Smith v State of New South Wales - [2016] NSWDC 55 - NSWDC 2015 case summary — Zoe

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Smith v State of New South Wales

[2016] NSWDC 55

District Court of NSW|2015-12-16

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At a glance

Source facts

Court

District Court of NSW

Decision date

2015-12-16

Catchwords

TORTS - wrongful arrest - false imprisonment
DAMAGES - assessment of general compensatory and exemplary damages Legislation Cited: Crimes Act 1900, s 10
s 195 Crimes (Domestic and Personal Violence) Act 2007, s 27, s 89 Law Enforcement (Powers and Responsibilities) Act 2002, Pt 9
s 99

Source

Original judgment source is linked above.

Catchwords

TORTS - wrongful arrest - false imprisonmentDAMAGES - assessment of general compensatory and exemplary damages Legislation Cited: Crimes Act 1900, s 10s 195 Crimes (Domestic and Personal Violence) Act 2007, s 27, s 89 Law Enforcement (Powers and Responsibilities) Act 2002, Pt 9s 99s 201 Police Powers and Responsibilities Act 2000 (Qld), s 374 Cases Cited: Adams v Kennedy [2000] NSWCA 152(1990) 170 CLR 104 Gray v Motor Accidents Commission [1998] HCA 70(1991) 171 CLR 657 NSW v Ibbett [2006] HCA 57(1968) 118 CLR 271 Ruddock v Taylor [2005] HCA 48(2003) 57 NSWLR 496 State of NSW v Talovic [2014] NSWCA 333

Judgment (31 paragraphs)

[1]

Table of Contents Nature of case [1] - [5] Issues [6] Credit [7] - [9] Facts [10] - [88] Circumstances of the arrest [11] - [34] Period of deprivation of liberty [35] - [57] Release from custody [58] - [59] Events following release from custody [60] - [68] Antecedent factual circumstances leading to arrest [69] - [80] Pre-arrest activity by police [81] - [88] Issue 1 - Whether a relevant estoppel arises [89] - [100] Issue 2 - Whether NSW orders operated in Qld [101] - [118] Issue 3 - Whether wrongful arrest and imprisonment [119] - [242] Plaintiff's argument of wrongful arrest [121] Defendant's argument of lawful arrest [122] - [124] Principles to be applied [125] - [130] Stated indications for the arrest [131] - [144] Time arrest was completed [145] - [155] Non-compliance with s 201(1) of LEPRA [156] - [176] Non-compliance with s 99(3) of LEPRA [177] - [215] Available alternatives to an arrest [216] - [241] Conclusion on plaintiff's claim of wrongful arrest [242] Issue 4 - Assessment of damages [243] - [280] General compensatory and aggravated damages [247] - [268] Exemplary damages [269] - [280] Interest on damages [281] - [282] Disposition [283] Costs [284] Orders [285]

[6]

Circumstances of the arrest

At about 9.20pm on Sunday 20 May 2012, the plaintiff, who was then aged 49 years, was at his home with his second wife and their two young children, then aged 6 months and 2 years, on their isolated rural property at Legume, which is located about 2kms south of the Qld border, in northern NSW.
At that time, two New South Wales police officers, Senior Constable Graeme Tye and Senior Constable Gary Stubbings, attended at the plaintiff's home and requested his presence at the front door to his house. The plaintiff's wife, who had been watching television in the front room of the house, had opened the door to the police, and on their request, she agreed to fetch the plaintiff, who had retired to bed for the night.
There was a dispute over whether the plaintiff had been in bed or had been watching television whilst sitting on a lounge when those police officers arrived. The plaintiff said he had retired to bed earlier in the evening. In contrast, to that evidence, Senior Constable Tye asserted that on his approach to the plaintiff's house, from his vehicle, and from an uncertain distance, which he estimated to be of the order of 10 metres, through a window at the front of the house, from the outside darkness of night, he had seen a man whom he later identified as the plaintiff, sitting on a lounge watching television: T55.30 - T55.36. The inference within that evidence was that there was a light on in that room at the time.
I consider that the means by which Senior Constable Tye said he had identified the plaintiff, by his view through a window, in circumstances where beforehand, the plaintiff was unknown to him, whilst perhaps being a peripheral matter, was unreliable. Instead, I prefer and accept the plaintiff's evidence that at that time, he was in bed. It is a peripheral matter as it has no bearing on whether the arrest was lawful or otherwise.
When, at the request of his wife, the plaintiff presented himself at the front door of his home in compliance with the request by the police that he do so, he was immediately arrested on being sighted by Senior Constable Tye: T68.50 - T69.5. For reasons that will be made clear, I consider that it was the plain intention of the arresting officers that the plaintiff be immediately arrested, detained and transported to a police station for matters ancillary to that arrest, more particularly in relation to the processing and service of a provisional apprehended domestic violence order obtained at the instigation of the plaintiff's ex-wife.
Immediately following his arrest, the plaintiff was in a state of shock at the police having just turned up at his home to arrest him without beforehand having asked him any questions. He said, and I accept, that at that time, he was too shocked to ask any questions, as he was not expecting to be arrested as soon as he opened his front door: T9.10; T16.35.
In reaching that conclusion, I have not overlooked that there was a dispute between the evidence of the plaintiff and the two attending police officers as to what was said in the events of the arrest and in the aftermath of that arrest. There were also significant differences between the evidence of those two officers as to what the plaintiff was alleged to have said. Those differences ultimately led me to doubt the reliability of their evidence.
Immediately after the plaintiff had been told he was under arrest, he asked permission from the police officers that he be allowed to go to his bedroom in order to change from his pyjamas into some other more suitable clothing. For that purpose, he was then permitted to go, unaccompanied to his bedroom, which was located out of sight elsewhere in the house. In those circumstances, the plaintiff was told to dress warmly as it was cold in the back of the police wagon where he would be placed.
Given that the initially stated reason for the attendance of two police officers to effect the arrest of the plaintiff was a stated concern over police officer safety, in the rural setting, it seems extraordinary that the plaintiff was in those circumstances, permitted to go to his bedroom unaccompanied, and to then remain out of sight of the arresting police officers for some minutes whilst he changed his attire. I infer from those circumstances that following the arrest of the plaintiff, the police officers were not concerned about their own safety. A check had already been undertaken by the police to determine whether the plaintiff had a criminal record. A check was also made as to whether it was likely the plaintiff had a firearm. Senior Constable Tye had satisfied himself that was unlikely.
The plaintiff said that whilst he went to his bedroom to get changed, those police officers had remained on the front lawn outside the house, whereas the police officers stated they were on the front porch of the veranda. In my view, that slight difference in those respective accounts is not material, as it was possible they had changed their location.
After the plaintiff had dressed and had re-presented himself to the police officers at the front door of his home, in the presence of his wife, he was then subjected to a pat-down search, which did not reveal anything untoward. This was obviously a humiliating event for him, although it was a necessary consequence of his arrest.
The only significant matter the plaintiff recounted concerning the interchange that took place at the front of the house after the arrest was that he had asked the police officers to identify themselves, and to identify which state they were from. That was a reasonable question in the circumstances, given the evidence of the police officers and the close proximity to the Qld border. The plaintiff said they told him they were from NSW, that their uniform was their identification, and that they were there in order to take him to the police station: T9.12 - T9.28.
The account of that initial interchange, as given by the police officers, was different to that of the plaintiff.
The evidence of Senior Constable Tye was that when the plaintiff opened the front door, their interchange was as follows: "Q. Then you gave some evidence that Mr Smith opened the door. Did you say anything to him at that stage? A. I said, "Hi, are you Peter Smith?". He said words along the lines of "Yeah, what's wrong, there better be something wrong because its late on a Sunday night." Q. Did you say something or? A. I said back that "Well your ex-missus has made an allegation of a domestic incident and I have to place you under arrest and take you back to Woodenbong Police Station", or "you have to come back with us to Woodenbong Police Station". The exact wording's in my statement which I made a few weeks afterwards. Q. Had you had a look at that statement prior to giving evidence today, is that right? A. I've been over it a couple of times, yeah. Q. Did you say anything more at that stage? A. He said, "Can I get changed?" because he appeared to be in his pyjamas or night attire I would call it. I said, "Yeah, get changed because its cold out here." It gets quite cold in the country areas. Q. What happened then? A. He closed the door and went back inside. Senior Constable Stubbings and I waited out on the porch. Q. How long approximately was he inside the house? A. Would have only been five minutes. It wasn't a long time. I would be about five minutes. Q. Then when he came back -- well did he come back? A. Yeah, he reappeared. He was dressed in a jumper and tracksuit pants. He had socks in his hands and then he was scrimmaging around as if he was looking for shoes on the porch. Q. Did you have a conversation with Mr Smith at that stage? A. Yes, he said, "Aren't you going to read me my rights or something?". I said, "Yeah, well if you sit still long enough I will." Then I went -- I continued and I said: "So my name is Senior Constable Tye. I'm from Woodenbong Police Station. At the moment you're under arrest for a domestic incident -- alleged domestic incident that occurred earlier with your ex-missus. You don't have to say or do anything if you don't want to but anything you do say or do may later be used in evidence. Do you understand that?" He said, "Yes", and he was putting his shoes on as I was speaking to him about that. Q. Yes. A. He finished putting his shoes on. I just said to him that "We have to just search your pockets, make sure you haven't got anything on you." Q. Where did that occur? A. I think it was when we were still on the front porch. It wasn't far between the porch and the car so it would only be within a space of around 10 metres." Q. While you are or after you'd searched him what happened then? A. We put him in the back. It's a -- it's a Mitsubishi Pajero and it has a cage in the back and we opened the back boot door. We put him in the back there and closed it and we left. Q. Did -- was there any other conversation, other than the ones that you've told his Honour about, about any topics while you were at his property? A. Well while he was getting ready and after I'd spoken to him about the -- about my name and placing him under arrest and so forth he was -- what's the better word for it? He was talking about how much money he had, how the police owed him a debt because the police radio have their tower on his land and he was just going on and on about all this sort of stuff. But I just ignored him. It wasn't relevant. Q. So you didn't say anything in response to that? A. No. Q. You've described putting him in the back of your vehicle, is that right? A. Yes. Q. Then how -- you drove back to -- well what did you do then after putting him in the vehicle? A. Senior Constable Stubbings and I both left and we drove back to Woodenbong Police Station. Q. Approximately what time was it when you left Mr Smith's house? A. Around 9.30." [T56.27 - T58.10]
Senior Constable Tye acknowledged that he had arrested the plaintiff "virtually as soon as he opened the door": T68.46. At that time, he told the plaintiff he was under arrest "right now": T68.50 - T69.5. That evidence was consistent with the plaintiff's account of having been arrested on sight: T36.7.
Senior Constable Tye also acknowledged that when he had told the plaintiff that his ex-wife had made an allegation of a domestic incident against him, the plaintiff was by that time no longer free, as he had already been arrested: T68.49 - T69.16. Senior Constable Tye also acknowledged that at that time, he had not yet told the plaintiff his name, or the police station from which he had come: T69.18 - T69.27.
Senior Constable Stubbings gave evidence that was in some respects, inconsistent with aspects of the evidence of Senior Constable Tye, concerning the content of the interchanges between the police officers and the plaintiff at the plaintiff's home.
In particular, in his evidence, Senior Constable Tye had recounted that the plaintiff had been "going on and on" about having money, and about the police being indebted to him because of the presence of a police radio communication tower located on his property. In his evidence in chief, Senior Constable Stubbings stated that whilst they were on the plaintiff's property, there had been no conversation on any topics other than the details of the arrest: T91.11 - T91.33.
That evidence seemed to be internally inconsistent, as Senior Constable Stubbings had earlier stated that the plaintiff "was doing a bit of talking, quite a bit of talking at the time … the majority of the talking" before he asked the police officers about his legal rights: T91.1 - T91.6. It is pertinent to note that the plaintiff's enquiry about being informed of his legal rights had taken place after he had already been arrested.
Although Senior Constable Stubbings said he could not recall what was being said at that time, I do not accept his general description which was to the effect as cited in the preceding paragraph because of his denial of there having been any discussion "on any other topics": T91.33. That evidence from Senior Constable Stubbings also seemed at odds with the detail which he had recounted of the conversation as having occurred at the front door of the plaintiff's home, particularly the highlighted portion, as follows: "Q. When he came to the door, did either you or Senior Constable Tye have a conversation with him? A. Yes, Senior Constable Tye said to him, "Are you Peter Smith?" and Mr Smith said, "Yes, what's wrong?" Senior Constable Tye said, "Your ex missus has made a complaint in relation to a domestic incident, you're under arrest and you need to come back to the police station with us." Mr Smith became a little bit upset, I think it was something like I think he said, "Fuck, this is fucked", and then started walking away. Then he's turned around and said, "Can I at least get some clothes on?" Senior Constable Tye said, 'Yep that's fine", Mr Smith walked into the house, like further into the house and from where I was standing behind Senior Constable Tye looking into the house, Mr Smith went to the left, on my left. He was saying something, I could just hear him saying something which I formed the opinion at that time he obviously wasn't happy about the arrest which most people aren't. He was gone for probably a couple of minutes." [T90.10 - T90.24] [Emphasis added]
I consider that if at the time of the arrest, as was claimed by Senior Constable Stubbings, the plaintiff had truly said words to the effect "Fuck, this is fucked" to Senior Constable Tye, this would have been something significant and memorable such that Senior Constable Tye would have both noted and then recounted this in his evidence.
The absence of such evidence from Senior Constable Tye to that effect persuades me that Senior Constable Stubbings' evidence on this point was unreliable, and incorrect. I am reinforced in that view because, in the described context, such an utterance would more likely than not have been seen as being an aggressive response by the plaintiff, yet both officers denied there was any display of aggression on the plaintiff's part: T80.10; T106.7. Furthermore, the terms of the cited utterance "Fuck, this is fucked", had not been put to the plaintiff in cross-examination for his comment.
Accordingly, I prefer and accept the plaintiff's account of the interchanges between himself and those police officers at his home as being more likely to be accurate and correct.
Senior Constable Tye acknowledged that before he arrested the plaintiff, he had not taken any steps to seek to ascertain the plaintiff's version of events in order to see if it was in any material respect different to the information provided by the complainant, the plaintiff's ex-wife: T76.30. That evidence persuades me that it was the intention of the arresting police officers to arrest the plaintiff on sight, as is claimed by the plaintiff.

[7]

Period of deprivation of liberty

Following his arrest, the plaintiff was escorted to the nearby police wagon by both officers, one of whom had placed a hand just behind the plaintiff's elbow to guide him towards the police vehicle.
Although Senior Constable Stubbings said the plaintiff had not been touched by the police officers as he was taken to the police wagon (T91.20), I consider the plaintiff's specific evidence on that matter, based on his direct perception, was more reliable than the more generalised account of Senior Constable Stubbings, who was speaking for both officers. Whilst, Senior Constable Stubbings may not have touched the plaintiff, in the darkness, it appears that he was not in a position to definitively state that Senior Constable Tye had not touched the plaintiff.
That said, although I accept the plaintiff's account on that matter of detail, other than on the question of reliability of testimony, I consider that nothing of substantive significance turns on that difference in the evidence, as once an arrest had taken place, the subsequent action of physically guiding the plaintiff to the police vehicle was not an unexpected consequence.
The plaintiff was then placed into the locked rear caged section of the police wagon. In the course of the ensuing journey, which lasted about 45 minutes, he was transported to Woodenbong Police Station, where his detention and imprisonment continued.
During that journey, the plaintiff had to remain seated on a metal bench seat in the caged section of the vehicle, without any seatbelt available to secure him within the vehicle. The ensuing road journey took a winding course through many bends, and involved many bumps, on a very poorly maintained steep, rough and potholed road. In what I took to be a markedly pronounced understatement by the plaintiff on this subject, he said he was "not overly comfortable" on that journey, which also took place in cold conditions.
On arrival at Woodenbong Police Station, the plaintiff was asked if he wanted to provide a formal statement, and was informed that if so, it would be necessary for him to be taken to the police station at Lismore, which would have involved a further 90 minute journey in the back of the police wagon. That would apparently have been necessary as Woodenbong Police Station did not have facilities for a video statement to be recorded.
The plaintiff said, and I accept, that he was very stressed in the described circumstances. Understandably, he declined the offer of continued transportation to Lismore. Instead, the plaintiff was detained in an enclosed lock-up area within the single room police station at Woodenbong.
There was a dispute between the evidence of the plaintiff and the two police officers concerning the events which had transpired at the police station.
The plaintiff said that when he entered the police station at Woodenbong he was taken directly to a secure room within the main room of that station. The area in which he was placed, comprised a wire-meshed lock-up cage. The plaintiff said he was then locked in that caged area.
The plaintiff disagreed with the suggestion that the door to that area had been left open at all times: T41.4; T41.16; T41.24 - T41.26; T41.32. The plaintiff stated that later in the evening, he was allowed out of that area in order to use the toilet outside at the back of the building, and on his return, he was then allowed to wait in the unlocked main part of the room until the police had finished processing their paperwork: T42.39 - T42.45.
In contrast, Senior Constable Stubbings, who had assumed the role of custody manager at the police station at Woodenbong that evening, maintained that the door to the cell where the plaintiff had been held in custody, was left open, and that this had occurred under his supervision as custody manager, in breach of police regulations and guidelines: T110.15 - T110.30.
I do not accept the evidence that the door to the cell had been left open during the initial period of the plaintiff's arrest being processed. It seems contrary to the notion of arrest and custody, given the acknowledged potential risk of escape: T110.45. Furthermore, Senior Constable Stubbings agreed that if the practice of leaving the cell door open had been adopted, it would have been something that would have attracted the disciplinary disapproval of the inspector responsible for supervising them: T111.1 - T111.7. I consider it most unlikely that these two senior constables would have taken that risk, or the risk of injury or worse being possibly occasioned to the plaintiff, or to others, during a time where police regulations concerning custody requirements were being breached.
Senior Constable Tye stated that the plaintiff had been placed in the dock within the custody area of the police station where he sat on a long seat with the door left open: T58.23. I considered that evidence of the door being left open at the time the plaintiff was placed in that area, to be implausible, especially given the lengths to which the police officers had gone in order to undertake an effective and secure arrest of the plaintiff, and the secure manner in which they had transported him to the police station from his home.
It is useful at this point to also refer to the custody management record, which is a contemporaneous document that was presumably prepared by Senior Constable Stubbings. The document described the plaintiff as having been placed into a cell, which suggests that he had been placed into an enclosed area: Exhibit "1", p 14.
I accept the evidence of the plaintiff, in which he stated that he had been locked up, imprisoned and detained in that wire-meshed or caged space located at the end of the room comprising the police station for the entire time he was in that police station except for the time that he used the outside toilet, and thereafter. Whilst the plaintiff was in that cell, he lay on the bench within that lock-up, whilst the police officers attended to their required paperwork tasks: T13.8 - T13.23.
Whilst at the police station at Woodenbong, the plaintiff was charged and given a court attendance notice in relation to an alleged offence contrary to s 195(1)(a) of the Crimes Act 1900, for allegedly intentionally or recklessly destroying or damaging property, namely the windscreen of his ex-wife's vehicle, initially described as involving damage of $1500. That damage was later described as being to the value of $250. Those estimates had apparently been obtained from the plaintiff's ex-wife, Cheryl Smith who did not give evidence in these proceedings.
Whilst at the police station, the plaintiff was also given a provisional apprehended domestic violence order. It was plain from the evidence that this was the real purpose of his arrest and transportation to the police station although "witness welfare" was also stated to be a consideration: T54.23 - T55.7. When he was served with that documentation, he was also required to agree to comply with the terms and directions of that order. After he did so, he was then released on bail.
That provisional apprehended domestic violence order, which was authorised by an officer at another New South Wales police station, at Kyogle, at 12:24am (sic) on 21 May 2012 (Exhibit "1", p 42) and then faxed between police stations, was then served on the plaintiff by Senior Constable Tye at 00:30hrs on 21 May 2012: Exhibit "1", p 48.
The provisional apprehended domestic violence order served on the plaintiff was based on three factual allegations. The first allegation was that the plaintiff had, according to his ex-wife, taken two of their children in common and that "he was keeping them". The second allegation was the assertion that a heated argument had then ensued between them on that subject. The third allegation was that in the course of that alleged argument, the plaintiff had then allegedly maliciously damaged the windscreen of his ex-wife's vehicle with an implement.
As will shortly become plain from a review of the antecedent events, at the time of the plaintiff's arrest at 9.20pm, the second of those factual assertions was objectively incorrect. Furthermore, the incorrectness of that first assertion could have been readily identified and verified by a simple telephone call, had the arresting police officers spoken to the plaintiff about the circumstances before peremptorily arresting him.
This is because at some time between 8.00pm and 8.30pm on 20 May 2015, which was at a time no later than 5 minutes after Senior Constable Tye had completed obtaining a statement from Cheryl Smith, if not before, the plaintiff had already returned the two children to the agreed drop-off location near their home. It appears that on her return to Killarney in Qld after she had given her statement to Senior Constable Tye in Legume, NSW, which was some 15kms - 20kms away, Cheryl Smith did not later inform Senior Constable Tye of the fact that the children had been returned home.
Whilst that matter was not explored in the evidence, it is clear that in the period after he had obtained the statement of complaint from Mrs Smith, Senior Constable Tye did not take any steps to seek to speak further with Cheryl Smith before initiating the steps aimed at securing arrest of the plaintiff.
The commencement of the plaintiff's detention occurred when he was placed under arrest at about 21:20 hours. The journey by road to the police station at Woodenbong started at 21:30 hours and the arrival time at Woodenbong was 22:20 hours. At the police station, the plaintiff was cautioned under Pt 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 and he was formally assessed by Senior Constable Stubbings in his capacity as custody manager, at 22:38 hours: Exhibit "1", pp 16 - 18. The caution process took about 2 minutes: Exhibit "1", p 21. At 12:54 hours, after having been served with the apprehended domestic personal violence order at 00:30 hours on 21 May 2012, the plaintiff provided his signature on a bail undertaking before being released from police custody: Exhibit "1", pp 38 - 39.

[9]

Events following release from custody

In the discussions which followed his release from custody, the plaintiff was initially told that if the police officers had to take him back to his home, he would have to again travel home in the back of the police wagon. After some further discussion, it was agreed that he could sit in the front of the police vehicle for the journey to his home.
Whereas the journey from the plaintiff's home to the police station at Woodenbong took about 45 minutes, it was not until one-and-a-half hours after the plaintiff's release, that he was returned to his home, namely at 2.30am on 21 May 2012.
At the time the plaintiff arrived home, he described himself as being stressed out. He saw that his wife was also stressed, and that his two year old daughter, who was awake and waiting for him, was questioning the events. He said, and I accept, that he was unhappy at that time. He was sleepless for the remainder of the night. I took his evidence along those lines to be in the form of stoically restrained understatement.
Until the subject arrest, the plaintiff did not have a criminal record, or any history of adverse involvement with police. He had never before been arrested.
Since the described events, the plaintiff has experienced a marked psychological reaction. He described feeling that he no longer wanted to live at his premises, which he had owned since he was aged 18 years. Immediately after the events, he arranged to see a real estate agent to list his property for sale, although he was later talked out of that rash immediate reaction.
Over the ensuing 12 months following his arrest, the plaintiff also wound down his business activity of warehousing for sale to the public, imported motor cycles and machinery. He sold off his stock. He felt that he no longer wanted his premises to be open to the public. He felt that he was exposed to or open to be intimidated by the police, and he did not want to be there. He feared he was at risk of being dragged away by the police at any time, and he felt that his rights as a citizen would not protect him.
Before the events in question, the plaintiff had no occasion on which to be fearful of the police and he held no fears of being arrested. He did not have any previous dealings with either Senior Constable Tye or Senior Constable Stubbings. Before the events he had shown a cooperative attitude towards the police. In that regard, it appears that with his prior concurrence, the police force had at some time beforehand, erected a police radio communication tower on his property.
Since the events in question, the plaintiff's attitude to dealing with the police has significantly changed. He no longer feels protected by the police. He would prefer not to have any further interactions with the police unless absolutely necessary. He has installed a security gate at the front of his property. He has erected signs on his property stating: "Private Property", "No Entry" and "Authorised Personnel Only".
Before addressing the issues calling for decision, it is relevant to first say something about the antecedent factual circumstances which led to the police arresting the plaintiff, and secondly, to say something of the pre-arrest actions taken by the arresting police officers.

[10]

Antecedent factual circumstances leading to arrest

The antecedent circumstances which led to the plaintiff's arrest were founded upon longstanding interpersonal difficulties between the plaintiff and his ex-wife, and in this instance, concerned alleged events of the day that related to the plaintiff's access to his children from his first marriage.
The plaintiff's first marriage, to Cheryl Smith, had subsisted between 1992 and 2006. In that time, there were four children of that marriage. At the time of the events in question, the three surviving children of that marriage were aged 10, 12 and 18 years, and the youngest two of those children lived with Cheryl Smith: T5.35 - T6.3. Acrimony had continued to exist between the plaintiff and his ex-wife on some issues. Notwithstanding those circumstances, the plaintiff was entitled to access visits with his youngest children from his first marriage pursuant to an informal shared custody arrangement: Exhibit "1", p 6, par 3 - par 6.
It appears that in the past, some animosity had been expressed by Cheryl Smith towards the plaintiff's second wife, who was younger, and who had not long been in the country from the Philippines. The plaintiff stated that such animosity had extended to Cheryl Smith having threatened the plaintiff's second wife. As a result, Cheryl Smith was prohibited from entering the plaintiff's property: T21.26 - T21.34.
As a result of those described circumstances, the prevailing arrangement for picking up and dropping off of the children in question at times of access by the plaintiff, was that the plaintiff would pick them up and drop them off at an agreed location near his ex-wife's home, in Killarney in Qld: T21.33.
On the day in question, at a time when the plaintiff was exercising his right of access to his children, at about 5.25pm, and apparently contrary to their earlier arrangements, Cheryl Smith had driven her vehicle from Qld, partly onto the plaintiff's property, to seek to collect their two children in common. She was not supposed to enter the plaintiff's property: T21.34. She drove to a point just past a cattle grid at the entrance to where the plaintiff's parked truck had blocked further vehicular access. In those circumstances, a verbal altercation then occurred between the plaintiff and his ex-wife.
In that verbal altercation, the plaintiff had said the two children would stay with him until they had finished their evening meal, and that he would then return them home. This caused some dissatisfaction on the part of their mother, Cheryl Smith.
On the plaintiff's account, Cheryl Smith had then simply driven away after the verbal exchange. The plaintiff stated that at between 8.00pm and 8.30pm on the evening in question, in accordance with the pre-existing drop-off arrangements, and after the children had their dinner, and because the plaintiff made a point of not speaking to his ex-wife, he drove the children to a corner store at a point adjacent to their home in Killarney, in Qld, and dropped them there so they could walk to the house where they lived with their mother: T7.45 - T8.14. That drop-off point was about 100m from the house. The plaintiff did not see his ex-wife at that time: T23.43 - T24.8.
The plaintiff stated that he then drove home, showered and went to bed, where he remained until his presence was called for by the police, following which he was then arrested.
Cheryl Smith did not give oral evidence in these proceedings. The defendant tendered a police statement from her which gave a different account of aspects of the events which had been described by the plaintiff. That different account is as follows.
After making her earlier complaint, at 7.40pm on 20 May 2012, by arrangement with Senior Constable Tye, Cheryl Smith drove from her home at Killarney in Qld, to Legume in NSW, in order to meet with Senior Constable Tye, and to provide him with a formal written statement.
In that statement, Cheryl Smith alleged that beforehand, in the verbal altercation between herself and the plaintiff at the entrance to the plaintiff's property, the plaintiff had approached the vehicle in which she was seated with two other children she had from subsequent relationships. She claimed that the plaintiff had then proceeded to strike her vehicle a number of times with the metal head of a wooden handled tool, ultimately causing the glass windscreen of her vehicle to break, thus causing pieces of glass to fly towards her, following which she then drove away: Exhibit "1", p 7, par 7. In that statement to police, she formally applied for an apprehended domestic violence order against the plaintiff: Exhibit "1", p 7, par 8.
It is difficult to reconcile that part of Cheryl Smith's statement about broken windscreen glass flying towards her, with the photographs showing the crack or shatter patterns on what appears to be the laminated glass windscreen: Exhibit "1", p 53 - p 54; Blacktown City Council v Hocking [2008] NSWCA 144. That said, nothing turns on that aspect of the matter, as in these proceedings, the evidence comprising the statement of Cheryl Smith was not tested by cross-examination.

[11]

Pre-arrest activity by police

Having reviewed the above events, it is relevant to review the prior background actions that were taken by the police in the lead-up to the arrest of the plaintiff on 20 May 2012.
At about 6.30pm on 20 May 2012, Senior Constable Tye, who was stationed alone at Woodenbong, a one officer police station, received a call over the police radio alerting him to the matters complained of by Cheryl Smith. He then drove from Woodenbong to Legume in order to interview Cheryl Smith, who had in the meantime arranged to travel from Killarney in Qld for the purpose of making a statement to NSW police: T50.20 - T50.49.
At about 7.40pm, on his arrival at the pre-arranged meeting place at the Legume general store, Senior Constable Tye saw Cheryl Smith and he took a statement of her account of the incident which she alleged had taken place in relation to the plaintiff: T51.2; Exhibit "1", pp 1 - 7.
At that time, Senior Constable Tye also observed some damage to the windscreen of Cheryl Smith's vehicle, but it seems that for technical reasons to do with his camera, he was unable to photograph that damage. The process by which Cheryl Smith's statement was obtained at Legume, NSW, had concluded at 8.35pm on 20 May 2012: T53.19. The copies of the photographs of the damage to the windscreen of the vehicle were later supplied by Cheryl Smith: Exhibit "1", pp 53 - 54.
In response to the allegations made by Cheryl Smith, Senior Constable Tye concluded that he needed to visit the plaintiff. Senior Constable Tye stated that as the visit was for a "domestic matter", for reasons of officer safety, he had to wait until about 9.10pm for Senior Constable Stubbings to arrive from Tabulum, NSW, before going to the plaintiff's property: T53.50.
Senior Constable Tye had formed the opinion, based on Cheryl Smith's allegations, that domestic violence-related malicious damage had occurred. After discussion with Senior Constable Stubbings, Senior Constable Tye formed the intention to arrest the plaintiff in order to take him to the police station at Woodenbong: T54.4 - T54.17. He explained his reasoning for the course he took, and the process that was involved, as follows: "Q. Can you explain to his Honour what your reasoning process was in deciding whether it was appropriate to arrest him? A. Yep. All of our training in relation to domestic violence says that the greatest consideration should be towards arrest of the individual, of the alleged accused person, in this case Mr Smith. Just in its mainly in regards to victim protection and so forth. In this case despite the fact that they live separately the thought process that I went through was that they were in a rural or remote isolated location. The nearest police station on the Queensland side was unattended, being Killarney. The next nearest would be Warwick which is at least 30 to 35 minutes drive from Killarney. Because there'd been an allegation made, even if I was just to take out an apprehended domestic violence order I would still need to speak to the accused person because even though it's an AVO may I call it an AVO? Do we understand? HIS HONOUR Q. Yes. A. Yes, even though it's an AVO we still have to investigate the matter, we can't just take them out and not have thoroughly investigated the matter. So the fact that I had to speak to the accused person in either scenario I believed that sorry, I backtrack a bit. If I was to speak to the accused person about the apprehended domestic violence order or the allegations then if I was to leave him there it would take me at least two and a half hours to return there with an AVO. In that it was a 40 to 45 minute trip each way from Woodenbong to his place. It would take me half an hour to type up the forms and everything. It then has to get sent electronically to an on call justice. It then takes up to half an hour and sometimes even 40 to 45 minutes to receive a response from the on call justice. And then the subsequent travel time back. It comes to around about that two and a half hour mark. I believed that two and a half hours with them being isolated and me having spoken to him I was not happy with allowing him to have that time. I was concerned for the victim's welfare and safety during that time, hence I believe it was prudent and reasonable to take him back to the station in order to proceed down that line. NEWTON Q. When you went after Senior Constable Stubbings arrived, what did you do then? A. So we attended Mr Smith's address at I believe its referred to as 211 Killarney Road, Legume. We arrived there at around 9.20pm. We drove down the long driveway, it's a couple of hundred metres from the road. HIS HONOUR Q. Can you clarify what the road distance was and time taken to drive that distance between the house of Mrs Smith, or the former Mrs Smith, and the plaintiff, Mr Smith? A. From Mr Smith's residence in Killarney? Q. How far are the two premises apart? A. I did a Google search after the after that night and it came up at around 7.5 kilometres. I don't know what time wise, it would be less than ten minutes I'd suggest. Its 100 k zone for most of that distance." [T54.23 - T55.27]
It was following those events, that the two police officers then attended at the plaintiff's premises in order to arrest and detain him in the circumstances that have already been described at paragraphs [11] - [57] above.
Having identified the factual circumstances, I now turn to the consideration of the issues calling for decision.

[12]

Issue 1 - Whether a relevant estoppel arises

Following the complaint by Cheryl Smith, and following the arrest of the plaintiff, at the remote location, Senior Constable Tye applied to another police officer stationed elsewhere for a provisional apprehended domestic violence order to be issued. That officer faxed the document to Woodenbong. That document gave the plaintiff notice that he was required to attend Kyogle Local Court at 9.30am on 14 June 2012: Exhibit "1", p 41. That order, which was served on the plaintiff at 00:30hrs on 21 May 2012, was noted to be due to expire at 23:59 hours on 14 June 2012: Exhibit "1", p 50.
On 15 June 2012, the plaintiff attended the Local Court pursuant to a notice to attend to answer the charge brought pursuant to s 195(1)(a) of the Crimes Act 1900 relating to the described windscreen damage. After the ensuing contested hearing of that matter, the plaintiff was convicted of that charge. Subsequently, the plaintiff's appeal to the District Court from that conviction was dismissed, and his conviction and the resultant penalty were confirmed.
The plaintiff continues to feel disgruntled by those events. The defendant argued that consequent upon the conviction and the dismissal of the appeal from that conviction, as those matters have been finally decided, as a matter of law, the plaintiff had exhausted his rights on that matter, and he is therefore estopped from agitating the merits of those matters in a court: T120.7; T124.26.
In written submissions dated 29 January 2016, the defendant asserted that in these proceedings, the plaintiff was in effect seeking to make a collateral attack upon his conviction on the charge pursuant to s 195(1)(a) of the Crimes Act 1900, and therefore, such an attack amounted to an abuse of process.
In my view, that submission by the defendant must be rejected, for the reasons that follow.
There is no doubt that the dispute between the State of NSW in its capacity as the Crown as a prosecuting authority, and the plaintiff, in relation to the charge under s 195(1)(a) of the Crimes Act 1900, has been quelled by the final judgment in those proceedings at the time when the plaintiff's appeal was dismissed.
However, the dispute in these proceedings, although technically between the same parties, in the sense that the Crown may be taken to be the State of NSW, involves different issues that arise out of the claim of vicarious liability which the defendant must assume in respect of the actions of police officers concerning the underlying events.
In these proceedings the plaintiff is not asserting "a right or obligation or … an issue of fact or law", that has already been determined in the Local Court proceedings and in the subsequent appeal from those proceedings: Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28, at [21].
In expressing his disgruntlement over the underlying facts, the plaintiff has not sought to deny his conviction which was based on s 195(1)(a) of the Crimes Act 1900. Therefore, in my view, no abuse of process arises.
As it appears there is no evidence that the facts concerning the events of the plaintiff's arrest and detention until when he was released on bail, were agitated and determined in the earlier proceedings relating to the charge pursuant to s 195(1)(a) of the Crimes Act 1900, there can be no estoppel on those matters here: Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28, at [26], [39]. The issues involve different rights: Ramsay v Pigram [1968] HCA 34; (1968) 118 CLR 271, at pp 273 -274.
For completeness, should I be wrong in the preceding analysis, it is also apparent that on the evidence adduced in these proceedings, in which only a portion of the evidence tendered in the proceedings related to s 195(1)(a) of the Crimes Act 1900 (T63.6; Exhibit "1", pp 57 - 60), the question of an estoppel cannot be determined on an examination of the record alone, as this requires also examining and analysing the evidence upon which the earlier determination was based: Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28, at [49]. The state of the evidence in these proceedings does not permit such an analysis, or the conclusion that there is an abuse of process as claimed by the defendant.
Accordingly, I find that in these proceedings, the plaintiff is not precluded or estopped from agitating the underlying circumstances that led to his arrest and to the deprivation of liberty, with the result that he is able to assert without hindrance, that such arrest and imprisonment was wrongful, as he claims.

[13]

Issue 2 - Whether NSW orders operated in Queensland

After judgment in these proceedings had been reserved on 29 January 2016, in the course of consideration of the evidence, questions emerged which were not the subject of submissions at the hearing. Those questions, which were exposed to the parties, were as follows: 1. Is it common ground that the provisional apprehended domestic violence order issued to the plaintiff pursuant to the Crimes (Domestic and Personal Violence) Act 2007 (NSW), had not been registered in Qld at the time it was served on the plaintiff, and if so, is it therefore agreed that it could have no operation outside the State of NSW; or if not, why not; 2. If so, does this introduce an element of futility into the reasoning behind the plaintiff's arrest; or if not, why not; 3. If so, what effect, if any, do such matters have on the assessment of claimed damages.
On 7 March 2016, the parties were invited to make submissions on those questions. In the submissions that followed, it was common ground that the provisional apprehended domestic violence order issued to the plaintiff at 1.00am on 21 May 2012 had not been registered in the State of Qld.
On 10 March 2016, on behalf of the plaintiff, it was submitted that the answers to questions (1) and (2) as identified in paragraph [101] above, were in the affirmative, with the effect that the provisional apprehended domestic violence order could have no relevant operation outside NSW, and in answer to question (3) it was submitted that in consequence of the affirmative answers to questions (1) and (2), the amount otherwise awardable for exemplary damages should be increased.
In contrast, on behalf of the defendant, it was submitted that the non-registration of the provisional apprehended domestic violence order in Qld did not mean that the order could have no operation outside of NSW.
Section 10B of the Crimes Act 1900 provides: "10B Interpretation (1) For the purposes of this Part, the necessary geographical nexus is the geographical nexus required by section 10C. (2) For the purposes of this Part, the place in which an offence is committed is the place in which the physical elements of the offence occur. (3) For the purposes of this Part, the place in which an offence has an effect includes: (a) any place whose peace, order or good government is threatened by the offence, and (b) any place in which the offence would have an effect (or would cause such a threat) if the criminal activity concerned were carried out. (4) A reference in this Part to the State includes a reference to the coastal waters of the State in which the criminal law of the State applies (including in any part of the adjacent area of the State in which the substantive criminal law of the State applies by force of the law of the State or of the Commonwealth in accordance with the Crimes at Sea Act 1998)."
Section 10C of the Crimes Act 1900 provides: "10C Extension of offences if there is a geographical nexus (1) If: (a) all elements necessary to constitute an offence against a law of the State exist (disregarding geographical considerations), and (b) a geographical nexus exists between the State and the offence, the person alleged to have committed the offence is guilty of an offence against that law. (2) A geographical nexus exists between the State and an offence if: (a) the offence is committed wholly or partly in the State (whether or not the offence has any effect in the State), or (b) the offence is committed wholly outside the State, but the offence has an effect in the State."
The defendant argued that by reason of the operation of those sections, which it argued should be given "a broad scope", the effect of those provisions is to extend the geographical jurisdiction of offences to acts committed wholly outside NSW where the offence has an effect in NSW: s 10C(2)(a).
In my opinion that submission is founded upon a series of fallacies, as explained below, and it must therefore be rejected.
First, as was observed in Director-General NSW Department of Agriculture v Temmingh [2003] NSWSC 247, per Simpson J as her Honour then was, stated at [40], that the construction of s 10B(3) is not easy. That is a conclusion with which I respectfully agree. In such circumstances, the imposition of criminal law sanctions based on a relaxed interpretation goes against a well settled line of authority that such legislation should be strictly construed: Hyder v Commonwealth of Australia [2012] NSWCA 336, at [13].
Secondly, there is a tension between the terms of a provisional apprehended domestic violence order which is aimed at preventing the occurrence of an offence to the person, and the terms of a statute that speaks of an offence that has been committed in the place where the physical elements of the offence occur: s 10B(2). A provisional apprehended domestic violence order issued pursuant to s 27 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), does not relate to an offence that has been, or is in the course of being, committed.
Thirdly, s 10B is the subservient partner of s 10C in the sense that it is a facilitative provision. Section 10B(3)(a) refers to threats to "the peace, order or good government" of NSW resulting from an offence committed elsewhere. The phrase "peace, order or good government" is derived from constitutional law. The defendant submitted that the phrase has been interpreted to confer legislative power "as large and universal … as can be granted": Spratt v Hermes (1965) 114 CLR 226, per Barwick CJ, at 242. Although the phrase is an omnibus provision which incorporates great scope for flexibility of interpretation, that approach is inconsistent with how statutes imposing criminal sanctions are customarily construed.
Fourthly, the argument relied upon by the defendant which invokes s 374(1) of the Police Powers and Responsibilities Act 2000 (Qld) authorising a Qld police officer to arrest a person who is suspected of committing or who has committed an extradition offence does not assist the defendant as that provision is only engaged during or after the commission of an offence.
In my view, the defendant's argument founders on any one of the above analyses.
At best, the defendant's argument must be that a provisional apprehended domestic violence order, the purpose of which is to enforceably prevent the commission of a domestic violence offence by imposing punitive sanctions, is a protective measure against prospective possibilities, and as such, it should be given full force.
However, such full force cannot have an effect beyond the legislative remit and territorial reach of the parliament of the State of NSW, and the terms of the enacted legislation of that parliament. A liberal interpretation to the contrary would be wrong in law.
Section 10E of the Crimes Act 1900 provides: "10E Procedural and other provisions (1) The existence of the necessary geographical nexus for an offence is to be presumed and the presumption is conclusive unless rebutted under subsection (2). (2) If a person charged with an offence disputes the existence of the necessary geographical nexus, the court is to proceed with the trial of the offence in the usual way. If, at the conclusion of the trial, the trier of fact is satisfied on the balance of probabilities that the necessary geographical nexus does not exist, it must (subject to subsection (3)) make or return a finding to that effect and the charge is to be dismissed. (3) If the trier of fact would, disregarding any geographical considerations, find the person not guilty of the offence, it must make or return a finding of not guilty. The trier of fact must make or return a finding of not guilty on the grounds of mental illness in any such case if they were the only grounds on which the trier of fact would have found the person not guilty of the offence. (4) This section also applies to any alternative verdict available by law to the trier of fact in respect of another offence with which the person was not charged. A finding of guilt may be made or returned in any such case, unless the trier of fact is satisfied on the balance of probabilities that the necessary geographical nexus for that other offence does not exist. (5) The issue of whether the necessary geographical nexus exists must, if raised before the trial, be reserved for consideration at the trial. (6) A power or authority exercisable on reasonable suspicion or belief that an offence has been committed may be exercised in the State if the person in whom the power or authority is vested suspects on reasonable grounds or believes that the elements necessary to constitute the offence exist (whether or not the person suspects or believes or has any ground to suspect or believe that the necessary geographical nexus with the State exists).
In my view, s 10E of the Crimes Act 1900 does not assist the defendant in this case as the geographical nexus provisions of s 10E(1) assumes the commission of an offence.
I find that as a matter of fact and law, without registration in the State of Qld, the provisional apprehended domestic violence order issued to the plaintiff, had no operative effect beyond the borders of the State of NSW.

[18]

Stated indications for the arrest

In that latter regard, at the time of the arrest of the plaintiff, Senior Constable Tye knew that the complainant, Cheryl Smith, ordinarily resided in Qld.
In my view, it must have been readily apparent to both Senior Constable Tye, and to Senior Constable Stubbings, that Cheryl Smith would only be likely to be at risk of harm from the plaintiff, if either she came back into the State of NSW to be in the plaintiff's immediate vicinity, or if the plaintiff took the step of travelling into her immediate vicinity, in the State of Qld.
On the day in question it was within the power of the police officers to issue the plaintiff with a provisional apprehended domestic violence order to protect Cheryl Smith in the first of those alternative situations. For such a provisional apprehended domestic violence order to have the effect of covering the second of those alternatives, it would have been necessary for that order to be registered in the State of Qld. At no stage before the plaintiff's court appearance, had police taken any steps to register that order in the State of Qld.
At no stage did the police seek to require the plaintiff to remain in a particular location, such as at his home, whilst formal steps were taken to obtain a provisional apprehended domestic violence order and for the interstate registration of such an order.
The stated purpose of the police attendance at the plaintiff's premises on the evening in question was in response to the "domestic incident" that had been reported by Cheryl Smith: T50.26; T54.33; T57.19.
The need for the police to speak to the plaintiff obviously arose from the duty of the police to investigate the matters that Cheryl Smith had reported to Senior Constable Tye.
At the time the police attended at the plaintiff's home, Senior Constable Tye had already formed the opinion that he needed to speak to the plaintiff as an accused person before he took the next step of carrying out an arrest of the plaintiff: T54.35.
Before attending at the plaintiff's home, Senior Constable Tye had opted to obtain a provisional apprehended domestic personal violence order to serve on the plaintiff, but only after he was arrested and transported to the police station. He apparently adopted that course on grounds of witness protection (T73.50; T77.40), and because he believed that, as a matter of policy, this was the appropriate policing directive which had to be followed: T69.31 - T70.2; T106.16 - T106.29. In taking that course, he was unaware of the terms of s 89 of the Crimes (Domestic and Personal Violence) Act 2007.
Even though Senior Constable Tye intended that ultimately, the plaintiff would be issued with a provisional or interim apprehended personal domestic violence order, he also knew that he had a responsibility to "thoroughly investigate the matter": T54.41.
On the basis of Senior Constable Tye's conversation with Cheryl Smith, and on the basis of the statement he had earlier obtained from her, he believed he had reasonable grounds for a suspicion that the plaintiff had committed an offence that could justify him being arrested: George v Rockett [1990] HCA 26; (1990) 170 CLR 104, at pp 115 - 116. That was only one aspect of his investigation.
Before Senior Constable Tye attended at the plaintiff's premises, on the basis of the statement from Cheryl Smith, he already had sufficient information to constitute reasonable grounds for suspicion that the plaintiff had committed an alleged offence against s 195(1)(a) of the Crimes Act 1990: s 99(2) of the Law Enforcement (Power and Responsibilities) Act 2002. However, a deliberate decision was made not to initially make that charge, which could have been the subject of a court attendance notice, and to instead, arrest the plaintiff without specifying that charge.
This was despite Senior Constable Tye's understanding that he needed to beforehand "thoroughly investigate the matter", which would have necessarily involved him in at least speaking to the plaintiff along the lines of what could reasonably be considered to be an investigation: T54.35; T54.41; T68.46.
In fact, there was no investigation of the plaintiff's account of the events prior to his arrest. He was simply arrested on sight when he appeared at his front door. This occurred without the plaintiff being told the name of the arresting officer, the station of duty of the arresting officer, or a detailed description of the reason for the arrest: T69.18 - T69.27
A consequence of the arrest, once it had been made, was that the plaintiff had the right to remain silent, and he also had the right to not answer questions put to him by the arresting police officers.

[19]

Time arrest was completed

In the course of submissions, a dispute arose as to the actual time at which the arrest of the plaintiff had been completed. It is therefore appropriate to determine that issue at this point of the consideration.
The question of whether or not, and when, an arrest has been completed, is determined by the communication of an intention to make an arrest, and a sufficient act of arrest or submission to arrest: Wilson v State of NSW [2010] NSWCA 333, at [59].
The defendant argued that in this instance, the process of the plaintiff's arrest had commenced when the plaintiff was informed that he was under arrest, and it then continued whilst the plaintiff went and changed from his pyjamas into other clothing, and continued until he was cautioned, which was just before he was escorted to the police vehicle to be taken away. That argument seemed to imply that the relevant act of submission by the plaintiff was when he accompanied the arresting officers to the police vehicle following those events.
In my opinion that argument is inconsistent with the evidence of Senior Constable Tye, in which he confirmed that, at the outset, he had told the plaintiff: "… right now you are under arrest and you have to come with us back to the station": T68.50 - T69.5.
Senior Constable Tye's account, as cited in the preceding paragraph, indicated the plaintiff was under an immediate arrest, as was indicated by the use of the word "now". At that time, he was told he was already under a compulsion to go to the police station. In my opinion those words from Senior Constable Tye operated as a sufficient act of arrest of the plaintiff.
At that time, the plaintiff had already submitted to that act of arrest. This is evidenced by his request of the attending police officers that he be given permission to go and get changed into more appropriate attire, and the assent given by those officers to that course.
In my opinion, the plaintiff's request that he be allowed to change clothes was a sufficient act of submission to indicate the arrest had been completed at that time. From that moment, and until he was released on bail, the plaintiff was no longer able to exercise his free will to act.
At that time, there would have been no other purpose for the plaintiff to be asking for police permission to go and get dressed. It is clear that the plaintiff's rights to free autonomy of action were at that time subject to the restriction of arrest. I find that the process of arrest had already been completed when Senior Constable Tye confronted the plaintiff in that initial conversation at the front door, at which time the plaintiff was arrested on sight: T68.50 - T69.5.
From that time, the plaintiff was then in police custody, and he was subject to police direction and control, including when he went back into his house in order to change his attire. He was not free to leave, or to ignore the presence of the police officers. I find that he was already detained pursuant to the power of arrest that had been exercised by Senior Constable Tye at the front door.
Accordingly, the defendant's submission as to the timing and the duration of the process of the plaintiff's arrest, as summarised at paragraph [147] above, must be rejected.
I now turn to examine the respective arguments as identified at paragraphs [121] to [123] above.

[20]

Non-compliance with s 201(1) of LEPRA

The plaintiff claims that at the time of his arrest, the arresting police officer, Senior Constable Tye, had not complied with s 201(1) of the Law Enforcement (Powers and Responsibilities) Act 2002. It was argued that this was so because neither before, nor at the time of the arrest, had Senior Constable Tye informed the plaintiff of his name, his place of duty, or the reason for the arrest: Plaintiff's statement of claim, par 7(g).
In contrast, the defendant denied there had been non-compliance with s 201(1) of that Act. In justification of the arrest, the defendant asserted that the matters referred to in the preceding paragraph were provided to the plaintiff "during the time of his arrest whilst on the front porch of the plaintiff's residence": Defence, par 7(c).
In my opinion that denial must be rejected in light of the finding that the plaintiff was arrested on sight, as recorded at paragraphs [15], [25] and [34] above.
In further justification of the arrest of the plaintiff, the defendant pleaded that the plaintiff had been arrested and charged with "intentionally or recklessly destroy / damage property" pursuant to s 195(1)(a) of the Crimes Act 1900: Defence, par 7(d).
In my opinion, that claim of justification must also be rejected in view of the evidence of Senior Constable Tye to the effect that the plaintiff had been arrested on the vague ground of a "domestic incident", and in view of the comparison of that evidence with the requirements of the applicable legislative provisions. The charge pursuant to s 195(1)(a) of the Crimes Act came much later, at the police station, well after the arrest.
For an arrest to be considered lawful, before a police officer exercises the power of arrest, that officer must comply with the requirements of s 201(1) of the Law Enforcement (Powers and Responsibilities) Act 2002.
As at 20 May 2012, s 201(1) relevantly provided as follows: "201 Supplying police officer's details and giving warnings (1) A police officer must provide the person subject to the exercise of a power referred to in subsection (3) with the following: (a) evidence that the police officer is a police officer (unless the police officer is in uniform), (b) the name of the police officer and his or her place of duty, (c) the reason for the exercise of the power. …"
Although the police officers were dressed in police uniform at the time of the arrest of the plaintiff, which meant they did not need to provide other evidence that they were police officers (s 201(1)(a) of the Act), I find that they did not inform the plaintiff of their names or their places of duty at the time the plaintiff was arrested. That information was only provided to the plaintiff after he was arrested and after he had requested that information following his return to the front porch of his house after he had changed his attire. That earlier omission by Senior Constable Tye and Senior Constable Stubbings to identify themselves, by name and place of duty, was a relevant non-compliance with the requirements of s 201(1)(b) of the Act.
In addition to that aspect of non-compliance, there was also a failure on the part of the arresting police officers to adequately inform the plaintiff of the particular reason for the exercise of the power of arrest in this instance, thus constituting a relevant non-compliance with the requirements of s 201(1)(c) of the Act.
That conclusion necessarily arises because at the time of his arrest, the plaintiff was only vaguely informed that the reason for his arrest was a "domestic incident'.
That was plainly an insufficient explanation for depriving the plaintiff of his liberty, particularly since Senior Constable Tye had already formed the view that the plaintiff would be charged with a particular offence against s 195(1)(a) of the Crimes Act 1900, which permitted a much more specific particularisation than a "domestic incident".
Senior Constable Tye had not obtained any further information or products of investigation from the time he had taken a statement from Cheryl Smith until the time when he arrested the plaintiff. It is therefore clear that in the intervening period of time before he first saw and arrested the plaintiff, he had already formed the intention to arrest him for an alleged breach of s 195(1)(a) of the Crimes Act 1900.
Therefore, the plaintiff should have been provided with that particular reason for his arrest at the time of his arrest. Since he was not provided with that reason at that time, I consider that this was a relevant non-compliance with the obligation to inform as provided by s 201(1)(c) of the Act.
There is provision for a police officer to be excused from particular compliance with the requirements of s 201(1) of the Act if the required compliance would have been impractical either before or at the time of exercising the power of arrest: s 201(2(a) of the Act.
There is a further excusatory provision that if compliance with s 201(1) of the Act is not practicable either before or at the time of the arrest, then it should be complied with as soon as is reasonably practicable after exercising the power of arrest: s 201(2)(b) of the Act.
Those provisions have no application in this instance, particularly as Senior Constable Tye conceded that there was no reason or impracticality that prevented the plaintiff from being told the arresting officer's name and station of duty at the time of the plaintiff's arrest: T80.25. In my view, a similar conclusion arises in relation to the non-communication of a more particularised reason being given for the arrest, namely a charge pursuant to s 195(1)(a) of the Crimes Act 1900.
In the described circumstances of the plaintiff's arrest, as I have found them to have occurred, it was not in any way impracticable for the arresting police officers, more particularly Senior Constable Tye, to comply with the requirements of s 201(1) of the Act before the power of arrest was exercised.
The circumstances of Senior Constable Tye speaking to the plaintiff at the front door at the time of the arrest (T68.50 - T69.5) were not urgent or driven by other pressures. The plaintiff's non-aggressive attitude and the remote location did not provide any indication of the risk of him immediately fleeing the scene. He was not aggressive. In my opinion, there was nothing to suggest that it was impracticable for either Senior Constable Tye or Senior Constable Stubbings to identify themselves by name and place of duty, and to provide a proper reason for an arrest, as a preliminary step before informing the plaintiff that he was at that moment, under arrest.
There was nothing arising from those prevailing circumstances to suggest a sound reason for not informing the plaintiff that he was being arrested for an alleged breach of s 195(1)(a) of the Crimes Act 1990, either by reference to that enumerated statutory provision, or by articulating a summary of the substantive content of that provision. Either way, Senior Constable Tye's vague reference to a "domestic incident" did not comply with s 201(1)(a) of the Act.
The defendant has not pointed to any satisfactory evidence that would justify the arresting police officers deferring the provision of the above information to the plaintiff at his home until after he had been arrested.
I therefore find that the plaintiff has established element (1) of paragraph [121] above concerning the argument that his arrest was unlawful. I also find that the defendant has failed to prove that the arrest was lawful according to that element.

[21]

Non-compliance with s 99(3) of LEPRA

The plaintiff claims that his arrest occurred in breach of s 99(3) of the Law Enforcement (Powers and Responsibilities) Act 2002 in that, at the time of the arrest, there was no basis to suspect, on reasonable grounds, that the arrest was necessary: Plaintiff's statement of claim, par 7(f).
The defendant denied the matters outlined in the preceding paragraph. The defendant claimed that the arrest of the plaintiff was justified according to the provisions of s 99(2) and (3) of the Act. Specifically, it was asserted that it was necessary to arrest the plaintiff and to convey him to Woodenbong Police Station to prevent a repetition or continuation of the offence (presumably being the alleged offence comprising the altercation at the front of the plaintiff's property) or the commission of another offence, and to prevent harassment of, or interference with a person who may be required to give evidence in proceedings in respect of the earlier alleged offence: Defence, par 7(b). The defendant therefore argued that the arrest was justified.
Section 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (as at 20 May 2012) provided as follows: "99 Power of police officers to arrest without warrant (1) A police officer may, without a warrant, arrest a person if: (a) the person is in the act of committing an offence under any Act or statutory instrument, or (b) the person has just committed any such offence, or (c) the person has committed a serious indictable offence for which the person has not been tried. (2) A police officer may, without a warrant, arrest a person if the police officer suspects on reasonable grounds that the person has committed an offence under any Act or statutory instrument. (3) A police officer must not arrest a person for the purpose of taking proceedings for an offence against the person unless the police officer suspects on reasonable grounds that it is necessary to arrest the person to achieve one or more of the following purposes: (a) to ensure the appearance of the person before a court in respect of the offence, (b) to prevent a repetition or continuation of the offence or the commission of another offence, (c) to prevent the concealment, loss or destruction of evidence relating to the offence, (d) to prevent harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence, (e) to prevent the fabrication of evidence in respect of the offence, (f) to preserve the safety or welfare of the person. (4) A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person, and any property found on the person, before an authorised officer to be dealt with according to law."
Although the statement given by Cheryl Smith provided Senior Constable Tye with reasonable grounds for suspecting that the plaintiff had committed an offence against a relevant Act (here being s 195(1)(a) of the Crimes Act 1900) thereby satisfying the requirements of s 99(2) of the Act which permits an arrest without a warrant, for that power of arrest to be invoked, the requirements of s 99(3) of that Act must also be satisfied.
The difficulty with the defendant's argument, invoking a paraphrase of the remarks in State of NSW v Talovic [2014] NSWCA 333; (2014) 87 NSWLR 512, at [184], to the effect that a reasonable person in the position of Senior Constable Tye held a belief in conformity with the terms of the statute, and that there were reasonable grounds for holding that belief, is that on an application of the required strict interpretation of the statutory text, that argument is untenable.
This is because to justify the arrest, Senior Constable Tye must have had reasonable grounds for suspecting that an offence would occur contrary to the laws of the State of NSW.
Cheryl Smith lived in Qld. Her complaint about the plaintiff related to events at the plaintiff's property in NSW. On the facts as I have found them, and based on the facts disclosed in her statement, it seemed most unlikely that Cheryl Smith would have again approached the plaintiff at his property at Legume in NSW.
Once this is recognised, and once it is recognised that a provisional apprehended personal domestic violence order issued in NSW could have no operation in Qld without it having been registered in that State, the arrest of the plaintiff to serve him with a provisional apprehended domestic violence order that applied to premises in Qld was futile. Accordingly, the asserted reasonable grounds for the plaintiff's arrest fall away.
In supplementary written submissions dated 29 January 2016, on behalf of the defendant, it was submitted that Senior Constable Tye had reasonable grounds to suspect that the plaintiff had committed an offence so as to enliven his power of arrest pursuant to s 99(2) of the Law Enforcement (Power and Responsibilities) Act 2002.
In my opinion, the difficulty with that argument is that the evidence shows Senior Constable Tye exercised the power of arrest in relation to the need to secure the plaintiff for administrative convenience pending the procurement of a provisional apprehended personal domestic violence order, and not in order to charge him for an offence against s 195(1)(a) of the Crimes Act 1900, which charge came later, and which was the subject of a court attendance notice Senior Constable Tye issued to the plaintiff after the plaintiff had been arrested and taken to the police station.
In forming the intention to issue a provisional apprehended personal domestic violence order, Senior Constable Tye had apparently considered an unspecified alternative course to that of arresting the plaintiff, however, instead, he opted to arrest the plaintiff on the ground of administrative expediency, reasoning that if he was to speak to the plaintiff about the allegations and to obtain a proposed provisional apprehended personal domestic order, it would have taken him "at least two and-a-half hours to return" to the plaintiff's premises with an order ready to then serve upon the plaintiff, noting that in addition to the required travelling times involved, it could take up to 45 minutes for the appropriate forms to be processed and to then be electronically communicated to the rural police station where he was based: T54.40 - T55.1.
Senior Constable Tye stated that in such circumstances, he did not want to leave the plaintiff alone, and by implication, to forewarn the plaintiff of the process. He therefore considered "it was prudent and reasonable to take him back to the station in order to proceed down that line": T55.3 - T55.7. This necessarily required that the plaintiff be arrested and deprived of his liberty.
Senior Constable Tye therefore arranged for another police officer to assist him, and he then waited for Senior Constable Stubbings to arrive before going to see the plaintiff at his home and arrest him: T55.10 - T55.15.
The lawfulness or otherwise of the plaintiff's arrest by Senior Constable Tye and Senior Constable Stubbings must be determined according to whether the legislative provisions governing the police power to arrest were complied with, and were adequately fulfilled at the time of the arrest.
In the paragraphs that follow, those claimed justifications are examined for their application to the circumstances of the arrest of the plaintiff.
There was no reasonable indication from within the evidence to suggest that it was necessary to arrest the plaintiff in order to ensure his court appearance in respect of the charge pursuant to s 195(1)(a) of the Crimes Act 1900: s 99(3)(a) of the Law Enforcement (Power and Responsibilities) Act 2002.
Other than speculation, there was no basis evident for Senior Constable Tye to consider that there was a reasonable likelihood of the alleged breach of s 195(1)(a) of the Crimes Act 1900 being repeated or continued by the plaintiff, or that another offence might be committed.
This is because Cheryl Smith was no longer in the vicinity of the plaintiff's property and they lived a significant distance apart. Had Senior Constable Tye spoken to the plaintiff he would very likely have realised that the plaintiff was not on speaking terms with his ex-wife, and that he had no reason to go and seek her out at her home in Qld at that time of the night. Insofar as s 99(3)(b) applied at the time, it was not legitimately available to be used as a means of preventing the plaintiff from travelling to Qld as there was no reasoned basis upon which to assume that the plaintiff was going to commit an offence against the laws of that State: s 99(3)(b) of the Law Enforcement (Power and Responsibilities) Act 2002. The plaintiff had already returned the children to their mother's home without incident and then returned to his own home some 15kms - 20kms away in NSW.
At the time of the arrest of the plaintiff, there was no evidence before Senior Constable Tye to reasonably suggest that an arrest of the plaintiff was necessary to prevent the concealment, loss or the destruction of any relevant evidence: s 99(3)(c) of the Law Enforcement (Power and Responsibilities) Act 2002.
Since Senior Constable Tye had not interviewed the plaintiff before the arrest, he was not in a position to make any reasoned evaluation as to whether it was necessary to prevent the plaintiff from harassing or interfering with his ex-wife, whether in NSW or in Qld: s 99(3)(d) of the Law Enforcement (Power and Responsibilities) Act 2002.
There was no evidence to suggest that there was a risk of fabrication of evidence, or that the plaintiff's safety or welfare was in need of preservation: s 99(3)(e) and (f) of the Law Enforcement (Power and Responsibilities) Act 2002.
For the defendant to successfully invoke the provisions of s 99(3) of the Law Enforcement (Power and Responsibilities) Act 2002 as justification for the plaintiff's arrest, it must show a suspicion in relation to those matters, based on reasonable grounds, being more than a mere possibility or something that is arbitrary in nature: R v Rondo [2001] NSWCCA 540, at [53].
In my assessment, the requisite reasonable grounds have not been established by the defendant. This is evident from the following extract of the evidence in chief of Senior Constable Tye: "Q. Can you explain to his Honour what your reasoning process was in deciding whether it was appropriate to arrest him? A. Yep. All of our training in relation to domestic violence says that the greatest consideration should be towards arrest of the individual, of the alleged accused person, in this case Mr Smith. Just in its mainly in regards to victim protection and so forth. In this case despite the fact that they live separately the thought process that I went through was that they were in a rural or remote isolated location. The nearest police station on the Queensland side was unattended, being Killarney. The next nearest would be Warwick which is at least 30 to 35 minutes drive from Killarney. Because there'd been an allegation made, even if I was just to take out an apprehended domestic violence order I would still need to speak to the accused person because even though it's an AVO may I call it an AVO? Do we understand? HIS HONOUR Q. Yes. A. Yes, even though it's an AVO we still have to investigate the matter, we can't just take them out and not have thoroughly investigated the matter. So the fact that I had to speak to the accused person in either scenario I believed that sorry, I backtrack a bit. If I was to speak to the accused person about the apprehended domestic violence order or the allegations then if I was to leave him there it would take me at least two and a half hours to return there with an AVO. In that it was a 40 to 45 minute trip each way from Woodenbong to his place. It would take me half an hour to type up the forms and everything. It then has to get sent electronically to an on call justice. It then takes up to half an hour and sometimes even 40 to 45 minutes to receive a response from the on call justice. And then the subsequent travel time back. It comes to around about that two and a half hour mark. I believed that two and a half hours with them being isolated and me having spoken to him I was not happy with allowing him to have that time. I was concerned for the victim's welfare and safety during that time, hence I believe it was prudent and reasonable to take him back to the station in order to proceed down that line." [T54.23 - T55.7]
It is plain from the last two sentences of Senior Constable Tye's evidence, that since he had not spoken to the plaintiff before arresting him, he had engaged in an entirely speculative analysis as to a possible threat to victim safety, without first making an assessment as to whether or not the plaintiff posed a significant and realistic threat in the circumstances. In my view, his reasoning did not represent a reasonable basis for the arrest.
Instead, I accept the submission made on behalf of the plaintiff, that the most charitable interpretation of the events was that a pre-emptive arrest had been made, without reasonable grounds for a suspicion of any of the matters urged on behalf of the defendant.
Senior Constable Tye conceded that there are many more reasons for concluding that it was unnecessary to arrest the plaintiff rather than to arrest him: T76.50.
Prominent amongst the reasons that militated against the arrest of the plaintiff was that there was no sound basis to fear for the safety of the plaintiff's ex-wife. Were the position to be otherwise, I infer that she would not have been left unattended and unprotected at her own property for several hours, as in fact occurred, at a time when Senior Constable Tye was positioned near the plaintiff's property, whilst waiting for Senior Constable Stubbings to arrive from his remote location, and at which time Senior Constable Tye was not able to determine whether the plaintiff was in fact at his property, until the moment of his arrest at 9.20pm.
The only basis upon which Senior Constable Tye feared that there might be a re-occurrence of the alleged incident which ultimately based the charge under s 195(1)(a) of the Crimes Act 1900, was that there was an allegation by Cheryl Smith that such an incident had already occurred once. There was no evidence of a pattern to suggest a recurrence and the parties were no longer in close proximity to each other.
In my assessment, the state of the evidence before Senior Constable Tye did not reasonably support the suspicion there might be a recurrence of the event complained of by Cheryl Smith.
I have reached that conclusion because over four hours had passed uneventfully by the time of the plaintiff's arrest. The plaintiff had no prior criminal history, there was no suggestion the plaintiff owned firearms, the plaintiff was in his pyjamas when the police attended at his home, suggesting he was not planning on leaving the house at night. There was no basis for fearing the plaintiff would attend at the premises of his ex-wife, and there was no evidence that she had expressed any immediate concerns for her own safety: T65.12. The concerns of the plaintiff's ex-wife were more remote in time, and were to the effect, that there might be harassment or incidents at future changeovers in relation to the children: T67.19 - T67.46.
It is plain that Senior Constable Tye had decided, in advance, to arrest the plaintiff. This is confirmed by the evidence of Senior Constable Stubbings, who had been directed by a superior officer to attend in order to assist Senior Constable Tye with that arrest: T87.32 - T87.40. This suggests that the course taken was with the approval of that more senior officer.
In my view, the circumstances that prevailed when the police attended the plaintiff's home contra-indicated an arrest, and favoured an alternative course. This was because the plaintiff was not behaving aggressively. He only became upset because of the fact that he was being arrested in the manner described.
The attending officers obviously assessed the plaintiff as representing a low risk when they saw him. Otherwise, he would not have been allowed to go and change clothes, unaccompanied: T111.31. Furthermore, the plaintiff was sober, and it was generally accepted that sober persons were less likely to be aggressive or violent compared to someone intoxicated: T79.32 - T80.21.
I accept the submission made on behalf of the plaintiff that he was arrested due to a problematic aspect of deficiency in police training. Senior Constable Tye agreed that all of his training in relation to domestic violence is that "the greatest consideration should be given towards arresting a suspect in a domestic violence matter": T69.29 - T69.34.
Put another way, as was agreed by Senior Constable Stubbings, the policy of the police in this instance was that there should be an arrest unless there was a good reason not to make an arrest: T106.29.
That policy, which I consider to have been applied in this instance, is inconsistent with the statutory legal requirements for justifying an arrest. This was in the context where Senior Constable Tye acknowledged that the power of arrest was to be used as the last resort, and within the confines of the applicable legislation: T75.5.
Instead, the plaintiff was arrested without any investigation or any attempt to obtain from him any information as to his version of events: T76.30. This was so even though Senior Constable Tye had given consideration to speaking to the plaintiff first, before arresting him, but chose not to do so: T75.25; T76.30.
Notwithstanding Senior Constable Tye's evidence to the contrary (at T75.35 - T75.37), I find that the plaintiff was arrested because at the time it was considered that this was the easiest way of creating an opportunity to serve him with an apprehended domestic violence order: T75.24 - T75.36. This was contrary to the requirements of s 99(3) of the Law Enforcement (Power and Responsibilities) Act 2002. The plaintiff has therefore proven the element of his argument identified at sub-paragraph (2) of paragraph [121] above.
I find that the arrest of the plaintiff in the manner described, and for the reasons identified, was wrongful as it was contrary to law. The defendant has failed to discharge its onus to prove that the arrest of the plaintiff was justified in the circumstances. Administrative convenience is not a justifiable reason to deprive a person of his liberty by means of an arrest.

[22]

Available alternatives to an arrest

The plaintiff claimed that there were alternative courses available to the arresting police officers, namely, to charge him, and to issue and serve him with a field court attendance notice, and serve him with the provisional apprehended domestic violence order without the need to take the extreme last resort action of arresting and imprisoning him where the circumstances did not warrant an arrest: Plaintiff's statement of claim, par 7(h).
The defendant only generally traversed the matters outlined in the preceding paragraph by denying that the arrest and the imprisonment of the plaintiff was either wrong or unlawful: Defence, par 7(a). The defendant otherwise asserted that the plaintiff was served with a provisional apprehended domestic violence order whilst he was detained at Woodenbong Police Station: Defence, par 7(f).
The plaintiff pointed to a further matter to demonstrate that his arrest was unlawful, namely the evidence of the police officers to the effect that it was a policy of the police force to "give the greatest consideration to arrest", which was in practical terms, a reversal of the true legal position.
The plaintiff argued this was indicative of a failure on the part of defendant to properly train its police officers in this instance, which was further evidenced by the fact that Senior Constable Tye was unaware of the existence of the terms of s 89 of the Crimes (Domestic and Personal Violence) Act 2007.
At the time he decided to arrest the plaintiff, Senior Constable Tye was apparently unaware that the provisions of s 89 of the Crimes (Domestic and Personal Violence) Act 2007 empowered him to give a direction to the plaintiff to remain at his home pending the processing of an application for an interim apprehended domestic violence order: T72.41. That section, had apparently not formed part of his training or experience: T72.48. The section provides as follows: "89 Detention of defendant for making and service of interim apprehended personal violence order (1) A police officer who is making or is about to make an application for a provisional order that is an interim apprehended personal violence order may give either of the following directions to the person against whom the order is sought: (a) that the person remain at the scene where the incident occurred that was the reason for making the application, (b) in a case where the person has left the scene of that incident-that the person remain at another place where the police officer locates the person. (2) If a person refuses or fails to comply with a direction under this section, the police officer who gave the direction or another police officer may detain the person at the scene of the incident or other place, or detain the person and take the person to a police station."
In those events, Senior Constable Tye did not appear to have considered giving the plaintiff a direction pursuant to or equivalent to s 89(1)(a) of the Crimes (Domestic and Personal Violence) Act 2007. Such a direction would have required the plaintiff to remain at his home pending the issue and service of a provisional apprehended domestic violence order.
Whilst it would undoubtedly have been administratively inconvenient and more burdensome to obtain the provisional apprehended domestic violence order first, and to then serve it on the plaintiff at his home, the avoidance of such a burden cannot justify an otherwise unlawful arrest.
In the absence of any reasoned foundation in fact for assuming that the plaintiff would be likely to refuse or fail to comply with such a direction, and being unaware of s 89(2) of the Crimes (Domestic and Personal Violence) Act 2007, Senior Constable Tye proceeded to instead arrest and to detain the plaintiff, and take him to Woodenbong Police Station for processing.
It is plain from the evidence given by Senior Constable Tye that he considered it was necessary to arrest the plaintiff for that purpose instead of first speaking to the plaintiff in order to assess the situation and make a judgment as to the most appropriate manner in which he should proceed: T54.22 - T55.7.
Paradoxically, to a limited degree, Senior Constable Tye had in fact taken some steps along the pathway of forming an assessment of the risks that the plaintiff might pose, despite his lack of awareness of the process of s 89 of the Crimes (Domestic and Personal Violence) Act 2007.
In that regard, he had beforehand checked police records to satisfy himself the plaintiff did not have a criminal record and that it was unlikely that the plaintiff had a registered firearm on the premises. He also arranged for a second officer to attend and assist him. He also waited for that second officer to arrive, and whilst waiting, he did not see any attempt by the plaintiff to leave his property for any reason, let alone to travel in the direction of his ex-wife's premises in Qld.
Had Senior Constable Tye taken the additional reasonable step of speaking to the plaintiff as part of an acknowledged need to "thoroughly investigate" the circumstances, before taking the more extreme and liberty depriving step of arresting the plaintiff, he would most probably have ascertained the following matters: 1. The initiating cause of the "domestic incident" in which he was called upon to intervene, was a disagreement between Cheryl Smith and the plaintiff over the timing of the return of the children in question to the house of their mother, but the urgency and tensions surrounding those events had dissipated; 2. Those children had already been returned to their mother's home some 40 minutes or so before 9.20pm, which was about the time at which the arresting police officers had attended the plaintiff's house to arrest him; 3. The arresting police officers could have readily and conveniently checked for correctness the fact that the children had been returned to their mother's home. This could have been checked by telephone; 4. In those circumstances, the plaintiff, having already driven to Killarney in Qld, to take the children back to their home, and then having driven back to his own home in Legume, NSW, absent any identifiable intervening aggravating factors, posed little risk of spontaneously deciding to travel to Qld at night in order to behave violently towards his ex-wife and those in her household, especially as the plaintiff was in his pyjamas, and would have appeared to the police officers to be settling down to sleep for the night, with his wife and his two youngest children.
In those circumstances, it seems to me to be more probable than not, that Senior Constable Tye would have had no reasonable cause to anticipate that the plaintiff would refuse to, or fail to comply with, a direction by police that he remain at his home, which was the place the alleged "domestic incident" had occurred, until an apprehended domestic violence order, provisional or otherwise, could be obtained and served, and if thought necessary, to be also registered in Qld.
Had an investigation been undertaken as was required, including by police officers speaking to the plaintiff and perhaps even speaking to his ex-wife again, by telephone, it would have been apparent that the alleged "domestic incident" had undergone significant de-escalation by 9.20pm.
The plaintiff stated that had he been given a direction by the attending police officers to remain at his home, he would have complied with that direction: T13.25 - T13.29. Whilst it could be argued that in the context of these proceedings, that answer by the plaintiff was self-serving in his own interests, his evidence in that regard was not challenged, and it appeared that it was otherwise reasonable. I accept his evidence in that regard as it was in keeping with my general assessment of him and of his character. Senior Constable Tye and Senior Constable Stubbings did not make an assessment along those lines before arresting the plaintiff.
At the time Senior Constable Tye approached the plaintiff at his home in order to arrest him, he had been given no reasonable cause or indication to doubt that the plaintiff would comply with a direction that might have been issued to the plaintiff to remain at his premises, either pursuant to s 89(1)(a) of the Crimes (Domestic and Personal Violence) Act 2007, had he known of its existence, or along similar lines without actually invoking that provision. In my view, this was particularly so given the time that had already passed from the time of the alleged incident, almost 4 hours beforehand, and given the apparent calmness of the plaintiff's domestic situation at that time.
In those circumstances, I consider that Senior Constable Tye had no sound or reasonable basis upon which to assume otherwise.
However, Senior Constable Tye did not consider the provisions of s 89(1)(a) of the Crimes (Domestic and Personal Violence) Act 2007, because he was unaware of it, and it appears that it had not formed part of his training (T72.34 - T72.49) and he therefore opted for the more extreme course of arresting the plaintiff in order to alleviate his concern over "the victims welfare and safety" at that time: T55.5. He did so in order to comply with a policy that leaned towards arrest: T69.31 - T70.2; T106.16 - T106.29.
Once Senior Constable Tye had his attention drawn to the terms of s 89 of the Crimes (Domestic and Personal Violence) Act 2007, he agreed that it gave him the power to give the plaintiff a direction as an alternative to exercising the power of arrest: T73.42. That power would have included the power to direct the plaintiff to remain at his home pending the processing of the provisional or interim apprehended domestic violence order in readiness for service on the plaintiff.
In my view, on the day in question, Senior Constable Tye had available to him a number of courses that were reasonable alternatives to simply arresting the plaintiff on sight.
The first such alternative was to initiate, process and obtain the provisional apprehended domestic violence order in advance of going to the plaintiff's property.
The second such alternative was that, having obtained a provisional apprehended domestic violence order in readiness for service, he could have spoken to the plaintiff in the course of the investigation that he acknowledged was required of him, and in those events, as explained at paragraphs [227] - [231] above, he would most likely have formed a view that an arrest was an unnecessary step for him to take in the circumstances.
At that time he could also have considered whether it was still necessary to serve that order assuming it had been obtained. This question would have arisen in view of the time that had passed, the non-aggressive presentation of the plaintiff, and the geographic distance between the plaintiff's home and the home of his ex-wife, and on ascertaining the fact that the plaintiff had already travelled there in order to return the children, without incident. Had police made a relevant inquiry along those lines, the "changeover" concerns identified at paragraph [207] above (T67.19 - T67.46) would have been recognised as having substantially receded.
In those circumstances, issuing the plaintiff with a field court attendance notice in respect of the charge pursuant to s 195(1)(a) of the Crimes Act 1900 would have been indicated as a reasonable alternative to making an arrest in the described circumstances.
On behalf of the plaintiff, it was submitted that the reason given as to why a provisional apprehended domestic violence order had not been obtained and then taken to the plaintiff's home, was that the police had a duty to investigate before initiating proceedings, and if the investigation had not been undertaken first, then this might expose the police to liability for a costs order.
In my view, that explanation was a spurious justification for an arrest in the absence of an investigation where the circumstances were not pressing. Concerns over a costs order do not constitute a justification for taking the extreme last resort step of arresting the plaintiff without fulfilling the statutory requirements for such a step. The plaintiff was instead arrested on sight, wrongfully, and this has led to the defendant's exposure to a liability in damages. Accordingly, the plaintiff has proven element (3) of his claim as identified at paragraph [121] above.

[25]

Compensatory damages, including aggravated damages

The parties made submissions on compensatory damages by reference to some decided cases, some of which are summarised below.
The defendant pointed to the following cases as examples to guide the assessment of damages in this case.
In State of NSW v Abed, the period of detention, including transportation to a police station, was for 3 hours, which attracted ordinary compensatory damages of $10,000 without an award for exemplary damages: Abed at [236]. In my view, the present case is of a more serious character than that case because of the late hour of the arrest and the nature of the uncomfortable road journey the plaintiff had to endure, as described at paragraph [39] above.
In Coyle v State of NSW [2006] NSWCA 95, at [100], there was a relatively short period of unjustified deprivation of liberty, but nevertheless also involving a most terrifying and unforgettable experience, attracted an award of compensatory damages in the sum of $10,000.
In Hage-Ali v State of NSW [2009] NSWDC 266, the decision in Coyle was considered. In that case, at [252], the plaintiff's background conduct as a cocaine user did not nullify her right to be arrested lawfully. In that case, compensatory damages for distress, humiliation and upset, were assessed at $7000.
In contrast, to the cases referred to by the defendant, the plaintiff pointed to the following damages awards as an appropriate guide to the assessment required in this case.
In Zaravinos v State of NSW [2004] NSWCA 320, at [50] - [51], in respect of a detention of the order of about 3.5 hours that was found to be arbitrary, unnecessarily long, high-handed and humiliating, there was an award of $25,000, but those damages were analysed to include awards for aggravated and exemplary damages.
In State of NSW v Coleman [2000] NSWCA 183, at [16] - [18], in respect of a wrongful detention of about 2.5 hours, with resultant physical injuries, there was an award of general, aggravated, and exemplary damages, without dissection as to components for those elements, in the overall sum of $28,000.
In State of NSW v Quirk [2012] NSWCA 216, at [158], albeit in relation to different facts, there was an award of $25,000 for the combined elements of ordinary or general damages and aggravated compensatory damages, with a separate amount allowed for exemplary damages.
In my view, the examples cited simply serve to demonstrate that there is scope for an evaluative range for the assessment of damages of the kind claimed by the plaintiff, and the individual circumstances of each case must guide the assessment, as the cited examples cannot be regarded as being prescriptive, but rather, demonstrating that an evaluative balance must be struck, according to the underlying facts and guiding principles, as occurred for example, in State of NSW v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496, at [142].
It was submitted on behalf of the plaintiff that since a decade has passed following the decision in Zaravinos, and 15 years have passed since the decision in Coleman, the assessment of such damages should in the present case, exceed those amounts, in keeping with more contemporary standards. That submission has persuasive force and it will be reflected in my assessment.
The defendant submitted, and I accept, that there was no element of bad faith operating on the part of the police officers who effected the arrest of the plaintiff. Instead, the required consideration is that of the importance of the liberty of the individual on the one hand, weighed against a recognition of the public interest in the prevention of crime and the protection of a victim from the possibility of injury or death, in the context of the seriousness of the allegations made. That consideration must be undertaken rationally and objectively.
Dealing with the seriousness of the allegations, it is noteworthy that the described actions of the plaintiff, which based the arrest, whilst serious, fell short of causing actual bodily harm to any person, and when viewed by police at 9.20pm, were sufficiently remote in time and without immediate risk of recurrence.
In that regard, when viewing the circumstances prospectively at the time, a relevant factor to be weighed was the fact that the plaintiff was settled for the night and was in pyjamas without apparent or expressed intent to "turn evil": T97.33.
Also of relevance was the unlikely recurrence of Cheryl Smith's unauthorised attendance at the plaintiff's property. It appears that her earlier attendance had been the precipitating factor. This was unlikely to recur.
In this case, the defendant submitted that the plaintiff's general damages "should be small, say no more than $8,000 and certainly not as high as the $10,000 given to Ms Abed".
I do not accept that submission as the submitted damages apply to circumstances that are different, and in my view, they do not represent proper compensation.
The plaintiff submitted that the appropriate sum for general compensatory damages, including an element of aggravated damages, is of the order of $25,000.
It is not to the point that the plaintiff was ultimately convicted of the offence charged under s 195(1)(a) of the Crimes Act 1996. That was not the purpose of his arrest. He was arrested for the administrative convenience of police officers. This occurred in order to render the process of serving him with a provisional apprehended domestic violence order a less onerous task for the police officer concerned. That process was wrong, and the reasonable alternative to arresting the plaintiff had not been considered or pursued. In my view, this calls for a significant damages award.
In my view, the appropriate sum to be awarded for general damages for wrongful arrest and imprisonment is the sum of $20,000, including an allowance for an element for aggravated damages.
As was observed in Zaravinos, at [52], damages in such cases are not capable of being related proportionately to the length of time in detention, and the substantial portion of the award must be applied to the initial shock of being arrested, following Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612.
In the present case, the shock of the arrest on sight was a significant one for the plaintiff. He was too shocked to initially ask questions about the basis for the deprivation of his liberty. The aggravating factors included the significant humiliation of being arrested and then searched in front of his wife, and then taken away in a police wagon, from his home, at night, and the uncomfortable journey to the police station, as described at paragraph [39] above. Such matters are not capable of precise dissection for the purpose of allocating separate portions of the award for compensatory damages.

[26]

Exemplary damages

To establish an entitlement to exemplary damages, the plaintiff must show that his arrest and detention was not only wrongful, but also amounted to conscious wrongdoing on the part of the police, in contumelious disregard of his rights, such that the conduct was reprehensible, and required an expression of disapproval to bring home to those officials of the State responsible for overseeing the workings of the police force, that police officers must be appropriately trained so that unlawful and contumelious infringement of personal liberty does not continue to occur in other instances: State of NSW v Zreika [2012] NSWCA 37, at [61] - [62], following Gray v Motor Accidents Commission [1998] HCA 70; (1998) 196 CLR 1, at p 7, [15]; NSW v Ibbett [2006] HCA 57; (2006) 229 CLR 638, at pp 646 - 647; [31], [33]; NSW v Landini [2010] NSWCA 157, at [14]; Adams v Kennedy [2000] NSWCA 152; (2000) 49 NSWLR 78, at 36.
Conduct that is high-handed, outrageous, and which shows contempt for the rights of others, even if not malicious, or not involving conscious wrongdoing, may still properly form the basis for an award of exemplary damages where an award of compensatory damages alone does not sufficiently express the court's disapproval of the conduct in question: State of NSW v Abed [2014] NSWCA 419, at [233]; State of NSW v Riley [2003] NSWCA 208; (2008) 57 NSWLR 496, at [138]; State of NSW v Quirk [2012] NSWCA 216, at [163].
In assessing exemplary damages, care must be taken when identifying the disapproved conduct that attracts such an award, to ensure that no element of the compensation is awarded more than once: State of NSW v Quirk [2012] NSWCA 216, at [154], citing NSW v Ibbett [2006] HCA 57; (2006) 229 CLR 638, at [35].
The defendant submitted that in this case, the polite verbal nature of the plaintiff's arrest, the subsequent permission given to the plaintiff to change his attire, the respectful nature of the pat-down search of the plaintiff, the non-physical aspect of the escorting of the plaintiff to the police wagon, the courteous offer of coffee, water, and allowing the plaintiff an appropriate toilet break on request, and the (eventual) provision of a lift home, all militate against an award of exemplary damages as such matters contradict the suggestion of a contumelious disregard of the plaintiff's rights.
In my view, that submission fails to address the contumelious nature of the initial and planned disregard of the plaintiff's rights that were infringed on grounds of the application of a police directive that was interpreted to require an arrest at the outset rather than taking a lesser alternative course that was plainly available in the circumstances.
This occurred because of a police training issue, and as such, it should attract disapprobation or disapproval because it applied an over-simplistic and incorrect template for determining whether or not an arrest should be effected rather than considering reasonable alternative courses that were available.
In contrast to the defendant's submissions on exemplary damages, on behalf of the plaintiff it was submitted that the present case calls for a significant award for exemplary damages.
The submitted justification for such an award is the fact that the plaintiff was arrested because of a policy that dictated this should happen unless there was good reason not to follow that course. That submission stated, correctly, that such a policy was to the exact opposite of the applicable legal requirements that could justify arresting and depriving a person of their liberty.
I accept the submission that the application of such an ill-founded approach was contrary to the law, and amounts to a contumelious disregard of the plaintiff's rights in this instance. That conclusion applies irrespective of the ultimate finding of guilt of the plaintiff in relation to the outcome of the charge pursuant to s 195(1)(a) of the Crimes Act 1900.
Those events occurred because of an evident failure in the training of police officers, which has resulted in the arresting officer being unaware of the provisions of s 89 of the Crimes (Domestic and Personal Violence) Act 2007, which provided clear alternatives to arrest, and where the circumstances of this case plainly justified the pursuit of such alternatives.
In my opinion, those circumstances require censure by an award of exemplary damages "to bring home to those officials of the State who are responsible for the overseeing of the police force that police officers must be trained" so that such problems do not recur: Adams v Kennedy [2000] NSWCA 152, at [36].
In my view, as the contumelious disregard of the plaintiff's rights did not involve malice, such an award should be in a moderate amount. I do not consider the award should include an additional component to reflect the futility of part of the content of the provisional apprehended domestic violence order issued to the plaintiff and purporting to have effect in Qld. I consider that the described circumstances call for an award of exemplary damages in the amount of $15,000.

Smith v State of New South Wales

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