Plaintiff's criticisms of SC Barnier's evidence
78The evidence of the Senior Constable was criticised because in his statement, which is exhibit 16, there is a missing word. In par 5 of Senior Constable Barnier's statement of 13 June 2011, which is exhibit 16, the Senior Constable says this about what happened at 18 Lakkari Street:
"The accused Tilse has yelled, 'You're all fucked, we're gonna fucking sue, the ombudsman will have your fucking jobs.' Detective Senior Constable King had attempted to explain to the accused police powers of entry to search for an accused person where they believe on reasonable grounds an accused resides, however the accused Tilse has continued her verbal abuse."
It should be noted that the Senior Constable did not use the words "fucking pigs" in that paragraph and that's why his evidence was criticised, because of his failure to record police being described as "fucking pigs". That, unfortunately, is a very common method of insulting members of the constabulary and in my view nothing turns on its being omitted. It is so often mentioned as to be hardly mentionable. In his evidence, when it was pointed out to him that the expression "fucking pigs" is a very offensive term, Senior Constable Barnier said, perhaps laconically, "We hear it a bit." It was then suggested to the Senior Constable that there was an attempt by the plaintiff, on his version of events, to intimidate him and perhaps, if what he was saying were correct, he ought to have charged the plaintiff with intimidation. However, he went on to tell me this at the foot of p 195:
"Q. But the law of intimidation doesn't - there's not one law for intimidation on the street and intimidation in someone's house, is it? If you're intimidating an officer, you're intimidating him, aren't you?
A. Sir, as I said before, we were in someone's house. She was intoxicated. People were drinking. You've got just to take it into context. We can't be upset by every time someone calls us names. That is our job. We wear the uniform, we've got to expect it, and Magistrates have said that to us."
No doubt, the Senior Constable was referring to on-line decisions of the Local Court in which magistrates have dismissed charges brought of using offensive language when people have insulted members of the constabulary either in private or in public places. That answer reflects sound common sense and sound common policing.
79As I said, I prefer the version of events of Senior Constable Barnier to the evidence of the plaintiff as to what occurred at Lakkari Street. I therefore accept that the plaintiff, at the time she first met Senior Constable Barnier, was intoxicated, aggressive and abusive. There was evidence available to the Senior Constable that the plaintiff herself was capable of goading others to violence and herself inflicting violence by, for example, kicking a man on the ground and punching Nadine Close. There was also evidence available to the Senior Constable that the plaintiff and David Daley were a couple, were in essence man and wife, and that Mr Daley was a troublemaker and a direct statement by Mr Watson that in addition to Mr Daley being a troublemaker, the plaintiff herself was a troublemaker. Not only had David Daley caused him trouble before but so had she. They were troublemakers in the sense that they were argumentative and started fights. Mr Watson was concerned that they might return. Mrs Watson had told the Senior Constable that the plaintiff was a spiteful woman and held grudges and that she "uses standover tactics". She was concerned not only for her hotel but also for her family, which was one of the expressed concerns of Mr Brett Watson.
80Ms Nadine Close had also expressed a fear of Melissa Tilse, although I do not accept that it is probable that she said that she feared for her life but merely that she had fears. She had fears because, according to the evidence given by Senior Constable Barnier on p 139 of the transcript, she could find out where the witness lived and she could seek revenge if she ascertained that Nadine Close had made a statement.
81There is nothing to impeach the credit before me of either Mr Brett Watson or Ms Kim Watson or Nadine Close. There was nothing before Senior Constable Barnier that could be seen to impeach their credibility. He was entitled to accept the fears that they expressed to him. Those fears amount, in my view, to reasonable grounds to enable the Senior Constable to suspect that there might be harassment of or interference with some person or persons who might be called upon to give evidence in the proceedings against the plaintiff for affray.
82In my view, therefore, the defence has made out a case that the Senior Constable Barnier suspected on reasonable grounds that it was necessary to arrest the plaintiff in order to prevent harassment of or interference with persons who may be required to give evidence in respect of the charge of affray against the plaintiff. In making that finding I have used the word "necessary", as it is the word used in s 99(3). However, the plaintiff has advanced a number of arguments as to why it was not necessary and I will deal with those arguments and other evidentiary matters tomorrow.
FRIDAY 13 DECEMBER 2013
83Shortly before I adjourned yesterday afternoon I made a finding that there were reasonable grounds for Senior Constable Barnier to suspect that the plaintiff might, or have the potential, ability or propensity to interfere or intimidate potential witnesses in the charge of affray that the Senior Constable had determined to lay against the plaintiff. Implicit in that finding is an acceptance, to a large extent of the thrust of the evidence of Senior Constable Barnier.
84There has been an attack on his credit that has been partially successful. I shall in due course turn to that attack and point out what appeared to me to be a number of inconsistencies in his evidence. However, I formed a favourable impression of the Senior Constable and I accept that he did his best to tell me the truth as he perceived it, albeit at times he clearly was exasperated by the lengthy cross-examination to which he was subjected. However, there are some general matters which should be noted.
85In cross-examination, at p 209, the following evidence was given by the Senior Constable:
"Q. There is always a risk that a witness is going to be harassed or intimidated.
A. In my experience it usually happens after charges are laid.
Q. There is a risk though.
A. Before charges are laid?
Q. Before charges are laid there's a risk.
A. There is, but from experience the offenders usually lay low, trying to avoid us at all costs.
Q. And there is a risk after charges are laid, isn't there?
A. Certainly.
Q. There's always a risk.
A. More so.
Q. And it's a question of evaluation of the risk, isn't it?
A. Well, they've got a reason. They've got motivation to harass, intimidate and interfere with witnesses after a charge has been laid."
That evidence was, in essence, dismissed by Mr Barham in his submissions as being of little or no weight, but to me it rings very much of common sense. It accords not only with the experience of Senior Constable Barnier, but also with the experience of the Courts. Why would anyone try to interfere with a potential witness if it was not known that any charge would be laid, as the Senior Constable said?
When it is not known if charges are to be laid the person potentially to be charged would, "lay low", or keep his or her head down, to seek to avoid drawing any attention to himself or to herself. Although there is no suggestion that the plaintiff herself interfered with or intimidated any witness prior to her arrest on 1 May 2011, the potential was much greater once she became aware that she was to be charged and prosecuted.
86The other general factor to bear in mind is that, as far as Senior Constable Barnier knew, the plaintiff and David Daley were living together as man and wife, that they were a de facto couple. Such was the information given to him by Mr and Ms Watson of the Coutts Crossing Tavern. The ancient common law principle that a man and his wife are one still persists in our community. It is a little over a hundred years since married women became entitled to hold property in their own right and to make contracts, and it is only in the same period of time that the law permitted one spouse to sue another. The law still recognises the principle. In the Evidence Act 1995, s 18 limits their compellability in criminal proceedings. In the current case the Senior Constable knew that the plaintiff came to the assistance of David Daley when he was involved in a fistfight with Peter Travers. It is common experience in our community for one spouse to protect another, and sometimes that protection can extend to taking unlawful measures. It is reasonable to infer that even if David Daley was a greater risk to witnesses than was the plaintiff, that the plaintiff could encourage David Daley to intimidate, harass or interfere with witnesses on her behalf.
87Mr Barham, for the plaintiff, sought in his submissions to distance David Daley from the plaintiff, or perhaps I should have said, to distance the plaintiff from David Daley, pointing out that his criminality was greater than that of the plaintiff, and her situation was different to that of David Daley. However, the distancing exercise undertaken by counsel might not be undertaken by persons such as Senior Constable Barnier when he believed that, in essence, the plaintiff and David Daley were man and wife.
88I turn now to consider the cross-examination of the Senior Constable. In his submissions, Mr Barham pointed out 23 separate areas which, he submitted, show that the evidence of the Senior Constable ought not be accepted. For example, the first one was that Probationary Constable George Chakty, is shown both on the Court Attendance Notice and the Fact Sheet which were ultimately prepared, as one of the arresting officers. The fact is that the only person who arrested the plaintiff was the Senior Constable. However, the fact that Chakty is recorded as an arresting officer is explained by the fact that certain forms have fields for recital of two members of the police force as arresting officers, and those fields had to be filled in. Chakty was in fact the Senior Constable's "partner" on both 25 and 26 April, and 1 May. It is merely the form filling procedure which caused Chakty's name to be included rather than any attempt by the Senior Constable to mislead anyone. There is no validity in the submission.
89The Senior Constable was pressed, at the foot of p 182 and the top of p 183, about why he had not arrested Melissa Tilse at 1.20pm on 1 May, at the time he arrested David Daley. The Senior Constable gave evidence that he wanted to arrest both, but the reason that he didn't arrest the plaintiff was because of her children. This evidence was then given:
"Q. But, when you knocked on the door she answered the door. Why, at that point didn't you say, 'I'm placing you under arrest in relation to an affray on Anzac Day last year'?
A. I knew Dave Daley was in the house hiding.
Q. You had two officers there though, didn't you?
A. He was a bigger threat.
Q. But you could've arrested Ms Tilse if that really was your intention at the time, couldn't you?
A. We wanted Dave Daley. He was a dangerous man.
Q. There was nothing preventing you from arresting Melissa Tilse at that time, and coming back for Mr Daley, was there?
A. Well, if we did that Dave Daley could have escaped.
Q. He could have, but, you know--
A. It's just operational policing. You've got to get the main offender, the most dangerous offender, first."
That to me is a valid reason for proceeding to arrest David Daley rather than Melissa Tilse combined with the fact that the Senior Constable was aware that the plaintiff had in her home at least two of her children which is another reason why he did not proceed to arrest her at that time. I do not believe that the Senior Constable's evidence can be criticised because he made a decision on the spot to proceed to arrest David Daley and to take him in the caged police truck to the Grafton Police Station, and desisted in arresting Melissa Tilse at that time.
90On p 187 the Senior Constable, in answer to a question concerning Ms Tilse, said that he feared that "they" were going to interfere with the witnesses, meaning both David Daley and the plaintiff, joining the two together as man and wife in the way that I have earlier referred to. I have also earlier referred to the Senior Constable being exasperated by the cross-examination.
91Between p 187, line 30, and p 188, line 40 is a piece of cross-examination that was completely unnecessary because the cross-examiner mistook what the plaintiff had said in-chief as recorded at the top of p 126 of the transcript.
92At the top of p 189 the Senior Constable volunteered this about Peter Travers:
"I knew he went to hospital but didn't know the results at that stage. I didn't actually find that out until probably the 26th."
With the utmost respect, the Senior Constable did not know that at all because it appears that Peter Travers never went to the hospital. At the foot of p 189, I pointed out to the Senior Constable that Nadine Close had told him when he interviewed her on the evening of the 26th that she had attempted to take Peter Travers to the hospital but he would not go to the hospital. I pointed out to the Senior Constable that there was nothing to suggest that Peter Travers ever went to the hospital and, for example, had stitches. In response to that the witness said, "I could be wrong though." Then Mr Barham, shortly afterwards, put this question:
"Q. And, ultimately, probably on the twenty sixth and not before you established that, in fact, Mr Travers probably hadn't ever gone to hospital?
A. Yeah, I can't say if he did or didn't."
This clearly is a back-sliding by the Senior Constable from the first statement that he made at the top of p 189, about Travers having been to hospital. It would appear that the Senior Constable was prepared to say things off the top of his head without closely searching the material that would have been before him at the time, and therefore he had not adequately researched matters before giving evidence.
93At the foot of p 190 it was established that the seriousness of the "glassing" that the Senior Constable perceived on 25 April was substantially different on 26 April when Mr Travers went to the police station to be interviewed and was arrested and electronically interviewed by Senior Constable Barnier. Indeed, exhibit 19, police photographs, show four photographs of Peter Travers, taken, according to the captions, on 25 April, but they appear to have been taken at the police station; the dating of the photographs may be erroneous. The injuries shown on the photographs do not suggest any stitching or bandaging or the like.
94The next area of cross-examination concerned the omission of the words, "fucking pigs", in the insults attributed to the plaintiff by the Senior Constable at 18 Lakkari Street, on the evening of 25 April, and that I dealt with yesterday.
95On p 189 of the transcript, Mr Barham was cross-examining the Senior Constable about events at Lakkari Street, and the following evidence was given:
"Q. I suggest to you, sir, that you were not, in any way, of the belief at Lakkari Street that the plaintiff was going to assault you.
A. If she - if you took it in context of how aggressive she was, yelling, pointing her finger at us, giving the verbal abuse, as I stated, plus there was, like, another ten or so intoxicated persons on the back patio. We could have been in a very serious location.
Q. Yes, but I'm not talking about the other people, I'm talking about the plaintiff assaulting you.
A. In my view she's capable of anything."
That view is clearly hyperbole. I mentioned yesterday that which was open to the Senior Constable to conclude was the nature of the plaintiff, but in no way could anyone form any reasonable view on what was known of the plaintiff that she was literally "capable of anything".
96On p 200 the Senior Constable was cross-examined about the circumstances which took Peter Travers to the police station. Exhibit 4, the COPS entry, clearly records that at 6.46pm on 26 April 2011, the Senior Constable contacted Peter Travers and made an appointment, "to attend Grafton Police Station re statement", on that day. The Senior Constable agreed that that was what the document recorded, but then gave this evidence:
"Q. That's what you did, wasn't it? You said to him, 'Come down and make a statement.'"?
A. No.
Q. Why would you use the wording, "a statement" in the COPS event reference if you didn't, in fact, ask him to come down and make a statement?
A. He's a victim.
Q. Well, victims make statements don't they?
A. That's right.
Q. They give evidence statements don't they?
A. But, he's a suspect.
Q. You just said he's a victim.
A. Well, if you want to get technical, he's both.
Q. But what you did, you asked him to come down and make a statement, didn't you?
A. No, I told him, "I need you to come to the station to speak to you."
I accept that the COPS event entry is accurate, that the Senior Constable did ask Mr Travers to come down to the police station to make his statement, but when he arrived at the station the Senior Constable arrested him and interviewed him electronically. There is no doubt that after the electronically recorded interview the Senior Constable decided to release Mr Travers from custody unconditionally and told him that he would be issued with a, "future Court Attendance Notice", which in the Senior Constable's eyes was the equivalent of the old Summons, although the issue was not explored in evidence. It appears to me likely that the idea of issuing a "future CAN" was because he needed to have both Travers and Daley before the court at the same time and he would not know the return date of any Court Attendance Notice until such time as he could arrest at least Daley and obtain a return date for any CAN that was issued to Daley. The Senior Constable gave evidence that when he interviewed Peter Travers he thought he was "really frightened and scared", and that he was "no risk to the hotel. He was no risk to Kim and Brett. He was petrified of the plaintiff and Peter Daley." Again, the word "petrified" appears to me to be hyperbole.
97 At p 205, line 31, the Senior Constable is again asked whether he said to Peter Travers to come down to the station and make a statement, and again the Senior Constable said that is not what he told Travers, but I cannot accept that assertion, just as I could not accept the earlier assertion he made on the same topic. However, that again indicates a repetitive cross-examination.
98 It is common ground that the police resources at the Grafton Police Station were, to the say the least, "stretched", and to put it probably more accurately, there was a large understaffing of police in the period with which I am dealing, between Anzac Day and 1 May 2011. The Senior Constable was cross-examined to the effect that because he knew the police resources were limited, and because he knew that he himself would be busy in processing David Daley after his arrest, that he could have asked Melissa Tilse not to come down to the police station straightaway, that is, after 1.20pm on 1 May, but he could have asked her to come to the station two or three hours later. He said that there was, "no way", that he would do that and he asked rhetorically, "Why would I do that?" It was a fair question to ask and a question which the Senior Constable avoided.
99 At the top of p 209 of the transcript Mr Barham commenced cross-examining the Senior Constable about the alleged perception that the plaintiff was a potential risk to witnesses. At line 3 Mr Barham introduced the words, "terrible risk", to which the witness gave a positive response on two occasions. Then Mr Barham asked this question:
"Q. A terrible risk?
A. Well, certainly a risk, yes."
It was Mr Barham who used the terminology "terrible risk", and although the Senior Constable agreed with the question, when the questioning concentrated on the risk being terrible the Senior Constable merely referred to "a risk", which, of course, is to his credit.
100 Commencing at p 209 there commenced a fairly lengthy cross-examination about an alternative alleged by the plaintiff, that the Senior Constable could have obviated any potential risk not by arresting the plaintiff and arranging for bail conditions to be imposed, but by taking out an interim, or apprehended personal violence order. It was the Senior Constable's view that police did not seek personal violence orders, and that can be found at p 213, line 44, and also p 224, line 25. He was then asked in general terms why he did not believe an apprehended violence order of some type was appropriate, and gave this evidence:
"A. In my experience, if I did apply for an AVO, like an interim AVO, the on-call magistrate would have contacted me and he would have asked me some questions about it. He would most likely have said, 'Constable, where was the threat?' I would have to say, 'Your Honour, there was no verbal threat, but there is certainly a perceived threat of the victims.' He would most likely ask me another question and say, 'Constable, is this domestic related?' I would have to say, 'No, it is not, your Honour.' He would then most likely ask me a question, 'Where did this happen, constable?' I would have had to say, 'It happened in a public car park outside a hotel.' He would then have most likely asked me, 'Do the defendants know where the victims reside?', and at that stage I would have to say, 'I don't think they do'. So I guess it's three reasons why I did not apply for an AVO."
Police commonly apply for apprehended domestic violence orders on an interim basis. The Senior Constable acknowledged that. However, it was not his experience that police applied for apprehended personal violence orders and he had never heard of that being done. Clearly, the Senior Constable, in his service, would have applied on a number of occasions, perhaps a large number of occasions, for ADVOs, and the evidence which I have just quoted is no doubt based on his experience in applying for ADVOs. However, again, what the Senior Constable said in the evidence I have just quoted appears to me to be sound, accurate, and truthful, and is a fair reflection in my view of his experience and would be the likely sort of exchange that would have occurred had the Senior Constable applied for an interim APVO.
101 The next criticism was based on the witness volunteering that Nadine Close had told him that she, "feared for her life", but again, I dealt with that yesterday, and again pointed out that it represents hyperbole by the Senior Constable.
102On p 226, when he was being cross-examined about the fears of Peter Travers, the Senior Constable described him as being, "scared shitless". Then Mr Barham asked him whether that was Peter Travers' fear of Melissa Tilse, and the Senior Constable said it was, both of Melissa Tilse, and of the other offender, David Daley. Again, I accept that Mr Travers expressed some fears, but again, the terminology, "scared shitless", in my view, represents hyperbole. However, it is also indicative of Mr Travers and the Senior Constable putting David Daley in same boat as Melissa Tilse, of regarding them as a couple, an issue I have already dealt with.
103At p 239, Mr Barham returned to the proposition that Melissa Tilse could have been arrested at the same time as Mr David Daley, and there was then some cross-examination directed to whether police usually put co-accused together in one caged truck to take them to the police station. The Senior Constable replied that the police did not usually like putting two co-accused persons in a caged truck together. It was then pointed out that the distance between the plaintiff's residence and the police station would have only taken five minutes, and Melissa Tilse and David Daley could have spent some considerable time together between the evening of Anzac Day 2011, and 1 May 2011, and therefore the likelihood of their colluding in a period of five minutes whilst in the back of a police caged truck was remote. However, that cross-examination ignores the fact that the other reason for not arresting Melissa Tilse at the time was because of the need for her to obtain a babysitter to look after her children.
104Commencing at p 242, there commenced a lengthy section of cross-examination about whether the Senior Constable could have issued a field Court Attendance Notice to the plaintiff at the police station for this offence. It appears that the police divide court attendance notices into four types: a field CAN, a future CAN, which I have earlier described as the old Summons procedure, a bail CAN, that is, a court attendance notice that is given to a person who has been admitted to bail, and a non-bail CAN, a court attendance notice issued to a person who is refused bail and therefore remains in custody and must be taken before the court at the earliest available opportunity. This section of cross-examination was complicated by the fact that Mr Barham's questions were directed to physical possibilities, and the Senior Constable's answers were largely based on practical possibilities and established police procedures. For example, it was entirely physically possible for the Senior Constable to have issued a field CAN to the plaintiff at the police station. Indeed, exhibits 5 and 6, both relating to the arrest of the plaintiff on 8 June 2002, record that a field CAN was issued to the plaintiff at Grafton Police Station. However, the Senior Constable persisted in stating that it was not physically possible to issue a field CAN to the plaintiff at the police station. He said that he would be in dereliction of his duty if he did so.
105Any bail CAN or non-bail CAN has a return date before the Local Court and is given an H number, which essentially replaces the old plaint numbers that used to be fixed on summonses by the Registrar of the Local Court. The typewritten CAN, which includes a bail CAN, a non-bail CAN, and most likely also a future CAN, recite the name of the officer in charge, the name of the officer who created the court attendance notice, and the name of the person who, "accepted" the court attendance notice. In the current matter, the officer in charge, or prosecutor, was Senior Constable Barnier; he created the CAN and the CAN was accepted by Leading Senior Constable Philip Benfield. Any such CAN has to be accepted by a more senior officer, presumably by someone such as a sergeant or the officer in charge of the police station.
106The field in the CAN records only the name of one person as the apprehending officer, and on the court attendance notice for Melissa Tilse, the apprehending officer is given as Probationary Constable Chakty, who was not in fact the arresting officer. However, the custodial record does record two fields for the arresting officer as does the field arrest form. In those circumstances one can understand how Chakty's name found its way onto the CAN, and perhaps so that Senior Constable Barnier's name did not appear thrice on the CAN
107The Senior Constable made it clear that any of these typewritten court attendance notices, which is assigned an H number, must be accompanied by a fact sheet, and it is the fact sheet and the CAN which must be submitted to the accepting officer before he accepts the CAN as being valid. The Senior Constable admitted on p 254 that a CAN could be handed to somebody at the police station even if he or she had not been arrested, provided that it had been prepared. That concession was made.
108On p 255 the Senior Constable was asked in what circumstances a field CAN was made. He said it was usually for traffic offences detected by Highway Patrol members. It might be used for "minor street offences such as offensive conduct, offensive language, minor malicious damage", and other "things of a minor nature." That, of course, raises this consideration and the Senior Constable's earlier reference to his being derelict in his duty. On 25 April 2011, shortly after he arrived at the Coutts Crossing Tavern, Senior Constable Barnier believed that a very serious offence had occurred and established a crime scene and called for a detective. Serious crimes are usually investigated by detectives, not by uniformed police. It is unusual for a uniformed officer to be in charge of an investigation of an affray, which is indictable, and carries a maximum penalty of ten years imprisonment. It would probably be one of the most serious charges that he or she might deal with. Any more serious charges would no doubt be dealt with by detectives. If Peter Travers had been more seriously injured it is likely that David Daley would have been charged not only with affray, but assault occasioning grievous bodily harm rather than with assault occasioning actual bodily harm. If the charge had been grievous bodily harm it appears to me, from my experience sitting in the criminal jurisdiction of this Court, that the officer in charge would almost invariably be a detective. In other words, for persons such as Senior Constable Barnier, dealing with the offence of affray might be one of the most serious offences for which he was an officer in charge. One can understand his, therefore, dealing with a matter other than in the way in which minor charges are dealt with, that is, by a field CAN. I believe that that was the reason that the Senior Constable said that he would be derelict in his duty if he dealt with the charge of affray offered against the plaintiff by way of a field court attendance notice.
109In his evidence-in-chief at p 163, the Senior Constable had commenced to outline the "charging process", and that evidence concerning the charging process is found between p 163, line 40, and 168, line 25. On p 165 the Senior Constable indicated that to generate a CAN and a fact sheet and to deal with the computer processes involved would take an hour or an hour and a half. However, in cross-examination the witness found it difficult to differentiate between the time taken to prepare, firstly, the fact sheet, and then the CAN. On p 266, in cross-examination, the witness indicated that once the fact sheet had been completed, finding the correct offence and preparing the CAN, including the court date, would take about 20 minutes. However, factually, I know that the Senior Constable completed interviewing the plaintiff at 4.44pm on 1 May, and the CAN was created at 4.50pm, six minutes later. Again, 20 minutes appears to me to be hyperbole. Similar hyperbole attaches to the estimate of one hour and 30 minutes required to generate both the fact sheet and the CAN.
110It is now clear, after again interminable cross-examination, largely by me, I have to admit, that Senior Constable Barnier commenced the fact sheet for the plaintiff at 1.41pm on 1 May 2011, shortly after the plaintiff was arrested. Which part was made before she was interviewed cannot be ascertained with any exactitude, but clearly, part of it was made after the interview had concluded. At p 283, the foot thereof, the Senior Constable admitted that he spent approximately 20 minutes, or a half hour working on the fact sheet from 1.41pm onwards. It would appear that a large proportion of the fact sheet was made before the plaintiff was interviewed. There is force in the submission put to me by Mr Barham that the creation of the fact sheet could largely have been a copying and pasting exercise because the Senior Constable had, at seven minutes past midnight, on 27 April 2011, commenced creating a fact sheet for Peter Travers. At 2.25am on the same day they commenced a fact sheet for David Daley, and the fact sheets themselves contain, sometimes verbatim, including typographical errors and the like, and punctuation mistakes, the same matter that is contained in the narrative in the COPS entry. It appears to me highly likely that the estimate of time of one hour to an hour and a half for the creation of both the fact sheet and the court attendance notice is excessive. Considering that the witness had spent between 20 and 30 minutes on the fact sheet prior to interviewing the plaintiff I would have thought that no more than half an hour would have been required after the interview to complete the fact sheet for the plaintiff. Again, hyperbole was used to estimate the time.
111On p 286 of the transcript the witness agreed that he would speak to the person in charge of the police station, who is the officer authorised to grant bail, at the relevant time Leading Senior Constable Benfield, and tell him that if bail were to be granted he wanted strict conditions. The nature of the conditions could be discussed with Leading Senior Constable Benfield.
112On p 288 Mr Barham put to the Senior Constable that he never telephoned the plaintiff before 1 May and asked her to come down to the station. The answer given by the witness was: "I didn't have those details." That was untrue. He recorded the plaintiff's address and telephone numbers in his notebook on 25 April 2011. It was then put to the witness that he did have those details but he then promptly corrected himself. The prompt correction, of course, indicates that he may have given his first answer inadvertently, and in the circumstances it is hard to attribute any great significance to the first incorrect answer.
113Again on p 291, the witness was being cross-examined about bail conditions. He was certainly "fencing with counsel", when the Senior Constable tried to suggest that the conditions were a matter for the bail sergeant, but clearly putting to one side his earlier concession, that he could discuss bail conditions with the acting bail sergeant.
114The Senior Constable was then cross-examined about the proposition that he could have said to the plaintiff that if he charged her he would be seeking to impose bail conditions and obtained her consent to that, so that it was not necessary to arrest her. The answers given by the Senior Constable in that regard I find to be unsatisfactory. He said this, "Well, then I'd be implying to her that she would get bail. So I could be lying." Suggesting to the plaintiff that if he charged her he would be seeking certain bail conditions was something that was open to him. It does not imply that the bail sergeant would grant bail at all.
115Again, at the top of p 312, when I suggested to the witness that he had been told by Peter Travers and his girlfriend, Ms Nadine Close, that they were scared, the witness volunteered, "They were terrified", which again to me speaks of hyperbole.
116The Senior Constable was then cross-examined by Mr Barham about attending the plaintiff's house on the night of 25 April, and the witness accepted that he did not knock at the door, but he said that there are many things that need to be considered when police start knocking on people's doors late at night, especially if there are no lights on and there are believed to be children in the house. A knock by a uniformed officer on the door in the middle of the night can often engender fear because a police officer is very often a harbinger of bad news such as a tragic death at a road accident or other crime scene. There is no credit issue involved in that.
117On 1 May 2011, Senior Constable Barnier had, prior to going to Melissa Tilse's residence, phoned Kim Watson at 11.55am and obtained from her the location of the residence of the plaintiff's parents in Coutts Crossing. In cross-examination, at p 313, this evidence was given:
"Q. You were asked by Mr Spartalis, 'Why did you call the Watsons?' and you answered, 'I had trouble locating the plaintiff and Dave Daley at that stage, and was after any new information where they might be'.
A. That's correct, yes.
Q. That wasn't a truthful answer was it?
A. It was dead true."
I can accept that it was "dead true" of Mr David Daley, but not that it was "dead true" about Melissa Tilse. He had Melissa Tilse's home address and telephone numbers and he had made no attempt to call at her residence during the day or at night when someone was at home burning a light and he had made no attempt to call her. The Senior Constable may have believed that David Daley might have been hiding at his "partner's" parents' address and hence the need to obtain those details, but as far as Melissa Tilse was concerned it was an unnecessary inquiry. Again, the witness was then pressed about whether the plaintiff, as distinct from David Daley, was seeking to avoid the police, which was certainly true of David Daley, but there is no suggestion and no evidence that Melissa Tilse was seeking to hide from the police. This is a valid criticism on this occasion of the Senior Constable's treating David Daley and Melissa Tilse with the same brush.
118At p 319, the Senior Constable was cross-examined about the time of the creation of the CAN. He volunteered this, "I would have just created an H number, your Honour, because they can't fingerprint defendants without an H number. So that's a way of speeding the process up." We do know, of course, that the CAN was generated at 4.50pm. If he merely generated the H number at that time, it was to speed up the process of fingerprinting. However, fingerprinting did not occur until after Leading Senior Constable Benfield came on duty at 6pm, and it is likely, in my view, to have been closer to 7 than to 6 by the time of the photographing and fingerprinting of the plaintiff. There is some tension, to say the least, in the evidence which I have just recited. If it was to speed up the process then why did nothing happen between 4.50pm and perhaps two hours later?
119The witness was then again pressed about his view that the plaintiff could be suspected as a person who might interfere with, or intimidate witnesses. At p 320 of the transcript, at line 41, the witness volunteered, "They're dangerous people", clearly putting the plaintiff and David Daley in the same boat. However, the witness was making a value judgement, which on the information which he had collected by the end of the evening of 26 April 2011 he was, in my view, entitled to make. Likewise, on the following page he referred to the plaintiff and Mr Daley as, "both very violent people", and what had been described to the Senior Constable by others, and what he himself observed at 18 Lakkari Street on 25 April, could clearly lead him to such a view as at the evening of 26 April 2011.
120I need not say anything further about the evidence of Senior Constable Barnier other than to record those criticisms which were the subject of various submissions by the plaintiff's counsel. However, leaving aside the question of hyperbole and the question of being exasperated by the cross-examination process, I still accept that Senior Constable Barnier has done his best to tell me the truth, albeit that he did that somewhat defensively. Indeed, I formed the distinct view that the Senior Constable thought that he was the accused in some criminal proceedings which, no doubt, engendered his defensive pose.
121Another thing which must be taken into account when one reflects on the state of mind of the Senior Constable as it was exposed at the hearing before me, are things that were said by the plaintiff when she was interviewed by police. For example, commencing at question 161, the following occurs in the electronically recorded interview:
"Q 161. ...Obviously, we've got quite a number of statements from witnesses of the incident. We've got a statement from one fellow saying that he, he's seen you kicking Peter while on the ground.
A. I think I did kick him once actually ... in the back.
Q 163. Any reason for that?
A. Well, I was quite pissed off that he just destroyed my birthday drinks. Was me 30th birthday. You only turn 30 once and we've got to put up with a little dickhead like that, that can't handle his alcohol.
Q 164. Okay. So, kicked him once in the back?
A. Yes.
Q 165. Because you were upset about, upset because he's upset?
A. No. Just, I was pissed off with the whole thing. It could've all been avoided and it was just, yeah, really pissed off that it wasn't avoided, and that he wasn't just asked to leave after he'd been cut off drinks."
Later, this question and answer are recorded:
"Q 187. I'll carry on. We've got another statement from another witness that says, 'saw a woman kicking a fellow whilst on the ground'. Another statement naming yourself, 'kicking the fellow on the ground to the head'. Did you kick him to the head?
A. No, I kicked him once in the back when he was sitting upright. He was sitting on the road. I went to walk over to see where Dave was. I saw him sitting there. I kicked him. I said, 'You little cunt. You started all this shit', and then I walked past."
122Later in the same interview the plaintiff tried to sheet home responsibility for the brawl at the tavern to the publican, Mr Brett Watson. She was asked at Q206 whether she was acting out of spite. She said that she was, that she was "pissed off", and continued at answer to Q208:
"Being sick to death of this crap going on every bloody time we go to that stupid poxy pub, because the publicans don't know how to keep control of their drunken patrons."
At Q211 the plaintiff said, "I should have known that Brett [Watson] loves to fill up his patrons until they're legless." In other words, the behaviour of the plaintiff, which she admitted to in the electronically recorded interview, must have played some role in the attitude which Senior Constable Barnier presented to the Court when giving his evidence.