Richards v State of Victoria [2003] VSC 368

Supreme Court of Victoria|2003-10-02|Before: OSBORN J

ASSAULTS AND HARASSMENT - alleged against police officers. MISFEASANCE in public office - Possible torts of invasion of privacy and harassment. EVIDENCE - Approach to be taken where witness suffers from "delusional disorder".

Mr Richards, the plaintiff in this matter, brings a claim against the State of Victoria and four individuals who were members of the Victoria Police at the time of the events in issue. It is alleged by him that in 1994 and 1995 he was harassed and assaulted by police in a series of incidents.

The plaintiff has what he regards as an unhappy litigation history despite having recovered damages firstly in 1988 as a result of a claim for professional negligence arising out of surgery to his left knee in 1975, and secondly in 1991 as a result of proceedings arising out of injuries suffered in a motor car accident which occurred in 1982.

The plaintiff remains fundamentally dissatisfied with the outcome of both proceedings and is fixed with the conviction:

(a) that he has not received justice; and

(b) that others are to blame for the unjust outcomes.

As a result he has instituted not only a variety of appeals with respect to the above proceedings but also a sequence of professional negligence claims against those who have acted for him as legal representatives, including claims against counsel who appeared for him in the initial medical negligence claim, counsel who appeared for him on appeal, and counsel who have advised him.

The intensity of his emotions in relation to his perceptions of the responsibility of others for his problems is reflected in statements such as the following:

"I once said that I would have blown Ross Gillies away for what he's done to my family. But I would never have done it, it was just an off the cuff thing. I said that I couldn't do it because I wouldn't want to put his wife and kids through what he put mine through. But I could never have done it. I mean I wish I could go and do it now to him for what he did to me - blew the court case before Justice Ormiston. I mean but I couldn't do it. If I walked in with a gun I could never pull a trigger and shoot anybody like that in cold blood, even though he's tortured me. And I'm still going him for the Limitations of Actions Act for the psychiatric component of his - there is about three components of it - of my psychiatric problems. So I just haven't got around to it because of this and my limitations."[1]

In addition to blaming his legal representatives for the outcomes of his personal injuries litigation, the plaintiff also attributes to members of the Victoria Police a continuing desire to do him harm and a material involvement in the outcome of his personal injuries claims. In particular, he believes that in relation to the claim arising out of the motor car accident, police involved themselves because they have sought to even up with him since he was acquitted of charges of assaulting police in 1976. He further believes that police have had a material financial interest which they have pursued in frustrating his claim for appropriate damages arising out of the motor car accident because police superannuation funds are invested with the same State Insurance Office he believes resisted his personal injuries claim.

I should record that there is no doubt that the plaintiff did suffer personal injuries in both 1975 and 1982 and that he continues to suffer from a variety of medical problems. A discharge report from the South West Area Mental Health Service (associated with the Western Hospital) summarises his diagnosis as at 26 April 2002 as:

"Delusional disorder ... chronic back, right leg and neck pain. Current resolving rhabdomyolysis and right buttock compartment syndrome. Clotting disorder."

Dr Matthew who gave evidence on behalf of the plaintiff said that in many years of treating the plaintiff for vascular problems he had found that complaints of physical symptoms were justified upon investigation.

The consequences of the plaintiff's medical problems and the outcomes of the various claims which he has made have been disastrous for him. He has ceased to work. He has lost his house as a result of borrowings made to finance litigation. He has suffered the breakup of his marriage, and at the time of the events forming the subject matter of these proceedings he was living a marginalised life in his car in the Altona Beach area.

His own recollection of background events relevant to the central allegations in this proceeding is summarised in a letter he wrote to Dr Kwong, a psychiatrist whom he saw for the purposes of these proceedings (which letter reflects the substance of his oral evidence to me as to these matters):

"Dear Dr Kwong In 1974 at the age of 29 I was a successful builder and developer making $70,000.000 clear for the financial year mid 74-75, building my own flats, on my own land. In July of 1975 I went into Allendale private hospital, to have my R. knee medial ligament and cruciate ligaments repaired, whilst in the hospital I was placed in a bed that was extremely sagged, with a worn out flock mattress on it, and when my body weight went onto the mattress, it all sagged down until I rested on a pronounced ridge across the centre of the bed. This caused sacro-lumbar ligament damage (healed) R. sacro sciatic ligament damage, severe R. buttock muscle damage, deep vein thrombosis, and a massive pulmonary embolus which occurred 2 weeks after being discharged from the hospital, I had deep vein thrombosis in all the deep veins and others up to a level about 150mm from the knee crease, which caused the R. leg to swell grossly and pain severely to 1981. In 1976 I was driving home and was followed by a off duty policeman to my block of flats where I lived, on alighting from his car, and approaching me, I was punched 3 times on the chin, after the third punch I took hold of both of his arms and resisted him. I was later charged with 4 very serious offences, but was later completely cleared in the Footscray magistrates court, after this I was regularly pulled over by police and harrassed in a variety of ways. Because I was unable to work with the injuries mentioned until the beginning of 1982, I took legal action against the hospital and the surgeon J. Grant, when I returned to work at the beginning of 1982 I had a limited flexion range, a reduced sitting time, and a grossly swollen R. calf the longer I spent up on it, I had lived, and kept my family during the years I couldn't work by using the wealth and assets I had created from 1965 to mid 1975, by 1981 most of my wealth had gone except for my house which I owned. In 1981 I decided to sell my house and build a much bigger and better house so as to double my money quickly, and use that money to get back into the multi unit developments, with my son joining me in the future as my apprentice, I did this in Altona, where I built a large modern home starting it at the beginning of 1982, I made about $100,000.00 clear on this house immediately in 1982 if I had of sold it then. In November of 1982 I was driving along the Esplanade Altona, when a driver did a U turn across my path and I ran into the side of her car, because of the unusual circumstances of the collision I sustained very extensive injuries, and was totally incapacitated for work for the rest of my life, the injuries were a posterior crushed L5S1 disc that required fusion, SLL at L5S severe damage to a number of discs in my neck and thoracic area, chronic neck ligament damage, R. sided damage to the gasserion ganglion, which affects many things, R. ear noise intolerant, eyes to light, etc. brain stem damage, etc. R. shoulder R. hip. In the late 1970's I believe I developed severe stress because of my life's situation, caused by the first lot of personal injuries, and in the eighties, severe depression because of my physical and financial situation, this was diagnosed by Dr Bob Montgomery, and a report was provided stating this for my solicitor who was handling the Allendale hospital J. Grant personal injury case, because the case was taking so long for him to get the case before a court. During the eighties whilst I was living in Altona with my family things were extremely difficult because of the financial situation, and my wife and I used to have a lot of problems because of the financial situation. The Allendale hospital and J. Grant personal injuries case went before the court in February of 1988 in the Supreme Court Melbourne, I was very definite with my instructions to my barrister and solicitor as to what my financial losses were, and they agreed to follow my instructions at trial, and gain for me compensation of 1.2 million, the trial had been going for some days when my barrister suddenly said to the court quote, "and if you were to give Mr Richards $50,000.00 it would be a lot of money" and walked out of court, there was a confrontation in the corridors of the Supreme Court where the barrister and solicitor forced an amount of $60,000.00 on to me, under protest by me, but they would not listen to me, ever since that day it has had a serious emotional effect on me, coming into my mind nearly every day, causing severe stress, I tried to take legal action against them immediately, but was told that you can't sue barristers, this also caused the fluctuating depression to become more regular. Because of the severe injuries I sustained in the November 1982 car accident, I was unable to work again, so I took legal action for this, which also took a long time to be put before a court, I had borrowed money on overdraft on the title of my house, to finance the solicitor to prepare this case, but the bank cut off my overdraft a couple of months before the trial, and I was left without representation at trial, and was forced to represent myself, and did very badly because of the depression and opposition having a very experienced jury barrister, I was awarded $19,500.00 and run up an overdraft of about $80,000.00, and because I couldn't pay it off the bank sold me up in a depressed property market, my wife had gone some months before this, and I believe that was the final thing that stopped us from getting back together. After the house was sold my wife and son went to live with her mother who also lived in Altona, and I had a full length bed put into my car and slept and lived from my car mainly in Altona, during the time in the car I was approached by police on hundreds of occasions, I believe mostly motivated by the 1976 incident, this started in 1992. In 1991 shots were fired at 3 houses in my street including mine, the police raided our house about this, guns were pointed at my son and I and I was kicked severely and punched, about a dozen police searched my house and took away my son's guns for forensic testing, no charges were ever laid against me; to cover their tracks they took us to the Altona police station, they eventually let my son go but I believe because I kept telling them that I was going to sue them they called in the police psychiatrist, I believe hoping to gain something out of it, I was assessed at the Footscray psychiatric centre and released, the report said psychiatrically normal admitted in a state of extreme agitation and bruised etc. Whilst in my car from 1992, at first they would just check my licence, then things started to get out of hand, I was sexually assaulted, physically assaulted, and continually harrassed many times up until about late 1994, this caused me to go into a severe depressive psychosis, I was walking around like a robot for a long time, and put on deptran. Whilst they were in my house during the raid, they spoke very little about the shots, but whilst I was handcuffed on the floor the senior detective sat in my loungeroom chair and just wanted to hear all about my personal injuries, there had been other unusual things done and said about my personal injuries and I was being given the message not to make a claim on the 1982 car accident, and to blame the Allendale hospital J. Grant injuries for my being unable to work. So in short there has been other things that have caused me psychiatric problems. The way the legal team mishandled my first lot of personal injuries that went before the Supreme Court in February of 1988, this has been on my mind ever since, causing me severe mental problems and severe stress, and depression, if this had of been settled for an appropriate amount for my losses and injuries, the 1982 car accident would not of had the affect (financial) that it did have, and my marriage would not have broken up. My marriage breaking up, even though I was suffering from fluctuating depression whilst living in the car, I was coping well considering my lifes situation and occurrences before this. The police and what they did to me in my own home, and when I was living in the car caused me to go into the severe depressive psychosis, which I remained in for years (only what they did to me in the car caused the psychosis). Also when I went off the morphine in April 2002 my pain levels went up and in conjunction with the previous things I couldn't cope anymore with it all."

Whilst the plaintiff's evidence before me was generally consistent as to the above matters, I should record that I do not accept that the plaintiff's recollection fully and accurately recounts his history. Perhaps the most significant factor in this regard is his account of the incident at the end of 1991. Whatever may be the truth of events at his home at the time of the shooting incident, it is quite clear that he was thereafter certified by Dr Lawry who gave evidence before me and it is also quite clear that he was not released on the basis that he was "psychiatrically normal".

It is to be noted, however, that the plaintiff specifically stated to Dr Kwong that as a result of police harassment and assaults in 1994 he went into a severe depressive psychosis and "was walking around like a robot for a long time". The plaintiff has further acknowledged that he was "totally out of touch with reality for a long time". In an affidavit sworn in proceeding 4437 of 2001 in this Court the plaintiff deposed:

"And I say further in relation to the Limitation of Actions Act 1958 section 23A paragraphs 2 and 3, that in the year of 1987 I consulted Dr Bob Montgomery, and also his wife who is a psychologist, on a number of separate occasions, and was subsequently counselled by them, for what they diagnosed as fluctuating moderate to severe depression, and severe stress, caused solely by the consequences of the treatment of Allendale Private Hospital and J Grant, surgeon, and the drawn out litigation, and then the resultant financial hardship, and stress on the whole family that caused, this has also been confirmed by consultant physicians. I saw a psychiatrist Dr Barr in November of 1991, in the Footscray Psychiatric Centre, and the first report he did after I was discharged, stated that all my problems were due to long drawn out personal injury litigation, and then family breakdown, I am unable to find this report, but have some reports from the Footscray Psychiatric Centre unsigned, and don't state the things I saw in the signed report, I have no doubt whatsoever, that living under the extreme financial hardship, cracked my wife up, and broke up my family. I saw another psychiatrist Dr Velan in about early 1995, my fluctuating moderate to severe depression, had been caused to develop into what the psychiatrist, and the psychiatric sister who was assigned to look after me, and monitor me where I lived, and who called in regularly to see me in my room, called severe depressive psychosis, this is apparently the most, severest form of depression, and I was totally out of touch with reality for a long time. The psychiatric sister called in regularly to see if I was taking the medication, and would often say to me that I am not aware of what is going on, and to keep taking the medication, because if I don't, and I start to go backwards again, that they never bring them back the second time, if you relapse into the previous state of walking around like a robot. It took a long time to return to what I believe to be 90%+ recovery but I still take the medication."

Dr Kwong expressed the professional opinion that the plaintiff suffers from delusions. She further said:

(a) that she would not accept his evidence as to any aspect of his history without independent corroboration of the fact in issue. She exemplified this by stating that she did not accept that the plaintiff had had surgery to his leg until this was confirmed by clinical examination.[2] More specifically she said:

"I don't know whether Mr Richards perceived really the police really searching, touching or look at him or talk to him. Or just in his delusion that he did. Q. And if it's in his delusion that they did, that may be very real to him?---Yes, as I said, you need to corroborate evidence that the police - absolute evidence - that the police did. I mean a delusional person can also be injured, be harassed. So I have no comment whether he did or not but he could. Because he was suffering from delusional disorder I am not going to believe in his [testimony], someone has to give me evidence before I will believe Mr Richards ... That is the problem in Mr Richards' case. He didn't know where reality ends and delusion begins. So it happens something very bad if it did happen to a delusional person. And so it's really completely sort of pushing over the edge. You really confuse the reality and delusion. I'm glad that the case is in front of the Court so the Court have all the information and the Court can make the judgment and it's not up to me. Even I can't tell."[3]

(b) it is likely that he may have suffered deluded perceptions when in a state of "panic" (he having said in evidence that on a number of occasions when approached by police he did panic).[4]

(c) it is likely that if woken by police whilst sleeping in his car after taking sleeping pills, he would be confused.[5]

(d) it is possible he is deluded not only as to the characterisation of police actions eg. whether they approached his car in a threatening manner, but also as to whether particular events actually occurred including incidents of assault.[6]

(e) he remembers his perceptions ie. his difficulty is not with memory but with the character of his perception of events.[7]

Dr Kwong concluded that on the balance of clinical materials before her, the plaintiff is suffering from a delusional disorder which is kept in good remission by taking medication. She further stated:

"However, I have no evidence for or against that he was harassed by the police ever since he had a run in with one police officer. If those harassments are proven true and correct, it is understandable that Barry could be stressed and become psychotic because of it."

Dr Kwong was not the plaintiff's treating psychiatrist at the time of the events in issue. She properly informed the Court that reports or other evidence from those who were concerned with his treatment at the time would be particularly helpful in understanding his state of mind at the time. No direct evidence was called either from the general practitioners or psychiatrists who treated the plaintiff in 1994/95. No satisfactory explanation has been advanced for this. It can be inferred from the evidence as a whole that their evidence would not have assisted the plaintiff.

As I have noted evidence was, however, called from Dr Matthew who has treated the plaintiff for deep vein thrombosis for many years.

Records were also tendered from Western Hospital to evidence the history of the plaintiff's treatment during the relevant period. It is apparent from these records:

(a) that the plaintiff was hospitalised at the end of 1993 and the start of 1994 and while hospitalised demonstrated delusional behaviour;

(b) that the plaintiff presented with persistent delusions thereafter. In particular, he made repeated complaints of persecution with irritant powder and repeated requests for blood tests to prove he was being poisoned by the powder;

I have already referred to the discharge report of 26 April 2002 from Western Hospital. The summary of mental state examination contained in that report records:

"Thoughts, organised, no formal thought disorder. Strong delusional system that - the police are after him because his court case will bring down the superannuation company - the police are putting 'irritant' into his air vents to deter him / - people in the street give him messages from the police, people on trains know that he is on MS Contin."

The plaintiff had been involuntarily admitted in 2002 after taking an overdose of Amitryptilline. He left a suicide note under his neighbour's door and she alerted the police. He was hospitalised between 15 April 2002 and 26 April 2002. There is thus evidence of serious delusional problems continuing from 1991 to 2002. It will be necessary to refer further to the hospital records in relation to particular aspects of the plaintiff's claim.

Evidence was called from Dr Lawry, the psychiatrist who certified the plaintiff in 1991 following an incident in which shots were fired at the plaintiff's home. Dr Lawry noted the plaintiff believed insurance investigators were watching his house on a continual basis. He believed that whenever the house was empty they would scatter dust around the house. The air vents in the house were sealed with tape to prevent dust entry. The plaintiff covered the couch on which he slept with plastic to make it easier to remove dust. Dr Lawry's report states: "He refused to say who fired the weapon but it would seem likely that he was suffering a further disintegration of his personality and that he may have shot at a non-existent insurance investigator." Dr Lawry was of the view that the plaintiff suffered from fixed delusions and was certainly psychotic.

The plaintiff also called evidence from Ms Sytema as to the happening of the motor car accident in 1982 and from Mr Hildebrand as to the giving of a roadworthiness certificate for the plaintiff's car in 1993. Neither witness assisted the plaintiff's case and Mr Hildebrand directly contradicted the plaintiff's recollection.

The plaintiff's oral account in evidence of the events alleged in this proceeding (which he sees as having occurred in the context set out in his letter to Dr Kwong above) reflects three elements which encourage a cautious response:

(a) the plaintiff's account is replete with bizarre details. The most recurrent being allegations that police and persons unknown were constantly placing respiratory irritants in his car and throwing or funnelling irritant into rooms which he utilised.

(b) the plaintiff's recollection is expressed in vehement detail which emphasises his emotions at the time.

(c) the plaintiff's account is constructed around causal explanations for the disintegration of his life and reflects fixed beliefs as to blame such that significant changes in the weight of the evidence as to the course of events were not acknowledged by him as in any way affecting the probability of his ultimate allegations.

There is one further preliminary aspect of the evidence to which I should specifically refer. In the course of the case the plaintiff challenged the individual defendants to participate in polygraph tests. No adverse inference can be taken from their refusal to do so:

(a) even if the parties were to agree to the taking of such tests it is the function of the Court and not of some third party to assess the credibility of the witnesses. Wigmore on Evidence (Tillers rev, 1983) states at paragraph 7(a):

"Although we do not know whether God plays dice with the universe, a trial is not a crapshoot and the parties should not be permitted to demean the dignity and rationality of the judicial factfinding process merely because they agree to do so. It is one thing to say that a factual controversy shall not be submitted to a court for decision; it is another thing to say that the parties may force a court to resolve a factual controversy submitted to it for decision by methods that the court (and, perhaps, the public) regards as unreliable and arbitrary."[8]

(b) no expert evidence was called before the Court to validate the use of such tests;

(c) the use of such tests has not been accepted in this country as a valid form of evidence in civil litigation;

(d) the plaintiff admitted he could not afford such tests and they would have the obvious potential to both materially expand the cost and delay the outcome of this proceeding;

(e) it is apparent from the psychiatric evidence in this case that it can not be assumed such tests if efficacious in assessing honesty would show other than that the recollections of all parties are substantially honest albeit inconsistent.

I will turn next to each of the individual allegations made by the plaintiff, but before doing so I will state my conclusions from the above background matters as to the general approach which should be adopted as to the reliability of the plaintiff's oral evidence. In so doing I stress that the question of reliability is a different question from that of subjective truthfulness. In my opinion the only conclusion open on the basis of the background evidence to which I have referred is that the plaintiff's evidence as to the occurrence of specific incidents involving police officers cannot be accepted as reliable in the absence of independent corroboration. This conclusion is supported by the following considerations:

(a) the plaintiff's continuing history of serious delusional perceptions between 1991 and 2002;

(b) Dr Lawry's evidence that at the commencement of this period the plaintiff suffered from fixed delusions and was certainly psychotic;

(c) the direct confirmation of the continuation of delusional episodes during the period in issue by way of entries in hospital records;

(d) the plaintiff's continuing belief that police were persecuting him because of his personal injuries litigation;

(e) the plaintiff's own affidavit which affirms that "he was totally out of touch with reality for a long time" at about the time of the matters in issue and his statement to Dr Kwong to like effect;

(f) the context in which the majority of the incidents are said to have occurred, namely when the plaintiff was living in his car taking medication (including sleeping pills) and was vulnerable to panic and confusion;

(g) Dr Kwong's direct evidence that the plaintiff may have had deluded perceptions not only of the character of police actions towards him but as to whether events alleged (such as assaults) actually occurred;

(h) the mode of the plaintiff's presentation to the Court including repetition of bizarre details, emotional vehemence as to matters of detail, and his refusal to acknowledge that a material change in the weight of the evidence as to the detail of events might be regarded as affecting the credibility of his ultimate allegations; and

(i) the seriousness of the allegations in issue which are in substance allegations of continuing and malicious persecution and harassment coupled with four separate incidents of assault.

The Leg Flexion Incident

The plaintiff alleges that on 30 May 1994 police officers unknown to him held him down in his car and by holding his left leg in extreme flexion for some time caused a blood clot to form in that leg. Mr Richards described the incident in evidence as follows:

"I was asleep in my car - on 30 May. I only went by that date because of the medical record of the deep vein thrombosis occurring. I only went by that date there because that's - because that's when the medical record of the doctor I can't find also. But I was asleep in my car and I awakened to find all the doors of my car open, and I was on my chest and they were holding my left knee in extreme flexion, and it wasn't hurting from the point of view I had full range of the left knee then. But where they made their mistake they held it too long for a person with a hyper coagulability problem. You can't stagnate blood in people like myself. I'm on Warfarin which is only really a mild protector to somebody like me who's had a lot of thrombosis and repeated pulmonary embolisms. You can't kink a blood vessel and hold it in - I said to him, 'how long are you going to do that for?', I mean I was getting so used to it going on. 'How long are you going to do that for?' and he said 'Just another few minutes'. Well that indicated to me that he - he'd held it there for some time without - I think I was taking sleeping pills at the time and they were men in suits and men in uniforms and there was about five of them because there were - the four doors were open and they just slammed all the doors and just jumped in their car and took off doing a wheelie. I couldn't see their faces or anything or get a rego number or anything like that it was too dark. It was down the westerly end of the sand section of Altona and if I hadn't got thrombosis out of it I mean it wouldn't have been such a terrible thing."

I do not accept this incident occurred as alleged.

(a) the plaintiff thinks he was taking sleeping pills at the time and his evidence is of a situation which he experienced on awakening in his car in the dark at night. It is likely that he would be confused at such time as Dr Kwong's evidence indicates.

(b) there is an inherent uncertainty in the description of "men in suits and uniforms". It is clear that from time to time the plaintiff was disturbed by persons other than police who, inter alia, slashed the tyres of his car and on other occasions stole from it.

(c) there is no apparent reason why the police would require four men to hold the plaintiff down in his car or why they would apprehend him physically without thereafter arresting him.

(d) the hospital files initially relied on by the plaintiff to corroborate this incident do not corroborate it (for reasons which I shall elaborate shortly).

(e) there is evidence the plaintiff was suffering from delusions in May 1994. This evidence includes a history taken by a medical registrar on 31 May 1994 at Western Hospital which stated in part:

"Also reports shortness of breath over last few days or so but attributes it to strangers in moving cars throwing dust and chemicals over him whilst walking down the street, and also entering his car at night and pouring chemicals over him. Talks about people being after him, people rotating his foot whilst he sleeps etc."

(f) the nursing day report of 31 May 1994 records:

"Patient has been periodically annoyed this evening. Stating that visitors were very noisy and they were walking past his door throwing irritants into his room. Appears to be showing signs of being paranoid..."

"Patient hallucinating. Patient stated that he saw someone putting chemicals into his room."

(h) there is no independent evidence corroborating the happening of this incident and having regard to the preliminary matters I have referred to including the evidence as to the plaintiff's state of mind as a whole and to the evidence of Dr Kwong in particular, I am not prepared to accept the plaintiff's account in the absence of independent corroboration.

The hospital files do not corroborate the events for the following reasons:

(a) the plaintiff elicited from Dr Matthew that he had had only one episode of DVT of the left leg.[9]

(b) the plaintiff further gave a history to Dr Matthew (recorded in Dr Matthew's report of 24 August 2000) and put to Dr Matthew in the course of evidence that the plaintiff was admitted as an emergency to hospital following the incident of assault by police.

(c) the plaintiff relies on the Western Hospital examination sheet of 30 May 1994 which notes "Swollen warm red pitting left leg" and records an ultrasound confirmation of deep vein thrombosis.

(d) the full hospital records show, however, that on presentation:

* the plaintiff stated he had ceased taking Warfarin (a medication used to help prevent blood clots forming) a few weeks earlier;

* the plaintiff gave a history of three days of a swollen left leg which was painful and warm;

* the plaintiff was systematically questioned but no reference to an assault or trauma is recorded. This is a truly extraordinary omission from his history if police had in fact assaulted him.

(e) the cessation of Warfarin provides an alternative causal mechanism for the onset of DVT;

(f) the history taken is totally inconsistent with the plaintiff's evidence;

(g) although the plaintiff in response submitted that he must have confused the date and referred to the wrong hospital record, his initial evidence to this Court and his prior and repeated statements to Dr Matthew were to the effect that he had only one episode of left leg DVT.

The Alleged Incident on 19 March 1994

The plaintiff alleges that on 19 March 1994 he was parked on the Esplanade at Altona West when a police riot wagon stopped near his car and a number of uniformed officers jumped out of the riot wagon and assaulted him. He specifically alleges that Officer Baker struck him in the throat and wrecked the inside of his car causing him to seek help to fix the inside of his car and consult a doctor for neck pain.

"I've parked there on the Esplanade at Altona and the riot wagon pulls up. Two jump out. Mr Baker is one of them and he proceeds directly inside, strike me in the throat. I had my hands in my pocket again that time. I stood in the doorway and as soon as he came towards me I shifted. He struck me in the throat, extended my neck quite severely as the spasm indicates in there and then he wrecked the inside of my car and he dragged the bed that I had the mattress on - the high density foam mattress - he dragged that out. Tried to drag it through the doorway of my car and it was just clearing the road by about four inches. Because of my neck injury, I couldn't put it back in and this was late at night. It was about - I think it was about 11.30. I decided to drive down to my mother in law's place and toot the horn for my son to come out and fix everything and also we took photos of it."

The plaintiff produced photographs of the car which he said were taken on the night of alleged incident.

I do not accept the incident occurred as alleged.

(a) the plaintiff was suffering from delusions at about the time of the alleged incident and was fixated with the view the police were persecuting him. The evidence includes reported complaints to the Western Hospital on 7, 14 and 16 April 1995, of burnings of the windpipe as a result of chemical irritants which were allegedly placed in the plaintiff's car, and requests for blood gas tests to demonstrate poisoning. Such reports confirmed that the plaintiff's delusions were florid at or about the time of the incident in issue.

(b) there is no direct corroboration of the incident.

(c) it is denied by Mr Baker whom I regard as a credible and consistent witness.

(d) no evidence was called to confirm the fact of injury from any treating doctor including the plaintiff's general practitioner at the time.

(e) the plaintiff relies on the fact the Western Hospital records state that he attended at 9.20 a.m. on 20 March 1994 and note:

"Claims to have been assaulted by police last night whilst sleeping in car in Altona ... Claims to have been hit in the larynx by open hand pushed against anterior neck, pushed whole neck backwards in a 'column'. Complained of generalised pain, restricted movement and stiffness/spasm in neck and of generalised weakness in upper limbs."

Despite these notes I do not find the hospital record sufficiently corroborative to persuade me of the truth of the plaintiff's allegations.

(f) no evidence was called from the plaintiff's son or other witness to corroborate the circumstances in which the photographs relied on by the plaintiff were taken. It is inherently unlikely that the plaintiff's car was driven any significant distance in the state photographed.

The hospital record is not materially corroborative of the plaintiff's account for the following reasons:

(a) it refers to complaint of an incident which occurred when the plaintiff was "sleeping in his car". The plaintiff's evidence before me is of an incident in which he observed a riot van pull up and two police get out and assault him. These are also the terms in which the incident is described in paragraph 3 of the further amended statement of claim. There is an obvious and fundamental difference between an allegation that the plaintiff was assaulted when sleeping (as in the leg flexion incident) and an allegation that the plaintiff observed the approach of police in a riot wagon and their direct assault upon him.[10]

(b) there is no direct physical evidence of assault identified as such in the hospital record or by expert medical opinion of a witness given on the basis of the observations noted in the hospital record.

(c) the hospital record corroborates complaint of assault and a complaint of consequent neck pain. Complaint by the plaintiff cannot be regarded as independent corroboration of the actuality of his perceptions.

(d) the desire to document the event because of proceedings before the Ombudsman is recorded in the hospital records. This is consistent with the plaintiff's continuing fixed ideation with police.

(e) Dr Kwong's uncontradicted expert evidence is that the plaintiff may have deluded perceptions as to the happening of incidents of the kind alleged. It follows that the plaintiff's evidence may be truthful as to his recollection but must be regarded as inherently unreliable in the absence of independent corroboration.

Harassment by the Police Helicopter

The plaintiff alleges that during the year of 1994 the plaintiff was harassed and terrorised by the police helicopter to the point that now every time the plaintiff hears the helicopter he becomes stressed and tense. It is alleged that on one occasion in particular the plaintiff was pursued by the police helicopter.

I accept that the plaintiff is and has been for some substantial period of time in fear of the police helicopter. I do not accept, however, that the police helicopter has been used to harass or pursue him. The probability is simply that he has panicked upon becoming aware of the helicopter in his vicinity.

I specifically reject as probable the account he gave of being pursued by the helicopter to his mother in law's house. It is both inherently improbable and not corroborated by any of the many witnesses he asserts could corroborate it. The plaintiff stated:

"----Well, I didn't explain - I didn't explain what occurred with the helicopter. I was sitting in my car with the ear muffs on, I was facing the South Altona beach down the east direction of a parking bay down opposite the pines. That light over there's murdering my eyes. I was sitting in my car down the easterly end of the parking bay of the Pines scout hall and I had my ear muffs on because I had an earache this day, I sometimes wear them when I haven't got an earache so I don't get one but at this particular time I had an earache, it wasn't severe but it was unpleasant. And I went down there to get away from the noises until it went away. And there was some very tall large gum trees collected together on the left. And all of a sudden I didn't hear the helicopter approach, not because of the earmuffs because I quite often hear the helicopter. I quite often hear the helicopter go over either even with the earmuffs on. But for some reason it must have the ability to run reasonably silent when I've got the earmuffs on and it came out of behind the high gums trees and I was daydreaming a bit, looking down, and all of a sudden I looked up and there's this large big expensive police helicopter staring me windscreen to windscreen with the blades spinning around. And it landed directly in front of me. Only from here to that wall over there away. As soon as it landed it started revving its engines unbelievably loud. I immediately started my car and reversed and left. It followed me all the way along the dirt track and then onto the bitumen. It was along that Esplanade part of the bitumen there, the first part. There was only electricity wires on the one side. It was coming from the wires very low onto the centre and diving down and then going back up again and diving down. I thought 'what in the hell do they think I've done, have they seen a body in the bushes or what am I being blamed for this time'. I absolutely panicked. As I was driving along I thought 'are they going to take a shot at me with a high powered rifle'. I couldn't believe that they would waste a $3 million, or whatever it's worth, helicopter on something like this. I thought 'what in the hell is going on'. So once again I head to my son. I arrived at my son and I'm surrounded by, I believe it was three police cars. Some people say it was two, but I believe it was three. And the helicopter's screaming over my mother-in-law's roof. The whole street was out. And standing on their nature strip in their concrete drives, everywhere, people were. And they proceeded to hand me three on the spot parking infringements. And then the helicopter left eventually and then the police left. And as I said to you whenever it was, the only thing I said to one officer, I said 'you guys stink for doing this to me'. Because I knew it was going to upset my mother-in-law and my wife because they're very, very placid decent people and I knew something like that would embarrass them heavily. I've asked them two to come here as a witness and I'm still waiting for an answer. I served - well I don't know whether I served them correctly or not, that's the point that's going on at the moment. Anyway, that's what I wanted to tell you about. They gave me three on the spots."

Evidence was called from Senior Constable Norman of the police air wing who in effect stated that the police helicopter would not fly in such a manner, and that movement, altitude and location of the helicopter are automatically monitored.

Officer Delaforce joined the police force in 1992 after spending nine years in the Navy. He was 26 at the time and was transferred to Altona North in early 1993. He left Altona late in 1994. He has no direct recollection of Mr Richards from that time but does have a recollection of a man living in a car in the Altona area during the period he was stationed there. He has no direct recollection of any dealings with such man. He is now a Senior Constable of Police.

It is alleged against him firstly that he approached the plaintiff on a number of occasions and asked to check his licence despite having ascertained the licence details on previous occasions. Officer Delaforce agrees it is possible this happened but says he would have asked for the licence on each occasion in order to record details on a running sheet at the time.

The plaintiff further alleges that on about 18 March 1994 Officer Delaforce told the plaintiff that he was going to search the plaintiff's car and when the plaintiff objected physically removed the plaintiff from his car and searched the car.

Officer Delaforce says by reference to his diary that on 18 March 1994 he worked the afternoon shift as assistant watchhouse keeper stationed at the police station. He has no recollection of the alleged incident.

The plaintiff further alleges that on a subsequent date in 1994 Officer Delaforce approached the plaintiff again and advised that he was going to search the car again. The plaintiff objected and asked why and was told by Delaforce that the police were looking for drugs. The plaintiff describes what then happened as follows:

"I was parked outside the Altona Tennis Club and he came up and he said to me that he got a complaint that I'm dealing in drugs from the car and I thought - I don't think he ever said that before that they got a complaint from the - that I was dealing in drugs. He said, 'get out and put your hands on the bonnet' and I did that and he started to frisk me around the ankles and up the inside of my left leg and the outside of my leg as well. The top edge of his hand came in contact with my testicles on both sides. He then went around the front of me and felt around the front and brushed against them again. I now believe that he was trying to set me up to strike him because I didn't react. I thought that that might be an unfortunate thing that you have to put up with when drugs are suspected. That may be one of the places that they hide them. I believe he was hoping I'd bring my elbow back and hit him in the face and turn it into a big incident knowing that I had very little power in my arms and he wouldn't get - that he wouldn't get seriously harmed although that's only my opinion now. I certainly believe he was after a reaction. He then grabbed hold of my penis and squeezed it quite hard and I banged my hand on the bonnet of the car and he stood up. He was kneeling. He stood up and shrugged his shoulders and gestured with his hands as much as to say, 'what's he on about.' We had our back to people who were there. There was nobody else in the front of us and the other officer was just searching my car."

Although he has no positive recollection of dealing with the plaintiff Officer Delaforce strongly denies that he would have acted in this way.

Officer Delaforce was forcefully cross-examined by the plaintiff as to his lack of direct recollection of events in 1994. Nevertheless I have come to the view that the plaintiff's account of these matters should not be accepted.

(a) the account given by the plaintiff of Officer Delaforce's actions on or about 18 March 1994 is inconsistent with that given by him to the Ombudsman on or about 20 March 1994.

"On Friday 18/3/94 at about 9.30 p.m. I was parked in Bluegum Drive Altona when I was approached by three police officers. One of the officers had met me before (Delaforce). An officer who told me his name was Baker 23396 said I wasn't to sleep in my car, I was to get out of Altona, and if I didn't he would do my severe harm, he then searched my car under protest from me and when I asked the reason he replied I had an anonymous phone call that you are dealing in drugs from your car, as in the past the search was very incomplete."

(b) no complaint appears to have been made to the Ombudsman in 1994 about alleged body contact by Officer Delaforce with the plaintiff during a drug search.

(c) the incident on or about 18 March 1994 is alleged to have occurred shortly prior to the alleged incident on 19 March 1994 involving an assault by Officer Baker. I have already stated that I do not accept that incident occurred as alleged.

(d) the copy cards tendered by the plaintiff show that on at least three occasions in or about 1994 Officer Delaforce provided the plaintiff with a card stating his name and on two occasions in 1994 his identity number. The provision of such cards tends to confirm the strong impression that Officer Delaforce gave in evidence that in fact he dealt with the plaintiff in a proper and courteous manner.

(e) there is no independent corroboration of the happening of the incident alleged on or about 18 March 1994 or the subsequent body contact drug search incident. Particularly in the circumstances I have already referred to in relation to the incident alleged on 19 March 1994 I am not prepared to accept the plaintiff's recollection in the absence of such corroboration.

Allegations Against Officer Baker

Mr Baker joined the police force in late 1981 after working as a laboratory technician. He was seconded to Altona North Police Station in about 1997 as a Supervising Sergeant. He has since left the police force. During his time at Altona North he became aware of the plaintiff but he cannot recall in what circumstances he first became aware of him. Mr Baker was aware the plaintiff was living in his car parked generally either in the parkland in the vicinity of the council chambers or on the foreshore. He can recall speaking to the plaintiff on numerous occasions and says that:

"I can recall that Mr Richards is a very difficult man to talk to. He was extremely agitated when you tried to have a conversation with him, and quite evasive. At the time I was - well, it's an opinion, but at the time I was of the opinion that he was a troubled person ... troubled as in his state of mind ..."

A series of further allegations are made against Officer Baker in addition to those made with respect to the alleged incident on 19 March 1994. The first of these chronologically is that made in paragraph 13 of the statement of claim. The plaintiff asserts that on or about 18 March 1994 Mr Baker approached the plaintiff and made upsetting comments to the plaintiff.

It may well be that Mr Baker did upset the plaintiff on or about this date but this is not sufficient in itself to found an action in law.

The terms in which the plaintiff gave evidence of approaches by Mr Baker do not reflect a matter of fact recall but rather reflect exaggeration based on a perception of persecution.

"Well once again, Officer Baker approached me on many occasions for no reason other than to annoy me and harass me. He was the one who frightened one more than anyone and I'm hard to frighten not because of the - of my judo skill or boxing skill because I couldn't use it. I was too far gone physically to be able to use it but I just don't frighten easily. With the type of childhood I had and upbringing I had, I mean I had guns pointed at me. I have been shot at that many times I've lost count. My father used to shoot at me all the time and I never manhandled him. I only ever grabbed him once when he was threatening to kill kids. He said in relation to the McKay Trimboli case - we got into a discussion about that. He said, 'they ought to kill the lot of them up there' and it was only because he hates anybody other than Australians or did and I said to him, 'you wouldn't, you wouldn't want to hurt anybody that wasn't dealing in drugs.' 'Kill the lot of them, they're only wogs.' And I said 'yes but there's women, kids the whole lot.' And he said, 'kill the kids and all' and I then boiled. I said, 'my kids are wog's kids' and I grabbed him by the jumper and led him out to the front and I'm not sure whether he shot at me on that occasion or not. There were four bullet holes in the car anyway from an episode with him and so the point is I don't frighten easily even when I've been on death's door on four occasions. My pulse rate doesn't alter much. The doctors know that. I've grown immune to it now. In fact I'd be better off not being here to tell you the truth but anyway. Officer Baker assaulted me, insulted me, threatened me more times than anyone else. He approached me similar to Officer Delaforce - Mr Delaforce about 20 or 30 times. He approached me more - he approached me more than Mr Delaforce, Officer Baker I believe."[11]

It is further specifically alleged (on) "one occasion he told me that Altona isn't big enough for the two of us, and he's not leaving, and I was to get out of Altona or serious harm would come to me, this caused severe stress, severe fear."

In evidence the plaintiff expanded this specific allegation to one which sought to characterise repeated events:

"Paragraph 13 where he said to me, 'Altona isn't big enough for the two of us'. He said that sort of thing to me on numerous occasions. 'Altona isn't big enough for the two of us' and he's not leaving. 'There isn't enough room in Altona for the two of us and get out.' He used that sort of expression to me a lot and over a long period of time."

Mr Baker denies using such expressions and in the absence of independent corroboration I do not accept that they were used.

In this regard I note the conjunction of 18 March 1994 with 19 March 1994 in respect of which I have already rejected the plaintiff's allegations.

Two incidents are alleged to have occurred on or about 12 April 1994. First it is alleged in paragraph 12 of the statement of claim that Mr Baker checked the plaintiff's licence. Second it is alleged in paragraph 14 that Mr Baker forcibly removed the plaintiff from his car, searched the car, and threatened the plaintiff.

Police records show Mr Baker issued two penalty notices to the plaintiff as a result of an incident early on the morning of 12 April 1994. At 1.00 a.m. Baker observed the plaintiff parked on a foreshore reserve. He approached and asked the plaintiff to turn off the engine of his vehicle and get out. In response the plaintiff drove off but was pursued by Baker in the police vehicle utilising blue lights and an intermittent siren. Eventually the plaintiff was intercepted at the opposite end of the Esplanade. Baker agrees he would have asked the plaintiff to produce his licence. This was standard procedure. It enabled confirmation that the licence was current. Two penalty notices were issued, one for parking on the reserve and one for failing to obey the traffic instructions of a member of the police force. Baker conceded that it was common for vehicles to park on the reserve and although this was presumably less common at 1.00 a.m. it is difficult to avoid the impression that if the plaintiff had not driven off when approached and spoken to by police, he may not have been booked.

Baker's account of the circumstances in which the confrontation commenced is generally consistent with a letter of the plaintiff to the Ombudsman dated 12 April 1994 which states:

"In the early hours of this morning I was parked on the grass in the Esplanade Altona, it is considered okay to park in this place, as hundreds of cars do it all the time over the weekends, etc. when I was awakened by Constable Baker banging on the window, as I was in a lonely dark spot, I would not open the door, and decided to shift to the well lit position, at the end of the Esplanade, I was followed by the police car lights flashing and siren occasionally being turned on, they asked for my licence, and did a breath test, they made a token search of my car and on finishing, C. Baker said to me there is not enough room in Altona for the two of us, get out, he also threatened that I would be killed ..."

"He forcibly removed me from my car. When he forcibly removed me from my car, he squeezed hold of me very hard. He got hold of some flesh and squeezed holding it very hard when he pulled me out of the car. He threatened me that I'd be killed as it says there."

I prefer Mr Baker's account of what occurred on 12 April 1994 to that of the plaintiff. Firstly it is based on contemporaneous notes. Secondly I do not accept there was anything improper in asking to view the plaintiff's licence. Thirdly I do not accept the plaintiff's allegations that he was forcibly removed from the car. This allegation was not made in the letter to the Ombudsman written on 12 April 1994 and I am not satisfied there is any basis for it. Further I do not accept the allegations that the car was searched and on completion of such search a death threat was made to the plaintiff. Although these allegations are made in the letter to the Ombudsman, the letter goes on to make an allegation that the police "stole a part of a shovel handle, which is used by me for me to attend things under the bonnet, that I can't reach". This allegation has not been persisted in and is inherently improbable. The allegations of search and death threat although persisted in are not independently corroborated and are denied by Mr Baker.

It is further alleged that Mr Baker in or about April 1994 approached the plaintiff at about 11.30 p.m. and threatened to return in the early hours of the morning and harm the plaintiff. Subsequently he woke the plaintiff by shining a light into the plaintiff's eyes and then made licking motions towards the windscreen of the plaintiff's car, towards the plaintiff's face, and on leaving picked up a handful of sand and threw it towards the plaintiff's face.

Mr Baker agrees that he may have shone a light into the plaintiff's car on a number of occasions in or about April 1994. He says that if he found the plaintiff's vehicle when he was working on night shift he may have shone a light into it "to make sure that he was there and that he was still ... in one piece".[12]

Baker specifically denies that he would have threatened the plaintiff, returned and woken him by shining a light into his eyes, made licking motions as alleged or thrown sand as alleged.

The plaintiff's allegations are relatively bizarre and are not the subject of prior contemporaneous statements to the Ombudsman in April 1994. There is no independent corroboration of them and in the face of Mr Baker's denials I do not accept them.

It is further alleged on a date late in 1994 Mr Baker approached the plaintiff when he was parked at the western end of the Esplanade, Altona at about 12.30 a.m. It is alleged Mr Baker pulled up a short distance from the plaintiff's car and after getting out of the police car withdrew his baton from its holder and approached the plaintiff with the baton.

Mr Baker specifically denies that this occurred. He says that he did not withdraw his baton while at Altona North save on occasions when he utilised it and no such occasion involved the plaintiff.

In the absence of independent corroboration of the plaintiff's allegations I do not accept his evidence. There is no doubt that Mr Baker approached the plaintiff in his car on occasions at night during 1994 but given the evidence as a whole including the psychiatric evidence not only do I not accept the plaintiff's evidence but the probability is that the plaintiff's perception of events was affected by his delusions.

It is further alleged that on a date late in 1994 while the plaintiff was parked at the eastern end of the Altona Esplanade Mr Baker approached the plaintiff in an aggressive and frightening manner causing the plaintiff to start his car in panic and leave the scene with Mr Baker following to a place where the plaintiff thought it was safe to stop and alight.

Mr Baker denies this occurred and believes that the only occasion on which he pursued Mr Richards is the one referred to in the penalty notices. In any event I do not accept the characterisation of Mr Baker's approach to the plaintiff as "aggressive and frightening" without independent corroboration. If this is not accepted the allegation simply amounts to one that the plaintiff was followed by Mr Baker in a police car.

Lastly it is alleged that in or about 1995 Mr Baker approached the plaintiff while he was living in his car in the Altona area, forcefully removed the plaintiff from his car, forcefully placed the plaintiff in the police van, and took the plaintiff to the Footscray Psychiatric Centre without genuine reason. It is further alleged that on arrival Mr Baker assaulted the plaintiff after opening the police van door and asking "which is your crook hip?" On being told "my right" it is alleged Mr Baker took hold of the plaintiff's right foot and dragged him out of the van rotating his foot outwards causing the plaintiff severe pain. It is also alleged Mr Baker pulled backwards on the plaintiff's shirt and jumper causing pain in the plaintiff's neck.

"What I was referring to in late 1994 (I) was admitted to Footscray Hospital for two days, that is when Mr Baker and I were surrounded by three police cars, one in front - I was parked in Fresno Street, Altona. One police car parked in front of my car. Another one parked at the side - don't ask my why the side, and don't ask me why such dramatics, and the van parked at the back. They dragged me out of my car, threw me in the back of the van. Mr Baker and his mate took me to the Footscray Psychiatric Centre. I was - they went very fast in the car. I was - he said to me on removing me from the car, which is your crook hip. I said my right one. He grabbed me by the foot and rotated my foot outwards as he pulled me out of the car and he also pulled on the material backwards in my clothes, arching my neck as he moved me - as he took me into the psychiatric hospital, and they admitted me for two days. They handed me a great stack of stelazine which was completely abnormal. I'm not even certain to this day that it was a psychiatrist who gave me the stelazine."

In cross-examination it was put to the plaintiff that the Western Hospital discharge summary speaks of an admission in 1994 after the plaintiff presented a subpoena to a psychiatrist. The plaintiff said that would possibly be right.

The plaintiff had given earlier evidence[13] which, although not entirely clear, also seems to confirm such an episode:

"I went to a psychiatrist to say to him am I a fit person to represent myself and he said, 'no, you are not' and I said, 'does it affect everything like memory and reasoning and logic and all?' and he said, 'yes, once you've got depression it affects all those things.' Anyway he recommended that I didn't do it so I served him a subpoena and he probably certified me, I think. I'm not certain but I am not positive that I was but anyway I turned up by myself and it was just plainly around the wrong section of law."

Mr Baker agrees that he did on one occasion take the plaintiff to the psychiatric hospital. He does not recall the reason for this. It may have been that he was concerned at the plaintiff's mental state or it may have been that a warrant was issued from the hospital. He denies that he assaulted Mr Richards.

Once again I do not accept the plaintiff's account in the absence of independent corroboration. Apart from the evidence as a whole as to the reliability of his recollection I note firstly that there is substantial uncertainty in his evidence as to when this incident is alleged to have occurred. Secondly even on his own account the plaintiff's condition was such that he was kept at the psychiatric hospital after he was taken there for several days. Thirdly the rotation of his foot is a matter which is specifically noted as being the subject of delusions in the hospital records relating to his hospitalisation in May 1994. Fourthly there is no medical evidence corroborating injury to the plaintiff's right foot, leg or hip. Fifthly I am not persuaded of the preceding allegations which, if they were accepted, might establish continuing malice on the part of Mr Baker towards the plaintiff. Sixthly it is apparent that the plaintiff believes he was persecuted by Mr Baker and the psychiatric evidence suggests that he may have been deluded as to Mr Baker's actual actions. Seventhly Mr Baker directly denies the allegations. Lastly there is no independent corroboration of the happening of the events alleged.

The plaintiff said in evidence of Office Barter:

"Officer Barter was probably the best one out of them all. He was just - he never did much other than just to harass me, but that's what he did, he came on regular licence checks. He booked me on an occasion that I - I can't think of which one it was now but he booked me on one occasion when I hadn't broken the law."

It is alleged in the statement of claim that Office Barter approached the plaintiff knowing that the plaintiff's licence was current and legal and having checked it a short time (previously) asked to check it again.

Mr Barter gave evidence that he joined the police force in February 1991 and was stationed at Altona North from September 1993 through to August 1997. Since leaving the police force he has held responsible positions with the National Crime Authority and the Bendigo Bank. He recollects that on a number of occasions he did pull the plaintiff over and speak to him. He is aware that on one occasion, being 5 September 1994, he spoke to him in relation to driving his vehicle whilst it was unroadworthy and on another occasion in December 1994 the plaintiff was driving a motor vehicle whilst disqualified. He has refreshed his memory as to these events from looking at copies of police penalty notices made at the time.

Insofar as the allegation made against him in the statement of claim, Mr Barter says that it was his general practice when he pulled over a driver to request to see his licence. He further says that he would have asked any driver, not just the plaintiff, to produce their licence whether or not he had seen it before relatively recently. This would be to check firstly that the driver was carrying his or her licence whilst driving. Secondly to get the reference details to enable a check to be made with the police computer database to ascertain if the licence was still valid.

I am satisfied that although Mr Barter may have checked the plaintiff's licence as alleged by the plaintiff there was nothing improper in this.

The plaintiff said of Mr Taylor (as he did of Officer Baker):

"He probably approached me more than anyone ..."[14]

Mr Taylor is now employed as an information technology and security manager. After leaving school he worked in the Commonwealth Bank and then joined the police force in 1990. He trained at Altona North for two years and then after a period with the transit group returned to Altona North in about 1993. He remembers a man sleeping in his car in the back streets of Altona around the sporting oval. He remembers that the car was old and "beat up" and messy. He has no other recollection of this person or the plaintiff other than what is recorded in police records. He produced three penalty notices which he gave to the plaintiff in September 1994.

The first allegation made against him is once again that he approached the plaintiff on a number of occasions and repeatedly checked the plaintiff's licence knowing that it was current and legal. He agreed in evidence that when he approached the plaintiff he would have asked him his name and address and asked for his licence. He said that he would not have written down details when he pulled people over and he would have needed the information when he pulled them up subsequently and would also have wished to make sure that the licence was still valid.

Once again I do not accept the plaintiff has established there was any impropriety in the ongoing checking of the plaintiff's licence.

It is further alleged that while the plaintiff was living in his car Mr Taylor shone a powerful roof light from the police van into the plaintiff's eyes during the night telling the plaintiff to see the light and laughing about it. Mr Taylor agreed that he was from time to time on duty in a divisional van fitted with a roof light. He said that if he came upon a car parked in a secluded area at night it would be police practice to shine the light on to the car parked in such area. It would be done for the safety of the police. He denies, however, that he shone the light into the plaintiff's eyes, told Mr Richards to see the light and laughed about it.

In the absence of independent corroboration I do not accept Mr Richards' allegations with respect to these events.

It is further alleged that on or about 20 August Mr Taylor stopped alongside the plaintiff's car and that Mr Taylor, without getting out of the police car, made upsetting comments to the plaintiff concerning his comfort in living in the car. It is said that this was done on numerous occasions. Mr Taylor denies that this occurred.

In the absence of independent corroboration I do not accept the plaintiff's allegations in this regard.

Lastly it is alleged that on two occasions when the plaintiff was living in the Altona area, Mr Taylor stopped the police van in front of the plaintiff's car and on leaving did wheelies causing excessive dust to come into the plaintiff's car. Mr Taylor says that there are areas of unmade road in Altona and that it is possible dust could fly up from a car travelling on such a road. He denies that he intentionally caused dust to fly up in order to irritate a person. I do not accept the allegation that Mr Taylor deliberately caused dust to come into the plaintiff's car. The probability is that if Mr Taylor caused dust to come into the plaintiff's car this was not deliberate but was perceived as such by the plaintiff as a result of his continuing perceptions that the police were persecuting him.

It follows that for the above reasons I do not accept the plaintiff's case on the facts. The only material facts alleged by the plaintiff which have been made out are those admitted by the police officers namely that he was regularly checked by police and that such checks included checks on his licence and on occasion the shining of lights into his car. I am not satisfied that it has been established there was anything unreasonable or unlawful in these activities and in my view they cannot be characterised as misfeasance in public office. The plaintiff has not satisfied me that any of the police actions were undertaken with an intention to inflict harm upon him or that they involved a deliberate excess or abuse of power.[15]

In so saying I accept that a police officer may be subject to an action for misfeasance in public office. I respectfully agree with the following statement by Sir Richard

Scott V-C in Bennett v Commissioner of Police of the Metropolis[16]:

"Actions against the police for assault, in using excessive force in effecting an arrest or interrogating a suspect, can be brought. Why should an action for misfeasance in public office not be brought? I can see no reason why not. The police and the CPS, like everyone else, are subject in the discharge of their duties to the rule of law. There is no public interest that requires them to be afforded immunity against actions based on malicious or knowing abuses of their powers."[17]

In Mengel's case Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ stated in their judgment with respect to the tort of misfeasance in public office:

"... the weight of authority here and in the United Kingdom is clearly to the effect that it is a deliberate tort in the sense that there is no liability unless either there is an intention to cause harm or the officer concerned knowingly acts in excess of his or her power."[18]

"Its elements are: (i) an invalid or unauthorised act; (ii) done maliciously; (iii) by a public officer; (iv) in the purported discharge of his or her public duty; (v) which causes loss or harm to the plaintiff."

The tort first requires an invalid or unauthorised act done maliciously. Deane J went on to say:

"Such malice will exist if the act was done with an actual intention to cause such injury. The requirement of malice will also be satisfied if the act was done with knowledge of invalidity or lack of power and with knowledge that it would cause or be likely to cause such injury. Finally, malice will exist if the act is done with reckless indifference or deliberate blindness to that invalidity or lack of power and that likely injury. In the absence of such an intention, such knowledge and such reckless indifference or deliberate blindness, the requirement of malice will not satisfied."[19] (Citation omitted).

In the present case there is no satisfactory evidence of intention to cause harm or that the police officers concerned acted knowingly or recklessly in excess of their powers. Indeed there is no satisfactory evidence that they in fact exceeded their powers.

Since the decision in Mengel the House of Lords has considered the elements of the tort in the Three Rivers case (No. 3)[20]; and the Court of Appeal of England has considered such elements in L (a child) v Reading Borough Council[21]. These decisions together with a series of Australian decisions at first instance were analysed by the Full Court of the Federal Court in Sanders v Snell[22]. It is clear that the plaintiff's case in this proceeding was brought on the basis that the police acted towards him with "targeted malice" in the sense referred to in these authorities. For reasons I have stated I am not persuaded that the police did so act.

In accordance with his duty as counsel Mr Masel also drew my attention to the recent decision of Senior Judge Skoien of the District Court of Queensland in Grosse v Davies[23]. Insofar as a separate tort of invasion of privacy or harassment is to be recognised (which it is unnecessary for me to decide) the plaintiff has not satisfied me of the occurrence of matters by way of invasion of privacy which could be regarded as highly offensive to a reasonable person of ordinary sensibility or that continuing conduct by way of unwarranted harassment has occurred of such a degree of seriousness that no ordinary person should reasonably be expected to endure it.

The position in which the plaintiff found himself namely that of living in his car on public lands in Altona for some two years, was one which necessarily generated continuing contact with the police. It is not surprising that such contact led to a perception of persecution on the part of the plaintiff given his vulnerabilities. It is, however, greatly to be regretted that more appropriate accommodation was not found for the plaintiff sooner.

The responsibility for the plaintiff's lack of appropriate accommodation did not of course lie with the individual defendants before me and the State of Victoria has been sued on the basis of alleged vicarious liability for the tortious actions of the individual defendants. Such claim fails with the failure of the factual allegations made against the individual defendants quite apart from the legal difficulties confronting it.[24] Further the plaintiff's case was formulated and argued on the express basis that the individual police officers concerned did not act in good faith, hence it was not alleged in terms falling within s.123(1) of the Police Regulation Act 1958.

For the above reasons the plaintiff's claim must fail.

[10] A complaint to the Ombudsman of 20 March 1994 gives a further version, namely that the plaintiff was laying down in his car listening to the cricket when the incident occurred.

[15] cf Northern Territory v Mengel (1995) 185 CLR 307; Sanders v Snell [2003] FCAFC 150; (2003) 198 ALR 560.

[17] Ibid at 254, cited with approval by the Court of Appeal in L (a child) v Reading Borough Council [2001] EWCA Civ 346; [2001] 1 WLR 1575

[23] [2003] QDC 15 (unreported decision 16 June 2003)

[24] See Enever v The King [1906] HCA 3; [1906] 3 CLR 969; State of Victoria v Horvath & Ors [2002] VSCA 177 at [42]

At a glance

Court

Decision date

Before

Source

Judgment (152 paragraphs)

Parties

Cases Cited (2)