Plaintiff v Defendants

Supreme Court of Victoria|2015-06-17|Before: KAYE JA

TORTS - Assault - False imprisonment - Plaintiff arrested without warrant by police for breach of intervention order - Whether police had reasonable grounds to believe plaintiff had breached order - Whether police used unnecessary or disproportionate force to effect arrest - Whether police informed plaintiff of arrest and reason for arrest - Whether plaintiff brought before bail justice within reasonable time of arrest.

1 The second, third and fourth named defendants (collectively referred to as 'the police defendants') are members of Victoria Police. At the time of the events with which this case is concerned, they were stationed at Euroa police station. The plaintiff brings this proceeding against the police defendants, and against the State of Victoria (as the first defendant) claiming damages arising out of the arrest of him by the police defendants on 19 April 2011 at the Honeysuckle Caravan Park, Violet Town. The plaintiff claims that as a result of the circumstances in which he was arrested, and subsequently detained, he has suffered injury, and in particular psychological injuries. The plaintiff's claim for damages is based on causes of action in assault and false imprisonment.

2 It is common ground that at about 10:30pm on 19 April 2011, the police defendants attended at the home of the plaintiff, and his wife, Dorothy Biddle ("Dorothy"), which was located in the caravan park, in order to arrest him on the grounds that he had breached an intervention order taken out against him by Antoinette Gerada ('Gerada'). In the course of the arrest, a struggle ensued. During the removal of the plaintiff from the house, one or more of the police defendants activated capsicum spray in his direction. After the plaintiff was removed from the house, he was conveyed, first, to Shepparton police station, and, early on the next day to the Benalla police station, and then to Wangaratta police station. He was granted bail by the Wangaratta court late in the afternoon of 20 April 2011.

3 The plaintiff and his wife, Dorothy, and the three police defendants, each gave evidence as to the circumstances in which the plaintiff was apprehended at the caravan park and taken into police custody. The evidence given by the plaintiff and his wife conflicts, in a number of important respects, with the evidence given by the three police defendants, as to the circumstances in which he was apprehended and removed from the house.

4 The arrest was effected by the three police defendants without a warrant. They purported to arrest him under s 124 of the Family Violence Protection Act 2008 (the 'Act'), which provides that if a police officer believes, on reasonable grounds, that a person has committed an offence by contravening a family violence order, the officer may, without warrant, arrest and detain that person.

5 The principal issues in the case include the following:

(1) Whether the police defendants believed on reasonable grounds that the plaintiff had committed an offence against s 123 of the Act, by contravening the interim intervention order obtained against him by Gerada.

(2) Whether the police defendants executed the arrest of the plaintiff in a lawful manner. In particular, there is an issue as to whether the police defendants, when apprehending the plaintiff, advised him that he was under arrest and of the reason for his arrest.

(3) Whether the police defendants used unnecessary and disproportionate force in effecting the arrest of the plaintiff.

(4) In particular, whether the police defendants used excessive force by discharging the capsicum spray at the plaintiff, and by placing handcuffs on him after he had been subdued by the capsicum spray.

(5) Whether the plaintiff was brought before a bail justice within a reasonable time of having been taken into custody by the police defendants.

6 The plaintiff joined the first defendant, the State of Victoria, claiming that the first defendant is liable in respect of the torts alleged to have been committed by the police defendants pursuant to s 123 of the Police Regulation Act 1958. In the course of the proceeding, the first defendant accepted that, pursuant to that provision, it would be liable to the plaintiff, in the event that the police defendants were found to have committed any of the torts alleged by the plaintiff.

7 Quite detailed evidence was given as to the plaintiff's background and as to the circumstances leading to the events of 19 April 2011. That evidence was relevant to provide a context to the events that occurred on the night in question.

8 The plaintiff is 63 years of age. He married Dorothy in 1971. There are three adult children of the marriage. The plaintiff and Dorothy lived initially in Benalla, and then in Euroa. During that time, the plaintiff worked as a house relocator and renovator. It appears that he established a successful business in that capacity. Dorothy was a trained nurse. For almost one decade she worked with people who suffered from acquired brain injury.

9 In 2003, the plaintiff commenced a large contract with Bunnings in Frankston, that involved the demolition of four blocks of housing. At that time, he commenced drinking quite heavily, so much so that it adversely affected his ability to carry out his work and complete the contract. Ultimately, it was necessary for Dorothy to engage other contractors to ensure that the contract was completed.

10 In 2005, Dorothy purchased and commenced to operate the caravan park at Violet Town. In the subsequent year, 2006, Bryan fell off a roof while working in Frankston and injured his shoulder. He underwent surgery in January 2007, and he has not worked since. In the meantime, his alcohol consumption escalated, and he was intoxicated for most of every day. He persistently resisted the repeated efforts by Dorothy to wean him off alcohol.

11 In April 2007, Dorothy employed Gerada to work in the caravan park as a cleaner. In due course, Gerada became a regular drinking companion with Bryan. Their relationship evolved, and Bryan commenced to have an affair with her. Dorothy terminated Gerada's employment at the caravan park, but Gerada continued to come to the caravan park to drink and associate with the plaintiff. Ultimately, in July 2008, Dorothy excluded the plaintiff from their home at the caravan park, and he went to live in the house then owned by himself and Dorothy in Euroa.

12 In the meantime, the plaintiff had been prescribed anti-depressant medication by his general practitioner. Dorothy stated she had noted signs of the onset of a depressive disorder in the plaintiff as far back as 2003, at the time that he gained the contract in Frankston. His mental state was not helped by his continued abuse of alcohol. The plaintiff continued to drink excessive quantities of alcohol, notwithstanding the advice of his doctor that he should not do so while taking anti-depressant medication.

13 In 2010, Dorothy had to sell the Euroa house because of financial difficulties. As a result, the plaintiff returned to live at the caravan park in March 2010. From then on, he and Dorothy have lived in the same house in the caravan park, but they have no longer lived together as husband and wife.

14 After his return to the caravan park, the plaintiff continued to associate with Gerada, and he continued to drink large quantities of alcohol each day. Dorothy visited Gerada in October 2010 to ask her to cease giving him alcohol. In response, Gerada violently assaulted Dorothy.

15 In early 2011, the relationship between the plaintiff and Gerada ultimately broke down. An incident occurred on 16 March, outside Gerada's home in Euroa. There was little evidence relating to the details of that incident, but it would appear that, in one way or another, the plaintiff either spilled, or threw, a bottle of beer, or its contents, into the house, or onto the property, in which Gerada was then living.

16 On 5 April 2011, Gerada obtained an interim intervention order against the plaintiff. On the next day, 6 April, Gerada, who was then residing at premises at White Street, Euroa, made a complaint that the plaintiff had breached the intervention order. On 7 April, the plaintiff was arrested by the third defendant, Sergeant Hughes (then Leading Senior Constable Hughes) ('Hughes') and Leading Senior Constable Storer. He was interviewed, and bailed, in respect of charges arising from the events of 6 April and the events of 16 March.

17 On 10 April, the second defendant, Senior Constable Dowell ('Dowell')[1] received a complaint that the plaintiff had been contacting, and abusing, members of Gerada's family. She attended at the caravan park and spoke to the plaintiff. There is a conflict in the evidence, as to the circumstances of that attendance by Dowell at the caravan park. Both Dorothy and the plaintiff stated that on that morning Dowell came into the office, thumped her fist on the counter, pointed aggressively at the plaintiff who was sitting in the office, and in a stern loud voice directed him not to ring Gerada's former father in law anymore. As a result, the plaintiff ran out of the office and touched the bonnet of Dowell's vehicle, as she was departing, and told her she should not drive so quickly. On the other hand, in her evidence, Dowell stated that when she attended the caravan park on the morning of 10 April, she did not speak to the plaintiff in an aggressive tone. She was working on her own and she did not want to provoke a confrontation with the plaintiff. She denied that she thumped the counter. Rather, she simply told the plaintiff that he should stop contacting Gerada's father in law. When she left, the plaintiff ran out after her and yelled something at her about Gerada's son and about the speed at which she had driven.

18 The plaintiff was disturbed by the exchange which he had had with Dowell on that occasion. At 1:40pm, he telephoned the psychiatric nurse at Goulburn Valley Area Mental Health Service. In the course of that telephone call, he was agitated and not speaking coherently. There is a conflict in the evidence as to precisely what he said. It is common ground that, in one way or another, he made mention of the fact that he might shoot the police or, at least, he could shoot some person. As a result of that telephone call, the three police defendants, together with other police members, including Senior Constable Brendan Lynch, attended at the caravan park on the same afternoon. Senior Constable Lynch, who is now deceased, had had previous contact with the plaintiff, and he had a good rapport with him. He spoke with the plaintiff for some time, and managed to calm him down. As a result, the police left the premises.

19 In his evidence, Hughes stated that the plaintiff visited him at Euroa police station on 14 April to discuss the charges that had been laid against him arising from the events of 16 March and 6 April. Hughes stated that the plaintiff became aggressive and angry during the conversation, and that Hughes required him to leave the police station. In his evidence, the plaintiff denied that the conversation occurred. For reasons that I shall detail later, I am satisfied, on the evidence of Hughes, that that conversation did occur.

20 Those are the circumstances that form the background to the events of 19 April. As I stated, there is a significant conflict in the evidence as to the circumstances in which the plaintiff was arrested. It is not in dispute that, on that day, the plaintiff commenced drinking alcohol heavily in the afternoon. Later in the day, at about 5:00pm or 6:00pm, he went to the Ellen Frances Hotel in Violet Town, accompanied by two other residents of the caravan park, Bradley Quinn and Ashley Haroba. They continued to drink at the hotel for between two hours and three hours and then the plaintiff made his way home. After the plaintiff arrived home, Dorothy ensured that he went to bed at about 9:30pm. According to Dorothy, approximately one hour later, at 10:30pm, the three police defendants attended at the home to effect his arrest.

21 In order to understand the evidence given about the arrest of the plaintiff, it was necessary to conduct a view of the premises. The parties also tendered a sketch of the front office.

22 The front of the house opens onto a porch. There are two doors that open onto the porch, namely, a door to the office (on the left) and a door to the lounge area (on the right). If the premises are entered through the door to the office, there is a desk on the right hand side. One side of the desk abuts the front wall of the premises. Accordingly, in order to enter the living the quarters via the office, it is necessary to traverse the desk in a clockwise manner. From there, a second door to the office opens onto a corridor on the left. At the end of that corridor is the plaintiff's bedroom. Opposite the office door is the kitchen and lounge room. There is a rear sliding door at the back of the lounge room. To the right of the house is a carport. If one exits through the rear sliding door, and turns right through the carport, one can return to the front of the premises. The house itself is quite small, and, in particular, the front office, the lounge, and the plaintiff's bedroom are all quite confined in space.

The events of 19 and 20 April 2011: the evidence

23 The evidence of the plaintiff and Dorothy, on the one hand, and the evidence of the police defendants on the other, differ in a significant number of respects concerning the circumstances in which the plaintiff was arrested in, and removed from, his home at the caravan park. Consequently, it is necessary to summarise the evidence of the principal witnesses in some detail.

24 The plaintiff and Dorothy each gave evidence. Although Dorothy gave evidence before the plaintiff, it is appropriate to summarise the plaintiff's evidence first.

25 The plaintiff stated that on 19 April he travelled to Shepparton with his brother, and returned in the early afternoon. He then drank beer in the barbecue area of the caravan park. At that stage, he drank about six stubbies of beer. He was joined by Bradley Quinn, another resident of the caravan park, and they continued to drink together until 5:00pm or 6:00pm. By that stage, they had run out of beer, and therefore they went to the hotel. They were accompanied by Ashley Haroba.

26 At the hotel, the plaintiff, Quinn, and Haroba each drank four stubbies of beer. Quinn asked the plaintiff whether he had finished his relationship with Gerada. When the plaintiff confirmed that that was so, Quinn took possession of the plaintiff's telephone, which contained the telephone number of Gerada. Quinn entered that number into his own telephone and dialled it. Quinn, Haroba and the plaintiff then left the hotel to return to the caravan park. They set off down the main street of Violet Town towards High Street. Quinn asked the plaintiff if he knew where Gerada lived. In response, the plaintiff said that he did not know where she lived, but he indicated a house where he thought she lived. They then walked to the caravan park. The plaintiff waited in the carport area, because he knew that Dorothy would be angry with him. Quinn disappeared for a short time, and returned, and told the plaintiff that Dorothy wanted him in the house.

27 The plaintiff then entered the house. Dorothy gave him a cup of tea, and sent him to bed. The plaintiff removed his outer clothing, got into bed, and fell asleep. He next recollected lying on his left hand side with the doona over his face. Someone had hold of his right foot and was shaking it and yelling, "Hey tough man, give us a look at you". The plaintiff woke up and saw the three police defendants there, who, in his evidence, he described as "shadows". He said, "What the fuck's going on?". The police told him to get out of bed. The plaintiff swung around and sat on the side of the bed in a bent position. All of a sudden one policeman (who he identified as Sergeant Trebilcock) grabbed him by the right arm and threw him off the bed, because he was moving too slowly. The smaller member (Dowell) disappeared up the passageway. The third policeman (Hughes) was standing towards the window. The plaintiff sat on the side of the bed and said "Just fuck off". Sergeant Trebilcock ("Trebilcock") did not respond. He pushed the plaintiff through the bedroom door and into the passageway.

28 As the plaintiff went into the passageway, he was shoved onto the floor. Trebilcock walked or crawled over the top of him to the front. Trebilcock then grabbed one arm and dragged the plaintiff in a headlock with his other arm underneath him. The plaintiff kept saying, "Just let me go I'll walk, I can walk, I've got two legs." The plaintiff said that he was then dragged, while prone, to the door of the office. He was then dragged around the corner. One of his legs became hooked in the front counter. He said that that is where "they" dropped him. Trebilcock was lying over the top of him at one end, and Hughes was lying over the back side of him on one knee. He heard Dowell yelling out, "Will I spray him, will I spray him?". He then heard the spray canister being deployed. He felt the spray run down his leg, and it suddenly started to burn his leg. It ran down his leg and went into his anus. His penis was burning and he said "I'm on fire". He said that the first contact with the spray was on the inside of his right thigh in the groin area.

29 The plaintiff said that the canister continued to spray. It came over the top of him and burnt his neck, ears and head. He then felt a smack in the teeth, the spray was deployed directly into his mouth and it burnt his throat and lungs. He heard the two police run out of the house, coughing and yelling at Dowell to "stop spraying, you're killing us". The plaintiff went to crawl through the front door to access some fresh air. One of the policemen came back through the front door, grabbed him by one arm and dragged him across the concrete. As the surface of the concrete is uneven and rough, he suffered some abrasions to the arm.

30 The plaintiff stated that when he got outside, Trebilcock jumped on his back again, knocking the wind out of him. He grabbed the plaintiff's right arm and handcuffed it. The plaintiff warned him to be careful of his left arm, because it had been broken. Trebilcock then pulled the plaintiff's left arm behind him, and handcuffed him. He was then led to the back of the divisional van and left there.

31 In the meantime, the police went to the hose which was nearby and washed their faces and eyes. They came back drenched. The plaintiff told Dorothy, "I have to have a shit". He then soiled his trousers and said, "Too late, I've shit myself." Two male police then walked him over to the hose. Dowell stuck the hose down the rear of his underpants, and washed faeces over the back of his legs and through his toes. He was then marched to the divisional van. The handcuffs were removed. He slid inside the divisional van. Dorothy came with a bowl and a flannel to clean his face.

32 The plaintiff stated that at no time did the police treat him for the effects of the capsicum spray. He said that when he was in the bedroom he had asked the police "What the hell is going on", and they said "You'll find out". It was only when he was in the back of the divisional van that he was told that he was being arrested because he had breached an intervention order. While he was in the van, Dorothy handed him some clean clothes, but he was not given the opportunity to put them on.

33 The divisional van departed the scene. The plaintiff wished to urinate. He said at that stage his throat, stomach and anus were on fire and his penis was burning. The police stopped the van at his request so he could urinate but he was unable to do so. He was then conveyed to the cells of the Shepparton Police Station. He was permitted to shower, but he did so with difficulty, because he had to keep one finger on the button of the shower. He was unable to completely wash the faeces out of his feet. At that stage, he was given some clothing, consisting of tracksuit pants, and what he described as a "girl's" high school top. He was not given any underwear, or footwear. The plaintiff was then placed in a cell. He was not offered, or given, any treatment in relation to the effects of the capsicum spray.

34 The plaintiff stated that he was taken to a bail justice during the early hours of the morning and refused bail. Later that morning, still clothed in the tracksuit pants and the top provided by the police, he was conveyed to another police station, where he was detained. At about 10:00am, he was driven to Wangaratta in the back of the divisional van and placed in the Wangaratta lockup. Subsequently, he was driven to the court house. There, he was provided with an old pair of boots without shoes. Later in the afternoon, when his case came on for hearing, the magistrate granted him bail on his release into the custody of his wife.

35 In cross-examination, the plaintiff denied that, while he was in the bedroom, Trebilcock had told him he was under arrest for breach of an intervention order and that Trebilcock was going to apply for a Family Violence Safety Notice. He also denied that he had lunged at Trebilcock with a clenched fist and challenged Trebilcock to a fight. He denied that he walked out of the bedroom under his own steam, and reiterated that Trebilcock had pushed him through the door. He denied that he got hold of the architrave of the door between the hall and the office area. He denied that Trebilcock had put him in a bear hug.

36 The plaintiff agreed that he had had 'a fair bit' to drink that night. When the police came, he was in a deep sleep and only woke gradually. When the police took hold of him, he was still affected by alcohol, but he could remember what happened. He said that when Dowell "smashed" the capsicum canister in his teeth, it removed a chip from the front of his middle tooth. However, he did not consult a dentist concerning it. He said that when he saw Dr Buckley about nine days after the event, he did not tell him that he had suffered an aggravation of the injury to his shoulder, when he was handcuffed.

37 The plaintiff said that as a consequence of being dragged across the porch he had sustained abrasions to his right arm and there was blood dripping from his arm, but Dorothy did not take a photograph of that injury. The plaintiff stated that the only time the hose was used to clean him was after he had soiled his underpants. He denied that he was interviewed by Dowell at Shepparton Police Station concerning the alleged breach of the intervention order. He also denied that at Shepparton Police Station he was offered and refused breakfast and a shower in the morning. He agreed that, on the advice of his solicitor, he ultimately pleaded guilty, at Benalla court on 8 November 2011, to one charge of resisting police in the execution of their duty and one charge of breaching an intervention order.

38 Dorothy Biddle, in her evidence, stated that she first saw the plaintiff on 19 April in the morning, when he left with his brother to go to Shepparton. She next saw him at 9:00pm. He was drunk, and was brought home by Quinn and Haroba. Before they arrived home, Quinn had telephoned her between 8.00pm and 8.30pm, to tell her that the plaintiff was drunk and out of control, and that he had rung the police. As a result, Dorothy telephoned the police and spoke to Trebilcock. She told him that she did not need police assistance, and that she was capable of looking after the plaintiff. She said that Trebilcock appeared to be concerned for her safety, but she reassured him that she would be all right. She denied that she was shaking or panicking during that telephone conversation.

39 Dorothy stated that Quinn then came to their house at about 8:35pm. While he was speaking with her, he received a telephone call on his mobile phone. Dorothy recognised Gerada's voice, saying "I've received a missed call from this number, who are you?". Quinn responded that he lived in Violet Town, but he did not make the call. At the conclusion of that telephone conversation, Dorothy asked Quinn how he got the telephone number, and he said he had taken it out of the plaintiff's telephone.

40 Quinn and Haroba then brought the plaintiff home at about 9:00pm. Dorothy gave him a cup of tea, and told him to go to bed. The plaintiff went to his bedroom at 9.20pm. Shortly afterwards she heard him snoring. She lay down on the couch to watch television, but fell asleep.

41 Dorothy then heard the doorbell ringing. She went through the office and opened the office door. Three police officers were there. They walked in and asked her where the plaintiff was. She said, "In bed, why?". Dowell responded, "Violation of an intervention order." Dorothy offered to fetch the plaintiff. The police said "No, we'll get him." Dorothy indicated the plaintiff's bedroom. The police told her to stay back, and they proceeded to the plaintiff's room. She heard a male voice say, "Hey tough man, hey tough man." She then heard the plaintiff calling "Dot help me, Dot help me."

42 Dorothy walked to the bedroom door and looked inside. The plaintiff was sitting in his boxer shorts and singlet on the side of the bed. Dowell was beside the door. One policeman was towards the window side of the bed, and the other was at the right hand corner of the bed. The police told her to go back. Dorothy obeyed, and she stood in the doorway of the hallway and the lounge room. Dowell followed her down the hallway, and asked her if the plaintiff could have got out that night. Dorothy said that he could have, but he would have had to be very quiet, or she would have heard him.

43 Dorothy then heard a commotion at the plaintiff's bedroom door. She saw the police bringing the plaintiff through the door. He was yelling out "Fuck off you...fuck off ...get out of my room". She saw two police officers, one on either side of him, and each holding one of his arms. They dragged the plaintiff on his knees down the hallway. The plaintiff continued to shout expletives, "Fuck off, fuck off." One policeman was slightly in front of the plaintiff pulling him, and the other was behind him, pushing him.

44 Dorothy said that the plaintiff was then dragged into the office by the two male police. Dorothy said that she stood at the doorway adjacent to the doorway of the office. Dowell followed the plaintiff and the other two police into the office. The plaintiff was dragged around the desk. One of the policemen had him in a headlock, and the other was behind him. He was dragged around the counter. Dowell stood behind the counter. She said, "Will I spray him, will I spray him?". The plaintiff was on the floor being held by his arms and legs. Dowell then walked around the front of the counter. Dorothy stepped up against the counter. Dowell crouched down. Dorothy heard the spray, and she immediately felt her face burning. The plaintiff then said, "My arse is on fire." The three police then took him out the front door, and Dorothy exited through the back door and around through the carport. There she saw the two police officers, each on either side of the plaintiff, escorting him to the divisional van. She said that, at no stage until then, had she heard the plaintiff being told he was under arrest or why he was being apprehended. The plaintiff was asking, "What do you want, what do you want?".

45 The plaintiff was taken to the divisional van. He had been handcuffed. He kept saying, "My arse is on fire and my dick's on fire." He told Dorothy that he needed to go to the toilet. He took two steps and said, "Too late, I shit myself". Dorothy asked the police if she could take the plaintiff inside, so that he could have a shower. They refused. Instead, Dowell put the hose down the back of the plaintiff's underpants and tried to wash him.

46 The plaintiff continued to say, "My arse in on fire." He was put into the divisional van. Dorothy put a bowl of water and a flannel and a towel in the back of the divisional van. She also got some fresh clothing for the plaintiff which she gave to Dowell. The divisional van, containing the plaintiff, then left.

47 At about 2:00am, Trebilcock telephoned Dorothy to say that the plaintiff was being kept in the Shepparton gaol overnight. He said that the plaintiff was calm, but crying. Dorothy told Trebilcock that the plaintiff was on medication, and Trebilcock said that that would be taken care of.

48 Subsequently, at about 8:00am, Trebilcock telephoned Dorothy again. They had a lengthy and pleasant conversation in which they discussed people with depression and alcohol problems. Trebilcock told Dorothy that the plaintiff would be taken to Wangaratta Court that morning.

49 When Dorothy arrived at Wangaratta Court that morning, a police officer gave her a piece of paper to sign. It was an application by the police, on her behalf, for a Family Violence Safety Notice. Dorothy said that she refused to sign it. She handed some fresh clothes to the police to give to the plaintiff, but they refused to take them, because the shoes she gave them had laces in them.

50 The plaintiff was brought into court at about 5:00pm. Dowell made an application for an intervention order on Dorothy's behalf. Dowell gave evidence and then Dorothy gave evidence. Dorothy told the Magistrate that she was never under threat from the plaintiff, and she was not scared of him. She said she needed help to deal with the plaintiff's medical and mental health issues. She denied that she had previously said to Trebilcock that she had been subjected to numerous assaults and injuries at the hands of the plaintiff. The police also opposed the plaintiff being granted bail that day. The Magistrate, however, granted the plaintiff bail on the condition that he reside with and remain under the care and protection of Dorothy. He was also placed on a curfew, and was required to attend medical appointments with her.

51 Dorothy stated that, on 20 April, she telephoned Quinn to find out what had happened on the previous day. In the course of the conversation, Quinn said that he had been to Gerada's house earlier in the day, he had poured something out of a stubby down the vents of her car, and he had left the stubby sitting near a tree by her front gate. Dorothy drove to Gerada's house and had a look. She saw the stubby near a shrub on the nature strip in front of her house.

52 Dorothy also stated that subsequently on 1 May she telephoned Seymour police to complain to Ethical Standards about the intervention order that was taken out on her behalf. She was advised that it was permissible for the police to take out an intervention order on behalf of someone they thought was in danger.

53 In cross-examination, Dorothy was asked questions about the telephone conversation that she had with Trebilcock, after Quinn had told her that he had telephoned the police. Dorothy denied that, in that conversation, she told Trebilcock that she had been subjected to emotional and physical abuse from the plaintiff when he was affected by alcohol. She denied that she said that she had seen doctors or been to emergency departments in relation to injuries she sustained as a result of that abuse. She agreed that in that telephone conversation Trebilcock sounded concerned for her safety, and he kept asking her if she was sure that she did not want the police to attend.

54 Dorothy stated that the back door to their house is less noisy now than it used to be, because the plaintiff had replaced the roller on it. She said that previously, it would make a lot of noise, unless it was opened very carefully. In re-examination, she said that Bryan was incapable of opening the door carefully or slowly in the condition that he was in that night.

55 In cross-examination, Dorothy denied that, when the police arrived at the house on 19 April, they immediately asked her whether the plaintiff could have left the house that evening. She reiterated that Dowell asked her that question later in the lounge room, while the other two police were with the plaintiff in the bedroom. She reiterated that when the plaintiff was forcibly pulled from the bedroom, he was on his knees with a policeman either side of him. She denied that Dowell was the first police officer into the office area. Rather, Trebilcock and Hughes entered the office before Dowell. She denied that Hughes deployed the capsicum spray at all. She also denied that later, when they were outside the house, the police supplied any after care to the plaintiff.

56 Dorothy stated that when she gave evidence at the Wangaratta Court, she was unprepared to give evidence, and that she was then concentrating on disputing Dowell's application for a Family Violence Safety Notice. A recording of the evidence, given by Dorothy at the Wangaratta Court, was played to her in cross-examination. I shall refer in greater detail to that recording later. In her evidence to the Magistrates' Court, Dorothy described the events that occurred on 19 April after the police arrived at the house. She described how she could hear what was going on after the plaintiff had been brought into the office by the police. It was pointed out to Dorothy, that that testimony at the Magistrates' Court was inconsistent with the evidence that she gave before me, namely, that she was in the office when Bryan was sprayed. Further, in her evidence before the Magistrates' Court, Dorothy described how the police used the hose to wash Bryan down because he was in agony, and she said, "All the time the police were trying to disperse the capsicum spray off him." It was pointed out that that evidence was also inconsistent with her evidence in this case. Dorothy stated that in the Magistrates' Court she was extremely nervous, that she gave a jumbled and rambling version of the events, and that, before she gave evidence, Dowell had given evidence. Dorothy said, "That's where I took my recollection of it from." She said that only later, when she reflected on the events of the evening, could she recall accurately what had happened.

57 Dorothy again reiterated in cross-examination that the police did not use the hose to wash the plaintiff's face. She said that Trebilcock and Hughes only used it to wash their own faces, notwithstanding that the plaintiff was in distress and saying his "arse was on fire." She stated that her memory of the events had changed since she gave evidence at the Wangaratta Court. She now has a clear recollection of the events. She said that after the plaintiff had soiled himself, Dowell, not Trebilcock used the hose to wash the back of his underwear. She thought that it was inappropriate for a policewoman to do that, but she did not say anything in protest.

58 Dorothy agreed that the next morning at 8:00am she had a lengthy and friendly conversation with Trebilcock concerning depression and alcohol abuse. Trebilcock was very understanding of Bryan's problems, and he told Dorothy that she could call him at any time if she wanted to have a "chat". Trebilcock's tone was one of concern and empathy. When she drove the plaintiff home that night after court, she said to the plaintiff that Trebilcock "is a lovely person, he said you could ring him at any time." She also agreed that when she telephoned the member of the Ethical Standards Department at Seymour Police, she did not complain about the treatment by the police of the plaintiff on the evening of 19 April. Rather, she complained about the fact that Dowell had tried to make an application for an intervention order on her behalf, without her consent.

59 Each of the three police defendants gave evidence. Before 19 April, Hughes and Dowell had been stationed at the Euroa Police Station for some time. Trebilcock was a Sergeant at Shepparton Police Station. He first worked at the Euroa Police Station on the evening of 19 April, when he was posted there for temporary duties.

60 Sergeant Hughes gave evidence as to the previous contact that he had had with the plaintiff on 7 April, 10 April, and 14 April. He said that on 19 April, Dowell, Trebilcock and he commenced duty at 4:00pm together. At 8:30pm, Trebilcock told him that he had received a phone call from Bradley Quinn. Quinn had told Trebilcock that the plaintiff was at the caravan park in an intoxicated state, and he was causing problems. As a result of that information, Dowell and Hughes each briefed Trebilcock in relation to their recent dealings with the plaintiff.

61 About 30 minutes later, Trebilcock received a telephone call from Dorothy. Trebilcock told Hughes and Dowell that Dorothy had requested that the police not attend, that the plaintiff was intoxicated and she would put him to bed. The three police spoke together and decided not to attend, unless there were any further incidents.

62 At 10:00pm, they received a telephone call from Wangaratta Communications stating that Gerada had telephoned triple 0 reporting that the plaintiff had been outside her address at 258 High Street, Violet Town, and that by doing so he had breached the intervention order. As a result of that call, Trebilcock, Dowell and Hughes had a discussion. Trebilcock said that as a result of his earlier conversation with Dorothy, he had concerns for her welfare, so the police would not only need to arrest the plaintiff, but would also need to apply for a family violence safety notice on behalf of Dorothy. Hughes stated that he shared Trebilcock's concerns relating to Dorothy's welfare. Trebilcock had told Hughes that Dorothy had said to him that the plaintiff had been violent to her in the past.

63 Dowell and Hughes then drove to Gerada's house, where they arrived at 10:20pm. Trebilcock followed shortly thereafter in a police car. Gerada told Dowell and Hughes that Biddle had been out the front of her address yelling at her. She was positive it was the plaintiff from his voice. Also, although it was dark, she could tell it was him when she went to have a look. As a result of that information, Trebilcock stated that the police defendants would attend at the caravan park to arrest the plaintiff for breach of an intervention order and breach of bail, and that they would also have to apply for a family violence safety notice on behalf of Dorothy.

64 The police then drove to the caravan park in separate vehicles. It was decided that Dowell would speak to Dorothy and advise her of what was going on. Trebilcock knocked on the front door of the residence. The door was opened by Dorothy. The police apologised for waking her up. Dowell asked her where the plaintiff was. She replied that he was in bed. Dowell asked whether it was possible he could have gone out. Dorothy said she did not hear him go out, but that it was possible. Dowell explained to Dorothy that they were going to arrest the plaintiff in relation to breach of the intervention order against Gerada. The police asked Dorothy where the plaintiff's bedroom was, and Dorothy pointed in the direction of the hallway.

65 Hughes said that the three police then walked down the hallway to the bedroom. Trebilcock entered first, and turned on the light switch. Hughes stood closest to the window, and Dowell was at the doorway. Trebilcock was in the middle at the foot of the bed. The plaintiff was in bed, and his doona was pulled up to his face. Trebilcock told him to get up, because they needed to speak to him. The plaintiff said, "Who do you think you are coming into my room, get out of my room, get out of my house". The plaintiff was yelling. He pushed the doona back, and sat up on the right hand side of the bed, yelling at the police to get out of the house. Trebilcock repeatedly tried to tell Biddle why they were there. He said "You are under arrest for breaching an intervention order, and we also need to apply for a family violence safety notice". Trebilcock said that a number of times to the plaintiff, who was repeatedly yelling at the police to get out of his room and out of the house.

66 Hughes said that the plaintiff then stood up, and asked Dowell and him to leave the room. The plaintiff said, "I'll fight this big bloke". He walked towards Trebilcock and did a phantom punch with his left fist in an upper cut, while slapping his left bicep with his right arm. His fist ended close to Trebilcock's face. Trebilcock stepped backwards a bit, but did not physically respond. The plaintiff challenged Trebilcock to fight him. He then calmed down and said he would leave the room. He said "Come on then", and went to walk to the doorway.

67 Hughes said that Dowell walked out of the door first, followed by the plaintiff, and then himself, with Trebilcock last. After Hughes had proceeded through the doorway, Biddle turned around, reached past him, and tried to pull the door shut. However, Trebilcock was able to put his foot in the door to prevent it closing. A struggle then ensued. Hughes tried to hold Biddle's right arm. Trebilcock got in front of him, and held his left arm. Hughes was wearing latex gloves, and he also was holding a can of capsicum spray in his left hand. The plaintiff was thrashing about. Trebilcock had hold of his left arm, and began pulling him down the hallway. Hughes was holding his right arm and was trying to push him. Trebilcock then went into the office, holding the plaintiff's left arm. The plaintiff managed to get his right hand free, and to hold onto the architrave. Hughes then pried his arm loose.

68 Trebilcock then dragged the plaintiff by his left arm through the office. Trebilcock got the plaintiff into a bear hug. They lost balance, and fell onto an ice cream freezer on the customer side of the counter near the door. They both went to ground, and fell side by side. Hughes attempted to hold the plaintiff's legs to restrain him. He was thrashing about. Hughes was concerned that the plaintiff would kick him. Hughes transferred the capsicum spray to his right hand, and deployed a short burst at the plaintiff's head. It struck the back of his head, and did not appear to have any effect.

69 Hughes said that within a few seconds Dowell sprayed the plaintiff's face and neck area. He said that the spray did not contact the inside of the plaintiff's right thigh. Hughes was holding the plaintiff's legs, and he immediately would have been sprayed if that had occurred.

70 As a result of the effects of the spray, Trebilcock started to cough and splutter. He let go of the plaintiff's arm, and went to the doorway to get some air. Dowell and Hughes assisted the plaintiff outside the doorway of the porch. He was seated on the porch area. He told them that he had an injury to his shoulder. Accordingly, Hughes and Dowell used two sets of handcuffs, linked to each other, to handcuff his arms behind his back.

71 Hughes said that Dowell and he then walked the plaintiff to the hose. Trebilcock used the hose to wash the plaintiff's head and face. He instructed the plaintiff to lean forward, so that the water with the capsicum spray would not run down his body. After a few minutes, the plaintiff said in an aggressive manner, "While you're cleaning my face, you now can wipe my arse", and he defecated in his underpants. Trebilcock told him that he had been silly, and told him that they would have to clean him up. Trebilcock instructed Dowell to step away, and he then put the hose down the rear of the plaintiff's underpants to clean them.

72 Hughes said that after the plaintiff was cleaned, Dowell and he removed the handcuffs from him. The plaintiff was placed in the rear of the divisional van. He had towels and water in the divisional van with him that had been provided by Dorothy. Hughes left separately in the police car, while Trebilcock and Dowell went in the divisional van. Hughes arrived at the Shepparton Police Station at about midnight. The plaintiff was already in the cells. Subsequently, Hughes was present when Dowell interviewed the plaintiff at the charge counter. The interview was not recorded, and Dowell took notes. Between 2:00am and 3:00am, Hughes was present at the remand hearing before the bail justice, at which bail was refused. Hughes did not attend the Wangaratta Court on the next day.

73 In cross-examination, Sergeant Hughes confirmed that, after Quinn had spoken to Trebilcock on the evening of 19 April, Dorothy had telephoned and spoken to Trebilcock. He understood that Dorothy told Trebilcock that the plaintiff was intoxicated, and that she would put him to bed. Hughes said it did not strike him as being strange, when Gerada telephoned at 10:00pm to say that Biddle was intoxicated outside her house. Hughes said that when they then spoke to Gerada, she told them that she recognised the plaintiff by his voice. He was concerned about Dorothy's safety at that stage, because the plaintiff had been allegedly in front of Gerada's house, whereas earlier Dorothy had said she was putting him to bed. Trebilcock had told Hughes that Dorothy had said that the plaintiff had been violent to her in the past. The fact that the plaintiff was out the front of Gerada's house meant that Dorothy did not have control of the plaintiff, and he was not asleep. Accordingly, Hughes considered that it was necessary to take action to protect Dorothy as well as Gerada.

74 Hughes confirmed, in cross-examination, that the telephone call from Gerada was received at 10:00pm. When they attended at the caravan park at 10:27pm, the plaintiff was in bed. Hughes did not then consider how the plaintiff could have got back from Gerada's premises at 258 High Street in the intervening period. When the police attended at the plaintiff's bedroom and saw him in bed, Hughes did not raise the possibility in his mind that Gerada might have been wrong in identifying the plaintiff as a person out the front of her address. Hughes agreed that he knew that the plaintiff had been with Quinn earlier in the evening. However the police did not speak to Quinn to ascertain whether he might have driven the plaintiff to Gerada's house. Hughes agreed that, in hindsight, the police probably should have attempted to speak to Quinn before arresting the plaintiff. Hughes also agreed that before they entered the plaintiff's bedroom, none of the police asked Dorothy whether she had heard the plaintiff come inside before they arrived. Nor did the police check the doors to the premises to see whether they were locked.

75 Hughes stated that when they attended at Gerada's house, she said something about the plaintiff interfering with her gate. However, he did not inspect the lock on the gate. He agreed that he should have checked the lock on the gate, to see if it was consistent with what Gerada had said. However, he was not the primary investigator in relation to that incident. He knew that it was alleged that the plaintiff had made two telephone calls to Gerada in breach of the intervention order. However, Hughes did not inspect Gerada's telephone to see whether the calls were made. Hughes agreed that when they arrested the plaintiff, they had not made any other investigation apart from speaking to Gerada. He agreed that, in hindsight, the police should have spoken to Quinn, particularly when they learnt that the calls were made to Gerada's phone from Quinn's telephone.

76 Hughes reiterated that, when they were in the plaintiff's bedroom, Trebilcock told the plaintiff that he was under arrest for breaching the intervention order, and that the police also would need to apply for a family violence safety notice. He agreed that there was no reference to obtaining a family violence safety notice in his witness statement. He stated that at no time did the police discuss with Dorothy their intention to apply for such an order, and they did not give her any opportunity to comment on that.

77 Hughes reiterated that after Dowell, the plaintiff and he had gone out of the bedroom into the hallway, the plaintiff reached behind him and grabbed the door handle to pull it shut. He was unable to say where Trebilcock was at that time, or how the plaintiff was able to close the door to the point where Trebilcock got his foot in the door to prevent it shutting.

78 Hughes stated that he had removed the can of capsicum spray from the scabbard on his belt before entering the house. He disagreed that he could have left it in his pocket, because it could have fallen out. He tried to restrain the plaintiff by holding him with his right arm, and also with his left hand, which was also holding the can of capsicum spray.

79 Hughes said that he had placed the can of capsicum spray in his pocket when he exited the divisional van. He said that he had been trained in operational skills training that it may be useful to have a capsicum spray canister in his hand in any situation in which violence might occur.

80 Hughes stated that when Trebilcock led the plaintiff into the office, he himself did not know that they were going to head out of the house in that direction, rather than through the lounge room. He did not ask Trebilcock why they were headed in that direction. He did not know whether the office door was locked or unlocked, or whether it could be opened from the inside without a key. Trebilcock had his arms around the plaintiff in a bear hug, and they lost balance and bumped into the ice cream freezer beside the wall. He agreed that in his statement he did not mention anything about bumping into the ice cream freezer.

81 Hughes agreed that when the police found the plaintiff in bed, they should have considered whether that meant that Gerada's identification of him might be flawed. He agreed that no-one tried to ask the plaintiff how long he had been in bed, but he said that the plaintiff was yelling and verbally abusive and very difficult to speak to.

82 Hughes stated that he pressed the button on the capsicum spray canister, because he was worried about being kicked by the plaintiff. He agreed that he had not said in his statement that he was worried about being kicked by the plaintiff. He agreed that the plaintiff was then in bare feet.

83 Hughes denied that the plaintiff was dragged across the porch. He and Dowell assisted the plaintiff to his feet, and to walk outside. At that stage, the plaintiff was completely cooperative.

84 Sergeant Hughes agreed that when the police arrived at the plaintiff's house, they did not discuss with Dorothy their concerns about her safety. He said that the decision to take the plaintiff into custody was made by Trebilcock, on the basis of the information that he had received when he spoke to Dorothy on the telephone. The plaintiff was taken into custody, because of the incident at Gerada's that night. After Trebilcock had spoken to Dorothy, he expressed concern about her safety. He made the decision not to attend, but they considered that there was a risk that something might happen. After the report of the plaintiff's conduct was made by Gerada, Trebilcock made the decision as to the course of action that was to be taken.

85 Hughes was cross-examined about the statement that he took from Quinn. He agreed that there are a number of contradictions in it, and that that statement should have led to a number of inquiries concerning Quinn's conduct. He said that he took the statement on behalf of Dowell, who was the informant, and it was for Dowell to make any follow up investigations.

86 The second witness for the defendants was the second defendant, Leading Senior Constable Michelle Dowell. In her evidence she stated that between 2008 and 2011 she had been stationed at Euroa. For almost one half of that period, she had performed temporary duties, at various times, with the Seymour Sexual Offences and Child Abuse Investigation Team (SOCAIT). That unit investigates the more serious offences of child abuse, and sexual offences relating to children and adults.

87 Dowell's first contact with the plaintiff was on 9 April. On that day, Gerada told her that the plaintiff had been telephoning her ex-father in law and ex-husband and they did not want to receive any further calls from him. As a result, Dowell had a short telephone conversation with the plaintiff. On the next day, 10 April, Dowell received a further telephone call from Gerada's ex-husband, stating that the plaintiff had contacted him. As a result, she attended the caravan park, and then told him that he must not contact Gerada's father in law again. When she left, the plaintiff ran out after her and called out to her.

88 In the afternoon of 10 April, the Euroa Police Station received a telephone call from the psychiatric nurse at the Goulburn Valley Area Mental Health Service. She was concerned about the plaintiff's welfare, as he had made threats against Dowell and Hughes. Dowell then described how she attended the caravan park in company with Hughes, and Leading Senior Constables Lynch and Kucia.

89 During that attendance, Dowell spoke with Dorothy. She said that during that time the plaintiff was verbally abusive to Dorothy and yelling at her. While she was talking to Dorothy, the plaintiff yelled at her, "Dorothy get over here", and immediately Dorothy went to him. On another occasion, he yelled at her to make him a cup of tea. Dowell stated that each time the plaintiff yelled at her, Dorothy appeared to be on edge. She formed the view that Dorothy was a victim of controlling behaviour by the plaintiff. Dorothy told her that she had been dealing with the plaintiff's mental health issues over an extended period of time. Dowell suggested that she apply for an intervention order, but Dorothy responded that there would be no point in it, and that her life would not be worth living if she adopted that option.

90 Dowell's next dealings with the plaintiff were on 19 April. At 8:30pm that day, Quinn telephoned and spoke to Trebilcock. At the conclusion of the conversation, Trebilcock stated that Quinn had said that the plaintiff was drunk and causing trouble at the caravan park, and Quinn had requested the police to attend. As a result, Hughes and Dowell spoke with Trebilcock in some depth about the plaintiff's aggressive and unpredictable behaviour. Dowell expressed the view that he could become violent. The police intended to attend the caravan park. However, Dorothy then telephoned, and Trebilcock spoke to her. At the conclusion of that conversation, Trebilcock stated that Dorothy did not want the police to attend, she felt she could manage the plaintiff, and put him to bed. Trebilcock was worried, because Dorothy sounded frightened on the telephone. Trebilcock was concerned about her well-being. The three police defendants discussed the situation, and decided it would be better to let Dorothy try to put the plaintiff to bed. However, Dowell stated that they were uneasy about that decision. They agreed that if there were any more telephone calls relating to the plaintiff that they would attend.

91 At 10:00pm on 19 April, Euroa Police Station received a call from D 24 to attend Gerada's premises in Violet Town in relation to a breach of an intervention order. As a result of that call, Dowell concluded that the plaintiff had not gone to bed. Accordingly, she considered that Gerada, and Dorothy, were each at risk.

92 The three police defendants then attended Gerada's premises. Gerada told Dowell that the plaintiff had been at the gate of her property, and he had tried to open the chain on the gate. When she called out "Who's there", the response was "It's Geoff". Gerada said that she recognised the plaintiff's voice. She also said that she saw the plaintiff and recognised him by sight. She said there had been a couple of unanswered telephone calls from a number that she did not recognise. Dowell looked from the balcony where Gerada had been standing towards the gateway. It was a moonlit night and Dowell could see the gateway. Gerada appeared to be afraid and shaking. Dowell considered that she was telling the truth.

93 As a result of speaking to Gerada, it became clear to Dowell that Dorothy had not managed to put the plaintiff to bed. She said that therefore the three police defendants considered that both Gerada and Dorothy were at risk. As the plaintiff's behaviour had deteriorated over the previous month, they were concerned for Dorothy's welfare.

94 Dowell stated that they then attended the caravan park. Trebilcock knocked on the lounge room door. When Dorothy opened the door, Dowell asked her where the plaintiff was. Dorothy responded that he was in bed. Dowell asked Dorothy if the plaintiff could have gone out, and Dorothy said, "He could have, he could have gone out the back door, he could have gone out the front door, I've been dozing". Dowell asked her if the plaintiff had been drinking, and she said he had had a couple of beers at the pub.

95 Trebilcock then asked Dorothy where the plaintiff's bedroom was, and she indicated down the hallway. Dowell asked Dorothy to stay in the lounge, because she did not want her to become involved in the arrest. Dowell said that the three police defendants had decided to arrest the plaintiff while they were at Gerada's house, and also to issue a family violence safety notice in respect of him.

96 Dowell stated that after the three police entered the room, Trebilcock said "Bryan get up we need to speak with you". None of the police at that stage had any physical contact with the plaintiff. As a result of Trebilcock speaking, the plaintiff threw the doona back and swung his legs to the side of the bed. He directed a tirade of abuse at Trebilcock, stating, "Who do you think you are, get out of my room, I ought to smash you". He then lunged at Trebilcock, stating, "I ought to smash you, who do you think you are you big (expletive) ... ". He continued to use expletives. Trebilcock endeavoured to explain to the plaintiff that he was under arrest for breaching an intervention order. Dowell said that Trebilcock remained very composed, notwithstanding the plaintiff's conduct. The plaintiff then lunged at Trebilcock with his raised right fist, and with his left hand he slapped his right bicep. Trebilcock put up his hands and tried to explain why they were there. The plaintiff again stated, "I ought to smash you you big (expletive) ..., who do you think you are coming into my room?" The plaintiff told Hughes and Dowell to leave the room, and he lunged for a second time at Trebilcock. Dowell and Hughes remained in the room. During that time, the plaintiff was also yelling out, "Dorothy get here".

97 After a few moments, the plaintiff said that he would come with the police. He appeared calmer. Accordingly, Dowell left the bedroom, followed by the plaintiff and then Hughes. After the three of them had exited the bedroom, the plaintiff leant past Hughes, and tried to pull the bedroom door closed. Trebilcock pushed the door open, and grabbed hold of the plaintiff. Hughes also took hold of the plaintiff. Trebilcock ended up in front of the plaintiff holding one arm. Dowell got out of the way, so that the other two policemen could bring the plaintiff out.

98 Dowell then went into the office. She moved a chair that was in the way. She went around the desk, and opened the front door. When she turned around, she saw that the plaintiff had hold of the architrave between the hallway and the office with his right arm, and that he was swinging his left arm towards Trebilcock. Trebilcock managed to put his arms around the plaintiff, and during the ensuing struggle they both fell to the ground near the end of the desk. Almost immediately, Hughes deployed his capsicum spray. It hit the plaintiff on the side of the back of the head, and had no apparent effect on him. The plaintiff continued to resist, and was trying to swing his arms to strike Trebilcock. Dowell then deployed her spray. The plaintiff was on the ground, but his head was off the ground. She managed to spray him in the face from a distance of 70 to 80 centimetres. The spray had an immediate effect on the plaintiff. He began screaming, and saying that he was burning. He ceased any further physical resistance, but continued to be verbally aggressive. Dowell said that she activated the capsicum spray because there was a physical altercation between Trebilcock and the plaintiff, with Hughes also involved. They were in a very confined space, and she considered that someone would be injured as a result.

99 Trebilcock also received a dose of the spray, because he was immediately behind the plaintiff's face. He was gasping for breath and went out the front door. Hughes and Dowell grabbed each of the plaintiff's arms, helped him to his feet, and led him onto the front porch. The plaintiff sat down on the porch, and Hughes and Dowell handcuffed him. They each put one set of handcuffs on each of his hands, and joined the links behind his back. Trebilcock asked Dorothy where the hose was, and he walked over to it. Hughes and Dowell walked the plaintiff to the hose. He leant forward, and Trebilcock washed his face with the hose. The plaintiff continued to yell, "You have no right to do this, I ought to smash you for what you have done".

100 While Trebilcock was washing his face, the plaintiff looked at him, and in an angry voice, said "I'm going to shit myself, are you going to clean that up as well?" He then leant forward, and defecated in his underwear. Dowell walked away, dry retching from the odour. Trebilcock put the hose inside the plaintiff's underpants, and washed him out. At that stage, Dorothy was near the front of the house. After the plaintiff was washed, the handcuffs were removed, and he sat in the doorway of the divisional van.

101 Dowell and Trebilcock then drove the plaintiff in the divisional van to Shepparton Police Station. En route, the plaintiff requested to go to urinate. He was taken out of the divisional van so that he could do so.

102 After they arrived at the Shepparton Police Station, the plaintiff was placed into the control of the custody staff at that station. Dowell attended to some paperwork. At 3:00am, she conducted an interview with him at the charge counter. Hughes and another police member, Sergeant Vasilarou, were present. She made notes of the interview, which were tendered in evidence. The plaintiff was then brought before a bail justice, and remanded in custody to the following day.

103 The plaintiff was charged with three charges of breach of intervention order, and three charges of resisting arrest, arising from the events of 19 April. On the next day, Dowell attended at Wangaratta Court. She handed a copy of the family violence safety notice to Dorothy. She told Dorothy she believed that Dorothy was a victim of family violence, and that she needed protection from the plaintiff. Dorothy responded that she had been dealing with the issue for so long it was part of her life. Later in the day, the plaintiff was granted bail with particular conditions. On the application of Dowell, an interim intervention order was also granted against the plaintiff in respect of Dorothy.

104 The case involving the charges arising from the events of 19 April, in which Dowell was the informant, came on for a contest hearing at the Benalla Court in November 2011. On that date, the three charges of breach of intervention order were rolled into one charge, the three charges of resisting arrest were rolled into one charge, and the plaintiff pleaded guilty to both of them.

105 In cross-examination, Dowell stated that, when she attended the caravan park in the afternoon of 10 April, after receiving the telephone call from the psychiatric unit in Shepparton, she noted that the plaintiff was aggressive towards Dorothy. Dorothy told Dowell that the plaintiff had been on medication for some time, and that she had been dealing with his alcohol use and his being on medication. Dowell said that when the plaintiff ordered Dorothy to come to him, she seemed to be quite frightened and nervous, and she immediately responded to his command. Dowell asked Dorothy about their history, and Dorothy responded that the plaintiff had been like that for the whole of their married life. When Dowell raised with her the possibility of obtaining an intervention order, Dorothy stated, "My life wouldn't be worth living, nothing is going to change".

106 Dowell stated that as at 19 April, she considered that the plaintiff had a potential to be violent. He had been charged with an assault relating to Gerada, and he had also broken her window. When Dowell had attended the caravan park on the morning of 10 April, the plaintiff had run after her when she got into the divisional van. Accordingly, on 19 April she told Trebilcock that the plaintiff was unpredictable and had the potential to be violent.

107 She said that she did not believe that Dorothy could manage the plaintiff. Accordingly, when she learnt at 10:00pm that night that the plaintiff was not in bed, but had visited Gerada, she considered that Dorothy had not been able to manage him.

108 Dowell was then cross-examined concerning the inquiries that she had made of Gerada relating to the alleged breach of intervention order by the plaintiff. She said that Gerada had recognised the plaintiff's voice, and had visually identified him in the gateway. She disagreed that it was a dark night. Gerada told her that the plaintiff was wearing dark clothing, but she did not ask Gerada for any further description of that clothing. Dowell said that she considered that Gerada would be able to make an adequate observation and identification of the plaintiff at the front gate, while Gerada was on the balcony at the front of the house. Apart from speaking to Gerada, Dowell did not undertake any other investigation as to the identity of the person who had attended at Gerada's premises that evening.

109 Dowell further stated that when Dorothy told the police that the plaintiff was in bed after the police attended at the caravan park at about 10:27pm, Dowell considered that he could easily have returned home in the intervening half hour. She said that she requested Dorothy to remain in the lounge room while they arrested him, because she did not want Dorothy to be present in the event that the arrest became "physical".

110 Dowell repeated that the plaintiff was arrested in relation to the breach of the intervention order and for breach of his bail conditions. The police defendants had decided to arrest him in order to protect both Gerada and Dorothy. Trebilcock had told Dowell that Dorothy was afraid of the plaintiff. He told Dowell that when he spoke to Dorothy on the telephone shortly before 9:00pm, Dorothy sounded shaky and nervous.

111 Dowell stated that when they went to the plaintiff's bedroom he was told he was under arrest. There was no opportunity to caution him, because the situation became dynamic, with the plaintiff being very aggressive. Dowell did not consider that the plaintiff was intoxicated at that time. Dowell repeated that when she, Hughes and the plaintiff exited the bedroom, the plaintiff tried to pull the door shut. It was put to her that in her answers to interrogatories she had said that the plaintiff had slammed the door in Hughes' face. She maintained that the plaintiff did not slam the door shut, rather he had forcibly pushed the door into Hughes.

112 Dowell stated that she was absolutely certain that when they had arrived at the premises, the three police defendants entered the house through the front lounge door. She was then cross-examined about a part of her witness statement, in which she stated that Trebilcock had pulled the plaintiff "towards the foyer area where we had come through earlier". In cross-examination Dowell said that that part of her statement was incorrectly phrased, and that it should have stated that she, (but not Trebilcock and Hughes) had come through the foyer path earlier to clear a path for the plaintiff to exit the house.

113 Dowell denied saying that, before she deployed her capsicum spray, she said, "Will I spray him?". She said she felt it was necessary to deploy the capsicum spray, because the plaintiff was swinging his arms around and attempting to assault Trebilcock. She felt that someone might get hurt in the confined space. She said that after the plaintiff was sprayed, he complained that it was burning. However, he did not say, "my arse and dick are on fire". Dowell strongly denied that Dorothy at any time came into the office during the struggle there, although the plaintiff was yelling and screaming throughout the incident. Dowell denied that the plaintiff was dragged out of the office by his arms.

114 Dowell agreed that when the plaintiff was placed into the divisional van, Dorothy handed her a clean set of clothing for the plaintiff. They were placed in the divisional van. However, they were not provided to the plaintiff. Dowell believed that she forgot about the clothing when they arrived at Shepparton. She agreed that at Wangaratta Court, Dorothy gave her another set of fresh clothes for the plaintiff. The shoes were inappropriate because they had laces. However, Dowell did not make arrangements for the remainder of the fresh clothes to be given to the plaintiff at that time. Dowell stated that when she spoke to Dorothy at the Wangaratta Court on 20 April, Dorothy confirmed her view that if she got the interim intervention order, life would be more difficult for her.

115 In his evidence, Sergeant Trebilcock stated that he had been a member of Victoria Police since 1988. He was posted to Echuca Police Station on 4 July 2010. On 19 April 2011, he was posted for temporary duties for two weeks to the Euroa Police Station. He had not worked with Dowell or Hughes previously. At that time, Shepparton Police Station had a 24 hour custody facility, with a custody supervisor and watch house keeper. Those facilities did not exist at the Euroa or Violet Town police stations.

116 On 19 April, Trebilcock commenced his shift at 4:00pm. Hughes and Dowell briefed him about persons of interest in Euroa and Violet Town. In that briefing they mentioned the plaintiff. They told Trebilcock that the plaintiff had recently "gone off the rails", and that he would have to be careful in dealing with the plaintiff.

117 Trebilcock stated that at 8:30pm that evening he received a telephone call, which had been made to Euroa Police Station by Bradley Quinn. Quinn told Trebilcock that he was then at the caravan park with the plaintiff, that he was concerned about the plaintiff, who was "going off" and yelling obscenities towards him, that he had been drinking beer with the plaintiff, and that he was concerned that the plaintiff would harm someone or his wife Dorothy. While speaking to Quinn, Trebilcock was able to note down his telephone number. Trebilcock then discussed the contents of that telephone conversation with Dowell and Hughes. They told him that the plaintiff had recently attempted suicide, that he had been assessed at the Shepparton Hospital pursuant to s 10 of the Mental Health Act, and that he had threatened to shoot them.

118 Trebilcock then received a telephone call from Dorothy. She told Trebilcock that there was no need for the police to attend, that she had the plaintiff under control, she could handle the plaintiff, and would put him to bed. She also said that she had in the past been assaulted by the plaintiff, and that she had been injured by him. However, she considered that she could handle the plaintiff in this instance while he was affected by alcohol.

119 At the conclusion of that conversation, Trebilcock spoke again to Hughes and Dowell. He was concerned about the welfare of Dorothy. Ultimately, the three police made a decision that it might be better to permit Dorothy to put the plaintiff to bed, rather than confronting the plaintiff at that time.

120 Subsequently, at 10:00pm, Euroa Police Station received a D 24 call that they were required to attend an address in Violet Town in relation to a complaint by Gerada that the plaintiff had attended her address, and had thus breached an intervention order. Based on that information, on the information that the police defendants had received from Quinn, and on the information that Trebilcock had received from Dowell and Hughes about the plaintiff's previous behaviour, the defendants decided to take a different course of action. Trebilcock stated that it was obvious that Dorothy had not put the plaintiff to bed and that he was out breaching an intervention order. Accordingly, the defendants drove to Gerada's address to confirm the information that had been received from D 24. Dowell and Hughes left in the divisional van, and Trebilcock followed a short time later in the sedan.

121 When Trebilcock arrived at Gerada's premises, Dowell and Hughes were already speaking to Gerada. Trebilcock did not hear any of that conversation. Dowell showed Trebilcock a mobile telephone handed to her by Gerada with a telephone number in it. Hughes recognised the number as that of Quinn. Dowell told Trebilock that she had been told by Gerada that the plaintiff had attended at her residence, and that he had leant over the front gate and called out to her. Gerada had visually identified the plaintiff. She had called out to him, and he had replied with a name "Geoff". Gerada recognised the plaintiff's voice. She was out the front of her house where she could see the plaintiff at the gate. Trebilcock said that he had no reason to doubt the reliability of what Gerada had said to Dowell. He had earlier been told by Dowell and Hughes that the plaintiff was currently on bail for breaching the intervention order. As a result of the information that he was again acting in breach of that order, Trebilcock was concerned for the welfare of both Gerada and Dorothy.

122 Accordingly, it was decided that the police would proceed to the plaintiff's house. Dowell was to speak to Dorothy, because Dowell had previously had a good rapport with her. The police defendants planned to interview the plaintiff for breach of the intervention order and for breach of bail, and to take out a family violence safety notice in respect of Dorothy.

123 Trebilcock stated that when they reached the house in the caravan park, they approached the door to the lounge room. He knocked on the door, and Dorothy answered. Dowell asked Dorothy where the plaintiff was. She responded that he was in bed, and that the plaintiff had been in bed since 9:00pm. Dowell asked her if it was possible that the plaintiff could have been out. Dorothy responded, "He could have, I don't know, I've been asleep on the couch".

124 Trebilcock asked Dorothy where the plaintiff's bedroom was, and she pointed down the hallway. The police defendants then walked into the bedroom. Trebilcock stood at the foot of the bed, Hughes was to his left by the window, and Dowell was by the door. Trebilcock had turned the light switch on. He said to the plaintiff, "Bryan can you get up, I want to talk to you". Immediately, the doona was flung back and the plaintiff sat up. He said, "What are you doing here, get out of here" in a very loud voice. Trebilcock repeated that he needed to speak to the plaintiff and asked him to get up. The plaintiff responded, "Just fucking get out of my house, what are you doing in here, what are you doing fucking dragging me out of bed, I ought to punch you". Trebilcock told the plaintiff that he was under arrest for breaching an intervention order, and that he was also going to apply for a family violence safety notice. The plaintiff flung back the doona, and sat on the side of the bed. He said to Trebilcock, "I ought to punch your fucking head in". The plaintiff then lunged at Trebilcock with his left fist up towards Trebilcock's head, and slapped his left arm with his right arm. He was standing with his face very close to Trebilcock's face. He again told Trebilcock in aggressive terms to get out of his house. Trebilcock repeated that the plaintiff was under arrest, and was required to leave with the police.

125 Trebilcock stated that the plaintiff then raised two fists towards his face in a boxing type stance. They were very close together. Trebilcock deliberately kept calm, and tried to adopt a non-confrontational approach. He told the plaintiff to settle down and repeated that he was under arrest. The plaintiff continued with his threats to punch Trebilcock. He then quietened down, and agreed to walk out, and walked to the door. Dowell exited first, followed by Biddle and then Hughes. Trebilcock started to walk out of the room. As he did so, the plaintiff attempted to slam the door shut while Trebilcock was still in the bedroom, but the door hit Trebilcock's boot. In the hallway, Dowell and Hughes each tried to take hold of the plaintiff. Trebilcock grabbed his arms and shoulders. He noted that the plaintiff was very strong and solid. He yelled out a couple of times, "Bryan you're under arrest". The plaintiff continued to yell at him and shout expletives.

126 The police defendants managed to pull the plaintiff to a door opening on the right hand side of the wall. While they were struggling there, the plaintiff latched onto the door pillar. Trebilcock tried to pull him off it. Trebilcock ended up holding the plaintiff in a bear hug to secure him. In the course of the ensuing struggle, they both fell to the floor, at the end of the counter. Trebilcock fell on top of the plaintiff, then rolled off him. They continued to wrestle, and the plaintiff kept repeating "I'm going to fucking get you, I'm not done with you yet". Trebilcock tried to grab his arms to secure them. The plaintiff was then lying on his stomach. Hughes was behind them. Trebilcock saw Hughes spray the back of the plaintiff's head from a distance of about 90 centimetres. It was a short burst, and did not have any effect on the plaintiff. Dowell then sprayed the plaintiff to the side of his face. Trebilcock was in the line of the spray, and as a result he was also sprayed. He said that capsicum spray does not agree with him, and he could not breathe. He immediately stopped struggling with Biddle, and ran out the front door to get some air.

127 After a short time, Trebilcock saw Dowell and Hughes standing with the plaintiff on the porch. They were handcuffing the plaintiff, using two sets of handcuffs interlinked to each other. After he was handcuffed, the plaintiff was seated on the porch. Trebilcock asked Dorothy for the hose, and Dorothy indicated it to him. The plaintiff was still making threats to Trebilcock and coughing. He was walked over to the hose. Trebilcock turned the hose on, and started pouring water over the top of the plaintiff's head. The plaintiff was slightly bent over at the time. Trebilcock tried to reassure the plaintiff, and told him what the side effects of the spray would be. Trebilcock hosed the plaintiff's face for between two and four minutes. While he was doing that, the plaintiff turned to him and said "Well, while you are cleaning that, I'm going to shit myself and you can wipe my arse". The plaintiff then crouched and defecated in his underpants. Trebilcock stated, "Bryan why did you do that, you're a silly man, we are here to help you". Trebilcock put the hose down the back of the plaintiff's underpants and washed him out. Hughes and he then walked the plaintiff to the divisional van. There were wet towels and a bowl of water there. He was seated on the edge of the divisional van, facing out to get some air. The handcuffs were removed. The plaintiff remained on the back of the van for 10 to 15 minutes.

128 Trebilcock stated that, before they departed the premises, he told Dorothy that they would be taking the plaintiff to Shepparton Police Station. Dorothy gave him a business card with her telephone number on it. Dowell and Trebilcock left the caravan park in the divisional van, with the plaintiff in the back of it, at 11:00pm. En route, the plaintiff wanted to urinate. They stopped the van to enable him to do so.

129 The divisional van arrived at Shepparton Police Station about 40 minutes later. The plaintiff was placed in the charge of the custody supervisor. At 12:30am, Trebilcock telephoned Dorothy. He obtained information from her concerning the plaintiff's medical position, including details as to his medication. He then compiled a report setting out that information.

130 Later that morning, at about 7:00am, Trebilcock telephoned Dorothy from his home. He advised Dorothy as to the nature of the proceedings that would take place at Wangaratta Court that day, and how she could attend there to support the plaintiff. He described the telephone call as a very personal and candid conversation. Trebilcock told Dorothy that they had arrested the plaintiff for her protection. Dorothy said that she had tried to do as much as she could for the plaintiff, but that the system had kept failing the plaintiff. Dorothy said, "Maybe this is the thing that Bryan needs to change". The telephone call lasted for about an hour. It was a very friendly and cordial conversation.

131 In cross-examination, Trebilcock stated that when the police attended at the caravan park and learnt that the plaintiff was then in bed, he was a bit surprised, but he considered that, in the time available, the plaintiff could have returned from Gerada's house and gone to bed. Trebilcock did not have any doubt as to the reliability of what the police had been told by Gerada. Although he himself had not spoken to Gerada, he was satisfied with the information obtained by Dowell and Hughes from her. When Trebilcock noted that the telephone number in Gerada's telephone was that of Quinn, Trebilcock recalled that the plaintiff had been with Quinn earlier that evening.

132 Trebilcock stated that he was not aware that, when the plaintiff had been previously granted bail, on the condition that he not attend Gerada's house, she was then living in Euroa. He was not aware that Gerada had only moved to Violet Town about a week previously. He did not know whether, at that time, the plaintiff knew where Gerada lived in Violet Town. After Dowell and Hughes spoke to Gerada, they did not advise Trebilcock of any description that Gerada had given to them about the person she had sighted at her premises that evening.

133 Trebilcock was confident that when they arrived at the caravan park, he knocked on the lounge room door, and not on the door of the office. He described the door to the office as being a glass sliding door.

134 Trebilcock did not have any recollection as to whether there was a wire screen door to the lounge room. He stated that after they had entered the premises, Dorothy did not offer to fetch the plaintiff herself. In any event, Trebilcock would not have permitted her to do so, because he considered that she was then at risk. Trebilcock was aware of the visit by the police to the plaintiff on the afternoon of 10 April, when the police were able to pacify the plaintiff. It was for that reason that he was determined to adopt a calm and passive manner in the bedroom. He did not want Dorothy to be involved in the arrest, in case the plaintiff reacted in an adverse manner to the arrival of the police.

135 Trebilcock denied that when he entered the plaintiff's bedroom, he grabbed him by the foot, and shook him awake stating, "Hey tough man, hey tough man". He agreed that the plaintiff yelled at him, "Why are you in my room, dragging me out of bed?". Trebilcock denied that he dragged the plaintiff out of his bed. He also denied that he spoke in an assertive manner. Trebilcock stated that he did not deliberately put his foot in the doorway while he was moving around the room, rather it was just a fortunate coincidence that he was walking out the door when it was slammed by the plaintiff and hit his boot. He denied that the plaintiff was on his knees when he was taken down the hallway. He stated that the plaintiff at all times was on his feet. He denied that he put the plaintiff in a headlock. He said that he had held the plaintiff in a bear hug.

136 Trebilcock stated that after the plaintiff and he went to the ground in the office area, he did not hear Dowell asking, "Will I spray him, will I spray him?" He said that when he went out onto the porch to get some fresh air, he did not provide himself with after care with the hose. In fact, he did not use water on himself at all before he left the premises. From previous experience, he found that walking around and breathing fresh air was sufficient to dissipate the effect of the capsicum spray on him. He said that the plaintiff was not complaining as to the effects of the spray on him. Rather, the plaintiff continued with the tirade of abuse directed towards Trebilcock throughout the whole incident. In particular, Trebilcock stated that the plaintiff did not complain that his backside and penis were burning. Trebilcock denied that the plaintiff was sprayed in the anus or the genital area. He said that when he was providing after care to the plaintiff, the diluted spray would have run down from his head to the lower parts of his body. He said that from personal experience, diluted spray can cause pain and discomfort in the lower parts of the body. On that evening, Trebilcock could tell that, as a result of the after care he provided to the plaintiff, the capsicum spray, which was an orange colour, had run down the plaintiff's body.

137 Trebilcock stated that it would have been inappropriate to have the plaintiff showered at the house that night. He was behaving unpredictably and violently. It was safer to convey him to Shepparton, so he could then be showered and cared for in a secure situation. Trebilcock did not see Dorothy providing a fresh set of clothing to Dowell, but he said that he was occupied on the telephone for some time after the plaintiff had been placed in the rear of the divisional van.

138 In answer to questions as to the information that he had at the time that he decided to arrest the plaintiff, Trebilcock referred to the conversation that he had had with Dorothy on the telephone about the plaintiff's behaviour, the fact that the police had decided not to attend the caravan park after Trebilcock had spoken to Dorothy because they expected the plaintiff would be in bed, and then the information from Gerada that, instead, the plaintiff had attended at her house in breach of the intervention order.

139 Trebilcock stated that during all his interactions with Dorothy on the evening, that Dorothy was calm and reasonable. The long conversation he had with her was a friendly and calm conversation. In answer to a question from me, Trebilcock stated that in all his dealings with Dorothy following the arrest, at no time did she express any disapproval in the way that the police had handled the plaintiff.

140 In re-examination, Trebilcock stated that in his opinion the plaintiff was not drunk on 19 April.

141 The final witness for the defendants was Leading Senior Constable Samuel Ireland ("Ireland"). He is a police prosecutor stationed at Seymour Police Station. On 8 November 2011, Ireland was responsible for prosecuting the six charges that had been brought against the plaintiff arising from the events of 19 April. He explained that on that day those charges had been listed for a contested hearing. The plaintiff was represented by counsel and by a solicitor. As a result of negotiations, the three charges of resisting arrest were combined into one charge. Similarly, the three charges of breaching the intervention order were consolidated into one charge. The particulars, of that charge, comprised each of the allegations made against the plaintiff in the three charges originally brought against him, namely, attending at the address of Gerada's house, and twice telephoning her, contrary to the terms of the intervention order that had been made against him. Senior Constable Ireland confirmed that the plaintiff pleaded guilty to those two consolidated charges.

142 Before analysing the evidence that I have summarised, it is convenient to set out the legal principles that apply to the issues that I identified in paragraph 5 above. Those principles are not in dispute, and may be summarised as follows:

(1) In the course of arresting the plaintiff, the police defendants applied force to his person, and by doing so, committed the tort of battery (often misnamed as the tort of assault), unless they acted with lawful justification in doing so.[2]

(2) The plaintiff is not required to prove that the defendants acted without lawful excuse in applying force to his person. Rather, the burden of proof is on the police defendants to establish that they acted with lawful justification in applying force to the person of, and arresting, the plaintiff.[3]

(3) In arresting the plaintiff, the police defendants restrained his liberty, and thereby committed the tort of false imprisonment, unless they acted with lawful justification.[4]

(4) The plaintiff is not required to prove that the police defendants acted without lawful justification in imprisoning him. Rather, the onus of proof is on the defendants to establish, on the balance of probabilities, that they acted with lawful justification in restraining his liberty and thereby imprisoning him.[5]

(5) The three police defendants each acted together to effect a common purpose, namely, to arrest, restrain and imprison the plaintiff. Unless they acted with lawful justification in doing so, they would be liable, as joint tortfeasors, for the actions of each other in committing the torts of battery and false imprisonment.[6]

(6) As I have stated, the police defendants were entitled to arrest the plaintiff under s 124 of the Act, if they believed, on reasonable grounds, that he had committed an offence against s 123 of the Act, by contravening the intervention order obtained against him by Gerada. Similarly, the police defendants were entitled to arrest the plaintiff without warrant for a breach of bail, if they believed on reasonable grounds that he had broken a condition of the bail on which he had been released in respect of the charges laid against him on 7 April. Thus in either case, in order to establish that they acted with lawful justification in arresting and imprisoning the plaintiff, the police defendants must prove, on the balance of probabilities, that they had reasonable grounds for believing that, on the evening of 19 April, the plaintiff had breached the intervention order, or breached his bail, by attempting to telephone Gerada, and by attending outside her home.

(7) Where the police arrest a person without warrant, the police are required to inform that person, upon arrest, that he or she is under arrest,[7] and of the true ground of the arrest. A failure by the police to comply with that requirement will have the effect that the arrest and detention of the person are unlawful, and the police may be liable for battery and false imprisonment at the suit of the person arrested.[8]

(8) However, the person arrested cannot complain if he has not been supplied with that information, if he produces the situation which makes it practically impossible for the police to inform him of the reason for arrest.[9]

(9) In effecting the plaintiff's arrest, the police defendants were only entitled to use such force as was reasonably necessary for that purpose.[10] An assessment of the reasonableness of the conduct of the police must be made in a realistic manner that takes into account the fact that police have to make decisions spontaneously, often in the heat of an emergency and under substantial pressure.[11] The conduct of the police must be evaluated by reference to the particular circumstances which confronted them at the time, and not with the wisdom of hindsight formulated in the comparative calm of a court room.[12]

(10) The fact that a person has been placed under arrest does not, of itself, justify the police handcuffing that person. The police are only entitled to restrain a person by the use of handcuffs if there are reasonable grounds for doing so, such as to prevent that person from escaping, committing an offence, or endangering other persons.[13]

(11) After arresting the plaintiff, the police defendants were required to bring him before a bail justice or a Magistrates' Court within a reasonable time.[14] Section 464A(4) of the Crimes Act 1958 prescribes matters which may be considered by a court in determining what constitutes a reasonable time for that purpose. The court needs to take into account (inter alia) the need to transport the arrested person to a place where facilities are available to conduct an interview or investigation; the period of time reasonably required to bring the person before a bail justice or a Magistrates' Court, particularly taking into account the time of night at which the plaintiff was arrested; and the need for the police first to conduct an interview of the plaintiff. Where that requirement has not been complied with, any detention of the plaintiff after such a reasonable time has elapsed is unlawful.[15]

The decision to arrest the plaintiff: whether the police defendants had reasonable grounds for arrest

143 The first issue is whether the police defendants had a sufficient basis upon which to arrest the plaintiff, without warrant, for breach of the intervention order obtained against him by Gerada, and for breach of bail. In each case, as I have noted, in order that the arrest be lawful, the police defendants must establish that they had reasonable grounds for believing that the plaintiff had breached the intervention order, and bail, by contacting Gerada by telephone, and by attending outside her house at approximately 10:00pm on 19 April.

144 It is not in issue that the defendants each believed that, at about 10:00pm on 19 April, the plaintiff had attended outside the house at which Gerada was then residing at 258 High Street, Violet Town, in breach of the terms of the intervention order and in breach of the conditions upon which he had earlier been bailed. If it were necessary for me to decide that issue, I would be well satisfied, on the balance of probabilities, that each of the three police defendants did believe that the plaintiff had contravened the intervention order, and had breached bail, by attending outside Gerada's premises at that time. The critical issue is whether the defendants had reasonable grounds at that time for that belief.

145 Mr P Lawrie, who appeared on behalf of the police defendants, submitted that each of the three police defendants had reasonable grounds to believe that the plaintiff had breached the intervention order relating to Gerada, and the conditions of his bail. He noted that the defendants were aware of the deteriorating and erratic conduct of the plaintiff over the previous month. They knew of the terms of the intervention order obtained against the plaintiff. On 19 April, the plaintiff had been reported by Quinn to be drunk, abusive and causing trouble in the caravan park. Subsequently, Trebilcock received a telephone call from Dorothy, which left him with serious concerns about her welfare and safety. When the police defendants attended at Gerada's house, she was adamant that it was the plaintiff, who she had seen at her front gate. Subsequently, when the police attended at the caravan park, Dorothy could not preclude the possibility that the plaintiff had left the house after she had seen him go to bed. Mr Lawrie submitted that those circumstances were a sufficient basis for the police defendants to reasonably believe that the plaintiff, on 19 April, had breached the intervention order by attending at Gerada's premises.

146 On the other hand, Mr T Monti QC, who appeared with Mr R Morrow for the plaintiff, submitted that the police defendants did not have reasonable grounds to believe that the plaintiff had breached the intervention order in the manner alleged by Gerada. He submitted that it should have been evident to the police that Gerada's purported identification of the plaintiff, at her front gate, was unreliable. Sergeant Hughes stated in his evidence that it was a dark night. The nearest street light was 53 metres away. Apart from stating that the plaintiff was wearing dark clothing, Gerada did not provide any other visual description of the person who attended at her gate. She purported to also recognise the plaintiff from his voice, but, on her account, the person at the gate had only said three words. Mr Monti also submitted that the police defendants failed to make adequate investigations at the scene, such as by properly checking the locking mechanism on the gate, and by checking Gerada's telephone, to ascertain the times at which the plaintiff was alleged to have telephoned her.

147 Mr Monti also submitted that when the police subsequently attended at the plaintiff's home at the caravan park, some 27 minutes after the alleged sighting of him at Gerada's house, and ascertained that he was then asleep in bed, they should have considered whether the plaintiff, in the time available, could have returned home, evaded detection by Dorothy, and gone to bed. Mr Monti submitted that the police defendants did not properly acquaint Dorothy with the details as to how it was alleged the plaintiff had breached the intervention order, in order to enable Dorothy to account for the movements of the plaintiff at the time at which Gerada alleged that breach occurred. Nor did the police ask Dorothy if the plaintiff knew where Gerada was then living in Violet Town.

148 Mr Monti further submitted that the police defendants should have permitted Dorothy to fetch the plaintiff from his bed, so that he would be given the opportunity, in a calm atmosphere, to explain his whereabouts on that evening. Mr Monti noted that the police did not check the locks on the doors, in order to observe whether the doors to the house could be opened without disturbing Dorothy. In addition, the police, before arresting the plaintiff, did not interview Quinn, to ascertain whether he could shed any light on whether the plaintiff had returned to Gerada's house after being brought home by him. In those circumstances, Mr Monti submitted that the police did not have reasonable grounds upon which to believe that the plaintiff had breached the intervention order obtained by Gerada. In support of that submission, Mr Monti also relied on a number of concessions made by Hughes in cross-examination, about the shortcomings in the investigation of Gerada's complaint.

149 In determining this issue, it is important to bear in mind that it was not necessary for the police defendants, at the time at which they arrested the plaintiff, to have assembled sufficient evidence upon which the plaintiff might be convicted. Rather, it was necessary for them to have sufficient information upon which they might reasonably have believed that the plaintiff had attended at Gerada's premises at 10.00 pm, in breach of the intervention order, and in breach of the terms of his bail.[16]

150 In George v Rockett,[17] the High Court, in construing s 679 of the Criminal Code (Queensland), defined "belief" as "... an inclination of the mind towards assenting to, rather than rejecting, a proposition ... ". In that way, belief is to be distinguished from suspicion. As Vincent J observed in Walsh v Loughnan,[18] "the facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief".

151 The central question, on this aspect of the case, is whether the defendants had reasonable grounds for believing that the plaintiff had breached the intervention order, particularly by attending outside Gerada's premises on that evening. As Kyrou J observed in Slaveski v State of Victoria,[19] the belief of the police member "... must be based on facts that would be sufficient to induce that state of mind in a reasonable person". However, it is not necessary, for this purpose, that the particular facts, relied on by the police member, be capable of being proven by admissible evidence in a court of law.[20]

152 In assessing the question whether the defendants believed, on reasonable grounds, that the plaintiff had breached the intervention order, it is necessary to focus on the nature and quality of the information, that the defendants then had, that was relevant to their assessment of the allegation by Gerada that the plaintiff had attended at her premises on that evening.

153 In considering that question, there would be some force in the contentions made by Mr Monti on behalf of the plaintiff, if the decision of the police defendants, to arrest the plaintiff, was based, and viewed, solely on the facts ascertained by the defendants from the D 24 call made to Euroa Police Station at 10:00pm, and from their subsequent attendance at Gerada's premises that evening. If those facts were viewed in isolation from the preceding circumstances, of which the police defendants had knowledge, it might fairly be concluded that the defendants acted with undue haste, and without making adequate inquiry, before proceeding to arrest the plaintiff.

154 However, the call from D 24, and the attendance on Gerada, did not occur in isolation. Rather, those events must be considered in the context of the facts, which the police defendants knew, relating to the conduct and circumstances of the plaintiff in the period leading up to the call from D 24 at 10:00pm on 19 April.

155 In the preceding month, Dowell and Hughes had become aware of conduct by the plaintiff which was erratic and unpredictable. Some of that conduct was directed by the plaintiff towards Gerada, against whom he apparently had a grievance. In mid-March 2011, Dowell had received a report from Gerada that her tyres had been slashed, and Gerada believed that the plaintiff was the culprit. On 4 April, Gerada obtained an intervention order against the plaintiff. Two days later, she complained to Hughes that the plaintiff had attended outside her address in Euroa, shouting abuse at her. When Hughes spoke to the plaintiff on the telephone, he was uncooperative and verbally abusive. On the next day, Hughes arrested the plaintiff and interviewed and charged him. At the same time, he was also charged with a previous incident, in which he had allegedly thrown a beer stubby at Gerada's front window.

156 Two days later, on 9 April, Gerada contacted Dowell, and told her that the plaintiff had been telephoning her ex-father in law and husband, and making a nuisance of himself. On the next day, Dowell attended at the caravan park to caution the plaintiff to desist from that conduct. As I have already noted, there is a conflict in the evidence as to how Dowell approached the plaintiff on that day. I do not accept the evidence of the plaintiff, and Dorothy, that Dowell was gratuitously aggressive towards the plaintiff when she attended at the caravan park that day. Dowell had no reason to be aggressive. She attended at the caravan park on her own, and, in the circumstances, it would have been foolhardy to indulge in provocative action against the plaintiff, who was already evidencing a degree of erratic behaviour. I have no doubt that Dowell spoke to the plaintiff in a reasonably stern voice, in order to ensure that he understood that he should not continue contacting Gerada's relatives. However, I do not accept the evidence that she was provocative or aggressive in doing so. It is not in dispute that, after Dowell spoke to the plaintiff, he then chased her as she returned to the police vehicle, and shouted some abuse at her.

157 The significance of those events lies particularly in the conduct of the plaintiff after Dowell left the caravan park. The plaintiff became particularly disturbed by his interaction with Dowell, so much so that he telephoned Goulburn Valley Area Mental Health Service, and indulged in an erratic and irate conversation with the therapist. On any view, he stated that, in some way or other, he would shoot the police members, who had offended him. I gained the firm impression that the plaintiff and Dorothy, when they gave evidence about that matter, both sought to understate the level of threat conveyed by the plaintiff over the telephone to the therapist. The contemporaneous note of the therapist is that the plaintiff swore abruptly on the phone, saying that he would kill the police officer, who had come around on that day, if he saw her on the street. The note further states that the plaintiff did not have any guns, but he had access to them, that he would easily obtain them from mates, and that he "can pick up double barrel easily". He said to the therapist that there were two police members, that they were both a pack of "dick heads", that he would not kill himself, but "will shoot one of these C...s" first before killing himself. The therapist noted that the plaintiff was difficult to speak with, he was yelling in an elevated speech, and he was difficult to interrupt.

158 It was that information that was conveyed to the police. When they attended the caravan park on the same day, Dowell and Hughes, together with the two other police officers, adopted a non-confrontational approach. The plaintiff was still aggressive to Dowell and Hughes, and would not permit them to enter the premises initially. Ultimately, he was pacified by another police officer. When Dowell and Hughes entered, Dowell's perception was that the plaintiff was verbally aggressive to his wife, and that he controlled her. I accept that Dowell formed that appreciation of the interaction between the plaintiff and Dorothy. Dowell had a background in investigating abuse and family violence. Whether her perception, of the relationship, at that time, was correct or not, nevertheless I accept that she genuinely formed that view of the manner in which the plaintiff interacted with Dorothy.

159 Those events were followed, four days later, with a visit by the plaintiff to the Euroa Police Station, in which the plaintiff became abusive towards Hughes.

160 That, then, is the background in which the events of 19 April unfolded. It is understandable that, in those circumstances, when Trebilcock commenced his first shift at Euroa Police Station, Dowell and Hughes, in briefing Trebilcock as to the relevant local issues, told him that the plaintiff was a person of whom he might need to be wary.

161 It is in that context that Trebilcock received the telephone call from Quinn at 8:30pm on 19 April. Relevantly, Quinn told Trebilcock that the plaintiff had been drinking, that he was acting in an erratic manner and yelling obscenities, and that Quinn was concerned about the welfare of Dorothy. After that telephone call, Dowell and Hughes briefed Trebilcock in more detail concerning the plaintiff's recent conduct, including that he had attempted suicide, and that he had threatened to shoot them. It is common ground that when Trebilcock then spoke to Dorothy on the telephone, Trebilcock was and remained particularly concerned about her safety, notwithstanding Dorothy's assurances that she would be able to manage the plaintiff and put him to bed. In cross-examination, Dorothy agreed that Trebilcock sounded quite concerned about her safety, and that he kept asking her whether she was sure that the police should not attend. I accept that the concerns held by Trebilcock were well founded and sincere at that time. It is also clear that he conveyed the substance of those concerns to Dowell and Hughes.

162 There is a conflict in the evidence between Trebilcock and Dorothy as to whether Dorothy told Trebilcock, in that conversation, that the plaintiff had previously assaulted her. I am satisfied, on the balance of probabilities, that Dorothy did say something to Trebilcock that caused him to understand that she had previously been the subject of assaults by the plaintiff. Trebilcock was an impressive witness, who, I consider, did not seek to embellish his evidence. It is clear that he was genuinely concerned for Dorothy's welfare on that night. He did not strike me as a policeman who would over-react to information received by him. He was clearly concerned about Dorothy's safety and welfare. On the other hand, in her evidence, as I shall later discuss, Dorothy was, I consider, affected by her powerful sense of loyalty and commitment to the plaintiff. In those circumstances, I accept, on the balance of probabilities, that Dorothy did say something to Trebilcock that conveyed to him that the plaintiff had previously been physically violent to her.

163 Thus, at the time at which the police defendants received the call from D 24 at 10:00pm on 19 April, they each understood that the plaintiff's conduct had been seriously deteriorating over the previous month. He had already contravened the intervention order obtained by Gerada. He had significantly over-reacted to the visit to him by Dowell. His mental state was unstable. Quinn had expressed genuine concerns to Trebilcock about the plaintiff's behaviour at the caravan park less than 90 minutes earlier. Trebilcock, as an experienced police officer, was left with an underlying feeling of concern about the welfare of Dorothy, after he spoke to her shortly before 9:00pm.

164 Those, then, are the circumstances in which the police defendants received the call from D 24, and spoke to Gerada concerning the complaint that she had made that the plaintiff had breached the intervention order. In light of the background circumstances that I have set out, it is understandable that the police defendants were prepared to accept the complaint by Gerada, that the plaintiff had attended outside her premises that evening, without making a more detailed investigation of that complaint. The allegation made by Gerada was consistent with the pattern of behaviour, that the defendants knew the plaintiff had engaged in during the preceding month, and which had been reported to Trebilcock by Quinn only 90 minutes earlier that evening. Based on their understanding of the psychological state, and recent conduct, of the plaintiff, the police defendants were, in my view, justified in concluding that Dorothy had not been able to put the plaintiff to bed, or, alternatively, that he had evaded her surveillance, and had continued to indulge in the type of conduct, in which he had engaged during the previous month.

165 In assessing the inquiries made by the defendants at Gerada's residence, it is important to note that Gerada was well acquainted with the plaintiff, having had a previous relationship with him. She was confident she had seen, and heard, him at the gate. The police did make a cursory investigation of the chain mechanism on the gate. Dowell also observed that the gate was visible from the front porch. In those circumstances, and in the context of the events earlier that evening, and of the preceding month, in my view the police did have reasonable grounds, after speaking to Gerada, for believing that the plaintiff had attended at her premises that night, in breach of the intervention order.

166 I accept that when the police then attended at the plaintiff's home, and found that he was in bed, there might have been some reason for them to revisit their belief that the plaintiff had visited Gerada's premises some 25 minutes earlier. However, the two premises were only 1.25 kilometres apart, and it was by no means impossible that the plaintiff had returned home, and gone to bed, in the meantime.

167 In this respect, there is a conflict in the evidence as to the stage at which Dowell asked Dorothy as to whether the plaintiff could have left the premises without her knowing. I am satisfied, on the balance of probabilities, that Dowell asked Dorothy that question when the police first attended at the premises. As a matter of inherent probability, it is more likely that that question was asked at the outset, rather than (as Dorothy states) during the subsequent arrest of the plaintiff. It is likely that the police, having found the plaintiff in bed, would have been concerned to ascertain, first, whether the plaintiff could have left the premises, and returned, without Dorothy ascertaining that fact. In addition, it is unlikely that that type of question would have been asked of Dorothy during the subsequent arrest of the plaintiff, in which events were unfolding in an unpredictable and dynamic manner. It is common ground that, when Dorothy was asked whether the plaintiff could have left the premises without her knowledge, she replied in the affirmative. Thus, I am satisfied that when the police attended at the premises of the plaintiff, before arresting him, they did make sufficient inquiries as to whether the plaintiff could have attended at Gerada's premises, notwithstanding that he then appeared to be asleep.

168 Based on that analysis of the facts, I am satisfied that the police defendants did have reasonable grounds to believe that the plaintiff had breached the intervention order, and breached bail, by attending at Gerada's premises at 10:00pm on 19 April. Taking into account the context of the previous month, and of the telephone conversations which Trebilcock had with Quinn and Dorothy before the D 24 call was received at Euroa Police Station, I consider that the police defendants acted reasonably in forming the belief that the plaintiff had breached the intervention order, and that in the circumstances it was necessary to arrest and interview him that night.

The manner of the plaintiff's arrest: assessment of the witnesses

169 The second, third and fourth issues, that I outlined in paragraph 5 above, concern the manner in which the plaintiff was arrested by the police defendants. They involve, first, the question whether the plaintiff was told by the police defendants that he was under arrest, and the reason for his arrest, and, secondly, whether the police used unnecessary and disproportionate force in effecting the arrest of the plaintiff, particularly by discharging the capsicum spray at him and putting him in handcuffs. As I have already noted, there is a sharp conflict in the evidence between, on the one hand, the testimony of the plaintiff and Dorothy, and, on the other hand, the testimony of the three police defendants, as to the manner in which the plaintiff was arrested. Before considering the circumstances of the arrest, it is convenient, first, to make some observations as to my assessment of each of those five witnesses in the case. I shall begin that assessment with the plaintiff.

170 Mr Lawrie submitted that the plaintiff was not a credible witness. He referred to a number of matters as a basis for that submission. He noted that the plaintiff had claimed that he was driven away in the divisional van only three to five minutes after he was taken outside the house. That evidence is inconsistent with the evidence of Dorothy and the three police defendants, that at least 15 minutes or more elapsed before the divisional van left the scene. Mr Lawrie submitted that that aspect of the plaintiff's evidence was tailored, in that regard, in order to demonstrate that he was not given any appropriate after care when he was removed from the house.

171 Mr Lawrie also referred to the evidence of the plaintiff that Dowell had directed the capsicum spray can into his mouth, and had struck his front teeth with the canister in doing so. Mr Lawrie contended that that evidence is directly inconsistent with the testimony of Dorothy, and the police defendants. Further, Mr Lawrie referred to the evidence of the plaintiff that his pre-existing shoulder injury was exacerbated by the rough manner in which he was handcuffed, and that he sustained abrasions to his arm when he was dragged over the rough concrete on the front porch. Mr Lawrie pointed out, the plaintiff did not refer to any of those matters when he attended Dr Buckley at the Carrier Street Medical Clinic nine days later.

172 Mr Lawrie also referred to the fact that the plaintiff strenuously denied that he was interviewed by Dowell at the Shepparton Police Station. That evidence of the plaintiff was directly contradicted by the handwritten notes taken by Dowell at the interview, and by the evidence of Hughes that he witnessed the interview. There was no reason for the police to fabricate the interview, since the plaintiff did not make any admissions in the course of it, but, rather, sought to exculpate himself.

173 Mr Lawrie also noted the evidence of the plaintiff, that he was unaware of the address at which Gerada was residing in Violet Town. Mr Lawrie referred to the report of Professor Dennerstein, the psychiatrist to whom the plaintiff was referred by his solicitors in July 2014. In that report, Professor Dennerstein noted that the plaintiff had told her that, after he and Quinn started walking home from the hotel, the plaintiff, at Quinn's request, showed him where Gerada lived. In her report, she also noted that the plaintiff told her that until 19 April 2011, he worked full time, that he had a full time employee and apprentice, and that he owned three trucks and four trailers. In cross-examination, the plaintiff agreed that he did not tell the truth when he spoke to Professor Dennerstein about that matter.

174 Mr Lawrie further submitted that Dorothy Biddle was not a reliable witness. He referred to the inconsistencies between the evidence given by Dorothy to the Wangaratta Court on the hearing of the application for bail by the plaintiff on 20 April, and the evidence that she gave in court. He submitted that, contrary to Dorothy's claim, her evidence before the Magistrates' Court was given in a calm, chronological and coherent manner. In addition, Mr Lawrie referred to inconsistencies in Dorothy's evidence as to the effect of the events of 19 April on the plaintiff's sleeping patterns. In her evidence in this case, she claimed that, whereas the plaintiff used to sleep soundly before 19 April, and that since then he had slept poorly. That evidence, Mr Lawrie submitted, is inconsistent with the medical records of the Carrier Street Medical Centre and of the Goulburn Valley Area Mental Health Service.

175 On the other hand, Mr Lawrie submitted that, throughout the events of 19 April, Trebilcock demonstrated himself to be a responsible police officer, who had acted in a measured and sensible manner. In that regard, he referred to the conduct of Trebilcock after he received the telephone calls from Quinn and Dorothy. He submitted that the decision of Trebilcock, not to intervene at that stage, was inconsistent with the action of a "tough policeman" trying to stamp his authority on the town, at which he had just been stationed. Rather, it demonstrated a conscientious policeman, who was concerned to adopt a responsible and measured approach.

176 Mr Lawrie further submitted that the evidence of all three police defendants was basically consistent. There were some differences between the accounts given by each of them, which might be expected. He submitted that those differences demonstrate that there was no collusion or collaboration between the three police defendants as to the evidence that they would give in court. He further submitted that the police defendants made reasonable concessions in their evidence, which demonstrated that they were not seeking to embellish the accounts which they gave to the court. For example, Hughes, with the benefit of the wisdom of hindsight, was prepared to concede that there were some shortcomings in the investigations, that they had made relating to Gerada's complaint that the plaintiff had breached the intervention order. Similarly, Dowell was prepared to admit that she may have been given a bag of clothing by Dorothy at the scene, notwithstanding that she forgot to provide that clothing to the plaintiff on arrival at Shepparton police station. Dowell accepted that she was derelict in failing to ensure that the plaintiff was provided with that clothing. Mr Lawrie submitted that those concessions, and other concessions, made by each of the three police defendants, demonstrated that they were essentially witnesses of truth.

177 On the other hand, it was contended, on behalf of the plaintiff, that there were a large number of significant differences and inconsistencies between the evidence given by each of the three police defendants. Mr Morrow addressed me in some detail relating to those matters. He particularly pointed to the following differences. The evidence of Hughes on the one hand, and Dowell on the other hand, were different as to their perceptions of the conduct of the plaintiff towards Dorothy when they attended at the caravan park on 10 April. Hughes did not observe any verbal aggression by the plaintiff towards Dorothy, whereas Dowell considered that the plaintiff controlled Dorothy, who seemed afraid of him. Next, Mr Morrow submitted that there were important differences between the evidence of the three police defendants as to the content of the telephone call made by Quinn to Trebilcock on the evening of 19 April. In particular, while Trebilcock stated that Quinn told him that he was concerned that the plaintiff might harm Dorothy, neither Hughes nor Dowell stated that that matter was conveyed to them by Trebilcock. Further, it was submitted, there were important differences in the evidence of the police defendants relating to the telephone call that Dorothy made to Trebilcock. On the one hand, Dowell stated that she was told by Trebilcock that Dorothy sounded frightened on the telephone. On the other hand, Trebilcock did not, in his evidence, refer to the fact that Dorothy sounded frightened on the telephone. Hughes did not say that he was told by Trebilcock that Dorothy sounded frightened.

178 Mr Morrow next referred to the fact that, while Hughes considered that the plaintiff was intoxicated when he was arrested, neither Trebilcock nor Dowell considered that that was the case. In that respect, Mr Morrow referred to the evidence of Dorothy and the plaintiff who both said that he was intoxicated at that time. Mr Morrow next referred to differences between the evidence of Dowell, on the one hand, and Hughes, on the other hand, as to their observations of the lighting, and their recollection of what Gerada told them, when they attended at Gerada's residence. In addition, Dowell stated that Gerada seemed to be afraid and was shaking, but Hughes gave no such description of Gerada's demeanour. Further, when the police attended at the plaintiff's home in the caravan park, there were some differences between the recollections of each of the three police defendants as to what Dorothy stated to them, when Dowell asked her if the plaintiff could have left the premises without her knowing. Mr Morrow also referred to differences between the three police defendants as to whether the basis, or one of the bases, upon which they decided to take the plaintiff into custody, was in order to be able to apply for a family violence safety notice against him.

179 Next, Mr Morrow referred to differences between the evidence of Trebilcock, on the one hand, and Dowell and Hughes on the other, as to whether the plaintiff, when woken in his bedroom, told Dowell and Hughes to leave the room, so that he could fight Trebilcock. Mr Morrow observed that only Dowell gave evidence that she heard the plaintiff call out, "Dorothy get here".

180 Mr Morrow also submitted that there were inconsistencies in the evidence of the police defendants, as to the allegation that the plaintiff tried to shut the bedroom door after Dowell, Hughes and he had walked out of the bedroom. Hughes in his evidence stated that the plaintiff tried to pull the door shut, whereas in his witness statement, and in his day notes, he said that the plaintiff tried to slam the door shut. Similarly, Dowell, in her answers to interrogatories, referred to the plaintiff slamming the door shut. Mr Morrow contended that that difference was important, because the evidence reveals the door opens inwards to the bedroom, and not out into the hallway.

181 Mr Morrow next referred to differences in the accounts given by the police defendants as to the struggle which occurred in the office. He noted that Dowell, in her witness statement, made no reference to the fact that the plaintiff had fallen to the ground before the capsicum spray was deployed. Mr Morrow also referred to the fact that there were some differences between the accounts given by each of the three police defendants as to precisely where the plaintiff fell in the office, and as to whether Trebilcock fell on top of him, or beside him. Mr Morrow also contended that there were important differences in the evidence of the police defendants as to whether the plaintiff subsequently complained of the effects of the capsicum spray. Hughes, in his evidence, stated that the plaintiff complained that he was burning, and the plaintiff was coughing and spluttering. On the other hand, Trebilcock stated that the plaintiff did not complain as to the effects of the spray.

182 Mr Monti then made submissions concerning the plaintiff and Dorothy as witnesses. He accepted that the plaintiff was not an entirely satisfactory witness. However, his conduct, particularly in cross-examination, was attributable to the fact that he has suffered, and continues to suffer, from longstanding psychological issues which affect the manner in which he responds when he is questioned. Nevertheless, he submitted that I should accept that the plaintiff was basically an honest witness. Mr Monti acknowledged that the plaintiff had not told Professor Dennerstein the truth when he said that he did not previously have any psychiatric illness, and that he had worked until 19 April 2011. He submitted that I should accept that the plaintiff knew that he was a failure, and that he was embarrassed to tell Professor Dennerstein the truth in that respect.

183 On the other hand, Mr Monti submitted that Dorothy is a woman of integrity, intelligence and patience. She did not bear any grudge against the police members, and throughout her life she has demonstrated an attitude of respect for members of the police force.

184 Mr Monti noted that Dorothy was able to hear everything that occurred after the police defendants had entered the house, and while they were arresting the plaintiff. When the police defendants brought the plaintiff out of the bedroom, she was able to observe his progress down the hallway, and into the office. Mr Monti submitted that Dorothy's evidence supported the testimony of the plaintiff as to the manner in which he was arrested and removed from the house. He contended that the plaintiff acted aggressively towards the police defendants, when they awoke him in his bedroom, because they did not tell him he was under arrest, or explain why they were there. At no time did Dorothy hear the police defendants tell the plaintiff that he was under arrest, or why they were removing him from the house.

At a glance

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Judgment (311 paragraphs)

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Legislation Cited (24)

Cases Cited (5)