Paul James McCarthy v State of New South Wales

Further Amended Defence 12The defendant was given leave to file a Further Amended Defence by consent during the hearing. The Further Amended Defence pleads that Constables Heard, Wakefield and other officers, for whom the defendant accepted vicarious liability, entered the premises in search of the plaintiff, whom they suspected on reasonable grounds had committed offences of assault and breaching an Apprehended Domestic Violence Order and that it was necessary to arrest the plaintiff pursuant to ss 99(2) and (3) of the Law Enforcement (Powers and Responsibilities) Act 2002 ("LEPRA") (paragraph 9(b)). The defence goes on to provide as follows: "9(c) says that Police officers lawfully entered the plaintiff's premises pursuant to s 9 of LEPRA and their common law powers of entry, to prevent a breach of the peace or an apprehended breach of the peace; (d) says that Police officers lawfully entered the plaintiff's premises pursuant to s 9 of LEPRA as Police believed that a person had suffered significant physical injury or there was imminent danger of significant physical injury to a person and it was necessary to enter the premises immediately to prevent further significant physical injury or significant physical injury to a person; (e) (f) says that Police officer lawfully entered the plaintiff's premises pursuant to s 10 of LEPRA to arrest the plaintiff whom Police believed to be at the premises; (g) says that Police officers remained on the premises only as long as was reasonably necessary to search for the plaintiff; (h) says that Heard and Wakefield left the plaintiff's premises after completing their search for the plaintiff and, having failed to locate him, travelled to Bankstown Hospital where they spoke to the victim, Wheatley, and subsequently returned to Bankstown Police station; ..." 13Those same allegations were pleaded in paragraph 16 of the Further Amended Defence in answer to paragraphs 25, 26 and 27 of the Statement of Claim. The defendant otherwise denied the claim and denied the plaintiff was entitled to damages or aggravated and/or exemplary damages.

The Plaintiff's Case 14The plaintiff gave evidence that he and Jamie Wheatley had met in 2003 and formed a relationship. They married on 8 March 2007 and their son, Addison, was born on 20 November 2009. During 2009 they had moved into the premises which had previously been owned by Jamie's grandparents. They leased the premises from the subsequent purchasers of the property. 15In late 2009 the plaintiff and his wife had an argument and Police were called to the premises. That resulted in an AVO being made against the plaintiff, by consent and without admissions. At the time the Police attended the premises in relation to that matter, the plaintiff gave evidence that he gave them his name, date of birth and telephone number, meaning his mobile phone number. His wife moved out of the premises in March 2010. They shared custody of Addison. 16The plaintiff tendered a sketch plan of the premises which was not to scale (exhibit A). 17On 6 May 2010 Ms Wheatley visited the plaintiff. Whilst at the premises she opened a letter which had been sent to the property regarding her driver's license being suspended. When asked what happened, the plaintiff gave the following evidence: "A: She then became very agitated; started yelling and telling me that it was basically my fault, my sister's brother-in-law did not change the registration into his name upon selling the car to him." 18An argument then ensued and the plaintiff gave evidence that Ms Wheatley spat in his face. He went to the laundry to find something to wipe his face with and she followed him, pushing him into the laundry and locking the door behind him so that he was locked out of the house. 19The plaintiff was concerned that Ms Wheatley was going to leave with Addison and he kicked the back door which gave way and allowed him access back into the house. 20A further confrontation took place outside Addison's bedroom and the plaintiff prevented Ms Wheatley from taking the child. During a further confrontation the plaintiff gave evidence that Ms Wheatley picked up a piece of wood and swung it at him, causing a laceration to his right forearm of between 4-5cms long. 21When asked what happened then, the plaintiff gave the following evidence: "A: Then what happened is Jamie then went into the bedroom to take Addison and I then followed her, she picked up Addison from his bed while he was asleep, waking him, making him upset and hysterical. I then, without touching Jamie, I took Addison off her and told her just to fuck off and go back to her mum's house. Q: What happened then? A: She then drove off in a ute and drove back to her parent's house." 22The plaintiff gave evidence that Ms Wheatley left between 4 and 4.30pm. He then rang his sister and asked her to come around to look after Addison and drop him to the Police station to report the incident. 23The plaintiff gave the following evidence: "A: I then secured the premises and took some time to fix the back door as the wood had fallen off and to secure it, it was able to be closed but not locked at that time. After doing that I then entered out through the front way, locking the front door at the back by pressing the button on the back, and then closed the premises." 24At the back of the premises was a sliding door leading from the laundry to the backyard. The plaintiff gave evidence that that door was able to be closed but not locked as they had lost the key to the door. 25At 5.05pm the plaintiff attended the Bankstown Police station where he spoke to a Constable at the front desk. He advised that officer that he was there to report a domestic violence incident and gave his personal details, which included his name, address and date of birth. He was asked to wait and was told, "We're waiting for a car crew to come back". Ten minutes later the same Constable placed him under arrest for breach of AVO. He was taken into the charge room and placed in custody. After two hours he was interviewed by Police. At no time during that interview did Police indicate to him that they had entered his house, prior to speaking to him. 26The plaintiff remained in custody overnight until bail was granted at the Bankstown Local Court the following day, 7 May 2010. He was driven home by his sister. When he entered the front door he noticed the lights of the premises on, which he said he did not leave on prior to leaving the house the day before. In the master bedroom he noticed that his mattress had been moved. He noticed that the wardrobe had been opened, his clothes moved and the drawers opened and sifted through. In the laundry, two cupboard doors were open that were not open when he left. The door to the laundry that he had fixed earlier in the day he observed partly to be lying on the floor and another part was propped up against the lounge. A TV cabinet was open. 27When asked how he felt about finding his house like that he said: "A: Well, at the time I was worried and concerned who had been through myself house and, yeah I was concerned for safety and whether they were going to return or not." 28The plaintiff also gave evidence that he couldn't sleep properly knowing that someone had been in the house and he had not known who it was. He said he was concerned that they may return and he became very worried about leaving the house. Several days later he was still the same, very agitated and very upset. He said he couldn't cope any more. 29On 13 May 2010 he had his bail conditions varied at the Bankstown Local Court to enable him to move to Georges Hall to live with his mother. He arranged for the lease of the premises to be taken over by Ms Wheatley. 30The plaintiff was asked how he felt when he read the Police brief of evidence. He was shocked to find out that the Police had entered his premises on 6 May 2010. He said: "A: I was angry, humiliated, embarrassed that Police had entered my premises without my knowledge or consent. I was also angry because at the time that they did enter my premises I was in fact at the Police station reporting the incident." 31The plaintiff gave evidence that he was still angry that the Police had moved things inside his house. He said he had developed a complete lack of trust towards the Police. When asked how long that went on for the plaintiff said: "A: For probably the next couple of weeks, to months. I was also having nightmares at the time." 32The nightmares were about the Police entering his premises. He was also anxious, worried, really frustrated and angry about them entering his house without his permission or consent. 33The plaintiff said that he had previously never had a problem with Police doing their job, however, to the time of the trial he still had a complete lack of trust towards the Police. Their conduct had affected his memories of the premises there in that he said: "All I have is memories of the Police and what they did, entering my premises. I don't have any good memories of sharing time with my family, in particular, my son, Addison." 34In cross-examination it was put to the plaintiff that in his ERISP interview he had given the Police his name and address. In addition he had told the Constable at the counter that an incident had occurred and that he and his former wife were involved. 35The plaintiff agreed that about a week after the incident Ms Wheatley was in possession of the house at Larien Crescent. He said that he had communicated to her, by indirect means, what had occurred at the premises, namely, through his sister. He gave evidence that he told his sister over the phone what had happened, so that he could eliminate her returning to the property as a possibility. He thought someone had burgled the premises but did not ring the Police to report the break and enter. When asked why not he said: "Well after the ordeal I just went through I just did not want to call them." 36The plaintiff was asked why he did not take any photos of the house as he found it on his return. His answer was that he was more concerned about tidying the house and then securing it. He denied pushing Ms Wheatley and did not see her fall over. He gave the following evidence: "Q: You were going to go and report the assault of you to Bankstown Police station? A: I was going down there to report the incident as there was already an AVO in place against me. Q: You rang your sister straight away when Jamie Wheatley left the house didn't you? A: Yes. Q: Because you knew because of the AVO that the Police were going to come looking for you didn't you? A: No, I just knew how her mother is and how callous she is. Q: Well according to you, you did nothing wrong? A: That's correct. Q: So why were you worried about your son being present with you? A: I wasn't, but I wasn't going to go down to the Police station and report it with my son there, so I got my sister to baby sit him while I went down to report the incident. Q: Why trouble your sister with taking you down to the Police station when you simply could have rung the Police to attend on you given your circumstances? A: I didn't think of that. Q: You were thinking about the Apprehended Violence Order that was in place weren't you? A: Yeah I was aware of it at that time yes. Q: Yes, you knew if you were in breach of those Apprehended Violence Orders you'd be arrested didn't you? A: Yes. Q: Okay and that's why you left? A: No." 37The plaintiff denied that when the Police arrived at his front door the front door was open. He agreed that he did not know whether, between 5pm on 6 May 2010 and when he was released on bail on the 7th, whether any one else other than the Police had entered the premises. The landlord, however, did not have a key to the premises. 38The plaintiff was cross-examined about his previous interactions with Police dating back to the year 2000. It was put to him that he had always distrusted the Police, which he disavowed. When asked again why he did not call the Police on 7 May 2010, his answer was as follows: "A: Because I went down to the Police station to report what had happened on 6 May and then I was arrested, so you know, if I reported the break in, what would happen?" 39In re-examination the plaintiff gave evidence that he gave information to the custody manager at the time he was placed into custody, being his full name, date of birth and address. In respect of the break and enter, he gave evidence that nothing appeared to have been taken. There were no signs of forced entry to the premises by way of external damage to the house, other than at the rear laundry door, the piece of wood being on the floor. His custody management record was tendered as exhibit B. 40The defendant played the VKG recording of the Police radio for 6 May 2010. An unmarked copy of the transcription was marked for identification MFI #1 and after debate as to certain entries on it, a revised document was tendered, by consent, as exhibit 3. 41The plaintiff was recalled for further cross-examination by leave. It was put to him that whilst he was waiting at the Police station he received a phone call from a Sergeant Barakat, during which he was asked to hand the phone to the Constable behind the counter. The plaintiff could recall neither receiving the phone call, nor the content of it.

The Defendant's Case 42Sergeant Barakat was the first witness called in the defendant's case. Sergeant Barakat was on 6 May 2010 performing duties of the mobile supervisor at Bankstown Police station. He was at the Police station doing quality review work of tasking sheets in his duties as a supervisor when he heard a transmission on Police radio VKG from a Police officer designated as the domestic violence officer in relation to a domestic assault at Powell Street Yagoona. He decided to respond to that radio broadcast. His reason was as follows: "A: The information that was broadcast from Bankstown 300 in relation to a female who was heavily pregnant who had been assaulted and was on the way to Bankstown Hospital and the fact that there was a two year old child still with the accused person. That raised fears that - I had fears for that child's safety." 43When asked why he had fears for the child's safety, he gave the following reasons: "A: Again, the information received, the fact that his female who I knew to be 38 weeks pregnant was being conveyed as a result of an alleged assault against her. Further to that, Bankstown 300 I do recall the information that he broadcast was the fact that there was an AVO in place and the two year old child was with the accused. Bankstown 300 also broadcast the fact that there was (sic) warnings of aggression towards Police." 44Sergeant Barakat had proceeded code red (meaning with lights and sirens) to an address at Powell Street Yagoona. He did so because he was aware that the accused needed to be arrested for the offence of assault and breach of AVO. His call sign was Bankstown 14. 45When he arrived at the address he was informed by other Police present that the accused was not there, but was at another address being 39 Larien Crescent, Birrong. He and other Police officers proceeded to that address code blue (without lights and sirens). They did so because he did not want to alert the accused that vehicles were on the way. 46When he arrived at Larien Crescent, Sergeant Barakat walked up to the front door of the premises. He noticed the front door was open and knocked on the door and yelled out "Police, is anyone here?" There was no response and Sergeant Barakat gave evidence that he believed the accused was hiding inside because the house was "just wide open and left like that". He gave the following evidence: "Q: What made you believe that he was hiding inside? A: There were several things that sort of led me to believe, first of all, the fact that Bankstown 300 had asked us to respond urgently which sort of implied that the offences of the assault and breach of AVO had just occurred, then upon our arrival we see the house wide open, like this was - it was uncommon, we worked in the Bankstown local area command which is one of the probably more violent, more undesirable locations within Sydney when it comes to theft and break and enter and things like that. It was just an uncommon practice for people to leave their house wide open like that. Q: Alright, and what happened then? A: Once there was no response, again we announced our office. I went into the residence to search for the accused person and to try and find this two year old child who I believed could have been at risk of physical harm. Q: Why did you believe that? A: Again there were several factors that led me to believe that in the sense that the information received that a heavily pregnant 38 week mother of the child was in hospital. There was an AVO already in existence for her protection. The warnings' given in relation to aggressive towards Police, to me it just showed a propensity of violence and the fact that Bankstown 300 what I didn't - it's come to me now I remember was there was a mention of the DOCS team and that led me to believe that if DOCS had been involved, there could have been harm occasioned to this child at a previous time. So based on all those factors, I thought that that child was in need of - you know - I needed to remove that child from that situation." 47When asked why he wanted to arrest the plaintiff, Sergeant Barakat gave the following evidence: "A: It was clarified from again Bankstown 300 that an offence of assault and a contravene of a breach of AVO, two serious offences when it comes to domestic violence, two offences, especially the contravene AVO is something that we need to deal with there and then. It's not something that needs - it's an offence where there's a presumption against bail. It's a court order, it's a breach of a court order." 48Sergeant Barakat gave evidence that he went into the living and dining area as shown on exhibit A. Several other officers entered the house and spread out to "clear the house". When he did not locate the accused or the young child in the living area, Sergeant Barakat walked straight out and estimated that he had been in the house for "maybe 30 seconds". The other officers left approximately 15 seconds later. He denied touching anything in the house. He did not recall whether he turned any light switches on. 49Sergeant Barakat was then taken through exhibit 3, the VKG radio transcript. In doing so, Sergeant Barakat identified various entries as being of significance in the exercise of his power to enter the premises. For example, in exhibit 3, item 25 was a broadcast from Bankstown 300 which read as follows: "Warning for aggression towards Police and he was a disqualified driver till 2011. If the first car that gets there could confirm if that child is there so I know where to send the DOCS crew." 50Sergeant Barakat gave the following evidence in respect of that entry: "Q: What effect did that information have on you, the warning of aggression? A: To me it was just also went in my decision making to show that there was a propensity of violence with the accused based on the - the evidence with the victim, the AVO in place and now, his warnings that he's got - shows aggression towards Police. It highlighted my fears for the - harm or the welfare and - of that child, if you know what I'm trying to say." 51Sergeant Barakat also identified item 97 in exhibit 3 as related to his exercise of power on that day. It read as follows: "I just need, information for 300, this house is unlocked and unsecured, we're just going to go through the house and just secure it. Is there any information in relation to the vehicle this guy may be driving." 52Sergeant Barakat also said item 112 was significant. That item included a reference to canvassing neighbours to see if they had seen anything, once it was established the plaintiff was not at the premises. That occurred, however, after the search of the premises conducted by Police. 53Sergeant Barakat gave evidence that he was able to source a phone number for the plaintiff. He however did not recall from where he was able to source that number. He gave evidence that he called the number and spoke to the plaintiff and had a conversation with him about his whereabouts and that of his son, Addison. During that conversation he was told that the plaintiff was at Bankstown Police station and he asked to be put on to a Constable. He then spoke to Constable Voget and instructed him to place the plaintiff under arrest for breach of AVO and for assault. 54Sergeant Barakat gave evidence that he relied on ss 9 and 10 of LEPRA to enter the house. In relation to s 9, he relied on a belief that someone was in imminent danger of physical harm or had suffered significant harm. He referred to it as the "second part of s 9". The person he was concerned about was the two year old child Addison. 55When asked what part of s 10 he relied on he said "Pretty much all of it ...". 56When asked if he was aware that the plaintiff was at the Police station he would have entered his premises, Sergeant Barakat said "Absolutely not". 57In cross-examination Sergeant Baraket gave evidence that he had first seen the transcript of the VKG recordings for 6 May 2010 a couple of weeks before the trial. He had an independent recollection of the incident, but made no notes at any time in relation to the incident. In the meantime he had, over a three year period, attended numerous domestic violence matters. It was put to Sergeant Barakat that all particulars of the incident should have been recorded in his Police notebook as soon as possible. He was the one who had exercised powers under ss 9 and 10 of LEPRA to enter the premises, but could not recall whether he was the first Police officer who entered. 58Sergeant Barakat was cross-examined on the requirements set out in the Police Service Handbook for Police officers to record relevant matters relating to incidents in their notebook. The handbook became exhibit C in the proceedings. He gave evidence that there were other officers at the scene who could have recorded the incident in their notebooks, it was put to him that there was a requirement outlined in the handbook that he was obliged to counter-sign any entries made by such officers. He did not understand that to be the case. 59He had not checked his notebook in this case and could not recall counter-signing any other officers' notebook. 60Sergeant Barakat had been served with a subpoena to give evidence at the trial, as a result of which, he accessed the COPS system as he did not know what the matter was about. At the time he received the subpoena he had no independent recollection of the event. 61It was put to Sergeant Barakat that item 70 in exhibit 3, which referred to the victim giving Police the wrong address, and that she was probably trying to protect the plaintiff, indicated that the victim was lying to the Police. His response was that she was being uncooperative. That was not a matter of significance for Sergeant Barakat in relation to the welfare of the child. 62Sergeant Barakat agreed that he did not record the telephone conversation with Mr McCarthy which he gave in evidence in chief in his Police notebook. Nor did he check the mobile telephone call-charge records for phone calls made that day. He had raised that matter for the first time with Counsel for the defendant on Tuesday 10 December 2013, the first day of the trial. It was put to him that he had reconstructed the evidence in relation to making the phone call, which he denied. He agreed that when he spoke to Mr McCarthy he was a suspect for a criminal offence, but notwithstanding that, no record had been kept of the conversation. 63He agreed that he had exercised power in relation to the arrest of the plaintiff by instructing Constable Voget to arrest him. 64Sergeant Barakat agreed that all Police vehicles travelling from Powell Street Yagoona to Larien Crescent did so as a routine response code blue, notwithstanding that there was an urgent, imminent danger to the two year old child. His explanation for the difference between going code red or code blue would have been a matter of seconds. 65Sergeant Barakat was also cross-examined on item 97 in exhibit 3, referred to at [51] above. He had a recollection of the radio advising that the house was unlocked and unsecured. 66Sergeant Barakat could not recall the Police who were present at 66 Powell Street when he first arrived there, however, he did recall that Senior Constable Sands was present. When he arrived at the premises there were several Police already present, although he could not recall the exact number. Whilst outside the premises he was given information by Senior Constable Sands but could not recall the details, only that it was information concerning the accused, namely the plaintiff and possibly a vehicle. Relying on exhibit 3, he believed that there were two Police vehicles present and four others including his own vehicle arrived. He agreed that he had no real independent recollection of what occurred at the premises. 67Sergeant Barakat had no recollection of whether other Police arrived at the premises after him. He did not agree that by the nature of his rank and duties as a supervisor he had specific obligations and responsibilities to ensure that other Police acted in accordance with the Police Service Handbook. His response was "Not necessarily". His explanation was that all officers had an obligation to abide by the Handbook. He did agree that he had an obligation to ensure that other Police acted ethically and properly whilst inside the premises. He did not agree that that extended to keeping an eye on Police whilst they were inside the house to make sure they did not do anything wrong. 68Sergeant Barakat did not agree that it would be unusual for a person trying to hide from Police to leave their front door open. When he arrived at the premises he did not see the plaintiff, nor did he make any observations of anyone being present in the house. He agreed that he definitely did not hear a two year old child crying out. 69Sergeant Barakat could not recall who was the first Police officer to enter the premises. He had no recollection of turning the lights on. He did not accept that inquiries could have been made of the neighbours as to the whereabouts of the plaintiff before Police entered the house. 70Sergeant Barakat was questioned about a tasking sheet he completed later that day in respect of his use of the Police vehicle Bankstown 14. That document did not refer to his presence at the premises being in relation to a breach of the peace or to arrest an offender. His explanation was that the job broadcast was "domestic", meaning a domestic related incident. He agreed that there was no accountable official document that recorded his entering the premises for the purpose of arresting a person. 71In re-examination Sergeant Barakat stated that he did not create a notebook entry in relation to his attendance at the premises because he was not the officer in charge of the matter. Senior Constable Heard was allocated to be in charge of the matter. Sergeant Barakat had never been asked to provide a statement. During the time of his attendance at the premises he did not have a recollection of seeing any Police officer acting inappropriately or unethically. 72When asked what the main purpose of his entry into the premises was, his answer was as follows: "A: I - there's two factors, the arrest of the accused and the welfare of that child. Q: When you say welfare of the child, what do you mean? A: We believed that child was in risk of harm. Q: What kind of harm? A: Anything that could range from assault to death." 73He said his main focus when he entered the premises was to try and arrest the accused and locate the child. 74Senior Constable Neil Heard was performing general duties on the afternoon of 6 May 2010 in Police vehicle Bankstown 38. He was working with Constable Wakefield. Whilst at the Bankstown Police station at 4.50pm he heard the voice of the domestic violence liaison officer on Police radio. The broadcast concerned the welfare of a two year old child who was in the care of a Paul McCarthy and that Police needed to attend an address urgently to take custody of the child and to arrest Mr McCarthy for assaulting his 38 week pregnant wife and breaching an Apprehended Violence Order. 75An urgent response was required, following which, Senior Constable Heard and Constable Wakefield proceeded to 66 Powell Street in Yagoona. Whilst en route, the radio broadcast that that was an incorrect address and they proceeded to the new address. When he arrived there were three other Police vehicles there, numbers 400, 14 and 35. A sketch plan of where those vehicles were parked became exhibit 7. Senior Constable Heard observed Senior Constable Sands and Sergeant Baraket walking up the driveway to the front of the house. Senior Constable Heard observed them to stop at the door. He was two metres behind them. He heard Sergeant Barakat saying in a loud voice "Police, Police". 76There was no response and the front door of the house was open. Senior Constable Sands and Sergeant Barakat walked into the house and Senior Constable Heard followed them. When asked why he went into the house his evidence was: "A: I had concerns for the child, I believe that the child was in that house with the father from what I had been told by a Police officer on radio." 77Senior Constable Heard said that the open front door caused him even more concern because the area was known for break and enters and he did not believe that people in Birrong left their doors open during the day. When asked why he thought the offender was inside the house, he gave this evidence: "A: Well I hadn't been, hadn't been updated with any other radio responses saying that he'd been located or found anywhere else so I believed that he was inside that house with his child." 78Senior Constable Heard observed Senior Constable Sands to clear the bedroom on the left-hand side. By "clear" he meant "make sure that there was no one in that room". He denied touching anything inside the house or observing any other Police officer to do so. He walked through the kitchen to the laundry and did not turn on any lights. He observed the back door frame to be smashed off and observed the door jamb to be up against the lounge. He then went into the laundry but did not touch anything there. Then he walked out from the laundry and stood and looked in the backyard, then turned around and returned through the house to the front door. He was the last person, namely Police officer, out of the house. When asked how long he was in the house he said "One minute". 79Senior Constable Heard gave evidence that he then heard a broadcast on his Police radio from Constable Sands that the house was empty and that the Police were going to secure it. 80When outside the house he observed Sergeant Barakat on a mobile phone but did not hear any conversation. 81Senior Constable Heard gave evidence about his official Police notebook entries including the statement of Jamie Wheatley. The relevant parts of the notebook became exhibit 8. 82Senior Constable Heard made a statement on 16 May 2010 for the purpose of the criminal proceedings. That statement became exhibit 9. 83Senior Constable Heard also gave evidence about the COPS entry which he created in respect of the event and exhibit 6, the incident log. The COPS entry became exhibit 10. 84In cross-examination Senior Constable Heard agreed that in none of the Police records or documents that he had refreshed his memory from was there any reference to Sergeant Barakat. He said he had an independent recollection of attending the premises and observing Sergeant Barakat holding a mobile phone out the front of that house. He had not discussed his evidence in the case with any Police officer. He was asked about contemporaneous notes made in his notebook at page 6 whilst he was at that property. Nowhere on that page had he recorded that he had entered the premises, nor that he had exercised a power pursuant to s 9 or 10 of LEPRA. 85Senior Constable Heard had used his Police notebook entries to refresh his memory for the purpose of preparing his Police statement on 16 May 2010. His statement, however, referred to pages 7-16 of his notebook, which he explained as a typographical error. 86Senior Constable Heard was asked about the narrative contained in exhibit 10, the COPS entry. Neither contained a reference to entering the premises. 87Senior Constable Heard disagreed with the proposition that the fact that he had entered the premises and made observations of a broken door would be relevant matters to put in the facts sheet to be put before the Magistrate. His reason for doing so was as follows: "A: Because I wrote these facts based on the domestic assault that had occurred between the two parties to form the prima facie with the evidence of the assault occurring." (sic) 88Following the ERISP conducted with the offender, Senior Constable Heard gave evidence that he had dinner, and denied that he attended the premises between 7.30 and 8pm. 89Senior Constable Heard agreed that it was important in preparing the COPS event to ensure the information had to be accurate. It was put to him that the entry in the document "Domestic occurring now, POI still at location" was simply untrue. His answer was that he could not remember typing it. He then agreed that it was untrue. Senior Constable Heard could not explain that entry in exhibit 10 (at p 7). 90When asked why, in the ERISP interview, he did not inform the offender that he had entered his premises, his explanation was that he was focussing on the assault that had occurred in the house. He did not agree that it was relevant to his investigation that he had observed the damage to the rear door, nor did he seek an explanation from the plaintiff during the course of the interview why the front door of the premises had been left open when no one was inside. Senior Constable Heard did not give the offender the opportunity of reading the notes he had made in his Police notebook, nor did he fill in the information he had left blank on page 6 relating to the offender, namely, his date of birth and driver's license. His explanation was that he didn't need to do that because the information came up on the COPS entry automatically once he had been booked into custody. 91Senior Constable Heard gave evidence that he believed that the plaintiff was in the premises, but not hiding within the premises. He agreed that looking for someone inside the premises it would not be usual to look under the bed. After he entered the house, he stepped into the first room on his left, behind another officer, he then entered the lounge room where there was another officer present, he then walked through the house to the laundry and to the rear of the premises. He could not remember how many bedrooms there were in the house, although in paragraph 4 of his Police statement (exhibit 9) he had stated that he had walked through each room through to the laundry. His explanation for stating that was that they were the only rooms he could remember. That was so, notwithstanding that the statement was made 10 days after the event. 92Also inconsistent with his evidence was that he said in his statement that he walked to the rear yard. He estimated the time he spent inside the house as approximately one minute. 93When he arrived at the premises the other Police vehicles already present were Bankstown 35, Bankstown 14 and Bankstown 400. He did not refer to another vehicle, MEOC 37, which other evidence established was the first to arrive at the premises (see exhibit 3, item 82). 94He did not tell the plaintiff during his ERISP interview that he had been inside the premises or closed the door because he did not think it was necessary to do that. Whilst he pulled the front door shut when he left, he had no recollection of locking it. 95Senior Constable Heard had no recollection of giving the keys to Bankstown 38 to Constable Wakefield on 6 May 2010 at 7.30pm. Nor did he request any evidentiary statements from either Sergeant Barakat or Constable Sands. 96Senior Constable Heard was the officer delegated the responsibility of responding to a subpoena for production of documents served on the Commissioner of Police. In the process of doing so, he had listened to the VKG recording of 6 May 2010 to refresh his memory. He did not agree that it had influenced his recollection of what had occurred. The reason for that was that it was the only domestic he had attended where a 38 week pregnant woman had been assaulted. 97In re-examination Senior Constable Heard was asked about the vehicle tasking sheet which set out the tasks allocated to Police officers each day. He gave evidence that Constable Wakefield was a Probationary Constable at the time and permitted to drive a Police vehicle by himself. 98Constable Wakefield attended the premises at 39 Larien Crescent with Senior Constable Heard. There were other Police present but he could not recall who they were. He entered the premises after Senior Constable Heard but could not recall who entered the premises before him. He searched the bedrooms marked bedroom 1 and bedroom 2 on exhibit A and then walked towards the laundry where he saw the door frame off. He did not touch anything in the premises and was there for about one minute. 99On the front lawn he observed Sergeant Barakat making a mobile phone call and then proceeded with Senior Constable Heard to Bankstown Hospital. He was present when Senior Constable Heard interviewed the plaintiff. He made no notebook entry in relation to the incident. 100Constable Wakefield gave evidence that as a Probationary Constable he was not permitted to drive a Police vehicle by himself. 101In cross-examination Constable Wakefield said that he had reviewed the original brief, the VKG recording and his statement to refresh his memory before giving evidence. He had also made a report into the matter. 102Prior to listening to the VKG radio recording he had no independent recollection of what was said on the Police radio that day. His Police statement was prepared on 8 June 2010. 103Before preparing his statement he had read Senior Constable Heard's statement "to jog my memory". 104The reason he went into the house was because of the "radio call we received" for concerns for the child and "we believed" that the child was at home. He had no records relating to entering the house and did not refer to it in his evidentiary statement. Nor was there any reference to the child in that statement. 105In cross-examination when asked when was the first time that he had told anyone that the reason why he entered the premises was out of concern for the child, he gave the following evidence: "A: That was discussed when we were going there, to the address. Q: What was said? A: We were going there to arrest the offender and check on the child. Q: Check on the child? A: Yes. That's the information we had at the time. Q: To check on the child? A: Yes. Q: There was nothing to indicate that the child was in immediate danger, was there? A: No, there wasn't. We had no information. Q: None whatsoever. When you arrived outside the house you didn't hear any child screaming or anything to indicate that harm was being done at that very moment-- A: No. Q: --inside the house? A: No." 106At Bankstown Hospital, he observed Senior Constable Heard taking notes from the complainant and agreed that that was the first time he had seen Constable Heard writing notes in his notebook. He had not been offered the opportunity to contribute to any notes that were made outside of the house in relation to anything that he had seen or done inside. 107Constable Wakefield was questioned about the tasking sheet (exhibit E). He had a recollection of attending the premises on only one occasion. When asked whether there was no reason for him to go back a second time his answer was: "No, I don't think so." 108The tasking sheet showed that between 7.30 and 8pm his Police vehicle had been used to attend 39 Larien Crescent Yagoona. He did not agree with the entry. The tasking sheet was dated and signed on 7 May 2010 at 3am which was the finishing time of the shift. Constable Wakefield stated that they had not been back to that address at that time of night. They had no reason to go back to that address. He agreed that the tasking sheet was not accurate and said that he had made an error in recording the attendance at the premises at between 7.30 and 8pm. 109When asked to accept that he could not exclude that he did return to the premises he said that it was an error in the tasking sheet. That was not notwithstanding that he could not recall what he did after the plaintiff's ERISP interview. 110In re-examination Constable Wakefield said that he did not have Senior Constable Heard in his view the whole time when he exited the premises. He was asked about the entry in exhibit E at 7.30pm which said "File" under the heading "Job Type". He could only explain that as some sort of paperwork. 111Leading Senior Constable Craig Sands was on 6 May 2010 working at the Bankstown Local Area Command doing licensing duties. His Police vehicle had the call sign Bankstown 400. He had no recollection of attending the premises and no recollection of entering the premises. He gave evidence based on his recent perusal of the transcript of Police radio VKG recordings on that day (exhibit 3). 112He gave evidence that he responded to the Police radio because this was a serious incident. It was an urgent job because of the double beeps heard on the radio. When asked why it was urgent he said: "A: Due to the fact of a female being assaulted who's 38 weeks pregnant and also the concern for welfare for a two year old child." 113When asked what his concerns were for the child he said: "A: The fact he has assaulted a woman that's 38 weeks pregnant, he may assault the child." 114Senior Constable Sands said item 97 in exhibit 3, namely, "I just need information from 300, this house is unlocked and unsecured", was significant in that he believed somebody was home. When asked why, he said: "A: Because most people lock their houses if they leave the home. If the house if unlocked, there's a reasonable cause that somebody would be home." 115Senior Constable Sands gave evidence that a broadcast at 16:51:20 from the Domestic Violence Liaison Officer (Constable Mikaty) was significant in that he was at the hospital with the victim and Police were asked to go to the Powell Street address as a matter of urgency because the two year old child was there alone with the offender. 116In cross-examination Senior Constable Sands agreed that he had no independent recollection of the incident. He had not listened to the radio broadcast itself and his radio call sign was in respect of a vehicle shared with a Constable Halloway. 117He said the job was urgent because a female had been assaulted. His motor vehicle tasking sheet for the day contained the following reference: "Assisted Bankstown 300, domestic." 118That entry did not indicate that he had attended either 66 Powell Street Yagoona or the premises. He had never put entries in his Police motor vehicle diary of locations he had attended to perform his duties. The accountable records indicating he attended those locations comprised the CAD messages and Police radio. 119With respect to his entering into the premises he had no recollection and therefore could not concede that he was not in a position to deny that he had moved the mattress or touched property. 120In re-examination he explained that by saying that the Police were in the premises looking for a person.

Issues to be Determined 121As the defendant has admitted that Police officers, including Constable Heard and Constable Wakefield, entered onto the plaintiff's property, the question to be determined is whether that entry was justifiable. The defendant's case is that the Police entered the premises relying on their power of entry pursuant to ss 9 and their common law powers of entry to prevent a breach of the peace or an apprehended breach of the peace. Further, the defendant pleads that the Police officers lawfully entered pursuant to s 10 of LEPRA to arrest the plaintiff. 122The second matter to be determined is, if the entry amounted to trespass, what damages flow from that.

The Legislation - LEPRA 123LEPRA commenced on 1 December 2005. The defendant relies on ss 9 and 10 which provide as follows: "Part 2 Powers of entry 9 Power to enter in emergencies (1) A police officer may enter premises if the police officer believes on reasonable grounds that: (a) a breach of the peace is being or is likely to be committed and it is necessary to enter the premises immediately to end or prevent the breach of peace, or (b) a person has suffered significant physical injury or there is imminent danger of significant physical injury to a person and it is necessary to enter the premises immediately to prevent further significant physical injury or significant physical injury to a person. (2) A police officer who enters premises under this section is to remain on the premises only as long as is reasonably necessary in the circumstances. 10 Power to enter to arrest or detain someone or execute warrant (1) A police officer may enter and stay for a reasonable time on premises to arrest a person, or detain a person under an Act, or arrest a person named in a warrant. (2) However, the police officer may enter a dwelling to arrest or detain a person only if the police officer believes on reasonable grounds that the person to be arrested or detained is in the dwelling. (3) A police officer who enters premises under this section may search the premises for the person. (4) This section does not authorise a police officer to enter premises to detain a person under an Act if the police officer has not complied with any requirements imposed on the police officer under that Act for entry to premises for that purpose. (5) In this section: arrest of a person named in a warrant includes apprehend, take into custody, detain, and remove to another place for examination or treatment. 124The plaintiff submits that there was no compliance by the Police officers with ss 9 and 10, nor was there compliance by them with s 201, which provided safeguards and is relevantly in the following terms: "Part 15 Safeguards relating to powers 201 Supplying police officer's details and giving warnings (of Crimes Act 1900, s 563, Police Powers (Vehicles) Act 1998, s6) (1) A police officer must provide the person subject to the exercise of a power referred to in subsection (3) with the following: (a) evidence that the police officer is a police officer (unless the police officer is in uniform), (b) the name of the police officer and his or her place of duty, (c) the reason for the exercise of the power. (2) A police officer must comply with subsection (1) in relation to a power referred to in subsection (3) (other than subsection (3)(g), (i) or (j)): (a) if it is practicable to do so, before or at the time of exercising the power, or (b) if it is not practicable to do so before or at that time, as soon as is reasonably practicable after exercising the power. (3) This section applies to the exercise of the following powers (whether or not conferred by or under this Act): (a) a power to search or arrest a person, (b) a power to search a vehicle, vessel or aircraft, (c) a power to enter premises (not being a public place), (d) a power to search premises (not being a public place), (e) a power to seize any property, (f) a power to stop or detain a person (other than a power to detain a person under Part 16) or a vehicle, vessel or aircraft, (g) a power to request a person to disclose his or her identity or the identity of another person (including a power to require the removal of a face covering for identification purposes), (h) a power to establish a crime scene at premises (not being a public place), (i) a power to give a direction to a person, (j) a power under section 21A to request a person to open his or her mouth or shake or move his or her hair, (k) a power under section 26 to request a person to submit to a frisk search or to produce a dangerous implement or metallic object. (3AA) Despite subsection (3), this section does not apply to the exercise of a power to enter premises or to search premises or a vehicle, vessel or aircraft that is conferred by a covert search warrant. (3A) If a police officer is exercising more than one power to which this section applies on a single occasion, and in relation to the same person, the police officer is required to comply with subsection (1)(a) and (b) in relation to that person only once on that occasion. (4) If 2 or more police officers are exercising a power to which this section applies, only one officer present is required to comply with this section. (5) However, if a person asks another police officer present for information as to the name of the police officer and his or her place of duty, the police officer must give to the person the information requested. (6) This section does not apply to the exercise of a power that is conferred by an Act or regulation specified in Schedule 1. Note. See section 5(1), which provides that this Act does not limit the functions of a police officer under an Act or regulation specified in Schedule 1."

Legal Principles to be Applied 125The application of s 9(1) involves an objective test to be applied to the phrase "if the police officer believes on reasonable grounds". In Hyder v Commonwealth of Australia [2012] NSWCA 336 in a case involving an allegation of false arrest and false imprisonment, McColl JA (with whom Hoeben JA agreed) said as follows: "15 The following propositions ... can be extracted from decisions considering how a person required to have reasonable grounds either to suspect or believe certain matters for the purposes of issuing a search warrant or arresting a person might properly form that state of mind: (1) When a statute prescribes that there must be 'reasonable grounds' for a belief, it requires facts which are sufficient to induce that state of mind in a reasonable person; George v Rocket (1990) 170 CLR 104 at 112. (2) The state of mind that the reasonable grounds for the relevant suspicion and belief exist must be formed by the person identified (i.e. the arresting officer) ...; the arresting officer 'may not' discharge the ... duty [of forming the relevant opinion] parrot like, upon the bald assertion of the informant." (3) The proposition that it must be the arresting officer who has reasonable grounds to suspect (or believe) the alleged suspect to be guilty of an arrestable offence is intended to ensure that 'the arresting officer is held accountable ...' (4) There must be some factual basis for either the suspicion or the belief; the state of mind may be based on hearsay material or materials which may be inadmissible in evidence; the materials must have some probative value: R v Rondo [2001] NSWCCA 540. (5) The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists; the assent of belief is given on more slender evidence than proof. (6) Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture. (7) What constitutes reasonable grounds for forming a suspicion or a belief must be judged against 'what was known or reasonably capable of being known at the relevant time' ...; whether the relevant person had reasonable grounds for forming a suspicion or a belief must be determined not according to the subjective beliefs of the police at the time but according to an objective criterion. (8) The information acted on by the arresting officer need not be based on his own observations; he or she is entitled to form a belief based on what they have been told. The reasonable belief may be based on information which has been given anonymously or information that turns out to be wrong. The question whether the information considered by the arresting officer provided reasonable grounds for the belief depends on the source of the information and its context, seen in the light of the whole of the surrounding circumstances and, having regard to the source of that information, drawing inferences as to what a reasonable person in the position of the independent observer would make of it. (9) The identification of a particular source, who is reasonably likely to have knowledge of the relevant fact, will ordinarily be sufficient to permit the court to assess the weight to be given to the basis of the expressed [state of mind] and, therefore, to determine that reasonable grounds for [it] exist ..." 126I was not referred by counsel for either party to any authority which assisted in the proper construction of ss 9 and 10. Rather, it was common ground that Part 2 codifies the existing common law powers of entry as explained by the Attorney General in the second reading speech. In respect of the expression "breach of the peace", both parties relied on the definition contained in R v Howell [1982] QB 416 where at 427 Watkins LJ, delivering the joint judgment said as follows: "There is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance." 127That explanation of what amounts to a breach of the peace has been extensively followed, but not universally - see State of New South Wales v Tyszyk [2008] NSWCA 107 per Campbell JA (with whom Mason P and Giles JA agreed) at [88] to [95]. 128His Honour went on at [96] to refer to State of New South Wales v Kuru [2007] NSWCA 141 where at [149] where Ipp JA said: "A breach of the peace occurs when an act 'either actually harms a person, or in his presence, his property, or is likely to cause such harm, which puts someone in fear of such harm being done'; referring to R v Howell and Nicholson v Avon [1991] 1VR 212, inter alia." 129I am satisfied that "imminent" means "impending, soon to happen". 130In Lippl v Haines (1989) 18 NSWLR 620 the Court held that where a police officer was authorised by s 352 of the Crimes Act 1900 to arrest a person without warrant then it may be lawful for him to trespass on land for the purpose of making, or endeavouring to make such an arrest. At 622C Gleason CJ said as follows: "His conduct would be lawful where the entry is reasonably necessary for the purpose mentioned, but always provided two conditions are satisfied. The first, he must believe on reasonable and probable grounds, prior to entry, that the person he is seeking to arrest is on the premises. Secondly, save in what ... have been have described as 'exigent circumstances', there must be a proper announcement prior to entry that the occupier of the premises is made aware that a police officer claims authority to enter and is given an opportunity to permit entry without force." 131Those principles were stated to be relevant to forcible entry. Nonforcible entry gave rise to additional questions such as those of implied license. The Chief Justice went on to say at 623E that a mere possibility of a fugitive's presence on premises is insufficient to justify entry by police (see also Hope A-JA at 636B). 132In Plenty v Dillon & Ors (1991) 171 CLR 635 the High Court held that the tort of trespass to land is actionable per se in the absence of damage. That case concerned police officers who entered onto the appellant's property to serve a summons on his daughter. They had no express or implied consent to enter the land and the Court held that the grounds advanced to justify their entry failed. 133I was also referred to R v Merritt [2002] NSWCCA 368 where the question concerned whether an arrest had been lawful. Simpson J (with whom Beazley JA and Sully J agreed) held that the fact that a door to private premises is open does not give anyone, including police, authority or license to enter against the will of the occupant.

Application of Legal Principles to the Facts of this Case 134Counsel for the plaintiff submitted that in the absence of any contemporaneous record kept by the Police asserting that on 6 May 2010 Police officers entering premises at 39 Larien Crescent Birrong did so by virtue of powers contained in either s 9 or s 10 of LEPRA, the Court could not be satisfied as to the purported use of those powers. Not only had none of the Police officers made any Police record to that effect, the plaintiff relied on the safeguard contained in s 201 of LEPRA, namely, that a Police officer must provide the person subject to the exercise of the power the reason for that exercise (s 201(1)(c)), and further that the Police officer must comply with ss (1) "if it is not practicable to do so before or at that time, as soon as is reasonably practicable after exercising the power" (s 201(2)(b)). The section applies to a power to enter premises (not being a public place) (s 201(3)). 135It was submitted on behalf of the plaintiff that there was a failure to comply with s 201(1) and (2) when the Police omitted to inform the plaintiff at the time of his ERISP interview on the evening of 6 May 2010 of their entry onto the premises. It was submitted that non-compliance with s 201(1) meant that the Police were not entitled to assert that their conduct was lawful, relying on Semaan v Poidevin [2013] NSWSC 226, and Poidevin v Semaan [2013] NSWCA 334. 136The defendant has submitted that the Police officers' conduct, when assessed objectively, was based on information giving rise to a belief on reasonable grounds so as to justify their entry pursuant to s 9(1)(a) or s 9(1)(b) or pursuant to s 10. 137The evidence said to give rise to that belief on reasonable grounds is that contained in exhibits 2, 3 and 6. Based on that evidence, the Court would accept evidence given by each of the officers called that they relevantly believed on reasonable grounds that their entry was justified by the powers contained in either s 9 and/or s 10. Whether that submission is accepted depends on a close analysis of the evidence referred to, and the reliability of the evidence given by the Police officers concerned and outlined above. Further, the defendant submits that the plaintiff's reliance on Poidevin v Semaan, supra, is misconceived.

The Evidence Relied on by the Defendant 138The defendant relies on exhibits 2, 3 and 6 as the primary evidence which informs the belief of the individual Police officers which was a prerequisite for the exercise of their power pursuant to either s 9 or s 10 of LEPRA. 139Exhibit 3 is the transcript of the Police radio recordings. It contains the following relevant entries referred to by item number: Item 1 Bankstown 16 go ahead to 66 Powell Street, cross of Emery Avenue, Yagoona. 27 year old female Raelene Wheatley was assaulted by her ex-husband. She's 38 weeks pregnant. She's suffering abdominal pain. The offender's decamped. Ambos on the way. Item 4 Just in regards to the last job broadcast, I've got the victim in the back of the ambo right now. Just turning up to Bankstown Hospital. Just stand by. We've got a different address for the actual offence. Item 8 The female that's pregnant is with me right now at Bankstown Hospital. I've escorted the ambulance there just by chance and if you can have a car crew attend the Powell Street address as a matter of urgency as the two year old child is there alone with the offender. Item 9 Bankstown crew thanks, Bankstown crew 66 Powell Street Yagoona cross Emery. Any Bankstown crew thanks there's a two year old child that's there with the offender where the victim has been conveyed to hospital. The two year old child is there with the offender. Any Bankstown car, thanks. [2 beeps activated] Item 12 Bankstown 16, I believe you just gave us that job. We'll go there. Does the POI need to be arrested at all? Item 14 Yeah Bankstown that's correct Radio, he's breached his AVO and assaulted the PINOP on the AVO. Item 15 Copy, 16 yes, he needs to be arrested. There is a current AVO. Item 23 Yeah 300 Radio the name is Paul McCarthy. Item 25 Warning for aggression towards Police and he was a disqualified driver till 2011. If the first car gets there could confirm if that child is there so I know where to send the DOCS crew Item 65 Just confirming the POI is there and he was armed did you say? Item 66 Negative Radio, the POI is not here but we may have another possible address he may be at, I'll advise shortly. Item 70 I've just been informed by the DOCS staff that our victim has initially given the wrong address. But she's probably trying to protect him. It's actually 39 Larien Crescent, Birrong. If you want to check with 14 that's the address that he was given. Item 82 MEOC 37 mark us off there now thanks. Item 97 I just need, information for 300, this house is unlocked and unsecured, we're just going to go through the house and just secure it. Is there any information in relation to the vehicle this guy may be driving. Item 100 In relation to that other address for Larien Crescent the premises is unlocked and unsecured. Is there any information regarding a vehicle that possibly decamped in. Item 103 Copy, it looks like this place is pretty empty. Item 112 Negative, no further cars, it looks like this guy's done the Houdini. We're just going to do a canvass of some of the neighbours to see if they've seen anything. But at this point in time no further cars he's not here.

140The time of the broadcast and speaker in respect of each entry is recorded on exhibit 3. The exhibit makes it clear that the first Police vehicle to arrive was MEOC (Middle Eastern Organised Crime) 37, which arrived at 17:02. Other vehicles to arrive at the premises included BK 38, Bankstown 35, Bankstown 14 and Bankstown 400. The entry that is most illuminative as to the position of the Police at the premises is Item number 97. That makes it clear that the house is unlocked and unsecured, and also the Police purpose, namely, to go through the house and just secure it. That occurred at 17:04:20. The fact that the place was empty was confirmed at 17:05 (item 103). Prior to that time, the only entries relevant to the question of the attending officers belief are items 1, 4, 6, 8, 9, 15, 23, 25, 58, 64, 65, 66 and 70. Exhibit 6 is a log which confirms those entries. 141The total information contained in those entries is rather scant. However, it cannot be considered in a vacuum. Police operations take place under pressure of time and urgency. The fact that the radio operator activated two beeps signalled to those Police attending that this was an urgent matter. The information the Police officers were armed with, however, amounts to an allegation that a 38 week pregnant woman was assaulted, that there was an AVO in place at the time of the assault which had been breached, the name of the offender, the fact that he had a two year old child with him, the fact that he had decamped and that the victim had given the Police the wrong address and that she was probably trying to protect him. The Police officers were also informed that the offender was to be arrested, that there was a "warning for aggression towards police" and that he was a disqualified driver. 142The determination of the central issue in the case involves an examination of the reliability of the evidence of the various Police officers based on the information they had received as referred to above. As for the plaintiff, I accept that he was a witness of truth, and I accept that after the incident with his ex-wife occurred, he made arrangements to be taken to the Bankstown Police station to report the incident, no doubt to protect himself, given the existence of the outstanding AVO against him. In doing so, he secured the premises and locked the front door. 143Sergeant Barakat, who was the supervising Police officer, had no independent recollection of the events of 6 May 2010 until he was served with a subpoena to give evidence. He had refreshed his memory from exhibit 3 and from other Police records. His evidence, particularly in crossexamination, was somewhat unimpressive. Notwithstanding that he had given evidence that numerous items in exhibit 3 were significant to his decision to enter the premises, he at times prevaricated in giving answers to straightforward propositions put to him. He would not accept that he had reconstructed his evidence from the records that he had examined, but clearly that was the case. Of most concern was his lack of recollection of other Police officers at the premises. He had no recollection of who first entered the premises, whether any other officers had entered the premises, how many officers came from vehicle MEOC 37 and how many Police officers arrived after him. 144Senior Constable Heard was the officer in charge and his notebook was exhibit 8. The only entry contained in that notebook relevant to the entry onto the premises by Police officers were the words contained on page 6 thereof as follows: "Front door open, rear door forced open frame damaged." 145That exhibit also contained the statement he took from the complainant, Jamie Wheatley, at Bankstown Hospital. 146Senior Constable Heard conducted the ERISP interview with the plaintiff (exhibit D). That interview concluded at 7.35pm on 6 May 2010. In it, the plaintiff made no admissions and gave his version of events which was consistent with his evidence in chief. 147The facts sheet prepared by Senior Constable Heard (exhibit 1) reflected the victim's statement. 148The statement Constable Heard prepared for the criminal proceedings (exhibit 9) made on 16 May 2010 disclosed that he and Constable Wakefield entered the house "with several other officers". It included the following in paragraph 4: "I walked through the house looking for the accused Paul McCarthy. I walked through each room and through to the laundry located at the rear of the property. As I entered the laundry I observed the door to be open inwards and the right hand door frame torn from the wall. The door frame was leaning up against a lounge to my left as I faced the door from the sunroom. I entered the laundry and walked to the rear yard. I entered the house again and walked to the front door." 149That statement did not disclose the basis upon which Senior Constable Heard had entered the premises, i.e. by exercising a power to do so pursuant to either s 9 or 10 of LEPRA. Nor did it disclose that he had not informed the plaintiff that he had entered the premises as he was required to do by s 201 of LEPRA. 150Senior Constable Heard had also prepared the COPS entry (exhibit 10). That document contained an entry inserted by him at page 7 under the heading "CAD message details" which read as follows: "Domestic occurring now POI still at location." 151That entry was untrue and Senior Constable Heard had no reasonable explanation for it. 152When asked in his evidence in chief by what power he entered the premises, his answer was as follows: "A: I entered under s 9 for a breach of the peace - at the bottom section of s 9. So I believed that the child was in imminent risk of serious injury being left with the father. ... Q: Did you have any other power in mind? A: Yes. On the advice that Leading Senior Constable Mikati had broadcast that I'd listened to, McCarthy had to be arrested for assaulting his 38 week pregnant wife, therefore breaching the Apprehended Violence Order. Q: Were you intending to arrest him? A: Yes. I believed he was in that house. Q: Why did you believe he was in the house? A: Because all I could go on was the radio broadcast that there were serious concerns for the welfare of the child that was in the house and that's the last known address of McCarthy, that's his residential address. I believed he was in that house at the time. Q: Was there any particular feature or information that made you believe he was there at the time? A: Only the broadcast that Mikati had put across, saying that the correct address where the actual domestic assault had occurred was 39 Larien Crescent Birrong." 153That evidence was important in that it demonstrated that Senior Constable Heard was acting on a belief that the child was in imminent risk of serious injury, being left with the father, when there was no basis for such a belief, and further that the premises were the residential address of the plaintiff, when again there was no evidence that that was so. It could not have informed a belief that he was in the house at the time. 154Counsel for plaintiff was critical in his submissions of other aspects of the evidence of Senior Constable Heard. He gave evidence, for example, that he had a clear recollection of events based on the fact that it was the only domestic event he had attended where a 38 week pregnant woman had been assaulted. However, he had been the officer responsible for responding to a subpoena for production on behalf of the Commission of Police, and had ample opportunity to refresh his memory from not only the VKG radio recording for 6 May 2010 and the transcript thereof, but other Police documents including his notebook entry, his statement and the COPS entry which he prepared. There were other inconsistencies in his evidence including what part of the premises he in fact went into, and whether he went into the backyard. 155Constable Wakefield was a Probationary Constable of limited experience at the time of the incident. He followed Senior Constable Heard into the premises. He acknowledged in cross-examination that there was nothing in the radio broadcast to suggest that the child was in imminent danger and agreed that the Police had no information in respect of the child. He kept no records in relation to the incident other than the tasking sheet (exhibit E) which he explained as a mistake, that is, that the Police vehicle the subject of that exhibit was not used to attend the premises between 7.30 and 8pm, but rather, he was attending to paperwork at that time in respect of the incident. 156Senior Constable Sands was the licensing Policeman who attended in response to the radio call. He gave evidence that item 97 in exhibit 3 was significant to him, and the fact that the house was unlocked and unsecured led him to believe that someone was at home. He believed that the male occupant and the child were there when he entered. He had no independent recollection of the event without recourse to the records, in particular, exhibit 3. Again, he made no record of the event and no entry into his Police notebook or motor vehicle diary in respect of it.

Determination 157Police who attended the premises arrived in Police vehicles MEOC 37, BK 38, Bankstown 35, Bankstown 14, Bankstown 400 and possibly Bankstown 15. The call sign for Sergeant Barakat's vehicle was Bankstown 14, Senior Constable Heard and Constable Wakefield were in Bankstown 38 and Senior Constable Sands was in Bankstown 400. That left the police officers in vehicles MEOC 37 and BK 35, both of which vehicles arrived at the scene at 17:02 hours (i.e. the first to arrive) and yet their presence at the scene, their involvement and movements if any, were left totally unexplained. 158Having found that I accept the plaintiff's evidence that he locked the premises when he left to go to the Police station, and before he left he repaired the laundry door, an inference arises that prior to Sergeant Barakat, Senior Constable Heard and Constable Wakefield entering the premises, some other persons may have entered the premises from the rear sliding door (which was unlockable), broken through the locked laundry door, thereby causing damage to the door jamb (as observed by the Police officers) and opened the front door from the inside. I do not, however, have to decide that, nor who, on the balance of probabilities, would have done so. The fact that the front door was open does not justify the Police entry unless it was otherwise justifiable - see R v Merritt, supra. 159Applying the propositions that are derived from Hyder v Commonwealth of Australia, supra, set out above, I find that the following information was disseminated to Police officers via Police radio VKG: (1)That a 27 year old female, Raelene Wheatley, had been assaulted by her ex-husband and she was 38 weeks pregnant. (2)The victim was suffering abdominal pain and was being taken to Bankstown Hospital by ambulance. (3)The offender had decamped. (4)He had a two year old child with him. (5)He was to be arrested for breach of an Apprehended Violence Order. (6)His name was Paul McCarthy. (7)There was a warning for aggression by Mr Carthy towards Police and he was an unlicensed driver. (8)DOCS staff advised that the address given by the victim at first was incorrect, and she was probably trying to protect Mr McCarthy. (9)The address of the premises. 160I further find that there was no indication of any person being present in the premises, as there was no noise or movement. Based on that information, no Police officer present could believe, on reasonable grounds, that a breach of the peace, as defined above, was being or was likely to be committed on the premises and it was necessary to enter the premises immediately to end or prevent that breach of peace pursuant to s 9(1)(a). There were no grounds for believing that the child was in imminent risk of danger on the basis of the information given, although Constable Wakefield was the only Police officer to acknowledge that. 161In respect of the power to enter pursuant to s 9(1)(b), the information provided to the Police may have amounted to reasonable grounds for a belief that the victim had suffered a significant physical injury. However, as she at Bankstown Hospital, there could be no belief formed on reasonable grounds that it was "necessary to enter the premises immediately to prevent further significant physical injury or significant physical injury to a person" as required by the section. Nor was there any basis for such a belief in respect of the child. 162I do not accept Sergeant Barakat's evidence that he was relying on the second part of s 9 to ground his entry into the premises. That evidence amounted to a rationalisation constructed by Sergeant Barakat some three and half years following the incident to justify his entry onto the property. There was no evidence supporting his concern for the welfare of the two year old child being in imminent danger of significant physical injury. If in fact, it was genuinely held, it was not a belief held on reasonable grounds. There was no response to the Police announcing their presence at the front door of the premises, and no noise emanating from inside the premises. The Police had heard no sound of a child in distress, and, given the circumstances, did not even know if the offender or the child were there. 163The same analysis applies to the evidence of Senior Constable Heard in relation to the evidence he gave about having concerns for the child, as referred to in [76] and [77] above. There was no reasonable basis for those concerns and therefore his reliance on s 9 is a rationalisation of his actions taken some years after the event. Supportive of that conclusion are the following facts: (1)He made no contemporaneous record of his reliance on s 9 to enter the premises. (2)He did not comply with s 201 by providing the plaintiff with an explanation of the reason for the exercise of the power "as soon as it was reasonably practicable to do so", namely, at the time of his ERISP interview. That safeguard is clearly applicable to the power to enter and search premises (see s 201(3)(c) and (d). (3)He made no reference to it in his statement (exhibit 8) or the COPS event (exhibit 10). 164Constable Wakefield did not purport to be entering pursuant to the exercise of the power pursuant to s 9. He merely followed his senior officers into the premises. 165To the extent that Sergeant Barakat relied on the whole of s 10 to authorise his entry, that section permits a Police officer to enter a dwelling to arrest a person only if the officer believes "on reasonable grounds that the person to be arrested or detained is in the dwelling". On the same analysis as outlined above, and for the same reasons, once there was no response to the Police announcing their presence at the front door, given the information then available to them, there was no reasonable grounds for Sergeant Barakat to believe that the plaintiff was inside the dwelling. 166I further find that given the complete absence of any contemporaneous note of his reliance on the power contained in s 10, and his subsequent non-compliance with s 201 of LEPRA, that his evidence to the effect that he relied on the whole of s 10 was a rationalisation of his conduct constructed some three years after the event. 167 Poidevin v Semaan, supra, concerned an appeal against a conviction for resisting arrest pursuant to s 546C of the Crimes Act 1900. The Court of Appeal restored the conviction by the Magistrate in circumstances where the primary judge had set aside the conviction on two grounds, one of which was a failure to comply with s 201 of LEPRA. In his judgment the primary judge had stated that non-compliance with the duty to inform in s 201(2) of LEPRA had a retrospective effect on the status of the alleged conduct of Police, and protected them from "any unlawfulness associated with the exercise of power". 168The Court of Appeal held that that statement was in error. Leeming JA (with whom Ward and Emmett JJA agreed) said at [25]: "25 The time for compliance with 201(1) depends upon whether or not it is practicable to do so before or at the time of exercising the power, or only at some later time. The explicit premise of the section is that there will be some occasions when a compulsive power referred to in s 201(3) may be exercised without being proceeded or accompanied by the provision of information in accordance with s 201(1). In those circumstances, there is a lawful exercise of power or, to use the language of s 546C, the lawful execution by a police officer of his or her duty, notwithstanding the absence at that time of the information required by s 201(1)." 169At [28] Leeming JA explained that the exercise of a common law power to arrest did not have added to it a further incident of statutory duty imposed by s 201 when the common law power is exercised. The decision does not inform the consequences of non-compliance of s 201 for present purposes, and therefore the plaintiff's reliance on it is misconceived. However, notwithstanding that the defendant has pleaded justifiable entry, both pursuant to ss 9 and 10 of LEPRA or at common law, the defendant's case and submissions made on its behalf were confined to an alleged entry made pursuant to ss 9 and 10 of LEPRA. 170For the above reasons I find that the entry of Senior Constable Heard and Constable Wakefield, together with other Police, as pleaded in the Statement of Claim, into the premises leased by the plaintiff was not justified pursuant to ss 9 and 10 of LEPRA, or at common law, and the Police officers trespassed on those premises.

Assessment of Damages for Trespass 171Counsel for the defendants submitted that any trespass on the land was minimal and of short duration and therefore nominal damages should only be awarded in the sum of $500 to $1500. As pointed out above, trespass to land is actionable per se in the absence of damage - see Plenty v Dillon & Ors, supra. In Grant v Brewarrina Shire Council [No. 2] [2003] NSW LEC 54, Lloyd J at [43] stated that the term "nominal damages" does not mean small damages. 172The trespass here was not of a trifling nature. There were a number of Police officers, not all of whom have necessarily been identified, who entered the property. Someone interfered with the plaintiff's personal belongings. Whilst there was no damage, as the High Court stated in Plenty v Dillon & Ors, the purpose of an action for trespass to land is not to merely compensate the plaintiff for damage to property. The purpose of the action is to vindicate the plaintiff's right to the exclusive use and occupation of his property and as in Plenty & Dillon & Ors, the Police officers for whom the defendant is vicariously liable, entered "as Police officers with all the power of the State behind them, knowing that their entry was against the wish of the (plaintiff) and in circumstances likely to cause him distress" (per Gaudron and McHugh JJ at 655). In the circumstances I propose to allow compensatory damages to the plaintiff for trespass in the sum of $10,000.

The Plaintiff's Claim for Aggravated and Exemplary Damages 173In New South Wales v Zreika [2012] NSWCA 37, Sackville AJA (with whom Macfarlan and Whealy JJA agreed) said in respect of these two heads of damages in an action for malicious prosecution: "60 ...Aggravated damages are given by way of compensation for injury to the plaintiff which, although frequently intangible, results from the circumstances and manner of the defendant's wrongdoing, while exemplary damages are rewarded to punish and deter the wrongdoer; Uren v John Fairfax & Sons Pty Limited (1966) 117 CLR 118 at 129-130, per Taylor J, cited with approval in New South Wales v Ibbett (2006) 229 CLR 638 at 646-647 [31], [33]. Aggravated damages are assessed from the point of view of the plaintiff, but an award of exemplary damages is based on the conduct of the defendant: New South Wales v Ibbett, at [34]; Gray v Motor Accidents Commission (1998) 196 CLR 1 at 7 [15], per Gleeson CJ, McHugh, Gummow and Hayne JJ. However, the same set of circumstances may justify an award of either aggravated or exemplary damages, or both; New South Wales v Ibbett at 647 [33] - [34]. 61 Exemplary damages go beyond compensation and are awarded as a punishment to the guilty, to deter similar conduct in the future and to reflect "detestation" for the action; Lamb v Cotogno (1987) 164 CLR 1 at 8. Exemplary damages are awarded rarely and not every finding of fault warrants an award: Lamb v Cotogno at 6 [12]. Nonetheless, such damages can be awarded in a wide variety of circumstances. Generally speaking, what is required for an award is "conscious wrongdoing in contumelious disregard of another's rights": Gray v MAC at 7 [14]. 62 Exemplary damages made be awarded against the State in respect of the conduct of police officers for whose torts the State is responsible: New South Wales v Ibbett: New South Wales v Landini, at [114]. The assessment of exemplary damages in a case of conscious and contumelious disregard of the plaintiff's rights by the police; should indicate ... that the conduct of the [police] was reprehensible, [and] mark the court's disapproval of it. The amount should also be such as to bring home to those officials of the State who are responsible for the overseeing of the police force that police officers must be trained and disciplined so that abuses ... do not happen. Ibbett, at 653 [51], citing Adams v Kennedy [2000] 49 NSWLR 78, at 87, per Priestley JA. 63 In a frequently cited passage, Brennan J in XL Petroleum (NSW) Pty Limited v Caltex Oil (Aust) Pty Limited (1985) 155 CLR 448, at 471, observed that the considerations that enter into the assessment of compensatory damages are quite different from those that govern the assessment of exemplary damages and that there is no necessary proportionality between the assessment of the two categories. Nonetheless, in New South Wales v Ibbett at 647 [34], the plurality endorsed the proposition that it is necessary to determine both heads of compensatory damages before deciding whether or not a further award is necessary to serve the objectives of punishment, deterrence or condemnation. Their Honours also said (at [35]) that where the same circumstances increase the hurt to the plaintiff and also make it desirable for the court to mark its disapprobation of the conduct, a single sum may be awarded. Such an award would represent both heads of damage and ensure that no element is compensated more than once." 174In this case the plaintiff submitted that an award of aggravated damages was warranted given the feelings of anxiety, agitation and distrust of the Police, that the plaintiff has suffered since 6 May 2010. His distrust of the Police had endured until the present time, and he was still angry that his personal items were rifled through. 175In respect of exemplary damages the plaintiff's Counsel submitted that the Police had acted in complete disregard of the plaintiff's rights. They had then compounded their actions by failing to inform the plaintiff pursuant to s 201 of LEPRA. There was a complete failure to accurately record the reasons for their entry in compliance with the Commissioner's instructions and the relevant legislation. Counsel for the plaintiff developed a further submission that by tailoring their evidence, when the individual Police officers had no independent recollection of the events in question, by reference to the VKG radio recording and transcript, meant "there was always going to be substantial and significant credibility and reliability issues in relation to the witnesses to which they were going to be called" (sic). 176Counsel for the defendant submitted that this was not a case which would attract an award of either aggravated or exemplary damages. It was submitted that the Police acted bona fide in the interests of the plaintiff's child and a victim who was in hospital. The submission continued, "they were protecting when they entered, it was the only reason for entry. And even if Your Honour finds that they did interfere with the goods, based on the evidence, it looks like search interference and it is very mild. For example, moving a bit of timber from the ground to the lounge". 177Counsel the defendant submitted that as the Police were "protecting the rights of the child, protecting a child, that is the reason that the plaintiff should not receive aggravated and/or exemplary damages". 178I find that the trespass was not trivial in that it involved a number of Police officers entering the premises without justification. The plaintiff suffered anxiety, distress, anger and distrust of the Police, the last over an extended period of time. However, the plaintiff's claim for compensatory damages is not supported by any medical evidence supporting a case for psychological impairment. He mitigated his damages by moving from the premises within one week. No doubt, his reaction was exacerbated by the fact that at the very time that the trespass took place, he was at the Police station to report the incident, to provide Police with his version of events, and to avoid what in fact happened to him, i.e. his arrest, being charged with an offence and being held in custody. 179At the time they entered the premises the Police officers had no information in respect of the child of the plaintiff. In a sense, they were over-reacting to the information that had been provided to them on the Police radio, and they did not, at the time of entering, turn their minds to the statutory power for entry to the premises. To that extent, their entry did involved a level of highhandedness which indicated a contumelious disregard for the plaintiff's rights of quiet enjoyment to his property. 180I am mindful of the authorities which stipulate that awards of exemplary damages should be the subject of restraint. In this case there has already been an award of compensatory damages to compensate the plaintiff for his feelings of hurt, anxiety and distress as a result of learning about the trespass. It is an appropriate case where any additional award of damages for aggravated and exemplary damages may be made as a single sum to ensure that no element is compensated more than once, as per New South Wales v Ibbett, referred to above and New South Wales v Zreika, supra, at [63]. I therefore award the plaintiff the sum of $20,000 for aggravated and exemplary damages.

Conclusion 181There will therefore be a verdict for the plaintiff and Judgment in the sum of $30,000. 182The defendant to pay the plaintiff's costs, with liberty to both parties being reserved to apply for a special costs order.

Orders 183I make the following orders: (1)Verdict and Judgment for the Plaintiff against the Defendant in the sum of $30,000. (2)Defendant to pay the plaintiff's costs. (3)Grant liberty to the parties to apply on 7 days notice for any special order for costs. (4)Order that the exhibits be returned forthwith. 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: 21 January 2014