Main evidentiary conflict
72 The primary judge noted that a number of the conflicts were trifling but the main area of conflict was whether at the scene of the arrest or later at Ms El Masri's house DSC Mangan prevented Ms El Masri from following Mr Robinson to Liverpool Hospital, as Ms El Masri had said, or whether he told her that she could collect a few essential items and go to the hospital with Mr Robinson or remain while a search was conducted at her house.
73 His Honour found it unnecessary to resolve that conflict but recorded that should a contrary view be taken, he was not satisfied that the appellants had established, on the balance of probabilities, that DSC Mangan had prevented Ms El Masri from following Mr Robinson to hospital. In that regard, his Honour set out his reasons at some length (at [105] -[108]) as follows:
105 First, Mr Robinson, plainly, could not give evidence about that matter. He was not a party to it. The only witness on behalf of the applicants who could give evidence about that matter was Ms El Masri. However, I have doubts about the reliability of Ms El Masri's evidence. Generally, her account of events, as given in her affidavit, which stood as her evidence in chief, was far from complete. Indeed, her account was minimal, to say the least. It dealt only with the matters I have identified in [65] to [67] above. The balance of her evidence arose from answers she gave in cross-examination. Her evidence in this regard was not always consistent. For example, she said that she walked to the scene of the arrest. Later, she said that she drove to the scene. In general, her answers in cross-examination were difficult to follow because they were not necessarily related, chronologically, to the specific event referred to in the question she was asked. On occasion her answers were given in a somewhat combative way. I have no doubt that she feels that Mr Robinson has been treated unfairly by the police, not just on this occasion but on other occasions. As Mr Robinson's carer she has taken particular umbrage at the antecedents statement made by DSC Mangan in the Facts Sheet he prepared, which stated his belief that Mr Robinson had feigned a mental illness. I have no doubt that her concerns for Mr Robinson are real and genuine. However, I am also cautious of the possibility, which I believe to be a real possibility, that she has a heightened sense of what she regards as the unfairness of Mr Robinson being involved with the police in the criminal justice system, which has affected her own perception of events as they concern Mr Robinson and her ability to recount them reliably. For example, in her cross-examination of DSC Mangan, Ms El Masri showed a propensity to link propositions of fact when a linkage did not exist except on the basis of assumption.
106 Secondly, nothing has been advanced by the applicants as to why, objectively, DSC Mangan would want to prevent Ms El Masri from following Mr Robinson to Liverpool Hospital. Certainly nothing was put to DSC Mangan in that regard. Whatever personal views DSC Mangan had at the time about the genuineness of Mr Robinson's seizure following his arrest on that day, or more generally about the state of his mental health, DSC Mangan was obviously of the view that an ambulance should be called so that Mr Robinson could be taken to hospital to receive whatever treatment was deemed necessary by trained medical staff. There does not seem to be any reason why, in relation to the offences for which Mr Robinson was being investigated, Ms El Masri should not have been present with him at the hospital. Indeed, in light of Mr Robinson's subsequent aggressive behaviour at the hospital, which resulted in him smashing a window, one could well understand that, on being informed of this, DSC Mangan would suggest to Ms El Masri that she go to the hospital to be with Mr Robinson. One would have thought that, from the perspective of the police, Ms El Masri's presence at the hospital would have been desirable because, as Mr Robinson's carer, she might have been able to exert a calming influence on him in what must have been difficult circumstances for the police and the hospital's staff.
107 Thirdly, I was able to closely observe DSC Mangan in the course of his cross examination by Ms El Masri. He was attentive to her questions and gave his answers in a calm and considered way. He rejected the suggestions that he forbade Ms El Masri from travelling to the hospital or impeded her from doing so. He remained firm in his evidence. Indeed he made clear that, at one point, he even encouraged Ms El Masri to go to the hospital. I have no reason to doubt the general effect of his evidence, but for the contrary evidence given by Ms El Masri. However, for the reasons I have expressed, I have doubts about the reliability of her evidence.
108 I do not leave out of account the contradictory evidence given by DSC Mangan about Ms El Masri's stated intentions either to follow Mr Robinson to Liverpool Hospital or to remain at the house. This casts some doubt on the reliability of that part of his evidence. I accept, however, the general tenor of his evidence that he did not prevent Ms El Masri from following Mr Robinson to Liverpool Hospital. The effect of DSC Mangan's evidence was that he was concerned to ensure that Ms El Masri did not remove items from the house that might interfere with his investigation of Mr Robinson. He agreed that he had warned Ms El Masri not to interfere with the investigation. I am satisfied that DSC Mangan must have exerted some control over the manner in which Ms El Masri sought to have access to the house and its contents prior to the search warrant being executed. It is entirely possible that, in her own way, Ms El Masri understood this as a constraint on her following Mr Robinson to the hospital. I am not satisfied, however, that DSC Mangan positively prevented her from doing so. If there was any misunderstanding about that matter, it was Ms El Masri's mistake.
74 His Honour also observed (at [109]) that Mr Robinson's complete absence of recollection stood in stark contrast to the detailed affidavit he had sworn and which had been prepared by Ms El Masri. His Honour understandably placed little weight on his affidavit evidence and rejected, as an example, the assertion that DC Johnson had goaded Mr Robinson at Liverpool Hospital as Mr Robinson purported to recount in his affidavit.