Tilse v State of New South Wales

The plaintiff's evidence 6I turn now to consider the plaintiff's evidence. The plaintiff was born on 26 April 1981. She was to turn 30 on 26 April 2011. She has at least three children. At the time she had living with her her daughter, Lyesha, who was then aged 11, and also residing with her was her daughter, Hope, who was then nine, and then also a third daughter, Isabelle, who was then five. I have stated that the plaintiff was the mother of at least three children because the plaintiff needed to be excused one afternoon, 20 March 2013, because she had to return from Coffs Harbour to Grafton to look after three children to whom she referred as her children and her grandchildren. That can be seen on p 77 of the transcript. 7At relevant times the plaintiff was unemployed. In 2011 she was studying a TAFE course for a Certificate IV in Information Technology. She was attending Grafton TAFE on Mondays, Tuesdays and Wednesdays, full time, and for a half day each Thursday. At relevant times the plaintiff was in a relationship with Mr David Daley. The evidence which the plaintiff gave, recorded on pp 30 and 31 of the transcript, lead to the view that the plaintiff may have been in a relationship with David Daley between August 2008 and October 2011 However, the plaintiff referred to the relationship as persisting for only some two and a half years ending in October 2011. There is evidence to suggest that at some stage the plaintiff and Mr Daley may have cohabited but the plaintiff gave evidence that he stayed overnight at her residence "now and then". However, it is clear that a number of witnesses believed that the plaintiff and Mr Daley were a defacto husband and wife. 8Anzac Day 2011 was also Easter Monday. It was also the eve of the plaintiff's 30th birthday. On Anzac Day 2011 the plaintiff and David Daley, amongst others, were to visit the Coutts Crossing Tavern in the village of Coutts Crossing. It is clear that the plaintiff had some long association with that village. When interviewed by police, in particular by Senior Constable Barnier on 1 May 2011, the plaintiff said this, "It's a lot easier if I just go out there [Coutts Crossing] rather than all my friend's out there... having to come into town. ...as I pretty much have lived out [at] Coutts basically since I was 22, that's pretty much been my home town." The plaintiff's parents were, in 2011, living at Coutts Crossing on the corner of Kangaroo Creek Road and Kudaroo Place. As at Anzac Day 2011 Mr Desmond Watson, the father of the licensee of the Coutts Crossing Tavern, Mr Brett Watson, had known the plaintiff for nine years as her mother had worked at the hotel. One might infer, therefore, that the plaintiff's parents had been living in Coutts Crossing since about 1992. There appeared to me to be an attempt by the plaintiff to downplay her familiarity with the Coutts Crossing Tavern. 9Evidence can be gleaned from the plaintiff as to where she lived from time to time. She told me that she had left home at the age of 14. That would indicate that she had left home in about 1995. The plaintiff told me of living in Ulmarra for about two years, and then living in Braunstone for two and a half years, then living in Lower Kangaroo Creek Road at Coutts Crossing for three months; and then living in Tallowood Street, South Grafton for six months commencing in April 2008 but moving from Tallowood Street, South Grafton to 73 Oliver Street, Grafton where she had lived since October 2010. Clearly there is some discrepancy in the dates because if the plaintiff moved to Tallowood Street, South Grafton in April 2008 and only lived there for six months, she would have moved to Oliver Street, Grafton at the end of 2008 rather than in October 2010. One can see the plaintiff living with her parents from 1992 to 1995 at Coutts Crossing and, on the plaintiff's chronology, living at Braunstone for two and a half years which may have been in 2005, 2006 and 2007, then going to Coutts Crossing for a short period of three months into early 2008 before moving into Grafton or South Grafton. 10Coutts Crossing is a village 18 kilometres south of Grafton and represents a place where a road to Armidale crosses the Orara River. Braunstone is a village nine kilometres north-east of Coutts Crossing and 14 kilometres south of Grafton. When the plaintiff was asked about whether the closest licensed premises to her when she lived at Braunstone was the Coutts Crossing Tavern the plaintiff said that the closest "pub" was at Glenreagh. Glenreagh, according to any map one needs to consult, is 33 kilometres south of Braunstone. In other words, when the plaintiff told me that the closest pub to Braunstone was at Glenreagh, she was not telling me the truth. The only reason not to tell the truth on such a relevantly trivial matter is, of course, to downplay her association with the Coutts Crossing Tavern. 11In any event, the plaintiff went to Coutts Crossing on the afternoon of Anzac Day in order to have drinks with a number of her friends who lived in Coutts Crossing. She went to the house of Ms Cindy Wilson at 18 Lakkari Street, Coutts Crossing. She went there with Mr David Daley and her three children. The plaintiff went to Coutts Crossing at 3.30. The inference from what she said in the police interview is that she started drinking alcoholic beverages at 4 o'clock. At 4.30 the plaintiff, David Daley and others left 18 Lakkari Street and went to the Coutts Crossing Tavern. She told me that 18 Lakkari Street was only a "five minute walk from the pub". It was conceded by learned counsel for the plaintiff, that at the Coutts Crossing Tavern, she kicked Mr Peter Travers and that led her to being involved with the police. At the tavern the plaintiff spoke with the police and gave to Senior Constable Barnier her details. 12The plaintiff said that she had ordered hot chips from the kitchen at the tavern, which opened at 6pm in order to take the hot chips back to Lakkari Street for her children to have for dinner. The plaintiff said that as soon as she spoke to the police she obtained the hot chips "over the bar" and headed back to the house in order to feed the children. When she was at 18 Lakkari Street police attended the house. She could recall speaking with Detective King but she did not recall in her evidence-in-chief Senior Constable Barnier's being there. This evidence was then given: "Q. Was there a disagreement with police officers at Lakkari Street? A. There was a little bit, yes. They sort of walked into the house without having been let in and woke up all the children and we told them that Dave [Daley] wasn't at the house. We'd already told them he'd got a lift back to town but, yeah, they didn't take much notice of us and continued searching the house. Q. How did that make you feel? A. I was a bit upset, you know, mainly because the kids - we'd only just settled them down and got them down and, yeah, they were all sort of up wondering what was going on." 13Before turning to the events of 1 May 2011, the plaintiff was asked in chief a number of questions about the three persons nominated in the defence. The plaintiff said that she didn't know Nadine Close and that she would not be able to point her out and did not recall what she looked like. She said that she knew Mrs Kim Watson because she and her husband, Mr Brett Watson, had been running the Coutts Crossing Tavern for many years and because her mother had worked at that tavern for approximately 14 or 15 years, and that had been her mother's last employment. When asked about Mr Brett Watson, the plaintiff identified him as the publican at the tavern and then went on to say this: "I don't really get along with the bloke too well. I try not to - don't - I don't really go to the Coutts pub. I only went there that night 'cause it was my birthday the next day and my friends all lived out there."' She went on to describe Mr Watson as a very fit man who engaged in, amongst other sports, boxing. She went on to say that despite her not getting along well with Mr Watson she thought Ms Kim Watson was a "pretty nice lady" with whom she got on well. She then said that when she was living at Braunstone it was "too far" to travel to and from the Coutts Crossing Hotel. That was somewhat inconsistent with the evidence she gave in cross-examination about the nearest hotel to Braunstone being at Glenreagh, some 33 kilometres south of Braunstone. 14The plaintiff's evidence then turned to the events of Sunday, 1 May 2011. The plaintiff said that on that day she had mown the lawn and then she had a shower. Prior to her getting into the shower she observed that David Daley was "going somewhere". She had the shower because she was hot and sweaty. She said that when she was drying herself after showering her lodger, Samantha Polley, knocked on the bathroom door and told her that the police had arrived. She then finished dressing and walked out the front to speak to the police. Even on this piece of evidence there is a dispute. Senior Constable Barnier said that when he knocked on the door at 73 Oliver Street on 1 May 2011 the door was answered by the plaintiff. There is corroboration in that regard for the evidence of Senior Constable Barnier from the evidence by Samantha Polley. She said (T.113) that Melissa, meaning the plaintiff, opened the door to the police. When she said that, this question and answer were given: "Q. I want you to think about this. Did Melissa answer the door or did you answer the door or perhaps ... Lyesha opened the door. Lyesha would have been 11 then. A. She could have opened the door, I'm not sure. Melissa normally answers the door". When asked what the plaintiff had been doing prior to her answering the door Ms Polley said that she had been cleaning the house. She was asked what clothing the plaintiff was wearing and Ms Polley said that she was wearing her Parramatta Eels shirt and footy shorts. Those are the garments which the plaintiff was wearing, which one can see in the electronically recorded interview made later that afternoon at the Grafton Police Station. Accordingly, it is very easy for me to accept that the plaintiff answered the door based on the evidence of both Senior Constable Barnier and Ms Polley who was called in the plaintiff's case. 15The evidence that the plaintiff gave about her movements immediately prior to police attending her home at 1.20pm on 1 May 2011 appears to have been given to excite some sympathy for the plaintiff herself. In her evidence-in-chief the plaintiff said that she said to the police "What's going on?" and that the police officer who spoke asked to speak with David Daley. There is really no dispute that the person who interrogated the plaintiff at the door of 73 Oliver Street on 1 May 2011 was in fact Senior Constable Barnier. She said that there were two male police standing at the front door, both in uniform, and these are clearly Senior Constable Barnier and then Probationary Constable George Andrew Chakty. The plaintiff then said that she asked the police officer who was speaking words to the effect of what was going on or what was happening. She then said that she may have said words to the effect of what do you want to speak to David Daley about, or something "along those lines". The plaintiff then said that the police office said "Well, we're here to arrest him for assault". The plaintiff replied to that "Well, have you arrested Peter Travers?" who was the person who was alleged to have been assaulted by David Daley. According to the plaintiff, the police officer said "We've already arrested him and charged him with assault and released him on bail". The plaintiff then said that in answer to that she probably said "I'll bring Dave down when he gets back". She said that she said that because she believed the he had gone out when she was in the shower. She said that very shortly after saying that, that she realised he was still in the house and he actually had not left the house. 16This again raises an issue as to why the plaintiff said she was in the shower. Was it to maintain the position that she believed that David Daley had left the house whilst she was in the shower, so that she could justify stating to police, as the police state she did, that he was not at home? When asked what the police officer said in response to her statement, that she would bring Mr Daley down to the station when he returned home, the plaintiff said that the officer said "We're coming in to have a look" and the plaintiff said "Well, hang on. I'll go in and just double-check". She also then volunteered that the police officer did mention something about someone's head sticking out of a window to which the plaintiff said that she may have replied "It may be one of the children". She said that the police denied that it was one of the children and she went and looked and that was when she saw Mr Daley inside the house and told him to go out to the front to meet the police. He did so and was arrested and put in the back of a caged police vehicle. The plaintiff's evidence continued thus: "Q. What happened then, after he was put in the police car? A. Then - I believe its Barnier said to me, 'Well, what are you doing?' and I said 'Well, about to watch the football soon. I just mowed the lawn and had a shower' and he's said 'Well can you come down the station and give a statement? When is it possible time you could come and give a statement?'" The plaintiff then told Senior Constable Barnier about her TAFE commitments and that she could attend the police station on a Thursday afternoon or a Friday. She then said that Senior Constable Barnier asked her whether she could come to the police station "right now". The plaintiff said that she told the Senior Constable that she had two of her children there, her middle child, Hope, was away at a sleepover and she was awaiting a phone call so that she knew when to go and pick up Hope. She then said that Senior Constable Barnier said words to this effect, "Well ... if she calls while you're giving your statement, you can go to pick her up and come back". She then said that the Senior Constable said that the giving of the statement was only going to "take an hour or two". 17The plaintiff then said that she told the Senior Constable that she had no-one to look after her other children who were in the house and it was Senior Constable Barnier who pointed out Ms Samantha Polley and he asked the plaintiff whether Ms Polley could look after the children. The plaintiff told, according to her evidence, the Senior Constable that Ms Polley didn't drive and she would be unable to pick up her daughter and that Ms Polley herself "had to get going" and that she could watch them for "an hour or two". She then said that she asked Ms Polley if it was all right for her to mind the two children and that Ms Polley replied "yes, but not to be "any longer than that", meaning an hour or two. The plaintiff then said that she then reiterated to the police officer that if her daughter's friend's mother rang to pick up Hope that she could go and pick her daughter up. She then jumped into her motor vehicle and the police remained in their vehicle, stationary, until they saw her car pulling out of the driveway and then they themselves started what would have been a relatively short journey to the Grafton Police Station. 18What was said at the door between the plaintiff and Senior Constable Barnier is, of course, contested. However, there is again some corroboration for the Senior Constable's version from what was said by Ms Polley. In her evidence-in-chief Ms Polley said that she was living at 73 Oliver Street, Grafton as at 1 May 2011; that she "got home" not long before the police arrived at 1.20pm. She then gave this evidence, "They asked if Dave, her partner at the time, was there, and I didn't know if he was there or not and then, yeah, they asked her about the incident at Coutts and asked her, like, would she please come down and make a statement, and she said yes, asked them what time, and they said today, and not long after they left, she left. Q. Was there any discussion about children? A. Yeah. She had two of her children at home at the time. I had to baby-sit them." In cross-examination Ms Polley said that she had babysat for the plaintiff before and referred to the plaintiff's daughters as "like my little sisters". She said that she enjoyed looking after them and that the plaintiff trusted her to look after them and that in the past she had fed them and bathed them. She said that she is content to look after the children and that it was no problem for her. There was no suggestion in Ms Polley's evidence that there was some time constraint on the period during which she could look after the plaintiff's children, nor was there any suggestion by Ms Polley that she had some engagement to which she had to attend on the afternoon of Sunday, 1 May 2011, which limited the time in which she was available to look after the plaintiff's children. It appeared to me after I heard the evidence of Ms Polley that the plaintiff had tried to limit her availability to look after the children in order to place greater significance than might otherwise attach to the length of time that she spent at the Grafton Police Station. 19In chief, the plaintiff said that she entered the Grafton Police Station where there is a foyer which is open to members of the public. There was an officer behind the desk in the foyer and she told him that she had come to the police station in order to give a statement. She was asked to wait in the foyer. She then said that an officer came to the glass door at the side of the counter, meaning the desk in the foyer, opened the door and invited the plaintiff to come through the door into the interior of the police station. She said that she stepped inside the door and the officer began shutting it, then he put his hand on her handbag and told her that she was under arrest. The plaintiff made it quite clear that the arrest was not in the foyer but only after she has passed through the door between the foyer and the inside of the police station. There is an issue about that. 20Senior Constable Barnier, who was the arresting officer, said that he arrested the plaintiff in the foyer. Despite the fact that it is now common ground that the police officer who spoke with the plaintiff at the door of her house at 1.20pm was in fact Senior Constable Barnier, and although the plaintiff herself referred to Senior Constable Barnier by name earlier when telling me what had happened at the front door of her house, the plaintiff was unable to identify the arresting officer and did not appear to accept that it was Senior Constable Barnier, although it is now common ground that it was him. This "credit issue" I find to be bemusing. It would be in the interests of Senior Constable Barnier for him to say that the plaintiff was only arrested after she had entered into that part of the police station where members of the public are not admitted because it would indicate that the arrest was not in a public place. However that is not his position. Equally, it would be in the interests of the plaintiff herself to maintain that she was arrested in the foyer of the police station, in a place open to members of the public. However, the significance of the place of arrest would probably be of more note to a police officer than to the plaintiff. The admission by Senior Constable Barnier that he arrested the plaintiff in the foyer is essentially against his interest because he arrested her in a public place. I therefore am prepared to accept his evidence, that he did arrest her in the foyer of the police station, but again, the evidence is positive that there was no-one in the foyer of the police station at the time of the plaintiff's arrest. However in the grand scheme of things this "credit issue" can have little moment. 21The plaintiff said that when she was told that she was under arrest she was "stunned". She said that she said to the police officer "Why, when I was asked to come and give a statement?" She then went on to say this: "I was really stunned, just totally shell-shocked at that moment and just thinking of my children. They've only got a babysitter for two hours, like what am I going to do? I won't be able to ring them. Yeah, everything just started running through my head as to what was going to happen with my daughter that wasn't home." In cross-examination the plaintiff said that at the time that she was told that she was under arrest she was "pretty shell-shocked" which of course is consistent with what she said in chief. 22Of course, I do not accept that the plaintiff only had a "babysitter for two hours" but I do accept that she was concerned about being able to communicate with her babysitter and/or her children if her phone were removed and how she would make arrangements to pick up her daughter if she could not take a phone call from her daughter's friend's mother or otherwise communicate with her daughter's friend's mother. Whether the plaintiff was actually shell-shocked or stunned depends largely on my acceptance or otherwise of the reliability of her evidence. 23There is really no dispute about subsequent events at the police station. They can be gleaned from contemporaneous records. The arrest is recorded as occurring at 1.35pm. At 1.37 she was assigned to cell 2. One minute later she was received by the custody manager, Senior Constable Ryan Lynch. At 2.04pm Senior Constable Lynch completed the form on which he was required to make a brief assessment and a visual assessment of the plaintiff. At the same time he also filled out the medical questionnaire and made his general comments. One can accept that that process took the best part of half an hour. At 2.08pm the plaintiff was permitted a toilet break. The custody management record, exhibit C, shows that toilet break lasting for four minutes. At 3.50pm an electronically recorded interview with suspected person commenced and that finished at 4.44pm. One can accept some short time prior to the commencement of the interview that time would have been taken to set up the room and to move the plaintiff from her cell to the interview room. One can accept that after the conclusion of the interview some time would be taken returning the plaintiff to her cell. At 4.50pm, six minutes after the conclusion of the interview a court attendance notice was made. It is exhibit F. The 4.50pm time is shown as date of creation of the court attendance notice on the form itself. At 7.02pm the court attendance notice, a bail undertaking and a facts sheet were printed out. The custodial management record tells me that the plaintiff was formally charged at 7.10pm and released on bail at 7.18pm. 24The plaintiff was shown a field arrest form which became exhibit B. That lists the property that the plaintiff had on her. Inter alia, she had taken with her to the police station a drink bottle which indicates that she thought she could be there for some time that could be categorised as other than short, but of course that might have been merely an hour. Nothing can be gleaned from that fact. The plaintiff confirmed that the property listed on the field arrest form was the property that she had at the time. The plaintiff was not searched. She said that the only other person in custody at the time she was in custody was Mr David Daley. She told me that she heard her telephone ringing when it had been removed from her custody and she told me that the police had told her that they would answer her phone and give her a message, but when her phone rang it was not answered and she was never given any message. There is no contest about that issue. 25The plaintiff stated shortly after her interview with Senior Constable Ryan was completed that she needed to use the lavatory and that she needed a tampon from her bag. The plaintiff told me that the police "let me grab one". She then asked that the curtains giving public view to her cell be drawn whilst she used the lavatory and that was done. She said it was drawn "briefly". She then said that the curtain was drawn for about ten minutes and then was re-opened by the police. There is no suggestion that the plaintiff's private affairs were observed by any member of the New South Wales Police in the station or indeed by Mr Daley when she needed to use the lavatory and use a tampon. 26The plaintiff makes no complaint about the way in which she was interviewed other than making a complaint about the coldness of the interview room. She gave this evidence:

"Q. During the interview with the police officers, how did you feel, how did you feel? A. Freezing. My voice was trembling because I was so cold. But, yeah, I was just a bit, sort of, confused, I suppose - really as to still why they were arresting me. I'm not saying I didn't do anything wrong but compared to the other two [David Daley and Peter Travers] and what they did I was miniscule. Q. After the interview concluded, what happened then? A. Then they said - I said, 'Well, what happens now?' and they said 'You're going to go back into the cell until we finalise the interview records and draw up the paperwork.' I then asked them about how long they think that may take because I was pretty worried and a bit stressed at the time about where my kids were. They said, 'Not quite sure. Another hour. Maybe longer.' I then asked for a blanket because I was, yeah, freezing. Q. Was a blanket provided to you? A. Yes, it was then provided. Yes." The request for the blanket is not contained in the ERISP. However the plaintiff said that it was only after the conclusion of the ERISP that she asked for the blanket and that it was provided. In cross-examination the plaintiff said a number of things about the interview. At p 30 the following question and answer are recorded: "Q. Did you do that during the interview, did you embrace yourself as if you were cold? A. Yes, I would have. I was sitting there pretty much the whole time leaning on the table. I think I sat back at some points but sort of the whole time I was freezing." 27Later, questions were asked about the behaviour of Senior Constable Barnier who did most of the talking at the interview. When asked whether the Senior Constable was polite the plaintiff agreed but grudgingly, stating, "He wasn't rude I suppose". She then described him as being "a bit sarcastic" and said that he made comments which she found difficult to explain and then she said that she thought he was mocking her. When pressed about what she was referring to, she said that she thought that the Senior Constable was repeating things that she said in a mocking or sarcastic manner. When pressed further, the plaintiff said that "Nothing really upset me" and when pressed as to give an instance of what Senior Constable Barnier may have said that mocked her she said she couldn't really do so off the top of her head. At p 71 Mr Barham is recorded as conceding that he made no complaint about the record of interview other than the plaintiff saying that she was cold. 28Mr Spartalis visited this issue for a third time, commencing on p 91 of the transcript. That is on the second day of the hearing. The significance of this I shall turn to shortly. On p 92 the following evidence was given: "Q. You know that when you told his Honour yesterday that you were freezing and shivering in the room, that was untrue as well, don't you? A. No, that was the truth. I wouldn't have asked for a blanket at the end of the interview if it wasn't cold. Q. You knew that there was no tremor in your voice during the interview, don't you? A. There was when I was talking. I could feel it. Q. In fact you were quite relaxed when you were talking, giving an account of what had occurred. A. No, I don't believe so." The significance of those questions and answers is that the audiovisual recording of the interview was played to the Court on the afternoon of 20 March 2011. That was played to the Court in the absence of the plaintiff who had to return to Grafton to look after her children and grandchildren. 29From p 77 it was clear that when the plaintiff said that she needed to return to Grafton it was 4.10pm. It takes about an hour to motor from Coffs Harbour to Grafton. She would not get to Grafton until 5.10pm and she had to be back in Grafton by 5.30pm. The plaintiff agreed that she had the audio of the electronically recorded interview and she said that she would listen to that at home that evening and the Court then had played to it the audio-visual of the interview which became exhibit 3. In addition to noting some errata between what I could hear on exhibit 3 and what is recorded in the transcript of the interview, which is exhibit D, the following are noted on the transcript at p 79: "The transcript can show that the plaintiff was wearing a short-sleeved T-shirt that appeared to imitate a football jersey, short sleeves, and that each of the three police officers who are seen in the video were all wearing short-sleeved shirts, and I could not see on any occasion anywhere the plaintiff indicate in any way that she was cold." On p 80 this interchange is recorded: After referring to a question, 'Okay. There's nothing else you want to say", which is Q289 , Mr Spartalis asked me to record that the plaintiff was observed to remove her cap, appeared to wipe her face and replace her cap. He submitted that the plaintiff appeared to be moving or wiping sweat from her forehead but he left that for me to determine. I then said that "I didn't glean anything from that, other than perhaps it was a bit warm for wearing a cap." There was nothing at all to suggest on viewing the electronically recorded interview that the plaintiff was cold. There is nothing to suggest that the courteousness of Senior Constable Barnier could be questioned in any way. There is no suggestion that he mocked the plaintiff, ridiculed her, made any comment or was sarcastic, and there is nothing to suggest the plaintiff was other than fully at her ease. 30The evidence was given by Senior Constable Barnier that the Grafton Police Station is air-conditioned. The temperature is constant and the police officers walk around wearing short-sleeved shirts. The plaintiff may have asked for a blanket for her use in the cell but whether it was to keep her warm or merely to soften the hardness of the bench or bed in the cell I do not know. I only know what she told me. However the criticisms she made of the conduct of Senior Constable Barnier at the interview are without any foundation whatever, nor can I determine anything about the temperature of the room other than to say that there is no suggestion that anyone was suffering from cold. I am unable to accept the plaintiff's evidence about the interview as being accurate or reliable. 31The plaintiff said that she then sat in her cell "for hours". It would appear that the plaintiff was in her cell for the best part of two hours between 4.44pm and around 7.02pm. That is over two hours. Her evidence then continued thus: "Q. What was the next thing that happened to you? A. The next thing was Custody Officer Benfield, I believe - he came in to check on me. He'd just started. He came on duty. When he got to the door I was pretty upset and I was, sort of, having a bit of a - I don't know, anxiety attack. Hyperventilating. I don't know what you'd call it. I was very stressed. Breathing heavy, you know, trying to catch my breath. Just freaking out. I don't know where my daughter was. It was dark outside. That's out of the little window. I could see it was dark and I still had no idea what was going on with my kids. Q. What happened then? A. He, sort of, was a bit concerned and he told me just to take it easy and 'I'll go and find out what's going on and we'll get you out of here'. He then went and must've spoke to the other officers and came back and told me they were still doing the paperwork and he said, 'Look, I'll take you into the custody room and you can - yeah, you can get out of this - you know, get a bit of fresh air and we'll get your, you know, fingerprints and photos done'. Q. Did that happen? A. Yes. Then he allowed me to call home and check up on the kids that were at home and find out whether my other daughter had been returned or if they'd call the home phone, but - yeah. Q. Was there a discussion with Officer Benfield of any sort, about bail? A. Yes. He asked about bail conditions and I said, 'Look, I'll agree to anything. I just need to get home. I'm, you know, I'm not going anywhere. I will be at court. I just need to get home. I just need to get out of here.' Q. You were eventually released, of course. A. Yes. Q. I take it you don't recall exactly what time it was or do you? A. I think it was just prior to 8 o'clock when I got home. Q. How did you find the experience being arrested? A. Traumatic. Yeah, just very traumatic. I've been through a lot in my life and, just - yeah, that was one of the worst, like, moments. Just watching that sun go down and not knowing where my kids were. It was horrible. Q. How did you feel about the police defending this matter, the way they have done? A. I cannot see their defence. They did the wrong thing. I did not raise my voice. I wasn't argumentative. I wasn't in any way difficult. I was doing what they wanted me to do." 32I do note that Leading Senior Constable Philip Benfield commenced work on 1 May 2011 at 6pm and worked until 6am the following morning. All of that period was overtime, caused by staff shortages. The plaintiff's custodial record indicates that Senior Constable Michael Rheinberger (mistakenly referred to in the transcript as Ryanburger) commenced duty at 6pm on 1 May 2011 and worked until 6.30am the next morning, from the exhibit Q. Exhibit Q records that during that shift, Senior Constable Rheinberger was performing station duties. The plaintiff's custody management record shows Senior Constable Rheinberger commencing as the custody manager for the plaintiff at 6.04pm. That is consistent with Senior Constable Ryan Lynch ceasing duty after a period of overtime and being replaced by Senior Constable Rheinberger on the new shift commencing at 6pm. The same custody management record shows a change of custody manager to Leading Senior Constable Philip Benfield at 7.17pm. However, as I have earlier recorded, the plaintiff was released at 7.18pm. Leading Senior Constable Benfield appears to have been the most senior officer serving at Grafton at any material time as far as this case is concerned. 33I expect that as a Leading Senior Constable, officer Benfield would have been an Acting Sergeant and officer in charge of Grafton Police Station pro tempore. The inference I drew from the evidence given by the plaintiff that I have just cited is that shortly after Leading Senior Constable Benfield came on duty at 6pm he would have visited those in custody and received the concerns voiced by the plaintiff and set in train the motions which eventually led to the behaviour described by the plaintiff and her release at 7.18pm. 34The plaintiff said in her evidence-in-chief that she was told at the end of the interview that she will be charged with both assault and affray. Senior Constable Barnier told the plaintiff the time of her arrest that she is under arrest for affray. The only charge that the plaintiff was given on 1 May 2011 was the charge of affray. That is the only charge contained in the Court Attendance Notice printed out at 7.02pm on 1 May 2011. There is a second Court Attendance Notice, exhibit L, which contains two charges. However that Court Attendance Notice was printed out on 1 November 2011 at 11.04am. That Court Attendance Notice was returnable before the Local Court at Grafton on that very day but at 9.30am. It would appear that the decision to charge the plaintiff with assault was made only on or shortly before 1 November 2011 and perhaps results from a letter from the plaintiff's solicitors to the Commander of the Grafton LAC bearing date 10 August 2011 offering to plead guilty to a charge of common assault if the charge of affray was withdrawn. The sequence 2 charge on the court attendance notice printed on 1 November 2011 is for of common assault on Peter Travers. On 1 November 2011 the charge of affray was withdrawn. The plaintiff did plead guilty to common assault on Peter Travers. The plaintiff was fined $550 and ordered to enter into a bond pursuant to s 9 to be of good behaviour for 12 months. I cannot accept the plaintiff's assertion that she was told at the end of the interview that she was being charged with both assault and affray. She was merely charged with affray and no-one had any reason to tell her at that time that she was being charged with assault. Furthermore, the particulars of the affray would encompass an assault upon Peter Travers and the two charges could not run concurrently: one could only be a back-up charge.

Cross-examination of the plaintiff 35A number of matters were explored in cross-examination of the plaintiff and some of those I have already averted to. The first thing to note is that the first document adduced into evidence in the plaintiff's case was three pages of Facebook entries made by Peter Travers. The Facebook entries were posted on Anzac Day 2011. One generated at 11.37 shows a group of people with this caption "On z piss at the coutts pub... oh ...". Another generated at 11.43am was made by Ash Bancroft who asked Mr Travers with whom he was. The reply given by Mr Travers nominates eight persons and notes that they were playing the game of two-up, the traditional activity on Anzac Day. At about a half hour later a Facebook entry invites Ash Bancroft to join Mr Travers at the Coutts Crossing Tavern. At 12.24pm Mr Travers posted this "Playing up like a second-hand lawn mower". That would certainly seem to indicate that Mr Travers was behaving mischievously at least. Other Facebook entries were posted on the following day, 26 April, commencing at 7.40am. They discussed an altercation in which Mr Travers was engaged on the evening of Anzac Day. At 8.23am Mr Travers posted an entry which contains this matter "Nah mate. I'm fine ey. Couple of cuts and grazes. lol... all just good fun really...". At 10.55am Mr Travers posted a note which indicates that he was still fairly hung-over. Those Facebook entries were printed off by the plaintiff on 26 April 2011 when she became aware, she asked me to believe, of the extent of the interaction between Mr Peter Travers and Mr David Daley. 36Commencing on p 94 Mr Spartalis commenced cross-examining the plaintiff about her reasons for printing out the Facebook entries. At the foot of that page this evidence commenced, "Q. Did you search it because you were very cranky about what happened? A. No, I searched it because I wanted to copy and paste it because it may have come in handy. Q. What, in case someone wanted to go around to his address? A. No. In case it came to something like this, or in case I needed it in case I was going to get charged or just in case." I interpolate that that suggests that as at 26 April 2011, the plaintiff clearly had in her contemplation that it was possible that she could be criminally charged for what were injuries sustained by Peter Travers and the reason for printing out the Facebook entries was to make sure that he was not seriously injured and in fact was laughing off or minimising the extent of what had happened to him on the evening of Anzac Day 2011. However the questioning then continued thus: Q. How does it help you with this case, can you tell his Honour? A. It may not. I don't know. I didn't expect this was going to happen, because I didn't expect the police to treat me the way they did. I would never have expected to be treated that way. I'm not a menace to society. I'm not somebody who they pick up on a regular basis. Therefore I would have expected to be treated with slightly a bit more compassion I suppose. Of course, the protestation that she didn't expect "this" was going to happen is inconsistent with what she had just said. If she perceived that she might be charged she would perceive that she would have some interaction with the police. However, the extent of the last answer amounts, in my view, to pure self advocacy by the plaintiff. She was unresponsively protesting that she had been ill dealt with by the police and that she ought not to have been dealt with in the way that she was, and that she ought to have been dealt with "more compassionately", meaning, I suppose, that she should not have been charged with any criminal offence. The hard fact is, however, that she printed off the Facebook entries in case anything were to happen, that is, in case she and perhaps her partner, David Daley, would be charged for what had happened to Peter Travers at the Coutts Crossing Tavern on the evening of Anzac Day. 37There is, also arising from cross-examination and other evidence, an issue as to timing of the events at the Coutts Crossing Tavern, and therefore the reliability of the plaintiff's evidence. I have earlier recorded the evidence of the plaintiff in chief that as soon as she had spoken to police at the tavern she obtained the hot chips from over the bar and headed back to Lakkari Street in order to give the children their dinner and to continue having some further alcoholic beverages. In the electronically recorded interview , Q209 followed upon an adverse description of the Coutts Crossing Tavern given by the plaintiff. The question and answer recorded are this: "Q209. If the, if the hotel's that bad, like, why go to it though? A. Well, we only really went to get chips for the kids. We thought we'd have two beers. Three beers which we wait for the chips to cook, 'cause they don't start till 6 o'clock cooking. So, we thought, you know just to have a bit of peace away from the kids for an hour we'd sit down there, have a couple, then order chips and go home." In cross-examination at p 97 the plaintiff confirmed that she had already told me that the fight between Mr Travers and Mr David Daley occurred while she was waiting for the chips to cook. She also confirmed that that must have been after 6 o'clock because the kitchen only opened at 6pm. The plaintiff was asked whether she had hung around after the fight to obtain the chips and she said that she had, and the plaintiff said that she was only at the hotel for "two or three minutes because the chips were already ready." 38It is difficult to know whether that meant that she hung around for two or three minutes after ordering the chips or for two or three minutes after speaking to the police, however earlier the plaintiff said, at the foot of p 47, that she left the hotel "after 6pm". She confirmed that she had ordered chips for the kids to take home. She agreed about the kitchen only opened at 6pm and that the fight happened after she had ordered the chips. 39However, an undisputable objective fact is that a CIDS broadcast was made at 6.01pm on 25 April 2011 by a private citizen phoning on a landline to 000 with information that six persons, both male and female, were fighting at the Coutts Crossing Tavern. The incident is referred to as a "brawl" and I shall hereafter use that expression because it has no particular legal significance and because it is used both in documents and used by witnesses to describe what actually occurred at the Coutts Crossing Tavern early in the evening of Anzac Day 2011. 40It is clear from exhibit 4, the COPS event entry, that the police only arrived at the Coutts Crossing Tavern at 6.15pm and that the plaintiff was still at the tavern at that time. The brawl may have occurred between the plaintiff's ordering hot chips at 6pm and picking them up after speaking to the police very shortly after 6.15. However the period involved appears to have been at least a quarter of an hour and not a few fleeting minutes as the plaintiff would have me believe. Indeed, this was eventually put by Mr Spartalis to the plaintiff commencing at the foot of p 99. This evidence was given: "Q. The evidence you gave earlier about being at the pub for two minutes after the kitchen opened is wrong as well isn't it? A. I beg your pardon? Q. You gave evidence a moment ago that the kitchen opened at 6pm, you got the chips and two minutes later you were out of there. A. I said that I'd ordered the chips, and the chips were ready by the time the police got there. I spoke to the police then I went and collected the chips. I don't know exact times. This was like, nearly two years ago. I'm unsure of the exact time I ordered the chips or picked the chips up. Q. I just put this to you squarely. You spoke to Senior Constable Barnier at 6.15 on 25 April 2011. A. If that's what you're saying. I can't confirm or deny that. I don't know what time it was when I spoke to an officer and I do not recollect if it was that exact officer, but I did speak to an officer and the chips were ready at that point because I picked them up as soon as I spoke to the officer and gave him my details." Of course when pressed with objective evidence, the plaintiff is prepared to back away but again it does suggest that her evidence is not reliable or accurate. LUNCHEON ADJOURNMENT 41Another factor to bear in mind when considering the evidence of the plaintiff, especially the evidence that she gave about what happened at the Coutts Crossing Tavern, is to consider the state of her sobriety at that time. She was asked questions about her alcohol consumption when interviewed by Senior Constable Barnier on 1 May 2011. The plaintiff said that before she went into the hotel, that is between about 4 and 4.30, she had three stubbies of Tooheys New beer. At the tavern she had three schooners of Tooheys New beer and four nips of Stone's Green Ginger Wine. She admitted that she was "probably a bit tipsy" or "slightly tipsy". All told, that would have amounted to 13.3 standard drinks over a period of some two hours. That is discussed at p 34 of the transcript. Although the plaintiff herself said that she was "slightly tipsy", the standard of her inebriation may have been much greater and therefore her ability to remember what actually happened at the Coutts Crossing Tavern on the evening of Anzac Day might not be good and her memory of what was to happen later in the evening might also not be good. 42The plaintiff said that after leaving the Coutts Crossing Tavern she returned to 18 Lakkari Street, Coutts Crossing, and there were present there Ms Cindy Wilson, Ms Amber Murphy and her husband Mr.Tony Murphy, Natasha Wilson, the daughter of Cindy Wilson, and her boyfriend Mr Gary Brush, and other evidence also says that Ms Samantha Polley was also present. When cross-examined about the interaction of the plaintiff and the police at 18 Lakkari Street, when they called there looking for David Daley, the plaintiff admitted that she "probably did yell at them a little bit" and that she "probably would have [sworn] a couple of times", and this question and answer were then put: "Q. What about this? 'You're all fucked. We're looking to - we're going to fuckin' sue. The ombudsman will have your fuckin' jobs.' What about that? A. Yeah. I probably wouldn't have said the F-word that many times because I don't really say it that many times." 43On 8 June 2002 the plaintiff had been arrested for the offence of offensive language. For that offence she was eventually fined $200 by the Local Court at Grafton. The COPS entry for that offence is in evidence. It is indicative of the language that the plaintiff might use when intoxicated. The narrative contained in the COPS entry for that charge is this: "About 2am on Saturday 8 June 2002, police were performing foot patrols of the corner of Prince and Pound Street, Grafton in an effort to disperse a large crowd after the closing of nearby licensed premises. At this time police had cause to arrest a female by the name of Scaybrook, a friend of the defendant. Whilst police were arresting Scaybrook the defendant continually yelled verbal abuse towards police saying words like 'What are youse locking up a female for you fuckin' cunts. Youse are nothing but fuckin' cunts. Fuck youse.' Police cautioned the defendant about her use of offensive language and a short time later left the area. About 15 minutes later police were patrolling when they were noticed [sic] the defendant and another female involved in a verbal argument. Although police were approximately 50 m away in a moving vehicle police could clearly hear the defendant yell, 'fuck you, you're a fuckin' white cunt. How many of youse will it fuckin' take to have ya's.' At this time a scuffle broke out between the defendant and several other people. Police intervened in an attempt to stop the imminent brawl. The defendant turned to police and said, 'Youse never fucking help us out, you fucking cunts.' The defendant was then again cautioned about the use of offensive language. As police calmed the situation down the defendant continually enraged the group, at one time attempting to physically attack another person, speaking to police. At this time the defendant lashed out yelling 'You fuckin' racist slut, you fuckin' cunt, try to fight a 15-year-old will ya, ya slut.' Police then took hold of the defendant's arms and informed her she was under arrest. She was cautioned, to which she stated, 'I know, fuck youse.' The defendant was then conveyed to Grafton Police Station where she was issued a field Court Attendance Notice for the matters now before the court. At the time of the incident the defendant was moderately affected by intoxicating liquor." I have, when quoting it, not commented upon the egregious errors of spelling made by Constable Wiles, who compiled the narrative. 44It is also clear from the verbiage used by the plaintiff, when interviewed by the police on 1 November 2011, that even when sober the plaintiff is prone to using foul language. It appears to me to be more probable that the version of events to which Senior Constable Barnier was to depose as happening at 18 Lakkari Street, Coutts Crossing, is the more accurate and reliable version. I turn now to his evidence.

Onus of proof of lawful arrest 45Before doing so I should probably state the obvious as to the onus of proof. These are civil proceedings. The onus of proof of the plaintiff's cause of action obviously lies with the plaintiff. However, the burden of a proof when the police arrest a person falls upon the police. In Zaravinos v State of New South Wales [2004] NSWCA 320; (2004) 62 NSWLR 58, Bryson JA, with whom Santow JA and Adams J concurred, said commencing at [37] this: "In the present case the burden of proof that the arrest and detention were lawful fell on the defendants under the defence of justification which was attributed to them. Even if the circumstances mentioned in s 352(2)(a) of the Crimes Act 1900 exists, the lawfulness of the arrests of Mr Zaravinos are examinable, and the arrests were not lawful unless each decision to arrest was made in good faith and for the purposes for which the power to arrest exists, that is the purposes of bringing the person arrested before a justice and conducting a prosecution; and not for some extraneous purpose. Arresting a person for the purpose of questioning him and investigating the circumstances of the suspected offence or any other offence is arrest for an extraneous purpose. It is even more clearly an extraneous purpose to arrest a person as a piece of unnecessary, high-handed and humiliating behaviour in the circumstances in which arrest is not reasonably necessary for the effective conduct of a prosecution. The availability of information and summons as an alternative course, and the considerations favouring and adverse to the taking of that alternative course, are relevant where the validity of the exercise of the power to arrest is in question. Whether or not the arrests themselves were lawful, the burden of proof of the lawfulness of the continuance of detention throughout the period rested on the defendants." Section 352(2)(a) of the Crimes Act 1900 has been replaced by s 99(2) of LEPRA. The dictum which I have quoted remain applicable to an arrest governed by s 99 of LEPRA. 46Incidentally, I should mention that Mr Barham, who appeared for the plaintiff, made submissions to me about the meaning of "good faith". "Good faith" is not a term used in s 99 of LEPRA. The requirement that an arrest be carried out in good faith represents a judicial gloss. Mr Barham referred me to the judgment of Kirby J in Cannane v J Cannane Pty Limited [1998] HCA26; (1998) 192 CLR557. In that case Kirby J discussed at [101] the meaning of the term "in good faith", but that, of course, was a term used in s 121(1) of the Bankruptcy Act 1966 which was the subject of the consideration of the High Court. Dicta about words used in a statutory context cannot be applied literally to the same words used as a judicial gloss by judges speaking of the requirements of an Act which do not use that term. Clearly, in the dictum which I have quoted from Bryson JA above, his Honour used the words "in good faith" in contradistinction to an arrest being made for some ulterior or extraneous purpose.

Senior Constable Barnier's evidence 47Senior Constable Peter Barnier was attested as a probationary constable of police in 1999. He initially saw service in Sydney. In about 2009 he was posted to Grafton. On Anzac Day 2011 he commenced his shift at 6pm. He was working with two probationary constables, Probationary Constable George Chakty and Probationary Constable Andrew Jeffrey. As I have previously mentioned, the CIDS incident was broadcast at 6.01pm. Senior Constable Barnier and the two probationary constables were assigned to the police car known as Grafton 25. I have earlier referred to the CIDS message. Grafton 5 responded to the call. It is clear from the COPS event entry and from Senior Constable Barnier's notebook, exhibit 7, that they arrived at the Coutts Crossing Tavern at 6.15pm. They drove there with lights flashing and sirens sounding. 48The Senior Constable said this about what he observed: "I observed a number of people. People were starting to leave. We started speaking to witnesses there and at that time we identified a crime scene which we proceeded to basically keep people out of. I started obtaining witness details as people were leaving, I made a number of inquiries, a number of entries in my notebook for witnesses." The copy of the Senior Constable's notebook for this attendance was then put into evidence. He went on to say that he was shown where the brawl had occurred and he saw blood. He saw a white parked utility in the car park of the tavern and there was blood on it. He said he also saw a blood trail leading away from the crime scene. He also saw that there was broken glass there. Eventually colour photographs were put into evidence and they became exhibit 19, showing blood on the Nissan utility, on the surface of the car park and a blood trail along the front verandah of the tavern, as well as pieces of broken glass. 49The first witness details recorded by the Senior Constable in his notebook were the details of the plaintiff. This evidence was given: "You've identified her there as a witness. Why have you done that? A. She was about to leave. So before she left, I thought she might have been a material witness. So I wanted to get her details before she left the scene. Q. How would you describe her at that time? A. Intoxicated. She just wanted to go home. She didn't really want to give her details, but basically I said, 'Look, it's a serious matter. I need your name and address and phone number.'" The inference to be drawn from that evidence itself is that she was reluctant to give her details because she wanted to leave. 50 However, that led to some unnecessary cross-examination. That unnecessary cross-examination commences at p 187 line 30 and continues to p 188 line 40. The cross-examiner believed that the witness had indicated that she was reluctant to give her evidence because she did not want to be a witness, rather than that she was reluctant to give her details because she wanted to go home. It is clear from the evidence given by the Senior Constable that he only meant that the witness was reluctant to give her details because of her desire to leave, not because of any obstruction on her part. 51The witness was then directed to what he was told about what had happened in the brawl in order to ascertain how serious he thought the incident may have been. The Senior Constable said that he had been told by Mr Watson and his wife that there had been a "glassing". He said that Mr Watson had told him that a man had been glassed "to the head". Mr Watson believed that the person who was injured had had serious injuries and had been "rushed to hospital". He had been informed that the injured person was Mr Peter Travers. He also was told by Mr Watson that the person responsible for the "glassing" was Mr David Daley. When asked whether he observed anything about Mr Watson, the Senior Constable said this: "He was pale. He was sort of like puffing and panting. He had a sweaty complexion. He was soiled. He had blood on his shirt. He looked quite stressed and shocked really." Exhibit 19 contains two photographs of Mr Watson taken on 25 April, showing his upper body and in particular blood stains on his basically white shirt. One of the photographs does show Mr Watson as "goggle-eyed" but that might be a photographic effect and cannot be taken to represent his physical condition at the time he was photographed. However, from what the Senior Constable did say, it would appear that the "brawl" had only recently ended. 52The Senior Constable also spoke to Ms Kim Watson. She gave him the same information as her husband. The Senior Constable described her as "pale, hyperventilating and really breathing hard". He also said that she said that what she had witnessed was one of the most violent things she had ever seen. According to the Senior Constable the witness, that is Kim Watson, looked "fearful". Both Mr Fred Watson and Ms Kim Watson told the Senior Constable that they did not want David Daley to return to the tavern again. 53After observing the crime scene and taking notes about the alleged victim and the alleged offender and other details, Senior Constable Barnier spoke to his supervisor, Senior Constable Richard Beresford, who was the acting sergeant. He asked that a detective be assigned and he pointed out that he had established a crime scene. He also requested the attendance of crime scene officers. Detective King arrived at the scene about 7.30pm or a little bit before. A crime scene guard was appointed. That initially was Probationary Constable Chakty. Detective King suggested that he knew where to go to try to find David Daley. Detective King led the Senior Constable and Probationary Constable Jeffrey to 18 Lakkari Street, Coutts Crossing. This evidence was then given: "We went to the front door, knocked on the front door. There's no answer. It appeared locked. But we could hear voices coming from the background, like, as if there was a party coming out from the backyard. So Detective King, myself and Andrew Jeffrey walked around the back. As soon as we've gone - it's like there's a side gate, just like going through the gate, and there is quite a number of persons on like a back decking to do with the house. As soon as we walked in, Detective King said - basically introduced himself, 'We're the police'. As he was speaking a woman 'jumped up from the table, and ran straight into the back door of the house. Detective King followed. I also followed. We went into the house and started searching the house, believing that Dave Daley was inside." 54It was then made known that the woman who had got up and run inside was not the plaintiff but Ms Natasha Wilson, the daughter of the householder Cindy Wilson. He said that then the plaintiff started yelling at the police. He went on to say this: "A. Said, 'You fucking pigs. You can't come in here. The fucking ombudsman is going to hear about this. I'm going to fucking sue. I'm going to have your fucking jobs for this.' She was - she came right up to our faces, she was waving her finger at us, pointing." There was then demonstrated a distance of about 30 centimetres between the police and the pointing finger. The Senior Constable went on to say this: "A. Detective King and myself and Andrew Jeffrey continued quickly searching the house. The plaintiff basically continued the same sort of verbal abuse, 'Fucking pigs. Get out. You fucking need a warrant'. At this stage I think Detective King noticed the front door was wide open, and he's gone out the front door and basically - I think there was another gentleman there by the name of Gary Brush on the front and, yeah, there was no sign of Mr Daley. Q. So how would you describe the plaintiff's demeanour at that time? A. She was the most aggressive female there. She was very, very angry. She was just yelling at the top of her voice almost to the point of screaming, and I felt we had to leave, otherwise she's probably going to assault us. It was that bad. Q. How did that make you feel by the way? A. Basically I wanted to just leave. I just thought, you know, 'Detective King, it's time to go. We've searched the house. Let's just get out of here.' Q. Were you concerned that something was going to happen? A. Yeah. If we stayed there something would have happened. I found it odd at the time because her being the most aggressive there and she didn't live there. Like, I could have understood it if she was the owner of the house, but - yeah." He then pointed out that the plaintiff was still intoxicated. 55The police then returned to the Coutts Crossing Tavern and Detective King had a brief conversation with Mr and Ms Watson and Mr Desmond Watson, the father of Mr Brett Watson, and then Senior Constable Barnier returned with other police to the Grafton Police Station. 56On the way to the Grafton Police Station they went to the plaintiff's address, 73 Oliver Street, Grafton. They were looking for David Daley. Having been informed that David Daley was the partner of the plaintiff, they thought it prudent to search for him at the plaintiff's residence, which she had disclosed when giving her details. Senior Constable Barnier said that the police knocked at the front and rear doors of the plaintiff's house and walked around it to see if anyone could be seen through the windows of the house. No-one could be seen and the house was in darkness. So, after spending some five or ten minutes at the house, they returned to the Grafton Police Station, where Mr and Ms Watson and Mr Desmond Watson were either then present or about to arrive in order to make statements. Detective Senior Constable Barnier took statements from Mr Desmond Watson and also from Mr Brett Watson. Probationary Constable Jeffrey took a statement from Ms Kim Watson. 57On the following evening, 26 April, Senior Constable Barnier took a statement from Ms Nadine Close and also electronically interviewed Mr Peter Travers. After conducting those interviews, the Senior Constable decided that he would arrest the plaintiff. Accordingly, the initial decision to arrest was based only upon what was conveyed to Senior Constable Barnier by Mr Brett Watson, Mr Desmond Watson, Ms Kim Watson, Ms Nadine Close and Peter Travers. Information he actually obtained after that time is relevant only to the issue of whether the Senior Constable should have changed his mind, and perhaps, is relevant to whether it reinforced in him the initial determination to make the arrest. However, whether the Senior Constable had reasonable grounds to suspect that it was necessary to arrest the plaintiff to prevent the intimidation of or interference with witnesses must be determined at the time he made the initial decision. It is important, therefore, to know what information was available to the Senior Constable at the time he made the decision to arrest, either after interviewing or reading the statements of the five witnesses who had then provided statements to the police.

Information available when the decision was made to arrest the plaintiff 58The first statement to which I should refer is a statement of Mr Brett Watson. At the time of making the statement he had been the licensee at the Coutts Crossing Tavern for ten years. The statement says this: "4. On Monday the 25th of April 2011, we were open for Anzac Day and we were running two up from about 1:00pm to 5.45pm. Everyone was having a great day and I was running the bar and running the courtesy bus. About 5.30pm, I returned from a trip with the courtesy bus and Kim Watson, my partner, told me that there was a problem with Peter [Travers]. She told me she had refused service to him as he was intoxicated. Kim told me he was not aggressive, but he was intoxicated and had to leave. 5. I observed Peter for a while and a short time later, I then saw Peter speaking to a fellow whom I know as Dave Daley. Dave was wearing a red t-shirt and a pair of dark shorts. Dave could be described as Aboriginal complexion, about 180 cm and of solid build. Dave would be about 30 years old. I've known Dave for three to four years and I know Dave goes out with Melissa Tilse. Dave and Melissa used to reside together in Coutts Crossing, but I think they have now left the local area. I have had trouble with Dave before where he is aggressive and has thrown a glass at the hotel about a year and a half ago. He's been barred from the hotel before for this behaviour. 6. When I saw Peter and Dave having a heated conversation together I suspected trouble. Both Dave and Peter were at the front of the hotel at this time and I walked over to them to try and separate them and settle them down. 7. Both Peter and Dave were arguing about silly stuff. I asked them to quieten down, but they wouldn't. I then asked them to come around to the side of the hotel and have a quite chat together so that they would calm down. I also thought that if something did happen, that their behaviour would not disturb the other patrons as I was concerned for the customers' safety. 8. The friends of both then came over to where we were and I tried to push the crowd back so that they would not get involved. I asked both of the men to cut out their behaviour because I didn't want innocent people hurt and there were families and children there. 9. I think Peter said, 'Do you want a go?' 10. Dave said, 'Yeah, I'll have a go'. 11. Dave didn't muck around and I'm pretty sure Dave hit Peter first using a good right hand closed fist. Peter retaliated and they both traded punches. I stepped back out of the way as they were throwing punches as both boys were about 100 kgs each and quite solid. They went toe to toe for a while with both boys exchanging punches and hitting each other. Dave got the better of Peter and Peter ended up on the ground and hit his head quite hard on the grass with Dave on top of him. I tried to break up the fight and I got them apart with help from other people around. Peter was still aggressive and wanted to continue the fight. Both boys then exchanged punches again with Peter being the main aggressor. Dave was a better fighter and Peter ended up on the ground again with Dave on top of Peter. 12. I tried to break the fight up again and some other people helped me. There was a lot going on and there were other people involved in the fight as well. I managed to separate both parties again and I had hold of Peter and Peter broke my hold and ran over to Dave and punched Dave to the left side of his face. All through the fighting there were voices yelling, 'Hit the dog' , 'Knock him out'. There were both female and male voices. Peter's girlfriend, Nadine Close, was trying to get Peter out of there and into the car to leave. Dave's partner, Melissa Tilse, was [egging] Dave on and was the most aggressive female there. She was yelling, 'Fucking hit him, he's a dog.' 13. Both boys began punching each other again and the fight has ended up near a white utility. Peter was up against the ute and Peter was getting a flogging. Dave was just pounding Peter with punches to the face and must [have] punched him five to six times. I pulled Dave from Peter and things began to settle down. I have managed to push Dave back to the grassed area near the hotel and I went back to see if Peter was alright. At this time I noticed someone had given Peter a drink in a seven Oz. I took this off Peter and then I was trying to get Peter out of there. I then heard my wife yelling out, 'Dave's got a glass, Dave's got a glass'. 14. I moved in Dave's direction to try and get the glass off him. I noticed he was holding a seven Oz glass in his left hand. He was holding the glass in a clenched fist. It was [as] if he was about to hit something with it. He was not holding it as if he was going to drink out of it. I said, 'Dave, give me the glass.' 15. I tried to grab the glass from his left hand, but he flicked his wrist as I grabbed him and I lost my grip. Dave was marching across to Peter and Peter was still on his haunches. Peter was squatting down and did not see Dave approaching. Dave then smashed the seven Oz glass over the back of Peter's head. The glass smashed instantly and made a loud crash and I saw pieces of glass go everywhere. Moments later I noticed a lot of blood trickling down Peter's neck. I went over to try and get Peter into his girlfriend's car. We had trouble getting Peter into the car as he was argumentative and refusing to leave. We finally got him into the car with his girlfriend driving. As his girlfriend drove off, Peter tried to get out of the car and all of Peter's mates were trying to push him back in. I opened the driver's side door and got his girlfriend out and she got in the back and I got in the driver's side. I then drove Peter to Kangaroo Creek Road and he settled down. I stopped the car and I asked Peter to get out of the car and I had a look at Peter's head in the headlights. 16. I saw a four centimetre cut on the back of his neck just in his hairline and another cut what looked like at the top of his head. There was a lot of blood. I told Peter and his girlfriend, Nadine Close, to go to the hospital and report it to the Police. I then drove back to the Coutts Crossing shop and got out. I did not see Dave when I got back. Police had then arrived a short time later. I gave police details where Dave may [have] went [sic]. I showed Detective King the house where I believed Dave and Melissa Tilse would [have] gone and where I believed he would be staying." I have quoted that extensively to give some substantial background to the event that occurred at the Coutts Crossing hotel on the evening of Anzac Day 2011. 59In his oral evidence Senior Constable Barnier gave evidence about fears expressed to him by both Brett Watson, Kim Watson, Nadine Close and others. There was then a substantial disagreement between counsel as to the significance of that evidence and, although it was admissible not as to truth of the contents but only as to what was conveyed to Senior Constable Barnier, learned counsel for the plaintiff made it quite clear that he did not accept the veracity of what the Senior Constable had said. To try to solve the dilemma I needed to make certain interlocutory orders. The orders that I made on 9 August 2013 contain these: "If the defendant is to adduce any further lay evidence, an affidavit of any such lay witness giving his or her evidence-in-chief is to be made and a copy of it or them is to be served upon the plaintiff's solicitor and counsel by 4pm on Friday 18 October 2013. Noted: The witnesses concerned are Ms Nadine Close, Mr Brett Watson, Ms Kim Watson. If any such affidavit be served, plaintiff is to give notice to the defendant's solicitor by 4pm on 1 November 2013 that the witness or witnesses is/are required for cross-examination." Pursuant to that direction, the defendant served affidavits from Brett Watson sworn 18 October 2013 and Kim Watson sworn 18 October 2013 and also from the defendant's solicitor, Ms Kate Dobbie, sworn 17 October 2013, concerning attempts to obtain an affidavit from Nadine Close. The affidavits in question were served upon the plaintiff in accordance with the orders I made. The plaintiff's solicitor did not serve notice that the witnesses were required for cross-examination until two days before the scheduled resumption of the hearing, on 5 December. That was insufficient time to obtain the attendance at Court of two witnesses from the Coutts Crossing Tavern, eighteen kilometres south of Grafton, especially when they were the licensee and the licensee's wife. The plaintiff's solicitor by his conduct waived the right to cross-examine. 60Mr Barham, for the plaintiff, made an application that I take evidence from Mr and Ms Watson by video link and he accepted that, if it were only put to them that what they said was incorrect, that they would probably merely reply that what they did say was correct, and he merely wanted to put those formal propositions to the witnesses to avoid any submissions under Browne v Dunn. Either video or telephone link. The problem then arose that my courtroom is not designed for either video or telephone link. It would be necessary to obtain another courtroom and courtrooms in the District Court are at a premium on Fridays because of the substantial criminal listings on that day, and because Fridays is motion days in the civil list: there are generally more judges available than there are courtrooms. However, I accept no Browne v Dunn point can be taken. 61Mr Brett Watson, in his affidavit, said that he had a conversation with Senior Constable Barnier to the following effect: "Me: 'They're [Melissa Tilse and David Daley] are troublemakers. They've caused me trouble before.' Barnier: 'What've they done?' Me: 'They've both been argumentative in the hotel with other patrons and have started fights. After what they've done, I don't want them back in the hotel ever again. What happens if they come back and cause us trouble?' Barnier: 'Call us if they do and we'll come immediately. We won't let them get away with it'. Me: 'I'm worried about my patrons. They could ruin my hotel's reputation. How do I protect my family and my business from them? They're the type that will come back and harass us.' Barnier: 'Look, it's a serious offence to intimidate witnesses. Bail conditions can [be] imposed that will keep them away from you and the tavern. That will provide you with some protection.'" 62The statement of Kim Watson obtained by Probationary Constable Jeffrey sets out her version of this brawl and of the main actors in the brawl, being "Peter" and "Dave". Par 5 of that statement is this: "About 20 minutes later [after about 5.30] a female came to the bar and told me that there was a fight happening in the car park. I went out and saw people everywhere punching and kicking. There were about 15 people in the area at the time trying to stop the fight that was happening. This happened for around 2-3 minutes trying to stop the fight. I saw a couple of girls arguing with each other and I turned one to the side to get them to leave. I remember seeing one woman kicking a fellow whilst on the ground." She went on to describe the "glassing" of Peter by Dave and provided a description of Dave consistent with her husband's description of David Daley. Pars 7 and 8 of her affidavit of 18 October 2013, which is exhibit 26, are these: "7. Later on the evening of 25 April 2011 Brett and I attended Grafton Police Station to be interviewed by police. I met with Senior Constable Barnier. He told me that he wanted me to be a witness and he wanted me to give a signed statement about the fight. 8. Before I was interviewed about the altercation, I had a conversation to the following effect with Senior Constable Barnier: Me: 'This is the most violent attack I've ever seen. Someone could have died there tonight. I can't believe it happened. I know what Melissa and Dave are like. If they know we've helped you they will come back and cause trouble. We are going to have to sell the business and move north. I'm going to convince Brett to sell the hotel so we never have to go back there. I can't bear this if it happens again. What happens if they return? Melissa's a spiteful woman and she holds a grudge. She uses standover tactics. How do we protect ourselves?' Barnier: 'Kim, it's a serious offence to intimidate witnesses. I'll try and get bail conditions imposed. They will keep them away from you and the tavern. That will provide you with the protection and if there's any trouble you call us and we'll come straight out.'" In par 10 of her affidavit Kim Wilson said that at the time she made her statement she was anxious and distressed and was not thinking clearly. She went on to say this: "The woman I saw kicking the man on the ground and who I was referring to was Melissa Tilse. I was reluctant to identify Melissa Tilse at the time that I made my statement." 63Of course, that was not known to Senior Constable Barnier at the time he made his decision to arrest the plaintiff. However, there was other evidence before him that a person who had kicked Peter Travers when he was on the ground was Melissa Tilse and it was open to the Senior Constable to infer from that evidence that the woman seen kicking the fellow on the ground may well have been Melissa Tilse. 64In her statement made to Senior Constable Barnier on 26 April 2011 Nadine Close said in par 8 this: "8. At this time Peter was on the ground and I saw Melissa Tilse kicking Peter to the body. She kicked Peter at least three times. I ran back over to help Peter and I grabbed Melissa Tilse by the back of the head to stop her from kicking Peter. I yanked her back and Melissa said something to me and then punched me to the left cheek. She punched me with a closed fist. One of my friends, Kayla Horne, pushed Melissa out of the way so she would not punch me again. I know Melissa Tilse as I went to school with her brother and I know her parents well enough to have a chat and I have been in their house when I was in my teenage years. I have seen Melissa around town over the years. I looked over to where Peter was and he was on the ground and was bleeding from the back of the head." In the following paragraph of her statement Ms Close referred to the actions of, amongst others, Melissa Tilse as "dog shots". The affidavit of Ms Dobbie, to which I have earlier referred, refers to her making contact with Nadine Close on 11 October 2013 when she expressed her willingness to provide an affidavit about how she felt after the incident at Coutts Crossing Tavern. However, Ms Dobbie's attempts to contact the witness at 9.30am on 15 October, 6.15pm on 15 October and 4pm on 17 October were unsuccessful. At the time Ms Dobbie swore her affidavit on 17 October she had not been able to obtain an affidavit from Ms Close to finalise her evidence. Clearly no such affidavit was provided prior to 18 October 2013, which was the last time at which any such affidavit was to be served. 65The evidence given by Senior Constable Barnier as to Nadine Close's fears can be found in a number of places. In chief at p 139 the Senior Constable said that she said words to the effect that she was "frightened". He went on to say this: "She basically said words to the effect that she knows the plaintiff through living at the small community of Coutts Crossing. The plaintiff knows her car. She believed she knew her rego. She went to school with I think the plaintiff's brother. They had a similar sort of like social circle. She went to TAFE, as did the plaintiff, and the plaintiff's friends. She said basically words to the effect of the plaintiff will seek revenge if she finds out I made this statement." In cross-examination on 21 March at p 216, the Senior Constable confirmed that Nadine Close feared for retribution, that as far as he knew Nadine Close was in a relationship with Peter Travers, that they in fact were a couple and that if, for example, they wished to continue this altercation with Travers, Close could easily become involved again because she lived with Travers. Those questions in cross-examination were asked by me. In cross-examination by Mr Barham the Senior Constable confirmed what I have earlier said and then continued thus: "Q. You see, if Nadine Close had indicated to you that she feared for her life, that is a very serious matter, isn't it? A. It is. Q. Mm, and it's something that if she had in fact said those words you would have made a note of it somewhere, wouldn't you? A. For the criminal proceedings it is not relevant. Q. Part of the criminal proceedings was bail, was it not, in your eyes?" 66There was then the usual, or one could say well anticipated, interjection by Mr Spartalis and discussion between the Bench and Bar table and the evidence continued thus: "Q. Indeed if a threat of that severity had been made you would have made a note of it wouldn't you? A. No. Q. No, right. I suggest to you, sir, that Ms Close did not say those words to you or you would have made a note of it. A. I can tell you she did and, unfortunately, I did not make a note of it. Q. You would not make a note of any of the words that Brett Watson said to you which you gave evidence about yesterday? A. No, I did not make a note of that either because I did not think it was relevant." 67My other note of evidence given by Senior Constable Barnier concerning Nadine Close's fears refers to evidence commencing at the foot of p 140. That evidence is: "Q. I didn't ask you this. When Nadine Close expressed her concerns, did you say anything to her? A. I said basically the same thing. I said, 'Look, Peter is the true victim here.' She said, 'I agree, he could have been killed'. She was quite timid. She really didn't want to give a statement. She just didn't really want any involvement because she was frightened of retribution. I used the same, similar words to what I said to Peter. 'Look, it's a serious offence to intimidate a witness and there's - there's ways we can protect you.'" 68The reference by Mr Barham to the witness' fearing for her life was his picking up an answer recorded on p 220 line 13 where Senior Constable Barnier said this: "She said words to the effect of, 'I'm frightened of the plaintiff. I fear for my life. They know my car. They know my rego. I'm frightened they may come around and find me and Peter,' words to that effect." Clearly, the questions asked by counsel pick up the answer recorded by the Senior Constable at line 13 on p 220. The hyperbole, for such I believe it to be, was introduced by the Senior Constable himself. However, the hyperbole must be tempered by the words "words to that effect". The hyperbole may be merely a reflection of the witness becoming exasperated by being cross-examined so closely and for so long.

Evidence later available to SC Barnier 69Merely to deal with other evidence that was available to Detective Senior Constable Barnier on his decision to persist with arresting the plaintiff and to the charges to be laid against the plaintiff, I have brief recourse to other witness statements. 70Desmond Watson knew the plaintiff. In par 7 of his statement he said this: "Melissa has gone over to the fighting males on the ground and she has begun to kick the first male, who was the smaller Caucasian fellow [Travers]. Melissa has kicked the first male to the head at least three times whilst he was on the ground, the other second male lying on top of him. The first male could not defend himself against these kicks as the second male was lying on top of him. The first male was laying on his back and the second male was laying on him face to face. Whilst Melissa was kicking the first male to the head, she was holding a half full schooner glass with beer in it. Melissa was yelling stuff I cannot remember. I went over to pull Melissa Tilse away and I took the glass off her." There is direct evidence which, if accepted by a tribunal of fact, would entitle that tribunal of fact to find the plaintiff guilty of affray. The identification is clear and the criminal act is clear from that statement. 71A statement was obtained from Mr Bradley Fisher by Senior Constable Philip Benfield on 27 April. In par 7 of that statement he said: "I saw Melissa Tilse or similar who I know from Coutts Tavern and I know of her as my parents are friends of her parents. Melissa was kicking Peter while he was on the ground. She used her mostly the right foot but she may have also used her left foot. She kicked him about 6 times to the back and side of Peter's stomach." In his evidence Senior Constable Barnier said that he had a brief conversation with Bradley Fisher on the evening of 26 April when he attended but could not give his statement because Senior Constable Benfield was busy taking a statement from Nadine Close and dealing with Peter Travers who had been arrested. In the brief conversation with Mr Fisher, the Senior Constable said that Bradley Fisher said words to the effect of, "She's known around town at Coutts Crossing to cause dramas with people she doesn't like." Again, that was not particularly relied upon by Senior Constable Barnier in making his decision to arrest. He based his decision on the statements that were then available to him, namely from Mr and Ms Watson and Ms Nadine Close and the Travers. He did not specifically refer to that brief conversation he had with Bradley Fisher on the 26th and Mr Fisher did not give a statement of evidence until the 27th. 72A statement was obtained from Mr Travis Woolmer. He does not identify the plaintiff but he did refer to this: "A couple of sheilas came out [of the hotel], some of them looked Aboriginal, and they started kicking and punching Pete." 73A statement was obtained from Mr Mitchell Morgan, whose evidence was similar to that of Travers Woolner. In his statement he refers to a number of females kicking Peter Travers a few times. 74In par 221 of her statement Kayla Horne, who went to the hotel, I infer, with Peter Travers said this: "I did see two females kicking into Peter when he was on the ground. Both females were Caucasian. The first female was aged between 20 and 25 years of age dressed like a man in that she had baggy trousers and a hoodie jumper and blonde hair. The other female was aged in her early 30s. She had black pants and a red and black top on. She had long brown hair. Both of these females did kick Peter at least six times each. These kicks connected around the ribs of Peter." The plaintiff does not answer the description of the first Caucasian female identified by Ms Horne, but, from what I have seen in other evidence, her description of the second Caucasian female is consistent with the appearance of the plaintiff on the evening in question. Clearly, there was evidence available sufficient to ground a prosecution for the crime of affray. 75There was, in addition, before Senior Constable Barnier, before he made his decision to arrest the plaintiff, evidence of fear given by Mr Peter Travers. According to Senior Constable Barnier, Travers said to him, "I'm shit scared" of both David Daley and the plaintiff. The Senior Constable went on to give evidence of his saying words to the following effect: "I don't want to go to court if they're there. They'll see my face. They know our car. They live in the community. It's only a matter of time before they find out where we live. I have no doubt that they will come and find us and basically bash me." The Senior Constable then went on to say that Travers also told him that his girlfriend Nadine Close also had fears. Those fears are independently given and have already been discussed. 76I have some difficulty accepting that Travers would have said the words, "I'm shit scared". That is not consistent with his behaviour on 25 April, nor is it consistent with the bravura contained in his Facebook postings on the morning of 26 April. The question is: Is there any basis for his holding such fears? There might be but I doubt that he would have said words to the effect of "I'm shit scared". That, again, appears to be some hyperbole intruding itself into the evidence of Senior Constable Barnier.

Summary of evidence available to SC Barnier 77I can now turn to consider the evidence that the Senior Constable had available to him in summary form at the time he decided to arrest the plaintiff on the evening of 26 April 2011. He had physically met her at 18 Lakkari Street on 26 April. She was intoxicated. She was foul mouthed and she was aggressive. That is consistent with how she behaved back in 2002. Of course, the plaintiff does not agree to the extent of her interaction with the police as deposed to by the Senior Constable and submissions have been made to me on behalf of the plaintiff that the evidence of Senior Constable Barnier could have been corroborated by the evidence of Detective King and the evidence of then Probationary Constable Andrew Jeffrey. However, equally, the evidence of the plaintiff, who has the onus of proof, could have been corroborated by Cindy Wilson, Amber Murphy, Tony Murphy, Natasha Wilson, Gary Brush and Samantha Polley, but it was not. On that issue I prefer the evidence of Senior Constable Barnier.

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.

LEPRA s99(3) 123I now must turn to the provisions of s 99 of LEPRA. The relevant part of subs (3) is this: "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: ........................................................................ (d) to prevent harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence." The first thing to note is the use of the word "necessary". A submission has been put to me as to how it ought to be construed. Necessary is one of those words which in our language is an absolute: something is necessary or it is not; something is fundamental or it is not; something is basic or it is not; something is essential or it is not; something is unique or it is not...However the words, "reasonably necessary", are sometimes used in statutes, and it is clear that when the adjective is modified by the adverb, "reasonably", that the adverb modifies the absoluteness, or strictness of the necessity. 124Mr Spartalis referred me to a dictum of the Supreme Court of the United States in McCulloch v Maryland (1819) 7 US 159 at 203, which was referred to in [101] of the judgment of Gummow and Crennan JJ, in Thomas v Mowbray (2007) 233 CLR 308; [2007] HCA 33. There is no express power in the US Constitution granting to Congress any banking power. However the Bank of the United States was established to enable Administration to conduct its fiscal operations. US Constitution, s 8 clause 18 is in these terms: "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof." The US Supreme Court relied on this provision in upholding the US legislation establishing the National Bank. The dictum relied on by Mr Spartalis was that used to interpret the word "necessary" in the clause I have just quoted. In McCulloch v Maryland Marshall CJ discussed the nature of a constitutional document: a broad outline of powers, intended to enure for generations; specifications and means are not inserted. His Honour concluded: "Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional." (at 421). The Chief Justice's reasoning can be found in The Federalist No. 44 (Maddison)(1788). Unsurprisingly, the same principles are used by the High Court in interpreting the Australian Constitution: Lane's Commentary on the Australian Constitution (1986) L.B.C. p258. It is also unsurprising that the word "necessary" used in a constitutional document would be interpreted expansively. LEPRA however is not a constitutional document. 125 The High Court in Thomas v Mowbray was construing provisions of the Criminal Code of the Commonwealth, in particular s 104.4, which uses the words, "reasonably necessary". The provision of the Criminal Code being interpreted was what can be shortly referred to as anti-terrorism legislation. It appears to me to be completely inappropriate to look at a decision regarding the words, "reasonably necessary", when construing what the word "necessary" means in s 99(3) of LEPRA. 126Of greater significance however is the decision of O'Keefe J in Elcham v Commissioner of Police [2001] NSWSC 614. His Honour was there called upon to interpret a provision of the Liquor Act 1982, which used the word "necessary". Commencing at [47], and ending at [60], his Honour cited a large number of authorities about the meaning of the word "necessary", and the circumstances in which in statutory interpretation it has been construed as being, "reasonably necessary". After reviewing a number of authorities, his Honour said, commencing at [57]: "57. The trend of the decided cases is thus to the contrary of the strict approach to the meaning of "necessary", advocated on behalf of the plaintiffs. 58. However, in determining the appropriate meaning of the word "necessary" in a given case, it is essential to look at the context in which it is used, the purpose of the legislation, and its effects. 59. In the present case it is true to say that an order made under s 104A is likely to have detrimental economic and business effects. But these may be no more adverse than the denial of a significant tax deduction. In addition, it does not involve any direct criminal sanctions. The purpose of an order under s 104A is the protection of the public interest as defined in s 104A(3). By allowing the application and order to be made ex parte, albeit for a quite limited period, the section, in my judgement stresses the predominance of the protection of the public interest over the private detriment which may flow from the making of an order. Protection of the rights of the citizen is effected by the interposition of the authorised justice between the police and citizen, and the recognition by the authorised justice of the duty which is imposed on such justice in applying the section. 60. For these reasons, I am of the opinion that the word "necessary", as used in section s 104A(2)(b) of the Act, is not to be understood in the sense of essential or absolutely necessary." 127Mr Spartalis submitted that, based on what fell from O'Keefe J, the word "necessary" in s 99 (3) should be construed as being reasonably necessary. I am unable to accede to that submission. The first point to note is that if it had been Parliament's intention that it be only reasonably necessary to arrest a person to achieve one or more of the six purposes listed in the paragraphs of subs (3), Parliament could have said so. It did not. To use a favourite adage of the late R P Meagher JA: the Act means what it says; moreover, it does not mean what it does not say. 128The next point to note is this, s 99 grants a power of police officers to arrest without warrant. It gives a power to police officers to take away the liberty of the subject. The common law has for century after century closely guarded the liberty of the subject, the personal integrity of every subject, and protected, some say with too much sanctity, the subjects' rights of property, both real and personal. In granting a police officer a right to arrest without warrant, one can understand Parliament limiting the power, and s 99(3) clearly limits the circumstances in which a police officer can use the statutory power granted to him earlier in the section, to arrest without warrant. Accordingly, I believe that I should construe the word "necessary" in its original, or primary meaning, that is, it must be necessary to do so, not that it is reasonably necessary to do so. 129The question that then arises is was it necessary for Senior Constable Barnier to arrest the plaintiff in order to have bail conditions imposed that would prohibit her from harassing or interfering with potential witnesses against her. The submission of the plaintiff in this regard is twofold. There were other means of imposing such conditions. The first is that the Senior Constable could have applied for a provisional apprehended personal violence order. Section 10 of the Crimes (Domestic and Personal Violence) Act 2007 provides the objects of the Act in relation to personal violence. The provisions of the section are these: "(1) The object of this Act in relation to personal violence is to ensure the safety and protection of all persons who experience personal violence outside a domestic relationship. (2) This Act aims to achieve that object by: (a) empowering courts to make apprehended personal violence orders in appropriate circumstances to prevent people from violence, intimidation (including harassment) and stalking, and (b) ensuring that access to courts is as safe, speedy, inexpensive and simple as is consistent with justice, and (c) ensuring that other avenues of dispute resolution are encouraged where appropriate." The first thing to note is that a potential witness who might be harassed or intimidated is not a person "who experiences personal violence outside a domestic relationship", that person only has the potential to be subjected to "personal violence." 130 Section 19(1) of the Act provides this: "A court may, on application, make an apprehended personal violence order if it is satisfied on a balance of probabilities that a person has reasonable grounds to fear, and in fact fears: (a) the commission by the other person of a personal violence offence against the person, or (b) the engagement of the other person in conduct in which the other person: (i) intimidates the person, or (ii) stalks the person, being conduct that, in the opinion of the court, is sufficient to warrant the making of the order." Before an APVO can be made, a person, that is, in the present context, a witness, must have "reasonable grounds to fear", and also in fact fears the commission of violence against him or her, or intimidation of that person, sufficient in the court's view to warrant the making of such an order. To obtain an order appears to me to be a more onerous exercise than imposing bail conditions. The granting of bail is discretionary. The person seeking a bail condition does not have to prove anything on either the civil or criminal standard of proof. 131 Section 25 of the Act permits a police officer to apply by telephone, facsimile or other communication device to an authorised officer for an interim APVO. Such an interim APVO is known as a provisional order. A provisional order can be made either at the request of the person seeking protection, in this case a relevant witness, or on a police officer's initiative, and may be transmitted to the authorised officer, generally a magistrate, by someone on behalf of the applicant if it is not practical for the application to be made by the person seeking the order directly. Generally, there is a magistrate available in the State at any one time to whom police can make applications for an apprehended domestic violence order, and presumably, also for an apprehended personal violence order on an interim basis. 132Section 26 governs the circumstances in which an application for a provisional order is made. Section 26 is in these terms: "(1) An application can be made by telephone, facsimile or other communication device if: (a) an incident occurs involving the person against whom the provisional order is sought and the person who would be protected by the provisional order, and (b) a police officer has good reason to believe a provisional order needs to be made immediately to ensure the safety and protection of the person who would be protected by the provisional order, or to prevent substantial damage to any property of that person. (2) An application may be made at any time and whether or not the court is sitting." One will note from s 26 (1) (a) that there must be some "incident" involving the person against whom the provisional order is sought, and the person in need of protection. I can hardly construe that requirement as encompassing a person making a statement to police about what that person heard or saw, a person, for example, such as Kim Watson, who was not involved in any way in the brawl, but merely saw it occurring. There was no incident involving Kim Watson and Melissa Tilse. Indeed, there was no incident in which Brett Watson came into direct contact with Melissa Tilse, although both were involved in the affray. The plaintiff was a protagonist, but Mr Watson merely sought to intervene to break up the affray. In the current matter there was an incident occurring between Nadine Close and the plaintiff. According to the plaintiff, Nadine Close scratched her and in self-defence she threw a punch at Nadine Close. That is looking at the matter through the eyes of the plaintiff rather than Nadine Close. However, there was a number of other witnesses as well who were not involved in the brawl, were not involved in the affray, and who made statements to the police, albeit that the defence does not raise those persons as persons who justify the necessity of the arrest. However, as a general proposition it appears to me that s 26 (1) (a) requires some incident involving the person charged and the potential witness, that is, more than just one person seeing what the other person was doing. In my view, in those circumstances, the seeking of a provisional order, that is, an interim APVO, is not in general the equivalent of seeking a bail condition preventing a person charged with an offence from harassing or intimidating witnesses. 133The written submissions on behalf of the defendant, which have been marked MFI 9, will be left with the papers lest the matter go further. They contain, commencing on p 16, the defendant's submissions concerning an allegation that Senior Constable Barnier should have made an application under the Crimes (Domestic and Personal Violence) Act 2007. The defendant submits that s 27 should also be considered when considering s 26. The submission at [43] is this: "A police officer with standing under Part 7 must apply for a provisional order if the elements in s 27(1) exist, namely that: (a) a police officer investigating the incident (being the same incident that is the subject of s 26(1)(a)); (b) suspects or believes an offence against s 13: (i) has recently been, (ii) is being committed, (iii) is imminent, or (iv) is likely to be committed, against the person to be protected by the order; and (c) the police officer has good reason to believe an order needs to be made immediately: (i) to ensure the safety and protection of the person, or (ii) to prevent substantial damage to the property of that person. Again there is the requirement for an incident, and furthermore, there is a requirement that an offence under s 13, that is, stalking or intimidating another person with the intention of causing the other person to fear physical or mental harm has occurred, is occurring, or is likely to occur, which is a much stricter requirement than "a suspicion on reasonable grounds". These requirements are all much more onerous than the imposition of a bail condition, and in my view would cause, if the submission be correct, much more police work and much more work for the courts. 134I am unable to accede to the submission put to me by the plaintiff that as an alternative to granting bail, Senior Constable Barnier ought to have applied for an interim APVO. I do not believe I need to say anything further concerning that. 135The next issue raised by the plaintiff is that it was not necessary to arrest the plaintiff because she had gone voluntarily to the police station: she was prepared to make a statement. She could have been given a Court Attendance Notice at the police station, and could have been granted bail without having been arrested. That requires an examination of the provision in the Act, and perhaps an examination of that Act, which is completely outside the familiarity of the members of the New South Wales constabulary. I shall deal with that after lunch. LUNCHEON ADJOURNMENT 136Before turning to the Bail Act, I should make a few more points about the submissions concerning the alternative suggested by the plaintiff that Senior Constable Barnier could have applied for an interim APVO. The Law Enforcement (Powers and Responsibilities) Act 2002, "LEPRA", received the Royal Assent on 29 November 2002 and commenced on 1 December 2005. The Crimes (Domestic and Personal Violence) Act 2007 received the Royal Assent on 7 December 2007 and commenced on 10 March 2008. When Parliament enacted the Crimes (Domestic and Personal Violence) Act 2007, it could have amended LEPRA if it thought that the personal violence order provisions of the later Act were sufficient to replace the requirements of s 99(3)(d) by repealing that provision. However, it did not. Parliament itself could have indicated by some other provision that indicated to those exercising powers of arrest without warrant that they were to make an application under the Crimes (Domestic and Personal Violence) Act 2007 rather than arresting and seeking the imposition of a bail condition that a person not intimidate or harass witnesses. However, it did not. 137The other matter which must be borne in mind is the consequence of the making of an APVO and the imposition of the relevant bail condition. If a person is bound by a conditional bail undertaking that he or she not associate with any specified person such as a witness and a police officer believes on reasonable ground that the person bound by the conditional bail undertaking has failed to comply with it or is about to fail to comply with it, the officer may arrest that person without warrant and take him or her as soon as practicable before a court. The policeman need only believe on reasonable grounds. If, however, an APVO is in place, breach of an APVO is a crime itself and, it would appear to me, as argued by the defendant, that a policeman to do anything if he thought that an APVO was going to be breached, would need to have sufficient evidence to be able to prove at least an attempt to breach the APVO. In my view, the seeking an APVO is not a valid or reasonable alternative to imposing a bail condition that a person not harass or interfere with any person that may be a witness.

Can bail be granted without the need to arrest? 138I turn now then to the provisions of the Bail Act 1978. Section 4 (2) provides what might be thought to be the definition of, "an accused person", or, "a person accused of an offence", in the Act. However, s 4(2) is not exclusive. It merely includes a reference to persons in a number of categories. The first category is a person charged with an offence. The next person is a person convicted of an offence and the third is of a person found guilty of an offence. It also contains par (b) to par (f) which are not presently relevant. Section 7(1) commences, thus: "When: (a) bail is granted to an accused person in respect of an offence, (b) the person enters into the bail undertaking, and (c) if a bail condition or bail conditions are imposed, it or they are entered into, the person is, subject to this Act, entitled to be released (if in custody) and to remain at liberty in respect of the offence, until the person is required to appear before a court in accordance with the person's undertaking." The bracketed matter, "(if in custody)", clearly implies that a person is entitled to be released on bail even if not in custody. It follows that a person who appears before a court or an authorised officer but is not in custody can leave the presence of that court or that authorised officer with bail granted to him or her and is entitled to, "to remain", at liberty. The text of s 7(1) clearly envisages the granting of bail to a person who is not in custody or, to use other language, is not under arrest. 139Section 15 provides this: "(1) An accused person may be granted or refused bail in accordance with this Act, notwithstanding that the person is not in custody. (2) Nothing in this Act requires the grant of bail to an accused person who is not in custody." Again, the provisions of s 15 clearly point to the ability of a person who is not in custody to be granted bail. 140 Part 3 of the Bail Act is headed, "Police Bail". It contains ss 17 to 21. The ability of police to grant bail is a relatively new invention. The second volume of Sir William Holdsworth's, "A History of English Law", discusses, "Anglo-Saxon antiquities". Commencing at p 83, the learned author said this: "Procedure dominates early law, so that it is not surprising to find that the earliest transactions of a contractual nature are connected with the law of procedure. One party to a legal proceedings promises the other that he will appear in court, that he will prepare his proof, or that he will satisfy judgment; and he provides sureties to guarantee the fulfilment of these promises. Not far removed from this, is the agreement made between two opposing families as to the payment of the wergild, when a member of one family has been murdered by a member of the other - an agreement the making of which was, as we have seen, at first entirely optional to the relations of the murdered man. If they agreed to accept compensation the representatives of the murderer promised the family of the murdered person that they would pay the wergild, and the family promised that the murderer might come and enter into the formal contract to pay the wergild. The parties then met; and the murderer made his promises, giving something as security (wed), and naming his sureties (borh). The peace was then restored by the mutual promises of the parties. In the law of procedure wed and borh long continued to be used as securities for the production of a defendant before a court of law; and in the following period, they became part of the common form of those writs to the sheriff in which he was directed 'ponere' a defendant 'per vadium et salvos pledgios'. But it would be a mistake to regard this furnishing of wed and borh as mere forms, and the arrangements which they sanctioned as merely formal contracts. The wed may have become at a very early date an article of trifling value, and its production therefore a mere form. But the furnishing of the sureties was no mere form; it was a substantial sanction. These sureties were bound primarily to the creditor; and it was to the sureties that he looked for the carrying out of the undertaking." The learned author then turned to certain provisions of foreign law and continued thus at the top of p 84: "Probably these sureties were regarded somewhat in the light of hostages; and English law still retains a trace of this primitive conception in the fact that the bail of our modern criminal law are bound 'body for body'. As Holmes says, modern books still find it necessary to explain that this undertaking does not now render them liable to the punishment of the principal offender, if the accused is not produced." 141One can continue to read the history of bail in the fourth volume of Sir William Holdsworth's History. Commencing at p 525, the learned author says this: "It may be that in early days those who offered themselves as security for the appearance of an accused person were literally bound body for body. But in the thirteenth century these sureties were only liable to amercement [fine] if they allowed their prisoner to escape. Later it became usual, either to make the surety promise by recognisance to pay a sum certain in the event of the non-production of the prisoner; or, combining the older idea of the nature of the surety's obligation with the newer means taken to enforce it, both to make him promise by recognisance to pay a sum certain in the event of his non-production, and to commit the accused to the surety's custody. If the accused was thus committed to the custody of the surety he was strictly and technically his bail; if the surety merely gave security for his appearance he was said to give mainprize and to be a mainpernor. From an early period the sheriff had a large discretion as to the taking or refusing to take bail or mainprize. In the twelfth century it would seem that the only cases in which he could not take bail or mainprize were cases in which an accusation of homicide had been made. The writ by which the sheriff could be compelled to release the prisoner on bail or mainprize was the writ de homine replegiando; and, when that writ attained its final form, the list of cases in which bail must be refused had grown by the addition of offences against the forest law, an arrest by special command of the king." 142The learned author then goes on to discuss various enactments of the Middle Ages and the Tudor Age as to which offences would attract bail. The author points out at p 527 that by 1444 the power to grant bail was passing from the sheriff to the justices of the peace. The power was granted to the justices of the peace in general terms by a statute of King Richard III. The author then continues thus: "With the accession of the Tudors a stricter control over the manner in which the power was used began to be exercised. A statute of 1487 recited that persons not bailable were often bailed, whereby many murderers and felons had escaped; and enacted that the power to bail should be exercised by no less than two justices, one of whom was to be of the quorum, and that the prisoners whom they bailed should be certified at the next general sessions of the peace or sessions of gaol delivery. It would appear that this statute had not worked altogether satisfactorily. It was stated in 1554 that one justice, in the name of himself and another who knew nothing of the case, had sometimes by 'sinister labour and meanes' set at large notable offenders. Justices were therefore prohibited from bailing any persons not bailable by the statute of 1275. Prisoners must be bailed in open sessions, and at least two justices, one being of the quorum, must be present at the time of the bailment. A certificate must be made to the next sessions of gaol delivery and the justices of gaol delivery were given power to fine justices for breach of the provisions of the Act. Later statutes were passed to ensure that bailors should be substantial persons, and to make special provision for bail in the case of particular offences; but the statute of 1275 as to offences bailable, and the statue of 1554 as to the procedure by which bail could be obtained, remained the basis of the law on this subject till 1826." 143Accordingly, at the time of the foundation of New South Wales, power to grant bail resided in the justices of the peace. The first time that I am aware that power to grant bail was given to the police was by s 153 of the Justices Act 1902 inserted by Act No. 32 of 1918. Subsection (1) of that provision was this: "Any member of the police force who is of or above the rank of sergeant or is for the time being in charge of a police station, and any gaoler shall have the same power of discharging any person who is in custody on the person's entering into a recognisance, with or without sureties, for a reasonable amount to appear before a Justice or a Court at any time and place named in the recognisance, or to comply with any order, or to perform any act, or on the persons giving security by an acknowledgement pursuant to subsection (1) of section 84, as a Justice has under the provisions of this Act. When any such member of the police force or gaoler refuses to discharge any such person on recognisance or on giving a security by an acknowledgement as aforesaid, the person shall be brought before a Justice as soon as practicable and the Justice shall thereupon hear and determine the matter." Apparently that provision was still in force even though the Bail Act was enacted because it is still contained in the Justices Act as it was reprinted on 2 May 2000. It is clear that under that grant of power a person to be granted bail was a person, "who is in custody". Accordingly, it would appear to me that prior to the enactment of the Bail Act 1978, police could only grant bail to persons who were in custody. 144Section 17 of the Bail Act 1978 bears a heading "Authority for police to grant bail". It provides this: "(1) A police officer may grant bail in accordance with this Act to an accused person who is present at a police station if the officer is: (a) of or above the rank of sergeant and present at the police station, or (b) for the time being in charge of the police station. (2) A police officer may not grant bail to a person accused of an offence if: (a) a determination concerning bail has been made by a court under this Act, or (b) the requirement for bail has been dispensed with under this Act, in respect of the offence. (3) A police officer may not grant bail to a person who has been arrested pursuant to a warrant to bring the person before a court for sentencing and any such person must be brought before a court as soon as reasonably practicable. (4) Despite subsection (3), a police officer may grant bail to a person referred to in that subsection if the police officer is satisfied that exceptional circumstances justify the grant of bail and the police officer is otherwise entitled to grant bail under this Act." It is to be noted that subs (1), besides identifying those police who are able to grant bail, provides that the police so authorised may grant bail, "to an accused person who is present at a police station". That provision does not mirror the verbiage of s 153 of the Justices Act 2002 which refers to the granting of bail to, "any person who is in custody". 145Section 18 of the Bail Act provides this: "(1) Where a person is charged by a police officer with an offence and the person is in custody, the proper officer shall, as soon as reasonably practicable: (a) give the accused person such information in writing respecting the person's entitlement to or eligibility for bail as is prescribed by the regulations and sign an acknowledgment in the prescribed form that he or she has given the accused person the information, and (b) if the proper officer is: (i) authorised to grant bail - determine whether or not bail should be granted to the person or bring the person or cause the person to be brought before a court, or (ii) not authorised to grant bail - bring the person before the court or an authorised officer. (2) The authorised officer before whom a person is brought pursuant to subsection (1)(b)(ii) shall, as soon as reasonably practicable, determine whether or not bail should be granted to the person or bring the person or cause the person to be brought before a court. (3) In this section: (a) a reference to the proper officer is a reference to: (i) subject to subparagraph (ii) - the police officer who laid the charge against the accused person, or (ii) where it is not reasonably practicable for the police officer referred to in subparagraph (i) to perform the duties prescribed by subsection (1) - the police officer for the time being in charge of the police station at which the accused person is in custody or, if the person is not in custody at a police station, a police officer who has custody of the person, and (b) a reference to bringing a person before a court is a reference to bringing the person before a court for the purpose of having the court exercise its powers in relation to bail or for the purpose of the person being dealt with otherwise according to law." Clearly, s 18 is mandatory or compulsory where a person is charged by a police officer and is in custody. That person must be afforded information to exercise his or her rights to seek bail and be given an opportunity to seek bail from an authorised police officer that is one of or above the rank of sergeant or the officer for the time being in charge of the police station. 146In my view, there is force in the submission that there is a difference between ss 17 and 18. Section 17 grants, it is true, authority for police to grant bail but is facultative in the sense that it gives the authorised officers power to grant bail to an accused person who is present at a police station. Section 18 is not facultative but mandatory where there is a person at the police station in custody or otherwise in police custody. That person is to be given an opportunity to seek bail from the police. 147The following provisions in Pt 3 of the Bail Act do not assist me in the question of statutory interpretation. Section 35 of the Interpretation Act 1987 refers to headings, however, no submission was put to me as to the significance of the heading to s 17. Initially, I believed it to represented merely the granting of power to the police but, on reflection, it appears that it goes beyond that. 148I earlier discussed this matter in Carey v State of New South Wales [2013] NSWDC 213 commencing at [40]. At [41], I pointed out that in the work of Howie and Johnson, Criminal Practice and Procedure New South Wales, provides no commentary on s 17 which I described as a, "curious provision". I appear to have accepted in that case that s 17 was purely facultative and that the substantive provision was s 18 and accordingly said, obiter, that the only power the police had to grant bail is if a person had been arrested. Under s 34 (2) of the Interpretation Act 1987, I am entitled to use certain extrinsic material. Under subs (2) (c), I am entitled to have regard to any relevant report of a committee of Parliament or of either House of Parliament before the provision was enacted or made. Exhibit 29 is a report of the Bail Review Committee ordered to be printed on 30 September 1976, a report to the Parliament of New South Wales. The report, I am told by a handwritten notation on it, was dated 30 September 1976 and was brought into existence for the purpose of reviewing bail procedures in this State which led to the enactment of the Bail Act 1978. 149On p 32 of the report commences a section of the report relating to police bail. The first paragraph notes that the police power to release on bail is governed by s 153 of the Justices Act and exercised in accordance with instructions issued by the Commissioner of Police. On p 33, there is a heading, "Alternatives to arrest and bail". The following matter then appears: "Police bail powers are used only where a defendant is arrested. If the summons procedure is used instead, the defendant is not taken into custody and the need for bail does not arise. Many people are now arrested, taken to a police station, charged and bailed when there was no need for arrest in the first place or when, after arrest, there was no need to formally charge and require bail. Many people arrested are well known to the police - or are readily identifiable - as likely to appear on a summons, or easy to locate if they do not. A summons procedure is certainly not appropriate in every case. For example, if a continuing breach of the peace is likely if the person is not arrested, or if he cannot readily provide information of his identity sufficient to satisfy police that he will appear, arrest is appropriate. But the Committee believes that many of the arrests now made are an abuse of power and unnecessary. Far greater emphasis should be placed on the use of alternatives to arrest which avoid the need to take the defendant into custody at all and reduce the amount of police time and resources involved in formally charging, bailing, holding, and transporting to court." 150On p 34, another section of the report is headed, "Citations in New South Wales", and essentially advocates the adoption of a system in this State which was not enacted at the time of the Bail Act 1978 and which the Committee recommend which would have enabled police to issue the equivalent of a summons. This procedure has been much more recently adopted and is the CAN system. 151 One can, therefore, glean from the provisions of the Bail Act itself, supported by that extrinsic aid to interpretation, an intention to entitle police with the requisite authority to grant bail to any person present at a police station and one can also glean from the Act that a person need not be in custody in order to be granted bail. 152 Counsel for each party have spent some considerable time in providing me with written submissions on the question of a proper interpretation of the Bail Act. The defendant's submissions on this aspect have been marked for identification 10 and will be left with the papers. The plaintiff's written submissions on the same topic are marked for identification 16 and will be left with the papers. I merely remark in passing that Mr Spartalis was able to find some commentary on s 15 of the Bail Act, being an observation by my late colleague, Mr Brian Donovan QC (as he then was) in his text, "Law of Bail: Practice, Procedure and Principles", published in Sydney in 1981 by Legal Books. My late colleague said that s 15: "Apparently applies to an accused who, although not in custody, is liable to be taken into custody. The section may able to be used to deal with an accused in his absence in relation to bail." The first sentence of the comment which I have just made clearly indicates that the learned author believed that s 15 applied to an accused who, although not in custody, might be liable to be taken into custody and that would, of course, include a person at a police station who has been interviewed by police.

Was arrest of the plaintiff necessary? 153Accordingly, I have reached the view that it was open to Senior Constable Barnier not to arrest the plaintiff at the time she came to the police station to be interviewed by him. He clearly intended to charge her. He had formed that intention on the evening of 26 April 2011. He could have told her that he intended to charge her with affray and he could have told her that he would recommend to the bail sergeant that she leave the police station if she signed a bail undertaking which contained the terms or similar terms to the terms ultimately imposed. However, he did not. I wholly suspect that he did not do so because he did not know that he could do so. 154 When Senior Constable Barnier arrested the plaintiff, he arrested her for the only valid purpose that an arrest can be effected: in order to commence proceedings against her for the crime for which he arrested her. In other words, the mere fact of arrest and stating that he arrested her for affray, ought to have told the plaintiff that she was going to be charged with affray. Whether or not that occurred to her at the time she was arrested would depend on the state of her legal knowledge, which I infer was not great. It is clear that the plaintiff was prepared to provide a statement. If she had, when she presented herself to the police station, been afforded an opportunity to give her statement, it would have taken, one would think, the same amount of time that it actually took, 54 minutes. That means from the time she arrived at the police station, 1.35pm, she would have been finished at the police station by about 2.30. However, to proceed with the charging process, more time would have been required both to generate the facts sheet and the court attendance notice and undertaking the necessary forensic procedures of fingerprinting and photographing if such are applicable to someone who has not been arrested. 155The complication, of course, was that David Daley was in custody. He needed to be interviewed. As he was the principal antagonist in the brawl at the Coutts Crossing Tavern, one would think his Court Attendance Notice would need to be generated, his date of appearance known and, therefore, the date to be placed on the Court Attendance Notice for the plaintiff and presumably on the future Court Attendance Notice to be issued to Peter Travers. The interview with Daley took 26 minutes. One can say roughly half an hour. One can see, therefore, the interview with the plaintiff going from roughly 1.35 to about 2.30, then a half hour for the interview with Daley takes one to about 3 o'clock and then perhaps an hour for processing Daley, then another hour to process the plaintiff which takes one to approximately 5pm. The question then is would the plaintiff have waited around in the police station from 2.30 to 5 o'clock? If one believes what the plaintiff herself asked me to believe, that she would be only at the police station for, "an hour or two", which appears twice on p 11 of the transcript, then one would not expect her to have waited beyond, say, 3.30. That would have been only an half hour after Daley had been interviewed, accepting that Senior Constable Barnier could have started interviewing the plaintiff immediately at 1.35 and then followed on swiftly with the interview with David Daley going up till 3 o'clock when it is clear from his evidence that he needed to attend to at least one other matter, which was the transfer of a juvenile arrested early on that morning by Senior Constable Barnier for breach of bail. He was bail refused at the police station and needed to be transported to the local juvenile detention centre and that occupied the period from 2.50 to 3.40pm. That, of course, is the best part of another hour which would extend it to around 5.45pm. It is unlikely in my view that the plaintiff would have waited around for such a period of time. She is likely to have gone home to take back the care of her children and to await the call from her middle daughter's friend's mother so that the plaintiff could pick her middle daughter up from her friend's place after the sleepover on the Saturday night preceding. 156If that be the case, and the plaintiff had not been arrested, she was entitled to leave with or without the consent of Senior Constable Barnier. He would have been in the position of being able to issue her with a Court Attendance Notice in the mail, that is, the old summons procedure, or the future CAN. But he would not have been able to impose any bail conditions because the plaintiff would no longer have been at the police station. It is important to bear in mind the terms of s 17(1). The accused person to be granted bail must be, "present at a police station". Senior Constable Barnier could not have left the police station and gone to the plaintiff's home and served her with a Court Attendance Notice and bail conditions, let alone require her to sign her bail undertaking. 157I am acutely aware that the plaintiff's evidence is that she would have agreed to "anything", meaning bail conditions, in order to get out of the police station which is what she told Leading Senior Constable Benfield. The question is not whether she would have agreed to any particular conditions; the question is would she have waited around until the whole process could have been completed. That is the question. If one believes what she asked me to believe, then the inference I draw is that she would not have waited around. She would have gone home. If she had, that would not have allowed police to impose any bail conditions because she was no longer present at the police station. In referring to the time spent processing David Daley at the police station, I am, of course, giving consideration to the provisions of s 116 (2) (h) of LEPRA. I have accepted that Senior Constable Barnier had reasonable grounds to suspect that the plaintiff had the ability or propensity, that is, she could or might interfere with or harass witnesses. The question then becomes whether it was necessary for him to arrest her to achieve the purpose of preventing any such harassment or interference. 158 The only practical way of seeking to prevent that harassment or interference was the imposition of bail conditions. Senior Constable Barnier himself could not grant bail. That could only be because he was not of the requisite rank. He had to leave that to the person in charge of the police station who was, after 6pm, Leading Senior Constable Philip Benfield. The time constraints indicate to me that the only practicable course was to arrest the plaintiff. She could have, if told that she was going to be definitely charged, refused an interview and left. She could have refused to wait around, kicking her heels until Senior Constable Barnier was ready to interview her. Even if Senior Constable Barnier interviewed her as soon as she arrived at the police station, she may have refused to wait after the interview was completed and certainly could well have refused to wait whilst he attended to the interview with Daley or transported the young offender to the juvenile detention centre. 159It has been submitted on behalf of the plaintiff that if she indicated to Senior Constable Barnier that she was going to leave without his having served upon her a Court Attendance Notice and taken her before the officer in charge for the granting of bail, that he could then have arrested her because such arrest was in the circumstances necessary. However, it was always open to the plaintiff to leave without anyone's permission and to leave when Senior Constable Barnier would not have known that she was leaving, for example, when he was interviewing David Daley or when he was taking the young person to the juvenile justice centre, when she was physically out of the sight of Senior Constable Barnier. Furthermore, if she had not been arrested, one would think that she would have been required to wait in the foyer of the police station rather than in the charge room or even in an unlocked cell. One can easily glean from the evidence that I have heard and what I have seen that the plaintiff would, if she had felt that she had other things to do, hardly wait around to meet the convenience of the Grafton Police. 160Accordingly, despite the ability of the police to impose bail conditions without an arrest being necessary, I am persuaded on the balance of probabilities that it was necessary for Senior Constable Barnier to arrest the plaintiff in order to prevent harassment of or interference with any person who might be required to give evidence in the proceedings for affray that the Senior Constable had determined to bring against the plaintiff. There was nothing in the knowledge of Senior Constable Barnier to suggest that the plaintiff might meekly wait around to be dealt with in due course by the police. He was entitled to take into account not merely the fact that she went voluntarily to the police station when he asked her to, as the plaintiff relies upon, but he is also entitled to take into account her behaviour towards him and other members of the police force on the evening on 25 April and to the fact that the plaintiff made a representation to Senior Constable Barnier at 1.20 on 1 May which was untrue, that David Daley was not in her house when he was. I am, therefore, persuaded on the balance of probabilities that the defendant has discharged the onus of justifying the necessity of the arrest of the plaintiff.

Period in custody was excessive 161 I have spent some nine hours thus far giving these reasons for judgment. Suffice it to say, that I also come to the view that the period that the plaintiff was held in custody was excessive. Section 115 of LEPRA provides that the investigation period is the period that begins when a person is arrested and ends at the time that is reasonable having regard to all the circumstances but does not exceed the maximum investigation period. The maximum investigation period is four hours. Section 116 makes provision for determining a reasonable time and s 117 provides for certain times to be disregarded in calculating the investigation period. 162The defendant submitted that the investigation period was in fact three hours and 13 minutes, deducting from the five hours and 43 minutes the four minutes in which the plaintiff was using the lavatory and two hours and 26 minutes commencing at 4.52 when the, "charging process" began. With the utmost respect to the defendant, that charging process is overly long and I have already spoken of that. Approaching the way I have approached this matter this afternoon, the plaintiff could have been processed, assuming all other things were equal, by 5pm, that is, in some three hours and 25 minutes. The various steps are outlined in exhibit 30 which was admitted as evidence of the facts. The document is headed, "Particulars to paragraphs 23 (d) and 27 of the amended defence", and also in the defendant's chronology which has been marked for identification 13 and left with the papers. I have pointed out that according to Senior Constable Barnier, he commenced the fact sheet at about 1.41pm and spent 20 minutes to half hour on it. I have pointed out that despite the evidence of Senior Constable Barnier that it might take up to 20 minutes to complete a Court Attendance Notice, the Court Attendance Notice appears to have been generated in a period of six minutes between 4.44pm and 4.50pm. I do know that the interview with David Daley was from 5.05 to 5.33, according to exhibit 23. Giving Senior Constable Barnier time for a break between 16:15 and 5.05, the interview with David Daley finished at 5.33. If he then continued with the compilation of the fact sheet or finished the compilation of the fact sheet, one would have thought that would have been completed by 6 o'clock and the formalities of charging and bailing could have been completed by 6.18pm. They were not completed until 7.18pm. Accordingly, in my view, the plaintiff was detained for one hour longer than was reasonably necessary. 163This is no criticism of Senior Constable Barnier at all or of any member of the New South Wales Police serving at Grafton in April or May 2011. The reason that the plaintiff could not be dealt with more promptly was because of understaffing. I could spend an hour outlining the evidence as to understaffing at the Grafton Police Station. There is enough documentary evidence of it. The fact is that the police could not attend to the statutory time limits because of the lack of human resources. 164As a result of my finding, the plaintiff is entitled to recover some damages, as I understand it. That is, the imprisonment for an hour in excess amounted to a period of false imprisonment. Counsel agree that the amount of time the plaintiff was kept in excessive custody, that is, for an extra hour, amounts to a period of false imprisonment for which she is entitled to recover damages. It is appropriate that the State of New South Wales pay the damages because it is the State of New South Wales that did not provide the resources to the Grafton Police that led to the plaintiff being detained in custody longer than she ought to have been detained. 165 The question then becomes what is the quantum of those damages. The authorities make it clear that the length of time is not of particular significance but the shock of being arrested is and a large amount of damages payable for false imprisonment comes from that initial shock. Here, the initial shock was because of a lawful arrest and, therefore, cannot be part of the wrongful imprisonment. The plaintiff was kept away from her home and her daughters and from what she might normally do for an hour between roughly 6.15 and 7.18pm on the evening of Sunday, 1 May 2011. Minds may differ as to the significance of such a period of custody. Doing the best I can, I assess the plaintiff's compensatory damages in the sum of $2,500. This is not a case in which aggravated damages or exemplary damages ought be awarded. There is nothing that Senior Constable Barnier or any other member of the Grafton Police did that in any way aggravates the damages. The damages arise because of inaction on the part of the police because they were involved with other activities. There is no particular conduct of any member of the police force to be condemned or which the Court should reprimand because the incurring of the damages was caused by a very common problem in our community, a lack of resources of Government to remedy mischief. 166 In my view, interest should run on that sum from 1 May 2011. Commencing on 1 May 2011, the interest rate was 8.75%. That remained the interest rate until 31 December 2011. The interest rate from 1 January 2012 to 30 June 2012 was 8.25%. The interest rate from 1 July 2012 to 31 December 2012 was 7.5%. The interest rate from 1 January 2013 to 30 June 2013 was 7% and the interest rate from 1 July 2013 to today's date is 6.75%. Counsel will kindly work out the interest while I have a rest. 167 Counsel agree that interest on that amount at the rates prescribed under the rules from 1 May 2011 to date is the sum of $485.32. For those reasons, I give verdict and judgment for the plaintiff against the defendant for $2,985.32. [SUBMISSIONS ON COSTS] 168HIS HONOUR: In the exercise of my discretion, I order the defendant to pay one-third of the plaintiff's costs.

Amendments 05 February 2014 - Stylised amendments only. Amended paragraphs: Titles. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 February 2014