Plaintiff v Defendants

POLICE POWER TO SEARCH PREMISES - Crimes Act, s 465 - Search of property pursuant to warrant - Requirement that execution of warrant be reasonable - Factors affecting reasonableness - Transcription of information from documents not authorised - Whether an officer who is the subject of a complaint or civil proceeding by the suspected offender should participate in search - Effect of a conflict of interest.

POLICE POWER TO FILM PREMISES BEING SEARCHED - Implied power under warrant - Video footage and photographs taken during search must be incidental to, and for the purpose of, the search - No general power to take video footage or photographs for intelligence gathering purposes.

POLICE POWER TO RETAIN SEIZED ITEMS - Meaning of Magistrates' Court order authorising informant to retain seized items until they are required to be produced in court.

VICTORIA POLICE MANUAL - Legal status of manual - Importance of police officers identifying themselves when exercising coercive powers.

ASSAULT AND BATTERY - Whether mere words can constitute assault.

FALSE IMPRISONMENT - Crimes Act, s 464A - Whether detention of person under arrest in premises after expiration of a reasonable time for the execution of a search warrant on those premises constitutes false imprisonment.

MALICIOUS PROSECUTION - Malice - Reasonable and probable cause.

TRESPASS TO LAND - Search warrant not executed in a reasonable manner - General search instead of search for items described in search warrant - Search took 90 minutes whereas if conducted reasonably, it would not have exceeded 60 minutes - Search unlawful during last 30 minutes - Trespass during last 30 minutes.

TRESPASS TO GOODS - Unauthorised transcription of information from documents - Asportation of documents which cannot be seized lawfully.

CONVERSION AND DETINUE - No power to retain items seized pursuant to a search warrant once a decision is made not to lay charges - No power to retain items pending completion of investigation by another law enforcement agency into matters unconnected with the purpose for which the warrant was issued - Effect of absence of demand from person entitled to possession that the seized items be returned.

NEGLIGENCE - Liability of supervising police officer for acts of subordinates - Failure to investigate complaints about the receipt of threatening telephone calls by anonymous caller or callers - Whether a duty of care is owed to the complainant - Conflicting duties principle - Public policy considerations.

STALKING - Crimes Act, s 21A(2)(a) - Meaning of 'a course of conduct' and 'following the victim'.

DAMAGES - Trespass to land - Vindication of occupier's rights - Consequential loss - Loss of business income - Difficulties in assessing - Probability-based approach - Mental trauma - Whether a natural and probable consequence of the act of trespass.

LIABILITY OF STATE - Crown Proceedings Act 1958, s 23(1)(b) - Whether police officers performing duties as servants or agents of the Crown - Police Regulation Act 1958, s 123(1) and (2) - Whether acts of police officers were 'necessarily or reasonably done ... in good faith in the course of [their duty] as [members] of the force'.

PRACTICE AND PROCEDURE - Deficiencies in parties' discovery - deficiencies in processes and procedures for retention of documents - destruction of discoverable documents.

Mrs Slaveska, as Litigation Guardian, appeared on behalf of the Plaintiff

1 Lupco Slaveski has sued 23 present or former police officers ('police defendants') and the State of Victoria ('State') seeking damages for assault and battery, false imprisonment, malicious prosecution, defamation, trespass to land, trespass to goods, conversion, detinue and negligence.

2 The claims against the police defendants arise out of 13 incidents that occurred between 8 September 2000 and 7 May 2007. All of the police defendants were based at the Epping, Mill Park or Preston police stations during this period. In addition, a claim in negligence has been made against a senior officer - Phil Lowerson - alleging that he failed to prevent the other officers from committing wrongful acts against Mr Slaveski and to investigate his complaints about the receipt of threatening telephone calls.

3 The claim against the State is principally made under s 123(2) of the Police Regulation Act 1958 (Vic) ('PR Act'), which, in certain circumstances, transfers a police officer's liability to the State. It is alleged that the State is liable for any damages otherwise payable by the 23 police defendants.

4 Mr Slaveski suffers from a mental illness. Initially, he represented himself. Since 28 January 2010, his wife, Snezana Slaveska, has acted as his litigation guardian and lay advocate.

5 For the reasons set out below, I have reached the following conclusions in relation to Mr Slaveski's claims:

• Officers Kirkright, Baade, Sadler, Cole, Knowles, Anderson and Wendt trespassed upon Mr Slaveski's shop at 10 May Road, Lalor by remaining inside the shop for 30 minutes longer than was reasonably necessary to execute the search warrant.
• Officers Kirkright and Knowles also trespassed by remaining in the recording studio after it became obvious that none of the items described in the search warrant were located there.
• Officers Wendt and Kirkright also trespassed by remaining in the rear courtyard after it became obvious that none of the items described in the search warrant were located there.
• Officers Wendt and Sadler also trespassed by taking, or directing the taking of, video footage of activities, objects or parts of the shop that had no connection to the execution of the search warrant.
• Officer Sadler trespassed upon Mr Slaveski's goods by taking documents to officers Cole and Anderson and instructing them to transcribe information from the documents, without lawful authority.
• Officers Cole, Anderson and Sadler trespassed upon Mr Slaveski's goods by transcribing information from documents, or directing the transcription of information, without lawful authority.
• Dismiss all other claims.

6 A further hearing will take place to deal with Mr Slaveski's claims for aggravated and exemplary damages and interest. That hearing will also deal with costs and the form of the orders to be made.

7 For convenience, Part 10 contains a glossary of terms and abbreviations.

(2) Introduction to the parties and Mrs Slaveska

8 In this Part 1(2), I briefly set out details of the parties and Mrs Slaveska. Reference is made to the incidents at which a particular police defendant was present. The incidents are briefly outlined in Part 1(3) below.

9 Mr Slaveski - the plaintiff. Mr Slaveski was born on 20 March 1963 in the Macedonian region of what was then Yugoslavia. He was 14 years old when he arrived in Australia in 1978. He played in a band from a young age and, when he was 17 years old, he began working as a disc jockey with the stage name 'Sky'. He aspired to international stardom as a songwriter and singer. Between 1996 and 2006, he operated electronic retail sales and service, finance broking and leasing businesses in the Lalor and Thomastown areas.

10 Initially, Mr Slaveski carried on the businesses as a sole trader. Subsequently, the businesses were conducted through Sky Empire Pty Ltd ('Sky Empire') trading as 'Sky TV & Video Service' and 'Sky Finance', and Sky Prestige Sales - Lease - Rentals Pty Ltd ('Sky Prestige').[2] In the period 1997 to 2006, his main place of business was his shop at 10 May Road, Lalor ('Lalor shop'), which comprised two levels. Between early 1999 and February or March 2001, he had a second shop at 453 High Street, Northcote ('Northcote shop'). Between February 2001 and December 2005, another shop was conducted at 261 High Street, Thomastown ('Thomastown shop'). Mr Slaveski's businesses stopped trading in October 2006. Since then, he has been a recipient of disability benefits.

11 It was not in dispute that Mr Slaveski suffers from a panic disorder; however, the severity and causes of this disorder were in dispute. The parties were also in dispute about whether Mr Slaveski suffered from other mental illnesses and, if so, about the causes of any such illnesses. Throughout the trial, Mr Slaveski was taking medication, including Xanax tablets.

12 Mrs Slaveska - Mr Slaveski's wife. Mrs Slaveska was born in the Macedonian region of the former Yugoslavia. Her maiden name, which she continues to use occasionally, is Angeleska. She met Mr Slaveski in Macedonia in 1992. They were married that year and she moved to Australia in December 1992. She and Mr Slaveski have two teenaged daughters and a teenaged son. Mrs Slaveska is enrolled in an arts degree at La Trobe University and is undertaking some legal studies as part of that degree. She was present at most of the incidents that are the subject of this proceeding.

13 Shaun Bingham - second defendant. He was involved in the incident of 8 September 2000 while he was based at the Mill Park police station and held the rank of detective senior constable.

14 Mark Smithwick - third defendant. He was involved in the incident of 8 September 2000 while he was based at the Mill Park police station and held the rank of detective senior constable.

15 Paul Kirkright - fourth defendant. He was allegedly involved in the incident of 8 September 2000. At that time, he was based at the Mill Park police station and held the rank of detective senior sergeant. It was not in dispute that he was involved in the incident of 13 December 2005. At that time, he was based at the Mill Park police station and continued to hold the rank of detective senior sergeant. At all times that are relevant to this proceeding, officer Kirkright was the officer in charge of the Mill Park police station.

16 Leigh Cole - fifth defendant. He was allegedly involved in the incident of 8 September 2000. At that time, he was working in Melbourne as part of the Tactical Response Group and held the rank of detective senior constable. It was not in dispute that he was involved in the incident of 13 December 2005. At that time, he was based at the Mill Park police station and held the rank of detective senior constable.

17 Catherine Sadler - sixth defendant. She was involved in the incidents of 18 December 2003 and 13 December 2005 while she was based at the Mill Park police station. She held the rank of detective senior constable on 18 December 2003 and the rank of detective acting sergeant on 13 December 2005.

18 Adrian Tennyson - seventh defendant. He was allegedly involved in the incidents of 13 December 2005 and 13 January 2006 while he was based at the Epping police station and held the rank of leading senior constable.

19 Glenn Parker - eighth defendant. He was allegedly involved in the incidents of 8 June, 12, 13 and 20 July and 14 August 2006 while he was based at the Epping police station and held the rank of sergeant.

20 Phil Lowerson - ninth defendant. At all times that are relevant to this proceeding, he was a senior sergeant. In September 2000, he was the officer in charge of the Preston police station. From January 2001 until his retirement on 4 April 2008, he was the officer in charge of the Epping police station. Mr Slaveski alleges that, in the period from September 2000 to May 2007, officer Lowerson breached an alleged duty to prevent other police officers from engaging in wrongful conduct towards him and that, after June 2006, officer Lowerson failed to investigate his complaints about the receipt of threatening telephone calls.

21 Graeme Wheeler - tenth defendant. He was allegedly involved in the incident of 8 September 2000 while he was based at the Mill Park police station and held the rank of detective senior constable.

22 Paul Smith - eleventh defendant. He was involved in the incident of 29 January 2007 while he was based at the Preston police station and held the rank of detective sergeant.

23 Andrew Roberts - twelfth defendant. He was involved in the incident of 8 September 2000. At that time, he was a uniformed officer based at the Epping police station. He was in the Traffic Management Unit performing motorcycle duties and held the rank of senior constable.

24 Timothy Robinson - thirteenth defendant. He was involved in the incident of 8 September 2000 while he was based at the Mill Park police station and held the rank of senior constable.

25 Andrew Stephen - fourteenth defendant. He was involved in the incident of 8 September 2000 while he was based at the Mill Park police station and held the rank of constable.

26 Craig Rhodes - fifteenth defendant. He was involved in the incident of 8 September 2000 while he was based at the Mill Park police station and held the rank of detective sergeant.

27 Garry Barton - sixteenth defendant. He was involved in the incident of 8 September 2000 while he was based at the Mill Park police station and held the rank of detective senior constable.

28 Peter Jones - seventeenth defendant. He was involved in the incident on 14 April 2004 while he was based at the Mill Park police station and held the rank of detective sergeant.

29 Timothy Peck - eighteenth defendant. He was allegedly involved in the incident of 18 December 2003. It was not in dispute that he was involved in the incidents of 14 April 2004 and 7 May 2007. At the time of the 2003 and 2004 incidents, he was based at the Mill Park police station and held the rank of detective senior constable. At the time of the 2007 incident, he was part of the Homicide Squad in Melbourne and held the rank of detective senior constable.

30 Kevin Nolan - nineteenth defendant. He was involved in the incident of 22 June 2005 while he was based at the Mill Park police station and held the rank of leading senior constable.

31 Michael Baade - twentieth defendant. He was involved in the incident of 13 December 2005 while he was based at the Mill Park police station and held the rank of detective sergeant.

32 Michael Leemon - twenty-first defendant. He was involved in the incident of 18 December 2003 while he was based at the Mill Park police station and held the rank of detective senior constable.

33 Philip Wendt - twenty-second defendant. He was involved in the incident of 13 December 2005. At that time, he was a uniformed constable who was performing temporary duties at the Mill Park crime investigation unit ('CIU').

34 Peter Anderson - twenty-third defendant. He was involved in the incident of 13 December 2005 while he was based at the Mill Park police station and held the rank of detective senior constable.

35 Matthew Knowles - twenty-fourth defendant. He was involved in the incident of 13 December 2005 while he was based at the Mill Park police station and held the rank of detective senior constable.

36 In this Part 1(3), I set out a brief outline of the 13 incidents that are part of Mr Slaveski's claim.

37 First incident - 8 September 2000. Mr Slaveski alleges that officers Bingham, Smithwick, Kirkright, Cole, Wheeler, Roberts, Stephen, Robinson, Rhodes and Barton entered the Lalor shop and unlawfully assaulted him, handcuffed him and took him into custody. He also claims that they damaged merchandise in the shop and that officer Bingham punched him while they were in a police vehicle on the way to the Mill Park police station. The causes of action alleged are false imprisonment, assault, battery, trespass to goods, conversion and (possibly) trespass to land.

38 Second incident - 18 December 2003. Mr Slaveski alleges that officer Sadler and either officer Peck or officer Leemon entered the Lalor shop and unlawfully demanded payment of an amount of $890 that was the subject of a dishonoured cheque to The Good Guys store at 290 Settlement Road, Thomastown ('The Good Guys store'). He also claims that officer Sadler said to him, 'I will get you for this'. The causes of action alleged are trespass to land and (possibly) assault.

39 Third incident - 14 April 2004. Mr Slaveski alleges that officers Jones and Peck entered the Lalor shop and unlawfully demanded items that had been left with Mr Slaveski by a client (Aneli Manevska) as security for a loan. The causes of action alleged are trespass to land and (possibly) assault.

40 Fourth incident - 22 June 2005. Mr Slaveski alleges that, while he and his family were in the reception area of the Mill Park police station, officer Nolan said to a person who was present (Ray Rivett) that Mr Slaveski was 'the worst criminal in the area'. The cause of action alleged is defamation.

41 Fifth incident - 13 December 2005. Mr Slaveski alleges that officers Kirkright, Baade, Sadler, Cole, Anderson, Knowles, Wendt and Tennyson unlawfully arrested and handcuffed him outside the Lalor shop and then conducted a search of the Lalor shop in a manner that exceeded their powers under the relevant search warrant. Mr Slaveski also claims that the police officers stole documents and musical equipment, unlawfully took video footage and photographs, and failed to return to him seized items after they had decided not to charge him with any offence relating to those items. The causes of action alleged are assault, battery, false imprisonment, negligence, trespass to land, trespass to goods, conversion and detinue.

42 Sixth incident - 13 January 2006. Mr Slaveski alleges that officer Tennyson stalked him and made threatening hand gestures towards him while officer Tennyson was across the road from the Lalor shop. The cause of action alleged is assault.

43 Seventh incident - 8 June 2006. Mr Slaveski alleges that, while he was in the Children's Court at Melbourne ('Children's Court') waiting to be called as a witness in a proceeding between officer Parker's wife, Jasmina Talevska, and her former husband, Nicola Stavreski, officer Parker requested protective services officers ('PSOs') to eject him from the building. It is not clear what cause of action is alleged.

44 Eighth incident - 12 July 2006. Mr Slaveski alleges that officer Parker attended outside the Lalor shop and stalked and made threatening hand gestures towards him through the shop window. The cause of action alleged is assault.

45 Ninth incident - 13 July 2006. Mr Slaveski alleges that, while he was in the Children's Court waiting to be called as a witness in the adjourned hearing of the proceeding between Ms Talevska and Mr Stavreski, officer Parker requested PSOs to eject him from the building. It is not clear what cause of action is alleged.

46 Tenth incident - 20 July 2006. Mr Slaveski alleges that, while he was at the Epping Plaza Shopping Centre ('Epping Plaza'), officer Parker stalked and behaved in a threatening manner towards him. The cause of action alleged is assault.

47 Eleventh incident - 14 August 2006. Mr Slaveski alleges that, while he was at the Epping Plaza, officer Parker stalked and behaved in a threatening manner towards him. The cause of action alleged is assault.

48 Twelfth incident - 29 January 2007. Mr Slaveski alleges that officer Smith unlawfully arrested him and charged him with stalking officer Parker at the Children's Court on 13 July 2006. The causes of action alleged are false imprisonment and malicious prosecution.

49 Thirteenth incident - 7 May 2007. Mr Slaveski alleges that officer Peck said to him over the telephone that 'Anybody can get shot these days anytime, anywhere'. The cause of action alleged is assault.

50 Mr Slaveski alleges that officer Lowerson owed him a duty to take reasonable care for his safety and that he breached that duty by, among other things, failing to prevent the other police defendants from committing wrongful acts against him and failing to investigate his complaints about the receipt of threatening telephone calls. The cause of action alleged is negligence.

51 The trial had two phases. The first phase of the trial commenced on 3 August 2009 and ended on 14 December 2009. The second phase of the trial commenced on 1 February 2010 and ended on 18 August 2010.[3]

52 During the first phase, Mr Slaveski represented himself with the assistance of Mrs Slaveska as a McKenzie friend. During the second phase, Mrs Slaveska appeared on behalf of Mr Slaveski as his litigation guardian and lay advocate.

53 The trial occupied 115 sitting days and generated 16,166 pages of transcript. Its duration considerably exceeded the time that was reasonably required to deal with the issues in the proceeding. The inordinate delay in the completion of the hearing was caused by a combination of Mr Slaveski's mental illness and the lack of legal representation. Mr Slaveski wasted time and behaved inappropriately when he represented himself from the bar table and when he gave evidence from the witness box. Mrs Slaveska wasted time in examining witnesses - and, in particular, in cross-examining the police defendants - due to her lack of legal training. I will further discuss the conduct of Mr and Mrs Slaveski below.

54 Throughout the first phase and the early stages of the second phase of the trial, I repeatedly warned the parties about the risks of litigation. In particular, I pointed out that the multiplicity of claims against the separate defendants meant that the proceeding would not necessarily lead to an 'all or nothing' result. I specifically warned Mr and Mrs Slaveski that a possible outcome of the proceeding was that Mr Slaveski might succeed on some claims against some defendants, but that the damages awarded in his favour might be substantially exceeded by the costs awarded in favour of the other, successful, defendants. Notwithstanding my warnings, the parties pressed on with the trial.

55 Mr Slaveski's behaviour during the first phase of the trial was discussed in detail in my interlocutory judgments dated 24 September 2009[4] and 14 December 2009.[5] The first interlocutory judgment sets out details of Mr Slaveski's inappropriate behaviour, the advice and warnings that I gave to him and my reasons for adjourning the hearing pending receipt of an independent psychiatric report on his mental illness. The second interlocutory judgment explains why I concluded that Mr Slaveski was not capable of managing his affairs in relation to this proceeding and why Mrs Slaveska was appointed as his litigation guardian.

56 Mrs Slaveska's appointment as litigation guardian took effect shortly before the completion of her cross-examination. Her re-examination was in the form of comments by her on aspects of the evidence she gave in cross-examination.

57 During the first and second phases of the trial, I explained to Mr Slaveski and Mrs Slaveska, respectively, the rules of evidence and procedure on various issues, and provided other assistance to them, in accordance with my duty to ensure a fair trial. This duty was discussed by Bell J in Tomasevic v Travaglini[6] in the context of a self-represented litigant. The current proceeding, and its unusual course, has highlighted the need to ensure that the principles governing a trial judge's duty to conduct a fair trial where one of the parties is self-represented are flexible and pragmatic so that the trial judge has sufficient latitude to manage the proceeding in the interests of all the parties and of the administration of justice. It is vital that the principles are formulated and applied in a manner that does not tip the balance too far in favour of self-represented litigants, impose too high a burden on the trial judge or result in prejudice to opposing parties.[7]

58 Unfortunately, on 9 February 2010, the second day of his examination in chief, Mr Slaveski became abusive and made scurrilous allegations against the defendants and Victoria Police generally. He also made offensive comments in relation to counsel for the police defendants, Mr Gipp.

59 At the commencement of the hearing on 10 February 2010, during a discussion about the Court's sitting times, Mr Slaveski again became abusive and unruly, and used profane language. I adjourned the hearing briefly. When the hearing resumed, I informed Mrs Slaveska that I would not tolerate such behaviour and I reminded her that, in my judgment of 24 September 2009,[8] I had left open the possibility that the defendants or the Court might revisit the question of whether the hearing should be stayed if that course was warranted by the circumstances. I said that I would not permit repetition of the type of conduct that had occurred during the hearing in September 2009. At this point, Mr and Mrs Slaveski became emotional and I stood down the matter briefly.

60 After the hearing resumed, Mrs Slaveska informed me that she had discussed with Mr Slaveski options for limiting his evidence in chief so as not to provoke similar outbursts from him. She said that certain events were very sensitive for Mr Slaveski and that, when he was questioned about them, he had flashbacks to those events which caused him to become angry and verbally aggressive. Mrs Slaveska said that, where she and Mr Slaveski were both present on any occasion that was relevant to the proceeding, she would ask Mr Slaveski whether he had heard her evidence and whether he would adopt it, instead of asking him to give his own detailed account of the events.

61 I adjourned the hearing for an additional period to enable Mrs Slaveska to consider further how she wished to proceed with Mr Slaveski's evidence. After the adjournment, Mrs Slaveska informed me that she wished to proceed with Mr Slaveski's evidence and that she would be selective about the questions that she asked him.

62 The defendants adopted the sensible approach of agreeing to treat comments that Mr Slaveski made from the bar table regarding the contents of any video, DVD or audio tape that was played in the Court as if those comments had been made by him as a witness under oath. They agreed to do so subject to their right to cross-examine Mr Slaveski in respect of the comments and to make submissions about the admissibility or weight of the comments. This approach saved the Court's valuable time and assisted the progress of the hearing.

63 On 1 March 2010, at the conclusion of Mr Slaveski's evidence, I informed him that he was welcome to remain in the Court while other witnesses gave evidence, but that he would be asked to leave the Court building for the rest of any day on which he became disruptive.

64 Mr Slaveski became disorderly on 4 March 2010 while Jacqueline Baldwin was being cross-examined by Mr Gipp; on 15 and 17 March 2010 while officer Bingham was being cross-examined by Mrs Slaveska; and on 18 March 2010 while officer Smithwick was being examined in chief by Mr Gipp. I ordered that he remain away from the Court building for the rest of the day on 4, 15 and 17 March 2010 and for the rest of the sitting week on 18 March 2010.

65 On 29 March 2010, during the examination in chief of officer Barton, I ordered that Mr Slaveski remain away from the Court building for the rest of that day. I made a similar order on 31 March 2010 during the cross-examination of Professor David Wells; on 15 April 2010 during the cross-examination of officer Rodney Brewer; on 28 and 29 April 2010 during the cross-examination of officer Sadler; on 14 May 2010 during the cross-examination of officer Knowles; on 1 June 2010 during the examination in chief of Lindsay Alexander; and on 2 June 2010 prior to the examination in chief of PSO Della Lovett.

66 The conduct of Mr Slaveski that resulted in his removal from the Court, or in him being reprimanded by me, included menacing behaviour towards me and witnesses. Examples of such inappropriate conduct include:

(a) On 15 March 2010, Mr Slaveski asked me, 'Are you a puppet for the State?' and then said to Mrs Slaveska, 'They're corrupted mate including this judge is corrupted.'

(b) On 18 March 2010, Mr Slaveski called me 'biased'.

(c) On 22 March 2010, after I rose at 4.15pm, Mr Slaveski took a photograph in the courtroom of officer Rhodes, who was still under cross-examination.

(d) On 29 March 2010, Mr Slaveski accused me of being 'corrupted'. Relevant extracts from the transcript are set out at [69] below.

(e) On 31 March 2010, Mr Slaveski called out 'Thank you Doctor' when Professor David Wells gave an answer in cross-examination which Mr Slaveski perceived to be favourable to him.

(f) On 15 April 2010, Mr Slaveski said, among other things, that I was corrupt and that maybe he should sue me or apply to the Sheriff of the High Court to have me arrested. Relevant extracts from the transcript are set out at [70] below.

(g) On 28 April 2010, while I was absent from the courtroom during a brief adjournment, Mr Slaveski responded to my associate's request that he calm down by saying, 'No, you people are tampering with evidence mate' and 'Yeah, because all of you people are corrupted mate'.[9]

(h) On 29 April 2010, Mr Slaveski twice accused me of being 'biased'.[10]

(i) On 14 May 2010, Mr Slaveski called a witness, officer Knowles, a 'crook' and threatened to photograph him.[11]

(j) On 1 June 2010, while Lindsay Alexander was being examined in chief by Mrs Slaveska, Mr Slaveski threatened to sue him.

(k) On 2 June 2010, Mr Slaveski threw a tantrum. Over several minutes, he ranted and raved, uttered vulgarities and accused me of being part of a conspiracy and of 'probably' being aware of an alleged attempt on his life that morning. Relevant extracts from the transcript are set out at [74] below.

67 In the course of the second phase of the trial, there were seven occasions when Mr Slaveski engaged in conduct which arguably constituted a contempt of court. In respect of each occasion, I informed Mr and Mrs Slaveski that, once I had made final orders in the proceeding, I would invite submissions from the parties as to whether Mr Slaveski's conduct constituted a contempt of court and, if so, what should be done about it.[12]

68 The first incident involving conduct which arguably constituted a contempt of court occurred on 25 March 2010. Prior to the luncheon adjournment on the previous day, Mrs Slaveska had requested an adjournment in order to obtain legal advice on whether to seek leave to withdraw as Mr Slaveski's litigation guardian and on whether to make an application that I disqualify myself. I adjourned the hearing until 10.15am on 25 March 2010 to enable Mrs Slaveska to obtain advice on these issues. At 5.00pm on 24 March 2010, Mrs Slaveska sent an email to my associate and to the other parties, stating that she had been unsuccessful in obtaining legal advice. There was no suggestion of ill health. On 25 March 2010, however, my associate received the following telephone messages from Mr Slaveski and his three children:

[9.01am] G'day Shaun, this is a message for you and to Mr Kyrou. Snezana was just taken by an ambulance. I called the ambulance at 8.30. They came about 8.40 ... of feeling dizzy. All of her right side has been numb and I personally hold the judge responsible for putting pressure on Snezana. I told him not to put pressure on her. She told him not to put pressure on her. Even the judge said to her ... even ... sorry ... even the doctor said ... she needs to take it easy but the judge is putting pressure on her. So please give me a call so I can give you more information. She has been hospitalised ... taken by an ambulance at the Northern Hospital in Epping. He is responsible for all this ... for not disclosing that he used to work for the Police Association and also for working for the State. No wonder I used to call him he is bias ... and there you go ... and Snezana said now ... this morning to me at about 7 o'clock that yes, the judge is bias. So please give me a call. He cannot ... he must not put pressure on Snezana like he has. Now, the phone number is [...]. Thank you.

[9.09am] Shaun, Mr Slaveski here. Pick up the phone. I wanna tell you what happened to my wife. It all happened because of the judge, okay. So pick up the phone. If I have to call you 50 times today we'll call you. You people are putting pressure on my wife.

[9.22am] Yeah ... Slaveski here. Pick up the phone, I wanna tell you what happened to my wife ... and you people caused this okay. Tell the judge. You people do it ... putting pressure on my wife.

[9.37am] Shaun, this is Stojne Slaveski ... um ... my mother was taken to hospital this morning and I don't appreciate you not answering your phone and also the judge putting pressure on my mother ... like you people have made my father sick ... by the police ... and I would really like for you to answer your phone.

[10.04am] Hello, this is Naum Slaveski, the son of ... um ... Snezana. I'm telling you to not make my mother sick and stop putting pressure on her. Cos she's in hospital at the moment so ... stop ... because of you people putting pressure on her ... so stop.

[10.06am] Hello ... um ... this is Tanja Slaveski, the ... um ... daughter of Snezana Slaveski. Um ... you sent ... my mum's now in hospital because of you giving her stress, stop ... giving her stress. [Long pause] The judge is putting pressure on her.

[11.13am] Why ... you're not picking up the phone. Let me know what's happening so I can tell you what you people did to my wife mate ... putting pressure. Tell the judge that.

[12.29pm] Hey ... Slaveski here. Just wanna ... just came to the hospital for my wife ... I wanna give you an update ... [word sounding like 'Ashifsez'].

[1.15pm] Yeah ... Slaveski here.

[2.21pm] This is Mr Slaveski. I called you guys 15 or 20 times. You should be embarrassed of yourselves not picking up my phone. Anyway, I just received your email and the treating emergency doctor at the emergency department at Northern Hospital, it's 185 Cooper Street, Epping. The treating doctor at the emergency hospital for Snezana was Peter Papadopoulos ... okay ... so you tell your Greek judge he is a Greek doctor as well. His name is Peter Papadopoulos ... okay.

[4.20pm] Hey Mr Gladman. This is Mr Slaveski. I've called you guys about 15 times or more today. I don't understand how your phone doesn't work today. I just wanted to give you an update for my wife Snezana.

69 The second incident involving conduct which arguably constituted a contempt of court occurred shortly afterwards on 29 March 2010. This was the next sitting day after Mr Slaveski left the telephone messages to which reference is made at [68] above. During the examination in chief of officer Barton, Mr Slaveski said to me, 'You are corrupted mate'. The relevant parts of the transcript are set out below:

[His Honour:] ... one way of interpreting the messages [which were left by Mr Slaveski on 25 March 2010] was that there was a threat. ... I will invite you on behalf of Mr Slaveski to make submissions as to whether they were a threat or whether they're a contempt of court and, if so, ... what should be done about it but I'm not going to deal with that now.

[Mrs Slaveska:] Your Honour, Mr Slaveski has advised me that he doesn't feel like coming to court anymore.

[His Honour:] It's a matter for him, Mrs Slaveska. It's always been a matter for him whether he attends court or not.

[Mrs Slaveska:] I mean, he likes to come to court but he says, "I don't wanna stay over here and have security on top of me and - - -

[His Honour:] Well, security - - -

[Mrs Slaveska:] - - - have it at the top of my head - - -

[His Honour:] The security officers - - -

[Mrs Slaveska:] - - - whether I'll be charged."

[His Honour:] I was going to invite the security officers to leave court now. You may leave the court. Thank you very much. Yes. But that matter, I will deal [with] at the end of this case and I will deal with any other issues that arise, whether for Mr Slaveski or any other person that might possibly be a contempt of court.

[Mr Slaveski:] I am going for good. (Indistinct.)

[His Honour:] All right. Thank you. Call [Mr Barton].

...

[His Honour:] Yes, Mr Gipp.

[Mr Gipp:] Yes. Thank you, Your Honour. Could you state your - - -

[Mr Slaveski:] I'm going for good. I want a written letter from the judge so he doesn't threaten me anymore.

[His Honour:] Mr Slaveski. Mr Slaveski.

[Mr Slaveski:] That's what I want. I am taking my family and if I were you, I'd go to the High Court, Snezana, as well. I want a written letter what they plan.

[His Honour:] Mr Slaveski, you said you'd leave the court. Leave the court please.

[Mr Slaveski:] Sorry?

[His Honour:] Leave the court please.

[Mr Slaveski:] You are corrupted mate.

[His Honour:] Mr Slaveski, I will now, at the end of this case, also consider whether [your conduct], by leaving this court and saying that I am corrupted, constitutes a contempt of court. Don't make things worse for yourself.

[Mr Slaveski:] You believe, Your Honour, that you can really - - -

[His Honour:] Call the security officers please.

[Mr Slaveski:] You really believe that you can threaten me in front of my children.

70 The third incident involving conduct which arguably constituted a contempt of court occurred on 15 April 2010. During the cross-examination of officer Rodney Brewer, who is not a defendant, Mr Slaveski got agitated and said that he should have sued him as well. I asked Mr Slaveski to leave the Court. Mr Slaveski then started arguing with me. He said that I was corrupt, that maybe he should sue me or apply to the Sheriff of the High Court to have me arrested, that I should be locked up and that he was sick of me. In addition, while officer Brewer was in the witness box, Mr Slaveski yelled, 'I should've sued this man as well'. Finally, he threw on to the floor a Hi Fi cassette tape recorder that he had brought into the Court. The relevant parts of the transcript are set out below:

[His Honour:] Mrs Slaveska, move on. It's got nothing to do with what Nolan said. You know that. Stop wasting my time. Get on with it.

[Mrs Slaveska:] Your Honour, I'm not wasting your time.

[His Honour:] You are wasting my time. The committal's got nothing to do with what Nolan said. Your claim is about what Nolan said. Move on. What Mr Rivett said is very relevant. That's what you should be focusing on. Mr Slaveski, leave the court and do not come back for the rest of the day please. You are not here to make comments about who you should sue. You're interrupting.

[Mr Slaveski:] I should've sued you as well - - -

[His Honour:] Mr Slaveski, leave the court.

[Mr Slaveski:] Maybe I should sue you as well.

[His Honour:] Call the security people to escort Mr Slaveski out of court. You are not coming back until tomorrow.

[Mr Slaveski:] Of course - - -

[His Honour:] And be quiet.

[Mr Slaveski:] You be quiet as well.

[His Honour:] Mr Slaveski, now be careful. I've got you on two possible contempts. Do not - - -

[Mr Slaveski:] Yeah, if I make application - - -

[His Honour:] Do - - -

[Mr Slaveski:] - - - be arrested by the sheriff - - -

[His Honour:] Do - - -

[Mr Slaveski:] - - - by the sheriff - - -

[His Honour:] Do not - - -

[Mr Slaveski:] - - - by the sheriff - the High Court. OK. OK.

[His Honour:] Mr Slaveski, do not add [a] third complaint - - -

[Mr Slaveski:] - - -taking - - -

[His Honour:] - - - possible investigation of a contempt please.

[Mr Slaveski:] What are you going to do?

[His Honour:] Mr Slaveski, I have already said at the end of this case - - -

[Mr Slaveski:] I would - I would like an apology from you - - -

[His Honour:] Mr Slaveski, I have said at the end of the case - - -

[Mr Slaveski:] - - -understood that's just what I want from you.

[His Honour:] Mr Slaveski, I've said at the end of this case I am going to [hear] a possible contempt case. Do not add to your problems.

[Mrs Slaveska:] Leave that. You don't need that. Would you leave that?

[Mr Slaveski:] What did you say?

[His Honour:] Do not add to your problems.

[Mr Slaveski:] Add to my problems?

[His Honour:] Yes.

[Mr Slaveski:] Add to my problems - add to my problems.

[His Honour:] Call security please.

[Mr Slaveski:] Add to what problem?

[His Honour:] The problem, Mr Slaveski, is that I have - - -

[Mr Slaveski:] - - - like this at well?

[His Honour:] - - -said at the end of this case I'm going to hear submissions as to whether you've committed a contempt of court.

[Mr Slaveski:] Yeah. You should be locked up. You should work for police association - - -

[His Honour:] Mr Slaveski, you have now in - - -

[Mr Slaveski:] You - - -

[His Honour:] In the court you have now smashed your tape recorder on the floor and broken it.

[Mr Slaveski:] Of course I did. I'm taking my equipment from here.

[His Honour:] Take your equipment, Mr Slaveski.

[Mr Slaveski:] You are corrupt and I told you that.

[His Honour:] Mr Slaveski, I'm now going to hear three possible contempt matters, and that includes you smashing things on the floor of this court and saying that I am - complaint - - -

[Mr Slaveski:] It's my - it's my recorder - - -

[His Honour:] Mr Slaveski, you've just said that I was corrupt.

[Mr Slaveski:] Of course you are - - -

[His Honour:] I am going to consider whether that constitutes contempt.

[Mr Slaveski:] Good.

[His Honour:] That is the third possible contempt - - -

[Mr Slaveski:] I'm sick of you. You - - -

[His Honour:] If you continue behaving this way I will exclude you from the court for a longer period than - - -

[Mr Slaveski:] How long do you want?

[His Honour:] Today; it's one day.

[Mr Slaveski:] No.

[Mrs Slaveska:] Just go please?

[Mr Slaveski:] I should've sued this man as well. How stupid of me. He came in front of my shop and - - -

[His Honour:] Mr Slaveski, please do not make comments that are intended to intimidate a witness.

[Mr Slaveski:] They've got the guns. I don't have a gun.

[Mrs Slaveska:] Just get your - you left (inaudible) down there.

[Mr Slaveski:] I'm sick of this - - -

[His Honour:] Please escort Mr Slaveski outside the building please. Do not permit him to return to the court complex until tomorrow morning. Thank you. Please escort Mr Slaveski outside the court, officers. Thank you, officers.

71 The fourth incident involving conduct which arguably constituted a contempt of court occurred on 28 April 2010. While I was absent from the courtroom during a brief adjournment, Mr Slaveski became agitated and verbally abused Mrs Slaveska, causing her to cry. Mr Slaveski subsequently had a confrontation with a PSO who was sitting in the Court. When Mr Slaveski was asked to calm down by my associate, he responded by saying, 'No, you people are tampering with evidence mate' and 'Yeah, because all of you people are corrupted mate.'[13]

72 The fifth incident involving conduct which arguably constituted a contempt of court occurred on 29 April 2010, during the cross-examination of officer Sadler. After the luncheon adjournment, I told Mr Slaveski that I had been informed that he had been observed unplugging one of the microphones in the courtroom. I then instructed him not to unplug or touch the microphones. When Mr Slaveski became argumentative, I asked him to leave the Court. In response, Mr Slaveski said, 'I can see that the judge is biased' and 'this judge is biased'.

73 The sixth incident involving conduct which arguably constituted a contempt of court occurred on 14 May 2010, during the cross-examination of officer Knowles about photographs he had taken of Mr Slaveski after his arrest on 13 December 2005. Speaking loudly enough for officer Knowles and me to hear, Mr Slaveski said to Mrs Slaveska, 'I will take a photo of him' and 'I'll wait for them outside the Court'. I reminded Mr Slaveski that he was not permitted to make comments that might intimidate witnesses and requested him to leave the Court. At Mrs Slaveska's request, I briefly adjourned the hearing to enable her to speak to Mr Slaveski outside the courtroom. After I had left the Court, Mr Slaveski said to the witness, 'You're a crook. You come by yourself ... not with the guns.'[14]

74 The final incident involving conduct which arguably constituted a contempt of court occurred at the commencement of the hearing on 2 June 2010. Mrs Slaveska informed me that some police vehicles were 'chasing' her and Mr Slaveski on the freeway as they drove to the Court, that the police intended to shoot them because of the proceeding and that she did not feel safe in attending the Court. While I was discussing these concerns with Mrs Slaveska, Mr Slaveski was extremely agitated and was constantly interrupting. When I told Mr Slaveski that I would hear from Mrs Slaveska and not from him, he flew into a rage and hurled abuse at me and everyone else in the Court. Among a myriad of profanities, he accused me of being part of a conspiracy and of 'probably' being aware of an alleged threat on his life that morning. The relevant parts of the transcript are set out below:

[Mrs Slaveska:] Your Honour, Mr Slaveski wants me to ask you, on his behalf, are you aware that the State and the police ordered a hit on us to be killed?

[His Honour:] No, I'm not - - -

[Mrs Slaveska:] Whether you are aware of that?

[His Honour:] No, I'm not aware of that, Mrs Slaveska.

[Mrs Slaveska:] Well, Your Honour, you should know these things.

[His Honour:] I only know what happened - Mr Slaveski, please sit down, I'm not going to hear from you. Please sit down.

[Mr Slaveski:] You don't want to hear from me?

[His Honour:] No, I do not. Now, sit down.

[Mr Slaveski:] That's why can get a (indistinct) for three judges.

[His Honour:] Mr Slaveski, please sit down, otherwise I'm going to remove you from the court. I will remove you from the court. Please sit down. I know - - -

[Mr Slaveski:] Are you threatening me?

[His Honour:] No, all I said - - -

[Mr Slaveski:] Are you threatening me?

[His Honour:] Call extra security, please. Mr Slaveski, you are excluded from the court for the rest of today.

[Mr Slaveski:] Today?

[His Honour:] Yes.

[Mrs Slaveska:] No, Your Honour, I'm not going to stay without Mr Slaveski - - -

[Mr Slaveski:] No, no, no, no, this is a conspiracy. You know, Your Honour - - -

[His Honour:] Mr Slaveski, please be quiet.

[Mr Slaveski:] - - - (indistinct) Victoria Police and everybody that want to kill us.

[His Honour:] Please be quiet.

[Mr Slaveski:] Do you know anything about the murder?

[His Honour:] No, I don't know anything about any murder - - -

[Mr Slaveski:] Yes, you probably do, Your Honour.

[His Honour:] Please leave the court now.

[Mrs Slaveska:] No, Your Honour, where is he going to outside to get shot?

[His Honour:] He's going to leave this court - - -

[Mr Slaveski:] Don't fucking touch me. Don't touch me. I believe - I believe - - -

[His Honour:] Security officers.

[Mr Slaveski:] Hey, don't fucking touch me.

[His Honour:] Security officers. Security officers - - -

[Mr Slaveski:] Don't touch me, I'm going.

[His Honour:] Security officers. Sit down, please.

[Mr Slaveski:] Don't fucking touch me. Don't you fucking understand? Don't fucking touch me. I will get my (indistinct) and I (indistinct) you mother-fuckers, you fucking tried to kill me today (indistinct) - - -

[His Honour:] Mr Slaveski, - - -

[Mr Slaveski:] Do not fucking touch me. Do you fucking understand me, you mother-fuckers? Do not fucking touch me.

[His Honour:] Security officers, sit down. We're going to call (indistinct) - - -

[Mr Slaveski:] Sit fucking down. Sit fucking down.

[His Honour:] Mr Slaveski - - -

[Mr Slaveski:] Do not fucking touch me.

[His Honour:] Mr Slaveski - - -

[Mr Slaveski:] Yes, sir.

[His Honour:] I'm giving you the opportunity to leave peacefully.

[Mr Slaveski:] Do not fucking touch me.

[His Honour:] No one is touching you.

[Mrs Slaveska:] Lupco, calm down. Lupco - - -

[His Honour:] No one is touching you.

[Mr Slaveski:] You fucking mother-fuckers, you going to kill my fucking children - - -

[His Honour:] Madam Associate - - -

[Mr Slaveski:] What you and the fucking (indistinct) - - -

[His Honour:] - - - call extra security. Sit down, please. Sit down, please.

[Mrs Slaveska:] Your Honour, please call an ambulance, he is in a panic - - -

[Mr Slaveski:] OK, do not - - -

[His Honour:] No one is going to touch Mr Slaveski.

[Mrs Slaveska:] I call an ambulance.

[His Honour:] Right. I'm giving him an opportunity to leave peacefully.

[Mr Slaveski:] I don't need a fucking opportunity to say - - -

[His Honour:] Just calm down, Mr Slaveski. We're giving you an opportunity to leave peacefully.

[Mr Slaveski:] He is touching me.

[His Honour:] No one is touching you, Mr Slaveski. Well, call an ambulance, Mrs Slaveska.

[Mr Slaveski:] One and a half hours of phone calls, six guard dogs.

[Mrs Slaveska:] Calm down.

[Mr Slaveski:] I'm sorry. How can you run a trial like this? You fucking pigs, you took my health away.

[His Honour:] Security officer, join your colleagues please and sit down. Just go through this row please and sit down.

(Ambulance telephoned.)

[Mr Slaveski:] I had enough of you people. And I had enough of Supreme Court. I wait for my family to pick me up from here. You going to stay. You going to continue. They tried to kill me today and I've got them recorded.

[His Honour:] That's fine, Mr Slaveski.

[Mr Slaveski:] On this pen, this is a camera.

[His Honour:] Mr Slaveski, I have asked you to leave the court, please.

[Mr Slaveski:] OK. Don't make it come between you and me, Your Honour, please.

[His Honour:] There's nothing between you and me, Mr Slaveski. Just be calm and leave the court, please.

[Mr Slaveski:] I get (indistinct). Don't make it come between you and me, Your Honour, please.

[His Honour:] I don't know what you mean, Mr Slaveski. Just be quiet - - -

[Mr Slaveski:] Any way you want to take it, Your Honour. Twenty-three police officer being sued, let's come to the trial of this court - - -

[His Honour:] Officer, sit next to your colleagues, please.

[Mr Slaveski:] - - - and finish.

[His Honour:] Just go around this way, please.

[Mr Slaveski:] I had enough of this State and I had enough of this corruption, including this Supreme Court corruption. You going to threaten me. I had enough of your threats, (indistinct) you crooks, you mother-fuckers, I had enough of you. You want to kill my children. Fuck you and the fucking State. I had enough of you, you fucking mother-fuckers.

[His Honour:] Mr Slaveski, you're better off being quiet now, please. You're being recorded; it's not good for you.

[Mr Slaveski:] I am recorded.

[His Honour:] Yes.

[Mr Slaveski:] You are part of this conspiracy, Your Honour. You know about the murder that they plot on me and my wife today.

[His Honour:] Mr Slaveski, this incident is now going to be added to the contempt matters against you.

[Mr Slaveski:] Good. Good. And you have a duty to send security downstairs to get my wife.

[His Honour:] Mr Slaveski, leave the court please.

[Mr Slaveski:] Piece of evidence - on the freeway they want to kill me. On the freeway. The state. Is that what sort of a state you people are running?

(Ambulance telephoned.)

[His Honour:] Mr Slaveski, please be quiet and leave the court.

[Mr Slaveski:] Your Honour, please stop the killing. Stop the hit on me and my wife. Please.

[His Honour:] Mr Slaveski, it's best if you be quiet please.

[Mr Slaveski:] Please, Your Honour. I'm praying to you and your family and me and my family, please.

[His Honour:] Mr Slaveski, do not mention my family.

[Mr Slaveski:] I - I don't want my family to be killed. Do you know about this hit?

[His Honour:] Mr Slaveski, I know nothing about any hit. Be quiet.

[Mr Slaveski:] Ten years of torture. Ten years of torture of Victoria Police. Fuck you, you motherfuckers. You gonna kill me and my family.

[His Honour:] Mr Slaveski, please be quiet.

[Mrs Slaveska:] Your Honour, she wants me to give it to a court staff member or somebody

[His Honour:] Let - yes, Madam Associate will speak to him. Get an ambulance to come to 210 William Street.

[Mr Slaveski:] I made an - an offer to come to the funeral so we can read - read it out. One on one at the funeral, so they either die or I die. Ten years of torture (indistinct).

[Mrs Slaveska:] You're going to tell them to come quickly then.

[Mr Slaveski:] For the sake of children, please, Your Honour, tell them to stop this. Please. I beg you. Your Honour. Your Honour, please. Your Honour, can you look at me. Tell them to stop this, please.

[His Honour:] Mr Slaveski.

[Mr Slaveski:] Please.

[His Honour:] Please leave the court.

[Mr Slaveski:] Can you tell them to stop.

[His Honour:] Mr Slaveski, please leave the court.

[Mr Slaveski:] Do you give me your word that you will tell them to stop this.

[His Honour:] Mr Slaveski, I'm hearing this case. I'll hear the evidence and I'll make a decision. Please now leave the court.

[Mrs Slaveska:] Your Honour, can I go with him please.

[His Honour:] Yes, yes. Mrs Slaveska, I'm going to adjourn the court as soon as you're at the door. Security officers, you are to follow Mr Slaveski. You are not to interfere with them unless it becomes absolutely necessary. He's obviously very agitated. Don't confront him unless it becomes necessary for your safety and the court's safety. I'll adjourn now until further notice. Thank you.

75 Mr Slaveski did not attend the Court again until 6 August 2010. Mrs Slaveska informed the Court that he had fled to Sydney for his safety. On 22 June 2010 - the day on which the hearing of the evidence was due to be completed - Mr Slaveski telephoned my associate and left rambling and highly inappropriate messages over a continuous period of 24 minutes. Parts of the messages are set out below:

I had no choice your Honour Justice, Justice Kyrou but to leave the State on the 2nd of June 2010, you know what happened, we told you, we advised you and to be quite honest, I was disappointed in you because I do believe that you have the ultimate power to order this corrupted crooks, murderers, police officers. They had a plot to kill me on the freeway and I suspect, well I thought that if they would have killed me, I think they had a plan to kill me the way things came out, probably they would have killed Snezana as well so there's no witness there. But on the other hand, I would have expected your Honour to tell this corrupted, excuse the language, mother fuckers, they are crooks, say your Honour could have said, I'm ordering Victoria Police to leave Mr Slaveski and Mrs Slaveski to come from home to Court and give their evidence to the best of their ability and then let your Honour decide, but then again your Honour, I don't know what's behind the Supreme Court, I don't know whether somebody's on top of you, forcing you to not look into that matter, but then again we are looking at your Honour, human rights, we are looking at human person. I've got three children. I'm not going to stop on the freeway for this crooks, Victoria Police murderers.

...

I want my family to be safe and sound so please tell this people not to get near my children. If they, if they get into my children, I will go in their children's kindergartens, whatever they do to my kids, I will do to their kids. I swear on my three children, I swear on Saint Naum, it's a saint in Macedonia, so please tell this crooks to keep away from my children. So let your Honour decide whatever you wanna take it but you must understand your Honour, you have the power to expose this crooks, because don't forget, you've got children, you've got a brother or you've got a sister or you've got a cousin, it will happen one day to your nephew, to your son, to your daughter, it could happen to your brother's son or daughter, to your cousin's son or daughter, so you have the power, you are on top of that bench sitting high close to God, therefore you must stop this your Honour.

...

So your Honour, please excuse this language that I am speaking but I beg you to put in your judgment to stop all the conspiracy, expose this corruption of Victoria Police so it's a new stage, a new era and once again, I'd like to apologise to you, and your Honour, I wanted to be there for the last day to apologise to you in person but I could not and I will not come back to Victoria because I'm scared. I don't wanna be killed. If I was to come there, I applied for a gun in front of three judges, they didn't give me one, so I'll apply interstate for a gun here so if I was to come there, I've gotta come there, I can't come there like Snezana said excuse the language, they've got 10 guns and I've got what, excuse the language, I've got my hands on my dick? No. I apologise for the language your Honour.

...

So once again your Honour, please forgive me and overall you are a good man, I mean that. God bless you and all the best to you and your family and, give my regards to your workers there and apologise once again. And also, give my um, if your assistant can apologise to the security guys there, but it's been a very very long run, very very long trial and I've gotta congratulate you for putting up and looking into the case.

...

So your Honour, once again, good luck, God bless and I'm sorry, I hope you forgive me and I'm asking God to forgive me. Good-bye my dear friend, all the best, bye-bye.

76 By any measure, acting as Mr Slaveski's litigation guardian without legal representation was always going to be a difficult task for Mrs Slaveska. She had to conduct a large and complex trial over several months virtually on her own. She had to read a large number of documents; to prepare detailed questions for 17 of her own witnesses as well as for 40 defence witnesses, which included 34 experienced police officers and three experts; to learn the rules of evidence and trial procedures; and to perform her task in the face of constant outbursts from Mr Slaveski. It is likely that most lay people would have found the burden too onerous and would have given up. To her credit, Mrs Slaveska had the courage to persevere and she worked tirelessly in the pursuit of Mr Slaveski's claims. I have no doubt that no other lay advocate could have done a better job in presenting his case.

77 Although Mrs Slaveska's energy and determination resulted in a robust - and sometimes feisty - presentation of Mr Slaveski's case, her lack of legal qualifications and experience inevitably resulted in the hearing progressing in an inefficient and unwieldy manner.

78 Mrs Slaveska often objected to questions simply because she did not like them or because Mr Slaveski asked her to do so. In cross-examination, she frequently asked questions which were irrelevant, repetitious or mere assertions. Some questions were aimed at embarrassing the police defendants, rather than at eliciting relevant evidence from them. Some purported questions contained not-so-subtle threats that the witness would be sued, notwithstanding my prior warnings that the making of such threats was highly improper. Mrs Slaveska put matters to witnesses without any factual foundation and irresponsibly accused all but four of the 40 witnesses she cross-examined of lying to the Court.[15]

79 Mrs Slaveska sometimes became argumentative when I made rulings against her. She also made repeat applications on matters upon which I had already ruled. On some occasions, she was a mere mouthpiece for Mr Slaveski. That is not to say, however, that Mrs Slaveska failed to exercise independent judgement; not infrequently, she motioned for Mr Slaveski to be quiet or put aside handwritten notes that he had given to her without referring to their contents.

80 The agreed time limits for the completion of Mrs Slaveska's cross-examination of witnesses always afforded her more time than she reasonably required. Nonetheless, on several occasions, Mrs Slaveska failed to complete the cross-examination of a witness within the agreed time limit because she became obsessed with the pursuit of peripheral credit issues. When I sought to enforce the deadline, she would complain that 'it's not fair'. Mrs Slaveska appeared to be of the view that 'fairness' required that she be allowed to keep a witness in the witness box for as long as it suited her. Invariably, on these occasions, I extended the deadline to enable her to ask additional questions. I also agreed to recall some witnesses at her request.

81 Some hearing days were lost when Mr or Mrs Slaveski informed the Court, on the morning of the relevant day, that Mrs Slaveska was ill or that their teenaged son was ill and that she was required to stay at home to care for him. Although I explained to Mrs Slaveska that an application for an adjournment on medical grounds had to be supported by more than a one-line medical certificate, she continued to rely on such certificates to justify her absences from the Court. These absences caused inconvenience to the Court and to the defendants, their legal practitioners and their witnesses. They also added to the already considerable delays in the resolution of the proceeding.

82 In addition, much time was wasted because Mrs Slaveska regularly arrived at the Court well past the scheduled time of commencement for the hearing. This included days when, at her request, the hearing had been scheduled to commence earlier than usual.

83 Unfortunately, on many occasions, the hearing degenerated into a farce, with Mr Slaveski shouting and otherwise behaving inappropriately, Mrs Slaveska making speeches 'for the record' and witnesses looking on in disbelief. On these occasions, my priority was to restore order, usually by removing Mr Slaveski from the Court. I would then remind Mrs Slaveska about the proper conduct of the proceeding, and press on with the trial.

84 The requirement in r 15.02(3) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) that a litigation guardian must act by a solicitor has much to commend it. I waived that requirement in this proceeding because, had I not done so, the likely result would have been an order that the proceeding be stayed and Mr Slaveski would have been deprived of his right to have his claims tested in the Court.[16]

My questions to the police defendants and their witnesses

85 Prior to the defendants calling any evidence, I informed Mr Gipp that I might ask some questions of any defence witness after Mrs Slaveska had completed her cross-examination. I said that, if I did so, it would be for two reasons. The first reason was to ensure a fair trial by asking the witness any obvious questions which Mrs Slaveska had neglected to ask. The second reason was for me to give the witnesses an opportunity to clarify any issues that were not clear to me or that caused me concern. Mr Gipp did not object to this proposed course.

86 In accordance with what I had indicated to Mr Gipp, after Mrs Slaveska had completed her cross-examination, I asked some questions of officers Bingham, Leemon, Sadler, Peck, Jones, Nolan, Cole, Tennyson, Wendt, Sadler, Kirkright, Baade, Anderson, Knowles, Lowerson, Cross, Wood, Parker, Bakas, Smith and Gray and PSO Lovett. I gave Mrs Slaveska an opportunity to ask each witness any further questions that arose out of any of my questions. Mr Gipp then re-examined the witness on matters arising out of Mrs Slaveska's cross-examination and my questions.

87 On 7 September 2009, during the first phase of the trial, Mr Slaveski made an application that I disqualify myself on the basis of rulings I had made that were adverse to him. During the second phase of the trial, Mrs Slaveska made an application that I disqualify myself on the basis that I had acted for the State while I was in practice and also on the basis of rulings I had made that were adverse to Mr Slaveski. I refused both applications.[17]

88 Subsequently, Mr Slaveski made an ex-parte application to a judge of the High Court seeking leave to apply for an order under s 40 of the Judiciary Act 1903 (Cth) removing the current proceeding into the High Court. On 15 September 2010, Crennan J refused to grant leave on the basis that the proposed application for removal, if issued, would be an abuse of process of the High Court.

PART 2 - POLICE POWERS

89 As most of the causes of action relied upon by Mr Slaveski relate to events which involved the exercise of police powers, in this Part 2, I discuss the legal sources and scope of the relevant police powers.

90 In Victoria, the common law powers of arrest without warrant have been abolished by statute.[18] Section 457 of the Crimes Act 1958 provides that no person may be arrested without warrant except pursuant to the provisions of that Act or some other Act that expressly confers a power of arrest without warrant.

Power of arrest conferred by s 459 of the Crimes Act

91 Sections 458 and 459 of the Crimes Act provide for the arrest of a person without a warrant.

92 Section 458 provides that any person, regardless of whether he or she is a police officer, may arrest another person in defined circumstances. The powers of arrest contained in s 458 are not relevant to this proceeding.

93 Section 459 authorises a member of the police force to arrest a person that he or she believes on reasonable grounds has committed an indictable offence. This is the power relied upon by the police defendants to arrest Mr Slaveski on 8 September 2000, 13 December 2005 and 29 January 2007. At all relevant times, s 459 relevantly provided:

459 Powers of member of police force to apprehend offenders

In addition to exercising any of the powers conferred by section 458 or by or under any other Act a member of the police force may at any time without warrant apprehend any person -

(a) he believes on reasonable grounds has committed an indictable offence in Victoria (including any indictable offence which may be heard or determined summarily); ...

94 Section 459 must be read in conjunction with s 461(1) of the Crimes Act, which provides:

461 Arrest on reasonable grounds not to be taken to be unlawful

(1) Where an apprehension is made under a belief on reasonable grounds in accordance with the provisions of section 458 or section 459 the apprehension shall not cease to be lawful or be taken to be unlawful where it subsequently appears or is found that the person apprehended did not commit the offence alleged.

95 It was not in dispute in this proceeding that the offences for which Mr Slaveski was arrested on 8 September 2000, 13 December 2005 and 29 January 2007 were indictable offences.

96 A police officer arresting a person under s 459 must believe on reasonable grounds that the person has committed an indictable offence. In George v Rockett,[19] the High Court said:

When a statute prescribes that there must be 'reasonable grounds' for a state of mind - including suspicion and belief - it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.[20]

97 Consequently, in order for an arrest to be authorised by s 459, the police officer must actually believe that the person being arrested has committed an indictable offence and his or her belief must be based on facts that would be sufficient to induce that state of mind in a reasonable person.

98 Belief must be distinguished from suspicion.[21] This is because, as Vincent J observed in Walsh v Loughnan,[22] '[t]he facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief.'[23]

99 In George v Rockett,[24] the High Court cited with approval the definition of 'suspicion' proffered by Kitto J in Queensland Bacon Pty Ltd v Rees:[25] '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"'.[26]

100 The Court held that '[b]elief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.'[27] While belief is a more certain state of mind than suspicion, it need not be informed by actual proof. As their Honours said:

The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof.[28]

101 The information upon which the police officer formed his or her belief may take a variety of forms and relate to a wide variety of matters. When the reasonableness of that belief is in issue, the fact that the information may be inadmissible as hearsay at a later trial of the arrested person is irrelevant because it is put forward, not as evidence of its own truth, but as part of the material that is said to have given the police officer reasonable grounds for the belief.[29]

102 The police officer must believe that a particular indictable offence has been committed, and not just an indictable offence in some general sense.[30]

103 While powers of arrest are now governed by statute in Victoria, the common law still determines how a lawful arrest must be effected. Assuming there exists a statutory power of arrest and that power is not exceeded by the person effecting the arrest ('the arrester'), a person ('the arrestee') will be lawfully arrested if:

(a) the arrestee was deprived of his or her liberty;

(b) the arrester informed the arrestee that he or she was under arrest; and

(c) the arrester informed the arrestee of the reason for the arrest.

104 If any of these requirements is not satisfied, the arrest will be unlawful and, if the arrestee is restrained, he or she may recover damages for assault, battery and false imprisonment. These torts are discussed in Part 3.

106 While the arrestee must be deprived of his or her liberty in order to be lawfully arrested, there is no requirement that the arrestee be actually seized or subjected to physical force. There will be a sufficient deprivation of liberty if the arrestee submits to the arrester's control after the arrester has indicated his or her intention to effect the arrest. In Alderson v Booth,[31] Lord Parker CJ said:

There are a number of cases, both ancient and modern, as to what constitutes an arrest, and whereas there was a time when it was held that there could be no lawful arrest unless there was an actual seizing or touching, it is quite clear that that is no longer the law. There may be an arrest by mere words, by saying 'I arrest you' without any touching, provided, of course, that the defendant submits and goes with the police officer. Equally it is clear ... that an arrest is constituted when any form of words is used which in the circumstances of the case were calculated to bring to the defendant's notice, and did bring to the defendant's notice, that he was under compulsion and thereafter he submitted to that compulsion.[32]

107 If the arrestee does not submit to the arrester's control, the deprivation of the arrestee's liberty must be formally established by the arrester touching his or her person.[33]

108 The arrester must do all that a reasonable person would do in the circumstances to inform the arrestee that he or she is under arrest.[34]

109 An arrest will not be lawful if the arrestee, in submitting to the arrester, understands that he or she is acting voluntarily. Any form of words used to communicate the fact of arrest must unequivocally bring home to the arrestee that he or she is acting under compulsion.[35]

110 In R v Inwood,[36] the English Court of Appeal held that whether it has been made sufficiently clear to the arrestee that he or she is acting under compulsion is a question of fact that depends upon all the circumstances of the case. The Court said:

No formula will suit every case and it may well be that different procedures might have to be followed with different persons depending on their age, ethnic origin, knowledge of English, intellectual qualities, physical or mental disabilities. There is no magic formula; only the obligation to make it plain to the suspect by what is said and done that he is no longer a free man.[37]

111 In Christie v Leachinsky,[38] the House of Lords held that the arrester ordinarily must inform the arrestee, at the time of the arrest, of the offence, or the facts that are said to constitute the offence, for which the arrest is effected.[39]

112 Numerous decisions of Australian courts have referred to Christie with approval.[40]

113 The arrester need not communicate the reason for the arrest to the arrestee using technical or precise language.[41] The sufficiency of the communication is to be considered as a matter of substance and by reference to the principle that

a person is, prima facie, entitled to his freedom and is only required to submit to restraints on his freedom if he knows in substance the reason why it is claimed that this restraint should be imposed.[42]

114 Provided that the arrestee is informed of the facts that are said to constitute the offence for which the arrest is effected, it does not matter that he or she is later charged with a different offence from that specified by the arrester. As Lord Simonds said in Christie:

if the act constituting the crime is the killing of another man, it will be immaterial that the arrest is for murder and at a later hour the charge of manslaughter is substituted. The arrested man is left in no doubt that the arrest is for that killing.[43]

115 In Christie, however, the arrestee was not so informed. The arrest in question was effected without warrant by two Liverpool police officers, who reasonably suspected the arrestee to have stolen or feloniously received certain goods. Rather than inform the arrestee that he was under arrest for larceny, the police officers led him to believe that the arrest was for the misdemeanour offence of being 'in unlawful possession' of the goods. In the circumstances, this misdemeanour offence could not justify the arrestee's arrest without a warrant. The House of Lords held that the arrest was unlawful because the arrestee had not been informed of the true reason for his arrest. This reason was not a suspicion that the arrestee merely possessed the goods, but a suspicion that he had stolen the goods or had received them knowing that they were stolen.[44]

116 There are some circumstances in which an arrester is excused from immediately informing the arrestee of the reason for the arrest, including where:

(a) the arrestee prevents the arrester from doing so, for example, by violently resisting the arrest or absconding;[45]

(b) the circumstances are such that the arrestee must know the general nature of the offence for which the arrest is effected, such as where he or she has been given prior notice of the proposed arrest and the reason for it or has been 'caught red-handed and the crime is patent to high Heaven';[46] and

(c) the arrestee is unable to understand the reason because of a disability, an inability to speak English or intoxication, provided that the arrester does all that a reasonable person would do in the circumstances.[47]

117 In these situations, the arrestee must be informed of the reason for the arrest at the earliest reasonable opportunity.[48]

118 In Victoria, the common law as stated in Christie has been supplemented by legislation. Section 21(4) of the Charter of Human Rights and Responsibilities Act 2006 ('Charter') provides:

A person who is arrested or detained must be informed at the time of arrest or detention of the reason for the arrest or detention and must be promptly informed about any proceedings to be brought against him or her.

119 Section 21 is contained within Part 2 of the Charter, which sets out numerous human rights. Part 2 commenced operation on 1 January 2007.[49] Section 38(1) of the Charter provides that it is unlawful for a 'public authority', which includes Victoria Police,[50] to act in a way that is incompatible with a human right contained in Part 2. This section, however, is contained within Division 4 of Part 3 of the Charter, which did not commence operation until 1 January 2008,[51] after the events of this proceeding.

120 Section 462A of the Crimes Act provides:

462A Use of force to prevent the commission of an indictable offence

A person may use such force not disproportionate to the objective as he believes on reasonable grounds to be necessary to prevent the commission, continuance or completion of an indictable offence or to effect or assist in effecting the lawful arrest of a person committing or suspected of committing any offence.

121 Broadly, s 462A contains two limbs. The section authorises any person to use such force not disproportionate to the objective as he or she believes on reasonable grounds to be necessary:

(a) to prevent the commission, continuance or completion of an indictable offence ('first limb of s 462A'); or

(b) to effect or assist in effecting the lawful arrest of a person committing or suspected of committing any offence ('second limb of s 462A').

122 It is the second limb, and not the first limb, of s 462A that may be relevant to this proceeding. This second limb of s 462A confers a right to use force that is 'not disproportionate' to effect a lawful arrest, but it does not confer any power of arrest. This follows from the use of the expression 'lawful arrest', which logically makes the existence of a valid power of arrest a prerequisite for the use of force to effect that arrest.

123 In my opinion, for the reasons that follow, the second limb of s 462A is confined to situations where the arrest is effected contemporaneously with the commission or suspected commission of an offence and does not apply to an arrest effected under s 459(a).

124 The use of the present participle 'committing' makes it clear that the right to use force that is 'not disproportionate' to 'effect ... the arrest of a person committing ... any offence' is conditional upon the arrest occurring at the same time that an offence is committed. In order to construe the second limb of s 462A as applying to an arrest under s 459(a), the word 'committing' in the phrase 'person ... suspected of committing any offence' would have to be given a different meaning; that word would have to be read, in the second instance only, as 'having committed'. Such a construction, however, would strain the language of the provision.

125 Further, the other provisions in Part III, Division 1, Subdivision (30) of the Crimes Act distinguish between a person found 'committing' some offence[52] and a person that is reasonably believed to have 'committed', or that is suspected of having 'committed', some offence.[53] An apposite example is s 463A(1), which uses both expressions. This section provides that the person in command of an aircraft may arrest without warrant a person that he or she 'finds committing, or reasonably suspects of having committed, or of having attempted to commit, an offence on or in relation to or affecting the use of an aircraft.' Section 462A should be interpreted consistently with the Parliament's clear intention to distinguish between the words 'committing' and 'committed' in Part III, Division 1, Subdivision (30), and these words should be given their plain and ordinary meanings.

126 Even in the absence of s 462A, a person would be entitled to use force, but only reasonable force, when lawfully effecting the arrest of a person. For a police officer arresting a person that he or she believes on reasonable grounds to have committed an indictable offence in Victoria, the source of that right is s 459(a) of the Crimes Act. The right to use force is a corollary of the right to effect an arrest. As the Full Court said in R v Turner,[54] a statutory provision that conferred on a person a power of arrest, but made no allowance for the use of force to exercise that power, 'would be a very weak and in most cases ineffective power to bestow.'[55]

127 In that case, the Court held that a statutory provision that confers a right to use force to effect an arrest should be construed as authorising only such force as is reasonably necessary to do so.[56] In the context of a police officer's power under the common law to arrest a person who has committed, or is about to commit, a felony, the Court said that the reasonableness of the force used by the arrester 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 (i.e. the commission of the felony or the escape of the felon).[57]

128 Where they apply to determine the nature of the force that may be used in effecting a lawful arrest, the test in s 462A of the Crimes Act and the test in R v Turner[58] are likely to produce the same result in a given case. The force used by persons effecting an arrest must be not disproportionate to their objective or, considered from the position of a reasonable person, not disproportionate to the evil that they are attempting to prevent, and must be reasonably believed by them to be necessary to effect the arrest.

129 The power of an arresting officer to use reasonable and proportionate force to effect an arrest includes the use of such force to restrain or recapture an arrestee, who resists or breaks away from the arresting officer after the arrest. In other words, the power is not exhausted merely because the arrest was formally established by an initial touching of the arrestee by the arrester.[59]

130 In Walker v Hamm,[60] Smith J emphasised that an assessment of the reasonableness of a police officer's conduct must be made in a 'realistic manner' that takes into account 'the reality that the officer has to make decisions quickly, often in emergencies and under pressure.'[61] Similar statements appear in other cases. In Woodley v Boyd,[62] for example, Heydon JA said that, '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.'[63] His Honour then referred to the following observation of Connor J in McIntosh v Webster:[64]

Arrests are frequently made in circumstances of excitement, turmoil and panic [and] it would be 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.[65]

131 A police officer is not entitled to use handcuffs on a person merely because an arrest has been effected. All the circumstances must be examined to determine whether there are reasonable grounds for the use of handcuffs. As Charles JA explained in Perkins v County Court of Victoria,[66] the circumstances must disclose some special feature in order for such reasonable grounds to exist:

there is no general rule that persons arrested and being conveyed to [a place of detention] or from a place of detention to a court must be handcuffed. An arresting officer is entitled to take proper precautions when conveying a person in custody, and all the circumstances must be considered to determine whether there are reasonable grounds for the arresting officer to handcuff the prisoner. But the right to handcuff must be found in some additional circumstance, such as the necessity to prevent the prisoner's escaping; or committing some further offence; or endangering the safety of persons or property.[67]

132 In Leigh v Cole,[68] Williams J said:

with respect to handcuffing, the law undoubtedly is, that police officers are not only justified, but they are bound to take all reasonably requisite measures for preventing the escape of those persons they have in custody for the purpose of taking them before the magistrates; but what those reasonable measures are must depend entirely upon circumstances, upon the temper and conduct of the person in custody, on the nature of the charge, and a variety of other circumstances which must present themselves to the mind of any one. As to supposing that there is any general rule that every one conveyed from the police station to the magistrates' court is to be handcuffed, seems to me to be an unjustifiable view of the law, and one on which the police officers are mistaken. In many instances a man may be conveyed before the magistrates without handcuffing him, and taking him thus publicly through the streets.[69]

133 In Kumar v Minister for Immigration, Local Government and Ethnic Affairs,[70] the applicant challenged the lawfulness of his arrest by an officer of a government department. Lockhart J held that the power of arrest exercised by the officer implied a power to handcuff an arrested person, but only to prevent that person from escaping or endangering the safety or property of other persons.[71] His Honour decided that the handcuffing of the applicant was unreasonable because his conduct had not suggested that he was likely to escape or to act in a violent manner. The unlawfulness of the handcuffing, however, did not vitiate the applicant's lawful arrest, which was completed before the handcuffs were placed on him.[72]

134 Section 464A of the Crimes Act provides:

464A Detention of person in custody

(1) Every person taken into custody for an offence (whether committed in Victoria or elsewhere) must be -

(a) released unconditionally; or

(b) released on bail; or

(c) brought before a bail justice or the Magistrates' Court -

within a reasonable time of being taken into custody.

(2) If a person suspected of having committed an offence is in custody for that offence, an investigating official may, within the reasonable time referred to in subsection (1) -

(a) inform the person of the circumstances of that offence; and

(b) question the person or carry out investigations in which the person participates in order to determine the involvement (if any) of the person in that offence.

(3) Before any questioning (other than a request for the person's name and address) or investigation under subsection (2) commences, an investigating official must inform the person in custody that he or she does not have to say or do anything but that anything the person does say or do may be given in evidence.

(4) In determining what constitutes a reasonable time for the purposes of subsection (1) the following matters may be considered -

(a) the period of time reasonably required to bring the person before a bail justice or the Magistrates' Court;

(b) the number and complexity of offences to be investigated;

(c) any need of the investigating official to read and collate relevant material or to take any other steps that are reasonably necessary by way of preparation for the questioning or investigation;

(d) any need to transport the person from the place of apprehension to a place where facilities are available to conduct an interview or investigation;

(e) the number of other people who need to be questioned during the period of custody in respect of the offence for which the person is in custody;

(f) any need to visit the place where the offence is believed to have been committed or any other place reasonably connected with the investigation of the offence;

(g) any time taken to communicate with a legal practitioner, friend, relative, parent, guardian or independent person;

(h) any time taken by a legal practitioner, interpreter, parent, guardian or independent person to arrive at the place where questioning or investigation is to take place;

(i) any time during which the questioning or investigation of the person is suspended or delayed to allow the person to receive medical attention;

(j) any time during which the questioning or investigation of the person is suspended or delayed to allow the person to rest;

(k) the total period of time during which the person has been in the company of an investigating official before and after the commencement of custody;

(l) any other matters reasonably connected with the investigation of the offence.

135 Section 464C of the Crimes Act relevantly provides:

464C Right to communicate with friend, relative and legal practitioner

(1) Before any questioning or investigation under section 464A(2) commences, an investigating official must inform the person in custody that he or she -

(a) may communicate with or attempt to communicate with a friend or relative to inform that person of his or her whereabouts; and

(b) may communicate with or attempt to communicate with a legal practitioner -

and, unless the investigating official believes on reasonable grounds that -

(c) the communication would result in the escape of an accomplice or the fabrication or destruction of evidence; or

(d) the questioning or investigation is so urgent, having regard to the safety of other people, that it should not be delayed -

the investigating official must defer the questioning and investigation for a time that is reasonable in the circumstances to enable the person to make, or attempt to make, the communication.

(2) Subject to subsection (1), if a person wishes to communicate with a friend, relative or legal practitioner, the investigating official in whose custody the person then is -

(a) must afford the person reasonable facilities as soon as practicable to enable the person to do so; and

(b) must allow the person's legal practitioner or a clerk of the legal practitioner to communicate with the person in custody in circumstances in which as far as practicable the communication will not be overheard.

...

136 Section 464(1) of the Crimes Act provides that, for the purposes of Part III, Division 1, Subdivision 30A, a person is in custody if, among other things, he or she is under lawful arrest under s 459.

137 The detention of a person in custody for longer than a 'reasonable time', contrary to s 464A(1) of the Crimes Act, constitutes the tort of false imprisonment.[73]

A lawful arrest is not vitiated by subsequent unlawful conduct by the arrester

138 An arrest is lawful if the requirements set out at [103] above are satisfied. Once those requirements are satisfied, the arrest is completed. Subsequent unlawful conduct by the arrester - such as the unlawful detention of the arrestee - cannot vitiate[74]he arrest.74

139 Section 459A of the Crimes Act provides:

459A Entry and search of premises

(1) A member of the police force may, for the purpose of arresting under section 458 or 459 or any other enactment a person whom he -

(a) believes on reasonable grounds -

(i) to have committed in Victoria a serious indictable offence;

(ii) to have committed an offence elsewhere which if committed in Victoria would be a serious indictable offence; or

(iii) to be escaping from legal custody; or

(b) finds committing a serious indictable offence -

enter and search any place where the member of the police force on reasonable grounds believes him to be.

(2) In order to enter a place pursuant to subsection (1), a member of the police force may, if it is necessary to do so, use reasonable force.

(3) In this section serious indictable offence has the same meaning as it has in section 325.

140 The expression 'escaping from legal custody' includes breaking away from a police officer after being arrested by that officer.[75]

141 The expression 'serious indictable offence' is defined in s 325(6) of the Crimes Act as:

an indictable offence which, by virtue of any enactment, is punishable on first conviction with imprisonment for life or for a term of five years or more.

142 The offence of making a threat to kill, which is relevant to Mr Slaveski's arrest on 8 September 2000, was (and is) a serious indictable offence.

143 The common law allowed the issue of search warrants only in cases where premises were to be searched for the purpose of seizing stolen items, together with the person in whose custody any such items were found.[76] Outside this category of case, the general rule was that police officers were forbidden to enter upon private property without the occupier's permission.[77]

144 The common law position is now subject to many legislative exceptions. In Baker v Campbell,[78] Mason J described the search warrant in the following terms:

The search warrant has been described as 'part of the investigative pre-trial process of the criminal law, often employed early in the investigation and before the identity of all of the suspects is known' ... Its function is to authorize a search and seizure of materials which will implicate a person in the commission of the offence. The search and seizure which it authorizes is designed, among other things, to yield evidence which can be tendered by the prosecution in the subsequent trial of a person for the offence described in the warrant.[79]

145 Given that statutory provisions for the issue of search warrants authorise what would otherwise be tortious conduct, the courts require those provisions to be clearly expressed in unmistakeable and unambiguous language.[80] They insist that search warrants be issued and executed in strict compliance with the requirements laid down by the legislature.[81]

Crimes Act, Magistrates' Court Act and relevant regulations

146 Section 465 of the Crimes Act is the core provision governing the issue of search warrants in Victoria. As at 13 December 2005, s 465 relevantly provided:

465 Issue of search warrant by magistrate

(1) Any magistrate who is satisfied by the evidence on oath or by affidavit of any member of the police force of or above the rank of senior sergeant that there is reasonable ground for believing that there is, or will be within the next 72 hours, in any building, receptacle or place -

(a) anything upon or in respect of which any indictable offence has been or is suspected to have been committed or is being or is likely to be committed within the next 72 hours; or

(b) anything which there is reasonable ground to believe will afford evidence as to the commission of any such offence; or

(c) anything which there is reasonable ground to believe is intended to be used for the purpose of committing any indictable offence against the person for which the offender may be arrested without warrant -

may at any time issue a warrant authorizing some member of the police force or other person named therein to search such building receptacle or place for any such thing and to seize and carry it before the Magistrates' Court to be dealt with according to law.

(1A) ...

(1B) ...

(2) Subject to this section the rules to be observed with regard to search warrants mentioned in the Magistrates' Court Act 1989 shall extend and apply to warrants under this section.

(3) The provisions of this section shall be read and construed as in aid of and not in derogation of the provisions with regard to warrants to search contained in this or any other Act.

(4) The Governor in Council may make regulations prescribing the form of any warrant to be issued under this section ...

147 Section 465(2) means that the provisions of the Magistrates' Court Act 1989 dealing with search warrants are applicable to warrants issued under s 465(1).

148 Section 57(8) of the Magistrates' Court Act provides:

A warrant must be executed by the use of a copy of the warrant, known as the execution copy, or by the use of a copy of the execution copy, including a copy transmitted by facsimile machine.

149 Section 57(10) of the Magistrates' Court Act provides that the execution copy of the warrant must be returned to the Magistrates' Court when it has been executed.

150 Section 78 of the Magistrates' Court Act sets out the authority given by the search warrant. As at 13 December 2005, this section relevantly provided:

78 Authority conferred by search warrant

(1) A search warrant authorises the person to whom it is directed -

(a) ...

(b) if the warrant is to search for any thing -

(i) to break, enter and search any place named or described in the warrant for any article, thing or material of any kind named or described in the warrant; and

(ii) to bring the article, thing or material before the Court so that the matter may be dealt with according to law; and

(iii) to arrest any person apparently having possession, custody or control of the article, thing or material.

(2) ...

(3) ...

(4) ...

(5) For the purposes of sub-section (1)(b)(ii) an article, thing or material that is bulky or cumbersome may be brought before the Court by giving evidence on oath to the Court as to the present whereabouts of the article, thing or material and by producing a photograph of it.

(6) The Court may direct that any article, thing or material seized under a search warrant be returned to its owner, subject to any condition that the Court thinks fit, if in the opinion of the Court it can be returned consistently with the interests of justice.

151 Section 78 also contains provisions dealing with the arrest of a person pursuant to the power referred to in s 78(1)(b)(iii). As the police defendants did not rely on this power of arrest, those provisions have not been extracted.

152 The Crimes (Search Warrant) Regulations 2004 ('Regulations') were made pursuant to s 465(4) of the Crimes Act. Regulation 4 provides that any warrant issued by a magistrate under s 465 must be in the form scheduled to the Regulations.[82] The prescribed form requires that the issued warrant include the following details:

(a) the name and description of the article, thing or material the subject of the search;

(b) the full address of the premises where the search will be conducted for the article, thing or material; and

(c) the reasons for the search or a description of the suspected offence.

153 In terms that are almost identical to those used in s 78(1)(b) of the Magistrates' Court Act, the prescribed form of warrant authorises the executing police officers:

to break, enter and search any place named or described in this warrant for any article, thing or material of any kind described in this warrant;

AND

to bring the article, thing or material before the [Magistrates'] Court so that the matter may be dealt with according to law;

AND

to arrest any person apparently having possession, custody or control of the article, thing or material.

154 The issue of a search warrant and the execution of a search warrant are discrete functions.[83] In this proceeding, Mr Slaveski challenged the lawfulness of the execution of the search warrant at the Lalor shop on 13 December 2005. He did not claim that the search warrant was invalidly issued.

155 Some of the cases referred to below involved challenges to search warrants issued under legislation in force in other Australian jurisdictions, especially (the now repealed) s 10 of the Crimes Act 1914 (Cth). It must be remembered that Mr Slaveski challenged the execution of a search warrant issued under s 465 of the Victorian Crimes Act. The principles discussed in cases issued under other legislative provisions are therefore relevant only to the extent that they are equally applicable to the Victorian legislation.

156 A search warrant must be executed strictly in accordance with its terms.[84] In Myer Stores Ltd v Soo,[85] two police officers executed a warrant that authorised them to 'break, enter and search' certain premises 'by day'. The search of the premises had commenced during the day, but had not concluded until after sunset. The officers were held liable to pay nominal damages in trespass because the part of their search that continued beyond sunset was not authorised by the warrant.[86]

157 While this strict approach understandably emphasises the importance of the individual's proprietary rights, the courts do recognise the existence of competing considerations. In Dunesky v Commonwealth,[87] Lockhart J said:

The law takes care to ensure that the powers of police officers entrusted with the task of executing a search warrant are not exceeded; but at the same time it must be borne in mind that execution of a search warrant is a practical exercise carried out by police officers who, though trained in their task of law enforcement, are generally not qualified lawyers. Just as a person's privacy must be respected so must the investigation of criminal offences not be unreasonably impeded.[88]

158 A search warrant must be interpreted from the position of an ordinary person reading it.[89]

159 The warrant does not confer on police officers an unlimited or general power of search and seizure. The extent of the search and the nature of the items that may be seized are limited by the authority conferred by the warrant and by the legislation under which the warrant was issued. In Victoria, the form of warrant prescribed by the Regulations requires, among other things, that the relevant items be named and described, and the warrant authorises a search for, and a seizure of, those items only.[90] If evidence of another offence is fortuitously discovered by police officers conducting a lawful search, however, they may seize that evidence, even though it is not specified in the warrant.[91]

160 A warrant does not authorise the gathering of intelligence for possible use in future police operations, except in so far as something was seen, heard, smelled or otherwise sensed incidentally in the course of lawfully searching for, and seizing, the items described in the warrant.

Belief on reasonable grounds required to seize items under warrant

161 In Trimboli v Onley [No 3],[92] Holland J held that a police officer executing a search warrant issued under s 10 of the Crimes Act 1914 (Cth) must believe on reasonable grounds that any items seized by him or her fall within the description in the warrant of items that are authorised to be seized.[93] His Honour said that

the belief must exist at every point at which lawfulness is claimed under the warrant for taking and keeping another's property. It must exist contemporaneously with the act of seizure. Thereafter it must exist at least whenever it is sought to justify retention of the property under the warrant.[94]

162 The prescribed form of warrant issued under s 465 of the Victorian Crimes Act does not expressly refer to any state of mind that is required for an executing police officer to seize items lawfully. In my opinion, however, for the reasons expressed by Holland J in Trimboli,[95] the police officer must believe on reasonable grounds, at the time that any items are seized by him or her, that those items answer the description in the warrant.

163 Section 10 of the Crimes Act 1914 (Cth) provided for the grant of a warrant that authorised the executing officers to enter a house 'and to seize any such thing which he may find in the house'. In Trimboli, Holland J construed this section as meaning that any seizure must occur at the same place as the entry.[96] It followed from this construction that the decision to seize any items must be made, and the requisite contemporaneous belief must be held, before those items are removed from the property. In other words, the seizure of items cannot be justified under the warrant after the fact. As his Honour explained:

If the conditions for lawful seizure did not exist at the time when the goods were removed from the premises, it cannot subsequently arise under the warrant if the conditions afterwards come to be fulfilled. If the defendant did not entertain the requisite belief at the time he removed the goods from the premises he cannot, under the warrant, support a claim to be entitled to retain the goods on the basis of a later belief that he had formed.[97]

164 Unlike s 465(1) of the Victorian Crimes Act, the prescribed form of warrant issued under that section does not expressly refer to the act of seizure.[98] However, implicit authority for this act can be found in the duty imposed on executing officers 'to bring' the items described in the warrant before the Magistrates' Court. This duty, which is discussed below,[99] had no counterpart in the warrants issued under the Commonwealth statutory framework considered in Trimboli. Arguably, it provides a stronger basis than existed in that case for this Court to conclude that any seizure of items under warrant must occur at the same place that was entered and searched. In my opinion, Holland J's reasoning for rejecting after the fact justifications for the seizure of items therefore applies with equal force to warrants issued under s 465.

Obligation to act reasonably in executing search warrant

165 The authorities indicate that police officers are required to act reasonably in executing a search warrant, at least in relation to the force used to effect the entry, search and seizure, and the extent of the search and seizure.

166 In Allitt v Sullivan,[100] two members of the Full Court, Murphy and Hampel JJ, accepted that search warrants must be executed reasonably.[101] Brooking J expressed some reservations about this position. For the purpose of deciding the appeal, however, his Honour was prepared to assume that such a rule of law exists. His Honour said:

We have all lived so long in the shadow of the reasonable man that there is a danger that we shall assume that powers must be exercised reasonably and so pose for ourselves a general question instead of asking a more specific one concerning the nature and ambit of the particular power. Judicial observations about the execution of a warrant in a reasonable way may be no more than exhortations. I should wish to reserve my opinion on whether there is a rule of law that a search warrant must in all respects be executed reasonably. The supposed rule might create much uncertainty. A different approach would be to ask in each case what powers were given by the warrant and whether they had been exceeded. ... But I shall approach this case on the assumption that the law requires that a search warrant be executed reasonably in all respects.[102]

167 In Long v Magistrates' Court (Vic),[103] Gillard J said:

The officer executing the warrant is expected to act reasonably in the execution. What is reasonable depends on all the circumstances. When it is expected there will be no difficulty in obtaining co-operation on execution of the warrant, and there is no concern the article, thing or material will be destroyed or disappear, the executing officer would be expected to make suitable arrangements for its execution. In those circumstances execution at an inconvenient hour to the occupier, forced entry and/or arrest would not arise. Officers executing the search warrant must act reasonably, with care and avoid inconvenience, but the exigencies of the moment may require speed, forced entry, surprise visit and/or arrest. It is essential that any article, thing or material is not destroyed, lost, misplaced or removed by a mischievous person, and the executing officer must have all the powers of the Legislature to prevent it happening.[104]

168 The opinions expressed by Murphy and Hampel JJ in Allitt v Sullivan, and by Gillard J in Long, are consistent with numerous authorities on warrants issued under s 10 of the Crimes Act 1914 (Cth).[105] In Crowley v Murphy,[106] Lockhart J said:

The overriding obligation of the searcher is to do no more than is reasonably necessary to satisfy himself by search that in all the circumstances of a particular case he has whatever documents are necessary to answer the terms of the warrant. Plainly this must vary from case to case. What is permissible on one occasion is impermissible on another. Much must be left to the sense of responsibility of the police officer and the person whose premises are to be searched. Limits on the search may be imposed by the justice issuing the warrant; but, in the end, it is for the courts to supervise the exercise of the power, subject to any relevant legislation.[107]

169 His Honour returned to this issue in Arno v Forsyth,[108] where he said:

A search must be conducted reasonably in order to be lawful and the requirement of reasonableness has infinitely variable application. In some cases the police officers conducting the search may, in order to conduct a reasonable search, be obliged to communicate with the person whose premises are to be searched ... either before or after entry and allow him the opportunity to obtain legal advice. The methods of search and seizure may also require discussion. There are numerous possibilities. But the searcher must remember that he is authorised by the warrant ... to do what otherwise would be a trespass.[109]

170 In Question of Law Reserved (No 1 of 1998),[110] Doyle CJ, with whom Cox and Matheson JJ agreed, rejected the view that every aspect of the execution of a search warrant must be reasonable. In the context of a general search warrant that was issued under the Summary Offences Act 1953 (SA), his Honour said that '[t]he principle is that the force used to effect the authorised entry and search and seizure must be reasonable, as must the extent of the search and of the seizure.'[111]

171 His Honour said that, when police officers execute a warrant on a property, the authorised intrusions into the occupier's common law rights are the entry onto the premises, the search for specific items and the seizure of those items, using force if necessary. While the courts may review the validity of the exercise of these aspects of the executing officers' powers based on the principle of reasonableness, they should not seek to control other aspects of their powers that do not involve any interference with existing common law rights, including, for example, 'the time chosen for the exercise of the power' and 'the demeanour of the searchers'.[112]

172 In Coghill v McDermott,[113] federal police officers and two investigation officers from the Australian Taxation Office executed a search warrant issued under s 10 of the Crimes Act 1914 (Cth) on the business premises of the plaintiff accountant. The executing officers seized files belonging to the plaintiff after searching between 30 and 35 four-drawer filing cabinets and other storage places. The plaintiff argued, among other things, that the search was unreasonable for the following reasons:

(a) First, he argued that the executing officers should have asked him for an index of files, which would have made it unnecessary for them to search everything. Marks J found that such an inquiry had been made of the plaintiff's employee when the plaintiff himself was absent, but that an index had not then been produced. His Honour held that the executing officers were not required to ask the plaintiff the same question after the search had commenced; that it was unclear whether a satisfactory index even existed; and that, in any event, 'it was for the police officer in charge of the searching party to decide whether he should look for himself or rely on an index.'[114]

(b) Secondly, the plaintiff argued that the conduct of the executing officers was not authorised by the warrant because the overwhelming majority of the files searched and seized by them were irrelevant. Marks J said that, at the stage the proceeding had reached, he was unable to make findings about the relevance of the seized documents. However, his Honour observed that, '[i]n some cases, it has been possible to show that the method of search and seizure was so random that excess of authority was demonstrated.'[115]

173 In R v Applebee,[116] a warrant issued under s 10 of the Crimes Act 1914 (Cth) authorised police officers to enter premises and to search for, and to seize, two air compressors that were alleged to have been stolen. At a police briefing held before the execution of the warrant, however, the officers were instructed to search for stolen items generally. During the search, a large number of items were seized by the officers, but they failed to locate the two air compressors. Higgins J held that a 'search must be confined in kind and scope to that which is necessary to find the "things" for which the search is authorised.'[117] The search in this case was unlawful because it was not so confined. His Honour said:

it is clear that [the warrant] authorised only the search for and seizure of the goods referred to in it. The officers conducting the search intended to search for and seize other items. They did not stumble across other items in the course of an otherwise lawful search. If, for example, the two compressors had been seen immediately on entry and seized, no further search would have been authorised. This was not a case where other evidence of the relevant burglary than the compressors themselves could reasonably have been expected.

In this case, whilst it was reasonable to secure the premises to ensure that there was no danger to police or removal of the evidence being sought, it was neither reasonable nor necessary to search more than [was] sufficient to observe that the compressors, conceded to be bulky objects, were not on the premises. It is apparent that the search was, and was intended to be, a general search for goods suspected of being stolen. It was very much more intrusive and extensive than required for that purpose.[118]

174 In Dunesky,[119] Lockhart J held that, in conducting a reasonable search, executing police officers are entitled to consider documents in their context and in the context of other documents. They are not entitled, however, to conduct a 'negative search' - that is, a search that is based, not upon the location of relevant items, but upon the exclusion of items that plainly do not answer the terms of the warrant.[120]

175 What constitutes a reasonable search will depend on the circumstances of each case. The method used to search for drugs or cash at the home of a suspected drug trafficker would not necessarily be appropriate in a search for a client's documents at the office of a reputable solicitor, who is not personally suspected of having committed any offence.

176 The factors that will inform the reasonableness of the manner in which a search is conducted are likely to include - but are not limited to - the following:

(a) the nature and quantity of the items described in the warrant;

(c) the size, layout, physical features and nature of the use of the premises being searched;

(d) the likely location of the items described in the warrant;

(e) in the case of a search for documents in an office area, whether the office area appears to have an orderly filing system;

(f) in the case of a search for bulky or uniquely identifiable items, whether there are any obvious places where such items are likely to be located;

(g) the time required to secure the premises and to set up an exhibits kit to enable the search to be conducted;

(i) the number of people on the premises when the search is conducted and whether they are hindering the search;

(j) whether the occupier of the premises is a suspect or a third party;

(k) the history of police dealings with the occupier of the premises, including whether he or she is considered to be trustworthy or dangerous;

(l) whether the occupier of the premises is cooperative;

(m) whether any information that the occupier initially provides about the location of the items described in the warrant proves to be accurate and reliable; and

(n) any prior intelligence that the police obtained lawfully about the premises, the items described in the warrant, the occupier and any other matters that are relevant to the search.

177 In order to be reasonable, a search must be 'targeted' in the sense that it is focused on finding and seizing the items described in the search warrant. The method that is used to conduct the search must also be appropriate to the circumstances of the particular case. Common sense will often be a useful guide in this respect. In some cases, a search from one end of the premises to the other with minimal engagement with the occupier may be appropriate. In other cases, a responsive approach, involving dialogue with the occupier about the location of the items described in the warrant, will be appropriate.

178 A targeted and responsive approach does not require the police to accept at face value any information that the occupier provides to them about the location of particular items or to relax their control of the premises. Rather, where the premises have been secured, the occupier is cooperating and the locations that he or she nominates appear to be genuine, in many cases it would be sensible to check those locations first. If this approach is adopted and the police are not satisfied that all of the items described in the warrant have been seized, they can continue their search for any outstanding items.

Photographing and filming the execution of a search warrant

179 In accordance with the basic principles of the law of trespass to land,[121] if a police officer takes photographs or video footage during the execution of a search warrant on premises, the police officer will commit a trespass unless:

(a) the occupier of the premises expressly or impliedly consented to that conduct; or

(b) the police officer is authorised by law to perform that conduct.

180 In the present case, the police defendants did not rely on express or implied consent from Mr Slaveski to justify the taking of the video footage and photographs at the Lalor shop on 13 December 2005. The taking of video footage or photographs during the execution of a search warrant is not expressly authorised by s 465 of the Crimes Act or any other statutory provision,[122] or by the prescribed form of warrant set out in the Regulations. Accordingly, the only possible legal authority for such conduct is an implied power under the warrant.

181 There is no direct authority on the question of whether a search warrant confers an implied power on a police officer to film or photograph the execution of a search warrant. The cases of R v McNamara[123] and Donnelly v Amalgamated Television Services Pty Ltd,[124] however, may provide some guidance.

182 In R v McNamara,[125] the applicant sought leave to appeal against his conviction on one count of a drug trafficking offence. Police officers investigating the offence had obtained a warrant under the (now repealed) Listening Devices Act 1969 (Vic) authorising them to enter a shed for the purpose of installing and retrieving a listening device. Upon entering the shed, they had observed in operation a form of chemical manufacturing plant. One of the officers used a video camera to record footage of the walls and ceiling of the shed; of a bench on which laboratory apparatus was placed; and of the other officers opening cardboard boxes and removing bottles of chemicals so that the bottles could be photographed. The officers gave evidence that they had entered the shed as a preliminary measure in order to determine the most effective places to position listening devices.

183 The applicant argued that the conduct of the officers was not authorised by the warrant and that the video footage should not have been admitted as evidence at his trial. On the hearing of the appeal, reference was made to a provision of the Listening Devices Act which provided that the warrant issued by the Court must 'authorise entry onto [the] premises for the purpose of [the] installation and retrieval [of a listening device]'. This authority led counsel for the applicant to concede that the entry onto the premises, the examination of the shed and the taking of photographs and video footage by the officers would be lawful if their conduct was incidental to the task of selecting an appropriate location to install a listening device.[126]

184 The Court of Criminal Appeal recognised that there is a 'fine line' between such incidental conduct and conduct that is performed for an ulterior purpose unconnected to the exercise of the express powers conferred by the warrant. The use of a video camera merely to record the officers' observations, however, was clearly lawful. The Court said:

it seems to us to be absurd if the law in effect required the police to ignore contents of the shed which were there before their eyes. ... In our view the police were entitled to make observations and to record them on camera ...[127]

185 In relation to the officers' conduct in opening the boxes, the Court made the following comments:

It would ... be justifiable for the police to identify the boxes of chemicals because it may be thought that those persons using the shed for the purpose of operating the laboratory apparatus may be expected to move in that part of the shed, and this in turn could influence the placement of a listening device.[128]

186 Ultimately, the Court rejected the applicant's argument because it was not satisfied on the very limited evidence before it that the video footage had been unlawfully obtained.[129]

187 In Donnelly, a police officer took video footage of the plaintiff - who was in his bedroom and dressed only in underpants - as he was arrested during the execution of a search warrant at his mother's home. The plaintiff sought an interlocutory injunction to restrain the broadcast of the footage, which had been obtained from the police by the defendants.

188 Hodgson CJ in Eq declined to infer that the footage was initially recorded by the police officer for a purpose unrelated to the criminal investigation or prosecution of the plaintiff. Thus, there was no question as to the lawfulness of the plaintiff's arrest or the execution of the search warrant by the police.[130] Rather, according to his Honour, the 'real question' raised by the application was

whether use of a video taken within private premises, to which access has been obtained by exercise by the police of powers under a warrant and/or arrest, for purposes other than for which those powers were given, could be such an abuse of those powers that it should be restrained.[131]

189 His Honour answered this question in the affirmative. The interlocutory injunction was granted on the basis that 'the broadcasting of material within the house of the plaintiff's mother may well involve the knowing participation of the defendants in a serious abuse by the police of their powers under a search warrant and/or of arrest'.[132]

190 In my opinion, Donnelly is of little assistance in determining whether a search warrant impliedly authorises a police officer to take video footage or photographs during the execution of the warrant. This is because the decision was made on an interlocutory basis without the benefit of relevant findings of fact and full argument. It necessarily focused on the propriety of the police conduct in providing the footage to the television broadcaster and the latter's proposed broadcast, rather than on the lawfulness of the initial recording of the footage.

191 At first blush, R v McNamara also appears to be of little assistance in the present case because of two distinguishing features. The first distinguishing feature is that the case involved a warrant issued under the now repealed Listening Devices Act authorising the installation and retrieval of a listening device, rather than a warrant issued under the Crimes Act authorising the entry onto premises and the search and seizure of things on those premises. The second distinguishing feature is the concession of counsel for the applicant which is referred to at [183] above.

192 In my opinion, however, these distinguishing features are insufficient to render the decision in R v McNamara inapplicable to the taking of video footage or photographs in the course of the execution of a search warrant issued under the Crimes Act. Consistently with R v McNamara, such a search warrant, in addition to conferring on police officers the express powers set out in it, also implicitly confers on them the power to do anything that is incidental to, and for the purpose of, exercising those express powers. This includes an implied power to take video footage or photographs of the execution of the warrant, provided that:

(a) the activity, object or part of the premises being filmed or photographed is incidental to the exercise of the express powers conferred by the warrant ('incidental nexus requirement'); and

(b) the filming or photographing of that activity, object or part of the premises is for the purpose of exercising those express powers ('proper purpose requirement').

193 It will be noted that this principle comprises two limbs. Strictly speaking, both limbs are elements of a single requirement because the failure to satisfy either limb will sever any nexus between the conduct in question and the express powers set out in the warrant. Nevertheless, for clarity of exposition, I will maintain the bifurcation.

194 In my opinion, the incidental nexus requirement will be satisfied where the video footage shows:

(a) the police knocking on the door of the premises, introducing themselves to the occupier and then entering the premises;

(b) the officer in charge introducing the search team to the occupier, serving the warrant and explaining its terms to the occupier;

(c) the police conducting an initial security sweep of the premises;

(d) the exhibits officer setting up the exhibits kit;

(e) officers searching the premises and conducting discussions with the occupier;

(g) seized items being moved from their original locations, being photographed, being entered in the property seizure record, being labelled and being placed in exhibit bags;

(h) the arrest of any person apparently having possession, custody or control of a seized item; or

(i) the police packing up the exhibits kit and departing the premises with the seized items in their possession.

This list, which is intended to be illustrative only and not exhaustive, is also applicable to the taking of still photographs.

195 Video footage of the type set out at [194] above will inevitably include background activity or objects. For example, footage showing a document being removed from a safe will depict the safe as well as the removal of the document. Likewise, footage showing a painting being removed from a wall may depict a security alarm detector that is affixed to the wall next to the painting. The appearance of the safe or the detector in the footage would not be a vitiating circumstance because it is an incidental by-product of the taking of authorised footage. If, however, neither the safe nor the detector was proximate to any item described in the warrant or any activity that was authorised by the warrant (and neither object was itself described in the warrant), the filming of those objects directly would not satisfy the incidental nexus requirement.

196 The proper purpose requirement will be satisfied where, for example, the execution of the search warrant was filmed or photographed for the purpose of creating a record for use as evidence in support of charges that may be laid against the occupier of the premises or another person. On the other hand, the requirement will not be satisfied where, for example, the filming or photographing was carried out for the purpose of selling the images for profit.

197 An improper purpose will render the taking of the video footage or photographs unlawful, and thus a trespass, even if the images are confined to activities, objects or parts of the premises that are incidental to the exercise of the express powers conferred by the search warrant and would therefore satisfy the incidental nexus requirement.

198 Where the taking of video footage or photographs satisfies the incidental nexus and proper purpose requirements, that conduct will not constitute a trespass merely because it was also motivated by concurrent subordinate purposes.

199 As video footage or photographs are normally taken over a period of time and in different locations, the application of the incidental nexus and proper purpose requirements may produce different liability consequences for distinct phases of that conduct. For example, a police officer that enters premises and takes photographs of the items to be seized as a record of the proper execution of the search warrant will not commit a trespass for such time as his or her conduct is so confined. If, however, for a period of time, the photographer moves to a different area of the premises in order to photograph the occupier's artwork for personal artistic gratification, he or she will commit a trespass during that period.

200 In this proceeding, there was an issue as to whether the police were authorised to take video footage or photographs during the execution of a search warrant for the purpose of gathering intelligence for possible use in future police operations. In my opinion, the position is as follows:

(a) If the incidental nexus and proper purpose requirements are satisfied, a trespass will not be committed merely because an item of interest from an intelligence gathering perspective appears in the footage or photograph.

(b) If an item of interest from an intelligence gathering perspective is located on a part of the premises which is not to be searched, the act of filming or photographing that item will constitute a trespass because it will not satisfy either the incidental nexus requirement or the proper purpose requirement.

(c) If an item of interest from an intelligence gathering perspective is located on a part of the premises which is being searched, the act of filming or photographing that item in isolation from the search activity, or as the item of prime focus, will constitute a trespass because neither the incidental nexus requirement nor the proper purpose requirement will be satisfied.

(d) Where the sole or dominant purpose of the taking of video footage or photographs is to gather intelligence for possible use in future police operations, the conduct will constitute a trespass because the proper purpose requirement will not be satisfied. In addition, the incidental nexus requirement may not be satisfied because the focus of the video footage and the photographs will be on items of interest from an intelligence gathering perspective, rather than on the search activity.[133]

201 It should be noted that, if a police officer is engaged in the lawful execution of a search warrant, that activity will not become unlawful simply because, at the same time, another police officer, acting independently, is committing a trespass on the same premises by taking video footage or photographs without lawful authority.

Duty to carry seized items before Magistrates' Court

202 As noted above,[134] executing officers are required to carry any items seized during the search before the Magistrates' Court to be dealt with according to law.

203 In Allitt v Sullivan,[135] Brooking J made the following general observations about the duty of the executing officers to carry seized items before the Magistrates' Court:

A warrant issued under s 465 authorises in terms search, seizure and carrying away. Once a thing has been found, identified and seized, then neither the warrant nor the section pursuant to which it was issued says anything in terms by way of authorising the executing officer to retain or use the thing seized: his power and his duty is to carry it before a justice to be dealt with according to law. If the section and the prescribed form of warrant did no more than authorise search for and seizure of the things described in the warrant, then it might be argued with some force that the seizing officer was entitled to retain what he had seized ... But I do not see how it can be said that the warrant itself, or s 465, authorises retention or use of what has been seized. For such retention or use is inconsistent with the duty imposed by the warrant on the executing officer to carry what has been seized before a justice to be ... dealt with according to law.[136]

204 His Honour added that, in his opinion, s 465 implicitly requires that the seized items be taken before a judicial officer without delay, although what constitutes delay for this purpose will depend upon the circumstances of the case.[137]

The documents are not as a matter of law automatically on seizure available to the constable executing the warrant - nor to the prosecuting authorities. There is another step to be taken. They must be carried to a justice, who must on receipt of them, deal with them according to law ...

If a seizing constable does not obey the terms of the warrant, and does not carry the documents seized to the issuing or some other justice, it would appear that he acts without the authority of his warrant, and would be liable to action, for the Courts have been careful to ensure that the intrusion which a search warrant makes on a person's individual rights is kept within the bounds of the authority of the warrant.[138]

(4) Relevant provisions of the Victoria Police Manual

206 The Chief Commissioner of Police is authorised to issue the Victoria Police Manual ('VPM') by s 17 of the PR Act, which provides:

17 Standing orders etc.

The Chief Commissioner may from time to time issue, amend and revoke -

(a) orders, to be known as standing orders, for the general administration of the force;

(b) instructions for the effective and efficient conduct of the force's operations.

207 Despite being issued pursuant to a statutory provision, the VPM does not have the force of statute.[139] In Director of Public Prosecutions (Vic) v Zierk,[140] Warren CJ held that the observations of Griffith CJ in Enever v The King[141] were applicable to s 17 of the PR Act.[142] Adopting Griffith CJ's words in that case, her Honour said that the provision was

intended merely to deal with the ... disciplinary control of constables, leaving the nature of their powers and duties and the responsibility for their actions to be governed by the common law as modified by the Statutes (if any) dealing with that subject.[143]

208 It follows that a breach of a provision of the VPM by a police officer does not, in and of itself, invalidate any action taken by the officer or result in him or her incurring liability to pay damages to a person who was affected by that action.

209 Set out below are provisions of the VPM that are relevant to this proceeding.

210 Paragraph 1 of VPM Instruction 108-3 'Reporting a crime on LEAP', as in force on 18 December 2003 and 14 April 2004,[144] provided the following instructions in relation to initial police inquiries to determine whether a crime had been committed:

Any police member receiving a report of an incident must make sufficient initial inquiries to satisfy themselves that a crime has been committed or not. Where the facts indicate that a crime has been committed, complete and submit all relevant LEAP reports, containing the best quality information available at the time.

211 At all times that are material to this proceeding, the VPM has contained provisions requiring CIU officers to identify themselves or to display their police identification. The relevant provisions are summarised below:

(a) CIU officers must display their identification if their firearm is exposed.[145]

(b) Sworn employees in plain clothes must display their certificates of identity on their left breast pocket when openly carrying firearms outside of police premises.[146]

(c) Employees must produce their certificate of identity when requested to do so in the execution of duty unless the circumstances are such that failure to do so is justified.[147]

(d) Police members in plain clothes should produce their certificate of identity when effecting an arrest.[148]

(e) Where plain clothes members conduct building entries, they must display identification.[149]

212 The VPM, as in force on 8 September 2000,[150] contained the following provision regarding the manner of effecting an arrest:

• Inform the person arrested of the reasons for their arrest unless the circumstances are such that the reason is obvious (e.g., they have been apprehended committing a crime) or for some other reason it is impracticable to do so (e.g., resistance prevents it).

• Police members in plain clothes should produce their certificate of identity.

• Persons arrested, or to be arrested, should be given an opportunity to establish their innocence or to explain the actions which form the basis of their arrest.
• Arrests should be made in a professional manner avoiding any unnecessary humiliation or indignity.
• Only sufficient force as is necessary to effect the arrest is to be used. ...
• Persons arrested must be searched as soon as practicable ...

213 VPM Instruction 113-1 'Taking a person into custody', as in force from 11 July 2003,[151] provided as follows in relation to the making of an arrest:

• Inform the person arrested of the reasons for their arrest unless the circumstances are such that the reason is obvious or for some other reason it is not practical at the time.

• Police in plain clothes should produce their certificate of identity.

• Give persons arrested or to be arrested an opportunity to establish their innocence or to explain their actions that form the basis of the arrest.
• Make arrests in a professional manner avoiding any unnecessary humiliation or indignity.
• Use only sufficient force as necessary.
• Search persons arrested as soon as possible ...

214 At all times that are relevant to this proceeding, the VPM has contained the following provision regarding the use of handcuffs:

Any person arrested or taken into custody should be handcuffed if it is reasonably believed to be necessary in the circumstances.[152]

215 VPM Instruction 105-2 'Searches of properties', as in force on 13 December 2005,[153] contained the following provisions in relation to the execution of search warrants:

9. Conducting a property search

9.1 Entry of premises

Police members must:

• introduce and identify themselves as police and explain their purpose
• use the minimum amount of force, where force is required
• cause the least amount of damage necessary in the course of the entry and search
• not unduly restrict the movement of occupants of searched premises
• request admission before entry is forced, unless there are sound reasons for not doing so ...

...

9.4 Service of warrant on owner or occupier

Serving occupier's copy of warrant - where applicable, the Forward Commander must ensure that the occupier's copy of the warrant or authority is served on the owner, occupier or person believed to be in charge of the premises at the first opportunity after entry. If no one is present to receive the occupier's copy, file it with the execution copy, pending any request from the owner or occupier.

Endorsement of execution copy - the execution copy of a warrant must be endorsed with:

• the name and address of the person on whom the copy was served
• a description of the person on whom the copy was served, if they refuse to supply their particulars
• the name, rank and number of the police member effecting execution
• details of the execution and the description of any property seized (or attach a list).

Acknowledgment of no damage or injury - where a search has not caused damage or injury, request the owner/occupier (if present) to acknowledge this on the rear of the warrant (if applicable) prior to leaving the search scene. If they refuse to sign, follow instructions for damage to property ...

...

11. Action after search

...

11.5 Executed Search Warrants

Following execution of the warrant, the 'Execution Copy' must be:

• endorsed with the execution date
• copied for inclusion in the brief
• returned to the issuing court. This should occur after the seized property has been taken before a court and a Magistrate has issued instructions in relation to disposal or retention of the property.

216 VPM Instruction 201-1 'Ethical standards', as in force on 18 December 2003 and 14 April 2004,[154] set out a number of matters in respect of which police officers should not become involved. It relevantly provided:

5.2.2 Matters not requiring police involvement

Sworn employees must be careful not to:

• act in matters involving only civil disputes, such as disputes arising in divorce cases or concerning the custody of children, except where legislation or Victoria Police instructions require sworn employees to be involved
• make inquiries unconnected with police duties, at the request of individuals or organisations
• interfere in the private business of others
• act on behalf of a creditor who seeks to obtain payment from their debtor, except in the execution of duly authorised process.

5.2.3 Where doubt exists regarding taking action

Seek advice from the Divisional Manager where there is doubt as to whether:

• a prosecution should be initiated by police

• an inquiry should be commenced

or

• the matter should be left for settlement between the parties concerned.

5.2.4 Commercial transactions

Employees must not conduct inquiries into ordinary commercial transactions such as bad debts or doubtful cheques, unless there is evidence of a criminal offence. Advise a supervisor of such requests.

5.2.5 Re-possession of goods

Sworn employees must not participate in or in any way assist with the re-possession of goods, except to prevent a breach of the peace.

217 VPM Instruction 108-2 'Responsibilities for a crime investigation', as in force on 13 December 2005,[155] provided as follows in relation to conflicts of interest:

• A real conflict of interest is when an employee allows a private interest to influence the exercise of their public duties. You must not investigate any crime that could create a real conflict of interest. This includes situations where you:

- are the victim ...

- have a personal interest in the matter

- have a connection to a party in the matter.

218 VPM Instruction 108-4 'Crime investigation management', as in force from 11 July 2003,[156] provided as follows in relation to the police informing a suspect that he or she will not be charged:

10. Completion of an investigation

At the completion of an investigation Station Managers must ensure:

• suspects previously advised they may be charged and who are subsequently not charged are advised of the outcome of the investigation unless there is a good reason for not advising them

219 VPM Instruction 114-4 'Exhibits and seized property', as in force from 3 October 2005,[157] provided as follows in relation to the return of seized property to the person from whom it was seized:

7. Disposal

7.1 Policy

When no longer required for court purposes, dispose of exhibits by one of the following methods:

• complying with the directions of any respective warrant
• returning to the owner

220 Table 114-4, which forms part of paragraph 7.1 of VPM Instruction 114-4, states that property which has been seized under a warrant and is no longer required (such as where charges are not authorised) must be returned to the person from whom it was seized if there is no dispute that the person is the owner and the person can legally possess the property.

PART 3 - CAUSES OF ACTION AGAINST THE POLICE DEFENDANTS

221 In this Part 3, I summarise the principles that are applicable to the causes of action that Mr Slaveski has pleaded against the police defendants.

222 Assault and battery are actions for trespass to the person. The plaintiff has the burden of proving the elements of the torts, which are actionable without proof of damage.

223 In ACN 087 528 774 Pty Ltd v Chetcuti,[158] Hargrave AJA, with whom Ashley and Dodds-Streeton JJA agreed, summarised the elements of the tort of assault as follows:

(1) A threat by the defendant, by words or conduct, to inflict harmful or offensive contact upon the plaintiff forthwith. It is enough if the threat is to make contact to the body of the plaintiff without the plaintiff's consent or without any legal justification.

(2) A subjective intention on the part of the defendant that the threat will create in the mind of the plaintiff an apprehension that the threat will be carried out forthwith. It is not necessary to prove that the defendant in fact intends to carry out the threat.

(3) The threat must in fact create in the mind of the plaintiff an apprehension that the threat will be carried out forthwith. It is not necessary for the plaintiff to fear the threat, in the sense of being frightened by it. It is enough if the plaintiff apprehends that the threat will be carried out without his or her consent.

(4) The apprehension in the mind of the plaintiff must be objectively reasonable.

(5) The plaintiff's reasonable apprehension caused injury, loss or damage to the plaintiff. This requirement attracts the ordinary common law concept of causation by reference to commonsense and, where appropriate, consideration of normative factors such as value judgments and policy considerations.[159]

224 Three observations may be made about this formulation of the elements of the tort.

225 First, an assault is frequently described as an act that directly and intentionally (or negligently)[160] causes another person to reasonably apprehend immediate physical contact with his or her person. In elements (1), (2) and (3) above, Hargrave AJA used the word 'forthwith' to restate the element of 'immediacy' in the tort of assault. I do not understand his Honour's use of the word 'forthwith' to intimate a departure from the usual understanding of this element.

226 Second, having regard to the fact that assault is actionable without proof of damage, element (5) above must be understood in the context of a claim for special damages; in such a case, the plaintiff must establish that the loss claimed was caused by the act constituting the tort.[161]

227 Third, it has often been asserted that mere words cannot constitute an assault. Hargrave AJA's formulation, however, appears to accept that mere words can constitute an assault because element (1) above refers to a threat made by words or conduct. This issue is discussed next.

228 According to Balkin and Davis, the better view is that mere words can constitute an assault. They suggest that assertions to the contrary should be regarded as specific applications of the principle that an action in assault must be founded upon the plaintiff's apprehension of immediate physical contact to his or her person. For example, a verbal threat to inflict physical harm upon a person at some future time may not be actionable as an assault. If this is so, the authors propose, it is not because the threat comprised mere words, but because the person to whom the threat was addressed could not have apprehended immediate physical contact.[162]

229 In Barton v Armstrong,[163] Taylor J dismissed an application to strike out the plaintiff's pleadings. His Honour accepted that mere words could not themselves amount to an assault, but held that the making of threats of physical violence using a telephone could constitute the tort. The result depended heavily upon the circumstances. His Honour stated:

I am not persuaded that threats uttered over the telephone are to be properly categorized as mere words. I think it is a matter of the circumstances. To telephone a person in the early hours of the morning, not once but on many occasions, and to threaten him, not in a conversational tone but in an atmosphere of drama and suspense, is a matter that a jury could say was well calculated to not only instil fear into his mind but to constitute threatening acts, as distinct from mere words. If, when threats in this manner are conveyed over the telephone, the recipient has been led to believe that he is being followed, kept under surveillance by persons hired to do him physical harm to the extent of killing him, then why is this not something to put him in fear or apprehension of immediate violence? In the age in which we live threats may be made and communicated by persons remote from the person threatened. Physical violence and death can be produced by acts done at a distance by people who are out of sight and by agents hired for that purpose. I do not think that these, if they result in apprehension of physical violence in the mind of a reasonable person, are outside the protection afforded by the civil and criminal law as to assault.[164]

230 Taylor J next posed the question, 'How immediate does the fear of physical violence have to be?' His Honour's response was in the following terms:

In my opinion the answer is it depends on the circumstances. Some threats are not capable of arousing apprehension of violence in the mind of a reasonable person unless there is an immediate prospect of the threat being carried out. Others, I believe, can create the apprehension even if it is made clear that the violence may occur in the future, at times unspecified and uncertain.[165]

231 With respect, his Honour asked and answered the wrong question; the requirement of immediacy attaches to the apprehended physical contact, not to the fear of apprehended physical contact. This has been confirmed by subsequent cases, including Chetcuti.[166] In cases of alleged assault involving threats made over a telephone, proof of this element will usually be critical.

232 In Zanker v Vartzokas,[167] the complainant accepted a lift in the defendant's van. Once the van was moving, the defendant offered to give the complainant money in exchange for sexual favours. The complainant rejected these advances and demanded that she be allowed to exit the van. Instead, the defendant accelerated the van and said to the complainant, 'I am going to take you to my mate's house. He will really fix you up.' The complainant opened the door of the van and leapt from the moving vehicle. The defendant was charged with assault, but the charge was dismissed by a magistrate on the basis that the defendant's conduct had not caused the complainant to apprehend immediate physical violence; rather, according to the magistrate, she had apprehended physical violence at the later time when the van would arrive at the house of the defendant's 'mate'.

233 The decision of the magistrate was overturned on appeal. White J held that, even though the defendant's threat pertained to the future, it had caused the complainant to fear 'relatively immediate imminent violence' and that this fear had continued to operate in the complainant's mind after the threat was made because of her confinement inside the vehicle. His Honour said:

The threat was, it is true, to be carried out in the future but there was no indication by the defendant whether the 'mate's house' was around the next corner or several or more streets away in the suburban area. A present fear of relatively immediate imminent violence was instilled in her mind from the moment the words were uttered and that fear was kept alive in her mind, in the continuing present, by continuing progress, with her as prisoner, towards the house where the feared sexual violence was to occur. ... [T]he fallacy in the defendant's argument is the assumption that the words had effect only at the time when they were uttered and heard whereas they were ringing presently in her ears as a continuing threat, without the necessity for repetition, second by second as they progressed towards the house.[168]

234 Although the plaintiff in Barton and the complainant in Zanker both feared future physical violence, White J distinguished the facts of the former case on the basis that the plaintiff was there at liberty and was not at the mercy of the defendant. Referring to the question posed by Taylor J in Barton - 'How immediate does the fear of physical violence have to be?' - White J stated:

With respect, I do not think that is the question. I think the question is 'how immediate must the threatened physical violence be after the utterance of the threat which creates the fear?' Put in that way, it can readily be appreciated that the fear is a continuing fear in the mind of the victim, the utterance having as much effect in an hour or so as it has at the moment of utterance.[169]

235 Although the facts in Zanker were different from those in Barton, White J indicated that he did not 'necessarily subscribe to everything said by Taylor J in [Barton] as to a telephone call being capable of constituting an assault upon a person at liberty.'[170]

236 In Knight v The Queen,[171] the Court of Criminal Appeal of New South Wales accepted that a threat of physical violence made over a telephone could constitute an assault, provided that the threat was made in circumstances that caused a person to apprehend immediate physical violence. Lee J, with whom Carruthers and Loveday JJ agreed, made the following comments in reference to Barton:

Some of the remarks of his Honour in that judgment would suggest perhaps that the element in assault that the violence be immediate, that is that there be a fear of immediate violence was not always necessary and that the word 'immediate' could be stretched to perhaps cover events in the future. It is to be remembered that his Honour was dealing with an interlocutory application where the principle applicable is that a cause of action is not to be struck out unless lack of cause of action is clearly demonstrated ... In the circumstances, I do not regard the decision in Barton v Armstrong as absolutely requiring the view that his Honour has finally held, that fear of immediate violence has other than its ordinary literal import.[172]

237 In Knight, the appellant had been convicted of assault and another offence after he made extremely abusive and threatening telephone calls to a judge, a magistrate and various police officers. In one of the telephone calls, which the Court regarded as being representative, the appellant was heard by the magistrate to say that the front gate at the family home was not 'strong enough', that a bomb would be placed there, that the magistrate was 'a dead man' and that the magistrate would be shot that evening. The calls were placed by the appellant from 'a long way out of firing distance'. The Court quashed the convictions because the evidence did not establish that any of the recipients of the calls were ever in any danger of immediate violence. Lee J said:

the evidence in the present case went no further than to merely show that threats had been made to the various callers and serious threats they were. But as to there being any evidence that those threats were threats of immediate violence it is clear that they were not. They were mere threats which may have been executed at any time, if at all.[173]

238 The same opinions about the law were expressed by Higgins CJ in R v Gabriel.[174] Having accepted that a threat conveyed over a telephone could constitute an assault in certain circumstances, his Honour went on to observe:

However, if the fear so intentionally created is of harm in the future, not being the immediate future, then whilst the fear may be equally harmful and distressing to the victim, it would not fulfil the requirement of immediacy or imminence that is an element of an assault not involving a battery.[175]

239 Higgins CJ also expressed the view that Zanker was incorrectly decided. His Honour held that the words 'imminent' and 'immediate' should be given their ordinary meanings, which were said to be, respectively, 'at once, without delay' and 'impending, soon to happen'. According to his Honour, a threat that physical violence might occur in the 'more distant future', after some delay, was neither imminent nor immediate, and this result was unchanged by the fact that the person threatened in that case was unlawfully detained.[176]

240 It follows from the above discussion that there is no rule preventing a threat of physical harm which is not accompanied by any physical contact - such as a threat made over the telephone or by email or other electronic means - from constituting an assault. Such a threat can constitute an assault provided that all the elements of the tort are established, including that the threat is to inflict immediate physical harm.

241 Battery is an act that directly and intentionally (or negligently)[177] causes offensive physical contact with another's person.

242 Any physical contact, however slight, is capable of constituting a battery,[178] but the contact must be offensive in the sense that it goes beyond that which is part of the 'ordinary incidents of social intercourse'[179] or that which is 'generally acceptable in the ordinary conduct of daily life.'[180] Consequently, the jostling between persons that is inevitable in public areas, such as supermarkets, train stations, crowded buses or busy streets, is not actionable as a battery;[181] nor is the touching of a person in order to engage his or her attention, provided the physical contact is reasonably necessary for that purpose and does not impose a restraint upon the person.[182]

243 If a police officer physically restrains a person for the purpose of effecting an arrest, the officer will be liable in battery if the arrest is unlawful.[183]

244 Defences to an action in assault or battery include:

(a) Consent. This defence will be established if the person consented to the bodily contact, or its apprehension. Consent may be express or implied. It may be vitiated if obtained by duress or fraud.

(b) Acting in defence of one's own person. This defence will be established if no more than reasonably necessary force was used in acting to defend the defendant's own person or the persons of others that are reasonably believed to be in danger.

(c) Lawful arrest. An arrest may be lawful if it is carried out in compliance with a warrant or in accordance with a statute that authorises an arrest without a warrant. The powers of a police officer to arrest a person without a warrant pursuant to the Crimes Act were discussed in Part 2(1).

1"> 245 Ordinarily, the defendant has the burden of establishing any defence. It is sometimes suggested that the plaintiff must establish lack of consent, but the weight of authority in Australia supports the view that the defendant must establish consent.[184]

246 The tort of false imprisonment is a trespass to the person. It is actionable without proof of damage.

the wrong of intentionally and without lawful justification subjecting another to a total restraint of movement by either actively causing his confinement or preventing him from exercising his privilege of leaving the place in which he is.[185]

248 In McFadzean v Construction, Forestry, Mining and Energy Union,[186] Ashley J cited and then expanded upon Fleming's description of the tort.[187] His Honour stated the following principles:

First, whilst restraint must be total and whilst false imprisonment involves restrain[t] at or in some identifiable place, the concept of incarceration has developed an expanded meaning. There can be false imprisonment even if there is a notional means of escape, provided that an available means is unreasonable - as, for instance, involving risk to life or limb.

Second, restraint does not imply the use of physical force. It is sufficient that there be submission to the control of another where the person is given to understand that he must submit or else will be compelled.

Third, the constraint sufficient on a person's will, sufficient to cause him to submit, may involve a threat against the person, or against another person, or even valuable property.

Fourth, although in some cases restraint may be constituted by a person's submission in the face of a threat, it is not necessarily the case that the victim must apprehend that he is being imprisoned. It has been said that a person may be imprisoned though asleep, unconscious or a lunatic. One of the described consequences of false imprisonment is humiliation; and as Fleming observes, humiliation is no less when it is only learnt of afterwards, or when it is known only to others at the time.

Fifth, in those cases where a person is aware of circumstances [that] would otherwise constitute an imprisonment, the restraint must occur against the person's will. So, voluntary compliance with a police request to a person to come along and clear himself does not necessarily amount to an imprisonment.

Sixth, whether there is a false imprisonment is a question of fact.

Seventh, once imprisonment is established, it is for the defendant to prove lawful justification either at common law or by statute.[188]

249 This statement of the law was approved, in substance, by the Court of Appeal.[189] The Court said that 'the essence of the action of false imprisonment is the compelling of a person to stay at a particular place against his or her will.'[190]

250 The imprisonment of the plaintiff must be directly caused by an act of the defendant.[191]

251 The plaintiff has the burden of proving the imprisonment. Once the imprisonment has been established, however, the defendant has the burden of proving that it was lawfully justified.[192] The imprisonment may be lawfully justified on various bases, including freely given consent, lawful arrest, execution of court process (where the defendant acted strictly within the authority of the process) and statutory authority.

252 An unlawful arrest can amount to false imprisonment. Where a police officer arrests a person unlawfully, conveys the person to a police station, interviews the person and then releases the person from custody, an action for false imprisonment can be maintained for the entire period commencing with the arrest and concluding with the release from custody.

253 As noted at [137] above, the detention of a person in custody for longer than a 'reasonable time', contrary to s 464A(1) of the Crimes Act, constitutes the tort of false imprisonment. This includes circumstances where the detention of the person, while initially lawful, later becomes unlawful for a period of time. For example, in Sadle[193] Madigan,193 the plaintiff was falsely imprisoned when he was detained by police officers for one hour and 45 minutes following his lawful arrest and conveyance to a police station, but before the commencement of a formal record of interview. The plaintiff's detention for that intermediate period of time was unreasonable and was thus contrary to s 464A(1) of the[194]imes Act.194

254 In order to succeed in an action for malicious prosecution, the plaintiff must establish that:

(a) the defendant initiated,[195] instigated[196] or continued[197] proceedings against the plaintiff of the kind to which the tort applies (generally criminal proceedings);

(b) the proceedings terminated in favour of the plaintiff, so far as they were capable of doing so;[198]

(c) the defendant acted maliciously in initiating, instigating or continuing the proceedings;[199]

(d) the defendant acted without reasonable and probable cause;[200] and

(e) damage was caused to the plaintiff's reputation, person or property.[201]

255 In this proceeding, it was conceded on behalf of officer Smith that he initiated a criminal proceeding against Mr Slaveski for the offence of stalking and that, as the charge was dismissed, the proceeding was terminated in favour of Mr Slaveski.[202] Although it was not formally conceded that the proceeding caused damage to Mr Slaveski's reputation, person or property, Mr Gipp did not submit that no such damage was caused.[203] Accordingly, it is not necessary for me to discuss elements (a), (b) or (e).

257 In A v New South Wales,[204] Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ held that 'malice is a broader concept than ill-will or spite, and means an improper purpose.'[205] According to their Honours, the defendant will be actuated by malice where his or her 'sole or dominant purpose' in initiating, instigating or continuing the proceedings is 'a purpose other than the proper invocation of the criminal law - an "illegitimate or oblique motive".'[206] This definition necessarily assumes the form of a 'negative proposition' because there is no limit to the improper purposes that may motivate a prosecutor. Examples of such improper purposes, other than actual ill-will or spite, include the punishment of the plaintiff and the discontinuance of civil proceedings brought by the plaintiff against the defendant.[207]

258 Their Honours observed that proof of malice will often be a matter of inference, but that 'it is proof that is required, not conjecture or suspicion.'[208]

259 Moreover, while recognising that some parallels might be drawn between the concept of malice in the tort of malicious prosecution and similar concepts in the law of defamation and in the judicial review of administrative action, their Honours said that

those parallels should not be permitted to obscure the distinctive character of the element of malice in this tort. It is an element that focuses upon the dominant purpose of the prosecutor and requires the identification of a purpose other than the proper invocation of the criminal law.[209]

260 Although malice and the absence of reasonable and probable cause are separate elements of the tort the same facts may be relevant to both of them.[210] An example is where the defendant prosecutor has deliberately tampered with evidence either by fabricating incriminating evidence or by destroying exonerating evidence.

261 This element directs attention to the state of affairs that existed when the defendant initiated, instigated or continued the proceedings. In particular, it directs attention to the material that was then available for the defendant's consideration, rather than to any material that emerged only after that time.[211]

262 The question of whether the defendant acted without reasonable and probable cause has both a subjective and an objective aspect.[212] In A v New South Wales, Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ said:

to decide whether the prosecutor did not have reasonable and probable cause for commencing or maintaining the prosecution, the material available to the prosecutor must be assessed in two ways. What did the prosecutor make of it? What should the prosecutor have made of it? To ask only whether there was material available to the prosecutor which, assessed objectively, would have warranted commencement or maintenance of the prosecution would deny relief to the person acquitted of a crime prosecuted by a person who not only acted maliciously, but who is shown to have acted without forming the view that the material warranted prosecution of the offences. Conversely, to ask only what the prosecutor made of the material that he or she had available when deciding to commence or maintain the prosecution would favour the incompetent or careless prosecutor over the competent and careful.[213]

263 In relation to the subjective aspect of the question, their Honours said that the following three points are 'critical':

First, it is the negative proposition that must be established: more probably than not the defendant prosecutor acted without reasonable and probable cause. Secondly, that proposition may be established in either or both of two ways: the defendant prosecutor did not 'honestly believe' the case that was instituted or maintained, or the defendant prosecutor had no sufficient basis for such an honest belief. The third point is that the critical question presented by this element of the tort is: what does the plaintiff demonstrate about what the defendant prosecutor made of the material that he or she had available when deciding whether to prosecute or maintain the prosecution? That is, when the plaintiff asserts that the defendant acted without reasonable and probable cause, what exactly is the content of that assertion?[214]

264 Their Honours explained that, in cases where the plaintiff proves that the defendant had personal knowledge of where the truth lay, the defendant will be shown to have not 'honestly believed' the case made against the plaintiff, and thus to have acted without reasonable and probable cause, because he or she did not believe the plaintiff to be guilty and did not act 'honestly' in initiating the proceedings.[215]

265 Their Honours recognised that different considerations apply in cases where the defendant, in initiating the proceedings, acted on material provided by third parties. They said that, in such cases, it would be inappropriate to require the plaintiff to prove that the 'the subjective state of mind of the prosecutor fell short of positive persuasion of guilt':[216]

A test of that kind would presuppose the need for a police officer to have some degree of personal commitment to a case. That would, or at least would often, not be consistent with what should desirably be the objective assessment and analysis of material provided by others.[217]

266 In cases where the defendant relied upon information from others, it is relevant to consider whether he or she 'is shown not to have honestly concluded that the material was such as to warrant setting the processes of the criminal law in motion.'[218] Their Honours added:

In deciding [this] question, the various checks and balances for which the processes of the criminal law provide are important. In particular, if the prosecutor was shown to be of the view that the charge would likely fail at committal, or would likely be abandoned by the Director of Public Prosecutions, if or when that officer became involved in the prosecution, absence of reasonable and probable cause would be demonstrated. But unless the prosecutor is shown either not to have honestly formed the view that there was a proper case for prosecution, or to have formed that view on an insufficient basis, the element of absence of reasonable and probable cause is not established.[219]

267 In relation to the objective aspect of the question, their Honours observed that reference is sometimes made to Hawkins J's reasons for judgment in Hicks v Faulkner,[220] in which 'reasonable and probable cause' was defined as

an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed.[221]

The objective element of the absence of reasonable and probable cause is thus sometimes couched in terms of the 'ordinarily prudent and cautious man, placed in the position of the accuser' or explained by reference to 'evidence that persons of reasonably sound judgment would regard as sufficient for launching a prosecution'. Or ... the question can be said to be 'whether a reasonable man might draw the inference, from the facts known to him, that the accused person was guilty'.

None of these propositions (nor any other equivalent proposition which might be formulated to describe the objective aspect of absence of reasonable and probable cause) readily admits of further definition. It is plain that the appeal is to an objective standard of sufficiency. The references to 'reasonable' and 'reasonably', to 'ordinarily prudent and cautious', make that clear.

Because the question in any particular case is ultimately one of fact, little useful guidance is to be had from decisions in other cases about other facts. Rather, the resolution of the question will most often depend upon identifying what it is that the plaintiff asserts to be deficient about the material upon which the defendant acted in instituting or maintaining the prosecution. That is an assertion which may, we do not say must, depend upon evidence demonstrating that further inquiry should have been made.

It is, nonetheless, important to recognise what, standing alone, may not suffice to show a want of objective sufficiency. It is clear that absence of reasonable and probable cause is not demonstrated by showing only that there were further inquiries that could have been made before a charge was laid. When a prosecutor acts on information given by others it will very often be the case that some further inquiry could be made. ... And as Lord Atkin rightly said in Herniman v Smith:[222]

It is not required of any prosecutor that he must have tested every possible relevant fact before he takes action. His duty is not to ascertain whether there is a defence, but whether there is a reasonable and probable cause for a prosecution.

For like reasons it cannot be stated, as a general and inflexible rule, that a prosecutor acts without reasonable and probable cause in prosecuting a crime on the basis of only the uncorroborated statements of the person alleged to be the victim of the accused's conduct. Even if at trial of the offence it would be expected that some form of corroboration warning would be given to the jury, the question of absence of reasonable and probable cause is not to be decided according to such a rule. The objective sufficiency of the material considered by the prosecutor must be assessed in light of all of the facts of the particular case.[223]

269 Where multiple charges are combined in one presentment or indictment filed with a court, the defendant must have reasonable and probable cause in respect of each of the charges.[224]

270 In this proceeding, the allegedly defamatory statement was made orally by officer Nolan on 22 June 2005, before the Defamation Act 2005 (Vic) commenced.[225] It follows that any cause of action in defamation that accrued as a result of that statement is governed by the common law and not by the Act.[226]

271 The common law recognises two forms of defamation: libel and slander.[227] The essential distinction between libel and slander is that slander relates to material published in transient form, such as by speech, whereas libel relates to material published in permanent form, such as by writing.[228] As officer Nolan's statement was oral, the law of slander applies to that statement.

272 The common elements of the torts of libel and slander are as follows:

(a) the plaintiff is identified as the subject of the relevant material;

(b) that material is defamatory of the plaintiff; and

(c) that material was published by the defendant to a person other than the plaintiff.

273 In addition, slander generally requires proof of special damage, whereas libel does not.[229] There are exceptions to this rule, including where the defendant's words impute that the plaintiff has committed a criminal offence punishable by imprisonment. For the purposes of this exception, it is unnecessary for the words to specify a particular offence.[230] However, the words must be more than 'mere scurrilous abuse'; as a matter of substance, they must actually impute to the plaintiff the commission of an offence punishable by imprisonment.[231]

274 In determining whether the material is defamatory, it is necessary to identify the imputations or meanings that are conveyed by that material and to decide whether any of those imputations is defamatory.

275 Imputations may be based on the natural and ordinary meaning of the material or they may be based on innuendo. The intention of the defendant is irrelevant to the question of the meanings that may be attributed to the material.[232]

276 The natural and ordinary meaning of the material is determined by reference to how that material would be interpreted by an ordinary reasonable person unaided by special knowledge.[233] Such a person is presumed to be of 'fair, average intelligence' and to be 'neither perverse ... nor morbid or suspicious of mind ... nor avid for scandal'.[234] The natural and ordinary meaning of the material includes, in addition to its literal meaning, inferences that would be made by the person reading between the lines in the light of his or her general knowledge and experience.[235]

277 At common law, material is defamatory if, judged by reference to the standard of the ordinary reasonable person,[236] it contains an imputation that would be likely to cause ordinary decent folk in the community, taken in general, to think the less of him or her.[237] In general, an imputation will only be defamatory if it is disparaging of the plaintiff.[238] However, an imputation that is not disparaging can be defamatory if it would tend to make other persons 'shun or avoid' the plaintiff or if it displays the plaintiff in a ridiculous light.[239]

278 Defences to an action for defamation include justification (or truth) and fair comment on a matter of public interest.[240]

279 Trespass to land occurs when a person unjustifiably enters directly onto land in the possession of another, where that is done either intentionally or negligently.

280 Trespass to land is actionable without proof of damage. As Lord Camden LCJ said in Entick v Carrington:[241]

By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my licence, but he is liable to an action, though the damage be nothing. ... If he admits the fact, he is bound to shew by way of justification, that some positive law has empowered or excused him.[242]

281 This statement of the law remains true today.[243] It was echoed by Lord Denning MR in Southam v Smout,[244] in the following passage that has been cited with approval by the High Court:[245]

'The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail - its roof may shake - the wind may blow through it - the storm may enter - the rain may enter - but the King of England cannot enter - all his force dares not cross the threshold of the ruined tenement.' So be it - unless he has justification by law.[246]

282 Any person - including a police officer - who enters the land of another must justify that entry by proving that it was made with the consent of the occupier or in accordance with lawful authority.[247]

283 Where trespass is established, the plaintiff is entitled to substantial damages in vindication of his or her right to exclude the defendant from his or her property, even if no actual loss is established.[248]

284 I now turn to the defences of consent and lawful authority.

285 A person entering or remaining upon land will not be a trespasser if his or her presence is authorised by a licence granted by the occupier of the land. The licence may be express or implied.

286 A licence to enter land may be revoked at any time by the occupier. Once the licence has been revoked, the entrant will become a trespasser if he or she does not leave the land as soon as it is reasonably practicable to do so.[249]

287 Whether a licence has been granted by the occupier is essentially a question of fact.[250] There are circumstances, however, in which a licence will ordinarily be implied as a matter of law. For example, there is an implied licence to enter the path or driveway leading to the entrance of a private residence, provided the path or driveway is unobstructed, any entrance gate is unlocked and there is no sign or other indication that the entry is unauthorised. The implied licence permits members of the public to enter the path or driveway for any legitimate purpose that does not involve interference with the occupier's possession of the land, or injury to the person or property of the occupier, or the occupier's guests.[251]

288 Except where provision is made by the common law or by statute, police officers do not enjoy any special rights to enter land.[252] However, the High Court has recognised that, where the person seeking to enter another's land is a police officer, there may be 'a contest between public authority and the security of private dwellings.'[253] In Halliday v Nevill,[254] a majority of the High Court, guided by considerations of common sense and public policy, held that a police officer had an implied licence to enter the open driveway of a private residence to arrest a third party that he had observed committing an offence.[255] In his dissenting opinion, Brennan J said:

There is, of course, a tension between the common law privileges that secure the privacy of individuals in their own homes, gardens and yards and the efficient exercise of statutory powers in aid of law enforcement. The contest is not to be resolved by too ready an implication of a licence to police officers to enter on private property. The legislature has carefully defined the rights of the police to enter; it is not for the courts to alter the balance between individual privacy and the power of public officials.[256]

289 In Mackay v Abrahams,[257] Hood J held that there is an implied, revocable, licence to enter an open shop on the shopkeeper's business.[258] His Honour said that a police officer was entitled to enter a shop without a warrant to investigate an allegation that a salesperson from the shop had sold a firearm illegally, provided that the police officer left the premises when requested to do so by the occupier.[259]

290 Smith J reached a similar conclusion in Farrington v Thomson.[260] His Honour accepted that, in general, a shopkeeper is taken to have granted an implicit licence to members of the public, including police officers, to enter the public part of the shop for the purpose of discussing or transacting any business that concerns him or her, provided that the entry is not made in order to commit a criminal offence or tort against the shopkeeper.[261] In that case, two police officers were held liable in trespass because they had entered a hotel to perform an act that constituted the tort of misfeasance in a public office against the licensee of the hotel.

291 Entry upon land pursuant to an authority conferred by law does not constitute trespass.

292 A police officer does not commit an act of trespass when he or she enters land pursuant to a valid search warrant and executes the warrant lawfully. The principles relating to the lawful execution of a search warrant are discussed in Part 2(3).

293 Trespass to goods occurs where the intentional or negligent act of a person directly interferes with another person's possession of a chattel.

294 There is no liability for trespass to goods if the act that is alleged to constitute the tort was performed merely accidentally and not intentionally or negligently.[262]

295 The tort protects the plaintiff's possession of goods.[263] There is, however, some uncertainty about whether a right to immediate possession of the goods - as distinct from actual possession - is sufficient to establish the tort.[264] It is not necessary to resolve that issue for the purposes of this proceeding.

296 Trespass to goods is actionable without proof of damage.

297 In Penfolds Wines Pty Ltd v Elliott,[265] Latham CJ made the following observations:

A mere taking or asportation of a chattel may be a trespass without the infliction of any material damage. The handling of a chattel without authority is a trespass ... Unauthorized user of goods is a trespass; unauthorized acts of riding a horse, driving a motor car, using a bottle, are all equally trespasses, even though the horse may be returned unharmed or the motor car unwrecked or the bottle unbroken.[266]

298 These observations were recently cited by Kaye J in Cressy v Johnson [No 3].[267] In that case, his Honour accepted that trespass to goods is actionable without proof of damage and, in the absence of any evidence of loss, ordered the tortfeasor to pay nominal damages.[268]

299 There are various defences to an action in trespass to goods. In particular, there will be a defence where the interference to the plaintiff's possession of goods occurred with his or her consent, or in accordance with lawful authority, such as that provided by a search warrant or by a court order. The principles relating to the lawful execution of a search warrant are discussed in Part 2(3).

300 In the context of the execution of a search warrant, a police officer will commit a trespass to goods if he or she copies or transcribes information from documents found on the premises without the occupier's consent or a court order authorising him or her to use the documents for that purpose.[269] In the absence of such consent or lawful authority, the police officer is authorised to conduct only a limited inspection of the documents for the purpose of ascertaining whether they are described in the warrant. Any documents that are seized must be taken before the Magistrates' Court without delay and cannot be used in any way that is not authorised by an order of that Court.[270]

301 Conversion is a dealing with goods by a person in a manner that is repugnant to another person's possession or right to immediate possession of them.[271]

302 The defendant must have intended to perform the conduct that interfered with the plaintiff's possession or right to immediate possession of the goods.[272] Provided this element is proved by the plaintiff, the defendant may be liable in conversion even though he or she dealt with the goods without notice of the plaintiff's right to possess them or without any intention to challenge that right.[273] It is irrelevant that the defendant acted in good faith, under a mistake or with reasonable care to avoid causing injury, loss or damage to the plaintiff.[274]

303 In Rendell v Associated Finance Pty Ltd,[275] the Full Court found that the defendant company had converted the complainant's engine when its agent repossessed a truck from a third party under a hire-purchase agreement, despite the company being unaware that the complainant's engine had been substituted in the truck for its own engine after the third party took possession.[276]

304 In coming to this conclusion, the Full Court referred to the following statement of Cleasby B in Fowler v Hollins:[277]

liability under [the tort of conversion] is founded upon what has been regarded as a salutary rule for the protection of property, namely, that persons deal with the property in chattels or exercise acts of ownership over them at their peril.[278]

In Fowler v Hollins, the defendants were held liable in conversion after they disposed of cotton that had been fraudulently obtained from the plaintiff by another person, even though they were completely ignorant of the fraud.

305 At the time of the conversion, the plaintiff must have a right to immediate possession that is derived from some proprietary or possessory interest in the goods.[279] A mere contractual right to the immediate possession of the goods is not a sufficient interest.[280]

306 The conversion of goods may take various forms. In Penfolds Wines, Dixon J said:

The essence of conversion is a dealing with a chattel in a manner repugnant to the immediate right of possession of the person who has the property or special property in the chattel. It may take the form of a disposal of the goods by way of sale, or pledge or other intended transfer of an interest followed by delivery, of the destruction or change of the nature or character of the thing, as for example, pouring water into wine or cutting the seals from a deed, or of an appropriation evidenced by refusal to deliver or other denial of title.[281]

307 In Johnson Matthey (Aust) Ltd v Dascorp Pty Ltd,[282] Redlich J said:

Conversion may be committed by taking possession of goods, disposing of them, destroying them or refusing to give them up. In all such cases conversion is traced to conduct by the defendant that amounts to a denial of the plaintiff's rights or the assertion of inconsistent rights.[283]

308 The forms of conversion that are relevant to this proceeding are considered below.

309 The unauthorised removal of goods may constitute the tort of conversion.[284] For example, a conversion may be committed by theft[285] or by the seizure of goods by public officials in excess of their lawful authority.[286]

310 However, a mere asportation of goods by the defendant that involves no interference with the plaintiff's dominion or ownership rights over the goods cannot be a conversion.[287]

311 The use of goods by the defendant in a manner that is inconsistent with the plaintiff's dominion or ownership rights over the goods will constitute the tort of conversion, provided that the plaintiff had a right to immediate possession of the goods at the time that they were used.[288]

312 A person that lawfully acquired the possession of goods and afterwards retained those goods in safe custody, without using or otherwise dealing with them in any way, does not commit an act of conversion unless and until he or she wrongfully refuses to comply with an unequivocal demand for the return of the goods made by a person with a right to immediate possession of them.[289]

313 Where such a demand is made, the goods do not necessarily have to be surrendered immediately. No conversion occurs if the defendant, being unaware of the plaintiff's title, refuses the demand and retains the goods for a reasonable time in order to resolve his or her genuine doubt about the plaintiff's interest in them.[290]

314 In addition, where an employee receives a demand for the return of goods in the possession of his or her employer, the employee may detain the goods for a reasonable time in order to obtain the employer's authority for their release.[291]

315 In investigating the title of the plaintiff, the defendant is entitled to seek legal advice, but a long delay produced under the guise of seeking legal advice may amount to a denial of the plaintiff's rights and a conversion of the goods.[292]

316 Where the only act of conversion relied upon is the failure by the defendant to comply with the plaintiff's demand to deliver the goods, the defendant will only be liable in conversion if he or she was in possession of the goods at the time that the demand was made.[293] If the defendant parted with possession of the goods before the plaintiff made a demand for their return, the tort may be constituted by the defendant's disposal of the goods, but not by his or her failure to comply with the demand.

317 Police officers may commit an act of conversion if they refuse a demand for the return of goods seized pursuant to a search warrant when the continued detention of the goods is no longer reasonably necessary for the completion of their investigations or for the preservation of evidence.[294]

318 To establish the tort of detinue, two elements must be proved:

(a) the plaintiff made a demand for the return of goods at a time when he or she had a right to the immediate possession of them; and

(b) the defendant wrongfully refused to comply with that demand.[295]

319 Whereas the tort of conversion can be established without proof of a demand for the delivery of goods and a refusal to comply,[296] '[t]he gist of the [tort of detinue] is the wrongful detention of goods, that is to say the unlawful failure to deliver them up when demanded.'[297]

320 The plaintiff's title to sue in detinue is the same as that in conversion. Thus, the plaintiff must have a right to immediate possession that is derived from some proprietary or possessory interest in the goods.[298]

321 An oral demand is sufficient to found a claim in detinue.[299]

322 A demand will be insufficient if it would require the defendant to do more than to permit the plaintiff to come and collect the goods.[300] In Capital Finance Co Ltd v Bray,[301] the action in detinue failed because the letter of demand required the recipient to deliver up a car, at his own expense, to one of three named addresses. The result in this case is consistent with the decision of the Supreme Court of New South Wales in Lloyd v Osborne.[302] In the latter case, a letter sent to the defendant demanded that he immediately deliver certain sheep in his possession to the plaintiff or her agent. The demand was held to be insufficient because it did not state where the sheep were to be delivered or identify the plaintiff's agent, but it was also observed that the demand could not impose upon the defendant a positive burden in relation to the delivery of the goods. Darley CJ said:

The letter says, 'You will at once deliver to her or her agent all the sheep,' but it does not say where they are to be delivered, nor does it say who the agent is. Is [the defendant] to drive the sheep into Jugiong for delivery to [the plaintiff]? The law casts no such duty on him. If the letter of demand had said, 'you must deliver the sheep to the bearer of this letter,' and the bearer had then gone to [the defendant] and demanded the sheep, and [the defendant] had then done nothing, there would have been sufficient evidence of a demand and a refusal.[303]

323 There must be a clear and unqualified refusal by the defendant to comply with the plaintiff's demand for the return of the goods. One reason for this rule is that the cause of action in detinue accrues at the time of the refusal.[304]

324 The failure of the defendant to reply to the plaintiff's letter demanding the return of goods does not constitute a refusal of the demand, at least where the defendant was not under a legal obligation to reply.[305]

325 As in the tort of conversion, the defendant in a case of detinue does not necessarily act unlawfully in refusing to return the goods immediately upon demand. He or she may detain the goods for a reasonable time in order to inquire into the rights of the plaintiff.[306]

326 Unlike conversion constituted by a demand and refusal, detinue may be available where the defendant was not in possession of the goods at the time of the demand. In Goodman v Boycott,[307] Blackburn J held that

where the defendant in detinue had at one time possession of the plaintiff's goods, under such circumstances that he was bound to return them on demand, he cannot defend an action of detinue by pleading that in consequence of something amounting to a default on his part, as between him and the plaintiff, he, the defendant, has no longer possession of the goods, and, consequently, cannot comply with the demand ...[308]

327 The High Court applied this principle in John F Goulding Pty Ltd v Victorian Railways Commissioners.[309] In that case, the plaintiff bailed to the defendants certain goods, which were to be transported by rail and redelivered at the destination according to the orders of the plaintiff. At the destination, however, the goods were removed by, or delivered to, persons that were not authorised by the plaintiff to receive them. A subsequent demand from the plaintiff for the return of the goods was refused. The defendants were held liable to the plaintiff in detinue, notwithstanding the earlier loss of the goods, because they had not demonstrated that the goods were lost without default or breach of duty on their part.[310]

Liability for failing to investigate a complaint of criminal activity

328 In Australia, the question of whether a police officer can be liable in negligence to a person who suffers injury or damage as a result of the officer's failure to investigate that person's complaint that a third party has committed, or is threatening to commit, a criminal offence against him or her must be considered in the context of the 'conflicting duties' principle and principles based on public policy.

330 In Sullivan v Moody,[311] the High Court held that medical practitioners and social workers invested with professional or statutory responsibilities to investigate and report upon allegations of child abuse did not owe a duty to take reasonable care to protect the suspected perpetrators of such abuse. A duty of that kind could not be satisfactorily reconciled with the nature of the functions performed by these persons, or with their statutory obligation to treat the interests of the children as paramount.[312] The general rule was stated by the Court as follows:

when public authorities, or their officers, are charged with the responsibility of conducting investigations, or exercising powers, in the public interest, or in the interests of a specified class of persons, the law would not ordinarily subject them to a duty to have regard to the interests of another class of persons where that would impose upon them conflicting claims or obligations.[313]

331 Similar considerations applied in Tame v New South Wales.[314] In that case, a police officer had mistakenly reported the presence of alcohol in the blood of the plaintiff, who was the driver of a motor vehicle involved in a traffic accident. Although the report was later corrected, the plaintiff became obsessed with the mistake and developed a psychiatric illness. The High Court unanimously held that no duty of care was owed to the plaintiff. A majority of the Court, applying Sullivan, considered that police officers do not owe a duty of care to avoid causing psychiatric harm to a person under investigation on the basis that such a duty would conflict with their existing common law and statutory duties.[315]

332 In Hill v Chief Constable of West Yorkshire,[316] the plaintiff's daughter was the final victim of the serial murderer known as the 'Yorkshire Ripper', who was responsible for a large number of crimes directed against young women in the same area over a period of more than five years. The plaintiff, on behalf of her daughter's estate, brought proceedings alleging that members of the police force had breached their duty to take reasonable care to apprehend the person responsible for the crimes. Lord Keith of Kinkel, with whom Lord Brandon of Oakbrook, Lord Oliver of Aylmerton and Lord Goff of Chieveley agreed, applied orthodox reasoning to decide that police officers owed no duty to identify and apprehend an unknown offender.[317] Lord Keith went on, however, to advance an alternative justification for this conclusion that relied upon various public policy grounds. His Lordship said that the imposition of the alleged duty:

(a) would not tend to raise the standards observed by police officers in the investigation of crime because '[t]he general sense of public duty which motivates police forces is unlikely to be appreciably reinforced by the imposition of such liability';[318]

(b) might lead police officers to conduct their investigations in a 'detrimentally defensive frame of mind';[319]

(c) would result in the courts inappropriately reviewing many decisions that involved 'matters of policy and discretion', such as decisions about which lines of inquiry to pursue and the best way to deploy available police resources;[320] and

(d) would significantly divert police resources from their primary purpose of suppressing crime to the purpose of defending proceedings brought against police officers.[321]

333 Cases subsequent to Hill have questioned whether each of these public policy grounds can now be supported.[322] In particular, the House of Lords has recognised that it is necessary to adopt a more sceptical approach to assessing the conduct of police officers than that indicated by the first of the grounds mentioned above.[323]

334 Nonetheless, in Brooks v Commissioner of Police of the Metropolis,[324] Lord Steyn, with whom Lord Rodger of Earlsferry and Lord Brown of Eaton-under-Heywood agreed, confirmed that the 'core principle' of Hill remains good law in the United Kingdom. His Lordship said:

the core principle of Hill's case has remained unchallenged in our domestic jurisprudence ... It is, of course, desirable that police officers should treat victims and witnesses properly and with respect ... But to convert that ethical value into general legal duties of care on the police towards victims and witnesses would be going too far. ... A retreat from the principle in Hill's case would have detrimental effects for law enforcement. Whilst focusing on investigating crime, and the arrest of suspects, police officers would in practice be required to ensure that in every contact with a potential witness or a potential victim time and resources were deployed to avoid the risk of causing harm or offence. Such legal duties would tend to inhibit a robust approach in assessing a person as a possible suspect, witness or victim. By placing general duties of care on the police to victims and witnesses the police's ability to perform their public functions in the interests of the community, fearlessly and with despatch, would be impeded. It would, as was recognised in Hill's case, be bound to lead to an unduly defensive approach in combating crime.[325]

335 This 'core principle' appears to be that, in all but 'exceptional cases', police officers engaged in combating and investigating crime do not owe a duty of care to individual members of the public to protect them against harm caused by criminal conduct.[326] Although the House of Lords has allowed for the possibility that 'there might be exceptional cases where liability must be imposed',[327] little guidance has been provided as to when such a case may arise.

336 Numerous decisions of Australian courts, including Sullivan[328] and Tame,[329] have referred to Hill with approval.[330] One decision that is worth noting is Gibbs v Queensland.[331] The applicant there made a late application for leave to appeal against the summary dismissal of proceedings in which he alleged that police officers had negligently, and in breach of their statutory duty, failed or refused to investigate certain complaints. The Queensland Court of Appeal dismissed the application after refusing to grant the applicant an extension of time in which to apply for leave to appeal. Wilson J, with whom McPherson JA and Williams J agreed, said that '[t]he applicant has not demonstrated that there is sufficient doubt about the correctness of Hill to justify the grant of leave to appeal to argue the question of principle in this Court.'[332]

337 The 'core principle' of Hill was recently considered by the House of Lords in Smith v Chief Constable of Sussex Police, which was the second of two appeals heard together and reported in Van Colle v Chief Constable of the Hertfordshire Police.[333] In that case, the plaintiff had complained to police officers that he was receiving from his former partner persistent telephone, text and internet messages of a threatening nature, including threats to kill. He provided the officers with his former partner's address, details of his former partner's history of violence and the contents of the messages. The officers declined to look at the messages; however, they informed the plaintiff that the calls would have to be traced and made arrangements for him to complete the relevant forms. After receiving further threats, the plaintiff complained about the messages to another police officer. This officer also declined to look at the messages, but he assured the plaintiff that the investigation was progressing well and invited him to call for emergency assistance if he was concerned for his safety. Later, the plaintiff was attacked at his home by his former partner and sustained serious injuries. He claimed that the police owed him a duty of care to protect him from the attack.

338 The majority decided that the 'core principle' in Hill, as identified by Lord Steyn in Brooks,[334] applied to negate the alleged duty of care. Lord Hope of Craighead and Lord Carswell observed that the principle might appear to operate harshly in individual cases, but that its fundamental purpose is to benefit the community as a whole by encouraging the robust performance of police duties.[335] It serves this purpose by allowing police officers 'to exercise their judgment in pursuit of their objects in work in the public interest, without being trammelled by the need to devote excessive time and attention to complaints or being constantly under the shadow of threatened litigation.'[336]

339 In a strong dissenting opinion, Lord Bingham of Cornhill applied what he called the 'liability principle' to hold that, upon the pleaded facts, the police officers owed a duty of care to the plaintiff.[337] His Lordship formulated the 'liability principle' as follows:

if a member of the public (A) furnishes a police officer (B) with apparently credible evidence that a third party whose identity and whereabouts are known presents a specific and imminent threat to his life or physical safety, B owes A a duty to take reasonable steps to assess such threat and, if appropriate, take reasonable steps to prevent it being executed.[338]

340 His Lordship said that the 'liability principle' was consistent with Hill and Brooks.[339] The principle would not distract police officers from their primary function of suppressing crime and apprehending criminals; rather, in the limited circumstances in which it would apply, it would require the reasonable performance of that function.[340] Where the liability principle applied, courts could test the judgment of police officers against an objective standard.[341]

341 The majority in Van Colle considered and rejected the 'liability principle'. According to their Lordships, the principle was incompatible with the 'core principle' of Hill because it would lead to 'defensive policing' and the diversion of police resources to purposes unrelated to the investigation of crime.[342] In addition, the 'liability principle' was criticised for applying only to cases involving credible threats made to a person's 'life or physical safety' and not to cases involving credible threats to property;[343] for being uncertain in its operation;[344] and for resting on a 'false dichotomy' between police officers' investigative function and what might be described as their 'protective' function.[345] This final criticism was made by Lord Brown, who pointed out that the two functions are really not distinct because the threats themselves are evidence of a criminal offence that must be investigated by the police.[346]

342 Two Australian decisions have referred to Van Colle.

343 In New South Wales v Spearpoint,[347] the respondents alleged that they had suffered injury and loss as a result of the negligent failure by police officers to detain a person that was subject to an apprehended violence order after they had twice complained that he was breaching the order. The New South Wales Court of Appeal dismissed an application for leave to appeal against the refusal of the judge at first instance to summarily dismiss the proceeding. In ex tempore reasons for judgment, Allsop ACJ and Ipp JA referred to Lord Bingham's dissenting opinion in Van Colle.[348] Ipp JA said that his Lordship had 'expressed a cogent argument supporting the proposition that police could owe a duty of care to a private individual arising out of a failure to arrest or otherwise protect that person from harm'.[349] His Honour also said that 'there is no authoritative decision in Australia which holds that there is an absolute immunity afforded to police for their conduct in the course of their duties.'[350]

344 Van Colle was distinguished by Redlich JA, with whom Nettle JA and Hansen AJA agreed, in Victoria v Richards.[351] In that case, the plaintiff claimed that she was injured when police officers negligently deployed capsicum spray in her vicinity during the arrest of an offender in a shop. The Court of Appeal dismissed an appeal from a decision of a County Court judge refusing to summarily dismiss the proceeding. Redlich JA observed that Spearpoint indicates that it 'may at least be arguable' that a duty of care exists in cases where liability is sought to be imposed on a person for injury or loss arising out of the criminal conduct of another.[352]

345 It follows from Sullivan and Tame that, in general, police officers will not owe a duty of care to a particular complainant to investigate his or her complaint of actual or threatened criminal conduct because the imposition of such a duty would be inconsistent with the performance of their public duty to enforce the criminal law, which requires them to exercise discretion in prioritising the use of scarce investigative resources in the public interest.

346 In Hill, the House of Lords held, on public policy grounds, that police officers do not owe a duty to a member of the public to identify and apprehend an unknown offender. In Van Colle, the House of Lords applied the 'core principle' in Hill to deny the existence of a duty of care owed by police officers to a plaintiff who had suffered foreseeable injury as a result of the police officers' failure to respond effectively to a complaint of threatened criminal conduct by an identified person. Their Lordships, however, accepted that police officers may be found to owe a duty of care in 'exceptional cases'.

347 While police officers do not enjoy blanket immunity from liability for harm caused by their failure to investigate complaints, the authorities indicate that a duty of care will not be recognised unless there is something exceptional in the circumstances of a particular case that warrants such recognition. In the absence of exceptional circumstances, the mere failure by police to investigate a complaint of actual or threatened criminal conduct is not sufficient.[353]

348 There is no direct authority on the issue of whether a police officer owes a duty of care to third parties in supervising the conduct of his or her subordinate officers.

349 The issue did arise at first instance, however, in Victoria v Horvath.[354] The trial judge there held that a police sergeant, who had overall command of a group of police officers, had negligently planned and supervised a raid during which various intentional torts were committed against the occupiers of the premises. The intentional torts included battery, trespass to land and false imprisonment. The damages awarded to the occupiers reflected the trial judge's finding that the sergeant's negligence caused all of the injuries and damage suffered by the occupiers. Thus, the damages assessed against the sergeant were equivalent to the total damages assessed in respect of each of the intentional torts.

350 The Court of Appeal did not consider whether the trial judge was correct to find that the sergeant owed the alleged duty of care to the occupiers. In setting aside the award of damages against the sergeant in respect of the intentional torts that were committed by the subordinate officers, the Court held that the injuries and damage suffered by the occupiers from the commission of those torts were not relevantly caused by any fault on the part of the sergeant in planning or supervising the raid. Any such fault was 'overtaken' by an agreement between the police officers, including the sergeant, to arrest the occupiers using such force as they believed to be necessary in the exercise of their individual discretions. The direct cause of the injuries and damage suffered by the occupiers was the tortious conduct of the officers performed pursuant to this agreement.[355]

351 It is clear that police officers are not generally immune from proceedings in negligence.[356] In Hill, Lord Keith recognised that police officers may be liable for the direct results of their negligent acts or omissions.[357] In support of this proposition, his Lordship cited Knightley v Johns[358] and Rigby v Chief Constable of Northamptonshire.[359] In Knightley, a police inspector was held liable in negligence for harm caused to a subordinate officer, who, acting on the inspector's instructions, had travelled against the flow of traffic to rectify the inspector's failure to secure the scene of an accident.[360] In Rigby, police officers laying siege to a building were found to have acted negligently in discharging a canister of gas that caused the building to catch fire at a time when they knew that fire-fighting equipment was not at hand.[361]

352 Knightley and Rigby were followed by the Appeal Division of this Court in Zalewski v Turcarolo.[362] In that case, the police had responded to a telephone call from the respondent's father, who was concerned that his son might be at risk of committing suicide. The police were told that the respondent had a mental illness and that he was armed with a shotgun in his bedroom at the family home. The officer in charge decided that he and another officer would confront the respondent. As they entered the bedroom, the respondent's movements suggested that he was preparing to fire the shotgun. Both of the officers responded by shooting their weapons at the respondent, who was injured by one or both of them. In proceedings brought by the respondent against the two police officers and the State, the State was held liable for the negligence of the officer in charge. The State and the officer in charge appealed against the finding of negligence and the trial judge's rejection of, among other things, an alleged 'immunity' based on Hill.

353 In separate reasons for judgment, Brooking and Hansen JJ referred to numerous cases in which police officers have been held liable for the negligent discharge of their operational duties. The Court held that it was open to the jury to find that the officer in charge was negligent. Hansen J, with whom Brooking and J D Phillips JJ agreed, said:

it was open to the jury to find that a reaction of a kind which gave the police officers an apprehension of threatening behaviour could have been anticipated by them as the reaction of a person with a mentally disturbed mind when confronted with a sudden and unexpected situation at the doorway of his bedroom. It was also open to the jury to find that [the officer in charge] acted too quickly, without time for proper inquiry and reflection concerning the respondent and his likely reactions, and to plan his approach accordingly with less confrontation and in a manner consistent with his training for such a situation, the primary object of which was to save life and avoid injury.[363]

354 Hansen J acknowledged that there might be cases in which liability would be appropriately excluded on the basis of public policy considerations.[364] However, his Honour concluded that Hill provided no support for the view that police officers enjoy blanket immunity from suits in negligence and that, in any event, the circumstances of that case were distinguishable from those in Zalewski.[365]

355 In Richards, the Court of Appeal rejected a submission that Zalewski should be overruled in the light of the High Court's decisions in Sullivan and Tame.[366] It will be recalled from [344] above that, in Richards, the plaintiff alleged that she was injured by the negligent conduct of police officers in deploying capsicum spray during the arrest of a suspect in a shop. In upholding the refusal of the judge at first instance to summarily dismiss the proceeding, the Court held that the officers arguably owed a duty of care to avoid causing injury to a member of the public while carrying out their duties. Redlich JA said:

The appellants' contention that the proposed duty of care is unarguable cannot be made out. Giving due weight to the imperative to preserve the autonomy of police officers in their operational judgments and decisions, it has not been shown that the plaintiff's cause of action as pleaded involves an inconsistency between the police duty to apprehend, and the proposed duty to take reasonable steps to take care of the plaintiff. I consider it to be open to the plaintiff to maintain her claim in negligence as there is no necessary incompatibility between the duty of the police to enforce the law by exercising their power of arrest and a duty to have reasonable regard for the welfare of third parties in doing so.[367]

356 The authorities referred to above lend some support for the view that a police officer may be liable for injury or damage caused by his or her negligence in supervising subordinate officers, at least in relation to the performance of their operational duties. For the reasons set out at [1992] to [1996] below, however, it is not necessary for me to resolve this issue for the purposes of this proceeding.

PART 4 - GENERAL COMMENTS ON EVIDENCE AND CREDIT

357 Mr Slaveski called 21 witnesses. The main witnesses were himself, Mrs Slaveska, John Goodwin, Michael Butler, Dimitrija Tancevski, Darran Scott, Lindsay Alexander and four medical witnesses.

358 Each of the police defendants gave evidence and they called another 17 witnesses. Officers Rodney Brewer, Luke Billing, Robert Hodge and Trevor Lockwood and PSOs Andrew Crawford and Della Lovett were important witnesses for the police defendants. Their audiovisual expert witness, Jason Ferridge, and their medical witnesses, Professor David Wells and Dr Diane Neill, were also important.

359 As much of the evidence was in dispute, the credit of the main witnesses assumed obvious significance in the case.

360 In this Part 4, I make some general comments on the credit of the key witnesses and set out my broad conclusions about the veracity of their evidence. More specific findings about their evidence are set out in Part 5.

361 For most witnesses, I have concluded that they were truthful. That does not mean that I have accepted everything that they said. It means that they did not deliberately lie or seek to mislead the Court on any matter relevant to this proceeding. For some witnesses, I have concluded that, notwithstanding that they were truthful, parts of their evidence should not be accepted either because they were mistaken or for some other reason that I have given.

362 Where I have formed the view that a witness' evidence should not be accepted on a matter on which it was not necessary for me to make a finding, I have not specifically referred to that evidence. Examples of such evidence are set out below:

(a) Some of the police defendants denied discussing with each other matters relating to Mr Slaveski or the proceeding. Given that many of them - particularly the members of the Mill Park CIU - were a tightly knit group and that Mr Slaveski's allegations against them were of a persistent and serious nature, the denials were implausible. Also implausible was the evidence of some of the police defendants that, although they recalled having discussions with co-defendants about Mr Slaveski, they could not remember when the discussions took place or what was discussed. One would have expected the police defendants to have strong negative views about Mr Slaveski and to share those views with each other at the Mill Park or Epping police stations (for those police defendants still working at those stations) or during the numerous occasions in which some of the police defendants socialised. I do, however, accept that the police defendants did not improperly discuss each other's evidence. I reject Mrs Slaveska's allegation that the defendants colluded with each other.

(b) The evidence of officer Peck that he had no opinion of Mr Slaveski was insincere, as was the evidence of officer Lowerson that he still liked and cared about Mr Slaveski. The evidence of officers Kirkright, Sadler, Cole, Jones, Nolan, Wendt and Baade that they do not like Mr Slaveski as a result of the allegations that he has made against them, was more convincing,[368] as was officer Parker's evidence that he 'loathed' Mr Slaveski. However, I dismiss as baseless and absurd Mrs Slaveska's allegation that the defendants hate Mr Slaveski so much that they are willing to go as far as killing him.

363 In assessing the credit of Mr Slaveski, I was not assisted by, and did not take into account, any prior criminal charges against him which had resulted in a finding of guilt. I took into account any finding of guilt, however, where that was relevant to any issue in the proceeding. Further, I did not take into account Mr Slaveski's conduct in any capacity other than that of a witness.[369]

364 In assessing the credit of Mrs Slaveska, I did not take into account her conduct as Mr Slaveski's litigation guardian.[370]

365 In assessing the credit of officers Rhodes, Kirkright, Peck, Nolan and Parker, I was not assisted by, and did not take into account, evidence that certain stale and insignificant complaints about their conduct - which had nothing to do with Mr Slaveski - had been substantiated.

366 A number of potential witnesses who would have been in a position to give evidence on relevant issues were not called by Mrs Slaveska or the police defendants. As there was sufficient direct evidence to enable me to decide those issues, it has not been necessary for me to draw any inferences based on the absence of evidence from any potential witnesses.[371]

367 Mrs Slaveska gave evidence before Mr Slaveski. This occurred because, at the defendants' request, I ordered witnesses who had not yet given evidence to leave the courtroom, and Mr Slaveski wanted Mrs Slaveska to be in the courtroom to assist him when he gave evidence. Mrs Slaveska gave evidence in chief over 15 days, with significant interruptions during some of those days. She was cross-examined for nine days and re-examined herself for one day.[372]

368 The manner in which Mrs Slaveska gave evidence was unconventional. During the first phase of the trial, she was asked many leading questions by Mr Slaveski, including questions that required her to give hearsay evidence, to express opinions and to engage in speculation. In addition, Mr Slaveski often asked Mrs Slaveska to repeat her answers for additional emphasis. Sensibly, counsel for the defendants rarely objected while Mrs Slaveska gave evidence in chief. As discussed at [56] above, during the second phase of the hearing, Mrs Slaveska's re-examination consisted of comments on particular parts of her evidence in cross-examination.

369 Despite her narrow English vocabulary, Mrs Slaveska's evidence was generally clear, direct and robust. It disclosed strong loyalty to Mr Slaveski and his case. At times, Mrs Slaveska became emotional, particularly when recounting events that occurred in her children's presence.

370 Mrs Slaveska was heavily involved in the preparation of the case for trial (including in the preparation of subpoenas) and in advising and assisting Mr Slaveski generally. She also continued to discuss the case with Mr Slaveski on a daily basis while she remained a witness. Indeed, while Mrs Slaveska was giving evidence in chief, she would often leave the witness box, with my permission, to assist Mr Slaveski in organising his documents. Mrs Slaveska did not seek to conceal the nature of her involvement in the preparation of the case.

371 In these circumstances, it was unsurprising that Mrs Slaveska anticipated many of Mr Slaveski's questions. She even rephrased some questions and expanded on others with a view to plugging any gaps. She gave lengthy answers to many questions, sometimes bordering on monologues. Her multiple roles in this proceeding and the fact that she did not give evidence in a conventional manner obviously affected the weight of her evidence.

372 Mrs Slaveska had a genuine recollection of some of the key events and made some concessions. I have therefore accepted some aspects of her evidence. Most of her evidence, however, was rehearsed, self-serving, selective and exaggerated. Some parts were improvised, while others were simply fanciful.

373 In cross-examination, Mrs Slaveska was sometimes argumentative. She was also reluctant to change her evidence, even when it was directly contradicted by contemporaneous documents that were put to her.

374 Overall, Mrs Slaveska was an unreliable witness and I have rejected significant portions of her evidence.

375 Mr Slaveski was an abysmal witness. He was evasive, rambling, disrespectful, pugnacious and unruly. He refused to abide by my directions to answer only the questions that were put to him and not to make speeches or abuse counsel for the defendants. He made far-fetched allegations and often shouted and used profane language. At various times, particularly during cross-examination, he ranted and raved and was completely out of control.

376 A significant proportion of what Mr Slaveski said while he was in the witness box did not constitute admissible evidence, but comprised accusations, opinions and speculation. He also referred to many matters which had nothing to do with the issues in the proceeding.

377 Much of Mr Slaveski's evidence that was relevant to the issues in the proceeding was unreliable. To some extent, Mr Slaveski's medication appeared to affect his ability to recollect events adequately. When he had not taken medication, he tended to be angry, aggressive and argumentative. When he had taken too much medication, he was tearful and unfocused.

378 After making due allowance for Mr Slaveski's mental illness and medication, I have formed the view that Mr Slaveski's evidence was largely implausible and unsafe. When questioned about events that were adverse to his case, Mr Slaveski often pretended that he did not recall the events. When confronted with adverse documents, audio tapes or video recordings, he often denounced them as being fabricated or subjected to tampering. As discussed below, I have concluded that the police defendants did not fabricate or tamper with any evidence.

379 Mr Slaveski had a tendency to repeat some statements over and over again at various stages of his evidence, irrespective of whether those statements were relevant to the question that he was asked. It was not unusual for him to embellish his earlier statements. Mr Slaveski gave evidence in a reckless manner and sometimes conveyed the impression that he was making up his version of events as he went along.

380 That is not to say, however, that I disbelieved everything that Mr Slaveski said. There were aspects of his evidence that were reliable. He had a clear recollection of some events which he steadfastly maintained at all stages of his evidence.

381 Nevertheless, I have been reluctant to accept much of Mr Slaveski's evidence that was not corroborated by an independent witness or by a contemporaneous document. Where Mr Slaveski's evidence was inconsistent with contemporaneous documents which were written by him, or on his behalf, or which recorded his words (such as a transcript of an interview), I have tended to reject his evidence in so far as it was inconsistent with the contemporaneous documents and to prefer the evidence of other witnesses in so far as it was consistent with those documents.

382 Officer Bingham was a truthful witness. He was candid about what he did not recall and made a number of concessions. Importantly, he had opportunities to lie about matters solely within his own knowledge, but he did not do so. Some of his evidence, however, was mistaken.

383 Officer Smithwick was a truthful witness. Some of his evidence, however, was mistaken.

385 While officer Cole was a truthful witness, there were some aspects of his evidence that I did not accept.

386 While officer Sadler was a truthful witness, there were some aspects of her evidence that I did not accept.

387 Officer Tennyson was a truthful witness, who answered questions crisply and confidently.

388 Officer Parker was an enigmatic witness. I have rejected important aspects of his evidence as being unreliable on the basis that it was implausible or inconsistent with other credible evidence. Although I was satisfied that officer Parker did not deliberately lie, I found it difficult to determine why there were serious flaws in his recollection. One possibility was that his encounters with Mr Slaveski had so unnerved him that his ability to concentrate was impaired, particularly when both Mr and Mrs Slaveski were present in the courtroom. Another possibility was that he was suffering from a medical condition that made it difficult for him to recollect events relating to Mr Slaveski. Mr Gipp hinted at these possibilities - which are not mutually exclusive - but no evidence was given to assist me in understanding the reasons for the deficiencies in officer Parker's evidence.

389 I have rejected key aspects of officer Lowerson's evidence because his recollection of important events was seriously flawed. His evidence was contradictory, confusing and erratic. It is not necessary for me to decide whether he was lying or suffering from loss of memory or both.

391 Officer Smith was a truthful and impressive witness.

396 Officer Barton was a truthful witness. Some of his evidence, however, was mistaken.

399 Officer Nolan was a truthful witness. There were, however, some aspects of his evidence that I did not accept.

401 Officer Leemon was a truthful and impressive witness.

402 Officer Wendt was a truthful witness. His inability to answer some questions satisfactorily in cross-examination was due to a lack of insight rather than to deliberate evasiveness.

403 Officer Anderson was a truthful and impressive witness.

404 Officer Knowles was a truthful and impressive witness.

405 Dimitrija Tancevski, Michael Ghanen, Mona Ghanen, Michael Butler, Riste Sapazovski, Salina Petreska, Jacqueline Baldwin, John Goodwin, Darran Scott, Jim Theodoropoulos, Aysen Cosar, Douglas Lowe and Lindsay Alexander were truthful witnesses. Set out below are limitations or deficiencies in the evidence of some of these witnesses.

406 Dimitrija Tancevski. He is a friend of the Slaveski family. As his command of the English language was limited, he did not fully understand some discussions that took place in English in his presence. Accordingly, he was not able to give a full account of those discussions.

407 John Goodwin. He was a sound recording engineer who had worked with Mr Slaveski in the music industry over a long period. He and Mr Slaveski were friends and conducted a recording business in partnership in the period 1997 to approximately 2001. In 2000, the partnership had a recording studio at the Lalor shop. Mr Goodwin was involved in the incident of 8 September 2000 and was arrested during the incident.

408 Mr Goodwin sought to give truthful evidence to the best of his recollection. Although he felt strongly that the police had behaved improperly on 8 September 2000, he generally came across as impartial, possibly because he had had a falling out with Mr Slaveski in 2001 and had not had any problems with the police since his court appearance on 2 May 2001 in the aftermath of the incident on 8 September 2000. However, Mr Goodwin's memory was faulty in some important respects. This was due to the passage of time and to mistaken reconstruction, rather than to any desire to mislead the Court.

409 Jim Theodoropoulos. He was Mr Slaveski's employee from 1997 to 2001. Although he did his best to recollect events in that period, some of his evidence was unreliable because he was confused about the timing of important events.

410 Aysen Cosar. She was a customer of Mr Slaveski's finance business. Her memory was faulty in some respects.

Non-medical witnesses for the police defendants

411 Officers Christine Grant, Rodney Brewer, Anja Cross, Luke Billing, Daniel Rooney, Paul Nikolaou, Elizabeth Wood, Robert Hodge, John Bakas, David Gray and Trevor Lockwood, and PSOs Jonathon Datoy, Andrew Crawford and Della Lovett were truthful witnesses. However, I did not accept one aspect of officer Grant's evidence, namely, that the statement she took from Mrs Slaveska on 19 September 2000 set out what Mrs Slaveska had said in her own words.[373] It was patently obvious that the statement included paraphrasing by officer Grant.

412 Dr Gobind Duggal, Ms Shalika Ranaweera, Dr Rodney Farnbach and Dr John Williams, who were called by Mr Slaveski, and Professor David Wells and Dr Diane Neill, who were called by the police defendants, were truthful witnesses. My reasons for preferring the opinions of some medical witnesses over the evidence of others are set out below where I discuss the relevant medical evidence.

PART 5 - FACTUAL FINDINGS AND CONCLUSIONS ON LIABILITY

413 The incidents in dispute took place at the Lalor shop, the Mill Park and Preston police stations, the Epping Plaza and the Children's Court.

414 The Mill Park police station is located at 151 Centenary Drive, Mill Park. It is approximately 10 minutes by car from the Lalor shop. The Preston police station is located at Roseberry Avenue, Preston. It is approximately five to 10 minutes by car from the Lalor shop.

415 The Epping Plaza is located in High Street, Epping.

416 The Epping police station, which features in some of the evidence, is located at 785 High Street, Epping, and is very close to the Epping Plaza. The Epping police station and the Epping Plaza are approximately five minutes by car from the Lalor shop.

417 Mr and Mrs Slaveski's home in Lalor is less than five minutes by car from the Lalor shop.

418 Mr and Mrs Slaveski led evidence and cross-examined the police defendants and their witnesses on numerous issues which had no bearing on the matters raised for determination by the pleadings. While I have considered all the evidence, including evidence going solely to credit, I have confined my factual findings to what is relevant on the pleadings.

Whittlesea City Council's allegations against Mr Slaveski

419 Officer Bingham gave evidence that, in late August 2000, the Whittlesea City Council ('Council') made a complaint to officer Ross Mitchell of the Mill Park police station about threats of physical harm to Council employees that had been made by Mr Slaveski. After making some inquiries, officer Mitchell handed over the investigation to him. As a result of his investigation of the initial complaint and subsequent complaints from the Council about Mr Slaveski's threats, on 8 September 2000, he decided to arrest and charge Mr Slaveski with serious indictable offences, including blackmail and making threats to kill.

420 As discussed below, the charges resulted in an agreed outcome in the Melbourne Magistrates' Court on 16 February 2001. The Magistrates' Court records show that Mr Slaveski pleaded guilty to some charges and that the remaining charges were withdrawn. Accordingly, the Council's allegations were not the subject of adjudication following a contested hearing.

421 Before me, Mr and Mrs Slaveski disputed the Council's allegations and gave evidence about what they say happened. They also gave evidence that Mr Slaveski had long running disputes with the Council and that some Council officers singled out Mr Slaveski for parking and other fines.

422 It is not necessary for me to make findings about the truth of the Council's allegations or about the motives of particular Council officers. What is important is the information that the police officers who arrested Mr Slaveski on 8 September 2000 possessed at that time about Mr Slaveski's dealings with the Council and the beliefs that they formed on the basis of that information. Accordingly, with one exception, I will not set out Mr and Mrs Slaveski's evidence about their dealings with the Council, except in so far as they discussed those dealings with the police on 8 September 2000.

423 The one exception is evidence given by Mr and Mrs Slaveski that, shortly before 8 September 2000, Mr Slaveski had an argument with a Council officer, Peter Shelton, and that Mr Shelton said to Mr Slaveski words to the effect that he was a former police officer, that he had mates in the police force and that he would get them to fix up Mr Slaveski. Mrs Slaveska sought to portray the events of 8 September 2000 at the Lalor shop as some form of payback to Mr Slaveski that was instigated by Mr Shelton. All of the police defendants who attended the Lalor shop on 8 September 2000 gave evidence that they did not know Mr Shelton prior to the investigation of the Council's complaints against Mr Slaveski. There was simply no credible evidence linking the alleged threat by Mr Shelton with the events of 8 September 2000 at the Lalor shop.

424 Officer Bingham gave evidence that, when he first became involved in the investigation of the Council's complaint, he received from officer Mitchell a file containing, among other things, a signed statement dated 25 August 2000 of a Council officer, Das Angelakos; two file notes dated 17 and 21 August 2000 respectively of Mr Angelakos; and two photographs of the rear of the Lalor shop. He read these documents prior to 8 September 2000 and met with Mr Angelakos a number of times, including on 6 and 7 September 2000. Only the meetings of 6 and 7 September 2000 were recorded in his diary.

425 Mr Angelakos' statement of 25 August 2000 was based on his file notes of 17 and 21 August 2000. The statement contained the following information:

(a) Mr Angelakos was an employee of the Council and his responsibilities included ensuring compliance with local laws.

(b) At about 11.30am on 17 August 2000, Mr Angelakos attended the Lalor shop in response to a complaint that televisions and similar items had been stored in the laneway behind the shop, creating an obstruction. When Mr Angelakos told Mr Slaveski that he had 24 hours to remove the items from the laneway, Mr Slaveski became abusive.

(c) Mr Angelakos requested Mr Slaveski to produce permits for the 'A-Board' advertising sign and the goods that were on display on the footpath in front of the Lalor shop. When no permit for the 'A-Board' sign was produced,[374] Mr Angelakos instructed Mr Slaveski to remove the sign immediately.

(d) At that point, Mr Slaveski became more abusive and advanced towards Mr Angelakos in a manner that made him feel that he was going to be assaulted. Mr Angelakos warned Mr Slaveski against any physical confrontation. Mr Slaveski then ordered Mr Angelakos to leave the shop.

(e) Mr Angelakos got into his vehicle and drove to the rear of the shop. Mr Angelakos took some photographs of the items stored in the laneway. Mr Angelakos then returned to his vehicle and commenced writing infringement notices for 'Obstruction of Council land' and 'Placing illegal Advertising'. While Mr Angelakos was doing this, Mr Slaveski appeared from the rear of the shop, ran to the front of Mr Angelakos' vehicle and yelled, 'Get out of the car you fucken cunt. Be a man and come out here and we'll deal with this problem. ... I'll beat the crap out of you.'

(f) Mr Slaveski then spat at the windscreen and at the driver's side window of Mr Angelakos' vehicle, and verbally abused Mr Angelakos. As the rear of Mr Angelakos' vehicle was obstructed by the televisions and the front of the vehicle was obstructed by Mr Slaveski, Mr Angelakos called for assistance on his two-way radio. At this point, Mr Slaveski moved away, enabling Mr Angelakos to drive off. Mr Angelakos reported the incident to his direct supervisor, Margaret Blackney, and to the local laws supervisor, Peter Shelton.

(g) At about 9.30pm on 21 August 2000, Mr Angelakos received a telephone call from a cousin with the same name as him. The cousin told Mr Angelakos that a person had called asking for him and had left a telephone number. At about 9.45pm, Mr Angelakos telephoned the number, not knowing whom he was calling because his cousin could not pronounce the person's name. A woman answered the phone and passed it on to a man who called himself 'Sky'. Mr Angelakos eventually realised that the man was Mr Slaveski. Mr Slaveski said words to the effect, 'We have some unfinished business' and 'I have a lot of money and a lot of connections through my fifteen years of working in the entertainment industry and I can take care of anyone or anything.'

(h) During the telephone discussion, Mr Slaveski said that he would do whatever it takes to solve the problem, which Mr Angelakos interpreted to be the two infringement notices. Mr Slaveski said that he was quite prepared to pay $5,000 to have a problem fixed. When Mr Angelakos refused to accede to Mr Slaveski's demand that he go to see him, Mr Slaveski said that he would have to arrange for at least two of his friends to pay Mr Angelakos a visit. Mr Slaveski would not accept anything Mr Angelakos said unless he agreed to withdraw the infringement notices. Mr Angelakos told Mr Slaveski to speak to his superiors and ended the call.

(i) As a result of the telephone conversation, Mr Angelakos was concerned that Mr Slaveski would hurt him or his family. He was particularly concerned that Mr Slaveski had overheard his daughter while Mr Slaveski was on the phone and that Mr Slaveski had made a comment about him having a child.

(j) On the morning of 22 August 2000, Mr Angelakos reported the telephone conversation to Ms Blackney. It was decided that he should report the matter to the police. Mr Angelakos attended the Mill Park police station later that day and reported the matter to officer Ross Mitchell.

426 Mrs Slaveska submitted that Mr Angelakos' statement was not genuine because the original had been lost and could not be produced. Alternatively, she submitted that it was signed, not on 25 August 2000, but after 8 September 2000. I reject these submissions. I accept officer Bingham's evidence that prior to 8 September 2000, he received from officer Mitchell a file which contained Mr Angelakos' statement of 25 August 2000.

427 Officer Bingham gave evidence that, prior to 8 September 2000, he had had several conversations with Ms Blackney, Mr Shelton, Mr Angelakos and Robert Baggio. He met with Mr Baggio and Mr Angelakos on 7 September 2000. As a result of these communications, prior to 8 September 2000, he was aware of the following allegations against Mr Slaveski:

(a) After the infringement notices were issued, Mr Slaveski spoke by telephone to Ms Blackney, Mr Shelton and Mr Baggio and also had meetings with them.

(b) During the course of the meetings and telephone calls, Mr Slaveski had used threatening language. On several occasions, he threatened Ms Blackney and Mr Shelton and Mr Baggio with physical harm and insinuated that he was capable of getting people to deal with them physically in order to have the infringement notices withdrawn.

(c) In a telephone conversation with Mr Shelton, Mr Slaveski requested that the infringement notices be withdrawn or he would employ people to cut down Council trees.

(d) In a meeting with Ms Blackney and Mr Shelton at the Council offices, Mr Slaveski intimated that he had people that he could pay in order to fix the situation. Mr Slaveski produced a photograph of Adolf Hitler and a piece of paper containing telephone numbers. Ms Blackney and Mr Shelton regarded this conduct as a tactic by Mr Slaveski to reinforce his threats of getting them fixed up unless the infringement notices were withdrawn.

(e) The Council officers who were the subject of Mr Slaveski's threats took these threats seriously.

428 Officer Bingham said that, between 1.00pm and 1.30pm on 8 September 2000, he was contacted by telephone by either Mr Baggio or Mr Shelton and was told that Mr Slaveski had that morning made a specific threat to Mr Shelton that, if something did not happen in relation to the fines, he would 'be round to blow your brains out'. He was informed that the threat was taken seriously and that the Council had engaged external security to guard the Council offices, Ms Blackney and Mr Angelakos, Mr Shelton and Mr Baggio.

429 Officer Bingham said that, when he received this information, he considered that the situation had escalated due to the immediacy of the threat and that he had to intervene to ensure that Mr Slaveski's threats were not carried out. He decided to arrest Mr Slaveski at the Lalor shop in respect of the offences that Mr Slaveski had committed that morning as well as those that he had committed earlier. His plan was to interview Mr Slaveski and charge him following his arrest. He sought assistance from officer Smithwick in effecting the arrest.

430 Officer Stephen gave evidence that he was on patrol with officer Robinson in a Mill Park divisional van with the radio call sign 'Mill Park 307' on the morning of 8 September 2000. As they were on patrol, they would have been wearing their police uniforms. However, he had no recollection of that morning's events. According to his running sheet, which he had completed contemporaneously, he and officer Robinson received the following job at 11.49am and performed the following tasks at the Council offices between 12.00 noon and 12.20pm:

1. [Code 1 - On Patrol] [Attend Whittlesea] council offices, McDonalds Rd, Civic [Drive] Re DAS has [story to tell] Re Death Threats.
2. [Code 5 - Out at Premises] ... [Spoke to] Das ANGELAKOS (Council worker) stating that LUPCO SLAVESKI 10 Whitehall [Place Epping] had been issued [penalty infringement notices] by council officers. SLAVESKI has since phoned the council officers [and] informed them that he would kill them all today at council offices. CIU (BINGHAM [and] MITCHELL) are currently taking statements for same offences. ANGELAKOS stated they had organised for a security guard to stand guard. BINGHAM to be [informed] starting [?] at [3pm].
3. [Code 1 - On Patrol]

431 Officer Stephen said that the contents of the running sheet were accurate. The information about officers Bingham and Mitchell taking statements would have come from those officers. Those officers may have attended the Council offices that day and he may have spoken to them there or later in the day. However, he could not say positively that he passed on to officer Bingham what Mr Angelakos told him, prior to officer Bingham's visit to the Lalor shop later in the day.

432 Officer Robinson gave evidence that he had no recollection of any of the events of 8 September 2000.

433 As will appear below, officers Stephen and Robinson attended the Lalor shop at approximately 2.04.50pm on 8 September 2000. By then, they were in a marked police sedan vehicle, rather than the divisional van. However, they retained the call sign 'Mill Park 307'.[375]

434 Some of the events surrounding Mr Slaveski's arrest on 8 September 2000 were not in dispute or are recorded in contemporaneous documents - such as the Victoria Police Communications ('D24') radio recordings - which are unimpeachable. Those events are set out below.

435 On 8 September 2000, officers Bingham and Smithwick and the other officers who assisted them did not have a warrant to arrest Mr Slaveski or a warrant to search the Lalor shop.

436 At approximately 1.42pm, officers Bingham and Smithwick visited the Lalor shop. They were in plain clothes. They spoke to Mrs Slaveska and asked to see Mr Slaveski. She told them he was not at the shop and gave them his business card. They then left the shop.

437 At approximately 1.45pm, officer Bingham telephoned Mr Slaveski on his mobile phone. He told Mr Slaveski that he would like him to attend the Lalor shop to discuss a matter relating to the Council. Mr Slaveski agreed to do so.

438 During the telephone conversation, officer Bingham asked Mr Slaveski how far away he was from the Lalor shop. Mr Slaveski said that he was about five minutes away.

439 At the time he received the call, Mr Slaveski was with John Goodwin in High Street, Thomastown. After the telephone conversation, Mr Slaveski drove to the Lalor shop in a Mercedes vehicle with registration number 'SKYS'. Mr Goodwin was in the front passenger seat.

440 At approximately 1.50pm, Mr Slaveski parked his vehicle a few shops north of the Lalor shop. Officers Bingham and Smithwick were standing on the pavement nearby.

441 There was an altercation between Mr Slaveski and officer Smithwick near the entrance to the Lalor shop which continued inside the shop. The leather jacket that Mr Slaveski was wearing was torn in the process.[376] Mr Goodwin arrived in the shop while the altercation was taking place. He joined in the altercation.

442 While Mr Goodwin grappled with officer Smithwick, Mr Slaveski grappled with officer Bingham. Mrs Slaveska hovered around Mr Slaveski and officer Bingham and screamed at them. One of the Slaveski children was in the shop crying.

443 Officer Bingham pushed Mr Slaveski and he fell backwards on top of some televisions.

444 At approximately 1.59pm, officers Bingham and Smithwick left the shop. At 1.59.30pm, officer Bingham called D24 for backup. He said, 'Can we get some assistance down at 10 May Road, Lalor, thanks ... We're just trying to arrest a bloke. He's fired up a bit ... a couple of mates. Can you send maybe a couple of units for us.' Officer Stephen, who was in a Mill Park marked police sedan[377] with officer Robinson, said they were heading that way. A female D24 operator then said, 'VKC to any other unit who can also assist number 10 May Road re the CI trying to lock up a couple of crooks.'

445 A number of police officers responded. In addition to officers Stephen and Robinson, they included officer Roberts from Darebin (who was on his motorcycle nearby), officers Rhodes and Barton (who were from Mill Park CIU), a uniformed sergeant from Mill Park, and police vehicles from Greensborough, Eltham and Heidelberg. The Greensborough, Eltham and Heidelberg police vehicles were called off and did not attend the Lalor shop.

446 Officer Roberts arrived at 2.02.30pm and spoke to officers Bingham and Smithwick.

447 Officers Stephen and Robinson arrived at approximately 2.04.50pm. After a short briefing by officer Bingham, at approximately 2.05pm, officers Bingham, Smithwick, Roberts, Stephen and Robinson entered the Lalor shop. Present in the Lalor shop were Mr and Mrs Slaveski, two of their children and Mr Goodwin.

448 Mr Goodwin was promptly arrested and handcuffed without incident. He was taken out of the shop and placed in a divisional van at approximately 2.09.50pm.

449 Mr Slaveski was arrested and handcuffed with his hands behind his back after a short struggle.

450 Officers Rhodes and Barton entered the Lalor shop at approximately 2.07.40pm. They were in plain clothes.

451 Mr Slaveski was escorted out of the shop by officer Bingham and possibly another officer at approximately 2.09.10pm. There were a number of onlookers. Mr Slaveski called out that he was being denied his medication. He asked a neighbouring shopkeeper, Riste Sapazovski, to go inside the shop and to obtain his medication from Mrs Slaveska. No medication was produced. Mr Slaveski was placed in an unmarked police vehicle at approximately 2.09.50pm. He arrived at the Mill Park police station at approximately 2.20pm.

452 Mr Slaveski suffered some injuries, including an abrasion to the right temple and scratching and bruising to his neck, prior to arriving at the Mill Park police station.

453 At the Mill Park police station, Mr Slaveski complained that he did not feel well and asked to see a doctor.

454 At approximately 3.40pm, Mr Slaveski was examined by Dr Balgobind. He was a forensic medical officer working at the Epping Medical Group. He diagnosed Mr Slaveski as suffering a panic attack and prescribed Valium and one other medication. Dr Balgobind has since died.

455 Mr Slaveski spoke to his solicitor, Chris McLennan, twice before being interviewed. He also took medication prior to the interview.

456 Mr Slaveski was interviewed between 5.14pm and 6.27pm. The interview was taped. There was a 'toilet break' between 5.32pm and 5.41pm.

457 Mr Slaveski was charged with 17 offences.[378] Officer Bingham was the informant. A committal hearing was scheduled for 16 February 2001 before Magistrate Crisp in the Melbourne Magistrates' Court. On that day, Mr Slaveski was represented by Mr McLennan and a barrister, Len Harnett. An agreement was reached with the prosecutor which obviated the need for the committal hearing. The records of the Melbourne Magistrates' Court show the following for each charge:

1. Threat to destroy property at South Morang on 22/8/00.

9. Make threat to kill at South Morang on 22/8/00.

1. Use telecommunications service to menace at Lalor from 21/8/00 to 8/9/00.

1. Use telecommunications service to menace at Lalor from 21/8/00 to 8/9/00.

Fine of $1,500 as part of an aggregate order, without conviction.

1. Recklessly threaten serious injury at Lalor on 22/8/00.

1. Recklessly threaten serious injury at South Morang on 22/8/00.

1. Use telecommunications service to menace at Lalor from 21/8/00 to 8/9/00.

1. Use telecommunications service to menace at Lalor from 21/8/00 to 8/9/00.

1. Recklessly threaten serious injury at Lalor on 21/8/00.

458 At the conclusion of the interview on 8 September 2000, Mr Slaveski was granted bail. He left the Mill Park police station at around 7.09pm.

459 Shortly after leaving the Mill Park police station, Mr Slaveski was examined by Dr John Doulis at the Dalton Road Medical Centre.

460 On 9 September 2000, Mr Slaveski was examined by Dr Gobind Duggal at the Plaza Clinic.

461 On 19 September 2000, Mr and Mrs Slaveski and Mr Goodwin made complaints to the Victoria Police Ethical Standards Department ('ESD') in respect of the 8 September 2000 incident. They were interviewed separately and each made a statement.

462 There are many matters in dispute about the events of 8 September 2000 and their aftermath. Some of the details that are in dispute have no bearing on the outcome of the proceeding and I will not refer to them. The key factual issues in dispute upon which I need to make findings are:

(a) What belief did officers Bingham and Smithwick have prior to arresting Mr Slaveski and entering the Lalor shop?

(b) Did officers Bingham and Smithwick inform Mrs Slaveska that they were police officers when they first visited the Lalor shop?

(c) What did officer Bingham tell Mr Slaveski when he telephoned him on his mobile phone?

(d) What conversation took place after Mr Slaveski arrived outside the Lalor shop and before entering the Lalor shop? In particular, did officers Bingham and Smithwick identify themselves and inform Mr Slaveski that he was under arrest?

(e) What physical contact took place before Mr Goodwin entered the Lalor shop?

(f) What happened between the time Mr Goodwin entered the Lalor shop and the time officers Bingham and Smithwick left the shop?

(g) Which officers attended the Lalor shop to assist officers Bingham and Smithwick?

(h) What happened when Mr Slaveski was physically restrained and handcuffed inside the Lalor shop?

(i) What happened outside the Lalor shop after Mr Slaveski was handcuffed?

(j) Did Mrs Slaveska give Mr Slaveski's tablets to any police officer after Mr Slaveski was removed from the Lalor shop?

(k) Did officer Bingham punch Mr Slaveski while he was being conveyed to the Mill Park police station?

(m) What injuries did Mr Slaveski sustain on 8 September 2000 and what caused those injuries?

(o) When the charges came before the Melbourne Magistrates' Court on 16 February 2001, did Mr Slaveski agree to the outcome set out in [457] above?

(p) Was there security camera footage of the events inside the Lalor shop on 8 September 2000?

463 I will now discuss the above issues and, where required, set out my findings of fact.

Belief held by officers who arrested Mr Slaveski

464 The power of police officers to arrest a person without a warrant in s 459(a) of the Crimes Act is discussed in Part 2(1).

465 Officer Bingham gave evidence that, from late August 2000, he investigated allegations by staff of the Council that Mr Slaveski had threatened them with physical injury and had made threats to damage Council property unless the fines he had received were withdrawn. Prior to 8 September 2000, he formed the belief that Mr Slaveski had committed the indictable offences of blackmail, making threats to kill, making threats to cause serious injury, making threats to damage property and stalking. He also formed the view that he had the power to arrest Mr Slaveski without a warrant under s 459(a) of the Crimes Act.

466 Officer Bingham said that the information he received on the morning of 8 September 2000 heightened his concerns about Mr Slaveski's threats and caused him to bring forward the timing of the arrest because of the escalation in the risk of harm to Council officers. His intention was to effect a peaceful arrest whereby Mr Slaveski would be told that he was under arrest and would be invited to accompany him to the Mill Park police station.

467 In my opinion, the information that officer Bingham had considered prior to arresting Mr Slaveski provided reasonable grounds for his belief that Mr Slaveski had committed indictable offences, including blackmail and making threats to kill. According to that information, since 17 August 2000 (or, at the latest, 21 August 2000), Mr Slaveski had made numerous threats of physical harm to four Council officers, the most serious of which was made on the morning of 8 September 2000. That threat caused the Council to become so concerned that it hired private security guards to protect its staff.

468 On the basis of the matters set out above, I am of the opinion that, on 8 September 2000, officer Bingham had power to arrest Mr Slaveski without a warrant pursuant to s 459(a) of the Crimes Act.

469 Officer Smithwick gave evidence that he was not involved in the investigation of the complaints against Mr Slaveski. At about 1.30pm on 8 September 2000, officer Bingham asked him to assist in arresting Mr Slaveski and he agreed to do so. Officer Bingham gave him some details of the allegations against Mr Slaveski and told him that he was satisfied there was legal authority to arrest Mr Slaveski without a warrant. It can be safely inferred that the details that officer Bingham provided to officer Smithwick included the threat that Mr Slaveski had made that morning to 'blow [Mr Shelton's] brains out'.

470 I find that, on the basis of the information that officer Bingham provided to officer Smithwick, officer Smithwick formed the belief that Mr Slaveski had committed the indictable offence of making a threat to kill against Mr Shelton. In my opinion, the information that officer Bingham provided to officer Smithwick constituted reasonable grounds for officer Smithwick's belief. Accordingly, officer Smithwick had the power to arrest Mr Slaveski without a warrant.

471 The lawfulness of the entry into the Lalor shop by the various officers is discussed at [757] to [763] below.

472 Mrs Slaveska gave evidence that, just before 2.00pm on 8 September 2000, she was sitting in the office area at the rear of the ground floor of the Lalor shop when two men with long black coats and sunglasses entered the shop and approached her. They did not display police identification. She now knows them to be officers Bingham and Smithwick. Officer Bingham said, 'Where is Lupco? I want him now', while bringing down one of his hands onto the other, outstretched, hand in a 'chopping' action. She responded, 'Who are you?'

473 Mrs Slaveska said that officer Bingham replied that they were from Mill Park, but that he did not say they were police officers. She heard him mention 'some other word that [she] didn't understand'. She asked them, 'What's the problem?' and officer Bingham responded, 'He knows what [it is] about'. She told them that Mr Slaveski was at the other shop and gave them a business card containing Mr Slaveski's mobile telephone number. They took the business card and left the shop.

474 Officer Bingham gave evidence that, after finding Mrs Slaveska in the shop, he told her his name and officer Smithwick's name and said that they were from Mill Park CIU. He was probably carrying a firearm, but he could not say whether it would have been visible. He was not wearing a tabard or lapel badge or displaying any other form of police identification. However, he showed Mrs Slaveska his police badge and certificate of identification. He told her that they wanted to speak to Mr Slaveski. Mrs Slaveska informed them that she was Mr Slaveski's wife and that he was not at the shop. She asked why they wanted to speak to Mr Slaveski. He informed her that he preferred to discuss the matter with Mr Slaveski.

475 Officer Bingham said that he wrote his contact details on a piece of paper, gave it to Mrs Slaveska and told her to pass it on to Mr Slaveski so that he could contact him. He asked Mrs Slaveska whether Mr Slaveski had a mobile phone and Mrs Slaveska gave him a business card containing Mr Slaveski's number. He and officer Smithwick then left the shop. He denied saying, 'Where is Lupco? I want him now' and denied making a 'chopping' action with his hands.

476 Officer Smithwick gave evidence that was similar to that of officer Bingham.

477 I accept the evidence of officers Bingham and Smithwick where it conflicts with that of Mrs Slaveska. Their evidence, in general, was more credible than Mrs Slaveska's evidence and their evidence about the conversation with Mrs Slaveska was more plausible than hers. While Mrs Slaveska may not have understood the meaning of 'CIU', she was aware that the two men were police officers because officer Bingham identified himself and gave her a piece of paper with his contact details on it.

478 Mr Gipp relied on the following statement in Mrs Slaveska's complaint dated 19 September 2000 to the ESD to impugn her credit and to urge me to reject her evidence in so far as it conflicted with the evidence of officers Bingham and Smithwick:

One of the men, the bigger one asked to see my husband, Lupco. I explained that Lupco wasn't here, that I was his wife and asked who they were. The bigger one said that it was none of my business. I again said that I was his wife and could I help. The same man said that they were from Mill Park CIB. I did not understand what he meant by that and asked him to explain. He then showed me a badge. It was then that I realised that they must be Police and I asked them, are you Police? He then said that they were Police.

479 As it has not been necessary for me to rely on the above statement, I will not discuss Mrs Slaveska's assertion that she did not make the statement or that the signature on the page of the complaint that contains the statement was not her signature.

Telephone discussion between officer Bingham and Mr Slaveski

480 Officer Bingham gave evidence that, after leaving the shop, he called Mr Slaveski's mobile phone number. When the call was answered, he said, 'Lupco?' Mr Slaveski responded, 'It's Sky'. He told Mr Slaveski his name, that he was from Mill Park CIU and that he wanted to talk to him about calls he had made to the Council. He asked Mr Slaveski how far away was he from the Lalor shop and Mr Slaveski responded that he was about five minutes away and would come to the shop.

481 Officer Smithwick gave evidence that was consistent with that of officer Bingham.

482 Mr Slaveski gave evidence that the person who called him said he wanted to talk to him about the Council matter. The caller did not say his name. He could not recall whether the caller said he was a police officer. He told the caller he would be at the Lalor shop in about five minutes.

483 In cross-examination, Mr Slaveski said that officers Bingham and Smithwick did not, at any stage, identify themselves as police officers.

484 Mr Goodwin gave evidence that, after Mr Slaveski had completed his telephone conversation, he said to him, 'Look, we've got to go, the council guys are at the shop, they want to speak to me'.

485 I accept officers Bingham and Smithwick's version of the telephone discussion where it conflicts with the evidence of Mr Slaveski and Mr Goodwin. Their version is supported by the record of interview of 8 September 2000. I have listened to the tape of the interview and have read the transcript. In the initial few minutes of the interview, comprising pages 1 to 10 of the transcript, Mr Slaveski was calm and cooperative. He had taken his medication a short time before the interview and came across as subdued. He picked up quickly and became increasingly more assertive and argumentative from page 10 of the transcript.

486 Mr Slaveski has not alleged that he was under duress while being interviewed. Although he may have been a little confused in the first few minutes of the interview because of the effects of his medication on his memory, overall, he gave truthful answers during that time. At [381] above, I explained why I have generally tended to reject Mr Slaveski's evidence where it was inconsistent with statements he had made in records of interview.

487 Pages 3 to 4 of the record of interview of 8 September 2000 contain the following exchange:

[Officer Bingham]: [D]o you agree that just prior to 10 minutes to 2.00 this afternoon, I telephoned you on your mobile telephone?

[Mr Slaveski]: Some gentleman called me, yes.

[Officer Bingham]: Alright. And the contents of that phone call were that I needed to speak with you?

[Mr Slaveski]: You said to me - or somebody said to me over the phone that I want to talk to you, I said, 'I'll be there, as - as soon as I can to - to help you, and to explain to you as much as I could in regarding to that matter with the City of Whittlesea that's been dragging on for the past 3 or 4 years with them.

[Officer Bingham]: Okay. I put it to you that I actually told you who I was and from what agency I was from.

[Mr Slaveski]: You mentioned to me something that from, police station or something.

[Officer Bingham]: Yep, yeah, and - - - ?

[Mr Slaveski]: Yeah, and went to, yes of course, yes.

[Officer Bingham]: Okay. Do you also agree that about 5 minutes later you turned up at home [sic]. And we've turned up at your shop at 10 May Road, Lalor?

[Mr Slaveski]: But you never told me that you were going to arrest me or something.

488 Officers Bingham and Smithwick's version is also supported by the statement dated 19 September 2000 that Mr Slaveski made to the ESD in support of his complaint about the incident of 8 September 2000. In the statement, Mr Slaveski said:

When I received the phone call I pressed yes on the phone to answer and then I overheard, a male voice and he said, "I am the police and I want to talk to you about a Whittlesea Council matter." Or he said he wanted to speak to me about some police matter that's being going on with the city of Whittlesea.

489 In cross-examination, Mr Slaveski said that, although he signed the statement, it did not accurately reflect what he said to the ESD officer who prepared the statement after he interviewed him. In re-examination, he said that he did not recall making the statement. I reject Mr Slaveski's evidence. The statement is consistent with the record of interview of 8 September 2000 and it is accurate. It is also consistent with Mr Slaveski's guilty plea to the charge of resisting police.[379] I reject Mr Slaveski's evidence that he did not plead guilty to this charge and that the records of the Melbourne Magistrates' Court were erroneous.

490 I have no doubt that Mr Goodwin genuinely believed that Mr Slaveski said to him, 'Look, we've got to go, the council guys are at the shop, they want to speak to me'. The reason for his belief might well be that Mr Slaveski did not tell him that the caller was a police officer who wanted to talk to him about the Council matter. According to Mr Goodwin's statement dated 19 September 2000 to the ESD, Mr Slaveski told him something like, 'Let's go because there's some guys who want to talk to me about the city of Whittlesea matter'. Given Mr Goodwin's evidence - which I accept - that he was aware that Mr Slaveski was in dispute with the Council and that he had witnessed an altercation between Mr Slaveski and a Council officer a 'couple of weeks' prior to 8 September 2000, he probably interpreted Mr Slaveski's words as meaning 'some guys from the Council'.

491 Accordingly, I find that, when Mr Slaveski agreed to go to the Lalor shop to meet the man who had called him, he knew that that man was a police officer who wanted to talk to him about his telephone calls to the Council. He did not know, however, that the officer intended to arrest him.

Discussion before Mr Slaveski entered the Lalor shop

492 At 1.50pm, Mr Slaveski parked his Mercedes vehicle several metres away from the Lalor shop. He exited the vehicle while Mr Goodwin remained in the vehicle. The vehicle was parked close to where officers Bingham and Smithwick were standing on the pavement waiting for Mr Slaveski. Mr Slaveski gave evidence that he parked outside the Salvation Army store at 20-22 May Road, Lalor and that officers Bingham and Smithwick were standing near a tree in front of that store. Officers Bingham and Smithwick gave evidence that they did not recall outside which store they were standing and conceded that it could have been the Salvation Army store.

493 Officer Bingham gave evidence that when he saw a vehicle with the number plate 'SKYS', he assumed Mr Slaveski was the driver. He and officer Smithwick approached Mr Slaveski as he exited the vehicle. When they were two to three metres away from Mr Slaveski, he produced his police identification and said to Mr Slaveski, 'It's Shaun Bingham and Mark Smithwick from the Mill Park CIB. I need to speak to you in respect of some threats that have been made against the Whittlesea City Council'.

494 Officer Bingham said that Mr Slaveski looked towards Mr Goodwin, who was still in the vehicle, and said, 'I don't think so. I don't do business on the street.' Mr Slaveski proceeded to walk towards the Lalor shop, saying, 'We're going to my office'. He told Mr Slaveski that he was under arrest for making threats against the Council, but Mr Slaveski kept walking towards his shop. He and officer Smithwick followed Mr Slaveski and, as Mr Slaveski was about to enter the shop, officer Smithwick again told Mr Slaveski that he was under arrest and grabbed him by his leather jacket.

495 Officer Smithwick gave evidence that was similar to that of officer Bingham. Officer Smithwick said that he wanted to restrain Mr Slaveski physically before he entered the Lalor shop in case he barricaded himself inside the shop or escaped, or in case a forcible arrest inside the shop caused damage.

496 Mr Slaveski gave evidence that when he exited his vehicle, two men who were standing on the pavement approached him and one of them said, 'Are you Lupco?' When he replied, 'Yes', the man said, 'We rang you, we want to [talk] to you about the council'. He said, 'OK then, we'll go in my office and we'll sit down and talk'. He then walked towards the Lalor shop and the two men followed him. The men did not identify themselves as police officers. Nor was he told that he was under arrest when he first met them.

497 Mr Slaveski did not say that officers Bingham and Smithwick were too far away from him to enable him to hear what they said.

498 Mr Slaveski said that, prior to entering the shop, officer Smithwick did not make any physical contact with him or inform him that he was under arrest.

499 Mr Goodwin gave evidence that, when he and Mr Slaveski arrived near the Lalor shop, he was delayed in exiting the vehicle because his jacket become caught in the seatbelt mechanism. While he saw Mr Slaveski talking to two men, he did not hear what was said because he was preoccupied in trying to release the seatbelt. By the time he freed himself, Mr Slaveski had entered the Lalor shop.

500 I reject Mr Slaveski's evidence that officers Bingham and Smithwick did not inform him that they were police officers and that he was under arrest. I prefer the evidence of officers Bingham and Smithwick, who were far more credible than Mr Slaveski. Their evidence is also supported by the record of interview of 8 September 2000.

501 Pages 4 to 6 of the record of interview of 8 September 2000 contain the following exchange:

[Mr Slaveski:] 5 minutes after [the telephone call] I was there, yes, officer, yes.

[Officer Bingham:] At the shop?

[Mr Slaveski:] 8 parks up, my shop just ... in - in - in front of my - in front of the Salvation Army. That was the first car park - - -

[Officer Bingham:] And what's the address of your shop?

[Mr Slaveski:] Number 10 May Road.

[Officer Bingham:] Lalor?

[Mr Slaveski:] So I would have parked on number 18 or 20 May Road.

[Officer Bingham:] Okay. And when you got out of the car?

[Mr Slaveski:] I saw two gentlemen parked - - -

[Officer Bingham:] Being who?

[Mr Slaveski:] You two.

[Officer Bingham:] Right.

[Mr Slaveski:] Dressed up in black overall - overcoats - - -

[Officer Bingham:] ...

[Mr Slaveski:] Yes, long coats. And as I was coming out of my car, you gents-, you gentlemen said to me, "We want to talk to you, Lupco", I said, "Gentlemen, let's go inside my shop, we'll sit down and talk." Because I do believe it's embarrassment to go and talk or argue or something if anything need to be resolve we can sit down, like we are sitting here. I offered you gentlemen to come into my shop, so that's when - - -

[Officer Bingham:] But do you agree that when you got out of the car and came onto the footpath, I showed you my police identification and identified who I was?

[Mr Slaveski:] Well, possibly you did, but my - my memory is not the best, because as I said to you, sir, I've been under a lot of stress and I've got a heart problem, as the doctor told you before, and also I was under about 4 - 5 different tablets today.

[Officer Bingham:] Mm'm. I put it to you that following identifying myself - - - ?

[Mr Slaveski:] You did mention yes, we-, who you were, yes.

[Officer Bingham:] You - you said, I don't do business in the str-, on the street, we're going into my office. What do you say about that?

[Mr Slaveski:] Possibly, I didn't use those words, but I did - I would have said, something along those lines. I would have said, "Let's go into my shop, we can sit down and talk." So - - -

[Officer Bingham:] I further put it to you that following that, you were then told you were under arrest.

[Mr Slaveski:] I didn't hear that, sorry. Because I started walking to my - towards my shop. I did started walking towards my shop.

[Officer Bingham:] Do you agree that you ... then went inside your shop?

[Mr Slaveski:] Sorry, sir?

[Officer Bingham:] Do you agree that you then walked inside your shop?

[Mr Slaveski:] Yes, I did, yeah. And I was grabbed from behind.

[Officer Bingham:] And once again told you were under arrest - - - ?

[Mr Slaveski:] Yes, I do recall that, and somebody grabbed me from behind and tore my four - five hundred dollar jacket, which we saw afterwards.

502 During cross-examination, it was put to officer Bingham that, when Mr Slaveski parked his vehicle, he and officer Smithwick were leaning against the front of the Salvation Army shop and that they were eight and a half metres away from Mr Slaveski, so that it was impossible for Mr Slaveski to hear them identify themselves as police officers or to see their identification. Officer Bingham said that, although they may have been standing at that distance when the vehicle pulled up, they approached the vehicle as Mr Slaveski was alighting from it and that they were no more than three metres away from him when they identified themselves. Officer Smithwick gave similar evidence.

503 I accept the evidence of officers Bingham and Smithwick. As they had attended the Lalor shop for the purpose of arresting Mr Slaveski and they intended to do so upon his arrival there, it would be illogical for them to remain where they were standing when they saw him alight from his vehicle. It accords with common sense that they would walk towards Mr Slaveski as they saw him parking his vehicle.

504 In light of the above, I make the following findings:

(a) When Mr Slaveski exited his vehicle, officers Bingham and Smithwick approached him. When they were about three metres away from Mr Slaveski, officer Bingham produced his police identification, introduced himself and officer Smithwick, and told Mr Slaveski that they wanted to talk to him about threats he had made against the Council.

(b) Although Mr Slaveski heard what officer Bingham said to him, he proceeded to walk towards the Lalor shop, saying, 'I don't do business on the street' and 'We're going to my office'.

(c) As Mr Slaveski started walking away, officer Bingham told Mr Slaveski that he was under arrest for making threats against the Council. Mr Slaveski did not hear this statement and continued walking towards the Lalor shop.

(d) Officers Bingham and Smithwick caught up to Mr Slaveski at the entrance to the Lalor shop. Officer Smithwick informed Mr Slaveski that he was under arrest and grabbed him by his leather jacket. Mr Slaveski heard officer Smithwick say that he was under arrest but did not submit to the arrest.

505 As discussed in further detail below, all of the requirements for the lawful arrest of Mr Slaveski were completed at the time that officer Smithwick grabbed Mr Slaveski by his jacket.[380]

506 The evidence of Mr and Mrs Slaveski was broadly similar regarding the events that occurred after Mr Slaveski entered the Lalor shop but before Mr Goodwin arrived. Their evidence, however, was not consistent in all respects. Nor was it clear about the precise actions of officers Bingham and Smithwick, or the order in which those actions occurred.

507 Mr and Mrs Slaveski both said that officers Bingham and Smithwick came up behind Mr Slaveski after he had entered the shop and taken a few steps inside. Mr Slaveski said that officer Smithwick grabbed his leather jacket from behind and started pulling him, while officer Bingham placed him in a headlock and started choking him. Initially, Mrs Slaveska said that officer Smithwick placed Mr Slaveski in a headlock, while officer Bingham grabbed Mr Slaveski's jacket from behind. In cross-examination, she said that officer Bingham had Mr Slaveski in a headlock.

508 Mr and Mrs Slaveski both said that Mr Slaveski's jacket was torn in the initial contact between Mr Slaveski and officers Bingham and Smithwick. Mr Slaveski said that he could not recall whether, at that point, the two men said that they were police officers or that he was under arrest. In cross-examination, he denied that the officers identified themselves as policemen and that he was told he was under arrest. He said that he protested that he had come to the shop voluntarily when they called him and swore at them.

509 Initially, Mrs Slaveska said that she saw both officers Bingham and Smithwick punching Mr Slaveski and that she started yelling at them to 'stop it' and 'leave him alone'. In cross-examination, she said that only officer Smithwick punched Mr Slaveski during the early stages of the struggle at the front of the shop. She said that, when officer Bingham had Mr Slaveski in a headlock, officer Smithwick punched Mr Slaveski two or three times to the back of the head.

510 Mr Slaveski said that he took hold of officer Smithwick's right index finger and pulled it because officer Smithwick was choking him. Mrs Slaveska said she did not see Mr Slaveski bending officer Smithwick's finger.

511 Officer Bingham gave evidence that, as Mr Slaveski was about to enter the Lalor shop, officer Smithwick took hold of the rear of Mr Slaveski's leather jacket and told him he was under arrest. Mr Slaveski immediately swung around to face officer Smithwick while moving inside the shop. In the process, Mr Slaveski's jacket was torn. Mr Slaveski began yelling, 'Take your hands off me!' and started grappling with officer Smithwick, while continuing to move inside the shop.

512 Officers Bingham said that, while Mr Slaveski was grappling with officer Smithwick, Mr Slaveski took hold of one of officer Smithwick's fingers and forcefully bent it backwards. He thought that Mr Slaveski was trying to break the finger and intervened for the purpose of releasing it. He grabbed hold of the lapels of Mr Slaveski's jacket and attempted to pry him away from officer Smithwick by a lifting and swinging motion. He and officer Smithwick repeatedly told Mr Slaveski to calm down and that he was under arrest.

513 Officer Bingham said that Mrs Slaveska came over and was yelling at officer Smithwick to let go of Mr Slaveski and at Mr Slaveski to calm down.

514 Officer Bingham denied that he or officer Smithwick placed Mr Slaveski in a headlock or grabbed him by the throat.

515 Officer Smithwick gave evidence that was similar to that of officer Bingham. The main differences were as follows. Officer Smithwick said that, when he initially took hold of Mr Slaveski's leather jacket and told him he was under arrest, Mr Slaveski broke free from his grip (tearing the jacket in the process) and continued to walk towards the rear of the Lalor shop. He caught up with Mr Slaveski when he was about three metres inside the shop, went in front of him and, using both hands, took hold of him by both lapels around the chest area. Mr Slaveski broke free, but officer Smithwick managed to take hold of his lapels again. Mr Slaveski then used both hands to take hold of the index finger of his right hand and bent it backwards.

516 I accept the evidence of officers Bingham and Smithwick where it conflicts with that of Mr and Mrs Slaveski. The evidence of officers Bingham and Smithwick is generally more credible and more consistent with the limited injuries Mr Slaveski sustained on 8 September 2000.[381] If Mr Slaveski had been placed in a tight headlock, he would have had severe bruising on his neck. Instead, he had a small scratch on his neck, which was more consistent with the lapels of his jacket being pushed up against his throat. Further, if Mr Slaveski had been punched to the head, he would have had severe bruising. The soft tissue injuries to Mr Slaveski's head are more consistent with him being forced to the ground face down and handcuffed while struggling, which occurred later.

517 Pages 7 to 8 of the record of interview of 8 September 2000 contain the following exchange:

[Officer Bingham:] Do you agree that when we first took hold of you, we took hold of you by your jacket?

[Mr Slaveski:] By the jacket, yes. And I started walking towards, "Couldn't we go and sit down, like human beings?"

[Officer Bingham:] I put it to you that once we had hold of your jacket - - -?

[Mr Slaveski:] Yes.

[Officer Bingham:] You in fact grabbed Senior Detective Smithwick by his finger - - -?

[Mr Slaveski:] Mm.

[Officer Bingham:] Forefinger.

[Mr Slaveski:] Mm'm.

[Officer Bingham:] And started to bend it backwards.

[Mr Slaveski:] Well, he grabbed me by the throat - - -

[Officer Bingham:] What do you say about that?

[Mr Slaveski:] I don't recall that.

[Officer Bingham:] Okay.

[Mr Slaveski:] But what do you say - well who grabbed me first by the throat?

[Officer Bingham:] Do you then agree - - -?

[Mr Slaveski:] Mm.

[Officer Bingham:] That John came into the shop?

[Mr Slaveski:] Yes, he did.

518 I note that the original statement of claim as filed on 3 September 2007 and as amended on seven occasions since that time (the latest of which was 15 June 2010)[382] has not, at any time, alleged any assault prior to Mr Slaveski being pulled to the ground following the arrival of additional police officers to assist officers Bingham and Smithwick. In particular, it has never been alleged that Mr Slaveski was placed in a headlock, choked, punched or kicked prior to the arrival of the additional police officers.

519 In light of the above, I find that the following occurred prior to Mr Goodwin entering the Lalor shop:

(a) When Mr Slaveski was at the threshold of the Lalor shop, officer Smithwick told him he was under arrest and grabbed him by his leather jacket. Mr Slaveski swung around, tearing the leather jacket in the process. He said, 'Take your hands off me.'

(b) Mr Slaveski tore free of officer Smithwick's grip and proceeded towards the rear of the shop. Officer Smithwick overtook him when he was about three metres inside the shop and took hold of Mr Slaveski's lapels. Mr Slaveski broke free, but officer Smithwick took hold of the lapels again. Contrary to officer Smithwick's evidence, I find that, once he took hold of Mr Slaveski's lapels, he forced his hands up against Mr Slaveski's throat, rather than keeping his hands at chest level. It was this action of forcefully pushing up against Mr Slaveski's throat that caused the small scratches and bruising on Mr Slaveski's throat.

(c) Mr Slaveski took hold of officer Smithwick's right index finger and bent it backwards forcefully.

(d) Officers Bingham and Smithwick did not choke, punch or kick Mr Slaveski or place him in a headlock.

520 As mentioned at [505] above and as discussed in more detail below, all of the requirements for the lawful arrest of Mr Slaveski were completed when officer Smithwick grabbed Mr Slaveski by his jacket. As Mr Slaveski sought to break free from the restraint that officer Smithwick had imposed, the subsequent actions of officers Bingham and Smithwick, and the officers who arrived at the shop in response to officer Bingham's call for assistance, must be seen in the context of Mr Slaveski seeking to escape from legal custody.

Remaining events before the arrival of additional police officers

521 Mr and Mrs Slaveski gave similar evidence about the events that occurred from the time that Mr Goodwin entered the shop until the time that officers Bingham and Smithwick left the shop.

522 Mr and Mrs Slaveski both said that, when Mr Goodwin entered the shop, he called out for officers Bingham and Smithwick to let go of Mr Slaveski. When they did not do so, Mr Goodwin joined in the struggle by pulling officer Smithwick away from Mr Slaveski. Officer Smithwick then punched Mr Goodwin. Mr Goodwin reciprocated and the two of them struggled near the front of the shop.

523 Mr and Mrs Slaveski said that, once officer Smithwick and Mr Goodwin separated from Mr Slaveski, Mr Slaveski was struggling with officer Bingham. Officer Bingham, who had previously had Mr Slaveski in a headlock, was now holding him by the throat. Mr Slaveski was hitting officer Bingham and trying to push him away. As Mr Slaveski and officer Bingham struggled, they moved in between the rows of televisions and other electrical goods towards the rear of the shop and, in the process, knocked over some televisions and other stock. Officer Bingham continued to hold Mr Slaveski by the throat and was squeezing him, making it difficult for Mr Slaveski to breathe.

524 Mr and Mrs Slaveski said that, as officer Bingham and Mr Slaveski struggled, Mrs Slaveska tried to assist Mr Slaveski. Mrs Slaveska got pushed against some shelves. At the same time, two of the children appeared and started screaming and crying. They hid under the desk. Mrs Slaveska was shouting for officer Bingham to leave Mr Slaveski alone. When Mr Slaveski and officer Bingham were at the rear of the shop, officer Bingham was still holding Mr Slaveski around the neck. Officer Bingham pushed Mr Slaveski against some televisions and computers, and Mr Slaveski fell over on top of them. Mr Slaveski toppled some televisions and computers as he fell. Officer Bingham fell on top of him.

525 In cross-examination, Mrs Slaveska said that officer Bingham punched Mr Slaveski once or twice under the left side of the jaw, forcing Mr Slaveski to fall backwards on the televisions and other equipment.

526 Mr Slaveski said that, when he and officer Bingham got up, officer Bingham kneed him in the testicles and kicked and punched him. He told officer Bingham that he had a bad heart. Officer Bingham said, 'I'll get my gun and I'll shoot you' and was going for the gun. Mr Slaveski said something like, 'You'd better get the gun and shoot me in front of my wife and my kids'.

527 Mr and Mrs Slaveski said that, at this stage, their two children were in close proximity. They were crying and very distressed. The two officers decided to leave the shop and walked out.

528 Mrs Slaveska said that she was concentrating on what was happening to Mr Slaveski and was not paying attention to what officer Smithwick and Mr Goodwin were doing.

529 Mr Goodwin gave evidence that when he entered the Lalor shop, he saw officer Smithwick with both hands around Mr Slaveski's throat. Mr Slaveski was attempting to bend back officer Smithwick's finger. Officer Bingham was leaning near some televisions holding a clipboard. Based on Mr Slaveski's previous statement that Council officers wanted to speak to him and the previous scuffle between Mr Slaveski and a Council officer, he assumed that officers Smithwick and Bingham were Council officers.

530 Mr Goodwin said that officer Bingham said to him, 'It's your mate. Break them up'. He then went up to where Mr Slaveski and officer Smithwick were standing and said, 'Hey, break it up'. He pulled Mr Slaveski's hand off officer Smithwick and told officer Smithwick to 'break it up'. Officer Smithwick continued to hold Mr Slaveski around the neck with his left hand and, with his right hand, he grabbed Mr Goodwin around the collar and said, 'Look, just fuck off'. Officer Smithwick then gave him an upper cut to the chin with the right hand, causing him to bite his lip.

531 Mr Goodwin gave evidence that he then said to officer Smithwick, 'Let him go or I'll smash you'. As officer Smithwick did not let Mr Slaveski go, he gave him a 'jab to the head'. Officer Smithwick then swung him around. They struggled. During the struggle, officer Smithwick nearly fell through a glass cabinet but he prevented him from doing so. They then let go of each other and officer Smithwick left the shop.

532 Mr Goodwin said that, when he and officer Smithwick ceased struggling, he noticed that Mr Slaveski and Mr Bingham were wrestling at the rear of the shop. He could see their heads above the rows of televisions, but he could not see exactly what they were doing. They both fell down. Officer Bingham got up and said 'Fuck this' and then left the shop.

533 Mr Goodwin said that he went over to Mr Slaveski. Mr Slaveski looked dazed and red in the face. Mr Slaveski went into the kitchen 'to get water or something'. Mrs Slaveska was comforting two of the Slaveski children who were crying.

534 Officer Bingham gave evidence that, when Mr Goodwin entered the shop, Mr Goodwin said, 'Let him go or I'll smash you'. He replied 'Tell your mate to calm down. He's under arrest'. Mr Goodwin responded by punching officer Smithwick to the right side of the head. Officer Bingham said that he held Mr Slaveski by the lapel area of his jacket and pulled him free of officer Smithwick, thus enabling officer Smithwick to defend himself against Mr Goodwin.

535 Officer Bingham said that, as officer Smithwick and Mr Goodwin grappled, he had Mr Slaveski by the lapels and they were gradually moving towards the rear of the shop. Mr Slaveski continued to struggle and he repeatedly told him to calm down. Mr Slaveski continually had hold of him and was pushing and shoving him. Mrs Slaveska was with them and was screaming for him to let go of Mr Slaveski and for Mr Slaveski to calm down.

536 Officer Bingham said that, as he and Mr Slaveski moved towards the rear of the shop, Mr Slaveski grabbed him by the throat in a choking fashion with one of his hands. He pushed Mr Slaveski backwards causing him to fall into a pile of televisions. The televisions also fell. Mrs Slaveska became hysterical. A small child came close to him and was crying.

537 Officer Bingham said that, while Mr Slaveski was on the floor, he decided to leave the shop and call for backup before proceeding further. He made this decision because, without backup, there was a risk that further physical confrontation might result in injury to Mrs Slaveska or to the child or in damage to property. He saw that officer Smithwick and Mr Goodwin were holding each other in a standoff position near the front of the shop. As he moved to the front of the shop, Mr Goodwin let go of officer Smithwick, allowing them to leave the shop together.

538 Officer Bingham denied saying to Mr Slaveski, 'I'll get my gun and shoot you' and that Mr Slaveski replied, 'Well get your gun and shoot me'. He also denied that he or officer Smithwick punched Mr Slaveski in the head and that he kicked Mr Slaveski in the genital area.

539 Officer Smithwick gave evidence that was similar to that of officer Bingham. He said that, when Mr Goodwin entered the shop, Mr Goodwin said, 'Let him go or I'll smash youse' and that, after officer Bingham said, 'We're the police and he's under arrest', Mr Goodwin said, 'I don't give a fuck'. Mr Goodwin then punched him to the top of his head above his ear.

540 Officer Smithwick denied that, at the time Mr Goodwin entered the shop, officer Bingham was leaning against something and holding a clipboard, that Mr Goodwin said, 'Look, what's going on?' and that officer Bingham said, 'It's your mate, break them up'. He also denied that, at the time Mr Goodwin approached him, he had Mr Slaveski by the throat and that, after Mr Goodwin said, 'Hey, hey break it up, break it up, break it up', he grabbed Mr Goodwin by the collar. He also denied that he said to Mr Goodwin, 'Look, just fuck off', that Mr Goodwin replied, 'Hey, wait a minute, I'm trying to stop it. He's let go, you let go' and that he then punched Mr Goodwin under the jaw causing him to bite his lip.

541 Officer Smithwick said that, just prior to the time that he and officer Bingham left the Lalor shop, he saw Mr Slaveski holding officer Bingham's throat and then heard a crashing noise. He could not recall whether he saw Mr Slaveski falling into some televisions. Both Mr Slaveski and officer Bingham may have fallen back towards the televisions.

542 In resolving the conflict in the evidence of Mr and Mrs Slaveski, Mr Goodwin, and officers Bingham and Smithwick, I have tended to prefer the evidence of officers Bingham and Smithwick over the evidence of Mr and Mrs Slaveski because the evidence of Mr and Mrs Slaveski tended to be unreliable. As between the evidence of officers Bingham and Smithwick and the evidence of Mr Goodwin, I was not able to form a firm preference because the evidence of each of them was mistaken in some respects.

543 Although, as at 8 September 2000, Mr Goodwin was a close friend and business partner of Mr Slaveski, he was neither of these things at the time he gave evidence. He had had a falling out with Mr Slaveski in 2001 and had seen little of him since that time. He had also had no difficulty with the police after 2 May 2001, when he was found guilty, without conviction, of the offences of recklessly causing injury and hindering police.

544 Mr Goodwin's evidence was neither rehearsed nor tailored to support Mr Slaveski's case. Where Mr Goodwin was not in a position to observe what was said or done, he said so, rather than speculating in an endeavour to support Mr Slaveski's case. He also made concessions where appropriate. He gave emphatic evidence where he saw and heard something and stood his ground in cross-examination, as he had done during his interview at the Mill Park police station on 8 September 2000.

545 Mr Gipp sought to discredit Mr Goodwin's evidence by pointing out the following inconsistencies between his evidence and prior statements he had made during his interview on 8 September 2000 and in his statement dated 19 September 2000 to the ESD:

(a) In the prior statements, Mr Goodwin said that officer Smithwick punched him on the head, whereas in evidence, he said that the punch was an upper cut to the chin.

(b) In the prior statements, Mr Goodwin referred to his having a sore head, whereas in evidence, he said he had a sore jaw and lip.

(c) In the statement of 19 September 2000, Mr Goodwin said that officer Bingham said, 'Stuff this' before walking out of the shop, whereas in evidence, he said that the words were 'Fuck this.'

(d) During the interview, Mr Goodwin said that, when he entered the shop, Mrs Slaveska was trying to break up Mr Slaveski and officer Smithwick, whereas in evidence he said that Mrs Slaveska was at the rear of the shop comforting her children.

546 In my opinion, Mr Goodwin's statements about where he was punched can be reconciled because, during the interview on 8 September 2000, in response to a statement from officer Smithwick that Mr Goodwin had punched him first, Mr Goodwin said, 'But you grabbed me first'. Mr Goodwin also said that officer Smithwick had 'grabbed [him] on the scruff of [his] collar' before he hit officer Smithwick. In his statement to the ESD, Mr Goodwin said that officer Smithwick had 'grabbed hold of [his] jumper around the collar' before punching him on his left temple.

547 What probably happened was that, after Mr Slaveski released officer Smithwick's right hand, officer Smithwick took hold of Mr Goodwin's collar with that hand (his left hand was at the relevant time holding Mr Slaveski) and pushed upwards with force, causing Mr Goodwin to bite his lip. With the passage of time, Mr Goodwin has probably confused the forceful push against his chin with a punch to the chin and forgotten about the subsequent blow to the head.

548 The inconsistency between 'Stuff this' and 'Fuck this' is inconsequential. The inconsistency relating to the precise position of Mrs Slaveska when Mr Goodwin entered the shop is simply explicable by the errors that people ordinarily make due to the passage of time.

549 While the above inconsistencies can be explained, some aspects of Mr Goodwin's evidence were clearly mistaken. For example, Mr Goodwin's evidence that officer Bingham was leaning near some televisions holding a clipboard, while officer Smithwick struggled with Mr Slaveski, is implausible. While officer Bingham may have been holding his diary and Mr Goodwin may have confused this with a clipboard, it is fanciful to think that officer Bingham would stand idly by while his colleague was in a scuffle with a person who was under arrest and equally fanciful that officer Bingham would ask a member of the public to break up the scuffle.

550 In light of the above, while I am satisfied that officers Bingham and Smithwick and Mr Goodwin were honest witnesses, I have not been able to accept all aspects of the evidence of any of them. As will be seen shortly, my findings are based on an amalgam of their evidence.

551 Pages 10 to 12 of the record of interview of 8 September 2000 contain the following exchange:

[Officer Bingham]: You and I were grappling, do you agree with that?

[Mr Slaveski]: What's grappling? Pushing, shoving, yeah.

[Officer Bingham]: Right.

[Mr Slaveski]: And there was three TVs that were broke there.

[Officer Bingham]: Alright. But aside from that - - -?

[Mr Slaveski]: There was three - - -

[Officer Bingham]: You and I were grappling and Senior Detective Smithwick and John - - -?

[Mr Slaveski]: Yes, with John, yes.

[Officer Bingham]: Were grappling.

[Mr Slaveski]: Yes, that's true, yes.

[Officer Bingham]: Right.

[Mr Slaveski]: And my wife was ..... - - -

[Officer Bingham]: I put it to you then that I was continually telling you to calm down. What do you say about that?

[Mr Slaveski]: You were, yes.

[Officer Bingham]: Right. And I further put it to you that once we'd broken away from the other two, you then grabbed me with one - with one hand around the throat, and began to squeeze. What do you say about that?

[Mr Slaveski]: But you grabbed me first, didn't you, officer? Where are all those marks, I don't see any marks on you, in respect to you, do I?

[Officer Bingham]: That's what I'm asking you, did you do that?

[Mr Slaveski]: I don't recall doing that.

[Officer Bingham]: Well, I put it to you that you did.

[Mr Slaveski]: Okay, did you grab me by the throat or I'm not allowed to ask questions?

[Officer Bingham]: Yeah - yeah, I then put it to you that - - -?

[Mr Slaveski]: I'm not allowed to ask questions?

[Officer Bingham]: Hang on, hang on. I then put it to you - - -?

[Mr Slaveski]: Mm.

[Officer Bingham]: That I grabbed you by the throat - - -?

[Mr Slaveski]: Mm.

[Officer Bingham]: And pushed you backwards?

[Mr Slaveski]: But this marks came before.

[Officer Bingham]: I then put it to you that I grabbed you by the throat and pushed you backwards. What do you say about that?

[Mr Slaveski]: And there was three or four TVs being over the floor ......

[Officer Bingham]: Is that right? Do you agree that I did that?

[Mr Slaveski]: While we were pushing and shoving, I don't disagree with that.

[Officer Bingham]: And do you agree that you eventually ended up falling backwards across a - - -?

[Mr Slaveski]: Yes, we did.

[Officer Bingham]: Number of TVs in one of the corners?

[Mr Slaveski]: Yes, there was a lot of TVs, yes.

[Officer Bingham]: Okay.

[Mr Slaveski]: That's true, yeah.

[Officer Bingham]: What happened then?

[Mr Slaveski]: 'Cos you are bigger fella, and you are stronger than me, I don't doubt that.

[Officer Bingham]: What happened then?

[Mr Slaveski]: I just fell down.

[Officer Bingham]: And what did we do?

[Mr Slaveski]: You just left.

552 Apart from Mr Slaveski, no person who was in the Lalor shop gave evidence that officer Bingham said to him, 'I'll get my gun and I'll shoot you'. Mr Slaveski's evidence regarding this threat is, therefore, not supported by any witness, including Mrs Slaveska. It would have been an extraordinary statement for officer Bingham to have made to a person he had not met previously in circumstances where there was no motive to make the statement and there would be witnesses to the making of the statement. Mr Slaveski's evidence was simply made up.

553 As discussed at [518] above, the original statement of claim was filed on 3 September 2007 and was amended on six occasions since that time. The statement of claim has not, at any time, alleged that Mr Slaveski was placed in a headlock, choked, punched or kicked prior to him being pulled to the ground following the arrival of additional police officers to assist officers Bingham and Smithwick. Nor has it ever alleged that officer Bingham or any other officer said to Mr Slaveski, 'I'll get my gun and I'll shoot you'.

554 In light of the above, I find that the following occurred between the time that Mr Goodwin arrived in the shop and the time that officers Bingham and Smithwick left the shop:

(a) When Mr Goodwin entered the Lalor shop, officer Smithwick was holding Mr Slaveski by the lapels with his left hand and was pushing up against Mr Slaveski's chin. At that time, Mr Slaveski was pushing officer Smithwick's right index finger backwards and officer Bingham was near them trying to assist officer Smithwick.

(b) Mr Goodwin did not know that officers Bingham and Smithwick were police officers or that Mr Slaveski was under arrest.

(c) Officer Bingham told Mr Goodwin that Mr Slaveski was under arrest and asked him to tell Mr Slaveski to calm down.

(d) Mr Goodwin approached officer Smithwick and told him to break it up. Officer Smithwick let go of Mr Slaveski and took hold of Mr Goodwin's collar with his left hand and pushed his hand up against Mr Goodwin's chin, causing him to bite his lip. Mr Goodwin said, 'Let him go or I'll smash you'. When officer Smithwick did not release Mr Slaveski, Mr Goodwin punched officer Smithwick in the head.

(e) Officer Bingham then pulled Mr Slaveski away from officer Smithwick. The two of them struggled and, as they did so, moved towards the rear of the shop.

(f) During the struggle between Mr Slaveski and officer Bingham, officer Bingham grabbed Mr Slaveski by the collar and pushed his hands against Mr Slaveski's chin. Mr Slaveski responded by placing his hands on officer Bingham's throat. Officer Bingham then took hold of Mr Slaveski's throat and pushed him, causing him to fall backwards on to some televisions and possibly other electrical merchandise. Some of these items also fell.

(g) When officer Bingham took hold of Mr Slaveski's throat, this was done not for the purpose of choking Mr Slaveski, but for the purpose of pushing him so that his grip on officer Bingham's throat would be released.

(h) Except as stated above, officers Bingham and Smithwick did not choke Mr Slaveski. In addition, officer Bingham did not kick or punch Mr Slaveski or knee him in the testicles.

(i) Officer Bingham did not say to Mr Slaveski, 'I'll get my gun and I'll shoot you' or any similar words. Nor did Mr Slaveski say, 'You'd better get the gun and shoot me in front of my wife and kids'.

(j) Officer Bingham decided to leave the shop and call for backup before proceeding further. At that time, officer Smithwick and Mr Goodwin were standing together near the entrance to the shop. They let go of each other, enabling officer Smithwick to leave the shop with officer Bingham.

Officers who attended the Lalor shop to assist officers Bingham and Smithwick

555 It was not in dispute that officers Bingham, Smithwick, Roberts, Stephen, Robinson, Rhodes and Barton were in the Lalor shop at some stage prior to Mr Slaveski being conveyed to the Mill Park police station. Mr and Mrs Slaveski gave evidence that officers Kirkright, Cole and Wheeler were also present.

556 Officers Bingham, Smithwick and Rhodes gave evidence that officers Kirkright, Cole and Wheeler did not attend the Lalor shop on 8 September 2000. Officer Barton gave evidence that he could not recall officers Kirkright, Cole and Wheeler being at the shop on that day. Officer Roberts gave evidence that he could not recall which officers had attended the Lalor shop on that day. Officers Stephen and Robinson gave evidence that they had no recollection of what happened inside the Lalor shop, or which officers were present there, on 8 September 2000.

557 Officer Wheeler gave evidence on 22 March 2010. He said that, on 8 September 2000, he was on duty at the Mill Park police station between 7.00am and 3.00pm. Although he heard the D24 call for assistance, he did not attend the Lalor shop, possibly because a police vehicle was not available. His call sign was Mill Park 507, which did not appear in the transcript of the D24 conversations.

558 Officer Wheeler said that his day book and diary for 8 September 2000 could not be located. He had transferred to the Northern Territory Police Force in 2006 and had left in the custody of Victoria Police all running sheets, day books and diaries he had at that time. On 12 April 2010, however, I was informed that, although officer Wheeler's running sheet and day book for 8 September 2000 could not be found, his diary had been located. The diary was produced in Court, but it was not tendered because officer Wheeler was not recalled.

559 As officer Wheeler's diary entry for 8 September 2000 did not form part of the evidence before me, I will not refer to it except for the purpose of addressing a submission that was made by Mrs Slaveska. She submitted that the reference to 'crime duties as per 501' in the diary meant that officer Wheeler was at the shop because it was not in dispute that officers with the call sign 'Mill Park 501' had attended the shop. Officer Kirkright gave evidence that, when it was not used to designate a 1.00pm shift by a CIU vehicle, '501' referred to a form 501 patrol duty sheet, which was also known as a running sheet. Officer Parker also gave evidence that '501' denoted a running sheet. I accept the evidence of officers Kirkright and Parker and find that the reference to '501' in officer Wheeler's diary was a cross-reference to the contents of his running sheet for 8 September 2000.

560 Mrs Slaveska gave evidence that she was 99 per cent sure that it was officer Wheeler and another officer who held her while Mr Slaveski was being handcuffed. Mr Slaveski said that he was about 75 per cent sure that officer Wheeler was at the Lalor shop. He did not say that he observed officer Wheeler doing anything while he was in the shop.

561 I share Mr and Mrs Slaveski's concerns about the absence of officer Wheeler's day book and running sheet for 8 September 2000, as those documents were capable of clarifying whether officer Wheeler attended the Lalor shop. Nevertheless, in light of officer Wheeler's strong recollection that he did not attend the Lalor shop on 8 September 2000, the absence of officer Wheeler's call sign from the D24 conversations and the evidence of officers Bingham, Smithwick and Rhodes that officer Wheeler was not there, I cannot accept Mr and Mrs Slaveski's evidence that officer Wheeler was present at the shop. I find that he was not present.

562 Officer Kirkright gave evidence that, on 8 September 2000, he worked at the Mill Park police station and did not attend the Lalor shop. According to his diary, he commenced work at 8.00am and finished at 5.20pm. Between 8.00am and 2.00pm, he attended to correspondence and inquiries. At 2.00pm, he met with a colleague at the station to discuss a file that was unrelated to Mr Slaveski. At 2.35pm, he conducted a welfare check on Mr Slaveski after he was brought to the station.[383]

563 Mr Slaveski gave evidence that he saw officer Kirkright outside the shop when he was being escorted to the police vehicle. In cross-examination, he also said that he saw officer Kirkright inside the shop but could not say what he did there. As discussed at [628] below, Mrs Slaveska gave evidence that she gave to officer Kirkright Mr Slaveski's tablets after he was escorted outside the shop and that officer Kirkright threw them on the floor on his way out of the shop.

564 In light of the above diary entries, I cannot accept Mr and Mrs Slaveski's evidence that officer Kirkright was present at the shop on 8 September 2000. I accept officer Kirkright's evidence that he did not attend the Lalor shop on that day.

565 There is some resemblance between officers Rhodes and Kirkright. It is possible that Mr and Mrs Slaveski mistook officer Kirkright for officer Rhodes.[384]

566 Officer Cole denied that he attended the Lalor shop on 8 September 2000. He said that, between April 2000 and June 2003, he worked in the Tactical Response Group in Melbourne and that, on 8 September 2000, he was in his office from 7.50am until 4.30pm. He produced his diary and day book, which showed that he was in his office compiling a brief of evidence on a matter that was unrelated to Mr Slaveski.

567 Mr Slaveski gave evidence that he remembered officer Cole entering the shop on 8 September 2000. He also remembered officer Cole rushing towards the desk in the office area when he was behind it. Mrs Slaveska gave evidence that she could not recall officer Cole 'on that day'.

568 In light of the contemporaneous records, I cannot accept Mr Slaveski's evidence that officer Cole was present at the Lalor shop on 8 September 2000. I accept officer Cole's evidence that he did not attend the Lalor shop on that day.

569 According to the evidence of Mr and Mrs Slaveski, there were 10 to 15 police officers in the Lalor shop at the time that Mr Slaveski was being handcuffed while he was face down on the floor. According to the evidence of officers Bingham and Smithwick, there were only five officers present at that time, namely, they and officers Roberts, Stephen and Robinson.[385] Their evidence was supported by officers Rhodes and Barton, who said that, at the time they entered the shop, Mr Slaveski was already handcuffed and that the only officers in the shop were officers Bingham, Smithwick, Roberts, Stephen and Robinson.

570 There is an inconsistency between officer Bingham's evidence and his statement in the record of interview that he and officer Smithwick entered the store '[w]ith a number [of] uniformed and other police'.[386] This is because officers Roberts, Stephen and Robinson were in uniform. I also note that, in his evidence, officer Roberts confirmed the accuracy of the statement he made shortly after 8 September 2000, that three to four officers (including him) wrestled Mr Slaveski to the ground as he struggled to get out of their grips.[387]

571 In my opinion, the most reliable evidence about who was present in the shop at the time that Mr Slaveski was handcuffed is the D24 recording. Based on that recording and the oral evidence relating to that recording, I make the following findings:

(a) At 1.59.30pm, officer Bingham sought assistance and then waited outside the shop with officer Smithwick for other officers to arrive.

(b) At 2.00.10pm, officer Roberts, who was on a motorcycle with the call sign 'Darebin 661', responded. He arrived at the shop at approximately 2.02.30pm.

(c) At 1.59.30pm, officers Stephen and Robinson responded. They had started their shift at 7.00am in a divisional van and were thus assigned the call sign 'Mill Park 307'. However, for some unknown reason, by 1.59.30pm, they were in a marked sedan rather than in a divisional van. I have reached this conclusion based on officer Stephen's statement on the D24 recording at 2.09.10pm that a divisional van was still required. This statement only makes sense if officers Stephen and Robinson had arrived at the shop in a sedan. Notwithstanding that officers Stephen and Robinson were no longer in a divisional van at and after 1.59.30pm, they retained the call sign 'Mill Park 307'. They arrived at the shop at approximately 2.04.50pm.

(d) After a short briefing by officer Bingham, officers Bingham, Smithwick, Roberts, Stephen and Robinson entered the shop at approximately 2.05pm.

(e) At 2.01.10pm, officers Rhodes and Barton, who were in a CIU vehicle with the call sign 'Mill Park 508', responded. They arrived at the shop at approximately 2.07.20pm. I accept officer Rhodes' evidence that, as a sergeant, he was entitled to use the call sign 'Mill Park 550' and that he commenced doing so when he and officer Barton arrived at the shop at 2.07.20pm. They entered the shop at approximately 2.07.40pm.

(f) By the time officers Rhodes and Barton entered the shop at approximately 2.07.40pm, Mr Slaveski was already handcuffed and face down on the floor.

(g) Mr Slaveski was escorted outside the shop at approximately 2.09.10pm and placed in an unmarked police vehicle at approximately 2.09.50pm. This is apparent from officer Stephen's statement at 2.09.00pm that there were '[t]wo males in custody' and officer Roberts' statement at 2.09.50pm that '[b]oth defendants have been put in a sedan, thanks'.

(h) An officer with the call sign 'Mill Park 251' responded at 2.02.10pm. The evidence established that that call sign designated a uniformed sergeant based at the Mill Park police station. As at 8 September 2000, there were two uniformed sergeants at Mill Park police station, one of whom was officer Murphy. I accept the evidence of officers Bingham and Rhodes that the voice of the officer who identified himself as 'Mill Park 251' was officer Murphy. At 2.09.20pm, after officer Stephen said that a divisional van was still required, officer Murphy said, 'On my way'. This must mean that officer Murphy and whomever accompanied him in the divisional van arrived at the Lalor shop - if they arrived at all - after Mr Slaveski had been taken into custody at 2.09.10pm and probably after Mr Slaveski and Mr Goodwin were placed in police vehicles at 2.09.50pm. There was no evidence that officer Murphy and whomever accompanied him ever entered the shop.

(i) Officers with the call sign 'Heidelberg 208' responded at 2.02.50pm, officers with the call sign 'Greensborough 307' responded at 2.05.10pm and officers with the call sign 'Eltham 307' responded at 2.05.10pm. At 2.08.20pm, they were told that their assistance was not required and they did not attend the shop.

572 It follows from the above findings that during the period that Mr Slaveski struggled and resisted being handcuffed - between approximately 2.05pm and 2.07.40pm - there were only five officers in the shop, namely officers Bingham, Smithwick, Roberts, Stephen and Robinson. At all times, officer Smithwick remained with Mr Goodwin. At one stage, officers Roberts and Robinson struggled with Mr Slaveski. They were joined by officer Bingham. It is possible that officer Stephen provided some assistance.

573 At no time were there 10 to 15 officers in the shop, as claimed by Mr and Mrs Slaveski. The maximum number of officers in the shop was seven, namely, officers Bingham, Smithwick, Roberts, Stephen, Robinson, Rhodes and Barton in the period from 2.07.40pm until 2.09.10pm, after Mr Slaveski had been handcuffed.

574 Officer Smithwick gave evidence that officer O'Connor attended the Lalor shop with officers Rhodes and Barton. In cross-examination, he said that officer O'Connor 'may have come later as ... we were leaving or something like that'. For the reasons I have already given, officer Smithwick was mistaken in relation to officer O'Connor.

Mr Slaveski's physical restraint and handcuffing

575 Mr and Mrs Slaveski gave similar evidence about the events that occurred after officers Bingham and Smithwick left the Lalor shop, but before Mr Slaveski was handcuffed and escorted outside the shop.

576 Mrs Slaveska gave evidence that, after officers Bingham and Smithwick had left the shop, she called either 000, Telstra or the Mill Park police station. When she asked for help, she was told that back-up was already on its way. Almost immediately, officers Bingham, Smithwick and eight to 13 other uniformed and plain-clothed policemen entered the shop. Officer Bingham was wearing a shirt with the sleeves rolled up.

577 Mrs Slaveska said that, at the time the police officers reached the office area at the rear of the shop, Mr Slaveski was walking towards his desk to get his tablets from his briefcase. As he went behind the desk, two or three officers jumped on the desk to grab him and another two came from around the side. They dragged Mr Slaveski from the desk and pushed him to the floor. One of the officers was officer Bingham.

578 Initially, Mrs Slaveska said that she saw four or five officers punching and kicking Mr Slaveski. In cross-examination, she said that she did not see anyone punch Mr Slaveski. She said that two officers immobilised Mr Slaveski by placing their legs against his shoulder and another two or three kicked him forcibly five to 10 times from the middle of his back downwards, including his buttocks and legs. She did not see which officers were kicking Mr Slaveski.

579 Mrs Slaveska said that Mr Slaveski was face down on the floor and was shouting, 'Stop it' and that he needed his tablets because of his heart. One of the officers - she did not know whom - said, 'Fuck your heart. Fuck your tablets. I hope you die.'

580 Mrs Slaveska said that Mr Slaveski was handcuffed with his hands behind his back. He was then helped up and was dragged outside the shop.

581 Mrs Slaveska said that she was unable to assist her husband because officer Wheeler and another officer held her tightly by the arms and pinned her against a wall. The men restrained her after Mr Slaveski called out to her to get the video camera that was on a shelf near his desk in order to film what was happening. She was kicked in the legs and ended up with bruises on her arms and legs. Although she saw a doctor about the injuries, she did not take any photographs.

582 Mrs Slaveska said that two of her children were in the shop and saw what was happening. They were scared and were hiding under a table shaking and crying.

583 Mr Slaveski gave evidence that, after officers Bingham and Smithwick left the shop, either he or Mr Goodwin asked Mrs Slaveska to call the police. He went into the kitchen area to wash his face while Mrs Slaveska was on the phone. As soon as she got off the phone, 10 to 15 uniformed and plain-clothed police officers - including officers Bingham and Smithwick - entered the shop. They said, 'Let's go for the kill'. A couple of officers were holding batons. Some officers arrested Mr Goodwin in the middle of the shop and the rest of them came towards him. At that stage, he was behind his desk, slightly to one side, trying to open his metal briefcase to get his tablets. A couple of the officers placed their knees on the desk and reached for the briefcase. Officer Bingham grabbed the case and hit him on the head and shoulder with it. The contents of the briefcase spilled over the desk and floor.

584 Mr Slaveski said that the police officers did not tell him that he was under arrest. He said that, after he was prevented from obtaining his medication from his briefcase, three to five officers dragged him around from one side of the desk and pushed him into the kitchen and toilet area between the shop and the workshop at the rear of the premises. The officers pushed him to the floor. While he was on the floor on his side, five to seven officers (including officer Bingham) kicked and punched him repeatedly all over his body. He was kicked 10 to 15 times. One of the officers had his knee on top of him, kneeing him. Fluids were coming out of his mouth due to the force of the blows.

585 Mr Slaveski said that, when he was on the floor being kicked, he screamed, 'Stop it, I've got a bad heart'. Officer Bingham said, 'Fuck you and your heart'.

586 Mr Slaveski said that he was then handcuffed with his hands behind his back. He was dragged outside the shop by officer Bingham and another officer.

587 Mr Goodwin gave evidence that a short time after officers Bingham and Smithwick left the shop, they returned with a number of uniformed police officers. At that time, he was standing near Mr Slaveski's desk at the rear of the shop. As he did not know that officers Bingham and Smithwick were policemen, he told one of the police officers to 'grab' officer Smithwick because he had been assaulted by him. However, officer Smithwick told the police officer to handcuff him, and he was arrested and handcuffed. It was only then that he realised that officers Bingham and Smithwick were policemen. Following his arrest, he just stood where he was. Officer Smithwick stood next to him.

588 In his record of interview, Mr Goodwin said that he thought he was in trouble when he saw the police walk in, whereas in evidence he said that he told an officer to '[g]rab that guy [officer Smithwick]'. This evidence can be reconciled with Mr Goodwin's belief that officer Smithwick could be arrested on the basis that Mr Goodwin confused the sequence in which the relevant events occurred. In other words, Mr Goodwin said, 'Grab that guy' and, after officer Smithwick directed one of the uniformed officers to arrest him, he realised that he was in trouble.

589 Mr Goodwin said that Mr Slaveski was coming out of the kitchen at the rear of the shop when the police came into the shop. The police jumped on Mr Slaveski, wrestled him to the ground and punched and kicked him. While he was on the ground, Mr Slaveski tried to defend himself. The police then let Mr Slaveski get up before he had been handcuffed.

590 Mr Goodwin said that Mr Slaveski stated that he wanted to get his tablets and that he reached out for his briefcase. Officer Bingham became extremely angry and thumped his hands on the desk. Officer Bingham grabbed the briefcase before Mr Slaveski could reach it and slammed it on the desk. Mr Slaveski stated that he wanted to get his heart tablets. Officer Bingham replied, 'Fuck your heart'. Officer Bingham hit Mr Slaveski while he was standing up. Mr Slaveski was then handcuffed.

591 Mr Goodwin said that, at this time, Mrs Slaveska was screaming and the children, who were nearby, were crying. Some officers were standing next to Mrs Slaveska but he could not remember whether they were holding her.

592 Mr Goodwin said that Mr Slaveski asked Mrs Slaveska to get his tablets. He could not remember Mr Slaveski asking her to get anything else. At no stage was Mr Slaveski dragged from the area near the desk to the kitchen area. Nor was he dragged out of the shop on the way to the police vehicle.

593 Mr Goodwin said that he was then taken to a police vehicle outside the shop. People had gathered around the shop to see what was happening. He could still hear Mr Slaveski swearing and calling out, 'Let go of me, I want my medication'.

594 Officer Bingham gave evidence that, once he and officer Smithwick were outside the shop, he called D24 for backup. Within five minutes, officers Roberts, Robinson and Stephen arrived. After he gave them a short briefing about what had occurred, all of the officers entered the shop. Mr Goodwin was near the front of the shop and Mr Slaveski was in front of the desk in the rear office area. He and the other officers proceeded towards them.

595 Officer Bingham said that, as he and the other officers approached Mr Goodwin and Mr Slaveski, he informed them that they were under arrest. Mr Goodwin did not resist arrest and was handcuffed by officer Smithwick with the assistance of one of the uniformed officers. Mr Slaveski was standing near the entrance to the office area in front of the large desk. In response to being told that he was under arrest, Mr Slaveski said either 'Stop' or 'Wait' and, as he did so, he moved behind the large desk, produced an aluminium briefcase, placed it on the desk and started to open it. Officer Bingham said that, by this stage, he had reached the front of the desk. He reached across the desk, took hold of Mr Slaveski's arm, swung him around in front of the desk and brought him face down to the floor. Two uniformed officers - possibly Robinson and Stephen - then took hold of Mr Slaveski and tried to handcuff him. As they did so, he went to check the contents of the briefcase.

596 In cross-examination, officer Bingham did not deny that Mr Slaveski may have said that he wanted his medication at the time that he reached for his briefcase and placed it on the desk. Given Mr Slaveski's previous aggressive behaviour in resisting arrest, and that the contents of the briefcase were not known to him, he decided that he could not allow Mr Slaveski to have access to those contents without prior vetting. He was concerned that the briefcase may have contained weapons and that, if Mr Slaveski was not restrained when he sought to access its contents, the safety of those in the shop may have been placed at risk.

597 Officer Bingham said that once he had ascertained that the briefcase did not contain anything sinister, he joined the two uniformed officers who were struggling with Mr Slaveski on the ground. He helped to restrain Mr Slaveski to enable his hands to be handcuffed behind his back. He could not remember who placed the handcuffs on Mr Slaveski. It was likely that one of the uniformed officers would have used his handcuffs, given that he, officer Bingham, had gone to inspect the briefcase once Mr Slaveski had been brought to the floor.

598 Officer Bingham denied that he or any other officer kicked or punched Mr Slaveski or jumped on the desk. He conceded that, while Mr Slaveski was on the floor, Mr Slaveski may have said that he had a bad heart and needed his medication but he denied saying, 'Fuck you and your heart'.

599 Officer Bingham also denied that he or any other officer hit Mr Slaveski over the head and shoulder area with the briefcase, that Mr Slaveski was dragged to the kitchen area at the rear of the shop, that Mr Slaveski told Mrs Slaveska to get the camera, and that Mrs Slaveska was held against a wall by two officers and kicked by them.

600 Officer Smithwick gave evidence that, once he, officer Bingham and three uniformed officers entered the shop, officer Bingham told Mr Slaveski and Mr Goodwin that they were under arrest for assaulting police. He immediately approached Mr Goodwin and handcuffed him. Mr Goodwin did not resist. He observed Mr Slaveski trying to open a briefcase that was on a desk and then officer Bingham bringing Mr Slaveski to the floor face down. Mr Slaveski struggled and screamed. Among the things said by Mr Slaveski was that he needed his heart medication. Mr Slaveski was eventually handcuffed.

601 Officer Smithwick said that he did not see any police officer punch or kick Mr Slaveski, hit him with the briefcase or drag him into the kitchen area. He did not hear Mr Slaveski telling Mrs Slaveska to 'grab the camera' or see any officer holding Mrs Slaveska against a wall and kicking her. He did not hear any officer say to Mr Slaveski, 'Fuck you and your heart'.

602 In cross-examination, officer Smithwick said that he could not recall seeing officer Bingham taking hold of Mr Slaveski while Mr Slaveski was behind the desk and pulling him to the other side of the desk before bringing him to the floor. He said that he definitely did not see officer Bingham or any other officer jump on the desk and pull Mr Slaveski over to the other side of the desk. In response to Mrs Slaveska putting to him that, as officer Bingham and Mr Slaveski started out on opposite sides of the desk, there was no way that Mr Slaveski could have been brought to the floor by officer Bingham unless officer Bingham climbed on the desk, he said, 'I saw what I saw'.

603 Officer Roberts gave evidence that he had little recollection of the incident. His recollection was assisted to some extent by the brief entries in his running sheet and a statement he made a few weeks after the incident for the purposes of the ESD investigation into Mr Slaveski's complaint about the conduct of officers Bingham and Smithwick.

604 Officer Roberts said that he attended the Lalor shop in response to a D24 call for assistance. When he arrived outside the Lalor shop, he saw two detectives there. They asked him to enter the shop with them and to provide assistance, if necessary, in arresting two individuals. When he entered the shop, one of the individuals (Mr Slaveski), resisted arrest and a female that was in the shop (Mrs Slaveska), was screaming.

605 Officer Roberts said that he could not recall being involved in restraining Mr Slaveski or in handcuffing him. He could not recall himself or any other officer jumping on the desk, hitting Mr Slaveski with a briefcase or dragging him along the floor. He recalled that there was some mention of medication but could not recall Mr Slaveski complaining about his heart or any police officer saying, 'Fuck your medication and fuck your heart'. He also recalled that Mrs Slaveska got in the way and was kept at a distance from Mr Slaveski. He recalled that the arrest of Mr Slaveski was effected quickly and sensitively. His handcuffs were placed on Mr Slaveski.

606 In cross-examination, officer Roberts was taken to a part of his statement that said, '[t]hree to four [police officers] wrestled one male to the ground as he struggled to get out of our grips'. He denied that it was excessive for four police officers to restrain a person being arrested. He said that it was not unusual for four officers to effect an arrest of a person who was resisting arrest, as that person could cause injury by using one of his or her four limbs during a struggle.

607 Officer Roberts denied that any police officer kicked or punched Mr Slaveski or that he had used his baton on Mr Slaveski. He said that he had not used his baton against any person in the last 20 years. He had no memory of any police violence at the shop and relied on his statement to the ESD where he said: 'I didn't see any punching, kicking etc. by the police, except for standard grappling of offenders arms, torso etc. in process of restraining offenders to effect the arrest'. He said that nothing out of the ordinary had occurred during the arrest and that is why he had no memory of it.

608 Officer Stephen gave evidence that he recalled attending the Lalor shop on 8 September 2000 and speaking briefly to two CIU officers outside the shop, but that he did not recall anything that happened after that time. He referred to his running sheet for that day and said that its contents were accurate. According to the running sheet, at 2.10pm, while he and officer Robinson were on patrol with the radio call sign 'Mill Park 307', they received a call for assistance in relation to an arrest that was taking place at 10 May Road, Lalor. His running sheet states the following:

1. [Code 1 - On Patrol] ... [Attend and assist officer Bingham] at 10 May Road [Lalor] arresting LUPCO SLAVESKI ... as male [and] his friend have turned on police [and] require our assistance.
2. [Code 5 - At Premises] ... Various other units in attendance.
3. Arrested ... SLAVESKI [and] John GOODWIN ... after short struggle. GOODWIN to be transported to [Mill Park] by ourselves.
4. [Code 1 - On Patrol] GOODWIN on board.
5. [Code 2 - In at Station] GOODWIN placed in CIU [interview] rooms to be [interviewed] by same.

609 In cross-examination, officer Stephen said that he could not explain the discrepancy of about 10 minutes between the times set out in his running sheet and the times embedded in the D24 recording. He said that he accepted the accuracy of the D24 recording and speculated that he may have completed the running sheet after he returned to the Mill Park police station, rather than as the events occurred. Irrespective of the reasons for the discrepancy, I find that the times embedded in the D24 recording are accurate and the times in the running sheet are not.

610 Officer Stephen denied Mrs Slaveska's allegation that he kicked her while he and officer Barton restrained her in the Lalor shop. He said that if he restrained her, it would have been for the purpose of preventing her from interfering with the arrest of Mr Slaveski. He said that he had never kicked a female and would never do so. If he had seen another officer kick Mrs Slaveska, or punch and kick Mr Slaveski, as alleged by Mrs Slaveska, he would have remembered that conduct and reported it to a senior officer. As he did not remember such conduct, it did not happen.

611 Officer Robinson gave evidence that he had no recollection of any of the events of 8 September 2000. His brief entries in his day book and officer Stephen's running sheet entries did not refresh his memory. His loss of memory was partly due to a brain injury.

612 Officer Rhodes gave evidence that, early in the afternoon of 8 September 2000, officer Barton and he responded to officer Bingham's D24 call for assistance and attended the Lalor shop in an unmarked police vehicle. Neither he nor officer Barton were in uniform. Their call sign for that day was 'Mill Park 508'. However, as a detective sergeant, he was entitled to use the call sign 'Mill Park 550'. He used that call sign once they arrived at the shop and it became apparent that he was the most senior officer at the scene. He and officer Barton did not speak to anyone outside the shop, but entered the premises directly.

613 Officer Rhodes said that, when he entered the shop, he saw Mr and Mrs Slaveski, a couple of children, Mr Goodwin, officers Bingham and Smithwick and three uniformed members. Mr Slaveski was face down on the floor with his hands handcuffed behind his back. Officer Bingham was standing near Mr Slaveski. Officer Smithwick was with Mr Goodwin and the three uniformed officers were 'just standing'.

614 Officer Rhodes said that he spoke to officer Bingham briefly and then looked quickly at Mr Slaveski. He did not observe any injuries on Mr Slaveski. He requested officers Bingham and Smithwick to take Mr Slaveski and Mr Goodwin out of the shop so that they could be taken to the Mill Park police station. He made this request because Mrs Slaveska was very vocal and agitated and the position appeared to be volatile.

615 Officer Barton gave evidence that he attended the Lalor shop with officer Rhodes in response to the D24 call for assistance. Contrary to officer Rhodes' evidence, officer Barton said that he was 80 per cent sure that the officer with the 'Mill Park 550' call sign in the D24 communication was detective sergeant O'Connor rather than officer Rhodes. He did concede, however, that the call sign could have been used by either officer. In light of officer Rhodes' evidence that he recognised the voice of the officer with the call sign 'Mill Park 550' as his own, I accept that evidence in preference to officer Barton's evidence.

616 Officer Barton said that, when he and officer Rhodes entered the Lalor shop, he saw Mr Slaveski on the floor near the entrance to the shop, already handcuffed. Mrs Slaveska was also near the entrance to the shop, with officer Stephen endeavouring to keep her away from Mr Slaveski. As Mr and Mrs Slaveski and officers Bingham and Smithwick gave evidence that they were all at the rear of the shop at the time that Mr Slaveski was on the ground with the handcuffs on him, I reject officer Barton's evidence that Mr Slaveski was near the entrance to the shop.

617 Officer Barton's diary contained the following entry for 8 September 2000:

1400 ... attended urgent request to back up at 10 May Rd LALOR premises of SKY TV Repair & Sales. Request from DSC BINGHAM & SMITHWICK. Attended at same with D/Sgt RHODES. [Observed] 1 x male in custody (GOODWIN) 1 x male and female struggling. Male on floor. Female struggling with C/STEPHENS. Assisted STEPHEN with female. Nil arrest. Male on ground Lupco SLAVESKI (22/3/67). [Cleared] 1410 [Returned to office] to assist Bingham & SMITHWICK process offenders until 1700 off duty.

618 Officer Barton said that, when he saw Mrs Slaveska agitated and seeking to assist Mr Slaveski, he went to assist officer Stephen. He denied pushing Mrs Slaveska against any wall or kicking her. He said that he was simply blocking Mrs Slaveska from reaching Mr Slaveski and assisting Mr Slaveski to frustrate the arrest.

619 Officer Barton said that he could not recall Mr Slaveski complaining about his heart or any officer saying, 'Fuck you, and fuck your heart'.

620 Pages 13 to 15 and 17 to 18 of the record of interview of 8 September 2000 contain the following exchange:

[Officer Bingham]: [D]o you agree that after we'd left the store, about 10 minutes later we came back in?

[Mr Slaveski]: Yes you did.

[Officer Bingham]: With a number [of] uniformed police and other police.

[Mr Slaveski]: Yes you did.

[Officer Bingham]: Do you agree that then you were placed under arrest?

[Mr Slaveski]: Yes.

[Officer Bingham]: Handcuffed?

[Mr Slaveski]: No, no, no, no, just a minute, let's go step at a time, sir. I said, "Gentlemen, I will come with you, can I please get my medication?" Di-, was I screaming for that?

[Officer Bingham]: No, hang on - - -?

[Mr Slaveski]: Was I or not?

[Officer Bingham]: You're right, hang on you're right. You did say that.

[Mr Slaveski]: And I went - - -

[Officer Bingham]: And you went for a briefcase.

[Mr Slaveski]: Excuse me sir, I said, "My medication is in my briefcase, my business briefcase."

[Officer Bingham]: And you went for a briefcase, and do you agree that I took the briefcase from you?

[Mr Slaveski]: You took the briefcase and threw it out, and then you guys, five of you guys, jumped on me. My wife is screaming. My kids are screaming, and as you can see, here someone stepped on my brain here, on the right hand side.

[Officer Bingham]: Do you agree that you got that gra-, you're pointing to a graze on the right hand temple area?

[Mr Slaveski]: Well, that's - that's - that's grey as in, sort - it's not grey it's red blood under there.

[Officer Bingham]: Alright. The graze on your right hand temple area - - -?

[Mr Slaveski]: Mm.

[Officer Bingham]: Are you saying you - you received that graze during that - whilst you were being arrested by the police?

[Mr Slaveski]: Why, Constable Shaun, why was I being arrested? Didn't I say, "Can I please get my - my tablets, my heart tablet," and nobody cared about my heart. Did I ask that everybody, in front of everybody - - -

[Officer Bingham]: Yes, you did.

[Mr Slaveski]: There was 15 officers there - - -

[Officer Bingham]: Yes, you did.

[Mr Slaveski]: Why nobody said, "Excuse me" - - -

[Officer Bingham]: Yes, you did. But you weren't in a pos-, we weren't in a position to allow you to go rummaging through a briefcase of which we didn't know the contents.

[Mr Slaveski]: What's in the - my briefcase?

[Officer Bingham]: How would I know?

[Mr Slaveski]: What's in my - what's in my - my wife is there, how would you know?

[Officer Bingham]: How would I know what's in your briefcase?

[Mr Slaveski]: What do you think, I'm a family man, officer, I'm thirt-, - - -

[Officer Bingham]: I don't know what to think after we've just been wrestling in the shop with you.

[Mr Slaveski]: Well, then it's a two way traffic - - -

...

[Officer Bingham]: Once we were given a chance to, do you agree that I explained to you that you were being arrested in - as a result of threats made to the City of Whittlesea?

[Mr Slaveski]: I - - -

[Officer Bingham]: The second time we came into the store?

[Mr Slaveski]: Yes.

[Officer Bingham]: When you were at the desk, with the briefcase?

[Mr Slaveski]: Mm'm.

[Officer Bingham]: I put it to you that I - that's when I told you - once again, you're under arrest. And the reason why.

[Mr Slaveski]: Possibly you did say, I do not recall, because as I said, I took a lot of medication that particular day, today.

[Officer Bingham]: Now, in respect to a number of - - -?

[Mr Slaveski]: I'm not saying that you did anything wrong when you said to me, "You're under arrest."

[Officer Bingham]: Mm'm.

[Mr Slaveski]: But I never saw any - I don't know how the system is, I haven't got a lawyer, Shaun. But then again, I don't know whether you need a warrant to arrest me, whether you need anything, do you need stuff like that? Do you?

[Officer Bingham]: No. We don't need a warrant to arrest you.

[Mr Slaveski]: Well, then fair enough, then you did - you did your job right then, if you didn't need a warrant. But I do believe that the matter could have been handled a lot smoother.

[Officer Bingham]: Okay.

[Mr Slaveski]: I believe that.

621 At the conclusion of her evidence in chief, Mrs Slaveska made a speech in which she summarised key aspects of her evidence. In relation to the handcuffing of Mr Slaveski, she said:

as I was being held by two police officers on the wall, I couldn't see exactly what they did to Mr Slaveski, but when I got released I could see they were kicking him on the head, on the body, and he was going, 'My heart, my heart', and they said, 'Fuck your heart.'