Moses v State of New South Wales

CITATION: Moses v State of New South Wales (No. 3) [2010] NSWDC 243

HEARING DATE(S): 22 - 25 February, 6 May, 28 May, 3 June, 13 August, 9 September, 16 September (written submissions), 17 September 2010 (written submissions)

(1) Judgment for the defendant for the defamation claim brought by the first plaintiff. (2) Judgment for the defendant for the defamation claim brought by the second plaintiff. (3) Judgment for the first plaintiff for the assault claim against the defendant in the sum of $10,000. (4) Judgment for the defendant for the assault claim brought by the second plaintiff. (5) Judgment for the first plaintiff for the false imprisonment claim against the defendant in the sum of $60,000. DECISION: (6) Judgment for the second plaintiff for the false imprisonment claim against the defendant in the sum of $60,000. (7) Judgment for the first plaintiff for the claim for malicious prosecution against the defendant in the sum of $50,000. (8) Liberty to the parties to bring in short minutes of order reflecting the agreed interest calculation in relation to the claims for general and aggravated compensatory damages. (9) Costs reserved. (10) Liberty to apply concerning interest and costs. (11) Exhibits retained for 28 days.

CATCHWORDS: TORT - defamation, assault, wrongful arrest and false imprisonment, malicious prosecution - police, in undercover operation to catch an offender carrying out a series of handbag robberies, arrest the plaintiffs, identifying them because one of them looks similar and is wearing the same jumper as that worn by the offender - whether reasonable force used to apprehend the plaintiffs - whether the matters complained of were published during their arrest - whether these publications were made on an occasion of qualified privilege at common law or pursuant to s 30 Defamation Act 2005 - held that the occasion was privileged - whether the occasion of privilege was lost by reason of malice - held malice not established - whether the circumstances of the arrest and continued detention at the police station amounted to false imprisonment - whether the continuation of the charges against the first plaintiff after further robberies and the arrest of another person for some of the handbag robberies amounted to malicious prosecution - whether lack of reasonable and probable cause established - whether malice established - damages - claim for general, aggravated and exemplary damages

Crimes Act 1900 (NSW), ss 94 and 546B Defamation Act 1974 (NSW), ss 13 and 17 LEGISLATION CITED: Defamation Act 2005 (NSW), ss 26, 30 and 33 Evidence Act 1995 (NSW), s 140 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 99, 201, 230 and 231

A v State of New South Wales (2007) 230 CLR 500; (2007) 233 ALR 584; (2007) 81 ALJR 763; (2008) Aust Contract R ¶90-280; (2007) Aust Torts Reports 81-878; [2007] HCA 10 Alderman v French (1823) 18 Mass R 1 AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; (2009) 258 ALR 14; (2009) 83 ALJR 951; [2009] HCA 27 Bashford v Information Australia (2004) 218 CLR 366 Bechara v Bonacorso (No 2) [2010] NSWDC 42 Bennette v Cohen [2009] NSWCA 60 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] ALR 334; (1938) 12 ALJR 100 British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524 Casey v Australian Broadcasting Commission [1981] 1 NSWLR 305 Corby v Channel Seven Sydney Pty Ltd (Supreme Court of NSW, Nicholas J, 20 February 2008) Coyle v The State of New South Wales [2006] NSWCA 95 Dallison v Caffery [1965] 1 QB 348 Duckworth v First National Bank 254 SC 563, 176 SE 2d 568 Dumbell v Roberts [1944] 1 All ER 326 Frost v State of New South Wales [2002] NSWCA 226 Griffith v Australian Broadcasting Corporation [2010] NSWCA 257 Gross v Weston [2007] NSWCA 279 Hackett v Tierney [1952] IrR 185 Hage-Ali v The State of New South Wales [2009] NSWDC 266 Hussein v Chong Fook Kam [1970] AC 942 John Fairfax Publications Pty Ltd v Obeid (2005) 64 NSWLR 485; [2005] NSWCA 60 Kermode v Fairfax Media Publications Pty Ltd [2010] NSWSC 852 Laing v Beardsmore [1968] 2 NSWR 673 McArdle v Egan (1934) LT 412 McConville v Credit Union Services Corporation (Australia) Ltd (Supreme Court of New South Wales, Levine J, 29 August 1997, unreported) McFadzean v Construction, Forestry, Mining and Energy Union (2007) 20 VR 250; [2007] VSCA 289 CASES CITED: Mirror Newspapers v Harrison (1982) 149 CLR 293 Moses v State of New South Wales (No. 2) [2009] NSWDC 99 New South Wales v Ibbett (2006) 229 CLR 638 O'Hanlon v Electricity Supply Board [1969] IrR 75 at 96 Papaconstuntinos v Holmes à Court [2009] NSWSC 903 Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266 R v Rondo [2001] NSWCCA 540 Reading v Australian Broadcasting Corporation [2010] NSWCA 257 Rixon v Star City Pty Ltd (formerly Sydney Harbour Casino Pty Ltd) (2001) 53 NSWLR 98; [2001] NSWCA 265 Roberts v Bass (2002) 212 CLR 1 Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurstville) Pty Ltd [1971] 1 NSWLR 472 Rowe v Kemper [2009] Qd R 1 Sanders v Anderson [1968] NZLR 172 Snedden v Nationwide News Pty Ltd [2009] NSWSC 1446 Spicer v Holt [1977] AC 987 State of New South Wales v Hathaway [2010] NSWCA 184 State of New South Wales v Landini [2010] NSWCA 157 State of Victoria & Ors v Richards [2010] VSCA 113 Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59 Trantum v McDowell [2007] NSWCA 138 Vignoli v Sydney Harbour Casino [1999] NSWSC 1113 Walker v Hamm [2008] VSC 596 White v South Australia [2010] SASC 95 Whittaker & Anor v Child Support Registrar & Anor [2010] 264 ALR 473 Wilson v State of New South Wales (2001) 53 NSWLR 407 Woodley v Boyd [2001] NSWCA 35 Zaravinos v New South Wales [2004] NSWCA 320

First Plaintiff: David Moses PARTIES: Second Plaintiff: Tangiwai Kawenga Defendant: State of New South Wales

COUNSEL: Plaintiffs: Mr C A Evatt / Ms L Evans Defendant: Mr M Neil QC / Mr D Caspersonn

SOLICITORS: Plaintiffs: Friend & Co Lawyers Defendant: Henry Davis York Lawyers

A INTRODUCTION - THE EVIDENCE [1] - [58] B THE CLAIMS FOR DEFAMATION [59] - [136] C THE CLAIMS FOR ASSAULT [137] - [170] D THE CLAIMS FOR WRONGFUL ARREST AND FALSE IMPRISONMENT [171] - [240] E THE CLAIM FOR MALICIOUS PROSECUTION BROUGHT BY MR MOSES [241] - [282] F DAMAGES [283] - [334]

[1] The plaintiffs bring proceedings for defamation, wrongful arrest and false imprisonment and assault and, in the case of Mr Moses (the first plaintiff), malicious prosecution arising from the circumstances in which each of them was arrested by officers and constables of the New South Wales Police Force in George Street, Waterloo on 5 September 2008.

[2] Each of the plaintiffs brings a claim for defamation for words spoken on 5 September 2008 by officers and constables of the NSW Police Force at George Street, Waterloo. The first plaintiff claims these persons published the following slander of and concerning him: "You're robbing women", "You're a thief", "You have stolen from women"

[3] The imputations pleaded are:- (a) [Imputation deleted: Moses v State of New South Wales (No. 2) [2009] NSWDC 99]

[4] The second plaintiff pleads the following publication occurred on the same day: "You're under arrest - you're a piece of shit - you're fucked - you're going to gaol"

[5] The imputations pleaded to arise are: (a) The second plaintiff is a criminal.

(c) [Imputation deleted: Moses v State of New South Wales (No. 2) [2009] NSWDC 99]

[6] The defendant pleaded the following defences to the claim for defamation: (a) qualified privilege at common law;

(b) a statutory defence of qualified privilege pursuant to s 30 Defamation Act 2005 (NSW);

(c) a defence of unlikelihood of harm pursuant to s 33 Defamation Act 2005 (NSW); and

(d) in the case of Mr Moses, a defence of contextual justification pursuant to s 26 Defamation Act 2005 (NSW);

(e) a claim of a defence of "coherence" was raised during submissions but was never pleaded or particularised.

[7] The plaintiffs also bring claims for: (a) assault and battery (paragraphs 6 and 6E of the second further amended statement of claim) ("the assault claim");

(b) wrongful arrest and false imprisonment (paragraphs 5 and 6D of the second further amended statement of claim); and

(c) in the case of the first defendant only, a claim for malicious prosecution arising out of the circumstances in which he was charged with the following offences:

(i) stealing from a person ( Crimes Act 1900 (NSW) s 94);

(ii) intention to commit indictable offence having previous conviction ( Crimes Act 1900 (NSW) s 546B).

[8] The particulars of lack of reasonable and probable cause are: (a) No proper inquiries as to whether the first plaintiff had a previous conviction, was intending to commit an indictable offence or stole from the person were made by the police officers;

(b) Had the police officers made the most cursory or elementary inquiry they would have ascertained that they had arrested, imprisoned and charged the wrong person and that the first plaintiff was innocent of the charges and of any offence;

(c) The police officers ignored and would not listen to the first plaintiff's denials that he had committed criminal offences or was an innocent person;

(d) No actions of the first plaintiff could have caused the police to suspect the first plaintiff had committed the offences for which he was charged and his arrest, imprisonment and charges were due to prejudice and lack of care by the police officers.

[9] Although the hearing proceeded expeditiously, there were delays during submissions for the following reasons: (a) An unpleaded defence is raised in submissions:

Although never referred to during the trial, the defendant raised for the first time, in submissions, a defence based on "coherence" principles. This was initially submitted to be a basis upon which the court would hold that the publication could not be defamatory, as words spoken by police officers are not capable of conveying imputations of guilt. The basis of the defence was that words of arrest and caution are required by law to be spoken by police officers.

After I directed the defendant to provide further submissions, this claim was widened to include a claim for "coherence" as an absolute defence to the defamation claim in its interaction with the defences of qualified privilege at common law and/or pursuant to s 30 and/or as part of the defence of unlikelihood of harm: Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59. The Sullivan v Moody claim is that where police are required by law to make a publication under s 201 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (hereafter referred to as "LEPRA") no claim for defamation, injurious falsehood or other action is maintainable (written submissions 17 May). However, no amended defence setting out this complete defence was ever provided.

The "coherence" defence was later reduced, in oral submissions on 13 August 2010, to a claim that the "coherence" argument is something to be "taken into account" in the determination of the qualified privilege defences. No explanation has been provided for the lateness of this defence being raised: AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; (2009) 258 ALR 14; (2009) 83 ALJR 951; [2009] HCA 27.

(b) The defendant's application during submissions to reopen the case

The identifiability of Mr Moses through his distinctive blue "hoody" with a white circular pattern, descriptions of the blue hoody in other offences and Mr Moses' facial similarity to the offender charged with bag snatches were important issues. During the cross-examination Detective Constable Porter produced, on his mobile phone, Mr Moses' photographs on the night of the arrest and a summary he prepared of the other offences, which led to the production of the full reports for each of these offences.

Although the late production of this material could be dealt with in cross-examination, problems arose when the defendant, during submissions, sought to reopen the case to tender photographs of the distinctive blue hooded jumper Mr Moses was wearing. The plaintiff complained that these had not been discovered and could not be put to the witnesses. It later transpired that a CD containing the photographs had been listed in the discovery documents but that "inadvertently the CD containing the photographs of the blue jumper was not included with the copies of the defendant's discovery documents" sent to the plaintiff's solicitors (letter 18 March 2009). Statements to the contrary made by Mr Neil QC in court were withdrawn.

It would be a counsel of perfection to require lawyers to comply meticulously with their obligation to discover and provide copies of documents and to penalise them, and their clients, when they fail. Courts should endeavour to resolve the disputed issues of fact between the parties rather than allow failures in procedural steps to distract attention from the main issues: see the cases discussed in British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524 at [136] - [173]. The bringing of this application caused some delay in the submissions stage of the trial, but as a result of the sensible approach taken by the plaintiffs' legal advisers was able to be resolved once the explanation for the oversight became clear.

As a result of the raising of a new defence and the application to reopen, it was necessary to adjourn the submissions part-heard. Unfortunately, due to two other trials running over their time estimates, the adjourned dates became unavailable. This is due to court resources and management and not due to any fault or error by the parties.

(d) Application by the plaintiff for time to make further submissions

After the time submissions were being made, the New South Wales Supreme Court and High Court handed down decisions of significance concerning the defence of qualified privilege at common law. On 23 July 2010 counsel for the plaintiff wrote to the court asking for judgment not to be handed down until he had had an opportunity to consider these decisions. Further written submissions were received on 16 and 17 September 2010. Since that time the New South Wales Court of Appeal has handed down Griffith v Australian Broadcasting Corporation [2010] NSWCA 257 concerning malice and s 30 but I consider it preferable for me to hand down my judgment rather than await further submissions from the parties.

Similarly, on 4 August 2010 Simpson J handed down Kermode v Fairfax Media Publications Pty Ltd [2010] NSWSC 852, a decision inconsistent with Corby v Channel Seven Sydney Pty Ltd (Supreme Court of NSW, Nicholas J, 20 February 2008). The ratio decidendi of Kermode is that a defence of contextual truth based upon the pleading back of one of a plaintiff's imputations is not available by reason of the terms of s 26 Defamation Act 2005. That would mean that the defence under s 26 as pleaded by the defendant in these proceedings is not available. The defendant has not addressed this problem in submissions. Rather than delay the handing down of judgment in these proceedings any further, I have prepared my judgment on this defence as if it were still available, as I have found in favour of the defendant on the defences of qualified privilege at common law and pursuant to s 30 Defamation Act 2005 (NSW).

[10] The circumstances surrounding the arrest of the plaintiffs, the subsequent charging of Mr Moses, and those charges being dropped, may be summarised as follows. Police were carrying out a covert operation on 5 September 2008 to catch an offender who had been snatching women's handbags from the seats of cars which were stopped in peak hour traffic along the busy McEvoy Street/Botany Street/Elizabeth Street roads. There had been descriptions of the suspect by the victims and the Operational Orders of 1 September 2008 set out a procedure for the offender to be caught in the act, as well as identifying by name certain possible offenders. This list did not include either of the plaintiffs. On 4 September 2008, two police officers spotted the offender committing such a robbery and gave chase but he escaped. The next night, police were waiting again. When he saw Mr Moses walking down the street, one of the police officers called to the others that Mr Moses was recognised by him as the offender from the day before, and he was seized and arrested. Mr Kawenga, who was with Mr Moses, was also seized and arrested.

[11] Mr Moses and Mr Kawenga were conveyed to the police station and a record of interview carried out. Mr Kawenga was released without charge but Mr Moses was charged with two offences, one was the bag snatch carried out on 4 September 2008 and the other related to his conduct on 5 September 2008.

[12] The bag snatches continued and police came to realise from the description of the offender that Mr Moses may not have been the culprit. The police carried out a second undercover operation carried out on 23 September 2008 and the offender, who turned out to be a person named in the first Operational Orders of 1 September, was apprehended committing a robbery. On 12 November 2008 the charges against Mr Moses were withdrawn.

[13] The plaintiffs gave the following description of their apprehension by police officers on the day in question.

[14] The first plaintiff, David Moses (hereafter referred to as "Mr Moses"), a young man aged 22 at the time of the incident, had grown up in the Waterloo area, living with his parents in the family home in George Street, Waterloo from the age of five until he moved out of home some months before this incident. His father, Abraham Moses, ran a small business and his mother, Evelyn Moses, was a hairdresser.

[15] I should note that Mr Moses' physical appearance is central to the case, as the person the police were seeking on the night of his arrest was someone who had been seen committing these crimes, not only by a number of victims but by two police officers, Detective Constable Porter and Detective Constable O'Brien. The police on undercover duty had information about this offender's height, apparent age and apparent racial background (Aboriginal); Detective Acting Sergeant Buttel, the officer who planned the undercover operation had, with this information, identified persons known to the police who could be the offender, although that list has since been lost. Mr Moses was not one of these persons, nor was he Aboriginal. Mr Moses' father Abraham is Jewish and his mother Evelyn is from the Philippines.

[16] Photographs of Mr Haines, the offender who did in fact commit many, if not most, of these offences, have been tendered, and while I note the submissions of the plaintiffs that Mr Haines is much older, much taller, from a different racial background and has a receding hairline, there is some facial similarity to Mr Moses.

[17] Late in the afternoon on 5 September 2008, the second plaintiff (to whom I shall hereafter refer as "Mr Kawenga"), a 23 year old warehouse storeman working for Visitec in Alexandria, finished work at about 5.00 pm and walked to McEvoy Street with another Visitec employee to meet Mr Moses, with whom he was friendly. Mr Moses was to come by car, so Mr Kawenga went to meet him on foot (T 15-16) and was looking out for his car in the street. It had started to rain and he did not have an umbrella so he had a brown jacket "hoody" with the hood over his head to protect himself from the rain.

[18] When Mr Moses arrived in his car, Mr Kawenga got into the car and they drove about 10 metres up into McEvoy Street, when Mr Moses said: "You know, I've got to call my Dad" (T 17-18). Mr Moses' father and mother live in the block of flats opposite, but the entrance was through a security door and Mr Moses did not have the key. He stopped the car, parked it and then got out to telephone his father to see if he was at home, since someone in the household would have to press the intercom to let him in. Mr Moses got out of the car and started walking down to where the public telephone was.

[19] According to Mr Kawenga, the first he knew of any problem was when he heard Mr Moses call out "Help, help" a few seconds later. He got out of the car and ran down to see "four people on him" (T 18). He noticed that one of them was a woman and she was "on his legs" and the others were "trying to restrain him, and they were hitting him in the head, in the side and in the back" (T 18-19). Mr Moses was "just on the ground, pinned to the ground" on a patch of grass or dirt, face down (T 19). These persons were "just punching him in the head and, yeah, punching him in the back and all that, and then - yeah that kind of thing" (T 19). He screamed out at them to "get off" and they looked at him and told Mr Moses: "Don't move" and "You're in trouble mate".

[20] Mr Kawenga said "Then they came after me, so I ran" (T 19). He said two persons came after him, in addition to the four who were on top of Mr Moses, and that these persons were, like him, wearing "hoodies". They chased him for about 10 metres. Mr Kawenga had thought they were junkies, as they didn't look like police officers, until one of them called out: "Stop, police". He turned around and said: "You're not police" but started slowing down. He then saw the police radio and realised they were police. He said the police came up to him and one of them said: "Yeah, you're fucked, you're going to gaol". Another officer said: "You're fucked, you're going to gaol for six months". To which he replied: "This is fucked. I haven't done anything wrong". One of the persons came up and kneed him in the face and said "Don't swear. Have some fucking respect, don't swear" (T 21).

[21] Mr Kawenga said that these statements were said to him in a loud voice and that "you would probably have been able to hear it down the street" (T 21). There were people driving in the vicinity. Mr Kawenga was handcuffed, placed in a police paddy wagon and taken to the police station.

[22] Mr Moses gave a similar description of having arranged to meet Mr Kawenga in George Street, driving off, deciding to telephone his father and returning to park his car, and then being tackled and assaulted by a group of persons (T 72-73). He said (T 74): "Just, as soon as they saw me, they ran after me and tackled me. Didn't say they were police or anything."

[23] He said that in addition to kicking and punching him they put a set of keys to the side of his head, which he thought was a knife. He said the police said to him while he was on the ground "You fucking cunt. Stop. Stop. Where are you fucking going? You're robbing women. You're a thief. You rob from women" (T 74).

[24] He observed that one of the men was older and was wearing glasses and he said: "I'm innocent. I need my lawyer", to which the police officer replied: "If you're innocent, you don't need a lawyer". It was only at the end of the circumstances in which he was tackled to the ground that these persons "finally said they were police" (T 74). He said the police spoke to him in an aggressive manner, screaming loudly.

[25] Mr Moses said: "I was struggling with them and they said they were police and I stopped struggling" (T 84). He was then handcuffed behind his back. His face rolled at some stage against the mud or the ground (T 108) and he felt his face against the ground (T 109). The police then said to him: "You're under arrest for stealing a lady's handbag yesterday", after they restrained him (T 111). Mr Moses was then taken in handcuffs to the paddy wagon and conveyed to the police station.

[26] The police who were present were all in street clothes, as this was an undercover investigation into a series of bagsnatches from women in motor vehicles. According to the Operational Orders for this investigation (the text of which is set out in full elsewhere in this judgment) the officers in charge were Detective Acting Sergeant Stephen Buttel, Detective Senior Constable Jess Porter and Plain Clothes Senior Constable Peter O'Brien. Other police officers (Acting Sergeant Bradley Russell, Constable Knight, Constable Brogan, Constable Mabberley, Constable Quinn and Constable Casey) were assigned to assist. They were all dressed in casual clothes so that they could mingle with members of the public. As there was some drizzling rain, several of them were wearing "hoodies" similar in style to those worn by the plaintiffs.

[27] The Operational Orders were prepared by Detective Acting Sergeant Buttel, whose extensive local knowledge of the area and of criminals in the area was a key factor in the operation. At T 217 Detective Senior Constable Peter O'Brien described Detective Acting Sergeant Stephen Buttel's role in the following terms: "All I can clarify for the court, Detective Sergeant Buttel is a long-serving member of Redfern. He has been involved with street-level crime, particularly robberies for a long time. He is exceptionally good at recognising faces and remembering people's names and faces. If anyone was going to be put together a list of people who are likely to be committing these type of offences, he would be the one you would go to at Redfern. He was the one they went to at Redfern."

[28] Detective Acting Sergeant Buttel had prepared a list of likely suspects for this crime. As already noted, although this list is now lost, we know Mr Moses was not on it, and neither was Mr Kawenga (T 217). Detective Acting Sergeant Buttel has been unable to locate the list of suspects since that time (T 253-254) but he confirmed in his evidence that the plaintiffs' names were not on it (T 254) and they were unknown to him. He did, however, remember who he thought had committed these crimes when he prepared the Operational Orders. As it turned out, Detective Acting Sergeant Buttel had correctly identified the real offender, a Mr Haines.

[29] As the author of the Operational Orders, a senior and experienced police officer, and the person who observed the identification and arrest, Detective Acting Sergeant Buttel had an objective insight into what occurred. He described the incident as follows: "A. To the best of my knowledge, I saw, I believe it was Moses, that male in a blue hooded jumper on the northern end of McEvoy Street walking between where his car was parked which was just east of the telephone booth, which is on McEvoy Street and walking between that area.

Q. And could you describe for what time he walked and anything about his motion? A. Look, I don't remember the times exactly. But it was around, I would say, 6 o'clock at night and it was - it was peak hour traffic. I remember it was getting dark and in relation to that conversation between - with us on the police radio, it was between myself and, I think it was Detective Porter, and it was in relation to the identification of the male that we were watching.

Q. Can you recall who said what about that? A. I recall - I recall saying, "Is it the same, is it the same person?" And I believe Porter said, "It looks like the same person." " (T 256) [Emphasis added].

[30] This was important, because it was Detectives O'Brien and Porter who had chased the offender unsuccessfully the night before. Because of this identification of Mr Moses, instead of following the Operational Orders and waiting for an offence to be committed, the police immediately moved forward to arrest Mr Moses.

[31] Detective Acting Sergeant Buttel described the arrest as follows: "Q. What did you see happen next? A. At that time we moved in and arrested Moses.

Q. Who did that?? A. The four police involved in the operation.

Q. Who reached in first, can you recall? A. I don't recall.

Q. Did you see anything about the arrest? A. The arrest, it turned into a struggle that ended on the floor - on the ground.

Q. Between who? A. Between Moses and probably eight police that were there.

Q. Were you involved in this struggle? A. I was, yes.

Q. In what way? A. Attempting to restrain or hold Moses on the ground. Like, he was on the ground.

Q. Did you do anything to Moses yourself? A. I - I held Moses down on the ground with my - by his shoulders with my hands." (T 257)

[32] Detective Acting Sergeant Buttel first said there were four but then said (at T 262) that eight police officers wrestled the plaintiff to the ground: "Q. You were holding his face down on the ground-- A. Yes.

Q. --well I mean, how was he brought down to the ground? A. He was wrestled to the ground.

[33] At T 269 line 35 Detective Acting Sergeant Buttel used the word "melee" to describe the scene. He said that Mr Moses was "eventually subdued" (T 258), handcuffed and taken back to Redfern. The other police officers involved in Mr Moses' arrest were all larger and heavier than Mr Moses; Detective Acting Sergeant Buttel, for example, is 5ft 11 ins and weighs 90 kilograms.

[34] The description of the arrest by Detective Constable O'Brien was as follows (T 166): "There was something of a struggle. Of course all the other people who were involved, they turned up at the scene, so there was [Detective] Porter and Mr Moses and then myself".

[35] Detective Constable O'Brien said he heard Detective Porter say: "You're under arrest for robbery, bag snatching" and the police caution, and said that the word "police" was said at the outset. He disagreed with Mr Moses' estimate of the time he was on the ground struggling as being five minutes, saying it was only one minute (T 167) and denied that police kicked or punched him.

[36] Detective Acting Sergeant Buttel's recollection of the conversation he had prior to the arrest with Detective Porter and Detective O'Brien is considerably less definite than the evidence of those officers of their identification of Mr Moses (T 267). He recalled not a statement, but a question: "Is that him?"; he recalled the response from Detective Porter not as being "That's him" but as "That looks like the same guy from last night", following which the police officers seized first Mr Moses. It was only after they seized Mr Moses that they saw Mr Kawenga and, although there was nothing about him in the Operational Orders, they arrested him too.

[37] One of the reasons given by police for the apprehension of Mr Moses and Mr Kawenga was their nervous manner (T 283-284), as well as Mr Moses' facial similarity to the man they chased the day before. However, this was not the evidence of Detective Acting Sergeant Buttel, who had his mind "pretty much made up" (T 273) that the offender was a Mr Haines (correctly, as this was the person later charged with many of these offences). He described the reason for the arrest as being as a result of the two detective's identification of Mr Moses, rather than because of anything Mr Moses was doing or anything about his demeanour: "Q. Did you think that perhaps Moses didn't look quite the type to do this sort of thing?

WITNESS: It wasn't - it wasn't what I thought, it wasn't - it's not - it was - it was an identification from two detectives quite senior, that's, you know, that's why he was arrested and charged, both - what I think and I wasn't there on the floor, I didn't see what happened on the floor so I can't - I can't say what - just because he's got nice parents doesn't make him a saint." (T 274)

[38] The other officer who identified Mr Moses as the person who had been chased the previous day was Detective Porter. It was not Mr Moses' facial resemblance that triggered the arrest; it was raining and Mr Moses was wearing a jumper with a hood. He thought Mr Moses was the same offender he had chased before for the following reasons: "A. Yes. Well the car pulled up, it was in the rain, Moses was driving it and then Kawenga had got in it, so we were talking about, "Right, this white car's pulled up, that's the car I saw yesterday, yep, he's got in the front passenger side, yeah, it's proceeding. He turned right into McEvoy and parked". We were just - we were just calling that as it happened.

Q. Did you continue to do so after Mr Moses got out of the car when it was in McEvoy Street? A. Yes.

Q. Did you say anything on the radio about Mr Moses when you saw him after he got out of the car? A. When he got out of the car? His back was turned to me so I kept observing, observing him when he's gone onto the side of McEvoy and turned around, I recognised the jumper straight away and - and the build and so forth. And then I said, "That's the guy that did the thing - that robbery yesterday". And then I ran out of the car.

Q. And what you've just said was said on the radio, was it? A. Yes.

Q. So just let me get that straight. You were in your cars. His jumper and his build? A. Yes.

Q. And did you recognise anything else about him? A. Well he had the hood on again, and the face was - it was similar to the face the day before.

Q. And then you said on the radio what you said in your last answer? A. Yes.

Q. Did you notice him doing anything after he got out of the car and before you went across and arrested him? A. Yes. He was, like, pacing up and down." (T 283-284)

[39] The reasons why Detective Porter was "a hundred per cent sure" he had the right person were summarised by him as: "WITNESS: Identical jumper.

Q. Yes. A. Had the hood over, similar face, the same build, the same physical appearance.

Q. Anything to do with the vehicle? A. It's the same vehicle, saw both days as well." (T 289)

[40] Detective Constable Porter agreed the arrest was "pretty spontaneous" and occurred about 20 seconds after Mr Moses got out of his car (T 319 lines 32 and 34).

[41] The next officer on the scene was Constable Quinn, who had a clear view of the arrest from her location. She "saw one of the males get taken down by some police officers" (T 367) in a dirt area at the intersection of George and McEvoy Streets. At that stage she thought there were two, possibly three police officers involved. She ran towards the group of police officers who at that stage had this person on the ground. She squatted down next to where they were to see if she could assist in any way (T 368).

[42] At the time that she arrived Mr Moses was face down with a policeman holding his shoulders down and he appeared to be struggling. There were at least two and possibly three other police officers beside herself, and there were up to eight officers in the vicinity (T 370): "Q: Can I suggest at the end of the proceedings there were as many as 8? A: No, not while he was on the ground.

Q: What about when he was picked up from the ground? As many as 8 then? A: There could possibly have been as many as 8 in the vicinity, but not the direct vicinity of where he was."

[43] This is similar to Detective Acting Sergeant Buttel's evidence (T 257).

The evidence of police officers as to what was said to Mr Moses

[44] Constable Quinn's evidence was (T 370): "Q: Did you hear the police calling out "You're under arrest"? A: Yes.

Q: Did you hear the police calling out "You've stolen from women, you've stolen a handbag"? A: Yes.

Q: "You're robbing women, you're a thief" something like that? A: Something along those lines, yeah." (T 370)

[45] Detective Acting Sergeant Buttel's evidence was: "Q. Did you say or did you hear the others say, "You've been robbing women, you've stolen a handbag, you've stolen from women." or something? A. No, I don't remember it being said. I'm not - I'm not saying it wasn't said.

Q. You just don't remember it was being said? A. No. No.

Q. Well was everyone there - and I'm not saying shouting - but at least speaking in loud voices? A. They were, yes. People were doing different things.

Q. Sorry, by people I mean police? A. Police, yes."

[46] Detective Porter's evidence was, however, very definitely to the contrary: "Q. Now can you recall if you said anything to the accused at the time of arrest by way of a caution? A. Yes.

Q. What did you say? A. "You don't have to say or do anything if you don't want to, whatever you say or do may be recorded and used as evidence".

Q. Can you recall anything else you might have - you said to Mr Moses at the time? A. As I say to everyone I arrest, I introduce myself, "Detective Porter from Redfern. You're under arrest for stealing a lady's handbag yesterday on 4 September" and I caution.

Q. All right. A. And I say - then I usually say something like, "We'll go - you'll now be taken back to the station and we'll speak about that".

Q. How soon after you first came up to Mr Moses did you tell him you were a police officer? A. As soon as I took hold of his arm.

Q. What happened after you took hold of his arm? A. We were standing in the mud.

WITNESS: We were standing in a muddy area so I took hold of him, told him I was the police, "You're under arrest". He tensed up and then next thing we were on the ground.

Q. And who's, "We"? A. I think it was - it was - well it was, it was Tara Quinn, myself, Buttel came later, he wasn't involved in the arrest and Detective O'Brien." (T 281)

[47] Detective O'Brien's evidence was similar: "I was trying to get Mr Moses under control because there was a struggle. He ended up on the ground and I was saying things to him along the lines of, "Put your hands behind your back. We're going to handcuff you and then it's all sweet." But he kept struggling and trying to wriggle away and we kept trying to control and so it went on for a while.

Q. Did you hear Porter saying anything to him about him being arrested? A. Yes.

Q. What did Porter say? A. "You're under arrest for robbery, bag snatching," or something along those lines.

Q. Did you hear him give him any caution? A. Yes, the caution. "You're not obliged to say anything unless you wish to do so. But anything you say can be taken down and used in evidence at court. Do you understand?"

Q. Did Mr Moses say anything to you about whether he thought you were police, or not? A. I don't have any recollection of that.

Q. Did Mr Porter say anything about who you were? A. If you work in plain clothes one of the things you do is you announce your office. Now, that wouldn't have happened straight up, simply because we're trying to take control of the situation and then we would declare our office and that's basically what would have happened.

Q. How soon after Porter reached the man did he, or you, declare your office? A. I couldn't say with any great definitecy [sic] but it would've been as soon as we could do it, as soon as we could do it. So like I said, there was something of a struggle to start with and we weren't going to be taking one hand off this potential person who could either get away or assault us. We're not going to be doing that, put our hands in our pocket and pull a police ID and go - no way.

Q. Did you do that as soon as practicable? A. Yes, having said all of that, one of the things that you do if you're in a situation like that, is you say, "It's police, stop struggling. Police," you know. We've got a set of handcuffs out, you know, so once again--

Q. Was "Police" said at the outset? A. Yes." (T 166)

[48] Constable O'Brien did, however, waver in cross-examination: "Q. Then did he keep on saying, "I haven't done anything, you've got the wrong man"? What did he say? He must have said something. "What are you doing?" A. Yes.

Q. And you said to him, "You've stolen a handbag," or, "You're a thief, you've been robbing cars"? A. I didn't say that.

Q. Well, someone must have said that to him. A. It's quite possible someone said it but it wasn't me.

Q. Well, the other police there might have said it? A. I have no recollection of it. I certainly didn't say it.

Q. It would be a natural thing to say, wouldn't it? A. It would be natural enough, true.

Q. Yes, "You've been robbing women, you're a thief, you've stolen from women"? It would be natural for the police to say that, even though you didn't say it. A. It's possible they would have. Like I said, I didn't, and I didn't hear anyone else say it.

Q. But it wouldn't surprise you if some of the police had said that.

Q. It's possible that police called out those words, you didn't hear them. A. I didn't hear them." (T 188-189)

[49] The only witness who categorically states that the words were not spoken is Detective Constable Porter; he is also the only person who said he read out the charges, i.e. for stealing, at this time.

[50] The question of what was said when Mr Moses and Mr Kawenga were arrested is important for the defamation claim. On the one hand, there is the evidence of Detective Porter and Detective O'Brien, who made the identification of Mr Moses which led to the arrests. As is set out in more detail below, both men were defensive in their subsequent conduct, and their evidence in these proceedings, about the circumstances in which they arrested the plaintiffs. I note, for example, the description in the police facts of Mr Kawenga being released without charge "due to a lack of direct evidence" when not one question about the robberies was put to him during the record of interview - see Exhibit 5 pages 2.6 and 2.4. I also note Detective Porter's dismissal of Sergeant Kos's recording of the injuries to the Mr Moses' face, and his claim that these were acne scars.

[51] By contrast, Sergeant Buttel presented not only as a senior police officer who put together the operational plan to trap the offender, but an objective and honest witness who made concessions where appropriate and, if he could not remember what happened, said so. Constable Quinn, who was watching the arrest, was similarly an objective and honest witness. Where there is any difference between the evidence of Detective Acting Sergeant Buttel and Constable Quinn with that of Detectives Porter and O'Brien, I prefer the evidence of the former.

[52] Mr Kawenga was arrested by Constable Knight. His evidence was that one of the other police officers said "Go get him" (T 237). Constable Knight ran after him, caught him and said to him then "You're under arrest". He was quite certain he did not call out (T 237). He then used a "leg sweep" to bring Mr Kawenga to the ground (T 238). He was certain he did not say "You're going to gaol" or "You're fucked, you're a piece of shit" (T 238). He arrested Mr Kawenga for being involved in bag snatches (T 240).

[53] Constable Brogan observed Mr Kawenga running down the footpath towards McDonalds and chased him. He said he called out "Police" and the male "sort of slowed a bit" so they caught him about 40 metres further west. He told Mr Kawenga to "sit down" but he did not, so Constable Knight used the leg sweep to bring Mr Kawenga to the ground (T 349). He said that Constable Knight then said something along the lines of "Constable Knight from Redfern Police. You're under arrest for bag snatches or robberies" (T 349) and the man was handcuffed. He denied the words complained of by Mr Kawenga. Mr Kawenga repeated the words he said Constable Knight spoke to him in the record of interview.

[54] This evidence is relevant to the defamation claim. The police said that there were very few other persons present. Constable O'Brien said: "Q. There were passers-by and tenants and occupants of houses nearby? A. Not that many at that path on McEvoy Street, no. It was just on dusk. It was raining. It may not have been raining right at that time but it was raining within 5 minutes of it. Not that many people walk up and down there, which is one of the reasons why they came under suspicion in the first place.

Q. But there were cars moving slowly, if not stationary. A. That's true.

Q. It certainly happened within the observation of those cars. A. Yes.

Q. And weren't some of the cars hooting and tooting? A. Not that I recall.

Q. I mean hooting and tooting at you. A. Not that I recall.

Q. There was a factory across the road, was there, and a McDonald's? A. There's a factory across the road. The McDonald's is down the road, wouldn't have been in sight of what was going on." (T 192)

[55] Mr Moses said that the police were screaming loudly and that the words "You're robbing women, you're a thief, you have stolen from women" were spoken loudly (T 74, 75, and 85). He said that he saw "a lot of people standing out the front" of where his father lived, and a lot of motorists were "tooting their horns" (T 118).

[56] This was confirmed by Mr Abraham Moses, the plaintiff's father. He actually saw the arrest from the window of his home, although he did not know at the time the person who was being arrested was his son: "Q. Tell us more about the commotion. What were people doing? A. I saw a lot of people around, I saw neighbours were going up and down, and I was trying to see what happened, you know. I asked some people. They said--

Q. So what were people saying? A. They said somebody - they used words "bag snatching and somebody has been arrested"." (T 148-149)

[57] Mr Moses repeated this in cross-examination: "Q. All right. Now, was that an area where I think you said there had been bag snatching going on? A. For the past week or so I heard that there was some bag snatching going on in that area.

Q. When some neighbour spoke to you, did they say something to you about bag snatching? A. That's exactly, yeah. That's what they said. "As usual" - that's exactly what she told me - "As usual, there has been some bag snatching."

Q. Did someone say to you that they thought someone had been arrested for bag snatching? A. Yeah.

Q. Yes, all right. A. But they'd use the word "arrest". They said, "Some bag snatching has been going on." Of course the police were there. There must have been some arrest going on I suppose, I assume." (T 152-153)

[58] Having set out the evidence relevant to the publication issue, I now consider the substantive issues for the defamation claim.

[59] Mr Moses pleads a publication of the following words: "You're robbing women"

[60] This publication gives rise to the following imputations: (a) The first plaintiff is a thief.

[61] The second plaintiff pleads that the defendants published the following words of and concerning him: "You're under arrest - you're a piece of shit - you're fucked - you're going to gaol"

[62] This is asserted to give rise to the following imputations: (a) The second plaintiff is a criminal.

[63] I shall first deal with the question of whether or not these words were said and whether or not the defences pleaded, namely qualified privilege at common law and pursuant to s 30 and, in the case of Mr Moses, contextual justification, have been made out.

[64] The defendant's submissions are that the police did not say the words pleaded as the matter complained of in paragraph 2 of the second further amended statement of claim, and that I should accept the evidence of Detective Constable Porter that he said "You're under arrest for stealing a lady's handbag yesterday on 4 September" (T 281 line 15).

[65] Detective Constable Porter, Detective Constable O'Brien and Detective Acting Sergeant Buttel did not agree that these words had been said. Detective Constable Porter was insistent that he had introduced himself, stated the offence and administered the caution and that it was only then that Mr Moses ended up on the ground, this being his response to these events.

[66] However, Detective Constable Porter's version of events is implausible for a number of reasons. The other police officers who were present used words like "struggle" and "melee" to describe the circumstances of arrest.

[67] Constable Quinn's evidence on this issue is unequivocal. I do not accept the submission that "something along those lines, yeah" means that the words were not actually used. Constable Quinn's evidence is not consistent with the polite version of events given by Detective Constable Porter. It is consistent with the evidence of Mr Moses.

[68] The evidence of the police is that they said "You're under arrest for bag snatches".

[69] This is consistent with the first part of the matter complained of.

[70] The submissions of both the plaintiffs and defendant as to what was said to Mr Kawenga (and for that matter to Mr Moses) were short and unhelpful. The defendant submitted that the police version should be accepted, that the police did not say the words pleaded, that their version is different from the plaintiffs' version and that there should be a verdict for the defendant.

[71] The plaintiffs' submissions (page 13, paragraph E) assert that Mr Kawenga asserted that these words were spoken. Neither the plaintiffs nor the defendant referred to the ERISP transcript (Exhibit A) where in answer to question 295 Mr Kawenga says that he said: "Then what they did to me when I got caught, when they got me they fuckin', one of them's fuckin kneeing me in the head saying, "he [sic] saying, well one of the guys are going to me, you're fucked now, you're gonna go to gaol you fucking scum or some shit like that, and I went, I didn't do shit. And then the one guy's got his fuckin knee on my head and I, yeah, yeah, don't, don't you swear punk or some such shit. And they kept fuckin, whatsit, how old are you, 21, or you're fucked, yeah, all this smart arse shit, but yeah besides that it's good." (Exhibit A, page 28).

[72] Mr Kawenga repeated, in his evidence, that he had told the officers this at the time, saying, at T 42 line 17: "I said, well, I pretty much went off on a rant then. You [sic] said "You know, you try and accuse me of [sic] my mate stealing stuff. You know, you're screaming at me "You're fucked, you're going to gaol", all the verbal abuse."

[73] It was a feature of the submissions of both parties, but particularly of the defendant, that evidence which did not assist the defendant was not referred to. Not having the benefit of any explanation from the defendant concerning this contemporaneous statement by Mr Kawenga of what he said, I intend to accept it.

[74] The submission was made that there was no evidence that any person heard the matter complained of.

[75] Leaving aside the fact that publication may be made by joint tortfeasors to each other (Trantum v McDowell [2007] NSWCA 138), it is possible for there to be publication even though no witness comes forward to testify that he or she heard the words spoken, as long as someone was in a position to hear the defamatory publication. For example, the only witness called in Duckworth v First National Bank 254 SC 563, 176 SE 2d 568 denied hearing the words spoken; because there was evidence that there was a large crowd present and of the defendant shouting the words, the court permitted the matter to go to the jury, which found for the plaintiff. If the words are spoken in the presence of others, it must be shown that they were spoken loudly enough so that the persons present could have heard them. The evidence of Mr Moses's father, who heard the commotion and saw the arrest from his window, is evidence that the arrest attracted attention. There were shops such as McDonald's nearby, and the plaintiffs said that motorists were tooting their horns. As I have indicated elsewhere, I am satisfied the police were calling out to each other as well as to the plaintiffs. I am satisfied there was publication to a third party.

[76] Having found that each of the publications was made, I now turn to the question of the defence.

The defence of qualified privilege at common law and whether it is defeated by malice

[77] The general principles concerning qualified privilege at common law may briefly be stated. Communications are protected by the defence of common law qualified privilege where the publisher has an interest or a duty (legal, social or moral) to make a statement on an occasion and the recipient of the statement has a corresponding interest or duty in receiving it: Bashford v Information Australia (2004) 218 CLR 366 at [9]-[10], [53] and [136]-[137]. This includes a close examination of all the circumstances of the case (Bashford at [10]). The New South Wales Court of Appeal in Bennette v Cohen [2009] NSWCA 60 has explained the interaction of "duty" and "interest". In Bennette v Cohen Ipp JA at [25] sets out a list of propositions concerning duty and interest, noting the very high level of generality and obstruction of the test for common law qualified privilege and the need for "close scrutiny" of "all the circumstances of each case", which results in practice in common law qualified privilege having a relatively limited or narrow practical application. There is no closed set of criteria that must be applied or considered.

[78] The issues raised by the plaintiffs in their most recent submissions are that the police officers had no intention to convey the imputations, and that there was no reciprocity between the recipients of the publication (passers by who heard the words) and the police officers.

[79] Police officers carrying out an arrest are not obliged to keep their voices down in case they have arrested the wrong person. Members of the local community who saw the arrests had an interest in hearing the matter complained of as these crimes were occurring in that street, and issues of local law and order were involved.

[80] The New South Wales Court of Appeal in Bennette v Cohen [2009] NSWCA 60, considered issues of "duty" and "interest". In Bennette v Cohen Ipp JA, at [25] extracted a list of propositions concerning duty and interest, noting the very high level of generality and obstruction of the test for common law qualified privilege and the need for "close scrutiny" of "all the circumstances of each case", which results in practice in common law qualified privilege having a relatively limited or narrow practical application. There is no closed set of criteria that must be applied or considered. In particular, at 25, Ipp JA noted the following guidelines: "(i) As a matter of public policy, it must be in the general interest of the whole community that the type of material in question be published, notwithstanding that it is defamatory of a third party;

(ii) The occasion must not be used for some purpose or motive foreign to the interest that protects the making of the statement. Further, there must be a significant connection between the defamatory material and the privileged occasion;

(iii) The interest that gives rise to qualified privilege must be real and direct;

(iv) Ordinarily, a volunteered statement is privileged only where there is a pressing need to protect the interests of the defendant or a third party, or where the defendant has a duty to make the statement;

(v) If a publication is made to a large audience, a claim of qualified privilege at common law will fail unless the members of the audience all have an interest in knowing the truth, and;

(vi) The interest should not give officious and interfering persons a wide licence to defame."

[81] Campbell JA went on to add, at [207]: "[207] I would add some explanation concerning the way in which the public interest impacts upon common law qualified privilege. It seems uncontroversial that the notion of the public interest operates as a means of limiting the sorts of reciprocal duty or interest that can give rise to qualified privilege. However one does not enquire whether the particular statement that was defamatory was made in circumstances such that the reciprocal interest of the maker and recipient of the statement was such that the making of that statement itself advanced the welfare of society and the public interest. Rather, the requirement of public interest, for the existence of qualified privilege operates at a higher level of generality, that the duty or interest of both maker and recipient is such that it is in the public interest that a person should be free to make that type of statement in the type of circumstances where the particular statement in question was made."

[82] The circumstances of this case involve the police in the execution of their duty. The recipients of the publication were local residents and persons driving along the street where these robberies had been taking place. These persons all had an interest in receiving this information. I reject the plaintiffs' submissions that there is no reciprocity of interest.

Lack of intention to convey and belief in the truth

[83] The issue of lack of intention to convey the imputations has some complexity here, because the defendant has denied publication and intention to convey. The defendant maintains that it is entitled to deny publication while relying at trial upon the defence of qualified privilege. This includes a refusal to answer interrogatories concerning intention to convey and belief in the truth of the imputations.

[84] The defendant submits that it is entitled to plead and run the case as it did and to deny publication, refuse to answer interrogatories and to plead the defence of qualified privilege notwithstanding, relying upon Casey v Australian Broadcasting Commission [1981] 1 NSWLR 305 at 308-309 per Hunt J. The application in Casey was to strike out the defendant's denial of publication, identification and defamation and the presence of inconsistent defences.

[85] At 307F Hunt J noted: "A defendant is always entitled to put the plaintiff to proof of the facts alleged by him in his statement of claim. No doubt the defendants here will be obliged to admit publication by them in order to answer properly drafted interrogatories (see also the Supreme Court Act 1970, s 82) but I see no abuse of process in merely putting the plaintiff to such proof." (Emphasis added)

[86] There is no doubt that a defendant is entitled to plead inconsistent defences, as Hunt J in Casey at 309, referring to Bullen, Leak & Jacobs, Precedents and Pleadings, 12th edition at page 74 notes. Similarly, in Laing v Beardsmore [1968] 2 NSWR 673 at line 27, Walsh J observes that: "There is no rule which prevents a defendant from filing inconsistent pleadings". As Jacobs JA noted at 693, that was a case where the plaintiff alleged publication of a slander and the defence was in denial of publication. A defence of qualified protection under s 17 was pleaded.

[87] However, the key lies in Hunt J's statement, at page 307F of Casey, namely that the defendants were obliged to admit publication at a later stage in order to answer properly drafted interrogatories. If a defence of qualified privilege is relied upon, the plaintiff is entitled to receive those answers.

[88] Gatley on Libel and Slander notes that a defendant should exercise some care in determining whether or not to deny the words bear a defamatory meaning and advance a plea of justification, such an approach may be difficult to sustain forensically. Gatley goes on to note, at paragraph 29.3, that a defendant may plead as many different alternative defences as he wishes, even though the allegations are inconsistent, although it may not always be prudent for him to do so, drawing attention in footnote 15 to Hackett v Tierney [1952] IrR 185 (commented on in O'Hanlon v Electricity Supply Board [1969] IrR 75 at 96, where a defendant was held entitled to deny having used the words complained of and also to claim qualified privilege in respect of them, a decision contrasted with Alderman v French (1823) 18 Mass R 1 at 8-9, where publication was denied but justification pleaded. Gatley also refers to Casey, in circumstances where the learned authors appear to have assumed that this decision supports Hackett. In fact, Hunt J noted the entitlement of a party to put the opponent to proof, but that the relevant admissions would have to be made when properly drafted interrogatories in relation to the defence of qualified privilege were served.

[89] In Sanders v Anderson [1968] NZLR 172, Hardie-Boys J rejected an application to amend brought at the trial to plead a defence of qualified privilege as an alternative to an admission of publication. Hardie-Boys J rejected the application citing Gatley on Libel and Slander, 5th edition and Odgers on Libel and Slander, 6th edition at 509. While the principal basis upon which the application for amendment was rejected was that it was a late application, and one to set aside a jury verdict, one of the bases was that it was a defence inconsistent with a denial of publication.

[90] In McConville v Credit Union Services Corporation (Australia) Ltd (Supreme Court of New South Wales, Levine J, 29 August 1997, unreported) Levine J noted: "It would be an extraordinary state of affairs if a media defendant could simply deny publication of an indisputably published program or article in pleading the alternative substantive defence in respect of which the plaintiff would not be entitled to deliver any interrogatories."

[91] If the submissions of the defendant are correct, then any defendant could simply deny the publication and on this basis refuse to answer what Hunt J called "the properly drafted interrogatories" referred to by Hunt J in Casey.

[92] The defendant's written submissions seek to distinguish these cases and the discussion of them in Bechara v Bonacorso (No 2) [2010] NSWDC 42, on the basis that the relevant principles do not appear to have been drawn to the attention of the court. However, none of the cases referred to by the defendant go higher than permitting inconsistent pleadings. There is no authority for the proposition that a party is entitled to deny publication while at the same time pleading a defence of qualified privilege at the trial, as Levine J noted in McConville.

[93] In the defendant's submissions in reply, it was asserted that the defendant in Bechara v Bonacorso (No 2) was denying publishing the matter complained of but proposed to assert he made a statement of a different nature and to assert the defence of qualified privilege was attracted to that publication. That is incorrect, because if a publication sufficiently different to the one complained of fails to be established, then the plaintiff has failed to prove publication. There are complications in slander cases where some but not all of the slander can be proved, but that is not the case with these very short slanders.

[94] The next submission that the defendants make is a submission that by reason of the fact that the plaintiffs were being arrested by the police, statements by the police to the effect that the plaintiffs were guilty and were going to gaol are not capable of arising because of the presumption of innocence. The defendant relies upon Mirror Newspapers v Harrison (1982) 149 CLR 293. This is a variant on the "coherence" argument, discussed in more detail below.

[95] It is not clear to me whether this is a submission that the imputations cannot be conveyed at all, or whether this is a submission by reason of context. There is a separate submission headed "context" on page 10 of the submissions, so I assume that this is a further basis upon which the submission is made.

[96] For the reasons explained by McColl JA in John Fairfax Publications Pty Ltd v Obeid (2005) 64 NSWLR 485; [2005] NSWCA 60 the presumption of innocence when a person is arrested cannot operate as some form of bane to the antidote of a police officer calling the person he is arresting a thief, or saying that that person is going to gaol. Merely stating that a person has been arrested and charged does not give rise to an imputation that a person is guilty of that offence, for the reasons explained by Mason J in Harrison at 300.9. However, a statement that a person is guilty and will go to gaol does convey such an imputation. If the defendant's submissions were correct, any statement to the effect that a person is guilty of an offence and/or going to gaol would not be capable of conveying an imputation of guilt by reason of the presumption of innocence.

[97] The final submission of the plaintiff is one of context, namely that the listener must be taken to have heard and seen the whole incident and in the manner of a "strike in" the hypothetical audience would take into account and view the whole incident. It is submitted that the plaintiff cannot rely upon a few words alone and take them out of the obvious situation of police arrest.

[98] If the defendant had brought a strike-in application, and identified those portions of the police conduct which are asserted to give rise to this general impression, this would have been a submission I could deal with in some detail. The principle that any words or events that can add to or change the complexion of the matter complained of have to be included as a part of the matter complained of (Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurstville) Pty Ltd [1971] 1 NSWLR 472 at 477) is predicated upon there being an application to strike in those events with some parity. No such application has been made here.

[99] As a general factor, it is certainly possible for the defendant to point to the circumstances of arrest of each of the plaintiffs. As this involved chasing the plaintiffs, wrestling them or sweeping them to the ground, handcuffing them and taking them away, I cannot see that there would be any aspect of this conduct which would lead to there merely being a suspicion of guilt.

Finding concerning intention to convey the imputations

[100] The police officers denied that they intended to convey any of the imputations. However, it was apparent from their evidence that they genuinely believed that Mr Moses was the thief they were looking for and that Mr Kawenga, by reason of being with Mr Moses, was a potential accomplice.

[101] The defendant's submissions refer to imputations being conveyed by "unintended loose words" (paragraph 95) and "inadvertent" or "left field" imputations. The problem seems to be that the defendant's witnesses have taken the strategic position of denying each of the publications and any imputations conveyed by the publications pleaded by the plaintiffs.

[102] What does emerge very clearly from the evidence, however, is that the only reason that the police officers arrested each of the plaintiffs, particularly in the case of Mr Moses, was because they genuinely believed they had identified the persons who were responsible for the thefts from cars in the area.

[103] In practical terms, persons such as police officers, doctors or accountants may, in the course of their duties, make statements about a person where there is a degree of compulsion irrespective of whether there is an intention to convey or a belief in the truth, such as a statement that a company is unable to pay its debts, or a person has a dangerous communicable disease. When carrying out the exercise of determining whether or not the matter was published on an occasion of qualified privilege at common law, the careful analysis of surrounding events required (see Bashford at [10]) means that these matters should be taken into account.

[104] I have dealt with the issue of malice separately for the defence of qualified privilege at common law and qualified privilege pursuant to s 30, to take into account the recent decision of Reading v Australian Broadcasting Corporation [2010] NSWCA 257.

Malice and lack of intention to convey or of belief in the truth

[105] If a publication is made on an occasion of qualified privilege at common law, that defence may be defeated where there is evidence of malice. As to what constitutes malice, and in particular what the role of lack of intention to convey and belief in the truth, the relevant principles have been set out by Hunt A-JA in Gross v Weston [2007] NSWCA 279 at 297. Those principles are: (i) Except where the defendant was under a legal duty to publish the matter complained of, the defendant's knowledge that it was false is ordinarily conclusive evidence that the publication was actuated by an improper motive.

(ii) Recklessness in the publication of the matter complained of does not establish knowledge of its falsity unless it amounts to wilful blindness on the part of the defendant which the law equates with knowledge.

(iii) Recklessness - when present with other evidence - may neverthe­less be relevant to whether the defendant had an improper motive which actuated the publication.

(iv) If a plaintiff's case rises no higher than evidence that the defendant did not have a positive belief in the truth of what he published, there is no evidence that its publication was actuated by an improper motive.

(v) The absence of a positive belief in the truth of what was published may nevertheless be relevant - with other evidence - to whether the defendant's improper motive actuated the publication, but it will not establish that fact by itself.

(vi) Where the plaintiff relies on the defendant's knowledge of the falsity of the matter complained of to establish an improper motive, it is unnecessary to identify that improper motive, as there can be no proper motive in those circumstances unless the defendant has a duty to publish the matter complained of.

[106] This was not a case where any other motive, let alone any other paramount motive, could be established for the publications. The sole motive for the arrest of the plaintiffs was the belief the police officers had that these persons were the offenders they had been seeking. What made this arrest unusual was that the eyewitnesses to the crime the previous day were the arresting officers, and they remained convinced of the guilt of Mr Moses (and, to a lesser degree, Mr Kawenga) until some hours after the occasion of the publication in the street relied upon by the plaintiffs.

[107] It might be that, particularly in the case of Mr Kawenga, there was recklessness in the circumstances in which statements were made to Mr Kawenga based merely on the fact that he had been in the car with Mr Moses. However, mere proof of a defendant's recklessness is not sufficient to establish malice: Roberts v Bass (2002) 212 CLR 1 at 75 per Gaudron, McHugh and Gummow JJ. Even if the police opinion that Mr Kawenga was involved was wrong-headed, prejudiced or carelessly formed or even irrational, that would not be sufficient to demonstrate malice unless there was a purpose or motive that was foreign to the occasion.

[108] In practical terms, given the number of arrests police make, the actual words they speak at the time of arrest are not likely to be permanently recorded or memorable to the police officers for any significant period of time. In the excitement of the arrest, particularly where there is a struggle, as was the case here, police officers may express themselves with a degree of zeal and express opinions about the guilt of the persons whom they are arresting. They may be wrong, prejudiced, careless or irrational in having such beliefs, but that is not evidence of malice.

[109] Accordingly, notwithstanding the denial of the police officers that they intended to convey or believed in the truth of the imputations (which evidence I regard as unfortunate, but not fatal to a defence of qualified privilege in the special circumstances of the case) I am satisfied, on the special circumstances and facts of this case, that the statements made by police were not only made on an occasion of qualified privilege at common law but the occasion of qualified publication was not lost by reason of malice.

The defence of qualified privilege pursuant to s 30

[110] Section 30 Defamation Act 2005 (NSW) provides as follows: " 30 Defence of qualified privilege for provision of certain information

(1) There is a defence of qualified privilege for the publication of defamatory matter to a person (the "recipient") if the defendant proves that:

(a) the recipient has an interest or apparent interest in having information on some subject, and

(b) the matter is published to the recipient in the course of giving to the recipient information on that subject, and

(c) the conduct of the defendant in publishing that matter is reasonable in the circumstances.

(2) For the purposes of subsection (1), a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest.

(3) In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account:

(a) the extent to which the matter published is of public interest, and

(b) the extent to which the matter published relates to the performance of the public functions or activities of the person, and

(c) the seriousness of any defamatory imputation carried by the matter published, and

(d) the extent to which the matter published distinguishes between suspicions, allegations and proven facts, and

(e) whether it was in the public interest in the circumstances for the matter published to be published expeditiously, and

(f) the nature of the business environment in which the defendant operates, and

(g) the sources of the information in the matter published and the integrity of those sources, and

(h) whether the matter published contained the substance of the person's side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person, and

(i) any other steps taken to verify the information in the matter published, and

(j) any other circumstances that the court considers relevant.

(4) For the avoidance of doubt, a defence of qualified privilege under subsection (1) is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice.

(5) However, a defence of qualified privilege under subsection (1) is not defeated merely because the defamatory matter was published for reward."

[111] Although I have found that the defendants have established the defence of qualified privilege at common law I shall set out some brief findings in relation to s 30. I note I have not received any submissions on this defence from the plaintiffs.

[112] The defendant submits (written submissions, pages 13 to 16) that the police were "duty bound to speak and say the words they said". However, I see nothing in ss 99 or 201 of LEPRA meaning that they were duty bound to say to the plaintiffs the words of guilt that I have found that they said.

[113] The defendant further submits that the criminal justice system is very important, the police take an oath to preserve the peace, and that the duties of a constable relating to the preventing and detecting of crime, including duties that the public are owed by the police, which are statutory in nature, are matters to take into account. The police should not be unduly restricted, nor should they be fearful of what they should say and constantly on the look-out that what they say might be overheard.

[114] It is asserted that the tort of negligence does not apply to police for reasons of public interest (Wilson v State of New South Wales (2001) 53 NSWLR 407 at 43-49). Whether or not this is an accurate statement of the law (cf State of Victoria & Ors v Richards [2010] VSCA 113) it is not relevant to the issue of whether a defence of qualified privilege can be made out under s 30.

[115] In the very unusual circumstances of this case, where the police were relying upon their own observations of the robbery the previous day, statements that the plaintiffs were the offenders, made within earshot of local residents, who all had an interest in this important law and order issue, would satisfy all the provisions of s 30.

[116] The plaintiffs' failure to make submissions concerning the s 30 defence has been a significant difficulty. Following the plaintiffs' counsel's letter of 23 July 2010 requesting that the handing down of judgment be deferred until further submissions on recent High Court and Court of Appeal decisions could be provided, I made orders for further written submissions, which were received on 16 September. As counsel for the defendant pointed out in submissions in reply, these submissions simply restated the issues already raised. It would not be fair to the defendant for me to determine this defence other than on the submissions before me.

[117] The role played by malice in relation to s 30 has recently been considered by the NSW Court of Appeal in Reading v Australian Broadcasting Corporation, supra. I have made findings, in relation to the common law defence, that there is no malice, and I make the same findings in relation to this defence.

[118] The issues of coherence, raised by the defendant in written submissions, has played no role in any of the findings I have made concerning qualified privilege at common law and pursuant to s 30. I am satisfied that these defences can be made out without recourse to any extension to the statutory or common law defences. I should formally note, however, since the defence is also asserted to operate in relation to the issues of publication, defamatory meaning and/or unlikelihood of harm that I would not permit the raising of a defence of this kind, or an enlargement of an existing defence, without the relevant matters being pleaded and particularised before the trial, so that the plaintiffs know the case they have to meet. No explanation is provided for the delay in raising this "coherence" defence (AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; (2009) 258 ALR 14; (2009) 83 ALJR 951; [2009] HCA 27) or for failing to plead or particularise the way in which this principle interacts with these defences.

[119] I am satisfied that the defence of qualified privilege pursuant to s 30 is also made out, as well as the defence at common law.

[120] A defence pursuant to s 33 has also been pleaded.

[121] The parties agreed that s 33 should be interpreted in the same manner as s 13 Defamation Act 1974. Section 33 provides: "It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm."

[122] The defendant relies upon the limited nature of the publication, the lack of evidence of persons who knew the plaintiff having heard it, and the fact that Mr Moses and Mr Kawenga were arrested separately and did not hear what was said to each other.

[123] The imputations were imputations of guilt of criminal offences, which were conceded by the defendant to be serious. Publication by a law enforcement officer of an imputation of guilt about a member of the public would only in exceptional circumstances be protected by a defence of unlikelihood of harm. In addition, the presence of other members of the public (including Mr Moses' father, although he did not know it was his son being arrested) means that persons who saw the plaintiff included persons who were not police officers.

[124] The plaintiff notes that Mr Moses gave evidence that following publication, one of his father's neighbours, who had previously been friendly, changed in her attitude towards him. While that is not evidence capable of establishing that this neighbour heard the matter complained of it would, if I were satisfied that the neighbour had heard on the grapevine about Mr Moses' arrest, be evidence of shunning. I note that I have received no other assistance from the plaintiff in relation to this defence, beyond stating that this defence is "not applicable" in the circumstances of this case.

[125] The elements of the defence of triviality, or unlikelihood of harm, were recently considered by McCallum J in Papaconstuntinos v Holmes à Court [2009] NSWSC 903 at [102] - [105]. The publication of serious imputations spoken in a loud voice in front of a number of local residents, in an area where Mr Moses had lived most of his life and near Mr Kawenga's place of work, would not be made in circumstances in which this defence would apply.

[126] The defence under s 33 is not made out against either of the plaintiffs. The remaining defence is the defence of contextual truth in relation to Mr Moses only.

[127] This is pleaded to the imputation that Mr Moses is a criminal. Mr Moses has a conviction for assault of a domestic nature, arising from an incident involving his sister and for an offence involving circumstances in which he urinated in a public place.

[128] To say of a person who has been convicted of offences at the low end of the range of seriousness of this nature, that that person is a "criminal" whose reputation would not suffer further harm by reason of an allegation of a crime of considerable seriousness, namely a sustained series of robberies from women in motor vehicles, amounts to saying that Mr Moses is "libel proof" in that his criminal record denies him the right to a reputation.

[129] Mr Moses was convicted of two offences on 19 October 2005 and 14 February 2006.

[130] In Snedden v Nationwide News Pty Ltd [2009] NSWSC 1446 the trial judge upheld a defence of contextual justification. The trial judge noted at [44] - [53] that the plaintiff had two convictions, one in 1974 for receiving stolen goods and one in 1984 for keeping a brothel. These offences constituted evidence that prior to 1991 (the relevant date for the justification of the imputations) the plaintiff was a criminal with underworld links, and a defence of justification was made out to imputations to this effect. In addition, the truth of these imputations outweighed imputations to which truth had not been pleaded, namely that the plaintiff condoned the rape of women and girls, was a mercenary and had admitted committing a massacre.

[131] Each case must turn on its facts, and I am not satisfied that the offences for which Mr Moses was charged and convicted are sufficient to amount to evidence that he is a criminal. The first related to a family fight involving his sister and his mother told the court they were good friends now. Indeed, his sister was with him on the occasion of his second offence, which appears to have related to urinating in public. There is no evidence that he has engaged in criminal offences of dishonesty or criminal activities generally. Two criminal convictions for offences at the lower end of the scale do not amount to proof that the plaintiff is a criminal. If that were the case, a person convicted of any crime would become "libel proof" in relation to any subsequent allegation of unrelated criminality. The charges laid here were of a serious nature involving planning, violence and dishonesty.

[132] While comparatively minor offences (keeping a brothel and receiving stolen goods) of some antiquity appear to have outweighed grave allegations of admitting to a massacre and condoning mass rape in Snedden, it may be that there were special circumstances in the evidence in that case.

[133] As a result of this finding, it is not necessary for me to consider the unsettled state of the law concerning the availability of a defence of contextual truth where the imputation relied upon is an imputation pleaded by the plaintiff (Kermode v Fairfax Media Publications Pty Ltd, supra).

[134] I note that Mr Kawenga has no criminal record whatever, and that this defence is not pleaded in relation to the cause of action brought by him.

[135] I accordingly find for the defendant on the claim for damages for defamation brought by each of the plaintiffs.

[136] Having made findings in relation to the defamation claim, I now consider the assault claims brought by the plaintiffs.

[137] Each of the plaintiffs brings a claim for damages for assault.

[138] Mr Kawenga gave evidence that he was kneed and punched but said that he had "no bruises" as a result (T 41). He did not make any complaint to the police of physical ill-treatment at the time.

[139] It is not in dispute that after Mr Kawenga was arrested, he was forced to the ground by a "leg sweep". His claim for assault is set out in paragraph 6E of the statement of claim as including throwing him against a wall and then onto the ground.

[140] A leg sweep was demonstrated for me in court, and it is submitted (written submissions, paragraph 194) that it is "a proven police technique" which "does not involve any kneeing" and is "part of their training" (written submissions paragraph 194).

[141] Constables Knight and Brogan denied that Mr Kawenga was assaulted. Constable Brogan said: "Both Constable [Knight] and I came up very close to him and we, sort of, had him boxed in against a small fence. I was holding him on the left - or, on my left-hand side. I told - I asked him to sit down. He didn't. I said, "Sit down". And still he didn't, and I was holding his arm, and so I gave him a leg sweep and he went down to the ground." (T 349)

[142] Constable Brogan described the leg sweep as follows: "Q. Did you treat him roughly? A. I gave him a leg sweep which I think is rough.

Q. Was that when he was handcuffed? A. No, that was before he was handcuffed. That was to take him to the ground after which he was handcuffed." (T 354)

[143] Constable Brogan demonstrated this in court: "Q. Your - what did you call it - sidekick - what did you demonstrate? A. Sorry?

Q. What did you just demonstrate on the floor in the well of the court? A. Sorry, a leg sweep.

Q. With your left leg or your right leg? A. That was with my right leg.

Q. But you also committed other violent acts on Mr Kawenga, do you agree with that? A. No." (T 356)

[144] Constable Brogan explained why this was necessary: "Q. Well then why did you leg sweep him? A. Because I wanted to get that person down onto the ground in a secured position to prevent him running off again. I'd already seen that person running away. I'd like to limit their chances of escape." (T 357)

[145] Constable Brogan gave the following evidence about the difference in height and weight of himself and Mr Kawenga: "Q. You're 6 feet, aren't you? A. I'd be about 6 feet.

Q. Well he'd be lighter than you. You'd assume that? A. He definitely is. I'm 83 kilograms.

Q. You both got a firm grip of him? A. I had a grip of him.

Q. You're about to put to the handcuffs on him? A. No, I was asking him to sit down.

Q. Why did you want him to sit down? A. Because it's a way of limiting his chances of escape. It's much harder for someone to have to stand up and run as opposed to allowing them to stand, in which case they can just take off.

Q. For all you knew he was an innocent bystander? A. No.

Q. Well you didn't know what he'd done? A. I was - from earlier conversation that I'd heard on the radio, I was aware that he was a person who was to be arrested for offences.

Q. Stealing from cars? A. Stealing from persons in the cars." (T 358-359)

[146] Constable Brogan repeated his explanation as to why it was necessary to give a leg-sweep: "A. Sorry, your Honour, as I said earlier, when I first caught up to him, I was holding him. I asked him to sit down, he didn't. I told him to sit down, he didn't, so I sat him down, via the leg sweep. In my experience as a police officer, it's much easier to contain someone who is on the ground than have them standing. When someone is standing it's much easier for them to either take a swipe to punch at you or to run away. He might be smaller than me, but it doesn't - I can't assume that I've got him under complete control, I like to limit that and having him on the ground is one way of limiting it. Having him then in handcuffs is a further way of limiting it." (T 359-360)

[147] Mr Kawenga gave evidence that he ran towards Mr Moses because he saw Mr Moses on the ground being attacked by persons who were "just punching him in the head, punching him in the back" (T 19).

[148] Mr Moses said that without any prior warning police tackled him to the ground, kicked and punched him, put a set of keys to the side of his head and kept him on the ground for 5 to 10 minutes (T 73-74, 83-84, 106-107, 109).

[149] Mr Moses's appearance was noted by Sergeant Kos in the custody management record at 3.2, where he noted his observation of "dirt abrasions" on Mr Moses' face and wrote down Mr Moses' statement that "excessive force was used during the arrest" (Exhibit 5, tab 3.2). He confirmed his observations in evidence.

[150] When Mr Moses arrived home, his mother took photographs of his face, which have been tendered (Exhibit C). Her evidence was: "Q. When you let him into the house, how did he look? A. He looked all, like, dirty because - like mud, you know, in his shirt, and he said, "Mum, I don't have a jumper. That was a bit cold," he said. "My jumper was at the police station. They took it."

Q. What was his face like? A. He's swollen left side here, and bruises, and scratch.

Q. What did you do? A. I said, "Go and have a shower," and I think after he had a shower, I took a picture." (T 139)

[151] However, Detective Constable Porter said that Mr Moses' face was "clean as a whistle" (T 321) and that Mr Moses had acne scars and not a recent scratch or mark: "Q. You don't agree with it? A. No, because I just went and looked at his charge photos on the computer and there - his face is as clean as a whistle.

Q. But look, 3.2 is not his say so, it's visual assessment by Sergeant Kos, isn't it? A. What I think he may have got confused with, there's an acne scar or some sort of scar on his face, but it's not a recent scratch or mark. I've seen the photos.

Q. Which photos? A. His charge photos. I've actually took photos of them with my - with my phone if you'd care to have a look." (T 321)

[152] Detective Constable Porter then produced his mobile phone to show these photographs. Having looked at the photographs taken by Mrs Moses and the report of Sergeant Kos, Detective Constable Porter still maintained the marks on the plaintiff's face were acne scars: "Q. I want you to assume that those photographs [taken by Mrs Moses] of Mr Moses were taken about 2 or 3am on the morning of 6 September, after he got out? A. Yes.

Q. They show pretty much the same condition as your colour photos, don't they? A. Yes, I fail to see any bruising here. I see two acne scars. That's all I'm looking at.

Q. Well you see marks on the face? A. No. Two acne scars.

Q. What do you say they are? A. They're acne scars. His face was never touched.

Q. Well can I suggest to you you're mistaken about that? A. No. I think there's - there's marks on his chest, that could have possibly happened, no doubt, but not the face.

Q. So you'd go so far as to say that the observations of Sergeant Kos are incorrect? A. Well you'd have to speak to Sergeant Kos about that.

Q. Mm? A. You'd have to speak to Sergeant Kos about that.

Q. No, we're speaking to you about it? A. Well--

Q. You say that those observations noted by Sergeant Kos-- A. Well it's a - it's a gray - it's a gray area what he's called them, dirt abrasions. I've never heard that term before. Whether it was - that means there was dirt on him, or--

WITNESS: Sergeant Kos probably just wrote in what Mr Moses told him. I got these from the arrest, so - but look, I could be wrong, I'm not saying - but they look like acne scars to me." (T 327-328)

[153] Sergeant Kos's evidence on this subject was to the contrary. At T 375-376, Sergeant Kos gave the following evidence: "Q. Did the comment about dirt abrasions represent something that you would have noticed? A. Yes.

Q. What do you mean by the phrase, "dirt abrasions"?

Q. Yes, go on? A. It would have been from his face hitting - hitting the dirt or rubbing against dirt and - yeah, leaving dirt - a dirt mark on his face, maybe some scratches underneath it.

Q. If we go down to "visual assessment", do you see, "A. Does the person complain of or show any obvious sign of pain, injury or illness."-- A. Yep.

Q. --"Comment: Has dirt abrasions on his face."? A. Yep.

Q. Would that have been something said to you or something you noticed? A. Something I saw, yeah.

Q. For both the custody management records, where there are questions and answers and there is Y or N, are they in accordance with the answers to the questions you received from either Mr Kawenga or Mr Moses? A. In the questionnaire?

Q. Or in the visual assessment? A. In the visual assessment--

Q. Is that your assessment? A. What I saw, yeah, and the questionnaire what he answered."

[154] I prefer Sergeant Kos' contemporaneous note and careful and honest evidence to the explanation to the surmise ("probably just") of Detective Constable Porter.

[155] Detective Acting Sergeant Buttel said there were "probably eight police" involved in restraining Mr Moses, and that he himself was attempting to restrain or hold Mr Moses to the ground by holding on to his shoulders (T 257) after having first wrestled him to the ground (T 261) in a "melee" (T 269).

[156] Detective Constable O'Brien denied that any assault occurred, and said Mr Moses was not on the ground for any longer than a minute, although he agreed Mr Moses was face down in the mud (T 168).

[157] The defendant submits that Mr Moses' facial marks are "not consistent with a severe bashing" and complains that no independent witness is brought by the plaintiffs to give some independent account of "this alleged vicious and brutal bashing, involving multiple police laying into Mr Moses and into Mr Kawenga" (written submissions paragraph 198). It is asserted that the plaintiffs' claimed beating "would have resulted in very severe injuries" and that there is no evidence of Mr Moses seeing a doctor (written submissions paragraphs 198-199).

[158] The photographs taken by Mr Moses' mother, her evidence, the report of Sergeant Kos, his evidence, the photographs taken by police at the station and the evidence of both the plaintiffs all point to Mr Moses having suffered some injuries to his face and chest during a struggle with up to 8 police officers who, on their own account, seized him with at best a few seconds' warning. It is not necessary for the plaintiff to establish a "severe bashing". The circumstances in which Mr Moses was wrestled into having his face down in the mud by at least three and up to eight police officers, causing abrasions to his face and chest, is not reasonable force in circumstances where he was seized without warning and had not committed any offence.

[159] As to the appropriate amount of force, ss 230 and 231 of LEPRA provide: " 230 Use of force generally by police officers

It is lawful for a police officer exercising a function under this Act or any other Act or law in relation to an individual or a thing, and anyone helping the police officer, to use such force as is reasonably necessary to exercise the function.

A police officer or other person who exercises a power to arrest another person may use such force as is reasonably necessary to make the arrest or to prevent the escape of the person after arrest."

[160] The question is what force is "reasonably necessary".

[161] The NSW Court of Appeal in Rixon v Star City Pty Ltd (formerly Sydney Harbour Casino Pty Ltd) (2001) 53 NSWLR 98; [2001] NSWCA 265 noted the definition set out in Clerk & Lindsell on Torts, 17th ed (1995) London, at 590: "[56] A traditional definition of assault is "an overt act indicating an immediate intention to commit a battery, coupled with the capacity of carrying that intention into effect"; see Clerk & Lindsell 12-12. The irrelevance of the intention to carry the battery into effect is demonstrated by the act of presenting an unloaded firearm in such circumstances that if it had been loaded its discharge would have been likely to cause injury. Such an act is an assault unless the person at whom it is pointed knows that it is empty; see generally Clerk & Lindsell 12-13."

[162] If an assault is proved, it is for the defendant to prove that the assault was justified. Smith J in Walker v Hamm [2008] VSC 596 at [37]-[38]: "[37] Where the defendant alleges justification for the blows struck, the law would appear to be that the onus of proof will rest with the defendant to prove that the action taken was justified. That will turn on a consideration of all the evidence but if, on the evidence, the defendants fail to establish lawful justification for the relevant physical contacts, liability will follow. I note, however, that the plaintiffs seek aggravated damages and exemplary damages. To the extent that it is relevant to the claims for such damages, the relevant plaintiff bears the onus of proof to establish facts relevant to prove that the acts of Carter and Sesin warrant such damages.

[38] Because of these complexities, I have taken a practical approach to the actual fact finding task by proceeding on the basis that the plaintiffs bear the onus of proof on all the factual issues and that in relation to liability issues, Briginshaw v Briginshaw applies. In my judgment, this practical course has not disadvantaged the plaintiffs."

[163] As these are police officers, ss 230 and 231 of the LEPRA apply. As indicated elsewhere, although the parties did not refer to Briginshaw, given the seriousness of such an allegation against the police, I have, pursuant to s 140, been careful to analyse the evidence in these proceedings at that standard.

[164] Concerning the circumstances in which police may be found to have assaulted a person they have arrested or otherwise detained, the defendant relies upon Woodley v Boyd [2001] NSWCA 35 at [37] per Heydon JA: "[37] According to some writers, at common law, which applies in New South Wales, a person effecting an arrest may use whatever force is "reasonable" in the circumstances (Archbold: Criminal Pleading Evidence and Practice 2000 para19-39) or "reasonably necessary" ( Wiltshire v Barrett [1966] 1 QB 312 at 326 and 331). "Thus if the arrestee offered resistance, the arrestor could increase his force in proportion to the force of that resistance": R W Harding, The Law of Arrest in Australia (eds Duncan Chappell and Paul Wilson) The Australian Criminal Justice System (2nd ed, Butterworths, 1977) page 254. A more elaborate test has been propounded in the context of whether the killing of a felon in the course of committing a felony is a justifiable homicide, or manslaughter, or murder. It was put thus by the Full Court in R v Turner [1962] VR 30 at 36:

"When a felony is committed in the presence of a member of the public, he may use reasonable force to apprehend the offender or for the prevention of the felony. What is reasonable depends upon two factors. He is entitled to use such a degree of force as in the circumstances he reasonably believes to be necessary to effect his purpose, provided that the means adopted by him are such as a reasonable man placed as he was placed would not consider to be disproportionate to the evil to be prevented (ie the commission of a felony or the escape of the felon)."

It may perhaps be questioned whether the tests stated apply where the arresting party causes injury to the arrested party, as distinct from death. However, for present purposes it is convenient to assume, as counsel for both the plaintiff and the defendants did, that R v Turner states the law in that context as well. In evaluating what is reasonable, necessary or reasonably necessary the duties of police officers must be remembered. In Lindley v Rutter [1981] QB 128 at 134 Donaldson LJ said:

"It is the duty of any constable who lawfully has a prisoner in his charge to take all reasonable measures to ensure that the prisoner does not escape or assist others to do so, does not injure himself or others, does not destroy or dispose of evidence and does not commit further crime such as, for example, malicious damage to property. This list is not exhaustive, but it is sufficient for present purposes. What measures are reasonable in the discharge of this duty will depend upon the likelihood that the particular prisoner will do any of these things unless prevented. That in turn will involve the constable in considering the known or apparent disposition and sobriety of the prisoner. What can never be justified is the adoption of any particular measures without regard to all the circumstances of the particular case."

The same duties and considerations apply where a police officer is deciding how to effect an arrest. And, in evaluating the police conduct, the matter must be judged by reference to the pressure of events and the agony of the moment, not by reference to hindsight. In McIntosh v Webster (1980) 43 FLR 112 at 123, Connor J said:

"[Arrests] are frequently made in circumstances of excitement, turmoil and panic [and it is] altogether unfair to the police force as a whole to sit back in the comparatively calm and leisurely atmosphere of the courtroom and there make minute retrospective criticisms of what an arresting constable might or might not have done or believed in the circumstances."" [165] In Woodley the plaintiff resisted arrest and in the ensuing struggle broke his arm. On appeal, it was noted that the plaintiff had failed to particularise the circumstances in which the police officer put his hand on his arm to restrain him, which could have been considered provocative: Davies AJA at [96]. Constable O'Brien said that only reasonable force was used to control Mr Moses (T 168, 190-191) as did Detective Acting Sergeant Buttel (T 268).

[166] When apprehending the plaintiffs, the police had the following information: (a) They believed Mr Moses, but not Mr Kawenga, was the person they were looking for.

(b) Mr Moses was not trying to leave the scene; he was walking along the street and Mr Kawenga was sitting in the car at the time they moved to seize Mr Moses. Mr Kawenga then ran away but stopped.

(c) There is no claim of self-defence by the police officers, or that they were assaulted by either plaintiff.

(d) This was not a crime scene where there was risk of danger to a third person or victim, such as a report of a domestic violence situation. There was in fact no report of any crime and there were no pedestrians in the immediate vicinity who were likely to be attacked or endangered.

(e) In terms of "agony of the moment", there was no claim of urgency on the basis that a crime was about to be committed, or the offenders about to leave the scene.

(f) Police substantially outnumbered the two plaintiffs, not only in personnel numbers but equipment ( Rowe v Kemper [2009] Qd R 1 - the presence of six police officers for one offender a relevant factor).

(g) The police were not called to an emergency scene, but in place, ready to spring into action.

Findings concerning the assault claim brought by Mr Kawenga

[167] In relation to Mr Kawenga, the two police officers who pursued him would have been entitled to assume that he was attempting to flee. The way in which they grabbed hold of him was not sufficiently firm to cause any bruising. The leg sweep was to get him to sit on the ground. On the "agony of the moment" test, given that Mr Kawenga appeared to be attempting to escape, despite being called out to ("Police", "stop"), this is force that is within the parameters of ss 230 and 231.

Findings concerning the assault claim brought by Mr Moses

[168] In relation to Mr Moses: (a) He was either "loitering" or walking along the street at a normal pace, not fleeing, and there was no suggestion by the police that he attempted to flee, which reinforces the impression given by all the evidence that the police, who were in plain clothes, "jumped" him in a surprise move.

(b) Although he struggled, he appears to have been in the grip of police officers so effectively that any struggle was ineffectual, suggesting overpowering force.

(c) He was grabbed by at least three, and up to eight, officers in a melee, and forced to the ground with his face down into the mud. He suffered minor lacerations to his face and chest.

(d) He had not been seen to commit a crime and there was no victim or potential victim within the vicinity on the evidence before me. It was not put to Mr Moses that he was approaching a car slowed down in the traffic, or watching the traffic to look for a victim. The highest the police evidence went was that his manner was "nervous".

[169] The amount of force used to stop and arrest Mr Moses was not reasonable force. While the apprehension of Mr Kawenga was understandable (in that he was fleeing) Mr Moses had been walking or "loitering" along the street. There is no evidence that the manner of his walking along the street would cause the police to believe he was likely to commit an offence, or to be dangerous to members of the public, or that he was fleeing the scene. The Operational Orders required the officers to wait until an offence was committed or about to be committed, and there was no such evidence here. As there were so many police officers on the scene, he could have been stopped if he attempted to flee. It was a dark rainy night and Mr Moses was wearing a hooded jumper, yet the only reason for stopping him was that Detective Constable Porter had identified him and, as police knew, identification evidence was notoriously unreliable as a general rule. If they thought Mr Moses was the offender, they could have stopped him to have a better look or, since they were in plain clothes, approached Mr Moses unobtrusively (although I note this was not put in cross-examination). Judging by the ease with which Mr Kawenga was apprehended after he started to run, Mr Moses would not have got far, if he had tried to escape.

[170] Accordingly I find that the force used to effect Mr Moses' arrest was excessive. I have set out in Section F below a consideration of his claim for damages.

D. THE CLAIMS FOR WRONGFUL ARREST AND FALSE IMPRISONMENT

[171] This brings me to consideration of the circumstances in which each of the plaintiffs was arrested and detained, and to the claims for false imprisonment. I note the parties agree that there is no separate tort of unlawful or wrongful arrest and that it is a species of false imprisonment because it has the effect of depriving a person of their liberty: Spicer v Holt [1977] AC 987 at 1005 per Lord Edmund-Davies.

[172] The basis upon which the plaintiffs were held was the police suspicion that Mr Moses (not Mr Kawenga) had committed the robbery the previous day, so I shall start with a consideration of this evidence. In brief, what this evidence shows is that the police went from confidence in the arrest to doubts as to whether either of the plaintiffs (and particularly Mr Kawenga) had committed any offence at all.

Reasons for suspicion leading to the arrest of Mr Moses and Mr Kawenga

[173] Detective Porter gave the following reasons for charging Mr Moses following the record of interview: (a) "I believed I had a hundred per cent identification on the suspect" (T 292);

(b) "There was [sic] discrepancies in his ERISP interview as well" (T 292). At T 292 Detective Porter set these out:

(i) He asserted Mr Moses could not remember what jumper he had on and whether he had the hood of his jumper over his head when he was wearing it the day before (T 292-293). However, Detective Constable Porter agreed in cross-examination that Mr Moses said he was wearing the jumper, and that he "just read it wrong" and it was not a discrepancy;

(ii) Mr Moses said that when he drove to his parents' home the previous day, he had driven via Cleveland Street (T 293);

(iii) Mr Moses's explanation of ringing up from the public phone box to see if his father was home rather than going up to the security building to gain access was suspicious, as it would have been shorter just to walk there (T 293);

(c) He was unconcerned by the fact that a search of the plaintiff's family home and car had revealed nothing (T 291), or that Mr Moses was not on the list of suspects of Detective Acting Sergeant Buttel; or that Mr Moses had offered to have his car, his parents' home and his own home searched; or that the description given by the victim and witness was of a taller, older person not wearing this distinctive blue jumper (T 311);

(d) Fundamentally, Detective Constable Porter's reason for arresting Mr Moses was the "physical appearance" of the jumper and the "facial appearance" of Mr Moses (T 304).

[174] In fact, neither of the two persons observed by Detective Porter the day before the arrest as getting out of the plaintiff's car were described as wearing this distinctive jumper: "Q. You observed two males in dark clothing standing around a white Falcon sedan? A. Yes.

Q. You now believe them to be Moses and Kawenga, is that right? A. Yes.

Q. Neither of those males you describe as wearing this unique blue jumper, is that right? A. Yes, they weren't wearing it.

Q. Then one male walked inside the unit complex of 341? A. Yes.

Q. Is that where Mr Moses' parents reside? A. Yes." (T 306)

[175] Those persons got into the car and drove away before the 4 September robbery, in any event (T 306). I consider that significant, as is the fact that the robber was unaccompanied, and on foot, in circumstances where there was no suggestion that the plaintiffs had returned to the scene.

[176] Detective Constable Porter said that the most distinctive feature was Mr Moses' facial appearance. He said the following to Mr Evatt in cross-examination: "A. As I said before, everything matched. The hoodie, the physical description, chubby face, racial appearance. If - if - if you were standing there in that blue hoodie, I wouldn't have arrested you.

Q. Why not? A. Because you don't look anything like him." (T 310)

[177] Mr Kawenga was arrested because he got out of the car and ran away, so his arrest was really for being in the company of Mr Moses, who was believed to be the offender the police were looking for.

Other evidence leading to the arrest of both the plaintiffs

[178] The claims brought by the plaintiffs arise from the circumstances in which the plaintiffs assert that they were arrested and imprisoned without lawful justification. The defendant has the onus of proving that the arrests were justified under s 99 of LEPRA and/or pursuant to the common law. This requires a detailed consideration of the circumstances in which police came to investigate a series of robberies from vehicles which, it is asserted, caused them to suspect that Mr Moses and Mr Kawenga were the robbers in question.

[179] The first thing to note is the factual situation concerning a series of robberies commencing on 24 August 2008 and predating this incident. These five robberies about which evidence was tendered showed a pattern of women drivers who had their handbags stolen from their cars while they were stopped at lights or driving into their driveways. Not all of the incidents were put into evidence; the ones which were, were intended to describe the circumstances in which an offender wearing what was variously described as a light blue or sky blue hooded jumper carried out the robbery, this being the kind of jumper that the police asserted Mr Moses was wearing on the day of the incident.

[180] I shall first set out the incidents involving a blue hooded jumper, which formed part of the factual circumstances leading to the covert robbery operation which was the subject of the Operational Orders.

[181] The following police statements described a light blue hooded jumper, with one of the victims helpfully noting there were "no brands" on this jumper: (a) Exhibit 9 (24 August 2008) - Two women walking along the street were accosted by two men asking for 50 cents. One of them had short blonde shaved hair, was 180 cm tall, skinny build with freckles and a small amount of facial hair; he was wearing a "light blue jacket" with the hood over his head. The second man was 185 cm tall, medium build with brown skin and a third man who came up was just described as "skinny". The men pursued the women and pushed them to the ground, stealing their handbags. None of these physical descriptions could match either of the plaintiffs.

(b) Exhibit 10 (27 August 2008) - A woman driver, in an incident lasting "a couple of seconds" (paragraph 8) had her bag stolen out of her car while stopped to enter an underground car park. She "did not get a very good look at the man at all" but said he was wearing a "light blue hooded jumper" and dark coloured pants (paragraph 6).

(c) Exhibit 11 (28 August 2008) - A woman driver returning from an early morning "boot camp" had her "Spyder" brand red and white ski jacket stolen from the front seat of the car. The man who took it opened her car door, looked underneath the jacket, looked at two plastic bags in the back and demanded several times to know where her handbag was, so this witness had a good opportunity to observe him. He was in his early twenties, of Aboriginal appearance although not particularly dark, five foot seven or eight inches tall and stocky, with thick lips and a chubby face. His left hand was bandaged. She added: "He was wearing a pale blue hoody. I did not notice any brands. He was also wearing dark track pants and white runners".

This witness's careful description, in paragraph 12, of her own jacket gives an indication of what she meant by "brand". Her jacket was a "Spyder" brand, with "Spyder" written on the inside collar and "basically all over it". She added that hers was a "very distinctive jacket".

Given this witness' careful description of the offender's appearance and dress, and the length of time she had to observe it, her reference to a "pale blue hoody" could not be interpreted by anyone as a reference to the hoody the plaintiff was wearing.

(d) Exhibit 12 (6.35 a.m., 31 August 2008) - A woman was out walking when a black colour sports car pulled up beside her. The two men inside were wearing baseball caps, one red and one black. The man in the passenger seat was in his early 20s and of Middle Eastern appearance. He grabbed her handbag and there was a struggle. After he obtained the bag, he went back to the car which drove off. She did not think she would recognize him again because his face was partially covered by his hat.

(e) Exhibit 12 (31 August 2008) - A woman was returning from church, on foot, when she saw a man standing next to a tree, smoking. He was "pretty tall, around 185 cm tall, thin build, dark skin, 25 - 30 years old, short black curly hair, black beard, wearing a dark coloured 'Puma' top and dark matching pants" (paragraph 4). He grabbed her bag and after a struggle ran away with it. The victim looked at photographs of some men at the police station but did not recognise any of them. The description could not match either of the plaintiffs, who look very young and do not have beards.

It was following receipt of statements from victims of this kind that Detective Acting Sergeant Buttel, the sergeant at the station who had considerable knowledge of the criminal activities in the local area, put together some Operational Orders and also a list of potential offenders. I shall set out the relevant extract of the Operational Orders:

Redfern Robbery Unit is conducting a Robbery operation to target those offenders believed to be responsible for street level robberies in the McEvoy Street and surrounding area., [ Portion deleted on the basis of claim for immunity ]

Redfern Police aim to target offenders responsible for Street Robbery offences and steal from motor vehicle offences. The operation will be conducted around the McEvoy Street, Waterloo, Cleveland Street, Redfern and Elizabeth Street, Redfern. The main focus of this operation will be the intersection of McEvoy Street and Botany Road, Alexandria.

[ Portion deleted on the basis of claim for immunity ] Upon sighting a possible robbery offender the officer allocated to the surveillance post will notify police in the covert vehicles of the location of the poi and it will then be the responsibility of the surveillance officer to direct police in towards the location without being burnt by the offender/s. If police detect an offence being committed the surveillance officer will inform police to move in towards the direction of the offender. Police need to keep in mind the offender will not stand still after committing the offence so police need to approach the offender/s location from different directions. (IE: George Street Cope Street and McEvoy Street) . The targets for this operation are known to run back towards the DoBell Building on the corner of Pitt Street and McEvoy Street, Waterloo and the housing commission unit block on the corner of George Street and John Street. This building can also be accessed via McEvoy Street and John Street. Investigators believe that the offender committing robberies at this location maybe [sic] responsible for the majority of the robberies at this location over the past two weeks. If a [sic] offender is arrested police will be attempting to locate an address and a search warrant will be sought in an attempt to locate property and clothing from the other robberies.

LOC2: Cleveland Street + Chippen Street, Chippendale. (This location is only if an arrest is made at LOC1)

[ Portion deleted on the basis of claim for immunity ] If a person is deemed to be a robbery target the covert vehicle will move in towards the poi and observe his movements until he commits an offence. At this time he/she will be arrested. There are no specific robbery targets at this time, however, numerous person/s known for robbery & a kin [sic] offences and known to frequent the area, have been identified and are attached to the orders.

All staff will complete a 9.5 hour shift that will commence at 3pm on all three days with a brief to be held on level 4 at 3.05pm

Detective Acting Sergeant Buttel will be conducting a downloaded [sic] relating to persons of interest who have been allocated as suspects in Robbery offences. This aims to identify particular offenders. Over the past two weeks there have been several robberies in this area at different times through the day. If at any time something is identified as a possible threat (ROBBERY ABOUT TO HAPPEN) police are to call for urgent assistance via channel 62

RF 104 Detective Acting Sergeant Stephen Buttel Detective Senior Constable Jess Porter Plain Clothes Senior Constable Peter O'Brien

RF 140 Acting Sergeant Bradley Russell Cst KNIGHT Cst Brogan

RF 104 Detective Acting Sergeant Stephen Buttel Detective Senior Constable Jess Porter Plain Clothes Senior Constable Peter O'Brien

RF 140 Acting Sergeant Bradley Russell Cst KNIGHT Cst Brogan Cst Casey

RF 104 Detective Acting Sergeant Stephen Buttel Detective Senior Constable Jess Porter Plain Clothes Senior Constable Peter O'Brien

RF 140 Acting Sergeant Bradley Russell Cst Brogan

[ Portion deleted on the basis of claim for immunity ]

To reduce the occurrence of robberies within the Redfern LAC, engage robbery targets and cause the apprehension of offenders.

All participating staff are to report to Level 4, robbery unit office at 3.05 pm for a full briefing and vehicle allocation. At this time a through download of robbery offenders will occur. This will target person's [sic] of interest that are suspected of committing robberies over the past 60 day period.

The POI's [sic] identified will be targeted by the operational police. This may include surveillance, HVP or other means deemed necessary. The majority of this operation will be covert until the time of the arrest. Upon an arrest being made the assessment will be made by D/A/Sgt Buttel and A/Sgt Russell to move the robbery operation location.

A briefing will occur in the Robbery Unit Office, Level 4. All operational staff are to report to Level 4 robbery office at 3.05pm each night of the operation for a full operational briefing.

The Operational Orders were dated 1 September 2008. The operation was due to start on Thursday, 4 September 2008. There were two further bag snatches on 3 September 2008 and the description of each of these incidents, which occurred at 6.49 pm and 11.00 pm respectively, is set out in witness statements as follows:

(f) Exhibit 12 (6.49 p.m., 3 September 2008) - This woman had her Fitness First gym bag taken from the front passenger seat while her car was stationary in traffic at a red light. She struggled with him and the contents fell out, with her wallet falling into the gutter. She described her assailant as having a dark complexion with some facial hair and "dark coloured hair" (i.e. not wearing a hood) and as wearing a "dark-coloured top" (paragraph 4). He ran away with the backpack. This was witnessed by another driver, Sarah Dent, who gave her details to the victim. Both the plaintiffs are clean shaven.

(g) Exhibit 12 (11 p.m., 3 September 2008) - This woman was a passenger in another woman's vehicle and had two bags at her feet. They stopped at their apartment block to activate the security door. A man of medium build with olive skin short brown hair, brown eyes, aged 20 - 25 years and "not Caucasian" grabbed the bags and there was a struggle. He was wearing white runners, navy/black "trackies" (a tracksuit) and a navy jumper. In paragraph 8 the witness states "I saw the male from about 30 cm away and would recognize him if I saw him again".

(h) Exhibit 12 (the same incident, 3 September 2008) - This woman was driving the woman who made the previous statement. She had stopped at the basement car park entrance when she noticed someone walk behind the back of her motor vehicle. She saw this person open the passenger door and described him as late twenties, medium build, olive complexion, brown eyes, some facial hair and short dark hair, and as wearing a dark coloured to [sic] with a hood and dark coloured Adidas track suit pants. Her car was examined for fingerprints and she also gave a DNA sample.

[182] On Thursday, 4 September 2008, the police officers who were on covert duty observed a further robbery. According to Exhibit 12 in the statement of 4 September 2008, this woman was driving her car behind her boyfriend's car when the two cars stopped at the lights. A male person 180 cm tall, average to medium build, opened the passenger door. It "all happened so fast" that she did not remember exactly what colour his "dark coloured hooded jumper or jacket" was.

[183] This was recorded in a COPS entry as follows: "Informant advising that his partner's handbag was snatched from her vehicle at an intersection AA. Informant was starting to give details when police arrived. Person of interest described as Caucasian appearance, mid to late 20s, 6-ft medium build, wearing a hooded jumper NFD, direction of travel not known." [Text altered to include complete words]

[184] No reference is made to the colour or distinctive appearance of the hooded jumper. Constable O'Brien, in his duty book, noted that he was involved in a foot pursuit of an offender in a "sky blue hooded jacket" but without result. This is different from his evidence in court, where he referred to the hooded jumper having a very distinct white circular pattern: Even in his evidence, Constable O'Brien did not describe the circular pattern. He referred to a hoody with a "distinctive colour" which he could describe as a sky blue colour and which had a "white motif on the front" (T 165).

[185] A clear description of the white circular pattern was given by Detective Constable Porter in his duty book, namely: "About 5.45 pm I observed a stocky male (Islander/Aboriginal) about 5' 9" wearing a sky blue long sleeved hooded jumper with the hood pulled tight around his head. There was a distinctive circular white pattern on front of jumper. His face was chubby and his skin was fair for his race."

[186] Detective Constable Porter is the only person to describe a "distinctive circular white pattern" on the front of the jumper in any police record. None of the victims prior to the robbery gave any such description These witnesses gave descriptions of a pale blue hooded jumper, and did not mention any logo on it. The victim who was attacked on 28 August 2008 gave a careful description of a pale blue hoody which did not have any brands, which was in contrast to her own jacket, the brand of which was described in some detail as being a "Spyder" brand. Nor was there any reference to this distinctive colour or circular logo. The photographs in evidence show it as brilliant sapphire blue rather than pale blue (as described by the victims) or sky blue (as described by Detective Constable O'Brien), with a very large white circle and large lettering in Spanish, which nobody except Detective Constable Porter (in his duty book, not the COPS report) noted.

[187] Could there be two such hooded jumpers? There is no evidence about this, but it is something the police could have stopped to think about before seizing Mr Moses when they saw him wearing it.

[188] As noted elsewhere, both Mr Moses and Mr Kawenga were considerably shorter than these persons. Neither of them is of Aboriginal extraction. While a number of the descriptions refer to a person in their late 20s, both Mr Moses and Mr Kawenga look much younger than their age; Mr Moses in particular looks barely out of his teens. Mr Moses was the wrong height, the wrong age and the wrong race by comparison to the person the detectives pursued the day before.

[189] Having arrested the plaintiffs, the police then proceeded to carry out a record of interview.

[190] The first record of interview was conducted with Mr Kawenga. It is a remarkable document, not only for the fact that there is not a single question put to Mr Kawenga about his involvement in any criminal conduct. Although on page 1 Detective Constable Porter says he intends to ask questions about an investigation into bag snatches, stealings and robberies in McEvoy Street, the questions he asked concerned Mr Kawenga's employment, how he came to be in the area on the night that he was arrested, what assets Mr Moses had, and how he came to get out of Mr Moses' car. Not one question relates to any asserted criminal act by Mr Kawenga.

[191] In the course of the record of interview, Mr Kawenga said he was not watching what was happening; he was sitting in the car and simply heard Mr Moses call "Help, help". He then got out of the car intending to go to McDonalds or to call the police for assistance. He saw four persons on top of Mr Moses so he decided to run into McDonalds to get help. He saw one of the men looked at him and as he was afraid he would be chased so he ran. It was then that a woman police officer said "Stop police", and he saw the police radios (record of interview, question 235), so he stopped running. Although he was asked about this aspect of the circumstances of his apprehension, no question was put to him about whether or not he had committed any robberies.

[192] At question 294 in the record of interview, he was asked if he had any complaints to make about the manner in which he was interviewed. It was then that he gave his version of what occurred, including the words that were spoken to him by the police at question 295. "Q294 Have you any complaints to make about the manner in which you were interviewed here today? A I'm just trying to understand why like one of those fellows, I think the one in the red, black shirt said he saw my mate David, just that he jump over a fence and chased them, it's bullshit, where the fuck do they come out with that, it sounds like bogus to me and they just come up with stories trying to make me confess, I mean.

Q295 O.K. A Yeah. Then what they did to me when I got caught when they got me they fuckin', one of them's fuckin' kneeing me in the head saying, he saying, well one of the guys are going to me, You're fucked now, you're gunna go to gaol you fuckin' scum or some shit like that, and I went, I didn't do shit. And then the one guy's got his fuckin' knee on my head and like, Yeah, yeah, don't don't you swear punk or some shit. And they kept fuckin', what's it, How old are you, 21, or you're fucked, yeah, all this smartarse shit, but yeah besides that it's good."

[193] Reading this record of interview, it is obvious that the police had realised that Mr Kawenga, a person with no prior criminal record and gainfully employed, who bore no resemblance to any of the persons who had been observed robbing cars, and who was participating with their investigation in a full and frank way, had nothing to do with any criminal activity, let alone the bag snatchings that they were investigating.

[194] At 9.05 pm a record of interview was conducted with Mr Moses. Mr Moses could not have been more helpful. He answered every question fully and frankly. He offered to participate in a line-up for every bag snatch victim and he welcomed the police to search his motor vehicle, his home and his parents' home.

[195] He provided frank details about his prior and proposed future employment history (Q19-30), his financial situation including his outgoings (Q31-48), his association with Mr Kawenga (Q48-55), his family (Q56-64), including the fact that he needed to contact his parents to be let in because of the security system for their home. He described his activities on 4 September, including a visit from his aunt, who brought his dinner (Q132-134) and described the rest of his activities on that evening (up to Q164). He said he wore the blue jumper a lot (Q166) and then answered a series of questions about the events of Friday 5 September. He said at Q202 that after he saw his father's car, he decided to go to the pay phone and give his father a telephone call and "then I was tackled by you guys" (Q202). The questions concerning an identification parade commence at Q225, where Mr Moses is told that a warrant has been taken out to search his parent's house and he is asked to participate in a line-up. He said "Yeah, I'll do it" (Q226), which he repeats at Q227. A detailed version of this record of interview is set out in the section concerning malicious prosecution below. (I pause to note, concerning Mr Moses's description of being in his Bondi Junction home watching Foxtel programmes (which he described) while having a visit from his aunt bringing his dinner could have been alibi evidence, and that there is no evidence of the police checking the programmes he said he watched or contacting (or even asking for the name of) the aunt. However, since this was not put to these police witnesses, it is not a matter I can take into account).

[196] After so much persuasion, Mr Moses agrees he will not take part in the line-up (Q233) and he is again asked that question at Q255, Q267-269. But then at Q271-276 Mr Moses says: "Q271 Where property was stolen. Would you like to participate in an identification parade --- A No, really, really, if I've got nothing to hide, and, look, I accept to thee things, man, I'm just feeling really nervous, what if this person is Aboriginal or something, and out to target me, you know what I mean? Or, I don't know, I don't know…… I'm just thinking a giant conspiracy so, really, I, if, if you want to throw me in a, for all these matters throw me in a what do you call ---

Q 272 Identification parade. A Yeah, I'll go through with it. Sorry about that, you know?

Q273 All right. So, at 6.40pm, on Wednesday, the 27th August we had another similar stealing offence --- A Yeah.

Q274 --- in McEvoy Street. A I've got nothing to hide, mate, and you can search my parents' properties, you can search my properties, I've got nothing to hide, I just feel really, I don't know, I' really nervous, and ---

Q275 OK. Did you, would you like to participate in an identification parade in relation to that matter? A Yes, yes, yes, is that, is that for all of these matters?

Q277 There's another, there's another few to go. A Yeah."

[197] He repeats this in relation to all the other charges (e.g. Q284-297), when he said "And it's yes to all of them." He says at Q299: "Q299 Not a problem. Have you got anything further you want to say about those allegations? A Yeah, you can check everything that I own, I have no stolen property, I've only been in the area probably I don't know, every second week, visit my dad, speak to my dad, that's it. Besides these last couple of days I've come to pick up [Mr Kawenga]."

[198] He repeated this to Sergeant Kos at Q346 where he volunteered that they could search his car as well.

[199] Despite knowing that Mr Moses no longer lived there, the police came to Mr Moses' family home. Mr Abraham Moses described the police search as follows: "Q. Yes, but did later on the police come to your house? A. Yeah.

Q. And what did they do in your house? A. He came. He was searching to see if there was anything. He went to my son's room, and he couldn't find anything, and he said, "I saw him." I was wondering what was he talking about. He saw because he was wearing a blue shirt, something like that. As far as I remember, he said, "He was wearing a blue shirt." Just by the colour of a person's shirt, he's going to arrest him? He said, "I saw him."

Q. Is that what you said? A. And if he didn't do it - commit the crime, then how could he say that he saw him.

[200] I had the advantage of seeing Mr and Mrs Moses in the witness box. They are responsible members of the community and loving parents. They had no hesitation in allowing the police to search.

[201] Mr Moses' car was also searched with nil result (initially the court was told there was no search, but this was corrected). Police did not search Mr Moses' own home. The reason given for this by Detective Constable Porter was that there was unlikely to be anything there, but since the real offender's family and girlfriend's home turned out to be an "Aladdin's cave" of stolen property (T 271), I find this implausible.

[202] Although there were no admissions to this effect, it is apparent from the records of interview and the evidence of Detective Acting Sergeant Buttel (who said from the first that the real offender was likely to be Mr Haines) that at some time during the evening some of the police began to wonder if they had a case of mistaken identity for Mr Moses.

[203] What then were the reasonable grounds for the arrest of Mr Moses and Mr Kawenga? I shall briefly review the submissions of the defendant.

[204] The Defendant points to the following: (a) Mr Moses was wearing what was asserted to be the same distinctive jumper as the man who robbed a car and escaped the day before on 4 September 2008.

Note, however, not one witness apart from Detective Constable Porter made a contemporaneous note about the distinctive circular pattern or distinctive colour. In fact, the jumper is not pale blue or sky blue, but a brilliant sapphire blue with a very prominent circular motif and writing in Spanish.

The time of Detective Porter writing in his diary is established by being noted by Detective Acting Sergeant Buttel on 6 September 2008 at 9.25 pm. That notation relates to the entries of 4 and 5 September. Detective Porter said that he wrote his entry on 4 September 2008 but there is no corroborative evidence of this, nor was there any explanation as to why this distinctively branded hooded jumper was noted in the COPS report as a "hooded jumper" followed by "NFD" (no further description).

As the photographs which were tendered in these proceedings so vividly demonstrate, this was a very unusual jumper of a brilliant sapphire blue colour with an unmissable logo. There is, however, no note of this very distinctive article of apparel, either in the COPS report or in the victim's and witness's statements, or in Constable O'Brien's police diary, which refers only to a "sky blue hooded jacket".

(b) The person who escaped the day before had the same build and a similar facial appearance (T 283-284).

This is incorrect. Detective Porter's diary entry describes the man as 5-ft 9 ins, and being a stocky male of Islander/Aboriginal appearance. Constable O'Brien provides no description. The victim and witness described a person who was 180 centimetres tall, of average to medium build wearing a dark colour hooded jumper or jacket. The COPS report described a man of Caucasian appearance, mid to late 20s, 6-ft medium build wearing a hooded jumper.

(c) The location: both incidents occurred at the same place and Mr Moses' vehicle had been seen in the vicinity the day before. It was a distinctive vehicle with a green P plate.

Mr Moses' family had lived in this area since he was 5 years old, although he had recently moved away. The mere fact of his being in the area, without more, is not a significant feature. There was no evidence that a motor vehicle played any part in any of the other robberies; the offender the previous day had got away on foot, and the Operational Orders described a pattern of the offender running away quickly, not being parked at the scene. The only incident involving a car was the black sports car seen on the 31 August robbery.

(d) Mr Moses' conduct in driving about 20 metres, making a right hand turn and stopping and then getting out of his car.

Again, this is not conduct which, without more, would constitute grounds for thinking that Mr Moses was the same person as the offender who had been identified the day before.

Mr Kawenga was waiting in the rain and not going anywhere. He was observed to be waiting for someone. He got into Mr Moses' car and then they drove for a very short distance. He ran away when chased.

This running away was conduct warranting investigation, but by the time of the record of interview it was clear Mr Kawenga had no involvement in any criminal activity and no prior criminal record. Any suspicions arising from his conduct should have been resolved by looking at his answers in the record of interview.

[205] Mr Moses was charged with two offences: (a) Stealing a valuable security between 6.00 pm and 6.20 pm on 4 September 2008 at Waterloo (s 94).

(b) After having been convicted of an indictable offence, to wit, assault occasioning acts of bodily harm on 4 November 2005, going near certain premises in a certain public place, to wit, vehicles on McEvoy Street, Waterloo, with an attempt to commit an indictable offence between 5.40 and 5.45 pm on 5 September 2008 at Waterloo (s 546B).

[206] I shall consider each of these charges in turn:

[207] Beyond Mr Moses' general similar facial appearance to a person who stole from a motor vehicle the day before (according to the police, if not the victim) and the similarity of his jumper, there were no factors to connect Mr Moses to any crime. He was not seen committing any offence on the night in question. It was conceded he was not on the list of suspects which had been prepared (T 217, 270), a search of his parents' home disclosed nothing, except two anxious and respectable middle-class parents (T 340) and a search of his car (which was eventually conceded in oral submissions) revealed nothing.

[208] Detective Constable Porter said he did not search Mr Moses' home at Bondi Junction because he appeared "too confident" in his offers for police to search the premises. However, searches following Mr Haines' arrest resulted in an "Aladdin's cave" of stolen property.

[209] The description given by the victim was that of a person wearing a dark coloured hooded jumper (T 184 line 5). Although Detective Constable O'Brien said (at T 162 and 180) that Mr Moses and Mr Kawenga were wearing dark clothing on 4 September at about 5.30 pm, Detective Constable Porter claimed to observe Mr Moses wearing a sky blue jumper at 6.00 pm, the time of the robbery.

[210] Mr Moses, with a height of 165 centimetres, was considerably shorter than the person who was later arrested for these crimes, who was 177 cm tall. His youthful appearance and different racial background (with a Jewish father and a Filipino mother) meant he had superficial facial similarity to the person who was ultimately arrested for a number of the offences (although Mr Haines was not charged with the offence of 4 September 2008).

[211] He agreed to, and in fact asked for, an identification parade for every one of the many incidents put to him concerning stealing but when he agreed to an identification parade, Detective Constable Porter then tried to talk him out of it (see questions 225-234). Notwithstanding Detective Constable Porter's efforts, Mr Moses, from question 255 onwards, continued to request an identification parade for each of these offences. Since his "similar facial appearance" (defendant's submissions, paragraph 28) was a vital part of the evidence against him, this is surprising.

[212] Detective Constable Porter explained this by saying that victims of crime often make mistakes. However, detailed descriptions had been given by some of the victims, one had attended the police station to look at photographs, and police also had the advantage of the expert local knowledge of Detective Acting Sergeant Buttel to call upon.

[213] There was significant evidence which should have caused the police concern prior to Mr Moses being charged. The discovery that he had loving and concerned middle-class parents and that he was, to use Detective Acting Sergeant Buttel's description, "a cut above", the usual Redfern Police Station inhabitant (T 275), was a minor point, but the complete absence of any other connecting factor to this series of bag snatches, apart from the fact that Mr Moses owned a sapphire blue hooded jumper of a very eye-catching kind, should have alerted the police to the fact that they had made a serious error. In particular, there was no evidence whatever that at the time they arrested Mr Moses and Mr Kawenga that they intended to commit an offence.

[215] The essence of this charge is that having been convicted of an indictable offence (namely the assault on his sister) Mr Moses went near vehicles on McEvoy Street intending to commit an indictable offence.

[216] The facts sheet prepared by Detective Constable Porter asserted that he "exited the vehicle and began to walk west along George Street" and that "police feared he was about to commit another offence due to his nervous behaviour".

[217] However, there is no evidence of Mr Moses exhibiting nervous behaviour and Constable O'Brien in fact conceded that he would not classify Mr Moses' conduct as "nervous" (T 210 line 35).

[218] It was not put to Mr Moses that he was acting suspiciously (T 104-105). Constable O'Brien conceded in cross-examination that Mr Moses did nothing untoward or to arouse suspicion after getting out of the car, which differs somewhat from his description in his statement, where he described Mr Moses as "loitering".

[219] Detective Constable Porter did not describe Mr Moses as looking nervous either. He described him as "looking intently at vehicles". He agreed in cross-examination that he arrested Mr Moses for what he thought he did on 4 September 2008 (T 317) and that he was arrested for this earlier offence (T 318). He said he did not care what Mr Moses was doing at the time, because he was determined to arrest him no matter what, and Mr Moses "could have been having a banana" (T 318) for all he cared.

[220] The circumstances in which the plaintiffs were seized and arrested were in fact contrary to Operational Orders 16.6 which provided: "If a person is deemed to be a robbery target the covert vehicle will move in towards the POI and observe his movements until he commits an offence. At this time, he/she will be arrested."

[221] I also note at page 3: "If police detect an offence being committed the surveillance officer will inform police to move in towards the direction of the offender."

[222] What the police did was to ignore the Operational Orders by not waiting until the suspect committed an offence. The excuse that they were concerned that he might run away was without merit as, unlike the day before, there was a large contingent of police in the area.

[223] As the police effectively admitted in their evidence as set out above, they arrested Mr Moses for what they thought he did the day before, rather than what he was doing on the day in question. They had no evidence he was loitering with intent to commit any offence, nor that he was involved with any of the other bag snatching offences. The offence of which he had been convicted was of an entirely different character, and arose from a family dispute, not acts of dishonesty. The bringing of a s 546B charge was unreasonable and malicious.

[224] The defendant in written submissions (at paragraph 173) refers to the fact that police prepared a report for the withdrawal of charges against Mr Moses (Exhibit 5, p 285) which makes it clear that only subsequent issues raised the possibility that Mr Haines or his co-offenders may have been the offender in relation to the steal from person offence for which Mr Moses had been charged. I agree that the question is what information the police had on the night when the plaintiffs were seized and taken into custody, interviewed and then released (in the case of Mr Kawenga) and charged (in the case of Mr Moses).

[225] Against this factual background I now consider the law relating to wrongful arrest and false imprisonment.

The law relating to wrongful arrest and false imprisonment

[226] The defendant submit that these arrests were carried out pursuant to ss 99(1)(c) or 99(2) of LEPRA or at common law. The question is what is reasonable in the circumstances of the individual case. It is not necessary for there to be prima facie proof (Dumbell v Roberts [1944] 1 All ER 326) and the grounds for arrest can include material that is not admissible (Hussein v Chong Fook Kam [1970] AC 942 at 949) such as prior convictions (McArdle v Egan (1934) LT 412 at 413 per Lord Wright).

[227] However, that does not entitle police to stop, search or arrest any person who has a prior criminal record, or is from the same racial background as an offender; the information relied upon must have "some probative value" (R v Rondo [2001] NSWCCA 540 at [53] per Smart J; see also Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266) and regard will be had for "the agony of the moment" rather than hindsight: Woodley v Boyd [2001] NSWCA 35 at [37] per Heydon JA.

[228] The law relating to false imprisonment has been substantially reviewed and explained in McFadzean v Construction, Forestry, Mining and Energy Union (2007) 20 VR 250; [2007] VSCA 289 (McFadzean) (special leave to appeal to the High Court was refused: see McFadzean v Construction, Forestry, Mining and Energy Union [2008] HCATrans 213). The elements were carefully analysed by Lindgren J (who acknowledged the role of counsel for the respondent in their drafting) in Whittaker & Anor v Child Support Registrar & Anor [2010] 264 ALR 473 at [177]: "(a) the plaintiff bears the onus of proof to establish that what happened (having regard to any restraints and any possibilities of egress) can be constituted as imprisonment;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[229] I accept the evidence of the police that when they seized each of the plaintiffs, they believed Detective Constable Porter and Constable O'Brien's identification of Mr Moses as the person they had observed commit a criminal offence the day before. The circumstances in which Mr Kawenga was seized related partly to his running away, conduct that police might reasonably apprehend as evidence of wrongdoing, whether or not such evidence was admissible or probative in a court.

[230] However, this situation changed some time after the plaintiffs were conveyed to the police station. This is evident from the records of interview, and in particular from the first record of interview that the police carried out with Mr Kawenga.

[231] Where police have reasonable suspicions of wrongdoing, and stop and detain a person, the continued detention of that person after the reasons for suspicion have been allayed risks amounting to false imprisonment.

[232] In White v South Australia [2010] SASC 95, protesters who were suspected of committing acts of civil disobedience such as rock-throwing were detained by police for up to seven hours in very primitive conditions. One of the reasons for the findings in favour of the plaintiffs was the heavy-handed manner of arrest and unnecessarily long circumstances in which the plaintiffs were kept in these conditions long after police had satisfied themselves that no substantive offence had been committed. Anderson J commented at [358] - [359]: "[358] The overall time in which protesters were detained was totally unjustified. It is my view that a period of one hour or so after detention, to allow things to settle down and to allow the area to be cleared, would have been more than adequate in the circumstances. There is no justification for imprisonment for up to seven or eight hours, as was the case. Operation Beverley contemplated a holding period of minutes rather than hours.

[359] Some of the action taken by some police officers was heavy handed and unnecessary, as I have said, in particular in relation to the use of capsicum spray and batons. Random arrests were made when protesters were singled out. Those persons in the case of the plaintiffs had not committed any substantive offences."

False imprisonment and continuance of the detention

[233] Not only must the defendant show the initial detention was justified, but that the continuance of the detention was also justified. In Dallison v Caffery [1965] 1 QB 348 Diplock LJ said at 370-371: "The trespass by the arrestor continues so long as he retains custody of the arrested person, and he must justify the continuance of his custody by showing that it was reasonable. What is reasonable conduct on the part of a police officer in this respect may not be the same as what would be reasonable conduct on the part of a private arrestor."

[234] In White v South Australia the defendant was unable to justify both the initial detention of the plaintiffs and its continuation (at [425]).

[235] I note the warning by Bryson JA in Zaravinos v New South Wales [2004] NSWCA 320 at [32] concerning the divergence of authority in Australia and the United Kingdom commencing with Dallison. However, the two principles referred to in Dallison which are relevant to this case remain uncontroversial. These are: (a) As to Mr Kawenga, the police were not entitled to arrest him for the purpose of questioning about matters unrelated to criminal offences, and to continue to detain a person for the purpose of questioning him in the form of a record of interview is impermissible. As Bryson JA went on to note in Zaravinos at [32]:

"There are statements in Bales v Parmeter at 188 to the effect that an arrest merely for the purpose of asking questions is not lawful; and in Ex parte Evers Re Leary (1945) 62 WN (NSW) 146 at 147 (Maxwell J) to the effect that because the arrest was for the purpose only of questioning it was at all times illegal."

(b) The tort of wrongful arrest and false imprisonment could still be committed even if the original arrest was lawful: Zaravinos at [35], noting Frost v State of New South Wales [2002] NSWCA 226. Bryson JA went on to note at [38]:

"Whether or not the arrests themselves were lawful, the burden of proof of the lawfulness of the continuance of the detention throughout the period rested on the defendants." [emphasis added]

[236] The defendant's submissions deal only with the circumstances of the detention and arrest at the scene of the crime, but not with the circumstances in which the plaintiffs were detained after it had become apparent, particularly in relation to Mr Kawenga, that he had not committed any offence either that night, nor could he be connected to any of the prior offences.

[237] It was during this period of time that the plaintiffs were searched. What they were searched for is unclear. In relation to Mr Kawenga, who was not a suspect at this stage, as I understand the evidence, this search was unnecessary. As Bryson JA noted in Zaravinos at [37] that evidence of conduct that was high-handed or humiliating as well as not connected to the actual investigation of any crime was evidence relevant to whether the tort could be made out. In Zaravinos the plaintiff complained of being fingerprinted and photographed; here, Mr Kawenga was "upset" about being strip searched (T 66). In addition, the plaintiffs were offended at questions about their racial background. The plaintiff in submissions also asks me to take into account that Mr Kawenga and Mr Moses were both asked an interrogatory about their racial background. Mr Moses was described in the COPS report as being Islander/Aboriginal in appearance although his Jewish heritage would have been unmissable to any police officer who had spoken to his father, Mr Abraham Moses, which police did that night. The COPS report also describes Mr Kawenga as an "Islander male" which Mr Kawenga considered both inaccurate and a racial slur.

[238] Taking all of the evidence concerning the circumstances in which the plaintiffs were detained, I am satisfied that while the police had sufficient grounds to warrant the detention and (in the case of Mr Moses) arrest of each of the plaintiffs earlier in the evening, they very rapidly realised that they had not only been overhasty (in that they did not wait for the real offender to commit an offence, as required by the operations order), but they had made a serious error of mistaken identity. In addition, the overzealous way in which Mr Moses had been arrested had led to him suffering physical injury which was noted by the custody manager. Instead of admitting their mistake and releasing the plaintiffs, Constables O'Brien and Porter detained them for a total of about 8 or 9 hours (the time of arrest appears to have been shortly after 5.40 pm according to the Facts Sheet and they were released some time after 1 am), searched them and conducted a record of interview in which it became increasingly obvious that neither of these persons was the offender.

[239] I am not only satisfied, but comfortably satisfied, that each of the plaintiffs can establish, on the facts of this case, a claim of false imprisonment. Damages are assessed in Section F below.

[240] This brings me to the question of the claim of malicious prosecution brought by Mr Moses.

E. THE CLAIM FOR MALICIOUS PROSECUTION BROUGHT BY MR MOSES

[241] The charges are set out earlier in this judgment. The "Full Facts" prepared by the police for the court were as follows: "OFFENCE 1: Steal from person.

On Thursday 4 September 2008, numerous police attended the vicinity of McEvoy Street Waterloo. About 6pm this date police observed the accused David Moses walking south toward McEvoy Street from behind the Dobell unit complex.

The accused was wearing a sky blue jumper with the hood pulled tightly around his head. There was a large white circular pattern printed on the front. He was also wearing long pants and shoes. He was Islander/Aboriginal in appearance and was stocky in stature.

The accused turned right onto McEvoy Street and walked west. At this time traffic heading west was banked up from Botany Road to the intersection at Pitt and McEvoy Street. Traffic travelling east was heavy but flowing.

The accused was acting extremely suspicious looking intently at vehicles and pacing back and forth. He then crossed McEvoy Street then turned sharply and returned to the northern kerb. He stood nervously again looking intently at the traffic. Then he walked diagonally back across McEvoy Street. Upon reaching the stationary west bound traffic he approached a Blue BMW NSW registration NBF04X. He opened the front passenger door and reached in and removed a ladies handbag which was sitting on the front passenger seat. The victim Hoang sat helplessly in the front driver's seat fearing for her safety.

He then ran with the handbag back to the northern side of McEvoy Street with items dropping from the bag. Investigators who were sitting approximately 20 metres from the incident pursued the accused on foot until they lost sight of him at the rear of the unit complex at 341 George Street Waterloo.

The victim attended Redfern Police Station and supplied a statement. Her vehicle was seized and fingerprinted with negative result. The property consisting of a handbag containing makeup, purse and 2 Driver's Licences has not been recovered.

On Friday 5 September 2008, investigators again attended the vicinity of McEvoy Street Waterloo. About 5.40pm police observed an Islander Male wearing a brown hooded jumper walk south across McEvoy Street near the George Street intersection.

He appeared to loiter around parked cars looking through the windows. Police fearing he was about to commit an offence began to watch him intently. At this time a White Falcon Sedan NSW registration ALF36K stopped on George Street approximately 10 metres from McEvoy Street. The vehicle was driven by the accused Moses.

The Islander Male Tangiwai Kawenga entered the vehicle. The vehicle drove off turning right into McEvoy Street. The vehicle stopped immediately on the northern kerb of McEvoy Street.

OFFENCE 2: Convicted persons found with intent to commit an offence.

Moses exited the vehicle and began to walk west toward George Street. Investigators immediately recognised the accused as the male who committed the steal from person the previous night as he was wearing identical clothing and was of similar build and race. Police feared he was about to commit another offence due to his nervous behaviour.

The accused Moses was subsequently arrested and cautioned. As a result Kawenga ran from the vehicle. He was also arrested and cautioned. Both persons were arrested in compliance with LEPRA safeguards then conveyed to Redfern Police Station. They were introduced to the Custody Manager who explained their rights pursuant to Part 9 LEPRA.

Both persons participated in electronic interviews. There were numerous inconsistencies in their version of events however neither admitted to participating in or having any knowledge of the alleged offences. The accused Moses did acknowledge he was wearing the same clothes on September 4 and 5. He also admitted to being at the crime scene at or around the time of the offence. Kawenga stated that the accused has worn the same clothing nearly everyday for the last month. The hooded jumper is very distinctive and has been seized as an exhibit.

Due to a lack of direct evidence linking Kawenga to any offence he was subsequently released without charge.

The accused Moses was charged with one count of steal from person and convicted person found with intent.

The accused is also a suspect in another 7 steal from person/robbery cases that are linked by the strikingly similar method of operation, physical appearance and location.

Police request bail restrictions under Section 17A Sentencing Act to prevent the accused from entering an area defined by the arresting police, as well as association restrictions. These areas will be addressed in the antecedent field."

[242] In addition, police sought an order that Mr Moses not associate with Mr Kawenga.

[243] Having charged Mr Moses with the 4 September 2008 offence, the police then made the dismaying discovery a few days later that the robberies were continuing. A further seven robberies were committed by a person wearing a light blue hooded jumper (although some other robberies were committed by persons wearing other clothing). This could not be the plaintiff, Mr Moses, because his distinctive blue hooded jumper was in police possession and the person described was taller and older. Furthermore, the evidence seemed to point to the same offender as before.

[244] In fact, the offender in the light blue hooded jumper turned out to be the person Detective Acting Sergeant Buttel had always suspected, a Mr Haines. This was discovered in the course of a second operation in the same area. A second Operational Order was prepared by Detective Acting Sergeant Buttel on 23 September 2008. It noted that the past two weeks had seen a dramatic change in the modus operandi of a steal from person, in that when the car window was locked this offender had taken to smashing car windows to obtain access to the passenger's side of the vehicle. Unlike the previous group of drivers, whose car doors were unlocked, a number of these women had locked doors (such as the woman whose car was robbed on 18 September). Whether this is connected to publicity to these events is unknown.

[245] The second Operational Orders stated, on page 3: "Police have nominated suspects they believe involved in the robbery offences throughout the Redfern LAC. These offenders are believed to be targeting the same location to commit these robbery offences. If a steal from person or robbery occurs the police involved in the operation need to be aware of the targets and their home addresses." [246] The names of two suspects were then provided. One of these was Mr Haines.

[247] A short description of the seven subsequent robberies that led to this operation is as follows: Exhibit 12 (1 p.m., 12 September 2008) - A woman driver was stopped at the traffic lights when an "aboriginal male in a blue hooded jumper, wearing the hood around his head" (paragraph 4) was observed looking into her car. She grabbed her wallet from the front seat and he smashed the window to take it. She noted the man had a "thin face" (paragraph 8). The incident took "a couple of seconds" and the woman suffered injuries including a cut finger.

Exhibit 12 (4.30 p.m., 18 September 2008) - A woman was driving with her doors locked when she stopped at the lights. There was a smashing sound and a male put his hand through the hole in her passenger seat window to grab her handbag from the seat. There was a struggle before he got away. He was "tall and thin and wearing a light blue coloured hooded jumper".

Exhibit 12 (5.20 p.m., 19 September 2008) - A woman driver was stopped in traffic with her car door locked but window partially open when a man tried to reach through to grab her handbag. She did not get a good look at the man and thought she would be unlikely to recognize him again, but noticed he had dark hair.

Exhibit 12 (8.30 p.m., 19 September 2008) - A woman driver was stopped in traffic with the door locked when her window was smashed by a man who was "Aboriginal or Islander in appearance", 5'10'' and of medium build, clean shaven with dark curly hair. She was wearing a dark Adidas jacket with two white striped on the sleeves, jeans, a checked shirt, and "very white" sneakers. The witness was shown "a number of photos" at the police station but was unable to identify the assailant.

Exhibit 12 (4.35 p.m., 18 September 2008) - A woman driver was stopped at the red traffic lights when a man "early twenties, medium build, Caucasian appearance, wearing a blue hooded jumper and black track pants" grabbed her handbag. There was a struggle before he ran away with the bag.

Exhibit 12 (6.25 p.m., 22 September 2008) - A woman was driving with the doors locked and the windows closed when a man smashed her front passenger window and grabbed her handbag and mobile phone. He was about 30 years old, with solid build, about 5'6" tall and looked "Italian or Lebanese". He was wearing a black long sleeved jacket.

Exhibit 12 (8.10 p.m., 2 October 2008) - A woman driver was stopped at the red lights when her car door was opened. She saw a man with black hair, "Caucasian with natural skin tone", average build and height, wearing a tee shirt. It happened very quickly and she did not really see the man's face at all.

[248] Following these further robberies, Mr Haines was apprehended in accordance with the Operational Orders. The evidence concerning this is scanty. However, while Mr Haines was charged with and convicted for a number of offences, this did not include the robbery offence for which Mr Moses had been charged. Mr Haines denied a number of the offences, including this offence.

The elements of a claim for damages for malicious prosecution

[249] The elements of a claim of malicious prosecution are set out in A v State of New South Wales (2007) 230 CLR 500; (2007) 233 ALR 584; (2007) 81 ALJR 763; (2008) Aust Contract R ¶90-280; (2007) Aust Torts Reports 81-878; [2007] HCA 10 at [1]: "… For a plaintiff to succeed in an action for damages for malicious prosecution the plaintiff must establish:

(1) that proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff by the defendant;

(2) that the proceedings terminated in favour of the plaintiff;

(3) that the defendant, in initiating or maintaining the proceedings acted maliciously; and

(4) that the defendant acted without reasonable and probable cause."

[250] The elements in issue in these proceedings are that the defendant, in initiating or maintaining the proceedings acted maliciously, and that the defendant acted without reasonable and probable cause.

[251] It is sometimes the case that elements of a malicious prosecution need to be established on the Briginshaw standard of proof (Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] ALR 334; (1938) 12 ALJR 100): see State of New South Wales v Hathaway [2010] NSWCA 184 at [260]-[263]. I was not addressed as to whether or not this standard applied to any findings of fact in the present case. However, I have borne in mind the warnings of the New South Wales Court of Appeal (at [264]) and where any finding is of sufficient seriousness I have indicated that fact and I have indicated whether or not I have been satisfied on that standard of proof. This is because a finding made against police officers of malicious prosecution is a matter of gravity and it is not a finding to be undertaken by the courts lightly.

[252] As the High Court points out in A v State of New South Wales, supra, at [39]-[59]: "[39] The standard form of pleading alleges that the defendant acted (maliciously and) without reasonable and probable cause. A plaintiff who sets out to prove that allegation may, or may not, endeavour to establish, by direct evidence (including admissions), or inference, something about a defendant's belief. In a jury trial that may raise an issue for the jury. At a trial without a jury, that may raise for the judge's decision a specific question of fact. The nature of the question may depend upon what, in the circumstances of the case, is said to demonstrate that a defendant did not have reasonable and probable cause to prosecute. Those circumstances, in turn, may be affected by the nature of the allegations, and the prosecutor's capacity to form an opinion about their strength and reliability.

[40] Similarly, where a plaintiff alleges that a prosecutor acted maliciously, that is, for an improper purpose, not for the purpose of carrying the law into effect, the circumstances of the prosecution may determine the nature of the case the plaintiff will seek to make. Absence of reasonable and probable cause may, in a given case, be evidence of malice; but there are two separate issues to be decided.

[41] In the case of a public prosecution, initiated by a police officer, or a Director of Public Prosecutions or some other authority, where a prosecutor has no personal interest in the matter, and no personal knowledge of the parties or the alleged events, and is performing a public duty, the organisational setting in which a decision to prosecute is taken could be of factual importance in deciding the issue of malice.

[54] It is on this basis that the tort has hitherto been understood as requiring proof of two distinct elements, one positive (malice) and the other negative (absence of reasonable and probable cause). The two requirements meet the two different kinds of case posited in Johnstone v Sutton - maliciously taking up a prosecution "for real guilt", and proceeding upon apparent guilt from circumstances which the prosecutor "really believes". That is, the positive requirement of malice, and the negative requirement of absence of reasonable and probable cause, each have a separate role to play in the tort. A conclusion about malice does not render irrelevant the inquiries about what the prosecutor did make, and should have made, of the material available when deciding whether to initiate or maintain the prosecution.

[55] For immediate purposes it suffices to describe malice as acting for purposes other than a proper purpose of instituting criminal proceedings. Purposes other than a proper purpose include, but are not limited to, purposes of personal animus of the kind encompassed in ordinary parlance by the word "malice". It also suffices to refer for the moment to what the prosecutor "made" or "should have made" of the available material without pausing to explore what is meant by those expressions. It will be necessary to return to these topics.

[56] Even if a prosecutor is shown to have initiated or maintained a prosecution maliciously (for example, because of animus towards the person accused) and the prosecution fails, an action for malicious prosecution should not lie where the material before the prosecutor at the time of initiating or maintaining the charge both persuaded the prosecutor that laying a charge was proper, and would have been objectively assessed as warranting the laying of a charge.

[57] There are three features of the present law to which attention should be drawn. First, because questions of malicious prosecution can arise only where the prosecution has ended in the plaintiff's favour, the paradigm case to consider is where the plaintiff has been acquitted of the offence charged. (It is convenient to leave aside what other circumstances suffice to show that the prosecution has ended in the plaintiff's favour, and focus on the paradigm case of acquittal.) That acquittal is not to be controverted. The hypothesis for a subsequent action for malicious prosecution arising from such a case is, therefore, that the plaintiff was not guilty of the offence charged. But that alone does not entitle the plaintiff to a remedy against the prosecutor.

[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? To ask only whether there was material available to the prosecutor which, assessed objectively, would have warranted commencement or maintenance of the prosecution would deny relief to the person acquitted of a crime prosecuted by a person who not only acted maliciously, but who is shown to have acted without forming the view that the material warranted prosecution of the offences. Conversely, to ask only what the prosecutor made of the material that he or she had available when deciding to commence or maintain the prosecution would favour the incompetent or careless prosecutor over the competent and careful.

[59] Thirdly, the action for malicious prosecution has a temporal dimension. 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."

[253] An important aspect of the first plaintiff's claim for malicious prosecution in these proceedings is that whatever may have lead the police to lay the charges on the night in question, it became apparent very soon thereafter, if not before, that the police had arrested the wrong person. The disputed issues of fact thus relate not only to whether or not in the bringing and laying of charges a claim for malicious prosecution can be made out, but also as to whether in "maintaining the proceedings" (A v State of New South Wales, supra, at [1]) the defendant acted maliciously and without reasonable and probable cause.

Submissions on malicious prosecution concerning "OFFENCE 1: Steal from person"

[254] The plaintiffs submit that the police failed to question both plaintiffs about the crime in question and brought criminal charges in circumstances where the evidence against Mr Moses was the mistaken identification of the first plaintiff based on his superficial facial similarity to the actual offender and a mistake as to whether or not a person wearing a jumper similar to Mr Moses' had committed a bag snatch the previous night.

[255] The matters raised by the plaintiffs and defendant in written submissions are as follows: (a) The only evidence available to police was that Mr Moses wore a similar coloured jumper and was of similar appearance to the person who stole from the motor vehicle on 4 September 2008. He was not on the list of suspects (T 217, 270) and searches of his car and parent's home disclosed nothing (T 340). Although Detective Constable Porter did not search Mr Moses' home at Bondi Junction because he appeared "too confident" about property he had purchase (T 340) and because such searches do not often reveal anything, when the actual offender was apprehended, his home was an "Aladdin's cave" of stolen goods (T 271).

(b) Mr Moses' motor vehicle was observed by the police in the vicinity the night before the arrest (4 September), but police noted that Mr Moses and Mr Kawenga, who was with him on this night, were wearing dark clothing or ordinary clothes, not the distinctive blue jumper (see Detective Constable O'Brien at T 162, 180). Detective Constable O'Brien did not connect Mr Moses' vehicle to these robberies and did not record the registration number of this vehicle (T 182). It was implausible, if Mr Moses and Mr Kawenga were seen wearing ordinary clothes at 5.30 pm on 4 September, that Mr Moses was wearing this distinctive blue jumper at 6.00 pm, the time of the robbery (T 199).

(c) The discrepancy between the height of Mr Moses and the height of the person the police had chased the night before was considerable. Mr Haines is 177 cm tall (T 183) whereas Mr Moses is 165 cm tall. In addition, although there is a superficial facial similarity, Mr Moses is clearly a much younger man with a chubbier face and whereas Mr Haines is clearly an older person with a more receding hairline.

(d) Mr Moses' conduct in the course of the lengthy police interview was that of a person anxious to assist the police in every way. He not only agreed to but then asked for an identification parade for everyone of the many incident of stealing put to him (T 337; Record of interview 2-26-2-2.60). When Mr Moses said he was willing to take part in an identification parade, Detective Constable Porter then tried to talk him out of it:

"Q225 Approximately. So, in relation to that allegation there are a number of witnesses so what I want to ask you now, would you like to participate in an identification parade in relation to that, where you stand with other persons who look remotely similar to yourself, where the witnesses then can view you. Would you like to participate in one of those? You're not obliged to at all. A So there's a Warrant for a search on, in my parents' house or, what's, what's the go ---

Q226 Just answer my question first. You're not --- A Yeah, I don't care. Yeah, I'll do it.

Q227 All right. A But I'm, yeah, I'll do it, I guess.

Q228 Well, if you're not happy, you're not happy. A Yeah.

Q229 You don't have to do it, you're not obliged at all. You can, you can say no ---

Q232 Like, you, you appear to me to be a bit, I don't want you to, you do not have to do it. A Yeah. No, I'm just thinking, you know, what if they confuse me or something like that.

Q233 Well, that's right, that's why you don't have to do it, that's why legally you don't have to do it, 'cause of that fact. So, no? A Yeah, that'll probably be a no now.

Q234 All right. That's fine mate. OK. Now, what I also have to do is basically, we had a number of offences very similar to this, happen over the last, in the same area --- A See, yeah, go on.

Q247 Just let me, just let me talk please, David. A OK.

Q248 Ok. So at 6.40 pm on the 20th of August, 2008, there was another stealing occurred on McEvoy Street --- A Mmm." (Exhibit 5)

Not only were no identification parade arranged, but there was no intention of arranging any such identification parade. This was an interview procedure designed to encourage Mr Moses to admit to the thefts. However, when it backfired, and he asked to take part in an identification parade, no steps were taken to see if he was in fact the person who had committed these offences.

(e) Mr Moses said to the police that not only was he willing to participate in an identification parade for each offence, but "you can search everything I have, you search my car, I don't have anything to hide" (see Q346).

He invited Detective Constable Porter on a number of occasions to search his parent's property as well as his own property (see Q271-275) and repeated this offer at Q299. He responded readily, frankly and fully to every question.

(f) In addition, in the course of the interview, the police received information that a search of the plaintiff's family home and car yielded nothing, apart from two very anxious and very respectable parents who were concerned about their son's welfare.

(g) The defendant's submissions in reply include the claim that statements before and after show that the offences before the arrest of Mr Moses did not include windows being smashed, while offences committed afterwards did, the inference being that the police would be slow to think that the same offender was involved. However, the reason for the windows being smashed was that drivers, possibly alerted by all the bagsnatches, were locking their car doors. The description of the offender, the manner and place of the offence and the timing were all similar.

(h) The defendant also submits that it is irrelevant that neither the Operational Orders of 1 September nor the second set of Operational Orders refer to Mr Moses' distinctive hoody, or a sky blue hoody. It is asserted that these documents are "of a general nature" (written submissions, May 10, paragraph 16). It is also submitted that the first set were "dated before the incident" and the second set were "well after the incident" (paragraph 16). However, if the blue hoody was such an important feature in all these robberies, it is extraordinary that it is not referred to, particularly as the police had no way of knowing how many persons were wearing either light blue hoodies or bright blue hoodies with a circular motif in the Sydney area.

(i) The defendant further submits that the reason for the COPS entry not referring to the sky blue hoody is that the police officer who made this entry (who is now deceased) was "just reciting what the victim said" (T 311) and that Detective Constable Porter did not speak to the police officer who made the COPS entry. I find this implausible. This was a vital identifying factor, according to Detective Constable Porter. Not only was it not included, but information to the contrary (that the offender was wearing a dark jumper) was both entered and left uncorrected on the system.

(j) Taking all the above into account, I am comfortably satisfied that the police had no reasonable and probable cause to charge Mr Moses at all, let alone permit the prosecution to continue.

Submissions on malicious prosecution concerning "OFFENCE 2: Convicted persons found with intent to commit an offence"

[256] It was in relation to the Mr Moses' family set-up that the police should have exercised caution when charging him, because it should have been apparent that the circumstances of this previous charge, which related to a family incident involving Mr Moses and his sister, the plaintiff's parents could have provided information as to the circumstances of this claim.

[257] The defendant's brief submission concerning this charge is that "it is a specific statutory charge for which there was reasonable and probable cause, with no malice, arising out of the facts on 5 September, plus the prior conviction" (written submissions, paragraph 254).

[258] This charge alleges that having been convicted of an indictable offence, Mr Moses went near vehicles on McEvoy Street with intent to commit another indictable offence (see the wording of the charge in the court attendance notice at 2.8 in Exhibit 5).

[259] I have set out the full facts sheet to demonstrate that the conduct attributed to the plaintiff (i.e. his "nervous" behaviour while walking along the street) made police think he would commit another offence. However, Detective Constable O'Brien admitted in evidence he could not classify Mr Moses' behaviour on that night as "nervous" and the plaintiff notes in submissions (paragraph 8(d)) that it was not put to Mr Moses that he was acting suspiciously. Detective Constable O'Brien agreed that Mr Moses did not do anything untoward, and the reason he was "grabbed" was so he would not have "another opportunity" to run away (T 166). Detective Constable O'Brien was not even sure if the plaintiff was walking or standing at the time (T 186-187); his concern was that he did not want Mr Moses to get "any sort of a head start" (T 187).

[260] Although Detective Constable Porter said in his statement that Mr Moses was looking intently at vehicles (Exhibit 5, tab 2.13 at paragraph 7) that was not his evidence in court (T 317). He described Mr Moses as walking slowly. This is not simply very weak evidence for such a charge; it is not capable of being regarded as evidence.

[261] I make the same findings, in favour of Mr Moses, for the second charge as for the first charge.

Defendant's submissions - reasonable and probable cause and without malice

[262] The matters raised by the defendant in written submissions as supporting the reasonable grounds are as follows: (a) Mr Moses was believed to be wearing a distinctive jumper with a hood that was the same as the man who was seen by Detective Constable Porter (but not the other police officer, who described a different jumper) who had robbed a car and escaped the day before, which included fleeing from the scene of the crime while being pursued by these officers (T 165, O'Brien; T 311, Porter).

(b) The person who had escaped before had the same build and facial appearance (T 283-284).

(d) Mr Moses' vehicle was in the vicinity on 4 September and his conduct, on 5 September, in driving about 20 metres then turning around and stopping made the police suspicious (T 163).

[263] The defendant submits that the action of the police in recommending withdrawal of the charge after the belief of Detective Constable O'Brien and Detective Constable Porter's belief weaken is proof of lack of malice. The charges were dropped after the charging of Mr Haines (T 170) in circumstances where the police felt that it was incorrect to proceed (T 171).

Findings as to whether the charges laid against Mr Moses was without reasonable and probable cause

[264] It may appear unusual that, having found in relation to the defamation claim that the word were published on an occasion of qualified privilege which was not defeated by malice, the conduct of the police after the plaintiffs were conveyed to the police station became tainted by malice. However, a careful chronology of the events of the night establishes that the police rapidly came to realise that they had arrested the wrong persons. Nevertheless, Mr Moses was charged with offences which, particularly in relation to the second charge, were known by the police to be at best very weak and at worst without reasonable and probable cause. To make things worse, the charges were persisted with after another person was sought, arrested and charged. Still worse was the delay of the police in preparing and processing the application to withdraw the charges.

[265] The chronology of events is instructive in establishing how rapidly the police lost confidence in the charges brought against Mr Moses. I note as follows: (a) Although the charges laid against Mr Haines do not include the charge for the 4 September offence, he was charged with other previous offences, including the offence on 3 September;

(b) Between 12 September and 2 October 2008, there were a further 7 handbag snatches in which the suspect was a person other than Mr Moses;

(c) As a result, the second Operational Orders were prepared by Detective Acting Sergeant Buttel on 23 September 2008 for the same operation to be undertaken (Exhibit 5). A description of the operation is set out in Exhibit 8 in the police facts (Exhibit 8, tab 6). This time, the police waited for the offender to steal a handbag from a car on 25 September 2008 and then pursued him.

(d) The police then executed a search warrant on 29 September 2008 of premises occupied by Mr Haines' family and girlfriend and found property belonging to a large number of victims of snatch and grab robberies. The items recovered include not only credit cards in the names of some of the victims, but the red and white ski jacket so vividly described by the woman driver in the 28 August bag snatch. Although police seized a red and white ski jacket (Property Seized Form, 26 September 2008) and the victim of the 28 August robbery described the offender stealing this distinctive jacket, Mr Haines denied this offence (statement of Mr Porter, Exhibit 8, tab 6 - 28 August offence).

(e) A forensic examination request form dated on or about 25 September 2008 states:

"From the 27/8/08 until the 25/9/08 there was a spate of steal from person/robbery offences occurring at McEvoy Street Waterloo where the suspect Lloyd Haines (CNI 16833120) would open or smash his way into vehicles stopped at the traffic lights. He would then steal their handbags/property and decamp from the location. On the 25/9/08 he was arrested in the act of committing one of these offences. A subsequent search warrant conducted at his girlfriends house located a number of items beloning [sic] to some of the victims." (Exhibit 8, tab 6)

(f) In the search warrant of 29 September for Mr Haines' girlfriend's home, the police were directed to look for items belonging to victims of robberies where the offender was described as wearing a pale blue hoody (Exhibit 9, paragraph 4; Exhibit 10, paragraph 6; Exhibit 11, paragraph 16). They in fact found some items belonging to these persons, such as the distinctive red and white jacket taken from the victim whose statement is Exhibit 11: see the list of seized property at Exhibit 8, tab 6. I note that in this 29 September search warrant, the police were looking for items missing from Ms Karam's incident which occurred on 3 September and other subsequent and separate incidents, but not those items missing from the 4 September incident (By contrast, searches of Mr Moses' parent's home and car yielded a nil result, and the police never sought a search warrant for Mr Moses' home despite their questions in the record of interview about his television).

(g) While all this was going on, Mr Moses was required to attend court, which he did on 29 September 2008 (T 127). The charges were not withdrawn until 12 November 2008 (T 94, 127). Mr Moses was still attending court after Mr Haines had been arrested, in circumstances where Mr Haines was described in internal police records such as the forensics report as being the offender under investigation for other robberies.

[266] The conduct of the police in failing to drop these charges earlier, in circumstances where Mr Moses had to retain a solicitor, appear in court, comply with bail requirements, is evidence relied upon by the Mr Moses to demonstrate there was absence of reasonable and probable cause. While I am of the view that the absence of reasonable and probable cause probably dates back to the night of arrest, it clearly must apply from the time that Detective Acting Sergeant Buttel drafted the second Operational Order in response to the spate of robberies starting on 14 September 2008.

[267] In addition, the circumstances in which the second charge was brought, in circumstances where there was no suspicion that he was about to commit an offence shows an absence of reasonable and probable cause, and I note in this regard that Mr Moses was not cross-examined about his conduct on the night in question, including whether or not his conduct was suspicious, and the evidence of the police was to the contrary.

Malice in relation to the malicious prosecution claim

[268] The elements of malice in relation to malicious prosecution have been most recently considered by the New South Wales Court of Appeal in State of New South Wales v Hathaway [2010] NSWCA 184. The court noted that [153]ff that the elements of the tort were exhaustively discussed by the High Court in A v State of New South Wales, supra. I note especially the statement of the High Court in A v State of New South Wales at [40] that "[a]bsence of reasonable and probable cause may, in a given case, be evidence of malice; but there are two separate issues to be decided."

[269] In the present case, the question of malice relates firstly to the circumstances in which the charges were laid on the night in question, and secondly the circumstances in which those charges were persisted with at a time when further offences were being committed by a person reasonably likely to have been the same offender (Mr Haines), who was apprehended and charged with at least one of the offences about which Mr Moses had been questioned. Mr Haines was asked whether he had committed the offence for which Mr Moses was charged. Mr Moses had already appeared in court on 29 September, only three weeks after Mr Moses had been in court on this charge and approximately two weeks prior to the charges being dropped against Mr Moses. Mr Haines denied committing this offence, and a number of other offences.

[270] The applicable standard of proof was explained by the New South Wales Court of Appeal at [260]-[263]: "[260] In a civil proceeding, the court must find the case of a party proved if it is satisfied that it has been proved on the balance of probabilities: Evidence Act 1995, s 140(1). In applying the civil standard of proof, it is appropriate to take into account the factors listed in s 140(2), one of which is "the gravity of the matters alleged": see also s 142(2)(b). In an often quoted passage, Dixon J stated in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362 the following:

[W]hen the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality … it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

[261] In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 ; (1992) 110 ALR 449, Mason CJ, Brennan, Deane and Gaudron JJ elaborated on the principle enunciated by Dixon J. They stated in a joint judgment at 170-171 that:

[t]he ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary "where so serious a matter as fraud is to be found". Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

[262] This court has often applied the passages in Briginshaw and Neat Holdings which we have reproduced. Relevantly to the present case, in Palmer v Dolman [2005] NSWCA 361, Ipp JA (Tobias and Basten JJA agreeing) stated at [47] that the more recent authorities and s 140 of the Evidence Act:

make it plain that there are no hard and fast rules by which serious allegations might be proved from circumstantial evidence. The inquiry is simply, taking due account of what was said in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd , has the allegation been proved on a balance of probabilities.

[263] We are satisfied that the Briginshaw principle as articulated by the cases referred to above has application to the present case. This is because the primary judge's conclusion at [198] of her reasons that Briggs lacked reasonable and probable cause to bring the charges involving the knife, and that, in doing so, he acted for an improper purpose and, therefore, maliciously, was founded on her finding at [171]-[172] that she was satisfied that Briggs was aware that the knife was taken from the kitchen drawer and placed in the bedroom by one or more police officers after the respondent had been removed from the Gaffney house. In the language of Briginshaw , the seriousness of that finding and the gravity of the consequences flowing from it are such that it requires "clear or cogent or strict proof" in order to be made out on the balance of probabilities."

[271] This was a very different case to the factual situation in State of New South Wales v Hathaway, supra. The police realised, if not on the night in question, then certainly when the offences commenced to be committed on 14 September 2008, that there was a very strong likelihood that Mr Moses was not the offender. They then carried out a second Operational Order, in which, contrary to the previous occasion, they waited until the offender committed the offence, and arrested him as a result of their observations. Although it is clear from internal police records such as the forensic reports that the police were satisfied that this was the offender who had committed at least the majority of these offences, the charges were not withdrawn until 12 November. In addition, when the charges were withdrawn, misleading statements were made about the evidence which provide information about absence of reasonable and probable cause.

Malice and misleading statements about the merits of the prosecution

[272] Evidence of malice in the bringing and continuation of the prosecution against Mr Moses may be seen by comparing the way these proceedings have been conducted and the explanations given by the police in dropping the charges (Exhibit 8).

[273] The defendant submits (written submissions, paragraph 225) the following facts supported the reasonable grounds for bringing the charges: (a) Mr Moses was "believed to be wearing the same distinctive jumper with hood as the man was wearing who had robbed a car and escaped the day before".

Although this point is put as the strongest evidence, there is no reference to this "distinctive" jumper with its "circular motif" in the recommendation to withdraw charges (Exhibit 8) discussed in more detail below; it has returned to being the same "pale blue hoody" described in the other offences for which Mr Moses was not charged, and which was worn by Mr Haines in subsequent offences.

(b) The person who escaped the day before had the same build and similar facial appearance to the offender.

I have set out above that Mr Moses was considerably shorter and younger. In relation to lack of reasonable and probable cause, I note concessions in the recommendation to withdraw charges that Mr Moses' face could not be seen and Detective Sergeant Porter was uncertain he could identify him.

(c) The fact that Mr Moses was in the same place, driving the same car, and behaved in a strange way on the night.

I have dealt with these submissions in more detail above concerning the information upon which Mr Moses was arrested. These could not be matters which would, of themselves, warrant the laying of charges.

[274] I now consider the evidence of malice and absence of reasonable and probable cause relied upon by the plaintiffs as being evident from the statements by the police in the "Full Facts" and secondly, in the recommendation to withdraw the charges (Exhibit 8, 2.86 - 2.90). These include: Full Facts

(a) The references in the Full Facts to Mr Moses' unexplained wealth as a basis for suspicion. Not only did he give an explanation, but the police had not been sufficiently concerned to search Mr Moses' home despite his invitation to do so;

(b) The reference in the Full Facts to Mr Moses being linked to a number of other offences. By the time the matter was being put before the Downing Centre on 29 September police had not only been aware of many more bag snatches, but they had arrested Mr Haines and questioned him about these (Exhibit 8, tab 2, 2.7 and 2.8);

(c) The circumstances in which the court was asked on 29 September to order that Mr Moses should not be permitted to associate with Mr Kawenga, described as someone who was released due to lack of direct evidence, when Detective Constable Porter knew that he had not asked Mr Kawenga a single question about any of the robberies, and that he was a person with no prior criminal record of any kind;

(d) When it finally became necessary to withdraw the charges (Exhibit 8, 2.86 - 90), Detective Constable Porter's report contained many excuses for having identified Mr Moses which were not correct. In particular, he claimed that Mr Moses was wearing "an identical blue hoody at the time of arrest to that of the steal from person suspect", there being a long string of "blue hoody" robberies, when this hoody was in fact the very striking sapphire blue hoody with a large white circular pattern. The description of Mr Moses's hoody has been changed to make the arrest look as if it was based on better facts than it was.

(e) The claim that Mr Moses was similar in racial appearance, height and build to the suspect was false. Mr Moses was much younger, much shorter and from a different racial background. What is of interest is the concession that on the night in question "positive facial identification could not be made".

(f) This document also contains the statement that "At the time of arrest Moses did not appear to be walking to the phone box as suggested in the interview but rather casing a victim." (2.87). None of the police officers gave this evidence, nor was it put to Mr Moses that he appeared to be casing a victim.

[275] Detective Acting Sergeant Buttel, in his handwritten note of 15 October 2008, supported the withdrawal of the charges as "due to the evidence post offence that cannot exclude a possibility that Haines committed the offence."

[276] Detective Inspector Beaufils expresses the view that the "many similarities" between the offences on the 4 and 5 September gave police "reasonable cause". Detective Inspector Beaufils was not called to give evidence, but the inference would be that he would have only come to that conclusion when reading the misleading statement of facts which refers to the same light blue hoody, the same height and appearance, and the fact that Mr Moses appeared to be casing a victim when he was arrested, all of which are, even on the defendant's evidence in this trial, known to Detectives Porter and O'Brien to be untrue.

[277] Detective Inspector Beaufils adds, in his comments, that identification is an issue, adding "I have spoken with Detective Porter regarding this issue and he cannot say equivocally [sic] that Moses was the person he observed committing the stealing on the 4/09/08." He added: "I have also discussed with Detective Porter identification processors and provided him advice for future reference." (Exhibit 8, 2.90)

Lack of reasonable and probable cause as malice for the second charge

[278] I should briefly note the material concerning the lack of reasonable and probable cause concerning the second charge. No information whatever about this charge is contained in the recommendation to withdraw charges; in fact this document refers to Mr Moses being charged with "suspicion of being involved in steal from person offences" in the plural (Exhibit 8, 2.86).

[279] The claims of Detective Constables Porter and O'Brien that Mr Moses was "pacing up and down" (T 284) or "loitering" (T 319) are inconsistent with each other and are not evidence that I accept. I note this claim was elevated, in the recommendation to withdraw charges, to a claim that he was casing another victim, a claim that was not put to Mr Moses in the witness box. Mr Moses has made out the claim that there was absence of reasonable and probable cause for bringing this charge.

[280] I am satisfied that the charges brought against Mr Moses were brought maliciously and without reasonable and probable cause. This is not only because police were actively pursuing another offender shortly after 14 September 2008, and this was in fact the offender who had originally been suspected by Detective Acting Sergeant Buttel, but because they realised fairly soon after conveying Mr Moses to the police station that they had apprehended the wrong person. They did so because of mistaken identification, and because they did not adhere to the operational rules, which required them to wait until an offence was committed (as they did on the second occasion, when they successfully apprehended Mr Haines in the course of a bag snatch). Having made this error, they compounded it by continuing the prosecution after further robberies, the arrest of another person and in circumstances where, following the arrest of that person, there is no evidence these car robberies continued.

[281] I am satisfied that Mr Moses had made out, on the Briginshaw standard, that there was both malice and an absence of reasonable and probable cause both in commencing and in continuing the prosecution against him on the part of the police, and further that the commencement, and particularly the continuation, of the prosecution was motivated by malice.

[283] I have dealt with damages for each of the causes of action, including those for which I have found for the defendant.

[284] The evidence may be summarised as follows. Mr Moses and Mr Kawenga both gave evidence of their distress and upset at being accused in terms of the matter complained of, being arrested and transported to the police station and, in the case of Mr Moses, being charged with criminal offences.

[285] Mr Moses's father and mother gave evidence concerning their son. They were impressive witnesses on this issue, as they were on all other issues. Mr Abraham Moses described his son's appearance on the night in question: "Q. Well, he came home about 2 o'clock in the morning. Is that right? A. Yeah.

Q. And what did he look like? A. He was all beaten up and bashed, and he was crying, you know.

Q. When you say all beaten up, would you mind telling us what you saw that made - that's a conclusion. What injuries did you see that caused you to think that? A. He had broken tooth I know. He had black on his face.

Q. Broken tooth? Sorry, he had a broken tooth. What else? A. And he was bleeding on his face. He had a wound somewhere on his face, I can't remember exactly where.

Q. Yes. A. And the first thing I asked him, "Did you do a thing like that, David?" He said, "Dad, you know me. I wouldn't do a thing like that." So I believed him. I went straight to the solicitor and told him, "I believe my son, I don't think he did it. You have to look after me and fight this case out for me."

Q. How did he appear? Did he appear-- A. Well, after a person has been beaten at the police station, how does he get--

A. It's good that he can - that he was able to stand and face it, you know." (T 151)

[286] Mr Abraham Moses also described his son's behaviour for some time afterwards: "Q. Did he appear upset? A. Very upset.

Q. For how long did he remain upset? A. It's keeps recurring to his mind so often, and he gets so depressed and sometimes when we speak to him when he's depressed he's in cloud nine. "David" - I repeat something - "David, I said this, David" - until he says, "Oh, what did you say?" Because his mind is preoccupied by the occurrence, you know. Depressing is still there, it never goes away, the incident." (T 151-152)

[287] Mrs Evelyn Moses gave similar evidence: "Q. Mrs Moses, we'd like you to describe how he appeared when he came in the door. A. Yeah. He was so upset and crying. He said, "Mum, you have to believe me that I never steal," you know." (T 141)

[288] She said that since the arrest he was so upset that he had been telephoning her every day, and that she was being supportive of him. She took him away for a holiday, but when he returned "it's the same" (T 140-141).

[289] The evidence concerning Mr Kawenga's distress is limited to his own evidence, although there is some evidence of a corroborative nature from Mr Moses. He was upset at the police treatment of him and made a contemporaneous complaint (record of interview questions 294 - 5). He was insulted that he was asked about his racial background.

[290] The plaintiffs' written submissions assert, in relation to the issues in the case generally, that "both plaintiffs were arrested because the police thought they were of Aboriginal extraction". As I have found that the police arrested Mr Moses because they genuinely thought he was the offender seen the day before, and arrested Mr Kawenga because he was with Mr Moses and ran away, I do not accept this submission. If it had indeed been the case that the plaintiffs were arrested because the police thought they were of Aboriginal extraction, this would have been a most serious matter resulting in a substantial award of damages.

[291] I shall first consider damages for the torts of false imprisonment (where I have found for both plaintiffs) and then for malicious prosecution and the assault of Mr Moses, as these are the claims where I have found in favour of the plaintiffs.

[292] The approach to general and aggravated compensatory damages for false imprisonment has been explained by Bergin J in Vignoli v Sydney Harbour Casino [1999] NSWSC 1113 at [87] as follows: "[89] In assessing the general or compensatory damages in this case it is proper "to take into account the whole of the conduct of the defendant to the time of verdict". Matters such as "the indignity, mental suffering, disgrace and humiliation" are to be included in the assessment together with any conduct by the Casino which "had the effect of increasing the injury" to the plaintiff's feelings. This is quite separate from aggravated damages the pre-requisite for which is proof by the plaintiff of conduct by the defendant which was not bona fide, or was improper or unjustifiable. Spautz v Butterworth (1996) 41 NSWLR 1 per Clarke JA at 17G - 18E."

[293] Bergin J had regard to other awards, as her Honour explained at [93] - [95]: "[93] However I do agree that a proper principle by which I should be guided is that there should be an appropriate and rational relationship between the award of damages and the harm suffered by the plaintiff. I am also of the view that, although it is not mandatory, I am permitted to have regard to awards of damages "approved" by the Court. By that I mean awards approved by the Court of Appeal of this Court.

[94] Both parties referred me to decisions at first instance of other courts. Lackersteen v Jones & Ors (1988) 92 FLR 6; Rixon v Sydney Harbour Casino (unreported NSW District Court, Garling DCJ 1 December 1997) However in line with what I regard Clarke JA to have said in Spautz v Butterworth I intend only to "have regard to" to those Court of Appeal cases to which I have been referred on this aspect of the matter.

[95] In addition to Spautz v Butterworth I was referred to McDonald v Coles Myer Ltd (t/as K-Mart Chatswood) (1995) Aust Torts Reports 62,682 and Woolley v Phillips (unreported, NSWSC, Court of Appeal Clarke, Sheller and Cole JJA 26 August 1996)."

[294] Mrs Woolley was threatened with being taken to the police station and assaulted by police (who grabbed her by the arm) as a result of a mistake by police, who believed mistakenly that a person they were searching for was in her home. She suffered from post traumatic stress disorder. An award of $30,000 (no claim being made for aggravated compensatory damages) was confirmed on appeal.

[295] Mrs Woolley suffered a serious health problem as a result of these events. There is no such claim here. However, the circumstances of the false imprisonment for both plaintiffs were much longer and more serious, in that unlike Mrs Woolley, the plaintiffs were charged and conveyed to the police station and a record of interview carried out.

[296] Mrs McDonald was kept for a long period of time and not provided with food. However, this was in a department store, not a police station, and she was not charged. On appeal the NSW Court of Appeal increased her damages to $27,000.

[297] Mr Vignoli was awarded $30,000 by Bergin J, and there were a number of matters that were taken into account in arriving at this sum, including a trenchant cross-examination. It is an interesting question, since the defamation claim has failed, if the failure of the contextual truth defence should result in aggravated damages despite the defamation claim failing in relation to another defence. It was, however, not put to me so I shall not have regard to it.

[298] The defendant draws my attention to two recent judgments, Coyle v The State of New South Wales [2006] NSWCA 95 where the plaintiff, on appeal, was awarded $10,000 and a decision of this court, Hage-Ali v The State of New South Wales [2009] NSWDC 266 at [259], where the plaintiff, who was arrested for supplying drugs and had to surrender an award as Young Australian of the Year as a result, was awarded only $7,000 general damages and $7,500 for aggravated and exemplary damages.

[299] In Coyle the plaintiff was detained for two and a half hours, which Tobias JA considered "nominal". The plaintiffs in these proceedings appear to have been in the police station for about eight or more hours; Mr Moses returned to his parents' home after 2 a.m.

[300] Mr Moses' parents gave evidence that Mr Moses was distressed and crying. Both he and Mr Kawenga, to my observation, not only look younger than they are, but are inexperienced in the ways of the world. They were both clearly terrified when they were at the police station. Mr Coyle, who was awarded a total of $81,000 damages for claims for assault, false imprisonment and malicious prosecution, was not only an older man, but the offence for which he was arrested was not an offence of dishonesty.

[301] The case of Hage-Ali relates to a young woman of similar age to the plaintiffs. The trial judge took into account "the plaintiff's conduct which brought her to the attention of the police and gave them grounds for suspecting she may have been involved in the supply of cocaine" (at [258]). Mr Moses was not a drug taker or a person whose lifestyle warrants criticisms of the kind Ms Hage-Ali received. He was not doing anything on the night in question warranting police suspicion beyond driving his car in a U-turn (legally) to stop and get out, and walking along (or loitering on) the street, wearing a blue hooded jumper in circumstances where robberies had been carried out by someone wearing a similar jumper. Mr Abraham Moses said, about his son's arrest: "How can you arrest somebody just because they are wearing a blue shirt?" (T 150)

[302] In Coyle Tobias J noted at [99]: "It is difficult to imagine, for a person who is otherwise generally a law abiding citizen, a more humiliating experience or a greater shock to one's equilibrium than being forcefully deprived of one's liberty for even a relatively short period of time in circumstances which are entirely unjustified. This is all the more so where that curtailment of liberty is accompanied, as in the present case, by the detained person being handcuffed and marched through a crowd of onlookers and then incarcerated in a police paddy wagon, locked in a cell at the police station and fingerprinted and photographed as a criminal. Not surprisingly, the whole experience must have been both humiliating and highly embarrassing."

[303] I do not propose to reduce Mr Moses' damages because of some prior criminal conduct which brought him to police attention, especially since Mrs Moses told the court her son and daughter are "best friends now" (T 141). I also note that Mr Kawenga has no prior record and that there is no suggestion his reputation is anything other than spotless.

[304] Taking into account the circumstances in which the plaintiffs were arrested with considerable force, taken to the police station and subjected to an interview which demonstrates the police had no reason to keep Mr Kawenga at all, and became increasingly certain Mr Moses was not the man they were looking for, the appropriate figure for general damages for each of the plaintiffs is $35,000.

[305] I have considered the question of aggravated and exemplary damages in more detail below.

Mr Moses - General damages for assault and for malicious prosecution

[306] Mr Moses's assault caused injuries sufficiently obvious to be noticed and recorded by Sergeant Kos. The circumstances in which he was thrown to the ground and held there by at least three and probably more police officers all of whom were larger and stronger is a matter warranting an award of damages that are more than nominal, although the injuries are extremely slight.

[307] An appropriate award for general damages for the assault for Mr Moses is $10,000.

[308] As the assault on Mr Moses essentially occurred due to an over-zealous arrest, and the injuries were very minor, I do not consider this is an appropriate matter for the award of aggravated or exemplary damages. However, that is not the case with the claim for malicious prosecution, to which I now turn.

[309] Detective Constable Porter not only arrested the plaintiff and was the officer directing his investigation but was named as the prosecutor in the court attendance notices (Exhibit 8, tab 2, 2.7 and 2.8). Malice by Detective Constable Porter, which I have found to be established in the section of this judgment concerning malicious prosecution, may be relied upon to establish malice in the malicious prosecution, as well as a prosecution commenced and (more importantly) continued without reasonable and probable cause.

[310] I have set out the quantum of Mr Moses' damages for malicious prosecution, including the general damages claim, below. This is because I must adjust this sum to have regard to overlap with the false imprisonment claim.

[311] I now consider the issue of aggravated and exemplary compensatory damages for the claims for wrongful arrest and false imprisonment by both plaintiffs, and for the claim for malicious prosecution (including the general damages claim) brought by Mr Moses.

[312] The relevant principles have been helpfully summarised by Anderson J in White v South Australia, supra at [430] - [460] as follows: "[430] Aggravated damages are awarded as compensation for injury to the plaintiff's feelings caused by the defendant's insulting or humiliating conduct. The High Court said, in contrasting aggravated and exemplary damages, in Lamb v Cotogno (1987) 164 CLR 1 at 8:

… aggravated damages in contrast to exemplary damages are compensatory in nature, being awarded for injury to the plaintiff's feelings caused by insult, humiliation and the like.

[431] In Lamb , the respondent Cotogno was enraged when the appellant Lamb tried to serve him with a summons. The respondent threatened to kill him. As the appellant attempted to leave the property, the respondent threw himself across the appellant's bonnet and held on as he attempted to drive away. In fear, the appellant drove off, then attempted to dislodge the respondent by accelerating and swerving. He eventually braked suddenly which threw the respondent off, injuring him seriously. The appellant drove away. Provocation was taken into account in the assessment of damages. $5,000 was awarded as exemplary damages.

[432] Such damages have been awarded for wrongful imprisonment in the past (see Myer Stores Ltd v Soo ) and in those cases the circumstances of the detention was relevant.

[433] Windeyer J in Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 149 described aggravated damages as those "given to compensate the plaintiff when the harm done to him by a wrongful act was aggravated by the manner in which the act was done".

[434] In Cassell & Co Ltd v Broome [1972] AC 1027 Lord Hailsham said at 1073:

In awarding "aggravated" damages the natural indignation of the court at the injury inflicted on the plaintiff is a perfectly legitimate motive in making a generous rather than a more moderate award to provide an adequate solatium. But that is because the injury to the plaintiff is actually greater and, as the result of the conduct exciting the indignation, demands a more generous solatium.

[435] In New South Wales v Delly (2007) 70 NSWLR 125, Delly was wrongfully arrested as an accessory to the murder of Paul Harris. She was asked her name and date of birth and taken into custody without being told she was under arrest or the reasons for her custody. She was held in a room from approx 8.30 am. By 11.00 am the police had formed the view she could not be charged. However, she was not told she could leave. At 12 noon she was released. Aggravated damages were awarded by the primary judge because Delly was held for a number of hours. The award was set aside. An award of $10,000 for exemplary damages was made by the Court of Appeal because police knowingly and deliberately held Delly for an hour after knowing she could not be charged.

[436] Delly was appealed to the High Court and special leave was refused.

[437] In McDonald v Coles Myer Ltd (1995) Aust Torts Reports 81-361 (NSWCA), the appellant was arrested and charged with shoplifting at K-Mart. The Magistrate found that there was "no case to answer". The appellant then brought a claim for wrongful arrest and false imprisonment. The case was compounded by the defendant's patently false and offensive imputations during trial that the plaintiff was mentally ill. No apology was made. Damage to the appellant's reputation due to the allegations was a consideration. The appellant was awarded $13,500 aggravated compensatory damages at first instance, which was increased to $27,000 on appeal.

[438] Clarke JA, citing Lawrence LJ in Walter v Alltools Ltd (1944) 171 LT 371 at 372, said:

In my opinion that case lays down that any evidence in a case of false imprisonment which shows, or tends to show, that the defendant is persevering in the charge which he originally made in bringing about the false imprisonment, is evidence which may be given for the purpose of aggravating the damages. In the same way, the defendant would be entitled to give any evidence which tended to show that he had withdrawn, or had apologised for having made, the charge on which the false imprisonment proceeded. The general principle, in my view, is that any evidence which tends to aggravate or mitigate the damage to a man's reputation which flows naturally from his imprisonment must be admissible up to the moment when damages are assessed. A false imprisonment does not merely affect a man's liberty; it also affects his reputation. The damage continues until it is caused to cease by an avowal that the imprisonment was false.

[439] Provocative conduct by a plaintiff may reduce the amount of aggravated damages otherwise appropriate, or even disentitle a plaintiff from such damages. In my view none of the plaintiffs engaged in any conduct which could be regarded as provocative.

[440] Exemplary (or punitive) damages are awarded in order to punish the defendant for "conscious wrongdoing in contumelious disregard of another's rights": as stated by Knox CJ in Whitfeld v De Lauret & Co Ltd (1920) 29 CLR 71 at 77. It is my understanding that this is the preferred definition in Australia.

[441] The decision in Lamb has confirmed that exemplary damages may be awarded in the absence of any malice on the part of the defendant. The decision also shows that the conduct that makes exemplary damages appropriate can actually occur after the tort has been committed.

[442] In Lamb the event giving rise to exemplary damages was the appellant's act of driving off after the respondent was seriously injured by the appellant. The $5,000 exemplary damages awarded was upheld, for the appellant's "callous" conduct in driving off.

[443] Aside from punishing the defendant, exemplary damages may be awarded to demonstrate the court's disapproval of the defendant's conduct and to provide general and specific deterrence.

[24] As Tobias JA observes, exemplary damages will be awarded to plaintiffs in cases where it is necessary to punish the defendant for the defendant's anti-social behaviour to the plaintiff and to deter others from like conduct.

[445] In New South Wales v Ibbett (2006) 229 CLR 638, the Court at [38] cited the rule in Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 558:

The common law fixes by various means a line between the interests of the individual in personal freedom of action and the interests of the State in the maintenance of a legally ordered society. An action for trespass to land and an award of exemplary damages has long been a method by which, at the instance of the citizen, the State is called to account by the common law for the misconduct of those acting under or with the authority of the Executive Government.

[446] In Ibbett , two plain-clothes police officers entered a residence at night without justification and sought to arrest a resident, pointing a gun at him and his mother who was the owner of the premises. The mother was awarded $50,000 for trespass and $50,000 for assault, which award was upheld by the High Court.

[447] I note also the comments in Delly per Ipp JA at [25]:

A tendency has developed to assume that, where plaintiffs are successful in cases of false imprisonment, exemplary (and, indeed, aggravated) damages should be awarded automatically against the police. Such a tendency is incorrect and should be avoided. The requirement laid down by the law must be applied, properly, in each individual case. I record my express agreement with what Basten JA has written (at 149 [115]-[117] infra).

[115] Circumstances of aggravation do not necessarily demonstrate conduct of a kind warranting an award of exemplary damages. Such an award is justified by reference, not to the effects on the plaintiff, but to the knowledge, intention or recklessness of the tortfeasor. An award of exemplary damages may be justified by "conscious wrongdoing in contumelious disregard of the plaintiff's rights". On the other hand, actual subjective advertence to wrongdoing is not necessary, at least, it would seem, in circumstances where the conduct is objectively outrageous so that the tortfeasor can properly be described as reckless.

[116] One purpose of an award of exemplary damages is to deter both the wrongdoer and others who may be in his or her position from a repetition of the kind of conduct under scrutiny. In the present case, it is the State of New South Wales, rather than the individual police officers who will suffer the financial burden of an award. Further … such an award may indirectly have a deterrent effect on the police officers concerned through the response of the Police Service. It is, therefore, important to preserve the deterrent effect of such an award. That effect will tend to be diminished if the preconditions for an award are not tightly controlled. No doubt it is important that police officers know and observe the limits of their powers: however that desirable end will not make a careless or mistaken exercise of power outrageous or high-handed.

[117] The fact that an award of exemplary damages constitutes an expression of the Court's disapproval of the conduct does not mean that the Court's disapproval is a sufficient reason to make an award.

[448] Before making an award of exemplary damages, I must review all evidence which might mitigate the defendant's conduct.

[449] In Andary v Burford (1994) Aust Torts Reports 81-302, a truck driver (appellant) and car driver (respondent) were in a minor accident, which turned into a verbal altercation. The appellant tried to drive off and avoid further argument but the respondent got out of her car, abused the appellant, and held on to the side of his truck. The appellant, while moving, shook his truck door to dislodge her, and after she fell to the road in a heap he continued to drive away. The appellant appealed against the magistrate's decision to award $7,500 in exemplary damages without reduction for the respondent's provocation. Millford J allowed the appeal and reduced the damages by half for the respondent's loud, drunk and abusive provocative conduct.

[450] As I have said, I have not found there to be any provocation on the part of the plaintiffs or any lawful motivation for the defendant's conduct in committing the offences.

Distinction between aggravated and exemplary damages

[451] As already discussed, aggravated damages are generally compensatory in nature and are awarded to restore the plaintiff's dignity and to compensate for conduct which has shocked them. Exemplary damages, on the other hand, indicate the court's disapproval of the defendant's conduct.

[452] The distinction between the two heads of damage was first recognised in England in 1964 in Rookes v Barnard [1964] AC 1129 (HL) at 1221 per Lord Devlin.

[453] It has been accepted in Australia that the distinction is difficult to make in some circumstances.

Prior to Rookes v Barnard the law relating to exemplary damages both in England and in this country was that damages of that character might be awarded if it appeared that, in the commission of the wrong complained of, the conduct of the defendant had been high-handed, insolent, vindictive or malicious or had in some other way exhibited a contumelious disregard of the plaintiff's rights. Various expressions had been employed to describe such conduct and the law, though, of necessity invested with a degree of flexibility, was sufficiently certain. The cases in which this principle has been acted upon are numerous and it is sufficient for the present to say that it has been acted upon in this Court on a number of occasions. It is, perhaps, desirable to point out that there had been a degree of confusion between "aggravated" and "exemplary" damages and sufficient attention has not, in the past, been given to the distinction between these two concepts.

[A]ggravated damages are given to compensate the plaintiff when the harm done to him by a wrongful act was aggravated by the manner in which the act was done: exemplary damages, on the other hand, are intended to punish the defendant, and presumably to serve to one or more of the objects of punishment - moral retribution or deterrence.

[455] While the purposes of aggravated damages and exemplary damages are different, both may be awarded if appropriate.

[456] An example of that would be intentionally insulting conduct, which offends both the plaintiff and the court. This proposition was considered in Johnstone v Stewart [1968] SASR 142.

[457] The court stated in Ibbett at [35], referring to the "global" approach:

[35] In cases where the same circumstances increase the hurt to the plaintiff and also make it desirable for a court to mark its disapprobation of that conduct, the court may choose to award one sum which represents both heads of damages and no element more than once. Such an approach was adopted by Bray CJ in Johnstone v Stewart .

[458] The court affirmed the remarks of Spigelman CJ in the judgment appealed from at [34]:

[34] … it is relevant to note that the matters to which I have referred as justifying an award of exemplary damages are also pertinent, as is often the case, to an award of aggravated damages. The difference is that in the case of aggravated damages the assessment is made from the point of view of the plaintiff and in the case of exemplary damages the focus is on the conduct of the defendant. Nevertheless, it is necessary, as I have noted above, to determine both heads of compensatory damages before deciding whether or not the quantum is such that a further award is necessary to serve the objectives of punishment or deterrence or, if it be a separate purpose, condemnation.

[459] In a case such as the present one, I must be mindful of the remarks of the court at [36] with respect to:

[36] … the conceptual distinctions between aggravated and exemplary damages and of the dangers of an excessive overall award where some or all of the factors supporting one head of damages also support(s) the other.

[460] Relevantly, Smith J in Walker v Hamm (No 2) [2009] VSC 290 said at [63]:

[63] It has been noted in the authorities that there is no necessary proportionality between compensatory and exemplary damages. In addition, however, it has been recognised that in reality there can be an element of punishment in aggravated damages. As a result, in considering whether to award exemplary damages and, if so, their quantum, it is necessary to consider whether the awarded compensatory damages, including aggravated damages, address any need that may exist in a particular case for punishment of the tortfeasor through the award of exemplary damages. Double punishment must be avoided. Further, the court should approach any assessment with restraint and moderation. It also appears to be established that deciding whether to award exemplary damages, and their quantification, generally will involve the exercise of discretion except where there is no room for a discretion."

[313] I now consider the factors relevant to aggravated and exemplary damages for each of the plaintiffs

Mr Kawenga's false imprisonment claim - Aggravated and exemplary damages

[314] I have been guided by the Court of Appeal's analysis of these damages in Coyle, supra and Ibbett, supra.

[315] Mr Kawenga got out of the car to go to the help of his friend, only to be pursued, arrested, taken to the police station, strip searched and subjected to a completely unnecessary police interview where he was not asked about the offences the police were investigating. He was upset by being asked questions about his racial background by the police, and is upset that he was asked this question again in interrogatory 19 (T 93). He is a young man of 23 who found the procedure of a record of interview and a strip search frightening, not least because he had no prior criminal record or experience of the police of any kind.

[316] As set out above, I have awarded Mr Kawenga $35,000 general damages. Mr Kawenga should be awarded a further $10,000 for aggravated compensatory damages and $15,000 exemplary damages, making a total of $60,000.

[317] I have been careful to delineate between aggravated compensatory damages and exemplary damages. An award of exemplary damage is necessary, for the court should mark its disapprobation of contumelious conduct of this kind: New South Wales v Ibbett (2006) 229 CLR 638 at [31].

Mr Moses' false imprisonment claim - Aggravated and exemplary damages

[318] I commence by noting that I have not considered the circumstances of Mr Moses' assault, the relevant events for which preceded this claim, warranted aggravated or exemplary damages. He was essentially wrestled to the ground and suffered only minor injuries, for which I have awarded general damages of $10,000.

[319] However, I consider Mr Moses should be awarded the same amount of aggravated and exemplary damages for the false imprisonment claim as have been awarded for Mr Kawenga, namely $10,000 aggravated compensatory damages and $15,000 exemplary damages, making a total of $60,000 (inclusive of the $35,000 for general damages).

[320] My reasons for awarding aggravated damages are essentially the same as those set out by the Court of Appeal in Ibbett, supra. Aggravated compensatory damages look at events from the point of view of the plaintiff (Ibbett at [34] per Spigelman CJ). Each of the plaintiffs was taken completely by surprise when they were seized and arrested by the police without any prior warning or provocation. They suffered the initial fear of thinking, not that they were being arrested, but about to be the victim of a crime. They were forced to the ground, handcuffed and transported to a police station where they spent a number of anxious hours before understanding what the allegations against them were. They were asked questions of a very personal nature about their race. For young men of 22 and 23 this would have been not only demeaning but terrifying.

[321] Exemplary damages focus upon the conduct of the defendant. The police officers failed to adhere to Detective Acting Sergeant Buttel's Operational Orders and, as a result of this failure, arrested two innocent persons. They compounded this by keeping them at the police station, searching them in a humiliating fashion and continuing to detain them when (especially in Mr Kawenga's case) they had no or no sufficient evidence.

Mr Moses' malicious prosecution claim - General, aggravated and exemplary damages

[322] Issues of quantum in malice prosecution claims have been most recently considered by the New South Wales Court of Appeal in State of New South Wales v Landini [2010] NSWCA 157. The cause of action was a claim for malicious prosecution after evidence disclosed that the charge brought against the plaintiff had been fabricated.

[323] In State of New South Wales v Landini, the primary judge declined to award damages for injury to reputation. In the present case, Mr Moses was arrested amid considerable commotion, bag snatching being widely known as a problem in the area. Mr Moses gave evidence of having been shunned by a neighbour subsequent to these events. The evidence concerning the mental distress he suffered as a result of being charged with these offences, having to see a solicitor, having to go to court and be on bail is scanty, but he was not cross-examined at any length about these statements, and the evidence of his parents is particularly compelling.

[324] I note the reference to "common sense" in State of New South Wales v Landini at [110]. Mr Landini was serving a term of imprisonment on other charges and this was a factor the court took into account.

[325] I have no information as to legal costs or any claim for special damage.

[326] The defendant makes no submission as to general damages for malicious prosecution, but submits (written submissions, paragraph 274) that there should be no award for exemplary or aggravated damages. The basis for this is that "the charges remained from 6 September to about 6 November 2008" (tab 2.91 of Exhibit 5) in that the legal services section of the New South Wales Police agreed to the withdrawal of the charges on or about that date, following the report by Detective Constable Porter dated 1 October 2008, which was supported by Detective Acting Sergeant Buttel on 15 October and Detective Inspector Beaufil's recommendation on 16 October.

[327] It is important to delineate between the hurt to feelings suffered by the false imprisonment on the night and the continuing distressed caused to Mr Moses by the bringing and continuance of the charges until 12 November 2008.

[328] Mr Moses did not know the charges were dropped until his solicitor was told on or shortly before 12 November 2008, the next return date when Mr Moses had to attend court. I do not accept the defendant's submission in paragraph 275 that "the charge had a life of about 28 days". Mr Moses was charged on 6 September 2008 and was not told about the charges being dropped until just before he went to court on 12 November. That is slightly more than two months.

[329] Taking into account of the overlap in hurt to feelings and other issues relevant to general damages, I have adjusted the damages so that the amount for general damages for the malicious prosecution is small. The greater distress was, in my view, caused to Mr Moses by the circumstances of his apprehension by the police on 5 September 2008. However, the amount to be awarded for malicious prosecution should include an award for aggravated compensatory damages for the reasons explained by the Court of Appeal in State of New South Wales v Landini at [106]-[111].

[330] As the distress caused to Mr Moses was not as great as the circumstances of his wrongful arrest and false imprisonment, I propose to award him the sum of general damages of $20,000, together with aggravated compensatory damages of $10,000.

[331] As to exemplary damages, I note the statement of the Court of Appeal in State of New South Wales v Landini at [113]-[114] as follows: "[113] The purposes of an award of exemplary damages were referred to by the plurality in Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1. Their Honours quoted with approval the following observations of Brennan J in XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd [1985] HCA 12 ; (1984-1985) 155 CLR 448:

As an award of exemplary damages is intended to punish the defendant for conduct showing a conscious and contumelious disregard for the plaintiff's rights and to deter him from committing like conduct again, the considerations that enter into the assessment of exemplary damages are quite different from the considerations that govern the assessment of compensatory damages. There is no necessary proportionality between the assessment of the two categories. In Merest v Harvey ((1814) 5 Taunt 442 ; 128 ER 761) substantial exemplary damages were awarded for a trespass of a high-handed kind which occasioned minimal damage, Gibbs CJ saying: "I wish to know, in a case where a man disregards every principle which actuates the conduct of gentlemen, what is to restrain him except large damages?"

The social purpose to be served by an award of exemplary damages is, as Lord Diplock said in Broome v Cassell & Co ([1972] AC, at p 1130) `to teach a wrong-doer that tort does not pay ( XL at 471; Cotogno at 9).

[114] The decision of the High Court in New South Wales v Ibbett [2006] HCA 57 ; (2006) 229 CLR 638 confirmed that exemplary damages may be awarded against a person who, although not personally responsible for the commission of the relevant tort, is vicariously liable in respect of such a tort and that there is no barrier to the award of such damages against a State in respect of conduct of police officers for whose torts the State is responsible. The plurality judgment in that case approved the following observation of Priestley JA in Adams v Kennedy [2000] NSWCA 152 ; (2000) 49 NSWLR 78:

That figure [of exemplary damages] should indicate my view that the conduct of the [police officer] defendants was reprehensible, [and] mark the court's disapproval of it. The amount should also be such as to bring home to those officials of the State who are responsible for the overseeing of the police force that police officers must be trained and disciplined so that abuses of the kind that occurred in the present case do not happen ( Adams at 87; Ibbett at [51])."

[332] In State of New South Wales v Landini, the charges were completely fabricated. That was a matter of the utmost gravity. This case is much less serious. Nevertheless, it is an egregious example of charges being laid without reasonable and probable cause, particularly in relation to the second charge. Accordingly, I propose to award exemplary damages of $20,000, making a total of $50,000 for the malicious prosecution claim.

Damages for defamation and the claim by Mr Kawenga for assault

[333] I propose to do no more than to note that if I were to award damages for Mr Kawenga's assault I would have awarded damages of $5,000 and that if I were to award damages for defamation to each of the plaintiffs then, having regard to the overlap between causes of action, I would have awarded each of them $15,000.

[334] I have found in favour of the defendant in relation to the claim for defamation and (in relation to Mr Kawenga) on the assault claim. I have accordingly reserved costs for further argument and granted liberty to apply.

Orders (1) Judgment for the defendant for the defamation claim brought by the first plaintiff. (2) Judgment for the defendant for the defamation claim brought by the second plaintiff. (3) Judgment for the first plaintiff for the assault claim against the defendant in the sum of $10,000. (4) Judgment for the defendant for the assault claim brought by the second plaintiff. (5) Judgment for the first plaintiff for the false imprisonment claim against the defendant in the sum of $60,000. (6) Judgment for the second plaintiff for the false imprisonment claim against the defendant in the sum of $60,000. (7) Judgment for the first plaintiff for the claim for malicious prosecution against the defendant in the sum of $50,000. (8) Liberty to the parties to bring in short minutes of order reflecting the agreed interest calculation in relation to the claims for general and aggravated compensatory damages. (9) Costs reserved. (10) Liberty to apply concerning interest and costs. (11) Exhibits retained for 28 days.

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.