Rook v State of New South Wales

The plaintiff and Mr Tanner attend the Vivid Festival

1. In early June 2011 the Vivid Festival was taking place in Sydney. The plaintiff and Mr Tanner decided to visit two events on the evening of Saturday, 4 June 2011. They left home about 7.40pm. They drove to the Opera House and parked in the Opera House carpark. The first event that they were attending was a "show", a performance by an international female singer, who could not be identified by Mr Rook. Mr Tanner was a "fan" of that singer and, hence, their going to her performance. It would appear that her show commenced about 8.30 and probably finished about 10.30. At the same venue at the Sydney Opera House there was a second event commencing at 11pm and finishing at 2am on the morning of Sunday, 5 June. That was a dance party which was identified by the plaintiff as the "House of DJs". It appears to have been the presentation of various recordings by different disc jockeys.
2. Whilst at the Opera House the plaintiff and Mr Tanner consumed alcohol. The extent of the consumption of alcohol by the plaintiff and Mr Tanner is highly relevant because the consumption of alcohol can affect a person's behaviour and can also interfere with and sometimes obliterate the memory of what the person did whilst the person was under the influence of alcohol. According to the plaintiff's evidence in cross-examination, the plaintiff and Mr Tanner arrived early at the Opera House and had "a little bit of time to kill". The plaintiff bought a glass of wine and Mr Tanner bought a beer. They also ate some potato wedges. That was at the Opera Bar. During the show involving the female singer each of the plaintiff and Mr Tanner had "about two drinks each" which Mr Rook believed were glasses of white wine. At the conclusion of the show the plaintiff and Mr Tanner returned to the Opera Bar and had a glass of red wine each.
3. During the dance party the plaintiff said that he had only one glass of red wine between 11pm and 12.45am. That would have been his fifth alcoholic drink that evening. The carpark at the Opera House shut at 1am. The plaintiff left the dance party to extract his vehicle from the Opera House carpark and to park it on Macquarie Street. Some time was involved in extracting his car from the carpark and parking it on Macquarie Street, because of a queue of vehicles seeking to leave the Opera House carpark prior to its closing.
4. The plaintiff then said that he returned to the dance party in order to re-join Mr Tanner. However, the plaintiff could not find Mr Tanner. He told me that he "searched throughout the entire club high and low" but was unable to find him. He decided that he had no choice but to remain at the dance party in the expectation that Mr Tanner would appear and join him. Last drinks were called at 1.30am. On 18 May 2015, the plaintiff said this: "Well what happened, okay, so when I went back to get John I - they were calling last drinks. The bar shut at about 1.30 and, and so I went to go buy a drink and the guy, the guy said, 'Look, it's last drink,' so I actually got two glasses of red and what I thought we were going to do was have a glass each and just sit and watch the lights and, and I did drive home that way and I know there's breath testing all the time on New South Head Road, so I have one drink per hour and I was timing and pacing my drinks, so I bought two drinks and when I couldn't find John I became very despondent, I drank my drink and ended up leaving - I drank a bit of the other drink and then ended up leaving that so, it was probably getting towards seven drinks by the time - and then all of a sudden my phone rings and he's appeared again and, that's the chain [of] events." The plaintiff said later that the last two glasses of red wine poured by the bar steward at the Opera House were fairly generous glasses of wine. On another day during cross-examination, the plaintiff maintained that the two glasses of wine that he bought whilst waiting for Mr Tanner to reappear at the Opera House venue during the dance party were both for Mr Tanner and when confronted with the evidence he gave on 18 May 2015, told me that his evidence given on the first day of the hearing was erroneous. On 30 November 2011, the plaintiff gave a statement to Inspector Gary Ford. When cross-examined about that, the plaintiff volunteered that he bought "two drinks for John" (T 191.07). Shortly thereafter, this evidence was given: "HIS HONOUR Q. You told me that you bought the two glasses of red wine when you returned the bar for John? A. Correct, that's correct, your Honour. Q. That's correct, is it? A. Yes, yes. Q. Transcript 68 commencing at line 9. HUTCHINGS […] Q. Since you were charged with offences on 5 June you have given great thought and consideration to the events of that night, haven't you? A. Yes. Q. Both preceding your charging and after your charging? A. I've - I, I have thought about it, yes. Q. You've given evidence in the Local Court about it? A. Yes. Q. You've been asked on a number of occasions what you drank on the night in the sense of what alcoholic beverage you drank on the night, correct? A. Only a couple of times. I mean I was, I was - it's a matter of fact that I, I'd had too many drinks when I was breath tested so that's just a matter of fact. Q. Indeed. In these proceedings I've asked you questions about how many alcoholic beverages you consumed on the night, haven't I? A. Mm-hmm. Q. You've done your best to answer those, haven't you? A. Yes. Q. You've told his Honour that - I asked you this question on 18 May, "Did you ever tell anyone that you'd consumed eight drinks on the night?" Do you remember me asking you that question? A. Well I've, I've said when I added it all up, it was seven to eight drinks in total over five hours. Q. Yes, but do you remember me asking you that question I just identified? A. Asking me what? Can you please restate it? HIS HONOUR Q. On Monday. A. On Monday, yeah. HUTCHINGS Q. You were sitting in that witness box and I asked you, "Did you ever tell anyone that you'd consumed eight drinks on the night?" A. I've said time and time again when it has come up, the few times I discussed it, seven to eight drinks is what I've figured out that I drunk that night, seven to eight. Q. I'm just asking you do you remember the question being asked of you on Monday? A. I - I think I do, yes. Q. What you said to his Honour on Monday was that when you went back to find John, the bar was calling last drinks. A. Yes. Q. Remember giving that evidence? A. Yes, yes, yes. Q. The bar was to shut at about 1.30. Do you remember giving that evidence? A. Yes, it was - it was shutting at 1.30 but that was - it was calling last drinks around 1.20, yes. Q. You've just told his Honour that at that point in time, you'd finished consuming alcohol for the night. A. When I had parked the - when I went to go get the car, I was done drinking, and my plan was to not drink any more drinks, and when I came back and bought more drinks from the bar, they were for John, that's why I bought those drinks. Q. That's your evidence now, isn't it? A. Yes. Q. You were not going to get another alcoholic beverage. A. No. No, I wasn't. No, I wasn't. Q. Because you'd gone and moved your car and you were done with alcohol for the night. A. Because I'd been counting my drinks and I by that stage was - was at five, and five to six total, and I was done, I - I needed to sober up, eat some food and stop drinking for a while. Q. So at that point you realised you needed to sober up. A. Well, I was - I am aware of the drink driving rules and I also drove him through New South Head Road and there's almost always a breath testing unit on the side at Rushcutters Bay, so when I went out with John and we'd drink, I would count my drinks, I'm two in the first hour and then one every hour following. Q. I just want to be very clear about this. After you drove your motor car out of the Sydney Opera House carpark and on to Macquarie Street, you formed the state of mind that you needed to sober up. A. I - when I drove the car out, I thought I'd be very close to the limit and I needed to stop drinking, I thought I was at - at or under the limit, and so I parked the car and my plan was to sober up for an hour or two, yes, yes, absolutely. Q. Why did you tell his Honour on Monday that you went back to the bar when they called last drinks, you bought two glasses of wine, you intended to consume one yourself, have John consume the other, while you looked at the lights? A. No. No. Well, John drinks a lot and I knew that he'd want more alcohol, and rather than get him one drink, I got him two. I was the designated driver, John can't even drive that car, so I was the driver and they were both for John, simple as that. Q. Your evidence on Monday at line 11, "Got two glasses of red, and what I thought we were going to do was have a glass each and just sit and watch the lights." That's wrong, is it? A. Well, both drinks were for John, and I don't - I don't recall saying that, so can I please see the transcript, cause both drinks were for John. HIS HONOUR Q. Sure, have a look at my copy. A. Yep. Q. It's highlighted. A. Yep. Well, I'm mistaken there, I bought them both for John, so I've made an error there. HUTCHINGS Q. Have you not been careful in the giving of evidence in these proceedings? A. Yes. I - I don't recall saying it in those exact words and I've made an error there. Both drinks were for John, I was not planning to drink anymore. Q. The transcript service hasn't failed you, has it? A. Well, I - I wouldn't - I wouldn't think so. Sir, I'm being very honest, I've - I've made an error there. Both drinks were for John, that's what I had in my mind then, and that's what I did." There are numerous other inconsistencies in the evidence.
5. One should note that the plaintiff told me that he was aware that he should only drink one standard drink per hour and later he was to confess that he needed to sober up in order to drive home, but nevertheless he drank at least one whole oversize glass of red wine shortly after 1.30am and part of another oversize glass of red wine following his consumption of the first of those generously poured drinks.
6. The plaintiff left the venue at the Opera House shortly before 2am. He told me in cross-examination on the first day that he stayed at the venue until either ten minutes before 2, or five minutes before 2, when he and others were told to leave the venue. The plaintiff went on to tell me that he was walking on the forecourt of the Opera House, when his phone started to ring. He did not answer the first call because the number did not identify itself, but he did answer the second call made from the same unidentified number and then said that he was told about something that had happened to Mr Tanner and he decided to go to Mr Tanner's assistance, because he had been assaulted, and that is when the plaintiff returned to his vehicle in Macquarie Street.
7. The plaintiff's memory was then prompted about buying a hamburger. He then volunteered that he probably left the venue at the Opera House about 1.50am and then walked to Hungry Jacks Burger Restaurant at Circular Quay and bought a hamburger and that is when his phone commenced ringing, not when he was on the Opera House forecourt. When cross-examined by Mr Matthew Hutchings, for the defendant, the plaintiff volunteered this, then being asked questions about moving his vehicle from Macquarie Street: "I had about half a burger to be precise because you're wanting me to be very precise so I had half a burger and I had a glass and a bit of wine whilst looking for John because I couldn't find him. I'm trying to be very precise." In cross-examination on the third day of the hearing, 20 May 2015, the plaintiff gave this evidence: "Q. You've told his Honour that you had a hamburger on the night, that was about 12.45, wasn't it? A. No, it would've been later than that. It would've been about 1.40. Q. All right. And you'd been told that the bar was closing that you were at before you had the hamburger, weren't you? A. Yes. Q. That was about 1.30, wasn't it? A. Well, they, they called last drinks about 1.20 actually. Q. But you had your last drink just before they got everyone to leave the venue? A. Well, when I moved - I moved the car at about 12.45, finally got back to the bar, walked in, bought two glasses of red wine, stood around, waited and waited and looked and looked and looked. So would, it would have been about 12.40 - sorry, 1.45am that I walked over and, and bought a burger and, and, and had a nibble on it and then I started getting the calls. And then I put the burger into this - I'm wearing the exact clothes I wore that night with the exact shirt, same jacket. Q. Mister.. A. Well, I'm just trying to explain I put the burger in my pocket. Q. I haven't asked you about a burger, I've asked you.. A. Well, you actually did ask me about the.. Q. The last question I asked you was about what time you had your last drink. A. Last drink? Q. Alcoholic beverage. A. Yeah, okay, so I was, I was sipping that drink until about 1.35." One can see that no time was given with any exactitude. If the plaintiff left the Opera House at 1.50 or 1.55, he could not have bought the hamburger at Circular Quay until 2 o'clock or very close thereto. Furthermore, when the plaintiff was eventually searched by police, something that was not found was a partially eaten hamburger in his pocket.
8. On his own admission, the plaintiff appears to have drunk at least seven and perhaps eight alcoholic beverages since about 8pm. Between 8pm and 2pm is six hours. One would not expect a very high blood alcohol content if eight standard drinks had been consumed over a six hour period. However, it may well be that the size of the glasses was greater than a standard glass of wine and the problem with the concept of a "standard glass of wine" is both the size of the glass and the alcoholic content of wine, which can vary considerably, especially between white wine and red wine, and between imported wines and local wines.
9. One can also see from the evidence that I have just quoted that there was no exactitude as to when things occurred and various attempts or estimates or guesses made as to when things did occur. This highly indicates reconstruction of evidence, rather than actual recollection of what occurred at what time and in what order.

Mr Tanner is assaulted

1. Mr Tanner said that he was assaulted by Opera House security staff outside the actual venue at the Opera House which he had been attending. He denied that it was due to his having consumed too much alcohol, but no reason was advanced by him or suspicion advanced by him as to why he had been assaulted by the Opera House security staff. He was found lying or perhaps seated on the footpath in Macquarie Street and "rescued" by some "Good Samaritans" and taken to the Oxford Art Factory, a nightclub on the northern side of Oxford Street, between Whitlam Square and Taylor Square. He was met there by the plaintiff. Mr Tanner looked very upset. His eyes were red and he had been crying. He told the plaintiff that he had been assaulted. The plaintiff said this about Mr Tanner's injuries: "I didn't actually see any injury until later in the police station because he was wearing a woollen coat, so the injury I couldn't see. But later in the police station he, he had an open graze, he had several open marks on his, on his, on his arm and body." CCTV footage from the Rose Bay Police Station shows Mr Tanner demonstrating his injuries to police at the police station and what appears to be shown are some minor abrasions to the upper left arm. These were sometimes referred to by the plaintiff as Mr Tanner's "wounds", but that is clearly hyperbole. This is a case in which there was much hyperbole on both sides of the record, as far as the witnesses are concerned.
2. After picking up Mr Tanner from the Oxford Art Factory, the plaintiff drove to the Rose Bay Police Station on the corner of New South Head Road and Wunulla Road. That police station is 650 metres from the plaintiff's residence (see exhibit 16). Victoria Road turns off New South Head Road about 550 metres west of the Rose Bay Police Station, near the entry to the Redleaf Pool reservation. I note from the same exhibit that Redleaf Pool has been renamed the Murray Rose Pool, but the café retains the original name of the Redleaf Pool Café. The Rose Bay Police Station can be seen as the plaintiff's local police station, the existence of which he would have been well aware, as I infer from the evidence that he had lived at 2B Victoria Road, Bellevue Hill for some little time prior to the events now in question.
3. On this evening the plaintiff was driving a 1973 black Lotus sports car, which he had purchased in the United States of America and imported into Australia. It is driven from the left-hand side. It is low slung. Mr Tanner is an American. That was clear from his accent. He also told me that he had a California driver's licence, which had enabled him to obtain a New South Wales driver's licence, but he has never driven a motor vehicle in Australia. The inference I drew from how he gave his evidence was that he was concerned about driving on the left-hand side of the carriageway. He told me he had not driven Mr Rook's black Lotus motorcar. Mr Rook told me that it was a difficult car to drive. One needed some experience of driving it before being able to manage it. The inference I drew from the evidence is that the plaintiff's car was an unusual one which would draw attention to itself. When the plaintiff arrived at the Rose Bay Police Station he parked his car on the western kerb of Wunulla Road which, in essence, runs north from New South Head Road towards the Point Piper marina and then further north to Woollahra Point. Where the plaintiff parked was governed by a no stopping sign, although it had been damaged and was bent. It became common ground that the plaintiff had parked in a no stopping zone.

Events at Rose Bay Police Station

1. He and Mr Tanner entered the police station at 2.34am on the morning of 5 June. The CCTV footage from the Rose Bay Police Station became exhibit O. That clearly shows interaction between the plaintiff, Mr Tanner, Probationary Constable Christopher Homard, Constable Natalie Wynn-Williams and Constable Sarah Walker-Lear. At one stage a further male police officer can be seen in the footage but no one has been able to identify that officer. The evidence suggests that he may have been a transient appointment to the Rose Bay Police Station or perhaps merely a visitor or relief person on that evening. In any event, no suggestion of any participation in the events now in question is assigned to the unidentified male police officer. Unfortunately, there is no audio content to the CCTV footage. It would have been most interesting to hear, had there been. What the footage does show is that whenever there was anything being said by either the plaintiff, Mr Tanner or Constables Wynn-Williams and Walker-Lear there was much gesticulation. Indeed, I observed perhaps flippantly that there appeared to be in it more gesticulation than one would expect in a comic Italian opera. The only person who does not gesticulate at all is Probationary Constable Christopher Homard. It is unusual for males with a British background to gesticulate much at all when sober. Gesticulation by ladies is much more common. The extent of the gesticulation by the plaintiff and Mr Tanner is consistent with their having consumed some not inconsiderable amount of intoxicating liquor. I have formed the view that those who gave evidence about what was said at the police station are largely reconstructing what they believe they heard was said at the time. The moment would have been of no significance to the police concerned and it is clear to me that the plaintiff and Mr Tanner probably had a poor recollection of what was actually said and have largely reconstructed what was said.
2. In essence, the plaintiff and Mr Tanner went to the Rose Bay Police Station to report what has happened to Mr Tanner and to invite, perhaps even to demand, that the police at the Rose Bay Police Station do something about what had occurred to Mr Tanner. Much emphasis was placed on whether the police told the plaintiff to take Mr Tanner to a hospital or casualty ward or emergency room or whether the police who interacted with the plaintiff and Mr Tanner told him to drive Mr Tanner to a hospital casualty department or emergency room. There is evidence of both from the plaintiff himself.
3. In chief the plaintiff was asked how he was feeling as he entered the police station. He said this: "I was upset, I was rattled and I, I wanted to have something done about these men who had, we allege, attacked John. But I, I think I was reasonably, reasonably calm but upset about what had happened to John." He then went on to tell me of entering the police station at 2.36am, however, the counters on exhibit O clearly indicate entry at 2.34am. He then explained that there were two female police officers present as well as a male police officer, clearly, Probationary Constable Homard, the male, and Constables Wynn-Williams and Walker-Lear, the two lady police officers. In chief the plaintiff initially said this: "And I walked in and I proceeded to explain what had happened. I was courteous, I was matter of fact, I thought that they would help us so I was looking to them to help us. John, John showed the police his wounds, he's seen on the video and I saw him there with me, he was showing them his, his wounds and we're explaining what happened and when and the various things. And, they said several times - the lady police officer said, 'Look, there's nothing we can do, nothing we can do for you. You need to take your partner to an ER ward.' That was their exact words and, 'you need to drive him to an ER ward, there's nothing we can do for you.' And I was annoyed by that because I said, 'Look, I'd like you to take our statement, or I'd like you to do something. Are you going to speak to the Sydney Opera House guards?' and they said, 'There's nothing we can do for you, you need to take John to the ER ward.'"
4. One will note in that passage of evidence that the plaintiff said a number of times that he was advised by police to take Mr Tanner to an emergency room or emergency ward, but he then added once that he was told to "drive" Mr Tanner to an ER ward. The plaintiff told me then about his stammer and that he stammers more when he is stressed and that he was moderately stressed on this evening. He also told me at another place in the evidence that because of his stammer he tends to speak somewhat slowly and somewhat loudly.
5. The plaintiff told me in his evidence-in-chief that initially Probationary Constable Homard was attentive to his complaint, that he pulled out his police notebook and started to write things down but after "two minutes" he put his notebook away. He went on to tell me that Probationary Constable Homard asked for the plaintiff and Mr Tanner to give him their driver's licences and he left with those driver's licences and went to the back of the police station out of their sight. It appeared clear to me that Probationary Constable Homard was probably photocopying the driver's licences to save having to take down details such as the full name, residential address and date of birth of each of the persons who had turned up to make a complaint at the police station. That merely saves time and effort and, if it were perceived, which it clearly was, by the two female constables that the plaintiff and Mr Tanner were intoxicated, that it would make the recording of their personal details easier than trying to take the details from persons who were affected by alcohol.
6. At some stage the plaintiff became aware of two male officers at the back of the police station from where he stood, who we subsequently know to be Constable Sean Irwin and Probationary Constable Mark Trifunovic. The plaintiff could not recall what was said to him by Constable Irwin. The plaintiff in his evidence-in-chief said this: ".. then I saw Irwin and Trifunovic. Now, I think Irwin yelled something at me, as in to say something, I didn't really hear it at the time because I was busy talking to Homard but later in Court [the Local Court] Irwin explained that he'd yelled to me to move my car." He went on to say that he "didn't catch" whatever it was that Constable Irwin said to him, that he did not hear it and then he said that it did not register which means that although he may have heard it, he did not understand it at the time. He could only remember Senior Constable Irwin "yelling" something out.The plaintiff then gave this evidence: "Q. Now, how did your discussion with the officers at the counter end? A. I said to them, I, I was annoyed. I mean, I was professional to them, I was seeking their help, I, I don't want to get police angry, the few times I ever deal with police. So we agreed to disagree, they said, 'There's nothing we can do for you, we can't do anything now. Take John to an ER ward.' I wanted them to take our statement, to take my statement and I wanted them to do something about Sydney Opera House guards, given that they were still there. But they said, 'No, there's nothing we can do for you, take John to the ER ward.' I said, 'Fine, we're leaving, bye.' So there was nothing rude, I wasn't rude, we just left." The counters on exhibit O show that Mr Rook and Mr Tanner left the Rose Bay Police Station front entrance at 2.45am, Mr Rook preceding Mr Tanner, Mr Tanner leaving the premises 11 seconds later.
7. The following points must be noted which would have been clear to the officers at the Rose Bay Police Station but never appear to have crossed the mind of Mr Rook. Mr Rook needed not to make any statement because anything that he said about an assault upon Mr Tanner was clearly hearsay. He did not see it happen. He came on it well after the event. The person who could be considered the complainant was Mr Tanner. The police suggested that Mr Rook did most of the talking. So did Mr Tanner (T 103.34 and T113.42). Indeed the police who gave evidence about this interaction, former Constable Wynn-Williams and Constable Walker-Lear, both gave evidence indicating that it was difficult for Mr Tanner to get a word in edgewise. The CCTV footage to me indicates that although Mr Rook said much more than Mr Tanner, Mr Tanner did have an opportunity to state what he wished to state and to demonstrate to the police the abrasions on his left upper arm.
8. However, both Constables Wynn-Williams and Walker-Lear indicated that they readily perceived that both the plaintiff and Mr Tanner were affected by alcohol and, as far as the plaintiff is concerned, that was clearly the case and, if the plaintiff's evidence is to be believed as to the rate at which Mr Tanner was drinking, and he suggested that Mr Tanner could take more alcohol than the plaintiff himself could, then one might think Mr Tanner was as equally affected as the plaintiff. In those circumstances one could see the police suggesting to the plaintiff that he and Mr Tanner return later when both had had an opportunity to sleep and sober up, so that they could take a meaningful statement from Mr Tanner when he was not affected by alcohol or, indeed, by emotional upset. Constable Walker-Lear made the point that the plaintiff and Mr Tanner wanted the Rose Bay Police to travel to the Opera House to interview and/or arrest the security guards who were alleged to have assaulted Mr Tanner. That would be an impossibility until an adequate description of the assailants had been provided by Mr Tanner. Furthermore, there would be the usual "jurisdictional" problems of police from Rose Bay travelling to somebody else's LAC to do something in the other LAC without first obtaining a clearance from the local police. I do not know who the local police would be for the Opera House, but the nearby police stations are those in The Rocks, at Town Hall, in the Haymarket and the Sydney Police Centre, leaving aside police at either Darlinghurst or Surry Hills, if there still be police stations there. I understand that there is still a police station at Kings Cross.
9. The plaintiff, in his evidence-in-chief, made more statements about the police asking the plaintiff to take Mr Tanner to an ER room than to drive Mr Tanner to an ER room. The evidence of both former Constable Wynn-Williams and Constable Walker-Lear is that the plaintiff and Mr Tanner were asked if an ambulance was required and, if so, they would call one, but Mr Tanner said that he did not need an ambulance. One can understand police being reluctant to convey injured persons in a police vehicle because, if there was a sudden deterioration in the condition of an injured person, the question would automatically be asked why did the police not call for an ambulance. In any event there is no suggestion that at any stage was it necessary to take Mr Tanner to an emergency department or casualty ward or a hospital or a clinic or a medical practitioner or even some provider of first aid. The injuries which Mr Tanner received were at most extremely minor, no more than some abrasions, which could no doubt be treated by Mercurochrome or Betadine liquid or ointment and perhaps a Band-Aid.
10. The effect of the evidence of Constable Walker-Lear was to characterise the demeanour of the plaintiff as loud, belligerent and obnoxious and that he appeared to her to be heavily intoxicated and highly argumentative. Those are characterisations made by the plaintiff in his written submissions with a cross-reference to T 248 and 258. In essence, the observations of Constable Wynn-Williams were similar to those of Constable Walker-Lear, although not in as hyperbolic terms as those of Constable Walker-Lear.
11. There is little doubt in my mind that the plaintiff dominated the conversation between himself and Mr Tanner and the three constables at the front desk of the Rose Bay Police Station in the early hours of Sunday, 5 June 2011. There is no doubt that he was upset that they would not take a statement immediately from him and one can understand no one being interested in taking a statement from him because he could not give any direct evidence. The only person from whom a statement could be taken would be the actual complainant, Mr Tanner, and one can understand that they were reluctant to do so when they perceived that he was intoxicated. One can further understand the police refusing to go to the Opera House and interview and/or arrest the security guards thought to be responsible for assaulting Mr Tanner.
12. I am persuaded, particularly on the evidence of former Constable Wynn-Williams, despite what was said by the plaintiff and Mr Tanner, that Mr Tanner was offered an ambulance, but declined it on the basis that he did not need ambulance attention. I am not persuaded on the balance of probabilities that the plaintiff was told to "drive" Mr Tanner to a hospital, but merely to "take" him there, if he did not need ambulance attention.
13. It is clear from the evidence of all four persons who gave evidence about what transpired at the counter at the Rose Bay Police Station between 2.34 and 2.45am on 5 June 2011 that the interview was a noisy one, a querulous one, and one which probably annoyed all concerned. I also accept that it would have been extremely difficult for Constables Walker-Lear and Wynn-Williams to differentiate between the effects of alcohol on the plaintiff and his stammer and loud speaking resulting from a speech impediment, as distinct from a speech impediment acquired by intoxication.
14. An important exchange, to which I have already adverted, is the exchange between the plaintiff and Constable Irwin. This I need to develop. On the evening in question Constable Irwin was assigned with Probationary Constable Trifunovic to man a caged police truck, RB15. Each of Constable Irwin and Probationary Constable Trifunovic have advanced in rank since the evening now in question, but I shall refer to them by the rank that they had at the time of the events in question. It appears that the shift commenced at 6pm, although initially Constable Irwin said it started at 4pm. The driver throughout the 12 hour shift was Constable Irwin. Although the junior officer is generally the driver of a police vehicle and the senior officer the observer, sometimes these roles are shared. However, on this evening they were not. The reason for that is quite simply that Probationary Constable Trifunovic had not the necessary permission or licence from the Commissioner of Police to drive a police vehicle with, for example, its lights flashing and sirens blaring in pursuit of a vehicle or to attend to an emergency.
15. On the evening now in question RB15 had returned to the station so that Constable Irwin could use the toilet. The parking area for police vehicles at the Rose Bay Police Station is to the north of the station, one turning into it from Wunulla Road. When returning to the police station Constable Irwin noticed the plaintiff's vehicle, which was registered number DR-73-TC. He noticed that it was parked illegally.
16. On his way to the toilet Constable Irwin spoke to Mr Rook, whose identity he knows from their subsequent interaction. He noticed the plaintiff and plaintiff's life partner, "[h]aving some kind of confrontation, talk, argument with a couple of police in the station." He identified this interaction as being "very loud". Constable Irwin said this in his evidence-in-chief: "Q. What did you say to Mr Rook when you spoke to him? A. I asked Mr Rook if he owned the black vehicle parked outside the station. Q. Did he say anything in response to that question? A. He said yes. Q. Did you say anything after that? A. I asked him if he could move the vehicle, otherwise he'd be getting a ticket and as it makes it hard for us to exit in case of an emergency. Q. Did you tell him why he would be getting a ticket? A. Cause he's parked in a 'No Stopping' zone." Constable Irwin then proceeded to the toilet. According to Constable Irwin's evidence-in-chief, he had no further interaction with the plaintiff at the police station. He then told me that he left the station with Probationary Constable Trifunovic after having spoken to Constable Wynn-Williams. He could not recall what he said to her. I have already indicated that exhibit O shows the plaintiff and Mr Tanner leaving the police station at 2.45am via the front door from the area open to the public. Another camera indicates that Constable Irwin left another door of the police station onto the police carpark at 2:46:14, being preceded by another male officer, who was clearly Probationary Constable Trifunovic, at 2:46:12.
17. At the same time as Probationary Constable Trifunovic and Constable Irwin left the police station they were followed very closely by Constable Wynn-Williams, who went outside for some very short period, about a second, and that Constable Walker-Lear came to the back door and was seen looking out towards where the two male constables had gone. It was suggested by counsel for the plaintiff that Constable Walker-Lear smiled, but that is not completely clear. She makes a gesture with her hand over her mouth, perhaps wiping her mouth, which horrified her to see, as it appeared to be somewhat unladylike. Whether the resultant position of her lips suggests a smile is not conclusively established to me. No one, that is, neither Constable Irwin, Constable Wynn-Williams, or Constable Walker-Lear, has any recollection of what actual conversation, if any, may have been happening at the time, but it is quite possible that it was merely some pleasantry or joke that had been passed between the four people at the back of the police station or at the door leading to the police station carpark. What may have been said is purely a question of conjecture.

The plaintiff leaves the Police Station

1. As the plaintiff was leaving the police station he saw police, who were clearly Constable Irwin and Probationary Constable Trifunovic going towards RB15. The plaintiff gave this evidence: "So as we were walking towards our car I saw two policemen walking all walking very fast, they were really walking very fast, through the police carpark, and then one of them, I don't know who it was, but one of them yelled, 'Hey mate, you've got to move your car.' I think it was Irwin, said, 'Hey mate, you've got to move your car,' and I yelled back, 'Yes, I am, I'm moving it now.'" The plaintiff went on to say in his evidence-in-chief that as he was getting into his vehicle the two policemen had started up the police caged vehicle, known affectionately by all in this country as a "paddy wagon". The plaintiff says that he did a U-turn to reverse his direction from north-facing to south-facing in Wunulla Road. He then drove up to the intersection of Wunulla Road and New South Head Road and turned right in order to head westwards along New South Head Road to its intersection with Victoria Road driving past the grounds of the Cranbrook School on his left.
2. Senior Constable Irwin and Probationary Constable Trifunovic say that the plaintiff made a three-point-turn in Wunulla Road and part of that three-point-turn was a right-hand turn into the driveway of the police carpark and then a reversal from that point back into Wunulla Road and then heading south for a very short distance along Wunulla Road prior to making the right-hand turn into New South Head Road. Exhibit 1 is a large photograph of the entrance to the police parking area on the northern side of the Rose Bay Police Station. It clearly shows a driveway into the police parking station. A caged police truck is parked in that photograph in the same place as RB15 was in the early hours of 5 June 2011. Marked with the letter "X" is the position to which, according to Constable Irwin, the plaintiff brought the front of his black Lotus prior to reversing into Wunulla Road as part of the three-point turn. The photograph clearly identifies a prohibition of making a right-hand turn into the police carpark with the words, "Police Vehicles Excepted" under the no right-hand turn sign, together with an affixed yellow sign stating "Caution, Emergency Vehicles Exiting." The same sign is erected on both the south side and the north side of the police driveway. In addition there is fencing and on the fence on each side of the driveway is erected a sign saying "Police Parking Only. No Public Thoroughfare." Technically if the plaintiff did turn his vehicle into the police driveway, he had made a right-hand turn and therefore contravened the prohibition contained in the sign. If I accept the evidence of Constable Irwin in this regard, then there was a technical breach of the law by failing to observe the no right-hand turn sign.
3. Unfortunately no one has put before me a photograph of the width of Wunulla Road in this area, nor is there any photograph of the no stopping zone on the western side of Wunulla Road opposite the Rose Bay Police Station. The plaintiff asked me to accept that the road was at this time at least four lanes wide, one lane for parking on each side of the street and two lanes enabling cars passing in the opposite direction to pass without difficulty. However, such a configuration makes it difficult to understand why there should be a no stopping sign where there clearly was one and how anybody parking in the no stopping sign could impede police leaving the carpark in an emergency. The plaintiff himself vacillated on whether he made a U-turn or a three-point-turn, and I shall address that evidence tomorrow morning.
4. One thing which I should have mentioned antecedent to this was a minor discrepancy in evidence between Constable Irwin and Probationary Constable Trifunovic. Constable Irwin said that his interaction with the plaintiff was as he was going to the toilet where he appears to have spent a number of minutes. Probationary Constable Trifunovic thought that that interaction was after Constable Irwin had visited the toilet, that is, as they were leaving the police station to go to their police vehicle. Of course the plaintiff would have me believe that he did not hear what Constable Irwin said in the police station but did hear him say the same words when he was crossing Wunulla Road, or perhaps the footpath, outside Rose Bay Police Station and as Constable Irwin was in the carpark, a circumstance not attested to by either Constable Irwin or Probationary Constable Trifunovic. Of the two versions I prefer that of Constable Irwin who would have more reason to recall it, being the actor in the interchange than that of Probationary Constable Trifunovic, who was merely a potential witness to the interchange. As between the police and plaintiff and Mr Tanner, I prefer the evidence of Constable Irwin on this issue. It appears to me to be more reliable.

ADJOURNED TO TUESDAY 2 JUNE 2015

1. When we adjourned yesterday afternoon, I had been discussing the exchange between Constable Irwin and the plaintiff about the need for the plaintiff to move his motor car from the place where it was illegally parked. Although the plaintiff said he was told to move his car after he had left the police station, as he was walking to it, later in evidence he admitted that he was told that he had also been told to move his motor car when he was in the police station. On 19 May 2015, the plaintiff said this, commencing at T 87.49: "Q. Being your contention, was it not that you were in fact not parked illegally? A. I - when I first parked there, I thought I was parked legally, but later I realised I had parked illegally, and the police yelled at me in the police station and outside to move my car which I did. Q. Who was it who yelled at you inside the police station? A. Later when I - when I read the transcript - or Irwin informed me that when he yelled at me in the police station, what he yelled was, 'Hey mate, you've got to move your car,' and then he did it again as they were running towards their van. Q. So it's Constable Irwin inside and outside the police station who tells you to move your car. A. Very kindly told me to move my car, which I did." It is not entirely clear from that response whether this was a frank admission that he recalled Constable Irwin having told him in the police station to move the car or whether it was the plaintiff's reconstruction of being told twice to move the car, once in the police station and once when he was outside the police station, the reconstruction being based on what he understood Senior Constable Irwin to have stated either in his statement or in evidence.
2. The matter which I have just discussed was an interlude after I raised the question of whether the plaintiff made a U-turn or a three-point-turn. Eventually the plaintiff said this in cross-examination about this issue: "Q. Have you ever told the Court a different version of the circumstances in which you turned around in Wunulla Road and entered New South Head Road? A. Well, I, I did a three-point-turn U-turn so it's, I, that's the turn that I did, half three-point-turn, half U-turn, because I think I needed to reverse slightly to make the turn. Q. When you told his Honour yesterday it was a U-turn, that wasn't quite accurate. A. Well, it was U-turn and then I think I did reverse slightly to finish the turn. Q. You know the difference between a U-turn and a three point turn, don't you, Mr Rook? A. All I said was half a U-turn and half a three-point-turn. Q. You turned the steering wheel of your vehicle toward the right, you turned across Wunulla Road, you brought it to a stop and you reversed, correct? A. I'm, I almost made it but I had to reverse a little bit, that's correct. Q. Then you again engaged a forward gear and completed a turn and you were then facing in the other direction in Wunulla Road? A. Correct." Clearly a three-point-turn had been made. The position adopted by the plaintiff was akin to saying that he was, if he were a female, "a little bit pregnant". Either it was a three point turn or a U-turn. It clearly was a three-point-turn. I have no hesitation in accepting the evidence of Constable Irwin that the plaintiff effected a three-point-turn.

The plaintiff drives towards his home

1. The plaintiff then turned right out of Wunulla Road onto New South Head Road. He was followed by Constable Irwin and Probationary Constable Trifunovic in RB15. The evidence of Constable Irwin is that he wished to speak to the plaintiff about his illegal right-hand turn, being part of the turn which required him to turn into the driveway of the police carpark of the Rose Bay Police Station.
2. There is then a further factual contest on three issues. The first issue is in which lane did the plaintiff travel and therefore in which lane did RB15 travel as it followed the plaintiff. The next issue is when did RB15 engage its flashing blue and red lights and its siren. The third issue is when did RB15 start flashing its high beam lights at the plaintiff's motor car.
3. As I mentioned yesterday, the plaintiff's car is a sports car, it is low slung. RB15 is a Ford utility truck on which has been mounted a fibreglass cage to house prisoners, the modern version of a paddy wagon.
4. Senior Constable Irwin maintained in his evidence before me, both in chief and in cross-examination, that he followed the plaintiff in lane 2 of 2 westbound lanes on New South Head Road where there were only two lanes, lane 1 being near the kerb and lane 2 being next to the centre line of New South Head Road. The evidence suggests that at some stage New South Head Road westbound, after its intersection with Wunulla Road, has three lanes, the more left-hand lane usually occupied by parked motor vehicles. Where there were three lanes it is clear from the evidence that both the plaintiff and Constable Irwin ignored any parking lane so that where there were three lanes, lane 1 of 2 was the middle lane and lane 2 of 2 was the lane closest to the centre line. I am unable to accept the evidence of Constable Irwin that he followed the plaintiff in lane 2 of 2 rather than lane 1 of 2. Why Constable Irwin maintained on oath before me that he travelled on in lane 2 of 2 following the plaintiff driving in the same lane I cannot explain other than by saying that he based it on a recollection which was erroneous, that he could not overtake the plaintiff's vehicle on the right-hand side of the carriageway, such that the plaintiff's vehicle obstructed him if, in an emergency, he needed to go past the plaintiff's vehicle to respond to some other call. The effect of his evidence was to indicate a persistence by the plaintiff in conduct which may have otherwise impeded police activity.
5. The evidence which Constable Irwin gave to me is quite inconsistent with the evidence he gave in the Local Court. In evidence in the Local Court on 25 October 2011 Constable Irwin said this in cross-examination: "Q. Then when you went outside and you saw him get into his vehicle and you followed him, what lane were you travelling in? A. I was behind him so would have been in lane 1. Q. I put it to you that he was actually in lane 2. HER HONOUR: Is this to do where he lives? WOOD: Yes, we're going there. HER HONOUR: All right. Q. What do you say that he was.. A. We were both in lane 1." Constable Irwin also gave evidence before the Local Court on 3 February 2012. At p 84 of the transcript the following questions and answers appear: "Q. Do you recall what lane you were in? A. Lane one or two. Q. Lane one or lane two? A. Lane one or two. Q. The whole time? A. That's correct. Q. So you didn't change lanes at all? A. On the way to his house? Q. Yes. A. No. Q. Did Mr Rook change lanes at all? A. No, we followed Mr Rook the whole way behind him. Q. He remained in the same lane at all times? A. That's correct."
6. When confronted with that evidence Constable Irwin said that what he said was correct, that the plaintiff travelled in "lane one or two" [my emphasis]. Like learned senior counsel for the plaintiff the only conclusion I can draw is that there is a mis-transcription in the two of the answers which Constable Irwin gave where the answer is recorded "lane one or two" [my emphasis] when he was saying "lane one of two" [my emphasis]. That is the only interpretation of the words spoken that makes sense. Lest I was being unfair to Constable Irwin, I had my Associate make inquiries of Court Reporting Services to ascertain whether the audio recording was still available of Constable Irwin's evidence given in the Local Court on 3 February 2012. Counsel were told by my Associate that he had been directed by me to make that inquiry and they both concurred that it ought be done. Unfortunately, sound recordings are destroyed after three years and the sound recording was no longer available. However, it is clear to me that the position adopted by Constable Irwin in the Local Court was that the plaintiff was driving in lane one of two and the position he adopted in giving evidence before me was that he and the plaintiff were both driving in lane two of two.
7. Indeed, Probationary Constable Trifunovic in cross-examination told me that they travelled in lane one, the left-hand lane of two lanes, that is lane 1 of 2. I accept that the plaintiff drove in lane 1 of 2 and was followed by RB15 in the same lane. That finding is reinforced by this consideration. To turn left into Victoria Road from New South Head Road both the plaintiff's vehicle and RB15 would need to be in the left-hand lane, lane 1 of 2. If the plaintiff turned left from lane 2 of 2, he would have been committing a criminal offence. A motorist who is travelling in lane 2 of 2 and wished to turn left would need, first, to change lanes by changing into lane 1 of 2, and later turn left. No suggestion has ever been made that the plaintiff made an unlawful left-hand turn, that is turned left into Victoria Road from lane 2 of 2, and there is no suggestion that when the plaintiff was in New South Head Road that he ever changed lanes from lane 2 of 2 to lane 1 of 2. The conclusion is inevitable that the plaintiff travelled in lane 1 of 2, as did RB15, and I am unable to accept the sworn evidence in that regard by Constable Irwin before me. The evidence he gave in the Local Court is much more likely to be accurate, and accords with both the evidence of the plaintiff and the evidence of Probationary Constable Trifunovic.
8. The next issue is when did RB15 engage its flashing blue and red lights and its ordinary siren? Constable Irwin made it clear by marking on exhibit 16, a map, that he engaged the flashing lights and the sirens immediately after he turned onto New South Head Road. He marked exhibit 16 with "XA" for that position, which is clearly on New South Head Road after he turned right out of Wunulla Road. On the same exhibit Constable Irwin marked "XB" as the place where he started flashing his high beam lights at the plaintiff's vehicle, that position being opposite a bus stop on New South Head Road on its southern side outside the playing fields of the Cranbrook School. That bus shelter can be seen in exhibit 17 and the bus shelter is identified on the map which is exhibit 16. Exhibit 16 also shows a third lane on New South Head Road westbound which clearly, at the place where the bus shelter is, was designed to accommodate a bus so that it did not interrupt traffic in lane 1 of 2.
9. Exhibit A, an aerial photograph, shows the distance between Rose Bay Police Station and the commencement of the plaintiff's driveway as being 550 metres. Initially, the "550 metres" was not admitted as evidence. I was assured by learned senior counsel for the plaintiff that the actual distance would be otherwise established. Exhibit 16 shows the distance from the Rose Bay Police Station to the plaintiff's actual residential building as being "650 metres", but it is clear to me that the extra 100 metres represents the entire length between the commencement of the driveway to 2 Victoria Road and the building which constitutes 2B Victoria Road. Eventually, as the distances were not otherwise established by evidence, counsel agreed that the two distances shown on exhibit A and exhibit 16 were to be evidence of the facts stated by the distances shown on the two exhibits. In essence, Constable Irwin and Probationary Constable Trifunovic say that the flashing police lights and the ordinary siren were engaged for 500 metres, the approximate distance from the intersection of Wunulla Road and New South Head Road to the intersection of New South Head Road and Victoria Road, the commencement of the plaintiff's driveway being almost at the same place as the intersection of New South Head Road and Victoria Road.
10. The evidence called from the plaintiff and Mr Tanner is otherwise, but the evidence of the plaintiff vacillated. In chief, this evidence was given at T 35 on 18 May: "Q. At some point did you become aware that there were police behind you? A. Yes. About 100 metres or so from my drive, right as I was putting my left hand indicator on, police came fast, really fast, right up behind me, flashing their lights. Q. Did you hear a siren? A. No, I heard a siren as we - so what happened was I see these police coming out behind me, I'm starting to brake because I'm about to turn up my driveway. And when, and when actually you turn into my driveway you can't stop there because it's very narrow and very steep so I drove up the top and they kept going behind me. And that's when they went with their alarm, like, they didn't do - it was just a few clicks, plus they kept flashing their lights so I stopped at the top of my drive, in the middle of the carpark. Q. So you heard the siren sound twice in short bursts? A. As I was driving up the drive, correct." That evidence suggests that the plaintiff saw the police car with its flashing lights "about 100 metres or so" from the turnoff up his driveway. Essentially he saw the police lights flashing for 100 metres in the journey along New South Head Road. In cross-examination on the same day, this evidence was given: "Q. Was that at or about the time you first realised there was a police car behind you, following you down New South Head Road with its lights illuminated? A. Well, John and I were having this discussion about what we were, what we were going to do because we were going to go to the ER ward like the police had told us, and then, and then we had that discussion, and that was the thought that was going through my mind, is I'd like to just put the car away and get off the road and then, yes, I saw flashing lights at that stage as I was turning into my drive. Q. But you first saw the flashing lights about - on your version - 100 metres before you reached your drive, didn't you? A. About 80 metres. We're talking seconds here. I'm, I'm, I'm in - I'm going from 60 ks an hour to 50 ks an hour so this is all happening within, like, a five second range that I'm decelerating, changing down gears, put my indicator on, chatted to John, and said, 'Look, let's pull in,' and then, and then I see the police lights behind me. Q. At that point when you saw lights behind you, you looked, you say, for a place to stop your vehicle so that you could see why the police were behind you with their lights on, that's A. Correct. Q. --correct, isn't it? A. Correct, yes." One will note from the evidence that I have just quoted that what was "100 metres or so" was reduced in cross-examination to "about 80 metres", and the plaintiff indicates that it was after he had started to decelerate and before turning on his left hand turning blinker, although a motorist is required to indicate a turn by engaging his blinker 200 metres before the turn is made.
11. There are at least three other considerations about this area of the evidence. The first is the plaintiff indicated that his motor vehicle was noisy and may have obliterated the sound of the siren. After the last piece of evidence which I have quoted, the transcript continues: "Q. It would be safe to say that Mr Tanner at this point in time was in a highly excited state? A. I, I wouldn't describe it as that. I'd say he was very upset. When you say highly excited, that means happy and - he, he was sad, he was hurt and sad. Q. He was very upset. A. He was upset. Q. He was loud in the car, wasn't he? A. When you say loud, my - that, that car's very loud. It has a forward twin cam engine with a big valve exhaust on it, you'll have to talk quite loud to even be heard, but our, our, our chat was at a normal conversation, it wasn't - he wasn't screaming at me." It is difficult to understand how, if the car be loud and you have to talk quite loudly to even be heard within the car, a conversation could be had at a normal conversational level. Mr Tanner said the conversation was at a normal conversational level. Whatever the noise of the car might be, conversation within the cabin might be normal because the wound up windows of the cabin might obscure the noise coming from the engine, that is, the engine noise was external to the cabin. However, that external noise could interfere with other external noises such as police sirens.
12. There was then an issue as to the nature of the conversation that was occurring between the plaintiff and Mr Tanner in the cabin of his vehicle. For example, one needs to consider this evidence given in cross-examination on Tuesday 19 May: "Q. Did he argue with you on the way to the Rose Bay Police Station? A. I wanted to go to Rose Bay, I remember John wasn't as keen to go to the police station. I think he wanted to go home, but I don't think we argued about it, we simply went to Rose Bay. Q. Did you - I'm sorry, I didn't mean to interrupt your answer. A. So we simply went to Rose Bay Police Station. Q. Did you argue after you'd left Rose Bay Police Station on your way to the driveway leading to your flat? A. We had a to and fro conversation, he said, 'Look, I'd rather just go home.' I said, 'Well, maybe we should go to the ER ward,' he said, 'No, I want to go home. My shoulder hurts. I want to wash, I want to have one of those painkillers.' And I said, 'Well, you know what, that probably makes sense so let's get the car off the road.' So I wouldn't call that an argument. I'd call that a discussion. Q. That discussion, as you've just described it, was something that was occupying your attention as you drove from the Rose Bay Police Station towards your flat? A. In addition to operating the car, yes. Q. And on 3 February you told Magistrate Milledge that you were listening - this question was asked of you, 'During that drive what was going through your mind at that time?' The context is between the Rose Bay Police Station and your flat, page 99. And you answered, 'Well, I was listening to John saying 'I want to go home.' And I said, 'No, you need to go to the ER ward' and John was going, 'No, I want to go home,' bang. So that's actually where my main concentration was, was John arguing. Basically arguing over going home so he could have a shower and take some pain medication and me getting him to the ER ward because he was cut, he was bleeding and he had bruises.' That was what's happening, wasn't it? Do you agree? A. Well, that's, that's, that's what I said on 3 February. I remember a - a discussion but on 3 February I used the word "arguing". Q. Right. Which was it? A. It's a blend of the two. John was saying, 'I want to do this', I'm saying, 'No, you should do this'. It was, it was to and fro. It was a borderline discussion - you know, he wanted to do one thing and I wanted to do another but then we compromised and I decided to pull into my drive." Either there was an argument or there was not. Either there was merely a discussion or the conversation was other than a discussion. The plaintiff told the Local Court that there was an argument. I think it likely that there was an argument between the plaintiff and Mr Tanner and the plaintiff was occupied by the exchange of words with Mr Tanner, the exchange of ideas, the exchange of intention as to destination. The attempt by the plaintiff to try to turn an argument into a discussion or to elevate the discussion into something like an argument was an attempt to reconcile essentially two inconsistent versions of what had happened.
13. There were a number of things which clearly could have distracted the plaintiff from realising that the police were following him with the flashing blue and red lights illuminated and with the siren blaring. They were, firstly, the noise of the motorcar; secondly, the argument - and I use that word advisedly - that was being had between the plaintiff and Mr Tanner in the motor car; and thirdly, it must be borne in mind that the plaintiff's car was low slung whereas the police vehicle was not and he may not have been able to see the flashing red and blue lights because he was at a much lower level than those lights.
14. The next consideration to be thrown into this factual matrix is a police radio call made from RB15 by Probationary Constable Trifunovic. It is clear that in the Local Court both Constable Irwin and Probationary Constable Trifunovic had forgotten about this radio call and only had their attention drawn to it shortly before giving evidence before me, probably during a conference with Counsel. The radio call became exhibit 19. The audio of the radio call became exhibit 19/1 and a transcript of it became exhibit 19/2. One will recall that both Constable Irwin and Probationary Constable Trifunovic left the Rose Bay Police Station through the entrance to the police carpark at 2.46. As far as Trifunovic was concerned at 2:46:12 and as far as Constable Irwin was concerned at 2:46:14. At 2:47:07 Rose Bay 15 called for "a transport" meaning a transport inquiry. Radioed through was the registration number DR-73-TC, the registered number of Mr Rook's Lotus motor car. A response was made by VKG at 2:47:40. VKG identified the vehicle as a black Lotus. At 2:47:48 Probationary Constable Trifunovic replied to VKG with the words, "Yeah, radio, copy that." At that point a "whoop" can be heard, the sound of a siren. There was then a transmission by VKG that the Lotus was registered to David Rook of Double Bay and that the registration was current. There was then a gap of about four minutes and at 2:52:10 Rose Bay 15 called VKG again, was acknowledged and RB15, namely, Probationary Constable Trifunovic, said that they had "a positive BAS" and asked if a check could be made to see if Waverley Police Station was available to take the prisoner to it and that RB15 had on board a BAS operator, who we now know to be Constable Irwin. The call commencing at 2:52:10 was after the administration of a road-side breath test to the plaintiff. The time between RB15 first calling VKG and the acknowledgement at 2:47:48 was 41 seconds. At 60 kilometres per hour one travels at a speed of one kilometre per minute and therefore one can cover 500 metres in 30 seconds. There was a period of 41 seconds between the first call from RB15 to the acknowledgement of VKG's response at 2:47:48. That 41 seconds was a sufficient period of time for 500 metres of New South Head Road to have been travelled.
15. In the earlier part of the transmission recorded one cannot hear any radio sirens. That has led Senior Counsel for the plaintiff to submit that that establishes that the sirens had not been engaged. However, there is a problem with that submission. Constable Irwin made it clear that when RB15 reached the bottom of the driveway, the ordinary sirens were turned off so as not to awaken those sleeping nearby, that is nearby residents. He told me that as he was driving up the driveway he activated the "whoop whoop" signal or siren twice, that is not the ordinary siren but a special siren designed to draw specific attention to the presence of the police vehicle. The "whoop" recorded in the audio is very faint. The question which arises is would the ordinary police siren, not the "whoop whoop" siren, be heard on a normal police radio transmission? That is not the subject of any expert evidence. If ordinary siren noise were recorded on VKG transmissions, it might make active policing very difficult. Police often are talking to VKG whilst they are pursuing errant motorists or driving to a crime scene, or responding to some urgent call. If the ordinary police siren could be heard on VKG transmissions, it might interfere with those transmissions and render the system of police radio communication defective or even inoperative. One can understand that there might be means of suppressing ordinary siren noise from police radio transmissions. That is especially so when the "whoop whoop" sound, which was designed to be different from the ordinary siren sound, could be heard but only faintly. I am not persuaded, on the balance of probabilities, that the absence of any ordinary siren noise from exhibit 19/1 establishes that the ordinary police sirens had not been engaged.
16. The real question for me is whether the ordinary police sirens and flashing lights were engaged at the places that Constable Irwin said they were, or whether he was being hyperbolic and they had been engaged at some later stage. I can accept that they were engaged at some point along the passage of RB15 on New South Head Road from the intersection of New South Head Road and Wunulla Road, and before the police reached the intersection of New South Head Road and Victoria Road, and it appears to me to be likely, at least, that they had been engaged for at least 100 metres prior to the intersection of New South Head Road and Victoria Road because that is what the plaintiff admitted in his evidence-in-chief, although he sought to reduce the length of that part of the journey during cross-examination. I accept, therefore, that for at least 100 metres before the intersection of Victoria Road and New South Head Road the police had engaged their ordinary lights and sirens, and the sirens were not initially heard for some reason or another by Mr Rook and Mr Tanner. That is also consistent, in my view, with the finding by the learned magistrate, admitted in the pleadings, that the plaintiff was found to have been guilty of an offence of not stopping a vehicle when directed to do so contrary to s 39(a) of Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA). In 100 metres the plaintiff could have pulled his vehicle over and stopped before reaching his driveway.
17. At some stage whilst he was driving, the plaintiff realised that he "shouldn't be on the road". The plaintiff was asked about telling the Local Court that on 19 May 2015 at the foot of T 94 and the top of T 95. Clearly, the plaintiff was aware that he had been drinking and that perhaps he should not be driving when he left Macquarie Street to pick up Mr Tanner in Oxford Street, and then that he ought not be driving when he was driving with Mr Tanner from the Rose Bay Police Station.
18. The plaintiff drove up his driveway and eventually stopped. That brings me to the need to describe in some detail the area where the plaintiff stopped, where Constable Irwin administered to the plaintiff a roadside breath test and the legal consequences flowing from the events that had happened after the plaintiff stopped, alighted from his vehicle, was confronted by the police and provided a roadside breath sample into a roadside breath testing device.
19. At [51] above I quoted part of the evidence plaintiff's evidence-in-chief. That evidence raises the issue which I must now determine, the circumstances in which the plaintiff stopped at the top of the driveway "in the middle of the carpark" which clearly raises a legal issue. I just add at this time that the plaintiff used a remote control to open a garage door at the bottom of 2B Victoria Road into which garage he intended to drive. However, he could not enter the garage because there was another vehicle, a small red car, seeking to leave the "carpark", which obstructed the plaintiff's access to his garage such that he needed to stop "in the middle of the carpark".

The plaintiff's residence

1. The original 2 Victoria Road has been subdivided. It was clearly subdivided many decades ago. On the original number 2 there appear to have been established eventually three strata plans. 2 Victoria Road fronts onto the southern alignment of Victoria Road. The northerly part of the original property retains the number 2 and is comprised in strata plan 16210. Behind that are two other strata plans, strata plan 1916 which occupies the middle of the original property, and behind that, strata plan 5194. Strata plan 1916 is known as 2A Victoria Road, Bellevue Hill, and strata plan 5194 is known as 2B Victoria Road, Bellevue Hill. A copy of the strata plan for number 2B Victoria Road, together with a covering letter from the Woollahra Municipal Council is exhibit J.
2. Originally, presumably after the first subdivision, 2B was a "battle-axe" block with a long narrow handle joining the back of the whole of the block to Victoria Road. This block was originally land in vol. 5302 folio 146. The long handle of the "battle-axe" gave rights of carriageway, presumably to both the blocks which became strata plan 1916 and strata plan 16210. One can observe in exhibits 8 and 24 that the original handle of the "battle-axe" did not eventually end up containing the access to 2B. Rather, further rights of carriageway were annexed to 2B, they being right of carriageway D73957 and D656656. One can see in exhibits 8 and 24 that the original handle of the "battle-axe" has been assigned to parking spaces, garden and motor scooter parking spaces. What can be seen as the "driveway" to 2B is comprised in the two additional rights of carriageway, D73957 and D656656. Those rights of carriageway appear to be part of the land occupied by strata plan 1916, being number 2A Victoria Road, Bellevue Hill.
3. 2 Bellevue Hill was assigned the name of Rossmore, 2A was assigned the name Midlothian, and 2B was assigned the name Lammermoor, indicating somebody with Scottish background was responsible for the naming of the three plans. Strata plan 5194, number 2B, Lammermoor is a three-storey building, each storey containing four strata units. The plaintiff's residence was unit 2, being the ground floor unit in the south western corner of the building. Underneath that three-storey building is, on the western side, a substructure/cellar/excavation which contains in essence three garages, each of which has been given a strata unit number. It is clear from the evidence that in addition to being a tenant of unit 2, the plaintiff was also a tenant of one of the garages, that is, of either unit 13, unit 14 or unit 15. There is a common garage door to the three parking spaces comprising those units. The inference to be drawn from the photographic evidence is that Rossmore, Midlothian and Lammermoor were erected in the 1930s and were probably originally company title developments and at least, as far as 2B/Lammermoor is concerned, was registered as a strata plan on 23 December 1970 pursuant to the Conveyancing (Strata Titles) Act 1961.
4. It is clear from the photographic evidence that there is a long steep driveway from Victoria Road up the side of strata plan 16210/ 2/Rossmore, which leads onto the land occupied by strata plan 1916 which is burdened by the rights of carriageway appurtenant to strata plan 5194/ 2B/Lammermoor.
5. The plaintiff marked with a red "X" on exhibit 8 the place where he parked his motor vehicle after stopping when being followed by RB15. He also marked with a red circle on the same exhibit the place where he was subjected to random breath testing by Constable Irwin. There was a competing identification of the place where the random breath test was administered contained in exhibit 24 but that marking was not put into evidence, but even if that had been done, it would not cause any material influence or even minor difference. Suffice to say that the random breath testing was conducted on the land which is part of SP 1916/ 2A/Midlothian but on one of the rights of carriageway appurtenant to SP 5194/ 2B/Lammermoor.
6. Both exhibit 8 and exhibit 24 and various photographs indicate that there are a number of car parking spaces on either land owned by SP 5194 and SP 1916, and that there appears from the photographic evidence to be no marking on the car parking spaces to indicate that it is reserved for one particular unit or another of either number 2A or number 2B. There is a caption on a number of the police photographs, exhibit N, but the captions were not part of the tender.
7. It is clear from SP 5194, exhibit J, and from exhibits 8 and 24 that there are 12 units in number 2B but only three garages, so that if each tenant had a motorcar, nine of the motorcars would have to be parked in one of the car parking spaces on either SP 5194 or SP 1916. The photographic evidence and also exhibits 8 and 24 indicate that there is no garage available for 2A/ Midlothian, which is also described as a three storey brick unit and probably also contains 12 residential units. Exhibits 8 and 24 indicate that there is a "brick garage" for strata plan 16210. There are 19 car parking spaces marked on exhibits 8 and 24, and those 19 car parking spaces, together with the three garage spaces in 2B, would provide places to park a car for each of 22 units, and between number 2A and 2B, there might be 24 units. The area which the plaintiff described as a "carpark" is properly so described provided one bears in mind that through the carpark spaces is a right of carriageway onto 2B giving access to the three garage spaces under the western side of that building, Lammermoor.

Had the plaintiff reached his "home"?

1. A major issue ventilated both in the Local Court and before this Court is whether the place at which police administered a roadside breath test to the plaintiff could be described as his "home". When random breath testing was first introduced in to this State it was governed by the Motor Traffic Act 1909. Section 4E(5) provided that: "A member of the police force shall not require a person to undergo a breath test or to submit to a breath analysis - … (d) at that person's usual place of abode." A similar provision was enacted in the Road Transport (Safety and Traffic Management) Act 1999 which replaced certain provisions of the Motor Traffic Act 1909. Section 17 of the Road Transport (Safety and Traffic Management) Act 1999 provided this: "A police officer cannot require a person to undergo a breath test or to submit to a breath analysis: … (d) at that person's place of abode." The words "place of abode" were replaced by the Road Transport Legislation Amendment (Drug Testing) Act, Number 79 of 2006, with operation from 15 December 2006, with the word "home". The current legislation is contained in the Road Transport Act 2013 Sch 3. The terminology was originally "usual place of abode". The statute of 1999 replaced that terminology with "place of abode". Since 15 December 2006 the terminology has been "home". I accept that "usual placed of abode" and "home" are synonymous. I do not, however, accept that "place of abode" and "home" are synonymous.
2. When cases are listed on circuit for a period of one, two or three weeks, I might take accommodation at a club, hotel, motel or rent an apartment, so might legal practitioners on the circuit. When on circuit the accommodation which I have hired becomes my place of abode, however, it does not become my "home" nor does such rented accommodation become the home of any legal practitioner participating in the circuit. A family might go on holiday for four weeks at Christmas. They may take a holiday letting, a seaside cottage, a cottage in the country, they might rent an apartment at a seaside resort or stay in a caravan park or camping ground. Such hired accommodation is not that family's "home" but it may be for the time being, pro tempore, their place of abode. That is not yet a consideration raised by the case law but it needs to be the subject of comment.
3. "Home" is derived from the Old English "ham" in which the vowel was long. The modern "ham" (a form of pork meat) has a short vowel. "Home" originally meant "a collection of dwellings, a village, a town", a meaning which probably subsists in the modern "hamlet". The next meaning given to the word in the Shorter Oxford Dictionary, 5th Ed., is "the place where one lives permanently; especially as a member of a family or household; a fixed place of residence". The word can bear a wider meaning, clearly not intended in this legislation, epitomised in this country by the well-known line, "I still call Australia home." Another meaning assigned by the same dictionary "[c]hiefly North American, Australian, New Zealand and South African" is "a private house, a dwelling house." The same work provides as the primary meaning of the word "house": "a building for human habitation, a dwelling, a home." Whether "home" ought be defined to be "a dwelling place" or "a permanent or usual dwelling place" is a moot point, which, fortunately, the present case does not raise. There is no dispute that 2/2B Victoria Road, Bellevue Hill was the plaintiff's "usual place of abode". The only extrinsic aid to the meaning of "home" is the explanation in the explanatory note to Act No 76 of 2006: "Schedule 1 [2] makes a law revision amendment so that the Principal Act refers consistently to "home" throughout instead of the archaic 'place of abode'." If this explanatory note be given any weight, it means that Parliament intended that the claimed archaism and "home" are to be given the same meaning, which, in my view, would be a forced meaning.
4. The question has become whether the place at which the plaintiff submitted to a roadside breath test was his "home", as that term was used in s 17(d), of the Road Transport (Safety and Traffic Management) Act 1999, the relevant enactment at the time. Both in the criminal proceedings brought by Constable Irwin in the Local Court, and in the current proceedings, the onus of proof was, in the criminal proceedings, upon Constable Irwin, and in these proceedings is on the defendant which seeks to justify Constable Irwin's arrest of the plaintiff. However, the burden of proof is different. The burden of proof in these proceedings is on the balance of probabilities. The burden of proof in the criminal proceedings was that Constable Irwin needed to prove beyond reasonable doubt that the place at which the plaintiff was submitted to a roadside breath test was not his "home".
5. The question becomes what is the meaning of the word "home" in the statute which I have just cited? The first relevant decision is R v Clampett (1984) 11 A Crim R 103, a decision of the Court of Criminal Appeal of this State comprised of Street CJ, Lee and Cantor JJ. The primary judgment was delivered by Street CJ, with whom Lee and Cantor JJ agreed. The relevant facts are recited in the judgment. Street CJ said this: "The facts as stated in the case are in brief that the respondent was observed to be driving his motor vehicle in a public street in Lidcombe in a manner which attracted unfavourable notice by a member of the police force. The appellant's [sic] vehicle was followed into the grounds of the Lidcombe State Hospital. Within those grounds there is a parcel of land held under separate ownership, upon which is erected a residential building known as Ferguson Lodge. This is a building which provides permanent accommodation for paraplegics and quadriplegics. Contiguous to the building is a covered carpark area available for the parking of cars, inter alia, of residents within Ferguson Lodge. Photographs indicate that the covered carpark provides a sheltered access directly into the main structure of the residential building. There is an ornamental type of wall with the name 'Ferguson Lodge' immediately beside the driveway leading into the area off which the carpark opens. The respondent drove his vehicle into that carpark and he was then approached by the member of the police force who had followed him. He was spoken to through the driver's side window of his car. He informed the constable that he was a paraplegic and he was lifted out of the car. He was then asked by the member of the police force to undergo a breath test. He refused to do so. He was then arrested and taken back to a police station where he refused to undergo a breath analysis." The respondent in that case lived in Ferguson Lodge. I infer that the covered carpark area was on the parcel of land held under separate ownership by those conducting the Lodge. I infer that the ornamental type of wall with the name of the institution was on that parcel of land and clearly indicates that the carpark was on that parcel of land. The issue in the case was whether it was open to this Court to determine as a question of fact that the carpark area where the respondent refused to undergo a breath test was part of the respondent's "usual place of abode", the offence being governed by the Motor Traffic Act 1909 at the time. His Honour, after quoting the relevant statutory provision, went on to say this: "The Crown has, in helpfully formulated written submissions, conceded that it was open to his Honour so to conclude [that the breath test was made at the respondent's usual place of abode]. This concession, of course, is accepted unreservedly by the respondent. The matter having been conceded, and the concession having been accepted, it is unnecessary to canvass the earlier authorities to which attention has been directed in varying contexts to what is encompassed within the phrase, 'place of abode' or 'usual place of abode'. In the present case, the respondent had lived in Ferguson House, according to the evidence, for some three years. It was undoubtedly his usual home and the only element which may have taken the facts outside the specific concept of 'place of abode' is the physical removal of the carpark area from the main structure of the building. This physical removal was limited in that, as has been stated, the carpark was covered by a roof which led up to the main building. The carpark was used by residents in the building for the parking of their personal cars and it was, in every sense, part of the overall structure which constituted the building complex wherein the respondent usually resided. The Crown, in its submissions, which incorporate the concession made, has accepted that the common law concept of the delineation of the curtilage is the reliable indicator of the concept of a place of abode. I do not consider it necessary to resolve whether this concession is valid, I am content to accept it as applying in this case in which this carpark has physical contiguity to the main building, its use being incorporated in the use of the building by the persons who live in the main building as part of their ordinary living facilities. This renders it open to the District Court to determine, as a question of fact, that the carpark area was at the respondent's 'usual place of abode'."
6. The place where Mr Rook submitted to breath testing by Constable Irwin was not in a physical structure which had contiguity with the block of home units in which he resided. The garage would have been, but he was not tested within his garage. Minds may differ, but in my view the carpark was not within the curtilage of "Lammermoor", number 2B. The concept of the "curtilage" of a building is referred to in subsequent authorities.
7. The next case is Haberhauer v Simek (1991) 9 Petty Sessions Review 4235. The facts stated by the Local Court magistrate are contained in par 1.4 of the judgment: "(1) The respondent was driving a motor vehicle on a public street, King Street, Mascot, on 4 August, 1989. (2) The respondent had been drinking alcohol prior to driving the vehicle. (3) The respondent's vehicle was followed by a police vehicle into premises at 314 King Street, Mascot, where the respondent parked her vehicle in the space reserved for use by the residents of Unit 18, 314 King Street, Mascot. (4) As at 4 August, 1989, the respondent was co-lessee of premises known as Unit 18, 314 King Street, Mascot, with car space number 18. (5) When the informant approached her, the Respondent gave her address as Flat 4, 32 Blenheim Street, Randwick. (6) When asked by the informant what she was doing at 314 King Street, Mascot, the respondent replied that she was visiting her boyfriend in number 18. (7) In fact the respondent's usual place of abode at that time was Unit 18, 314 King Street, Mascot. (8) The result of the breath test on the respondent being positive, she was taken to Mascot Police Station and breath analysis carried out which disclosed a reading of .110 grammes of alcohol in 100 millilitres of the respondent's blood. (9) On the hearing of the matter, I admitted into evidence a certificate pursuant to s4E of the Traffic Act, 1909, ["the Act"] disclosing a reading of .110 grammes of alcohol in 100 millilitres of the respondent's blood, ["the Certificate"], the certificate being admitted into evidence against the background of the defence counsels opening remarks that the issue to be decided by the Court being that the breath test took place at the defendant's place of abode." The learned magistrate went on to hold that the car space provided to the respondent in that case was part of her usual residence, being a strata unit, to which the car space was appurtenant.
8. At [4], Sully J pointed out that there was no definition in the now renamed Traffic Act 1909 of the words "place of abode". His Honour referred to an earlier decision of Meares J in Hall v Coughlan (1970) 91 WN (NSW) 886 in which Meares J held that a person who was standing on a public footpath outside the front fence of his house could not be at his usual place of abode. Meares J distinguished between the prepositions "at" and "near". Although the motorist in that case was breath tested near his place of abode, he was not breath tested at his place of abode, and the word "at" did not mean "at or near". Sully J then canvassed the decision of Clampett, which I have already canvassed, and made this observation at [4.9] - [4.10]: "4.9 There is a further and significant contrast between the use in s4E (5) (d) of the old-fashioned term "usual place of abode", and the use in s5AA(5)(d) of the Act of the word 'home', in an amendment made in 1987 and obviously intended to parallel, in the case of testing for drugs, the provisions which are made by s4E (5) in the case of testing for alcohol. 4.10 I consider that the contrast noted in 4.9 permits s4E (5) (d) to be read as if the word 'home' appeared in place of the phrase 'usual place of abode'." This dictum probably explains the change made by Act No 76 of 2006 and the contents of the explanatory note cited in [70] above.
9. His Honour then quoted the second reading speech for the Bill which was eventually enacted s 4E(5)(d), in which the Minister referred to "a policeman knocking on a person's door at any old hour, and requiring him to take a breath test". His Honour then continued thus: "4.12 There are reported judicial observations to the effect that 'home' is a word of an extremely wide and varied significance": [Vaisey J in In re Brace deceased [1954] 1 WLR 955 at 958]; and that "unless it is to be given, for any particular purpose, some arbitrary statutory meaning, the concept is (not) ......... capable of precise definition It is a concept which may also have different meanings in different contexts [Sheldon J; In re Y [1985] 3 WLR 601 at 605]. In all such cases of variable possible meaning, it is, I think, useful to bear in mind the observation of Barwick CJ in Tickle Industries v Hann (1974) 130 CLR 321 at 331: 'It is, in my opinion, a sound rule of statutory construction that a meaning of the language employed by the legislature which would produce an unjust or capricious result is to be avoided. Unless the statutory language is intractable, an intention to produce by its legislation an unjust or capricious result should not be attributed to the legislature.' 4.13 In the case of s4E (5) (d), injustice and caprice can be avoided, in my opinion, by understanding a person's 'home' as being the place in which he finds: 'not only the reasonable comforts of life according to .... (his) ....... position in life, but the comforts of what is known as a home.' Kekewich J: In re Estlin [1903] 72 LJ Ch 687 at 689; and by grafting on to that notion the principle, well established in the common law of real property, that ground which is used for the comfortable enjoyment of a dwelling place may be regarded as integral with the dwelling, although not marked off or enclosed: see Sinclair - Lockhart's Trustees v Central Land Board 1 P and CR 195. 4.14 Such an approach cannot possibly provide a single, all-purpose test of what will or will not fall within the reasonable concept of a particular person's 'home'. Each case must be decided having regard to 'the character and the circumstances of the item under consideration': Buckley LJ: Methuen-Campbell v Walters [1979] QB 525 at 544. 4.15 I have come to the conclusion that the 'character and circumstances' of the parking lot here under consideration are such that it was reasonably open to the learned Magistrate to find, as his Worship did, that the parking lot was integral with the residential unit, so as to entail that a-requirement that the respondent submit to a breath test at that parking lot was a requirement made in breach of s4E (5) (d) of the Act."
10. His Honour then went on to canvass the consequence of a breach of s 4E(5)(d) and pointed out that the trial court had a discretion to admit the evidence of breath analysis in accordance with the decision of the High Court of Australia in Merchant v The Queen (1971) 126 CLR 414, which discretion is now contained in s 138 of the Evidence Act 1995.
11. The next decision is R v Vatner (1992) 29 NSWLR 311, which is a joint judgment of Carruthers and Campbell JJ and Lee AJ. Commencing at 313C their Honours said: "In the early hours of 30 August 1988 the appellant was driving his motor vehicle upon a public street. Having stopped and alighted from the vehicle he was required about 1.50am by Senior Constable Hancock, a member of the New South Wales police force, to undergo a breath test in accordance with the directions of Constable Hancock. When so required the appellant said, 'I'm not blowing into it'. The appellant was then arrested and taken to Waverley Police Station. His Honour held that at the relevant time the appellant's place of abode was 2 Gaerloch Avenue, Tamarama. The aspect of the evidence which gave rise to the first question was that the evidence adduced by the prosecution was that Constable Hancock required the appellant to undergo the breath test while the latter was standing on the footpath outside his home. The appellant's evidence was, however, that he was standing inside the boundary of his home when the requirement was made. Accordingly, the appellant argued that the requirement by the police officer to undergo the breath test was unlawful because it was made at the appellant's 'usual place of abode': see s 4E(5)(d) of the Act. This conflict in the evidence gave rise to conflicting submissions by the parties. The Crown submitted that the onus was on the appellant to prove on the balance of probabilities the requirement to undergo a breath test was made at the appellant's usual place of abode, that is, that he was standing inside his boundary when the requirement was made. The appellant submitted, however, that the onus was on the Crown to prove beyond reasonable doubt that the requirement to undergo the breath test was not made at the appellant's usual place of abode, that is, that it was made on the footpath outside the boundary. His Honour said that he was not satisfied beyond reasonable doubt that the requirement to undergo the breath test was not made at the appellant's usual place of abode. Further, that he was not satisfied on the balance of probabilities that the requirement by the police officer to undergo the breath test was made at the appellant's usual place of abode. Accordingly, his Honour referred the following two questions to this Court for determination: '1. On a charge of refusing a breath test under s 4E(6) of the Traffic Act, is the onus on the prosecution to prove beyond reasonable doubt that the requirement to undergo the breath test was not made at the Defendant's usual place of abode; 2. On the charge of refusing to undergo the breath test under s 4E(6) of the Traffic Act, is the onus on the Defendant to prove on the balance of probabilities that he requirement to undergo a breath test was made at the Defendant's usual place of abode.'" At 315D their Honours said this: "It is manifestly clear that if Constable Hancock required the appellant to undergo a breath test while the appellant was standing within the boundary of his usual place of abode, such requirement was unlawful by reason of subs (5)(d) and accordingly, the appellant's refusal to undergo the test did not constitute an offence under subs (6)." On the question of the onus of proof their Honours held that the onus rested upon the prosecution to establish beyond reasonable doubt that the requirement was administered to the appellant on the footpath, and not within the boundary of his home. In other words, if evidence be given in a particular case which raises an issue whether the requirement to undergo the breath test was made at the person's usual place of abode within the meaning of subs (5)(d), then the onus rests upon the prosecution to establish beyond reasonable doubt that the requirement was not made at the accused's usual place of abode, which would render the requirement lawful.
12. In answer to the third question stated by Flannery QC DCJ their Honours held that the arrest of the appellant for refusing to submit to breath testing was unlawful. Their Honours went on to say this: "Such arrest must, in our view, be a valid arrest under subs (3). In the instant case, the prosecution failed to prove that the appellant was validly arrested by Constable Hancock, and accordingly the requirement by the constable that the appellant submit to a breath analysis was invalid." Their Honours remitted the matter to this Court with the direction that the appellant was entitled to a verdict of not guilty on the charges offered against him.
13. It is clear that the members of the Court of Criminal Appeal accepted that if Vatner had been standing on the parcel of land on which his place of abode was erected, that he would be "at his usual place of abode" or, to use the more modern expression, "at home". In the present case the applicant was not on the parcel of land on which his residential property was situated.
14. The next decision is Director of Public Prosecutions v Skewes [2002] NSWSC 1008, a decision of Sperling J. The offence by this time was constituted by the Road Transport (Safety and Traffic Management) Act 1999. Commencing at [3] his Honour said: "3 Section 17 of the Act provides that a police officer may not require a person to undergo a breath test or submit to breath analysis at that person's place of abode. 4 On 22 December 2001, the charge was heard by MI MacPherson LCM. The facts of the case were not in dispute in any material particular. The defendant resided in the rear unit of three units situated at 196 Goonoo Goonoo Road, Tamworth. The units are one behind the other. There is a driveway from the road, running along the side of the building, that is, towards the rear of the property. Incorporated in or immediately adjacent to each unit there is a vehicle parking bay. The driveway provides access to each of the parking bays. 5 On 22 December 2001, the defendant was driving his vehicle in Goonoo Goonoo Road, approaching his residence. Constable Preston signalled the defendant to stop by flashing the lights and sounding the siren of his police vehicle. The defendant turned into the driveway of the units to which I have referred and stopped his vehicle in the driveway. Constable Preston approached on foot and directed the defendant to submit to a breath test. At that time, the two men were standing on the driveway a short distance within the front fence alignment of the property. The breath test was indicative of alcohol in excess of the prescribed limit. The steps then prescribed by the legislation led to the certificate pursuant to s33 of the Act."
15. His Honour then referred to Vatner and Clampett and then said this about Clampett: "12 I apprehend that by "the common law concept of the delineation of the curtilage" his Honour meant to refer to an enclosed space in which a building may be situated. One can understand why his Honour would have baulked at applying that concept universally in the subject case. Assuming that the hospital premises were enclosed and that Ferguson Lodge was not, the court would have been slow to countenance a universal test which would have resulted in the respondent's place of abode within the meaning of the legislation taking in the whole of the hospital grounds."
16. His Honour then canvassed the decision in Haberhauer v Simek and at [20] said this: "I take the Court to have been saying in Vatner that in the case of an ordinary residential property, anything inside the boundary of the property is part of the occupant's place of abode."
17. Earlier, his Honour had contrasted the facts before him with the facts in Haberhauer v Simek and his Honour said this: "16 The facts of Haberhauer and those of the present case are not markedly different. In Haberhauer the respondent had an exclusive right, with her co-lessee, to the use of the car space. In the present case, the respondent had an exclusive right, with the other residents, to the use of the driveway for access to the parking bays. I apprehend that, on Sully J's test, the driveway was used for the comfortable enjoyment by the respondent of his unit as his home, and was, accordingly, part of the respondent's place of abode. A dedicated car space and a driveway giving necessary access to such a car space would not seem to be distinguishable in that respect." His Honour went on to say this: "21 The Crown argued before me that the property in Vatner might have been a single occupancy property. It is then argued that what was said in Vatner cannot automatically be applied to multiple occupancy properties. I have to say that, for my part, I cannot see the distinction in point of policy. Why would the legislature discriminate between a person being required to undergo a breath test in the front yard of a single occupancy house property in which the person lived and a person being required to undergo such a test in the front yard of a home unit building in which the person lived? The distinction is one without a difference. It cannot have been a distinction intended by the legislature."
18. In that case the matter was returned to the Local Court with a direction that the appellant was entitled to a verdict of not guilty on each of the charges which had been preferred against him. It is noteworthy that there was no evidence in DPP v Skewes as to whether the three units there in question were part of a strata plan or were all erected on one parcel of land under the Real Property Act 1900.
19. The final decision to which I have been referred is that of Buddin J in Director of Public Prosecutions (NSW) v Linnett [2006] NSWSC 1086; (2006) 68 NSWLR 85. The defendant in that case had been served with a court attendance notice which alleged that he committed an offence of driving with a high range prescribed concentration of alcohol on 13 December 2005 when he drove his vehicle on a road which was within the Pacific Palms Caravan Park at Elizabeth Beach, for which he appeared before the Local Court at Forster. At [15] his Honour recorded that the relevant legislation at the time prevented the police officer requiring a person to undergo a breath test "at the person's place of abode" pursuant to s 17(b) of the Road Transport (Safety and Traffic Management) Act 1999.
20. The relevant facts are stated in [20] of the judgment: "20 The parties have reached agreement as to the findings of fact which were made by the Magistrate. Before proceeding further it is necessary to set out those findings which are in the following terms: 'On 13 December 2005 the defendant was holidaying with his wife and child at the Pacific Palms Caravan park. The defendant had a permanent on-site van at that location. The defendant had an exclusive right to occupy and enjoy a particular van site within the caravan park and the right to enjoy amenities with the park not available at the caravan site. As at 13 December 2005 the defendant was a resident at that park. At approximately 1.15 pm the defendant was observed by police to drive his motor vehicle along a road within the caravan park. That road gave the defendant access to his van site. The defendant was intercepted by the police while driving on that road at a distance of approximately 80 metres from the area of his van site. The officer smelt alcohol on his breath. The defendant was required to undergo a breath test while on a road within the caravan park. The defendant was removed from the caravan park and underwent a breath analysis. The caravan park contained 132 permanent on-site vans. In addition, there were 13 cabins and 5 van sites, which were available for letting to the general public. The caravan park had no boom gates and was open to and used by the public to a limited extent. The road on which the breath test was conducted was a road used by the general public, in that those members of the general public interested in renting a site or cabin, had access to the roadways within the caravan park.'"
21. At [28] his Honour commenced to discuss the scope of the phrase "at that person's place of abode". He then considered DPP v Skewes at some length, and then continued thus: "33 The plaintiff contended that the Magistrate erred in so characterising the issue which fell to be decided. The real question to which the Magistrate was required to turn his mind was whether or not the defendant had been required to undergo the breath test "at [his] place of abode". Rather it seems that the Magistrate considered that he had to determine if there was a category of road which entitled the defendant to refuse to take part in a breath test. Accordingly, I am of the view that error has been established. 34 The plaintiff then submitted that the Magistrate had also fallen into error because the facts which he found were necessarily outside of the phrase "at that person's place of abode". The facts as found established that, even if the distance could not be determined with total precision, the breath test was administered on a road or roadway approximately 80 metres from the area of the defendant's van site. Although the area of the roadway where the breath test was administered was within the caravan park, the Magistrate specifically found that it was an area used by members of the general public as well as by occupants of the caravan park. The evidence did not suggest that the defendant had the exclusive right to the use of the road or roadway or conversely that he had any capacity to restrict access by members of the public to it or more specifically to that part of the roadway where the breath test was administered. Indeed the evidence is to the contrary. As the authorities reviewed by Sperling J make plain, a person's exclusive right of access to the area where the test is administered is a critical consideration. The statutory scheme is, after all, clearly designed to control the conduct of drivers upon roads which are available for use by members of the public. I accept the plaintiff's submission that the facts found by the Magistrate necessarily take the matter outside the scope of the statutory phrase contained in s 17(d) of the Act. That state of affairs, according to the principles referred to earlier, is sufficient to constitute error. Accordingly I reject the submission made on behalf of the defendant that the question determined by the Magistrate was one of fact. 35 The defendant submitted that the Magistrate was correct in placing the emphasis which he did upon the decision in Skewes. It may be accepted, for the purposes of that decision, that Sperling J saw no reason to distinguish between the front yard of a single occupancy house and the front yard of a home unit or "multiple-occupancy" property. But Sperling J was speaking of "multi-occupancy" in the sense of a block of high-rise units. His Honour was not, and could not be taken, as meaning the expression "multi-occupancy" to extend beyond the facts that existed in that case to the present situation. The Magistrate clearly erred in picking up that expression and transposing it to the very different facts of the present case. Accordingly, even though the various occupants of the caravan park may have shared the facilities of the park (wherever they were located), they did not in any sense all occupy or reside in the same physical space or area. Nor was there any building or structure which provided any physical connection between the various occupants of the caravan park. In the cases to which the Magistrate referred there was a continuous physical connection, or as Street CJ described it in R v Clampett (1984) 11 A Crim R 103, a "physical contiguity", between the carpark and the residence of the person in question. In Skewes, for example, the test took place on the driveway within the front fence alignment of the premises. The contrast between such a case and the circumstances which prevailed in the present case is telling. The Magistrate's reliance on Skewes was accordingly misplaced. 36 Nor was there any physical, or indeed geographical, connection between the defendant's caravan site (adjacent to which no doubt his car space was located) and the place at which the breath test was undertaken such as to compel the conclusion that the test was administered "at [his] place of abode". The fact that the defendant used the road upon which it was administered as an access route to and from his site cannot be determinative of that fundamental issue. 37 The defendant was driven to the contention that the expression "at [his] place of abode" meant the whole of the caravan park. That submission needs only to be stated in order for it to be rejected. In Skewes, as I have said, Sperling J reviewed the various authorities. It included an examination of the decision of the Court of Criminal Appeal in Clampett (supra). His Honour's analysis bears repetition in the present context: I apprehend that by "the common law concept of the delineation of the curtilage" his Honour meant to refer to an enclosed space in which a building may be situated. One can understand why his Honour would have baulked at applying that concept universally in the subject case. Assuming that the hospital premises were enclosed and that Ferguson Lodge was not, the court would have been slow to countenance a universal test which would have resulted in the respondent's place of abode within the meaning of the legislation taking in the whole of the hospital grounds. 38 In Hall v Coughlan (1970) 91 WN (NSW) 886, Meares J held that a person who had driven a vehicle onto the footpath adjacent to, but outside the front fence of, his home could not be regarded as being "at [his] usual place of abode" within the meaning of the legislative provision which was then in existence. His Honour observed that "it would be surprising if a footpath defined in the Act as a public street could be construed as a person's usual place of abode" (at 889). Similarly it would be surprising if that part of the road upon which the defendant was travelling when intercepted by police could be regarded as being "at [his] place of abode". See also the definitions of "road" and "road related area" in the current legislation. Moreover Meares J drew a distinction between the expression "at", which denoted a degree of exactitude as to the location in question, and the phrase "at or near" which did not. That line of reasoning was adopted by Sully J in Haberhauer v Simek (1991) 9 Petty Sessions Review 4235. In my view the Magistrate should also have borne that distinction in mind in reaching his decision. 39 In construing the scope of the phrase "at that person's place of abode", it is appropriate to also have regard to the legislative intention. The mischief which the legislation is intended to address scarcely requires elucidation. In Clampett (supra), Street CJ observed, of an earlier form of the current legislation, that: "[it] contains a statutory scheme central to which is the exposure to punishment of persons who are found on breath analysis to have a concentration of alcohol in their blood of not less than [the prescribed quantity]". (at 104) 40 The relevant Minister when introducing the relevant amendments to the Traffic Act which contained the prohibition upon breath testing "at that person's place of abode", said that: [w]e have provided also that a driver shall not be requested to undergo a breath test, or submit to a breath analysis by Breathalyzer, while at his usual place of abode. This means we will not have the situation of a policeman knocking on a person's door at any old hour, and requiring him to take a breath test, or submit to a Breathylzer analysis. (Legislative Assembly Hansard 4 December 1968 at 3416). 41 This material lends support to the plaintiff's contention that the circumstances in which the breath test in the present case was administered could not properly be regarded as having taken place "at the [defendant's] place of abode" and nor could they have been contemplated as such by the legislature when it introduced the provision."
22. One will note in [34] his Honour's adoption of the consideration raised by Sperling J in DPP v Skewes of a person's exclusive right of access to an area where the test is administered to be a critical consideration.
23. Finally, his Honour pointed out that the admissibility of the certificate that was obtained under s 33 of the Road Transport (Safety and Traffic Management) Act 1999 was a question which could have be considered under Merchant v The Queen, as Sully J had pointed out in Haberhauer v Simek.
24. In the present case, it appears to me that the "carpark" in question which was partly on strata plan 5194 and partly on strata plan 1916, that is, on parts of the land owned by the proprietors of 2B and 2A Victoria Road, Bellevue Hill, was in essence a carpark for those residing in those two residential buildings. True it is that others might gain access to this carpark. One can easily postulate that the deliverers of milk, bread and groceries, the providers of services such as telephone companies, power authorities and water authorities, could gain access to the two buildings through this carpark, and that visitors might use the carpark. Clearly the carpark was being used by a visitor at the time of the matter now in question, because the driver of the small red car who obstructed the plaintiff's driving into his garage was admitted by him to have been a visitor. However, the deliverers of goods, the providers of services, tradesmen and the like, can often use the driveways of ordinary residential houses, that is, houses erected on freehold property, and they have an implied licence to do so from the owner of the land. I would not categorise the carpark here as a public carpark.
25. The defendant drew my attention to the decision of the Court of Appeal in Pringle v Everingham [2006] NSWCA 195. The Court of Appeal was constituted by Mason P, Santow JA and Hunt AJA. The relevant facts of that case can be gleaned from the headnote. It is this: "The plaintiff, a hotel licensee, saw three police officers breath testing the driver of a vehicle parked in the hotel car park. He accused the police officers of harassing him, and he ordered them to leave the car park. The plaintiff sued the three police officers for trespass, assault and false imprisonment. One of the police officers died before trial and the proceedings against him were discontinued. The State of New South Wales was also sued for its vicarious liability for the torts the police officers were alleged to have committed. The trial judge found that, at the time he challenged the police officers, the plaintiff was intoxicated and that he had expressed his annoyance at the situation by yelling abusive language at them and by waving his arms. One of his arms had accidentally come into contact with the hand of the officer holding the alcometer. The judge held that the police officers had honestly believed that the plaintiff had assaulted the police officer, and that they had reasonable cause to suspect that he was hindering them in the execution of their duty [and] to arrest him for assault. The judge found that the plaintiff adopted a fighting stance and was moving towards the police in an aggressive manner, challenging the police to take their guns off and to fight him. One of the police officers sprayed the plaintiff with a capsicum (mace) spray. The judge found that the officer was entitled to do so in self-defence. The plaintiff put his hands to his face covering his eyes and started to move towards the second officer, who also sprayed the plaintiff. The judge held that he was not justified in doing so in self-defence and upheld the plaintiff's claim for assault. The plaintiff then took hold of a stick 50-100 cms long and approached the first officer, who sprayed him again. The judge held that he was entitled to do so in self-defence. The judge dismissed the plaintiff's claim for trespass on the basis that the police officers were entitled to remain in the car park, notwithstanding the withdrawal of their implied licence to enter that area, until the breath test had been completed in accordance with the Road Transport (Safety and Traffic Management) Act 1999. No such defence of justification had been pleaded. The two remaining assault claims were dismissed on the basis that in each case the police officer had acted in self-defence. No such defence had been pleaded. The false imprisonment claim was dismissed on the basis that the police officer had been entitled to arrest the plaintiff for assault. No such defence of justification had been pleaded. During the trial, the judge dismissed the plaintiff's complaint that the special defences had not been pleaded, holding that the plaintiff could not possibly have been surprised that they would be raised. The defendants declined to amend their Grounds of Defences to include those special defences." The case in essence concerns whether the defences needed to be pleaded.
26. Commencing at [73] Hunt AJA, with whom Mason P and Santow JA concurred, said this: "73 Turning now to the Road Transport (Safety and Traffic Management) Act, s 13(1) gives power to a police officer to require the driver of a motor vehicle on "a road or road related area" to undergo a breath test if that officer has reasonable cause to believe that a person was such a driver. This permits random breath testing. A breath test is defined by the Dictionary in Sched 2 of the Act as a test for the purpose of indicating the concentration of alcohol present in the driver's blood. Section 14 permits the police officer to arrest the driver without warrant where the breath test indicates a blood alcohol content of not less than 0.05 g in 100 ml of the driver's blood (I leave out of account provisional and special category drivers). Section 15 then permits the officer to require the driver to submit to a breath analysis, usually performed in a police station, which ascertains the precise level. 74 Two definitions in the Dictionary to the Act are relevant here. A road means, effectively, an area that is open to or used by the public for the driving of motor vehicles. The definition of a road related area needs to be quoted in full: road related area means: (a) an area that divides a road, or (b) the footpath or nature strip adjacent to a road, or (c) an area that is open to the public and is designated for use by cyclists or animals, or (d) an area that is not a road and that is open to or used by the public for driving, riding or parking vehicles, or (e) a shoulder of a road, or (f) any other area that is open to or used by the public and that has been declared under section 15 of the Road Transport (General) Act 2005 to be an area to which specified provisions of this Act or the regulations apply. Paragraph (f) has no application in this case. It is accepted by all parties that the only paragraph which could be relevant to the present case is par (d), which must nevertheless be seen in the context of the whole definition. 75 The plaintiff has submitted that this paragraph of the definition is insufficient to permit entry on private property, as such a right must be expressly authorised by the statute. The High Court has held that, at common law, a police officer is not authorised, without the consent of the person in possession or entitled to possession of the property and without any implied leave or licence, to go on private property in order to serve a summons, and that, if he does go on to the land to do so, he is liable in trespass: Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635 at 644-645, 653-654. A statutory authority to engage in what would otherwise be tortious conduct must be clearly expressed in unmistakable and unambiguous language: Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 435-436. See also TCN Channel Nine Pty Ltd v Anning at [24]-[28]. There is a presumption that, in the absence of any express provision to the contrary, the legislature did not intend to authorise such conduct, but that presumption is rebuttable and will be displaced if there is a clear implication that authority to enter or remain on private property was intended - for example, where such tortious conduct is a necessary implication in order to prevent the statutory provision from becoming inoperative or meaningless, bearing in mind nevertheless that mere inconvenience in carrying out an object authorised by statute is not a ground for eroding fundamental rights: Coco v The Queen at 635-636. 76 Although each of the other paragraphs in the definition of a road related area refers to public land, par (d) necessarily contemplates a person being required to undergo a breath test on private property. An area that is not a road and that is open to or used by the public for parking vehicles would include, for example, large shopping complex car parks, where the risk of injury caused by drivers with a blood alcohol content higher than permitted is obvious. The statute expressly provides (by s 17(d)) that a person may not be required to undergo a breath test at that person's place of abode. Such an express restriction would not have been necessary if the legislature had not intended to authorise entry on to private property for the purpose of administering a breath test. Section 17(d) of the Act also provides that a person may not be required to undergo a breath test after the expiration of two hours from driving the vehicle. That restriction sufficiently demonstrates why the common law presumption upheld by the High Court was intended to be displaced in this statute. To interpret the statute otherwise would permit a driver whose blood alcohol percentage is higher than permitted to drive his vehicle around a shopping complex car park during that period of two hours, which clearly would render inoperative one of the purposes of the statute, which is to improve safety on roads and road related areas (s 3(c)). The rebuttable presumption that the statute does not authorise trespass is necessarily displaced. 77 In the present case, of course, the issue is not whether the police officers were entitled to enter the car park in order to perform a breath test. Pursuant to the implied licence to enter, they were already in the process of requiring the driver of the vehicle they had seen drive into the hotel car park to undergo a breath test before the plaintiff ordered them to leave. The issue is therefore whether they were entitled to remain in the car park in order to complete that process notwithstanding the withdrawal of the implied licence to enter." (Emphasis in original.) At [81] his Honour said this: "81 In my opinion, based on the findings of fact the judge made, the only conclusion open to him as a matter of law was that, notwithstanding the plaintiff's order to leave, the three police officer defendants remained lawfully in the car park whilst completing the breath test of the driver of the vehicle they had seen drive in: Halliday v Nevill at 6. They were not trespassers as alleged by the plaintiff, and the plaintiff's claim in trespass was correctly dismissed. It follows that the argument put by the plaintiff that, because the police officers were trespassers, he would necessarily be entitled to succeed in relation to his claims for assault and false imprisonment (see par [69] supra) is rejected, and the cross-appeal must be dismissed."
27. The carpark of a hotel is by inference open to any member of the public who wishes to visit or transact business at the hotel. A hotel is only a modern expression for a "public house". One could not describe the carpark of a hotel as a carpark of someone's "home". The carpark in which Mr Rook submitted to breath testing by Constable Irwin could properly be said to be ground which was used for the comfortable enjoyment of the place in which he usually lived or dwelt and, therefore, can be regarded as integral with the block of home units in which his unit was contained, although it was not marked off or enclosed as such, that is, the plaintiff's carpark falls within the description provided in [14.13] of the judgment of Sully J in Haberhauer v Simek. It was not open to all and sundry who might want to seek rest and refreshment in a public house.
28. An important point to bear in mind is that the word "home" in the statute that I am now interpreting and the statute that replaced the one I am now interpreting must be capable of being understood by not only members of the New South Wales Police but also by motorists. I believe that any police constable and any motorist can easily distinguish between a public carpark such as one finds appurtenant to a hotel or appurtenant to a shopping centre or shopping complex or shopping mall or sporting venue, sports field or sports arena with a small carpark used by the residents of residential buildings. Furthermore, a police constable and a motorist do not need to consider who owns the land upon which the carpark is situated or the nature of the ownership of the land or the nature of the motorist's entitlement to be on the land.
29. Suffice it to say that in my view, provided that it is clear that the land is private land upon which the motorist is lawfully entitled to be and that such land is appurtenant to the building in which the motorist resides, that it is part of the motorist's "home". Here the carpark was appurtenant to the three-storey brick building containing 12 residential units and three garages. It was private land and the plaintiff had a right to be there. He was exercising a lawful right of carriageway. This was not some private carpark to which the plaintiff did not have lawful access. He did not live, for example, elsewhere in Bellevue Hill, Woollahra or Point Piper and merely turn into the nearest private driveway in order to avoid being required to submit to random breath testing. He could be validly seen to be "at home". There remains the consideration of the plaintiff's exclusive right of access to the land in question. He was a tenant of the proprietor of a strata unit, the tenant of one of a group of proprietors, the owners of the strata plan, who had the right to exclude from the right of carriageway, an easement, any person who might obstruct it, a right to exclude members of the general public. As a tenant, he was in the same place as the proprietor of the strata unit. He had a right to exclude from the easement anyone who might obstruct it. This test is satisfied in the present matter. In my view, the learned magistrate was right in holding that the prosecutor in the Local Court, Constable Irwin, had not discharged the onus that lay upon him in that Court of proving beyond reasonable doubt that the roadside breath test was not administered at the plaintiff's home. Equally, I am persuaded on the balance of probabilities that the random breath test was administered to the plaintiff at the plaintiff's home, bearing in mind the proper interpretation of the Road Transport (Safety and Traffic Management) Act 1999. The reasons given by the learned magistrate in the Local Court were scant, indeed exiguous, but in my view the decision which she made was correct. In any event, I am not sitting exercising my jurisdiction under the Crimes (Appeal and Review) Act 2001 s 23, but I am exercising the ordinary civil jurisdiction of this Court.

Was the imprisonment lawful?

1. The defendant is required to justify the imprisonment of the plaintiff, and insofar as the defendant relies upon the power of arrest contained in s 14(1)(b) of the Road Transport (Safety and Traffic Management) Act 1999 has failed to justify the arrest of the plaintiff. Perhaps in making that finding I have jumped ahead in the recitation of the facts, but this is a convenient time at which to decide that issue. Whilst I am dealing with the question of the justification of the plaintiff's arrest, I should also deal with the alternative basis put forward by the defendant and specifically pleaded, an arrest pursuant to s 99(2) LEPRA.
2. Section 99(2) of LEPRA, as then in force, provided this: "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." However, that power is subject to subs (3) which was in the following terms: "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 in respect of the offence, (f) to preserve the safety or welfare of the person." The defence seeks to justify the arrest under subs (3)(b), (c) and (f), pleading that the arrest was justified in that it prevented the plaintiff continuing to drive his motor vehicle whilst he was intoxicated and/or driving with a mid-range PCA, that it was necessary to prevent the concealment, loss or destruction of evidence by obtaining a reliable breath sample, the possibility of course being that the plaintiff might seek, if not arrested, to alter his blood alcohol content by, for example, consuming a number of glasses of whisky which he could use to justify any excessive blood alcohol finding, and pursuant to subs (3)(f), to prevent the plaintiff harming himself and others by continuing to drive whilst intoxicated.
3. However, insofar as the last paragraph of subs (3) is concerned, the police have specific powers to prevent intoxicated drivers from driving pursuant to s 189 of the same Act. For example, under s 189(1)(b), the police can require a motorist to hand over all ignition or other keys of a motor vehicle in the person's actual possession, and under s 189(1)(c), can take other steps to immobilise a motorist's vehicle.
4. However, this was not an arrest under LEPRA. The only power invoked by Constable Irwin, and in this regard he is corroborated by Probationary Constable Trifunovic, was an arrest in order to undergo breath analysis, the plaintiff having failed the "roadside" breath test. Furthermore, there are requirements for a valid arrest under LEPRA. Section 201(1) of LEPRA provides this: "A police officer must provide the person subject to the exercise of a power referred to in subsection (3) with the following: (a) evidence that the police officer is a police officer (unless the police officer is in uniform), (b) the name of the police officer and his or her place of duty, (c) the reason for the exercise of the power." One of the powers referred to in subs (3) of s 201 is a power to search or arrest a person.
5. The requirement to provide the reason for the arrest of a person is in fact a requirement of the common law. In New South Wales v Riley [2003] NSWCA 201, Hodgson JA said this: "76 The common law rule is that it is a condition of lawful arrest that, with some exceptions, a person arrested is entitled to be told why he or she is being arrested: Christie v. Leachinsky [1947] UKHL 2; [1947] AC 573. In that case, Viscount Simon stated the following five propositions: 'If a policeman arrests without warrant upon reasonable suspicion of felony, or of other crime of a sort which does not require a warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the reason to himself or to give a reason which is not the true reason. In other words a citizen is entitled to know on what charge or on suspicion of what crime he is seized. (2.) If the citizen is not so informed but is nevertheless seized, the policeman, apart from certain exceptions, is liable for false imprisonment. (3.) The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained. (4.) The requirement that he should be so informed does not mean that technical or precise language need be used. The matter is a matter of substance, and turns on the elementary proposition that in this country a person is, prima facie, entitled to his freedom and is only required to submit to restraints on his freedom if he knows in substance the reason why it is claimed that this restraint should be imposed. (5.) The person arrested cannot complain that he has supplied with the above information as and when he should be if he himself produces the situation which makes it practically impossible to inform him, e.g., by immediate counter-attack or by running away.' 77 He continued: 'There may well be other exceptions to the general rule in addition to those I have indicated, and the above propositions are not intended to constitute a formal or complete code, but to indicate the general principles of our law on a very important matter.' 78 Lord Simonds at 591 said this: 'Putting these things first, I would say that it is the right of every citizen to be free from arrest unless there is in some other citizen, whether a constable or not, the right to arrest him. And I would say next that it is the corollary of the right of every citizen to be thus free from arrest that he should be entitled to resist arrest unless that arrest is lawful. How can these rights be reconciled with the proposition that he may be arrested without knowing why he is arrested?' 79 He set out some exceptions at 593, as follows: 'Again, I think it is clear that there is no need for the constable to explain the reason of arrest, if the arrested man is caught red-handed and the crime is patent to high Heaven. Nor, obviously, is explanation a necessary prelude to arrest where it is important to secure a possibly violent criminal. Nor again, can it be wrongful to arrest and detain a man upon a charge, of which he is reasonably suspected, with a view to further investigation of a second charge upon which information is incomplete.' 80 These passages were relied on by the New South Wales Court of Appeal in Adams v. Kennedy [2000] NSWCA 152; (2000) 49 NSWLR 78, and the Court of Appeal also noted that the Court's attention was not drawn to any statutory alteration of these principles. In my opinion, it is clear that the sections I have quoted are not such as to displace such well-established principles of common law. Furthermore, the United Kingdom case of Pedro v. Diss (1980) 72 Crim App R 193 held that the common law principles did apply to detention under a statutory provision similar to s.352 as they did to arrest at common law." Sheller JA canvassed the same principles between [19] and [24]. Nicholas J agreed with both Sheller and Hodgson JJA. The same reasoning process has been restated in State of New South Wales v Delly [2007] NSWCA 303 by Ipp JA between [3] and [18] and by Tobias JA between [46] and [53] and then between [58] to [74]. In the same case, Basten JA dealt with the issue more pithily between [3] and [13]. This was not and could never have been an arrest under LEPRA. The only reason given to the plaintiff by Constable Irwin for his arrest was to undergo breath analysis.

The circumstances of the arrest

1. The plaintiff's evidence-in-chief then continued thus: "Q. So what did you [do] after you stopped the car? A. I turned the engine off, the lights of the car were still on. I opened the car door and I got out and, and walked towards the police car to ask why - ask what they wanted. Q. Where had the police car stopped? A. About 2 or 3 metres behind my car. The lights were on and they, effectively, parked behind me, parked behind me. Q. Where did you move to and stand? A. Well, I got out of the car and walked, walked towards them so I was standing between my car - the rear of my car and their police van. Q. Did you have a discussion with somebody? A. Yes. They both quickly, they both quickly got out. The taller one, who I now know as Trifunovic, he moved towards John and the shorter police officer I now know as Irwin, he moved, he moved towards me to talk with me. Q. Where was John? A. John was just getting out of the other side of the car, out of the right hand side of the car. He was standing and he, he, he got out, he was standing there on the side of the car watching. Q. What was said as best you recollect it? A. I said to [the] officer, who I now know, Officer Irwin, I said, 'What, what do you want? It was just at the police station, what do you want?' Q. What did he say? A. He used my name. He said, 'David, you need to submit to a breath test.' And I said, 'Well, hang on, I've just got to park my car, I was putting it in the garage.' Q. What did he say? A. He, he, he said, 'No. You must immediately submit to a random breath test,' and he started to pull out this device and got it ready, like, he, he did it quite fast and got it ready for me to give a sample. Q. Was a right hand turn mentioned? A. No. He, he, he never - I never knew about the right hand turn until it came to court… Q. Was anyone else talking when Officer Irwin was getting out his device? Was anything else going on? A. No. John, at that stage, was still just watching. Q. What happened next? A. So I, I, I blew - I did what he asked and I blew into this device and Officer Irwin said, 'You're over, you're under arrest.' To me - that's what he said to me. Q. Did he say anything else about your arrest? A. Then he said, 'Mate, you need to give, you need to give me your keys, everything, you need to empty your pockets.' So I proceeded to take my belt off because he asked me to take all of my possessions off me. Then I started to give him all my things, like, I had a phone, I had a wallet, keys, stuff like that."
2. I know from Probationary Constable Trifunovic's note book, which became exhibit 25, that the roadside breath test returned a reading of 0.185. Constable Irwin told me that he formed the view, that when the plaintiff failed to pull over and stop in answer to his engaging the flashing blue and red police lights and the siren and his flashing of the high beam of RB15, the plaintiff may have been seeking to avoid a roadside breath test, which is a common occurrence when motorists are driving after drinking. I found that explanation plausible. Most motorists, when they see in their rear vision mirrors or otherwise perceive that they are being followed by a police car with flashing lights and sirens, immediately pull over in the pious expectation that perhaps the police want merely to pass and are not pulling the motorist over for some road offence. Furthermore, Constable Irwin gave evidence that when the plaintiff got out of his vehicle, out of the left-hand driver's seat, that he stumbled which could be consistent with being under the influence of alcohol and Constable Irwin also said that the plaintiff "immediately became aggressive" which is perhaps consistent with the plaintiff's demanding of Constable Irwin what it was that he wished to do.
3. Constable Irwin also said that the first thing he said to the plaintiff was to ask him why he had conducted an illegal right-hand turn at the police station in Wunulla Road. When asked to respond what the plaintiff said about that, Constable Irwin said that the plaintiff "started getting aggressive and angry again." He went on to tell me that he and Constable Trifunovic and the plaintiff came into close proximity with each other. There was no more than a metre or two metres "give or take" between the three of them. Constable Irwin then went on to tell me that in answer to his request about why he made the illegal right-hand turn the plaintiff protested, "No, no, you can't do this to me." Constable Irwin then told me that he then asked the plaintiff whether he had been drinking that evening to which the plaintiff gave the simple affirmative as the answer. Constable Irwin then told me that he informed Mr Rook that he was required to submit to a random roadside breath test. Constable Irwin readily conceded that the plaintiff did so and that when the test had been conducted he placed the plaintiff under arrest for the purpose of taking him to a police station for breath analysis. He told me he said these words: "You're under arrest for the purpose of a breath analysis. You have to come with me to Waverley Police Station where the test will be conducted." In his evidence-in-chief Constable Irwin could not recall how the plaintiff replied to that statement. At that stage Constable Irwin told me that Mr Tanner became extremely aggressive towards himself, Constable Irwin.

Assault and battery

1. There was then some heated exchange between police, and I use that generic word advisedly, and Mr Tanner. It is abundantly clear from all the evidence that, having been told he was under arrest, the plaintiff submitted to police requests and directions and did not seek in any way to hinder or obstruct the police in the execution of their duty as they saw it. They guided the plaintiff to the rear of RB15 and placed the plaintiff in the caged area of that vehicle. I use the active voice advisedly because it is clear that the plaintiff did not, of his own volition, enter the rear of the caged truck. Indeed, the plaintiff gave this evidence: "So, so Irwin moved pretty fast, he got all of my things, my wallet, my keys, all that stuff. And then, and then he bundled me into the police van. It's quite hard to get in, it's like a little cage thing so I'm, sort of, getting in the thing and he gave me quite a solid push and, and then I was pushed into the back of this police van. And then he shut - then he locked the door on me." Mr Tanner gave this evidence as to these events: "A. As they were taking David away or, you know, proceeding to arrest him, the words, finally, they were a bit more, I guess, angry towards me because I wouldn't stop.. Q. Who spoke those words? A. Irwin told me, 'Fuck off, fag,' and Trifunovic then said, 'Yeah, piss off, fag,' as they were putting David into the car. I was pretty upset. Q. Were those words spoken in Mr Rook's earshot? A. Yeah. Q. How far away was he from the police officers when they were.. A. They were putting him into the car so he was right next to them. Q. They were touching him when they said it? A. Mm hmm. Q. You have to use a word. A. Yes." Mr Tanner then went on to tell me of his response to the insult that he perceived had been thrown at him.
2. I have quoted what he said there as evidence of some corroboration by Mr Tanner of the assertion that the plaintiff was physically manhandled when he was placed in the rear of RB15. Such touching of the plaintiff without lawful excuse amounts to assault. I have canvassed that evidence because it is the only evidence of anything that might amount to assault and battery upon the plaintiff in the early hours of Sunday 5 June 2011. However, that gives rise to another issue which I am required to canvass in this case, the question of "gay slurs", but I shall do so tomorrow.

Insulting language?

1. As I indicated immediately prior to the adjournment yesterday, I turn now to the question of "gay slurs". In the passage of evidence which I last cited I referred to the allegation made by Mr Tanner that Constable Irwin told him to "Fuck off, fag" and that Probationary Constable Trifunovic said, "Yeah, piss off, fag". The slur is the use of the word "fag", an abbreviation of the word "faggot". The etymology of that word is from the French "fagot" which itself comes from the Italian "fagotto", a diminutive of a Proto-Romance back formation of the Greek word "phakelos", meaning a bundle. In essence, a faggot is a bundle of sticks. The primary definition given in the 5th Edition of the Shorter Oxford Dictionary is this: "A bundle of sticks or twigs tied together as fuel; historically, specifically one used in burning heretics alive. Hence, the punishment of being burnt alive for heresy." Its secondary meaning is a military meaning, and the explanation of that military meaning in the dictionary is a "fascine". That word is from the Latin "fascina" which is a diminutive of "fascis" which was a bundle of sticks or a faggot, but had a specific meaning in Roman law of a bundle of sticks encasing an axe carried as a symbol of authority in front of a Roman magistrate by a lictor. That symbol of authority was adopted by Benito Mussolini to indicate his political movement which derived from the Latin "fascis", the terms fascism and fascist. The eighth meaning ascribed by the 5th Edition of the Shorter Oxford English Dictionary is a male homosexual, especially of an effeminate type, this being slang and derogatory. The dictionary tells me what I always knew, that the origin of the word was from the United States of America. No doubt a faggot is something that is burned with a heretic and therefore a faggot is to be burned, hence the derogatory nature of the word when applied to a male homosexual.
2. In the current matter, both the plaintiff and Mr Tanner assigned the use of the word not only to Constable Irwin and to Probationary Constable Trifunovic, but also Mr Tanner assigned the use of the word to Probationary Constable Christopher Homard and Constable Luke Livington, when Mr Tanner returned to the Rose Bay Police Station whilst the plaintiff was in custody at the Waverley Police Station. I was initially concerned that it seemed odd to me that each of those four members of the New South Wales Police should use the same derogatory word, which was an Americanism. There is an autochthonous derogatory term for a male homosexual which can be found in the third column on p 493 of the Australian National Dictionary (Oxford University Press, 1988). That autochthonous word has been evident in print since 1903. It appeared to me odd that none of the four police officers was alleged to have used the native word. However, the insidious and pervasive influence of American usage now affects Australian English. It is largely a generational thing.
3. I know from exhibit 26 that Probationary Constable Trifunovic was 27 when he made a statement on 13 October 2011. The tender of Constable Irwin's statement was objected to and rejected. The tender was sought by the defendant, the objection was taken by the plaintiff. That would contain his age at the time he made his statement, 17 October 2011, but it is not before me. Having seen both Probationary Constable Trifunovic and Constable Irwin in the witness box, I believe them to be of much the same age. Certainly I would not assign to Constable Irwin any age greater than 30. It appears to me likely that people of that age are more likely to use the American idiom than the native Australian idiom. Equally, I do not know the ages of either Probationary Constable Christopher Homard or Constable Luke Livington. I have seen film showing Constable Homard, but his face cannot be easily seen. Considering his rank, it appears to me likely that he would also be in his twenties. I have not seen or heard anything from Constable Luke Livington. That is because his evidence would be completely irrelevant to the issues in the current proceedings. However, I do know that Constable Irwin was attested as a Probationary Constable of Police on 28 August 2009. He would have become a constable of police on 26 August 2010, and by the time that he gave evidence on 22 May 2015 he was a senior constable. In other words, one might become a senior constable after about five years in the New South Wales Police. One therefore could postulate that it is unlikely that Constable Luke Livington was any older than about 35 years, again, a person whose use of English would be highly influenced by American usage. I therefore can draw no adverse inference from the fact that each of the four members of the New South Wales Police used the same derogatory word, "fag" or "faggot".
4. The real question is did either Constable Irwin or Probationary Constable Trifunovic use those words in the car park adjacent to 2B Victoria Road, Bellevue Hill, in the early hours of Sunday, 5 June 2011? It is perhaps convenient to follow a paper trail first. At 4.46pm on Sunday, 5 June 2011, a complaint was made on line on a NSW Police Force site on behalf of Mr Tanner. It appears to have been a joint effort of both the plaintiff and Mr Tanner. The complaint was lodged about "Officers Homad, Christenson & Irwin (who made original gay slur comment)". It is accepted by all that "Homad" was a mis-spelling of the surname of Probationary Constable Homard and that "Christenson" is a reference to Constable Luke Livington. Next to the question, "Place of Incident" is this: "In Rose Bay LAC Police Station and then outside Rose Bay Police Station". Next to the question, "Details of Incident(s)" is this matter: "Irwin made gay slur comment to me. Homad refused to take statement about gay slur[.] Christenson & Homad grabbed me & dragged me 60 ft twisting my arms & threw me to ground causing cuts & abrasions (have pics). Christenson repeatedly shouted 'Fuck off' and they dragged me 3 times each time abusing me."
5. One will note that it was only alleged that one of Irwin and Trifunovic made the "original gay slur comment". In the document which became exhibit E, a photocopy of the electronically lodged complaint, the name Irwin appears to have been crossed out and written above it and to the right of it is the name "Trifunovic". When one looks at exhibit E one would be forgiven for thinking that the intention of the person who made the handwritten amendment was to strike out Irwin's name and replace it with that of Trifunovic. The handwriting is that of the plaintiff. The plaintiff said that he was not striking out Irwin's name but was merely underlining Trifunovic. He gave this evidence in cross-examination [T 169]: "Q. In fact, you have put a line through Irwin in exhibit E and written Trifunovic, haven't you? A. Well, I said, I've underlined Trifunovic's name and, and not, that's, that's my reading of it, it's both, I should have put an ampersand. HIS HONOUR Q. It looks very much more like a striking out of Irwin than an underlining of Trifunovic, doesn't it? A. Yeah, well, I should have put an ampersand because that's, that's what we were trying to say there. Homard, Christenson whose real name was Luke Livington, Irwin and Trifunovic, that's what I was trying to say. HUTCHINGS Q. You don't normally underline something by drawing straight through it do you? A. I'm, I often underline things, that's one of my annoying habits. Q. By drawing a line through them? A. No, I, if I'm writing something important, I put a line under it. HIS HONOUR Q. You see, if you're underlining Trifunovic's name why did you only underline the first three letters of the name which just happen to coincide with striking through the name of Irwin? A. All right, well, I'm, I'm looking at that and thinking what I should, should have done is put an ampersand so that's what I meant to say was, 'And Trifunovic' so that's what we were trying to say." I found that evidence totally unconvincing, and that a lack of conviction is borne out by reference to subsequent documents.
6. The plaintiff engaged Ms Annette Wood of Messrs LAC Lawyers of Chatswood to represent him in the Local Court proceedings. On 14 July 2011 she sent a letter to the commander of the Rose Bay Local Area Command making representations on behalf of the plaintiff. On p 5 of that letter, which became exhibit F, is a paragraph numbered 14 which says this: "We are also instructed that police were quite insensitive towards our client and his partner at the scene. Comments made by Probationary Constable Marko Trifunovic are now the subject of an official complaint made by our client and his partner." That letter was sent on instructions. The plaintiff sought to resile from those instructions in his evidence by casting aspersions on Ms Wood. The notation by the plaintiff on exhibit E clearly indicates to me that there was intention to resile from the allegation that Constable Irwin made the gay slur comment, and to attribute the gay slur comment to the other officer involved in the arrest of the plaintiff, Probationary Constable Trifunovic.
7. Letters were sent on behalf of Mr Tanner to the Ombudsman. They are clearly the joint effort of the plaintiff and Mr Tanner. The first bears date 24 August 2011. It is part of exhibit 3. In [6] of that letter Mr Tanner raised "key issues that I want to see properly investigated". The fifth and sixth of those "key issues" are these: "V Why did Probationary Constable Trifunovic, whilst my partner was being unlawfully subject to an illegal breath test, and then arrested illegally on private land, make the comment to me, 'Go away you fag', when I tried to come to his aid and raise a valid objection that what they were doing was wrong, and that my partner was taking me to an ER Ward as directed by police? On this point, we have an independent witness to this event. VI Why, when I walked back to Rose Bay Police to report this gay slur comment made by Trifunovic and to ask where my partner was for I was still in extreme pain and locked out of my apartment without any resources (no cell phone, no money), why did the two police officers behind the desk (Homad and Christenson) refuse to take my statement or assist me in any way?" Clearly, the gay slur comment was there being attributed to only one of the two police officers involved in the arrest of the plaintiff, Probationary Constable Trifunovic.
8. The second letter to the Ombudsman bears date 21 September 2011. Part of the narrative set out in that letter is this: "a. I walked into Rose Bay LAC to report a gay slur comment at 3.09am (the comments were made by Pro. Con. Trifunovic - he told me to 'Piss off fag' and 'Go away fag' at around 2.55am)[.] b. initially I speak peacefully with O Homad till about 3.16am. A 2nd officer appears (Luke Livington), both are far bigger than I[.] c. they both refused to take my statement re the gay slur by Trifunovic and then with the door open they very suddenly and violently grabbed me by jacket and I am shoved out the door[.] d. Out of view of the camera I was pushed, hit, abused, threatened mainly by Livington but also Homard, they tell me to 'fuck off faggot'[.]" The rest of the interaction alleged by Mr Tanner with Probationary Constable Homard and Constable Livington I need not recite. Clearly, that letter, like the first letter to the Ombudsman, indicates that the only gay slur comment made at the time of the plaintiff's arrest was by Probationary Constable Trifunovic.
9. Nevertheless, before me both the plaintiff and Mr Tanner allege that both Constable Irwin and Probationary Constable Trifunovic made a gay slur comment to Mr Tanner in the presence of the plaintiff at the time of his arrest. One might say what is the importance of these insults? They are put forward by the plaintiff as aggravation of his damage and to support a proposition about the motive for the alleged malicious prosecution. Yesterday afternoon I quoted the derogatory comments alleged by Mr Tanner. Immediately prior to telling me about being bundled into the back of RB15 the plaintiff had said this as to what happened immediately after he gave his belt and other possessions to Constable Irwin: "Q. What happened next? A. Well, John, at that stage, objected and said, 'This is wrong, you can't do this. How dare you do this, we were just at the police station.' And he - so he was saying that in a quite strong way, he wasn't yelling but he was, he was about what, what was occurring. And that's when Irwin, Irwin said to him, whilst he was getting my things, he said, 'Fuck off, fag'. Q. Then what happened? A. And Irwin - sorry, his partner said, 'Yeah, mate stop. Yeah, piss off, fag'. And his partner was trying to, sort of, make sure that John didn't do anything, I think. His partner was worried John was going to become physically - because he was quite upset. But he, but he - John didn't do that, he just kept saying, 'This is wrong, you can't do this'." On T 39 this evidence about the slur was given by the plaintiff: "Q. I want to take you back to unit 2B Victoria Road from as you were being arrested and the officer said the words that you've described, them saying to Mr Tanner with the word 'fag' and 'fuck off, fag', 'piss off', whatever it was. How did you respond to those words? A. I was shocked. I - I mean, I - I thought police were meant to give you, like, police were meant to serve you and to try to protect you and to do the right thing by you, and they were just treating us like garbage, and I felt - it was almost like a hint of, like, they wanted to attack at John or it was like they're going to threaten him or something. Q. Is the word 'fag' an expression you've encountered before in your life? A. Yes, I've - I've heard of it, it's - it's - it's like a swear word, it's a derogatory term, like, gay guys don't call each other 'fag', it's - it's - it's like a swear - it's a swear word, in my opinion."
10. In cross-examination Mr Tanner maintained his position that the original gay slur comment was made by Constable Irwin, notwithstanding what is contained in exhibits E, F and 3. He then gave this evidence: "Q. Are you sure of that, aren't you? A. He looked at me right in the eye when he said it. And, and the look on his face, you know, it, I, I, I didn't forget that. It's a look I've seen before. Q. Did he say anything else to you? A. When he said, 'Fuck off, fag'? Q. No, after that did he say anything else of that nature to you? A. No. HIS HONOUR Q. What was the look in his eye? How would you describe it? A. It was like I was in primary school again and he was the bully, you know, it was like, he looked like a young boy with that look. Q. It indicated to you contempt did it? A. Absolutely, yes, your Honour. Just, yeah." In answer a later question Mr Tanner told me that the look was disdainful. On T 133 Mr Tanner maintained his position that he had a distinct recollection of Constable Irwin looking in his eye when he made the gay slur comment. On T 134 of the transcript it was put to Mr Tanner that his complaint was that those words he attributed not to Constable Irwin but to Probationary Constable Trifunovic. Mr Tanner agreed that Probationary Constable Trifunovic made a gay slur comment and that he was one of the two officers who did so. I interpolated Mr Tanner's evidence about the gay slur comments because his evidence was interposed during the evidence in cross-examination of the plaintiff, because Mr Tanner needed to take a flight overseas.
11. The plaintiff in cross-examination accepted that the gay slur comment was never directed at him. When the plaintiff was cross-examined about exhibit F and was read par 14 of that letter he said that Ms Woods was "clearly wrong" because the comment made to Mr Tanner was made both by Constable Irwin and Probationary Constable Trifunovic. When, in further cross-examination, on the documents which I have earlier cited, some very confusing and conflicting evidence was given. Mr Hutchings was cross-examining the plaintiff about the letter to the Ombudsman of 21 September 2011. This evidence then was given: "Q. He says that his purpose was to report comments made by Probationary Constable Trifunovic, 'That he told me to piss off fag and go away fag at around 2.55am'. A. Right, well, I later said, later said to John that I heard Irwin say, 'Fuck off, fag', and I heard Trifunovic say, 'Yeah, piss off, fag', so that's what, that's what John's written, I think this is, this is mostly written by John because looking at it I can see touches of John. Q. When did this later conversation occur? A. We, we had several chats, you know, but what I recollect and what John recollected, we definitely heard the two comments, and we went back and forth. I thought Irwin said the fuck off comment and I thought Trifunovic said the, the piss off fag, and John thought that Trifunovic says both and that's what he's done here. Q. Didn't you tell his Honour yesterday at the start of cross-examination that you only ever discussed this matter in passing with Mr Tanner? A. We've had a couple of discussions about it of course. I mean, there's a lot to, there's a lot to talk about, it was, it was a multi-staged event, we talked about it within the first few months after and around the trial [in the Local Court], mainly the first and second day. Q. The LAC Lawyers' letter of 14 July 2011, exhibit F…doesn't include Irwin's name and you say that's Annette Woods' fault, is that right? A. Well, she summarised what she understood to be the issue and she hasn't spelt out exactly what happened, so you're referring to point 14, she's summarised. Q. The letter that was written to the Ombudsman on 24 August 2011 doesn't include a reference to Irwin… A. Right, but the original complaint done the next day does so there's an error there. Q. The September 2011 letter doesn't contain a reference to Irwin but you've now said well, that's John's document, he obviously made a mistake. A. Well, he's, he's got the both comments there but he's attributed them both to Trifunovic, whereas I heard Irwin say the fuck off comment. HIS HONOUR Q. But if John didn't hear Irwin's comment then how can he be offended by it? A. He, he, John recalls hearing the two comments but I think one of them was said by Irwin and the other was said by Trifunovic, whereas John, John thought that both were said by Trifunovic so John and I agree that they were both said, it's just who, who said which comment. HUTCHINGS Q. So you don't agree about who said what between you? A. We don't, well I thought I heard Irwin say, 'Fuck off, fag', and then I heard Irwin, sorry, Trifunovic say, 'Piss off, fag'. John recalls hearing, 'Piss off, fag', and, 'Go away, fag', so that's, that's what he's written there. If, it was a very tense and high stress moment, it was there in front of my flats, the police lights were flashing, Irwin's all over me saying, 'You've got to get your gear. I want your belt. I want this', so I'm, I'm dealing with that, my car's open, the lights are on and John's going, 'Hey, this is wrong, this is wrong', and then they're saying their two comments so it was a pretty tough, tense moment. We both heard two comments. Q. So it's possible in the tough, tense moment that you misunderstood some of the events that were occurring in front of you? A. I had a clear recollection of what I heard and John has his recollection of what he heard and they're almost the same." How one can reconcile that explanation with the averment by Mr Tanner that he had a distinct, indelible recollection of Constable Irwin looking him in the eye and delivering the gay slur comment is quite beyond me.
12. Lest it be thought that my last comment were cryptic, I must point out that the attempt by the plaintiff to reconcile the amended form of exhibit E, and exhibit F, and exhibit 3, with the position adopted by him and Mr Tanner in their oral evidence, is completely inconsistent with the averment on oath by Mr Tanner of his having a distinct recollection of Constable Irwin looking him in the eye with disdain or contempt and delivering the insult to him.
13. In cross-examination this evidence was given by Constable Irwin concerning the time of the arrest of the plaintiff: "Q. You have a recollection of Mr Tanner behaving very badly? A. Yes. Q. Speaking very loudly? A. Yes. Q. Getting very close to you? A. Yes. Q. Swearing? A. Yes, he was carrying on. Q. You thought it was extremely bad behaviour? A. Yes. Q. You need to repeatedly tell him to go away, is that right? A. I did tell him to go away, yes. Q. And you just say it over and over again, correct? A. A number of occasions, yes. Q. Did he get worse as you were actually placing Mr Rook under arrest? A. Yes, he was carrying on. Q. Did you say to him words to the effect of, 'Get out of my face'? A. Not that I can recall, no. Q. You're looking down at your statement to see if they're there are you? Those words? A. That's correct. Q. Did you say to him words to the effect of, 'Fuck off'? A. No. Q. What about, 'Piss off'? A. No. Q. What about, 'Go away'? A. Might have told him to go away, correct. Q. Did you use the word, 'Fag' when you were referring to him? A. I would not use 'Fag' because my sister is openly gay and so is my uncle so I find that quite offensive, thank you. Q. Did you say to him words to the effect of, 'Fuck off, fag'? A. Why would I say that when my sister's gay? I find that offensive and very wrong. Q. You did that, didn't you, because he was behaving very badly and getting in your way? A. No. Q. You wanted to make him shut up, didn't you? A. No. Q. Did you hear Constable Trifunovic use the word, 'Fag'? A. He is a good friend of my sister as well, so he would not say that and I'd be quite upset if he did say that about her.' HIS HONOUR Q. That may be the case but do you have any recollection of his using that word to refer to Mr Tanner? A. No." The transcript then continues on T 482 and 483 on that issue but no concession was obtained by Mr Braham from Constable Irwin. I found that evidence of Constable Irwin convincing. Whilst I have not heard the word "fag" applied to a female homosexual, I can accept that with close relatives who are homosexual a person would object to any term of homosexual abuse addressed to either a man or a woman.
14. Probationary Constable Trifunovic was cross-examined to the same effect at T 530. This evidence was given: "Q. When Mr Rook was being placed in the back of the police van, were you very close to Mr Rook and Constable Irwin? A. I don't recall exactly. Q. But you were dealing with Mr Tanner in that time? A. I was dealing with Mr Tanner at a time, I don't recall exactly the time. Q. Trying to get him to shut up and go away, is that right? A. Yeah, well, that's right. Q. He was proving resistant to reasonable attempts to make him do that? A. That's correct. Q. You told him to "Piss off", didn't you? A. Words to that effect, but I don't exactly remember the exact words. Q. Could it have been, "Fuck off"? A. No. Q. Could you have called him a "fag"? A. No, certainly not. Q. You used the word "fag" though, didn't you? A. No, I didn't. Q. To make him shut up and go away? A. No, I didn't. Q. Because you wanted to put him under control? A. That's correct - that's - that's - that's incorrect, sorry." There was no further cross-examination addressed to Probationary Constable Trifunovic on this issue. I formed a favourable impression of Probationary Constable Trifunovic and thought he was trying to tell me the truth.
15. Ultimately, I have come to this view. I am not persuaded on the balance of probabilities that Constable Irwin delivered any gay insult to Mr Tanner in the presence of Mr Rook in the early hours of 5 June 2011. In fact, the evidence points in exactly the opposite direction. The written evidence, exhibits E, F and 3, clearly indicate that only one member of the NSW Police was alleged to have delivered a gay insult, and that was Probationary Constable Trifunovic. That, together with the compelling personal reasons of Constable Irwin, persuade me that it is highly improbable that he would have delivered the insulting words alleged against him. The question then becomes whether Probationary Constable Trifunovic delivered the gay slur as appears to be alleged in the documentary evidence. In favour of the allegation that Probationary Constable Trifunovic did deliver gay slurs to Mr Tanner is the almost contemporaneous complaint, exhibit E, made at 4.46pm on 5 June 2011 and the subsequent paper trail to the same effect. On the other hand, I have an outright denial by Probationary Constable Trifunovic, a denial by Constable Irwin of Trifunovic using such language, and a statement by Constable Irwin that he would have been upset if Probationary Constable Trifunovic had used such language. Another consideration which must be borne in mind is this. After the plaintiff's arrest and his conveyance to Waverley Police Station, Mr Tanner went to the Rose Bay Police Station to, amongst other things, find out what was happening to his life partner, Mr Rook. He certainly was told correctly at the Rose Bay Police Station that Mr Rook was not there. Mr Tanner then alleges misconduct by Probationary Constable Homard and Constable Luke Livington towards him at the Rose Bay Police Station. That is not a matter before me. I have not heard from Probationary Constable Homard or Constable Luke Livington. The interaction between Mr Tanner and those two men is irrelevant in the current proceedings. However, it is possible that a gay slur comment was made by either Probationary Constable Homard or Constable Luke Livington, and in the upset caused by the plaintiff's arrest and charging, in the context of two men who were intoxicated, that is the plaintiff and Mr Tanner, it may have been possible, either deliberately or negligently, to assign a gay slur comment to Probationary Constable Trifunovic at the time of Mr Rook's arrest. There are competing considerations, obviously. I am not the Almighty. I do not know what happened, in the car park near 2B Victoria Road, Bellevue Hill, in the early hours of 5 June 2011. I was not there. I have to decide the question on the evidence before me, bearing in mind the onus of proof. The onus of proof clearly rests upon the plaintiff. There is grave inconsistency between the plaintiff and Mr Tanner in this regard in one respect and there is compelling evidence to the contrary from Constable Irwin and Probationary Constable Trifunovic. I am not persuaded on the balance of probabilities that any gay slur comment was made by either Constable Irwin or Probationary Constable Trifunovic at the time of the plaintiff's arrest to Mr Tanner. In making that finding, I bear in mind other findings which I must make, which clearly indicate to me that the evidence of the plaintiff is unreliable.

Events after the plaintiff's arrest

1. I return to the arrest of the plaintiff. I had reached the stage yesterday afternoon of pointing out what could amount to assault and battery upon him by Constable Irwin and Probationary Constable Trifunovic. There is no doubt that the plaintiff was taken by RB15 to Waverley Police Station. Exhibit 19, the audio recording of VKG communications on this evening with RB15, and the transcript of it, clearly indicate that at 2:52:10 RB15 communicated with VKG advising that they had arrested a person of interest for breath testing, having obtained a positive roadside result. As far as the arresting police were concerned, Constable Irwin and Probationary Constable Trifunovic, the arrest occurred at 2.55am but clearly it was very shortly before 2.52am. Nothing turns on that. The VKG communication ended at 2:53:20. According to the field arrest form, exhibit 12, RB15 commenced to convey the plaintiff to Waverley Police Station at 3am. Both that form and the custody management record indicate that RB15 arrived at the Waverley Police Station at 3.05am.
2. The plaintiff was taken from RB15 to the custody area and was introduced to the custody manager, Sergeant Stuart Savins. Page 2 of the Custody Management Record, which became exhibit 4, commences with a heading, "Brief Assessment". It asks two questions. The first was, "Does the person complain of, or have you observed any sign of intoxication, pain, injury or illness?". The answer given is, "Yes", and the comment beneath it is, "heavily affected by liquor". The second question is, "Does the person show any sign of mental illness or display any sign of self-harm?". The answer to that question was, "No". Sergeant Savins told me that that information was obtained from the field arrest form, exhibit 12. There is then a visual assessment that was made by Sergeant Savins himself. The third question was, "Is the person's behaviour suggestive of being under the influence of drugs or alcohol?". The answer to that question was, "Yes", and the comment made is, "well affected intoxicating liquor". Sergeant Savins told me that that observation was made immediately after 3.05 when the plaintiff was first introduced to him by the arresting police, although the entry was not made in the record until much later, at 3.44am. The plaintiff was also asked some questions. He was asked whether he was taking any tablets, drugs, insulin or other medication, and replied that he was, he was taking Viread for a liver condition. When he was asked whether he was receiving any treatment the plaintiff responded positively and said that the treatment was for his liver condition. The sixth question asked of him was whether this was the first time that he had been arrested and placed in police custody. The plaintiff said that this was the first time he had been arrested.
3. The entries go on to record that the plaintiff was placed in the dock at 3.05am. Exhibit 11 is a photograph of the two docks at the Waverley Police Station. Each of those appears to me to be about the size of the old red telephone boxes and contains what appears to be a stainless steel seat. Each has a glass or Perspex front, comprising a panel which appears to be about one foot wide and then a door of the usual width. The frame of the panel and door is clearly steel, painted blue, and one can observe through the panel and the door the entire dock, that is both from its floor to its ceiling, and no doubt to view entirely anyone contained in the dock. The plaintiff gave this evidence in chief, commencing at T p 39: "Q. I'll take you to Waverley Police Station. What happened after you arrived at Waverley Police Station? A. Well, I was checked in, I was asked a series of questions, like, if I was a Torres Strait Islander and stuff like that, if I was on medication, I answered those. It was like a duty sergeant was there, so I was processed, and then I was put into a little cell with a glass front door, and it was just a little cell with a single seat and I sat, I sat there. Q. Was Constable Irwin still with you? A. He, he - he and Trifunovic just vanished for a while and I didn't see or hear from them for about a good half hour. Q. Did you speak to anyone while you're in the cell? A. Yes, I - well, when I first got there, I asked if I could go to the toilet, they said no. Then when I was sat down, I said, after about three or four minutes, I said, 'Excuse me' to the duty sergeant who was behind a counter, and I sort of talked loud, I asked if I could go to the toilet, and he said 'No', and then I asked again about 20 minutes later if I could go to the toilet, and they said no. Q. What was your level of comfort in the cell? A. Well, it was - there was people around me in the other cells screaming and obviously they were on drugs or something, so the people were screaming, there was pee, really stale yucky pee all over the floor, so I was - I was sitting in my chair trying to - trying to arrange my feet so that I didn't touch the pee which was moving around the cell, like, it was just this puddle of pee and, and - and I was busting to go to the toilet, like - like, just sitting there going, like, you know, I - I really came very close, another five minutes and I would have peed my pants, to be quite frank. Q. What did it smell like? A. It stank, it stank, it was rancid, yucky pee, and the cells were dirty anyway - the place was like a horror scene, it was 3 o'clock in the morning, the person on my left was screaming and obviously was out of sort of their mind, and I am just sitting there in this police station, you know, waiting to be breath tested and, you know, sitting amongst pee, it was very unpleasant, it was very awful. Q. How long were you there? A. I - I was sitting there for about, for a good 35 minutes, 30, 35 minutes, it seemed like a long time, I was sitting there for ages just sitting there going, 'Oh my God', I was worried about John and - and just dying to go to the toilet. Q. Then what happened? A. Finally, Irwin and Trifunovic appeared, the front of my door, cell door was opened and I was led to a room. I asked again if I could go pee, and they said, 'No, you've got to, you've got to do this first', and I was sat down in a little room that had, like, a machine that I gathered was a breath testing machine, and then they proceeded to ask me questions. Q. Who is asking you questions? A. Irwin, mainly Irwin proceeded to ask me questions, like, how many drinks had I had and basic questions about what had happened that night. Q. Who was it who refused you permission to go to the toilet? A. Irwin and the duty sergeant and another police officer that had walked past. Q. Did anyone say anything to you while you were at the Waverley Police Station about Mr Tanner? A. Yes, so I was - I was - I was sat down and we're in the middle of an interview and Irwin said, 'Your friend is - is - is causing a ruckus over at Rose Bay', and then he, and Trifunovic was smiling at each other, and then he said, 'But don't worry, the boys will fix him', and so immediately I then found out that John was obviously in Rose Bay station trying to find me, that's what I surmised from that." In answer to my question the plaintiff then told me that it was Constable Irwin who advised the plaintiff of Mr Tanner causing some ruckus at Rose Bay Police Station. The plaintiff was then asked whether he took the breath test. He said that he did, and then he asked whether he could go to the toilet and was told that he could. He then said he was taken back to the desk where the duty sergeant was and signed some documents and was given papers and told that he was released from custody.
4. Despite the plaintiff's averment that there were "people" in the "other cells" screaming, in cross-examination on p 155 the plaintiff told me that there was only one other person in a cell next to him who was screaming.
5. The next question is how long was it that the plaintiff was in the dock before being taken to the BAS room to submit to breath analysis? According to exhibit 20, a document headed, "NSW Police Force Breath Analysis Details", Constable Irwin commenced the interview in the BAS room at 3.10am, the same time as the commencement of "a 15 minute observation period". That information is contained on the first page of the document and also the third page of the document. There is tension within the document itself. On the third page has been inserted a "reprint" being a printout from the breath analysis machine itself. That shows the "start time" as 3.30 and the analysis being performed at 3.46. That suggests that the interview did not start till 3.30 and was completed at 3.46. There is no adequate explanation for the inconsistency. Constable Irwin could not explain it, other than to speculate that there may have been a malfunction of the machine which needed to cause it to be reset, or the plaintiff did not initially give an adequate sample of breath, again something which made it necessary to reset the machine at 3.30, leading to the analysis conducted at 3.46. If the initial 15 minute period commenced at 3.10, one would expect a breath analysis at 3.25 or 3.26. However, the actual reprint shows the start time as 3.30 and the analysis time as 3.46. If, in fact, the interview commenced at 3.10, the plaintiff was only in the dock for five minutes before being taken to the BAS room. If, in fact, the interview commenced at 3.30, then the plaintiff was in the dock for about 25 minutes, which appears to be consistent with the plaintiff's estimate of 30 minutes or 35 minutes sitting in the dock. However, there is no adequate explanation for why Constable Irwin would have "bodgied up" the times recorded by him in exhibit 20. The inconsistency would be apparent to anybody, and if the constable were trying to hide the fact that the plaintiff was kept waiting for 25 minutes before being subjected to breath analysis, perhaps a more plausible excuse may have been found. The fact that there is an obvious inconsistency between what was entered by Constable Irwin and what was printed off the breath analysis machine makes it unlikely that any mis-entry was done deliberately. There might, therefore, be validity in the speculation of Constable Irwin that it was necessary, for one reason or another, to restart the breath testing machine leading to the obvious discrepancy. Furthermore, any period of time spent in an unusual and confronting environment merely waiting can seem to be very long. Five minutes can seem like a half hour if one is merely sitting doing nothing, especially if one is trying to hold onto the contents of one's bladder. There is no explanation from Constable Irwin or Probationary Constable Trifunovic of what they may have done if they were not interviewing the plaintiff between 3.10 and 3.30. They were not challenged in that regard as to what alternative activity they engaged in. There is no suggestion that Constable Irwin and Probationary Constable Trifunovic had some other duties to attend to at the Waverley Police Station. After all, it was not their workplace, but they had to attend Waverley Police Station as there was no breath analysis machine at Rose Bay Police Station.
6. The "breath analysis observations" indicate that the plaintiff's breath smelt moderately of intoxicating liquor, that his face was flushed, that his clothing was orderly and then appears this description, "Black jacket, white pants with red wine stains all over it, riding boots (brown), floral [mistakenly spelt floweral] shirt, glasses." Mr Hutchings clearly mistakenly read the document and cross-examined the plaintiff about having red wine stains on his shirt, rather than on his trousers. The question of red wine stains on the plaintiff's trousers was not the subject of any oral evidence, and therefore I cannot give it any weight in the circumstances. On the third day of the hearing the plaintiff wore to Court the jacket and the shirt which he wore on that day, but I did not notice what colour his trousers were, but I have no recollection of his wearing white trousers in Court, a very unusual phenomenon, one that I probably would have observed had it been so. Again, I draw no adverse inference against the plaintiff because of the suggestion in the document of his white trousers having red wine stains on them. Nor, in light of the fact that Mr Hutchings was confused in the cross-examination, can I draw any inference adverse to Constable Irwin. The same "observations" tell me that the plaintiff's attitude was talkative, abusive and hostile. Anyone who sat through the hearing would know that the plaintiff is quite garrulous by nature.
7. The plaintiff's "actions" were described as "swearing, aggressive" but what swear words may have been used I do not know, nor do I know what was meant by aggressive, other than to repeat the earlier adjective of "hostile". The plaintiff's eyes were said to be watery, bloodshot, eyelids drooping, pupils enlarged, and glassy. The plaintiff's speech was described as slurred, with mispronounced words. Whether the slurring represents the plaintiff's stammer I do not know precisely. It may well do so. Mispronunciation of words is, however, not something that I observed in the plaintiff's oral evidence. The plaintiff's balance was described as unsteady and swaying, and his movements were said to be sluggish. The opinion expressed by Constable Irwin in the document is that the plaintiff was "well affected due to liquor".
8. The plaintiff admits that he was asked questions. Exhibit 20 does not contain a caution, but at the top of p 2 are these words, "I said, 'Do you understand the formal caution?' he said, 'Yes'." The plaintiff denied the giving of a formal caution. Constable Irwin said that he read the plaintiff the formal caution that is thrown up by the computer screen, which he was using to administer the observations and questionnaire, which eventually when printed out became the document which is exhibit 20. Eventually, exhibit 26 was introduced into evidence and that indicates that the formal caution thrown up on the computer screen is this: "I am going to ask you some questions, you do not have to say anything if you do not want to, but anything you say will be recorded and may be used in evidence. Do you understand that?" Exhibit 26 also tells me that the direction to the operator is that the formal caution must be administered before questioning after the recording of the observations, and nothing can be recorded on the computer until the formal caution has been thrown up and the key "Done" is pressed. I accept that Constable Irwin did administer the formal caution, contrary to what the plaintiff has said.
9. Some of what is contained thereafter is erroneous, but nothing was made of it by either party. The narrative says that alcohol was consumed before the incident at or in the plaintiff's home at 2/2B Victoria Road, Bellevue Hill. The time of the first drink was said to be 9pm on 4 June 2011, and the time of the last drink was said to be 1.30 on 5 June 2011. The size of drinks was standard wine glasses, and the number of drinks was eight. The type of drink was red wine. In answer to whether any food was consumed during drinking, there is recorded "burger at around 12.45am". There is no suggestion that the plaintiff went home and drank before collecting Mr Tanner in Oxford Street and then proceeding to the Rose Bay Police Station. It may well be just a misunderstanding by Constable Irwin. The plaintiff may have said something such as that after moving his car he "returned", meaning returned to the Opera House and that was misconstrued by Constable Irwin as being a return to the plaintiff's home. Again, that was never pursued in the evidence before me and nothing turns on the discrepancy. There were then some questions asked about the plaintiff's having medical or dental treatment lately, about the plaintiff's suffering from any injuries or illness, and of the plaintiff's taking any tablets, drugs, insulin, asthma sprays or medicine, and as to any reason why the plaintiff might not be able to supply a sample of his breath. The answer to those questions are clearly what the plaintiff said, and again there is no issue about them. The plaintiff then blew into the machine and the machine recorded a result of 0.121 grams of alcohol in 210 litres of breath. That is a mid-range PCA finding.
10. Exhibit 20 continues thus: "I said, 'This instrument has analysed a sample of your breath and returned a reading of 0.121 grams of alcohol in 210 litres of breath'. He said, 'Okay, well that is all the stuff I had at home. I had two glasses of red. I had no idea I was going out again to save my partner who was getting attacked. I had two heaps glasses of red and I got a liver condition that doesn't process everything I ate.' I said, 'You may choose to have the services of a doctor, being a legally qualified medical practitioner, of your choice, to examine you and take a blood sample, which will be retained by the police and submitted to a prescribed laboratory for analysis to determine the concentration of alcohol in the blood. You may, within 12 months after taking of the sample, apply to the laboratory prescribed for a portion of the sample to be sent, for analysis at your own expense, to a medical practitioner or a laboratory nominated by yourself.' He said, 'No'." Again, there was no issue taken about what is contained in the first paragraph of that quotation. However, the plaintiff denies that he was offered the services of a medical practitioner to take a blood sample, and said that that never occurred. I accept the evidence of Constable Irwin that it did. There is nothing to suggest that the police did not follow normal procedures on the evening now in question.
11. The plaintiff was released from police custody at 4.21am. That is contained on p 3 of the custody management record. That also indicates that a field Court Attendance Notice (CAN) was issued to the plaintiff. A copy of that became exhibit 2. That contains two charges, firstly driving with a mid-range prescribed concentration of alcohol, a reading of 0.121 and, secondly a charge of disobeying a request or signal to stop for breath test contrary to s13(5) of the Road Transport (Safety and Traffic Management) Act, 1999. The field CAN was returnable at the Waverley Local Court on 12 July 2011. Eventually the proceedings were heard in the Downing Centre Local Court. The plaintiff had his property returned to him at, I infer, 4.24am when the plaintiff signed exhibit 14, the station copy of a receipt of records which shows him as receiving a property document, the custody management record and the CAN, and the breath analysis certificate, and a notice of suspension of his driver's licence.

The plaintiff goes home

1. The plaintiff then made his way home. He made his way home by seeking a lift from Constable Irwin and Probationary Constable Trifunovic and it was given to him. After telling me that he was allowed to leave Waverley Police Station, this evidence was given: "Q. You returned to your home? A. Well, I was a bit cheeky, I asked the police, cause they were walking out the door, Irwin and Trifunovic, I asked if I could get a lift back to where I was from cause otherwise I'd have to walk or try to find a cab at 4[o'clock], almost 4 o'clock in the morning by that stage, and they actually said yes, so I got a lift. Q. So you returned to your home? A. Yes. I was dropped off near my home." In light of the case that I have heard, this behaviour seems somewhat extraordinary.
2. The plaintiff asked me to believe that both Constable Irwin and Probationary Constable Trifunovic made gay slurs against his life partner by which he was offended, acted towards him in a heavy-handed manner, conveyed to him intelligence that his life partner had turned up at Rose Bay Police Station, but that he would be "dealt with" by the male police there, an implicit threat to his life partner, and that Constable Irwin denied the plaintiff his rights by failing to give him a formal caution and by failing to advise him of his right to give a blood sample, to have the breath analysis tested by blood testing. He now asks me to believe that Constable Irwin was motivated by malice towards him, in essence, that the behaviour of Constable Irwin and Probationary Constable Trifunovic were somehow motivated by antipathy towards homosexual men such as the plaintiff and his life partner, in other words homophobic behaviour. Yet he asked for a lift from them, trusted them to do what they said they would do, give him the lift, without any fear, for example, that they may take him to some place remote from his home and drop him off, leaving him in a place where he might be embarrassed, or that they may take him to some secluded place and perhaps apply unnecessary force towards him. Anything was possible. Yet he asked them to give him a lift, acquiesced in their acceptance, and held no fear that he would be in any way badly dealt with. Actions often speak louder than words, and the action of the plaintiff in asking for and accepting the lift, and Constable Irwin and Probationary Constable Trifunovic being courteous enough to drop the plaintiff off near his home, does not speak of any ill-will or malice at all.
3. Furthermore, as has been submitted by Mr Hutchings, what would have happened if, for example, some errant motorist had run into the back of RB15 as they were conveying the plaintiff home, and the plaintiff had been injured in the collision? A question could certainly be raised by the police administration as to why there was a person not in custody in the back of RB15. The police do not run a taxi service. The acquiescence by Constable Irwin and Probationary Constable Trifunovic to the plaintiff's request may have placed them in some administratively embarrassing situation should anything untoward have occurred.

Subsequent events

1. The facts since then can be relatively straightforwardly stated. The Local Court proceedings came on for hearing before Milledge LCM at the Downing Centre Local Court on 25 October 2011. Prior to then, a further charge was offered against the plaintiff, a charge contrary to s 39(a) LEPRA of failing to stop when directed to do so between 2.55 and 2.57am on 5 June 2011 without reasonable excuse. That is an offence which carries a maximum penalty of 50 penalty units and/or one year's imprisonment. On 25 October 2011 the learned magistrate excluded the certificate under s 33 of the Road Transport (Safety and Traffic Management) Act 1999 and dismissed the charge of driving with mid-range prescribed concentration of alcohol. That is shown in exhibit S. The proceedings resumed before her Honour on 3 February 2012 when the second offence alleged, the one contrary to s 13(5) of the Road Transport (Safety and Traffic Management) Act 1999 was also dismissed, but her Honour found the facts to substantiate the charge under s 39(a) of LEPRA proved, but recorded no conviction pursuant to s 10. In the meantime, however, there had been the representations made by Ms Wood of LAC Lawyers on 14 July 2011 seeking that the charges contrary to the Road Transport legislation be withdrawn. One wonders why, as was pointed out by the learned magistrate, the police never charged the plaintiff with the offence of driving under the influence of alcohol. There would have been sufficient evidence to support that offence, being observations made by Constable Wynn-Williams and Constable Walker-Lear at the Rose Bay Police Station of the plaintiff's behaviour, the observations made of the plaintiff's state by Sergeant Savins, Constable Irwin and Probationary Constable Trifunovic, and by the admissions made by the plaintiff after being formally cautioned, before the administration of the breath analysis test.
2. It is clear from what was said in evidence by both Constable Irwin and Probationary Constable Trifunovic that after the plaintiff was arrested Constable Irwin made inquiries of his sergeant, Sergeant Michael Lehmann, as to whether Constable Irwin could proceed against the plaintiff for a PCA charge, bearing in mind the place where the plaintiff had undergone the roadside breath test and was arrested. As far as Constable Irwin was concerned, Sergeant Lehmann said it was all right for Constable Irwin to proceed with a PCA charge. In exhibit H are some emails relating to the representations made to the police by Ms Wood. On 30 July 2011 Inspector Andrew Sipos of the Rose Bay LAC sent this communication to Ms Wood: "I have viewed the representations and had them further reviewed by the Traffic Services. A formal response will be forwarded to you in response to the representations. I have independently viewed the signage in the area where your client, Mr Rook, was breath tested and arrested. Having reviewed the relevant information and areas at this stage, I can indicate that the charges against Mr Rook will not be withdrawn and will proceed." Not only was the decision made by Constable Irwin supported by Sergeant Michael Lehmann but was also supported by Inspector Andrew Sipos, armed as he was with advice from Police Traffic Services.
3. In the evidence-in-chief of Constable Irwin the following occurred: "Q. Did Inspector Sipos discuss the prosecution that you had brought against Mr Rook with you to your recollection? A. Yes. Q. Can you recall what Inspector Sipos told you about that prosecution? A. I knew that a report had been written for Traffic Services in relation to the matter and he informed me of that. Q. When you refer to Traffic Services, what do you understand that to be? A. Our police who know all about traffic matters. Q. The experts on traffic within the police force? A. Yeah, correct. Q. Apart from a referral to Traffic Services did he tell you anything else? A. No. Q. Could I show you a document, please, senior constable? Senior constable, is that a document that you recognise? A. No. Q. It's not a document that you have seen before? A. No." That document was then marked "17" for identification. It was perused by learned Senior Counsel for the plaintiff. The inference to be drawn is the document may have been a communication from Police Traffic Services to Inspector Sipos. It never made its way into evidence. The inference to be drawn is that not only was the decision to pursue the plaintiff on a PCA charge supported by Sergeant Lehmann and by Inspector Sipos, but also by the Police Traffic Services. That is relevant to the final tort alleged by the plaintiff which I need to consider, the tort of malicious prosecution.

Malicious prosecution

1. The elements of the tort of malicious prosecution are:
2. a prosecution initiated by the defendant;
3. the prosecution terminated favourably to the plaintiff;
4. the defendant acted with malice in bringing or maintaining the prosecution; and
5. the prosecution was brought or maintained without a reasonable and probable cause. The authorities for the elements of the tort of malicious prosecution are A v New South Wales [2007] HCA 10; (2007) 230 CLR 500 and Beckett v New South Wales [2013] HCA 17 at [4].
6. Eventually the plaintiff was prosecuted on three charges. Two charges were terminated favourably to the plaintiff. The third charge, the charge of an offence under LEPRA was not so terminated. The authorities state that the dismissal of a charge pursuant to s 10 is not one favourable to the plaintiff: Clavel v Savage [2013] NSWSC 775, a decision of Rothman J, and Cameron v James [1945] VLR 113. Only two of the three charges were determined favourably to the plaintiff.
7. In the current matter there is no dispute that the prosecution was initiated by Constable Irwin and pursued in his name. He is the prosecutor named in the CAN and he was the officer in charge of the investigation. He was the prosecutor of the criminal proceedings. As I have already stated, two of the three charges terminated favourably to the plaintiff. The next element is the element of malice. The relevant part of the statement of claim is this: "10. The information was laid with actual malice on the part of the defendant, by the police officers referred to above [Constable Irwin and Probationary Constable Trifunovic] together with Sergeant Drury, and without reasonable and probable cause (in relation to the disobey request to stop for breath test, and drive with a mid-range concentration of alcohol charges). Particulars of Malice (a) The defendant by the officers referred to above had actual knowledge that it was unlawful to arrest the plaintiff. (b) On or about 14 July 2011, Annette Woods [sic], a solicitor then acting for the plaintiff and then in the employ of LAC Lawyers, made representations in writing as to the absence of any prospect of success in relation to the prosecution referred to above to the commander of the Rose Bay Local Area Command ('the representation'). (c) Having regard to the representations, the defendant failed to seek to withdraw the prosecution. (d) The dominant purposes of the Officers Irwin and Trifunovic in causing the prosecution to be commenced and/or continued were: (i) to punish the plaintiff: l for what they perceived to be his mistreatment of the police at the counter of the Rose Bay Police Station at approximately 2.35am on 5 June 2011 l for his complaint about Officers Irwin and Trifunovic on and after 5 June 2011 until 3 February 2012 l for the complaints made by John Tanner arising out of the events of 5 June 2011 until 3 February 2012 (ii) to vindicate Officer Irwin's and Officer Trifunovic's conduct in arresting, charging and prosecuting the plaintiff. The dominant purpose of Officer Drury in prosecuting the plaintiff (including by not withdrawing the prosecution) was to vindicate the conduct of Officers Irwin and Trifunovic."
8. There was no need to plead that Probationary Constable Trifunovic was one of the prosecutors because he was not. It is now common ground that the sole prosecutor was Constable Irwin. Sergeant Drury was only mentioned but passingly in the evidence. No submission was made about his conduct and learned counsel for the defendant chose not to call him. There was no necessity to do so. Sergeant Drury's only role was to present the charges and argument on behalf of Constable Irwin before the Local Court. He had much the role of any barrister or solicitor presenting his or her client's case to a court.
9. In A v State of New South Wales the plurality, Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ said this: "91. What is clear is that, 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"[89]. That improper purpose must be the sole or dominant purpose actuating the prosecutor[90]. 92. Purposes held to be capable of constituting malice (other than spite or ill will) have included to punish the defendant[91] and to stop a civil action brought by the accused against the prosecutor[92]. But because there is no limit to the kinds of other purposes that may move one person to prosecute another, malice can be defined only by a negative proposition: a purpose other than a proper purpose. And as with absence of reasonable and probable cause, to attempt to identify exhaustively when the processes of the criminal law may properly be invoked (beyond the general proposition that they should be invoked with reasonable and probable cause) would direct attention away from what it is that the plaintiff has to prove in order to establish malice in an action for malicious prosecution - a purpose other than a proper purpose. 93. Two further observations should be made about the element of malice. First, its proof will often be a matter of inference. But it is proof that is required, not conjecture or suspicion[93]. Secondly, the reference to "purposes other than a proper purpose" might be thought to bring into this realm of discourse principles applied in the law of defamation or in judicial review of administrative action. No doubt some parallels could be drawn with the principles applied in those areas. But drawing those parallels should not be permitted to obscure the distinctive character of the element of malice in this tort. It is an element that focuses upon the dominant purpose of the prosecutor and requires the identification of a purpose other than the proper invocation of the criminal law."
10. The high point of the plaintiff's case on this issue was put to Constable Irwin after the luncheon adjournment on Monday 25 May 2015: "Q. You arranged the re-enactments to occur, didn't you, in preparation for the hearing for Magistrate Milledge? A. That's correct. Q. Re-enactments of the trip between Rose Bay Police Station and the plaintiff's apartment building? A. That's correct. Q. Which you videotaped? A. That's correct. Q. Reconstructions of the place vehicles were standing in the forecourt of the plaintiff's building. Correct? A. Yes. Q. For a surveyor to be engaged? A. Or surveyors reports. I didn't get a surveyor. Q. You got surveyors reports from council, did you? A. That's correct. Q. You took lots of photographs? A. That's correct. Q. Generally did a lot more work than is generally required when preparing a random breath testing prosecution? A. Yes. Q. All of that work that I have described to you designed to bolster the likelihood of a finding that the arrest did not occur at the plaintiff's home? A. Yes. Q. That was a criticism that was being made of you at the time, wasn't it, by the plaintiff and Mr Tanner that you had arrested him at home? Were you aware at the time that one of the issues in the prosecution case was the defendant's contention that he had been arrested at his home? A. At what time? Q. As you were preparing all these documents to give to the prosecutor? A. He pleaded not guilty so yes. Q. You must have known that the reason - or a reason why he pleaded not guilty was that contention. A. Not at that point. Q. That's why you were doing all this work, wasn't it, to bolster up the case that he was arrested at home as opposed-- HIS HONOUR: To bolster up the case that he wasn't arrested at home. BRAHAM Q. Yes, bolster up the case that he was not arrested at home. A. Yes. Q. You knew that that was a matter which if it was established by the plaintiff that he was arrested at home would reflect poorly on you. Correct? A. I was acting in good faith so probably not, no. Q. You were the person who conducted the arrest? A. Yes. Q. Were you aware by the time the matter went before Magistrate Milledge that the plaintiff and Mr Tanner were complaining about you in relation to things you had said to them at the time of the arrest? A. I can't recall whether I knew or not. Q. You were motivated at the time, weren't you, to vindicate your actions on that night in arresting the plaintiff? A. When? Q. When you were taking the steps that I have described, doing re enactments, taking photographs, reconstructing the scene of the arrest. All those things were done by you to vindicate your own actions on the night, weren't they? A. I was compiling a brief so that's what I had to do. Q. To defend yourself against complaints made against you by Mr Rook. Correct? A. No. Q. Against complaints made against you by Mr Tanner. Correct? A. No. Q. To teach them a lesson for their bad behaviour to Rose Bay Police on the night of the fifth and the morning of 5 June. Correct? OBJECTION. FORM. Q. To teach Mr Rook a lesson for his bad behaviour. Is that what you were doing? A. No. No." The acme of that piece of cross-examination was the question, "You knew that was a matter which, if it was [sic] established by the plaintiff that he was arrested at home would reflect poorly on you, correct?" which brought the response from Constable Irwin that he was acting in good faith so it would probably not reflect poorly on him. Again, it is necessary to record what I have just quoted from the High Court of Australia, that the proof of malice is required, not mere conjecture or suspicion.
11. The written submissions of the defendant contain other references to the case law, and its application to the current matter, all of which are, in my view, submissions that are correct and which I have no hesitation in adopting. Those submissions were: "374 In Hicks v. Faulkner (1878) 8 QBD 167, Hawkins J said: Malice means the presence of some improper and wrongful motive - that is to say, an intent to use the legal process in question for some other than its legally appointed and appropriate purpose. It can be proved either by showing what the motive was and that it was wrong, or by showing that the circumstances were such that the prosecution can only be accounted for by imputing some wrong or indirect motive to the prosecutor. 375 There can be no such motive imputed to Const. Irwin. There is simply no basis in the evidence so to do. 376 In Skrijel v. Mengler & Ors [2003] VSC 270 (25 July 2003), Nettle J held the following in respect of malice: Malice in the law relating to malicious prosecution means acting with spite or ill-will with an indirect and improper motive: Hicks v. Faulkner (1878) 8 QBD 167 at p174-175. Thus a lack of honest belief in the guilt of the accused is conclusive of improper purpose. But an honest but mistaken belief in the guilt of the plaintiff will not be sufficient: Brown v. Hawkes [1891] 2 QB 718 at 723. Furthermore, the burden of proving malice rests on the plaintiff, and that burden can only be discharged by proving the existence of a motive that was improper or, alternatively, by proving circumstances such that the actions of the prosecutor can only be accounted for by the imputation of a wrong and indirect motive. 377 The plaintiff cannot even demonstrate that Senior Constable Irwin was mistaken in his belief, let alone an indirect or improper purpose. 378 Nettle J continued referring with approval to Professor Fleming's text Law of Torts 9th ed. (at page 683): As Fleming says it, it is not enough to adduce reasons of non-belief without showing that they were operative. 379 The plaintiff has not established that Const. Irwin did not believe in the charges he preferred." (Emphases in original.)
12. To an extent, the plaintiff's case was based on a "conspiracy theory" or, better, a "conspiracy hypothesis" which the plaintiff's schedule of damages (MFI25) refers to as "the trap". It is postulated that the behaviour of the plaintiff and Mr Tanner at the Rose Bay Police Station prior to the plaintiff's deciding to drive home annoyed, upset or otherwise, provoked the Rose Bay Police in general. The innuendo, and I use that word advisedly, is that when Probationary Constable Homard photographed the driver's licences of the plaintiff and Mr Tanner he did so for a motive other than the easy recording of their personal particulars. It is common ground that Probationary Constable Homard checked the plaintiff's licence details with the RTA records at 2:46:44am on 5 August 2011, for a reason that has not been explained. It might merely be that he hadn't engaged in that procedure before. That check, of course, succeeds the time when Probationary Constable Trifunovic left the police station, 2:46:12 and when Constable Irwin left the police station, 2:46:14. It was never suggested that, for example, Constable Homard gave copies of the plaintiff's driver's licence and/or Mr Tanner's driver's licence to Constable Irwin or Probationary Constable Trifunovic, or that he somehow communicated to either of those gentlemen what he ascertained by consulting the RTA records, as they were then called, at 2:46:44.
13. It has been suggested that the motive of Constable Irwin in pursuing the plaintiff from the Rose Bay Police Station to the plaintiff's home was not to talk to him about an illegal right-hand turn, but to arrest him, to catch him in the act of driving whilst under the influence of alcohol, when it was suspected by some of the Rose Bay police that he was intoxicated. However, if that were the intention of the police "generically", they could have arrested him immediately after he sat behind the steering wheel of his vehicle, before he ever made the three-point-turn which commenced his drive from the Rose Bay Police Station to 2B Victoria Road, Bellevue Hill.
14. Inferentially I am asked to accept that perhaps Constable Irwin or Probationary Constable Trifunovic or both of them, and perhaps all of the police involved at the Rose Bay Police Station, had some homophobic motivation. This is conjecture, this is speculation, there is no evidence at all to support that. I accept that Constable Irwin was acting in good faith. If he were acting mala fide why would he not have "loaded" a large number of charges against the plaintiff? He could have added a charge of illegal parking. He could have added a charge of making an illegal right-hand turn. If the plaintiff had been driving in lane two of two, and turned left from that lane, he could have charged him with making an unlawful left-hand turn. Insofar as the plaintiff was protesting his arrest, he could have charged him with hindering police in the execution of their duty. He did not. Furthermore, the mala fides is gainsaid by the plaintiff's asking Constable Irwin and Probationary Constable Trifunovic for a lift home, and their giving him that lift home.
15. As to the suggestion that Constable Irwin was acting maliciously because he knew that he ought not arrest the plaintiff when he was "at home", that is gainsaid by what was said to Constable Irwin by Sergeant Lehmann, by Inspector Sipos, and, inferentially, by Police Traffic Services. It is also gainsaid by the fact that it took in a ten day hearing, three barristers and a judge, at least two days to debate and argue the case of whether the plaintiff was arrested "at his home" or not. One could not say that the defence case as to the place of arrest was unarguable or doomed to failure. I accept that the prosecution was brought in good faith. Therefore, the third element of the tort of malicious prosecution has not been established, and the plaintiff must fail in respect of that tort.
16. That brings me to the final element of the tort, that the prosecution was brought or maintained without a reasonable and probable cause. In A v State of New South Wales the plurality said: "76. The absence of reasonable and probable cause will not in every case be shown by demonstrating that the prosecutor had no positive belief that the accused person was, or was probably, guilty. In particular, references to belief in guilt, or more properly, the absence of belief in guilt, will very likely prove distracting in any case where the prosecutor may not be supposed to know where the truth lies. A case where the prosecutor acts on the statements of others is one example of such a case. 77. There are three critical points. First, it is the negative proposition that must be established: more probably than not the defendant prosecutor acted without reasonable and probable cause. Secondly, that proposition may be established in either or both of two ways: the defendant prosecutor did not "honestly believe" the case that was instituted or maintained, or the defendant prosecutor had no sufficient basis for such an honest belief. The third point is that the critical question presented by this element of the tort is: what does the plaintiff demonstrate about what the defendant prosecutor made of the material that he or she had available when deciding whether to prosecute or maintain the prosecution? That is, when the plaintiff asserts that the defendant acted without reasonable and probable cause, what exactly is the content of that assertion?"
17. The plaintiff in the current proceedings did not take the customary step of tendering the police brief. That occurred, for example, in Hamod v State of New South Wales [2011] NSWCA 375 per Tobias JA at [33], and in State of NSW v Hathaway [2010] NSWCA 184 at [180]. In the current matter the contents page of the brief of evidence forms part of exhibit L. That lists 18 items. They are: "1. Witness list. 2. Court attendance notice. 3. Facts sheet. 4. Constable Irwin's statement. 5. Constable Irwin's notebook entry. 6. Probationary Constable Trifunovic's statement. 7. Probationary Constable Trifunovic's notebook entry. 8. Exhibit photographs 1 - 21. 9. Breath analysis operator notes and results of test. 10. CCTV footage of Rose Bay Police Station. 11. Documentation supplied by Woollahra Council relating to strata plan at location and maps relating. 12. Statement of Mark Fisher (Department of Lands). 13. Documentation supplied by Mark Fisher (Department of Lands). 14. Statement of Craig Jenner (Woollahra Council). 15. Documentation supplied by Craig Jenner (Woollahra Council). 16. Section 230 certificate. 17. Traffic record. 18. Criminal history." The third item, the "Facts sheet" was admitted with a limitation as to its use. The plaintiff successfully objected to the tender of Constable Irwin's statement. The sixth item, the statement of Probationary Constable Trifunovic, was admitted, but on a limited basis, not as proof of any fact in issue. Of the police photographs, only those numbered 1 to 11 were admitted in evidence, the major part in exhibit N, and that numbered 3 as exhibit 9, but those comprising exhibit N had the limitation that the captions were not part of the evidence. The items which are numbered 12 to 15 were never put into evidence.
18. The defendant has submitted that the omission to put the contents of the police brief before this Court is fatal to the plaintiff's malicious prosecution claim. The defendant submits that the Court cannot know what Constable Irwin had before him, what he made of it, and what he determined in reliance upon that material. Those submissions are correct. I do know that Constable Irwin was provided with opinions by his superiors, Sergeant Lehmann, Inspector Sipos, and Police Traffic Services, and a prosecutor is entitled to take such advice into account. Many litigants take advice from their lawyers, fortunately. Unfortunately for some litigants, that advice can be incorrect. In State of NSW v Hathaway, Tobias, McColl and Macfarlan JJA said at [180]: "The primary judge accepted…that the whole of the police brief was in evidence before her for the purpose of identifying the material available to Briggs at the time he charged the respondent and when the proceedings relating to those charges were heard in the Local Court." It was the plaintiff's obligation to discharge the burden which he bears and to do so he ought tender the brief and cross-examine Constable Irwin about its contents. That was not done in this case. These remarks are strictly obiter in light of my finding as to malice, but the point needs to be made. The defendant's written submissions, which in my view are correct, continue thus: "349 Senior Constable Irwin was not asked (in any detail) about the content of the brief. 350 Senior Constable Irwin was not asked about what he made of the content of the brief. 351 The plaintiff did not even attempt to demonstrate that the brief contained (subjectively or objectively) less than was required (i.e. that the material was insufficient to establish reasonable and probable cause for the charges). 352 The plaintiff was required to tackle that issue. 353 In Glinski v. McIver (1962) AC 726 (at 758), Lord Denning held: In order to succeed in an action for malicious prosecution, the plaintiff must prove to the satisfaction of the judge that, at the time when the charge was made, there was an absence of reasonable and probable cause for the prosecution. 354 Senior Constable Irwin was not cross-examined in respect of the required matters. EXHIBIT L makes plain that there is much that Senior Constable Irwin had before him that was not the subject of any cross-examination. 355 Further, in A v. State of New South Wales (ibid) the Court held (at [80] and [81]) that: ...unless the prosecutor is shown …not to have honestly formed the view that there was a proper case for prosecution... the element of absence of reasonable and probable cause is not established. … The expression "proper case for prosecution" is not susceptible of exhaustive definition… it will require examination of the prosecutor's state of persuasion… (and the focus is not what is reasonable and probable cause, the focus is that the plaintiff must prove the absence of reasonable and probable cause) […] 356 That is, the plaintiff must establish the negative proposition - that Senior Constable Irwin did not believe that there was a proper case for prosecution. 357 On that material alone, there was plainly reasonable and probable cause to place the plaintiff before Court to answer the charge of driving whilst under the influence." (Emphasis in original.)

Detinue

1. Before going to the question of damages, I shall speak briefly about the tort of detinue, despite the fact that it was formally abandoned. In the United Kingdom the tort of detinue was abolished by the Torts (Interference with Goods) Act 1977. However, my copy of Bullen & Leake, Precedents of Pleading (13th) tells me this: "The distinction between detinue and a conversion used to be that with the former mere possession adverse to the rights of the person entitled to possession was sufficient, and it was unnecessary to show any intention to deal with the goods in a way inconsistent with those rights. In practice, however, a demand by the person with possessory title, followed by an unjustified refusal to delivery up was treated as a conversion, thus rendering detinue largely otiose even before its abolition in 1977. A demand is necessary before the detention will be actionable (Clayton v Le Roy [1911] 2 KB 1031) and the defendant must be in possession at the time of the demand. If he is not, then there is no conversion by detention (although there may have been an earlier conversion by transfer - Featherstonehaugh v Johnson (1818) 8 Taunt.2377. The demand must be unconditional (Rushworth v Taylor (1841) 3 QB 699) and the refusal must also be unconditional. A detainer may be entitled to a reasonable time in which to make inquiries but, once that has elapsed, whether or not the detainer is satisfied as to the claimant's rights, he must hand over the goods (Alexander v Southey (1821) 5 B.&Ald 247)." Paragraph 13 of the statement of claim includes this plaint: "The plaintiff demanded that his goods be returned to him by the police officers referred to above, at the time of his wrongful arrest. The arresting officers refused that demand." However, there was no evidence of any such demand or any such refusal in the plaintiff's evidence, and one can therefore understand why the claim was abandoned.

A summary thus far

1. A summary thus far is that the plaintiff has established that he was wrongfully arrested and therefore he has established the tort of wrongful imprisonment. The plaintiff has also offered some evidence that an assault and battery was committed upon him, the evidence which I quoted at [104] - [105] supra. From exhibit 19 it is objectively established that the plaintiff was arrested at approximately 2.52am on the morning of Sunday 5 June 2011. Exhibit 4 shows that the plaintiff was released at 4.21 on that day, but I do know that the plaintiff signed exhibit 14, the receipt of records, at 4.24am. I shall take that time as the time he was released from custody. That indicates that the plaintiff was in custody for 1 hour and 32 minutes.

Findings on damages

1. I have already recited the plaintiff's evidence about the circumstances in which he perceived himself during this period of arrest. I have hesitation in accepting the plaintiff's evidence about the puddle of urine on the floor of the dock. The evidence is that the floor of the dock has an inclination towards the open area of the police station. There is now a drain outside the entrance to the two docks, which was not there at the relevant time. Any urine deposited on the floor would flow out of the docks towards the common area of the police station. Sergeant Savins, whose evidence I have no hesitation in accepting, clearly did not perceive any such deposit or flow of urine into the common area of the police station where he actually worked. Much of the plaintiff's evidence was hyperbolic. There may have been some stale urine on the floor, but not the extent of the puddle to which the plaintiff deposed. Equally, Sergeant Savins said that there was an unpleasant smell in any event in the area where the docks are at the Waverley Police Station and one can understand the plaintiff's reacting unfavourably to a bad smell.
2. Other relevant evidence of the plaintiff relating to damage following upon his arrest is this, commencing at T 38: "Q. How were you feeling? A. I was shocked, I'd gone to the police looking for help and then all of a sudden they're chasing me home and arresting me. So I was upset, embarrassed, I was in a state of shock, this has never happened to me before. Q. Were there any other witnesses to your arrest? A. The lady that pulled out in the red car, I tried to locate her but I think she was a friend so she wasn't anyone that lived there. And several other people in the building heard and were looking out their windows but I wasn't terribly focused. Later, when I talked to people who lived in the unit block, others said yes, they witnessed or heard a commotion going on, and that there was police stuff going on. Q. So you formed the view that other people you live with had seen you being arrested? A. Yes. And everyone knew, everyone knew about it. It's a there are three buildings, it's full of a lot of older people who tend to gossip and talk a bit and stuff and, and it was, it was the talk of the town. Q. How did that make you feel? A. I was very embarrassed and it, it changed the way people in that building block treated us. We, from that point on, we were treated pretty badly and I, I tried to get my landlord to help with my issues and I was told by our estate agent to not contact him at all and then we were evicted when my lease expired." However, much of that is hyperbolic and needs to be contrasted with the evidence that was given in cross-examination. That evidence can be found on T 173 to the top of T 175. It being now 4 o'clock, I shall not recite it in full. However, it is clear that there were difficulties in any event with the landlord about parking: a disagreement with a member of the owner's family about blocking the plaintiff's access to his driveway by the parking of a big car, an infestation of cockroaches and a, "crappy kitchen," and, "weird neighbours," which led to this amusing interchange: "Q. Weird neighbours. A. Do you want, I, I could share some stories that would make your head curl, so yes, weird neighbours. Q. The point is-- HIS HONOUR Q. He's already got a curly wig, don't bother. A. You wouldn't believe."
3. I can readily accept that being arrested and taken into custody would have shocked the plaintiff. I accept that he would have been greatly inconvenienced for the 1 hour and 32 minutes he was in custody. I accept that there may have been some reaction at the three blocks of home units surrounding the carpark which has been the subject of consideration in this judgment. I accept the plaintiff probably did feel the need to urinate and was delayed in being offered toilet facilities, but again, I believe that some of his evidence clearly suffered from exaggeration.
4. However, it is always to be borne in mind that the highest penalty known to the law in this State and in this nation is imprisonment, and the courts regard the liberty of the subject to be one of the greatest values that the law can protect. There is one complicating issue on the issue of damages which requires some discussion of the law, and I will continue that tomorrow morning.

Civil liability and intentional torts

1. When I adjourned yesterday afternoon, I had reached the stage where I was discussing damages and pointed out that a legal question arose on the question of damages. That legal question arose because a submission was put to me by Mr Hutchings for the defendant. Mr Hutchings drew my attention to the decision of Barr AJ in Flight Centre Ltd v Louw [2011] NSWSC 132; (2010) 78 NSWLR 656. The first four paragraphs of the headnote conveniently set out the argument that he raised. They are these: "Section 16(1) of the Civil Liability Act 2002 (the Act) provided that no damages were to be awarded for non-economic loss unless the severity of such loss was at least 15% of a most extreme case. Section 3 of the Act defined 'non-economic loss' to mean, relevantly, 'pain and suffering'. Section 11 of the Act defined 'injury' to mean personal injury including, relevantly, 'impairment of a person's physical or mental condition', and 'personal injury damages' to mean, relevantly, damages which related to injury to a person. Section 27 of the Act defined 'mental harm' to mean 'impairment of a person's mental condition', 'consequential mental harm' to mean 'mental harm that is a consequence of a personal injury of any other kind', and 'pure mental harm' to mean 'mental harm or other than consequential mental harm'." The effect of Mr Hutchings' submissions was then to refer to the first holding contained in the headnote which is this: "A person's experience of inconvenience, distress and disappointment constituted impairment of that person's mental condition so as to amount to personal injury, and the pain and suffering caused thereby was non-economic loss for the purposes of s 3 of the Civil Liability Act 2002." Mr Hutchings argued that what was claimed by the plaintiff to be circumstances requiring the awarding of aggravated damages amounted to a claim for impairment of the person, of the plaintiff's mental condition, and therefore amounted to a claim for personal injury damages.
2. That caused me to go to earlier case law and read State of New South Wales v Ibbett [2005] NSWCA 445; (2005) 65 NSWLR 168, and State of New South Wales v Corby [2010] NSWCA 27; (2009) 76 NSWLR 439. In Ibbett, the plaintiff alleged trespass to her property and assault by a police constable on 23 January 2001. The trial judge awarded $25,000 in damages which comprised an amount of $15,000 by way of general damages for the assault and $10,000 by way of exemplary damages for the conduct of the police constable who had threatened the plaintiff by turning to her with his police service pistol pointed at her. At [188] Basten JA pointed out that no challenge had been brought by the State to the award of general damages, which were for "anxiety and distress caused by the assault", on the basis that the assault caused no medically identifiable injury, either by way of physical or psychiatric condition. In that case, the State challenged the award of exemplary or punitive damages. The Court was concerned in Ibbett to construe the various provisions of the Civil Liability Act 2002. At [203] Basten J pointed out that an intentional act, at least if done with intent to injure, takes a matter outside the operation of the Civil Liability Act, by virtue of s 3B(1)(a). His Honour then pointed out that in relation to the question of aggravated damages, there was real doubt as to whether such damages could properly be awarded under the general law for a cause of action in negligence. His Honour pointed to the decision of the Court of Appeal in Hunter Area Health Service v Marchlewski (2000) 51 NSWLR 268 at [110]. His Honour said this at [205]: "The State sought to avoid this dilemma by calling in aid the principle that even an intentional tort such as an assault or trespass could be satisfied by negligent conduct: see Williams v Milotin (1957) 97 CLR 465. That argument should not succeed unless the term 'negligence' was construed as descriptive of conduct, rather than as importing the legal elements of a cause of action in negligence. For the reasons noted above, that conclusion is unattractive. Nevertheless, even if it be correct, and even if one can have negligent 'intentional torts', that construction should not be accepted for the purposes of the Civil Liability Act." His Honour then went on to refer to the history of the Act as justifying that conclusion. At [216] his Honour said this: "…accepting that the focus of s 21 is on damages in an action for negligence, the term 'personal injury damages', given the somewhat circular definitions in s 11, is a phrase probably intended to include any damages, which may properly be awarded in proceedings in negligence. That conclusion is confirmed by the fact that 'personal injury damages' is defined to mean damages that relate to the death of or injury to a person: s 11. The word 'damages' is defined in s 3 for the purposes of the Act and not merely the Part, to include 'any form of monetary compensation' with certain irrelevant exclusions. The definition of 'injury is limited to 'personal' injury, which would appear to exclude injury to property, but is otherwise inclusive rather than exclusive. Thus, although I agree that it is not necessary to answer the third question posited by the Chief Justice (at 170[4] supra), that is because the question cannot readily be separated from the second, but does not, in my view, suggest any additional restriction on the scope of s 21. However, his Honour's conclusion with respect to the second question, with which conclusion I agree, means that s 21 has no operation in relation to these proceedings." At [218] his Honour said this: "I accept the reasoning of the Chief Justice that the concept of 'injury' in s 3B(1)(a) is not restricted to, although it would include, personal injury. His Honour also concludes that, on the present facts, the act of Constable Pickavance, constituting the assault, was done 'with intent to cause injury': (at 171[16] supra). In the course of submissions, limited attention was paid to the scope or purpose of the phrase, and what precisely was intended to add to the concept of 'an intentional act'."
3. His Honour then went on to comment upon a then recent decision of the English Court of Appeal. The first conclusion reached by Basten JA was this: "The plaintiff was successful in her action, based on the intentional conduct of each of the constables. The awards for compensatory damages made in her favour were not based on negligence. Accordingly, s 21 of the Civil Liability Act had no operation."
4. In Corby the plaintiff was an offender in custody. It was held that compensatory damages could not be awarded to him because the degree of permanent impairment of the offender was not at least 15%. It was eventually accepted that the plaintiff was not entitled to aggravated damages because they are a form of compensatory damages. However, it was held that the plaintiff was entitled to claim exemplary damages. However, the relevant provision which the Court was there construing was s 26C of the Act which finds its place in Part 2A of the Act, which provides for "Special Provisions for Offenders in Custody". However, it is clear from s 26B(1) that that part of the Act applies not only to the tort of negligence, but to any other tort. With great respect to him, Mr Hutchings' reliance upon Flight Centre Ltd v Louw was misconceived because s 31 of the Civil Liability Act 2002 provides that there is no liability to pay damages for pure mental harm not constituting psychiatric illness, if the cause of action is in negligence.
5. Here, the relevant causes of action, assault and battery, and false imprisonment, are actions in trespass, not in negligence. I am unable to accede to the argument advanced by Mr Hutchings that the circumstances which the plaintiff claims entitle him to aggravated damages are governed by the Civil Liability Act 2002. In any event, the plaintiff specifically abandoned any claim for "personal injury damages" and drew my attention to the decision of the High Court of Australia in State of New South Wales v Williamson [2012] HCA 57; (2012) 248 CLR 417. In that case, French CJ and Hayne J said this: "32. The respondent sued the appellant for trespass to the person (alleging several instances of battery) and false imprisonment. He alleged that the batteries he had suffered had caused him personal injury, but it was far from clear that he alleged that the wrongful deprivation of his liberty had itself impaired his physical or his mental condition. 33. Often but not always, a battery will cause personal injury to the victim. False imprisonment is often accompanied by an assault and battery and the accompanying battery may (but need not[28]) cause personal injury. There may be cases where an act of false imprisonment itself causes psychiatric, even physical injury[29]. 34. Even assuming, however, that the respondent did allege that the act of wrongful imprisonment (as distinct from the batteries he alleged he had suffered) had caused him some personal injury, the claim for false imprisonment was necessarily a claim for damages on account of the deprivation of liberty with any accompanying loss of dignity and harm to reputation. The deprivation of liberty (loss of dignity and harm to reputation) is not an "impairment of a person's physical or mental condition" or otherwise a form of "injury" within s 11 of the Liability Act. The claim for false imprisonment, at least to the extent to which it sought damages for deprivation of liberty, is not a "claim for personal injury damages"." (Footnotes omitted.)
6. Here there is a claim for the deprivation of liberty with the accompanying loss of dignity and harm to reputation. There is also a claim for inconvenience, distress and disappointment. There is also a claim for anxiety and distress. There is no allegation that the plaintiff suffered any recognisable psychiatric illness and, although the plaintiff may have suffered depression and anxiety, there was no suggestion that he suffered from any depressive disorder or pathological anxiety state, rather the damage alleged is in essence interference with the plaintiff's emotional state. All of those conditions are compensable in an action based on an intentional tort such as assault and battery and false imprisonment, and such claims are not limited by the Civil Liability Act 2002.
7. There is no dispute in the current case that this case falls within s 3B(1)(a) of the Civil Liability Act 2002 because insofar as Constable Irwin and/or Probationary Constable Trifunovic laid hands upon the plaintiff in putting him into the back of RB15, they did so intentionally and intended the consequence of their act, and that insofar as Constable Irwin arrested the plaintiff and deprived him of his liberty, he did so with the intention of depriving the plaintiff of his liberty.

Assessing damages

1. The plaintiff's schedule of damages is MFI 25. The plaintiff claims general damages of $30,000 for loss of liberty and indignity, the humiliation and distress of the arrest, the indignity of having his personal property confiscated, the indignity of being arrested at his home, and the fact that this was the plaintiff's first arrest, and because he was required to undergo the forensic procedure of providing a sample of breath. The plaintiff also claims aggravated damages between $20,000 and $40,000 in respect of the "gay slurs" which I have not been persuaded were actually made, and because of being placed in a dock smelling of urine, the denial of access to toilet facilities, and the concern of the plaintiff for Mr Tanner, his life partner, being left alone and helpless as a result of the arrest of the plaintiff.
2. Mr Tanner is an adult. One would expect an adult to be able to fend for himself. Anyone who is arrested is necessarily removed from his or her loved ones, his or her immediate family or acquaintances. That is a normal consequence of arrest, in my view. Insofar as the plaintiff's concern was because of an implicit suggestion that Mr Tanner would be assaulted by other police at the Rose Bay Police Station, I am not persuaded that such occurred. Aggravated damages are merely a form of compensatory damages and I do not intend to award aggravated damages as such, but will award compensatory damages to compensate the plaintiff as fully as damages can for the anxiety and distress, humiliation and deprivation of liberty, to put things shortly, that the plaintiff experienced. As to the refusal to immediately provide toilet facilities to the plaintiff, I accept that it probably did occur, that the police were concerned to only allow the plaintiff to urinate after he had undergone breath testing, but the extent of the plaintiff's urge to micturate was, in my view, stated hyperbolically.
3. The defendant, through its counsel, Mr Hutchings, engaged in what might be thought to be an exercise in the application of comparable verdicts. He referred me to the decision of my colleague, Judge Elkaim, in Hage Ali v State of New South Wales [2009] NSWDC 266, Fernando v Commonwealth of Australia [2010] FCA 753; (2010) 271 ALR 521, Jindi v State of New South Wales (unreported, 28 March 2014, Sorby DCJ, 2013/74966), and my decision in Tilse v State of New South Wales [2013] NSWDC 265. I also bear in mind what was said in New South Wales v Delly [2007] NSWCA 303.
4. In Delly, on 20 June 1998, the appellant was arrested at her home in the early hours of the morning and taken to the Queanbeyan Police Station where she arrived at 8.30am. She was taken to the Anti-Theft Squad room where she remained in custody with her seven month old child until she was released at 12.30pm. The police had made a decision at 11am that she would not be charged with any offence, but did not inform her of that fact until shortly before she was released. At the time that the plaintiff was arrested, she was in bed, having been sleeping with her de facto husband. $25,000 was awarded for general damages, $10,000 for aggravated damages, and $25,000 for exemplary damages, together with interest in the sum of $10,360. The award was in respect of her false imprisonment. The Court of Appeal did not interfere with the award of general damages, but Ipp and Tobias JJA reduced the exemplary damages to $10,000. Ipp JA would have allowed no aggravated damages and reduced the award of exemplary damages to $10,000. Tobias JA reached the same conclusion. Basten JA, however, thought the total compensatory damages of $35,000 was appropriate and that no exemplary damages should be awarded. The majority decision therefore was that general damages of $25,000 was acceptable and that no aggravated damages ought to have been awarded and that the exemplary damages should have been reduced to $10,000 which, in the view of Ipp JA, was at "the highest end of the spectrum".
5. In Hage-Ali, the plaintiff had been named as the Young Australian of the Year for the State of New South Wales. The trial judge described her as "a bright young star whose luminescence was predicted to grow with the National Award on Australia Day 2007". She was arrested for the supply of cocaine and detained for three and a half hours, then released without charge. She was never charged at all. My colleague awarded her $7,000 for compensatory damages and $7,500 for a combination of aggravated and exemplary damages, together with interest in the amount of $4,205.
6. In Fernando, the Commonwealth was ordered to pay damages to the plaintiff of $3,000. The headnote gives me these particulars: "The applicant was falsely detained for one day by officers of the Commonwealth. From 6 October 2003, being the day the applicant informed the supervisor of the Perth Immigration Detention Centre he was going to challenge the cancellation of his visa, officers for the purpose of s 189 of the Act who held the applicant in immigration detention knew or reasonably suspected that his visa had been cancelled and that he was on that basis an unlawful noncitizen who was challenging that status... As the applicant was wrongfully detained for one day, the question of whether his mental condition was exacerbated by the lengthy period of his detention did not arise. The arrest of the applicant occurred at Acacia prison where the affront to his dignity and the humiliation would not have been exacerbated by the location of his arrest. Further, the fact that he had been in detention for more than five years before he was taken into immigration detention would have very substantially dissipated the extent of the affront to his dignity, which would otherwise have occurred, by being taken into immigration detention..."
7. In Tilse, I held that the period in which the plaintiff was held in custody was excessive. Commencing at [164] I said this: "164. As a result of my finding, the plaintiff is entitled to recover some damages, as I understand it. That is, the imprisonment for an hour in excess amounted to a period of false imprisonment. Counsel agree that the amount of time the plaintiff was kept in excessive custody, that is, for an extra hour, amounts to a period of false imprisonment for which she is entitled to recover damages. It is appropriate that the State of New South Wales pay the damages because it is the State of New South Wales that did not provide the resources to the Grafton Police that led to the plaintiff being detained in custody longer than she ought to have been detained. 165. The question then becomes what is the quantum of those damages. The authorities make it clear that the length of time is not of particular significance but the shock of being arrested is and a large amount of damages payable for false imprisonment comes from that initial shock. Here, the initial shock was because of a lawful arrest and, therefore, cannot be part of the wrongful imprisonment. The plaintiff was kept away from her home and her daughters and from what she might normally do for an hour between roughly 6.15 and 7.18pm on the evening of Sunday, 1 May 2011. Minds may differ as to the significance of such a period of custody. Doing the best I can, I assess the plaintiff's compensatory damages in the sum of $2,500. This is not a case in which aggravated damages or exemplary damages ought be awarded. There is nothing that Senior Constable Barnier or any other member of the Grafton Police did that in any way aggravates the damages. The damages arise because of inaction on the part of the police because they were involved with other activities. There is no particular conduct of any member of the police force to be condemned or which the Court should reprimand because the incurring of the damages was caused by a very common problem in our community, a lack of resources of Government to remedy mischief."
8. In Jindi, the plaintiff was 15 years old at the time of his arrest. He was locked in a police station cell for more than two hours without access to any support person who may have assisted him, in particular, his mother. He only had a bed with a mattress. His Honour awarded $8,000 in damages.
9. However, every case must be based upon its own facts. At the end of that part of my judgment given on 2 June 2015, I recited the facts which could amount to assault. For that assault, I believe that compensatory damages of $500 are sufficiently adequate. Here, the false imprisonment commenced when the plaintiff was taken into custody on the driveway to his residence. I accept that the presence of the police car with flashing lights in the driveway, together with the "whoop-whoop" signals emitted by RB15 as it followed the plaintiff up the driveway, would have alerted some of the nearby residents to what was going on. I can readily accept that the plaintiff's indignity in being arrested came to the attention of some of his neighbours. I can readily accept that, for a short while at least, there would have been much gossip about what happened to the plaintiff in the early hours of 5 June 2011 which added to his humiliation and indignity. In awarding damages of false imprisonment, it must always be borne in mind that the most severe penalty known to our law is imprisonment. Here, the plaintiff was imprisoned for 1 hour and 32 minutes, in the circumstances which I have sought to outline, subject to my findings as to the overstatement by the plaintiff of the effects of the imprisonment on him. Clearly much younger plaintiffs have been awarded modest sums of damages. However, the young are often more resilient than the old. I would not categorise Mr Rook as an "old man" but somebody who was about to enter or entering middle age. However, he was not dealt with in any contumelious way by either Constable Irwin, Probationary Constable Trifunovic or by Sergeant Savins at the Waverley Police Station. I accept that there may have been a small deposit of urine on the floor of his cell, causing a smell, and a bad odour was acknowledged by Sergeant Savins to be present in the custody area of the police station in any event. Doing the best that I can, I believe an award of $9,500 to be adequate to compensate the plaintiff for all of his unfortunate experiences whilst in custody.
10. The total of the compensatory damages is accordingly $10,000. The parties agreed that the multiplier for interest was 0.289. That means that the amount of interest is $2,890. The total of those sums is $12,890. This is not a case in which to award exemplary or punitive damages. In the plaintiff's schedule of damages the plaintiff said that a reason to award exemplary damages was because the defendant was, in substance, although not in form, the New South Wales Police, and that there is a particular need for deterring police officers from acting unlawfully in the execution of their duty. I readily accept that there is a need for deterring police officers acting unlawfully in the execution of their duty. However, as I have already pointed out, the question as to whether the plaintiff was at "home" and therefore whether he could be arrested or not under the Road Transport (Safety and Traffic Management) Act 1999 was a debateable point, as these proceedings have shown.
11. In the circumstances it is inappropriate, in my view, to award punitive or exemplary damages. Summarised in the plaintiff's schedule of damages is also this, "the encouragement of police that the plaintiff drive", part of a thesis which I have not accepted. The final one is "the trap", meaning some form of conspiracy, and again a reiteration of the alleged encouragement by the plaintiff to drive, facts which I do not accept. I accept that the plaintiff may have been told that, if he didn't need an ambulance, to take Mr Tanner to a hospital or emergency department, I am not persuaded given the evidence that I have heard that there was an actual encouragement by the police that the plaintiff drive Mr Tanner to a hospital, noting that it is not stated by the plaintiff, or indeed by anybody, that the police asked him how he had travelled from, for example, the Sydney Opera House or Oxford Street to the Rose Bay Police Station.

Ex turpi causa non oritur acito

1. A remaining matter which I should canvas is the defence pleaded that ex turpi causa non oritur actio. Mr Hutchings referred me to the decision of the Court of Appeal in Hunter Area Health Service and Another v Presland [2005] NSWCA 33 and the decision of the English Court of Appeal in Vellino v Chief Constable of Greater Manchester [2001] EWCA Civ 1249. The Court was there constituted by Schiemann and Sedley LJJ and Sir Murray Stuart Smith. At [57] Sedley LJ quoted from the judgment of Bingham LJ in Saunders v Edwards [1987] 1 WLR 1116: "…on the whole the Courts have tendered to adopt a pragmatic approach to these problems, seeking where possible to see that genuine wrongs are righted, so long as the Court does not thereby promote or countenance a nefarious object or bargain which it is bound to condemn. Where the plaintiff's action in truth arises directly ex turpi causa, he is likely to fail…Where the plaintiff has suffered a genuine wrong, to which the allegedly unlawful conduct is incidental, he is likely to succeed…"
2. Here, the defendant says that the plaintiff was guilty of driving whilst under the influence of alcohol, he ought not to have been driving, he was guilty of a PCA offence, he escaped "on a technicality". That may be so, but the plaintiff's "injury" arose from his unlawful arrest and not directly from his unlawful conduct in driving. There are competing policy considerations. Of course there is the policy consideration that persons who are intoxicated and thereby are rendered less able to drive their motor vehicles should be kept off the streets. There is also the public policy consideration that police powers ought not be exceeded, especially where they deprive the subject of his or her liberty. In my view, this defence must fail.

Civil Liability Act 2002 section 54

1. The defendant raised a defence under s 54 of the Civil Liability Act 2002. That section carries a heading, "Criminals not to be awarded damages". The section provides this: "54 Criminals not to be awarded damages (1) A court is not to award damages in respect of liability to which this Part applies if the court is satisfied that: (a) the death of, or the injury or damage to, the person that is the subject of the proceedings occurred at the time of, or following, conduct of that person that, on the balance of probabilities, constitutes a serious offence, and (b) that conduct contributed materially to the death, injury or damage or to the risk of death, injury or damage. (2) This section does not apply to an award of damages against a defendant if the conduct of the defendant that caused the death, injury or damage concerned constitutes an offence (whether or not a serious offence). Note : Sections 52 and 53 can apply to prevent or limit recovery of damages even though the defendant's conduct constitutes an offence. (3) A "serious offence" is an offence punishable by imprisonment for 6 months or more. (4) This section does not affect the operation of the Felons (Civil Proceedings) Act 1981. (5) This section operates whether or not a person whose conduct is alleged to constitute an offence has been, will be or is capable of being proceeded against or convicted of any offence concerned." The serious offence pleaded by the defendant is driving with a midrange prescribed concentration of alcohol contrary to s 9(3) of the Road Transport (Safety and Traffic Management) Act 1999 which was punishable by imprisonment for a term not exceeding nine months and, probably in the alternative, using or attempting to use a vehicle whilst under the influence of alcohol or any other drug pursuant to s 9 of the same Act which is punishable by up to nine months imprisonment. Of course, the plaintiff was found not guilty of driving with a midrange prescribed concentration of alcohol, but he was never charged with driving whilst under the influence of alcohol, although it would be certainly arguable that he was. However, here I am not persuaded on the balance of probabilities that the plaintiff's conduct, as such, materially contributed to his injury. What caused the injury, namely, his unlawful detention, was the misapprehension of the applicable law by Constable Irwin. In my view, the defence under s 54 of the Civil Liability Act must be rejected.
2. HIS HONOUR: Any further reasons for judgment required, gentlemen? WONG: Not from me. LEE: No.
3. HIS HONOUR: I have enquired of the solicitors for the parties whether, after three days of giving judgment, any further reasons are required. I am told that none is so required. Before making a final order, I must observe this. The estimate of the case was five days. The evidence took the whole of six days and until the morning tea adjournment on the seventh day, Tuesday 26 May 2015. I was then implored by counsel to give them the rest of the day out of Court in order that they could prepare written submissions to which they could speak on the following day, and that would ensure that the submissions were finished by the end of the eighth day, Wednesday 27 May 2015, and that in the remaining two days of last week, I would be able to give this judgment. On that Wednesday I was implored by counsel to give them further time to complete their written submissions, and I returned to the bench at 11.30. The short oral addresses to the written submissions did not conclude until last Friday at 4 o'clock, the tenth day of the trial. I commenced giving these reasons on Monday afternoon after conducting a call over on Monday morning. It is now 12.25 on Thursday and I have not had a morning tea adjournment so far today. So much for the estimates of legal practitioners as to the length of time that a case will take. This case has taken, all told, 13 days.
4. For those reasons, I give verdict and judgment for the plaintiff against the defendant for $12,890. I propose that costs follow the event.

DISCUSSION AS TO COSTS BEING STOOD OVER AND AVAILABLE DATES

LUNCHEON ADJOURNMENT HIS HONOUR: The matter of Rook v State of New South Wales is stood over for argument on costs at 2pm on Wednesday, 10 June 2015. ADJOURNED TO WEDNESDAY 10 JUNE 2015 AT 2.00PM

Special damage

1. The plaintiff claimed as a head of damage the actual cost to him of defending the prosecution brought against him in the Local Court. I inadvertently omitted to include that head of damage in my earlier assessment. That at least part of those costs could be awarded to the plaintiff was conceded by the defendant in its oral submissions. Certain costs orders were made in favour of the plaintiff in the Local Court and I am told that one was made against him. All told, the net out-of-pocket expenses of the plaintiff as a result of the prosecution were $12,000. The total of that sum cannot be recovered by the plaintiff because he unsuccessfully defended one of the three charges against him. However, it appears to me from what I have seen of the transcript of the proceedings in the Local Court that the prosecution for that one offence would have only occupied probably a half day of hearing compared to the two days of hearing that actually occurred in the Local Court. That part of the plaintiff's costs could be recovered in these proceedings was conceded by learned counsel for the defendant, Mr Hutchings, who drew to my attention the decision of the Court of Appeal in State of New South Wales v Koumdjiev [2005] NSWCA 247; (2005) 63 NSWLR 353. The decision of the Court was given by Hodgson JA with whom Beazley JA and Hislop J concurred. His Honour, under the heading, "Costs of criminal proceedings", said this: "66. Mr. Menzies submitted that the costs incurred by the plaintiff in successfully defending the criminal proceedings brought against him should not have been included in the damages, because costs cannot be recovered where they have been previously declined by a court having power to award costs (Hawkins v. Permarig Pty. Ltd. [2004] QCA 76, Lotor v. Deveraux [1832] EngR 436; (1832) 3 B&Ad 343); and because damages can be recovered for wrongful arrest only up to the time of remand or bail (Diamond v. Minter [1941] 1 KB 655). 67. In my opinion, there is no general rule to the effect that a plaintiff cannot recover in civil proceedings the amount of costs incurred in defending criminal proceedings. The issue before a court that decides criminal proceedings is only whether the case against the accused is proved beyond reasonable doubt; and such a court is rarely in a position, in deciding whether to award costs, to determine all the facts relevant to the merits or otherwise of the bringing of the proceedings. Costs are rarely awarded in criminal cases. In civil cases where malicious prosecution is proved, damages routinely include the costs of defending the proceedings. 68. I accept that, where a person is wrongfully arrested on a charge that arises separately from the circumstances of the arrest, there are generally no damages awarded in relation to the progress of the charges after the time of remand or bail, unless malicious prosecution is proved. However, I do not accept that this applies where the charges themselves arise from the circumstances of the wrongful arrest and associated assaults by the police. But for the police assault and wrongful arrest of the plaintiff, there would not have been any charges against him. In my opinion, the charges against the plaintiff were directly caused by the police assaults and wrongful arrest, and that accordingly the costs incurred in defending them can be included in the damages." Here, as in Koumdjiev, there was an assault and battery upon the plaintiff as well as a false imprisonment following an arrest which was held to be unlawful.
2. As I understand it, the total of the plaintiff's out-of-pocket expenses amounted to some $15,000 of which the net sum still outstanding is a sum of $12,000. Doing the best I can it appears to me that the plaintiff is able to recover in these proceedings a sum of $5,000. For those reasons I, pursuant to UCPR r 36.17 I set aside the judgment entered on 4 June 2015.

SUBMISSIONS ON INTEREST ON THE ADDITIONAL SUM OF $5,000

1. I shall allow interest at 7%. Interest at 7% on that sum for two years is $700.
2. I give verdict and judgment for the plaintiff against the defendant for $18,590.

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