Peter Michael Travers v The State of New South Wales

District Court of NSW|2016-11-02

Judgment

The plaintiff sues for damages, including aggravated damages and exemplary damages, consequent of his arrest at 19:20 on 26 April 2011, which arrest, the plaintiff says, was not within the power provided to police pursuant to s 99 of the Law Enforcement (Powers and Responsibilities) Act (LEPRA).
The arrest was conducted by Senior Constable Barnier. The plaintiff was released at 22:29 on 26 April 2011.
The plaintiff says that his detention for the 3 hours and 9 minmutes was wrongful because the arrest was unlawful.
The crux of the matter is whether the arrest was lawful pursuant to the provisions of s 99 (3) (b) and (d) LEPRA.
The defendant accepts that is it its onus to establish the lawfulness of the arrest and detention.
The parties agree that s 99 LEPRA at the time relevantly provided as follows: (1) a police officer may, without a warrant arrest a person if: (a) the person is in the act of committing an offence under any Act or statutory instrument, or (b) the person has just committed any such offence, or (c) the person has committed a serious indictable offence for which the person has not been tried, (2) a police officer may, without a warrant, arrest a person if the police officer suspects on reasonable grounds that the person has committed an offence under any Act or statutory instrument, (3) a police officer must not arrest a person for the purpose of taking proceedings for an offence against the person unless the police officer suspects on reasonable grounds that it is necessary to arrest the person to achieve one or more of the following purposes: (a) …, (b) to prevent a repetition or continuation of the offence or the commission of another offence, (c) …, (d) to prevent harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence, (e) …, (f) …, (4) a police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person, and any property found on the person, before an authorised officer to be dealt with according to law.

Information Available to Senior Constable Barnier

At 18:01 on Anzac Day, 25 April 2011, Police received a Computer Aided Despatch incident report of a "brawl" with "priority" to at Coutts Crossing Tavern (the Tavern) car park, Armidale Road, Grafton. Senior Constable Barnier, who was then stationed at Grafton Police Station working the night shift from 18:00 on 25 April 2011 to 06:00 on 26 April 2011, responded at 18:15.
The plaintiff was at the time of the incident and remains a diesel mechanic, living with his parents at Sealands, about 15 minutes out of Grafton. He had been at the Tavern consuming alcohol from about lunchtime.
At the scene, Senior Constable Barnier observed a significant amount of blood and glass in the carpark and on a vehicle, and from speaking to persons he understood: 1. a fight had erupted between the plaintiff and a man named Daley; 2. the fight occurred when the plaintiff orally challenged Daley to fight and voluntarily went outside the Tavern to fight with Daley; 3. Daley "king hit" the plaintiff; 4. whilst he was upon the ground, Daley's girlfriend, Tilse, kicked the plaintiff; 5. it was a serious affray in which ten or more people became involved; 6. participants had attempted to restrain the plaintiff; 7. the plaintiff was the victim in that he was seriously beaten; 8. the fight concluded after Daley grabbed a thick beer glass and smashed it over the head of the plaintiff; 9. perhaps realising the seriousness of that which he had done and seeing the injury to the plaintiff, Daley retreated; 10. the plaintiff continued to struggle against those restraining him so as to go on with the fight, although he was having the worst of it; 11. it was the plaintiff's blood that was about the car park and on a motor vehicle; 12. the plaintiff was ultimately placed in a motor vehicle and taken to hospital; and 13. in the course of that removal, the plaintiff still struggled in his attempt to continue the fight against those placing him in the motor vehicle.
Senior Constable Barnier believed that the plaintiff had been taken to hospital seriously injured, and that there was some risk of death from the glassing. In accordance with that belief, Senior Constable Barnier organised Detective King to investigate the incident. On 25 April 2011, Senior Constable Barnier assisted Detective King in unsuccessful attempts to locate Daley.
Brett and Kim Watson, their two young children, and Brett Watson's father Desmond, operated and lived at the Tavern.
On the evening of 25 April 2011, concluding some time around midnight, police obtained Witness Statements from each of the Watsons at Grafton Police Station. Senior Constable Barnier witnessed the statements of Brett and Desmond Watson. Constable Zylstra witnessed the statement of Kim Watson. From the information contained in those statements and his oral evidence, I accept that Senior Constable Barnier was informed of the following further and better detail of what had occurred: 1. before the affray, Kim Watson had direct involvement with the plaintiff. She had told the plaintiff that he was refused bar service on account of him being too intoxicated, and offered to drive him home in the Tavern's bus, but he refused. She had asked the plaintiff's girlfriend, Ms Close, to drive him home, and Ms Close had informed her that the plaintiff would not get into her car. At this same time, the plaintiff was engaged in a loud argument with Daley within the Tavern; 2. Daley and the plaintiff went to the northern car park of the Tavern consenting to fight; 3. the fight included extreme physical violence extending over a substantial period; 4. friends of both men surrounded them in the car park when the plaintiff said to Daley "Do you want to go?", and Daley responded "Yeah, I'll have a go"; 5. Daley threw the first punch, whereafter the plaintiff and Daley traded punches during which Daley gained the upper hand and the plaintiff fell to the ground hitting his head quite hard with Daley on top of him; 6. Tilse kicked the plaintiff in the head, and (as that incident was more fully described by Desmond Watson), kicked him at least three times whilst Daley laid on top of him, and when the plaintiff could not defend his head against the kicks; 7. Brett Watson and others got them apart in an attempt to break up the fight; 8. the plaintiff remained aggressive and wanted to continue the fight, at which time the plaintiff and Daley again exchanged punches, the plaintiff being the main aggressor; 9. Daley again gained the upper hand and again the plaintiff ended up on the ground with Daley on top of him, and again Brett Watson and other people managed to separate the men; 10. the plaintiff broke free of Brett Watson's hold of him, and ran over and punched Daley to the left side of his face whereupon Daley and the plaintiff recommenced exchanging punches and moved toward a white utility where Daley had the plaintiff against the utility and the plaintiff was "getting a flogging" with at least five to six punches to his face; 11. Brett Watson pulled Daley from and pushed him away from the plaintiff; 12. each of Desmond Watson, Brett Watson and Kim Watson had direct contact with Daley in that each of them challenged Daley to give them the 7 ounce beer glass which they saw him carrying in an aggressive manner toward the plaintiff. Kim Watson tried to grab the glass from Daley; 13. whilst the plaintiff was still on his haunches, squatting and unaware of the approach of Daley, Daley returned and smashed a 7 ounce beer glass over the back of the plaintiff's head. Pieces of glass were about on the ground. A lot of blood was running down the plaintiff's neck; 14. Brett Watson and the plaintiff's friends again attempted to break up the fight; 15. Brett Watson and the plaintiff's girlfriend, Nadine Close, together attempted to get the plaintiff into Ms Close's car, but the plaintiff was argumentative, refusing to leave; 16. after getting the plaintiff into Ms Close's car, as she tried to drive off, the plaintiff fought to get out of the car and his friends struggled to push him back in the car; 17. in order to remove the plaintiff from the scene of the fight, Brett Watson opened the driver's door of Ms Close's car, replaced her in the driver's seat, and she entered the back seat before Brett Watson drove the plaintiff away; and 18. the plaintiff's visible injury was described by Brett Watson as a 4cm cut on the back of his neck just in his hairline, and another cut at the top of his head associated with a lot of blood. Brett Watson told the plaintiff and Ms Close that he should go to the hospital and report the matter to the police.
Albeit he was challenged during cross-examination on the point, Senior Constable Barnier was consistent in his evidence and adamant that when speaking with the Watsons on the evening of 25 April 2011, in the course of police taking their statements, they informed him of their fear of reprisal from the plaintiff. He witnessed a dispute between Brett and Kim Watson, her suggesting they sell the Tavern and move themselves and their children back to Queensland. That evidence was: Q. What was the other information that you relied on in formulating your opinion to arrest the plaintiff? A. Speaking to the Watsons that night, they were concerned that Dave Daley, Melissa Tilse and Peter Travers may return and continue their violence. Kim Watson she was quite frightened, she was having a debate, like a bit of a heated debate at the station with Brett Watson, she said she was saying to Brett, "I just want to go, I just want to sell the hotel, I want to take" HIS HONOUR Q. This is the night of the 25th in the police station is it? A. That's correct, your Honour "I want to take the kids back to Queensland, let's just sell the hotel, let's just go". Q. This is to Brett? A. That was to Brett and Brett was, he was concerned that yes, that they may return and they live at the hotel, that was my understanding and they had a I think a couple of young girls, so they were concerned about their family and Brett was concerned that what happened to Peter Travers would he blame him or the business for what happened to him. SPARTALIS Q. Were you present when Kim Watson was telling Brett Watson that she wanted to move to Queensland and sell the pub? A. Yes. Q. You were told by Kim Watson and Brett Watson that they were concerned that the offenders would return to the hotel? A. That's correct. Q. What did you make of that information as a police officer? A. That they had real fears.
He recalled that Kim Watson stated that the brawl was the most violent thing she had ever seen. Senior Constable Barnier described her as panting and hyperventilating with the stress of fear. In cross-examination, he described Brett Watson as appearing "sort of like in shock".
Senior Constable Barnier, having worked whilst a Probationary Constable in Sydney, and during his work as a Senior Constable in Grafton, had prior experience from investigating bar fights, of offenders returning to cause trouble at the hotel or with the publican. One of those prior incidents involved the Post Office Hotel in Grafton where the offenders involved in the violent affray returned to abuse, threaten and intimidate the publican after the affray.
Senior Constable Barnier explained that he did not proceed immediately to arrest the plaintiff when Witness Statements had been obtained at about midnight on 25 April 2011 because at that stage he thought that the plaintiff had suffered serious head injuries and was at hospital. In this belief, he was relying on what he had been told at the scene, including that the plaintiff had been rushed to hospital with serious injuries resulting from being glassed to the head.
Senior Constable Barnier's evidence was that he was concerned that the plaintiff was reported to have displayed a committed aggression to the extent that despite he was the loser in the battle and was assisted by others restraining him from further engagement, he wanted to continue the fight. That whilst the Watsons were fearful of return of Tilse and Daley also, and perhaps a little more because of their past history of bad conduct within the Tavern, as he put it during cross-examination: Well, the problem is Peter Travers, as I said before, wanted to continue the fight and they had difficulty getting him into the car and he wanted to continue fighting Dave Daley.
His evidence in chief was: Q. … On the information that you had, did you form any opinion as to Peter Travers' involvement in the incident? A. He had a full involvement in the incident. He was a willing participant. He wouldn't stop, despite people trying to pull him away from fighting Mr Dave Daley. Going by what Brett was saying, Dave Daley, halfway through the night (Transcript corrected: substitute "fight" for "night"), had virtually had enough, but the plaintiff wanted to continue. Q. That was an opinion you had formed once you had spoken to three witnesses; correct? A. That's correct. Q. What about on your arrival? Did you identify anyone as a victim? A. The victim well, our thoughts were with the plaintiff, with his head injury, he thought it was quite serious, and at that stage, with the glassing, people can die. Q. Did you think he was a victim at first? A. Yes. Q. What was it that changed your mind? A. During the investigation, after I obtained the statements from Kim Watson, Brett Watson and Desmond Watson.
In other evidence, Senior Constable Barnier described his concern of the risk of retribution being taken by the plaintiff against Daley and Tilse, given what had been described to him as the plaintiff's aggressively throwing himself back into the affray against Daley despite being severely beaten. His evidence was: Q. Sorry, I withdraw the question. You said you had made a decision to arrest because one of the things was it was an unfair fight. There were a number of people against Travers. A. That's correct. Q. How did that affect your thinking in respect of exercising your power of arrest? A. Well, the fact was I thought that Peter Travers might try to get retribution on those persons. Q. Which persons? A. Dave Daley and Melissa Tilt. Look for revenge.
The defendant submits that Senior Constable Barnier formed a belief by the end of 25 April 2011, which belief continued to the time of arrest at 19:20 on 26 April 2011, that the plaintiff posed the risks of: 1. re-enlivening the fight by assaulting or attempting to assault Daley or Tilse; and 2. returning to the Tavern and harassing or attempting to harass the Watsons.
In closing, the plaintiff submitted that Senior Constable Barnier's evidence of these risks was a conflation of putting the plaintiff "in the same basket" as Daley and Tilse. Indeed, Senior Constable Barnier in cross-examination stated that he was concerned of the above risks as posed by each of the three.
Plainly, Senior Constable Barnier considered the plaintiff one of the sources of those risks. Indeed, the reported violence of Daley and Tilse, in my opinion, did conflate the potential risk of further assault between the three or any two of them and the risk of further offending was both volatile and serious because of the propensity for violent behaviour of each of them.
The police were unable to locate Daley. Tilse was spoken to at the scene and at home, but was not helpful.
Senior Constable Barnier, having refreshed his memory from his Notebook, gave evidence that the plaintiff was identified to him during his on scene investigation by name and mobile telephone number, and that he subsequently obtained the plaintiff's date of birth and address from the police computer. It was not contested that the plaintiff had a prior record bringing him to the notice of the police for prior offences.
It was agreed that on the evening of 25 April 2011, the plaintiff voluntarily attended Grafton Police Station in company with Ms Close, at which time he spoke with Constable Zylstra, who was the Station Managing Officer. The plaintiff may have volunteered his particulars to Constable Zylstra. His attendance on the evening of 25 April 2011 was to make a complaint to police concerning the assault and to inform them of his innocence. Constable Zylstra took photographs of the plaintiff's face, but otherwise was not able to take the plaintiff's statement.
At about 10:45 on 26 April 2011, the plaintiff was contacted by Detective King, at which time the plaintiff informed police that he was not seeking medical treatment for his injuries and was being treated at home. On that discovery that the plaintiff was not seriously injured, Detective King was relieved from the investigation, and Senior Constable Barnier took over on his return to duty, his shift starting at 18:00, 26 April 2011.
The police COPS event record refers to a Victim Notification timed at 0:419, 26 April 2011, but this is an automatically generated entry. Senior Constable Barnier on 26 April 2011, contacted the plaintiff at 18:46. He invited the plaintiff to come to Grafton Police Station in order to make a statement, and the plaintiff agreed.
Senior Constable Barnier explained in his evidence that at the time of making that telephone call he considered it very likely that the plaintiff would be charged with the offence of affray under s 93C of the Crimes Act, a serious offence which, I am informed by the parties, carried a maximum penalty of 10 years imprisonment. He explained that he deliberately did not inform the plaintiff of his expectation that the plaintiff would be charged, so as to achieve co-operation of the plaintiff in attending the police station. During submissions, I raised with counsel and received no opposition to the proposition that inviting a person, without disclosing intent to charge, to attend the station for the purpose of assisting with inquiries or to make a statement would be a normal and safe way of achieving bringing the person into the presence of police.

S 99 (2) LEPRA

In closing submissions, the plaintiff advanced its alternative submission that Senior Constable Barnier's evidence did not satisfy the threshold of establishing that the plaintiff was arrested "for the purpose of taking proceedings". Reference was made to s 99 (2) LEPRA. In my opinion, that submission misconstrues the sub-section. It did not require that Senior Constable Barnier was "committed" to laying a charge, as the plaintiff submits, but only that he suspected on reasonable grounds that the plaintiff had committed an offence. In addition, the plaintiff submission misconstrued the evidence relevant to consideration of s 99 (2) LEPRA. Senior Constable Barnier's evidence during cross-examination was plainly and singularly to the effect that at 19:20 on 26 April 2011, he had formed the view that it was "highly likely" that the plaintiff "would be charged", and that he retained an open mind toward continuing with the investigation including hearing the plaintiff's version of the events, that being part of his normal process of policing. The cross-examination went so far as to challenge that it was hypothetically possible that the outcome following interview of the plaintiff would have been not to charge him, to which Senior Constable Barnier answered: Unless he produced some miraculous form of evidence that would benefit him that would have been the case.
I find that Senior Constable Barnier at the time of his arrest of the plaintiff at 19:20 on 26 April 2011 at Grafton Police Station did suspect that the plaintiff had committed an offence, and I further find that his investigation of the affray provided him reasonable grounds for that suspicion. The plaintiff was charged with s 93 Affray the next day, 27 April 2011. The requirements of s 99 (2) LEPRA are met.

A Jones v Dunkel Inference?

In relation to Senior Constable Barnier's concern for the Watsons' fear of reprisal, the plaintiff says that I should draw a Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 inference arising from what the plaintiff alleges to be the failure of the defendant to call the Watsons so that they might give that evidence. In cross-examination, the plaintiff challenged Senior Constable Barnier regarding his claim of concern because the fears are not recorded in the Watsons' Witness Statements obtained by police. The plaintiff's closing submission does not precisely identify what the inference to be drawn would be.
In my opinion, the plaintiff submission is misconceived. The Witness Statements were prepared for the purposes of charge and prosecution, not for the defence of this civil case allegation of wrongful arrest. The plaintiff was charged on 27 April 2011 with affray under s 93C of the Crimes Act, to which charge he pleaded guilty on 20 June 2011. Senior Constable Barnier was not required in the preparation of Witness Statements for that prosecution to include the Watsons' expressions of fear. It was not put to him that the Witness Statements were deficient for the purposes of prosecution by the absence of that information. More fundamentally, the plaintiff's submission is not more than a wrong claim that the defendant had an obligation to call the Watsons to corroborate Senior Constable Barnier's evidence. The plaintiff's submission does not point to evidence contradicting a finding of the fact that the Watsons expressed those fears in the presence of Senior Constable Barnier.
In addition, the facts are consistent with the Watsons as Tavern owners living at the premises with their young children, holding those fears. Senior Constable Barnier's concerns to avoid risk of retribution between Tilse, Daley and the plaintiff stand separately from any expression of fear by the Watsons. That the plaintiff voluntarily co-operated by attending at 19:20 on 26 April 2011 is not a fact capable of raising an inference that the Watsons were not fearful, or that they had not expressed or displayed that fear before Senior Constable Barnier.
I do not find, assuming it to be that for which the plaintiff submits, an inference available on the evidence contrary to Senior Constable Barnier's evidence that the Watsons expressed to him their fear. Accordingly, I reject the submission that there is such an inference which I would otherwise more readily accept in the absence of the Watsons having been called by the defendant to give evidence.

The Arrest and Imprisonment

When the plaintiff arrived at Grafton Police Station at 19:20 with his girlfriend, Ms Close, he was arrested by Senior Constable Barnier. The entirety of the plaintiff's description of the effect upon him of being arrested was that he was shocked and quite upset. It is contained in the following passage: Q. I want to ask you to tell the Court how you felt, what your reaction was to that? A. I remember feeling shocked and quite upset. Q. Is there any other emotion that you felt at the time? SPARTALIS: I object to that. HIS HONOUR: Yes, I won't allow it, cross-examining your own witness. Go on. MORGAN Q. Is there anything else you can add? A. Just the shock of it. (Transcript corrected, substituting "won't" for "don't" and "cross-examining" for "prosecuting")
At the end of his examination in chief, Senior Constable Barnier described precisely that he arrested the plaintiff because of the seriousness of the affray, to prevent interference and harassment of witnesses, and to prevent a continuation or repetition of the offence. He identified the witnesses as Brett Watson, Kim Watson, Tilse and Daley. In respect of continuation of the offence or repetition of the offence, he identified a further assault or affray occurring. He said that he was concerned that the plaintiff might seek retribution by returning to the Tavern to cause trouble for the Watsons.
In cross-examination, challenge was put to Senior Constable Barnier that he arrested the plaintiff when it was not necessary because he was aware that the plaintiff was co-operatively attending for the purpose of providing a statement, and would provide that statement without being first arrested. It was also put to Senior Constable Barnier that he could have granted the plaintiff bail. In relation to the latter proposition, Senior Constable Barnier said that he had never heard of that procedure. In relation to the former, he agreed that the plaintiff attended co-operatively for interview, but said that he proceeded under s 99 LEPRA, as he understood it.
Senior Constable Barnier agreed that he understood that arrest was a last resort, and not be used merely to facilitate the making of inquiries by interviewing the plaintiff.
In my opinion, Senior Constable Barnier's evidence showed that when making the arrest at 19:20 on 26 April 2011, he differentiated between, on the one hand the purposes of prevention of repetition or continuation or the making of another offence and prevention of harassment of or interference with witnesses; and, on the other hand, the process of charging and prosecuting the plaintiff for the offence. His evidence is entirely consistent with him having arrested the plaintiff for the first purpose, not because he sought to interview the plaintiff in the course of continuing his investigations.
Senior Constable Barnier was aware of the procedure of issuing a Court Attendance Notice and indeed such notice was issued to the plaintiff during his ERISP interview.
From the time of arrest of the plaintiff, the following occurred. Senior Constable Barnier: 1. delivered the plaintiff to the Custody Manager; 2. interviewed Ms Close, she being a witness to the affray, and prepared her statement which, after a course of amendments, occupied about one hour; 3. spoke to witness, Mr Bradley Fisher, who attended Grafton Police Station unexpectedly, but informed Mr Fisher that he did not have time to take his statement then; 4. collected and reviewed all written statements available to him, and prepared for the ERISP interview; 5. set up for the ERISP interview which included a number of steps such as logging into the police computer, signing out the discs for the interview, filling out a question template, and other compulsory administrative tasks; 6. approached the Custody Manager who delivered the plaintiff through a formal process, including reading him his rights, to the interview; and 7. commenced the ERISP interview with the plaintiff at approximately 21:34, and concluded it at 22:09.
The plaintiff's answers to questions in the interview and his demeanour in the course of the interview caused Senior Constable Barnier to form the view that the plaintiff was unlikely to seek retribution particularly because he was fearful of Daley and Tilse. He found his concern for the risks of the plaintiff re-offending, seeking retribution or representing a risk of harassment to the Watsons to be relieved.
Senior Constable Barnier decided to discontinue the plaintiff's arrest, and released the plaintiff at 22:29 on 26 April 2011.
Subsequently, the plaintiff was convicted on his plea of guilty to the charge of affray.

The Law

The defendant makes its case, precisely as Senior Constable Barnier described his approach to be when the making of the arrest at 19:20 26 April 2011 at Grafton Police Station. That is, that the defendant accepts that Senior Constable Barnier was prohibited by the words in s 99 (3) LEPRA "must not arrest" from arresting the plaintiff unless Senior Constable Barnier suspected, in the words of the subsection, "on reasonable grounds that it [was] necessary to arrest [the plaintiff] to achieve one or more of the following purposes". The purposes specifically relied on being the prevention of repetition or continuation of the offence or the commission of another offence (s 99 (3) (b)) and to prevent harassment of, interference with, a person who may be required to give evidence in the proceedings in respect of the events (s 99 (3) (d)).
I accept the evidence of Senior Constable Barnier that he suspected and believed from the time of conclusion of his taking statements from witnesses and speaking with the Watsons on 25 April 2011 that the plaintiff was of a personal propensity for aggression of a fearless and violent quality. I accept that his suspicion was based upon the information that the plaintiff re-entered the affray and sough to continue the affray even when restrained by friends and in circumstances where he had been receiving a savage beating. Those details were all that was known by Senior Constable Barnier of the plaintiff, which information was not of immediate importance in terms of arrest until on his return to duty at about 18:00 on 26 April 2011 he learned that the plaintiff was not in hospital.
I accept that he remained of that suspicion and belief until the plaintiff arriving at 19:20, Senior Constable Barnier having no further information other than that the plaintiff came to the station willing to make a statement. His suspicion and belief, objectively assessed on the basis of that information known to him, would have induced the state of mind of a reasonable person to the same version and was therefore a suspicion achieved on reasonable grounds: State of NSW v Hunt (2014) 85 NSWLR 226; [2014] NSWCA 47 at [26]; Hyder v The Commonwealth (2012) 217 A Crim R 571; [2012] NSWCA 336 at [15] to [18] and [90].
Only circumstances preceding the arrest are to be considered for its review. Events unfolding consequent upon or immediately following it are irrelevant for the purposes for determining whether or not the arrest was lawful or improper: Director of Public Prosecutions (NSW) v Mathews-Hunter [2014] NSWCA 843 at [54]. Civil liberty being preciously protected in our society, arrest is an exercise of last resort: Mathews-Hunter, supra at [59]. Senior Constable Barnier said that he agreed with that principle, and applied it at the time of making the arrest.

The Core Issue

The real question in this case, in my opinion, is whether when to that information is added the facts of the plaintiff being at 19:20 within the police station and of co-operative behaviour, Senior Constable Barnier's suspicion that it was necessary to arrest, was still based on reasonable grounds.
In my opinion, the plaintiff's co-operation and that he was within a police station a little over 24 hours following the affray are facts relevantly discounting the s 99 (3) (b) and (d) matters for which Senior Constable Barnier had responsibly formed serious concern. However, in my view, the seriousness of the violence in which the plaintiff had engaged and even pursued, to the understanding of Senior Constable Barnier, was such that risks of retribution or harassment by the plaintiff directed to Daley, Tilse or the Watsons were very significant.
The plaintiff puts its case on the basis that Senior Constable Barnier should have proceeded to the interview of the plaintiff, the plaintiff having twice offered himself for that, without first arresting him. The plaintiff points to the fact that from what he learned at the interview, Senior Constable Barnier caused the arrest to be terminated pursuant to s 105 LEPRA and the plaintiff to be released unconditionally.

Consideration

What s 99 (3) requires is that the police officer on reasonable grounds suspects that it is necessary to arrest. Without satisfaction of that test the police officer must not arrest the person. The power to arrest is discretionary: Zaravinos v State of NSW (2004) 62 NSWLR 58; [2004] NSWCA 320 at [18]. Whether or not it was "necessary" to arrest is to be assessed in the context of a police officer exercising that discretion according to his suspicion on reasonable grounds. The sub-section so prescribes the degree of scrutiny required when testing whether the arrest was made in compliance: Mulholland v Australian Electoral Commission (2004) 226 CLR 181; [2004] HCA 41 per Gleeson CJ at [39]. Relevant to this case, Senior Constable Barnier, as he was required to do by s 99 (3) (b) and (d) LEPRA, understood that the limits of his power to arrest were that it was necessary in order to relieve the risk of retribution, including continuation of or new offences and harassment of witnesses.
In my opinion, further guidance in regard to the scrutiny of his exercise of his discretion demanded by this case is obtained from the Mission Statement contained in s 6 of the Police Act 1990 (NSW) under which Senior Constable Barnier was required to operate. The section provides, relevantly, as follows: (1) The mission of the NSW Police Force is to work with the community to reduce violence, crime and fear. (2) The NSW Police Force has the following functions: (a) …; (b) …; (c) to do anything necessary for, or incidental to, the exercise of its functions. (3) In this section: "police services" includes: (a) …, and (b) the protection of persons from injury or death, …, whether arising from criminal acts or in any other way, ... … (6) Nothing in this section confers on the NSW Police Force a power to provide a police service in a way that is inconsistent with any provisions applicable to police officers under the [LEPRA]. S 231 LEPRA permits a police office to use such force as is reasonably necessary to make an arrest to prevent an escape.
Senior Constable Barnier's exercise of discretion to arrest the plaintiff at 19:20 on 25 April 2011 is, in my opinion, to be scrutinised in the context of his duty to have regard for the protection of the community from violence and to prevent crime. With a well-founded purpose of peacefully bringing the plaintiff out of the community and into the police station to be charged, he sensibly engaged the plaintiff's willingness to make a statement and invited him to the Grafton Police Station for that purpose. The circumstances immediately proximate in time and place of the arrest are to be considered in the exercise of the scrutiny necessary in the determination of this case.
In the giving of his evidence, Senior Constable Barnier appeared to be a calm and sensible person. In the review of his exercise of procedure on 25 and 26 April 2011, during cross-examination he impressed as a responsible and measured police officer going about his duty. The plaintiff conceded that there was no suggestion of mal intent of Senior Constable Barnier in the exercise of his authority as a police officer.
Scrutiny of his exercise of discretion to arrest excludes considerations of the outcome of the interview with the plaintiff. There is no evidence of attempted escape by the plaintiff.
In my opinion, s 231 LEPRA shows that in performance of his mission as a police office (s 6 Police Act) Senior Constable Barnier was on arrival of the plaintiff at Grafton Police Station at 19:20 on 26 April 2011 to weigh in the exercise of his discretion, his duty to exercise his police power to secure against what he, on reasonable grounds, assessed to be the risk of potentially life threatening violence or intimidation or harassment of witnesses occurring should the plaintiff be free in the Grafton Community.
Scrutiny of his exercise of discretion in favour of arrest is not to be at a level of perfection. Hindsight review with the benefit of knowing what occurred whilst the plaintiff remained at the Police Station is not permitted.
S 99 (3) requires an objective approach considering what the reasonable police officer, possessed of the suspicion reasonably held and conscious that arrest was a power of last resort, would have done. Ultimately Senior Constable Barnier was not required to be certain that it was necessary any more than he was not required to be (or could be) certain that witnesses had described the plaintiff's actions with impeccable honesty and accuracy.
In my view, the evidence satisfies on the objective test that Senior Constable Barnier was entitled to come to these suspicions and was entitled to maintain them, as he did, even in the circumstances of the plaintiff arriving to be within the police station for the purpose of cooperating in the interview. That did not mean the plaintiff would have arrived co-operatively to be arrested and charged. The plaintiff gave evidence that he attended Constable Zylstra at the Police Station on 25 April 2011 to tell police of his innocence.. His judgment was exercised from the perspective of his prior experience of participants in bar fights returning to harass hotel operators.

Conclusion

The defendant has satisfied its civil burden of proof establishing that Senior Constable Barnier arrested the plaintiff at 19:20 on 26 April 2011 suspecting it was necessary to do so, which suspicion when objectively assessed, he held on reasonable grounds; his arrest of the plaintiff being for the purpose of prevention of a repetition or continuation of the offence or the commission of another offence of violence or affray with Daley or Tilse (s 99 (3) (b)) and to prevent harassment of, or interference with, the Watsons, Daley or Tilse who at that time may have been required to give evidence in proceedings in respect of the offence of affray pursuant to s 93C Crimes Act (s 99 (3) (d) LEPRA).
For these reasons, there will be judgment for the defendant.

Damages

As is my obligation to do, I provide the following brief reasons on the question of damages I would have awarded in the event the plaintiff had been successful on the question of liability.
When arrested, the plaintiff said that he was shocked and significantly upset. He was placed in what he described as a glass box which I accept as being a cell. He was deprived of his liberty and that he was unable to leave whereas, had he not been arrested he would have remained in the police station for approximately the same period and whilst Ms Close gave a statement and he provided an ERISP interview.
Whilst in evidence-in-chief the plaintiff said he had never previously been arrested, during cross-examination he reluctantly conceded that he had been arrested on a PCA charge and taken to the police station for breath analysis, and also in relation to a driving whilst disqualified charge. He described the difference being that on those occasions he did not experience being placed in a "glass box".
It must be accepted that having been placed in a cell the deprivation of liberty would have been shocking to the plaintiff who attended the police station on the understanding that he was merely to provide a statement in interview.
Any indignity and distress or humiliation experienced by the plaintiff must be considered in the light of his receiving a Court Attendance Notice near the conclusion of the ERISP interview, his being charged with a serious offence of affray the next day, 27 April 2011, and his subsequent guilty plea and conviction. Also, in relation to his having willingly committed that offence in public view of the well-populated hotel precincts.
The onus of proving damages is on the plaintiff. Neither party argues that the Civil Liability Act 2002 (NSW) has application. The evidence of loudly arguing at the Tavern and of the affray is also not suggestive of his maintaining a lifestyle in the public arena of good reputation nor that he was a person of significant concern for maintaining a reputation of good character and behaviour. That he had previously come to the notice if the police on counts of PCA, Drive Whilst Disqualified and a charge of Deception is also not inconsistent with that picture. There is no evidence, for instance, that the plaintiff suffered any loss of reputation, but for the arrest which he would not have suffered in consequence of the affray at the Tavern within the community of Grafton in which he lived.
Significantly, the period of the arrest was for three hours and nine minutes and occurred in the presence of his girlfriend Ms Close.
I would assess compensatory damages in the sum of $2,000.00. Accepting the arrest as the starting point of the action, and that the evidence shows that police dealt efficiently and appropriately with the plaintiff during the three hours and nine minutes of his detention by the taking of Ms Close's statement followed by obtaining the ERISP interview; increased hurt to the plaintiff which might earn a Court's disapprobation of the police conduct is, in my view, not significant and accordingly I would assess $1,000.00 for aggravated and exemplary damages in total: see NSW v Ibbett (2006) 229 CLR 638; [2006] HCA 57 at [31], [34] and [35] and the approach summarised by Elkaim DCJ in Hage-Aliv v NSW [2009] NSWDC 266 at [256] to [258].
In total, I would award the sum of $2,000.00 for compensatory damages and $1,000.00 for a combination of aggravated and exemplary damages.
Any damaging effect of the arrest and detention, were they wrongful, in my opinion, ended on the plaintiff's plea of guilty on 20 June 2011. Given the very modest damages which I assess, I would allow interest for the intervening 5.3 years pursuant to CPA s 100; UCPR 36.7 rounded to 9%. This calculates to $1,431.00, making a total of $4,431.00.
Orders: 1. Judgment for the defendant; 2. Plaintiff pay the defendant's costs.

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