding her previous partner and dropping him like a "hot potato". Darnton suggested that this was no more than "banter" and that the tone was "light-hearted". He reluctantly acknowledged that when taken out of context the conversation did not sound "ideal" but claimed that it was in the context of his previous contact with the plaintiff and Heckle, including the circumstances in which they had previously been arrested. He claimed that the plaintiff was "being cheeky" and that they were both "having a laugh". Darnton stated that the decision was made to search the plaintiff in the context of observing her to be acting strange, bouncing from one leg to the other, fist pumping Turner and walking on the road and the grass.
He acknowledged that upon finding the knife he used the words "breach, breach". He claimed that there was nothing malicious in this statement; he was simply adopting a phrase that a previous officer commonly used. Darnton acknowledged that when he informed the plaintiff that she was under arrest he used a "light-hearted tone" although it was no more than a continuation of the "banter" with her. He arrested the plaintiff (at the time the handcuffs were placed upon her) as was not sure where she was living. He considered it was reasonable the plaintiff should appear before a court in circumstances where he was aware the plaintiff had a number of failures to appear before a court, there had been numerous breaches of bail conditions, a history of failing to appear before a court and he was unaware as to where she was living.
Darnton gave evidence of the exchange between the plaintiff and Munt regarding her concerns of being searched in the presence of male officers. Munt escorted the plaintiff further down the street as she was getting upset and the decision was made to move her away from the area. The plaintiff was subsequently transported to Mount Druitt as the Penrith charge rooms were full.
When asked about his comment, contained in the video, that "this is the gift that keeps giving", he noted there had been two prior arrests that day and they had now are found three people committing offences in the one place.
As to the circumstances in which the charge of resist officer in execution of duty was laid, Darnton stated that he did not create the indictment. Upon returning to Penrith Police Station, he created a COPS event and completed the Facts Sheet. He stated that the creation of a charge was a separate feature in the COPS system and was done by police at Mount Druitt Police Station. It had been completed by Constable Tamruksa ('Tamruksa').
He claimed to have been "under the pump" to complete the Facts Sheet given the time of day and that his supervisors were not prepared to pay for overtime. At the time he had family visiting and was trying to do his best to get home as quickly as he could. Further he was working the following day a New Year's Eve shift and he was anxious to see his family whilst they were down in Sydney. Darnton stated that he remained after his shift for several hours had finished to complete the Facts Sheet, accepting that this was his priority. Darnton stated that the Facts Sheet was completed "to the best of his ability" although he was aware that there were things "missing".
Darnton gave evidence that he was not responsible for writing that section of the Facts Sheet in relation to the plaintiff's antecedents. He assumed it was Tamruksa given his name appeared on the document. He denied being involved at all in issues relating to the plaintiff's bail determination. Similarly on 31 December 2019 he did not have a discussion with any person in relation to bail including the police prosecutor. Between 30 December 2019 and when the matter was dismissed the following year, he had no discussions with any prosecutors nor was there any suggestion that there were any issues with the prosecution.
He explained the process involved in the preparation of a brief, once requested by the prosecutors. The initial brief merely consisted of the statement of Munt together with a Facts Sheet, witness list and the body worn footage. He did not serve his own statement at that time as he considered it was sufficient to provide the body worn footage along with the statement of Munt. Further he had other competing work priorities including a significant workload. His statement was ultimately prepared in June 2020 having been prompted due to the impending hearing.
Darnton accepted that he was the relevant informant on the charges and they were laid as he believed they had a reasonable prospect of conviction. He believed there was sufficient evidence to have the matter put before the Court. He denied that his previous interaction with the plaintiff in September 2019 had any impact on his decision to commence proceedings. Similarly, he denied that the plaintiff being on parole influenced his decision to commence and/or maintain the proceedings.
Darnton accepted that the draft Facts Sheet did not refer to the fact that the bag was being carried by Turner at the time they were stopped. He believed at the time of preparing the Facts Sheet, that it was the plaintiff who was carrying the bag. He acknowledged this was wrong having later viewed the video footage. He further acknowledged that the Facts Sheet did not record the fact that Turner had said the knife was his. Darnton claimed that this was because he had not actually heard Turner say it at the time, whilst acknowledging that this was recorded on the video footage. He accepted that, upon reflection, he should have watched the body worn footage prior to drafting the narrative contained in the facts.
Darnton conceded that the items located in the handbag were generally male, although there was some female clothing which was not the subject of any charge.
He denied that the proceedings were commenced against the plaintiff to punish her, but merely to invoke the criminal law. He denied that the material omissions from the Facts Sheet were for the purposes of having the plaintiff's parole revoked or her bail refused, to mask the absence of a reasonable or probable cause.
Darnton conceded that he communicated with the plaintiff's then legal representative by email. He indicated that it was common for him to liaise with defence lawyers at "the commencement of my matters" to see if things can be resolved prior to a defended hearing. It was consistent with his general belief that it was efficient and saved the time of police and the Court. He denied any communication with the State Parole Authority in respect of the plaintiff's parole. He was not present at the release applications in respect to the plaintiff and did not have any contact with the prosecutor in respect to any such application.
In cross examination Darnton accepted that productivity of the Proactive Crime Team was to an extent measured by the number of searches, although this was a matter for senior management. A large part of his role was detecting and preventing crime with the role involving a mixture of response and proactivity. He acknowledged that on the day of the incident it was more proactive.
Darnton considered he was well versed and familiar with the powers under s 21 of LEPRA which included the power to stop, detain and search. Whilst he acknowledged they were separate powers; it was his understanding that the power to stop was inextricably linked to the power to search.
Darnton initially denied that he had stopped Turner on the morning of 30 December 2019. He was taken to the video where Turner and Plummer stopped after Kelly rode his bike towards them. When it was again suggested that the two males had effectively been stopped by police, he claimed it was not uncommon for police to ride around and speak to "lots of people from different walks of life", including at hotels and shopping centres. The mere fact that they would have a conversation with someone did not mean that they were being stopped in accordance with their power under s 21 of LEPRA.
Darnton's evidence, when cross-examined in relation to police interactions with Turner and Plummer, was unconvincing, and at times evasive. When pressed he maintained his position that he was doing no more than "having a conversation" with them. He continued to deny that he was exercising any powers to stop under s 21. Indeed, he denied that when he directed Turner to move to a different area of the footpath, he was exercising any police power. He continued to equate such interaction with "general chitchat" or "banter". He denied there was any conscious decision to stop and speak to the two individuals even though the video recorded the two police riding together before separating so as to approach them from different directions. He claimed to have had no specific recollection for approaching the individuals from different directions. He denied that they were effectively attempting to trap Turner and Plummer. It was only when further pressed that Darnton reluctantly agreed that they were exercising powers under s 21 when interacting with the two males.
Darnton's evidence on this issue lacked credibility. His initial denials that the interaction involved exercising powers under s 21 reflected poorly on his credit, and it was only when pressed by reference to the objective video evidence, that Darnton ultimately conceded that they were indeed exercising such powers.
I do not accept Darnton's evidence that at the time he did not believe he was exercising powers under s 21 and that it was only, upon reflection, that he agreed this was the case. At the time of the incident Darnton had been a police officer for 7 years and professed to have a good working knowledge of his powers under s 21. They were powers, by his own admission, that he regularly exercised in the course of his duties as part of the Proactive Crime Team. For Darnton to claim, despite this experience, that he did not believe he was exercising powers under s 21 when interacting with Turner and Plummer, is not credible.
His evidence that Plummer and Turner were acting under their own free will, and not complying with directions of police in accordance with powers under s 21, similarly lacks credibility. It was apparent, following further cross-examination of Darnton, that there was no legal basis to stop and search the individuals in circumstances where the test required by s 21 was not satisfied.
Darnton agreed that on the same day, but at different times, he had told Plummer and the plaintiff they would be searched for "an item in connection with an offence and prohibited drug". However, he denied this was a standard line used by him when exercising his search power under s 21.
As to his remark, directed at Munt, that "we have our cameras on Sarg", Darnton stated that he felt the need to remind her as he did not think that her "mouthy" comment was appropriate. He denied that the plaintiff and Turner had been stopped because they had been "mouthy".
Darnton was referred to evidence he had given in the Local Court that he had stopped the plaintiff because he recognised her. Darnton contended that at that time she would have been free to walk away had they elected to do so. He denied they had positioned themselves on either side of the plaintiff and Turner to essentially trap them, referencing a similar approach, on the bikes, when stopping Plummer and Turner earlier that day.
He denied the plaintiff and Turner had told him they were going to the Jamison Hotel. Whilst conceding he had not seen them coming from the drug house, he maintained that he had a suspicion that was where they were going.
When asked why he had not made mention in the Local Court proceedings of Taylor being an associate of the plaintiff, or an occupant of the drug house on Evan Street, Darnton responded, "There's a lot of things I didn't say in the Local Court proceedings".
Despite being unsure when giving evidence a day earlier as to whether he had knowledge of Taylor being linked to the known drug house at the time of the plaintiff's arrest, Darnton later referred to records which confirmed that he had that knowledge prior to her arrest on 30 December 2019. He explained that the records showed that he had conducted searches on Ms Taylor in November 2019 and that he therefore had that knowledge prior to arresting the plaintiff.
Darnton believed that the plaintiff had been carrying the bag containing the knife, t-shirt and men's underwear, the items subject to two of the charges. It was not until "some time after" that he realised this recollection was untrue.
When pressed on this issue, Darnton maintained that he believed the plaintiff was carrying the bag, despite the body worn footage showing that it was Turner who had been carrying the bag before placing it between his legs, from where Darnton retrieved it. After being shown the body worn footage, Darnton agreed that his recollection was incorrect and agreed that at no point in the body worn footage did Turner hand the plaintiff the bag.
Darnton agreed that the charge of custody of a knife in a public place would require proof that the plaintiff had immediate de facto control or charge of the knife, however, he disagreed with the proposition that there was no evidence to this effect. He told the Court that at the time of the arrest, he had every reason to believe that it was the plaintiff's bag, including that she was standing in "the immediate vicinity next to the bag", which he says he thought was "still enough" to prove custody. This is despite his further concessions that the plaintiff had appeared shocked when the knife was found in her bag, and that she had told him several times, while she was in the back of the police vehicle, that she did not know that the knife was in her bag.
Further, Darnton maintained that he had not heard Turner say, "it's mine chief", with reference to the knife, adding the comment, "unfortunately, body worn video picks up things that you don't pick up".
He agreed that he had arrested the plaintiff immediately upon finding the knife, despite being aware of the principle that arrest is an option of last resort. Darnton conceded that at the time of the plaintiff's arrest, she had been stopped by him under s 21 of LEPRA and as result, was "not going anywhere". However, rather inconsistently, he denied the proposition that this would reduce the need to hastily arrest the plaintiff.
Darnton agreed that he had not said the words "you are under arrest" in a traditional fashion, however, denied doing so in a mocking tone. Instead, he claimed he was being "light-hearted" and "having banter". When his choice of word "banter" was questioned, given he was arresting the plaintiff, Darnton told the court that he was "keeping it in jest". He later agreed that the action of applying the handcuffs immediately after her arrest was not done in jest. For Darnton to claim that his tone was one of jest and banter, in serious circumstances where he was placing the plaintiff under arrest, lacks credibility.
In relation to the goods in custody charge, Darnton agreed that the prosecution would need to establish, beyond reasonable doubt, that the plaintiff had personal custody of the men's underwear and white t-shirt. He maintained that he honestly believed in the case against the plaintiff in respect of this charge, despite agreeing that Turner had told him that the items were his, having them purchased them from Kmart Mount Druitt on that same day. After watching the body worn footage, Darnton also conceded that Turner had been carrying the bag which contained the items.
Darnton conceded that prior to December 2019 he had issued several Court Attendance Notices in relation to a custody of knife in public place charge. He was familiar with s 11C of the Summary Offences Act 1988 and agreed that the defence of reasonable excuse was available.
Darnton agreed, by reference to the Facts Sheet, that he had positively asserted to the Local Court that the plaintiff knew that she had custody of the knife and could not supply a reasonable excuse for having custody. He denied this was false as he had asked the plaintiff why she had a knife, and she was unable to explain it. When it was put to Darnton that the plaintiff had told him, as captured in the body worn footage, that she did not know that she had the knife in the bag, he stated that this was an excuse used by many people who were charged with the offence, and that people often lie to police.
Darnton conceded that he failed to include the following in the NSW Police Facts Sheet in relation to the knife charge: 1. The plaintiff had told him that she did not know that the knife was in the bag. 2. The plaintiff said that she had not seen the knife before. 3. The plaintiff was not in possession of the bag, and instead it was Turner who had custody of the bag. 4. Turner had admitted it was his knife.
Darnton conceded that he had failed to include the following in the NSW Police Facts Sheet in relation to the good in custody charge, despite agreeing that the matters would have been in his mind at the time of drafting the facts: 1. Turner had claimed ownership of the men's underwear and the t-shirt. 2. The underwear was men's underwear. 3. Turner had said he had purchased the items from K-Mart in Mount Druitt.
Darnton agreed, with reference to his duty book (Ex P5), that he had been working wholly on the plaintiff's case for approximately an hour and a half. He agreed this was "plenty of time" to "draft an accurate Facts Sheet".
When questioned, Darnton claimed that he did not know why he had failed to include these matters in the Facts Sheet. When put to him that these matters, which had not been mentioned in the Facts Sheet, were important, Darnton stated that "in hindsight, yes, they are". Despite these concessions, Darnton disagreed with the proposition that he had deliberately left these matters out of the Facts Sheet, and when this matter was pressed, he claimed that the omissions were an oversight, referable to him being in a rush. Darnton accepted that the information in the Facts Sheet was neither credible nor trustworthy, although claimed that this was only with the benefit of hindsight.
Darnton went on to accept that his failure to disclose all evidence in the prosecution case, good and bad, was in breach of his common law duty, however, plainly denied that this breach was deliberate. He further denied the suggestion that in creating this particular Facts Sheet he intended to harm the plaintiff by having her bail refused.
In a rather contradictory fashion, whilst Darnton accepted the proposition that he had failed dismally in the administration of justice by submitting to the Local Court an incomplete statement of the true facts, he denied that the administration of justice was obstructed in so doing. He sought to qualify this response by claiming the Facts Sheet was "created very quickly" and "under circumstances which were not ideal", but that it was not done in a way to harm the plaintiff.
Darnton denied that he had had a discussion with anyone in relation to the plaintiff's bail although he had turned his mind to the possibility that she might be bail refused because of the Facts Sheet which he had authored.
Darnton maintained that he spent two hours of unpaid overtime working on the plaintiff's case, however, had nothing to do with the creation of the charge. He denied that his earlier evidence had been given to distance himself from the charge, insisting that it had been Tamruksa who had prepared the CAN, agreed facts and charge. Darnton was aware that Tamruksa would have had regard to his COPs entry when creating the CAN and charge, stating that Tamruksa would have "copied and pasted" his COPS entry when preparing the agreed facts document.
Darnton agreed that on the evening of the arrest he had been in contact with Tamruksa, directing him as to what charges to lay. The proposed charges were also contained in the COPS narrative prepared by him.
Darnton gave evidence that, at the time he had informed the plaintiff that she was under arrest, he had done so as he had suspected on reasonable grounds that she had a knife in a public place, and that it was reasonably necessary to ensure her appearance before a court. He arrested the plaintiff as he did not know where she was living.
After being played the body worn footage of Ex P2, from 16:31:35, Darnton agreed that he had asked the plaintiff where she was living but had not given her time to respond before placing her under arrest. However, he sought to justify the arrest by stating that he had earlier asked the plaintiff where she was living.
Darnton was taken to his body cam recording (Ex P2), from 16:39:02, where he was heard to say "where's she living? I'll write her a field CAN quickly". It was suggested to Darnton that nothing had changed between the time of the arrest and the point at which he was then contemplating the field Court Attendance Notice ("CAN") option. Darnton told the court that it is common to make arrests in the field and then choose to discontinue the arrest if it could be dealt with in a less restrictive way. His plan was to obtain an address for the plaintiff, which he claimed would have made him feel "more comfortable" in issuing a CAN. Darnton denied that his prior evidence was inconsistent with the relevant footage in Ex P2.
Darnton firmly denied the proposition that the arrest of the plaintiff was unlawful as he did not suspect that the plaintiff had committed the offence of having custody of a knife in a public place.
Darnton was referred to his email communications with the plaintiff's legal representatives, including Ms Caligiore. Darnton agreed that in his email contained at Ex P22, he had been suggesting that the plaintiff plead guilty and was inviting possible negotiations. However, he later conceded that the plaintiff's solicitor would not have been in a position to negotiate at that date, considering she did not have a complete brief, including his own statement.
Darnton denied that he had purposely forgotten to attach the statements of Kelly and Munt in his response to an email from the plaintiff's solicitors who had requested the statements on the morning of the bail application. He sent an email later that same day (at 10:53pm) attaching the statements, by which time the bail application has been completed. Again, he attempted to justify his conduct claiming it is quite common for him to forget to attach such things.
Darnton conceded that it was "possible" that he had held onto the statements of Kelly, for the period of 3 and 6 months respectively, in breach of the Local Courts orders to serve the brief of evidence by 6 February 2020. Yet again, he attempted to justify his conduct claiming it was "common police practice" to provide some things on the brief when first ordered, providing additional documents at a later time.
As part of the plaintiff's defence to her prosecution, several subpoenas were directed to NSW Police for intelligence reports, no doubt as part of the legal challenge to her search and subsequent arrest. When questioned about his communications with Ms Caligiore in relation to one of these subpoenas, Darnton agreed that he had felt "annoyed" by the "onerous subpoenas" being issued and had communicated that to the plaintiff's solicitor.
He then conceded that he had provided to the court, in answer to a subpoena, a copy of the intelligence report that he had heavily redacted, without seeking permission to do so. When asked why he had done this, Darnton told the court that he believed the intelligence report, in its unredacted state, would be the subject of a public interest immunity ("PII") claim. He conceded that he was not authorised to redact the report. Whilst acknowledging the proper procedure for a claim for PII was to retain the Crown Solicitors to advise and appear on such a claim, he failed to do so.
Darnton believed there was no issue with the prosecution case. Whilst he had not spoken to any prosecutor about the charges, no prosecutor had raised an issue with him in relation to the matters. Darnton told the court that from his prior experiences with the relevant prosecutor, Paul Farrow, he would have expected him to raise any issues in respect to the prosecution.

The plaintiff

I do not accept the defendant's submission that the plaintiff was "an unimpressive witness". To the contrary, consistent with the submissions made on her behalf, the plaintiff gave her evidence in a straightforward and honest manner. The plaintiff readily conceded that following her release from prison she relapsed into drug use, having been denied the opportunity to have contact with her son before Christmas. The plaintiff readily conceded as much to her parole officer in the hours before the incident (Ex p22), although an oral drug wipe performed at the time provided a negative test result for all substances. The negative result was consistent with the plaintiff's denials, when remanded in custody, that she had not consumed prohibited drugs in the period prior to her arrest (Ex p14). The plaintiff, in a candid, forthright and unhesitating manner, admitted that she had lied to the admitting nurse at the correctional facility that she had consumed drugs in order to be admitted to the prison's 'butte' program.
I do not accept the defendant's contention that the plaintiff's evidence that she felt anxiety around police officers, especially males, was necessarily inconsistent with the body worn camera footage. The plaintiff gave graphic evidence of having experienced an incident involving a strip search with male police officers at the age of 14. It was in this context that the plaintiff gave evidence that she felt such an anxiety. The body worn footage of the plaintiff's interactions with police is not necessarily consistent with the defendant's description of the plaintiff acting in a "relaxed manner". An alternative, and equally plausible explanation, is that this was the plaintiff's way of "acting out" given her anxiety. I am not prepared to find, based merely upon the body worn footage, that the plaintiff's anxiety around police officers was untrue or lacked credibility. Indeed, the plaintiff's reaction when told she would be searched by police was entirely consistent with her evidence of anxiety when interacting with male police, particularly in the context of being searched.
The defendant's attack on the plaintiff, in conceding that she was unable to recall some details was unwarranted. Whilst it is readily apparent that the plaintiff did not recall some of the less significant details, her evidence of the events surrounding her arrest was given in a clear and concise manner.

Senior Constable Kelly

Kelly was involved in two interactions with Turner, the first occurring on the morning of 30 December, the second whilst in the company of the plaintiff. He gave evidence, and was cross examined, on both interactions, most of which was captured on body worn cameras of the two officers.
Kelly's reluctance to concede that Turner and his male companion were effectively "stopped" by police despite the video footage did not reflect well on his credit. As noted above, whilst it was readily apparent from the video footage that the two police separate and ride in different directions, closing in on Turner and his male companion, Kelly denied that this was a deliberate tactic of the two police. His attempt to downplay the interactions in the morning and afternoon as no more than having a "chat" is inconsistent with the objective evidence depicted in the body cam footage. Indeed, in respect to the afternoon interaction, Kelly's evidence that he and Darnton simply saw the pair and "thought we'd go and have a chat with them" was inconsistent with his later statement, recorded on the body cam, in which he said, "we were just standing here, and they walked past, and she started mouthing off". Further, his answers when questioned as to whether the plaintiff and Turner were actually stopped were deliberately evasive in the face of his signed statement to that effect.
Further, Kelly's explanation for the absence of exculpatory evidence in his statement prepared for the court proceedings lacked creditability. His attempt to justify its exclusion in part by suggesting it was contained in the body worn footage was inconsistent with detail otherwise provided in his statement of less significance. Further, his subsequent enquiries with Kmart, in an attempt to inculpate Turner, absent any exculpatory enquiries, was also suggestive of Kelly taking an approach which was less than objective. His justification for the immediate use of handcuffs on the plaintiff, including concerns as to possible injury or escape, was difficult to reconcile with the plaintiff's demeanour in the period leading to their use.

Senior Constable Munt

Observations have already been made in respect to Munt's evidence including her explanation for the "mouthy" comment and her subsequent description of the plaintiff as a "tough bitch". Munt's denial that such comments were out of frustration were unconvincing. Her failure to activate the body worn video whilst interacting with the plaintiff, including her physical interaction near the police vehicle, given the police guidelines for the use of such cameras, was unsatisfactory. Her evidence that she believed the camera was indeed activated lacks credibility, for the reasons discussed above.

Senior Constable Darnton

Darnton's evidence was wide-ranging in respect to his interactions with Turner, Plummer and the plaintiff, as well as his prosecution of the plaintiff. The cross-examination was lengthy, and quite proper, given the issues in the hearing. The court had an opportunity to carefully assess his evidence, given over three days.
I find that Darnton's credit was overwhelmingly impugned. As with Kelly, he was reluctant to accept that his interaction with Turner and Plummer on the morning of 30 December 2019 was no more than a "chat" or "conversation", repeatedly comparing this interaction to conversations he would have daily with members of the public, including shopkeepers. It was apparent, from the body cam footage, that it was significantly more than what he was prepared to concede.
As previously noted, the video footage is consistent with two police engaging in a strategy, adopting counsel for the plaintiff's expression, involving a pincer movement. There was clearly a deliberate strategy to "close in" on the two individuals from different directions to effectively stop them in their path, following which they were required to produce identification. The interaction involved Plummer being required to place all his belongings on the street including removal of his shoes and socks. Darnton did not agree with the proposition that his specific direction to Plummer to move to another area of the path, prior to being searched, was in exercise of his police powers, despite agreeing that he had no power to direct Plummer to do so other than in accordance with LEPRA.
Similarly, Darnton was reluctant to accept that he and Kelly had effectively stopped the plaintiff and Turner on Evan Street. It was only when confronted with his evidence in the Local Court to this effect that he was prepared to concede that in fact he stopped the two. Darnton continued to be unduly defensive of his position, suggesting that whilst he had effectively stopped the plaintiff, it was only to speak to her. He continued to maintain that he was doing no more than approaching them to "have a chat". His evidence in this respect lacked credibility.
The legality of the search, including the justification for so doing, was the subject of evidence given by Darnton in September 2020 at Penrith Local Court. Despite this issue being the focus of Darnton's evidence in the Local Court, he gave no evidence that the connection between the plaintiff, Taylor and the drug house was a factor in justifying the search. Yet Darnton claimed in his evidence, given over two years later, that this was a relevant fact in his decision to search the plaintiff. The evidence of Darnton in this respect is even less credible in circumstances where in evidence in chief, Darnton was unsure whether he knew the occupants of the house as of 30 December 2019, or whether it was information obtained in the days or weeks thereafter.
Darnton's subsequent attempt to establish, upon re-examination, that he was likely to be aware of this matter prior to 30 December does not detract from the doubt expressed in evidence in chief. If this fact was relevant to his decision to exercise his powers to search it would have been expected that such evidence would have been given in the Local Court hearing. I do not accept Darnton's evidence that a connection between the plaintiff, Taylor and the drug house was a relevant factor in his decision to exercise his powers under s 21 of LEPRA.
Senior Constable Darnton claimed to have forgotten that Turner had been carrying the bag containing the knife, and that he had taken the bag from between Turner's legs, when completing the COPS narrative in circumstances where the events about which he was reporting occurred only about one hour prior (body worn camera was activated at 4:29:54 and the COPS entry was completed at 5:36). It is incredulous for Darnton to suggest that evidence as to custody of a knife and items of clothing, critical to two of the offences with which he was charging the plaintiff, could be merely "forgotten" in such a short period.
Darnton's explanation for omitting critical evidence in the Facts Sheet as being an oversight because he was "under the pump" is inconsistent with his later concessions, when cross-examined, that he in fact had "plenty of time" to draft an accurate document. Indeed, the evidence established that Darnton had returned to the police station by about 5:30 pm (the COPS entry created at 5:36 pm) and did not leave until 7pm. Darnton conceded that during this period he was only working on the plaintiff's case and, it was in this context, that he conceded he had "plenty of time".
Darnton asserted in the COPS entry, for inclusion in the Facts Sheet, that when asked about the knife the plaintiff "was unable to supply police with a reasonable excuse for possessing the knife" (emphasis added). Darnton ultimately conceded that he had misrepresented to the Local Court (through the Facts Sheet) that the plaintiff knew she had custody of the knife but was unable to provide a reasonable excuse for doing so. This is despite, when drafting the document, Darnton knew the plaintiff had denied knowledge of the knife in circumstances where the bag in which in it was contained had been borrowed from her mother. I do not accept Darnton's evidence that such a significant omission from the Facts Sheet was a mere oversight, and was not done deliberately, in circumstances where the events about which he was reporting had occurred less than one hour before (the conversation with the plaintiff being recorded as occurring at 4:40 pm and the COPS event created at 5:36 pm).
Darnton's omission of critical facts to two of the charges was grave in circumstances where he acknowledged that the Local Court would have careful regard to the Facts Sheet in assessing the strength of the prosecution case in determining whether the plaintiff would be released on bail.
Darnton ultimately acknowledged that the disclosure of exculpatory information on the Facts Sheet was of utmost importance in circumstances where a person's liberty depended upon it. I do not accept Darnton's evidence that the critical exculpatory information was simply forgotten at the time of completing the COPS entry, or that it was otherwise a mere oversight.
In the circumstances I am satisfied that the omission of the exculpatory evidence that: 1. the bag at all times whilst under police observation was in the custody and possession of Turner; 2. the bag, immediately prior to being searched, was taken from Turner's possession; 3. the plaintiff was clearly surprised when the knife was discovered; 4. Turner admitted that the knife was his; 5. Turner admitted the clothes the subject of the good in custody charge were his; and 6. the plaintiff's denial of any knowledge of the knife; was deliberate and done with the purpose of withholding material information from those who would determine whether the plaintiff should be granted bail.
Darnton ultimately conceded the inevitable that the information contained in the facts sheet was "neither credible nor trustworthy", and that the omission of evidence/information exculpatory to the plaintiff was in breach of his duty to disclose such evidence. I do not accept Darnton's evidence that these are matters which he only now appreciates with hindsight, given the finding that the omission of such material was deliberate.
These findings are made following a careful consideration of all of the evidence and conscious of "the gravity of the consequences flowing from" this finding (s 140 Evidence Act 1995; Briginshaw (1938) 60 CLR 336; [1938] HCA 34 at 361 - 362 per Dixon J; Neat Holdings Pty Ltd v Karajan Holdings Ptd Ltd (1992) 67 ALJR 170; 110 ALR 449; [1992] HCA 66 at 170 - 171 per Mason CJ, Brennan, Dean and Gaudron JJ).
I do not accept Darnton's evidence that, at the time of deciding to search the plaintiff, he had in mind the connection between the plaintiff's associate Taylor with the drug house on Evan Street. This was one of several matters which Darnton relied upon to justify the search in accordance with his powers under s 21 of LEPRA.
Darnton's disregard for court processes, disclosed in his evidence, reflected poorly on his credit. In accordance with orders of the Local Court the prosecution brief of evidence was to be served by 6 February 2020. This was the responsibility of Darnton, as the informant. He failed to comply with the order, and indeed his own statement as the officer in charge of the prosecution, was not prepared until 29 June 2020. In the interim, Darnton had attempted to engage with the then solicitor for the plaintiff seeking to negotiate a resolution of the various charges. Whilst conceding "from the benefit of hindsight" that it was "wrong" not to serve the brief in accordance with the Local Court order, he later attempted to justify his conduct by claiming that he was unaware that the brief of evidence required to be served needed to include witness statements. This evidence is not credible in circumstances where Darnton was a police officer of some years of experience who would have been aware that a brief of evidence would include all relevant statements in respect to the prosecution. I reject the submission of counsel for the defendant that Darnton might have intended to merely serve a "short brief" in accordance with Reg 25 of the Criminal Procedure Regulation 2017. This submission is inconsistent with the evidence of Darnton. This was not his explanation, and I reject the attempt by counsel for the defendant to seek to justify Darnton's conduct by reference to this Regulation.
Even more concerning was the conduct of Darnton when producing documents in response to a subpoena issued by the plaintiff's defence solicitors. The subpoena required New South Wales Police to produce relevant intelligence reports, no doubt to test the credibility Darnton's claims that he was lawfully exercising the power under s 21 when dealing with the plaintiff. Darnton took it upon himself to produce heavily redacted documents. In cross-examination, he admitted being aware of the process for making a claim of public interest immunity involving such documents. He was aware that this involved engaging the Crown Solicitor's Office who would then attend court and assume conduct of any public interest immunity issue. Darnton admitted that he was not authorised to produce heavily redacted documents. He accepted that he undertook the process of redaction and production, thereby depriving the plaintiff's solicitors of relevant material in defence of the criminal charges, without referring the matter to the Crown Solicitor's Office.

Was the plaintiff subjected to a false imprisonment prior to being told that she was to be detained for a search?

It is common ground between the parties that the plaintiff was detained by police when Darnton informed the plaintiff that she was to be detained for a search. However the plaintiff alleges that her false imprisonment commenced at the time when she was directed to stop.
Whilst the defendant articulates the first issue by reference to a false imprisonment, as the Court of Appeal (Basten, Leeming and Payne JJA) observed in State of New South Wales v Le [2017] NSWCA 290, the label "false imprisonment" is misleading. As the court observed at [4]: "Use of appropriate language is important to the proper application of legal principles. To characterise a particular course of conduct as involving some form of imprisonment tends to focus attention on the justification for the conduct, whereas the first question in this case is to identify the nature of the alleged detention".
These observations are particularly apt given the terms of s 21 of LEPRA which empowers a police officer without warrant to "stop, search and detain a person". The plaintiff contended that the power to stop was distinct from the power to search and detain for the purposes of s 21. Whilst the defendant, in my view correctly, challenged such a proposition, it agreed that police could be exercising their power under s 21 to stop and detain without proceeding to a search. Such a concession is consistent with a detention being a deprivation of a person's liberty, irrespective of whether, during any such detention, a person is then searched. In the circumstances the first issue can be articulated as follows: 1. Prior to the plaintiff being told she was to be detained for a search were the police exercising their power to stop and detain pursuant to s 21 of LEPRA?; 2. If the answer is in the affirmative, were those powers exercised lawfully?
The defendant contends that the plaintiff was not detained during this period, relying upon Le in which the court cited with approval Collins v Wilcock [1984] 1 WLR 1172: "Furthermore, the word 'detaining' can be used in more than one sense. For example, it is a commonplace of ordinary life that one person may request another to stop and speak to him; if the latter complies with the request, he may be said to do so willingly or unwillingly, and in either event the first person may be said to be 'stopping and detaining' the latter. There is nothing unlawful in such an act. If a police officer so 'stops and detains' another person, he in our opinion commits no unlawful act, despite the fact that his uniform may give his request a certain authority and so render it more likely to be complied with. But if a police officer, not exercising his power of arrest, nevertheless reinforces his request with the actual use of force, or with the threat, actual or implicit, to use force if the other person does not comply, then his act in thereby detaining the other person will be unlawful."
However, the court in Le observed at [6] that there were two aspects of the judgment which required clarification: "First, read in context, it is clear that the characterisation of the conduct in the final sentence as "unlawful" means it was conduct requiring justification. Secondly, there may be no clear dividing line between the effect of the officer's uniform on the one hand, and an implicit threat to use force in the event of non-compliance, on the other."
Significantly, the court observed that the second issue was "often an important issue in particular circumstances" and the test "is objective in the sense that the court must assess what a reasonable person in the particular circumstances of the complainant would have inferred from the conduct of the officer": at [7].
It is therefore necessary to consider, applying an objective test, whether a reasonable person in the position of the plaintiff would have inferred from the conduct of police she was being detained in accordance with the s 21.
The evidence establishes the following: 1. The plaintiff and Turner were walking south on Evan Street when Darnton and Kelly "jumped out" of a police vehicle and walked after them. 2. Darnton directed the plaintiff and Turner to stop. 3. The plaintiff and Turner continued walking before stopping in accordance with a second direction from police. 4. Darnton approached the plaintiff and Turner from behind whilst Kelly walked past the two (on the road) before approaching them plaintiff from the opposite direction, effectively blocking the plaintiff and Turner's path. 5. Darnton removed a bag, previously being carried by Turner, from between Turner's legs, placing it on the ground some distance from him.
The plaintiff agreed in cross examination that, consistent with the body worn footage, she was free to walk around the grass and footpath whilst speaking to police, and that no police officer had physically touched her until handcuffs were used. She agreed that she had engaged in a handshake with Turner and appeared jovial.
Whilst Kelly acknowledged that he uses the word "stopped" in his statement, he claimed that this was no more than "a figure of speech" and it was not like they "..physically stopped them. We approached them. And they stopped. And we had a talk. We had a conversation." Kelly's reluctance to concede that the plaintiff and Turner were effectively detained must be approached with some scepticism given his evidence of a similar interaction, also involving Darnton, with Turner and his companion earlier in the day. I do not accept Kelly's evidence that the plaintiff would have been permitted to leave if she so desired. The defendant's submission that there is no evidence to the contrary does not advance this issue.
In all the circumstances, I find that Darnton and Kelly did stop and detain the plaintiff, and Turner, prior to being told by Darnton that she was to be detained for a search, thereby purportedly exercising their power under s 21.
It is then necessary to determine whether such a power was exercised lawfully in accordance with s 21. It is for the defendant to prove that the plaintiff's detention was lawfully justified: Ruddock v Taylor [2003] NSWCA 262 at [3] per Spiegelman CJ. The burden of proving any facts or circumstances which show that the detention was lawful similarly rests on the defendant: Zaravinos v State of NSW (2004) 62 NSWLR 58 at [12] per Bryson JA (with whom Santow JA and Adams J agreed).
The precondition to the exercise of the power is the police officer suspecting "on reasonable grounds" that certain circumstances exist. The grounds upon which the police purportedly exercised their powers, albeit at the time when announcing that the plaintiff would be detained for research, was that the plaintiff had in her possession or under her control an item in connection with an offence or a drug (s 21(1)(a)) or (21(1)(d)).
Suspicion "is a state of conjecture or surmise where proof is lacking; further 'I suspect but I cannot prove'"; (George v Rockett 1991 70 CLR 104 at [115] per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ citing with approval Lord Devlin in Hussien v Chong Fook Kam [1970] AC 942 at 948. As the Court further observed in George v Rockett: "The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof".
In R v Rondo [2001] NSWCCA 540, Smart AJ (with whom Spiegelman CJ and Simpson J agreed) at [53] usefully summarised relevant principles as follows: 1. A reasonable suspicion involves less than a reasonable belief but more than a possibility; something which would create in the mind of a reasonable person an apprehension or fear of one of the state of affairs. 2. Reasonable suspicion cannot be arbitrary, but instead there must be shown some factual basis for the suspicion which may include hearsay material or materials which would otherwise be inadmissible in evidence. However, those materials must have some probative value. 3. It is necessary to consider the information in the mind of the police officer at the time of detention. Having ascertained that information it is then necessary to consider whether that information afforded reasonable grounds for the suspicion which the police officer formed by reference to the source of the information and its content which is to be considered in light of the whole surrounding circumstances.
In Hrdavec v State of New South Wales [2022] NSWCA 52, Bell P, Basten and White JJA observed at [16]: "It has been pointed out on many occasions that the long-standing test of a suspicion based on reasonable grounds involves both a subjective and an objective element. A suspicion is something less than a belief that the person has committed an offence. [3] If challenged, the officer must be able to demonstrate some factual basis for holding the suspicion, being a basis which a reasonable person would accept as providing support for the suspicion, whether or not such a person would necessarily draw the relevant inference."
A relatively brief period elapses between the initial detention and Darnton informing the plaintiff that she was to be detained for a search. The defendant concedes that when this announcement is made Darnton is exercising his power pursuant to s 21, and provided a reason for doing so. For the reasons discussed below, I am not satisfied that the plaintiff's detention for the purposes of the search was lawful, in that the defendant has failed to discharge its evidentiary onus that Darnton had reasonable grounds for suspecting the contended circumstances existed.
In the circumstances, it must follow that any detention prior to Darnton's announcement that the plaintiff would be detained was similarly unlawful. In any event, the plaintiff's initial detention, prior to being told that she was to be detained for research was relatively brief, with the more substantial period of detention occurring thereafter.

After the plaintiff was told she would be detained for a search, and before being placed under arrest, was the plaintiff lawfully detained and searched pursuant to s 21?

The defendant concedes that police were exercising their power under s 21 at the time the plaintiff was informed that she would be detained for a search. In the circumstances, it is necessary to consider whether such a detention was lawful, mindful that it is the defendant who carries the burden of proof.
As noted above, Darnton told the plaintiff that she was to be searched "for an item in connection with an offence or a drug" (s 21(1)(b)) or (21(1)(d)). Darnton articulated the factual basis for holding the suspicion required by s 21(1) as follows: 1. A detailed knowledge of the plaintiff's criminal history, having accessed her profile prior. In this respect the plaintiff was well known for serious offences including an extensive criminal history of in excess of 50 charges including for robbery, property offences, offences of violence and weapons. 2. General intelligence holdings knowledge of which included information that the plaintiff was a user of amphetamines. 3. Darnton's interactions with the plaintiff in September 2019 involving the attempted theft of a car in police presence. At the time numerous items in connection with serious offences were found in the vehicle including imitation firearms, balaclavas, identity documents, drug paraphernalia and weapons. 4. The proximity of the plaintiff and Turner to a known drug house, particularly in circumstances where earlier that day a person had been stopped after leaving the drug house with methamphetamine. In this context, and knowing Turner's history, Darnton considered that the plaintiff may have been taking Turner to the drug house for drugs. 5. The plaintiff's demeanour was such that Darnton believed she was under the influence of a drug. In this respect drug offences and property crime were "intrinsically linked" in that people commit property offences to fuel their drug habits. 6. Darnton knew that the plaintiff was an associate of Reitano-Taylor, and he was aware that Reitano-Taylor lived at the address of the known drug house.
The defendant quite properly conceded that the mere fact a person has a prior criminal record, or there are intelligence reports in respect to that person, does not constitute reasonable grounds for the requisite suspicion under s 21. As the plaintiff correctly contended such a concession is entirely appropriate in circumstances where the courts have consistently pronounced the importance placed on a subject's personal liberty and any power depriving a person of their liberty must be strictly construed: Zaravinos v State of New South Wales (at [23]) per Bryson JA (Santow JA and Adams J agreeing), citing Williams v The Queen [1986] HCA 88; (1986) 161 CLR 278 (at 292 and 296) and Smith v Corrective Services Commission (NSW) [1980] HCA 49; (1980) 147 CLR 134 (at 139); see also George v Rockett [1990] HCA 26; (1990) 170 CLR 104 (at 110 - 111); State of New South Wales v Corbett [2007] HCA 32; (2007) 230 CLR 606 (at [87]) per Callinan and Crennan JJ (Gleeson CJ and Gummow J generally agreeing); (at [16] ff) per Kirby J; Hyder v Commonwealth of Australia [2012] NSWCA 336 at [13] per McColl JA (Basten and Hoeben JJA agreeing).
Whilst there was no issue that Darnton was involved in the arrest of the plaintiff some three months earlier whilst attempting to steal a motor vehicle, there was no suggestion that the plaintiff was aware of the items being in the vehicle at the time of commission of the offence. Indeed, Darnton conceded that these items were not the subject of any charges laid against the plaintiff. In any event, the mere fact that Darnton had arrested the plaintiff in such circumstances would not give rise to reasonable grounds for suspecting that, three months later, the plaintiff was in possession or had control of anything used or intended to be used in connection with the commission of an offence.
It is apparent that the plaintiff and Turner were located within the vicinity of an apparent drug house. However, the evidence was that the plaintiff and Turner were walking in the direction of the drug house. It is in this context that Darnton suspected that the plaintiff was taking Turner to the drug house to obtain drugs. This is inconsistent with Darnton's purported suspicion, by reference to s 21(1)(d), that the plaintiff had in her possession a prohibited drug in circumstances where Darnton was suspicious that the pair were walking to the drug house to obtain drugs. Further, if the plaintiff appeared to Darnton to have been affected by the apparent use of a prohibited drug prior to the interaction with police, this is not necessarily consistent with the plaintiff having such a prohibited drug in her possession. If anything, it is consistent with the plaintiff having previously used a prohibited drug. For the reasons traversed earlier, I do not accept Darnton's evidence that at the time of the deciding to detain and search the plaintiff that he had in mind the connection between the plaintiff's associate, Taylor, and the drug house on Evan Street.
In all the circumstances, I am not satisfied that the relevant matters upon which Darnton relied, whether separately or in combination, provided reasonable grounds to suspect that the plaintiff had in her possession or under her control anything used or intended to be used in connection with the commission of an offence, or had in her possession or under her control a prohibited drug.
This finding is fortified by the context in which the detention and search was conducted. The clear inference is that that Darnton's motivation was other than a legitimate exercise of police powers under s 21.
First, it is significant to note that Darnton used the same words for justifying the detention and search of Turner and his companion earlier that day in different circumstances. Second, at the time Darnton pronounced that the plaintiff would be detained for a search the only stated reason for doing so was because of the plaintiff's "history". Third, in the minutes before the detention and search the plaintiff and Turner were involved in a brief verbal exchange with police. Immediately after this exchange Darnton and Kelly left their police vehicle and approached the two from different directions. Shortly before the plaintiff is searched, Munt tells the plaintiff, "that's what happens when you're mouthy… You get searched." It is significant that Darnton immediately reminds Munt that the body worn cameras are activated, clearly in an attempt to warn Munt about saying anything further. After the search is conducted Darnton says to the plaintiff, "who has the last laugh now, hey?" whilst Kelly is later heard on the phone telling a superior officer that they had just had "a run-in with Ebonie Madden" and that she had "started mouthing off".
In all the circumstances, I am not satisfied that the plaintiff's detention and search was lawful.
The plaintiff alternatively contends that the detention and subsequent search was unlawful in that the police failed to comply with s 202 of LEPRA, mandating that the plaintiff was required to be told the reason for the exercise of the power. Having found the detention and search was unlawful by reference to s 21 of LEPRA it is unnecessary to determine this issue.

Was the plaintiff lawfully arrested pursuant to s 99 of LEPRA?

Section 99 of LEPRA provides as follows: "(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. (2) A police officer may also arrest a person without a warrant if directed to do so by another police officer. The other police officer is not to give such a direction unless the other officer may lawfully arrest the person without a warrant. (3) The arresting police officer or another police officer must, as soon as is reasonably practicable, take the person who has been arrested under this section before an authorised officer to be dealt with according to law. Note - A police officer may discontinue the arrest of a person at any time and without taking the arrested person before an authorised officer - see section 105. (4) A person who has been lawfully arrested under this section may be detained by any police officer under Part 9 for the purpose of investigating whether the person committed the offence for which the person has been arrested and for any other purpose authorised by that Part. (5) This section does not authorise a person to be arrested for an offence for which the person has already been tried. (6) For the purposes of this section, property is connected with an offence if it is connected with the offence within the meaning of Part 5. (7) In this section - arresting police officer means the police officer arresting a person under this section."
The onus is on the defendant to prove that the plaintiff's arrest was lawful. For the arrest to be lawful both preconditions in s 99(1) must be satisfied.
The first pre condition is that the police officer suspects on reasonable grounds that the person is committing or has committed an offence. Darnton clearly proclaims that the reason for the arrest is for the offence of custody of a knife in a public place, contrary to s 11 C of the Summary Offences Act, which provides as follows: "(1) A person must not, without reasonable excuse (proof of which lies on the person), have in his or her custody a knife in a public place or a school."
The defendant accepted, quite properly, the following submission made on behalf of the plaintiff: "85. The word 'custody' is not defined in the Summary Offences Act. The common law defines custody as "the immediate de facto control or charge of the article in question": Ex parte McPherson (1933) 50 WN 25. An essential component of the definition is the concept of immediacy."
As Basten J (with whom McColl and Hogan JJ agreed) in Dowse v State of New South Wales [2012] NSWCA 337 at [12] observed the suspicion on reasonable grounds that a person has committed an offence "involves an actual and honestly held suspicion on the part of the officer for which, in addition, there must be reasonable grounds", citing with approval the judgment of Lord Hope of Craighead in O'Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286 at [298]). As his Honour further observed at [26] "… there are two elements to be satisfied for a warrantless arrest to be valid, namely an honestly held suspicion in the mind of the arresting officer and information in the mind of the arresting officer which when objectively assessed provides reasonable grounds for the suspicion…".
The defendant contends that Darnton's evidence would be accepted that his suspicion was based on: 1. the knife was located in a handbag found in a public place; 2. the bag was a woman's handbag; 3. Darnton found the plaintiff's identification in the handbag; and 4. after Darnton found the knife Kelly asked whose bag it was, to which Darnton had responded that it was the plaintiff's. In this respect, the plaintiff nor Turner responded to suggest this was not the case.
The first ground does no more than establish the element of the knife being in a public place. The fact that the bag was a woman's handbag must be considered in the context that the bag, at all times, was being carried by Turner. As the defendant ultimately conceded, the discovery of the plaintiff's identification in the handbag is of no relevance in circumstances where that discovery was not made until after the arrest. As for the discussion as to whom the bag belonged, it was Darnton who immediately claimed that the bag belonged to the plaintiff. The plaintiff hardly had time to respond before Darnton places her under arrest. In any event, what is apparent in the short period between the discovery of the knife and the arrest is that the plaintiff spontaneously expresses shock and surprise at the discovery of the knife, whilst saying, "fuck off".
In any event, the evidence establishes that at all times prior to the initial stopping of the plaintiff and Turner the bag was in the custody of Turner. Following the stop, Darnton removes the bag from between Turner's legs, placing it on the ground before it is searched. I do not accept the evidence of Darnton that he had no appreciation, at the time of arrest, that the bag was being carried by Turner prior to being stopped, or that he had forgotten in the minutes before, that he had removed the bag from between Turner's legs. Given the element of custody necessarily involves the concept of immediacy, the evidence clearly established that at no time was the bag, containing the knife, in the custody of the plaintiff.
In the circumstances, I am not satisfied that Darnton had a genuine and/or honest suspicion that the plaintiff was committing, or had committed, the offence of custody of a knife in a public place. Further, given the matters already identified, I am not satisfied that, assessed objectively, there were reasonable grounds for suspecting the plaintiff had committed the offence. Given the first precondition in s 99 (1)(a) was not satisfied, I find that the arrest of the plaintiff was unlawful.
Whilst it is unnecessary to consider whether the second precondition of s 99(1) is satisfied, the following observations are made. The defendant contended that the plaintiff's arrest was reasonably necessary to ensure that the plaintiff appeared before a court in relation to the offence (s 99 (1)(b) (iv)). I accept the defendant's submission that the test is a subjective one, the relevant question being whether Darnton was satisfied the arrest was reasonably necessary, rather than the Court being so satisfied. As Barrett AJA (with whom McFarlane JA agreed) in Jankovic v Director of Public Prosecutions [2020] NSWCA 31 at [53] and [54], stated: "For an arrest without warrant to be authorised by LEPRA, s 99(1), it must be established that, as described in s 99(1)(b), the arresting officer was "satisfied" that the arrest was "reasonably necessary for" any one or more of the "following reasons" stated in the section. An issue as to the officer's state of mind arises; and it is for the party asserting that the arrest was authorised by the section to show that, at the time of making the arrest, the officer had reached a state of being "satisfied" that the circumstances as a whole made it "reasonably necessary", for one or more of the stated reasons, that the person concerned be deprived of their liberty. The party asserting the lawfulness of the arrest must thus prove that the police officer had formed a particular opinion (or state of satisfaction) about the connection, in terms of cause and effect, between depriving the person of their liberty and achieving the results with which the "following reasons" are concerned. The connection is defined by the words "reasonably necessary"."
His Honour's statements must be considered in the context of the concept of "reasonably necessary" as contained in s 99(1)(b). At [60] and [61] his Honour stated: "That identifies the essence of the "reasonably necessary" criterion in LEPRA, s 99(1)(b). The section imports a requirement of proportionality into police officers' decision-making. Each of the reasons in s 99(1)(b)(i) to (ix) is expressed in terms of a particular outcome relevant to law enforcement. [18] The reasons are concerned with the risk that lack of constraint upon a person through arrest might frustrate the attainment of one or more of those outcomes and thereby prejudice law enforcement. In Robinson v State of New South Wales [2018] NSWCA 231 at [164], Basten JA said of the s 99(1)(b)(i) to (ix) reasons: Those reasons provide, in effect, that the police functions of law enforcement would not be sufficiently carried out by steps short of arrest, which, with respect to the commencement of proceedings, would commonly mean the issue of a court attendance notice. The reasonably foreseeable consequences of continued freedom (either alone or in conjunction with other available measures) are to be compared with the obvious consequences of arrest. That comparison is to be made by reference to the whole of the circumstances prevailing at the time. The comparison will quantify the extent, if any, to which a continuation of freedom creates a risk that the attainment of any one or more of the stated law enforcement outcomes will be jeopardised. Only if, according to an objectively reasonable assessment, continuing freedom (with or without some other available measure) presents a significant risk to attainment of any of the law enforcement results will immediate arrest be a proportionate response to that risk and therefore substantially preferable and "reasonably necessary". The police officer is required to assess the situation at hand and make an evaluative judgment."
Darnton's evidence that he was satisfied the arrest of the plaintiff was reasonably necessary was premised on knowledge that the plaintiff had numerous fail to appears and warrants that had been previously executed. He claimed that the setting of bail conditions (which could only occur at a police station) was a way to ensure the plaintiff appeared before a court. Darnton did not know where the plaintiff lived in circumstances where the plaintiff had previously failed to provide her address when asked. The difficulty with Darnton's evidence is that the arrest was occurred immediately after Darnton asked the plaintiff was living. Darnton did not even give the plaintiff an opportunity to reply before effecting the arrest.
Further, only a matter of minutes after the arrest, Darnton says to other police, "Where's she living? I'll write her out a field CAN quickly." As the plaintiff's submissions note, at this time, Darnton knew of the allegation that the plaintiff allegedly resisted Munt, was aware that the plaintiff was on parole, and was not aware of her address, yet was still content to proceed with a field CAN. Indeed, the fact that Darnton was considering issuing a CAN, in circumstances where nothing had changed since the plaintiff's arrest, was inconsistent with Darnton's evidence that the arrest was necessary to ensure her appearance before a court.
The defendant's contention that a Court Attendance Notice was synonymous with the plaintiff's arrest is rejected. Indeed, a CAN is an alternative to arrest: Jankovic at [67] per Barrett AJA. The defendant's submission that a CAN fulfils the requirement of s 99 (3), that the arresting officer must, as soon as is reasonably practicable, take the person before an authorised officer to be dealt with according to law, is nonsensical.
The haste with which Darnton arrests the plaintiff, within seconds of having found the knife, militates against the finding contended for by the defendant that Darnton, having considered the alternatives, was satisfied that the arrest was reasonably necessary. I do not accept Darnton's evidence that, at the time of the arrest, he had considered the alternatives and was satisfied that the arrest was reasonably necessary to ensure that the plaintiff appeared before a court in relation to the offence.

Whether the physical contact between the plaintiff and the police officers, including the subsequent search performed by Munt, was lawful and / or constituted an assault and battery

The defendant concedes that the consequence of a finding that the detention was unlawful is there must also be a judgment for the plaintiff in terms of battery for any physical contact with her person, or any tortious assault that occurred within the context of that detention.
The parties agree that the batteries occurred in the following interactions with the plaintiff: 1. the application of handcuffs by Kelly; 2. during the course of the "pat down" search by Munt; 3. being walked to and placed into the prisoner pod area at the rear of the police vehicle; 4. being removed from the prisoner pod at the rear of the police vehicle and taken to the ground by two police during which the necklace was removed; and 5. being lifted from the ground and returned to the prisoner pod area in the rear of the police vehicle.

Whether s 43A of the CLA applies

The defendant contends that s 43A of the CLA applies even if the court was to find the plaintiff's detention and subsequent arrest was unlawful. Before determining the applicability of s 43A it is necessary to consider, given the terms of s 3B of the CLA, whether the Act applies at all.
Section 3B(1)(a) provides as follows: "(1) The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows - (a) civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person - the whole Act except - (ia) Part 1B (Child abuse - liability of organisations), and (i) section 15B and section 18(1) (in its application to damages for any loss of the kind referred to in section 18(1)(c)), and (ii) Part 7 (Self-defence and recovery by criminals) in respect of civil liability in respect of an intentional act that is done with intent to cause injury or death, and (iii) Part 2A (Special provisions for offenders in custody)" (Emphasis added)
Whilst the defendant concedes that the torts pleaded against it are intentional acts for the purposes of s 3B(1)(a), it contends that: 1. there was no intent to cause injury; and 2. the deprivation of liberty is not an injury, given the definition of that term in s 11 of the CLA.
In Croucher v Cachia [2016] NSWCA 132, Leeming JA (with whom Beasley P and Ward JA agreed) observed at [34]: "A cause of action in battery may be established where the defendant's conduct is either intentional or alternatively merely negligent. The former would engage s 3B(1)(a) and the latter would not. In other words, the language of "intentional tort" is an unsafe guide to whether s 3B(1)(a) is engaged; it is necessary instead to look at the character of the underlying conduct, as explained in White v Johnson [2015] NSWCA 18; 87 NSWLR 779 at [132]."
In White v Johnson [2015] NSWCA 18; 87 NSWLR 779, Leeming JA (with whom Barrett and Emmett JJA agreed) observed that "it is the act and not the injury which must be intentional".
For the reasons given I am satisfied that Darnton intentionally detained, arrested and maliciously prosecuted the plaintiff. As a consequence, the plaintiff was subject to an assault and battery by police.
It is then necessary to determine whether the definition of injury contained in s 11 the CLA (contained within Part 2) applies to 'injury' as used in s 3B (contained within Part 1).
Spigelman CJ in State of New South Wales v Ibbett [2005] NSWCA 445 held that the definition of injury at s 11 (for the purposes of Part 2) did not apply to the word injury appearing in s 3B(1)(a) (at [5] - [10]), providing five reasons for doing so: "First, the respective Parts of the Act deal with distinct matters and nothing suggests that terminology is intended to bear the same meaning wherever deployed. Secondly, each Part of the Act has its own definition section with Part 1, in which s3B appears, containing generally applicable definitions in s3, e.g. of the word "damages". Thirdly, the definition sections in each Part contain repetition of the same definitions, indicating that each Part is to be regarded as discrete. (See, e.g. the definitions of "personal injury" in s5 for Part 1A, of "injury" in s11 for Part 2, of "personal injury" in s27 for Part 3 and in s51 for Part 7; and also the definition of "negligence" in s5 for Part 1A and in s27 for Part 3.) Fourthly, when Parliament intended to pick up a definition section from one Part and apply it to another, it did so expressly, perhaps most forcefully for present purposes two subparagraphs later in s3B(1)(c) which excluded: "(c) civil liability relating to an award of personal injury damages (within the meaning of Part 2) where the injury or death concerned resulted from smoking or other use of tobacco products …". Fifthly, there is a direct contrast between the use of the word "injury" in s3B(1)(a) and the invocation of the definition of "personal injury" in s3B(1)(c)."
Rather, the word injury should be given "its natural and ordinary meaning" and "would encompass the harm occasioned by an apprehension of physical violence": per Spigelman CJ at [11] citing with approval Houda v NSW [2005] NSWSC 1053 at [338] - [346] per Cooper AJ. Basten JA agreed that the concept of 'injury' in s 3B(1)(a) was not restricted to, although would include, personal injury: at [218]. Ipp JA rejected the appellant's contention that the meaning of injury as defined in s 11 should be applied to the meaning of injury in section 3B(1)(a). In any event, his Honour found that anxiety and stress would be an 'impairment' of a person's mental condition within the ordinary meaning of impairment as used in s 11: at [123] - [124]. Irrespective of whether the ordinary meaning of the word is attributed to injury or given the meaning defined in s 11, it was sufficiently wide to encompass anxiety and stress: at [125].
In Houda, Cooper AJ found that the word "injury" was not limited to bodily injury, but extended to all forms of injury, including the deprivation of liberty, restraining with force, causing humiliation and emotional upset, as well as having a criminal charge hanging over one's head, together with the costs and emotional trauma of contesting the charge: at [336] - [346].
The defendant contends that the High Court decision in New South Wales v Williamson [2012] HCA 57; (2012) 248 CLR 417, effectively overruled Ibbett and Houda. Williamson considered the applicability of the costs limiting provisions contained in s 338(1) of the Legal Profession Act 2004 (NSW), fixing maximum costs for legal services provided in connection with "a claim for personal injury damage" if the amount recovered did not exceed $100,000. Relevantly s 337(1) of the Act provided that personal injury damages had the same meaning as in Part 2 of the CLA.
The court held that the claim for false imprisonment, to the extent that damages were sought for deprivation of liberty was not a "claim for personal injury damages".
However, the court further observed at [33]: "Often but not always, a battery will cause personal injury to the victim. False imprisonment is often accompanied by an assault and battery, and the accompanying battery may (but need not) cause personal injury. There may be cases where an act of false imprisonment itself causes psychiatric, even physical injury".
Williamson was considering the definition of personal injury damages as contained within part two of the CLA. French CJ and Hayne J said the following at [18]: "The definition of "personal injury damages" in s 337(1) does not refer to the operation or application of the Liability Act. It refers to the meaning of the expression in Pt 2 of the Liability Act, and s 11 in Pt 2 of the Liability Act provides that personal injury damages "means damages that relate to the death of or injury to a person" (emphasis added). That definition draws no distinction between damages awarded in claims for negligence and damages awarded in claims for an intentional tort."
I am not satisfied, given the High Court was specifically determining the definition of personal injury damages contained in the Legal Profession Act, by reference only to Part 2 of the CLA, that Williamson overruled the Court of Appeal judgment in Ibbett, and in particular the careful reasoning of Spigelman CJ at [5] - [12]. Accordingly, I am satisfied that s 3B(1)(a) applies to the plaintiff's claim and s 43A (contained within Part 5) of the CLA does not apply.
Even if the CLA does apply to the plaintiff's claim, contrary to my findings, I am not satisfied that s 43A would exclude any civil liability arising from the police conduct for the following reasons: 1. The plaintiff's detention and arrest were unlawful. 2. The effect of the defendant's submission is that police who illegally exercise powers of detention and arrest can do so with impunity; there would be no civil liability arising from police improperly/illegally depriving a citizen of their liberty and freedom of movement. 3. In any event, the circumstances in which the plaintiff was detained and arrested illegally were so unreasonable that no police, having the statutory powers afforded to them according to LEPRA, would properly consider the acts of the police in their dealings with the plaintiff to be a reasonable exercise of their power.

Whether the plaintiff was prosecuted maliciously

The plaintiff must establish the following to succeed on the claim for malicious prosecution: 1. The prosecution was initiated by the defendant. 2. The prosecution terminated favourably to the plaintiff. 3. The defendant (through Darnton) acted with malice in bringing or maintaining the prosecution. 4. The prosecution was brought or maintained without reasonable and probable cause. (A v State of New South Wales (2007) 230 CLR 500 at 502 [1] per Gleeson CJ, Gummow, Kirby, Hayne, Hayden and Crandon JJ; Beckett v State of New South Wales [2013] HCA 17; (2013) 248 CLR 432 at [4] per French CJ, Hayne, Crennan, Keifel and Bell JJ).
The defendant conceded the first two elements, that the prosecution was initiated by the defendant (Darnton for whom the defendant is vicariously liable) and that the prosecution terminated favourably to the plaintiff were proven. Accordingly, the issues requiring determination were whether the plaintiff had proved, on the balance of probabilities, that Darnton acted with malice in bringing or maintaining the prosecution, and whether the prosecution was brought without reasonable and probable cause.
Whilst the plaintiff bears the onus of proving each of the elements on the balance of probabilities, regard must be had to s 140 of the Evidence Act, and in particular "the gravity of the matters alleged" (s 140(2)(c)). The provision reflects the common law expressed decisions such as Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 at [361] - [362] per Dixon J and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 70; 110 ALR 449; [1992] HCA 66 at [170] - [171] per Mason CJ, Brennan, Dean and Gaudron JJ.

Active steps

Whilst the defendant contends that it is necessary for the Court to consider what the plaintiff alleges were "active steps" in initiating and maintaining the prosecution, its submissions prevaricate somewhat in this respect. In any event, I am satisfied that the pleading specifically alleges active steps taken by the prosecutor, Darnton, in initiating and maintaining the proceedings: 1. On 30 December 2019, Darnton caused Tamruksa to initiate criminal proceedings against the plaintiff (SOC at [46]). 2. On 30 December 2019, Darnton caused Tamruksa to compile a NSW Police Facts Sheet using the narrative Darnton had created in the COPS policing system (SOC at [48]). 3. At the time of creating the narrative, Darnton knew that the narrative deliberately failed to include relevant information (SOC at [49]). 4. At the time the narrative was compiled, and throughout the course of the criminal proceedings, Darnton knew certain matters relevant to the claim for malicious prosecution (SOC at [50]).

Reasonable and probable cause

In A v State of New South Wales, the majority said at [58]: "Secondly, the inquiry about reasonable and probable cause has two aspects. That is, to 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?..."
Further, the majority said the following at [77]: "There are three critical points. First, it is the negative proposition that must be established: more probably than not the defendant prosecutor acted without reasonable and probable cause. Secondly, that proposition 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. The third point is that the critical question presented by this element of the tort 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? That is, when the plaintiff asserts that the defendant acted without reasonable and probable cause, what exactly is the content of that assertion?"
Accordingly, the issue of reasonable and probable cause has both subjective and objective elements. As Harrison J in Beckett v State of New South Wales [2015] NSWSC 1017 said at [130] - [131]: "The subjective element In A v State of New South Wales, the High Court recognised that the precise nature of the subjective element will depend on the facts alleged. In the case "where the defendant prosecutor may be supposed to know where the truth lies", it might be proven "that the defendant did not believe the [plaintiff] to be guilty": at [69] … The objective element The objective element has received various formulations. Ultimately, the question is one of fact as to the reasonable sufficiency of the evidence. The objective element must be tested by facts and matters known to the defendant at or before the institution of the proceedings, not on the basis of material that came to light afterwards. As such it is an issue of fact in determining whether an objective person with reasonably sound judgment would have regarded the facts and materials then available as sufficient for establishing a reasonable and probable cause to institute the charges. Reasonable steps should be taken by the prosecutor to inform himself or herself of the true state of the case, not acting upon mere speculation…"
Further, the majority in A v State of New South Wales noted that the action for malicious prosecution has a "temporal dimension", stating at [59]: "To ask whether a prosecution was commenced or maintained without reasonable and probable cause directs attention to the state of affairs when the prosecution was commenced, or when the prosecutor (the defendant in the subsequent civil claim) is alleged to have maintained that prosecution. Moreover, it necessarily directs attention to what material the prosecutor had available for consideration when deciding whether to commence or maintain the prosecution, not whatever material may later have come to light."

Custody of a knife in a public place

The evidence establishes that at the time the charge was initiated: 1. At all times under police observation, Turner had custody of the bag containing the knife. 2. Shortly after stopping Turner and the plaintiff, Darnton took the bag from between Turner's legs. 3. Darnton found the knife under various items contained in the bag, including clothing. 4. In Darnton's presence the plaintiff demonstrated spontaneous surprise and shock upon the knife being found in the bag. 5. Shortly after the knife was found, in Darnton's presence, Turner admitted it belonged to him. 6. When interviewed by Darnton shortly thereafter, the plaintiff denied any knowledge of the knife.
Darnton was aware of what the element of 'custody' required (T389 L16 - 24): "Q. So, as at 30 December 2019, I suggest to you that you would have been very well aware that it's an element of that offence that a person have custody of the knife in question. A. Yes. Q. And you would have known, I suggest, that the element of custody required proof that Ms Madden had the immediate de facto control or charge of the knife; would you agree? A. Yes."
Darnton gave the following evidence, when challenged as to his reasonable belief in the case against the plaintiff for custody of a knife in a public place (T392 at [18] - [35]): "Q. At the time that you charged Ms Madden with custody of the knife in a public place, I suggest to you that you did not honestly believe in the case against her in that respect, did you? A. Yes, I did. Q. Even though Mr Turner was carrying her bag. Correct? A. I didn't realise that until sometime after, but I still believed that it was her bag, that everything in the bag was hers. Q. Even though Mr Turner had the bag between his legs when you took it off him? A. Like I said, it was just so - like it was just - it would have been just, oh mate, just putting that on the ground, it was so matter of fact, it was insignificant, I just didn't even realise it, that it wasn't Ms Madden carrying the handbag. Q. Even though Mr Turner said, "It's mine, chief", in relation to the knife? A. Yeah. As I previously stated, I didn't hear that at the time. I didn't respond to that. Unfortunately, body worn video picks up things that you don't pick up."
The facts known to Darnton at the time the prosecution was initiated were insufficient to support the allegation that the plaintiff had custody of the knife.
Despite Darnton's earlier acknowledgement that custody required immediate de facto control or charge of the knife, Darnton sought to defend his position in respect to the prosecution of the plaintiff for this offence (T480 at [31] - [47]): "Q. Just going back to when you reviewed the body-worn camera footage for the first time, just to be clear about it, that would have been in about January or February 2020? A. I'd say in January at some point. Q. When you sat down and had a look at the video footage, presumably at a police station, you saw from your body-worn camera footage, that Mr Turner was carrying the bag. Yes? A. Yes. Q. You saw that you had grabbed the bag from between Mr Turner's legs. A. Yes. Q. When you saw that you realised that Mr Turner had custody of the bag. A. I - yeah - I - he was in possession of it. Yes. I would say. Q. He was holding the bag. A. Yes. Q. And then he places the bag between his legs. A. Yes. Q. And then you see in the video footage, you searching through the bag; of course. A. Yes. Q. Then when you find the knife and call out "Breach. Breach." A. Yes. Q. And place Ms Madden under arrest. A. Yes. Q. You hear Mr Turner utter the words, "That's mine, Chief." A. Yes. Q. And those words you put in your stament, dated 29 June 2020. Correct? A. Yes. Q. But you had heard that when you watched the video footage in January or February 2020? A. Yes. Q. Whenever it was. At that point in time, you knew that the case in relation to the custody of the knife was utterly hopeless, didn't you? A. No. Q. So, you say that the case was still a good one even though you watched your body worn camera footage of Mr Turner carrying the bag containing the knife, correct? A. Yes. Q. Of him placing the bag between his legs? A. Yes. Q. Of him then saying, subsequently, "that's mine, chief", in respect of the knife? A. Yes. Q. Of him at some stage moving towards the bag when you're holding the bag? A. Yes. Q. And you still say that when you watch the video footage, you honestly believed in the case in respect of the custody of a knife charge? A. Well, I still believed it was Ms Madden's handbag. And I believed that the offence could still be proven in relation to that."
For the reasons enunciated, I do not accept the evidence of Darnton as credible, particularly his claim to have merely "forgotten" facts which were fundamentally exculpatory to the charge that the plaintiff had custody of a knife in a public place. Consistent with my earlier findings, I am satisfied that Darnton deliberately omitted from the Facts Sheet, those critical exculpatory facts. Even if the omission of such facts at the time the Facts Sheet was prepared was a mere oversight, which I do not accept, by January 2020 (within a month of the prosecution being instituted), Darnton reviewed the body worn camera footage and would have appreciated the fundamental difficulties in the prosecution of the plaintiff for this offence. Astonishingly Darnton was not prepared to acknowledge, having been seized with this information, that the maintenance of the prosecution for this offence could not be justified, claiming that this was only now with the benefit of hindsight. I do not accept this evidence as credible.
In the circumstances, I am satisfied that Darnton did not honestly believe in this charge.
In any event, I am satisfied that there was no sufficient basis for holding any such belief. The defendant contended that in applying the objective test, the Court would accept Darnton's evidence that he was unaware Turner had claimed the knife was his, or that he had taken the bag from Turner. For the reasons already stated, I do not accept Darnton's evidence in this respect.
Further, the defendant contended that it was open for Darnton to have reasonably believed the plaintiff had carried the knife in a public place, and that she had done so without reasonable excuse. The matters identified by the defendant in submissions either individually, or in combination, could not have objectively given rise to such a belief being reasonably held. The fact that the knife was found in a bag, which was a woman's bag, in circumstances where at all times the bag was in the custody of Turner is of no consequence. Even the plaintiff's later admission that the bag was hers must be considered in the context of the other evidence, including the plaintiff's expressed surprise and shock when it was discovered, and her subsequent denial of any knowledge of the knife. This denial must clearly be given some credibility in circumstances where the plaintiff was otherwise prepared to admit that the bag was hers, despite it not being in her custody or control at any time whilst under police observation. Her denials as to knowledge of the knife were not implausible, as contended by the defendant, in circumstances where it was patently clear from the body cam footage that the knife was located after removal of various items from the bag, including clothing. The suggestion put by Kelly to the plaintiff that she could not have missed the knife as it was on top of underwear, was not a fair description of the location of the knife within the bag. The fact that the plaintiff provided an account in respect to the clothes which might have lacked credibility, did not detract from her denial of any knowledge of the knife.

Goods in custody reasonably suspected of being stolen

The plaintiff was charged with the offence of having goods in custody reasonably suspected of being stolen in contravention of s 527C of the Crimes Act 1900. The section provides: "527C Persons unlawfully in possession of property (1) Any person who - (a) has any thing in his or her custody, (b) has any thing in the custody of another person, (c) has any thing in or on premises, whether belonging to or occupied by himself or herself or not, or whether that thing is there for his or her own use or the use of another, or (d) gives custody of any thing to a person who is not lawfully entitled to possession of the thing, which thing may be reasonably suspected of being stolen or otherwise unlawfully obtained, is liable on conviction before the Local Court - (a) if the thing is a motor vehicle or a motor vehicle part, or a vessel or a vessel part, to imprisonment for 1 year, or to a fine of 10 penalty units, or both, or (b) in the case of any other thing, to imprisonment for 6 months, or to a fine of 5 penalty units, or both. (1A) A prosecution for an offence under subsection (1) involving the giving of custody of a motor vehicle to a person who is not lawfully entitled to possession of the motor vehicle may be commenced at any time within 2 years after the date of commission of the offence. (2) It is a sufficient defence to a prosecution for an offence under subsection (1) if the defendant satisfies the court that he or she had no reasonable grounds for suspecting that the thing referred to in the charge was stolen or otherwise unlawfully obtained. (3) In this section - motor vehicle has the same meaning as it has in Division 5A of Part 4. premises includes any structure, building, vehicle, vessel or place, whether built on or not, and any part of any such structure, building, vehicle, vessel or place. vessel means a vessel within the meaning of the Marine Safety Act 1998."
Whilst the section creates four separate and distinct offences, the plaintiff was charged with having the clothing items in her custody, being the offence created by s 527C(1)(a). Accordingly, the issue was again one in relation to whether the plaintiff had the relevant items in her custody. Whilst there was no issue that the bag containing the relevant items was always in the custody of Turner, the plaintiff did make some admissions, of sorts, in respect to these items.
Whilst the plaintiff initially told Darnton that she did not know where the underwear came from, the plaintiff did acknowledge that she was aware the clothing was in her bag. Further, the plaintiff admitted that the underwear was obtained from a "shop", although she was not prepared to nominate the shop. To this extent, the evidence available to Darnton at the time the charge was laid was qualitatively different to the evidence available in respect to the custody of a knife in a public place. Relevantly, the plaintiff admitted knowledge of these items as being within the bag and, on at least one occasion, stated that they were purchased from a shop.
In the circumstances, I am not satisfied the plaintiff has discharged her evidentiary onus in establishing that the prosecution for this charge was brought or maintained without reasonable and probable cause.
However, a finding that the plaintiff has not made out her claim in respect to this charge does not prevent a finding of malicious prosecution in respect to any of the remaining charges: A v New South Wales at [96] per Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ.

Resist officer whilst in the execution of his or her duty

The plaintiff was charged with contravening s 58 of the Crimes Act in that the plaintiff resisted Senior Constables Burnell, Nicholls and Munt whilst executing their duty. The charge arose from the interaction between the plaintiff and Munt. Whilst the court attendance notice particularises resisting the three senior constables, the Facts Sheet recounts the interaction between the plaintiff and Munt commencing at the time of the alleged search, shortly after her arrest.
The plaintiff's submissions note that the resisting occurred after the plaintiff had been arrested. The Facts Sheet indicate the plaintiff was subjected to a "mandatory search" prior to being placed in the police vehicle. The plaintiff noted that the power to search a person who had been arrested was in accordance with s 27(1) of LEPRA, which empowers a police officer to search the person who has been arrested at any time or after the time of the arrest.
The plaintiff notes that the lawful exercise of a power in accordance with s 27 is predicated on the police having lawfully arrested the person and accordingly, Munt's exercise of the power was similarly dependent upon a lawful arrest by Darnton. The starting point is that an officer who unlawfully arrests a person is not acting in the execution of his or her duty: Coleman v Power and others (2004) 220 CLR 1; [2004] HCA 39 per McHugh J at [118]. His Honour cited with approval the finding of Hedigan J in Nguyen v Elliott (unreported 6 February 1995) that whilst a second officer, in coming to the aid of a fellow officer who had unlawfully arrested and accused, acted in good faith, his conduct was also unlawful, and was not acting in the execution of his duty. McHugh J observed that in Nguyen the court had relied upon the decision of the Full Court of the Supreme Court of Victoria in McLiney v Minister [1911] VLR 347 at 351 where Madden CJ said: "… it is an important principle of law that no man has the right to deprive another of his liberty except according to law, and if he does so the person so unlawfully deprived has the perfect right to use reasonable efforts to beat him off and get out of his custody"
For the reasons already given, I am satisfied that the arrest of the plaintiff for having custody of a knife in a public place was unlawful. Accordingly, the subsequent conduct of Munt, in searching the plaintiff and forcibly removing her necklace, following the arrest, was similarly unlawful. In the circumstances the plaintiff was resisting the three police who were acting unlawfully.
Applying the subjective test, I am satisfied that Darnton did not honestly believe the charge of resist officer in the execution of their duty in circumstances where I do not accept Darnton honestly believed in the offence for which the plaintiff was arrested, being custody of a knife in a public place. In any event, I am satisfied that Darnton had no sufficient basis for a belief in the charge of resist officer in the execution of their duty. Accordingly, I am satisfied that the prosecution brought and maintained in respect to the charges of custody of a knife in a public place, and resist officer in the execution of their duty were brought and maintained without reasonable and probable cause.

Malice

In A v New South Wales, the majority stated at [91] and [92]: "What is clear is that, to constitute malice, the dominant purpose of the prosecutor must be a purpose other than the proper invocation of the criminal law - an "illegitimate or oblique motive" (98). That improper purpose must be the sole or dominant purpose actuating the prosecutor (99)." "But because there is no limit to the kinds of other purposes that may move one person to prosecute another, malice can be defined only by a negative proposition: a purpose other than a proper purpose."
The majority further observed that proof of malice "will often be a matter of inference" although it cannot be mere "conjecture or suspicion": at [93]. It "focuses upon the dominant purpose of the prosecutor and requires the identification of a purpose other than the proper invocation of the criminal law": at [93].
Importantly, the majority further observed that at [90]: "…if the plaintiff demonstrates that a prosecution was launched on obviously insufficient material, the insufficiency of the material may support an inference of malice as well as demonstrate the absence of reasonable and probable cause."
In Trobridge v Hardy [1955] HCA 68; 94 CLR 147, Kitto J, in the context of a jury trial, said at [163]: "If they think it more probable than not that the prosecutor lacked the belief in the guilt of the accused, they are justified in taking the next step of concluding that the prosecution was not instituted from a genuine desire to serve the ends of justice and is not to be satisfactorily explained save on the supposition that the prosecutor was actuated by an indirect or improper motive. If so, they may legitimately make a finding of malice, even though they may not feel able to say precisely what the malicious motive was."
The following evidence is probative in determining this issue: 1. Darnton spoke to the plaintiff in a condescending and mocking manner. He teased the plaintiff in respect to her relationships, suggesting that she had "ditched" and "dropped like a hot potato" her previously known partner, Gaige. In the presence of the plaintiff, Darnton said to Turner, again in a mocking way, "you and Gaige are mates and now you've hooked up with his Mrs". 2. When Darnton found the knife, he announced in a grandiose tone "breach, breach". 3. In the absence of any enquiry at all, and knowing the bag had been taken from Turner's possession, Darnton immediately moved to arrest the plaintiff. This was in circumstances where the evidence equally, if not more likely, pointed towards a charge of custody of knife in a public place being laid against Turner. 4. Darnton informed the plaintiff that she is under arrest in a grandiose tone. Darnton gave the following evidence in this respect (T396 at 46 - T397 at 19): "Q. The time is 16:31:34. You say the words, "You are under arrest." You don't do so in a traditional fashion, do you? A. No. Q. You seem quite overjoyed that you're arresting the plaintiff. A. Not overjoyed, no. Q. But you use a mocking tone, don't you? A. Keeping it light-hearted. She's giving us banter. Well, sorry, not banter. She's giving us - there's a bit of backwards and forwards between both of us. Yes. Q. You say banter, but you're arresting someone. A. Keeping it in jest, I guess. Q. Telling someone that-- A. It was all in jest, I guess. HIS HONOUR Q. Telling someone they're under arrest, you're doing so in jest. Is that what you're saying? A. I guess so, your Honour. Yes." 1. Following the plaintiff's arrest Darnton says to the plaintiff "who has the last laugh now, hey?". When cross-examined on this comment Darnton said the following (T433 at 26 - 36): "Q. "Who has the last laugh, now, hey?" That was a spiteful and nasty comment to make, would you agree? A. It probably wasn't appropriate. I'd accept that. Q. Cause you're telling her that you're having the last laugh, you're getting her back for being cheeky with you. Correct? A. No - I, look it probably wasn't the most appropriate thing to say, considering the whole circumstances. All I would say is she was giving us cheek, I guess, a bit of - she was being belligerent, I made a comment back, yeah, it's probably, wasn't appropriate in the circumstances, I accept that." 1. During his exchange with the plaintiff, Darnton makes several unjustified and out of context references to his previous interaction with the plaintiff: "You're an interesting one, Ebonie, I'll give you that. Stealing a car in front of a police officer, that's a first for me" "Ebonie, behave all right, stop acting like an animal…" "Behave like an adult please, darling…" "You carried on like this last time" "… so, you were out for Christmas, were you?...Wow" (referencing the plaintiff's time spent in custody arising from Darnton's arrest of the plaintiff in September 2019) 1. Darnton deliberately omitted important exculpatory evidence relevant to the charges laid against the plaintiff in a fact sheet prepared within hours of the plaintiff's arrest. 2. The relevant omissions were done with the purpose of withholding material information from those who would determine whether the plaintiff should be granted bail.
I accept the plaintiff's submission that Darnton was motivated by a personal animus he had against the plaintiff. This was evident from the way Darnton interacted with the plaintiff on the day in question, his immediate decision to arrest the plaintiff without further enquiry, the mocking and grandiose tone when finding the knife and subsequently arresting the plaintiff. It was further supported by the way Darnton spoke to the plaintiff, unjustifiably accusing her of acting like an "animal" and addressing her in a condescending tone, adopting the phrase "darling". It is no coincidence that during these interactions, Darnton made repeated references to the previous incident in which the plaintiff had directed a degree of violence towards him. Darnton's subsequent conduct in deliberately omitting material exculpatory evidence from the Facts Sheet further supports the finding of malice.
As the plaintiff submitted: "An uncompromising prism into SC Darnton's attitude towards the plaintiff is available in the BWC footage, which should not be considered in isolation. Rather, it should follow directly into an analysis of the motive behind and manner of her prosecution…(Darnton) made demeaning observations as to her conduct of intimate relationships, erupted with joy that there had been a purported "breach", and mirthfully announced to a vulnerable young girl who had just been released from jail that "Youuuuuu are under arrest", SC Darnton promptly suffered a major episode of amnesia in relation to the key matters of importance concerning the case against her (or lack thereof) which he formalised by way of charges shortly thereafter. SC Darnton's purported amnesia only existed in relation to exculpatory matters, led to a Facts Sheet that was stacked against the plaintiff in a way that completely misrepresented the case, and was fortified by a direct lie at page 4 of the Facts Sheet in the assertion that the plaintiff was unable to articulate a defence to the knife charge. The cumulative effect of SC Darnton's conduct leads, at each turn, to the conclusion that he conducted himself maliciously in relation to the plaintiff at all material times…. put simply, the proper invocation of the criminal law was pushed aside by the Senior Constable's personal animus. The cumulative effect of Darnton's conduct leads, at each turn, to the conclusion that he conducted himself maliciously in relation to the plaintiff at all times"
I accept this submission.
The evidence supporting the prosecution of the plaintiff for custody of a knife in a public place, being the offence for which she was arrested, was clearly insufficient to support such a prosecution for the reasons already discussed. This further underpins a finding that Darnton commenced and pursued the prosecution for a purpose other than a proper purpose (the proper invocation of the criminal law). In all the circumstances, I am satisfied that the plaintiff was prosecuted maliciously.

General Damages for false imprisonment

Whilst the plaintiff notes that damages for the tort of false imprisonment compensate for the loss of liberty, as well as the loss of dignity and reputation, she conceded that no component of the damages claimed was for reputational loss.
In Ruddock v Taylor [2003] NSWCA 262 Spiegelman CJ observed at [49]: "Damages for false imprisonment cannot be computed on the basis that there is some kind of applicable daily rate. A substantial proportion of the ultimate award must be given for what has been described as "the initial shock of being arrested"."
Counsel for the plaintiff quite properly conceded at the commencement of the hearing that the initial shock for the plaintiff would not be as significant as someone who had never been arrested before.
Damages for false imprisonment are to be assessed for the period from 4:30 PM on 30 December 2019 until remanded in custody by Price LCM on 31 December 2019. It is unclear from the Local Court records as to the precise time on 31 December 2019 that bail was refused, and the plaintiff was remanded in custody. However, the difference of several hours will not significantly impact on the assessment of damages for false imprisonment in circumstances where the damages are relatively modest.
The plaintiff claims the sum of $15,000 noting Taylor SC DCJ in Attalla v State of NSW [2018] NSWDC 190 awarded the plaintiff general damages of $15,000 for a false imprisonment which lasted under an hour. The defendant contended that an appropriate award was $2000, given the award of damages by RS Hulme AJ in Fred Saad and Ors v State of New South Wales [2016] NSWSC 1247 in circumstances where the plaintiff had been arrested previously and there was unlikely to be any claim for reputational damage.
In all the circumstances and taking into account the period during which the plaintiff was falsely imprisoned, her previous record and the absence for any claim of reputational damages, I assess general damages for the false imprisonment at $8,000.

General damages for battery

The plaintiff claims the sum of $20,000 arising from the agreed incidences which gave rise to the battery. The defendant contends that an appropriate assessment is $4000. The plaintiff was subjected to the initial battery arising from the application of handcuffs and the pat search. There is also the incident, captured on the body cam footage, when Munt places her hands on the plaintiff's shoulders attempting to force her to the ground. However, the most significant aspect of the battery was when the plaintiff was removed from the police vehicle and forced to the ground and the necklace removed. The plaintiff described this incident in the following terms: "…and I was just sitting there and then she got - notified the two - other two, other officers beside her two - and they came and got me out of the paddy wagon and laid me on the ground and two of them held me down while she took the necklace off my neck."
At the time this occurred the plaintiff was wearing handcuffs. When asked how she felt during this incident the plaintiff said: "I felt really upset, I didn't like it. Just I didn't like it and was really upset."
I do not accept, given the circumstances in which it occurred, that the so-called "strip search" constituted a battery.
Taking into account all the incidences giving rise to the claim for battery, I assess general damages in the sum of $15,000.

Aggravated and exemplary damages for false imprisonment and battery

The grounds for the award of aggravated and exemplary damages, and the distinction between the two, were discussed by the Court of Appeal in State of New South Wales v Abed (2014) 246 A Crim Report 549 at [230] - [232] as follows: "The principles upon which aggravated and exemplary damages are awarded are well established and were not in issue on the appeal. The principles were summarised by Sackville AJA (Macfarlan and Whealy JJA agreeing) in New South Wales v Zreika [2012] NSWCA 37 at [60]-[64]. It is necessary to keep in mind the conceptual distinction between the compensatory nature of aggravated damages and the punitive and deterrent nature of exemplary damages. The assessment of aggravated damages is made from the point of view of the plaintiff, whereas in the case of exemplary damages the focus is on the conduct of the defendant. Aggravated damages are compensatory in nature, being awarded for injury to the plaintiff's feelings caused by insult, humiliation and the like: Lamb v Cotogno (1987) 164 CLR 1 at 8. Aggravated damages are given to compensate the plaintiff when the harm done to him or her by a wrongful act was aggravated by the manner in which the act was done: Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 149 (Windeyer J). Exemplary damages go beyond compensation and are awarded as a punishment to the guilty, to deter similar conduct in the future, and to reflect "detestation" for the action: Lamb v Cotogno at 8. Generally speaking, what is required for an award is "conscious wrongdoing in contumelious disregard of another's rights": Gray v Motor Accident Commission (1998) 196 CLR 1 at [14]."
The defendant contends that in awarding aggravated or exemplary damages, the court should have regard to "the plaintiff's own disentitling conduct", citing Whitbread v Rail Corporation New South Wales [2011] NSWCA 130.
I accept the plaintiff is entitled to an award for aggravated damages caused by the assault and humiliation, particularly the circumstances in which it occurred. The police directed a great deal of animosity towards the plaintiff, as well as speaking to her in a condescending and demeaning way. The subsequent treatment of the plaintiff by Munt during the forcible removal of the necklace further gives rise to an award for aggravated damages. I do not accept the defendant's contention that the plaintiff engaged in disentitling conduct.
I award the plaintiff $10,000 for aggravated damages in respect to the false imprisonment and an additional $10,000 for aggravated damage arising from the assault and battery.
In respect to exemplary damages, it is important that any such award reflects the disapproval of the court in the conduct of the police involved and to deter such conduct in the future. It is readily apparent that the detention and search of the plaintiff was in direct response to the comments made by Turner and the plaintiff to Munt. The later "mouthy" comment by Munt, in the context of the search, and the "last laugh" comment by Darnton, self-evidently demonstrates that the police motivation in detaining and searching the plaintiff was improper, and entirely inappropriate.
As part of their duties, police are interacting with members of the public on a daily basis. It is important that police not abuse the special powers vested in them, involving the deprivation of a citizen's liberty, merely in response to comments made by members of the public such as those which occurred in the present case. The award of exemplary damages reflects the court's detestation and abhorrence for the police conduct. It is intended, in part, to deter police in the future engaging in such conduct. It is in these circumstances that it is appropriate that an award of exemplary damages is made. I award the plaintiff $20,000 by way of exemplary damages for false imprisonment and a further $20,000 in respect to the battery.

General damages for malicious prosecution

The plaintiff claims damages for her period of incarceration from 31 December 2019, when bail was refused until her release by the State Parole Authority on 17 June 2020.
The defendant contends that there would be no award for damages for this period. First, it is contended that no damages would be awarded for "normative considerations" in that the plaintiff was at all material times serving a sentence for criminal offences. Second, on a causation analysis the charges laid by Darnton were not the reason for the plaintiff being detained and/or that the plaintiff's time in custody was not the intended nor the natural and probable consequence of the laying of the charges.
The defendant's contentions arise from the fact that the plaintiff was on parole at the time of her arrest. In this respect the plaintiff had been sentenced to an aggregate term of imprisonment of three years from 9 May 2018 expiring on 8 May 2021, with a non-parole period of one year six months which expired on 8 November 2019. Accordingly, at the time the plaintiff was arrested she had been released on parole.
On 2 January 2020 a breach of parole report was completed recommending the plaintiff's parole be revoked. The breach of parole report noted that the plaintiff was in breach of her parole due to the failure to comply with conditions of her parole that she be of good behaviour, not commit any offences and adapt to a normal community life. It was noted that the plaintiff had been bail refused in respect of the three offences the subject of the proceedings. The breach of parole report made the following recommendation: "It is of concern to Community Corrections that Ms Madden has reoffended in the short period she has been subject to parole supervision. Due to Ms Madden being bail refused for her new offences, and her history of significant violence, revocation is recommended." (Emphasis added)
On 9 June 2020 the plaintiff was granted bail in the Local Court following a full service of the brief, and the Court having assessed the strength of the prosecution case. On 16 June 2020, the State Parole Authority rescinded the earlier revocation of the plaintiff's parole, and ordered the plaintiff's release as soon as possible, but no later than 4pm on 17 June 2020. The reason for the rescission was recorded as follows: "1. The offender has been granted bail on the outstanding charges. 2. The young age of offender." (Emphasis added)
The plaintiff contended that she was entitled to damages for loss of liberty "as a natural and probable consequence" of her malicious prosecution.
The defendant conceded in submissions that ultimately the predominant cause of the plaintiff's parole being revoked were the charges (plural) arising from the prosecution. The defendant alternatively contended that should the Court find that the plaintiff was maliciously prosecuted for one, or even two of the charges, but not all three, it could not follow that the plaintiff should be compensated for the period spent in custody.
A reading of the breach of parole report and subsequent reasons for recission of the parole lead to the finding that the plaintiff's parole was revoked as a consequence of the plaintiff being bail refused on the three charges the subject of the prosecution.
The offence to which the Court has found that the plaintiff was not maliciously prosecuted is the lesser of the three offences. The offence of custody of knife in a public place carried a maximum term of imprisonment of two years whilst the resist officer carried a maximum period of imprisonment of five years. This is to be contrasted with the goods in custody charge carrying a maximum term of imprisonment of six months.
I am satisfied that the natural and probable consequence of the plaintiff's malicious prosecution for the offences of custody of knife in a public place and resist officer was a period of incarceration as a result of the plaintiff being bail refused and having her parole later revoked. It is readily apparent that whilst the laying of charges was a consideration of the parole authority, the predominant reason for the plaintiff's revocation of parole, and the subsequent rescission of that revocation, was the plaintiff being bail refused.
The plaintiff contends that general damages would be assessed in the sum of $210,000, noting the assessment of damages by Harrison J in Beckett. The defendant contends, adopting the approach in Hrdavec v State of New South Wales (2021) NSWSC 560 and Edwards v State of New South Wales (2021) NSWSC 181, that an appropriate assessment would $170,000. However, the defendant contends that this should be further reduced, taking into account that the plaintiff was already on conditional liberty on parole, it was not the plaintiff's first time in prison, no claim was made for reputational or fame damages and for the entire period in any event, the plaintiff was serving a form of criminal sentence, albeit on parole.
The plaintiff concedes that the damages may be "slightly" reduced on account of the fact that the plaintiff was on conditional liberty based on the conditions set by the parole authority.
I assess general damages in the sum of $150,000.

Exemplary damages for malicious prosecution

The plaintiff further claims exemplary damages in the sum of $100,000. The defendant makes no further submission in respect to exemplary damages. I am satisfied, given the conduct of Darnton in the bringing and maintaining the prosecution, it is appropriate exemplary damages be awarded. In support of the claim for exemplary damages, referencing the contents of the Facts Sheet, leading to the plaintiff's bail refusal, the plaintiff submitted as follows: "The threat to the administration of justice of police officers presenting grossly inaccurate recitations of a criminal case, particularly in relation to vulnerable persons who are represented on the day of their arrest in busy courts by overstretched lawyers at Legal Aid and the Aboriginal Legal Service, is difficult to overstate. The functionality of s 31 of the Bail Act 2013 (NSW) which permits such documents to be tendered on the basis that they are "credible or trustworthy" is corrosively undermined by such conduct in a systemic way. This is presumably why the relevant training materials used by the NSW Police declare that "importance [of a Facts Sheet] in communicating to the court the details of the police allegations against an accused cannot be overstated" (Ex P32)."
To this should be added that the training materials further state: "A facts sheet should therefore be an informative, accurate, concise and logical document."
I accept this submission.
Further, it is apparent that Darnton adopted, as the plaintiff submitted, "a contemptuous attitude towards the process of the Local Court".
In all the circumstances, I assess exemplary damages in the sum of $75,000.

Damages summary Head of damage Damages assessed General damages for false imprisonment $8,000 General damages for battery $15,000 Aggravated damages for false imprisonment $10,000 Aggravated damages for assault and battery $10,000 Exemplary damages for false imprisonment $20,000 Exemplary damages for battery $20,000 General damages for malicious prosecution $150,000 Exemplary damages for malicious prosecution $75,000 Total $308,000

I attribute $200,000 of this sum to the past, and in accordance with MBP (SA) Pty Limited v Gogic (1991) 171 CLR 57, I calculate interest at 2% per annum for three years from 30 December 2019 (rounding up).
The total assessed amount, including interest, is $320,000.

Orders

I make the following orders: 1. Verdict and judgment for the plaintiff in the sum of $320,000. 2. The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise ordered. 3. The exhibits may be returned. 4. Liberty to apply on 7 days notice if further orders are required.

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: 16 December 2022

Legal Profession Act 2004(NSW)ss 337(1), 338(1)

Crimes Act 1900(NSW)ss 58, 527C

February 1995) O'Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286 R v Rondo [2001] NSWCCA 540 Ruddock v Taylor [2003] NSWCA 262 Smith v Corrective Services Commission (NSW) [1980] HCA 49; (1980) 147 CLR 134 (at 139) State of New South Wales v Corbett [2007] HCA 32; (2007) 230 CLR 606 State of New South Wales v Ibbett [2005] NSWCA 445 State of New South Wales v Le [2017] NSWCA 290 Trobridge v Hardy [1955] HCA 68; 94 CLR 147 Whitbread v Rail Corporation New South Wales [2011] NSWCA 130 White v Johnson [2015] NSWCA 18; 87 NSWLR 779 Williams v The Queen [1986] HCA 88; (1986) 161 CLR 278 Zaravinos v State of NSW (2004) 62 NSWLR 58 Category: Principal judgment Parties: Ebonie Madden (Plaintiff) The State of New South Wales (Defendant) Representation: Counsel: Mr A Canceri and Mr S Boland (Plaintiff) Mr R Coffey (Defendant)

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