Sadler & State of Victoria v Madigan [1998] VSCA 53

39. The liability of the second appellant, State of Victoria, was alleged to arise through the tortious acts of Sadler as its servant or agent (s.23 (1)(b) Crown Proceedings Act 1958 ).

42. In his defence to Madigan's claim for false imprisonment, Sadler contended that his detention of Madigan at the police station was justifiable at the outset, as was conceded, and remained justified throughout the whole period claimed; that is until the interview began at about 6.15 p.m. In support of the contention that the detention was justified, he relied upon the provisions of s.464A (1) and (4) Crimes Act 1958 which provide, so far as relevant, that "every person taken into custody must be ... released unconditionally ... within a reasonable time of being taken into custody" (s.464A (1)(a) Crimes Act). Sadler contended that the 1¾ hours during which Madigan was detained was reasonable having regard to the number and complexity of offences which the police had to investigate, the need for the investigators to collate relevant material and take other steps necessary by way of preparation for interview, the number of people who needed to be questioned and other matters reasonably connected with the investigation (s.464A (4) of the Act). It was also put on Sadler's behalf that Madigan was only detained by him so long as he (Sadler) was in the interview room with Madigan; and that he had not been there for longer than « hour until 5 p.m.

45. The issues going to the justification by Sadler for Madigan's imprisonment were the subject of dispute between the parties. Madigan's counsel contended that there was no basis to be found for suggesting that the provisions of s.464A (4) Crimes Act justified the detention prior to interview beyond 5 p.m. and that the detention had been prolonged beyond that period for the improper purpose of humiliating Madigan as a "pay-back" for what he had done to White who was Sadler's "buddy".

48. Sadler also contended that the "strip-search" which he made of Madigan in the interview room did not constitute an unlawful assault. He wholly denied that he had subjected Madigan to an anal search. His evidence was that he had conducted a strip-search which was justified for two reasons - firstly because it was, in his opinion, necessary to determine whether Madigan was carrying a concealed weapon with which he might inflict injury upon himself or others; secondly because he had reasonably formed a suspicion that Madigan might be concealing illicit drugs, namely amphetamines. This suspicion, he said, he formed because of Madigan's appearance, his irrational behaviour, and the information which he had received from Illingworth that Madigan had been in company with a member of the Hell's Angels Motor Cycle Club who had been found with a large sum of cash. Members of that Club, he said, were well known to have been involved in the manufacture and distribution of amphetamines.

51. Quite apart from what he contended were lawful justifications for such a search, he said Madigan had willingly consented to the search. He denied further having made any threat to Madigan that, if he did not consent, the search would be forced upon him.

54. These, then, were the issues as to liability which the jury were asked by the parties to determine. So far as the claim for damages was concerned it would appear from reading the transcript that little attention was addressed to differentiating the consequences to Madigan arising from the false imprisonment and those arising from the assault. However it is tolerably clear from the transcript of the final address of Madigan's counsel, and indeed from the evidence, that it was being alleged that many of the residual disabilities flowing to Madigan resulted from the alleged assault, insofar as it was contended that the perceived sexual connotations engendered by the anal search had revived boyhood memories in Madigan of sexual abuse by his school-teachers and that this, in turn, had played upon a pre-disposed fragile personality to the point where he had suffered a complete and unresolved psychological break down. This, as it seems to me, was the effect of the evidence of Dr. Sime, a qualified psychiatrist who was called on behalf of Madigan. It was put that Madigan needed continuing counselling in this respect and a claim for future economic loss was accordingly made.

57. However it was also claimed on Madigan's behalf that he was entitled to a substantial award of damages for the hurt, humiliation and loss of reputation caused by the unlawful imprisonment, no matter how long or how short it was found to be. It was claimed that such damages should include aggravated and punitive damages because Sadler had gone out of his way to increase the humiliation of Madigan firstly by seeking to intimidate him by long periods of imposed silence and refusal to answer Madigan's questions; and secondly by telling Madigan that he (Sadler) remembered Madigan from a period some five years previously when Madigan worked as a security officer at the Parkview Hotel. This according to Madigan had led Sadler to say to him contemptuously: "You were a smart arse then; and you're a smart arse now". It was put on Madigan's behalf that this conduct by Sadler revealed that conscious steps, including an unnecessary search, were being taken by Sadler to increase the discomfort of his imprisonment and revealed that his custody was being prolonged for the illegitimate reason of "making him pay" for what he was alleged to have done to White.

60. Against the background of these issues, the learned judge left five questions to the jury which were answered as follows:

Q1: "Did the first named defendant [Sadler] falsely imprison the plaintiff?"

Q2: "Did the first named defendant assault the plaintiff?"

Q3: "At what amount do you assess the plaintiff's general damages?"

Q4: "At what amount do you assess the plaintiff's exemplary damages, if any?"

Q5: "At what amount do you assess the plaintiff's total damages?"

75. It can be seen immediately that the jury's answers to the questions left to them by the judge demonstrate that, although they were satisfied that Madigan had made out his claim of false imprisonment, they were not satisfied that he had made out his claim of assault. Having regard to the way in which the case had been left to the jury, it is now conceded by Mr. Monester Q.C., who appeared with Mr. Houlihan for Madigan, that this must mean that the jury were not satisfied that an anal search of the type which Madigan alleged had been carried out by Sadler. This creates complications, to which I shall refer hereafter, because instructions to the jury on the question of damages had been given in a global fashion, as the questions themselves show, and there had been no attempt to differentiate between the damages which could be awarded for the assault and the damages which could be awarded for the false imprisonment.

79. Although the appellants, in their amended Notice of Appeal, raised a large number of grounds Mr. Golombek, who appeared for them on this appeal, confined his submission to such of the grounds as raised five issues:

1. that the learned judge had misdirected the jury on the question of false imprisonment because he had failed to adequately direct them, and/or had misdirected them, as to the period during which they could find that Sadler had imprisoned Madigan and, in doing so, had failed to distinguish between the issues of imprisonment on the one hand and justification for the imprisonment on the other;

2. that the judge had misdirected the jury by failing to distinguish between the damages, including aggravated damages, which could be awarded for false imprisonment and damages for assault;

3. that the judge had misdirected the jury, first by leaving to them the issue of exemplary damages and, secondly, by failing to distinguish between exemplary damages which could be awarded for assault and exemplary damages which could be awarded for false imprisonment;

4. that, in the result, the damages were excessive;

5. that the judge had erroneously exercised his discretion by ordering the defendants to pay the whole of the costs of the plaintiff.

The Issue Relating to Misdirection on False Imprisonment

88. Mr. Golombek submitted that the judge, in what seemed to me to be very full directions, materially misdirected the jury with respect to the issue of "imprisonment" as that word has been construed in the tort of false imprisonment. The issue, he contended, had become significant because of the manner in which the case had been conducted by the plaintiff. It was not in contest, as he correctly submitted, that the initial arrest and imprisonment were lawful. The issue was whether, and if so at what time, the imprisonment became unlawful. In resolving this issue, Mr. Golombek contended it was necessary for the jury to determine as a question of fact whether such period of imprisonment as they found to be unjustified was imprisonment by Sadler who was the only policeman sued and whose alleged wrongful conduct was the sole basis upon which liability was sought to be vicariously imposed on the State of Victoria (s.23 (1)(b) Crown Proceedings Act 1958 ; cf. Stubbe v. Jensen & Anor. [1997] 2 V.R. 439 at 440). It was submitted that if the jury was to find that the imprisonment was unjustified from a point in time when Sadler was not the plaintiff's custodian, then there could be no warrant for awarding damages against him. This then led counsel to the submission that there was a significant dispute at the trial as to the time during which Sadler had been the custodian of the plaintiff and that the judge had erroneously withdrawn that dispute from the jury.

91. As I have previously remarked, Sadler's evidence was that he had removed himself from Madigan's presence in the interview room at about 5 p.m. and that he had, thereafter, "had nothing to do with" Madigan. Mr. Golombek's contention was that this evidence raised an issue of fact as to the duration of Sadler's "imprisonment" of the plaintiff because the tort of false imprisonment involves proof by the plaintiff that there has been an intentional total restraint of the plaintiff's movement directly caused by the defendant or by someone for whose act he is responsible (Fleming on Torts, 9th Ed., at 31; The Law of Torts in Australia, Trindade & Cane, 2nd Ed., at 50).

94. Mr. Golombek submitted that the effect of his Honour's directions had been to remove what counsel described as "this critical issue" from the jury, first by directing them that the defendants had admitted imprisoning the plaintiff from the time when he was first arrested until the time when he was interviewed and, secondly, by misdirecting the jury after counsel for the defendants at trial had taken exception to his Honour's charge and, eventually, in response to a question by the jury.

97. The first misdirection came, it was said, when his Honour told the jury:

"Here the undisputed evidence is that the plaintiff was imprisoned from about 4.30 in the afternoon on 20 May 1993 to 6.15 when the interview commenced."

It was submitted that this was tantamount to telling the jury that it was "undisputed" that Sadler had imprisoned the plaintiff during the period referred to. Counsel for Sadler at trial took exception to this aspect of the judge's charge and, as a result, his Honour re-directed the jury pointing out the factual dispute between Madigan and Sadler and, further, told the jury that in any event, it was the plaintiff's contention that Sadler "had some sort of responsibility" for Madigan whether or not he was in the interview room. All counsel at trial appeared to be content with this direction and nothing more was done in respect of the issue until the jury returned with a question in the following form:

"The jury would like to know ... whether the responsibility of the arresting officer to the prisoner passes completely to the informant in such an investigation as the one that happened on 20 May 1993."

103. The question was not, in its terms, entirely clear as to the time in respect of which the jury was asking whether responsibility had passed from the "arresting officer" to "the informant". In the light of the evidence it would seem to have been directed to the time when Sadler, who was the "arresting officer" brought Madigan to the police station where Senior Constable Laing had assumed the role of "informant". In any event there was further discussion between the judge and counsel during which counsel for Sadler continued to maintain that Sadler's custody of Madigan "should be confined to the period he is ... by his presence (detaining Madigan)". Following this discussion, his Honour re-directed the jury and told them, inter alia:

"... my answer to your question, which was whether the responsibility of the arresting officer to the prisoner passes completely to the informant, is `No'. The responsibility of the arresting officer to the prisoner continues ... until the prisoner is charged with an offence or is released. When I said before in my directions to you that, if you accepted Sadler's evidence that he left the room at 5 p.m. and had no further contact with the plaintiff, then that was the end of any responsibility of his as far as the false imprisonment was concerned, I was wrong."

It would seem that, in giving this direction, his Honour was influenced by the provisions of s.458 (3) of the Crimes Act 1986 which was clearly not the section pursuant to which the arrest of Madigan was made. However that is not, as I see it, determinative of the issue which is now raised which is whether Sadler remained "responsible" for Madigan's imprisonment whether he was in Madigan's presence or not.

108. For my own part, I do not regard his Honour's instruction to the jury in this matter, in the context of the evidence given, and the cases respectively made by the parties, as a material misdirection. It seems to me that, although in his defence Sadler had denied that he had "imprisoned" Madigan, he had nonetheless admitted that Madigan was "in custody" at the police station for the whole of the period prior to interview and that, whilst at the station, he had been "directed by a senior member ... to keep an eye on the plaintiff whilst he was in the interview room until such time as members ... came to interview [Madigan]" (paragraph 4 of Amended Defence). During the course of argument on the appeal it appeared that Mr. Golombek was contending that these admissions did not amount to a concession that Sadler was "imprisoning" Madigan, as that term is understood in the tort of false imprisonment, because such imprisonment requires "the intentional and direct total restraint of movement" by the defendant of the plaintiff.

111. Although, as a matter of definition, this submission is correct, "total restraint of movement" does not necessarily imply direct presence or physical restraint. It is enough to prove "total restraint of movement" if there is a constraint upon the plaintiff's will so great as to induce him to submit to his deprivation of liberty (Watson v. Marshall & Anor. [1971] HCA 33; (1971) 124 C.L.R. 621 at 626; Symes v. Mahon [1922] S.A.S.R. 447 per Murray, C.J. at 453; Myers Stores Ltd. v. Soo [1991] VicRp 97; [1991] 2 V.R. 597 per O'Bryan, J. at 611, McDonald, J. at 625). In a case such as this where Madigan was arrested by Sadler, conveyed to a police station and placed in an interview room pending interview, there can be no doubt that he was "imprisoned" for the purposes of the tort of false imprisonment. Indeed that was the gist of the defendants' admission in paragraph 4 of their defence. Furthermore, whether Sadler was or was not solely responsible for Madigan's imprisonment, it was in my view the inescapable inference from the evidence that he was one of the persons jointly responsible for such imprisonment throughout the whole of the time during which Madigan was detained at the police station. It was not in dispute that he was the arresting officer; that he was, as such, responsible for Madigan, pursuant to Police Standing Orders, whilst he was in custody, and was one of the officers engaged in Madigan's investigation. In this respect the assertion made on his behalf that he had "nothing to do with" Madigan after he left the interview room stands in contrast to the admission made in the particulars to paragraph 4 of the defence that he had "been directed ... to keep an eye on [Madigan] while he was in the interview room until such time as [others] ... came to interview [Madigan]".

114. It was patently clear from the "game-plan" arranged between the police officers, including Sadler, at the police station as to the manner in which the investigation of Madigan would proceed that, at least, Laing, Sadler and Hermans were responsible for Madigan's custody at all times whilst he was at the station. Each was an "investigating official" within the meaning of s.464 of the Crimes Act because each assumed "functions and duties" in the investigation of the offences committed by Madigan. Indeed Sadler claimed that he had carried out the strip-search because he reasonably believed that Madigan may have been involved in a drug related offence. In the light of this evidence it defies common sense to suggest that each of these officers was severally responsible for the imprisonment of Madigan at particular times, as distinct from being jointly responsible for his total confinement. That confinement was clearly the result of the common design of the police officers and each was "active in promoting and causing the detention of the respondent" (Myers Stores Ltd. v. Soo, supra, at 617 per O'Bryan, J., 629-30 per McDonald, J.).

117. Accordingly, in my view, the direction which the judge gave to the jury, although founded upon the mistaken premise that Sadler's responsibility for the imprisonment of Madigan derived from s.458 (3) of the Crimes Act, was nevertheless a proper direction of law in the light of the undisputed evidence in this case.

120. It was also contended by Mr. Golombek that the judge's directions to the jury on the issue of imprisonment conflated that issue with the issue of the justification for the imprisonment. This argument, in large part, depended for its validity upon the correctness of the first submission, in the sense that the jury could not properly address the lawfulness of Sadler's imprisonment of the plaintiff until they had determined for how long the plaintiff was imprisoned by Sadler.

123. This argument loses much of its force once it is accepted that Sadler was jointly responsible for the total confinement of Madigan. The plaintiff's contention was that the imprisonment, initially lawful, had become unlawful because the defendants had detained him for an unreasonable length of time before releasing him contrary to their obligations under s.464A (1) of the Crimes Act. The judge had correctly told the jury that it was a matter for them to determine whether Sadler had justified the detention of Madigan by satisfying them that it was reasonable to keep him in the station for 1¾ hours before the interview began. Sadler had sought to justify that period by relying principally upon the reasons specified in s.464A (4)(b) and (c) of the Crimes Act, namely the number and complexity of the offences to be investigated, and the need of the investigating officials to read and collate relevant material or to take other steps reasonably necessary to prepare themselves for the investigations.

126. It was not contested by the defendants either at trial or before this Court that imprisonment, initially lawful, could become unlawful. Nor could it have been (Cowell v. Corrective Services Commission of N.S.W. (1988) 13 N.S.W.L.R. 714). Their defence to the claim of unlawful imprisonment was as I have stated. Once it is accepted, as I do, that the jury was bound to regard Sadler as responsible for the whole of Madigan's imprisonment, no fault can be found in his Honour's directions. His Honour carefully directed the jury that the onus was on the plaintiff to prove the fact of imprisonment; and that the onus was on the defendant to prove that the imprisonment was justified (cf. R. v. Bournewood Community & Mental Health N.H.S. Trust; Ex parte L. [1998] UKHL 24; [1998] 3 W.L.R. 107 at 124-5 per Lord Steyn). There was no conflation of the two issues by his Honour. There was nothing in his Honour's re-directions which, so far as I am able to see, was capable of causing confusion in the minds of the jury as to the task in respect of which they had been carefully directed.

129. I would, accordingly, reject grounds 1, 2 and 3 of the amended Notice of Appeal.

133. As I have already foreshadowed, the real difficulty which has arisen in this case, in the events which have happened, has occurred because his Honour directed the jury on the question of damages in a "global" fashion; and drew no distinction between damages which they might be entitled to award for assault and those which they could award for false imprisonment. Whilst little blame for this can, I think, be attached to the trial judge, having regard to the way in which counsel addressed the jury, it has none the less, in my opinion, caused the trial to miscarry because of the way in which the plaintiff's case had been put before the jury in respect of the two causes of action. Although the amended statement of claim suggests that two assaults were pleaded - one constituted by the strip search and the other by the alleged anal search - it seems clear enough from the final addresses of counsel that what was being alleged was one assault which was accompanied by circumstances of aggravation in the form of the "intrusive" anal search. This, no doubt, was the reason why the judge left only the one assault to the jury. The defences raised by the defendants to the claim of assault seem to me to have been three-fold. Firstly it was said that there was no threat of force as alleged by Madigan; secondly that, although it was conceded that a strip-search had been conducted, it was entirely consensual; and thirdly that the search, conceded to have been conducted, was authorized. Sadler simply denied the plaintiff's allegations of the intrusive anal search and conceded that any such search would have been entirely unwarranted, non-consensual and unauthorized. Having regard to the manner in which the issues were presented to the jury, the answer to question 2, as Mr. Monester conceded, must mean that the jury concluded that they were not satisfied that any intrusive anal search had occurred.

136. However, as the questions left to the jury themselves suggest, the directions given in respect of damages did not distinguish, or adequately distinguish, between damages for assault and damages for false imprisonment. Although the circumstances, which were alleged to comprise the assault, were an incident of the alleged false imprisonment, the evidence made it clear that the loss claimed by the plaintiff to have flowed from the assault (and, more particularly, the anal search) was in a substantial respect discrete from the loss claimed to have flowed from the false imprisonment. Madigan's allegation was that the sexual connotations involved in the alleged requirement to bend over and expose his anus had revived in him hitherto repressed memories of sexual abuse by his school teachers in early childhood and that the effect of their revival had played upon a fragile personality to which he was pre-disposed so as to lead him to the verge of, and perhaps beyond, a psychological breakdown which had, in effect, destroyed his life and required treatment which was still continuing. This claim was supported not only by the evidence of Madigan and his wife, but also by the evidence of Dr. Sime, an expert psychiatrist. Thus, Sime, inter alia, expressed the opinion that:

"... the whole situation at the police station, where he had to expose his anus, brought about vivid memories of sexual interference as a child, a situation which he was attempting to handle by suppressing these memories."

"... it could well be seen in this case that the exposure of his anus to the police had brought memories flowing back of these past events. In regard to these childhood sexual events, as I said, he was deeply disturbed by them in the present."

142. Sime expressed the opinion that such a revival of repressed memories was the cause of Madigan's "acute breakdown". It was, he said:

"... the strip-search situation, bearing in mind his earlier history, which is the most significant point."

146. It is not surprising, in the light of this evidence, that Madigan claimed that he was entitled to substantial compensatory damages as a consequence of these events. During the course of this appeal Mr. Monester contended that Sime's opinion was that, apart from the effect of the anal search, Madigan's breakdown was in part related to his inability to handle the "authoritarian confrontation" with police and that this was a product of the false imprisonment. However, quite apart from the fact that the matter did not appear to have been pressed in this way, the jury was not asked to consider whether such an "authoritarian confrontation" was a relevant cause of his breakdown in the light of the concession that the arrest and initial imprisonment was lawful.

149. Notwithstanding the distinctions which appear to have been drawn in the evidence between the losses flowing from the aggravated assault and those said to result from the false imprisonment, no directions were given impressing upon the jury these distinctions and everybody, including the judge, appears to have proceeded upon the basis that the approach to damages would be the same whether the jury found that both, or only one, of the causes of action alleged by the plaintiff had been made out. Thus the questions which the judge gave to the jury to answer, and the directions given in respect of them, invited the jury to consider the issue of damages in this conflated manner. Accordingly, having told the jury that they "would only get to consider question 3 if you have answered `yes' to at least one of the first two questions", his Honour went on to direct the jury on the issues of damages on the basis that their consideration would be the same regardless of whether they were considering damages for assault or damages for false imprisonment. Thus, his Honour directed them that, in considering an award of "general damages", the defendants were required to "take the plaintiff as they find him" and that the plaintiff would be entitled to an award commensurate with his disabilities notwithstanding that he was vulnerable to psychological trauma. He gave to the jury the "egg-shell skull" analogy. The jury were not told that, if they were not satisfied that the claim for assault was proved, they would have to carefully consider, in the light of the evidence, whether any amount of damages could be awarded for the psychological breakdown in respect of the claim for false imprisonment.

152. So far as I can see, the only specific comment which his Honour made when dealing with the concept of general damages differentiating between assault and false imprisonment, was when he was giving instructions as to how the jury should approach compensation for "loss of enjoyment of life". In that respect he said:

"If you find in favour of the plaintiff in respect of the claim of false imprisonment, you take into account under that head, injury to liberty, injury to reputation, including disgrace and loss of status, and injury to feelings ..."

But in the context of the charge as a whole, it seems to me that the jury were being asked to award such damages as an addition to, and not in substitution for, an award of general damages which were not, on the evidence, appropriate to the plaintiff's claim for false imprisonment.

157. Comments similar to those to which I have already referred, were made in the course of directions given in relation to aggravated damages. His Honour directed the jury that they could increase the compensatory damages which they awarded where they regarded "the manner in which the injury is inflicted increases the damage which would otherwise have resulted". His Honour told the jury that they could aggravate the damages if the defendants' acts caused humiliation to the plaintiff. He specifically referred to the evidence of "the plaintiff ending up naked and ... being told to bend over".

160. Again, when directing the jury about the circumstances in which they could award exemplary damages his Honour referred to the plaintiff's claim that Sadler's conduct involved "continuing the imprisonment beyond a reasonable time, and in carrying out a strip-search and the examination of his anus", conduct which, so it was claimed, was carried out for improper motives. Although his Honour reminded the jury that the "anal search" was in dispute, it was, I think, incumbent upon him to inform the jury that, if they were not satisfied that there had been such a search, it would be necessary for them to consider whether a mere strip-search carried out at the request of a senior officer, warranted an award of punitive damages against the defendant Sadler.

163. The directions given in this conflated form, given as they were without relating them to the evidence or the particular claim in respect of which that evidence was given, seem to me to have carried with them the significant risk that the jury would award a sum or sums of damages of the same order no matter whether they were awarding them in respect of the claim for assault or the claim for false imprisonment.

166. It is, of course, of little use to explain the law in general terms to the jury and then leave it to them to apply it to the case before them. The law should be given with reference to the facts of the case and an explanation as to how it is to be applied to those facts (Holford v. The Melbourne Tramway & Omnibus Co. [1909] VicLawRp 89; [1909] V.L.R. 497 at 509, per Madden, C.J. and at 522-3 per Cussen, J.; Alford v. McGee [1952] HCA 3; (1952) 85 C.L.R. 437 at 466; Bellizia v. Meares [1971] VicRp 78; [1971] V.R. 641 at 644; Sneath v. Nichols & Anor. (Court of Appeal, unreported, 9 October 1996 per Tadgell, J.A. at pp.6-8)).

169. For the reasons which I have stated, I am of the opinion that the directions given as to damages in this case did not sufficiently comply with this fundamental rule. Although no exception was taken to the insufficiency of the directions in this respect, I am of the view that the misdirections are of such a nature as to have occasioned a substantial miscarriage. It is not therefore necessary for me to consider the additional ground that the damages were manifestly excessive, although it does seem to me that the amount of damages which the jury have awarded as compensation for the false imprisonment alleged tends to suggest that they may well have been misled by the failure to adequately explain to them, by reference to the facts, what compensation was open to be awarded in respect of each of the claims being made by the plaintiff.

173. It follows from what I have so far said that the appellants are entitled to a re-trial on the issue of damages, or a re-assessment of those damages by this Court pursuant to the powers given to it by s.14 (1) of the Supreme Court Act. Both parties have joined in asking the Court, if it should come to the conclusion which I have, to re-assess the damages. There are, I think, powerful reasons for their request. The events with which the trial was concerned occurred over five years ago. The issues litigated were lengthy and involved calling a significant number of witnesses from more than one State. Although, if there was to be a re-trial, it would be confined to damages, it seems to me that such a re-trial would involve the calling of much the same evidence as was called below because almost all of it touched the issue of damages as well as the issues of liability. Although issues of credibility were involved, that of itself is not a barrier to this Court's re-assessment of damage pursuant to the discretion given to it by s.14 (1) of the Supreme Court Act (David Syme & Co. Ltd. v. Mather [1977] VicRp 58; [1977] V.R. 516).

176. Although there are clearly difficulties in the way of an appellate court re-assessing damages in a case like this where credibility of witnesses was clearly in issue and both aggravated and exemplary damages are claimed, I agree with the view expressed by Ormiston, J.A. in Backwell v. A.A.A. [1997] 1 V.R. 182 at 212 that:

"... where both parties seek the exercise of the Court's power of re-assessment, the Court of Appeal should be ... less chary of exercising the power, despite the inherent difficulties. As has been frequently said the Court should, as far as practicable, strive to bring litigation to an end and avoid the expense and strain of a new trial."

180. These views, with which Brooking, J.A. agreed, were expressed in the context of an appeal where the Court had set aside a jury's award of exemplary damages and the parties had, as here, requested the Court to re-assess. Despite the obvious difficulties which confront the Court in assessing damages remote from the adversarial arena, we should, I think, be slow to reject the united request of the parties who, being well aware of those difficulties, are content for the Court to perform the task rather than face the ordeal, delay and expense of a new trial. In this respect this appeal is to be distinguished from the decision which this Court gave in CSR Readymix (Aust.) Pty. Ltd. v. Payne [1998] 2 V.R. 505 at 516.

184. In re-assessing damages under s.14 (1) of the Supreme Court Act, the Court is not confined to a view of the evidence most favourable to the respondent. Rather, as Lush, J. pointed out in David Syme Ltd. v. Mather (supra at 532):

"What the Court must do, if it can, is to formulate such order or judgment as it thinks proper to the case, but in doing so, as in the case of an appeal from a decision of a judge, the Court will adopt such findings of fact as emerge from the verdict and judgment ... as are not vitiated by misdirection ... or any other factor."

188. Adopting such an approach in this case, I am of the view that the Court is able to attribute to the jury's verdict certain findings which are not sullied by the misdirections to which I have referred. The case made by the respondent at trial in relation to false imprisonment was, as previously stated, a relatively confined one; namely that the imprisonment in the police station which was initially lawful became unlawful because of a lack of proper reason for the continued detention. The jury's verdict shows that they must have accepted the respondent's claim that, if Sadler and those for whose actions he was responsible, had been properly motivated, the imprisonment would have come to an end about an hour before it did. It must also, I think, be inferred that the jury took a dim view of the conduct of the appellant for detaining the respondent for a period longer than he reasonably should; namely that it was not detention legitimately maintained for the purpose of collating material necessary to conduct an interview, but was overlaid, at least in part, by the baser motive of a desire to increase the humiliation of the respondent because of what he was perceived to have done to White. In coming to that conclusion it seems to me that the jury must have accepted the respondent's evidence that Sadler had sought to intimidate him by adopting the provocative tactic of "imposed" silence, of refusing to explain reasons for the prolonged detention, and addressing the provocative remark to him that he was a "smart-arse". All of those matters, which the verdict suggests were found, entitled the jury to take the view that the extended and unjustified period of detention amounted to an abuse of police power. Furthermore it seems to me that it would have been open to the jury, notwithstanding their finding of "no assault", to have regarded the strip-search which was conceded to have been required of Madigan as being unwarranted in the circumstances. However, apart from the size of the verdict and the award of exemplary damages, it is difficult to draw an inference in that respect because we do not know upon what basis it was that the jury reached its verdict on the assault claim.

191. However, whilst accepting that these were legitimate findings which can properly be inferred from the jury's verdict, they cannot be allowed to conceal the fact that the respondent was lawfully taken into confinement as a consequence of his own unlawful conduct and that the unjustified period of imprisonment could not have extended for more than one hour. It is for that limited period that the respondent was entitled to be awarded damages to compensate him for his loss of liberty, the injury to his feelings and damage to his reputation. Whilst it is true that the law attaches supreme importance to the right of the citizen to his freedom and, thus, regards improper interference with it as actionable without more (Murray v. Ministry of Defence [1988] UKHL 13; [1988] 1 W.L.R. 692 at 701-2), it seems to me that, in a case like this where police officers have justifiably arrested a person and taken him into their custody on account of his own unlawful conduct, that fact must be borne firmly in mind when awarding damages for the period beyond which the detention is justified. If it were not, the exercise of police powers conferred for the purpose of investigating persons reasonably suspected of committing crimes, would be frustrated to the ultimate detriment of the community interest.

194. However, where a police officer has prolonged a person's detention beyond the period which was justified, and has done so for the purpose of increasing his humiliation, the victim of such conduct is entitled to have his compensation aggravated beyond what might otherwise have been a nominal award of damages. Just as the community is entitled to expect that police officers should not, by indiscriminate actions for false imprisonment, be frustrated in the legitimate exercise of their powers, it is also entitled to expect that its citizens should not be subjected to arbitrary abuse of those powers.

197. The balance in many cases might be a fine one but, in this case, the respondent is entitled to an award of damages which reflects the jury's finding that he was confined, beyond a reasonable period, not for wholly justified purposes, but, at least in part, because Sadler desired to increase his humiliation. Such a finding warrants the Court in aggravating its estimate of compensation to be awarded by reference to the defendants' conduct even though it might not qualify for an award of exemplary damages (David Syme Ltd. v. Mather, supra, at 525 per Lush, J.). That case was an action in defamation, but Murphy, J. in Myer Stores Ltd. v. Soo (supra at 603-4) adapted the same principles to the tort of false imprisonment by approving the passage in Pollock on Torts, 15th Ed., at p.142, where it is said:

"the estimate of damages may be coloured ... by disapproval of the defendant's conduct ... though it not be a case for ... exemplary damages in the proper sense."

However Madigan is not entitled to be compensated for the consequences of the assaults which he alleged against Sadler, in particular the "complete psychological break-down" and the consequential expense said to have resulted from the intrusive body search. Whilst it was conceded by the appellants that the strip-search had occurred as an incident of the imprisonment, the jury rejected the respondent's claim for unlawful assault and it was, as I have stated, in respect of that claim that the respondent sought compensation for the psychological injury and the consequential expense which it entailed.

202. In all the circumstances, it is appropriate in my view to award in this case a sum of $15,000 as compensation for the unlawful imprisonment, a sum which, I think, is sufficient to reflect the increased humiliation and stress inflicted upon the respondent as a consequence of the appellants' action in unreasonably and without justification prolonging the imprisonment.

205. I do not believe, however, that it is appropriate to award a sum in respect of exemplary damages. Exemplary, or punitive, damages are awarded to punish and deter the wrongdoer, not to compensate the plaintiff. Such damages are awarded, therefore, "to punish a defendant for conduct demonstrating a conscious and contumelious disregard for the plaintiff's rights and to deter him from committing like conduct again" (XL Petroleum (NSW) Pty. Ltd. v. Caltex Oil (Australia) Pty. Ltd. [1985] HCA 12; (1985) 155 C.L.R. 448 at 471, per Brennan, J.). The award is therefore in the nature of a penalty imposed upon the defendant for conduct which can fairly be regarded as outrageous. It is for this reason that courts have urged restraint before making such an award, and have indicated that such damages should only be given if the sum awarded as compensation is, in itself, inadequate to punish the defendant for his conduct (per Ormiston, J.A., Backwell v. A.A.A., supra, at pp.206-8). Damages awarded for false imprisonment are at large and, if aggravated to properly reflect the increased humiliation suffered by the plaintiff as a consequence of the defendant's conduct, are capable to that extent of containing an element which marks the court's disapproval of the defendants' conduct (Carson v. John Fairfax & Sons Ltd. [1993] HCA 31; (1993) 178 C.L.R. 44 at 65-6; Myer Stores Ltd. v. Soo, supra, per Murphy, J. at 603).

208. The award of aggravated compensatory damages, which I believe to be appropriate in this case, makes it unnecessary in my view to award exemplary damages against the first named appellant. The aggravation of those damages to compensate for the increased humiliation of the respondent flows from the nature of the appellants' treatment of him and renders it unnecessary to make a further award of a punitive nature. In any event the nature of the conduct which could properly be understood as having been found against Sadler, whilst improper to the point of being unbecoming of a police officer, could not in my view properly support an award of exemplary damages. In this respect it should be remembered that the evidence before the jury did not support the conclusion that it was of Sadler's own motion that the respondent was subjected to a strip-search. Although, as he said, he would have regarded himself as entitled to carry out such a search, he in fact conducted it upon the instructions of his senior officer.

211. It remains only to consider the appellants' argument that the judge was in error in ordering the entire costs of the proceedings before him to be paid by the appellants. Although Mr. Golombek recognized that the matter was within the discretion of the judge, he contended that much of the evidence given at the trial, and therefore the time taken, was devoted to the issue of assault, upon which the appellants succeeded. He contended that the judge's discretion miscarried because he failed to recognize that the issues were discrete and that, in any event, they were not sufficiently complex to warrant certification for senior and junior counsel.

214. I would not be prepared to say that the learned judge erred in the exercise of his discretion on the question of costs. In the first place the decision as to whether the issues were sufficiently complex to warrant two counsel was a matter peculiarly appropriate for him and I would not be prepared to say he was wrong in concluding that an action which raised issues as unusual as this one, did not justify the appearance of two counsel, at least on behalf of the person who was claiming a breach of his fundamental rights by persons exercising authority (Prior v. Lansdowne Press Pty. Ltd. [1977] VicRp 6; [1977] V.R. 65 at 76-7.

217. Furthermore I cannot agree with the contention that the issues, and the evidence led in support of them, were mutually exclusive of one another. It was part of the respondent's case on the issue of false imprisonment that the strip-search, which admittedly was carried out, was conducted to embarrass him and not for justified purposes. This issue was strongly contested by the appellants on the basis that a strip-search was fully justified in the circumstances. The respondent created difficulty for himself by alleging that the strip-search, culminating in an anal search, constituted an unlawful assault. To that allegation the appellants took a number of defences to which I have earlier referred. The jury's verdict that there was no unlawful assault does not identify the basis upon which it reached that verdict which, necessarily, has put the respondent at some disadvantage on the re-assessment of damages. However that is not to say that the evidence was not relevant to the case of unlawful imprisonment made by the respondent at trial and did not justify the exercise of the judge's discretion to award the costs in the manner in which he did.

221. For the reasons stated, I would allow the appeal so as to set aside the orders for damages, both compensatory and exemplary, made against the appellants and to substitute therefor an order that there be judgment in favour of the plaintiff against the defendants in an amount of $15,000.

226. I agree with the President, both as to his conclusions and, save only as to the third sentence in paragraph 56, as to which I express no opinion, with his reasons. The only area of difficulty remaining in this appeal, in my view, is the assessment of the respondent's damages, which all parties invited this Court to make, in the event that the appeal succeeded only as to damages.

229. As the President has explained, the jury's negative answer to the second question put to them (taken with counsel's concession) must mean that the jury were not satisfied by the respondent's evidence that an anal search such as he had described in evidence was carried out by Sadler. The directions to the jury on the question of damages drew no distinction between the amount which might be awarded for assault, and the amount which might be awarded for false imprisonment. The complete psychological breakdown suffered by the respondent, for the reasons given by the President, could not be included in any award of damages. An assessment of the respondent's damages for false imprisonment must, therefore, be constructed upon the basis that his original arrest and imprisonment was lawful and proper, and that the unlawful imprisonment to which he was subjected lasted for not more than one-and-three-quarter hours, and more likely for one-and-a-quarter hours or thereabouts. On the other hand, it seems to me that the jury's verdict indicated that they were satisfied that Sadler's conduct in relation to the strip-search, and otherwise during the respondent's imprisonment, was intended to maximize the latter's humiliation, and that they disbelieved some of the exculpatory statements made by Sadler and other police witnesses in the witness box.

232. On this basis, the damages to which the respondent is entitled for false imprisonment would include an amount for loss of dignity, mental suffering, disgrace and humiliation, and any deleterious effect on his health; Myer Stores Ltd. v. Soo [1991] VicRp 96; [1991] 2 V.R. 589, per Murphy, J. at 603-604. The Court is also, in my view, entitled to increase the general damages awarded, to compensate the respondent for the deliberate humiliation to which he was subjected, and also because his hurt may have been continued or increased by Sadler's evidence (such as that the respondent when arrested showed classic signs consistent with his having used amphetamines). Just as in defamation, the conduct of the defendant down to verdict is a matter on which the plaintiff may rely as aggravating the damages (Coyne v. Citizen Finance Ltd. [1991] HCA 10; (1991) 172 C.L.R. 211, per Toohey, J. at 237, and McHugh, J. at 241; McGregor on Damages, 15th ed, pars. 1665-6), so also with false imprisonment, the hurt to the plaintiff's reputation which is involved may be increased by the defendant's conduct down to verdict. In Walter v. Alltools Ltd. (1944) 61 T.L.R. 39, at 40, Lawrence, L.J. said -

"any evidence which tends to aggravate or mitigate the damage to a man's reputation which flows naturally from his imprisonment must be admissible up to the moment when damages are assessed. A false imprisonment does not merely affect a man's liberty; it also affects his reputation. The damage continues until it is caused to cease by an avowal that the imprisonment was false."

See also Myer Stores Ltd. v. Soo, per Murphy, J. at 603.

237. I agree with the President that the respondent's damages should be re-assessed at the figure of $15,000.

242. I agree in the conclusions expressed by the President in his reasons for judgment and with one reservation I concur in those reasons. My reservation is that, since I agree with the first reason which his Honour gives in paragraph 56 for this Court's not awarding exemplary damages upon re-assessment, it is unnecessary to form a concluded view about the second reason given, and, bearing in mind that the conduct has earlier been characterised as an abuse of power, I prefer not to do so.

245. I would add a reference, on the question of costs, to the observations of Jacobs, J. in Cretazzo v. Lombardi (1975) 13 S.A.S.R. 4 at 16 as to the frequent inappropriateness of awarding costs according to the issues won and lost.