Pham v State of New South Wales

The facts

1. There were significant differences in the evidence concerning the central facts in the proceedings. The resolution of those differences requires an analysis of the less controversial events leading up to the arrest as well as of the evidence of the critical events themselves.
2. Mr Pham is, and was at the relevant time, the registered proprietor of the property situated at 521 Hume Highway Yagoona, NSW. The property is on the western corner of the Hume Highway and William Street. There was a single storey, brick clad house on the property and a driveway leading from William Street directly to the front door of the house. As at 13 December 2012, Mr Pham was not living at the property, but his fiancée and prospective mother-in-law (Ms Dinh), were living there. Mr Pham and his fiancée were due to be married on 22 December 2012.
3. In the months preceding 13 December 2012 Mr Kayrouz, a builder, was working on the construction of a pair of townhouses on William Street, Yagoona adjacent to Mr Pham's property. Mr Pham's evidence was that Ms Dinh had been the subject of ongoing abuse by Mr Kayrouz. He said that Mr Kayrouz had variously used water from Mr Pham's property, had asked if he could use electricity and had damaged a fence between the two properties. He said that the neighbour had abused Mr Pham's fiancée as well as himself. Ms Dinh gave evidence that she had initially allowed Mr Kayrouz to use her water but that he had left the water running and so had asked Mr Pham to put an "out of order" note on the tap to prevent further use. She said that she had subsequently refused Mr Kayrouz permission to use her electricity.
4. On 13 December 2012 Mr Kayrouz, or one of his workers, had parked his Nissan Navara, a black utility vehicle, in the driveway of Mr Pham's property. Mr Pham's evidence was that he saw the vehicle when he arrived at the property that evening. He said that he asked Mr Kayrouz to remove it but Mr Kayrouz tried to attack him and said he would call the Police. Mr Pham said he called 000 at approximately 7:53pm, in order to ask the Police to attend his property and was told not to approach him and not go outside.
5. The recordings of a number of 000 calls made by Mr Pham and Mr Kayrouz on the evening of 13 December 2012 were in evidence. The first recording was of a call made at 7:53pm. The recording shows the following relevant exchange between the 000 operator and Mr Pham [2] : … Pham: Yes I just report that someone invade into my property. Operator: What's happened? Pham: Someone invade into my property Operator: Someone, are they still there now? Pham: Yes. They still in my property. Operator: Whereabouts are they? Pham: They are, they just out, in the property Operator: Sorry I can't understand. Are they outside - are they in the house? Pham: Yeah they in the, they're not in the house, they're just, just outside the house. Operator: They're on your front lawn are they? …
6. The operator then obtained the address of the property before the conversation continued: … Pham: Could you send, send the police right away otherwise there's a murder. Please Operator: Yes I've got to get the location though. If I can't get the location I can't send them. What's your actual house address? 521 William Street? Pham: Hume Highway. … Operator: Okay so there's how many people on your front lawn. Is it 1 male? Pham: I think 1 male. Yes. Operator: Okay. So he's on your front lawn. What's he doing on your front lawn? Pham: This guy is just parking me in so many times. Can you come … Operator: Yes I'm sending police but does he have any weapons? Does he have any weapons? Pham: I don't think so. Operator: You haven't seen any weapons. And what's he doing on your front lawn? Pham: He may have. Operator: Okay but what's he currently doing? Pham: He's just - He's just got the car right in front of my house. Operator: He's got a car and he's sitting in a car? Pham: He's sitting in the car, yes. And he goes right to … front of the house. Operator: Okay so he's sitting in a car in front of your office on the Hume Highway, correct? …
7. The operator informed Mr Pham that he would get the Police out to the property before the conversation ends in the following way: … Pham: Very dangerous. Operator: Yes Okay. I'm getting police out to you. Pham: Thank you. Operator: Bye bye.
8. The record of the telephone call reveals that the conversation took approximately four minutes.
9. It is worth pausing to comment on a few matters about this call. First, Mr Pham's tone was increasingly emotional. Secondly, he either exaggerated or had fabricated a number of matters: there was no invasion of his property, Mr Pham knew precisely who the person on his property was and that there was only one person; there was no suggestion at all of any weapon let alone murder and it was Mr Pham, not Mr Kayrouz, who had parked in the other's car. This suggests, at the very least, that Mr Pham had a distorted view of the events and that his emotion was preventing him from accurately responding to questions. Alternatively, he was simply lying to get his own way.
10. Mr Pham's evidence was that Mr Kayrouz knocked violently on the door again at around 9:00pm and Mr Pham again called 000.
11. The recordings show that a call was made by Mr Pham at 9:01pm in the evening and took a little over one minute. After stating his address in a very excited and anxious manner, Mr Pham said, "This is very dangerous. Please." He was almost hysterical by this time and yelling into the telephone.
12. The operator asked what happened and then the telephone call was terminated. It appears as though that Mr Pham was the person who terminated the call. There is a recording of another telephone call made by Mr Pham at 9:01pm. I infer that this call followed shortly after the first call at 9.01. In it, he sounds fairly calm at first, but his tone quickly becomes more emotional and agitated. In this call the following conversation took place: … Pham: This guy been driving, threatening us so many times and now he got his car really going right into our house. And this … escaping, still doing this … we can't tolerate this. It's danger. It's very dangerous. Operator: What's he doing? Pham: I think he try to get the car right into our house. Operator: Into your driveway? Pham: Not in the drive - right through the door. Even took it very close to the door. Operator: Who is he, do you know? Pham: Oh this guy I don't know. He's … I so strange it's a very danger. Operator: Alright. I'll send police. So where is he now? Pham: I don't know. I don't know. … right outside. Operator: Okay. So has he left? Pham: … in the house. Operator: Sir. Has he left? Pham: I don't know. I don't know what happened outside. Operator: Alright. I'll send police out to you. Thank you. Bye bye. Pham: Debbie. Thank you.
13. I note again that Mr Pham pretends that he does not know who Mr Kayrouz is and, in particular, does not say that he is the next door neighbour.
14. At this point it is necessary to divert briefly to explain how the police officers came to be involved in the incident at Mr Pham's property.
15. On the evening of 13 December 2012, Constable Ferreira [3] and Leading Senior Constable Simonit [4] (LSC Simonit) were both police officers undertaking general duties work in the Bankstown Local Area Command working the night shift in uniform. They had commenced their shift at approximately 6:30pm and were driving a fully marked Hyundai van identified as "Bankstown 15". Constable Ferreira was driving the van and LSC Simonit was in the passenger seat. As part of her responsibilities, LSC Simonit filled out a job sheet [5] which showed the time at which each duty was commenced and finished. This sheet reveals that on the evening of 13 December 2012, Constable Ferreira and LSC Simonit had undertaken a number of jobs including an assault at Bankstown and a sexual assault at Georges Hall.
16. In the police vehicle there was a computer which gave the officers certain information about jobs that were reported to them over the radio. At around 9:00pm Constable Ferreira became aware of a job at Mr Pham's property. His evidence was that they were not able to attend to that job immediately because they were diverted to a job involving the welfare of a young child which had greater priority.
17. At 9:19pm Mr Kayrouz made a 000 call. After Mr Kayrouz had given his name and address, there was the following exchange: … Kayrouz: Yep. I'm building job there and the boys - every day they park in the neighbour, where my neighbour is they park every day sometimes there and I told them move their car and after the lady come and she tells me fine but okay park, park in the side. Operator: Hmm. Kayrouz: We park in the side and today what's happened one of the boys, because they moved the car, they moved my car and put it, they put it on the driveway of that person and he come that person to his house and my car was in the driveway, he tell me you fucken, why is, he tried to, I'm not trying to be smart I said 2 hundred million percent … He tell me oh you put your car here and I told him and he start whinging in the wrong way, he started saying something wrong for me. I told him listen to me, don't speak that language, speak in the right way and I'm going to move my car, I apologise for that. He starts screaming and I come to the car to move it and it was, he put his car behind my car, I'm stuck here for 3 hours. He doesn't move his car, he call the cops police are not coming. Operator: Right. Kayrouz: I can't go home. Everyone left. I'm still a few hours here at the job - in his driveway. Operator: Yep. Kayrouz: I can't move my car, I can't move my car. Operator: You can't get out. Kayrouz: When I come to my car he comes all crazy, yeah, yeah, yeah, now I'm out of battery now, I come to my car, I sit in my car and I charge the, I'm not a trouble maker, I never have any problems and his wife she give me the permission to park, she tell me park that way here. Operator: Yep. Kayrouz: They're Chinese. And if I have any record I lie one word and the word guy is I think Greek guy or Macedonian guy that why he move my car and I was inside because I have plenty work at the site. I don't realise where my car is, if it's legal, if it block the driveway or it's in the side, in the side. I don't like that. I come and he starts screaming and he's upset. Operator: Okay. And the wife gave you permission did she? Kayrouz: Yeah his wife 100% give me permission, tell me park there, she doesn't, she doesn't speak that much English, she tell me don't park here, or park there, not my car the boys. And the boys move my car and they put it in the driveway before the carpenter. …
18. This telephone call lasted a little over six minutes. Mr Kayrouz's tone is calm, but tired and a little frustrated. This stands in stark contrast to the emotional nature of Mr Pham's 000 calls.
19. At 10:07pm Mr Kayrouz made a further telephone call to 000. After identifying himself and the issue in question, Mr Kayrouz was asked by the operator where the people in the property were. The following conversation ensued: … Kayrouz: Inside the house and every minute they come and they punch the door from inside and … I don't know what is going on - and they come and … they do it like that with his hand to me and I'm sitting in the car. … Operator: So has the situation changed since 9:30 when you rang us? Kayrouz: No. I'm still … I'm still sitting in the car. He come before 5, … before 20 minutes - he come he try to take picture for me - I put my head down and he tried to give some other, I don't know, … playing in his finger like I don't know … I don't talk to him. …
20. Later in the conversation the recording reveals that Mr Kayrouz knocked on Mr Pham's door: … Kayrouz: Now I'm going to come to his house, knock the door and tell him to open, to move the car because I can't wait anymore. I have to go. Operator: Alright. What's your phone number John? Kayrouz: Can you stay will me? Can you stay with me? I will … I knock the door because he tried to say something. Operator: Okay. Kayrouz: After I … Operator: Okay. Kayrouz: [Knocking on door] Speak to the police mate. Hello. See … the door. Hello? Operator: Hello. Kayrouz: Yes if he, … he closes the door if I can say I do it. …
21. Mr Kayrouz was, by this time, clearly very frustrated; however his tone remained relatively even.
22. Mr Kayrouz called 000 again at 10:34pm. After identifying himself and his location, Mr Kayrouz explained that he has been waiting for three hours and was very tired. Once again, while the operator was on the telephone, he knocked on Mr Pham's door attempting to get him to move his car. The recording reveals the following conversation: … Kayrouz: I try to knock the door and talk to him. Operator: You've tried to lock the door? Kayrouz: Yes. Operator: Yeah. Kayrouz: [Talking to third person] Hey this is the police mate. I like. I wanna go home mate. Third person in background: Don't do that mate. What did you? Kayrouz: I wanna go home mate. Open the door for me. Move the car. …
23. This conversation takes a little over 2 minutes and 21 seconds. Once again Mr Kayrouz, although very frustrated, speaks evenly and calmly.
24. Mr Kayrouz made a further call to 000 at 10:39pm. He told the operator that Mr Pham was screaming and he does not know what is happening. He said that he was outside on the street and was told that the next available car will come to him but that he could not be given a time. This telephone call took a little over two minutes. Once again, Mr Kayrouz, although increasingly frustrated, sounds even tempered and informative.
25. Mr Pham made another telephone call to 000 at 10:40pm. After some introductory conversation the following ensued: … Pham: He just come and he just come and hit into our door, with the danger, very dangerous. Operator: So he came and what sorry, hit on your, he knocked on your door? Pham: He's been hit the door, no, no he's damaged the door. Operator: He damaged the door did he? Where's he now, is he still there or has he left? Pham: I don't know. You asked me to stay in the home and I don't know what happened out there. Operator: Okay, well … … Pham: … so dangerous. Please. Operator: What's your name? Pham: David. Operator: Okay David I need you to calm … Pham: … Operator: David, David you let me know when I can talk okay? Can I actually say something now? Pham: Can talk. Operator: Excellent, now what I … [telephone call terminated]
26. Mr Pham is highly emotional throughout the conversation and yells over the operator. This conversation, which took 1 minute and 50 seconds appears to have been terminated by Mr Pham. Given the timing of the call, it is most likely that in this call Mr Pham was referring to the knock on the door by Mr Kayrouz during the call made by Mr Kayrouz to 000 at 10:39pm. There was in fact no evidence that the door was damaged and from the recording Mr Kayrouz did no more than knock normally on the door.
27. At 10:47pm Constable Ferreira made a telephone call to Mr Pham while he was still at Georges Hall attending to the child welfare matter. According to his evidence he introduced himself as Constable Ferreira from the Bankstown Police and asked Mr Pham to tell him more about the incident. Mr Pham replied in words to the effect, "it's very dangerous, come quickly". After Constable Ferreira explained that he was at another job, Mr Pham again said words to the effect of "it's very dangerous, come quickly" before terminating the call. Constable Ferreira gave evidence that Mr Pham's voice was agitated, emotional and that he was speaking in elevated tones. That is consistent with the recordings of the 000 calls made by Mr Pham.
28. At 10:53pm Constable Ferreira telephoned Mr Kayrouz. After Constable Ferreira had introduced himself, Mr Kayrouz said that he had been waiting for hours for Mr Pham to allow him to move his car. Constable Ferreira's evidence was to the effect that Mr Kayrouz said [6] : "…he's crazy, he threatened to stab me. I just want to go home and take my car and go home." Constable Ferreira's impression of Mr Kayrouz was that he was "respectful, calm, he was helpful" [7] .
29. At 10:57pm Constable Ferreira had a further telephone conversation with Mr Pham. Again he introduced himself. Mr Pham admitted to parking Mr Kayrouz in, but when Constable Ferreira asked him to move his car, Mr Pham said "No". Mr Pham then said, "it's very dangerous, you need to come right away". Constable Ferreira said that Mr Pham was unresponsive to questions and said that he said words to the following effect to Mr Pham [8] : "Mr Pham … there's been an allegation that you threatened to stab this other fellow. So if, if I have to be there to investigate that, that's far more serious and that, and if I have to investigate that, that may result in your arrest." and "If I have to investigate the allegation of intimidation that may result in arrest."
30. Mr Pham's evidence about this telephone call was that Constable Ferreira had said to him words to the effect of "if you don't move your car by God I will come over and arrest you" [9] . Constable Ferreira denied ever saying that [10] .
31. At 10:59pm Constable Ferreira again telephoned Mr Pham. Immediately after he introduced himself Mr Pham hung up. At 11:00pm and again at 11:01pm, Constable Ferreira rang Mr Pham and identified himself, trying to talk to Mr Pham but on each occasion Mr Pham hung up.
32. At 11:01pm Constable Ferreira telephoned Mr Kayrouz to give him an update of what was happening and told him to stay away from the house. During that conversation Mr Kayrouz told Constable Ferreira that he had heard a woman screaming inside the house while he was outside.
33. Constable Ferreira gave evidence that he formed the impression from his conversations with Mr Pham and Mr Kayrouz that the plaintiff was highly aggressive, highly unreasonable, combative and hostile, whereas Mr Kayrouz was at all times respectful, calm, helpful and provided the information requested by Constable Ferreira [11] . He gave evidence that he suspected at that point that what had begun as a parking complaint had evolved into a more hostile situation involving an intimidation offence and that he considered that Mr Kayrouz was the more credible of the two people to whom he had spoken [12] .
34. At this point in the chronology the versions of events become quite different. For that reason, it is necessary to set out the evidence of each of the witnesses in respect of the relevant events.

Mr Pham's evidence

1. Mr Pham's evidence was that two people came to his house dressed in police uniform. The male person said something to his mother who had answered the door but, as his mother did not understand English, the man called out "David Pham". Mr Pham said he replied "yes". The man told him to move his car and then grabbed him and pulled him across the road saying to him "you trying to be hero tonight" before putting him into the police car and searching him.
2. He said that the officer located car keys in Mr Pham's pocket and then removed the car and let the neighbour move his own car. Mr Pham then said that the officer told him, "I won't charge you this time". Mr Pham who said he was afraid that the police might taser him to death asked whether he could go to the Police station to make a statement. At that point he said the officer pulled him out of the van, kicked him to the ground and in doing so the officer cut his hand. The officer than spread blood on Mr Pham's shoulder, arm and chest.
3. Under cross-examination Mr Pham said that when the two officers came to his door he was not sure if they were real police and thought that they could be criminals. He was afraid because he had been told in an earlier telephone conversation with one of the officers that he would be arrested. He said that he was shocked and afraid and had acted very politely.

Ms Dinh's evidence

1. Ms Dinh said she arrived home on 13 December 2012 at approximately 10:00pm and saw her neighbour's car parked in their driveway. She said that she was in the house when the Police arrived and she answered the door. One of the police officers asked for David Pham. Mr Pham, who was behind her inside the house said, "I am David Pham". Ms Dinh said that the Police then immediately handcuffed Mr Pham and took him away. She said that she was so scared that she ran into the kitchen saying "no, no, no, no" and that one of the police officers, a male, followed her speaking in English.
2. Ms Dinh understood very little English at the time and did not understand what the officer was saying. Later she saw her neighbour giving her what she described as a "triumphant smile" and getting something from his wallet and then handing it to the male police officer who put the item in his pocket. She said that she saw a police officer push her son to the ground and then swipe him on a number of occasions with his finger. Ms Dinh demonstrated this a number of times with her forefinger, waving it back and forth and up and down in front of her. Ms Dinh said that she had been standing at the front door of the house until then, but at this point went towards the police vehicle saying "why, why, why" to the female officer.

Constable Ferreira's evidence

1. Constable Ferreira gave evidence that he and LSC Simonit arrived in the police van at William Street, Yagoona at approximately 11:45pm. He parked the van on William Street on the opposite side to Mr Pham's property. After he had exited the police vehicle he saw a person directly in front of the police vehicle across the road who he spoke to briefly and learned was Mr Kayrouz. He suggested to Mr Kayrouz that he stay out of sight so as not to aggravate the situation. Mr Kayrouz did as he asked.
2. Constable Ferreira and LSC Simonit than walked across the road to Mr Pham's property. He saw Mr Kayrouz's black utility in the driveway with another vehicle parked hard up against the rear of it. He then knocked on the door and Mr Pham answered. Constable Ferreira than became aware that there were two females of Asian appearance standing within the premises just slightly out of view. Mr Pham came out of the residence and was facing Constable Ferreira approximately one foot away from the door. He said that he had the following conversation Mr Pham [13] : Ferreira: Mr Pham, is that your vehicle parked behind that ute? Pham: Yes. Ferreira: … That ute is not your vehicle, is it? Pham: No. Ferreira: Sir, can you move your vehicle? Pham: No. It's very dangerous. Ferreira: Well, sir, I'm happy to take your report but first, can you just move your vehicle. There's no other reason for the other fellow to be here. If you move your vehicle I can take your - your complaint.
3. Constable Ferreira said that Mr Pham was highly agitated and was yelling words at him that he did not understand. Constable Ferreira said finally [14] : Ferreira: Mr Pham, will you now move your vehicle? Pham: No, no, no, no. The car stays here.
4. Constable Ferreira said that Mr Pham was gesticulating with his hands and he appeared to be clenched and angry. He was a distance of maybe a metre away from Mr Pham. This conversation took approximately 30 seconds.
5. Constable Ferreira then turned his head to the right looking into the premises attempting to speak to the women and said "can anyone else here move this car?"
6. There was no response to his question except that Mr Pham immediately reached out with his right hand and grabbed Constable Ferreira's appointments belt. He had grabbed the belt at the point where the handcuffs holster was [15] . Constable Ferreira than said "get your hands off me."
7. Mr Pham retracted his hand straightaway and took a step back. Constable Ferreira said that he believed that Mr Pham had just assaulted him and formed the view that there was merit in what Mr Kayrouz's had been saying. He said that Mr Pham was yelling in another language at the occupants inside the house and that in response to that the two females screamed and then retreated into the house. Constable Ferreira said that he felt that the situation had deteriorated beyond his control and that he had fears for his personal safety. He believed that Mr Pham was acting highly aggressively and that he had assaulted him without any provocation and that he was completely taken aback by his action.
8. Constable Ferreira said that he suspected at that point that Mr Pham may have committed the offence of intimidation under the Crimes (Domestic & Personal Violence) Act 2007 (NSW) and under the Crimes Act 1900 (NSW) [16] . The aspect of Mr Pham's conduct that he considered to have constituted that offence were the threats to stab and his hostile and aggressive behaviour expressed to Constable Ferreira and that the offence of intimidation included the unlawful deprivation of Mr Kayrouz's vehicle over a period of time.
9. Constable Ferreira said that he then thought that Mr Pham was going to retreat within the house and so said: "My name is Constable Ferreira from Bankstown Police. You're under arrest on suspicion of intimidation. You don't have to say or do anything if you don't want to. Do you understand that?" [17]
10. Mr Pham continued yelling in another language and as he was saying the words set out above, Mr Pham was taking a step back. Constable Ferreira reached out to take hold of Mr Pham's wrist but he snatched it away from his grip, so Constable Ferreira took a second swing, grabbed the hand of Mr Pham and took hold of it with his right hand. He then continued to say: "You don't have to say anything but anything you say can be used as evidence in court."
11. Constable Ferreira then applied his handcuffs to Mr Pham, his wrists in front of his body.
12. At this point, Constable Ferreira and Mr Pham were facing the same direction and Constable Ferreira placed his right arm underneath Mr Pham's armpit area and took hold of his forearm. Mr Pham dropped his weight towards the ground and Constable Ferreira used his own strength to prop him up and began walking towards the police vehicle. He believed that LSC Simonit took a position on the other side of Mr Pham's body in the same way. He said that they took Mr Pham towards the waiting police vehicle on the other side of the road and that Mr Pham continued yelling in another language to the female occupants in the house. Mr Pham was not cooperating at that point but just letting himself drop. When they reached the rear of the police vehicle, Constable Ferreira put this search gloves on and searched Mr Pham's clothing for anything that might be used to harm Constable Ferreira or to aid Mr Pham's escape. During the course of the search he located a set of keys and removed them from his clothing. He then placed Mr Pham inside the rear of the police vehicle, shut the door and bolted it with Mr Pham inside.
13. At that point, the female occupants of the house were standing just outside the fenced area of the property near the road and Constable Ferreira pointing to Mr Pham's vehicle, said to them "can you move this vehicle?"
14. The younger female shook her head and said "No, no, no". At that point Constable Ferreira then got into the driver's seat of the vehicle, turned on the car and reversed it out, parking it on the roadway in front of the house adjacent to Mr Pham's.
15. Constable Ferreira then spoke to Mr Kayrouz indicating the following conversation [18] : Ferreira: Mr Kayrouz, I need you to give me a statement about what's happened tonight. Are you willing to give me a statement and come to Court? Kayrouz: Yes, no problem. But I'm really tired, I've been here all day. Can I go home? Ferreira: Yes, no worries. Can you give me your ID?
16. Constable Ferreira says that Mr Kayrouz then gave him his driver's licence and that he took out his police notebook and a pen and wrote down his details including his telephone number in the notebook. The notebook is in evidence and shows an entry relating to Mr Kayrouz, his driver's licence and telephone number [19] . Mr Kayrouz then drove his car from Mr Pham's property and left the area. At that point, Constable Ferreira decided to "unarrest Mr Pham" because he felt that there was no further threat to Mr Kayrouz and the emergency had disappeared. He also thought that if he had to charge Mr Pham in the future he could proceed by way of court attendance notice and that the breach of any peace had at that stage gone. Accordingly, he proceeded to the rear of the police vehicle and unlocked the door.
17. Mr Pham was standing inside the police vehicle facing Constable Ferreira and the following conversation ensued [20] : Ferreira: Mr Pham you're free to go. I'll speak to you about what happened later. Pham: No, I'm staying here. You take me to the station and charge me. Ferreira: Get out of the car. Pham: No.
18. Constable Ferreira than said that he took hold of Mr Pham to remove him from the vehicle taking hold of the handcuffs. At that point Mr Pham snatched his hands back and in doing so caused an injury to Constable Ferreira's thumb. He did not feel any pain at that point but it was bleeding freely. Constable Ferreira then took hold of Mr Pham by the right forearm and by the front of his shirt and pulled him out of the vehicle. Mr Pham was resisting and so Constable Ferreira used his force to pull him out and Mr Pham stepped down without falling to the ground. Constable Ferreira then directed Mr Pham to get off the road so that he could take the handcuffs off and Mr Pham said "No".
19. Constable Ferreira then physically moved Mr Pham onto the footpath immediately to the side of the vehicle. He did this by placing the calf of his right leg to behind Mr Pham's leg and then unbalancing him and sitting him down where he stood. He explained that that was a technique called the "take down manoeuvre" and that he "basically carried him down until he sat on his bum on the ground" [21] . Constable Ferreira then saw that the blood from his thumb had streaked across his hand and some of it was on Mr Pham's shirt.
20. Mr Pham then began yelling again in another language and the two females came running towards him and Constable Ferreira stopping about three metres away. LSC Simonit took out her OC spray and pointed it in the direction of the two females. Constable Ferreira then removed the handcuffs and he and LSC Simonit disengaged from the scene. Mr Pham ran from where he had been standing to the front of the police vehicle yelling in another language and the younger of the two females came to the side of the vehicle and physically opened the door.
21. The officers then left the scene and returned to Bankstown Police Station where Constable Ferreira's injury was attended to. Early the next morning at approximately 6:17am, Constable Ferreira entered a record of the events of the evening into the police computer system, COPS, a copy of which was in evidence [22] .

LSC Simonit's evidence

1. LSC Simonit gave evidence that her recollection of the evening of 13 December 2012 was average. She explained that she remembered some things but not everything [23] . Her evidence was that prior to attending at Mr Pham's residence she understood that the incident was a parking complaint and that the occupier of the property had blocked in the vehicle of a builder. She recorded the running sheet for the evening which stated that she and Constable Ferreira arrived at Mr Pham's property at 11:45pm. LSC Simonit said that she and Constable Ferreira walked up to the top of the driveway and, although she could not remember whether they knocked on the door, she did recall that there was a group standing at the top of the driveway in front of the builder's car. She recalled that immediately behind that car was another vehicle parked on the property and that the builder's car was parked approximately two metres from the front of the house.
2. The group of people consisted of LSC Simonit, Constable Ferreira, Mr Pham and two females. There was a conversation in which LSC Simonit recalled Constable Ferreira asking Mr Pham to move his car although she did not have a memory of the full extent of the conversation. Her recollection was that Constable Ferreira was very polite and said "Sir, can you please move your car?", Mr Pham then said "No". LSC Simonit said that she believed Constable Ferreira asked the question a number of times and then asked the two females if they could move the vehicle and that they both said "No". Constable Ferreira's voice was calm and passive whereas Mr Pham's tone was aggressive and he was yelling very loudly.
3. LSC Simonit next remembered Mr Pham grabbing Constable Ferreira's appointments belt although she could not remember exactly where he grabbed onto it. She then recalled that Constable Ferreira said to Mr Pham "You're under arrest for intimidation" [24] . She said there may have been a short period where there was more conversation between the grabbing of Constable Ferreira's belt and the arrest and she no longer recalled anything else being said during the arrest period. LSC Simonit recalled that Constable Ferreira was acting very calmly and professionally and that she was not needed to step in as he was dealing with the matter on his own [25] .
4. LSC Simonit recalled Constable Ferreira going to handcuff Mr Pham and that Mr Pham took a step back and that Constable Ferreira placed the handcuffs on his front. Mr Pham was still screaming at that stage and the two females were screaming and wailing as well. After being handcuffed, Mr Pham was escorted down the driveway to the police vehicle across the road. Mr Pham and Constable Ferreira were both standing and walking upright and there was no dragging or anything like that as she recalled. LSC Simonit recalled that her role was to keep the two females away because they were very, very loud and vocal and she was concerned that they might interfere [26] .
5. After Mr Pham was placed in the back of the police vehicle she recalled him yelling out "I'm a doctor, I'm a doctor". The door was then closed and Constable Ferreira walked away towards the house and LSC Simonit remained at the back of the caged vehicle with Mr Pham.
6. LSC Simonit said that she could not recall the sequence of events at that stage, but that at one point the women were in the middle of the road and she was telling them to get back, but she was not sure at which stage that was. She explained that the women were then walking towards the police vehicle screaming and that she was telling them to get off the road. She recalled removing her OC spray and threatened them but did not use it.
7. She recalled Constable Ferreira opening the back of the caged door and asking Mr Pham to get out of the caged vehicle. Mr Pham refused yelling "take me to gaol" or "take me to the police station, charge me".
8. Constable Ferreira then tried to physically remove Mr Pham from the caged van and may have reached in to try and move him out or pull him out because he was not moving. LSC Simonit said that Constable Ferreira definitely did not kick Mr Pham and that he did not act in any unprovoked manner but was acting very professionally and was very calm. By contrast again, Mr Pham was the total opposite, he was erratic, aggressive and non-compliant [27] .
9. LSC Simonit noticed that there was a small cut on one of Constable Ferreira's hands and it was bleeding but she did not see him intentionally smear any blood on the plaintiff.
10. When she and Constable Ferreira were walking away, LSC Simonit said that one of the two females opened the passenger door where she was sitting and grabbed her arm and seatbelt yelling out about a mobile telephone being missing.
11. LSC Simonit said that she took over the investigation on around 9 January 2013 and made a number of attempts to contact Mr Kayrouz. She was unable to obtain a statement from him and because of that, she took no action against Mr Pham [28] .

COPS record

1. Shortly after 6:00am on the morning following the arrest, Constable Ferreira made an extensive entry into the electronic record system kept by the New South Wales Police Force (COPS) as follows: "The victim in this matter is a builder who is currently working on a construction site next to the above location at 248 William Street Condell Park. Prior to this the victim claims that he had permission from the female occupant of 250 William Street, Condell Park, to park his private vehicle BD24VN (NSW) in the driveway of these premises whilst it was unoccupied. On this date the victim did indeed park his vehicle in that driveway believing that he still had permission to leave his vehicle there while he undertook construction next door. About 6:00pm the victim attempted to retrieve his vehicle and return home when he noticed that another vehicle, XLK723 (VIC) was parked hard up behind his own vehicle preventing his exiting. Owing to the shape of the driveway being a battleaxe the victim was unable by any other means to remove his vehicle without damaging his or other property. The victim knocked on the door of 250 William Street and was answered by the POI, who instantly became very abusive towards the victim. The victim requested that the POI move his vehicle so that he could remove his own but the POI refused angrily. The victim claims that during this time the POI threatened to use a knife against the victim and threated to kill him, although at no time was the POI seen to wield a knife. Both parties have contacted police several times thoughout [sic] the space of about 6 hours. The author acknowledged the job but was unable to attend speedily owing to an onerous workload. The author contacted the POI and advised that there would be a delay, to which the POI repeated that the situation was in his opinion 'very dangerous' and refused to answer further questions, demanding that police attend quickly. The author contacted the victim who advised police that he was waiting for hours for the POI to allow him to remove his vehicle from the premises. He claimed that the POI's aggression towards him had resulted in a female occupant within screaming out to the POI in distress and a younger female also. He stated that he had walked away from the scene fearing a violent confrontation and would wait for police to attend prior to returning. The author contacted the POI and advised that if he removed his vehicle from the driveway the victim would have no further reason to remain at the property, however the POI simply demanded police attend quickly and terminated the call. The author called the POI several times to try and resolve the situation reasonably and calmly, but the POI responded with hostility towards him, terminating calls and making further demands that police attend. The author advised the POI by phone that if the matter should not be resolved by the time of police attendance the POI would be the subject of a police investigation regarding the threats he allegedly issued to kill the victim, which might result in his own arrest. At this, the POI once again terminated the call. Eventually police were released for other duties and attended the scene. The author saw that the victim's vehicle was effectively parked in with no other means of being removed as the POI's vehicle had completely blocked all exit. The victim was seen in the vicinity and was asked to remain concealed and remove himself a short distance away. Police knocked on the door and introduced themselves. The POI answered the door and was seen to be highly aggravated. The author asked the POI to move his own vehicle so that the other vehicle could be removed from his driveway, to which the POI replied, "No, No, No, No. The car stays here." The POI would not listen to reason and despite the authors attempts to peacefully negotiate the removal of the victim's vehicle the POI simply yelled over the top of the author's voice. The author turned to the female occupants to elicit help in removing the vehicle, to which the POI physically took hold of the author's appointment belt by the handcuff holster. The author issued a firm direction to the POI to not touch him, which resulted in the POI letting go. The POI then began yelling in another language towards the female occupants which had the result of causing them to withdraw into the inner rooms of the premises. Fearing that the situation was deteriorating rapidly, and now finding merit in the allegations raised by the victim in relation to the POI's behaviour, the author advised the POI that he was now under arrest on suspicion of intimidation. He was cautioned, with all safeguards to section 201 of the Law Enforcement (Powers and Responsibilities) Act 2002 applied and adhered to. The POI immediately took a step back and the author seized upon the POI's wrists, who reacted by twisting his torso away. However he was quickly restrained and led into the rear of the waiting policed caged vehicle, being resisted every step of the way. The POI was searched prior to being placed into the caged section, which resulted in the keys to the POI's vehicle being located. When the POI saw that the keys were in the author's hand the POI began yelling loudly in another language towards the house, which resulted in the female occupants exiting to the front and beginning to wail and scream loudly and uncontrollably. The author offered the keys to either female occupant to remove the vehicle, however they both declined. The author thus entered the vehicle and without incident reversed out of the driveway and parked it directly outside the premises, sufficient to allow the victim's vehicle to be removed. The victim removed his vehicle with police remaining nearby to prevent any breach of the peace, parking it onto the street. The victim was asked if he wished to provide a statement to police in relation to this matter. Having regard to the positive outcome the victim placed himself at the disposal of police but apologised that he was very tired, having had to wait for hours at the scene due to the POI's actions. He stated that if police requested at a later stage he would happily provide a statement. The victim left the location and the POI was advised that he was no longer under arrest and charges would not be laid on this date. With no other reason to detain him and no further breaches of the peace occurring, the POI was advised that he was free to leave. The POI replied "No, I'm staying here, you take me to the station and charge me!" The author said, "Get out of the car", to which the POI said, "No!". The author attempted to physically remove the POI from the rear of the caged vehicle, but the POI snatched his hands away, causing a bleeding injury to the author as a result of being cut by the handcuffs. The author took hold of the POI by the clothes and right arm and dragged him from the Police vehicle, with the POI dropping his weight onto the roadway. The POI was pulled onto the footpath and directed to sit down so that the handcuffs could be removed. The POI refused, and as such the author used a 'take-down' manoeuvre to gently place the POI on the footpath. About this time the author noticed that he had a freely bleeding 1cm laceration to his right thumb. The POI yelled out in another language towards the female occupants who then ran towards police also yelling in another language. They were directed to 'get back', with police drawing a cannister of OC spray. This had the desired effect of keeping the females at bay while the POI was able to be un-handcuffed. With the handcuffs removed police attempted to leave the area but were hampered by the POI and the females, who stood in front of police, opened the police vehicle passenger door, and stood in front of the police vehicle as it attempted to leave. As the author was suffering an injury which and the situation having deteriorated due to the POI's incitements, hostility and aggression police disengaged tactically to consider other options and seek medical attention. The POI was at all times wholly unreasonable and displayed a complete disregard towards police authority. The author will seek to determine what charges if any are to be laid in relation to this matter. Warnings added to vehicle, location and POI. …"

Findings on credit

1. Neither Mr Pham nor Ms Dinh were credible witnesses. Ms Dinh's evidence appeared to have been well rehearsed rather than given from her own recollection. The core of what she said happened was repeated by her on several occasions and focussing in particular on her own reactions to what occurred [29] . She admitted to having discussed the incident with Mr Pham [30] . That much is not surprising; however, on several occasions she gave evidence of what had been said in English [31] when she said that she had not understood what was said. She later explained that her son had told her this [32] but I was left with the impression that a large part of her evidence was not her own.
2. In addition, some of Ms Dinh's evidence did not make sense. For instance, she explained under cross-examination why she was so frightened when her son was handcuffed and taken away. She said that she was frightened because she did not know who would act as her interpreter. This does not make much sense because on her own evidence nothing of any substance had been said prior to the point of which Mr Pham was handcuffed. It may be understandable that a person would be upset that their future son-in-law was arrested but the reason given by Ms Dinh once again focussed on her own reaction. Similarly, her evidence that the male officer followed her into the kitchen after her son was arrested does not make sense as the only male officer was, on every other account, the arresting officer.
3. Finally, the evidence that Ms Dinh saw a police officer swipe his finger onto Mr Pham suffers several difficulties. First, it was her evidence that she saw this occur when she was standing at the front door to the house and Mr Pham and the police officer were on the other side of the street. Although she estimated that the distance between the front door and where Mr Pham was at that time was no more than 10 metres, I do not accept that. The driveway to the house was at least long enough to contain two cars, one of which was a large utility vehicle. It may be deduced that the driveway was at least 10 metres to the fence line itself. There is then another couple of metres before the fence line and the curb and then the road was at least 4 car widths wide, in other words, the distance between the front door and the place where Mr Pham was standing must have been at least 25 metres. Given that this occurred at 11:45pm, and there was no indication that the area was well lit, it must have been very difficult indeed for her to see such small movements of a finger at that distance. Nevertheless, she was insistent that that occurred. The only thing that supports those movements were some blood marks on a shirt said to have been worn by Mr Pham at the time. I do not accept her evidence that she saw that occur.
4. Mr Pham's credit was undermined in two important ways: first, the way in which he answered, or at least responded to questions; and secondly, that his evidence was inconsistent with the objective evidence and, in some respects, highly improbable.
5. Mr Pham's attitude towards giving evidence was to repeat, almost without variation, the precise events upon which his claim was based and when questions went beyond the scope of what he considered to be relevant to the proceedings he simply refused to give evidence. On many occasions his answers to questions under cross-examination were simply non-responsive [33] . On no fewer than four occasions he was directed to answer questions under cross-examination. On one occasion, having been so directed he sat forward, closed his eyes, and repeated parrot-like in response to each question "I do not recall" [34] . That attitude infected the whole of his evidence and I found it difficult to accept that he made any real effort to tell the truth.
6. Mr Pham's evidence that he was calm throughout the evening and that the danger was presented by Mr Kayrouz's conduct was at odds with the recording of his calls to 000. As I have observed, he quickly became emotional during those calls and he descended into an agitated state of hysteria, almost screaming at the operator. That conduct was entirely consistent with the observation of him by Constable Ferreira both during his telephone conversations with Mr Pham and when he was at Mr Pham's property.
7. Further, Mr Pham's account of his arrest was improbable in the context of the objective circumstances. On his version, Constable Ferreira simply grabbed him and arrested him without any introduction or indeed, without any reason. That is despite the fact that until that evening Constable Ferreira had not known Mr Pham and had in a number of telephone calls to both Mr Pham and Mr Kayrouz attempted to resolve the situation in a calm and professional manner.
8. There were only two possible explanations on the evidence for such rash conduct: first, Mr Pham's evidence that Constable Ferreira had told him that he was going to arrest him and he was simply carrying out that threat; and secondly, the faint suggestion in Ms Dinh's evidence that Mr Kayrouz had bribed Constable Ferreira. That suggestion can be put to one side. Constable Ferreira's notebook supports Constable Ferreira's evidence that the only thing Mr Kayrouz gave him was his driver's licence. The notebook contained the details of that licence as well as Mr Kayrouz's telephone number [35] so that he could be contacted in order to obtain a statement. I also reject the first explanation. Constable Ferreira did mention the possibility of arrest when he spoke to Mr Pham by telephone but that involved no threat and, given the other difficulties with Mr Pham's credit, I find that Constable Ferreira did not make any threat.
9. I also found Mr Pham's evidence of his belief that the two police officers might be criminals and that he might be tasered to death was fanciful. The only explanation given by Mr Pham for the first of these beliefs was that he had been told on the telephone that he was going to be arrested. However, I cannot see the logical connection between that statement and the belief that the person who made it might be a criminal. It is more likely that Mr Pham simply made this up to embellish his story, just as he had embellished what he told the 000 operator and Constable Ferreira on the telephone.
10. Mr Pham's evidence that Constable Ferreira kicked him and broke his ankle was inconsistent with other evidence. First, he accepted under cross-examination that he went to work the following day and worked for 7.6 hours. He also worked the following week and on Christmas day and Boxing day having had some time off for his wedding. Although he went to see his doctor on 15 December 2012, he did not tell him that he had been kicked and the Doctor diagnosed a "twisting injury".
11. Further, although of less importance in some respects, his documentary evidence was simply misleading. One example of this was a record of what he said was his annual earning as at November 2012. This was a record from South Coast X-Ray Trust, which showed that his annual earning was $158,080. When he was cross-examined on this it was suggested to him that that was not in fact his annual salary and that that reflected only a short period during which he was working on a trial basis. At first he denied that and seemed to say that he would only ever work at the rate of $80 per hour. The documentary evidence however, revealed that Mr Pham, as he eventually accepted, had in fact worked for a brief period at $80 per hour but was subsequently employed at $65 per hour, making his annual salary roughly $127,000 per annum. In addition, Mr Pham's claim that the events of the evening of 13 December 2012 caused him such upset that he was unable to properly fulfil his professional responsibilities was inconsistent with the evidence which established that he had been unable to properly fulfil his role as a sonographer well prior to December 2012. It is unnecessary to explore in any detail the reasons for which Mr Pham lost his previous job and it suffices to say that there were adequate reasons based on his conduct.
12. By contrast to Mr Pham and Ms Dinh, both Constable Ferreira and LSC Simonit were impressive witnesses. Constable Ferreira made every effort to understand each question being asked of him and answered each one directly. He readily stated when he could not recall an event but his recollection was predominantly clear. His evidence was consistent with contemporaneous records including the 000 calls, the log book, COPS record and his own telephone accounts.
13. LSC Simonit also gave evidence in a straightforward manner. She frankly admitted that her recollection of the evening was not perfect and that what she did recall may have been in a different sequence. Her evidence was to some extent different to that of Constable Ferreira supporting the inference that she made every honest attempt to give her own recollection of events rather than to repeat what she might have been told occurred on the evening or read from other sources.
14. Overall, my impression of her was that she was an honest witness and I accept that she gave an honest account of what she recalled from the events of 13 December 2012.
15. Although LSC Simonit's evidence was, to some extent, inconsistent with Constable Ferreira's evidence, the inconsistencies were readily explicable by the passage of time and LSC Simonit's own frank admission that her recollection of the evening was imperfect. It is also logical that her role as an observer on the evening led her to being less of a participant and therefore having a less complete memory of the sequence of events that evening. Rather than undermining the credibility of either of the two witnesses, the differences between them reinforced the impression I gained from carefully watching them and observing the manner in which they gave their evidence.
16. I have no hesitation in preferring the evidence given by the defendant's witnesses. They both gave evidence in a measured and thoughtful way. This indicated to me that they were both doing their best to give an honest account of their recollection of the evening in question. Further, their evidence was internally coherent and, with some exceptions, consistent with each other's evidence and with the documentary evidence. In particular, their evidence about the demeanour and behaviour of Mr Pham reflected the recording of calls made by Mr Pham to 000 throughout the evening. Those recordings reveal that Mr Pham was for a significant period hysterical and unable to properly respond to questions seeking to obtain information from him.
17. For those reasons, I do not accept Mr Pham's version of events and I accept that what occurred was as it was explained in Constable Ferreira's evidence.
18. For those reasons, I find that when Constable Ferreira attended Mr Pham's house in Yagoona on the evening of 13 December 2012 he had competing versions of the events leading up to his visit to that address with LSC Simonit. One of those versions included the fact that Mr Pham had threatened to stab Mr Kayrouz. I find that Mr Pham was yelling and aggressive towards Constable Ferreira and that he grabbed his appointments belt. I accept that Constable Ferreira assessed that Mr Kayrouz's version of the previous events was more credible than that of Mr Pham and that he suspected that Mr Pham had committed the offence of intimidation in making the threat.
19. I reject Mr Pham's claim that Constable Ferreira kicked him or that he deliberately swiped blood onto his shirt. I find that he removed Mr Pham with reasonable force from the police van in light of Mr Pham's refusal to leave the van voluntarily, that he placed Mr Pham on the ground on William Street and that he sat on the curb in order for his handcuffs to be removed because Mr Pham again resisted Constable Ferreira's efforts.
20. It will be necessary to make some further detailed findings concerning these events but first I will briefly set out the legal principles to be applied in the resolution of the issues in the proceedings.

Legal principles

1. Mr Pham seeks damages for wrongful imprisonment, assault and battery. The allegations of assault and battery arise in two ways: first, on the basis that the arrest was unlawful; and secondly, in the event that the arrest was otherwise lawful, that unreasonable force was used by Constable Ferreira both during the arrest and in his actions discontinuing the arrest.
2. The parties proceeded on the basis that s 3B(1)(a) of the Civil Liability Act 2002 (NSW) applied to exclude most of the operation of that Act from the proceedings. That was the basis on which the plaintiff sought aggravated and exemplary damages in the face of s 21 of that Act.
3. Wrongful imprisonment, assault and battery are intentional torts. Wrongful imprisonment is established where there is an intentional, total and direct restraint on a person's liberty without authority. A person commits the tort of battery if he or she directly causes physical contact with another person and does not show that they are without fault [36] . There may be battery without any intention, however the allegation here is that Constable Ferreira deliberately caused physical contact with Mr Pham. In Croucher, at [42], Leeming JA said "[t]here is a tortious assault where the act of a person causes another person reasonably to apprehend a threat of force or violence" [37] .
4. Claims that a police officer has committed one or all of these torts raise the intersection of two competing matters: first, the high importance that the law places on personal liberty [38] and secondly, the public interest in the detection of crime and bringing those who commit it to justice [39] .
5. Once it has been established, as it has here, that a person has been arrested and temporarily deprived of their liberty, as the State is vicariously liable in respect of torts committed by police officers in the performance, or purported performance, of a function that is an incident of their service [40] , it falls to the State to establish that there was lawful justification for the actions of the police officers [41] . Here, the State contends that the actions of Constable Ferreira were authorised by both statute, in particular, the Law Enforcement (Powers & Responsibilities) Act 2002 (LEPR Act) and the common law.
6. At the time of the relevant events, s 99 of the LEPR Act relevantly provided [42] : 99 Power of police officers to arrest without warrant … (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) to ensure the appearance of the person before a court in respect of the offence, (b) to prevent a repetition or continuation of the offence or the commission of another offence, (c) to prevent the concealment, loss or destruction of evidence relating to the offence, (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) to prevent the fabrication of evidence in respect of the offence, (f) to preserve the safety or welfare of the person. (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.
7. The requirement in s 99(2) that the police officer suspect "on reasonable grounds that the person has committed an offence" represents the protection of the individual right to freedom: Hyder v Commonwealth [2012] NSWCA 336; 217 A Crim R 571 at [13]. The question whether it is satisfied is to be assessed on an objective basis at the time of the incident bearing in mind that it occurs at the preliminary stage of investigation and so is not one that requires evidence amounting to prima facie proof: O'Hara v Chief Constable of Royal Ulster Constabulary [1997] AC 286 at 293 cited in Hyder at [14]. The question must be judged against what is known or is reasonably capable of being known at the relevant time: Ruddock v Taylor (2005) 222 CLR 612 at [40].
8. In George v Rockett (1990) 170 CLR 104, the High Court explained the meaning of "suspicion" at 115-116: "Suspicion, as Lord Devlin said in Hussien v Chong Fook Kam ([1969] UKPC 26 [1970], AC 942 at 948), "In its ordinary meaning is a state of conjecture or surmise where proof is lacking: "I suspect but I cannot prove.'" The facts that which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown. In Queensland Bacon Pty Ltd v Rees [(1966) 115 CLR 266], a question was raised as to whether a payee had reason to suspect that the payer, a debtor, "was unable to pay [its] debts as they became due" as that phrase was used in s. 95(4) of the Bankruptcy Act 1924 (Cth). Kitto J. said: "A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to 'a slight opinion, but without sufficient evidence', as Chambers's Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. The notion which 'reason to suspect' expresses in sub-s. (4) is, I think, of something which in all the circumstances would create in the mind of a reasonable person in the position of the payee an actual apprehension or fear that the situation of the payer is in actual fact that which the subsection describes - a mistrust of the payer's ability to pay his debts as they become due and of the effect which acceptance of the payment would have as between the payee and the other creditors."
9. Constable Ferreira gave evidence, which I accept, that he suspected that Mr Pham had committed an offence of intimidation contrary to s 545B of the Crimes Act 1900 (NSW) or an offence of intimidation contrary to s 13 of the Crimes (Domestic & Personal Violence) Act 2007 (NSW).
10. Section 545B of the Crimes Act relevantly provides: 545B Intimidation or annoyance by violence or otherwise (1) Whosoever: (a) with a view to compel any other person to abstain from doing or to do any act which such other person has a legal right to do or abstain from doing, or (b) in consequence of such other person having done any act which he had a legal right to do, or of his having abstained from doing any act which he had a legal right to abstain from doing, wrongfully and without legal authority: (i) uses violence or intimidation to or toward such other person or his wife, child, or dependant, or does any injury to him or to his wife, child, or dependant, or (ii) follows such other person about from place to place, or (iii) hides any tools, clothes, or other property owned or used by such other person, or deprives him of or hinders him in the use thereof, or (iv) (Repealed) (v) follows such other person with two or more other persons in a disorderly manner in or through any street, road, or public place, is liable, on conviction before the Local Court, to imprisonment for 2 years, or to a fine of 50 penalty units, or both. (2) In this section: Intimidation means the causing of a reasonable apprehension of injury to a person or to any member of his family or to any of his dependants, or of violence or damage to any person or property, and intimidate has a corresponding meaning.
11. Section 13(1) Crimes (Domestic & Personal Violence) Act provides: "(1) A person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence. …"
12. For an offence under s 13(1) of the Crimes (Domestic & Personal Violence) Act: 1. the mental element of the offence is established if a person intended to cause another person to fear physical or mental harm, or the person knew his conduct was "likely to cause fear in the other person"; 2. it is not necessary to establish such an offence that the other person "actually feared physical or mental harm"; 3. the definition of "intimidation" does not necessarily require that the relevant conduct be undertaken in the physical presence of the victim: Viavattene v R [2018] NSWCCA 197 at [19].
13. Constable Ferreira suspected that Mr Pham threatened to stab Mr Kayrouz with a knife. That threat was sufficient to constitute the offence of intimidation under s 545B of the Crimes Act or an offence contrary to s 13(1) Crimes (Domestic & Personal Violence) Act. The suspicion was based upon the fact that Constable Ferreira had been told by Mr Kayrouz of the threat coupled with his observations made of Mr Pham during his telephone calls with him and his behaviour when he and LSC Simonit attended at Mr Pham's property. In particular, the fact that Mr Pham was aggressive, yelling, shouting to his female companions and that he grabbed at Constable Ferreira's appointments belt. I accept not only that Constable Ferreira had those matters in mind at the time of his arrest of Mr Pham but also that they formed a reasonable basis for his suspicion that Mr Pham had committed the offence of intimidation. Given Mr Pham's conduct, Mr Kayrouz's report of the threat made by Mr Pham was sufficient to raise a suspicion in the mind of a reasonable person that Mr Pham had indeed committed the offence of intimidation.
14. I also accept, as required by s 99(3) of the LEPR Act, that Constable Ferreira suspected on reasonable grounds that it was necessary to arrest Mr Pham to prevent a repetition or continuation of the offence, or indeed a commission of another offence: s 99(3)(b). The evidence establishes that Mr Pham was acting in a bizarre manner and refusing to cooperate with Constable Ferreira's reasonable request that he remove the car. In addition, the fact that he grabbed Constable Ferreira's appointments belt which had on it his firearm, OC spray, handcuffs and a baton, formed a reasonable basis for Constable Ferreira to suspect that it was necessary to arrest Mr Pham to prevent him committing another offence whether it be of assault or intimidation.
15. In order to be lawful, the arrest of Mr Pham also had to comply with the provisions of s 201 of the LEPR Act. That provision states: 201 Supplying police officer's details and giving warnings (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, …
16. Each of the requirements in s 201 was satisfied in this case. Constable Ferreira was wearing his police uniform and told the plaintiff his name and place of duty both over the telephone and at the time he attended Mr Pham's property. Secondly, before the arrest and during the course of it he told Mr Pham that there had been an allegation that Mr Kayrouz had been threatened by Mr Pham and in addition that he was being arrested for intimidation.
17. The defendant also relied upon Constable Ferreira's common law power to make an arrest to prevent a breach of the peace as explained in Poidevin v Semaan (2013) 85 NSWLR 758 at [18]-[21] (Leeming JA, Ward and Emmett JJA agreeing). I accept the submission that the conduct of Mr Pham in grabbing Constable Ferreira's appointments belt, his aggressive, uncooperative and erratic behaviour and yelling, together with his unreasonable refusal to move his car gave rise to reasonable grounds for Constable Ferreira to suspect that there might be a breach of the peace thus enlivening his common law power of arrest.
18. In those circumstances the defendant has satisfied its onus of establishing the arrest of Mr Pham was justified at law and so the claim for wrongful imprisonment must be rejected.
19. The next question is whether Mr Pham has established that Constable Ferreira committed the torts of assault and battery.
20. Before considering the lawfulness of the force used by Constable Ferreira on Mr Pham, it is necessary to consider the powers that were being exercised by him once he had decided to discontinue the arrest. That is, the powers engaged by Constable Ferreira for the process of removing Mr Pham from the police van and then removing his handcuffs.
21. The power to discontinue arrest arises under s 105 of the LEPR Act which was relevantly in the following terms: 105 Arrest may be discontinued (1) A police officer may discontinue an arrest at any time. (2) Without limiting subsection (1), a police officer may discontinue an arrest in any of the following circumstances: (a) if the arrested person is no longer a suspect or the reason for the arrest no longer exists for any other reason, (b) if it is more appropriate to deal with the matter in some other manner, including, for example, by issuing a warning or caution or a penalty notice or court attendance notice or, in the case of a child, dealing with the matter under the Young Offenders Act 1997.
22. In the process of arresting Mr Pham, Constable Ferreira also exercised his power to search him under s 23 of the LEPR Act.
23. The use of force by a police officer in the exercise of a function under the LEPR Act is provided for in ss 230 and 231 of that Act which provide: 230 Use of force generally by police officers It is lawful for a police officer exercising a function under this Act or any other Act or law in relation to an individual or a thing, and anyone helping the police officer, to use such force as is reasonably necessary to exercise the function. 231 Use of force in making an arrest A police officer or other person who exercises a power to arrest another person may use such force as is reasonably necessary to make the arrest or to prevent the escape of the person after arrest.
24. In light of these provisions, the question to be determined is whether the force used by Constable Ferreira was "reasonably necessary" to the exercise of the function or to make the arrest.
25. The identification of what is "reasonably necessary" in the exercise of the functions of a police officer were examined in some detail by Heydon JA in Woodley v Boyd [2001] NSWCA 35 at 37: "[37] According to some writers, at common law, which applies in New South Wales, a person effecting an arrest may use whatever force is "reasonable" in the circumstances (Archbold: Criminal Pleading Evidence and Practice 2000 para19-39) or "reasonably necessary" (Wiltshire v Barrett [1966] 1 QB 312 at 326 and 331). "Thus if the arrestee offered resistance, the arrestor could increase his force in proportion to the force of that resistance": R W Harding, The Law of Arrest in Australia (eds Duncan Chappell and Paul Wilson) The Australian Criminal Justice System (2nd ed, Butterworths, 1977) page 254. A more elaborate test has been propounded in the context of whether the killing of a felon in the course of committing a felony is a justifiable homicide, or manslaughter, or murder. It was put thus by the Full Court in R v Turner [1962] VR 30 at 36: "When a felony is committed in the presence of a member of the public, he may use reasonable force to apprehend the offender or for the prevention of the felony. What is reasonable depends upon two factors. He is entitled to use such a degree of force as in the circumstances he reasonably believes to be necessary to effect his purpose, provided that the means adopted by him are such as a reasonable man placed as he was placed would not consider to be disproportionate to the evil to be prevented (ie the commission of a felony or the escape of the felon)." It may perhaps be questioned whether the tests stated apply where the arresting party causes injury to the arrested party, as distinct from death. However, for present purposes it is convenient to assume, as counsel for both the plaintiff and the defendants did, that R v Turner states the law in that context as well. In evaluating what is reasonable, necessary or reasonably necessary the duties of police officers must be remembered. In Lindley v Rutter [1981] QB 128 at 134 Donaldson LJ said: "It is the duty of any constable who lawfully has a prisoner in his charge to take all reasonable measures to ensure that the prisoner does not escape or assist others to do so, does not injure himself or others, does not destroy or dispose of evidence and does not commit further crime such as, for example, malicious damage to property. This list is not exhaustive, but it is sufficient for present purposes. What measures are reasonable in the discharge of this duty will depend upon the likelihood that the particular prisoner will do any of these things unless prevented. That in turn will involve the constable in considering the known or apparent disposition and sobriety of the prisoner. What can never be justified is the adoption of any particular measures without regard to all the circumstances of the particular case." The same duties and considerations apply where a police officer is deciding how to effect an arrest. And, in evaluating the police conduct, the matter must be judged by reference to the pressure of events and the agony of the moment, not by reference to hindsight. In McIntosh v Webster (1980) 43 FLR 112 at 123, Connor J said: "[Arrests] are frequently made in circumstances of excitement, turmoil and panic [and it is] altogether unfair to the police force as a whole to sit back in the comparatively calm and leisurely atmosphere of the courtroom and there make minute retrospective criticisms of what an arresting constable might or might not have done or believed in the circumstances."
26. There are four elements of the claim of assault and battery by Constable Ferreira during the course of the arrest itself. First, there is the grabbing of Mr Pham's wrist by Constable Ferreira when Mr Pham pulled back from Constable Ferreira; secondly, there is the handcuffing of Mr Pham; thirdly, there is the procedure whereby Constable Ferreira escorted Mr Pham to the police van and fourthly, Constable Ferreira placed Mr Pham into the police van. In the same process there was a search of Mr Pham conducted by Constable Ferreira but there appears to be no express complaint about that particular aspect of Constable Ferreira's conduct.
27. The evidence of Constable Ferreira grabbing Mr Pham's wrist was the effect that it was necessitated by Mr Pham drawing back from Constable Ferreira. As I accept that evidence, and in the absence of any evidence of force more than was required to restrain Mr Pham, or force that might have caused Mr Pham any pain or injury, I find that it was reasonably necessary to effect the arrest. The same conclusion applies in respect of the placing of the handcuffs on Mr Pham's hands.
28. Constable Ferreira's evidence in respect of the way in which he took Mr Pham to the van was that Mr Pham was literally dropping his weight and dragging his feet making it necessary for Constable Ferreira to use "my strength" to effectively carry Mr Pham to the police van. Once again this was no more than what was actually necessary, let alone reasonably necessary, in order to effect the arrest of Mr Pham. Finally, there was no real complaint about the way in which Mr Pham was placed into the police van. It will be recalled that the police van was a Hyundai van and Constable Ferreira's evidence was that Mr Pham was standing in the van. This suggests that it was not a difficult process to place Mr Pham in the van and thus did not require any excessive force.
29. For those reasons, the force used by Constable Ferreira in the process of arresting and searching Mr Pham was lawful and constituted neither an assault nor battery on Mr Pham.
30. Mr Pham also claimed that there was an assault and battery in his removal from the police van: his being kicked to the ground and being swiped with Constable Ferreira's bleeding thumb. Constable Ferreira was exercising his power to discontinue the arrest at this point.
31. On Mr Pham's own evidence he refused to leave the police van. It became necessary in light of that for Constable Ferreira to remove him and to use some force to do so. There was no evidence that suggested that the force used by him was anything more than was reasonably necessary given Mr Pham's refusal. Mr Pham was taken by the shirt and arm and pulled forward. He landed on his feet outside the van, suggesting that the force used by Constable Ferreira was effective but not violent. I have rejected Mr Pham's claim to have been kicked and accepted that Constable Ferreira brought Mr Pham to a seated position by placing his calf behind Mr Pham's calf and easing him down. I accept that this manoeuvre was reasonably necessary to allow Constable Ferreira to remove the handcuffs from Mr Pham, particularly in light of Mr Pham's previous conduct and his continuing resistance to reason.
32. Finally, I have rejected the evidence of Ms Dinh and Mr Pham to the effect that Constable Ferreira deliberately smeared blood on Mr Pham's shirt. The photograph of Mr Pham's shirt was consistent with Constable Ferreira having removed Mr Pham from the police van by taking hold of Mr Pham by his shirt and arm. As that action was reasonably necessary, and Constable Ferreira's thumb was bleeding, the smearing of blood was no more than incidental to the exercise of his power under the LEPR Act to discontinue the arrest.
33. The contact by Constable Ferreira with Mr Pham, and any apprehension of that or other contact, was reasonably necessary to the exercise of Constable Ferreira's powers and, for that reason, were lawful. The claims of assault and battery must be rejected.
34. It is unnecessary in the circumstances to deal with the additional defences raised under s 52 of the Civil Liability Act. If it were necessary to do so, I would have rejected them on the evidence. Very briefly that is because I am not satisfied that Constable Ferreira was acting in self-defence within the meaning of s 52(2) throughout the period of the arrest and discontinuance of the arrest.
35. As none of Mr Pham's claims have been successful, he is not entitled to any damages and the proceedings must be dismissed and Mr Pham ordered to pay the defendant's costs. As discussed with the parties at the hearing, leave will be granted to make an application for alternative orders for costs.
36. Although the proceedings must be dismissed, I will follow, to some extent, the usual course and make a determination of damages: Chief Commissioner of State Revenue v Adams Bidco Pty Ltd [2019] NSWCA 34 at [3]; Gulic v Boral Transport Ltd [2016] NSWCA 269 at [7]; Nevin v B & R Enclosures [2004] NSWCA 339 at [74]-[75] and Wolfenden v International Theme Park Pty Ltd [2008] NSWCA 78 at [3]-[4] and [53]. The reason I do so, only to some extent, was mentioned by Macfarlan JA in Gulic at [8], namely, that some contingent findings would require assumptions of fact that are diametrically opposed to my findings of fact. That is especially the case concerning some aspects of Constable Ferreira's conduct that go to the lawfulness of the arrest of Mr Pham. That said, I will briefly assess damages on the basis that, even accepting Constable Ferreira's account, the arrest was not in compliance with the safeguards imposed at common law and by the LEPR Act and that the force used by him was not reasonably necessary to the exercise of his powers of arrest, search and discontinuance of arrest.
37. On the facts of this case, the assessment of damages must be made at common law rather than under the Civil Liability Act and so may include aggravated and exemplary damages: s 3B(1)(a).
38. I will deal first with exemplary damages. Such damages may be awarded where there has been a "conscious and contumelious disregard for the plaintiff's rights": Uren v John Fairfax & Sons Ltd (1966) 117 CLR 118, 154. I am not satisfied that this has been established on the evidence and would make no award of this type of damages.
39. Compensatory damages include both what are called general damages and aggravated damages. The latter might in, respect of intangible injury, arise from the circumstances and manner of the wrongdoing. There are two considerations here: any physical injury to Mr Pham and any intangible injury he suffered.
40. Mr Pham suffered some injury to his ankle in the course of the discontinuance of the arrest. He claimed that it was broken but that was not consistent with the report from his treating GP, Dr Singh (which referred to a "twisting injury"), and does not sit comfortably with the fact that Mr Pham was able to return to work the day following the incident. There was no evidence of any consequences of the injury, which I would classify as minor. I would make an award of $1,000 for injury to his ankle.
41. In respect of the intangible injury to Mr Pham, I note the following: the arrest, detention and release of Mr Pham were only in front of his immediate family, late at night and all took place within 15 minutes. I accept that Mr Pham was upset by his arrest, but I do not consider this was sufficient to warrant more than a small award of general damages. Given the short time frame and the other circumstances, I would award aggravated damages in respect of Mr Pham's intangible injury in the amount of $500.
42. Mr Pham also claimed economic loss owing to his loss of employment. However, he adduced no evidence that established that that was the natural or probable consequence of the wrongdoing [43] and I would award no damages in respect of it.
43. In total I would make an award of $1,500. Given the contingent nature of that conclusion, and the relatively small award made in respect of proceedings that were heard over four days, I cannot properly determine the appropriate order in respect of costs and refrain from doing so.

Orders

1. I make the following orders: 1. Verdict and judgment for the defendant. 2. The plaintiff pay the defendant's costs. 3. The exhibits are to be returned. 4. Liberty to apply on 7 days' notice if further orders of the Court are required. I certify that this and the 45 preceding pages are a true copy of the reasons for the judgment herein of his Honour Judge Smith SC. Associate: Date: 29 March 2019

Endnotes

1. Law Reform (Vicarious Liability) Act 1983 (NSW), s 8.
2. Exhibit 13, tab 2.
3. Now Senior Constable Ferreira, although it is convenient to continue to refer to him by the rank he held at the time.
4. Now Sergeant Simonit. As with Constable Ferreira, it is convenient to refer to her by the rank held by her at the time.
5. Exhibit 13, tab 15.
6. Transcript 160.33.
7. Transcript 164.8.
8. Transcript 162.24.
9. Transcript 12.8.
10. Transcript 162.32.
11. Transcript 164.30.
12. Transcript 164.26.
13. Transcript 170.48-171.3.
14. Transcript 171.5.
15. Transcript 171.42.
16. Transcript 172.15.
17. Transcript 172.38.
18. Transcript 175.12.
19. Exhibit 13, tab 14.
20. Transcript 176.18.
21. Transcript 177.29.
22. Transcript 180.5; Exhibit 13, tab 16.
23. Transcript 234.22.
24. Transcript 238.42.
25. Transcript 240.10.
26. Transcript 240.38.
27. Transcript 243.1.
28. Transcript 245.48.
29. Transcript 126.23; 133.41; 134.10; 134.41; 135.12; 135.25; 139.42.
30. Transcript 131.12.
31. Transcript 127.26.
32. Transcript 132.12.
33. See, for example, Transcript 24.35; 36.35.
34. Transcript 112-113.
35. This was redacted.
36. Croucher v Cachia [2016] NSWCA 132 at [21] (Leeming JA).
37. Citing Barton v Armstrong [1969] 2 NSWR 451 at 455 and State of New South Wales v McMaster [2015] NSWCA 228 at [205].
38. Williams v The Queen (1986) 161 CLR 278 at 292 and 296.
39. Holgate-Mohammed v Duke [1984] AC 437 at 445 per Lord Diplock.
40. Law Reform (Vicarious Liability) Act 1983, s 8.
41. Zaravinos v State of New South Wales (2004) 62 NSWLR 58 at [12], [37] and [38].
42. The relevant provision of the LEPR Act was significantly amended in the following year by the Law Enforcement (Powers & Responsibilities) Amendment (Arrest without Warrant) Act 2013 (NSW), No. 98.
43. State of New South Wales v Cuthbertson [2018] NSWCA 320 at [40]. 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: 29 March 2019