Shalhoub v State of New South Wales

303 State of NSW v Le [2017] NSWCA 290 State of NSW v McCarthy [2015] NSWCA 153 State of NSW v Randall [2017] NSWCA 88 State of NSW v Smith [2017] NSWCA 194 Thomas v Mowbray [2007] HCA 33 Thompson; Hsu v Commissioner of Police of the Metropolis [1998] QB 498 Uren v John Fairfax (1966) 117 CLR 118; [1966] HCA 40 Watson v Marshall (1971) 124 CLR 621; [1971] HCA 33 Zaravinos v State of NSW (2004) 62 NSWLR 58; [2004] NSWCA 320 Texts Cited: J Fleming, The Law of Torts, 8th ed, LBC (1992) Ritchie's Uniform Civil Procedure NSW The Holy Bible, King James Version Trindade and Cane, The Law of Torts in Australia, 3rd Edition, OUP (1999) Category: Principal judgment Parties: Andrew Michael Shalhoub (plaintiff) State of New South Wales (defendant) Representation: Counsel: Mr J Sheller (plaintiff) Mr P Menzies QC and Mr C Gregory (defendant)

Solicitors: Greg Walsh & Co Solicitors (plaintiff) McCabes Lawyers (defendant) File Number(s): 2015/211824 Publication restriction: None

Judgment Heading Paragraph A. Background 1 B. The Legislation 6 C. The issues 8 D. Suspicion of stalking based on reasonable grounds 15 (a) Stalking 15 (b) The suspicion of Senior Constables Skinner and Poulton 22 (c) Did the arresting officers suspect stalking? 26 (i) Senior Constable Hurney 28 (ii) Constable Dunn 32 (iii) Constable Muir 46 (iv) Leading Senior Constable Love 50 (d) Analysis 54 E. Arrest reasonably necessary to prevent an offence 60 F. Informed of arrest as soon as reasonably practicable 78 G. Was reasonable force used? 91 (a) Blows to the head 92 (b) Officer Dunn's search 97 (c) Analysis of the search 114 H. Was the period of detention justified? 118 I. Damages 130 (a) Events, injuries and claimed damages 130 (b) The Civil Liability Act 2002 137 (i) Unlawful imprisonment damages 139 (ii) Section 3B(1)(a) of the Civil Liability Act 2002 146 (iii) Intentional act 149 (iv) Done with the intent to cause injury 150 (v) Sexual misconduct 157 (c) Damages for unlawful arrest and imprisonment 162 (d) Damages for assault and battery 167 (e) Aggravated and exemplary damages 170 (i) Relevant principles 170 (ii) Aggravated damages 174 (iii) Exemplary damages 179 (f) Interest and costs 184 J. Orders 187

A. Background

1. Andrew Shalhoub was a young man, 19 years of age, not relevantly known to the police. He was with his friend, Mustapha Neffati, at a gathering in a home located in a cul-de-sac in southern Sydney on the evening of Sunday, 7 June 2015. At 2am on the Monday morning, a public holiday, Mr Neffati contacted his brother, Wassim, with a request to come and collect him and Mr Shalhoub. When Wassim Neffati arrived, Mustapha and Mr Shalhoub got into the car and they commenced the return journey. Mr Shalhoub sat in the rear. As they proceeded from the cul-de-sac onto David Rd, at about 2.20am (Exhibit A, p 149), the police activated flashing lights and Mr Wassim Neffati pulled over. Soon thereafter, Mr Shalhoub and Wassim and Mustapha Neffati were instructed by the police to put their hands out of the car. Mr Shalhoub was then pulled from the car, taken to ground, struck several times, including with blows to his head whilst he lay face down on the ground. He was handcuffed, searched and eventually informed he was under arrest.
2. Mr Shalhoub was informed of his arrest at about 2.40am (Ex A, p 63) or 2.50am (Ex A, p 129) purportedly for stalking a police officer. When the police thereafter realised that Mr Shalhoub could not have been involved in any stalking, he remained under arrest and was at 3.05am (T636/40, Ex A, p 133) taken to a police station, arriving at about 3.25am (Ex A, p 130). A police interview was conducted in connection with an investigation of "resist arrest", no charges were laid and Mr Shalhoub was released from police custody later that morning, at about 7.40am (Exhibit A, pp 132, 139). He sues for assault and battery and unlawful imprisonment.
3. When Wassim Neffati was roused from his bed at around 2am to collect his brother and Mr Shalhoub, he unwittingly proceeded behind a private vehicle driven by an off-duty female police officer who had just left Revesby Police Station. Senior Constables Troy Skinner and Matthew Poulton also left Revesby Police Station together at the end of their shift at about the same time. They observed a grey Lexus, the car driven by Wassim Neffati, make a U-turn and proceed behind the private vehicle known by them to be driven by the female police officer. The private vehicle, followed by the Lexus, followed by Officer Skinner's car, proceeded in a fairly direct route to a nearby main road, Davies Rd, where each car turned right, to the south, once the traffic lights turned green. Officers Skinner and Poulton formed the view that the Lexus was following and stalking the private vehicle driven by the off-duty officer, and telephoned the police station to report the suspected stalking. Other police responded.

B. The Legislation

1. Section 99(1) of the Law Enforcement (Powers and Responsibilities) Act 2002 ("LEPRA") entitles a police officer to arrest a person so long as the police officer suspects on reasonable grounds that the person is committing or has committed an offence and if the police officer is satisfied that the arrest is reasonably necessary because of a matter listed in s 99(1)(b). "99 Power of police officers to arrest without warrant (1) A police officer may, without a warrant, arrest a person if: (a) the police officer suspects on reasonable grounds that the person is committing or has committed an offence, and (b) the police officer is satisfied that the arrest is reasonably necessary for any one or more of the following reasons: (i) to stop the person committing or repeating the offence or committing another offence, (ii) to stop the person fleeing from a police officer or from the location of the offence, (iii) to enable inquiries to be made to establish the person's identity if it cannot be readily established or if the police officer suspects on reasonable grounds that identity information provided is false, (iv) to ensure that the person appears before a court in relation to the offence, (v) to obtain property in the possession of the person that is connected with the offence, (vi) to preserve evidence of the offence or prevent the fabrication of evidence, (vii) to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence, (viii) to protect the safety or welfare of any person (including the person arrested), (ix) because of the nature and seriousness of the offence."
2. Section 99(2) provides: "(2) A police officer may also arrest a person without a warrant if directed to do so by another police officer. The other police officer is not to give such a direction unless the other officer may lawfully arrest the person without a warrant."

C. The issues

1. In its defence to the amended statement of claim, the State of New South Wales denied any assault (at [4(d)]) and pleaded a lawful arrest (at [14]), particularised as: "(a) Pursuant to section 99(1) of LEPRA, the plaintiff was lawfully arrested by police who had reasonable grounds to suspect that the plaintiff had committed the offences of: a. Resist police in execution of duty; and b. Stalk/intimidation. (b) Pursuant to section 99(1)(b) of LEPRA the plaintiff was lawfully arrested by police who were satisfied it was reasonably necessary to arrest the plaintiff to: a. To prevent the continuation or repetition of the offence or another offence."
2. In the State's Outline of Closing Submissions ("DCS"), under the heading, "THE DEFENDANT'S CASE", the State at [2] submitted that: "The Defendant's case is that the Plaintiff was under arrest from the time the police stopped the Lexus on David Road. At that time, the police were exercising their power of arrest without warrant under s 99(1) of LEPRA, and believed the arrest was reasonably necessary to prevent the continuation or repetition of the offence or another offence for the purposes of s 99(1)(b)(i) of LEPRA. The Defendant used reasonable force to arrest the Plaintiff, for the purposes of ss 230 and 231 of LEPRA."
3. The Lexus had voluntarily pulled over in response to flashing police lights. Whether this could, without more, constitute an arrest of the occupants of the Lexus (cf State of New South Wales v Exton [2017] NSWCA 294 at [47]) did not arise because the State's case was clarified in closing submissions, as follows (T523/35-48): "The defendant's case is actually perfectly straightforward and it is simply this. The police had reasonable grounds to suspect that the plaintiff had committed the offence of stalking for the purposes of s 99 of the LEPRA Act. … We put it this way. The people who conducted the physical arrest of the plaintiff were the constables who removed him from the vehicle. They were acting under the direction of Mr Love." And further: "The process begins when they stop the car. But obviously at some point the actual arrest begins and that arrest begins when the officers who go to the car acting in accordance with their instructions take steps to remove them from the car and handcuff them" (T525/21-24).
4. Thus, stalking was identified as the suspected offence and a direction by "Mr Love" was identified as the foundation for the arrest. The way the State framed its case (and the forceful removal immediately after the command to get out of the car) removes from consideration the question about whether a direction to get out of the car constitutes an arrest (see Exton at [47]). Leading Senior Constable Luke Love was apparently the ranking police officer at the scene when Mr Shalhoub was pulled from the Lexus (cf T291/30-36).

D. Suspicion of stalking based on reasonable grounds

(a) Stalking

1. The State asserts that the police officers reasonably suspected the offence of stalking. The State did not identify the relevant statutory provision, but s 13 of the Crimes (Domestic and Personal Violence) Act 2007 ("Crimes DPV Act") provides for the offence in the following terms: "13 Stalking or intimidation with intent to cause fear of physical or mental harm (1) A person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence. Maximum penalty: Imprisonment for 5 years or 50 penalty units, or both. (2) For the purposes of this section, causing a person to fear physical or mental harm includes causing the person to fear physical or mental harm to another person with whom he or she has a domestic relationship. (3) For the purposes of this section, a person intends to cause fear of physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person. (4) For the purposes of this section, the prosecution is not required to prove that the person alleged to have been stalked or intimidated actually feared physical or mental harm. …"
2. Stalking is defined in s 8(1) of the Crimes DPV Act to include: "the following of a person about or the watching or frequenting of the vicinity of, or an approach to, a person's place of residence, business or work or any place that a person frequents for the purposes of any social or leisure activity."
3. In determining whether conduct amounts to stalking, regard may be had to "any pattern of violence … in the person's behaviour" (s 8(2), Crimes DPV Act).
4. There was no suggestion by the State that any conduct of Mr Shalhoub or Wassim or Mustapha Neffati involved the watching of, frequenting the vicinity of, or approaching, the female police officer's place of residence, business or work or any place frequented by her. Nor was there any suggestion of any pattern of violence. Rather, the basis for the suspicion is said to arise from the grey Lexus following the car of the female police officer. The state of mind required by s 99(1) of LEPRA is suspicion, "a state of conjecture or surmise where proof is lacking, or a positive feeling of actual apprehension or mistrust, amounting to a 'slight opinion, but without sufficient evidence'" (State of NSW v Smith [2017] NSWCA 194 at [78], George v Rockett (1990) 170 CLR 104 at 115).

(b) The suspicion of Senior Constables Skinner and Poulton

1. Officer Skinner gave evidence of believing that the grey Lexus was following the private vehicle (T182/16) until the Clancy St exit (T504/37). Officer Poulton gave evidence that it was "our belief" that the off-duty officer was being followed (T226/42), again until the Clancy St exit (T249/15) and that the grey Lexus needed to be stopped "so that we could work out what was going on" (T226/40-45). Neither Officer Skinner nor Poulton gave any evidence of their belief about an intention in the driver of the grey Lexus to cause fear of harm. Evidence was given about the behaviour of the Lexus: speeding, slowing down, momentarily coming alongside and then keeping a distance from the private vehicle. But, so far as the evidence reveals, none of their observations indicated anything more to Officers Skinner and Poulton than that the Lexus was following the private vehicle.
2. I accept the evidence of Officers Skinner and Poulton that until the Clancy St exit, they believed that the grey Lexus was following the private vehicle. Once the private vehicle took the exit on Clancy St, they saw that the grey Lexus did not take that exit but proceeded further down Davies Rd/Alfords Point Rd/New Illawarra Rd, past other exits, for some 7 kilometres. They accept that they did not then believe that the grey Lexus was following the private vehicle (T249/13-16; T249/33-35; T504/36-40). In my view, there was no longer a reasonable basis for the officers to suspect that the grey Lexus had been "following" the private car "about".
3. Nor am I satisfied that at any time Officers Skinner or Poulton believed or suspected that the occupant (or occupants) of the grey Lexus was (or were) following the private car "with the intention of causing fear" of harm. Neither gave evidence of this suspicion or belief. Almost invariably the Lexus was observed to be some distance behind the private car, and nothing in the conduct of the Lexus was observed that had the capacity, let alone the likelihood (cf s 13(3), Crimes DPV Act), to cause fear in the off-duty officer in the private car. The officers made no contact with the female police officer driving the private vehicle, and it was not suggested that she was even aware of the grey Lexus, let alone in fear of harm. While actual fear of harm is not necessary to establish the offence (see s 13(4)), the absence of any enquiry of the police officer, and the absence of direct evidence by either Officer Skinner or Officer Poulton about their belief in this regard, left me unwilling to infer and accordingly unpersuaded that they had a belief or suspicion about an intention to cause fear of harm in the off-duty female police officer. And I was also unsatisfied that there were reasonable grounds for such a suspicion.

(c) Did the arresting officers suspect stalking?

1. The State's written submissions assert that "the police officers had reasonable grounds to suspect" the offence of stalking (DCS at [10]). But s 99 does not concern itself with police officers generally, but with a police officer involved in an arrest.
2. The arrest was effected by Constables James Dunn and William Muir, assisted by Senior Constable Ryan Hurney. None of these officers had observed the grey Lexus following the private vehicle or had personal knowledge of any stalking. Accordingly, they could only be empowered to effect an arrest if (among other matters) either: 1. they received information sufficient to provide reasonable grounds for a suspicion, and they did suspect, that Mr Shalhoub had committed an offence (see s 99(1)(a) of LEPRA); or 2. as the State's final oral submissions maintained, they were directed to arrest Mr Shalhoub. As I have indicated, this direction needs to be by an officer who had suspected on reasonable grounds that Mr Shalhoub had committed an offence (s 99(2) of LEPRA).

(i) Senior Constable Hurney

1. Officer Hurney assisted Officer Muir and Officer Dunn when they were removing Mr Shalhoub from the vehicle. He heard a police officer say "Get out, get out of the car" (T286/45; T288/27). He gave an affirmative answer to the leading question asked in examination-in-chief: "Was your intention at the time that you handcuffed them to arrest them?" (T298/13), although Officer Hurney did not handcuff anyone: he said Officer Muir handcuffed Mr Shalhoub (T292/20). Officer Hurney was asked whether he was acting upon his own initiative or under the direction of someone else, and answered, somewhat non-responsively, that the "handcuffing of the individuals was immediate, it was an immediate response once the vehicle had stopped and the other police arrived" (T297/46-49). He then answered affirmatively the leading question: "But you didn't have an instruction to do it, you did it" (T298/2). He referred to information that "they [presumably the occupants of the grey Lexus] were following an off duty police officer who had just left the police station" (T298/10).
2. Officer Hurney accepted that prior to his involvement he had no idea how many people were in the car, whether they had been in the car earlier, when it may have been following a police officer, and that there had been no discussion between the police officers as he approached the car (T306/19-43).
3. I was reluctant to accept Officer Hurney's answers to leading questions as sufficient evidence of whether the arrest resulted from a direction, or from the information he had received over the police radio. However, Officer Hurney had received information and may have suspected that an offence had been committed on the basis of that information, and when asked why he was "doing this" (removing and restraining Mr Shalhoub), he referred to the radio information that "they were following an off duty police officer who had just left the police station" (T298/10). It follows that Officer Hurney did not act on a direction. He may have had reasonable grounds to suspect an offence, on the basis of the radio information, but as he gave no evidence of his precise suspicion, I would be disinclined to infer it. In any event, that was not the case the State ultimately put in its closing oral submissions.
4. Officer Hurney came to the aid and assistance of Officers Muir and Dunn as they were in the process of removing Mr Shalhoub from the Lexus. He neither handcuffed Mr Shalhoub nor uttered words of arrest, nor gave any directions about the arrest. Although he assisted, it would not be correct to describe him as the arresting officer. His denial that he was acting under direction is not fatal to the State's case because he was not the principal arresting officer.

(ii) Constable Dunn

1. Officer Dunn was informed that an off-duty police officer was being followed home. Officer Dunn travelled with Officer Love and Leading Senior Constable Jennifer Casey to the scene with lights and sirens on. He was directed to the location of Wassim Neffati's vehicle and said that the Lexus stopped on David Rd, 20 or 30 metres from the cul-de-sac. Officer Love then said, "Get them all out of the car" (T336/26). Officer Dunn referred to the actions of Officer Hurney, but from the evidence of Officers Hurney and Muir, it is apparent that Officer Dunn has confused the two. Officer Dunn said he heard "Officer Hurney" ask Mr Shalhoub twice to get out of the car, and when Mr Shalhoub refused and grabbed the seatbelt, Officer Dunn and, as he recalled it, Officer Hurney pulled Mr Shalhoub from the car and onto the ground facedown. Officer Dunn was subsequently involved in striking Mr Shalhoub as he attempted to have Mr Shalhoub handcuffed. Officer Muir handcuffed Mr Shalhoub and subsequently Officer Dunn conducted a body search.
2. Accordingly, there may be two bases for Officer Dunn to exercise the power of arrest: either he received information from another officer and on that basis suspected on reasonable grounds that Mr Shalhoub had committed the offence of stalking with intent (under s 99(1)(a)) or he was directed to arrest under s 99(2) as the State submits.
3. The first possibility raises for consideration whether information from another police officer may be sufficient to produce in the arresting officer the suspicion on reasonable grounds required under s 99(1) of LEPRA. There can be little doubt that it could be sufficient. Police officers must commonly rely on information supplied by others; it cannot be supposed that they can only arrest for offences that they have personally witnessed. And if information from members of the public may be sufficient to enliven a reasonable suspicion, so also may information from other police officers. Unless Officer Dunn was aware of matters that cast a significant doubt on the source or content of the information he received, he was entitled to rely upon it, both to believe or suspect that it was true, and to proceed on the basis that the information constituted reasonable grounds for the belief or suspicion it engendered. This is so even if the information was wrong.
4. The accuracy of the information conveyed by Officers Poulton and Skinner or the information conveyed to Officer Dunn is not strictly relevant. Although the State is sued as the defendant, it is because of its vicarious liability for any battery or unlawful arrest by a police officer, not because of any negligence either by the State or by a police officer.

(iii) Constable Muir

1. Officer Muir gave evidence that he heard a message that an off-duty police officer was being followed home. When he arrived at the scene, he said, Officer Love instructed him to "Get them out of the car on the ground" (T371/44). The words "on the ground" might imply that the direction encompasses that the persons in the car must be subdued and be put under the control of the police, acts which might show both the intention and submission sufficient to constitute an arrest (see Smith at [137], Exton at [42]). The evidence of Officer Muir conflicts with Officer Dunn as to whether the words "on the ground" were used. Whilst others, like Officer Hurney, gave evidence of hearing "get out of the car", no one else referred to hearing "on the ground" stated by Officer Love (cf T440/16). No one else gave evidence of hearing the direction from Officer Love, and Officer Love gave no evidence of giving any direction.
2. Like Officer Dunn, Officer Muir gave no evidence of what he believed or suspected. Although Officer Muir gave no evidence of precisely what prompted his action in removing Mr Shalhoub from the car, his conduct followed immediately after the direction from Officer Love. I infer that he was acting on that direction of Officer Love, which was to get the rear passenger out of the car.
3. Although Mr Shalhoub testified to the contrary (T71/35), neither Officer Muir nor Officer Dunn gave evidence of immediately getting Mr Shalhoub "on the ground" once he was removed from the car. Officer Dunn said that he had hold of Mr Shalhoub, who was standing up and when Mr Shalhoub refused to move when told, Officer Dunn pulled him and they fell over. Officer Muir said that, in response to Officer Love's direction, he said, "Mate, hop out of the car" (T371/50) and subsequently, when Mr Shalhoub was out of the car, "as he's standing up, him and Constable Dunn have gone - fallen to the ground" (T372/29).
4. Officer Muir's account of his conduct is not consistent with following a direction to "Get them out of the car on the ground", but is consistent with Officer Dunn's account of the direction. In addition, Officer Dunn travelled with Officer Love and so was likely nearer to him when the direction was given. These matters, and my concerns about Officer Muir's evidence concerning the record of interview (considered below), cause me to prefer Officer Dunn's recollection of what was said by Officer Love. I do not accept that the direction from Officer Love embraced getting Mr Shalhoub onto the ground.

(iv) Leading Senior Constable Love

1. Officer Love received a telephone call concerning a suspect vehicle that may have been following a police officer. He proceeded under lights and sirens to the location of the suspect vehicle and received "updates" while travelling. When he arrived in David Rd, either Officer Skinner or Officer Poulton pointed out where the grey Lexus was located. Officer Love saw that it was stationary.
2. Officer Love then removed the front seat passenger from the vehicle with the intention of placing him under arrest, and that passenger was handcuffed.
3. Officer Love gave the following evidence: "Q. What did you do at that time [after he arrived]? A. I went with Leading Senior Constable Casey and myself and removed the front passenger seat - passenger - front passenger from the vehicle. Q. What was your intention at that time by removing them? A. To place him under arrest." (Underlining added, T492/45-50).
4. Officer Love gave no evidence about the direction that was heard by Officers Muir and Dunn. He was not asked specifically about it.

(d) Analysis

1. I am persuaded that Officer Dunn and Officer Muir forcefully removed Mr Shalhoub from the rear passenger seat of the car on the instruction of Officer Love. Mr Shalhoub was thereafter brought to the ground. Although Officer Love had the intention to arrest the passenger with whom he dealt, there was no direction to that effect to the other officers. Officer Love gave no evidence of his intention in relation to the other officers or the other occupants of the Lexus. Officer Dunn and Officer Muir gave evidence of the direction by Officer Love, but on the direction I have found, the arrest of Mr Shalhoub could not be justified by it.
2. As Officer Love's direction prompted the removal of Mr Shalhoub from the Lexus and a different view may elsewhere be taken on the nature of that direction, I propose to consider the issue that arises if Officer Love did direct the police officers to arrest Mr Shalhoub. In other words, was Officer Love entitled to arrest Mr Shalhoub, so as to satisfy s 99(2) of LEPRA?
3. In evidence in chief, Officer Love accepted the suggestion that he had received a telephone call "concerning a suspect vehicle that may have been following a police officer" (T491/26) and that he received "updates" (T491/47). The form and content of this evidence was not persuasive that Officer Love had a suspicion on reasonable grounds that Mr Shalhoub had committed the offence of stalking under s 13 of the Crimes PVA Act. Officer Love's reponses to leading questions lessened their value. He gave no evidence about what were his suspicions, if he had any, about the rear seat passenger, Mr Shalhoub. His lack of detail about the content of the "updates" left open whether and when he became aware that the Lexus was not following the police officer, or that Mr Shalhoub was not in the car during the alleged following. His failure to give evidence about any suspicion or its basis (and the failure of the State to explain that absence of evidence) preclude an inference that he did have a reasonably based suspicion. Officer Love's evidence of his intention to arrest the front seat passenger in response to a question about all of the passengers (quoted above) emphasises his lack of intention about Mr Shalhoub.
4. Further, Officer Love's acceptance of other leading questions about "at some time" becoming aware that only one person was in the Lexus when the off-duty police officer's car was being followed, without evidence of when Officer Love became so aware, tends to render more uncertain whether the requirements of s 99(2) of LEPRA were satisfied in the arrest of Mr Shalhoub.

E. Arrest reasonably necessary to prevent an offence

1. Section 99(1) of LEPRA requires, for an arrest to be lawful, that the arresting or directing police officer is satisfied that the arrest is reasonably necessary for one of a number of specified reasons. The question of reasonable necessity only arises if, contrary to my findings, Officer Love gave a direction to arrest and had a suspicion on reasonable grounds that Mr Shalhoub had committed an offence or alternatively if Officers Muir and Dunn had such a suspicion. Thus, whether Officers Love, Muir and Dunn were satisfied of the reasonable necessity of arrest is to be considered.
2. The expression "reasonably necessary" was considered in Thomas v Mowbray [2007] HCA 33. In some contexts, "reasonably necessary" may refer to what is required for reasonable protection (see Thomas at [21]-[25]). At [490], reference was made to the judgment of Gleeson CJ in Mulholland v Australian Electoral Commission (2004) 220 CLR 181 at 199-200 [39] where "necessary" meant not "essential or indispensable" but "reasonably appropriate and adapted". The adjective "reasonably" in this case tends to buttress such a construction.
3. While the term "reasonable" often imports some level of objectivity, in this context it moderates the meaning of "necessary" and makes clear that something less than what is essential is required. Here "reasonably necessary" concerns the satisfaction of the police officer: whether the police officer is satisfied that the arrest is "reasonably necessary" or "reasonably appropriate and adapted" to stop the repetition of the offence. Thus, "reasonable" in this context does not import an objective element. It is "not what the judge thought, but what the officer thought was reasonably necessary in the circumstances" (see State of NSW v Randall [2017] NSWCA 88 at [38] and also [142]).
4. No officer gave evidence concerning the reasonable necessity for the arrest. It may be accepted that stalking a police officer with intent to cause fear of harm is a serious offence, and that a police officer could be satisfied that, because of the nature and seriousness of that offence (one of the specified reasons in s 99(1)(b)), an arrest is reasonably necessary. But this is a matter on which the police bore the onus of proof, and there was no evidence that any police officer had the relevant satisfaction. Further, this reason was not pleaded, and is contrary to particular (b) in [14] of the defence.

F. Informed of arrest as soon as reasonably practicable

1. A police officer who arrests a person but fails to give the true reason for the arrest is liable for false imprisonment: Christie v Leachinsky [1947] AC 573, 587, State of NSW v McCarthy [2015] NSWCA 153 at [78]. This rule is reflected in ss 201 and 202 of LEPRA (Abed at [85]).
2. The rationale underlying the rule that: "persons are entitled to know why they are being arrested is that they should be put in a position to be able to give an explanation of any misunderstanding, or to call attention to others for whom they may have been mistaken, or to give some other exculpatory reason" (Ipp JA in State of NSW v Delly (2007) 70 NSWLR 125 at [9]; [2007] NSWCA 303 at [9], Abed at [88]), and that "a person is not to be deprived of her or his liberty without lawful cause" (Abed at [89], Johnstone v State of NSW [2010] NSWCA 70; (2010) 202 A Crim R 422 at [43]).
3. Sections 201 and 202 of the LEPRA require a police officer, as soon as reasonably practicable after exercising a power to stop, search, arrest or direct a person, to provide to the person the officer's name, place of duty and reason for the arrest. It was common ground that this information was not provided to Mr Shalhoub until sometime after the Lexus had pulled over and Mr Shalhoub had been removed from the car, brought to ground, struck repeatedly, handcuffed, detained and searched. The information was then provided by Officer Casey, an officer not earlier involved in the arrest, handcuffing, detention or search of Mr Shalhoub, or in the giving of the direction to remove Mr Shalhoub from the car.
4. No explanation was given by any of Officers Love, Dunn, Muir or Hurney as to why they did not identify themselves and provide a reason for the arrest of Mr Shalhoub or his removal from the car. Officer Casey first became involved with Mr Shalhoub when she went to check on Officers Dunn and Muir. She gave evidence that she saw that Mr Shalhoub was not moving and blood was coming from his mouth. She asked Officer Hurney, "Is he all right?", then knelt down and asked Mr Shalhoub, "Mate, are you all right?" He was then lying on this side. He spoke but his eyes remained shut. She then left Mr Shalhoub to check on other people, spoke to Officer Love, then returned to tell Mr Shalhoub and Wassim and Mustapha Neffati that they were under arrest. The documentary evidence indicates that the arrest occurred at 2.40am or 2.50am, some 20 to 30 minutes after the Lexus had pulled over and Mr Shalhoub was removed from the rear seat.

G. Was reasonable force used?

1. Reasonable force is no defence to Mr Shalhoub's claim if the arrest was otherwise unlawful. But on the assumption, contrary to my findings, that the arrest was lawful, the police were still obliged to use reasonable force (see LEPRA, ss 230, 231). Although Mr Shalhoub challenged the police's entitlement to use a significant level of force, pulling Mr Shalhoub from the Lexus and to the ground and striking his arms for the purpose of getting him to put them behind his back to be handcuffed might not be unreasonable force if it was necessary to effect an otherwise lawful arrest. However, there are two elements of police conduct towards Mr Shalhoub that were specifically alleged by Mr Shalhoub to involve an unreasonable level of force, so as to constitute unlawful conduct even if the arrest was otherwise lawful: the blows to the head and the search of Mr Shalhoub's groin.

(a) Blows to the head

1. Officer Dunn struck Mr Shalhoub on the head on a number of occasions while Mr Shalhoub was lying face down on the ground. Officer Dunn said: "I probably did about five or six hammer strikes to his shoulder as a distractionary technique to try and pull his right arm out from under him as I'm doing these hammer strikes. As we were all in a struggle a few of these hammer strikes missed and hit him in the side of the head." (T339/20-24).
2. A hammer strike is a forceful, downward motion extending the arm to strike someone with the bottom of the fist. Officer Dunn said he did not intend to hit Mr Shalhoub on the side of his head. He said he subsequently noticed that Mr Shalhoub had blood on his mouth and some swelling on the right side of his face. He did not initially concede that the swelling on Mr Shalhoub's face was due to his hammer strikes, nor did he concede that there was force in his hammer strikes "[e]nough to make it hurt" (T346/50-T347/1). Given that the purpose of the hammer strikes was to force Mr Shalhoub to surrender his arms or not resist being handcuffed, this evidence was difficult to accept.
3. Officer Dunn said that Mr Shalhoub was positioned face down on the grass. He conceded that "I don't know where I hit him" (T349/18), he could not say "whether it was below or above his right ear" (T352/18-19) and he "can't remember" if some other officer could have been responsible for the marks on Mr Shalhoub's face. Officer Dunn admitted that he missed the mark, about the upper bicep, by "quite a distance" (T352/26-32) and by "a long distance" (T352/39-42). He considered the possibility that the facial marks arose from when Mr Shalhoub hit the ground, and denied that he had caused the injury to the left side of Mr Shalhoub's face.
4. The recording of the subsequent interview and relatively contemporaneous photographs showed that Mr Shalhoub had readily observable facial and head injuries which came about in the incident. Officer Dunn was not a small man. He admitted to striking Mr Shalhoub on the head a "few times", "at least twice", and there was no evidence of any other officer striking Mr Shalhoub's head. A "few" is a small number, perhaps not the Biblical eight (KJV 1 Peter 3:20, cf 2 Peter 2:5) but, in context, more than two. I find that Officer Dunn repeatedly struck Mr Shalhoub, on the head and face, to cause the injuries to Mr Shalhoub. There is no evidence to the effect, and I do not accept, that Mr Shalhoub's injuries occurred when he went to ground on the grass. In the police interview, Officer Gray asked whether a "scratch" was "caused from the roadway", to which Mr Shalhoub said, "Yeah, everything yeah". But in context, viewing the recording, the "roadway" was not a term Mr Shalhoub used and it seemed to be understood by him as a reference to the incident rather than the road being the mechanism of the resulting injury.

(b) Officer Dunn's search

1. The second specific item of alleged unreasonable force was contained in the evidence of Mr Shalhoub about the search conducted by Officer Dunn sometime, as much as half an hour (T75/10), after he was handcuffed: "Q. Then what did they do in relation to your pants? A. They felt my private area. They-- Q. Were your pants on when they did that or had they been lowered? A. No, they were on when they did it. They patted me down and he said to me, 'What's inside there?' I said, 'It's my penis.' And he said, 'Mate, what's there?' I said, 'It's my penis.' And he goes, 'Come on, mate,' and then he flopped my - he undone my button, pulled my pants down, and he started taking my penis out and he grabbed it, and I start screaming at him, and then he stopped it" (T75/34-43). The police officer than pulled his pants back up. Whether Mr Shalhoub's underpants were pulled down is not clearly asserted (see T129/4-14). Mr Shalhoub gave evidence that Officer Muir was next to him during the search (T76/17).
2. Mustapha Neffati also gave evidence that Mr Shalhoub: "was being searched and I remember hearing him - him saying, 'What are you doing? Why are you touching me there' because I'd looked over and they were touching him in his - in his private area whilst searching him." (T191/16-19). Mustapha Neffati was not cross-examined about this evidence.
3. Officer Hurney denied seeing any search of Mr Shalhoub. Officer Dunn gave evidence that he searched Mr Shalhoub "just an ordinary search so over the clothes" (T341/13). Officer Dunn took Mr Shalhoub's belt off, and he said: "we just basically use our hands to pat down and crush any areas of clothing that are loose, checked his pockets, pulled his pockets out, and then we have a technique where we call the blade of hands so we use this part of our hand and we use this to go up on both sides of the - whoever we're searching's groin, just to make sure there is nothing there" (T341/16-20).
4. When asked "did you do that or both of you - you and somebody else or just yourself? Or can't you remember", Officer Dunn answered: "I think a couple of us did it, I can't remember" (T341/30-32). Officer Dunn denied pulling Mr Shalhoub's trousers down, pulling Mr Shalhoub's penis out of his trousers or placing his hand on Mr Shalhoub's penis, seeing anybody else do that, or hearing Mr Shalhoub saying anything about his penis or the search. Nor did Officer Dunn give evidence of orally forewarning a search of Mr Shalhoub's groin.

(c) Analysis of the search

1. Mr Shalhoub's evidence of complaining about the search and being touched "in his private area" is supported by Mustapha Neffati. It also finds some support from Officer Dunn, removing his belt, perhaps unbuttoning the top of his jeans, searching his groin on both sides and accepting that he "had him down around his groin". Further, Officer Muir's interjection in the CD of the interview asserting "Yeah, that wasn't me, Andrew", rather than "That didn't happen" or the like, is also of some support for Mr Shalhoub's account, as is Officer Muir's evidence of Officer Dunn "scrunching" Mr Shalhoub's pockets.
2. On the other hand, Officer Dunn and Officer Muir both denied Mr Shalhoub's account, and the particular allegation of Mr Shalhoub's pants being pulled down. The allegation that Mr Shalhoub's penis was then grabbed was denied and was not in cross-examination directly put to Officer Dunn or to Officer Muir. I must take into account the seriousness of the allegation and, in accordance with the Briginshaw test, the level of probative evidence needed to comfortably persuade me of a serious matter. I also take into account that, although it was dark, there were a number of other police present which might impact on the likelihood of the alleged conduct occurring.
3. There was no evidence of a search in respect of either Mustapha Neffati or Wassim Neffati, or of any direction by Officer Love for Officer Dunn to conduct a search, or any explanation of the reasons why a search was reasonably necessary. By this stage, Mr Shalhoub had been handcuffed for perhaps 30 minutes (T75/10) with his hands behind his back.
4. In all these circumstances, I accept that Mr Shalhoub was searched about his groin area, that his belt was removed and the top button of his jeans was undone, that Officer Dunn squeezed his penis whilst "scrunching his pockets" and, on balance, also grabbed his penis, when covered by his underpants, when clumsily further investigating his groin area during the search. I am not satisfied that Officer Dunn pulled Mr Shalhoub's underpants down, or grabbed or squeezed his naked penis, or that Officer Dunn's actions were done other than in the belief of carrying out a thorough search. Whilst the search would constitute an assault unless done lawfully, which I have already found did not occur, nevertheless, I do not find that Officer Dunn intentionally sexually assaulted Mr Shalhoub. I am not satisfied that the manner of the search that was conducted involved only such force as was reasonably necessary.

H. Was the period of detention justified?

1. The police VKG records establish that Mr Shalhoub and the other occupants of the Lexus were stopped and removed from the car at about 2.20am.
2. After handcuffing Mustapha Neffati, Officer Casey went to check on the welfare of the other police officers. She said, "That's when I turned around and saw the person that they [Officers Hurney, Dunn and Muir] had taken out of the car [Mr Shalhoub] on the ground" (T442/17). She said she touched the side of Mr Shalhoub's face and had a brief conversation with him. Officer Casey departed to check on other officers. She subsequently returned and said the statutorily required words concerning stalking to Mr Shalhoub. The police documents show that Mr Shalhoub was arrested at David Rd, Barden Ridge at 2.40am (Ex A, p 63) or 2.50am (Ex A, p 133) in the belief that he was "stalking/intimidating an off duty police officer" (T448/15-17, Ex A, p 63). After investigating the contents of Wassim Neffati's mobile phone, the police concluded that Mustapha Neffati and Mr Shalhoub were not in the car at the time that the car appeared to be following the off-duty female police officer (T451/7-35). Mustapha Neffati was released but Inspector York decided that Mr Shalhoub (along with Wassim Neffati) should be taken to Bankstown Police Station (T452/13-19), perhaps in connection with an investigation of "resist arrest" (Ex A, pp 94.1, 136.4, T457/40-T458/2, T458/20). At 3.05am (Ex A, pp 129, 133), Mr Shalhoub was placed in a police van and conveyed to Bankstown Police Station. He arrived at 3.25am (Ex A, p 129), took part in a police interview from 5.46am to 6.08am and was released without charge at 7.40am.
3. An unreasonable period of detention is only of significance on the question of liability if the police officers were entitled to arrest and detain Mr Shalhoub, which I have not found. Mr Shalhoub was entitled to resist, forcefully, the unlawful arrest and assaults. But if the arrest for stalking was lawful, contrary to my several findings, then Mr Shalhoub was not then entitled to resist arrest.
4. Mr Shalhoub said he did as he was asked, he put his hands outside the car (as Officer Casey directed) and the officers then pulled him from the car onto the ground without saying anything, and thereafter he was protecting himself with his hands and arms as he lay face down on the ground.

(a) Events, injuries and claimed damages

1. The assessment of Mr Shalhoub's damages is informed by the following circumstances. As a passenger he was forcibly removed from Wassim Neffati's car, brought to the ground, grabbed by Officer Muir and forcibly struck by Officers Hurney and Dunn, with repeated hammer strikes to his arms by Officer Hurney (T290/20; Exhibit A p 83) and shoulder area by Officer Dunn (T339/21), knee strikes to his back by Officer Hurney (T290/7; Exhibit A, p 83) and hammer strikes a few times on the head and facial area by Officer Dunn, as a result of which Mr Shalhoub became groggy or wholly or partially lost consciousness, and was handcuffed.
2. Subsequently, perhaps as much as 30 minutes later, after he had sat without apparent complaint, Mr Shalhoub had his belt and perhaps shoes and socks removed in the course of a search, had his groin searched and his penis grabbed or squeezed as part of that search, was formally informed of his arrest for stalking a police officer, found to be innocent of that offence but still kept under arrest. He was then taken to the police station and, more than two hours after arrival, interviewed in connection with resist arrest. After the interview, some 5 hours and 20 minutes after he first was removed from the Lexus, Mr Shalhoub was released.
3. Mr Shalhoub's injuries included a bleeding cut to the mouth (T442/18-22, T444/5, T467/49-468/7, T479/36), bruising around his eyes (T152/9, Ex A, pp 163-165) and bruising on his left side (T147/1-17, T154/34-47).
4. On 9 June 2015 Dr Megan Lovesey examined Mr Shalhoub and recorded (Ex B): "currently has a headache, intermittent Worsened by lateral neck movements throbbing over occiput… sore face, sore left knee, sore back", "two small lumps over left and right occiput", pain when moving neck to the left and small lacerations and abrasions. Nine days later, on 18 June 2015 Dr Victor Wei examined Mr Shalhoub and recorded: "Ongoing headaches with dizziness … [patient] feeling anxious at times, [especially] after encountering police severe anxiety attacks when he sees police affecting his function".
5. Dr Phillip Brown, psychiatrist, provided a report dated 10 August 2015 where Mr Shalhoub identified his injuries as the following (Ex A, p 36): "- Both of his eyes were swollen and he had grazes on the left lateral side of his face. - His back was bruised, across his right shoulder and at his right and left loins… - He also had pain in his neck. He had pain in his left knee and was unable to walk on his left leg. - He had large lumps at the back of his head from the assault…there were three lumps.'" Dr Brown diagnosed mild specific phobia of Adverse Interaction with Police (Ex A, p 248).

(b) The Civil Liability Act 2002

1. The defence pleaded provisions of Part 7 of the Civil Liability Act 2002 ("CLA"), referring particularly to ss 51 to 54 inclusive. These sections, in general terms, provide that Pt 7 applies to personal injury damages (s 51); that there is no civil liability for self-defence against unlawful conduct (s 52), even if the conduct constituting self-defence was not a reasonable response (unless the circumstances were exceptional or it was otherwise harsh and unjust) (s 53); and that no damages are to be awarded if it occurred at the time of or following a serious offence by the plaintiff unless the defendant's conduct was criminal (s 54). The defence also referred to s 3B(1)(a)(ii) of the CLA which provides for the application of Pt 7 except in cases of intentional injury and sexual misconduct.
2. There was no basis for any assertion of self-defence by the police officers. No reference to the Pt 7 provisions was made by the State in opening or closing submissions, orally or in writing (although the pleading of it was mentioned in passing in supplementary submissions dated 24 November 2017). The State did assert that Mr Shalhoub resisted arrest, although since the arrest was not lawful, the foundation for the assertion is lacking.

(i) Unlawful imprisonment damages

1. A question arose after closing submissions as to whether the CLA has any impact on damages. Part 2 of the CLA applies to "personal injury damages" (s 11A CLA) and precludes any award for damages for non-economic loss unless "the severity of the non-economic loss is at least 15% of a most extreme case" (s 16 CLA). Damages for non-economic loss are reduced where the severity is less than 33% of a most extreme case (s 16(3)) and interest is not payable on non-economic loss (s 18). Mr Shalhoub's damages are "non-economic loss" but are they "personal injury damages"?
2. "Personal injury damages" relevantly means "damages that relate to the death of or injury to a person" and "injury" means "personal injury" which relevantly "includes…impairment of a person's physical or mental condition" (ss 5 and 11, CLA). While damages for assault and battery are likely "personal injury damages", the same cannot be so readily said of damages for wrongful arrest and unlawful imprisonment.
3. In a claim for damages for false imprisonment (or perhaps sometimes better expressed as "unlawful detention", see State of NSW v Le [2017] NSWCA 290 at [3]), the Court of Appeal expressly raised, but did not ultimately decide, whether the damages were "personal injury damages" and thus would be subject to the limitation in the CLA (see Le at [24]-[26]). Damages for the tort of false imprisonment involve compensation for deprivation of liberty and for "loss of dignity and reputation": Goldie v Commonwealth of Australia (No 2) [2004] FCA 156 at [4], damages loosely analogous to damages for defamation.
4. Are damages for deprivation of liberty and loss of dignity and reputation to be regarded as "personal injury damages"? They seem not of themselves to involve "impairment of a person's physical or mental condition", nor (noting the definition of "personal injury" is inclusive only) would they come within the ordinary meaning of the term "personal injury". But Goldie at [14] refers to "mental suffering" among the types of damages compensable in a false imprisonment claim, and mental suffering is not so readily distinguished from "personal injury". Perhaps a part only, some but not all, of the damage compensable in a wrongful imprisonment claim could be personal injury damages within the meaning of the CLA.
5. The matter was dealt with in New South Wales v Williamson (2012) 248 CLR 417; [2012] HCA 57, a decision not referred to in Le, where a majority (French CJ and Hayne J at [32]-[34], Kiefel J at [45], Crennan and Bell JJ not deciding at [39]) dealt with the nature of false imprisonment damages, as follows: "[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) cause personal injury. There may be cases where an act of false imprisonment itself causes psychiatric, even physical injury. [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'."

(ii) Section 3B(1)(a) of the Civil Liability Act 2002

1. Conversely, the damages for battery are clearly personal injury damages and are subject to the limiting provisions of Pt 2 of the CLA, unless excluded by s 3B(1)(a) of the CLA.
2. Section 3B(1)(a) of the CLA provides: "3B Civil liability excluded from Act (1) The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows: (a) civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person - the whole Act [save for some presently irrelevant exceptions]".
3. Accordingly, the CLA is excluded from claims involving "an intentional act" done "with intent to cause injury" or an intentional act "that is sexual assault or other sexual misconduct".

(iii) Intentional act

1. There is no question that the acts of battery on Mr Shalhoub were intentional acts. The police intentionally used force upon him including by hammer strikes, some to the head by Officer Dunn, and Officer Dunn intentionally searched Mr Shalhoub's groin area.

(iv) Done with the intent to cause injury

1. The purpose of the hammer strikes by the police was to compel compliance. That necessarily involved substantial force causing pain. The bruises on Mr Shalhoub, including his head, evidence the force of those blows. They were forceful "hammer strikes" and "knee strikes". Although I do not find that they were done with the intent to cause long-lasting injury or disability, the applicability of s 3B(1)(a) does not require this.
2. I would infer that the intent of the forceful blows was to cause significant pain and weaken or impair Mr Shalhoub's ability to resist so that he would comply with police demands. In my view, that evidences intent to cause injury. No level of seriousness of the injury is identified in the CLA, but injury includes an "impairment of a person's physical…condition". This would include numbing and knee strikes and hammer strikes to Mr Shalhoub, causing pain and weakness so as to impair his ability to resist.
3. Bruising is a clear impairment of a person's physical condition as it involves damage to the tissue and impairs function. It was a necessary consequence of the blows to which Mr Shalhoub was subjected. The specific intent of the police blows was not to cause bruising but pain and a physical inability to resist, but the police were at least unconcerned of the likelihood of bruising for it was an inevitable result. This could be described as "recklessness", reckless as to whether injury in the form of bruising would result.
4. The question of whether recklessness is a sufficient intent under s 3B(1)(a) was considered in Croucher v Cachia [2016] NSWCA 132. Leeming JA at [117]-[118] noted that the matter was not clear, referring to a view by Hoeben CJ in CL in Hayer v Kam [2014] NSWSC 126 that "subject to authority", recklessness did not satisfy s 3B(1)(a). Leeming JA also referred to a contrary view, and did not express a conclusion.
5. The precise ambit of "intent to injure" is not clear. In some contexts, including in the criminal sphere, intent has commonly included the concept of recklessness. It may be thought that if s 3B(1)(a) was to adopt a narrower concept of intent so as to exclude recklessness, it could easily have been expressed in the legislation. It might be thought that the limitation of common law rights in the absence of an intent to injure should not be enlarged beyond what is required by clear words or necessary intendment (Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 at [36]; [2003] HCA 33, Konneh v State of New South Wales (No.3) [2013] NSWSC 1424 [27]-[32]). If that is so, any ambiguity about whether intent to injure includes recklessness should be resolved in favour of the broader meaning of intent.

(v) Sexual misconduct

1. Mr Shalhoub did not submit that the conduct of Officer Dunn in relation to the search of Mr Shalhoub's groin was done with intent to cause injury. Thus, even though it was an intentional act, this component of s 3B(1)(a) is not satisfied. The exclusion of the CLA in s 3B(1)(a) is not enlivened unless the search constituted sexual misconduct.
2. The conduct of Officer Dunn in conducting the search was an unlawful assault, and therefore was unacceptable and improper so as to constitute misconduct. But is it sexual? It is connected with a sexual organ, but Officer Dunn's conduct did not involve any sexual desire or gratification. Whether sexual desire or gratification is a requirement for sexual misconduct generally might be doubted. Sexual misconduct seems to depend on the nature of the conduct, rather than the motivations or feelings of the offender.
3. The act of Officer Dunn was also intentional: I have found that the search of the groin area by Officer Dunn was an "intentional act", although not intentional sexual misconduct. Can conduct be an intentional act amounting to sexual misconduct, without being intentional sexual misconduct? The act is intended, even if it was not intended to be sexual in the conventional sense.
4. An ambiguity about whether conduct constitutes sexual misconduct might ordinarily be resolved by a finding in the negative. But in this case, the finding is to deny a person a common law right to damages. The alternative finding enlivens s 3B(1)(a) but does not operate to convict the offender. For this reason, I do not think that sexual misconduct in s 3B(1)(a) should be given a narrow construction, and I find that under this provision, if not in other contexts, the conduct of Officer Dunn in grabbing Mr Shalhoub's penis in the course of an unlawful search constituted sexual misconduct under s 3B(1)(a).
5. For this reason, I find that s 3B(1)(a) of the CLA does not operate to limit the damages of Mr Shalhoub arising from the unlawful search.

(c) Damages for unlawful arrest and imprisonment

1. The tort of false imprisonment is a tort of strict liability focussed on the "vindication of liberty and reparation to the victim" rather than any wrongdoing on the part of the defendant (Smith at [153]). Damages for the tort compensate not only for the loss of liberty, but also for the loss of dignity and reputation (Goldie at [14], J Fleming, The Law of Torts 8th ed, LBC (1992) at 29, Smith at [154]). Thus, damages are assessed by reference to the duration of the deprivation of liberty, and for hurt or injury to feelings such as by the "injury, mental suffering, disgrace and humiliation suffered as a result of the false imprisonment" (Trindade and Cane, The Law of Torts in Australia, 3rd Edition, OUP (1999) at 302, Goldie at [14], Smith at [154]).
2. There is not "some kind of applicable daily rate". A substantial proportion of the ultimate award is for "the initial shock of being arrested" (Ruddock & Ors v Taylor (2003) 58 NSWLR 269; [2003] NSWCA 262, Thompson; Hsu v Commissioner of Police of the Metropolis [1998] QB 498 at 515). An "interference with personal liberty even for a short period is not a trivial wrong" (Watson v Marshall (1971) 124 CLR 621 at 632; [1971] HCA 33, Smith at [157]).
3. The plaintiff referred to Zaravinos, where an amount of $25,000 was awarded which included an aggravated and exemplary component of damages. In Delly, $25,000 compensatory damages was awarded. In Moses v State of NSW (No 3) [2010] NSWDC 243, an amount of $35,000 for general damages was awarded for false imprisonment which involved an eight to nine hour detention.
4. In Zaravinos, three hours and 23 minutes of detention was found to be "unnecessary, highhanded, humiliating and unnecessarily long" (at [49]). The evidence in that case of humiliation and distress might have been more cogent than here, but there are other aggravating factors in this case which were stronger than in Zaravinos. Here the unlawfulness of the imprisonment was separately established on four different bases: Officer Love had no suspicion on reasonable grounds so that s 99(1)(a) and s 99(2) of LEPRA were not satisfied; Officer Love was not satisfied of the need to arrest so as to prevent a continuation of the offence (s 99(1)(b) and s 99(2)); the required statutory information was not given as soon as reasonably practicable, contrary to ss 201 and 202 of LEPRA, and the continued detention after about 3am when Mr Shalhoub was known to have not been involved in the suspected stalking was without any semblance of compliance with s 99. In addition, Mr Shalhoub was arrested in the middle of the night in the company of friends, by multiple police, was never offered any apology (see MacDougal v Mitchell [2015] NSWCA 389 at [33]-[34]) and was required to conduct a lengthy contested trial to establish his entitlement (where the State submitted that there were no aggravating factors and that Mr Shalhoub was dealt with appropriately for resist arrest) (cf Cheng v Farjudi [2016] NSWCA 316 at [110]). These are all aggravating factors.

(d) Damages for assault and battery

1. Mr Shalhoub submits that he is entitled to a separate award of damages for: "each of the established assaults although in respect of the assaults it is also being held that a series of assaults as part of an overall process can result in a single global award of general damages".
2. The physical harm necessitated brief attendances on a general practitioner and resolved completely some months later by 2 September 2015. The ongoing consequence of the police conduct is a "fear of police which itself contributes to a reduced social life". As this is a consequence of the physical harm and s 3B(1)(a) is satisfied, and also because s 31 of the CLA applies only to pure mental harm from negligence, the limitations on damages imposed by s 31 are inapplicable.
3. I regard the amount of $15,000, identified by Mr Shalhoub as an appropriate amount for compensatory damages (excluding aggravated damages) for the assaults of forcible removal from the car, being held and beaten by three police officers, including with repeated blows to the head, and the unjustified search of his private area, as a very modest amount for the assaults. I would propose to award it in full without regard to aggravating factors.

(i) Relevant principles

1. Aggravated damages are compensatory, assessed from the point of view of the plaintiff, whereas exemplary damages are of a punitive and deterrent nature and focus on the conduct of the defendant (Abed at [230], New South Wales v Zreika [2012] NSWCA 37 at [60]-[64]).
2. Injury to Mr Shalhoub's feelings, caused by insult, humiliation and the like are a component of aggravated damages, reflecting the circumstance where the manner of the wrongful act aggravated the harm done (see Lamb v Cotogno (1987) 164 CLR 1 at 8 ; [1987] HCA 47, Uren v John Fairfax (1966) 117 CLR 118; [1966] HCA 40, Abed at [213]).
3. Damages for false imprisonment are to reflect the "disgrace and humiliation" of an arrest. Yet this is also a factor of aggravation. Care must be taken not to double count an item of damage where the various categories of damages are not self-contained (see New South Wales v Radford (2010) 79 NSWLR 327 at [97]; [2010] NSWCA 276, Abed at [234]). Compensatory damages, including aggravated damages, must be awarded before considering whether, and what, exemplary damages should be awarded.
4. Exemplary damages go beyond compensation and are a punishment to deter similar future conduct, reflecting the Court's detestation (see Lamb at 8, Abed at [232]). An award of exemplary damages generally requires "conscious wrongdoing in contumelious disregard of another's rights" (Gray v Motor Accidents Commission (Gray v MAC) (1998) 196 CLR 1 at [14]; [1998] HCA 70, Abed at [232], although, "[c]onduct may be high handed, outrageous, and show contempt for the rights of others, even if it is not malicious or even conscious wrongdoing" (State of New South v Riley (2003) 57 NSWLR 496 at [138]; [2003] NSWCA 208, Abed at [233]).

(ii) Aggravated damages

1. I have identified above aggravating factors in respect of the unlawful imprisonment.
2. Some of those matters also aggravated the assault. Mr Shalhoub was in the company of friends. He was assaulted by three police officers at once, at night. He was assaulted when in handcuffs during the course of the search. There has been no acknowledgment of any wrong by the police.
3. I also take into account Mr Shalhoub's head injuries and recovery, and his continuing anxiety when viewing police officers.
4. In my view, Mr Shalhoub should be awarded $35,000 for the wrongful arrest, including aggravated damages, and $30,000 for the assault and battery, including aggravated damages.
5. These sums reflect not only the events of the assaults and imprisonment, including the aggravating factors I have mentioned, but also the time for recovery of Mr Shalhoub's injuries.

(iii) Exemplary damages

1. The State submits that there are only two possible areas that the Court would "show the Court's disapprobation of the contumelious disregard of the plaintiff's rights": the police conduct comprising Officer Dunn's hammer strikes to Mr Shalhoub's head, and Officer Dunn's search of Mr Shalhoub. The State further submits that those matters are de minimis.
2. The plaintiff submits that Mr Shalhoub's treatment was "unnecessarily high handed" in the decision, made apparently by Officer York, to continue his detention and be taken to Bankstown Police Station in circumstances where the reasons for it are unexplained and could not be justified. The same submission can be said about the lack of any real explanation by the State as to how the initial arrest was for reasons of preventing continued offences.
3. The failure of the police to apologise is relevant also to exemplary damages (see MacDougal at [33]-[34]). So also are the denials that required Mr Shalhoub to engage in a lengthy trial to vindicate his rights (cf Cheng at [110]). I am satisfied that an award for exemplary damages would not involve "double dipping" (cf MacDougal at [35]).
4. The hammer strikes to the head of Mr Shalhoub while he lay face down on the ground with three police officers restraining him involved a contumelious disregard of Mr Shalhoub's rights, and the repeated failures to satisfy the LEPRA requirements involving several officers, including in particular the continued imprisonment after 3.05am, go beyond "ordinary human fallibility" (Smith at [169]). I find that the strikes to his head, the unjustified search of his groin, the decision to retain him in custody without reason once the stalking allegation was found to have no merit and the several contraventions of LEPRA in the forceful arrest to each be contumelious and high-handed and warrant an order of this Court manifesting its disapproval. The failure of the State to regret or even recognise the inappropriateness of the conduct strengthens the basis for an award of exemplary damages.
5. In my view, an amount of $15,000 for exemplary damages is appropriate.

(f) Interest and costs

1. Interest was claimed in the amended statement of claim. An imperfect basis for the calculation of interest on damages for non-economic loss may be the difference between a return on a secure investment and the inflation rate (cf MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657 at 666; [1991] HCA 3 at [13]). There was no evidence of these rates, but I think the Court could take judicial notice of the circumstance that both rates are low. I would allow an interest rate of 1% per annum on the whole award.
2. Thus, Mr Shalhoub is awarded the following in damages: Amount awarded ($) Compensatory damages for wrongful arrest/false imprisonment, including aggravated damages 35,000 Compensatory damages for assault and battery, including aggravated damages 30,000 Exemplary damages 15,000 Interest 2,018.63 Total 82,018.63

J. Orders

1. The orders of the Court are: 1. Judgment for the plaintiff in the sum of $82,018.63. 2. Defendant to pay the plaintiff's costs.

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