As stated above, the plaintiff brings claims for damages against the defendant in the torts of assault, battery, false imprisonment and malicious prosecution. Aggravated and exemplary damages are also sought in relation to each of the torts pleaded.
[2]
Croucher v Cachia [2016] NSWCA 132
In Croucher v Cachia [2016] NSWCA 132, the Court of Appeal considered an altercation between two neighbours which led to one being seriously injured by gardening shears wielded by the other. The injured party brought actions in battery and negligence in the alternative. The defendant denied that he intentionally or negligently injured the plaintiff. The Court of Appeal considered the application of Section 3B(1)(a) of the Civil Liability Act 2002 (NSW) ("CLA").
Sections 3B(1)(a) and 21 of the CLA provide as follows:
"3B Civil liability excluded from Act
(1) The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows:
(a) civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person - the whole Act except:
(i) section 15B and section 18 (1) (in its application to damages for any loss of the kind referred to in section 18 (1) (c)), and
(ii) Part 7 (Self-defence and recovery by criminals) in respect of civil liability in respect of an intentional act that is done with intent to cause injury or death, and
(iii) Part 2A (Special provisions for offenders in custody)."
"21 Limitation on exemplary, punitive and aggravated damages
In an action for the award of personal injury damages where the act or omission that caused the injury or death was negligence, a court cannot award exemplary or punitive damages or damages in the nature of aggravated damages."
In Croucher v Cachia Leeming JA gave the leading judgment. Beazley P and Ward JA agreed with Leeming JA's reasons.
Leeming JA stated the following in relation to the application of Section 3B to the facts of that case at paragraphs [31]-[35] and [115]-[118]:
[31] The consequence of s 3B(1)(a) (noting that no question of sexual assault or sexual misconduct arises in this litigation) is that a key question is whether Mr Croucher is liable "in respect of an intentional act that is done by the person with intent to cause injury or death". If so, then various limiting provisions on damages in the Act, including the prohibition upon exemplary damages in s 21, cease to apply.
[32] The primary judge did not mention s 3B(1)(a). Her Honour adopted the approach which appears to have been common ground between the parties that the effect of s 3B(1)(a) was that most of the provisions of the Civil Liability Act did not apply to the alleged battery (irrespective of how it was established), but did apply to the alleged negligence (irrespective of how it was established). It may be that paragraph 7 of the pleading was drafted with a view to achieving those results, although if so it would have been preferable to refer to the section in terms and not to depart from the statutory language.
[33] There is some subtlety in the application of s 3B(1)(a) and s 21. It will be seen that s 3B(1)(a) does not operate upon the particular cause of action, but instead upon the particular act which gives rise to the civil liability and the intent of the person doing that act (I pass over the question whether and if so how s 3B(1)(a) applies to intentional omissions to act). This was the point made by Basten JA in Dean v Phung [2012] NSWCA 223 at [10]: "the statutory scheme is not identified by reference to a particular cause of action".
[34] A cause of action in battery may be established where the defendant's conduct is either intentional or alternatively merely negligent. The former would engage s 3B(1)(a) and the latter would not. In other words, the language of "intentional tort" is an unsafe guide to whether s 3B(1)(a) is engaged; it is necessary instead to look at the character of the underlying conduct, as explained in White v Johnson [2015] NSWCA 18 ; 87 NSWLR 779 at [132].
[35] Not only is s 3B(1)(a) directed to the character of the conduct rather than the nature of the cause of action; the same is true of s 21, even though that section refers to "negligence". It is to be recalled that "negligence" is defined in s 5 more broadly than the tort to mean "failure to exercise reasonable care and skill". That definition is expressed to be only for the purposes of Part 1A. An identical definition is likewise given in s 27 for the purposes of Part 3. Section 21 is in Part 2, in which Part "negligence" is not defined. However, it has been held that s 21 is to be read as extending to all cases, however pleaded, where damages are awarded flowing from a failure to exercise reasonable care and skill: New South Wales v Ibbett [2005] NSWCA 445 ; 65 NSWLR 168 at [118] (Ipp JA) and [200]-[209] (Basten JA). (I shall put to one side how s 21 applies to the circumstances identified by Gleeson CJ, McHugh, Gummow and Hayne JJ in Gray v Motor Accident Commission [1998] HCA 70 ; 196 CLR 1 at [22]: "there can be cases, framed in negligence, in which the defendant can be shown to have acted consciously in contumelious disregard of the rights of the plaintiff".)"
…
"[115] As noted above, s 3B(1)(a) excludes the applicability of many sections of the Civil Liability Act to "civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death".
[116] Her Honour appears to have proceeded implicitly on the basis that the cause of action in battery is one which engages s 3B(1)(a) and therefore is not subject to the limitations of the Civil Liability Act. Section 3B(1)(a) would undoubtedly apply if there were a finding that Mr Croucher had intended to injure Mr Cachia, but on balance I consider that the better reading of the judgment is that her Honour found merely that he was recklessly indifferent to the prospect that opening and shutting the shears and thrusting them at Mr Cachia would cause injury.
[117] It is far from clear that conduct which is reckless, even if it amounts to an "intentional tort" such as battery, engages s 3B(1)(a). It is perfectly clear that a battery which involves merely negligent conduct will not engage s 3B(1)(a). This is because, as noted above, s 3B(1)(a) looks to the nature of the conduct found to occur, rather than to the cause of action which has been pleaded.
[118] Basten JA referred to the "somewhat awkward terminology of s 3B" in New South Wales v Ibbett [2005] NSWCA 445 ; 65 NSWLR 168 at [197]. In Hayer v Kam [2014] NSWSC 126, when dealing with a strike out application, Hoeben CJ at CL expressed the view that, subject to authority, he would have accepted the submission that s 3B(1)(a) "excluded any reliance upon concepts such as 'recklessness'": at [38]-[39], a view which I regard as being not without force. However, even so his Honour regarded an allegation of recklessness as sufficiently arguable not to be struck out. It may also be noted that D Villa, Annotated Civil Liability Act 2002 (NSW) (2nd ed, 2013, Lawbook Co) at 55-56 notes that the position is unclear but expresses the view that "it would be consistent with the purpose of the exclusion that recklessness be sufficient for the purposes of s 3B(1)(a)" [emphasis added].
Accordingly, it appears from that authority that unless it could be established that the civil liability of a person in respect of an intentional act was done by the person with intent to cause injury or death or perhaps recklessly, an intentional act tort only negligently causing injury would fall within the CLA. That is because Section 3B(1)(a) of the CLA looks to the nature of the conduct found to have occurred, rather than to the cause of action which has been pleaded. I generally accept the plaintiff's written submissions in chief on this issue at [198]-[199].
In the present case, as I have found above, I do not accept that Constable Blades and the other police officers involved, pushed the plaintiff into the police van intending to cause him injury. Neither is there evidence, in my opinion, to suggest that they acted recklessly in that regard. Accordingly, in relation to any injury arising from the plaintiff being pushed into the police van, that would appear to have been done negligently and thus the CLA applies. This will be considered further below.
The other torts all seem to involve intentional acts not causing negligently inflicted injury and would thus fall outside the CLA. Counsel for the plaintiff accepted in oral submissions that any battery arising from an unlawful arrest did not cause any actual injury and was properly to be considered as a fact which was part of the alleged tort of false imprisonment.
The decision in Croucher v Cachia also provides guidance in relation to the torts of battery and trespass to the person. Leeming JA stated the following at paragraphs [20]-[25]:
"[20] Battery is one of three forms of trespass to the person, the others being assault and false imprisonment. While it is conveniently and conventionally labelled as an "intentional tort", in contrast with negligence, such labels can obscure the necessary analysis of (a) the elements of the tort and (b) how the tort is affected by statute. As it is put in Clerk & Lindsell on Torts (20th ed, 2010, Sweet & Maxwell) at 986, "in this context 'intention' has a very particular meaning".
[21] A defendant who directly causes physical contact with a plaintiff will commit a battery unless the defendant proves that the defendant was "utterly without fault". The requisite direct contact will be present if the defendant uses an instrument (such as gardening shears): Darby v DPP [2004] NSWCA 431 ; 61 NSWLR 558 at [73].
[22] Although battery is an intentional tort, a battery may occur when the defendant is merely negligent. It was in those circumstances that a unanimous High Court said in Williams v Milotin (1957) 97 CLR 465 at 474 that "[i]t happens in this case that the actual facts will or may fulfil the requirements of each cause of action" (ie battery and negligence).
[23] Within the allegations concerning battery, Mr Cachia's pleading alleged that "[t]he attack was intentional and designed to inflict serious injury" (para 7). That allegation was, strictly speaking, unnecessary in order to establish liability (although, arguably, the allegation was intended to engage s 3B(1)(a) of the Civil Liability Act thereby permitting the award of damages at common law including exemplary damages - see below). It is clear law in this country that trespass to the person caused by a blow does not require the plaintiff to prove anything about intention. I cannot put the point more clearly than did Jacobs JA, with Manning and Moffitt JJA agreeing, in Timmins v Oliver (unreported, New South Wales Court of Appeal, 12 October 1972). Jacobs JA was writing three months after the commencement of the Supreme Court Act 1970 (NSW) which would bring to an end common law issue pleading refined by Baron Parke which had been said by Cotton LJ, shortly after it had been abolished a century earlier in England, in Spedding v Fitzpatrick(1888) 38 Ch D 410 at 414, to "conceal as much as possible what was going to be proved at the trial". Jacobs JA rejected a demurrer to two bare declarations alleging that the plaintiff had sustained injuries from the defendants driving a motor boat against him, saying:
"Nothing more has ever been required in an action based on trespass than an allegation of the battery and it is too late in the day to change this now. … Can we as the curtain falls for the last time on declarations in trespass which have held the stage for centuries say that the play has all this time been played wrongly and according to a bad script? I think not."
[24] The fact that the onus lay on the defendant, and the nature of what was required to be proven, was explained by Windeyer J in McHale v Watson (1964) 111 CLR 384 and by Street CJ (with whom Ferguson and James JJ agreed) in Blacker v Waters (1928) 28 SR (NSW) 406 at 410, in both cases tracing the matter back to Weaver v Ward (1616) Hob 134 ; 80 ER 284. There it was said that no man may be excused of a trespass "except it may be judged utterly without his fault". The position in this respect is essentially unchanged four centuries later.
[25] As Gummow J said in Stingel v Clark [2006] HCA 37 ; 226 CLR 442at [47]:
"[I]n McHale v Watson, Windeyer J demonstrated that, contrary to the view taken by Diplock J in Fowler v Lanning, in an action for trespass to the person by a blow or missile it was for the defendant to aver and prove the absence of intent and negligence on the defendant's part, rather than for the plaintiff to aver and prove that the defendant acted either intentionally or negligently."
Gummow J dissented in the result, but the statement of principle reproduced above is uncontroversial. Further, "negligence" means, in this somewhat unfamiliar context, an absence of fault on the part of the defendant (this is another way in which "negligent" bears a variety of meanings, depending upon the context: see Paul v Cooke [2013] NSWCA 311 ; 85 NSWLR 167 at [39]-[41])" (emphasis added).
Croucher v Cachia seems to stand for the following relevant propositions:
1. A defendant who directly causes physical contact with the plaintiff will commit a battery unless the defendant proves that the defendant was utterly without fault. In the present case the police officers concerned would have to show that any battery occurred within their lawful authority;
2. Although battery is an intentional tort, a battery may occur where the defendant is merely negligent;
3. Trespass to the person caused by a blow does not require the plaintiff to prove anything about intention;
4. In relation to a trespass to the person, the onus rests on the defendant to show that the trespass was committed by the person utterly without his fault and without negligence;
5. Negligence means an absence of fault on the part of the defendant;
6. The CLA will apply to an intentional tort if the injury to the plaintiff giving rise to civil liability was occasioned by an intentional act without the intention to cause injury or death.
[3]
Relevant Legislation
Sections 99(1)-(3), 230 and 231 of LEPRA in force at the relevant time are as follows:
"99 Power of police officers to arrest without warrant
(1) A police officer may, without a warrant, arrest a person if:
(a) the person is in the act of committing an offence under any Act or statutory instrument, or
(b) the person has just committed any such offence, or
(c) the person has committed a serious indictable offence for which the person has not been tried.
(2) A police officer may, without a warrant, arrest a person if the police officer suspects on reasonable grounds that the person has committed an offence under any Act or statutory instrument.
(3) A police officer must not arrest a person for the purpose of taking proceedings for an offence against the person unless the police officer suspects on reasonable grounds that it is necessary to arrest the person to achieve one or more of the following purposes:
(a) to ensure the appearance of the person before a court in respect of the offence,
(b) to prevent a repetition or continuation of the offence or the commission of another offence,
(c) to prevent the concealment, loss or destruction of evidence relating to the offence,
(d) to prevent harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence,
(e) to prevent the fabrication of evidence in respect of the offence,
(f) to preserve the safety or welfare of the person."
"230 Use of force generally by police officers
It is lawful for a police officer exercising a function under this Act or any other Act or law in relation to an individual or a thing, and anyone helping the police officer, to use such force as is reasonably necessary to exercise the function."
"231 Use of force in making an arrest
A police officer or other person who exercises a power to arrest another person may use such force as is reasonably necessary to make the arrest or to prevent the escape of the person after arrest."
Section 99 of LEPRA in the relevant form applicable in these proceedings was considered recently by the Court of Appeal in State of New South Wales v Robinson [2016] NSWCA 334. The Court stated the following in a joint judgment at paragraphs [31]-[35]:
[31] Section 99 is directed to the circumstances in which an arrest may be effected without a warrant.
[32] Pursuant to s 99(1), a police officer who comes across a crime in the course of its commission, or who encounters a person who has just committed a crime, may arrest the person without a warrant. A police officer may also arrest without a warrant under subs (1) where a person has committed a serious indictable offence for which the person has not been tried. The latter power would be exercisable, for example, if the police officer, upon coming across a person, was aware, or on making inquiries became aware, that the person was a person who satisfied the description in subs (1). This could occur in any number of situations, including where the person was stopped at a random breath testing station, or was in premises the police were entitled to enter.
[33] Pursuant to s 99(2), a police officer may also arrest a person if the police officer suspects on reasonable grounds that the person has committed an offence under any Act or statutory instrument. It is neither necessary nor possible to set out all the circumstances in which or the basis upon which a police officer may reach the required state of suspicion. It would obviously include circumstances in which information had been provided to the police officer or enquiries were made by the police officer which indicated that the person had just committed an offence. The mere fact that information had been provided may not be sufficient in a given situation, as the suspicion must be one that is formed on reasonable grounds. That will be a question of fact in each case.
[34] Section 99(3), unlike subs (1) and (2), does not confer a power of arrest upon a police officer. It operates as a constraint on the powers conferred by subs (1) and (2). A police officer is prohibited from arresting a person for a particular purpose, namely, the purpose of taking proceedings against the person for an offence, unless the conditions stated in s 99(3) are satisfied. Those conditions are:
• the police officer must have a suspicion that it is necessary to arrest the person to achieve at least one of the purposes specified in (a)-(f);
• the police officer must have reasonable grounds for forming that suspicion.
[35] It follows that the State, in order to demonstrate that the police officer complied with s 99(3) of the Act, does not have to establish that it was necessary to arrest the person for the purposes of taking proceedings against him or her for the offence. Section 99(3) is enlivened when a police officer has arrested a person for the purpose of taking proceedings against that person for an offence. In that situation, the arrest is not lawful unless the State establishes that the conditions specified in s 99(3) are satisfied." (emphasis added)
The Court of Appeal also held that whether the arresting officer suspected on reasonable grounds that the arrest was necessary was determined by asking whether the State had established that:
1. The arresting officer honestly believed that the arrest was necessary for one of the purposes set out in Section 99(3);
2. The decision to arrest by the arresting officer, when reviewed afterwards according to the information known to the arresting officer at the time of the arrest, was made on reasonable grounds. See Robinson at [27] and [43]-[44].
In his oral submissions, Counsel for the plaintiff also referred me to the decision of Dowse v State of New South Wales [2012] NSWCA 337. In that case Basten JA (with whom McColl and Hoeben JJA agreed) stated as follows at [26]-[27]:
"[26] While it is true, as Lord Hope explained in O'Hara, that there are two elements to be satisfied for a warrantless arrest to be valid, namely an honestly held suspicion in the mind of the arresting officer and information in the mind of the arresting officer which when objectively assessed provides reasonable grounds for the suspicion, these are not abstract and independent elements. They justify a deprivation of liberty which in turn is part of an ongoing process by which the person arrested must be taken before an authorised officer to be dealt with according to law: Law Enforcement Act, s 99(4). In other words, the arrest is a first step in the process by which the person is to be made answerable for the offence, the commission of which the officer suspects. The same underlying purpose is to be found in s 99(3) which limits the circumstances in which an officer may arrest a person "for the purpose of taking proceedings for an offence against the person"; it thus assumes that such a purpose must underlie a valid arrest.
[27] In other words, an arrest will not be valid merely because the officer believes that an offence has been committed, in circumstances where the officer has no intention of charging the person or having the person charged with that offence. If that were not so, the legal requirement that the person arrested be informed of the true grounds of the arrest would be rendered nugatory: see New South Wales v Delly [2007] NSWCA 303 ; 70 NSWLR 125 at [9]-[11] (Ipp JA), adopting the reasoning of Lord Simonds in Christie v Leachinsky [1947] AC 573 at 591-592. As Tobias JA stated at [71], after referring to the provision in force in 1998 empowering an officer to arrest without warrant on the basis of a suspicion with reasonable cause:
It logically follows that where an arrest which complied with that requirement was effected, the arresting officer was obliged by the common law to inform the arrestee of the nature of the offence which he, the arresting officer, suspects the arrestee to have committed. To arrest a person on the suspicion of that person having committed offence A but to inform that person that the reason for the arrest is offence B, would be a nonsense and contrary to the clear policy which underpins what has been described by Lord Simonds in Christie as a fundamental rule of the common law with respect to the lawful deprivation of a person of his or her liberty." (emphasis added)
Accordingly, an arrest of a person by a police officer will not be a valid arrest merely because the officer believes that an offence has been committed by the person or the person is in the course of committing an offence, in circumstances where the officer has no intention of charging the person arrested or having the person charged with that offence. A person cannot be arrested merely to prevent the continuation of the offence if the police do not intend to charge the arrested person with the offence.
Section 4 of the Liquor Act 2007 (NSW) defines "intoxicated" by referring to Section 5 of that Act. Section 5 of the Liquor Act 2007 provides as follows:
"5 Meaning of "intoxicated"
(1) For the purposes of this Act, a person is intoxicated if:
(a) the person's speech, balance, co-ordination or behaviour is noticeably affected, and
(b) it is reasonable in the circumstances to believe that the affected speech, balance, co-ordination or behaviour is the result of the consumption of liquor.
(2) Accordingly, a reference in this Act to intoxication in relation to licensed premises is a reference to the presence of intoxicated persons on the licensed premises.
(3) The Director-General is to issue guidelines to assist in determining whether or not a person is intoxicated for the purposes of this Act. Such guidelines are to be made publicly available in such manner as the Director-General considers appropriate.
(4) The guidelines issued by the Director-General may also indicate circumstances in which a person may be assumed not to be intoxicated for the purposes of this Act."
Section 77 of the Liquor Act 2007 provides as follows:
"77 Non-voluntary exclusion of persons from licensed premises
(1) In this section:
authorised person means a licensee, an employee or agent of a licensee or a police officer.
employee includes, in the case of a registered club, a person engaged under a contract for services.
vicinity of licensed premises means any place less than 50 metres from any point on the boundary of the premises.
(2) An authorised person may refuse to admit to, or may turn out of, licensed premises any person:
(a) who is at the time intoxicated, violent, quarrelsome or disorderly, or
(b) whose presence on the licensed premises renders the licensee liable to a penalty under this Act, or
(c) who smokes, within the meaning of the Smoke-free Environment Act 2000, while on any part of the licensed premises that is a smoke-free area within the meaning of that Act, or
(d) who uses, or has in his or her possession, while on the premises any substance that the authorised person suspects of being a prohibited plant or a prohibited drug, or
(e) whom the authorised person, under the conditions of the licence or according to a term (of the kind referred to in section 134 or 136D) of a liquor accord, is authorised or required to refuse access to the licensed premises.
(3) If, under subsection (2), a person has been refused admission to, or has been turned out of, licensed premises, an authorised person may, at any time, refuse to admit that person to the licensed premises or may turn the person out of the licensed premises.
(4) If a person in respect of whom an authorised person is, under subsection (2) or (3), entitled to refuse admission to the licensed premises is on the premises, the person must, on being required so to do by an authorised person, leave the premises.
Maximum penalty: 50 penalty units.
(5) For the purposes of this section, such reasonable degree of force as may be necessary may be used to turn a person out of licensed premises.
(6) A person who has been refused admission to, or turned out of, licensed premises in accordance with this section because the person was intoxicated, violent, quarrelsome or disorderly, must not re-enter or attempt to re-enter the premises within 24 hours of being refused admission or being turned out.
Maximum penalty: 50 penalty units.
(7) After the 24-hour period ends in relation to any such person, an authorised person is not prevented from exercising the powers under subsection (3) in relation to the person.
(8) A person who has been refused admission to, or turned out of, licensed premises in accordance with this section because the person was intoxicated, violent, quarrelsome or disorderly, must not, without reasonable excuse:
(a) remain in the vicinity of the premises, or
(b) re-enter the vicinity of the premises within 6 hours of being refused admission or being turned out.
Maximum penalty: 50 penalty units.
(9) Without limiting subsection (8), a person has a reasonable excuse for remaining in, or re-entering, the vicinity of the licensed premises if:
(a) the person reasonably fears for his or her safety if he or she does not remain in, or re-enter, the vicinity of the premises, or
(b) the person needs to remain in, or re-enter, the vicinity of the premises in order to obtain transport, or
(c) the person resides in the vicinity of the premises.
(10) In the prosecution for an offence under subsection (8), the burden of proving that a person had a reasonable excuse for remaining in, or re-entering, the vicinity of the licensed premises concerned is on the person charged.
(11) The functions that may be exercised under this section by an authorised person who is a licensee or employee or agent of a licensee may only be exercised in relation to the licensed premises to which the licensee's licence relates.
(12) A reference in this section to turning a person out of licensed premises includes a reference to causing the person to be turned out.
(13) Nothing in this or any other section of this Act operates to limit any other right a person has to refuse to admit a person to, or to turn a person out of, licensed premises."
The plaintiff noted that the penalty for a breach of Section 77(8)(a) of the Liquor Act was a fine only and not a term of imprisonment. This was said to be relevant to the need to arrest the plaintiff and the question of aggravated damages.
In paragraphs [187]-[188] of his submissions in chief, the plaintiff submits that Constable Blades did not have reasonable grounds to suspect that the plaintiff had committed the offence specified in Section 77(8)(a) of the Liquor Act, namely remaining in the vicinity of licensed premises when previously being turned out of the licensed premises under Section 77(2) of the Liquor Act, and relies on the statement of principles of McColl JA (with whom Hoeben JA agreed) in Hyder v Commonwealth of Australia [2012] NSWCA 336 at [15] where her Honour stated as follows:
"[15] The following propositions, adapted by reference to s 3W, can be extracted from decisions considering how a person required to have reasonable grounds either to suspect or believe certain matters for the purposes of issuing a search warrant or arresting a person might properly form that state of mind:
(1) When a statute prescribes that there must be "reasonable grounds" for a belief, it requires facts which are sufficient to induce that state of mind in a reasonable person: George v Rockett (at 112);
(2) The state of mind that the reasonable grounds for the relevant suspicion and belief exist must be formed by the person identified in s 3W (the "arresting officer"); the arresting officer may not "discharge the … duty [of forming the relevant opinion] parrot-like, upon the bald assertion of the informant": George v Rockett (at 112), quoting R v Tillett; Ex parte Newton (1969) 14 FLR 101 (at 106) per Fox J;
(3) The proposition that it must be the arresting officer who has reasonable grounds to suspect (or believe) the alleged suspect to be guilty of an arrestable offence is intended to ensure that "[t]he arresting officer is held accountable … [and] is the compromise between the values of individual liberty and public order": O'Hara v Chief Constable of Royal Ulster Constabulary (at 291) per Lord Steyn (Lords Goff, Mustill and Hoffmann agreeing);
(4) There must be some factual basis for either the suspicion or the belief: George v Rockett (at 112); the state of mind may be based on hearsay material or materials which may be inadmissible in evidence; the materials must have some probative value: R v Rondo [2001] NSWCCA 540 ; (2001) 126 A Crim R 562 (at 53) per Smart AJ (Spigelman CJ and Simpson J agreeing); Shaaban Bin Hussien v Chong Fook Kam (at 949); O'Hara v Chief Constable of Royal Ulster Constabulary (at 293) per Lord Steyn;
(5) "The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof": George v Rockett (at 116);
(6) "Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture": George v Rockett (at 116);
(7) What constitutes reasonable grounds for forming a suspicion or a belief must be judged against "what was known or reasonably capable of being known at the relevant time": Ruddock v Taylor [2005] HCA 48 ; (2005) 222 CLR 612 (at [40]) per Gleeson CJ, Gummow, Hayne and Heydon JJ; whether the relevant person had reasonable grounds for forming a suspicion or a belief must be determined not according to the subjective beliefs of the police at the time but according to an objective criterion: Anderson v Judges of the District Court (NSW) (1992) 27 NSWLR 701 (at 714) per Kirby P (Meagher and Sheller JJA agreeing); see also O'Hara v Chief Constable of Royal Ulster Constabulary (at 298) per Lord Hope;
(8) The information acted on by the arresting officer need not be based on his own observations; he or she is entitled to form a belief based on what they have been told. The reasonable belief may be based on information which has been given anonymously or on information which turns out to be wrong. The question whether information considered by the arresting officer provided reasonable grounds for the belief depends on the source of the information and its context, seen in the light of the whole of the surrounding circumstances and, having regard to the source of that information, drawing inferences as to what a reasonable person in the position of the independent observer would make of it: O'Hara v Chief Constable of Royal Ulster Constabulary (at 298, 301, 303) per Lord Hope. (O'Hara concerned the formation of a suspicion, but the proposition Lord Hope stated is equally applicable to the formation of a belief); it is "[t]he character of the circumstances [which have] to be decided: were they such as to lead to the specified inference?": Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266 (at 303) per Kitto J;
(9) "The identification of a particular source, who is reasonably likely to have knowledge of the relevant fact, will ordinarily be sufficient to permit the Court to assess the weight to be given to the basis of the expressed [state of mind] and, therefore, to determine that reasonable grounds for [it] exist": New South Wales Crime Commission v Vu [2009] NSWCA 349 (at [46]) per Spigelman CJ (Allsop P and Hodgson JA agreeing); see also International Finance Trust Co Ltd v New South Wales Crime Commission [2008] NSWCA 291 ; (2008) 189 A Crim R 559 (at [134]-[135]), per McClellan CJ at CL Although McClellan CJ at CL was in dissent, Allsop P (with whom Beazley JA agreed) (at [51]) would have agreed with McClellan CJ at CL's conclusion in this respect subject to qualifications none of which are in issue in the present case. International Finance Trust Co Ltd v New South Wales Crime Commission was overturned in the High Court insofar as it concerned the constitutional validity of s 10 of the Criminal Assets Recovery Act 1990, but not in a manner which affects the statements concerning the reasonable grounds issue: International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49 ; (2009) 240 CLR 319;
(10) In Holgate-Mohammed v Duke (at 443), Lord Diplock held that the words "may arrest without warrant" conferred on a public official "an executive discretion" whether or not to arrest and that the lawfulness of the way in which the discretion was exercised in a particular case could not be questioned in any court of law except upon the principles Lord Greene MR enunciated in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. That aspect of Lord Diplock's reasoning was applied in Zaravinos v New South Wales (at [28]) where Bryson JA (Santow JA and Adams J agreeing) held that that the validity of an exercise of the statutory power to arrest, in that case under s 352(2) of the Crimes Act 1900 (which provided that "[a]ny constable or other person may without warrant apprehend"), was "not established conclusively by showing that the circumstances in s 352(2)(a) exist[ed], and that the validity of the decision to arrest and the lawfulness of the arrest also depend on the effective exercise of the discretion alluded to by the word 'may'"; see also Bales v Parmeter (1935) 35 SR (NSW) 182 (at 188) per Jordan CJ. Holgate-Mohammed v Duke has not been followed in Australia to the extent that Lord Diplock held that an arrest for the purpose of asking questions was lawful: see Zaravinos v New South Wales (at [31]-[33]); Williams v R (at 299) per Mason and Brennan JJ."
[4]
Standard and onus of proof
Having regard to the seriousness of the allegations which the plaintiff makes against the police officers involved, the requirements in Section 140 of the Evidence Act 1995 (NSW) and the Briginshaw standard apply in relation to the plaintiff's proof of such contested allegations. This would apply in particular to the allegations that police officers are lying in their evidence, that the plaintiff was pushed into the police van with intent to cause injury and the proof of the disputed elements of the tort of malicious prosecution.
The use of force in the plaintiff's arrest and the continuation of custody by the police officers is clear. The defendant bears the onus of establishing to the Briginshaw standard that:
1. The plaintiff engaged in conduct which justified his arrest, the use of force in his arrest, the placement in the police van and his imprisonment at the station;
2. The force actually used by the police officers was reasonable in the circumstances: Section 140 of the Evidence Act 1995; State of New South Wales v Koumdjiev [2005] NSWCA 247; (2005) 63 NSWLR 353 at [61]-[63] per Hodgson J (with whom Beazley JA and Hislop J agreed).
In paragraph 45 of Varty v Director of Public Prosecutions (NSW) [2015] NSWSC 304, Adamson J stated as follows:
"[45] Having read the Magistrate's reasons as a whole, I do not consider that her Honour's use of the words "benefit of the doubt" indicate that her Honour was applying the criminal standard of "beyond reasonable doubt". Although the civil standard applies (s 142) of the Evidence Act, so too does the doctrine of Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 at 361-362, which is not excluded by the Evidence Act: Habib v Nationwide News Pty Ltd [2010] NSWCA 34; 76 NSWLR 299 at [338] per Hodgson, Tobias and McColl JJA (which dealt with s 140, which is, on this point, relevantly indistinguishable). The so-called Briginshaw doctrine has the effect that, although the standard of proof is not altered where the matter to be proved involves fraud, criminal conduct, or, as in the instant case, unlawful conduct, the strength of the evidence necessary to satisfy the tribunal of fact on the balance of probabilities may be greater because of the seriousness of the allegation."
[5]
Assault
The plaintiff pleads the tort of assault.
The tort of assault occurs where there is an act of the defendant which directly and either intentionally or negligently causes the plaintiff immediately to apprehend a non-consensual contact with his or her person. The defendant's act must put the plaintiff in apprehension of an imminent battery: see R v Gabriel [2004] ACTSC 30 at [92]-[119]; R v Phillips (1971) 45 ALJR 467 at 472 per Barwick CJ.
In the present case there do not appear to be any facts establishing the tort of assault, as opposed to the tort of battery. This tort was not pressed in the plaintiff's written or oral submissions.
In my opinion the allegation of the tort of assault should be dismissed.
[6]
False imprisonment
In relation to the tort of false imprisonment, Basten JA (with whom Bathurst CJ and Hoeben JA agreed) stated in State of New South Wales v TD [2013] NSWCA 32 at [50]-[51] as follows:
[50] In identifying the elements of the tort, the State referred to a statement from C Sappideen and P Vines, Fleming's The Law of Torts (10th ed, 2011) at [2.80]:
The action for false imprisonment protects the interest in freedom from physical restraint and coercion against the wrong of intentionally and without lawful justification subjecting another to a total restraint of movement by either causing that person's confinement or preventing that person from leaving the place in which he or she is.
[51] In Darcy v State of New South Wales [2011] NSWCA 413, after setting out that passage from Fleming, Whealy JA (with whom Allsop P and Beazley JA agreed) noted that the elements of the tort of false imprisonment "require proof by the plaintiff of a restraint imposed by the defendant which amounts to imprisonment" and that "[u]pon the proof of such imprisonment, the defendant, to escape liability, needs to establish legal justification": at [143]. (In contradistinction to the facts in Darcy, there was no question of the respondent consenting to being detained in a prison, even if that were, in principle, possible.)
In Ruddock v Taylor (2005) 222 CLR 612 Kirby J stated as follows at paragraph 140:
"[140] Throughout the common law world, the conclusion consistently reached by courts addressing this question is that, in the absence of statutory provisions that clearly afford an immunity or defence to the administrator, the result must favour the individual whose rights have been violated. Wrongful imprisonment is a tort of strict liability. Lack of fault, in the sense of absence of bad faith, is irrelevant to the existence of the wrong. This is because the focus of this civil wrong is on the vindication of liberty and reparation to the victim, rather than upon the presence or absence of moral wrongdoing on the part of the defendant. A plaintiff who proves that his or her imprisonment was caused by the defendant therefore has a prima facie case. At common law it is the defendant who must then show lawful justification for his or her actions.
[141] The heavy burden placed on the defendant, at least in contrast to some other torts, is explicable in two senses. First, the onus on the defendant to establish a lawful justification is mitigated to some extent by the fact that a plaintiff must prove that the defendant was a direct cause of the injury, as well as prove the existence of the requisite intent. Secondly, as discussed above, the principal function of the tort is to provide a remedy for "injury to liberty". It is not, as such, to signify fault on the part of the defendant. Damages are awarded to vindicate personal liberty, rather than as compensation for loss per se."
In Elleray v Rail Corporation NSW [2017] NSWCA 23 the Court of Appeal noted at [4] that the torts of battery and false imprisonment are actionable per se and a plaintiff does not have to prove damage.
In his submissions the plaintiff states, consistent with the above authorities, that once a party proves actual imprisonment, the onus is on the defendant to prove that the plaintiff's imprisonment was lawfully justified. In Zaravinos v State of New South Wales (2004) 62 NSWLR 58 Bryson JA (with whom Santow JA and Adams J agreed) stated as follows at [12]:
"[12] … the pleadings distinctly and unmistakably show that one claim or count was based on false arrest and imprisonment. However the burden of proving any facts or circumstances which show that the arrests and detention were lawful lay on the defendants …"
The question arises whether there was a reasonable basis for the police officers, particularly Constable Blades, to believe in the present case that the plaintiff had been properly and lawfully asked to leave the Albion Hotel, had been lawfully refused re-entry, had properly been directed to leave the vicinity of the premises and was unlawfully remaining in the vicinity of the hotel. If so, was the arrest of the plaintiff and the subsequent imprisonment of him lawfully justified?
In paragraphs [182]-[196] of the plaintiff's written submissions in chief, the plaintiff submits as follows:
1. It is not in issue in this case that the plaintiff was imprisoned. The onus rests on the defendant to prove that the plaintiff's imprisonment was lawfully justified;
2. The plaintiff's imprisonment was not lawfully justified under Section 99(3)(b) of LEPRA. Section 99(3) does not confer a power of arrest upon a police officer but operates as a constraint on the powers of arrest conferred by Section 99(1) and (2): State of New South Wales v Robinson [2016] NSWCA 334 at [34]. The arrest of the plaintiff by Constable Blades was not for the purpose of taking proceedings against the plaintiff for a second offence. The evidence of Constable Blades given at T 582.34-.43 is relied upon to establish that at the time of the arrest it was not the intention of Constable Blades to take the plaintiff back to the police station and formally charge him with the offence of failing to remain in the vicinity of the licensed premises;
3. In any event, Senior Constable Blades did not have reasonable grounds to suspect the plaintiff had committed the offence set out in Section 77(8)(a) of the Liquor Act. The reasons for this are set out in paragraph [189] of the plaintiff's written submissions in chief including that prior to arresting the plaintiff Constable Blades was not aware of the boundaries of the licensed premises, had not spoken to the authorised person who allegedly had turned out the plaintiff under Section 77(2) of the Liquor Act and at the time of the plaintiff's arrest he was in the process of moving away from the licensed premises; and
4. Senior Constable Blades did not have reasonable grounds to suspect that it was necessary to arrest the plaintiff to prevent a repetition or continuation of the offence or commission of another offence.
In my view, Exhibit 1 (the film) establishes that at the time of the plaintiff's arrest he was not in the process of moving away from the licensed premises but had advanced towards the police officers in the general direction of the driveway. The evidence before me establishes that where the plaintiff was arrested was less than 50 metres from the entrance to the Albion Hotel: see the evidence of Constable Blades at T 604.38 and Constable Gedeon at T 623.32.
Further:
1. It seems that Constable Blades did arrest the plaintiff because of his failure to comply with a further direction to leave the vicinity of the licensed premises: see T 489.25; T 510.28; T 512.40; Exhibit 17; Exhibit 20, paragraph 21 and Exhibit 12, page 3 where it provides:
"He was taken to the Parramatta Police Station to stop the continuation of the offence. He was placed into Dock 2. Once in custody a decision was made to issue a further infringement notice to the PIO for remain in the vicinity of Licensed Premises."
1. It is also established from all of the evidence that Constable Blades did form the view that it was necessary to arrest the plaintiff to achieve the purpose of preventing a repetition or continuation of the offence or the commission of another offence under Section 77(8)(a) of the Liquor Act, having regard to the fact that he (the plaintiff) appeared from Exhibit 1 to be moving back towards the driveway entrance to the hotel.
In an attempt to counter the principles stated in Dowse v State of New South Wales, above, at [26]-[27] and in State of New South Wales v Robinson, above at [31]-[35] in relation to Section 99(3) of LEPRA, counsel for the defendant submitted:
1. The evidence referred to in the previous paragraph above established that the intention of Constable Blades at the time was to arrest the plaintiff for the purpose of taking further proceedings for an offence against him for failing to quit in addition to the infringement notice already served on him;
2. This was the proper inference to be drawn from the extract above from Exhibit 12, page 3;
3. In any case, it was inappropriate for the plaintiff to rely on the answer given by Constable Blades at T 582.43. It was submitted that the evidence set out in that transcript, read in its context, did not fairly put the issue to Constable Blades, in breach of the rule in Browne v Dunn (1893) 6 R 67. As I understood the argument, it was to the effect that unless notice has previously clearly been given to a witness of the cross-examiner's intentions to rely upon matters by putting them to the witness, the cross-examiner cannot rely upon those matters in support of his case. This is especially where that case otherwise relies upon inferences to be drawn from other evidence in the proceedings: see the analysis in [42] of Bale v Mills [2011] NSWCA 226.
In my view, this submission should be rejected for the following reasons:
1. I do not consider page 3 of Exhibit 12 which is quoted above provides clear evidence that Mr Raad was arrested by Constable Blades for the purpose of taking proceedings against him for the offence of remain in vicinity of licensed premises which allegedly occurred after Mr Raad had walked down to the bottom of the driveway and after he had been issued with the infringement notice. Exhibit 12 refers to a decision which was made once Mr Raad had been taken to Parramatta Police Station;
2. The cross-examination at T 580-582 was clearly in the context of what occurred after the infringement notice had been issued to Mr Raad and after he and Mrs Raad had proceeded to the footpath in Harris Street. In my view, the answer at T 582.43 is clear. Constable Blades did not arrest Mr Raad with the intention of taking him back to Parramatta Police Station and formally charging him with a second offence of remain in the vicinity of the licensed premises;
3. Further, such an offence only gave rise to a fine and not a potential term of imprisonment. There was no evidence that it was necessary to arrest Mr Raad for the purposes of bringing a charge on a second offence;
4. I do not see there being any breach of the rule in Browne v Dunn by the questioning of Constable Blades at T 582. The proposition was squarely put to him and he answered it directly.
For these reasons I find that the arrest of Mr Raad was not lawfully justified under Section 99(3) of LEPRA, which is the basis relied on in the Defence. The evidence is clear that Constable Blades had no intention of charging Mr Raad or having Mr Raad charged with the second offence at the time of his arrest. The facts appear to me to fall squarely within the principles stated in Dowse at [26]-[27] and Robinson at [35]. Accordingly, the tort of false imprisonment is established in relation to this aspect.
However, I will proceed to consider the question whether there were reasonable grounds for Constable Blades to believe that it was necessary to arrest the plaintiff to achieve the purpose of preventing a repetition or continuation of the offence.
In my view, having reviewed all the evidence, there were reasonable grounds for the police officers (particularly Constable Blades) to believe this for the following reasons:
1. The plaintiff had been asked to leave the Albion Hotel because the security guard thought that he was intoxicated;
2. Police officers attended the front of the hotel. It is highly likely and I find that the police officers were told (as Constable Blades claims) that the plaintiff had been refused re-entry to the hotel as he was intoxicated and was refusing to leave the front of the hotel and was arguing. Constable Blades gave evidence which I accept that he was told that the plaintiff had been asked to leave the hotel by a security guard. Constable Gedeon gave similar evidence;
3. The evidence of Senior Constable Frith, Constable Restuccia and Constable Blades as well as Exhibit 1, the film, show that the plaintiff was loudly remonstrating with police and waving his arms around for some considerable time before he was given the penalty notice. Mrs Raad confirms that the plaintiff was talking loudly and waving his arms around. The plaintiff confirms that he was very upset at the time;
4. The time when the events were occurring and the fact the plaintiff had left licensed premises early in the morning;
5. I have found that Senior Constable Frith and Constable Blades directed the plaintiff to leave the vicinity but because of his highly agitated and upset state he probably did not hear this direction or if he did hear it he did not pay it appropriate attention;
6. I have found that the plaintiff walked to the end of the driveway and then commenced to cross the road twice before returning to the footpath outside Harris Street and walking away from the driveway before returning and advancing to the police officers with his arm extended. In those circumstances, I find on the evidence that the police officers had a reasonable basis for believing that the plaintiff had been excluded from the hotel, was in an argumentative, quarrelsome and probably intoxicated state and was refusing to leave the vicinity of the hotel (thereby committing a further offence).
In its submissions, the defendant also relies on the allegation that the plaintiff was lawfully arrested because he was intoxicated and committing a breach of the peace: defendant's submissions paragraphs 186, 196-204. The plaintiff says these submissions cannot be relied upon as these matters are not pleaded and no application has been made to amend: plaintiff's submissions in reply paragraphs 27-39.
In my view, the case was conducted on the existing Defence and the defendant should not be permitted to rely on the additional matters in the absence of a formal application to amend. I understand that the defendant's counsel did not dispute this when making his oral submissions.
In any case, the matters relied upon do not appear to have been established by the evidence. In particular, Mr Raad was not an 'intoxicated person" within Section 206 of LEPRA. In Section 205 the term "intoxicated person" is relevantly defined as "a person who appears to be seriously affected by alcohol or another drug or a combination of drugs". Mr Raad did not appear on the evidence to be "seriously affected by alcohol". Counsel for the defendant accepted this during oral submissions.
[7]
Battery
As stated above, the court in Croucher v Cachia [2016] NSWCA 132 defines battery as being: a defendant who directly causes physical contact with the plaintiff will commit a battery unless the defendant proves that the defendant was utterly without fault. Here the battery was the physical arrest of the plaintiff and then the forced placement of the plaintiff in the police van.
I have found that the arrest of Mr Raad was not lawfully justified. Accordingly, when force was used by the police officers to arrest him, place him in handcuffs, place him in the police van and take him to Parramatta Police Station and place him in a cell, the physical contact with the plaintiff constituting a battery was equally not lawfully justified. Consequently, the police officers were in my opinion not "utterly without fault" in relation to the arrest and subsequent handcuffing.
In the course of oral submissions counsel for the plaintiff conceded that no separate award for damages for battery was appropriate and that the conduct of the police officers in arresting, handcuffing the plaintiff, placing him in the van and taking him to the police station was properly to be considered in the assessment of damages for the tort of false imprisonment which has been established.
In relation to the placement of the plaintiff into the police van, I have found that the police officers used excessive force in placing the plaintiff in the van and thus there was negligence within Croucher v Cachia being a presence of fault on behalf of the defendant through the police officers.
Because of Croucher v Cachia the damages to be awarded to the plaintiff for the negligent battery, are to be calculated under the CLA.
In coming to the view that excessive force was used against the plaintiff in placing him in the police vehicle I take into account that police officers are faced with having to take action in circumstances of urgency or stress. In particular I take into account the comments of Heydon JA in Woodley v Boyd [2001] NSWCA 35 at [37] as follows:
[37] According to some writers, at common law, which applies in New South Wales, a person effecting an arrest may use whatever force is "reasonable" in the circumstances (Archbold: Criminal Pleading Evidence and Practice 2000 para19-39) or "reasonably necessary" (Wiltshire v Barrett [1966] 1 QB 312 at 326 and 331). "Thus if the arrestee offered resistance, the arrestor could increase his force in proportion to the force of that resistance": R W Harding, The Law of Arrest in Australia (eds Duncan Chappell and Paul Wilson) The Australian Criminal Justice System (2nd ed, Butterworths, 1977) page 254. A more elaborate test has been propounded in the context of whether the killing of a felon in the course of committing a felony is a justifiable homicide, or manslaughter, or murder. It was put thus by the Full Court in R v Turner [1962] VR 30 at 36:
"When a felony is committed in the presence of a member of the public, he may use reasonable force to apprehend the offender or for the prevention of the felony. What is reasonable depends upon two factors. He is entitled to use such a degree of force as in the circumstances he reasonably believes to be necessary to effect his purpose, provided that the means adopted by him are such as a reasonable man placed as he was placed would not consider to be disproportionate to the evil to be prevented (ie the commission of a felony or the escape of the felon)."
It may perhaps be questioned whether the tests stated apply where the arresting party causes injury to the arrested party, as distinct from death. However, for present purposes it is convenient to assume, as counsel for both the plaintiff and the defendants did, that R v Turner states the law in that context as well. In evaluating what is reasonable, necessary or reasonably necessary the duties of police officers must be remembered. In Lindley v Rutter [1981] QB 128 at 134 Donaldson LJ said:
"It is the duty of any constable who lawfully has a prisoner in his charge to take all reasonable measures to ensure that the prisoner does not escape or assist others to do so, does not injure himself or others, does not destroy or dispose of evidence and does not commit further crime such as, for example, malicious damage to property. This list is not exhaustive, but it is sufficient for present purposes. What measures are reasonable in the discharge of this duty will depend upon the likelihood that the particular prisoner will do any of these things unless prevented. That in turn will involve the constable in considering the known or apparent disposition and sobriety of the prisoner. What can never be justified is the adoption of any particular measures without regard to all the circumstances of the particular case."
The same duties and considerations apply where a police officer is deciding how to effect an arrest. And, in evaluating the police conduct, the matter must be judged by reference to the pressure of events and the agony of the moment, not by reference to hindsight. In McIntosh v Webster (1980) 43 FLR 112 at 123, Connor J said:
"[Arrests] are frequently made in circumstances of excitement, turmoil and panic [and it is] altogether unfair to the police force as a whole to sit back in the comparatively calm and leisurely atmosphere of the courtroom and there make minute retrospective criticisms of what an arresting constable might or might not have done or believed in the circumstances.""
I also note that in State of New South Wales v McMaster [2015] NSWCA 228, Beazley P (with whom McColl and Meagher JJA agreed) stated as follows at [38]:
"[38] Thirdly, the legislature, by the enactment of s 230, has spoken as to the circumstances in which a police officer's actions in exercising a function under LEPRA, or under any other Act or law, are lawful."
Whether any damages should be awarded for the negligent battery and the quantum of those damages will be considered further below.
[8]
Claim for malicious prosecution
In A v New South Wales (2007) 230 CLR 500, the High Court stated as follows:
"[1] This appeal raises issues concerning two of the four elements of the tort of malicious prosecution. For a plaintiff to succeed in an action for damages for malicious prosecution the plaintiff must establish:
(1) that proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff by the defendant;
(2) that the proceedings terminated in favour of the plaintiff;
(3) that the defendant, in initiating or maintaining the proceedings acted maliciously; and
(4) that the defendant acted without reasonable and probable cause."
In State of New South Wales v Abed [2014] NSWCA 419 Gleeson JA (with whom Bathurst CJ and Macfarlan JA agreed) stated as follows:
"[135] To constitute malice, the dominant purpose of the prosecutor must be a purpose other than the proper invocation of the criminal law - an "illegitimate or oblique" motive. That improper purpose must be the sole or dominant purpose actuating the prosecutor: A v New South Wales at [91].
[136] Examples of an improper purpose include spite or ill will, to punish the defendant, and to stop a civil action brought by the accused against the prosecutor. However as the joint judgment in A v New South Wales emphasised at [92], it is not possible to identify exhaustively when the processes of the criminal law may be improperly invoked. What the plaintiff has to prove, in order to establish malice in an action for malicious prosecution, is a purpose other than a proper purpose: A v New South Wales at [92].
…
[150] Absence of reasonable and probable cause in maintaining a prosecution may, in a given case, be evidence of malice, but as the High Court emphasised in A v New South Wales at [40] there are two separate issues to be decided. The High Court also warned (at [90]) against attempts to reduce the relationship between absence of reasonable and probable cause and malice to an aphorism such as - absence of reasonable cause is evidence of malice, but malice is never evidence of want of reasonable cause. The joint judgment continued (at [90]) by recognising that "proof of particular facts may supply evidence of both elements", but noted that "no universal rule relating proof of the separate elements can or should be stated".
[151] In Trobridge v Hardy [1955] HCA 68; 94 CLR 147 Kitto J at 163 referred to the "indirect route" of proving malice. His Honour continued (at 164), in the context of a jury trial:
"If they think it more probable than not that the prosecutor lacked the belief in the guilt of the accused, they are justified in taking the next step of concluding that the prosecution was not instituted from a genuine desire to serve the ends of justice and is not to be satisfactorily explained save on the supposition that the prosecutor was actuated by an indirect or improper motive. If so, they may legitimately make a finding of malicious, even though they may not feel able to say precisely what the malicious motive was."
[152] However, whilst proof of malice will often be a matter of inference, it bears repeating that "it is proof that is required, not conjecture or suspicion": A v New South Wales at [93]."
I also take into account the matters set out in paragraphs [200]-[216] of the plaintiff's submissions in chief.
As stated above, I find that the criminal charge of "excluded person remain in vicinity of" licensed premises was heard in the Parramatta Local Court in late 2012 and on 23 January 2013 the Magistrate dismissed the charge. Accordingly, the first two elements in A v New South Wales, above, are satisfied as there were criminal proceedings which were terminated in favour of the plaintiff.
However, having regard to my findings set out above, I find that Constable Blades as the informant, did not initiate or maintain the proceedings acting maliciously and that he acted at all times with reasonable and probable cause. The fact a statement was not obtained from a security guard for the prosecution is not decisive. Constable Blades gave evidence, which I accept on this issue, that he had been told by security officers the plaintiff had been excluded from the hotel because of intoxication. Constable Blades had formed the view independently that the plaintiff was "moderately intoxicated" through his appearance and manner. In addition, the film footage (Exhibit 1) shows that security officers were refusing entry to the plaintiff and they were clearly "authorised persons" within Section 77 of the Liquor Act. The plaintiff did not dispute he had been asked to leave by a security officer, albeit he says wrongly.
In my view in the light of all the evidence Constable Blades brought the prosecution with reasonable and probable cause. The decision to prosecute to court was taken after a review of the film footage by him (Exhibit 1) and was not undertaken with malice. I conclude that the plaintiff has not established malice to the Briginshaw standard.
Therefore, in my opinion, the tort of malicious prosecution is not established.
[9]
Conclusion
Accordingly, in my view the claim of the plaintiff against the defendant for assault should be dismissed. The claim for false imprisonment is established. The claim for negligent battery in relation to the placement of the plaintiff into the back of the police vehicle requires further consideration.
[10]
Assessment of damages
I will now turn to consider an assessment of damages in relation to the negligent battery and the false imprisonment which have been established. I will also consider an assessment if I am wrong in my conclusions above in relation to the tort of malicious prosecution. The plaintiff claims general, aggravated and exemplary damages. Aggravated and exemplary damages are not available in relation to the negligent battery because of Section 21 of the CLA.
A party is obliged to give particulars of the facts and circumstances relied upon to establish a claim for exemplary or aggravated damages: Uniform Civil Procedure Rules 2005 (NSW), Part 15.7 and Part 15.8.
The particulars of aggravated and exemplary damages for the tort of malicious prosecution are set out in paragraph 27 of the Statement of Claim as follows:
"27. The plaintiff also claims aggravated and exemplary damages for malicious prosecution. In so claiming, the plaintiff relies on the matters pleaded above and the following additional matters:
Particulars of aggravated damages
i) The plaintiff was distressed, humiliated and embarrassed at having to attend the Local Court to defend the said charge; and
ii) Further particulars may be provided in due course.
Particulars of exemplary damages
i) The plaintiff repeats paragraphs 24(i) to (viii) herein.
ii) Officer Blades failed to properly investigate the plaintiff's complaint that he had been assaulted by Ali;
iii) Officer Blades locked the plaintiff and his wife out of the Parramatta Police Station upon the plaintiff being released from police custody, in order to prevent the plaintiff from complaining about how he had been treated by Officer Blades and other police officers;
iv) Further particulars may be provided in due course."
The particulars of aggravated and exemplary damages for false imprisonment, assault and battery are set out in paragraph 30 of the Statement of Claim and are as follows:
"30. The plaintiff also claims aggravated and exemplary damages for the false imprisonment and assault and battery. In so claiming, the plaintiff relies on the matters pleaded herein and the following additional matters:
Particulars of aggravated damages
i) The treatment of the plaintiff at the hands of the said officers was in full view of members of the public causing the plaintiff to be embarrassed and humiliated;
ii) The arrest of the plaintiff was wholly unwarranted; and
iii) Further particulars may be provided in due course.
Particulars of exemplary damages
i) In arresting the plaintiff, Constable Blades and the other officers acted in
contumelious disregard of the plaintiffs rights;
ii) In arresting the plaintiff, Constable Blades and the other officers knew that they were not acting in the execution of their duty as police officers;
iii) Further particulars may be provided in due course."
In State of New South Wales v Abed [2014] NSWCA 419, Gleeson JA (with whom Bathurst CJ and Macfarlan JA agreed) stated the following at paragraphs [230]-[234]:
[230] The principles upon which aggravated and exemplary damages are awarded are well established and were not in issue on the appeal. The principles were summarised by Sackville AJA (Macfarlan and Whealy JJA agreeing) in New South Wales v Zreika [2012] NSWCA 37 at [60]-[64]. It is necessary to keep in mind the conceptual distinction between the compensatory nature of aggravated damages and the punitive and deterrent nature of exemplary damages. The assessment of aggravated damages is made from the point of view of the plaintiff, whereas in the case of exemplary damages the focus is on the conduct of the defendant.
[231] Aggravated damages are compensatory in nature, being awarded for injury to the plaintiff's feelings caused by insult, humiliation and the like: Lamb v Cotogno [1987] HCA 47 ; 164 CLR 1 at 8. Aggravated damages are given to compensate the plaintiff when the harm done to him or her by a wrongful act was aggravated by the manner in which the act was done: Uren v John Fairfax [1966] HCA 40 ; 117 CLR 118 at [ ] (Windeyer J).
[232] Exemplary damages go beyond compensation and are awarded as a punishment to the guilty, to deter similar conduct in the future, and to reflect "detestation" for the action: Lamb v Cotogno at 8. Generally speaking, what is required for an award is "conscious wrongdoing in contumelious disregard of another's rights": Gray v Motor Accidents Commission [1998] HC 70 ; 196 CLR 1 at [14] (Gray v MAC).
[233] In New South v Riley [2003] NSWCA 208 ; 57 NSWLR 496 Hodgson JA (Sheller JA and Nicholas J agreeing) expressed the view (at [138]) that the description in Gray v MAC does not fully cover the field. His Honour said that "Conduct may be high handed, outrageous, and show contempt for the rights of others, even if it is not malicious or even conscious wrongdoing". However, Hodgson JA also observed that, ordinarily, conduct attracting exemplary damages will be of this general nature, and the conduct must be such that an award of compensatory damages does not sufficiently express the Court's disapproval or, in cases where the defendant stood to gain more than the plaintiff lost, demonstrate that the wrongful conduct should not be to the advantage of the wrongdoer.
[234] In New South Wales v Radford [2010] NSWCA 276 ; 79 NSWLR 327, Sackville AJA (Beazley and Macfarlan JJA agreeing) summarised the effect of the authorities as follows:
[97] These authorities demonstrate that the various categories of damages that may be awarded for trespass to the person, including assault and false imprisonment, are not self-contained. There is a close relationship between an award of ordinary compensatory damages or injury to the plaintiff's feelings and an award of aggravated damages. It is necessary to assess compensatory damages, including aggravated damages, before determining whether exemplary damages should be awarded and, if so, the quantum of any such award."
[11]
Negligent Battery
In relation to the assessment of damages for the negligent battery, the plaintiff submits that he has a severity of non-economic loss (as a proportion of a most extreme case) under Section 16 of the CLA of 25%: [226] of his written submissions in chief; cf [278] of the defendant's written submissions.
In my view, the plaintiff's current condition, as stated above, is not established to be connected to the negligent battery and there can be no award of damages for non-economic loss under the CLA.
No evidence was placed before the court in relation to out of pocket expenses for the past and therefore no award can be made under this head although there is some evidence that the plaintiff consulted his general practitioner at least in 2014 in relation to his knees and a specialist in 2015.
As set out above I have preferred the evidence of Dr Drummond over that of Dr Lee. Accordingly, there can be no award of damages for future economic loss including on a buffer basis as sought by the plaintiff. The evidence from the plaintiff did not link any problems with the plaintiff's knees caused by the negligent battery to the closure of his business in 2013 or the loss of past earnings or profits and therefore no damages can be awarded under this heading. Also there was no evidence as to the plaintiff's prior earnings as assistance to determine any loss of earning capacity.
In relation to a claim for future out of pocket expenses, the evidence of Dr Drummond should be preferred to that of Dr Lee for the reasons set out above. Accordingly, no amount should be allowed under this heading as contemplated future treatment does not relate to the incident on 10 June 2012 but to the plaintiff's degenerative pathology: see the answers of Dr Drummond to the questions numbered 8 and 9 on pages 8 and 9 of Exhibit 6. I also reject any claim for an amount to be awarded for gratuitous care or commercial employment of domestic care or gardening for the same reasons. There is simply not sufficient evidence from the plaintiff or his wife to establish these heads of damages. Much more detailed evidence from the plaintiff and/or his wife would have been required to establish these heads of damage. Further, more detailed evidence would have been required from the plaintiff linking his complaints in relation to his knees with earlier consultations with medical practitioners.
Accordingly, I award no damages to the plaintiff in relation to the negligently inflicted battery.
False Imprisonment
It is necessary that I now consider an assessment of damages for the false imprisonment found.
The evidence is clear and undisputed that the plaintiff was arrested, handcuffed and placed in the back of the police vehicle and kept for a period of less than two hours at Parramatta Police Station. The issue of the alleged damage to the plaintiff's knees has already been considered above in relation to the negligent infliction of injury through a battery.
In relation to the question of general damages for the false imprisonment, I take into account the following matters:
1. The plaintiff was arrested unlawfully;
2. The plaintiff was arrested with the assistance of a number of police officers, not merely one or two police officers;
3. I have found above that the plaintiff did not resist arrest in any way;
4. The plaintiff was placed in the back of a police van;
5. The plaintiff was kept in custody for a period of slightly less than two hours;
6. I do not consider it relevant that the plaintiff's arrest was unlawful because of a "technicality". The freedom of a member of the public is important and arrests must take place for valid and lawful reasons.
Taking into account all of these matters and the entirety of the evidence, I award the sum of $15,000 in general damages to the plaintiff for the false imprisonment.
In arriving at this figure the following appear to be also relevant:
1. On the evidence before me the plaintiff was continuing the offence under Section 77(8)(a) of the Liquor Act at the time of his arrest;
2. The arrest was undertaken to prevent the continuation of that offence, albeit unlawfully for the reasons given above;
3. There is no evidence that the plaintiff was struck in any way by any officer;
4. The plaintiff had been remaining in the vicinity of the licensed premises for some time and the police had appeared to be acting reasonably in allowing him time to get on his way.
In relation to the award of aggravated damages which are sought by the plaintiff, I take into account the following matters:
1. The plaintiff did not resist arrest;
2. The plaintiff was arrested in a public place albeit in the early hours of the morning;
3. The plaintiff was pushed by Constable Blades into the van;
4. The plaintiff was handcuffed to his rear in public;
5. The plaintiff was arrested in the presence of his wife.
Counsel for the defendant emphasised in his oral submissions that there was no evidence that a police car was available as opposed to a police van, in the circumstances the use of handcuffs in an arrest if lawful would have been appropriate and there was no evidence that the plaintiff was humiliated or ridiculed or insulted in any way. There were, it is submitted, no factors of aggravation. Reliance was placed on the comments of Lord Diplock in Cassell & Co Ltd v Broome (1972) AC 1027 at 1124.
In my view, an award of aggravated damages is warranted in the present case but that it should be modest. I have set out the aggravating factors above. I particularly take into account that the arrest was made in public, in front of the plaintiff's wife, for an offence which did not involve a potential term of imprisonment and with the plaintiff being pushed into a police van. I allow $5,000 for aggravated damages.
I now turn to consider damages for the tort of malicious prosecution if I am found on appeal to be in error in concluding that this tort has not been established.
In relation to the tort of malicious prosecution, any award of damages to the plaintiff would need to be assessed to take account the following if the plaintiff's version is preferred:
1. That the prosecution was continued against the plaintiff maliciously and without reasonable or probable cause;
2. The charge led to criminal proceedings against the plaintiff heard over two days;
3. The plaintiff was subjected to the upsetting and challenging experience of representing himself.
In my view the amount of general and aggravated damages which should be awarded for the tort of malicious prosecution is one of impression in all the circumstances of the case. In my view, an award of $25,000 on the facts of this alternative case would be appropriate.
In relation to the tort of false imprisonment, I do not believe that an award of exemplary damages is appropriate. The police officers involved believed reasonably that the plaintiff was committing a further offence and would remain in the vicinity of the licensed premises pleading his case if they did not act. In my view there was no high-handed, outrageous and contumelious conduct by Constable Blades or any of the police officers which warrants an award of exemplary damages. I expressly find that there was no intention to arrest the plaintiff irrespective of the facts or simply because he had irritated the police officers in question.
If I am wrong in relation to this conclusion I would only award $10,000 in addition for exemplary damages.
If the plaintiff's entire case is accepted and preferred to that of the defendant then the plaintiff was arrested without cause, Constable Blades recorded false details in his police notebook and the COPS computer system entry in relation to the plaintiff, and a charge was continued which was known to be unjustified for a dominant malicious motive. That is obviously serious conduct on behalf of police officers. It seems that the conduct was primarily that of Constable Blades.
If the plaintiff's case is entirely preferred then the conduct of Constable Blades clearly amounted to high-handed, outrageous and contumelious conduct by him. The evidence does not support this allegation. In the circumstances, in my view, an award of exemplary damages for malicious prosecution would be warranted and I would award the sum of $10,000.
In conclusion, I find that the plaintiff should be awarded $20,000 damages for the tort of false imprisonment. Interest will need to be calculated and added to this figure.
[12]
Disposition
For the above reasons, I make the following orders in the proceedings:
1. There is to be judgment for the plaintiff;
2. Liberty to the parties to bring in short minutes of order reflecting the mathematically agreed judgment sum including interest;
3. The defendant is to pay the plaintiff's costs of the proceedings as agreed or assessed;
4. Liberty to the parties to apply to vary the costs order in (3) above;
5. The exhibits may be returned after 28 days.
[13]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 24 March 2017
By an Amended Statement of Claim filed in court with leave on 6 December 2016, the plaintiff brings claims for damages against the defendant in the torts of malicious prosecution (paragraphs 24-27), assault, battery and false imprisonment (paragraphs 28-30). Aggravated and exemplary damages are also sought in relation to each of the torts pleaded.
The important facts pleaded in the Amended Statement of Claim are as follows:
1. At about 12.30am on 10 June 2012 the plaintiff, Mr Johnny Raad, and his wife, Mrs Ann Raad, attended the Albion Hotel in Parramatta (paragraph 3);
2. At about 3.15am on 10 June 2012 the plaintiff and his wife approached a male security officer within the Albion Hotel enquiring about whether there was anywhere where food could be purchased. It is asserted that the security officer did not appear to understand the enquiry and the plaintiff then said to him words to the effect of "don't worry about it" (paragraph 4);
3. A short time later whilst the plaintiff and his wife were still inside the Albion Hotel, the same security officer approached the plaintiff and asked to have a word with him outside the hotel. The plaintiff followed the security officer outside and stood with the security officer at the entrance of the hotel (paragraph 5);
4. The security officer is alleged to have said to the plaintiff words to the effect "you are not going back in because you are intoxicated". It is asserted that the plaintiff advised the security officer that he was not intoxicated and it was his turn to drive that evening (paragraph 6);
5. The plaintiff then said he needed to get his wife and approached the entrance to the hotel. The security officer allegedly grabbed the arm of the plaintiff and said he could not go back in. It is said that a short time late the plaintiff's wife exited the hotel. The plaintiff was soon after allegedly approached by a security guard the plaintiff now knows as Ali who pushed the plaintiff in the chest with his chest and then grabbed the plaintiff's arm and yelled verbal abuse at the plaintiff (paragraphs 7-9);
6. As a result of the actions of the security guard Ali, the plaintiff requested security personnel in the area to call the police to report the assault on him by Ali (paragraph 10);
7. A short time later it is alleged Police Officers Frith and Blades exited the hotel and approached the plaintiff who told Officer Frith that he had been assaulted by Ali. The plaintiff was asked for identification by Officer Frith which was provided in the form of his New South Wales driver's licence (paragraphs 11-12);
8. Officer Blades then allegedly said to the plaintiff words to the effect "you will be getting a ticket". The plaintiff responded with words to the effect "what for, I have been assaulted?" Officer Blades is then said to have handed to the plaintiff's wife an infringement notice which alleged that the plaintiff had committed the offence of "fail to leave premises when required" (paragraphs 12-14);
9. The plaintiff then pleads that as he realised that the police were not taking his complaint seriously, he and his wife began walking away from the vicinity of the hotel entrance and walked for approximately 40 metres towards Harris Street. It is pleaded that Officers Gedeon, Blades, Restuccia and the security guard Ali then followed the plaintiff and his wife (paragraphs 15-16);
10. It is pleaded that Officer Gedeon approached the plaintiff and the plaintiff said to him words to the effect "you should have seen I wasn't intoxicated because we were there when you hugged your friend in the club". It is alleged that Constable Gedeon reacted to this comment by clenching his teeth. It is further alleged that Officers Blades and Gedeon then grabbed the plaintiff by the arms and handcuffed his hands behind his back (paragraphs 15-18);
11. It is alleged that the plaintiff was then escorted across the road by police and force was used by Officers Blades and Gedeon to place the plaintiff in the rear of a caged police vehicle. The plaintiff was then conveyed to Parramatta Police Station where he was introduced to the Custody Manager at approximately 4am on 10 June 2012. It is further alleged that at about 6am on 10 June 2012 Officer Blades approached the plaintiff and then said he could go (paragraphs 19-21);
12. Upon being released from custody it is alleged that the plaintiff attempted to make a formal complaint about how he had been treated by police. It is alleged that Officer Blades advised the plaintiff that he would have to wait until a supervisor arrived and when the plaintiff walked out of the police station to have a cigarette he was locked out of the police station and Constable Blades refused to re-open the doors to the police station (paragraph 22);
13. It is alleged that the plaintiff elected to have the infringement notice heard at court. The matter proceeded to hearing and on 23 January 2013 it is alleged that the charge against the plaintiff was dismissed by the Local Court at Parramatta.
In answer to the Amended Statement of Claim, the defendant in its Defence filed 23 September 2015, pleads in summary as follows:
1. It admits that the Crown is vicariously liable for the conduct of the police officers should the torts alleged in the proceedings be proved (paragraph 1);
2. It admits that the plaintiff and his wife were at the Albion Hotel at the times pleaded in the Statement of Claim (paragraph 2);
3. It does not admit the allegations in relation to what occurred prior to the arrival of the police (paragraph 3);
4. It says that the plaintiff was directed to leave the vicinity of the hotel on several occasions by Officer Blades and that the plaintiff was asked for identification and provided his New South Wales driver's licence (paragraph 4);
5. It says that the plaintiff failed to leave the vicinity of the hotel when directed by Officer Blades and was issued with an infringement notice for failing to leave the hotel (paragraph 5(c));
6. It says that the infringement notice was handed to the plaintiff's wife as the plaintiff refused to take the infringement notice (paragraph 5);
7. It says that the plaintiff failed to leave the vicinity of the hotel and became argumentative and quarrelsome and Constable Blades assessed the plaintiff as intoxicated and that the plaintiff was subsequently handcuffed (paragraph 7);
8. It says that the plaintiff was escorted across Harris Street to a police caged vehicle. It pleads that the plaintiff refused to get in to the vehicle and was being argumentative and was resisting and then force that was reasonably necessary was used to place the plaintiff into the police vehicle (paragraph 8);
9. The Defence pleads that the plaintiff was conveyed to Parramatta Police Station at approximately 3.50am, arrived there at approximately 4am and was entered into custody at approximately 4.23am. It also asserts that the plaintiff was released from custody at approximately 4.53am to his wife (paragraphs 9-10);
10. It admits that Magistrate Marsden dismissed the charge of "excluded person remain in vicinity of licensed premises" on 23 January 2013 (paragraph 12);
11. The various tort claims alleged are denied. The defendant also denies that the plaintiff is entitled to any damages at all including exemplary and aggravated damages. It further pleads that at all material times the actions of the police were reasonable and lawfully justified under Section 77 of the Liquor Act 2007 (NSW) and Sections 99(3)(b), 230 and 231 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ("LEPRA"). It is specifically pleaded that no more than reasonable force was used in the circumstances and that the plaintiff's detention/imprisonment followed the plaintiff's lawful arrest (paragraphs 14-17);
12. By way of further defence, the defendant pleads Sections 47-50 of the Civil Liability Act 2002 (NSW) ("CLA") on the basis that the plaintiff was intoxicated and contributory negligence should be found.
At the commencement of the final hearing, after identifying the relevant pleadings then relied on, the court brought to the attention of the parties the decision of the Court of Appeal in Croucher v Cachia [2016] NSWCA 132. In particular, the court indicated that this decision may have some bearing on the plaintiff's pleading of the tort of battery and whether it fell within Section 3B(1)(a) of the CLA on the basis that the battery alleged was "an intentional act that is done by the person with intent to cause injury" to the plaintiff.
Counsel for the plaintiff obtained instructions, and indicated that the plaintiff would plead first, that the police officers in question for whom the defendant was liable intended to cause injury to the plaintiff and, in the alternative, that the injury caused to the plaintiff was negligently caused by the police officers for whom the defendant was liable. This was reflected in the amendment in paragraph 28 of the Amended Statement of Claim.
It is clear from the Schedule of Damages handed up by counsel for the plaintiff, and the plaintiff's written submissions, that the primary damages sought by the plaintiff relate to alleged injuries to his knees which he asserts occurred when he was forcefully placed in the police vehicle for conveyance to Parramatta Police Station. It is claimed by the plaintiff that at the time he was handcuffed with his arms behind his back and when he was half way into the vehicle he was forcefully pushed from behind by police officers and landed heavily on his knees causing injury.
As stated above, it is not in dispute that the Magistrate in the Local Court found that the offence of "excluded person remain in vicinity of licensed premises" was not established and the charge against the plaintiff was dismissed on 23 January 2013 following a reserved decision.
Preliminary comments in relation to the proceedings
As often occurs in cases where torts are alleged by arrested persons against police officers, there are starkly differing accounts between the plaintiff and his wife and the police officers for whom the defendant is vicariously liable as to what occurred after the plaintiff left the Albion Hotel and prior to and after the plaintiff's arrest in the early morning hours of 10 June 2012.
In order to determine the issues in dispute between the parties, it is necessary for the court to make factual findings and to decide which account or accounts it prefers as to what occurred.
In making its factual findings, the Court is not bound to accept any of that which a particular witness attests to and similarly may accept part only of a particular witness's evidence: Cubillo v Commonwealth (No 2) [2000] FCA 1084; (2000) 103 FCR 1 at [118]-[123]; Danckert v Tonkin [2015] NSWSC 1570 at [152]. Consequently, it does not follow from the fact that part of the evidence of a witness is rejected that other aspects must also be rejected and that is so even if it be found that the witness was lying: Sangha v Baxter [2009] NSWCA 78 at [155]-[156]; Croucher v Cachia [2016] NSWCA 132 at [129].
In determining the important factual findings which must be made, the Court will take into account all of the evidence as well as other relevant matters including the following:
1. The events in question in these proceedings occurred over four years ago and there are likely to be deficiencies in witnesses' recollections, particularly in regard to the detail of what occurred and was said in the immediate vicinity of the Albion Hotel at the relevant time;
2. The plaintiff was allegedly very upset at the time in relation to his exclusion from the Albion Hotel and what he perceived to be the reaction of police at the time to his complaints of the assault. He had also consumed on his evidence a little more than one glass of beer at the time and his wife had had two alcoholic drinks;
3. There is CCTV footage of some of the events in question in the present case. Some considerable weight should be given to this evidence while conceding the limitations in it. Generally speaking, weight should be given by the court to contemporaneous records unless it is accepted that those records have been manipulated or doctored in some way or are erroneous or unreliable or relevantly incomplete;
4. The majority of the High Court stated as follows in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [31]:
"[31] Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical."
1. Some of the witnesses in the present case have already given evidence in the Local Court in relation to the charge against the plaintiff. This applies to the plaintiff, his wife, Senior Constable Blades and Senior Constable Frith;
2. The plaintiff has in substance by his version and the submissions which have been made on his behalf, alleged that the police versions of what occurred outside the Albion Hotel on 10 June 2012 have been invented and are erroneous, or at least exaggerated, particularly that of Senior Constable Blades.
I will now consider the significant evidence relied upon by each of the parties.
Factual findings
Having regard to all of the evidence and the submissions made on behalf of the parties, I make the following findings of fact:
1. On 9 June 2012 Mr and Mrs Raad had been working during the day: T 15.8. They decided to go out that evening and arranged a babysitter. Between 11pm and 12am Mr and Mrs Raad left their house and after some time driving around, decided to proceed to the Albion Hotel at Parramatta;
2. The Albion Hotel was a large and busy hotel at the time. It had bars, a poker machine area, an external beer garden area where people could smoke and a nightclub;
3. Mr and Mrs Raad arrived at the Albion Hotel at around 12.30am on 10 June 2012. Mr and Mrs Raad took it in turns so that one could consume more alcohol when they went out and the other was a nominated driver for the evening. On 9-10 June 2012 Mr Raad was the nominated driver;
4. At the time the plaintiff was a large gentleman weighing around 117kg: T 61.36;
5. Mr and Mrs Raad remained in the Albion Hotel between about 12.30am and about 3.20am. During that time, the evidence establishes that Mrs Raad had consumed two glasses of Moscato wine. Both Mr and Mrs Raad gave evidence that by 3.20am the plaintiff had only consumed one glass of Victoria Bitter beer and had just bought a second glass of Victoria Bitter beer from which he had taken "a few sips". That the plaintiff had consumed such a limited amount of alcoholic drink is surprising having regard to:
1. His size;
2. The period of two and three quarter hours during which Mr and Mrs Raad had been at the Albion Hotel;
3. The fact that for some of the time they were dancing;
4. That in the course of the trial the plaintiff indicated on a number of occasions whilst he was a witness that he suffered from "dry mouth" and needed to consume a large amount of liquid; and
5. There was no evidence that the plaintiff had been drinking water or soft drink in that period at the hotel. However, in the absence of any compelling conflicting evidence I find that Mr and Mrs Raad had only consumed the amount of alcoholic drink indicated above;
1. Having regard to this finding, the defendant's reliance on a defence under Sections 47-50 of the CLA should be rejected. In my view, the plaintiff was not intoxicated within Section 48 of the CLA. Further, I am satisfied that even if the plaintiff was intoxicated within Section 48, it was not the cause of, or a contributing factor to, any injury suffered by the plaintiff. Accordingly, I reject the defendant's pleading of contributory negligence under Section 50 of the CLA;
2. I accept the evidence of Mr and Mrs Raad that they had a conversation with a security guard concerning the availability of food and that soon after, the security guard asked the plaintiff to leave the Albion Hotel building and follow him outside where the plaintiff was told by the guard that he would not be allowed back in because the guard had formed the view that he was intoxicated;
3. The plaintiff's case was in substance that there was no reasonable basis for the security guard to form that view: plaintiff's submissions in chief at [109]-[112]. However, the plaintiff was a large man at the time, had been working that day, was no doubt somewhat tired having regard to the time, had been at the Albion Hotel for two and three quarter hours, it was after 3.00am and he may well have appeared to the security guard as being intoxicated. The documents which are Exhibit 14 which were completed by security guards and sent to Mr Stephens establish that the guards were of the view that the plaintiff appeared to be intoxicated, whether or not he in fact was intoxicated. Although there was some suggestion by the plaintiff in the evidence of some conspiracy to have the plaintiff excluded from the hotel, possibly so that a person could approach his wife without him being present, this is not established on the evidence. In the end, I am satisfied from the contents of Exhibit 14, by a review of the film which is Exhibit 1 and from the matters referred to above, that the security guard in question honestly and reasonably thought the plaintiff was intoxicated at the time and should be excluded from the Albion Hotel: see paragraph 72 of the defendant's written submissions. In making this finding I take into account the plaintiff's criticisms of Exhibit 14: plaintiff's submissions in chief at [109]-[112]. However, these documents were, it seems, prepared on or soon after 10 June 2012 and are thus contemporaneous or near contemporaneous;
4. I find that the plaintiff honestly believed at the time that he was not intoxicated and from his limited consumption of alcohol over the period at which he had been at the Albion Hotel, as found above, it would seem he was not intoxicated. I also find that the plaintiff was upset, indignant and possibly even outraged at the fact that he had been asked to leave the Albion Hotel and had been refused re-entry. He had been a person who had been a customer at the hotel on a number of prior occasions. The plaintiff's reaction as described is clear from his evidence, the police officers' evidence and Exhibit 1, the film. He clearly believed that a grave injustice had been caused to him and that his exclusion was not warranted. However, instead of accepting that an unfair decision had been apparently made and going home, the plaintiff decided to stay and remonstrate with the security guards;
5. Contrary to the plaintiff's evidence, I find that the plaintiff remonstrated with the security guards for some time, was speaking in a loud voice and was waving his arms around as he spoke. Such a finding, in my view, is established by the film in Exhibit 1 (although it has no sound), Mrs Raad's evidence and Exhibit 14. I find that the plaintiff did not accept his exclusion and was arguing with the security guards in a loud voice in relation to the validity of his exclusion. The plaintiff believed that he had been unfairly treated;
6. Although the film which is Exhibit 1 is not completely clear, the firm impression I gained from it was that the security guard identified by the plaintiff as Ali advanced on the plaintiff in a menacing fashion soon after he had been excluded from the hotel and probably pushed the plaintiff with his chest and his hands. In this regard I accept the evidence of Mr and Mrs Raad, although the plaintiff had the guard pushing with his hands and chest whereas Mrs Raad had the guard pushing with his chest and shoulder. The film shows one of the other security guards directing the guard Ali out of the way which is consistent with contact having occurred between the plaintiff and Ali. I find that at no stage was the plaintiff the aggressor;
7. The conduct of this security guard aggravated the plaintiff further and increased his sense of upset and outrage at the way he had been treated. The plaintiff was extremely upset at this stage and continued to remonstrate with the security guards in relation to his treatment. Again, instead of leaving the premises and complaining about the guard's conduct at Parramatta Police Station, the plaintiff chose to remain. He requested his wife to call the police but she did not do so. I accept her evidence on this issue. She had come out of the Albion Hotel shortly before the plaintiff was assaulted by the guard. It seems unclear how the police were called but it is likely that one of the security guards approached police who were already within the Albion Hotel conducting a high visibility police walkthrough;
8. The plaintiff claimed that the police officers, including Constable Gedeon, had been standing near the table where he and his wife were standing for over an hour whilst they were in the Albion Hotel. In his letter which is part of Exhibit 7 the plaintiff indicated that the police were near he and his wife "for at least 15 minutes or so" and Senior Constable Frith said that being present at the Albion Hotel for more than an hour would have been unusual although he conceded that being present for half an hour was possible. Constable Gedeon said that police were only present for a few minutes in the hotel. Overall, I find that the police had not been at the premises for anywhere near one hour but for a substantially lesser period of somewhere between 10-20 minutes. I note that Exhibit 1 discloses a number of police entering the Albion Hotel only a relatively short period before the plaintiff left with the security guard;
9. The plaintiff and Mrs Raad waited outside the entrance to the Albion Hotel for a period of about 10 minutes until the police arrived. I accept the plaintiff's evidence as to this which is confirmed by Exhibit 1. The plaintiff remained highly upset during this period. In his letter dated 11 June 2012 the plaintiff said that when the police came he was "hyperventilating due to being upset". The fact the plaintiff said this in the letter shows the degree to which he was upset at his treatment. I find that the front entrance of the hotel was about 30-40 metres from the footpath on Harris Street: see T 604.38; T 623.32;
10. I accept the plaintiff's evidence that he orally complained to the police about his exclusion and the assault upon their arrival. I find this even though the plaintiff did not state in his evidence precisely what he said to the police. Although Constable Frith could not recall the plaintiff complaining about being assaulted and Constable Blades denied it (T 559.4) as did Constable Gedeon (T 621.18), I find that he did. It would have been highly unlikely that the plaintiff did not complain to the police about the assault in circumstances where it had occurred and where he claims that he had remained at the hotel to do so. The plaintiff was also loudly asserting his rights and a complaint about the assault was very likely. I also find that the plaintiff complained to the police in a loud and argumentative fashion and whilst throwing his arms around. This seems to be confirmed by Exhibit 1 and Mrs Raad as well as the evidence of the police officers. I also find that the plaintiff was not intending to be unco-operative or aggressive in doing so but that this reflected his degree of upset and outrage at what he had perceived to be his unfair and improper treatment by the security guards;
11. The film shows Senior Constable Blades apparently writing down some notes but these were not about the alleged assault: see Exhibit 17. This was unfortunate and the police should have treated the plaintiff's assault complaint seriously and told him that they would investigate it. It may be that the police thought that the assault was somehow connected with the plaintiff being removed from the premises. The police conduct in apparently not treating it seriously by not taking notes clearly outraged and upset the plaintiff even further. By this stage, I find that the plaintiff was so incensed that his sole aim was to plead his case about the way he had been treated and he paid little attention to what was being stated to him including by the police present;
12. I find that either Senior Constable Frith or Constable Blades, or probably both, directed the plaintiff to leave the premises (being the hotel property) as he had been excluded by the security guards. The plaintiff chose not to do so and to remain putting his case. It may well have been that he was so upset that he did not hear the directions being given to him by the police officers. In this regard I prefer the evidence of Senior Constable Frith (as confirmed by Constable Blades and Constable Gedeon) that directions to leave the premises were given by the police to the plaintiff: see the defendant's written submissions at paragraphs 124 and 152. I find that the plaintiff was complaining loudly at this time, appeared upset and quarrelsome and was waving his arms about. In my view and contrary to the plaintiff's written submissions, he reasonably appeared to police to have been intoxicated at the time even if he was not. The plaintiff was clearly entitled to complain to the police about the assault and in my view it was reasonable for him to remain outside the hotel for a period to do so. I accept the plaintiff's submissions in chief in this regard: see 215. However, I also find on the weight of the evidence that the plaintiff remained well after he had notified police of the assault and after he had been directed to leave by the police officers.
13. I reject the plaintiff's submissions that police should have subjected him to an alcolyser test: submissions in chief at [124]-[125]. There was no obligation on them to do so and it would unnecessarily and unreasonably restrict police in their duties if they were obliged to test every excluded patron who requested such a test.
14. At some stage the plaintiff was asked by police for his driver's licence. At about this stage, with the plaintiff not departing the premises as directed, Constable Blades wrote out the penalty notice which he then gave with the driver's licence to Mrs Raad. I reject the suggestion that the plaintiff refused to accept his licence and the penalty notice as this seems contrary to the plaintiff's evidence and Exhibit 1. At this time I find that Constable Blades directed the plaintiff to leave the vicinity of the hotel. This was the evidence of Constable Blades, and is consistent with Exhibits 17 and M and was effectively conceded by the plaintiff: T 68.38 cf; T 69.35;
15. I find that Mr and Mrs Raad then proceeded down the driveway of the Albion Hotel towards Harris Street. Although there is some evidence from Senior Constable Frith and Constable Blades that they held each arm of the plaintiff to get him "on his way" down the driveway, I find that this did not occur but that the group of police officers followed the plaintiff and Mrs Raad down the driveway in order to ensure that he left the vicinity of the hotel. I substantially accept the plaintiff's submissions in chief on this issue: see [21] and [156]-[159]. Senior Constable Frith's evidence on this issue was quite vague. Constable Blades' evidence on the issue was inconsistent with his statement (Exhibit 20, paragraph 17);
16. To the plaintiff, the officers following him down the driveway aggravated his upset and on his own evidence made him "paranoid". By the time the plaintiff arrived at the footpath on Harris Street at the bottom of the driveway from the entrance to the Albion Hotel I find that the plaintiff was extremely upset and outraged in relation to what he perceived to be his unfair treatment at the hands of the security guards and police and continued to remonstrate with police. I also find that the police were reasonably justified in the circumstances in following the plaintiff down the driveway to ensure that he left the vicinity of the Albion Hotel;
17. The plaintiff gave evidence that he attempted to cross Harris Street twice but then became extremely concerned that something might happen to him on the other side of the road near the park. He also gave evidence that he came back because his wife had not followed him. In my view it is unnecessary to make a finding in relation to why the plaintiff did not cross the road. What is clear is that the plaintiff returned to the footpath. From the film it appears that he continued to complain to police. The film shows him walking away from the driveway entrance and then returning towards police with his arm extended. I reject the plaintiff's factual submissions in chief to the contrary: see 189, [193]. I accept the defendant's factual submissions on this point which are consistent with the film Exhibit 1: see defendant's submissions at [135]. The plaintiff submits that he only walked towards police not towards the entry driveway to the hotel. In my view, in walking towards police the plaintiff could reasonably be regarded as walking towards the hotel driveway. At about this time the police arrested the plaintiff;
18. There is a suggestion by Constable Blades that the plaintiff approached Constable Restuccia in a menacing manner. Constable Restuccia herself gave no evidence of this and I reject the suggestion that any reasonable person, including the police officers present, could have formed the view that there was any risk from the plaintiff to Constable Restuccia at the time. In my view, Constable Restuccia would very likely have remembered this if it had occurred. I accept the plaintiff's written submissions in chief on this issue: see [93], [196]. There is also some suggestion from Constable Blades that the plaintiff resisted his arrest on a number of occasions: see Exhibits 17 and M. Having viewed the film and observed the plaintiff giving his evidence on this issue, I do not accept that the plaintiff resisted his arrest in any way. However, I do find that the police in all the circumstances were reasonably justified in forming the belief at the time that the plaintiff was refusing to leave the vicinity of the hotel by him approaching them complaining after walking away from the driveway. In my view, this clearly is the firm impression given by Exhibit 1;
19. The plaintiff gave evidence that he was not told why he was arrested. Mrs Raad did not hear anything said to the plaintiff as to why he had been arrested. Senior Constable Frith said that he did not recall the plaintiff being told why he was not free to leave as he (Constable Frith) was walking across the road to open the police van door but said "it would have been done, that's what we do": T 361.2. Constable Restuccia could not recall even whether she was on the footpath area when the plaintiff was arrested: T 422.37. Constable Blades' evidence was that he did tell the plaintiff why he had been arrested;
20. The question arises for consideration as to whether Constable Blades and/or Constable Gedeon informed the plaintiff as to the reason why he had been arrested. In my view it is unlikely that Mrs Raad would have heard this if it had been said due to the fact that her husband was being arrested and she was outside the group of police. I also find that the plaintiff would have been preoccupied with the fact he had just been arrested. On his own evidence he was very upset and "paranoid" at the time. The arrest would have further upset him. I consider it likely in all the circumstances and I find that the plaintiff was told that he was under arrest and the reason for it by Constable Blades as asserted: see T 489.24; T 489.49; T 510.27. I make this finding, taking into account the inconsistencies in Constable Blades' evidence discussed above and the plaintiff's written submissions;
21. I find that the plaintiff was then escorted by a number of police officers across Harris Street to the police wagon, the back door of which had been opened by Senior Constable Frith. I accept the plaintiff's evidence which seems to be confirmed by the film evidence that he did not resist arrest in the course of that being done;
22. I accept the plaintiff's evidence that there was a step into the police vehicle and that he had commenced getting into the police vehicle with his hands handcuffed behind his back when the conversations occurred between himself and his wife and the comment was made by Constable Blades as to his wife having money. I accept that these conversations occurred as they are believable and confirmed by Mr and Mrs Raad. I prefer their evidence to that of Constable Blades on this issue;
23. An important issue arises for consideration as to whether the plaintiff was "pushed" in a strong fashion into the police vehicle, landing on his knees. At the time the plaintiff was handcuffed behind his back. He was a large man weighing 117kg. He had just been arrested and was being placed into the police vehicle. He was raising a legitimate issue with his wife as to whether she had money for the purposes of a taxi. The police in those circumstances, in my opinion, needed to exercise care in assisting the plaintiff into the police vehicle. He could not use his hands to prevent injury if he fell.
24. Having considered all of the evidence and the seriousness of making such a finding I accept the evidence of the plaintiff and Mrs Raad that the plaintiff was strongly pushed into the back of the police vehicle by police officers who included Constable Blades and that he landed heavily on his knees. I find that such conduct by the police officers was unreasonable and involved the use of excessive force in the circumstances. There was no resisting of arrest by the plaintiff and having regard to his vulnerable state with his hands handcuffed behind his back some real care should have been exercised. I find that there was no reasonable basis for forming the view that the plaintiff was resisting getting into the police vehicle. I carefully observed Constable Blades giving evidence on this issue and I prefer the evidence of Mr and Mrs Raad that Mr Raad was strongly pushed by police;
25. Constable Blades conceded in his oral evidence in cross-examination that he pushed the plaintiff into the police vehicle (T 556.13; T 556.32) and that he was annoyed with the plaintiff at the time (T 556.50). This evidence should be contrasted with Constable Blades' evidence in chief: T 490.30-.38;
26. I find that the plaintiff landed on his knees in the back of the police vehicle and that this caused some pain to his knees. I also accept the evidence of the plaintiff that he had some trouble getting up from that position to sitting on the seat in the back of the police vehicle;
27. The plaintiff was I find somewhat traumatised by his arrest and outraged at what he thought was unfair treatment. The plaintiff was then taken in the police vehicle to Parramatta Police Station;
28. I accept the evidence of Senior Constable Rogers in relation to the plaintiff's treatment while he was at the police station. I also accept the accuracy of the Custody Management Record completed by Senior Constable Rogers. I think it likely that the plaintiff was upset and outraged in relation to his treatment and that he refused to co-operate fully with Senior Constable Rogers and, from his argumentative and unco-operative manner at the police station, probably appeared to Senior Constable Rogers to be intoxicated, whether he was or not. I find that the plaintiff's recollections were poor in relation to what occurred at Parramatta Police Station which is not surprising in the circumstances having regard to his upset at being arrested. I reject the plaintiff's factual submissions in chief in relation to the evidence of Senior Constable Rogers: [104]-[108]. I find that the plaintiff was treated properly at all relevant times whilst in custody, including by Senior Constable Rogers;
29. I find that the plaintiff was in due course released from the police station. This was at 4.53am: see Exhibit 12. A major issue was made at the hearing in relation to whether Constable Blades intentionally locked the plaintiff out of the police station. Parramatta Police Station was a busy police station at the time and I find that such a lockout did not occur as it would have prevented other people entering the police station. The plaintiff himself did not see Constable Blades lock the door. I prefer Constable Blades' evidence on this issue and am not willing to infer that he locked the station door so that the plaintiff could not enter;
30. I find that the criminal charge of "excluded person remain in vicinity of licensed premises" was heard in the Parramatta Local Court in late 2012 and on 23 January 2013 the Magistrate dismissed the charge;
31. The evidence in relation to the alleged injury to the plaintiff's knees was very limited and unsatisfactory: T 34.21-36.30. The evidence shows that the plaintiff's business closed down in 2013: T 35.45. No evidence was led of any connection between the plaintiff's knee injury and the closure of the business. It is also noted that surprisingly no relevant evidence was led from Mrs Raad in relation to the plaintiff's alleged knee injuries or restrictions;
32. The plaintiff claims that his knees were "fine" prior to the accident and that he never had any major issues with his knees: T 36.19-.25. However, the report of Dr Drummond refers to the plaintiff's general practitioner's notes on 24 January 2012 where they state "painful, swollen right knee". Dr Drummond was not cross-examined. It seems that the plaintiff attended his general practitioner two days after the accident and did not complain in relation to his knees. The first complaint in relation to the plaintiff's knees to his general practitioner after the incident recorded in the general practitioner's notes was on 9 July 2014 (over two years later) and the referral by the general practitioner to an orthopaedic surgeon was not until June 2015, some three years after the accident. I take into account that doctors' notes may be limited and that errors do occur in recording history: see Ceva Logistics (Australia) Pty Ltd v Redbro Investments Pty Ltd [2013] NSWCA 46 at [144];
33. Both doctors whose reports were in evidence noted that the plaintiff had degenerative problems with his knees at the time of the accident. As indicated above, very limited evidence was led in chief from the plaintiff in relation to his knees: see T 34.21-36.30. Having regard to that limited evidence and the chronology of complaints by the plaintiff to his medical practitioners, I am not satisfied on the medical evidence that the plaintiff's current problems with his knees were linked to the incident on 10 June 2012. In this regard I prefer the evidence in the report of Dr Drummond to that in the report of Dr Lee. In my view, Dr Drummond's report is far more comprehensive and reasoned than Dr Lee's report. The lack of complaint by the plaintiff to his doctors for some two years after the incident in my view strongly supports the medical opinion of Dr Drummond. In the end, I am not satisfied that the plaintiff's current complaints in his knees are linked to the plaintiff landing on his knees when placed in the police vehicle on 10 June 2012;
34. I also find that the evidence does not establish to the necessary Briginshaw standard that there was any actual intention in the police officers placing the plaintiff into the police wagon in order to be conveyed to Parramatta Police Station to cause injury to the plaintiff. There was no evidence of any statement which would suggest this and the pushing of the plaintiff into the vehicle is equally consistent with the police becoming impatient and annoyed with the plaintiff and wishing to get on with the task of conveying him to Parramatta Police Station, whilst exercising unreasonable force in placing him in the wagon. The evidence does not satisfy me to the Briginshaw standard that the police involved had this intention;
35. It is necessary to consider whether Constable Blades, as the relevant prosecutor, had a malicious intent in bringing or continuing the proceedings against the plaintiff. As set out above, there are many errors in the COPS entry (Exhibit M) and the statement for use in the Local Court (Exhibit 20) which raise real doubts about the reliability of Constable Blades' recollections. The main attacks on Constable Blades were on his credit, the reliability of Exhibits M and 20 which he largely prepared and the strength of the evidence against the plaintiff, particularly whether Constable Blades had sufficient evidence in relation to whether an "authorised person" within Section 77(1) of the Liquor Act 2007 (NSW) had refused to admit or turned out the plaintiff from licensed premises on the basis that he was "intoxicated", such that Constable Blades should be inferred to have initiated or maintained the proceedings against the plaintiff maliciously and without reasonable and probable cause: see the plaintiff's written submissions in chief at [135]-[172]; [200]-[216];
36. Constable Blades gave evidence that he was told by security guards that the plaintiff had been asked to leave because he was intoxicated and that he (Constable Blades) was the authorised person within the Liquor Act who had directed the plaintiff to leave the vicinity of the Albion Hotel as he independently formed the view the plaintiff was intoxicated: T 477.37-.45; T 586.39-588.39; T 595.29-.37. See also the evidence of Constable Gedeon at T 616.49;
37. Under Section 77(1) of the Liquor Act an "authorised person" means "a licensee, an employee or agent of a licensee or a police officer".
38. The film (Exhibit 1) shows the plaintiff to have been refused entry to the hotel by a security officer who, in that role, must have been an employee or at least (I infer) an agent of the licensee. This does not seem to be disputed by the plaintiff in these proceedings: T 59.31-.35. Senior Constable Frith and Constable Blades also, as I have found, asked the plaintiff to leave the vicinity of the hotel as they formed the view the plaintiff was intoxicated;
39. The fact that Constable Blades did not have a statement from a security guard when the matter came before the Local Court is not to the point. In my view he had reasonable and probable cause to believe that the fact the plaintiff was excluded by an authorised person and refused re-entry by an authorised person would not be in issue because of the film (Exhibit 1): cf plaintiff's written submissions in chief at [210]-[216];
40. I also find that Constable Blades was not acting maliciously - he believed that the plaintiff had been excluded and refused entry because of intoxication; the plaintiff reasonably appeared intoxicated to him even if he was not; and the plaintiff had been directed by him (and Senior Constable Frith) to leave the vicinity of the hotel in circumstances where he (Constable Blades) was an authorised person under the Liquor Act. The fact Constable Blades did not have a statement from the guard may have been an omission in collecting all evidence to establish the lead up to the offence. However, it does not in my view establish a dominant malicious motive;
41. Overall I accept Constable Blades' evidence on this issue, whilst taking into account the errors in the COPS entry (Exhibit M), his statement (Exhibit 20) and the submissions made by the plaintiff in relation to his reliability.