Nash v State of New South Wales [2015] NSWDC 144 | Case summary

District Court of NSW|2014-11-12

Wales v Ibbett (2006) 229 CLR 638 New South Wales v Landini [2010] NSWCA 157 New South Wales v Radford (2010) 79 NSWLR 327 New South Wales v Riley (2003) 57 NSWLR 496 New South Wales v Tyszyk [2008] NSWCA 107 New South Wales v Zreika [2011] NSWCA 340 Nye v New South Wales (2004) ATR 81-725 Ruddock v Taylor (2005) 222 CLR 612 Skrijel v Mengler [2003] VSC 270 State of New South Wales v Abed [2014] NSWCA 419 State of NSW v Hathaway [2010] NSWCA 184 Talovic v New South Wales [2014] NSWCA 33 Trobridge v Hardy (1955) 94 CLR 147 Woodley v Boyd [2001] NSWCA 35 Zaravinos v New South Wales [2004] NSWCA 320 Texts Cited: New South Wales, Legislative Assembly, Second Reading Speech (Hansard, 17 September 2002) (Mr Debus) Category: Principal judgment Parties: Plaintiff: Bernard Andrew Nash Defendant: State of New South Wales Representation: Counsel: Plaintiff: Mr R E Quickenden Defendant: Mr M Hutchings

Judgment

The plaintiff by statement of claim filed on 7 May 2013 brings proceedings for damages for unlawful arrest (paragraphs 3 to 7 of the statement of claim), assault and battery (paragraphs 8 and 9 of the statement of claim) and malicious prosecution (paragraphs 11 to 16 of the statement of claim) arising out of the circumstances in which he was arrested on 13 October 2011 and charged with two offences: 1. Driving under the influence of alcohol / drugs pursuant to s 12 Road Transport (Safety and Traffic Management) Act 1999 (NSW); and 2. Resisting an officer in execution of duty pursuant to s 546C Crimes Act 1900 (NSW).
These proceedings were heard in the Gosford Registry of the District Court on 10, 11 and 12 November 2014. That was insufficient time to complete both evidence and submissions. The proceedings were stood over for the parties' submissions to 11 February 2015. As the parties did not make submissions on quantum on that occasion, further submissions on damages were made on 23 March and 28 April 2015.
The plaintiff claims damages, including aggravated damages and exemplary damages, for each of the causes of action (see paragraphs 17 to 18 of the statement of claim). I shall first set out each of these causes of action and the defences pleaded.

Unlawful arrest

The particulars of the unlawful arrest are as follows: "4.3 The officer tackled the plaintiff and attempted to coerce him to the ground. 4.4 The officer pinned the plaintiff to the ground using his knees. 4.5 The officer threatened the plaintiff with capsicum spray and handcuffs."
The statement of claim pleads that the arrest in question commenced with Senior Constable Michael Hicks calling out to the plaintiff from his vehicle words to the effect that he was under arrest. (Compliance with s 201 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ("LEPRA")) is an issue raised on behalf of the plaintiff). Senior Constable Hicks then entered the plaintiff's premises at Bellevue Street, Shelly Beach, NSW, took hold of the plaintiff with the view of restraining him (paragraph 3.3 of the defence) and, because the plaintiff allegedly "hurried away from the officer, tried to evade and escape the officer and resisted the officer" (paragraph 3.4 of the defence) tackled the plaintiff to the ground.
The defendant claims that at the time of these events occurring, the officer did not know that this was the plaintiff's home address (defence, paragraph 3.1).

Assault and battery

The plaintiff particularises the assault and battery in question occurring on 13 October 2011 as follows: "9.3 One act of assault was the officer grabbing the plaintiff. 9.4 One act of assault was the office tackling the plaintiff. 9.5 One act of assault was the officer pinning the plaintiff to the ground using his knees. 9.6 One act of assault was the officer threatening the plaintiff was capsicum spray and handcuffs."
The defendant's pleading responds: "7. In response to the particulars set out at paragraph 9 of the Statement of Claim, the Defendant: 7.1 admits that the Plaintiff was arrested at [address], Shelly Beach, NSW although denies that the officer knew this to be the Plaintiff's home address, 7.2 admits that the arrest occurred at around 6:45pm on 13 October 2011, 7.3 admits that the officer took hold of the Plaintiff and tried to prevent the Plaintiff from moving away and that a scuffle resulted, 7.4 admits that the Plaintiff was taken to the ground by the officer, 7.5 says that the officer was lawfully justified in his actions and that only reasonable force was used, and otherwise denies the paragraph."
Additionally, the defendant denies that the plaintiff suffered any injury, loss and damage as alleged (paragraph 8 of the defence).

Malicious prosecution

It is not in dispute that the plaintiff was charged with the offences as set out above, and that the charges were dismissed by the Wyong Local Court on 18 May 2012. The facts relied upon for absence of reasonable and probable cause are identified in the statement of claim as follows: "14.1 The facts alleged in prosecution of the charges did not satisfy the elements of the charges. 14.2 The facts alleged in the prosecution of the charge [sic] were not the true facts. 14.3 The police officer referred to in paragraph 4.2 was aware the plaintiff had not committed a criminal offence."
The facts relied upon to establish malice are pleaded as follows: "15.1 Instigating the said prosecution other than for the dominant purpose of upholding the criminal law. 15.2 Maintaining and continuing the said prosecution other than for the dominant purpose of upholding the criminal law."
Particulars, including a claim for special damages (parts of which was abandoned at the hearing), are set out at paragraph 16.
The defendant's denial is set out at paragraphs 10 to 14 of the defence. The defendant additionally pleads, in relation to each of the claims, the following facts: "17.1 the officer was lawfully entitled to require the Plaintiff to undergo a breath test in accordance with section 13(1) of the Road Transport (Safety and Traffic Management) Act (NSW) 1999 [sic], 17.2 The officer activated the lights and sirens of the police vehicle to signal to the Plaintiff to stop the vehicle, pursuant to section 13(4) of the Road Transport (Safety and Traffic Management) Act (NSW) 1999 [sic], 17.3 The Plaintiff was aware of the presence of the officer, or the officer reasonably believed that the Plaintiff was aware of his presence, at all times, 17.4 The Plaintiff failed to stop his vehicle and/or attempted to evade the officer."
The defendant relies upon s 99(2) of LEPRA and identifies the offences that Senior Constable Hicks believed the plaintiff had committed were driving a vehicle under the influence of alcohol or any other drug in breach of s 12, and resisting an officer while in execution of his duty pursuant to s 58 Crimes Act 1900 (NSW). Additionally, the defendant relies upon s 99(3) of LEPRA, s 6 Police Act 1990 (NSW) and ss 230 and 231 of LEPRA (paragraphs 19, 20 and 21 of the defence respectively).

Preliminary observations

Claims for damages arising out of arrests by the police often arise where police officers have to make split-second decisions based on the visual evidence before them: McIntosh v Webster (1980) 43 FLR 112 at 123, cited in Woodley v Boyd [2001] NSWCA 35 at [37] by Heydon JA. The factual scenario may demonstrate police being called to a scene by concerned third parties and/or in circumstances of danger, poor visibility, urgency or injury to persons or property.
None of those factors were present here. This is relevant in terms of the plaintiff's complaint as to the speed, lack of warning and lack of explanation for his actions given by Senior Constable Hicks.
Similarly, the location in which events take place may be a relevant factor. Police may be given a greater degree of latitude when making decisions if the events occur in a dark or dangerous location.
The location of these events is significant, for three reasons. First, the very short distance between the Shelly Beach Golf Club, which Senior Constable Hicks observed the plaintiff's car to pull out from, and the plaintiff's home (approximately 150 metres away) is relevant to the issue of how much prior warning the plaintiff had that he was being followed (the questions of when the lights and sirens were activated, and how far the plaintiff was into the familiar routine of parking at his home when this occurred, are also important). Second, these events took place in the quiet suburban street where the plaintiff and his wife live, and not in a place where danger was at any appreciable level. Third, these events occurred at approximately 6.30 pm and Exhibit B shows that they all occurred in daylight, in circumstances of clear visibility, which is a relevant factor in relation to the accuracy of the witnesses to the events.
The physical characteristics of the plaintiff and defendant are also of relevance when determining disputed issues arising from the evidence concerning the circumstances in which Senior Constable Hicks wrestled the plaintiff to the ground.
The plaintiff at the time of arrest was a 53-year-old real estate agent and a member of the Shelly Beach Golf Club, the premises from which he travelled to his home on the night in question. As the medical evidence (see Exhibit 5 and Exhibit J) notes, he is a middle age man who looks his age, but was "a fit and healthy man before the incident" (report of Professor Dennerstein, page 9). As Exhibit B shows, on the day of these events, he was neatly attired and looked like the professional businessman that he was. The plaintiff had visited the golf club to find out his seeding and scheduled play-off time for the golf club championship the following weekend.
The premises at which these events occurred were the family home which the plaintiff shared with his wife of many years, and a property they had owned for approximately 10 years. The location of their home in a quiet family suburb is of some limited relevance.
The defendant had been a member of the NSW Police Force for approximately 12 years (T 154) and agreed that he was younger, taller and fitter than the plaintiff (T 188). To my observation, when he was in the witness box, Senior Constable Hicks was well over 6 feet tall, and powerfully muscled. When I saw him sitting in the same witness box as that in which the plaintiff had given evidence, the difference between them, in size and fitness was immediately apparent. I also note that a neighbour of the plaintiff who witnessed the arrest described Senior Constable Hicks in the Local Court proceedings as "a big policeman" who "jumped out" of his car and "pursued" the plaintiff.
As a trained observer, Senior Constable Hicks would have taken into account the plaintiff's size, age and apparent respectability of appearance (T 188 - 9) when determining the degree of force necessary to arrest him.

The circumstances of the plaintiff's arrest

On the day in question, Senior Constable Hicks had commenced duty at 3:00pm. By 6:30pm, three and a half hours later, he had breathalysed a number of motorists without any positive result (T 154-155).
At 6:30pm, when the plaintiff left the golf club and walked to his car and drove out, Senior Constable Hicks, who was driving a yellow fully marked police vehicle in a northerly direction along Grandview Street (namely in the opposite direction) passed, on the inside lane, a vehicle making a right hand turn into Bonnyview Street (T 192). It was during this manoeuvre that Senior Constable Hicks observed the plaintiff's red Holden Commodore at the intersection coming from the golf club car park. He continued north along Grandview Street, intending to make a U-turn and pursue the plaintiff's vehicle. He could not however do so immediately due to the presence of a series of vehicles coming in the opposite direction (T 195), including a taxi which had come from a parked position in Grandview Street (T 185). By that time the plaintiff's vehicle had entered Bonnyview Street and driven a distance of less than 100 metres to the intersection of Bellevue Street, which meant he was between 40 and 50 metres from his home at this time.
The plaintiff turned left into Bellevue Street and drove 40 to 50 metres to his home, turning to the driveway and parking his vehicle outside a double garage. Although the precise time that Senior Constable Hicks activated the sirens which automatically operated the in-car video and flashing lights on the police vehicle was hotly contested, it is clear from the in-car video (Exhibit B and T 156) that he was never sufficiently close to the plaintiff's vehicle to be able to request the plaintiff to pull over. Indeed, the plaintiff's vehicle is not visible on Exhibit B at all until it is stopped in the plaintiff's driveway, at which time the plaintiff was entering his home by the side gate. This must mean that the plaintiff had already entered his home street at the time that Senior Constable Hicks activated the lights and sirens, and was traversing the 50 metres to his home when that event occurred.
Mr Quickenden submits, and I accept, that the lights and sirens activation, even allowing for the gap between the activating of the lights and sirens by Senior Constable Hicks and the sound being picked up by the in-car video, could not have been turned on until the plaintiff was within seconds of turning into his own driveway.
The siren alerted a neighbour across the road, Mr Robert Ford, as well as the plaintiff's wife who was at home. It was unexpected, and both looked out from their respective upstairs windows. Mr Ford gave evidence at the Local Court proceedings as follows: "Q. Could you tell her Honour what you observed in relation to the matter that we're here about today? A. I wasn't long home from work. I work at Thornleigh at the end of the freeway and I was sitting down in the lounge room and I heard a siren which I immediately knew as a police car not an ambulance or a fire engine. I thought that's very unusual because we've got a very quiet street, Bellevue Street so I stood up. And then I noticed my neighbour's car pull into the driveway and he got out of - out of the car, went to the side of his house through the gate and started to walk down towards the back of his house. And then a yellow police car arrived and a big policeman jumped out and pursued my neighbour down the side of the house and he-- Q. The neighbour is the defendant-- A. Bernard, yes. And he - he grabbed him in a bit of a bear hug and I observed my neighbour putting his arm up and of course I thought to myself, god, what's he done? Is he - you know, is he - you know, I'm going of course - I'm going - anyway I know exactly where it was because if you stand up, I'm on the second floor and you look down, there's two windows on the side of Bernard's house and the policeman grabbed him under the second window which was about maybe one or two paces from the corner of the house, and I was going god, I was you know a bit jumpy and I immediately rang a friend of mine and said, "What should I do," and he said -- Q. Well I'll stop you there, only because it's not relevant your Honour. Did you observe the defendant moving from his car towards the gate? A. Yes, I saw him move with the car. Q. How did he move? A. Well he left the car and walked to the gate, opened the gate and walked down the side. Q. Any suggestion that he was running? A. No, he might have been walking you know, at a good gait but he wasn't certainly running. PEARCE: Yes, nothing further your Honour. HER HONOUR: Any questions in cross-examination? Q. Yes, you say that you'd heard the siren which - that's what first attracted your attention? A. Because I've lived in that street for nearly 11 years and I don't think I've ever heard a police car siren. Q. You heard the siren and that-- A. Yes. Q. --attracted your attention? A. Yes. Q. Is that when you stood up? A. Yes, straight away. Q. You're in the lounge room? A. Yes I was. Q. What made you look out the front window? A. Well I wanted to see what the police car was doing in my street. Q. Okay, and-- A. Because it's only a very small street. Q. --was that, you stood up and then you saw Mr Nash's car pull in his driveway?A. Yes. Q. And did you take your eyes off that car, did you look up the street to see where the sirens-- A. No. Q. --were coming from? A. No. Q. So you're watching Mr Nash? A. Well I just saw the car, this all happened in a very short period of time and I - and then he got out of his car and as I said, went through the gate, went down the back and then he'd no sooner been through the gate then the police car pulled up. Q. Thank you, if you just answer my question. A. Sorry, I thought I was. Q. You saw Mr Nash get out of his car? A. Yes. Q. And he walked towards the side gate? A. Yes. Q. He didn't actually go through the side gate because the police car had pulled up by then, haven't they? A. I wouldn't have thought so. I - I - no, no because he - he was walking down the side of his house and as I said, I know exactly where the policeman got him because he grabbed him in the bear hug and - because it was right under the - the last window. … PROSECUTOR: My only question is, and I put it to-- … Q. --Mr Ford that Mr Nash didn't go through the side gate? A. Well I don't know how he can get around the gate, but I - I observed him the same as I'm looking at you, it's as clear as that. Don't forget I'm looking down so I've got a very, very clear and precise picture of what happened and he went through the gate and was walking down the side when the policeman came after him and he grabbed him at the - right under the second window. That's how I knew exactly where he grabbed him."
This transcript was tendered by agreement, as Mr Ford is now deceased. This means there can be no evidence as to what prompted him to telephone for advice about what to do. Although this evidence was not permitted in the Local Court, it would have been relevant to these proceedings. The fact that Mr Ford told the Local Court he was "going god, I was you know a bit jumpy and I immediately rang a friend of mine and said, "What should I do"" is an indication of the speed and ferocity of Senior Constable Hicks' actions.
On turning his vehicle into the plaintiff's driveway, Senior Constable Hicks called out to the plaintiff saying, "just here sir" and "you're under arrest". While there is some dispute about how far along the side of the plaintiff's house he was at the time, it is clear that the plaintiff was on his own property.
Senior Constable Hicks jumped out of the police vehicle and ran towards the plaintiff, placing him under what Mr Ford called a "bear hug", with the intention of controlling him to require him to undergo a breath test (T 212). He continued to tell the plaintiff that he was "under arrest".
The transcript of the in-car video is as follows: "Hicks: Just here sir Hicks: I said just here Hicks: You're under arrest, you're under arrest Nash: What are you doing? Hicks: You're under arrest Nash: What do you mean I am…? Hicks: You're under arrest Hicks: Whose house is this Nash: This is private property Hicks: Whose house is this Nash: Mine Hicks: Show me your licence… You must be kidding me Nash: This is my house Hicks: You're under arrest mate Nash: You just assaulted me, ai. Hicks: I said you're under arrest Nash: [untranscribable] Hicks: Stand there and show me your driver's licence Nash: [untranscribable] Hicks: Whose house is this? Nash: Mine… This is my house Hicks: Thank you Nash: This is my house… This is my house … [untranscrible] with me. Hicks: [untranscribable]"
Mrs Nash came onto the scene less than a minute after the arrival of Senior Constable Hicks. Her evidence of events, which is not challenged, identifies him as not only having overpowered her husband physically, but of being "really angry" and "yelling": "Q. When you say the back of the house, where were you when you saw something? A. I'd gone down the side ‑ like through the gate down the side and to the ‑ to the back corner of the house and as soon as I got to where the side of the house finishes, that's when I saw the policeman and Bernard. Q. You saw the policeman and Bernie, did you? A. Yes. Q. How long was it from the time you saw the police vehicle until the time you was the policeman and Bernie? A. Less than a minute. 30 seconds maybe. 40 seconds. Less than a minute. Q. What did you see? A. A police man had one arm round Bernard's throat and had pulled Bernard's arm up his ‑ up the back. Q. What positions were they in? A. They were standing up. Q. Did you hear any conversation at that point? A. When I came around the side, I could hear a man yelling that I didn't ‑ it wasn't Bernard and then I ‑ as I got around to the thing, the policeman yelled at me sort of‑‑ Q. You'll have to say, to the best of your recollection, what he said but before that, you said that when you came around the side you heard a man yelling. You knew it wasn't Bernard's voice. Is that correct? A. That's right. Q. What was the person saying when you say he was yelling? A. I think it was, "You're under arrest" or‑‑ Q. You think, yes. Is that all you can remember? A. About that until he spoke to me. Q. Then you were approaching them, were you? A. Well, I'd walked around and then I sort of was a bit stunned to see what I was seeing and the policeman then said to me ‑ or I think Bernard might have said, "Can you tell this guy who I am?" and then the policeman said ‑ he sort of yelled it at me, "Do you know this man and does he live here?" and I said, "Yes, I know him, he's my husband and, yeah, he lives here". Q. Did you notice anything about the police officer at that point? A. He just looked really angry. Q. What makes you say that? A. Well, because he was yelling at me. I think a couple of times he said ‑ you know, I thought maybe he didn't believe me but he ‑ he sort of said that twice and he just looked angry. Q. What else did you observe? What did you observe after that? A. The policeman sort of tripped him to the ground and put his knee in his back and just said, "You're under arrest. You're under my control. You're under my control", he just kept repeating that." (T 128-129)
By the time she was at the scene, both the plaintiff and Senior Constable Hicks were in the backyard close to the back western corner of the property. It is clear, from her description of what was said, that Senior Constable Hicks had not yet told the plaintiff what he was under arrest for.
Mrs Nash told Senior Constable Hicks that she was the plaintiff's wife and Senior Constable Hicks acknowledges that he then "thought" the plaintiff must therefore be at his residence (T 218). He then tripped the plaintiff to cause the plaintiff to fall to the ground so that he could put his weight on him, including putting his knees onto the plaintiff's back, so that he could control the plaintiff (T 217). He believed the plaintiff was trying to get into his house on the property and he wanted to resist his efforts to do so (T 217).
The conversation which occurred between Senior Constable Hicks and the plaintiff once they were out of range of the recording in the vehicle is in issue. It is not in dispute that the plaintiff's wife went to the motor vehicle and obtained the plaintiff's driver's licence. After Senior Constable Hicks looked at the licence, which included a photograph of the plaintiff (T 166-164), he released the plaintiff from the ground.
Senior Constable Hicks still had not informed the plaintiff why he was under arrest: "Q. Did you respond to that? A. I said, "Who's this person?". Q. Did she respond to your question? A. She said, "That's my husband". Q. Was Mr Nash silent at this point, or was he saying anything? A. I don't ‑ I can't recall. Q. After the woman told you that this was her husband, did you do anything? A. I was still saying that he's under ‑ he's under arrest. I was using my ‑ sorry. Q. Did you ask her anything? A. Eventually I asked for his driver's licence. I wanted his driver's licence. HER HONOUR Q. You said, "eventually". How long afterwards? A. I was in the middle of using my police radio to call for assistance whilst trying to ‑ but that was after Mr Nash was on the ground." (T 162)
Senior Constable Hicks then told the plaintiff "I want you out the front of the house" (T164). Senior Constable McKay arrived as they were "almost about to walk out the front" (T 164). Senior Constable Hicks told the plaintiff: "Q. What did he say, and what did you say? A. I told him that he was under arrest and he was not free to come and go as he pleases, he's under my control and he's got to do what I say. But he said he wasn't under arrest. He said he's not under arrest, and flatly refused to come out the front of the property" (T 165)
Why was the plaintiff under arrest? Senior Constable Hicks went on to explain: "Q. Did you have any further conversation with him about the topic of coming out the front? A. Yes. I told him several times that I wanted him out the front of the house to process him. Q. Did you tell him why you wanted to process him? A. Yes. Q. What did you tell him? A. After I'd seen that he was at his place of abode, obviously I knew I couldn't breath test him. Q. Why was that? A. Legislation prevents me from breath testing him on his place of abode. Q. You knew that, and what did you do? A. I informed him that it was my belief that he was under the influence of alcohol, I could smell it on him. Q. Did he say anything when you said that to him? A. He said, "Yeah, so"." (T 165)
However, he gave a different explanation in cross-examination: "A. I wanted to breath test him and he was running away from me. Q. That's why you arrested him, wasn't it? A. I was arresting him for hindering me. Q. But when you put the bear hug on him, that was for the purpose of requiring him to undergo a breath test, wasn't it? A. I don't understand the question. Q. You see, at the time you put a bear hug on Mr Nash, you hadn't had the opportunity of making any assessment of his state of sobriety, had you? A. No." (T 211)
In examination in chief, Senior Constable Hicks claimed that it was his observations of the plaintiff's "demeanour" after he had "got in the wrestle" with him which had led him to believe the plaintiff was under the influence of alcohol: "When I first got in the wrestle with him, immediate you smelt the strong smell of alcohol. We were contained in that side part of the fence, and there's a fence, and the wall, and it was coming off him, the smell of alcohol. And his whole demeanour, he was red in the face, his speech was slurred, he had the general intoxicated person style of language and demeanour." (T 165)
I have set out the above answer despite it being objected to. He was asked to give specifics of how the words were mispronounced and gave the following explanation: "All the words he was saying to me were coming out that, I believe, in a manner that, to me, inferred that was he was affected by alcohol."
Senior Constable Hicks was unable to give specific examples of these words, and the conversation took place after, and not before, he had called out to the plaintiff that he was under arrest, and taken him into a bear hug.
In cross-examination, Senior Constable Hicks added a claim that the plaintiff was unsteady on his feet.
None of the objective evidence supports either of these contentions. The few words spoken by the plaintiff that can be heard from Exhibit B were not identified by Senior Constable Hicks as sounding intoxicated, and it was not put to the plaintiff that his language at this initial encounter was that of an intoxicated person. As to the plaintiff's steadiness on his feet, the evidence of Mr Ford, Mrs Nash and observations of the plaintiff's behaviour in the second part of Exhibit B do not support this assertion. The golf club video confirms that the plaintiff only drank three light beers, and Mrs Nash did not say her husband smelled of alcohol. Senior Constable Hicks' evidence as to the basis for his belief that the plaintiff was intoxicated is hard to credit.
Senior Constable Hicks was in a difficult position. He had just arrested a man in his own home, in front of his wife, in circumstances where no breath analysis test could be performed. Although Senior Constable Hicks attempted in cross-examination to assert Mrs Nash had not been there until later, it is clear from Exhibit B that she was present (T 202). He had called for back-up and another police officer was now present. It was at this stage that the plaintiff said that he wanted to speak to his brother, who was a solicitor. Senior Constable Hicks initially would not permit this: "Q. You wouldn't let Mr Nash speak to his brother, is that correct? A. Yes. Q. Why didn't you do that? A. I was still trying to contain the situation and contain him and get my other officers to come and help me. Q. You were asked to speak to Mr Nash's brother on the telephone? A. No. Q. Weren't you? A. No. Q. Mrs Nash asked you to do that? A. No." (T 246)
Senior Constable Hicks denied that he was angry at this stage (T 246), or indeed at any stage of these events.
Senior Constable Hicks then made a decision to charge the plaintiff as follows: "Q. Did the conversation about Mr Nash smelling like a brewery produce in him ‑ I'll withdraw that. After the conversation about the brewery, if I can put it that way, did you make it to the front of the house? A. We went out the front of the house after I told him that I wasn't going to breath test him. Q. What did you say when you said, I told him I wasn't going to breath test him, what did you say to him? Doing the best you can, do you recall the words you used. A. I said to him, I want to ‑ my intention is to issue you with a field court attendance notice for driving under the influence of alcohol. You're at your place of abode, so I can't breath test you." (T 166)
What was the evidence for this? The evidence of the plaintiff's demeanour all occurs after the words of arrest. Had Senior Constable Hicks had an opportunity even to observe the plaintiff's car before it pulled into the drive? This requires me to determine the degree to which he had both the plaintiff's car, and the plaintiff, under observation before these events: 1. The plaintiff's car: Although I am satisfied from Exhibit B that the plaintiff's car cannot be seen until it is parked into the driveway, Senior Constable Hicks refuted this (T 188 - 9), claiming that the reproduction of the film was inadequate (T 189), that the sun distorted images (T 189 - 90), that it could not be seen "on that laptop" (T 190), and that he had a better view than the in-car video (T 190). He also disputed the distance from the plaintiff's home to the club, asserting at T 190 that it was a distance "less than 500 metres" rather than 150 metres (the fact that it was 150 metres appears to have been conceded at a later stage by Mr Hutchings). He was reluctant to concede the evidence of the traffic he had to pass while making a U-turn to follow the plaintiff. Not until T 199 was Senior Constable Hicks prepared to agree with Mr Quickenden as to when he turned on his lights and sirens, which sirens (allowing for feedback delay) can first be heard as his car turns into the plaintiff's street. This means that after seeing the plaintiff's car exit the golf club, he was not within hailing distance of the car again until, as the in-car video shows, the plaintiff parked his car in his driveway. He would not have been able to see the vehicle for most of this period. This means that there was nothing in the manner of the plaintiff's driving which would have alerted a police officer, and I note that Senior Constable Hicks agreed he did not investigate or charge any road offence in relation to the plaintiff's driving (T 200). 2. The plaintiff: Although Senior Constable Hicks stated that he saw the plaintiff's face as the window was down, and the plaintiff appeared to notice him, he acknowledged that if this was the case he would have given such evidence in the Local Court, or noted it in the COPS report, neither of which he had done. I do not accept this evidence.
Returning to the circumstances at the plaintiff's home on the day in question, the plaintiff was eventually permitted to speak to his brother, and Senior Constable McKay obtained the plaintiff's fingerprints. Constable McKay can be seen on the video walking around the back of the premises with the plaintiff (T 233), and he agreed that he had the plaintiff under observation for a few minutes at least (T 233). He did not assert in his evidence, or note, that the plaintiff was unsteady on his feet or slurring his words.
Senior Constable Hicks' explanation for the plaintiff not appearing to stagger or be unsteady, as is clear from Exhibit B, is that the plaintiff sobered up after speaking to his brother (a solicitor) on the telephone, an explanation he had also given in the Local Court (T 243). Counsel appearing at the Local Court put to him: "Q. But, you see, you don't sober up, if you're affected by alcohol, because you talk to your brother. That doesn't mean that you can stand there steady as we observed in the video, you agree with that? A. I beg to differ." (T 243)
This explanation from Senior Constable Hicks is completely implausible. It must substantially undermine his credit as an honest and reliable witness. (Other examples, including his dismissal of Mr Ford's evidence at the Local Court on the basis that Mr Ford was a liar (T 248) and his claim that the golf club deliberately and dishonestly withheld incriminating CCTV, are set out in more detail below).
Senior Constable Hicks was asked why he did not discontinue the arrest when it was apparent to him that the plaintiff was in his own home and could not be breathalysed. His answer is evasive: "A. It wasn't necessarily ‑ I still had to confirm his particulars. I had a driver's licence in front of me, I had the wife saying it was, he was her it was, he was her husband but, once again there, I have still got to confirm ‑ I had a driver's licence in front of me but I still have to confirm it. He is still with me until I can confirm it myself as to whose house we are at and whether or not he is entitled to be there and all the - " (T 216 - 217)
However, Senior Constable Hicks had earlier agreed that the photo licence showed the plaintiff's photograph as well as the address of the property on which he was standing. Mrs Nash had fetched her car keys from the house to unlock the car to hand over the licence and Mr Nash's mother was also present. Although he claimed not to know the street address or number of the house at which he was carrying out the arrest (which I do not accept as he had radioed his whereabouts for back-up), Senior Constable Hicks' suspicion that the plaintiff was not the Mr Nash who lived at this house with Mrs Nash was without any basis.
Additionally, over the whole of this period, Senior Constable Hicks continued to restrain the plaintiff physically, although the likelihood that the plaintiff would flee from his own house, where his identity was known, was remote. His avowed purpose was to stop the plaintiff going into his own home, although the reason why this would have been such an unwelcome development was never explained.
Senior Constable Hicks told the Local Court he restrained the plaintiff physically for around 10 minutes, going on to say it was for: "A good period of time. Like I say, the entire time until he got the - spoke to his brother on or he spoke to someone on the phone. I was right on top of him one stage there to prevent him from getting inside. I think I tripped him over and I was on top of his back, saying, 'I don't want you to go inside. We are staying right here' so about, maybe ten minutes, I'd say, I was right in his face, trying to contain him." (T 220)
The plaintiff was obviously suffering injuries as a result of this prolonged restraint, and complained of pain in his left shoulder. Senior Constable Hicks called an ambulance (T 186). Senior Constable McKay required the plaintiff to provide fingerprint identification. Senior Constable Hicks wrote out a Court Attendance Notice for the plaintiff to attend court for driving under the influence.
No charge was made at the time in relation to resisting arrest. This was added at a later date (T 170). Mr Quickenden submits that it was added because of Senior Constable Hicks' knowledge of the weakness of the charge in relation to driving under the influence.
Senior Constable Hicks' quest for evidence in support of the charge of driving under the influence also led him to visit the golf club and to seek the CCTV for the day in question.

Senior Constable Hicks' letter to the Shelly Beach Golf Club

On 24 November 2011, Senior Constable Hicks visited the golf club for the purposes of obtaining evidence in relation to the driving under influence charge. He took with him a letter which stated as follows: "[New South Wales Police, Tuggerah Lakes Local Area Command letterhead] To The Licensee/Secretary Manager, I am officially placing a form of demand upon you as the licensee/secretary manager, to supply to me the following information. This form of demand is in accordance with section 110 of the Liquor Act / section 58 of the Registered Clubs Act. The information is required in the investigation of the following offence: - Permit Intoxicated person The required information/documents are: Video footage from 4:00pm on the 13/10/2011 until 7pm on the 13/10/2011 covering the location/s of: All area's [sic] of the interior of Tuggerah Lakes Golf Club around the bar area and carpark. [Michael Hicks' signature]"
Three aspects of this letter are relevant: 1. Senior Constable Hicks obtained assistance in the writing of this letter from another member of the NSW Police Force; 2. The legislation referred to was not in force at the time; 3. The letter did not state that the information was required in respect of the charges laid against the plaintiff notwithstanding that this was in fact the purpose of the letter as Senior Constable Hicks admitted; and 4. Senior Constable Hicks agreed in cross-examination that he was not authorised to investigate such offences.
As to (c) above, his statements at T 236-237 are relevant: "Q. You misrepresented to the Golf Club why you wanted information, via this letter, didn't you? A. The Club asked me for the letter. HER HONOUR Q. Sir, that's not the question. A. Sorry. Q. The question is, whether they asked you for the letter or not, what is being put to you is that the contents of that letter misrepresented your true purpose which was not to carry out this investigation but‑‑ QUICKENDEN: Yes. Q. It wasn't to carry out the investigation of permit an intoxicated person. It was to carry out the investigation in relation to the DUI charge, wasn't it, Senior Constable? A. It would have been for both. Q. You say it was both now, Senior Constable, do you? A. No, I'm not saying it was both. My intention was to get the footage in relation to the drinking of Mr Nash but, had it have shown more, obviously I would have passed it on to the licensing police."
The club released the relevant video, which is Exhibit H in these proceedings. It was not used in the Local Court for the prosecution case. In the course of cross-examination, Senior Constable Hicks explained that it was not used because it was not all the footage, and accused the club of withholding footage: "Q. You said that that was relevant to your investigation, to calculate the number of drinks he had? A. It became apparent after speaking to the General Manager of the Golf Club that they weren't happy with me and they didn't want to supply me with the footage. The footage I was told I was going to be supplied with was different to the footage that I was supplied with. Q. You don't think you got all the right footage? A. Exactly. Q. You think the Club deliberately didn't give you the right footage? A. Yes. Q. Withheld information from you? A. Yes. Q. What did you do about that, Senior Constable? A. Nothing." (T 238)
Senior Constable Hicks did not tell the court the facts and matters upon which he based this allegation against the golf club. It is a serious allegation to make, and one which does not reflect well on Senior Constable Hicks.
As is set out above (T 243) the CCTV in Exhibit B showed the plaintiff to be steady on his feet shortly after the arrest. The CCTV footage of the plaintiff at the golf club makes it clear that the plaintiff was not unsteady on his feet or affected by alcohol in any visually perceivable way before the arrest as well. There is nothing in his demeanour from this CCTV to suggest he is affected by alcohol in any way, nor was any submission to this effect put by Mr Hutchings.
Notwithstanding this exculpatory evidence (which was withheld from the legal representatives of the plaintiff at the criminal proceedings) the prosecution was maintained and continued until 18 May 2012, when it was dismissed by the magistrate at the Local Court.

The disputed issues of fact

Counsel for the plaintiff identifies the issues in dispute as follows: 1. Whether or not the plaintiff knew he was being pursued by the police; 2. Whether or not the plaintiff heard the words "just here Sir"; 3. Where the bear hug was first inflicted; 4. Whether or not the plaintiff realised a police vehicle was partly on his property before the bear hug; 5. The form of the physical contact between the plaintiff and Senior Constable Hicks until about the time that the plaintiff's wife could see the duo; 6. What was said by the plaintiff in the backyard; 7. Whether or not the plaintiff was affected by alcohol such that he was driving under the influence; 8. The time Exhibit 4 was prepared; 9. Credit of the main witnesses; 10. In the context of these proceedings, Senior Constable Hicks' evidence should not be accepted where it is contradicted by any other witnesses.
Counsel for the defendant identifies the contentious facts and issues as follows: 1. The plaintiff is not a man of credit in that he "had the temerity" to assert that he had never been before the court charged with a drink driving offence as he had been convicted of a low range PCA offence 35 years ago on 10 May 1979 when he had been fined $400, disqualified from driving for 21 days and obliged to hold a restricted licence for six months. 2. Additionally, on 4 June 2000, the plaintiff was charged with assault occasioning actual bodily harm following an altercation with his wife. Those were dismissed. These two matters must cast doubt on the credit of the plaintiff in face of his "frank dishonesty in the face of the court" (written submissions, paragraph 31) and in the absence of corroboration, where contradicted, the plaintiff's evidence ought not to be accepted. 3. Additionally, there were significant inconsistencies in his evidence which were "inexplicable" (written submissions, paragraph 35). This included whether he had observed the police vehicle (T 17), his failure to observe the lights or hear the sirens or to understand that the policeman wished to stop him, as opposed to some other person (written submissions, paragraphs 81-85), and his explanation for not submitting to the arrest and his credit and demeanour generally.

Credit issues

The disputed facts in this issue may largely be resolved without determination of the credit of either the plaintiff or Senior Constable Hicks, in that the objective evidence of reliable witnesses (Mr Ford, Mrs Nash and Constable McKay) and CCTV footage and Local Court transcript establish most of what occurred.
I have set out, in my narrative of facts above, some of my reasons for not accepting the evidence from Senior Constable Hicks as to what took place. The evidence of the plaintiff as to what happened is, with one exception, of little assistance, in that he was grabbed in a bear hug by Senior Constable Hicks and kept under his physical control for about 10 minutes, in circumstances where his ability to understand what was happening was limited.
That one exception is his explanation as to when he saw the police car. His response that he did not see the police car is explicable in the sense that he explained that he did not think its presence was anything to do with him. As a member of the community with only limited prior experience with the police, his reaction was to assume it was nothing to do with him. Similarly, although attracted by the sound of the police siren, neither Mr Ford nor Mrs Nash gave evidence that they thought that the police car presence in their quiet street had anything to do with them.
Other issues are raised as to the plaintiff's asserted lack of credit, but they have little to do with the facts of this case. The plaintiff's two prior experiences with police, one in 1979 and one in 2000, would not have given him cause to assume that a police car entering his street with lights and sirens was following him. While his failure to recall his 1979 PCA offence and his 2000 dispute with his wife are not to his credit, these failures are not related to the events in these proceedings. I am satisfied that the plaintiff's account of these events is generally accurate and consistent with the independent objective evidence. By contrast, I do not accept the evidence of Senior Constable Hicks unless it has been corroborated.
An additional submission was made that not only had Senior Constable Hicks given evidence which should be accepted, but that his duties as a constable needed to be taken into account when determining not only the defences, but also disputed issues of fact and the credit of the witnesses. My findings in this regard are next set out.

The duty of the constable

Mr Hutching's written submissions (at [202] - [212]) set out the duty of a constable to prevent and investigate crime, to enforce the criminal law and to act as a peace officer (New South Wales v Tyszyk [2008] NSWCA 107 at [106] - [111]). Additionally, the mission and function of police officers are set out in s 6 Police Act 1990 (NSW). The mission is "to establish a safer environment by reducing violence, crime and fear" and the functions include doing "anything necessary for, or incidental to, the exercise of its functions". The police services referred to in s 3 of that Act identify services for the prevention and detection of crime, protection of persons from injury or death and emergency services. Mr Hutchings submits that the duty of a constable "was appropriately at the forefront of SC Hicks' mind (at all relevant times)" (written submissions, paragraph [212]. Additionally, Senior Constable Hicks was entitled to enter the premises because he was not told it was private property, and asked to leave.
The transcript of the in-car video makes it clear that Senior Constable Hicks called out "you're under arrest" to the plaintiff while he was on what the plaintiff told him was "private property". I am satisfied that Senior Constable Hicks came on to what was obviously private property for the purpose of effecting an arrest, although I consider the relevance of this to be tangential at best.
The common law and statutory entitlements for police to enter private premises are set out in Clowser v Chaplin; Finnigan v Sandiford [1981] 1 WLR 837 (HL) at 842-843, cited in Hume v R (1999) 106 A Crim R 411 at [26]. In Hume v R, Kennedy and Ipp JJ referred to Dobie v Pinker [1983] WAR 48, where two police officers pursued a suspected driver's vehicle onto his residential property to require him to undergo a preliminary test. It was held in that case that police officers had an implied right of entry to private premises to effect an arrest or for other lawful purposes until the same was revoked by the occupier.
The plaintiff in these proceedings does not assert that Senior Constable Hicks was trespassing. However, that is not the issue. At the time that Senior Constable Hicks called out to the plaintiff that he was under arrest, the plaintiff had not failed to comply with the request to pull over under lights and sirens, as these had not been activated at a time when he could or should have done so.
Nor did Constable Hicks have any "duty of the constable" evidence that the plaintiff had consumed alcohol at all, beyond the fact that he had been seen exiting a golf club which held a liquor licence. The evidence relied upon by Senior Constable Hicks to found his belief for the arresting of the plaintiff and the bringing of charges, namely smelling alcohol on the plaintiff's breath and claims of an unsteady gait, related to the period when he was already on the plaintiff's premises, and not to his observations beforehand.
Accordingly, I do not accept Mr Hutchings' written submissions that the duty of a constable was appropriately at the forefront of Senior Constable Hicks' mind at all relevant times. It was conceded that there was nothing about the plaintiff's appearance or manner of driving to arouse any suspicion of wrongdoing. Senior Constable Hicks had been stopping people exiting the golf club for the previous three hours for the purpose of administering an alcotest, and that was the sole reason why he followed the plaintiff.
The provisions of ss 3 and 6 Police Act 1990 (NSW) did not warrant Senior Constable Hicks taking the course that he did, and Mr Hutchings' submissions to the contrary are rejected. Additionally, Mr Hutchings has not taken into account the plaintiff's submission that Senior Constable Hicks failed to comply with s 201 of LEPRA, in that he failed to advise the plaintiff of his reasons for arrest until well after Constable McKay had arrived.
The basis for the "duty of a constable" submission, and whether it is pleaded as a defence to one or all of the plaintiff's claims and/or in relation to credit, has not been precisely set out. Some of the issues set out in the written submissions are identified in relation to the defence to the claim for malicious prosecution. There is no statutory defence to any of the claims pleaded by the plaintiff of the kind attempted in paragraph 17 of the defence filed in these proceedings, or by reason of the matters raised in paragraphs [202] - [212] of Mr Hutching's submissions. Such a claim would be novel.
If the basis for those submissions is to reflect the absence of malice of Senior Constable Hicks (see paragraph 17 of the defence, the text of which is set out above) or some other element in one or more of the causes of action pleaded by the plaintiff, the basis upon which these statutory provisions are relevant should be identified with precision. That has not been done.

The claim for unlawful arrest

The power to arrest is set out at s 99 of LEPRA. Mr Hutchings submits that Senior Constable Hicks arrested the plaintiff for the purpose identified in s 99(3A), namely to ensure the appearance of the plaintiff before the court (written submissions, paragraph 217) and he discontinued the arrest on the earliest opportunity, namely once he established who the plaintiff was. Once the plaintiff had ceased to resist, Senior Constable Hicks informed him of the reason for the arrest which is sufficient to comply with s 201 of LEPRA.
These submissions do not take into account the length of time that the plaintiff was physically restrained without being told why (about ten minutes), or the principal complaint of the plaintiff as to the unlawfulness of the arrest, namely to identify the reason for the arrest until well after the plaintiff had been released. It is clear from the in-car video, which covers the period from the time Senior Constable Hicks told the plaintiff he was under arrest and put him in a bear hug, the plaintiff had no idea why he had been stopped on his own property by this police officer, and that he continued to be unaware of the reasons why until some time later.
It is common ground between the parties that Senior Constable Hicks put the plaintiff into what both Senior Constable Hicks (T 209) and Mr Ford called a "bear hug" and that he did so immediately (see the evidence of Mr Ford at Exhibit A). The plaintiff gave a similar description (T 20). Senior Constable Hicks conceded (T 209) that the arrest occurred at the point of the bear hug, which immediately followed the words "you're under arrest", as the in-car video shows. Senior Constable Hicks conceded that the first statement "you're under arrest" had been made before he got out of the vehicle. That arrest continued as the plaintiff tried to get free, and it was in those circumstances that Senior Constable Hicks tripped him to the ground where he contained him.
While there is no requirement for the defendant to intend to act unlawfully or to cause injury, in that the tort may be considered as akin to one of strict liability (Ruddock v Taylor (2005) 222 CLR 612 at [140]), Constable Hicks should have had a suspicion held on reasonable grounds at the time of arrest that the plaintiff was driving while intoxicated. Does this mean that his reasons for arresting the plaintiff changed and, if so, what was that change?
The sole basis upon which Senior Constable Hicks held that suspicion was that he had seen the plaintiff leave the premises at the local golf club at 6:30pm, this being premises which were licenced. While the mere fact that the plaintiff was driving may give rise to a proper basis to stop him and breath test him (s 13 Road Transport (Safety and Traffic Management) Act 1999 (NSW)), that is insufficient to warrant physical arrest and restraint unless the plaintiff is attempting to flee.
Additionally, the only intention Senior Constable Hicks had was to request the plaintiff to undergo a breath test, but the plaintiff was not running away; he was on private property which, if it was his, precluded the taking of the breath test. The problem was not that he had run away, as I am satisfied that he was already on his own property before Senior Constable Hicks arrived. The problem was that the plaintiff would not "come over" to Senior Constable Hicks, and leave the private property, so that a breath test could be conducted. Senior Constable Hicks said in chief: "Q. You have given evidence that when you were at 57 Bellevue Street, you informed Mr Nash that he was under arrest? A. Yes. Q. Why did you do that? What was the reason for your arresting of Mr Nash? A. I'd chased after him with the intention of submitting him to a random breath test. I'd ask him to come over towards me for the purpose of the breath test. Him leaving me, he was not allowing me any opportunity to explain myself to him what I wanted him to do. Him running away, is hindering me in trying to submit him to a breath test." (T 182)
Mr Quickenden submits that Senior Constable Hicks did not have that suspicion until after the arrest, and draws my attention to T 211-212 where an inconsistent description was given: "Q. Is that correct, senior constable? A. I wanted to breath test him and he was running away from me. Q. That's why you arrested him, wasn't it? A. I was arresting him for hindering me. Q. But when you put the bear hug on him, that was for the purpose of requiring him to undergo a breath test, wasn't it? A. I don't understand the question. Q. You see, at the time you put a bear hug on Mr Nash, you hadn't had the opportunity of making any assessment of his state of sobriety, had you? A. No. Q. I want to put to you a summation of your evidence of what took place after you put the bear hug on Mr Nash; do you understand that? A. Yes. Q. You say there was grappling? A. Yes. Q. Mr Nash was trying to get out of your hold? A. Yes. Q. Correct? A. Yes. Q. You say he was trying to move down the side of what turned out to be his residence? A. Yes. Q. You say that you couldn't stop him doing that, don't you? Initially, you couldn't stop him? A. The effort I was putting into him wasn't working. Q. You determined at a point to trip him so you could place him on the ground and, in effect, put your weight on him; isn't that correct? A. Yes. Q. That's what you did? A. Yes. Q. You tripped him over and you leaned on him? A. Yes. Q. That was effective? He was under your control? A. I was still struggling with him. Q. You wouldn't agree that you were all over him at that point? A. No, I was still struggling with him. Q. Do you remember saying this in the Local Court, page 45. If I can put to you that there were questions about what you did. This question was asked of you: "What was the closest proximity that you got to Mr Nash when you were having this struggle? How far away were you from him?" Do you recall that being asked? A. No, I don't recall. Q. Do you recall you answering "I was all over him"? Do you remember giving that answer? A. I don't recall giving that answer but I obviously gave that answer. Q. That was asked by the police prosecutor of you. Do you recall that? A. No."
Senior Constable Hicks was not entitled to arrest a person to force him to come out of his home so that he could legally carry out a breath test. What he was attempting to do was to lure the plaintiff off his property with the intention of requiring him to undergo a breath test there, as he conceded at T 213: "Q. When you said, "Just here, sir," did you want Mr Nash to come off the property onto the nature strip? A. I wanted him to come towards me. Q. That would have meant coming towards the nature strip, wouldn't it? A. Yes. Q. In other words, it would have meant him coming off that property that he was on, wouldn't it? A. Yes. Q. Because you were fully aware at that point that if that was Mr Nash's home, you couldn't breath test him, weren't you? A. Sorry, the question again, if? Q. You were fully aware when you said to Mr Nash, "Just come here, sir," that you couldn't breath test him if he was at his own home? A. I can't breath test him at his home address; yes, I'm aware of that. Q. You were aware of it when you said to him, "Just here, sir," weren't you? A. Yes. Q. It occurred to you, didn't it, that that could well be Mr Nash's home? A. Yes."
I am satisfied from the evidence of Mr Ford and the in-car video that Senior Constable Hicks called out "Just here, sir" to lure the plaintiff outside the gate in circumstances where he knew that this respectively attired middle aged gentleman was more than likely to be the occupant of the home, and to be proceeding to his own front door with the purpose of entering his own home. Senior Constable Hicks already knew that he could not breathe test the plaintiff at his home address.
I am further satisfied from the very short intervals between saying "Just here, sir" and "You're under arrest" that Senior Constable Hicks was giving the plaintiff little or no time to comply with his directions. As was described by Mr Ford, these events happened literally within seconds.
Senior Constable Hicks' evidence endeavoured to identify three separate parts to the arrest, namely the bear hug, followed by the struggle, followed by the tripping of the plaintiff. This is contrary to the evidence of Mrs Nash, whose evidence on this issue was not challenged (T 128). Mr Quickenden also submits (written submissions, paragraph 41) that it is contrary to common sense, in that a person of the plaintiff's age and build would have difficulty breaking the hold and standing or running away further. All the evidence points to Senior Constable Hicks keeping the plaintiff under restraint until he could decide what offence he could be charged with. The actual words identifying the charge under s 12 Road Transport (Safety and Traffic Management) Act 1999 (NSW) were not spoken until Senior Constable Hicks was in the process of filling out the necessary paper work. The charge of resisting arrest was not added until the next month, and I am satisfied that the plaintiff was not informed of any such charge at the time of his arrest.
Section 201(1) of LEPRA (replaced from November 2014 by Pt 15, Sch 2 of the Law Enforcement (Powers and Responsibilities) Amendment Act 2014 (NSW)) requires an officer using the power of arrest to give reasons as soon as is practicable: McCarthy v New South Wales [2015] NSWCA 153 at [68] - [79], noting (in bold) the statement by Viscount Simon in Christie v Leachinsky [1947] AC 573 at 587 - 8 that "If the citizen is not so informed, the policeman, apart from certain exceptions, is liable for false imprisonment". The question of when it is "reasonably practicable" after the power of arrest is exercised is a question of fact.
On the facts in this case, I am satisfied that Senior Constable Hicks' failure to advise the plaintiff of the reasons for arrest was because Senior Constable Hicks had not yet determined what those reasons were. He became "angry" (to use Mrs Nash's word) when he saw the plaintiff entering what was very likely to be his home, which meant that he could not be breath-tested. He gave way to that anger and grabbed the plaintiff in a bear hug.
The arrest then continued to be one of unnecessary force. Senior Constable Hicks' evidence was as follows: "Q. Senior Constable, you tripped over Mr Nash. Isn't that correct? A. Yes. Q. You were on top of his back. Isn't that correct? A. His ‑ he was on his ‑ I think he was on his left shoulder, left side, lying down, with his stomach face more towards the ground but I was on his right side and his back. Q. Are you saying, in answer to my question, "No, I was not on top of his back"? A. No. Q. You're not saying that? A. No. Q. You were on top of his back. Is that right? A. Yes. Q. You had your knees in his back, didn't you? A. I had my weight on him with my knees, yes. Q. The idea of that was to pin him to the ground, wasn't it? A. It was to prevent him from getting inside. Q. But by doing that, to prevent him from getting inside, you were pinning him to the ground? A. Yes." (T 217)
The arrest was continued despite corroboration from the plaintiff's wife that the plaintiff was at his own home (T 216-217) where Senior Constable Hicks knew he could not require a breath test (T 208).
I am also satisfied that, contrary to the defendant's submissions, the evidence demonstrates that the plaintiff did not fail to stop his car after Senior Constable Hicks activated lights and sirens (defendant's written submissions, paragraph 240).
Further, I am satisfied that the exigencies of the moment (Woodley v Boyd at [37]) played no part in these events. What Senior Constable Hicks was observing was an apparently respectable member of the community opening the front gate of what was likely to be his own home. Contrary to the submissions of the plaintiff, there was no "agony of the moment" requiring him to arrest the plaintiff for the purpose of administering a breath test.
The arrest power is one of last resort. This was made clear in the Attorney General's Second Reading Speech (Hansard, 17 September 2002), introducing LEPRA: "I turn now to powers relating to arrest. Part 8 of the bill substantially re-enacts arrest provisions of the Crimes Act 1900 and codifies the common law. The provisions of Pt 8 reflect that arrest is a measure that is to be exercised only when necessary. An arrest should only be used as a last resort as it is the strongest measure that may be taken to secure an accused person's attendance at court. Clause 99, for example, clarifies that a police officer should not make an arrest unless it achieves the specified purposes, such as preventing the continuance of the offence. Failure to comply with this clause would not, of itself, invalidate the charge. Clauses 107 and 108 make it clear that nothing in the part affects the power of a police officer to exercise the discretion to commence proceedings for an offence other than by arresting the person, for example, by way of caution or summons or another alternative to arrest. Arrest is a measure of last resort. The part clarifies that police have the power to discontinue arrest at any time."
In addition, I am satisfied that not only was the arrest unlawful, but that his detention following arrest was unlawful.
I am satisfied that there is nothing in ss 114 - 117 of LEPRA permitting the continued detaining of the plaintiff in the extremely forceful manner employed by Senior Constable Hicks.
The claim for wrongful arrest is made out.

The claim for assault and battery

An arrest may be unlawful without necessarily being violent. However, where the arrest is unlawful, the plaintiff is entitled to resist it. In Christie v Leachinsky [1947] AC 573 at 591, Viscount Simon explained that: "… it is the corollary of the right of every citizen to be thus free from arrest that he should be entitled to resist arrest unless that arrest is lawful"
Although the claims for assault and battery are brought separately, I am satisfied that the immediacy of Senior Constable Hicks putting the plaintiff into a bear hug was such that he literally had no time to "apprehend immediate and unlawful personal violence": Fagan v Metropolitan Commissioner of Police [1969] 1 QB 439 at 444. I am satisfied, however, that Senior Constable Hicks used unreasonable force to detain the plaintiff. First of all, he put him in a bear hug and secondly he tripped him to the ground and pinned him with his knees. He knew at the time that he did so that he could not administer a breath test to the plaintiff if he indeed resided in his home, as the plaintiff had been quick to tell him (see the reference to "This is private property" in the transcript of the in-car video).
Another reason for the plaintiff struggling was that Senior Constable Hicks did not tell him why he was being arrested.
The amount of force used by Senior Constable Hicks (which included wrestling the plaintiff to the ground and keeping him physically confined for around 10 minutes) is completely disproportionate to his concerns about the plaintiff driving under the influence.
Mr Quickenden did not seek to separate the claims for assault and battery but put them on the basis that the plaintiff was the victim of a sustained physical restraint of some violence. I am satisfied that the claim (insofar as there is a claim for battery) is made out.
This brings me to the plaintiff's claim for damages for malicious prosecution.

Malicious prosecution

There is no dispute that the criminal proceedings terminated in favour of the plaintiff, as both the charges for driving under the influence of alcohol and resisting arrear were dismissed. The issues in dispute are: 1. Whether the defendant was the "prosecutor" who initiated and/or maintained the proceedings; 2. Whether he initiated and/or maintained the proceedings without reasonable and probable cause (see A v New South Wales (2007) 230 CLR 500); and, 3. Malice.
Both parties agree that the standard of proof is to the Briginshaw standard (Briginshaw v Briginshaw (1938) 60 CLR 336): Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170. Counsel for the defendant asserts that any allegation of malicious prosecution is "a very serious allegation" (written submissions, paragraph 274) and that the burden of proof on the plaintiff is a heavy one and "a difficult burden to discharge" (written submissions, paragraph 277). While I note these submissions, I do not understand the defendant to assert that any heavier burden than that imposed by s 140 Evidence Act 1995 (NSW) or the Briginshaw test to apply.
I shall deal with each of these elements in turn.

Who was the prosecutor?

In Davis v Gell (1924) 35 CLR 275 Isaacs ACJ asked the question at 283, "who was the prosecutor", noting that it was a question of fact which depended upon the circumstances of the case. It is not in dispute that the defendant charged the plaintiff with the following two charges: 1. A breach of s 12 Road Transports (Safety and Traffic Management) Act 1999 (NSW); and, 2. Resist officer in the execution of duty pursuant to s 546C Crimes Act 1900 (NSW).
Did the defendant have control over the conduct of the hearing, including the gathering of the evidence?
The defendant was cross-examined at T 244-245: "Q. You were the only investigating officer? A. That's right. Q. You were the only witness for the prosecution in the proceedings? A. Yes. Q. You were responsible for charging Mr Nash? A. Yes. Q. You were responsible on the day of prosecution for the prosecution? A. Yes. Q. You were there during the whole of the prosecution? A. Yes. Q. Notwithstanding having exhibit H in your possession, you continued with the prosecution of drive under the influence, didn't you? A. Yes."
Additionally, although the defendant acknowledged it was not part of his duty to investigate breaches of the Liquor Act 2007 (NSW) or licencing laws (T 234), he was the author of the letter to the golf club requesting the supply of CCTV evidence implicating the plaintiff, a matter particularised as going to the malicious continuation of the proceedings. This is indicative of his control of the evidence for the case. There is however no evidence that he had influence over the conduct of the hearing or the maintaining of the charges, which the defendant submits is fatal (written submissions, paragraphs 285 to 287).
The identification of the appropriate defendant in the case of malicious prosecution is not always straight forward. In Landini v State of New South Wales & Ors [2008] NSWSC 1280, Hall J noted at [957]: "[957] In Johnston v Australia & New Zealand Banking Group Ltd [2006] NSWCA 218, Basten JA, with whom Giles and Santow JJA agreed, stated: 36. That a person who is not legally a party to a prosecution may nevertheless be sued is beyond doubt. In Davis v Gell (1924) 35 CLR 275 at 282, Isaacs ACJ stated: For the purposes of this form of action the law looks beyond theory and regards the person in fact instrumental in prosecuting the accused as the real prosecutor. It enables the person innocently accused to treat his virtual accuser as party to the criminal charge … . The substance and not the legal form must in all cases govern, and while, on the one hand, a person giving information to the police is not necessarily the prosecutor yet, on the other, the mere fact that the police conduct the prosecution does not exclude him from that position."
The New South Wales Court of Appeal pointed out in New South Wales v Landini [2010] NSWCA 157 at [59] as follows: "[59] The joint judgment in A v New South Wales pointed out that "[t]he identification of the appropriate defendant in a case of malicious prosecution is not always straightforward. 'To incur liability, the defendant must play an active role in the conduct of the proceedings, as by "instigating" or setting them in motion'" (at [34] citing John G Fleming, The Law of Torts, 9th ed (1998) LBC Information Services at p 676). Their Honours continued: [35] In Martin v Watson [1996] AC 74), a woman made an allegation that her neighbour had indecently exposed himself to her whilst standing on a ladder in his garden. She went to a police station and complained. A detective constable laid an information against the neighbour. At a hearing before the Magistrates' Court, the Crown Prosecution Service offered no evidence, and the charge was dismissed. The House of Lords held that, since the facts relating to the alleged offence were solely within the complainant's knowledge, and that as a practical matter the police officer who laid the information could not have exercised any independent discretion, the complainant could be sued for malicious prosecution, and upheld an award of damages against her. The complainant had "in substance procured the prosecution" ([1996] AC 74 at 89). The police officer to whom the complaint was made had no way of testing the truthfulness of the accusation ([1996] AC 74 at 89). Lord Keith of Kinkel quoted with approval a statement by McMullin J in the Court of Appeal of New Zealand (Commercial Union Assurance Co of New Zealand Ltd v Lamont[1989] 3 NZLR 187 at 207-208), that a person may be regarded as the prosecutor if he puts the police in possession of information which virtually compels an officer to bring a charge."
The point made in the plaintiff's submissions at paragraphs 100-101 that the defendant in substance procured the prosecution and further maintained it, in that he sought additional evidence in the form of the CCTV footage from the golf club. That evidence, which was exonerating of the plaintiff, was not produced at the criminal proceedings, but that is not fatal in relation to the issues of control of the litigation as identified by the New South Wales Court of Appeal in Landini, or by the Queensland Court of Appeal in Cosentino v Kent [2009] QCA 355 at [43] (where the action was brought against the complainants rather than the police officers or prosecuting body).
The principles first enunciated by the House of Lords in Martin v Watson [1996] AC 74, which is referred to by Mr Quickenden in his submissions at paragraph 100 and by both Landini and Cosentino, are now accepted principles. The submission by Mr Hutchings that the proceedings should have been commenced against the prosecutor, or that evidence should have been led as to who was the prosecutor and who was responsible for the prosecution being maintained beyond a point at which they ought to have been withdrawn, needs to be seen in the context of the plaintiff's allegation that the prosecuting authority (who Mr Quickenden asserts is Senior Constable Hicks) provided facts which were untrue (such as the indicia of alcohol consumption) and the circumstances in which the Senior Constable Hicks, and not the prosecutor, obtained the CCTV footage from the golf club. That means that the person with the relevant beliefs and malice is Senior Constable Hicks, not the prosecutor. Whether it was the prosecutor's decision not to use the footage at the criminal proceedings, or that of Senior Constable Hicks, is irrelevant.
I am satisfied that Senior Constable Hicks had the requisite control both of the laying of the charges and the maintaining of the prosecution of the plaintiff. He agreed he was responsible on the day for the prosecution, and that he continued the prosecution notwithstanding having Exhibit H in his possession.

Absence of reasonable and probable cause

The relevant test is set out by A v New South Wales at [76]-[77] per Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ as follows: "[76] The absence of reasonable and probable cause will not in every case be shown by demonstrating that the prosecutor had no positive belief that the accused person was, or was probably, guilty. In particular, references to belief in guilt, or more properly, the absence of belief in guilt, will very likely prove distracting in any case where the prosecutor may not be supposed to know where the truth lies. A case where the prosecutor acts on the statements of others is one example of such a case. [77] There are three critical points. First, it is the negative proposition that must be established: more probably than not the defendant prosecutor acted without reasonable and probable cause. Secondly, that proposition may be established in either or both of two ways: the defendant prosecutor did not "honestly believe" the case that was instituted or maintained, or the defendant prosecutor had no sufficient basis for such an honest belief. The third point is that the critical question presented by this element of the tort is: what does the plaintiff demonstrate about what the defendant prosecutor made of the material that he or she had available when deciding whether to prosecute or maintain the prosecution? That is, when the plaintiff asserts that the defendant acted without reasonable and probable cause, what exactly is the content of that assertion?"
The Court further stated at [80]-[81]: "[80] In cases where the prosecutor acted on material provided by third parties, a relevant question in an action for malicious prosecution will be whether the prosecutor is shown not to have honestly concluded that the material was such as to warrant setting the processes of the criminal law in motion. (There may also be a real and lively question about the objective sufficiency of the material, but that may be left to one side for the moment.) In deciding the subjective question, the various checks and balances for which the processes of the criminal law provide are important. In particular, if the prosecutor was shown to be of the view that the charge would likely fail at committal, or would likely be abandoned by the Director of Public Prosecutions, if or when that officer became involved in the prosecution, absence of reasonable and probable cause would be demonstrated. But unless the prosecutor is shown either not to have honestly formed the view that there was a proper case for prosecution, or to have formed that view on an insufficient basis, the element of absence of reasonable and probable cause is not established. [81] The expression "proper case for prosecution" is not susceptible of exhaustive definition without obscuring the importance of the burden of proving the absence of reasonable and probable cause, and the variety of factual and forensic circumstances in which the questions may arise. For the reasons given earlier, it will require examination of the prosecutor's state of persuasion about the material considered by the prosecutor. That should not be done by treating the five conditions stated by Jordan CJ in Mitchell v John Heine as a complete and exhaustive catalogue of what will constitute reasonable and probable cause. First, to focus upon what is reasonable and probable cause distracts attention from what it is that the plaintiff must establish - the absence of reasonable and probable cause. And secondly, because those conditions are framed in terms of belief about probable guilt, they are conditions that, for the reasons already given, do not sufficiently encompass cases where the prosecutor acts upon information provided by others."
An honest but mistaken belief in the guilt of the plaintiff will not be sufficient: Skrijel v Mengler [2003] VSC 270 at [327].
Mr Hutchings submits (written submissions, paragraph 294) that the plaintiff must establish the negative proposition, namely that the defendant "did not believe there was a proper case for prosecution", and relies upon the fact that the defendant was not cross-examined on this issue. Additionally, the plaintiff did not take what Mr Hutchings calls the "customary step of tendering the police brief" (Hamod v New South Wales [2011] NSWCA 375 at [33]; State of NSW v Hathaway [2010] NSWCA 184 at [180]) and that these omissions are "fatal" (written submissions, paragraph 298) to the plaintiff's malicious prosecution claim, because the Court cannot know what the prosecutor had before him/her as evidence, what he/she made of it, and what he/she determined in reliance upon that material. The defendant submits it was the plaintiff's obligation to tender the brief, cross-examine the defendant on its content, to identify and cross-examine any other person "said by the plaintiff to be the prosecutor" (in other words, the actual prosecutor) and to make submissions concerning the adequacy of the material. Not only was the defendant not asked what he could have done to further investigate the matter, he was not asked about the content of the brief, and there was no attempt made to demonstrate what was contained in that brief (written submissions, paragraph 299-303).
For there to be reasonable and probable cause, it is necessary that: 1. The person bringing and maintaining the charge must believe that the accused is probably guilty of the offence; 2. This belief must be founded upon information in the possession of the prosecution pointing to such guilt, and not upon mere imagination or surmise; 3. The information, consisting of things observed by the person bringing or maintaining the prosecution, should consist of observations of the prosecution himself, or of things told to him by others, which he must believe to be true; 4. This belief must be based upon reasonable grounds; and, 5. The information possessed by the prosecutor and reasonably believed by him to be true must be such as would justify a man of ordinary prudence and caution in believing that the accused is probably guilty.
What the plaintiff must do is to establish that one or more of these conditions do not exist: Mitchell v John Heine & Son Ltd (1938) 38 SR (NSW) 466; Nye v New South Wales (2004) ATR 81-725. It is not necessary, however, to establish every one of them. Mr Quickenden submits that Senior Constable Hicks never formed an honest belief that the plaintiff was driving under the influence of alcohol, or that he was resisting arrest, that his evidence as to the indicia of the plaintiff's alcohol level was contrived, and that the circumstances of his obtaining of the CCTV footage from the golf club are indicative of his knowledge that there was no or no sufficient evidence for the maintaining of the prosecution.
The plaintiff has listed the following evidence as being evidence of the defendant's absence of reasonable and probable belief: 1. Senior Constable Hicks's evidence was non-specific on the point (see Exhibit B as there was no slurring or mispronouncing of words). Senior Constable Hicks conceded the plaintiff did not appear under the influence of alcohol when in the front yard as shown by Exhibit B. 2. Mrs Nash's evidence about the plaintiff's state of sobriety. 3. The absence of evidence of Senior Constable McKay about the plaintiff's state of insobriety. Senior Constable McKay's evidence supports the plaintiff and his wife's evidence. 4. The plaintiff's evidence about his sobriety. 5. Exhibit H (CCTV of the Golf Club). 6. Senior Constable Hicks knew he had no objective test of the plaintiff's sobriety (no breath test, no breath analysis and no sobriety test (T 208 line 42)). 7. Senior Constable Hicks did not have sufficient opportunity to assess the plaintiff's driving, for example weaving or speeding. 8. Senior Constable Hicks knew he had no corroboration of his indicia of alcohol from Mrs Nash, or most importantly, Senior Constable McKay. 9. Senior Constable Hicks acknowledges his own inconsistent observations about the plaintiff's state of sobriety (back yard and front yard (T 242 line 22) and sobered up after talking to his brother (T 243 line 34)). This was necessary to get around Exhibit B and no corroboration from Senior Constable McKay. 10. Senior Constable Hicks acknowledges the plaintiff was not unsteady on his feet until after the struggle (T 223-224). 11. Senior Constable Hicks was shocked (T 222 line 25) at the home and upset (T 222 line 38). 12. Senior Constable Hicks knew the plaintiff was challenging his behaviour (T 227 line 43). 13. Senior Constable Hicks did not believe his evidence of the observations at the scene was satisfactory because he embarked on an investigation at the Golf Club (T 234 line 40) (Exhibit H). After obtaining the flash drive, which is now a DVD, this information did not support the plaintiff was under the influence. Senior Constable Hicks attempts to avoid this by saying the Golf Club deliberately withheld information (T 238 line 12). Senior Constable Hicks did not follow up this alleged fraud on the part of the Golf Club. 14. Senior Constable Hicks acknowledged the DVD (Exhibit H) did not support the charge as it was not used (T 39 line 10). Further, it did not evidence the plaintiff was unsteady on his feet (T 240 line 20). 15. Senior Constable Hicks recognised second part of Exhibit B in front did not show the plaintiff was unsteady on his feet (T 42 line 22). 16. Senior Constable Hicks's version that the plaintiff talked to his brother and sobered up is fanciful (T 243 line 34).
The defendant submits that the plaintiff's failure to stop his car after the lights and sirens were activated was sufficient for the defendant to form the view that the plaintiff was seeking to evade a breath test. My findings of fact are as set out above and I do not accept the version of events given by Mr Hutchings at paragraph 308 of his submissions.
As to the resisting arrest charge, the defendant submits that the plaintiff could have come to the kerb to speak to Senior Constable Hicks after Senior Constable Hicks called out that he was under arrest, or stopped in his front yard rather than continued down the side of his house. He could also have asked Senior Constable Hicks to leave, in which case Senior Constable Hicks would have been a trespasser when he came onto the plaintiff's property. The defendant poses the question, "what controversy was there that the plaintiff had resisted the arrest? The issue appeared to be an accepted fact in the proceedings" (written submissions, paragraph 316-317), which I take to be an assertion that there was reasonable and probable cause by reason of this asserted "accepted fact".

Mr Hutching's "trespass" argument

Although the plaintiff does not bring a claim of trespass, Mr Hutchings submits that the plaintiff could have asked Senior Constable Hicks to leave the premises, in which case he would have been a trespasser, and that this would be an important factor in the plaintiff's favour, the inference being that failure to raise the trespass issue undermines the plaintiff's claim.
There have been several cases in the United Kingdom where police officers pursued a person onto his own property for the purpose of making an arrest. Some have arisen from the arrest of persons suspected of driving under the influence of alcohol. In Morris v Beadmore [1981] AC 446 at 465, Scarman LJ stated that the legislation permitting the arrest of drunken drivers must be read as taking into account the overriding intention, "even in its desire to stamp out drunken driving, to pay to the fundamental right of privacy in one's own home, which has for centuries been recognised by the common law."
In Australia, the common law is largely replaced by legislation, and the options open to the person pursued onto his property by the police depend on the legislation as well as the facts of the case (see, for example, Louis v State of Tasmania [2001] TASSC 154 at [29] - [30]).
In Drage v Western Australia [2015] WADC 20 Staude DCJ summarised the relevant provisions and cases in Western Australia as follows: "[114] The legislative provisions contained in the Criminal Procedure Act relating to entry of a place may be taken to have been enacted in the light of the common law which was summarised by Lord Scarman in Clowser v Chaplin; Finnigan v Sandiford [1981] 1 WLR 837 (HL), 842-843: "It is that, as a general rule, the courts will not construe an enactment conferring a power of arrest without warrant as impliedly authorising a power of entry into private premises for the purpose of effecting the arrest. If it be parliament's intention to confer a power of entry, the draftsman must ensure the power is expressly conferred. Parliament is not to be presumed, in the absence of express words, so to intend, unless the implication is irresistible, which would be rare indeed." [115] This dictum was cited by Wallwork J (Kennedy & Ipp JJ) in Hume & Anor v R [1999] WASCA 64 [26], by reference to Dobie v Pinker [1983] WAR 48. Dobie v Pinker was concerned with the operation of s 66 of the Road Traffic Act in circumstances where two police officers pursued the respondent's vehicle to the point where the respondent brought it to a stop on his residential property. It was held that the police officers were entitled by s 66 to enter upon private property in order to require a suspected driver of a motor vehicle to undergo a preliminary test. On the evidence the respondent did not expressly or impliedly revoke the police officers' implied authority to be upon his property. It was held for the purposes of s 66 that the police officers had an implied right of entry to private premises to effect an arrest or for other lawful purposes until the same was revoked by the occupier (Wallace & Kennedy JJ)."
In Drage v Western Australia, the plaintiff submitted that any implied licence for the police to enter his property for the purposes of the Road Traffic Act 1974 (WA) was revoked, because he told them they were trespassers and to leave. The plaintiff relied upon the findings of fact and law by the magistrate (who referred to Hume v R). Staude DCJ rejected that submission, noting: "[119] The power of a police officer to enter a place is now provided by s 132. It is no longer to be found in an implied licence, revocable at the occupier's will. Where, for the purposes of exercising a power of arrest pursuant to s 128, a police officer enters a place pursuant to s 132(2), s 31 applies to require the officer to identify himself or herself in accordance with s 11 to a person who appears to have the control or management of the place and to inform that person of the purpose of the entry unless to do so would, amongst other things, jeopardise the purpose of the entry, in which case the police officer must as soon as practicable after entry, identify himself or herself to the occupier and, relevantly, inform the occupier of the reason, and the statutory authority, for the entry."
Whether or not the plaintiff had complained of trespassing, and/or whether or not the police officer knew he was trespassing, this issue of trespassing is of no relevance to the question of absence of reasonable and probable cause, or indeed any other issue in these proceedings.

Absence of honest belief

I am satisfied that Senior Constable Hicks did not form an honest belief that the plaintiff was driving under the influence of alcohol. He pursued the plaintiff for the purpose of administering a random breath test and became angry when he saw the plaintiff enter residential premises which were more likely than not to be his own home. Instead of accepting that he was no longer in a position to administer an alcotest, Senior Constable Hicks first attempted to persuade the plaintiff to come out from his home by saying "Just here, sir" and then entered the plaintiff's premises and took the plaintiff into a bear hug for the purpose of arresting him.
Further, when it became clear that the plaintiff was indeed on his own home property, Senior Constable Hicks proceeded to charge him. He added a further charge of resisting arrest in circumstances where I am comfortably persuaded from all of the evidence set out above that he was aware of the weakness of the charge of driving under the influence.

Failure to tender the police brief

Mr Hutchings takes the point (written submissions, paragraph 297) that the plaintiff did not take what he calls "the customary step" of tendering the police brief and that the plaintiff has failed to prove absence of reasonable and probable cause in respect of either charge. It is submitted that this submission is "fatal to the plaintiff's malicious prosecution claim" (written submissions, paragraph 298). As I have set out elsewhere in this judgment, Senior Constable Hicks was in fact the person who instigated or set in motion the prosecution in the manner explained by the New South Wales Court of Appeal in New South Wales v Landini at [59] and Cosentino v Kent at [43], so I shall not deal with this issue further.

Conclusions concerning absence of reasonable and probable cause

I am comfortably satisfied that at all relevant stages from the moment that Senior Constable Hicks called out to the plaintiff "You're under arrest" he knew he had no reasonable or probable cause to arrest the plaintiff for any offence, let alone a driving offence. I am also comfortably satisfied that when the additional charge of resisting arrest was preferred against the plaintiff, Senior Constable Hicks, who was aware of his obligations as a police officer and knew that the circumstances in which he attacked the plaintiff in the manner that he did constituted an excessive use of force, did so in circumstances where he had no reasonable grounds to suspect the plaintiff had committed an offence for which he could be convicted.
As I note in more detail in the section of this judgment in relation to malice, I consider it to be a pertinent observation that Mrs Nash described Senior Constable Hicks as being "angry". I am comfortably satisfied that Senior Constable Hicks allowed his anger to override his better judgment and that he arrested the plaintiff in circumstances where, with the benefit of material reflection, he should not have done so. More importantly, he persisted with the laying of a further charge, and when he sought further evidence from the golf club in an endeavour to prove that the plaintiff had consumed an excessive amount of alcohol, this was because he knew that the claim against the plaintiff was lacking in evidence. The video material from the golf club, which was exculpatory of the plaintiff, was withheld from him at the criminal proceedings, but this is irrelevant, in that this may well not have been the decision of Senior Constable Hicks. The relevance of the video material provided by the golf club is that Senior Constable Hicks (who set the prosecution in motion) knew of it, and yet persisted with the continuing of the prosecution.
I am satisfied that the plaintiff has established absence of reasonable and probable cause.

Malice

Proof of malice will be established if the court can find that the dominant purpose of the prosecution was other than the proper invocation of the criminal law (State of New South Wales v Abed [2014] NSWCA 419; New South Wales v Zreika [2011] NSWCA 340).
"Malice" is a broadly based concept. It can include, for example, revenge, but it is not necessary to identify precisely what the malicious motive was. Mr Quickenden drew my attention to the following passage from Trobridge v Hardy (1955) 94 CLR 147 at 163-164 per Kitto J: "…That is a method which follows the route - I see no difficulty in calling it the indirect route - of proving that the defendant's conduct is not to be explained by the existence of a right motive. Evidence which tells against the probability that a right motive was the sole or predominant cause of the conduct goes to provide a foundation on which the jury may reason, through the presumption that there must be some explanation of what the defendant did, to the conclusion that he must have been actuated by an inadmissible motive of some kind or other. An example may be found in the case of evidence which shows that the defendant in an action of malicious prosecution had no reasonable or probable cause. That is a question for the judge, though in order to answer it he must accept any findings of the jury on relevant questions of disputed fact. The jury's findings on such questions may have importance, not only for the judge on the question he has to decide, but for themselves on the question of malice which it is for them to decide. They may find that facts were known to the prosecutor such that a reasonable man who knew them would not believe in the guilt of the accused. That may seem to them to make it improbable that the prosecutor in fact believed in the guilt of the accused, although, as they should recognize, there is always the possibility that a belief which appears unreasonable may nevertheless be honestly held, either because the person concerned pursues an unreasonable train of thought or because he is forgetful of or inattentive to factors in the situation, the absence of which would make his belief reasonable. If they think it more probable than not that the prosecutor lacked a belief in the guilt of the accused, they are justified in taking the next step of concluding that the prosecution was not instituted from a genuine desire to serve the ends of justice and is not to be satisfactorily explained save on the supposition that the prosecutor was actuated by an indirect or improper motive. If so, they may legitimately make a finding of malice, even though they may not feel able to say precisely what the malicious motive was. Thus the issue is found, not by the direct persuasion of the primary facts proved, but by the indirect persuasion of the presumption that there must be some rational explanation to account for the acts complained of plus the proved unlikelihood of the defendant's having acted from a proper motive."
The defendant submits that the plaintiff had not established that either Senior Constable Hicks (who set the prosecution in motion) or the prosecutor did not believe in the charges (written submissions, paragraph 330), let alone that either of them was mistaken in any belief, or had an indirect or improper purpose.
The defendant's written submissions on this issue are very general. Mr Hutchings stated that on the pleaded case and the evidence led "malice cannot be established" (written submissions, paragraph 319) because the plaintiff had failed to identify the dominant purpose (written submissions, paragraphs 320-324). There was "simply no basis in the evidence" to impute any such motive to Senior Constable Hicks (written submissions, paragraph 326) as the plaintiff could not even demonstrate that Senior Constable Hicks was "mistaken in his belief, let alone an indirect or improper purpose [sic]". It is submitted that the plaintiff has not established that Senior Constable Hicks "did not believe" in the charges he preferred and that the claim of malicious prosecution accordingly "must fail".
The plaintiff submits that the evidence of motivation other than the invocation of criminal law came from the fact that Senior Constable Hicks was angry, in that he was having what Mr Quickenden called "a bad day at the office" after spending three hours stopping vehicles to perform alcotest with negative results. The extent of physical force he used was out of all proportion and an indication that he had lost all perspective. There is some support for this in Exhibit B and the incredulous tone of Senior Constable Hicks when he says "You must be kidding me" when he was told that the plaintiff is indeed on his own property, and that Senior Constable Hicks is on "private property". The fact that the plaintiff was on his own property is, Mr Quickenden submits, something which Australian law regards as significant (Kuru v New South Wales (2008) 236 CLR 1; New South Wales v Ibbett (2006) 229 CLR 638).
While the plaintiff does not have to prove a specific form of malice, or actual motivation, I am satisfied that there is in fact evidence that Senior Constable Hicks had a motive other than the performance of his duties as a constable.
All of the evidence points to Senior Constable Hicks having an ancillary dominant improper motive as early as the time that he charged the plaintiff with the first of the two offences. I am satisfied that he continued to display the same improper motive at the time that he laid the second charge, at the time that he wrote the letter to the golf club and at the time that these proceedings were listed for hearing in the Local Court.

The plaintiff's failure to file a Reply particularising malice

In the defendant's written submissions, the defendant points out (paragraph 7) that the plaintiff did not file a Reply particularising malice. However, Mr Hutchings did not object at any time to the leading of evidence as to malice, and his submissions in relation to malice do not refer to the failure to file a Reply as being a fatal defect. Proceedings in country registries are conducted with a degree of informality, including informalities in pleadings, as a result of the absence of case management other than by timetables filed in directions hearings before Registrars.
Taking those practices into account, and having regard to s 63 Civil Procedure Act 2005 (NSW), I am of the view that the failure of the plaintiff to file a Reply, in circumstances where there is no objection taken to the leading of evidence as to malice, should not be countered against the plaintiff.

Conclusions concerning malice

Taking all of the above matters into account, I am comfortably satisfied that the plaintiff has established malice. The plaintiff has thus established each of the five elements necessary for the tort of malicious prosecution.
The plaintiff has been successful in all the claims he has brought. This brings me to the issue of damages.

Damages

There were problems in relation to the parties' submissions as to damages as follows: 1. The defendant's written submissions for the proposed (but vacated) hearing of 15 December 2014 did not address damages at all. 2. The plaintiff's submissions in reply were therefore brief, and unnecessarily referred to non-economic loss under the Civil Liability Act 2002 (NSW), although s 3B specifically excludes intentional torts. Mr Quickenden's submissions generally noted that damages were "at large", but the claims for aggravated and exemplary damages were rolled up in one set of "aggravating factors". 3. There was uncertainty as to what claims for special damages, out of pocket expenses and legal costs of the prosecution were to be pursued. 4. The defendant was taken by surprise by a claim for exemplary damages on the basis of the conduct at the trial. 5. Neither party addressed on the question of interest, and the plaintiff did not deal with potential overlap between the heads of damage claimed for the respective causes of action. 6. Neither party provided a Schedule of Damages. This is a common problem in country registries, where case management Notices of the kind supplied in the Sydney registry are not used.
The plaintiff has now provided a schedule as to the range of damages in relation to the unlawful arrest, battery (assault) and malicious prosecution claims as follows: Unlawful arrest Compensatory damages $100,000 Range $80,000 to $120,000 Aggravated damages $40,000 Range $30,000 to $50,000 Exemplary damages $50,000 Range $40,000 to $60,000 Battery (assault) Compensatory damages $15,000 Range $10,000 to $20,000 Aggravated damages $10,000 Range $5,000 to $15,000 Exemplary damages $10,000 Range $5,000 to $15,000 Malicious prosection Compensatory damages $75,000 Range $65,000 to $85,000 Aggravated damages $35,000 Range $30,000 to $40,000 Exemplary damages $35,000 Range $30,000 to $40,000 Total $370,000 + special damages of $558.80 + $4,400 (see Exhibit L)

General damages

The claim for general damages in relation to the unlawful arrest and the assault are set out in paragraphs 9 to 11 of the plaintiff's further submissions on damages. These are identified as follows: 1. The violent nature of the arrest. Senior Constable Hicks took hold of the plaintiff in a bear hug (T 159 line 27). Senior Constable Hicks used his training to unbalance the plaintiff, trip the plaintiff and put the plaintiff on the ground. Senior Constable Hicks pushed his knee into the plaintiff (T 172 line 15 and T 217 line 35); 2. Shock (T 21 line 37); 3. Humiliation (T 23 line 17); 4. Embarrassment (T 25 line 26); 5. Pain including feeling his shoulder was dislocated (T 21 line 40); 6. Off work for 10 days; 7. Physiotherapy (T 34 line 45); 8. There is a summary of the medial evidence in the earlier submissions. This was more than a transient injury. The plaintiff's left shoulder, bruising and premature hip replacement caused pain, discomfort and inconvenience to the plaintiff; and 9. The photos of the plaintiff in exhibit D (T 39 line 39) indicate the injuries were significant.
I have set out below the quantum of general damages for each claim, and considered the claims for aggravated and exemplary damages for each claim separately.

Damages for assault and battery

The plaintiff sought medical assistance following these events. Dr Mahaliyana's notes confirm multiple bruises and abrasions on his upper limbs, a swelling in his left knee and shoulder pain. He still had a slight limp on 7 December 2011. He was referred for physiotherapy and prescribed anti-inflammatory medication. He was still suffering pain when seen by Dr Scullin on 23 June and 29 September 2012, although this was complicated by the unrelated condition which led to his right hip replacement.
Additionally, he suffered humiliation and mild Adjustment Disorder with Anxious Mood was diagnosed on 9 September 2013. The ongoing criminal prosecution was, however, the principal cause.
Taking into account the range of damages generally awarded for such claims, I accept that the plaintiff's claim for $15,000 general damages and $10,000 aggravated damages (discussed in more detail below) is a reasonable amount for the sustained and serious nature of the assault.

Damages for wrongful arrest

As Mr Hutchings points out in his written submissions, this claim overlaps with the assault claim.
Damages for wrongful arrest are generally higher than damages for use of force during that assault, because of the nature of the claim. The circumstances in which a person may be wrongfully deprived of their liberty and reputation by a police officer are regarded as particularly serious. The arrest power is one of last resort and to be used sparingly.
However, the nature of the offence, and the circumstances of the arrest put the plaintiff's claim at the very bottom of the scale. The plaintiff was not kept in custody. I accept Mr Hutchings' submissions that the amounts claimed by the plaintiff are outside the range.
In Zaravinos v New South Wales [2004] NSWCA 320 an award of $25,000 was made, which included aggravated and exemplary damages. That claim related to heavy-handed behaviour and included detention of the plaintiff for several hours. The plaintiff's arrest involved ten minutes of being under restraint and occurred at his own home. He was not taken to the police station, or handcuffed, or detained for long periods, or questioned in a record of interview.
Taking into account the factual situation of the arrest, as well as the medical evidence relating to the plaintiff's feelings of humiliation and embarrassment, I propose to award the same sums for the wrongful arrest as for the assault, namely $15,000 general damages and $10,000 aggravated damages.

Damages for malicious prosecution

The principles concerning the award of damages for claims for malicious prosecution are set out in New South Wales v Riley (2003) 57 NSWLR 496 at [127], Houda v State of New South Wales [2005] NSWSC 1053, New South Wales v Ibbett (2005) 65 NSWLR 168 at [11]-[12], [21], [123]-[124] and [218] and Coyle v State of New South Wales [2006] NSWCA 95.
In New South Wales v Riley at [131] Hodgson JA noted that it was "extremely difficult to quantify damages for hurt feelings" but that where the hurt to feelings was caused by wrongdoing going beyond what his Honour called "ordinary human fallibility", it would be a mistake for the court to under-compensate the plaintiff. How should the court approach the question of the range of damages for a plaintiff? Should separate sums be awarded for each of the causes of action, and what allowance should be made for overlap? What regard should be had to other awards made for damages for claims of a similar kind? Neither party has addressed this issue.
As to the general range of damages sought by the plaintiff, the defendant's written submissions on damages (at paragraph 10) merely state that: "The authorities make it plain that modest sums are awarded (and not the large sums sought by the plaintiff)."
The principal source of the plaintiff's humiliation and embarrassment was the fact that the prosecution continued. It was seven months before the charges were heard and determined in his favour. Those charges were laid and maintained without any evidence to support them.
Taking into account the facts as I have found them, I consider an appropriate award for general damages would be $50,000. For reasons set out more fully below, I also propose to award aggravated compensatory damages. The amount that I propose to award, having regard to the facts summarised below, is $20,000.

Aggravated damages

I have awarded aggravated damages in relation to each of the plaintiff's claims for damages. These are my reasons for doing so.
General damages are awarded for hurt to feelings caused by wrongdoing that goes beyond "ordinary human fallibility" (New South Wales v Riley at [131]). After an award of general damages has been formulated, aggravated damages may be assessed (see New South Wales v Radford (2010) 79 NSWLR 327), but the award of aggravated damages "must only be for the difference justified by this approach, that is, an award of so much as is necessary to bring the damages up to the upper end of the available range" (New South Wales v Riley at [133]).
Aggravated damages are "in addition to damages" (McDonald v Coles Myer Ltd (t/as K-Mart Chatswood) (1995) Aust Torts Reports 81-361 per Powell JA) for which general damages are awarded, in that the manner in which the conduct is effected may lead to an award of aggravated compensatory damages, as may the subsequent conduct of the defendant, if it tends to show that the defendant is persevering in the charge. This may also include the conduct of the proceedings.
The conduct relied upon by the plaintiff in the claim for aggravated damages as to the unlawful arrest and assault claims is as follows: 1. The unlawful arrest took place at the plaintiff's home; 2. The unlawful arrest took place in front of members of the plaintiff's family (T 142 line 39) (wife, mother and daughter); 3. The unlawful arrest took place in front of at least one neighbour (Mr Ford); 4. The plaintiff's neighbours can be assumed to have been aware of the siren and position of the fully marked police vehicle partly on the plaintiff's property; 5. On 18 May 2012 the plaintiff was charged with resisting arrest arising out of the same incident (T 36 line 24); 6. The arrest did not have to be violent; 7. Senior Constable Hicks was a bigger, fitter and younger man than the plaintiff. Exhibit B evidences Senior Constable Hicks being an imposing figure of authority in the incident at the plaintiff's home. See exhibit B, particularly at the front of the premises, where Senior Constable Hicks' manner is inappropriate and authoritative; 8. The plaintiff was fingerprinted at his home in the front yard; 9. Concerned about his reputation (T 34 line 1); 10. The assault/unlawful arrest did not stop but continued at the point where Mrs Nash informed Senior Constable Hicks the plaintiff was her husband and he was at his home (T 216 line 45); 11. Senior Constable Hicks and the defendant attempted to take the moral high ground during the hearing and assert the plaintiff: 1. Tried to evade Senior Constable Hicks; 2. Had a reputation for being intoxicated at the Golf Club (T 45 line 30); 3. Had been charged with a PCA offence; 4. Had been charged with an apprehend violence offence; 5. Tendered his criminal history; 6. It was not put to the plaintiff that he tried to evade Senior Constable Hicks. No evidence was called to establish the plaintiff had a reputation for being intoxicated at the Golf Club. Although the PCA offence and apprehended violence offence may have been relevant on credit issues the cross examination went beyond that relevance.
The circumstances of the plaintiff's arrest alarmed not only the plaintiff's wife but Mr Ford, who was shocked by what he saw. It was high-handed and contumelious conduct by Senior Constable Hicks, and his continued unnecessary restraint of the plaintiff is relevant both to the claims for assault and for wrongful arrest.
The conduct relied upon by the plaintiff as to the claim for aggravated compensatory damages in relation to the malicious prosecution claim is as follows: 1. Senior Constable Hicks was the sole person behind the prosecution (T 244-245); 2. The prosecution continued from 13 October 2011 until 18 May 2012 (i.e. a period of about 7 months); 3. The charge of resisting arrest was added to the prosecution later on the 18 May 2012. This was after Senior Constable Hicks ascertained the plaintiff was pleading not guilty; 4. Senior Constable Hick's evidence that the plaintiff's disposition improved after talking to his brother (a solicitor) is illogical and incredible (T 242-243); 5. As set out in the plaintiff's undated earlier written submissions in paragraph 65 where Senior Constable Hicks misrepresented his intentions to the Golf Club (see exhibit G) and evidence (T 234 line 41 and T 236-237); 6. The plaintiff gave evidence of a friend of his (Matt Jones) saying to the plaintiff that he had heard the plaintiff had lost his licence and would lose his job as a result of the incident (T 46 line 5).
Senior Constable Hicks' conduct in both bringing and maintaining the charges went well beyond what Hodgson J called "ordinary human fallibility". The conduct set out by Mr Quickenden as set out above is evidence of Senior Constable Hicks acting in a high-handed and contumelious fashion, in circumstances where he not only knew that the evidence consisted of his claim that the plaintiff appeared drunk, but that this evidence was not supported by CCTV which he withheld from the plaintiff's legal representatives at the criminal proceedings. This is a clear case where aggravated damages should be awarded.

Exemplary damages

The relevant principles for exemplary damages are helpfully set out by Hodgson JA in New South Wales v Riley at [136]-[138] as follows: "[136] Mr Maconachie submitted that, in awarding exemplary damages, the primary judge acted contrary to the principle that exemplary damages are an exceptional remedy which are rarely awarded: Gray v Motor Accidents Commission (1998) 196 CLR 1 at [12] and [20]. He submitted that such damages are awarded only where there is "high-handed, insolent, vindictive or malicious conduct" amounting to or exhibiting a "conscious wrong-doing in contumelious disregard of another's rights": Whitfeld v De Lauret & Co Ltd (1920) 29 CLR 71 at 77, Gray at [14]. Contrary to the view of the primary judge, the present case had little similarity with Adams v Kennedy (2000) 49 NSWLR 78: in that case, there was no provocation, no apprehension of danger, and no concern for the victim's well-being. The provocation could preclude exemplary damages: Fontin v Katapodis (1962) 108 CLR 177 at 187; Lamb v Cotogno (1987) 164 CLR 1 at 13. Further, some of the primary judge's reasons were themselves erroneous: Constables Wallace and Heinjus did not exceed orders given by their commander, and the view that there was a falling away of grounds to justify detention was contrary to the finding that detention was justified under the Mental Health Act. [137] Mr Toner relied on the submissions set out earlier in relation to aggravated damages. He submitted that the arrest was in breach of procedures laid down to prevent arbitrary arrests; the arresting police exceeded orders given by Sergeant Wilson; the application of physical force was entirely out of proportion to the limited threat, if any; forceful detention persisted after the reason for it fell away; the police conduct was high-handed; comparisons with Adams v Kennedy were justified; and the primary judge did not ignore "provocation". [138] In my opinion, as made clear in Gray, while "conscious wrong-doing in contumelious disregard of another's rights" describes the greater part of the field in which exemplary damages may properly be awarded, it does not fully cover that field. Similarly, malice is not essential: Lamb v Cotogno. Conduct may be high-handed, outrageous, and show contempt for the rights of others, even if it is not malicious or even conscious wrong-doing. However, ordinarily conduct attracting exemplary damages will be of this general nature, and the conduct must be such that an award of compensatory damages does not sufficiently express the court's disapproval or (in cases where the defendant stood to gain more than the plaintiff lost) demonstrate that wrongful conduct should not be to the advantage of the wrong-doer."
Exemplary damages are claimed in relation to each of the causes of action. However, analysis of the basis of the claim shows that specific aspects of the conduct of Senior Constable Hicks have been identified. In those circumstances, I propose to examine the bases upon which the claim is based, rather than examine the entitlement of the plaintiff to exemplary damages for each cause of action.
I shall first examine the claim for exemplary damages as set out in paragraph 18 of the statement of claim, which identifies the following conduct by Senior Constable Hicks: 1. Unnecessarily grabbing the plaintiff; 2. Unnecessarily tackling the plaintiff; 3. Unnecessarily pinning the plaintiff to the ground; 4. Unnecessarily threatening the plaintiff with the use of capsicum spray or handcuffs; 5. The assault occurring in view of members of the public including the plaintiff's family and neighbours.
The claim about the capsicum spray and handcuffs was abandoned during the hearing. The other particulars all relate to the circumstances of the plaintiff being forcibly seized by Senior Constable Hicks. There is no reference to the arrest or prosecution as matters warranting exemplary damages.
As to the circumstances in which the plaintiff was the victim of an "assault", there are two further problems. The first is that these particulars are identical to the particulars of aggravated damages set out at paragraph 17 of the statement of claim, for which the plaintiff also seeks damages. While no objection was taken to the rolling up of a claim for aggravated and exemplary damages in McCarthy v New South Wales (in that leave was not granted in relation to a damages award where aggravated and exemplary damages were rolled into one sum), this seems an undesirable practice, particularly since the quantum of exemplary damages should not be determined until after the awards of general and aggravated compensatory damages are determined.
The second, and more important, defect is that these particulars do not identify the necessary features outlined by Basten JA in Talovic v New South Wales [2014] NSWCA 33 at [39] - [40]: In deciding to award exemplary damages, the trial judge correctly noted that the purpose of such an award was "to punish the defendant for conduct showing a conscious and contumelious disregard for the plaintiff's rights and to deter it from engaging in similar conduct in the future", referring to XL Petroleum (NSW) Pty Ltd v Caltex Oil Australia Pty Ltd [1985] HCA 12; 155 CLR 448 at 471: trial judgment at [228]. The judge also bore in mind that "conduct may be high-handed, outrageous, and show contempt for the rights of others, even if it is not malicious or even conscious wrongdoing": at [228]. As authority for that proposition the judge referred, appropriately, to State of New South Wales v Riley. The relevant reference was in the judgment of Hodgson JA at [138]. However, the trial judge did not stop to note the conclusion reached by Hodgson JA at [142] in rejecting a claim for exemplary damages in that case. Further, although the trial judge referred to State of New South Wales v Delly [2007] NSWCA 303; 70 NSWLR 125, he did not refer to the remarks of Ipp JA at [25] approving the further reasons given at [115]-[117]. The factors which the judge took into account - at [229] - were all factors concerned with the plaintiff, namely that he was "asleep in his own bed, was causing no harm to anyone and was at no risk of harming himself and was woken by two police officers who searched his unit …". There was no express finding (nor could there have been) that the police acted with malice. Nor was there any express finding of contumelious disregard of the plaintiff's rights. A fair reading of the evidence of both constables provides no sufficient basis for any relevant finding in order to justify exemplary damages. That part of the award should be set aside."
Matters of this kind may be the basis of a claim for aggravated damages (see a similar list in Carter v Walker (2010) 32 VR 1 at [287]) but the basis for a claim for exemplary damages must be that the conduct of the defendants is conduct of the kind described by Basten JA as set out above (compare, in this regard, the basis for the claim for exemplary damages in Carter v Walker at [293].
In submissions, Mr Quickenden submitted that these matters amounted to disregard of the plaintiff's rights. In Talovic v New South Wales at [158], Tobias AJA explains the way in which conduct amounting to a disregard of rights must be established: "There was no finding by his Honour, for example, that Constable Manoukian or Constable Sturevski disregarded Mr Talovic's rights. It was certainly not put to them that they were not acting in good faith. Even if they were mistaken as to whether or not there were reasonable grounds for forming the belief that Constable Manoukian said he held, that is a totally different matter from concluding that he showed a conscious and contumelious disregard for Mr Talovic's rights. It was not suggested to Constable Manoukian or Constable Sturevski that their conduct was high-handed or outrageous or that it showed contempt for the rights of Mr Talovic. There was no justification whatsoever for reaching the conclusion that their conduct should be described in that fashion. His Honour clearly erred in awarding exemplary damages."
I am similarly satisfied that Senior Constable Hicks, while behaving over-zealously in the apprehension of the plaintiff, did not do so in contempt for the rights of the plaintiff. He was under the apprehension that the plaintiff was trying to avoid a breath test. The circumstances of the arrest are not sufficient to warrant an award of exemplary damages.
The plaintiff at trial sought exemplary damages on other bases, and in particular on the maintaining of the prosecution after it was apparent that there was insufficient evidence. Although never tendered, it would appear that particulars of the facts and matters relied upon for the claim for exemplary damages were set out in correspondence. One of those particulars was read onto the transcript and is as follows: "QUICKENDEN: Your Honour, it's a legitimate part of the factual matrix and this has been particularised in particulars that were requested and we said this: "At a time subsequent to the arrest, the police officer attended upon the Golf Club at which the plaintiff attended during the hour prior to his unlawful arrest. The police officer gave a false document to the secretary and manager of the Shelly Beach Golf Club, alleging a breach of a certain liquor legislation and demanded the supply of CCTV evidence implicating the plaintiff. As a result, members of the Golf Club became aware of the incident between the plaintiff and the police. This will be advised. The plaintiff is"‑‑ HUTCHINGS: The difficulty, your Honour, is that that response is meaningless without this letter. This letter that is relied upon for that purpose has just been provided to me at the bar table during this senior constable's cross‑examination. HER HONOUR: Look, with all due respect, what you are obliged to do in particulars is to provide an outline of the case you have to make. Not to identify the name of the witness who is going to give it or the source of the information. You could have‑‑ HUTCHINGS: I am not suggesting that's the case, your Honour." (T 235)
As I went on to indicate at T 235, I consider this letter to be sufficient particularisation for cross-examination in relation to this particular, although it is unclear whether this particular was in fact provided as a particular of exemplary damages or for damages generally.
The first objection raised by Mr Hutchings was that this was not particularised in the statement of claim. However, in cases such as these, the question is the manner in which parties conduct their cases, rather than "the niceties of the pleadings" (Carter v Walker at [43], reducing but still permitting a claim for exemplary damages for conduct by police).
The circumstances in which this letter was sent under pretext of investigating a potential licensing offence, in circumstances where Senior Constable Hicks was not authorised to do so, are certainly regrettable, and a matter for aggravated damages. Nevertheless, this was an attempt by Senior Constable Hicks to obtain evidence inculpatory of the plaintiff. Had the CCTV showed the plaintiff ordering and consuming alcohol at a level likely to be in excess of the amount consumable to give a positive reading, it may have been material relevant to the criminal proceedings.
Does the failure to tender the CCTV at the Local Court, or to advise the plaintiff that it had been obtained, warrant the award of exemplary damages? The plaintiff's failure to obtain, and tender, the prosecution brief must undermine such a claim. The basis upon which the decision was made to maintain the prosecution after this document was obtained, and the circumstances and reasons in which it was not tendered at the Local Court, or provided to the plaintiff, are unknown. In those circumstances, this claim has not been made out.
An additional particular relied upon for exemplary damages was added, albeit in a brief fashion, in the plaintiff's submissions on damages dated 7 April 2015. Counsel for the plaintiff outlined this as follows (plaintiff's written submissions of 7 April 2015): "The defendant has failed to appreciate the significance of SC Hicks conduct in this context by trying to justify it. This is relevant on the issues of damages. As stated in paragraph 118 of the plaintiff's written submissions on damages the defendant's conduct, including conduct at the trial of the action, is relevant to any assessment of general or aggravated damages (Fleet v District Court of NSW & Ors [1999] NSWCA 363, Spautz v Butterworth (1996) 41 NSWLR 1 and McDonald v Coles Myer Limited (1995) Aust Torts Reports 81-361)."
In oral submissions on 28 April 2015, Mr Quickenden also drew my attention to his reference to the same principle in relation to a claim for aggravated compensatory damages in paragraph 14 of his submissions of 20 February 2015, which was as follows: "In New South Wales aggravated damages are also available where the conduct of the defendant was insulting or reprehensible and inflicted outrage upon the plaintiff's feelings. This is a form of compensatory damages where a person is held up to ridicule or otherwise suffers mentally to a greater extent than the mere physical injury and damage would indicate. (Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 151)"
In oral submissions, Mr Quickenden also relied upon the cross-examination of the plaintiff as to his prior criminal history and reputation for drunkenness in the golf club (T 45 line 30)
Mr Quickenden's submissions on this point took the defendant by surprise, as did his oral submissions in support on 28 April 2015, and Mr Hutchings sought leave to adduce further evidence and submissions to reply. To avoid further delay, in proceedings where the issue of damages had already resulted in several adjournments, I made a ruling that I would not award either aggravated or exemplary damages on this basis, and said that I would give reasons in my judgment.
My reasons are as follows. Conduct of litigation in the adversarial system by a party, or that party's legal representatives, is frequently robust. Accusations of reconstructed or false evidence may be made, and submissions may be made which are highly unflattering. However, mere robust defence (which is what occurred in these proceedings) is not sufficient to warrant such an award. Accordingly, no allowance should be made for exemplary damages on this basis either.

Special damages

Medical expenses of $558.80 and legal costs in relation to the prosecution of $4,400 (Exhibit L) are not the subject of mathematical or causative challenge.

Concluding remarks

A summary of the damages awarded is as follows: 1. Assault and battery (including aggravated damages) $25,000 2. Wrongful arrest (including aggravated damages) $25,000 3. Malicious prosecution (including aggravated damages) $70,000 4. Special damages (medical and prosecution costs) $4,958.80 TOTAL: $124,958.80
There will be judgment for the plaintiff for the total sum set out above.
The parties have not addressed me on interest. I grant leave to the parties to bring in short minutes of order reflecting the mathematically agreed sums for interest, as well as to confirm the issues of whether interest is to be sought in relation to the legal costs claimed and advise of any changes to the amount of out of pocket expenses for medical treatment. I have also granted liberty to apply in relation to costs.

Orders 1. Judgment for the plaintiff. 2. Liberty to the parties to bring in short minutes of order reflecting the mathematically agreed sum for judgment including any claim for interest. 3. Defendant pay plaintiff's costs. 4. Liberty to apply in relation to order 2, interest and costs. 5. 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. Decision last updated: 06 August 2015

Law Enforcement (Powers and Responsibilities) Amendment Act 2014(NSW)

Road Transport (Safety and Traffic Management) Act 1999(NSW)

Road Transports (Safety and Traffic Management) Act 1999(NSW)

Nash v State of New South Wales

At a glance

Court

Decision date

Source

Judgment (35 paragraphs)

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Legislation Cited (11)

Cases Cited (42)

Cited By (2)