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[2025] NSWDC 495
District Court of NSW
2025-11-28
Weber SC DCJ
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Tabbaa v State of New South Wales; Tabbaa v State of New South Wales [2025] NSWDC 495
Hearing dates: 25 – 29 August 2025; 29 September 2025
Date of orders: 28 November 2025
Decision date: 28 November 2025
Jurisdiction: Civil
Before: Weber SC DCJ
Decision: In each case, the Court Orders:
1. That there be judgment and verdict for the defendant against the plaintiff.
Catchwords: TORTS – False Imprisonment – Malicious Prosecution – Wrongful Arrest – Assault and Battery – Trespass to Land – Trespass to Goods
PRACTICE AND PROCEDURE – Where plaintiffs elected to adduce no evidence in chief – Whether case closed – Opportunity to reopen refused – Notice of motion to strike out parts of proceedings
Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007 (NSW) ss 13, 19 Crimes Act 1900 (NSW) ss 59, 114 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ss 4, 99, 105, 115, 201, 202 Uniform Civil Procedure Rules 2005 (NSW) r 29.10
Cases Cited: AD v State of New South Wales [2023] NSWCA 115
Christie v Leachinsky [1947] AC 573
Dowse v State of New South Wales [2012] NSWCA 337
Hyder v Commonwealth of Australia [2012] NSWCA 336
Johnstone v State of New South Wales [2010] NSWCA 70
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11
New South Wales v Robinson (2019) 266 CLR 619; [2019] HCA 46
State of New South Wales v Abed [2014] NSWCA 419
State of New South Wales v Dennis [2025] NSWCA 118
State of New South Wales v Madden (2024) 113 NSWLR 509; [2024] NSWCA 40
State of New South Wales v Randall [2017] NSWCA 88
Category: Principal judgment
Parties: Mouhammad Riad Tabbaa (First Plaintiff)
Mohammad Munir Tabbaa (Second Plaintiff)
State of New South Wales (Defendant)
Representation: Counsel:
Mr M Gollan & Ms C Coventry (Defendant)
Solicitors:
Wotton Kearney (Defendant)
In Person:
Mr M R Tabbaa (Plaintiff)
Mr M M Tabbaa (Plaintiff)
File Number(s): 2023/00257916; 2024/00232737
Before the Court are two sets of proceedings. They arise out of basically the same factual substratum. Both proceedings concern the arrest of each plaintiff in the period June and July 2018. The plaintiffs are father and son. At the commencement of the proceedings, the plaintiffs requested that they be referred to as Mr Tabbaa Senior (proceedings 2023/00257916) and Mr Tabbaa Junior (proceedings 2024/00232737), and the hearing proceeded accordingly. I shall continue that approach in identifying the plaintiffs.
I shall also refer to the police officers involved by reference to the rank which they held at the time of the incident relevant to the causes of action.
Both plaintiffs appeared in person.
Given the common substratum of fact with which both proceedings are concerned, on 24 July 2024 Dicker SC DCJ made an order that the matters be heard together, with evidence in one being evidence in the other.
Mr Tabbaa Senior pleaded a case in:
Wrongful arrest;
False imprisonment;
Trespass to land; and
Malicious prosecution.
Mr Tabbaa Junior pleaded the following causes of action:
False imprisonment;
Assault and battery;
Trespass to goods; and
Malicious prosecution.
After opening their cases, I invited Mr Tabbaa Senior to enter the witness box to give evidence in support of his claims. He informed me, in quite strident terms, that he was not intending to give evidence. I warned him of the possible consequences of that decision, but he was adamant that he would not do so. He said, “No, that's all right. No. I won't be doing any of this.” (T 10. 47).
Mr Tabbaa Junior took the same attitude.
Mr Gollan of counsel, who appeared for the defendant, then sought to have the matter stood over to the following day to enable his client to consider its position in light of the plaintiffs’ decision. This was not outright opposed by the plaintiffs, but, that said, neither was it warmly embraced. Nonetheless, I granted the adjournment.
On the following morning, Mr Gollan sought and was granted leave to file in Court a notice of motion on the basis that the plaintiffs had closed their cases. Relevantly, the motion sought that Mr Tabbaa Senior’s cases in malicious prosecution and trespass be struck out pursuant to r 29.10 of the Uniform Civil Procedure Rules 2005 (NSW). The defendant sought the same relief in respect of Mr Tabbaa Junior, although only in respect of his claim for malicious prosecution.
The plaintiffs resisted the proposition that their cases were closed, and indicated that they had only seen the notices of motion shortly before the commencement of the resumed proceedings on day 2. They asked for an adjournment for a day in which to consider their position, which I granted.
On the following morning, that is to say, 27 August 2025, Mr Gollan moved on the defendant’s motion. I provided the plaintiffs the opportunity to make an application to reopen their cases, which they elected not to make. I subsequently granted the relief sought, namely that Mr Tabbaa Senior’s claims in malicious prosecution and trespass were struck out, and that Mr Tabbaa Junior’s case in malicious prosecution was also struck out. I did so as the causes of action to which the notices of motion related were causes of action in respect of which the plaintiffs bore the onus of proof.
As a consequence, if there was no evidence in support of these actions they must have failed. Accordingly, I made the orders sought.
I delivered a very brief ex-tempore judgment on the motion, which is separately produced in the transcript.
A number of police officers attended 18 Market Street, Rockdale on 25 June 2018. They did so in response to a report of a brawl. The report was assigned by the police radio broadcast as priority 2 (which is the designation of an emergency). The responding officers included Constable Smith, Constable Bendyke and Sergeant Paulo.
Constables Smith and Bendyke spoke with the complainant, Mr Kolid Hammoshe. He told them that he had been assaulted by the plaintiffs. Mr Hammoshe indicated that he was prepared to give a statement and, consequently, Constables Smith and Bendyke determined to arrest Mr Tabbaa Senior and Mr Tabbaa Junior. Constable Bendyke arrested Mr Tabbaa Senior, and Constable Smith arrested Mr Tabbaa Junior. Both plaintiffs were conveyed to St George Police Station, Kogarah (‘Kogarah Police Station’).
Their arrests were subsequently discontinued after Mr Hammoshe informed police at the station that he no longer wished to provide a statement.
On 29 June 2018, Mr Hammoshe apparently changed his mind again and provided a statement to the police. Following the provision of Mr Hammoshe’s statement, Constable Smith attended Mr Tabbaa Senior’s unit on 7 July 2018 and arrested him. Attempts were made to also arrest Mr Tabbaa Junior, although he could not be found on 7, 13 and 14 July 2018. Mr Tabbaa Junior was eventually arrested by Sergeant Spencer on 19 July 2018.
After their respective arrests, Mr Tabbaa Senior was charged with the offence of intimidating Mr Hammoshe with the intention of causing Mr Hammoshe to fear physical or mental harm, in contravention of s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). Mr Tabbaa Junior was charged with:
being armed with intent to commit an indictable offence in contravention of s 114(1)(a) of the Crimes Act 1900 (NSW);
assault occasioning actual bodily harm in contravention of s 59(1) of the Crimes Act 1900 (NSW).
Following the defendant’s notices of motion, the causes of action that remain for determination by me are:
in Mr Tabbaa Senior’s proceedings:
(a) the false imprisonment claim in respect of the arrest on 25 June 2018 arising out of an alleged wrongful arrest; (b) the false imprisonment claim in respect of the arrest on 7 July 2018 arising out of an alleged wrongful arrest;
(a) false imprisonment, assault and battery, and trespass to goods claims in respect of the arrest on 25 June 2018 arising out of an alleged wrongful arrest; (b) false imprisonment, assault and battery, and trespass to goods claims in respect of the arrest on 19 July 2018 arising out of an alleged wrongful arrest.
99 Power of police officers to arrest without warrant
(1) A police officer may, without a warrant, arrest a person if—
(a) the police officer suspects on reasonable grounds that the person is committing or has committed an offence, and
(b) the police officer is satisfied that the arrest is reasonably necessary for any one or more of the following reasons—
(i) to stop the person committing or repeating the offence or committing another offence,
(ii) to stop the person fleeing from a police officer or from the location of the offence,
(iii) to enable inquiries to be made to establish the person’s identity if it cannot be readily established or if the police officer suspects on reasonable grounds that identity information provided is false,
(iv) to ensure that the person appears before a court in relation to the offence,
(v) to obtain property in the possession of the person that is connected with the offence,
(vi) to preserve evidence of the offence or prevent the fabrication of evidence,
(vii) to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence,
(viii) to protect the safety or welfare of any person (including the person arrested),
(ix) because of the nature and seriousness of the offence.
(2) A police officer may also arrest a person without a warrant if directed to do so by another police officer. The other police officer is not to give such a direction unless the other officer may lawfully arrest the person without a warrant.
(3) The arresting police officer or another police officer must, as soon as is reasonably practicable, take the person who has been arrested under this section before an authorised officer to be dealt with according to law.
Note—
A police officer may discontinue the arrest of a person at any time and without taking the arrested person before an authorised officer—see section 105.
(4) A person who has been lawfully arrested under this section may be detained by any police officer under Part 9 for the purpose of investigating whether the person committed the offence for which the person has been arrested and for any other purpose authorised by that Part.
(5) This section does not authorise a person to be arrested for an offence for which the person has already been tried.
(6) For the purposes of this section, property is connected with an offence if it is connected with the offence within the meaning of Part 5.
(7) In this section—
arresting police officer means the police officer arresting a person under this section.
The onus rests with the defendant to establish that the arrests of the plaintiffs were lawful and that the two preconditions in s 99(1) were satisfied (see, for example, State of New South Wales v Madden (2024) 113 NSWLR 509; [2024] NSWCA 40 at [125]).
As concerns the requirement in s 99(1)(a) that the officer must reasonably suspect the person is committing or has committed an offence, in Hyder v Commonwealth of Australia [2012] NSWCA 336, McColl JA said:
[14] .... In determining whether the arresting officer had the relevant state of mind (be it suspicion or belief), the court is considering a preliminary stage of investigation, rather than one requiring evidence amounting to prima facie proof: O'Hara v Chief Constable of Royal Ulster Constabulary (at 293) per Lord Steyn, citing Shaaban Bin Hussien v Chong Fook Kam (at 949).
[15] …
(4) There must be some factual basis for either the suspicion or the belief: George v Rockett (at 112); the state of mind may be based on hearsay material or materials which may be inadmissible in evidence; the materials must have some probative value: R v Rondo [2001] NSWCCA 540; (2001) 126 A Crim R 562 (at [53](b)) per Smart AJ (Spigelman CJ and Simpson J agreeing); Shaaban Bin Hussien v Chong Fook Kam (at 949); O'Hara v Chief Constable of Royal Ulster Constabulary (at 293) per Lord Steyn;
…
(8) The information acted on by the arresting officer need not be based on his own observations; he or she is entitled to form a belief based on what they have been told. The reasonable belief may be based on information which has been given anonymously or on information which turns out to be wrong. The question whether information considered by the arresting officer provided reasonable grounds for the belief depends on the source of the information and its context, seen in the light of the whole of the surrounding circumstances and, having regard to the source of that information, drawing inferences as to what a reasonable person in the position of the independent observer would make of it: O'Hara v Chief Constable of Royal Ulster Constabulary (at 298, 301, 303) per Lord Hope…
[52] Barrett AJA's approach [in Jankovic v Director of Public Prosecutions [2020] NSWCA 31] seemed to involve both a subjective requirement for the arresting officer actually to consider alternatives to arrest prior to exercising the s 99 power and an objective element of proportionality which could later be assessed by a court. Both seem to have been founded on the reference to reasonable necessity in s 99(1)(b). Neither should be accepted in the manner in which they were put by his Honour.
[53] A subjective requirement to consider alternatives prior to effecting a lawful arrest seems to approach recognition of an implied mandatory relevant consideration, or at least a mandatory decision-making process. In any event, first, any such requirement is impractical and thus unlikely to have been intended. Such a mandatory consideration or process will commonly be unviable, at least when arrests are effected in circumstances of urgency, as the Premier alluded to. So much was implicitly recognised by White JA at [8] of Jankovic. That it is commonly unviable weighs heavily against it being considered a prerequisite to making a valid arrest. Also relevant here are the matters identified above at [31]-[34]. And an implied requirement does not sit well with the text understood in its context. It could reasonably be seen as an example of the sort of "legal complexities" which the Premier indicated the provision was meant to avoid. The Parliament's move in 2013 to expressing the criterion in subjective terms without a requirement of reasonable grounds is relevant to construction here (see above at [30]). And as was noted in Jankovic itself, the introduction of the qualifying word "reasonably" before the word "necessary" was plainly meant to be a factor dilutive of legal scrutiny.
[54] As for regarding the reasonable necessity aspect as introducing an "objectively reasonable assessment" going to proportionality, that is subject to much the same objections along with some additional concerns. At least on one view it seems to be rendering the issue of whether the arrest was proportionate a jurisdictional fact, for which courts are empowered to engage in their own merits review. Yet that understanding is inconsistent with the point - appropriately emphasised in Randall and AD - that the criterion is expressed in terms of the satisfaction of the arresting officer. That formulation plainly is meant to confer the power of evaluative judgment on the arresting officer, subject to the somewhat restrained form of legal review that can apply to such powers. To regard the reference to "reasonable necessity" as introducing a form of objective merits review by the back door would defeat that intention.
…
[60] In summary, then, s 99(1)(b) requires that the arresting police officer subjectively is satisfied that the arrest is reasonably necessary for one or more of the identified reasons. Reasonably necessary connotes, in this context, appropriate and adapted to achieve one or more of the identified reasons. The arresting officer's satisfaction must not be manifestly unreasonable, arbitrary, capricious, irrational, or not bona fide. The existence of alternatives to arrest might in some cases be relevant to assessing that issue. But the provision does not require police officers subjectively to consider alternatives to arrest in every case as a condition of validity. And it is not for the courts to substitute their own view as to whether alternatives should have been pursued."
His Honour further held at [106] that bail cannot be granted to a person who is not in custody.
It is also important to note that in New South Wales v Robinson (2019) 266 CLR 619; [2019] HCA 46, Kiefel CJ, Keane and Nettle JJ emphasised that the relevant standard is not an onerous one. Their Honours observed at [55], ‘...that the requirement of reasonable grounds to suspect is “very limited” and nothing like as much as a prima facie case’.
As has been noted on a number of occasions, most of the reasons for arrest listed in s 99(1)(b) of LEPRA are purposive, however, ss 99(1)(b)(ix) is of a different character (see, for example, AD v State of New South Wales [2023] NSWCA 115 per Basten AJA at [21][24], and Dennis per Basten AJA at [134]).
The defendant accepted that there must be a contemporaneous intention of charging the person arrested at the time of the arrest. In Dowse v State of New South Wales [2012] NSWCA 337, Basten JA stated:
[26] While it is true, as Lord Hope explained in O'Hara, that there are two elements to be satisfied for a warrantless arrest to be valid, namely an honestly held suspicion in the mind of the arresting officer and information in the mind of the arresting officer which when objectively assessed provides reasonable grounds for the suspicion, these are not abstract and independent elements. They justify a deprivation of liberty which in turn is part of an ongoing process by which the person arrested must be taken before an authorised officer to be dealt with according to law: Law Enforcement Act, s 99(4). In other words, the arrest is a first step in the process by which the person is to be made answerable for the offence, the commission of which the officer suspects. The same underlying purpose is to be found in s 99(3) which limits the circumstances in which an officer may arrest a person "for the purpose of taking proceedings for an offence against the person"; it thus assumes that such a purpose must underlie a valid arrest.
[27] In other words, an arrest will not be valid merely because the officer believes that an offence has been committed, in circumstances where the officer has no intention of charging the person or having the person charged with that offence. If that were not so, the legal requirement that the person arrested be informed of the true grounds of the arrest would be rendered nugatory: see State of New South Wales v Delly [2007] NSWCA 303; 70 NSWLR 125 at [9]-[11] (Ipp JA), adopting the reasoning of Lord Simonds in Christie v Leachinsky [1947] AC 573 at 591-592. …
The intention to charge at the time of arrest, however, is not to the exclusion of a police officer’s intention to follow up matters by way of investigation and acquire enough information to satisfy themselves that the charge should continue rather than be discontinued.
Section 105 of LEPRA provides for the discontinuation of an arrest in the following terms:
(1) A police officer may discontinue an arrest at any time.
(2) Without limiting subsection (1), a police officer may discontinue an arrest in any of the following circumstances:
(a) if the arrested person is no longer a suspect or the reason for the arrest no longer exists for any other reason,
(b) if it is more appropriate to deal with the matter in some other manner, including, for example, by issuing a warning or caution or a penalty notice or court attendance notice or, in the case of a child, dealing with the matter under the Young Offenders Act 1997.
(3) A police officer may discontinue an arrest despite any obligation under this Part to take the arrested person before an authorised officer to be dealt with according to law.
(1) A police officer may in accordance with this section detain a person, who is under arrest, for the investigation period provided for by section 115.
(2) A police officer may so detain a person for the purpose of investigating whether the person committed the offence for which the person is arrested.
…
(4) The person must be:
(a) released (whether unconditionally or on bail) within the investigation period, or
(b) brought before an authorised officer or court within that period, or, if it is not practicable to do so within that period, as soon as practicable after the end of that period.
(1) The investigation period is a period that begins when the person is arrested and ends at a time that is reasonable having regard to all the circumstances, but does not exceed the maximum investigation period.
(2) The maximum investigation period is 6 hours or such longer period as the maximum investigation period may be extended to by a detention warrant.
Section 122 of LEPRA requires the custody manager to, orally and in writing, caution a person who comes into custody at a police station, and to give the person a summary of the provisions of part 9 of LEPRA in the form prescribed by the regulations under the Act. It should be noted that the Custody Management Records for each of the four arrests establish that this caution was given to each plaintiff on both occasions on which they were arrested.
I also note that, whilst Mr Tabbaa Senior pleads in his Statement of Claim at [19] and [36] that he was denied the opportunity to communicate in private with a friend, relative, lawyer or independent person on both 25 June 2018 and 7 to 8 July 2018, he adduced no evidence in support of those allegations.
Similarly, although Mr Tabbaa Senior pleaded in his Statement of Claim at [38] that he was denied medical attention while he was in custody on 7 to 8 July 2018, there was also no evidence adduced in support of this allegation.
It is not necessary for the arrested person to be told the precise charge at the time of the arrest but only the “true reason” or the “substance of the reason” for the arrest. The level of detail required depends on the particular circumstances of the case: State of New South Wales v Abed [2014] NSWCA 419 per Gleeson JA (with whom Bathurst CJ and Macfarlan JA agreed) at [88]-[92].
At common law, it was said in Christie v Leachinsky [1947] AC 573 at 587-588 by Viscount Simon:
The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained.
It should be noted that the functions, obligations and liabilities of a police officer at common law are expressly preserved unless LEPRA otherwise provides expressly or by implication (LEPRA s 4).
In Johnstone v State of New South Wales [2010] NSWCA 70, Beazley JA (with whom Young and McColl JJA agreed on this point) held at [29] that s 201 of LEPRA (the predecessor to s 202) reflected the common law principle from Christie v Leachinsky that an arresting officer is required to inform the person arrested of the true ground on which the arrest is being made. See also Basten JA in State of New South Wales v Randall [2017] NSWCA 88.
It is lawful for a police officer exercising a function under this Act or any other Act or law in relation to an individual or a thing, and anyone helping the police officer, to use such force as is reasonably necessary to exercise the function.
A police officer or other person who exercises a power to arrest another person may use such force as is reasonably necessary to make the arrest or to prevent the escape of the person after arrest.
Constable Smith, Constable Bendyke, Sergeant Paulo and Sergeant Spencer were called by the defendant.
In my opinion, each of the officers gave their evidence in a straightforward manner. They all presented as reliable, professional officers. Where appropriate, they acknowledged the limitations in their recollection of events that occurred more than seven years ago, although in some instances they were able to give evidence of their usual practice, upon which they were not meaningfully challenged.
By and large, the officers were generally cross-examined about peripheral and indeed irrelevant matters. Constable Smith especially readily made concessions.
I have no hesitation in accepting the evidence of each of the police officers called.
Sergeant McEncroe was the Custody Manager at the time of the arrests. He did not give evidence at the hearing. His absence, however, was explained on the basis that a medical condition precluded him from assisting the Court with his evidence. Indeed, it is unnecessary to consider the absence of Sergeant McEncroe as the plaintiffs tendered the Custody Management Records, which records prove what occurred.
(a) the complainant, Mr Hammoshe, informing him that Mr Tabbaa Senior and Mr Tabbaa Junior had assaulted him. This evidence was consistent with Constable Bendyke's statement dated 7 July 2018 (exhibit DX-3) in which he indicated that:
(i) he spoke with Mr Hammoshe and was informed by Mr Hammoshe that he had been assaulted in the foyer by two males with a knife and a black baseball bat;
(ii) he identified Mr Tabbaa Senior and Mr Tabbaa Junior as the offenders;
(b) his observations of Mr Hammoshe, which included the fact that he had facial injuries consistent with his account. Constable Bendyke's evidence of Mr Hammoshe's injuries are corroborated by photographs of Mr Hammoshe taken by Constable Smith on 25 June 2018 that are exhibit DX-2; and
(c) photographs which Mr Hammoshe had taken with his phone and showed to Constable Bendyke, which Constable Bendyke interpreted as showing a heated confrontation and Mr Tabbaa Senior holding a knife (exhibits DX-1 and DX-7). In my view, Constable Bendyke's interpretation of those photographs is clearly correct.
In addition, it should be noted that Constable Smith, who was working with Constable Bendyke on 25 June 2018, corroborated Constable Bendyke’s evidence. Constable Smith also spoke with Mr Hammoshe at the scene, who reported that he had been assaulted by two persons and pointed in the direction of the plaintiffs. Constable Smith also observed injuries to Mr Hammoshe’s face; namely, redness on his right check, blood on the right side of his mouth, and an injury on the inside of his lip. Constable Smith also saw the photos that are exhibits DX-1 and DX-7 and two videos on Mr Hammoshe’s phone, which he considered depicted the blade of a knife protruding from the right-hand side of Mr Tabbaa Senior’s coat. He was also of the view that the photos depicted Mr Tabbaa Senior as having an angry and aggressive disposition. Constable Smith formed the view that Mr Tabbaa Senior and Mr Tabbaa Junior had committed an offence.
Constable Bendyke was never challenged in cross-examination about his evidence that he suspected Mr Tabbaa Senior had committed the offence of intimidation. I comfortably accept his evidence. I have set out earlier in these reasons the limited grounds upon which Constable Bendyke’s suspicion pursuant to s 99(1)(a) can be challenged. In my view, none of the grounds for a challenge to Constable Bendyke’s belief that Mr Tabbaa Senior had committed an offence have been satisfied here. Indeed, quite to the contrary, rather than Constable Bendyke’s decision making being irrational, arbitrary or capricious, Constable Bendyke’s suspicion was well-founded given that the account given by Mr Hammoshe was corroborated by the injuries to Mr Hammoshe and photographs shown to Constable Bendyke by Mr Hammoshe. I should also note that Sergeant Paulo held the same view, as did Constable Smith. As I have noted above, Constable Smith said he would have arrested Mr Tabbaa Senior if Constable Bendyke had not done so (T 199. 42-44).
There was extensive cross-examination directed to the topic of ownership of the phone on which the photographs were shown to police by Mr Hammoshe. This cross-examination was linked to the fact that the police did not seize the phone. In my view, this is irrelevant in considering Constable Bendyke’s state of mind at the time of arresting Mr Tabbaa Senior. The plaintiffs’ cases were not ones in investigator’s negligence.
(a) due to the nature and seriousness of the offence (in that Mr Tabbaa Senior had reportedly produced a knife and used it to threaten Mr Hammoshe); and
(b) to protect the safety of Mr Hammoshe.
Mr Tabbaa Senior has pleaded in his Statement of Claim that Constable Bendyke did not comply with s 202 of LEPRA. It is sufficient to note that, as Mr Tabbaa Senior did not give evidence, there is no evidence of non-compliance with s 202. I should also note that Constable Bendyke’s statement dated 7 July 2018 establishes there was compliance with s 202 of LEPRA at the time of the arrest. Constable Bendyke also gave evidence to this effect and, during cross-examination, rejected the proposition that he did not say to Mr Tabbaa Senior that he was being arrested for intimidation. As I have indicated, there is no evidence to the contrary. I comfortably find that Constable Bendyke complied with s 202 of LEPRA at the time of arresting Mr Tabbaa Senior.
Mr Tabbaa Senior also alleged that Constable Bendyke did not have a contemporaneous intention to charge him at the time of arrest. This appears to be based on the fact that the arrest was discontinued. This discontinuance has been well explained as arising from the complainant’s initial volte-face as to giving a statement. As soon as this occurred, the officers concerned very promptly discontinued the arrest.
I find that the arrest of Mr Tabbaa Senior on 25 June 2018 was lawful.
Following his arrest, Mr Tabbaa Senior was conveyed to Kogarah Police Station and entered into custody at or about 3:44pm. Constables Smith and Bendyke, and Sergeant Paulo carried out some further investigations at and nearby the scene, and thereafter returned to Kogarah Police Station. It was then that they spoke with Mr Hammoshe, who informed them that he no longer wanted to provide a statement or pursue the matter further. Upon being so advised, the officers formed the view that they would not charge the plaintiffs. Thus, later events led to Constable Bendyke deciding not to charge Mr Tabbaa Senior and the arrest was quite properly discontinued at this time in accordance with s 105 of LEPRA.
Mr Tabbaa Senior makes a number of complaints in his Statement of Claim about events that occurred while he was in custody. These pleaded complaints, however, were unsupported by oral evidence. I will nonetheless touch upon them.
First, Mr Tabbaa Senior alleges that he was not taken before a magistrate or an authorised officer to be dealt with according to law. Whilst this is correct, this was the consequence of the arrest being discontinued.
Second, Mr Tabbaa Senior alleges that he was detained for an excessive, unreasonable, and/or unlawful length of time. The period of detention was from the time of his arrest at approximately 3:03pm until approximately 5:29pm. This is a period of 2 hours and 19 minutes. This period is well within the maximum investigation period of 6 hours pursuant to s 115 of LEPRA. During this period, Constables Smith and Bendyke carried out searches at the scene, looked for the baseball bat at Mr Tabbaa Junior’s unit, returned to Kogarah Police Station, and spoke with Mr Hammoshe. All of these events occurred in less than two and a half hours. As such, I find that the detention was not for an excessive, unreasonable, or unlawful length of time.
For these reasons, Mr Tabbaa Senior's claim for false imprisonment on 25 June 2018 must also fail.
I therefore find that for Mr Tabbaa Senior (in proceedings 2023/00257916), the claims based on the arrest and imprisonment on 25 June 2018 should be dismissed.
(a) Mr Tabbaa Senior was screaming, held a kitchen knife with a black and silver handle in his right hand, and swung it near Mr Hammoshe, causing Mr Hammoshe to think that he would be stabbed (at [11]-[12]);
(b) Mr Tabbaa Junior was holding a black baseball bat. Mr Hammoshe grabbed the bat from Mr Tabbaa Junior and was then punched by Mr Tabbaa Junior in the mouth and under the right eye (at [11]-[14]).
Mr Hammoshe’s statement is exhibit DX-8.
Mr Hammoshe’s statement was consistent with what he had told the police at the scene on 25 June 2018. Constable Smith’s evidence was that he suspected Mr Tabbaa Senior had committed the offence of assault based on Mr Hammoshe’s evidence, the photographs that are exhibits DX-1 and DX-7 (which he considered showed Mr Tabbaa Senior holding a knife), and his observations of injuries to Mr Hammoshe (as depicted in the photographs that are exhibit DX-2). In my view, this provided more than a sufficient basis for Constable Smith to suspect on reasonable grounds that Mr Tabbaa Senior had committed an offence on 25 June 2018.
As to s 99(1)(b), Constable Smith’s evidence at the hearing was to the following effect:
he actively considered whether it was reasonably necessary to arrest Mr Tabbaa Senior or commence proceedings by some other means after obtaining Mr Hammoshe’s statement. He was unable to progress this on 29 June 2018 as he had other duties to attend to, and was then on leave until 6 July 2018;
on 7 July 2018, he sought advice on how to proceed with the charges from Sergeant Paulo and formed the view that it was necessary to arrest Mr Tabbaa Senior and Mr Tabbaa Junior because, once they were charged, they would realise that Mr Hammoshe had provided a statement and there was a need to protect Mr Hammoshe in these circumstances (s 99(1)(b)(xiii)), particularly as he worked in the building in which Mr Tabbaa Senior lived, which could be secured by way of bail conditions. In other words, Constable Smith actively considered alternatives to arrest (i.e. charging Mr Tabbaa Senior by way of future CAN), should the circumstances of this case require him to do so, but, after consideration, rejected this approach. Sergeant Paulo’s evidence was that there were no alternatives to arrest because it was a very serious matter, the complainant had provided a statement and he believed the complainant to be credible, it was necessary to arrest Mr Tabbaa Senior to place victim protection conditions on him and therefore protect the complainant, and because of the nature and seriousness of the offence (T 42. 12-20; 62. 3-14; 64. 1-10).
Constable Smith was briefly cross-examined by Mr Tabbaa Senior about the possibility of an alternative to arrest that might have protected Mr Hammoshe, namely obtaining an apprehended personal violence order. This cross-examination, in my view, went nowhere as Mr Tabbaa Senior has not established that Mr Hammoshe held a fear for his safety after providing his police statement, which is a pre-requisite for an APVO (Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 19). This must be contrasted with Constable Smith, who knew these matters and from them formed a fear for Mr Hammoshe’s safety. I should also add that, in any event, s 99(1)(b) of LEPRA does not require police officers subjectively to consider alternatives to arrest in every case as a condition of validity of the arrest (see Dennis at [60]).
Both Sergeant Paulo and Constable Smith were cross-examined by Mr Tabbaa Senior about the fact that no steps were taken by police to protect Mr Hammoshe immediately after he provided his statement to police on 29 June 2018. Again, I found this line of cross-examination to be unhelpful. I take that view as this line of questioning ignores the fact that there is no evidence that the plaintiffs knew that Mr Hammoshe provided a statement to police on 29 June 2018. Sergeant Paulo’s evidence was that, in his experience as a police officer, the risk to an alleged victim arises or becomes more pronounced in circumstances where the accused is made aware that evidence (in this case, Mr Hammoshe’s statement) was in the possession of police.
Mr Tabbaa Senior also pleads that Constable Smith failed to comply with s 202 of LEPRA, although does not identify the precise nature of the non-compliance in the Statement of Claim. Again, no oral evidence was given by Mr Tabbaa Senior in support of the pleading. In any event, I find that there was compliance with s 202, having regard to:
Mr Tabbaa Senior’s evidence in the Local Court proceedings that Constable Smith said, ‘I am arresting you for the assault of Kolid Hammoshe’;
Mr Tabbaa Senior’s failure to give any evidence in these proceedings; and
Constable Smith’s evidence that he did not have a specific recollection of providing a reason for the arrest, but his expectation was that he did so as it was his practice at the time. This evidence was not challenged by Mr Tabbaa Senior.
I have found Mr Tabbaa Senior’s allegation that his arrest was not executed with a contemporaneous intention to charge to be obscure. The same can be said of his allegation that the arrest was effected for an improper and/or extraneous purpose. Constable Smith’s evidence was that he intended to charge Mr Tabbaa Senior after he had obtained Mr Hammoshe’s statement, and this did in fact occur after the arrest (and an ERISP in which Mr Tabbaa Senior gave disingenuous answers and did not offer any exculpatory evidence).
For those reasons, I find that the arrest of Mr Tabbaa Senior on 7 July 2018 was lawful.
Subsequent to the arrest at 10:15pm, Mr Tabaa Senior was conveyed to Kogarah Police Station and entered into custody at or about 10:57pm. He participated in an ERISP between 11:59pm and 12:43am the following day. Constable Smith commenced the charge process at or about 1:16am.
Police bail was granted at about 2:20am on 8 July 2018 and Mr Tabbaa Senior was released from custody a short time later. Mr Tabbaa Senior asserted that the Custody Management Record notes that he was released from custody at 4:01am. I do not consider this to be a correct interpretation of the custody record. In my view, the time of 4:01am which appears at the foot of each page was the time at which the document was generated, and not the time of his release from custody (exhibit PX-2). The custody record which specifically deals with this issue shows that bail was granted at 2:20am (exhibits PX-2 and DX-16). Indeed, I also note that Mr Tabbaa Senior’s evidence in the Local Court hearing that he was released from custody at about 2:30am (exhibit DX-14). I should also add that, in his Statement of Claim, Mr Tabbaa Senior says that he was released at around 3:00am (at [33]).
I find that the period of detention was approximately 4 hours. Numerous matters occurred during this period. Constable Smith first sought to arrest Mr Tabbaa Junior but could not locate him at his last known address. Mr Tabbaa Senior was conveyed to the police station and entered into custody. An electronically recorded interview took place from 11:59pm to 12:43am. Constable Smith undertook the charge process, which included a lengthy facts sheet. Police bail was considered and granted. I thus find that Mr Tabbaa Senior’s detention was not for an excessive, unreasonable and/or unlawful length of time.
I find that for Mr Tabbaa Senior (in proceedings 2023/00257916), the claims based on the arrest and imprisonment on 7-8 July 2018 should be dismissed.
Given the close similarities between the facts underlying both sets of proceedings, my analysis of Mr Tabbaa Senior’s case allows me to deal with Mr Tabbaa Junior’s case in a more summary way than might otherwise be required.
As I have earlier indicated, Mr Tabbaa Junior was arrested by Constable Smith on 25 June 2018.
By the time of the arrest, Constable Smith had been informed by Mr Hammoshe that Mr Tabbaa Junior (and Mr Tabbaa Senior) had assaulted him. Constable Smith observed injuries to Mr Hammoshe consistent with his account and photographs on Mr Hammoshe’s phone consistent with his account. In my view, these matters were more than sufficient for Constable Smith to suspect on reasonable grounds that Mr Tabbaa Junior had committed the offence of assault, which was his suspicion at the time of arrest.
Immediately after being arrested and cautioned, Constable Smith enquired about the location of the baseball bat (Mr Hammoshe had reported that Mr Tabbaa Junior brandished a baseball bat during the altercation). Mr Tabbaa Junior did not deny having such a bat but instead volunteered that the bat was at his home or in his unit (although a later search proved this to be untrue).
As to s 99(1)(b) of LEPRA, Constable Smith’s evidence at the hearing was that he arrested Mr Tabbaa Junior because he considered it reasonably necessary to arrest because of the nature and seriousness of the offence and to protect the safety of Mr Hammoshe.
Again, I have earlier set forth the limited grounds on which Constable Smith’s state of satisfaction can be impugned. In my view, none of these grounds apply. The offences that Constable Smith suspected Mr Tabbaa Junior had committed were objectively serious. The maximum penalty for the assault charge (committed in the company of another person) was 7 years’ imprisonment. It could hardly be asserted that the offence was not serious. Constable Smith’s decision that it was reasonably necessary to arrest Mr Tabbaa Junior because of the nature and seriousness of the offence, and to protect Mr Hammoshe, was neither arbitrary, capricious, irrational, nor lacking in bona fides. In fact, in my view, Constable Smith’s decision making was completely rational and reasonable. As with Constable Bendyke, Constable Smith’s decision making is not open to a de facto form of merits review.
On this occasion, Mr Tabbaa Junior was arrested at or about 3:03pm. Mr Tabbaa Junior was conveyed to Kogarah Police Station, arriving at 3:40pm and being accepted into custody at 3:51pm. As outlined above, after Mr Hammoshe attended the police station and advised that he did not wish to provide a statement, the arrest was discontinued, and Mr Tabbaa Junior was released from custody at or about 5:29pm. Accordingly, the period of his detention was approximately two and a half hours. Unlike Mr Tabbaa Senior, Mr Tabbaa Junior does not allege that he was detained for an excessive period of time and his claim for false imprisonment is predicated on the arrest being unlawful. That claim must therefore fail.
Mr Tabbaa Junior’s claims for trespass to goods, and assault and battery are also predicated on the arrest being unlawful.
For these reasons, Mr Tabbaa Junior’s claims (in proceedings 2024/00232737) relating to the arrest and imprisonment on 25 June 2018 should be dismissed.
Constable Smith attended Mr Tabbaa Junior’s last known address on 7 July 2018 after arresting Mr Tabbaa Senior. He did so with the intention of arresting Mr Tabbaa Junior, however, Mr Tabbaa Junior could not be found.
Constable Smith then made further attempts to locate Mr Tabbaa Junior. On 13 July 2018, Constable Smith again attended Mr Tabbaa Junior’s last known address. Again, he was not home. Mr Tabbaa Junior’s mother provided Constable Smith with a phone number for Mr Tabbaa Junior, which he called. The phone call was ended when police identified themselves.
Police again attended Mr Tabbaa Junior’s last known address on 14 July 2018, and again he was not present. Mr Tabbaa Junior’s mother informed the police that she believed he was using her vehicle. As a consequence, Constable Smith added a warning to that vehicle on the police vehicle warning system.
In the early hours of 19 July 2018, Sergeant Spencer saw the vehicle concerned, which was travelling at speed. He ran a check and identified the warning that Constable Smith had placed on the vehicle. Sergeant Spencer read the event to which the warning was linked. He noted that Mr Tabbaa Junior was wanted for a serious offence of assault occasioning actual bodily harm, which involved weapons. Sergeant Spencer activated the lights and sirens in his vehicle and stopped the car. Mr Tabbaa Junior and others were in the car and Sergeant Spencer obtained their identification and ran checks. He also asked whether there was anything in the vehicle or in their possession which would be of interest to police. To this, Mr Tabbaa Junior volunteered that there was a knife under the seat, and an axe and a bat in the boot.
While waiting for additional police to arrive, Sergeant Spencer read more of the event to which the warning was linked and observed that Mr Tabbaa Junior was wanted for an assault that involved a bat and a knife and that the police had made a number of unsuccessful attempts to locate Mr Tabbaa Junior.
After two further police officers arrived on the scene, the car was searched and the weapons seized. Sergeant Spencer formed the view that it was highly likely that the bat found in the vehicle was the same weapon used in the altercation involving Mr Hammoshe on 25 June 2018.
Sergeant Spencer then searched all of the occupants of the vehicle, including Mr Tabbaa Junior, because he believed they may be carrying more weapons or had committed other offences. He did so given the time of the night and the presence of some weapons in the vehicle.
Sergeant Spencer then placed Mr Tabbaa Junior under arrest for assault occasioning actual bodily harm.
As to s 99(1)(a), Sergeant Spencer’s evidence shows that he suspected Mr Tabbaa Junior had committed the offence of assaulting Mr Hammoshe occasioning actual bodily harm based on the material in the event report and the presence of a baseball bat in the vehicle in which Mr Tabbaa Junior was travelling.
As to s 99(1)(b), Sergeant Spencer’s evidence was that he considered an arrest to be necessary for the following reasons:
the seriousness of the offence;
the fact that bail conditions needed to be imposed for the protection of the alleged victim and/or witnesses;
to ensure Mr Tabbaa Junior’s appearance in Court as ‘it was possible that he’s been avoiding arrest, it was several weeks since the incident, and police have made a lot of steps to try and find him’ (T 114.5-22; 117. 42-50; 118. 1-9; 123. 30-32).
It was Sergeant Spencer’s intention at the time of arresting Mr Tabbaa Junior to have him charged and brought before the relevant authorities.
I accept Sergeant Spencer’s evidence, which was not directly challenged in cross-examination.
It follows, in my view, that the arrest of Mr Tabbaa Junior on 19 July 2018 was lawful.
Mr Tabbaa Junior was arrested at or about 12:30am. He was conveyed to Kogarah Police Station, arriving at or about 1:10am. He participated in an ERISP conducted by Constable Morgan and Probationary Constable Fawns from 2:40am to 2:53am. The charging process commenced at 3:04am and was completed at 4:14am. Police bail was granted at or about 4:15am and Mr Tabbaa Junior was released. The length of his detention was therefore just under four hours.
The allegations of false imprisonment, trespass to goods, and assault and battery on 19 July 2018 all appear to rely upon the establishment that the arrest was unlawful. Mr Tabbaa Junior has failed to establish this unlawfulness. As a consequence, these consequential claims must also fail.
For these reasons, Mr Tabbaa Junior’s claims (in proceedings 2024/00232737) relating to the arrest and imprisonment on 19 July 2018 should be dismissed.
For the above reasons, both plaintiffs’ claims must fail.
I shall hear the parties on costs.
In each case, the Court Orders:
That there be judgment and verdict for the defendant against the plaintiff.
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(2011) 243 CLR 361
(2019) 266 CLR 619
(2024) 113 NSWLR 509