Wang v State of NSW - [2018] NSWDC 375 - NSWDC 2016 case summary — Zoe

NSWNSWDC

Wang v State of NSW

[2018] NSWDC 375

District Court of NSW|2016-08-26

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At a glance

Source facts

Court

District Court of NSW

Decision date

2016-08-26

Catchwords

TORTS - intentional torts - police officers - alleged wrongful arrest, assault, battery, wrongful imprisonment following arrest pursuant to a warrant - allegation of wrongful arrest not pressed
(2003) 58 NSWLR 269 Ruddock v Taylor [2005] HCA 48

Source

Original judgment source is linked above.

Catchwords

TORTS - intentional torts - police officers - alleged wrongful arrest, assault, battery, wrongful imprisonment following arrest pursuant to a warrant - allegation of wrongful arrest not pressed(2003) 58 NSWLR 269 Ruddock v Taylor [2005] HCA 48

Judgment (56 paragraphs)

[1]

Table of Contents Factual background and nature of case [1] - [9] Trial overview [10] Issues [11] - [14] Chronological background [15] - [16] Warrant ordering the arrest of the plaintiff [17] - [18] Evidence overview [19] - [21] Witness testimony and related credit impressions [22] - [163] The plaintiff [23] - [75] Ms Wendy Wang [76] - [79] Ms Bao Feng Guo [80] - [84] Senior Constable Kachoyan [85] - [89] Senior Constable Collis [90] Senior Constable Zietsch [91] - [92] Acting Sergeant Puglisi [93] Senior Constable Westwood [94] Leading Senior Constable Leahy [95] - [103] Senior Constable Wild [104] - [122] Senior Constable Gergie [123] - [147] Sergeant Tighe [148] - [163] Medical and allied evidence [164] - [216] General practitioner [168] - [171] Psychologist [172] - [174] Psychiatrists [175] - [192] Cardiologists [193] - [213] Treatment of plaintiff's elevated blood pressure during the trial [214] - [215] Legislation [217] - [218] Applicable legal principles [219] - [223] Issue 1 - Plaintiff's facility for communicating in English [224] - [232] Issue 2 - Alleged wrongful arrest, assault and battery [233] - [242] Issue 3 - Timelines of the plaintiff's presentation to the Court [243] - [290] Issue 4 - Wrongful imprisonment [291] - [299] Issue 5 - Cause of plaintiff's adverse health events [300] - [304] Issue 6 - Assessment of damages [305] - [336] Alleged assault and battery [306] Wrongful imprisonment, including aggravated damages [307] - [325] Claim for exemplary damages [326] - [329] Future out-of-pocket expenses [330] - [332] Past out-of-pocket expenses [333] Interest [334] - [335] Summary of damages assessment [336] Disposition [337] Costs [338] Orders [339]

[2]

Factual background and nature of case

At about 11.40am on Friday 2 August 2013 the plaintiff, Mr Jia Nong Wang, then aged 52 years, a naturalised Australian citizen originally from China, was arrested by two police officers at his home in Beecroft and taken to Ryde Police Station.
At that time those officers executed a warrant that had been issued in the Local Court on 24 July 2013 requiring that the plaintiff be arrested and brought before the Court in relation to an alleged incident of violence between him and a Mr Brandon Chung Lee at the premises of the Consumer, Trader and Tenancy Tribunal of New South Wales ("CTTT") on 9 May 2013.
The New South Wales Police Force Event Report numbered E51377612 described an alleged attempt by "2 Asian gangsters" threatening Mr Lee and attempting to grab his bag: Exhibit "J". The warrant ordering the arrest of the plaintiff emanated from those underlying events. These proceedings do not require that those underlying allegations be examined for the purpose of making findings of fact.
The sole purpose of the warrant requiring that the plaintiff be arrested and brought before the Court was so that an apprehended violence order ("AVO") could be served on him and a court date fixed to determine that matter: Exhibit "12", p 77. The arrest warrant was obtained in light of some earlier difficulties experienced by police officers in locating and serving the plaintiff with those papers.
The plaintiff, who had no prior criminal record, and no prior instances of arrest, is very much aggrieved by the events of his arrest, and claims that after his arrest there was an unreasonable delay on the part of the arresting police officers in taking him before a court within a reasonable time. It was not until 6.20pm on Saturday 3 August 2013, a little over 30 hours after his arrest, that he was released after being presented to the Court, at a hearing conducted by an audio-visual link ("AVL") from Correctional facilities at the Surry Hills Police Centre to the Parramatta Bail Court: Exhibit "12", p 87.
The delay in bringing the plaintiff before the Court was in circumstances where the senior arresting police officer fairly conceded that beforehand, he had not really paid attention to the wording of the warrant which was in a standard form, a material part of which commanded the arresting police to bring the plaintiff before a court: T417.49.
This occurred in circumstances where, over the course of several hours of continued custody of the plaintiff, the Custody Manager at Ryde Police Station had, at approximately 15 to 30 minute intervals, been enquiring of the arresting officer as to processing the requirements of the warrant: T529.36 - T530.24. This also occurred in circumstances where all officers concerned knew that the plaintiff needed to be presented to a court as soon as was reasonably practicable.
The Custody Manager ultimately conceded that after 12.38pm on the day in question, there was no good reason for failing to bring the plaintiff before the Court: T527.31. This also occurred in circumstances where there had been no proper plan, or reasonably practicable plan, to bring the plaintiff before the Court: T538.19 - T538.22.
The plaintiff brings this action for damages for the alleged intentional torts of assault, battery and wrongful imprisonment against the defendant, the State of New South Wales, pursuant to s 5 of the Crown Proceedings Act 1988, and s 8 of the Law Reform (Vicarious Liability) Act 1983. The Law Enforcement (Powers and Responsibilities) Act 2002 ("LEPRA") applies to these proceedings.

[4]

Issues

The oral evidence in this case gave rise to numerous factual disputes between the plaintiff and the defendant. Amongst those matters was the extent of the plaintiff's claim of limited ability to understand and communicate in the English language. He gave almost all of his evidence with the assistance of a Mandarin interpreter.
Each of the parties provided different formulations of the issues calling for decision: MFI "2" (Plaintiff); MFI "3" (Defendant). The array of contested factual issues in this case centred around the interactions between the plaintiff and the arresting police officers between the time of their entry onto his premises in Beecroft up until the time when he was transferred into the custody of Corrective Services officers at the Surry Hills Police Centre facility. The plaintiff claimed he had to endure much indignity whilst he remained in custody.
Where relevant, those disputed matters of fact will be considered and resolved in the context of the consideration of the central issues calling for decision in the case. Following my review of the pleadings, the evidence and the submissions of the parties, I consider that the central issues arising for determination can be distilled as follows: 1. The plaintiff's ability to communicate in the English language and the extent and the adequacy of communications that occurred between the arresting police officers and the plaintiff in the course of his arrest and detention. My findings on this issue appear between paragraphs [224] to [232] of these reasons; 2. The circumstances of the arrest of the plaintiff and whether this amounted to a wrongful arrest, or an unlawful assault and battery upon him. In final submissions the plaintiff no longer pressed the claim of wrongful arrest. My findings on this issue of whether there had been an assault or a battery appear between paragraphs [233] to [242] of these reasons; 3. The timeliness of the plaintiff being presented before the Court pursuant to the terms of the warrant under which he had been arrested, and the reasons for him not being released before about 6.15pm on Saturday, 3 August 2013, some 30 hours and 30 minutes after his arrest. My findings on this issue appear between paragraphs [243] to [290] of these reasons; 4. Whether the detention of the plaintiff from some time after his arrest and until he was ultimately released pursuant to a court order amounted to wrongful imprisonment. My findings on this issue appear between paragraphs [291] to [299] of these reasons; 5. Whether significant aspects of the plaintiff's adverse health issues are causally related to his detention such that these matters should be reflected in an assessment of damages in his favour. My findings on this issue appear between paragraphs [300] to [303] of these reasons; 6. The assessment of the plaintiff's entitlement to damages. My findings on this issue appear between paragraphs [304] to [336] of these reasons.
The plaintiff bears the onus of proof on all of the positive assertions he makes. The defendant bears the evidential burden for the justification of the plaintiff's detention until the time of his release.

[5]

Chronological background

The essential chronological background to these proceedings is as follows: 1. 2010 to 2015 - Plaintiff's driver's licence, which remained valid to 22 June 2015, disclosed his Beecroft address: Exhibit "A", p 1; 2. 9 May 2013 - A disputed allegation was made of violence having occurred at the CTTT premises resulting in the plaintiff leaving the premises, followed by the attendance of police to investigate the circumstances. As a result of a complaint made by Mr Lee, the investigating police sought an AVO against the plaintiff; 3. 10 May 2013 - A Provisional Ex Parte Apprehended Personal Violence Order was issued naming the plaintiff as defendant: Exhibit "A", p 2. Following several unsuccessful attempts at service, that AVO remained unserved until the plaintiff was arrested; 4. 19 May 2013 - Service of the AVO at plaintiff's Beecroft address was unsuccessfully attempted: Exhibit "A", pp 14 - 15; 5. 22 May 2013 - An AVO hearing was adjourned to 12 June 2013 for service to be effected on plaintiff: Exhibit "A", p 13; p 24; 6. 4 June 2013 - Service of the AVO at plaintiff's Beecroft address was unsuccessfully attempted: Exhibit "A", pp 16 - 17; 7. 7 June 2013 - Service of the AVO at plaintiff's Beecroft address was unsuccessfully attempted: Exhibit "A", pp 18 - 19; 8. 12 June 2013 - Service of the AVO at plaintiff's Beecroft address was unsuccessfully attempted: Exhibit "A", p 21; 9. 12 June 2013 - An AVO hearing was adjourned to 3 July 2013 for service to be effected on plaintiff: Exhibit "A", p 25; 10. 3 July 2013 - An AVO hearing was adjourned to 24 July 2013 for service to be effected on plaintiff: Exhibit "A", p 26; 11. 24 July 2013 - The Local Court issued a warrant for the arrest of the plaintiff: Exhibit "A", p 23; p 28; Exhibit "21"; 12. 2 August 2013 - The arrest of the plaintiff was effected at 11.40am (Friday); 13. 3 August 2013 - Local Court appearance of the plaintiff at which time his release was ordered. This occurred at 6.20pm (Saturday); 14. 20 January 2014 - A Local Court hearing of charge against the plaintiff of common assault dismissed that charge: Exhibit "A", pp 55 - 137; 15. 28 August 2014 - The present proceedings were filed in the District Court.
The events of 2 and 3 August 2013, as described by the plaintiff, police witnesses, and as described in the police Custody Management Record, require close analysis in terms of whether the plaintiff was wrongfully detained and imprisoned.

[12]

Arrest circumstances

The plaintiff claimed that on the morning of 2 August 2013, after having driven his children to school and after returning home for his breakfast before going to work, he heard a loud breaking sound from the vicinity of his front door, and then he heard some footsteps outside his house. He went to investigate those events: T17.40 - T17.45. The plaintiff claimed that in those events, a lock on one of his front gates which was key operated, had been broken, whereas the day before it was in proper working order: T19.50 - T20.25.
In that regard, he later clarified that evidence to the effect that he found the broken lock on the ground after he had been released from custody the following evening: T33.45. In these proceedings, the question of who broke the lock and in what circumstances receded into a peripheral question that is not necessary to decide. It is difficult to attribute the lock breakage to the actions of the police officers given their denials on that matter, and given the state of the evidence generally on that matter. It is not necessary to decide that question.
The plaintiff said that as he went to check on the sound that he had heard, he observed that "they already entered my room" through the front door: T20.34. He was referring to two police officers, namely, Senior Constable Leahy and Senior Constable Wild. He claimed they had smashed his wire screen door with their fists, and he could see through a glass door panel that they were trying to gain entry to his house. They were wearing police uniforms and their police appointments. He said he became very scared at that time: T21.5 - T21.28.
The plaintiff said that in those circumstances, he was scared and very nervous. The police officers had asked him to open the front door, which he did, and he said they then entered. He said "they pushed me against the wall": T21.40 - T22.3. He later described having been pushed against the wall by one policeman: T22.25 - T22.47. He then went on to describe them, meaning the two policemen, as using "both their hands" to forcefully push his shoulders against the wall: T22.50 - T23.1.
The plaintiff then clarified those descriptions to state that only one policeman had pushed him against the wall while the other policeman started to search the room: T23.6. He said the policeman who had pushed his shoulders against the wall did so in a very fast manoeuvre whilst using both hands in an open position. He then proceeded to search the plaintiff's pockets and carry out a pat-down body search of him: T23.25 - T24.13.
The plaintiff said that whilst he was being held against the wall, one of the policemen went into the bedrooms of the house and carried out a quick search without his permission: T25.14; T25.27. The plaintiff said he then produced his driver's licence to the police officers on their request. The plaintiff said that one of the police officers removed his belt, and he was then told to go with the police officers whilst he was holding up his pants which were then beltless: T24.19 - T25.2.
The plaintiff claimed that in those circumstances he was repeatedly asking those police officers, in English, "Why? Why?" and he was also asking to "Call friend. Call friend." He stated that he was not given any response to those pleas: T25.40 - T25.43.
The plaintiff said that his mobile telephone, which was on the table where he was trying to use it to make a call, was confiscated by the police officers, and he said he was then shoved from behind through the front gates of his property and he was then shoved into the police vehicle by both police officers: T26.2 - T26.44. The plaintiff said he had refused to go as he wanted to make a telephone call. He said that he was then shoved powerfully from behind and down some steps, and then along a pathway to his front gate: T27.13 - T27.44.
The plaintiff then said that the police officers tried to shove him into the police vehicle but he refused to go in, so they then pushed from the region of his buttocks, and he was pushed into the caged area of the police vehicle: T29.5 - T29.45. The plaintiff said that at the time of those events, he was wearing a collared shirt, but he had wanted to dress himself in a suit, but he was refused that opportunity: T30.1 - T30.19.
The plaintiff said that in the events he described, he saw that a couple, who were neighbours from across the road, had apparently observed some of the events he had described, and he found the circumstances to be a shameful experience. He said he was extremely embarrassed to have been observed in those circumstances: T30.20 - T30.42.
The plaintiff said that before being shoved into the vehicle he had been saying the words "medication, medication" to the police officers, and that he needed his medication. He said he then received a refusal in response: T31.1 - T31.25. I accept the plaintiff's evidence on that matter.

[14]

Processing of the arrest whilst at Ryde Police Station

The plaintiff claimed that at Ryde Police Station, the police officers had dragged him out of the vehicle head first. He said that this occurred by dragging him by his elbow and a shoulder to force him out of the vehicle to force him to go with them: T32.20 - T32.45. He also claimed that they then dragged him into the building: T32.46. I considered those descriptions of having been dragged as exaggerations influenced by the plaintiff's emotional state at the time.
Although the plaintiff was not wearing a watch and did not know the time of his arrival at the police station, he thinks he saw a clock and thought it was "around 2pm": T33.24. He estimated that he was at Ryde Police Station "from 11am to at least 5pm onwards": T33.48. That time estimate was plainly wrong having regard to the Custody Management Record. The plaintiff's evidence as to the events he claimed to have occurred at the police station must be viewed against the more objective and contemporaneously prepared Custody Management Record. I consider that those records are more likely to be accurate compared to the plaintiff's imprecise recollection of the events.
The plaintiff claimed that whilst he was at Ryde Police Station he was given no food or drink for some time, but he later said that just before he was taken away from the Ryde Police Station to travel to Surry Hills, he was given something to drink: T34.11.
Whilst the plaintiff was at Ryde Police Station, a Chinese interpreter had been made available to assist him by telephone. The plaintiff claimed the interpreter was not permitted to answer his questions as to why he had been arrested: T34.11; T38.25. The plaintiff said in answer to questions asked of him about drugs and illnesses, he had replied that he had hypertension: T34.49. The plaintiff said he received the assistance of an interpreter at around 2.00pm or 3.00pm: T37.20. The plaintiff's time estimate was not accurate in that regard.
At a time that was close to 3.00pm, the plaintiff said that in addition to asking the "Why? Why? Why?" questions to which he said he was not given any answers, he had been shouting out "Why?" at the top of his lungs. He was angry and he was getting anxious and worried about the fact that his 10 year old daughter was standing in a place that was dark and he had not been allowed to make a phone call to speak to his sister-in-law about picking her up from that place: T35.9 - T35.40. The plaintiff's time estimate also appears to be wrong in that regard and it would have been unlikely that his daughter would have been in darkness at 3.00pm even allowing for it being winter time.
The plaintiff gave what appeared to have been confused evidence to the effect that after he had been photographed and finger printed he had been let out of the holding cage at the police station at about 5.00pm or 6.00pm, at which time he was allowed to call his eldest daughter, for 1 minute, after which he claimed that one of the two policemen who were then present just hung up the telephone. He said that he was not permitted to continue to use the telephone anymore: T36.1 - T37.13.
There was a conflict between the plaintiff's recollection of the number, timing and duration of the calls he made on the day in question, and his telephone records. Given my assessment of what should be seen to be the pivotal issues calling for decision in this case, I consider it is unnecessary to seek to resolve that level of minutiae: T198; T212 - T214.

[16]

Overnight stay in cells at Surry Hills

On arrival at Surry Hills the plaintiff said he was walked around within the premises and then after a while he was placed in a cell, and given two blankets. At that time he came to realise he would be spending the night there: T38.35 - T39.5. The cell already had another occupant: T39.29. He was not given a meal until the next morning: T40.5.
The plaintiff said that the shared cell did not have a bed for him. He said that the original occupant had been shoving him about and had forced him to sleep on the floor of the cell: T45.18. He did not know whether he was above or below ground level: T39.47. Whilst the plaintiff was having his breakfast, another two persons were brought into the cell, and locked in with him: T44.49. One of the persons brought into the plaintiff's cell was exhibiting abnormal behaviour: T45.37. That person took part of the plaintiff's breakfast from him: T45.12.
Whilst in the cell at Surry Hills the plaintiff said he became concerned about his blood pressure and tried to communicate with his gaolers via the intercom to tell them he needed water and medicine. His concern in that regard was against a background that his father had died from a lack of appropriate medicine and he was experiencing what he described as a terrible headache. He was also very anxious about his daughters: T46. He said he only had stinky water in his cell: T46.17.
The plaintiff said that his repeated and numerous attempts to obtain assistance via the cell intercom went unheeded. He said that he banged his head against the wall many times, and felt like killing himself: T47.24. He said his headache was excruciating and agonising, and he thought that banging his head against the wall might have been a quick way out for him: T47.32. He estimated he had banged his head against the metal door and against the wall "no less than 50 times": T47.36.
The plaintiff said that whilst he was in the cell with those other occupants, he was served a "moderate" lunch. He said he ate a sandwich but the rest of his meal was taken away from him by the other occupant who had previously taken part of his breakfast. He said he was threatened with being hit if he did not give up his meal and his blankets: T49.

[17]

Court appearance by AVL and subsequent release from custody

The plaintiff stated that it was not until about 2.00pm on the afternoon of Saturday 3 August 2013, whilst the plaintiff was located in another cell area with a CCTV (AVL) connection and a television monitor on the wall, that an interpreter had told him why he had been arrested and held in custody: T47.38 - T48.1.
The custody records show that whilst the plaintiff was in the AVL cell there appears to have been some confusion as to whether he was Korean or spoke Korean, or needed a Korean interpreter: Exhibit "12", pp 67 - 68; T50.35. He claims that no-one had asked him about his health, medical history or his family situation, or his language proficiency including in the Korean language: T50 - T51.
The plaintiff said that if someone had asked him questions along those lines in the English language he would not have understood what was being said. He said he would have asked for a Chinese interpreter in such circumstances: T52.34 - T52.42. The Corrective Services custody records clearly state that the plaintiff had limited English and could not understand any questions: Exhibit "12", p 72.
The plaintiff was in the AVL room at the Surry Hills centre for about 30 minutes: T54.33. The transcript of those short proceedings did not specify a commencement or a completion time: Exhibit "12", pp 77 - 79. He was able to understand the presiding Judicial Officer because by that time an appropriate interpreter had been provided to assist him: T54. He said he understood from the interpreter, obviously mistakenly, that he had been arrested for contempt of court: T55.7. In these reasons there is no need to delve further into the accuracy of his belief to that effect.
After the plaintiff's court appearance by AVL, he was taken back to his cell where other prisoners were housed as earlier described: T57.10. I infer that this delay occurred pending the formalities that needed to be completed concerning the order for the plaintiff to be released. It seems that there were at least 20 bail applications that day. The record is poorly photocopied. It seems more probable than not that there were many more bail cases to be dealt with in the AVL court that day, which could explain the plaintiff's delayed release time: Exhibit "12", p 76 and also the "Gain" and "Lost to Bail" tally sheet forming part of Exhibit "C".
The plaintiff said, mistakenly, that he was allowed out of his cell at around 7.00pm or 8.00pm on the Saturday evening: T53.5. The plaintiff said that he was released from custody some 4 to 5 hours after his AVL court appearance: T62.24. He later adjusted that evidence from 4 to 5 hours to 3 hours after his AVL appearance: T63.35. The Corrective Services record shows the plaintiff was "out" at 6.15pm: Exhibit "12", p 75. He said he had no money and had to be assisted with train travel vouchers to go to his home: T62 - T63. He said he had cried a lot on the way home: T64.25.
In the plaintiff's court appearance by AVL on 3 August 2013, he was ordered to attend Court on 7 August 2013 regarding the AVO that had been issued against him: T61. He said that ultimately, he engaged a lawyer and was told "they [got] the wrong guy" and he did not need to go to court: T62.5 - T62.10. The transcript of those dismissed proceedings was part of the evidence in these proceedings: Exhibit "A", pp 55 - 136. In these reasons, there is no need to further explore or consider that aspect of the evidence.

[18]

Plaintiff's claim of subsequent and related adverse health issues

The plaintiff said that he often recalled the events of his imprisonment over the course of those two days. He said that he can never take his mind off them, and as a consequence, he is still seeing a psychiatrist and a psychologist: T64.30 - T65.30. He said he was under a lot of psychological stress from the very traumatic experience of his imprisonment, and he feels he will never forget the events in question for the rest of his life: T67.45.
The plaintiff said he now has sleeping difficulties, and he gets agitated and scared when he sees police on television, and he has similar reactions when he has to travel past the Ryde Police Station or when he hears sirens, and as a result he has low mood and he has nightmares: T68.1 - T68.41.
The plaintiff said that his post-imprisonment problems had been correctly summarised by an examining psychiatrist as suffering irritability, frustration, anger, increased blood pressure, sleeping problems, fatigue, headaches, tension, preoccupying thoughts, depression, concentration and memory problems: T69.10 - T69.19. He said those problems have not changed which is why he still needs to see a psychiatrist. He also said he often cries for no reason, he lacks energy, becomes short of breath and feels that his heart is not able to cope: T69.20 - T69.47.
On a social level, the plaintiff said that he is no longer able to perform and sing songs or enjoy Chinese New Year festivities, and he feels his future is hopeless: T70. At times he has nihilistic thoughts, such as: "Where should I cut my throat?": T71.7; T71.29. The plaintiff stated that he had been seeing a psychologist on the recommendation of his general practitioner and he agreed he had told her he felt that his life was meaningless: T79.16.
The plaintiff said he feels on edge and alert for something to happen, describing what I infer to be a state of hypervigilance: T71.40. He said he has become socially withdrawn (T72.16), he feels shame about what has happened to him (T72.37), and in an account he gave to a psychologist, he said that at the time of the events, he thought that he could be shot, and this has caused him to have an intense fear of police: T72.40 - T72.46. He described his state of humiliation, intense fear and horror over the events: T73.25. He described having resumed smoking after his release from custody: T73.45.
The plaintiff said that he and his wife now live together as a separated couple in the same house. The implication from his evidence is that she returned to the house because he was so miserable: T74.24. The fact of the marital separation had been kept from his daughters until Wendy Wang gave evidence and was cross-examined: T74.28.
The plaintiff's marital situation was explored in the evidence on a damages issue. He had agreed that his pre-arrest marital situation was that he and his wife were separated, and he had gone to great lengths to conceal this from his children. He agreed that situation had caused severe anguish, stress and distress: T176.40 - T177.15. He later sought to downplay the significance of that answer: T178.40.
The plaintiff had his attention drawn to the observation of Dr Phillip Brown, a consultant psychiatrist who had been engaged to examine him on behalf of the defendant in February 2015. Dr Brown had expressed the view that although he did not doubt the plaintiff's stated symptoms, he nevertheless felt that the plaintiff presented in an exaggerated manner and was making more of his problems than was really the case: T76.20 - T76.31. I will return to a consideration of those remarks when analysing the medical evidence. The plaintiff said Dr Brown had not expressed or exposed that view to him for his comment.

[19]

Plaintiff's adverse health incident during the trial

The plaintiff was cross-examined at length. On the second day of the trial the plaintiff complained of having "great headaches": T48.22. He was offered a break but he chose to continue with his evidence instead: T48.32.
The need for the plaintiff to give evidence in his case was plainly a stressful ordeal for him. He was at times very upset, he needed occasional breaks from giving evidence, and at times he cried. The transcript notes those various situations: T29.24 - T29.30; T40.17; T48.22; T48.30 - T48.35; T53.10; T53.17; T53.22; T94.28; T166.39; T178.18; T184.39 - T185.4; T204.38; T218.33; T225.4 - T225.5.
The plaintiff stated that although he has had hypertension since 2003, his blood pressure has become raised since his arrest, and the level of his elevated blood pressure is influenced by his emotional state: T180.40; T183.10.
On the fourth day of the trial, the plaintiff's evidence was interrupted because he needed medical attention for problems concerning his high blood pressure. From a medical perspective he was considered to be well enough to continue with his evidence on the following day: T204.10 - T205.18. His evidence was completed on the fifth day of the trial: T235.35.
On my evaluation of the plaintiff's evidence, for the reasons that will be identified, on the question of whether or not there was an unlawful assault or battery, I considered his evidence was less reliable than that of the police witnesses on key matters in dispute. I have preferred the evidence of Senior Constable Leahy and Senior Constable Wild as being more reliable than that of the plaintiff on such matters, except as to his request for access to his medication. I have accepted his evidence on that matter.
In reviewing the content of the plaintiff's evidence, I considered that his emotional response to the circumstances of his arrest has, understandably, influenced, magnified and distorted his factual perceptions of those events. This was evident from the several episodes of upset that the plaintiff displayed during his evidence when certain topics were raised.

[22]

Senior Constable Kachoyan

The evidence of Senior Constable Kachoyan was to the effect that he was the police officer who had taken a complaint from Mr Lee concerning an alleged assault upon him by the plaintiff at the CTTT premises on the morning of 9 May 2013: T241 - T243. The plaintiff and Mr Lee had been there because of a commercial dispute.
Senior Constable Kachoyan's evidence was largely peripheral. The essential points of his evidence was his attendance in response to the incident involving the plaintiff and Mr Lee (T292 - T293), the consequential taking of some statements and steps towards the issuing of a court attendance notice and interim orders relating to apprehended personal violence (T295 - T296) directed to the plaintiff, which ultimately led to his arrest pursuant to a warrant issued in accordance with s 101 of LEPRA (T240.27), and explaining some police records searches and unsuccessful attempts at service of notices on the plaintiff at an address identified in the police database: T248 - T254; T293.
On 4 June 2013, Senior Constable Kachoyan became aware of the plaintiff's Beecroft address: T297.6. He was asked many questions in cross-examination on factual and procedural matters that were not within his knowledge or within the ambit of his duties. However, he explained the general context of some of those matters arising from police records: T298 - T319. He had no responsibility for the events concerning the plaintiff's arrest: T302.50. He had been responsible for obtaining a statement from Mr Lee which formed the basis for the issue of the ex-parte order that led to the arrest of the plaintiff: T307.44.
The underlying complaint about the plaintiff as made by Mr Lee, and as recorded by Senior Constable Kachoyan, was that there had been a robbery, which Senior Constable Kachoyan acknowledged was an incorrect factual record: T314.41 - T314.50. He explained the scope for the occurrence of errors of that kind to occur in entries made in the police COPS records system, and how such descriptions could influence the level of police responses to call-outs relating to such matters: T315.
No issues of credit or reliability of testimony emerged from the evidence of Senior Constable Kachoyan.

[27]

Leading Senior Constable Leahy

Leading Senior Constable Leahy was the police officer tasked with executing the warrant that had been lawfully issued for the arrest of the plaintiff. The arrest took place at the plaintiff's Beecroft address after some unsuccessful attempts at contacting the plaintiff at a stated address in Marsfield: T374.28 - T375.3. Senior Constable Leahy's evidence was the subject of a series of challenges on key matters of fact.
The range of topics that comprised the evidence of Senior Constable Leahy included: him being tasked to execute the warrant to arrest the plaintiff (T374.28); locating the plaintiff outside the front of his home at the time of the arrest (T375.27, T399.40); his contemporaneous conversations with the plaintiff in English at the time of the arrest (T390.49 - T391.9, T399.49, T414.45, T415.8, T432); his conversation with the plaintiff concerning his need to make some after school arrangements for his children to be picked up (T375.48, T391); the processing of the plaintiff's arrest and events occurring whilst in police custody (T376 - T379); whether the plaintiff's house was searched at the time of his arrest (T401.30); the manner in which the plaintiff was handled and searched in the course of his arrest (T402.11); whether the plaintiff would have had an uncomfortable ride in the caged police vehicle in the journey to the police station (T401.4); the arrangements made for an interpreter (T412.42; T413.40 - T413.50); whether at the time of the arrest the plaintiff was compliant with the process (T393.39, T422.35, T424.8, T425.28); his responsibility as an officer executing the arrest warrant (T386.40, T397.24, T397.43, T403.10 - T403.30, T404.43, T405 - T408, T418.4, T433.40, T435.49, T437.12); and the escorting of the plaintiff into Corrective Services custody at Surry Hills after he had been refused bail (T387.36 - T390.39).
In cross-examination, Senior Constable Leahy was asked to address a number of propositions that were contrary to the evidence he had given in his evidence in chief: T425.49 - T431.47: Browne v Dunn (1893) 6 R 67. Those contrary propositions, which were all denied by Senior Constable Leahy, were as follows: 1. The plaintiff had been inside his house at the time when the police officers entered the property: T426.1 - T426.5; 2. Either Senior Constable Leahy or Senior Constable Wild had broken the lock on the gate to gain access to the property: T426.15; T428.48; 3. The plaintiff had been pushed against a wall by one of the police officers when they entered his premises: T426.37; 4. The plaintiff had been assaulted at the time he was body searched: T427.5 - T427.21; 5. One of the police officers had undertaken an unauthorised search of the plaintiff's house: T427.48 - T428.9; 6. During the process of arrest the plaintiff was repeatedly saying "Why? Why? Why?" and had made it clear that he did not understand what was going on: T428.10 - T428.16; 7. The plaintiff's mobile telephone had been grabbed and taken from a table in the house: T428.22; 8. The plaintiff was being hurried by the police officers, and was pushed down the steps of the house and along the pathway at a time when he was making it clear by his physical movements that he did not want to go as directed: T428.35 - T428.46; 9. The plaintiff was pushed out of his front gate: T429.3; 10. At some stage the plaintiff was pushed in the area of his buttocks: T429.6; 11. The plaintiff had said he suffered from hypertension and needed to take his medication on a regular basis: T429.8 - T429.15; 12. The police vehicle conveying the plaintiff to Ryde Police Station was being driven deliberately at speed over speed humps: T429.19; 13. He had made fun of the plaintiff as he was being driven to the police station: T429.40; 14. He had "made absolutely no attempt" to ensure the plaintiff was brought before a court "as soon as reasonably possible": T429.43 - T430.3; T430.41 - T431.11; 15. The plaintiff was acting in a way which indicated he was frightened of the police: T431.25 - T431.31; 16. It was evident throughout from what the plaintiff had been saying that he did not understand what was going on: T431.33 - T431.43.
I accept those denials, except as to the plaintiff's statement as to his need for blood pressure medication. The question of Senior Constable Leahy's actions in ensuring the plaintiff was brought before the Court requires a more detailed analysis.
A question was asked of Senior Constable Leahy in cross-examination as follows concerning the plaintiff's response to a request that he identified himself before the arrest: "Q. He said, "I'm Mr Jia Wang", and you said, "Well we're two police officers and we're here to arrest you"? A. Yes." [T427.38 - T427.40]
That question, which I infer was asked on the plaintiff's instructions, and framed as a quotation, plainly suggests that, in the English language, the plaintiff knew and understood what was going on at the time of his arrest.
Senior Constable Leahy made a number of fair concessions in his evidence, as follows: 1. He conceded that at the time of the arrest, he did not inform the plaintiff that he was to be brought before a court: T415.40. It appears that at that time he thought there was no obligation at that time to inform the plaintiff that this was to occur, and that it was sufficient compliance that he informed the plaintiff he was under arrest pursuant to a warrant: T415.32; 2. He conceded that he thought the plaintiff had been in police custody on a previous occasion, and he fairly conceded that his impression in that regard was incorrect: T416.10 - T416.34. In this case, nothing turns on his erroneous assumption other than as a possible explanation for an investigatory delay whilst the plaintiff was held at Ryde Police Station; 3. He said that once the plaintiff had been seen by Sergeant Tighe, the bail Sergeant, and had been refused bail, he did not consider it his duty to place the plaintiff before a court: T417.1 - T417.39. He fairly conceded that he had not paid specific attention to the wording of the warrant "I command you to apprehend and bring the defendant before the court": T417.49. He also conceded that once the plaintiff had been refused bail by the Bail Sergeant, he did not consider himself under a revived obligation to bring the plaintiff before a court: T418.4; 4. He also conceded he could not recall how he had entered the plaintiff's property via the gate, or who had opened the gate: T419.3. In my view, nothing turns on that divergence between the evidence of the plaintiff and the two police officers. However, Senior Constable Leahy was adamant that the plaintiff was standing at the front of the property when they entered to arrest him: T419.10 - T419.15; 5. He also fairly conceded that, in hindsight, he could have explained the process of arrest pursuant to the warrant to the plaintiff more definitely: T432.35. In my view, nothing of substance turns on that hindsight concession because Senior Constable Leahy had no option but to arrest the plaintiff in accordance with the command of the warrant.
Senior Constable Leahy considered that the plaintiff was so compliant with the process of arrest and walking to the police vehicle that he permitted the plaintiff to have access to his mobile telephone in that process to arrange for child pick-up. It appears from the context of that evidence that the plaintiff was permitted to use his mobile telephone, both when walking to the police vehicle and also whilst in the back of the caged police vehicle: T421.38 - T421.45.
In my view, despite the challenges made to the evidence of Leading Senior Constable Leahy, no substantive issues of credit or reliability of testimony emerged from his evidence. That said, consideration of the timeliness of his actions in processing the arrest so that the plaintiff could be presented before a court will form part of a separate analysis.

[28]

Senior Constable Wild

At the time of the arrest of the plaintiff, Senior Constable Wild was a general duties constable assisting Senior Constable Leahy. At that time, both he and Senior Constable Leahy had been speaking with the plaintiff: T441.13. His evidence was also the subject of challenges concerning key matters of fact.
Whilst Senior Constable Wild could not recall precisely what was said when conversing with the plaintiff, apart from the explanation of the arrest pursuant to a warrant (T441.50), he was clear that the conversation with the plaintiff and the plaintiff's acknowledgment of that conversation, was in the English language: T442.35 - T442.45. He said the plaintiff was able to respond in English, and was able to ask questions. He said the plaintiff's English "was fine": T443.6. Senior Constable Wild confirmed that he had been able to readily communicate with the plaintiff in terms good enough not to require an interpreter: T451.10 - T451.28.
Senior Constable Wild stated that the plaintiff had permitted the police officers to enter his home whilst he selected some clothes. He said he was present when the plaintiff used his mobile telephone to make a call for child pick-up arrangements: T443.10 - T443.44.
I do not regard the discrepancy between Senior Constable Leahy's evidence to the effect that the plaintiff had made that call from the police vehicle, and Senior Constable Wild's evidence to the effect that the call had been made from the front of the plaintiff's house as being significant, given that neither officer had made formal notes in a police notebook at the time the arrest warrant was executed because there was no need to do so: T393.12 - T393.38 (Senior Constable Leahy); T449.25 - T449.36 (Senior Constable Wild).
Another area of dissimilarity in the evidence of Senior Constable Wild compared to the evidence of Senior Constable Leahy was that the former described the plaintiff as being unhappy and argumentative about being seated in the pod area at the back of the police vehicle (T444.15 - T444.30), whereas, as I have already observed at paragraph [96] above, Senior Constable Leahy described the plaintiff as having been very compliant with the process. It appears to have been conceded that the plaintiff was both respectful and compliant throughout the process: T176.35.
I do not regard the difference in the cited evidence as significant in terms of reliability, credit or conflict because in that context, Senior Constable Wild was referring to the placement of the plaintiff in the pod of the police vehicle, and he was not referring to the plaintiff having an otherwise non-compliant attitude. Senior Constable Wild also said the plaintiff had been compliant: T451.1. Senior Constable Wild was cross-examined on a number of topics. Those matters included whether or not he had communicated with Senior Constable Leahy about whether he had impermissibly discussed the detail of his evidence: T446 - T447. I accept his denials in that regard.
Other topics canvassed in the cross-examination of Senior Constable Wild included his recollection of having accessed the plaintiff's property by opening a latch on a front gate (T450.25), and whether the plaintiff was near the gate or near his front door at the time of the arrest: T450.41 - T450.47. He later qualified that evidence to say his only recollection of speaking to the plaintiff was whilst he was inside the house: T451.35.
Senior Constable Wild said the only protest the plaintiff had made was having been placed into the back of the vehicle: T451.7. It seems that resistance, such as it was, was relatively short-lived.
There was a divergence of evidence as to whether the plaintiff had answered the door bell at his premises, or whether he was at the doorway when the police officers arrived: T452.9 - T452.39. Absent the availability of police notebook entries on those matters in this case, I do not regard that divergence in the evidence as being indicative of a significant credit issue since the officers said they were not required to note such matters as part of the process of executing this particular arrest warrant.
Senior Constable Wild described the plaintiff's initial reaction to being arrested as emotional and confused, later becoming calm, or reasonably calm: T452.44 - T453.2. Senior Constable Wild described how the plaintiff was allowed to change into more appropriate clothes and then being walked to the police vehicle: T453 - T454. This evidence was slightly different to that which was given by the plaintiff on this topic. I consider the difference to be immaterial. It would have been unlikely that the plaintiff would have been allowed to go into the house and get changed as described if he had not been calm.
The police officers had approached the task of arrest on the basis that there was a low risk of violence: T455.50. Senior Constable Wild could not recall whether he had been made aware of an entry in police records suggesting that the plaintiff was a "Chinese gangster": T456.7 - T456.19.
At Ryde Police Station, as the junior officer, Senior Constable Wild did not have a conversation either with Senior Constable Leahy, Constable Gergie or Sergeant Tighe about the need to bring the plaintiff before a court after the arrest: T458.40; T459.20; T459.24. However, he acknowledged that generally speaking, persons arrested on a Friday should be brought before a court before the close of business, namely 4.00pm, on a Friday, whilst noting that courts sometimes sat on later than 4.00pm: T459.42 - T459.50. It is beyond controversy that courts attend to the consideration of custody matters as a priority.
At the time the plaintiff was being taken to Surry Hills to be kept in custody there, as the assisting junior officer Senior Constable Wild was aware that the plaintiff had not yet appeared before a court that afternoon: T460.11; T465.7; T467.47. In my view, nothing critical turns on that evidence so far as Senior Constable Wild is concerned, as he was not the primary or decision making arresting officer. In my view, his acknowledgment that it was a serious matter for an arrested person not to be brought before the Court, in context, it should not be read as an admission of a failure by him to carry out a duty pursuant to the arrest warrant: T461.48. In this case, he was the person of least influence on that question: T462.14.
A number of propositions were put to Senior Constable Wild in cross-examination as being contrary to his evidence: Browne v Dunn (1893) 6 R 67. Those matters, and Senior Constable Wild's responses, were as follows: 1. He could not recall whether the plaintiff was first spoken to either at the front gate or in his front garden, although he recalled speaking to the plaintiff at the front landing to his home: T462.25 - T462.38; 2. He could not remember either he or Senior Constable Leahy breaking a lock at the plaintiff's front gate or forcing an entry onto the property: T462.44 - T463.8; 3. He denied that upon entry to the plaintiff's house, the plaintiff was pushed into the house and against a wall, strongly, and that the plaintiff's home was then searched: T463.15 - T464.7; 4. Whilst he agreed with the proposition that initially the plaintiff did not want to have to travel in the pod of the police vehicle, and that "he didn't want to be treated like that" because that was "where criminals sat", that refusal was short-lived: T464.15.
Senior Constable Wild rejected the proposition that the plaintiff appeared frightened at the time of his arrest: T461.19. Senior Constable Wild said that according to his recollection, the plaintiff was not showing any signs of fear or of being intimidated whilst he was being arrested and processed: T466.25 - T466.35. He said he was quite satisfied the plaintiff had understood the communications that were being directed to him: T466.40. In light of the plaintiff's evidence on those matters I consider it unlikely that Senior Constable Wild's observations on those matters are correct, especially as he had no notes of those matters.
Senior Constable Wild could not recall whether the plaintiff had requested to be allowed to take his medication: T467.50. Similarly, he could not recall being told the plaintiff had a significant problem with hypertension: T468.2. He did not recall the plaintiff asking for an interpreter, and he stated that no-one had discussed the plaintiff's need for an interpreter with him: T468.1 - T468.10. I prefer the plaintiff's evidence as more likely to be accurate on those topics.
In answers to questions asked of him in cross-examination, Senior Constable Wild disagreed with the suggestion that the plaintiff had great difficulty in understanding what was being said at the time of the arrest: T463.50. That matter is not of critical importance in this case because the command of the warrant was absolute, and it did not necessarily matter whether the plaintiff understood the reasons for his arrest at that time.
Senior Constable Wild stated that once the plaintiff was in the pod of the police vehicle, he was agreeable with the process: T464.15. He disagreed with the suggestion that the plaintiff had been given a bumpy ride: T464.29.
It was suggested to Senior Constable Wild that Senior Constable Leahy had dragged the plaintiff out of the police vehicle after they had arrived at the police station: T464.36. I accept Senior Constable Wild's denial in that regard, particularly since that particular adverse treatment allegation had not been put to Senior Constable Leahy in cross-examination for his comment and he would have been present at the time of such an alleged circumstance. In any event, the police officers had to get the plaintiff into the police station for processing. There is no suggestion that the plaintiff was injured in that process.

[29]

Senior Constable Gergie

Senior Constable Gergie was the Custody Manager on duty at Ryde Police Station when the plaintiff was taken there on 2 August 2013. As such, one of his acknowledged responsibilities was to seek to have the plaintiff brought before the Court as soon as was reasonably practicable.
The record of the plaintiff's custody at that police station appears at Exhibit "A", p 39 and Exhibit "12", pp 46 - 63. Senior Constable Gergie had filled in the plaintiff's details in the custody management documentation.
I consider the contemporaneously prepared Custody Management Record to be a reliable source of relevant factual information to be utilised in determining the pivotal issues calling for decision in this case: Exhibit "12", pp 47 - 63.
Senior Constable Gergie stated that according to his records, the plaintiff had been conversing in English: T487.50; T490.42. He said the plaintiff was able to communicate in English and that he could be understood: T525.15. Later Senior Constable Gergie agreed that the plaintiff's knowledge of English was very limited and that the plaintiff spoke in broken English: T528.4 - T528.9. Overall, Senior Constable Gergie did not agree that the limitations in the plaintiff's facility with the English language did not allow the plaintiff to understand questions. He said the converse applied: T529.4. He said the plaintiff had made no health related complaints: T490.17. He also stated that the plaintiff had answered "No" to a question as to whether he was taking any medication: T490.50 - T491.13.
Senior Constable Gergie confirmed that the plaintiff arrived at the police station at 12.03pm: T493.24. The plaintiff provided him with the name of a contact person, Ms Bao Feng Guo, his sister-in-law, and Senior Constable Gergie also made arrangements to contact an interpreter: T496.45 - T497.36. He started the process of reading the plaintiff his rights pursuant to Pt 9 of LEPRA, but once he realised the plaintiff had been arrested pursuant to a warrant, he cancelled the Pt 9 process: T502.31 - T503.20. In contrast to that evidence, his Custody Management Record shows that the Pt 9 Caution had been read to the plaintiff: Exhibit "12", p 51. Significant time was taken up in that process. Senior Constable Leahy had told him there was no need for an interpreter and he then cancelled the arrangements and updated the Custody Management Record system to that effect: T504.26.
The Custody Management Record will be examined in greater detail in connection with the consideration of whether the plaintiff was wrongfully imprisoned, and if so, from what point and for what duration.
Senior Constable Gergie was questioned in his evidence-in-chief at length on how the Custody Management Record relating to the plaintiff was compiled. He had no independent recollection of the events in question. His answers were largely based on the content of the record, which absent other evidence I accept to be correct.
As Custody Manager, he acknowledged it was the role of the Custody Manager to ensure that a person in custody be seen by a Magistrate: T513.42. He was also aware that on occasion, a Magistrates Court sat on a Saturday morning to deal with persons in custody: T513.1 - T513.5.
Senior Constable Gergie said that before doing so, in this instance, he had been inquiring of Senior Constable Leahy as to whether there were pending charges, and as to what was occurring in relation to the plaintiff's detention: T514.1 - T514.6. He said that at about 2.25pm he had been advised that the warrant had been served on the plaintiff, and that he should no longer remain in police custody without being referred to a court: T514.45. In fact, the warrant had been served on the plaintiff much earlier, at 13:57 hours: Exhibit "12", p 46. That delay of 28 minutes remained unexplained.
Senior Constable Gergie stated that it generally took between half to one hour to process the required paperwork for this to occur: T515.15. He candidly acknowledged that he had neglected to update the custody transfer records to indicate the actual time that the plaintiff left police custody at Ryde Police Station: T514.50.
Senior Constable Gergie was unsure as to who made the arrangements for the custody of the plaintiff to be handed over to Corrective Services personnel after bail for the plaintiff had been refused: T516.10.
Senior Constable Gergie acknowledged that it was his obligation to bring the plaintiff before a court as soon as practicable: T517.9. He said that obligation commenced at 12.03pm subject to the required administrative arrangements being completed. He said those arrangements included a consideration of whether charges would be preferred against the plaintiff: T517.31. I do not accept that qualification, as at that time, the sole reason stated for the plaintiff's arrest was for service of the AVO to be effected: Exhibit "12", pp 62 - 63.
Senior Constable Gergie stated that on the day in question, there was some confusion over whether the plaintiff was required to answer some other charges. That confusion was based on discussions he had with Senior Constable Leahy: T523.6 - T523.28. The confusion, which was not fully explained, appeared to have been on the part of Senior Constable Leahy as he considered an investigation or a sorting out process was required. That confusion obviously caused some delay in the presentation of the plaintiff to the Court. The defendant did not call further evidence to elaborate on that confusion.
In cross-examination, Senior Constable Gergie conceded that the terms of the warrant contained no such provision about whether there were charges to be considered. He also conceded that the plaintiff should have been brought before a court shortly after he arrived at the police station: T517.42 - T518.3. He explained that he had allowed Senior Constable Leahy a reasonable amount of time to ascertain whether or not the plaintiff was required to answer other charges, and in the meantime, the plaintiff remained in lawful custody pursuant to the warrant until 2.25pm, which was the time when Senior Constable Leahy had completed those inquiries: T518.10 - T518.25.
It was at that point, namely 2.25pm, that Senior Constable Gergie acknowledged that the plaintiff should be brought before a court: T518.29. He gave the following explanation as to why the plaintiff was not taken before a court at that time: "Q. Why didn't you bring him before the Court? A. We can't just take him we have to go to Burwood Local Court for that. We have to get a have to get first, bail has to be approved by the sergeant, I don't make that Q. Well, what did he need bail for? A. Well, he has to go to a supervisor, I'm only a constable when it comes to it. My task is to look after him. He has to be make sure that they're in our custody lawfully, which he was under the warrant. Q. He was in your custody, I suggest, lawfully on the basis that he was to be brought before the Court as soon as possible, reasonably possible? A. Yes. HIS HONOUR Q. Doesn't the imperative from (sic - for) bringing him before the Court become more pressing once bail has been refused by the sergeant? A. It does. Q. What time was that? A. I don't have that record here, but it was somewhere between 2.25 and the time he was taken back. I don't have that time here. Q. Taken to Surry Hills? A. Yes. It would've been between that time. MCAULEY Q. You accept, do you, that at the time he was taken to Surry Hills, bail had been refused? A. Yes. Q. You released Mr Wang into Senior Constable Leahey's custody for the purpose of taking him to Surry Hills? A. Well, he was no longer in our custody as Q. Mr Wang was in your custody until such time he was taken away by Senior Constable Leahey? A. Yes. Q. You certainly agreed to release Mr Wang, as it were, into Senior Constable Leahey's custody? A. Yes. Q. How did you satisfy yourself at that time, sometime after three, that Mr Wang was to be taken before the Court? A. When he was bail refused. Q. But did Senior Constable Leahey say to you, I'm going to take Mr Wang before the Court? A. No. Q. Did you ask for some explanation as to why he was being taken to Surry Hills? A. The police don't take them to Surry Hills, correctives do that. Q. Who took Mr Wang to Surry Hills? A. It would've Corrective Services." [T518.31 - T529.39]
Senior Constable Gergie's latter assumption was incorrect. It was Senior Constable Leahy and Senior Constable Wild who took the plaintiff to the Surry Hills Corrective Services facility after the necessary paperwork had been completed at Ryde Police Station: T522.10 - T522.21. Senior Constable Gergie erroneously assumed that the plaintiff had to be taken to Burwood Local Court. Nothing turns on that error.
The release of the plaintiff into the care of Senior Constable Leahy and Senior Constable Wild took place at around 3.13pm. Senior Constable Gergie had anecdotally assumed, that at that time, the Court would not take "people on bail after 3pm": T522.30 - T522.41. There was no other evidence called to validate that assumption, and which seems to be a doubtful proposition. It is possible that by the expression "on bail" he meant persons who had been bail refused but that question was not explored.
Senior Constable Gergie considered that the plaintiff had to be taken to the cells at Burwood Court: T522.48. He assumed that if taken there, the plaintiff would have got to Burwood Court at around 3.30pm, or possibly later: T523.2. He did not seem to know that Burwood Local Court was not sitting on that day.
Senior Constable Gergie conceded that it was obvious to him, that by 1.00pm on the day in question, the plaintiff needed to be brought before the Court: T524.24. The delay which occurred from that time was not precisely explained.
The transcript of the cross-examination of the plaintiff at T525 has omitted to record that it was Mr McAuley who was cross-examining Senior Constable Gergie to suggest that the warrant did not authorise the plaintiff's detention for the purpose of an investigation, and that the plaintiff should have been taken before a court as soon as practicable, without allowing for any time to be taken up for an investigation: T525.32 - T526.34.
Senior Constable Gergie acknowledged that once the plaintiff was in his custody after 12.03pm, an immediate plan of action was required on his part, as Custody Manager, to bring the plaintiff before a court: T526.46 - T527.3. Senior Constable Gergie rejected the proposition that he had failed in his obligation in that regard: T527.3.
Senior Constable Gergie also rejected the proposition that by 1.00pm the plaintiff was being held unlawfully, and that after the custody management formalities had been completed after 12.38pm, there was no good reason for failing to bring the plaintiff before a court: T527.9 - T528.31. His reason for rejecting the proposition that there had been unreasonable delay was recounted in his evidence, as follows: "Q. Take your time, constable. A. Say he came in at 12.03. 12.36 is when I made the observation, the visual assessment. 12.38 is when I made the general observation and comments. After that that's when they were telling me they needed to they were investigating some other matter as well. I thought I provided them with a reasonable amount of time before releasing him. Q. I suggest to you, based on your previous answer, that at 12.38pm it was time to bring Mr Wang before the Court, do you agree or disagree? A. I disagree. Q. I suggest to you that at 12.38pm the possibility or the actuality indeed of any other investigations was no good reason for failing to bring Mr Wang before the Court? A. No, it's true. That's true." [T527.17 - T527.31]
In my assessment, that latter concession was apt to the circumstances. A question arises as to whether, as Custody Manager, Senior Constable Gergie had appropriately attended to and observed the command of the arrest warrant. The plaintiff was arrested for the purpose of being brought before a court, and not for the purpose of being held pending an investigation.
As with the evidence of Senior Constable Leahy and Senior Constable Wild, a number of propositions were put to Senior Constable Gergie in cross-examination as being contrary to his evidence: Browne v Dunn (1893) 6 R 67. Those matters and Senior Constable Gergie's responses, were as follows: 1. He rejected the proposition that, notwithstanding that he knew he was under an obligation to bring the plaintiff before a court (T529.18), he overlooked the need to do so before 3.00pm on that day, on his own assumption that this had to be done by 3.00pm: T529.40. His explanation was that by the time the last entry was made in the Custody Management Record, it was already too late to get the plaintiff to Burwood Local Court in view of "the traffic, it was peak hour and everything": T529.35. It is not clear how he came to that view, either by way of assumption or direct knowledge; 2. He conceded that one of the reasons why the plaintiff was not placed before a court before 3.00pm (this being his own conception of court sitting hours) was because Senior Constable Leahy was undertaking investigations "to try to figure out what was going on". This was in circumstances where the command of the warrant to bring the plaintiff before the Court could not have been more clearly stated. There was nothing to figure out in that regard. However, time passed. By the time the plaintiff's custody booking procedure had been completed, this having taken "an hour or so to sort it out", and after prompting Senior Constable Leahy every 15 to 30 minutes, by implication, Senior Constable Gergie was of the view that it would have been too late to get the plaintiff before a court, and therefore he was released into Senior Constable Leahy's custody to be transported to Surry Hills: T529.46 - T530.24; 3. He conceded that the plaintiff had to be brought before a court within a reasonable time, for which there were undefined limits: T530.47 - T531.7; 4. He disagreed that the plaintiff had only limited English and did not know why he was being held in custody: T531.13 - T531.19; 5. He agreed that when the plaintiff was released into the custody of Senior Constable Leahy, after bail had been refused, he knew he would not be before court until the next day: T532.1 - T532.22; T532.39 - T532.46; T533.33. That much was evident from Sergeant Tighe's completion of the forms, which nominated 3 August 2013 as the next court date: Exhibit "12", p 61; 6. He initially did not accept that the plaintiff had been arrested on a warrant where there were no charges laid against him, the process of reading him a Pt 9 caution and warning had been a complete waste of time: T534.38 - T534.42. However he then recognised that the arrest warrant did not provide for the plaintiff to be held in custody pending investigations, and he then accepted that the process of reading the plaintiff a Pt 9 Caution and warning had in fact been a waste of time: T535.7 - T535.11; 7. As the process of reading the Pt 9 caution and warning was done with the aid of an interpreter (T536.10), I infer that this understanding took some significant time; 8. He did not accept that he had deliberately kept the plaintiff in custody until 3.00pm thereby implying unlawfulness, but he accepted that he had done so consciously and for a sound reason: T536.34 - T536.44. That reasoning requires close examination; 9. He agreed that if he had been in the plaintiff's position he would have wanted to be before a court before 3.00pm: T537.3; 10. He agreed that as Custody Manager, he had a right to question a detention with a superior officer if he thought someone was being detained in circumstances that attracted his disapproval: T537.6 - T537.32; 11. He agreed that he had never told the plaintiff when he was going to be taken before a court: T538.17; 12. He agreed that before he handed the custody of the plaintiff over to Senior Constable Leahy, there had been no proper plan, or no reasonably practical plan to bring the plaintiff before a court: T538.19 - T538.22. He gave that evidence in the context that he understood that he was under an obligation, sometime after 12.00pm, to immediately make arrangements to bring the plaintiff before a Court and in the meantime, offer him a meal, which did not occur: T538.24 - T538.32; T531.20 - T531.23; 13. He conceded that the detention of the plaintiff for the purposes of an investigation was outside the terms of, and was inconsistent with the terms of, the warrant under which the plaintiff had been arrested: T538.44 - T539.4.
Senior Constable Gergie stated that the delay incurred at Ryde Police Station in getting the plaintiff before a court on the day in question did not meet with his personal approval, and he said that if he had been detained in those circumstances, he would have wanted to be in front of a court as soon as possible: T531.33 - T531.47.

[30]

Sergeant Tighe

Sergeant Tighe was the mobile supervisor whose duty included making bail determinations at various police stations within his area of responsibility: T540 - T541. To do so he had to attend personally to carry out that duty: T580.25.
His involvement with the plaintiff, on being informed of the plaintiff's presence at Ryde Police Station, under arrest, was to assess the papers and make a bail determination: T542. His determination was that since the plaintiff had been arrested pursuant to a warrant issued by a court, bail should be refused, and the plaintiff should be brought before the next available court: T543.15. He made that determination at 3.03pm: Exhibit "12", p 61. He had no particular memory of the events: T548.30.
In making that determination he relied upon the detailed facts sheet prepared by the original police officers involved in seeking the plaintiff's arrest: T543.43 - T544.11. His determination was that the plaintiff was required to attend Parramatta Local Court on Saturday 3 August 2013, at 9.00am: T545.17. That determination was made on the basis of an expectation that the plaintiff would be placed before the next available court: T545.45. He explained that in the context, next available meant as soon as was reasonably practicable: T546.11.
Sergeant Tighe said he ascertained the details of the next available court from the Custody Manager: T546.29; T549.3. He said "next available" usually meant that same day: T547.19. He had no scope to grant bail because the warrant for arrest required the plaintiff to be brought to a court: T547.50. That conclusion was undoubtedly correct.
Sergeant Tighe explained that in nominating the Court date for the plaintiff, before leaving Ryde Police Station, he would have first made inquiries of the availability of the Court to accept the plaintiff's attendance there: T557.1 - T557.7.
No evidence was called about the detail of those inquiries as made by Sergeant Tighe.
Sergeant Tighe believed the Local Court Magistrates were at a conference on the day he made his determination: T557.23. However, he was aware that there was always a bail court available to police somewhere, and if there was no capacity, according to decisions made by the courts on the question of capacity, the matter would be put over until the next day: T560.15 - T560.20. He said that in August 2013, Ryde Court did not have audio-visual facilities: T560.34.
Sergeant Tighe acknowledged the arrest warrant required the plaintiff to be brought before a court: T561.40; T565.49 - T566.2. At that time there were no charges pending against the plaintiff: T565.45; T566.30. Sergeant Tighe appreciated the important significance of a person being refused bail: T567.37. In those circumstances, it was also his duty to bring the arrested person before a court as soon as possible: T569.3.
Sergeant Tighe explained that once he had made his determination to refuse bail, it was up to the courts to determine when the next available court date could be had, which was why the plaintiff had been sent to Surry Hills: T573.45. Again, I here observe that there was no evidence called about any communications with the Court registry staff about what arrangements should be made for bringing the plaintiff before the Court, and when this should occur.
Sergeant Tighe had available to him a Local Court telephone number he could ring to obtain an allocated court date depending upon the availability of a magistrate to take the case, recognising that there was a cut-off point for this at some time of the day: T574.6; T574.40 - T574.49.
Although Sergeant Tighe again acknowledged that there was a requirement for the plaintiff to be brought before a court as soon as practicable (T577.7), he also said that it does take time to book someone into custody, make the necessary inquiries and do the necessary paperwork: T577.40. In that context, he disagreed with the proposition that the plaintiff could have been brought before a court at any time after 1.00pm on the day in question: T577.47. In light of Senior Constable Gergie's evidence to the contrary, I do not accept Sergeant Tighe's evidence on this point.
Sergeant Tighe's reasoning for that view was that it was necessary to establish certainty of identity, "go through our charge system" and then the Court has to accept the person before the person is presented at court: T578.1 - T578.6. That evidence will be examined in closer detail at a later point in these reasons.
Sergeant Tighe disagreed with the proposition put to him in cross-examination to the effect that at the time he made his bail determination, he was not entitled to do so because the plaintiff had not been charged or convicted in relation to any offence: T580.50.
His answer in that regard seemed to be at odds with his evidence that all he was acting upon was the warrant to have the plaintiff placed before a court: T581.15. In my view, that answer was also at odds with his evidence that he knew the police wanted to investigate matters relating to the plaintiff before the plaintiff was placed before a court: T581.39. That investigative course was collateral to the terms of the warrant under which the plaintiff had been arrested.
In cross-examination, Sergeant Tighe was asked to address a number of propositions that were contrary to his evidence in chief: Browne v Dunn (1893) 6 R 67. Those contrary propositions, which were denied by Sergeant Tighe, were as follows: 1. He disagreed with the proposition that he had not spoken to the plaintiff with an interpreter: T582.7. The Custody Management Record and his Bail Determination form does not support his evidence in that regard; 2. In agreeing that he saw the plaintiff before 3.00pm on the day in question, he stated that he took steps to ensure the plaintiff was brought before the next available court as soon as practicable: T582.13 - T582.26; 3. He said, when he made his bail determination, he believed there was insufficient time in the day left to place the plaintiff before a court: T583.5. The precise basis for that view was not explained; 4. Whilst agreeing that it was his obligation to act to ensure the plaintiff was brought before a court, even recognising that courts sometimes sit beyond 4.00pm, the timing of the Court appearance was not up to him, but was a matter determined by the Court: T583.25 - T583.49; 5. He denied that in making the bail determination he wasted time that could have been used to bring the plaintiff before a court: T584.25; 6. He also denied that the decision to send the plaintiff to Surry Hills guaranteed that the plaintiff would not have been brought before a court as soon as practicable: T584.20; 7. He further disagreed that he had failed in his obligation to bring the plaintiff before a court on the day in question: T584.13;
Those matters will be considered in connection with the findings required in respect of the issue of whether the plaintiff was wrongfully imprisoned, as claimed. Before addressing those issues it is necessary to review and make some findings on matters arising in the medical evidence that was tendered.

[34]

Psychiatrists

On 15 January 2015, at the request of his solicitor, the plaintiff was examined by Dr Andrew Ellis, a consultant forensic psychiatrist, who prepared a report dated 15 February 2015: Exhibit "A", pp 151 - 160.
Dr Ellis took a history from the plaintiff of him having ongoing depression, with physical manifestations of anxiety, and being frightened especially when seeing police, which brings unpleasant memories flooding back to him: Exhibit "A", pp 152 - 153.
Dr Ellis made a diagnosis of the plaintiff having a major depressive episode with concurrent post-traumatic stress disorder and mild cognitive problems due to depression. He considered that with treatment, the prognosis to be generally positive: Exhibit "A", p 158.
Dr Ellis considered the events of the plaintiff's arrest and his detention were the likely cause of the diagnosed psychiatric conditions. He concluded his report as follows: "The experience is described as frightening, with his experience of growing up in a totalitarian regime and the lack of individual rights in such a situation would have rendered him vulnerable to be more stressed. The language barrier would render him more vulnerable to being stressed. The risk to his physical health by missing medication with friends [sic for which rendered] him more vulnerable to being stressed at the time. The cultural shame of being arrested in public view would have rendered him more vulnerable to being stressed. These stresses would be risk factors for the development of a depressive disorder and post traumatic stress disorder subsequently." [Exhibit "A", p 159]
On 2 February 2015, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Phillip Brown, a consultant psychiatrist and psychologist, who prepared a report dated 5 March 2015: Exhibit "A", pp 188 - 210.
Dr Brown obtained a very detailed history which he had synthesised from what he had obtained from the plaintiff and from material that had been provided to him. That history was largely in accordance with the history obtained by Dr Rodriguez, Dr Ellis, and the plaintiff's evidence: Exhibit "A", pp 189 - 200.
In that history, Dr Brown noted the plaintiff's ongoing sense of umbrage at the allegations of assault made against him and which led to the warrant for his arrest, and he noted the plaintiff had said: "I was found innocent": Exhibit "A", p 192.
Dr Brown identified three differential diagnoses for discussion, namely, an adjustment disorder (Exhibit "A", pp 200 - 201), post-traumatic stress disorder (Exhibit "A", pp 201 - 204), and possible malingering (Exhibit "A", p 204).
Dr Brown stated that before making a diagnosis of malingering, allowance needed to be made for any predisposition of the individual to emotionally over-react or exaggerate in situations of stress: Exhibit "A", p 204. Although Dr Brown considered the plaintiff's experience of symptoms, which he had no doubt existed and which were significant, were presented in an exaggerated manner, it is of some significance that he did not make a diagnosis of malingering: Exhibit "A", p 204.
In considering the question of the reliability of the plaintiff's account, Dr Brown stated: "I did not doubt that Mr Wang has and still experiences significant psychological symptoms. However, I considered them presented in an exaggerated manner. I considered his significant psychological symptoms as consistent with how his perfectionistic psychological constitution would react to his being arrested, imprisoned and charged, and at how he described his being mistreated by police and custodial staff over his imprisonment, and particularly when he considered such was unjustified and his not knowing why due to his limited English, and when the reason(s) were made clear it was because the notices to attend court had been sent to a wrong address and that the reasons for the charges were based on lies and subsequently dismissed at court." [Exhibit "A", p 204]
The significance of the reference to the plaintiff's pre-existing perfectionistic psychological constitution is that it is not a disentitling factor for damages because, in accordance with well-settled common law principles, the defendant must take the plaintiff as he is found in that regard.
Dr Brown's ultimate diagnosis was that the plaintiff had an adjustment disorder with symptoms of situational anxiety, reactive depression and some somatoform symptoms, with considerable unresolved anger at the loss of his reputation, through no fault of his own: Exhibit "A", p 205.
Dr Brown noted the absence in the plaintiff's history of any pre-existing anxiety disorder. He excluded the diagnosis of post-traumatic stress disorder because he felt the traumatic event was not of sufficient severity to meet the diagnostic criteria for that condition: Exhibit "A", p 205. Dr Brown considered that the plaintiff's symptoms did not merit the diagnosis of a major depressive disorder. He concluded that the plaintiff's depression was of the reactive type: Exhibit "A", p 205.
In considering Dr Brown's expressed diagnosis as cited above, I have concluded that nothing turns on questions of the diagnostic or statistical labelling nomenclature in this case. Plainly, from a psychological perspective, the plaintiff has been greatly disturbed by the events and he is depressed. Dr Brown considered the plaintiff's "Arrest, Imprisonment and Charging", if considered improper, to be the cause of his psychological condition: Exhibit "A", p 206.
In expressing that view, Dr Brown referred to the plaintiff's unresolved anger at all of those three elements referred to in the preceding paragraph, together with feelings over loss of reputation and the related matters he stated, as being "the contributing cause of his psychological condition": Exhibit "A", p 206.
Here the relevant question is whether those contributing causes, or any of them, operated as material contributing causes to the plaintiff's reaction and ultimate psychological condition. That question will be addressed in connection with the damages analysis that I must undertake.
In summing up his formulation, Dr Brown expected that the plaintiff should be able to return to employment as soon as these proceedings have been determined, and generally, he should be expected to fully recover. He considered that the plaintiff would continue to have continuing psychological symptoms but these should abate once the factors that sustain his symptoms are resolved, and once his anger has been assuaged. That opinion remained uncontradicted and it was not inherently improbable.
Dr Brown recommended treatment to assist the process of the plaintiff's recovery, this being a course of 10 sessions with a psychologist, at a cost of about $2500, with additional allowances for medical and specialist sessions, and medication. This was in contrast to Dr Ellis' recommendation of 20 sessions of cognitive behavioural therapy. Dr Brown considered the plaintiff's problems might take up to a year to resolve: Exhibit "A", pp 206 - 210. That opinion was not challenged.

[35]

Cardiologists

On 14 and 27 May 2015, at the request of the plaintiff's solicitor, the plaintiff was examined by Associate Professor David Richards, a consultant cardiologist, who prepared a report dated 23 June 2015: Exhibit "A", pp 161 - 170.
Associate Professor Richards' opinion was focussed upon the plaintiff's problems with hypertension. He reviewed and tabulated for analysis the plaintiff's history of treatment for hypertension in the period 14 March 2009 to 6 December 2014: Exhibit "A", pp 162 - 164. The tabulation appears at pp 162 - 164.
After reviewing the plaintiff's history and the history of the events, Associate Professor Richards noted that, unrelated to the period of the plaintiff's claimed false imprisonment, he had pre-existing problems with atherosclerosis related to previous cigarette smoking, previous high cholesterol and hypertension. Associate Professor Richards went on to say that the plaintiff's false imprisonment was a psychologically traumatic event. I consider that statement to be uncontroversial in this case. He also went on to say that this has caused depression, post-traumatic stress disorder, aggravated hypertension, and increased risk of symptomatic atherosclerosis, namely increased risks of heart attack, stroke, and chronic kidney disease: Exhibit "A", p 167.
Associate Professor Richards expressed the view that the identified increase in the plaintiff's anti-hypertensive medication needs, were most likely required because of persistent psychological stress associated with false imprisonment. He also considered that the plaintiff had experienced an exacerbation as a result of his stressful false imprisonment, and his inability to access his medications during his incarceration. He expressed the unchallenged view that this has now caused a need in the plaintiff for an increased level of medication for management of the plaintiff's hypertension: Exhibit "A", pp 167 - 168.
Associate Professor Richards also considered that the plaintiff's life expectancy would be reduced by a further 5 per cent to 10 per cent on account of the events of the plaintiff's imprisonment. He explained the basis for that view on account of identified increased statistical risk factors: Exhibit "A", p 168.
In summary, Associate Professor Richards considered the plaintiff's underlying atherosclerosis has been aggravated by exacerbation of hypertension as a result of false imprisonment, but that this should not affect the plaintiff's ability to work or carry out every-day tasks, psychological issues aside: Exhibit "A", pp 168 - 170. His views were adequately reasoned as was required by UCPR Sch 7 cl 5(1)(c), and they were not inherently improbable. Significantly, those views were not challenged by cross-examination.
On 17 June 2015, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Garry Helprin, a consultant cardiologist, who prepared a report dated 20 July 2015: Exhibit "14". Dr Helprin disagreed with aspects of the opinions expressed by Associate Professor Richards. Unfortunately, the parties did not see fit to facilitate the analysis of that evidence by arranging for those experts to meet and to prepare a joint report, or for their evidence to be given concurrently.
Dr Helprin reviewed the plaintiff's history, and on his examination and review of the test results that he identified, he confirmed the view that the plaintiff had longstanding essential hypertension, which he described as being well controlled, and "very common in Asian Societies [probably related to] genetic and familial factors". In that regard, the defendant must take the plaintiff as he is found. The critical question is whether certain relevant events complained of by the plaintiff had caused an aggravation or exacerbation of that underlying condition. Appropriately, he offered no comment on the plaintiff's psychological problems: Exhibit "14", p 3.
If the defendant's objective in tendering Dr Helprin's opinion was to seek to demonstrate the plaintiff's hypertension was due to pre-existing or underlying causes, and not the relevant events complained of, Dr Helprin's report falls well short of that objective. It did not provide a basis for the defendant to discharge the undoubted common law onus it had for disentangling those matters so as to seek to inculpate an asserted extraneous or underlying non-traumatic cause for the plaintiff's increased blood pressure-related cardiovascular risks.
In evaluating that question, it is not reasonably possible to quarantine from the consideration the undoubted effects of the psychological trauma the plaintiff has suffered by reason of his imprisonment. The histories the plaintiff provided to the reporting practitioners are replete with compelling accounts of those matters, and I accept those accounts, subject to some relevant considerations that I will identify in my damages analysis.
Dr Helprin reviewed the multiple factors that could influence hypertension, and observed that one month after the alleged false imprisonment event, on 3 September 2013, the plaintiff's blood pressure was well controlled on medication at 130/88. He considered the plaintiff to be fit for work and he considered the plaintiff's prognosis to be "generally good", whatever that meant in this context: Exhibit "14", p 4.
Dr Helprin questioned whether the plaintiff was conveying his history accurately, and queried whether he was a reliable witness: Exhibit "14", p 4. I will address that question in my damages analysis.
Dr Helprin questioned Associate Professor Richards' description of the plaintiff having pre-existing hypercholesterolaemia, and said the readings were normal, without identifying the detailed reference range: Exhibit "14", p 4. In those circumstances in reading the report of Associate Professor Richards as a whole, I do not consider that criticism by Dr Helprin of Associate Professor Richards' report to be of significance.
Dr Helprin agreed with Associate Professor Richards on his observations concerning the plaintiff's heart functioning, and the absence of any serious cardiac cause for the plaintiff's heart pain, suggesting this was due to anxiety: Exhibit "14", p 4.
Dr Helprin disagreed with the view of Associate Professor Richards that the false imprisonment had aggravated by exacerbation, the plaintiff's hypertension: Exhibit "14", p 5. In making that statement, in my view, Dr Helprin did not adequately engage with Associate Professor Richards' analytical table of blood pressure readings. I therefore consider Associate Professor Richards' analysis more reliable because it is more transparently reasoned, and it was not an otherwise improbable analysis. His evidence should be preferred to that of Dr Helprin on this point.
Dr Helprin disagreed with Associate Professor Richards' argument that the plaintiff had a further reduced life span but did not support his rejection by reasoned argument other than to say: "There's no scientific evidence to support this": Exhibit "14", p 5. I prefer Associate Professor Richards' views to the contrary because they are adequately reasoned: UCPR Sch 7 cl 5(1)(c). In that regard, he identified his reasons for considering the mechanisms by which the plaintiff was at increased risk of having a reduced life span: Exhibit "A", p 168, at par 7. Dr Helprin simply dismissed those views, without an expressed process of rational engagement for his argument to the contrary.
Dr Helprin stated "Mr Wang's brief period of incarceration did not result in any Heart problem." Apart from observing that the causation of a heart problem is not asserted by the plaintiff, and apart from observing further that a period of detention for a little over 30 hours cannot be reasonably described as brief in this case, I consider Dr Helprin's brief and dismissive statement that the plaintiff's increased blood medication "cannot be reasonably described as an aggravation of hypertension leading to a reduction in life span" (Exhibit "14", p 5), has not adequately engaged with Associate Professor Richards' reasoned conclusion to the contrary. I therefore prefer Associate Professor Richards' opinions because I consider that he has provided adequate reasons for his views.
A further reason for not accepting Dr Helprin's short and dismissive views on the question of whether or not the events in question have had an adverse or aggravating effect on exacerbating the plaintiff's hypertension is that Dr Helprin seems to have adopted a standard of "no objective proof" for the proposition that the plaintiff's psychological trauma increased the risk of symptomatic atherosclerosis. In this case that is not the required standard. In contrast, a fair reading of the report of Associate Professor Richards demonstrates that he has correctly approached that issue of causation on the balance of probabilities.
Yet another reason for not accepting Dr Helprin's views where they differ with those of Associate Professor Richards is Dr Helprin's brief dismissive concluding view (at Exhibit "14", p 156) that: "Taking an extra blood pressure tablet one year after the event cannot be reasonably described as an aggravation of Hypertension leading to a reduction of life span". [Emphasis as in the report]
Dr Helprin's commentary in that regard is not a useful framework for analysis without also taking into account the plaintiff's elevated blood pressure readings as related to anxiety, as was noted by Associate Professor Richards on 14 May 2014, and the subsequent trialling of changes in medications and dosages of anti-hypertensive medication as recorded by the plaintiff's general practitioner, anchored upon the plaintiff's state of anxiety over his earlier "false imprisonment": Exhibit "A", p 164, as tabulated by Associate Professor Richards.
The clear and compelling inference to be drawn is that the plaintiff's anxiety and psychological problems relating to the events in question have a deleterious, aggravating and exacerbating influence on the control of his elevated blood pressure.

[38]

Applicable legal principles

In the course of submissions I was referred to a number of decided cases in what is essentially a facts case. Having considered those authorities in the context of the narrowed factual issues in this case, it is clear that the indisputable guiding principle is that the law places a high value on personal liberty, which is a right that cannot be removed without lawful authority and then only to the extent and for the time which the law, namely legislation, prescribes: Williams v The Queen [1986] HCA 88; (1986) 161 CLR 279, at pp 292 and 296;
In a previous decision, I have reviewed and summarised the authorities and principles that apply to the evaluative exercise of the assessment of general compensatory and aggravated damages, and exemplary damages in such cases: Smith v State of New South Wales [2016] NSWDC 55. Save for the award of exemplary damages, that decision was not otherwise disturbed on appeal: State of New South Wales v Smith [2017] NSWCA 194, at [164]. In this case I take guidance from that summary of the applicable authorities without replicating that summary in these reasons.
It is also relevant to here observe that in assessing damages for wrongful imprisonment, such damages cannot be computed according to an applicable tariff or applicable daily rate: Ruddock v Taylor [2003] NSWCA 262; (2003) 58 NSWLR 269, at [49]. That approach to damages was not the subject of the appeal considered in the High Court appeal in that case, so it can also be taken to provide proper guidance: Ruddock v Taylor [2005] HCA 48; (2005) 222 NSWLR 612.
In the Court of Appeal decision in Ruddock v Taylor, at [49], it was generally observed that after the "initial shock" of an arrest occurs, and as the ensuing term of imprisonment consequently extends over time, the person falsely imprisoned experiences a progressive diminution of the effect of the false imprisonment. In my view, that is a question of fact and degree that must be determined on the evidence of the particular case.
I now turn to the consideration of the issues calling for decision.

[39]

Issue 1 - Plaintiff's facility for communicating in English

Having considered the evidence of the plaintiff and the evidence of the police officers touching upon the plaintiff's facility for understanding and communicating in the English language, and having considered the contemporaneously created police records, I accept the evidence of Senior Constable Leahy and Senior Constable Wild when they said the plaintiff was sufficiently proficient in the English language so that they could understand him and that they were satisfied he was able to understand them when they conversed with him on the pertinent matters that were discussed on the day of his arrest.
I do not accept as reliable, the Corrective Services record which stated that the plaintiff did not understand questions when these were asked of him: Exhibit "12", p 72. In light of erroneous entries in those records suggesting the plaintiff was Korean, or Korean speaking (Exhibit "12", pp 66 - 68), I consider those records to be an unreliable indication of the plaintiff's ability to communicate in English.
Whilst I accept that the plaintiff had a relatively limited capacity in the English language, I do not accept his evidence that such limitation was to the degree that he could not make himself understood on basic matters in conversations he had with those officers, or other police officers, on the day in question. Whilst it was understandable that in a formal legal setting such as at the police station and at Court, that interpreters would be called upon to assist, I consider that at the time of the events, the plaintiff's understanding was adequate to enable him to know that he had been arrested pursuant to a warrant, and why that was so.
In my view, it was improbable that the plaintiff lacked adequate conversational proficiency in the English language given that at the time, he was a naturalised citizen, living and working in Australia since 1991 for a substantial period of time, albeit with a 5 year gap living in China recovering from an injury, whilst also holding a driver's licence since 2010, and with two children attending high school in Australia.
In coming to that view I have not overlooked the evidence that when the plaintiff was at Ryde Police Station, the Custody Manager had seen fit to use the services of a Mandarin speaking interpreter via the telephone. Given the formality of the occasion where it was thought necessary to read him a Pt 9 Caution, resort to such interpreting services was not unexpected or unreasonable in the circumstances.
In coming to that view, I have also not overlooked the fact that at the hearing of this case, the plaintiff, through his legal representatives, chose to engage the services of a Mandarin speaking interpreter to interpret his evidence in the proceedings. Given what was at stake in these proceedings, that was a reasonable step for the plaintiff's legal representatives to take, to ensure that accuracy and clarity of communication occurred on matters of formal and significant importance in the proceedings. There should be no criticism of the plaintiff's use of an interpreter in these proceedings.
In that latter regard, I observe that there were several occasions in the plaintiff's evidence when he chose to bypass the assistance of the interpreter and he answered questions directly in English, thereby indicating that he had a sufficient grasp and understanding of the English language to enable him to appropriately respond to questions that were directed to him in a formal setting, including when he needed to ask for some water: T12.19; T12.28; T12.31; T48.31; T156.21.
I also considered that the framing and the content of a question asked by counsel for the plaintiff in the cross-examination of Senior Constable Leahy as cited at paragraph [98] above, to be informative and supportive of the view I have reached on this issue.
Whilst I recognise that the plaintiff's English language abilities were perhaps more limited in 2013, and that they might have improved between 2013 and when he gave his evidence, I am nevertheless persuaded from the description of the plaintiff's communications as given by the police officers, that on 2 August 2013, the plaintiff had a sufficient facility for basic communication with them in the English language, despite his evidence to the contrary.

[40]

Issue 2 - Alleged wrongful arrest, assault and battery

I have reached the conclusion that I am not persuaded the plaintiff suffered an unlawful arrest, or an assault or a battery at the time he was arrested by Senior Constable Leahy, as assisted by Senior Constable Wild.
Those officers were duty bound to arrest the plaintiff as was directed by the terms of the warrant that the Local Court had issued for the purpose: Exhibit "12", p 41; s 101 of LEPRA. In fulfilling that duty, they were legally authorised to use reasonable force if required, in the face of the plaintiff's initial resistant response to his arrest.
I accept the fact that when the armed and uniformed police officers entered the plaintiff's premises to arrest him, which involved some physical contact as described by those officers, that he would have found those circumstances somewhat alarming and intimidating. I consider that over time his perceptions of what then ensued were probably magnified and distorted by the emotions generated by those events, and what followed. As is evident from the medical histories, the plaintiff sees the whole continuum of that experience as being traumatic for him. I consider that thought process has been reflected in his evidence.
I am satisfied that the arresting officers had appropriately informed the plaintiff, by the obvious nature of their attire and by the words they used, as to who they were, and that he was being arrested pursuant to a warrant that had been issued for that purpose. I find that the plaintiff was appropriately informed of the reason for his arrest and this was also confirmed at Ryde Police Station in compliance with s 201(2) of LEPRA: Exhibit "12", p 59.
I am also satisfied that in the events that followed, in which the plaintiff was patted down by way of a search of his person, and when he was guided and assisted into the police vehicle, to the extent that those actions involved physical contact between him and those police officers, such contact was of a low level to ensure his compliance with the fact of his arrest, and the related need to transport him to Ryde Police Station. I find that contact was both appropriate and reasonable in the circumstances.
I reject the plaintiff's account that he was physically and forcefully pushed against a wall, and later pushed towards the police vehicle, and then physically manhandled out of his property and into the police vehicle in the manner he described.
In comparing the plaintiff's account of those events with the descriptions of the two police officers, I consider that the plaintiff's account has been coloured and influenced by his emotional reaction to the unexpected events of his arrest.
In that regard, I accept the evidence of Senior Constable Wild when he described the plaintiff's initial unhappiness at being arrested, and that thereafter, once he had absorbed the reality of his situation, he became compliant with the process, as was also described by Senior Constable Leahy. I accept Senior Constable Leahy's evidence that apart from the pat down search that was carried out on the plaintiff, he had not been wrongfully touched or wrongly manhandled as claimed: T422.27 - T422.45.
Whilst I accept that the plaintiff experienced some physical discomfort whilst in the back of the police vehicle when he was being transported from his home to Ryde Police Station, I do not accept that this was as a result of any intention on the part of the arresting police officers to cause him discomfort. I do not accept the plaintiff's assertion that the police officers were laughing at him or making fun of him and his predicament. In my opinion the events of the journey to the police station did not amount to an unlawful assault or a battery.
I find that the plaintiff was lawfully arrested pursuant to the command of the warrant which required that he be arrested: s 101 of LEPRA. I reject the claim that the plaintiff was subjected to an assault and battery at the hands of arresting police officers. Accordingly, I find that the plaintiff is not entitled to any damages for an alleged assault and battery upon him as he has claimed, despite his contrary perception of the events that engulfed him at the time.

[41]

Issue 3 - Timelines of the plaintiff's presentation to the Court

The plaintiff was arrested at 11.40am on 2 August 2013. His detention and the resultant restrictions upon his freedom commenced from that time and continued until he was released from custody at about 6.15pm on the following day, by court order, that period of detention being a little over 30 hours.
Along the timeline between 11.40am on 2 August and 6.15pm on 3 August 2013, in the ordinary course of events, there was a period when the plaintiff was without doubt lawfully detained by police officers, during which time, such detention would have been well within the imperative command of the warrant for his arrest. That state of arrest was required to continue until the Court ordered otherwise.
As already observed at paragraph [130] above, it was the responsibility of Senior Constable Gergie, the Custody Manager, to ensure that the plaintiff was promptly brought before the Court: T513.42. He stated that it normally took between half to one hour to process the required paperwork for someone in custody to be served with the paperwork before being taken to the Court: T515.15. Although Senior Constable Gergie stated (at T514.45), that at about 14:25 hours, after the warrant had been served on the plaintiff, he should no longer have remained in police custody without being referred to the Court, he ultimately conceded that at, or, I interpolate after, 12.38pm, there was no good reason for failing to bring the plaintiff before the Court: T527.31.
Although Senior Constable Gergie was the more junior officer to the others involved in the custody, his role as Custody Manager gave him the right to question a superior officer if he disapproved of the circumstances of the person's detention: T537.6 - T537.32.
As observed at paragraph [139] above, Senior Constable Gergie had assumed, erroneously in my view, that the Court would not take people "on bail" after 3.00pm: T522.30 - T522.41. However, the plaintiff was not on bail.
It was obvious to Senior Constable Gergie that, by 1.00pm, the plaintiff needed to be brought before the Court: T524.24. He later stated the delay in bringing the plaintiff before the Court did not meet with his approval: T531.33. - T531.47.
The defendant bears the evidential burden of justifying the delay incurred in attending to matters that were collateral to the imperative terms of the warrant. This was where, at 12.38pm, the arresting officers had told Senior Constable Gergie that they needed to be "investigating some other matter as well": T527.17 - T537.31.
At this point in the analysis, it is important to note the prevailing context of the initial phase of the plaintiff's detention, during which time some administrative steps had to be taken as a precursor to his mandatory court appearance, as described by Senior Constable Gergie: T515.15.
In the defendant's submissions, in seeking to justify the delay in bringing the plaintiff before the Court, the defendant referred to the provisions of the Local Court Rules 2009, r 1.3 and r 7.1. This concerned the administrative procedure for bringing a person arrested pursuant to a warrant before a Magistrate. That procedure required the Court to be provided with a copy of the arrest warrant, a Court cover sheet, a summary of the relevant facts, and details of the person's antecedents. I accept the plaintiff's submissions that those administrative matters would have been attended to within a relatively short time, probably minutes. It did not suggest the need for a prolonged investigation as was undertaken by Senior Constable Leahy. Those steps could have been completed well within the processing time frame of about an hour as was described by Senior Constable Gergie.
It must be recognised that the day of the plaintiff's arrest was not an ordinary day in the work of the Local Court. This was because between Wednesday 31 July 2013 and Friday 2 August 2013 inclusive, the Local Court Magistrates were attending a Local Court Annual Conference, which meant that special sitting arrangements applied in respect of that Court in the Sydney Metropolitan area. Those arrangements were described in a letter dated 8 March 2016 the defendant's solicitor obtained from the Office of the Chief Magistrate of New South Wales: Exhibit "11"; Exhibit "18".
The terms of the Chief Magistrate's letter made it clear that two Magistrates, or Acting Magistrates, and a Registrar, were rostered on duty during those conference days, and were available at Parramatta Local Court during court sitting hours for the determination of urgent matters, which included the need to consider and deal with persons taken into custody. In my view, this must be taken to include circumstances where police officers were required by warrant to bring such detained persons before the Court.
Despite that limited avenue of access to the Local Court on the day in question, it must be assumed that there was either a Duty Magistrate, or a Magistrate, or an appropriate Registrar, available to deal with custody matters as a priority in accordance with the interests of the proper administration of justice.
The analysis in this case must also have due regard to the fact that the plaintiff's arrest was only for the purpose of serving him with AVO papers and then taking him before the Court. This was a fact that must be taken to have been well known to the responsible police officers when the plaintiff was at Ryde Police Station before the plaintiff was sent to the Corrective Surry Hills facility: Exhibit "12", pp 62 - 63.
It follows that the warrant did not provide justification for detaining the plaintiff in custody any longer than was reasonably necessary to achieve the purpose of serving the AVO papers and to fix a court return date for that matter before releasing the plaintiff from the restraint of his arrest. In that sense, the need to deal with the service of the AVO and to then release the plaintiff from detention was plainly an urgent matter.
The decision, apparently made by Senior Constable Leahy, to offer the plaintiff the opportunity of an interview about the underlying incident was an investigation that was collateral to the warrant: Exhibit "12", pp 62 - 63.
This raises the obvious question as to why, as soon as possible after 12.38pm or 1.00pm on Friday 2 August 2013, the plaintiff was not either taken before a rostered Magistrate, Acting Magistrate or a Registrar of the Court at Parramatta Local Court, or alternatively taken to the Correctional Facilities at Surry Hills Police Centre for an AVL hearing at Parramatta Local Court before one of those persons.
Given the restricted Local Court sitting regime that applied on 2 August 2013, as set out in Exhibits "11" and "18", that question must be addressed in the context of the timeline of chronological events that occurred whilst the plaintiff was at Ryde Police Station before 15:13 hours, at which time he was taken to the Correctional Facility at Surry Hills Police Centre.
Those timeline events influenced the potential time for the plaintiff to be brought before the Court either in person at Parramatta, or by means of an AVL presentation from the Correctional Facility at the Surry Hills Police Centre, before the close of court business on that day.
To determine the timeliness of the plaintiff's presentation to the Court, it is necessary to consider in some detail the recorded events that occurred in the interval of time between the plaintiff's arrest at 11.40am on 2 August 2013 and his delivery into the custody of the Corrective Services officers at Surry Hills at 4.30pm on that date.
Whilst the plaintiff was detained at Ryde Police Station, those events were documented in the Custody Management Record comprising Exhibit "12" pp 74 - 63. The chronological sequence of some 26 of those events, is identified in the following tabulation: No. Time Event Exhibit 12
12:03 Plaintiff placed in the dock on arrival p 52
12:04 Plaintiff's personal details entered into Custody Management Records system p 47
12:25 Custody Manager made an entry in movement records to note plaintiff's position in the Dock p 52
12:27 Custody Manager called the Interpreter service p 51
12:29 Custody Manager completed the call to Interpreter service p 51
12:36 Custody Manager completed a property docket p 55
12:36 Custody Manager completed a visual inspection of the plaintiff. Plaintiff noted to be "fine and responding to police answers (sic)" p 48
12:38 30 minute observations of the plaintiff by Custody Manager commenced p 49
12:45 Custody Manager made a call to the Interpreter service p 49
12:45 Interpreter was arranged and became available p 52
12:47 Custody record updated p 49
13:20 Reading of Pt 9 Caution to plaintiff by Custody Manager, with the assistance of a Mandarin interpreter by telephone p 51
13:32 Reading of Pt 9 Caution to plaintiff completed p 51
13:33 Plaintiff started consuming a drink of water p 49
13:34 Plaintiff finished consuming a drink of water p 49
13:35 Custody Manager noted plaintiff was offered drink p 50
13:53 Senior Constable Leahy completed a Facts Sheet and Court Attendance Notice, and someone made contact with Sergeant Tighe, the mobile Bail Sergeant, to accept responsibility for the custody of the plaintiff pp 56 - 60
13:57 Senior Constable Leahy served plaintiff with the arrest warrant and the AVO Notice p 46
13:58 Custody Manager realised, on inquiry, that the plaintiff only needed to have warrant served, without further investigation, and without any need for a Pt 9 Caution to be read to him p 51
13:58 The call to the interpreter was cancelled pp 49, 52
13:58 Custody Manager made contact with Ms Guo p 49
14:04 Custody Manager updated the record of contact with Ms Guo. Record stated that a call was successfully made to Ms Guo p 49
13:34 Custody Manager updated the record p 50
14:19 Plaintiff placed in Cell number 2 p 52
15:03 Sergeant Tighe determined that the plaintiff should be refused bail p 61
15:13 Plaintiff left Ryde Police Station and was escorted to Surry Hills Corrections facility by Senior Constable Leahy and Senior Constable Wild pp 62 - 63

[42]

I accept that following the arrest of the plaintiff, it was appropriate for the arresting police officers to travel to Ryde Police Station in order to securely hold the plaintiff in custody and to systemically record the fact of his arrest, and so that appropriate arrangements could commence to fulfil the command of the arrest warrant, and to then bring the plaintiff before the Court at the earliest opportunity that was reasonably practicable, recognising that he was in police custody in circumstances where he was no longer free and that would continue until his situation was considered by the Court.
In undertaking an evaluation of the reasonableness of the proffered justification for the plaintiff's detention from 12:03pm onwards, I am conscious of the need to ensure that the overriding question of reasonable practicality must be assessed prospectively, having due regard to all the surrounding circumstances, where it would not be appropriate to make an analysis based on considerations of hindsight alone.
After the plaintiff's arrest and his transportation to the police station, the first relevant circumstance to consider is the temporarily restricted sittings arrangements that were applicable in the Local Court on that day.
I infer from the content and the identified addressee of the Chief Magistrate's letter dated 5 June 2013 and Exhibit "11", namely the Commander of Legal Services in the NSW Police Force, that the Chief Magistrate's information and instruction guidelines contained therein would in the ordinary course of events have been disseminated or made known to all Custody Managers and Bail Sergeants in the Sydney Metropolitan area. Specific evidence would have been required if the contrary was the case, and no such contrary evidence was called.
I also accept that after the plaintiff had been placed into the custody of Senior Constable Gergie as the Custody Manager, it was inevitable that some reasonable time would have passed to enable Senior Constable Gergie to fulfil his responsibilities for the plaintiff's care whilst he was to be kept in custody, and for him to document those matters in the Custody Management Record. The analysis which now follows, takes those considerations into account.
On that prospective analysis, I accept that at 12.03pm it was reasonable for the plaintiff to be placed in a secure area in the police station, and for him to be assessed by Senior Constable Gergie, both visually and by questioning, and for Senior Constable Gergie to take some time to make contact with the interpreting service, and for him to then periodically and progressively update the Custody Management record.
The matters outlined in the preceding paragraph were noted to have been completed by 12:47 hours, as identified in the tabulation at paragraph [262] above.
In my view, shortly after 12:47 hours, it must have been plain to Senior Constable Gergie that the plaintiff's arrest was pursuant to a warrant for him to be brought before the Court, and that there were no other matters, such as charges or a need for an investigation that justified detaining the plaintiff further so as to delay police compliance with the command of the warrant.
Notwithstanding that view, and notwithstanding some prompting enquiries made by Senior Constable Gergie, time was allowed to pass whilst Senior Constable Leahy undertook some investigations. In that time, Senior Constable Leahy undertook some investigations, and apparently offered the plaintiff an opportunity for an interview. He also took some time to prepare a Facts Sheet and a Court Attendance Notice. These were completed by 13:53 hours. The need to do so was not explained and on its face, it seems to have been a superfluous exercise that occupied time and resulted in needless delay because the plaintiff was not facing any charges at that time.
In the context of that superfluous exercise, where all that was required of Senior Constable Leahy was to obtain a copy of the AVO papers and take the plaintiff before the Court for formal service of that documentation, to enable completion of the consequential formalities, including obtaining a court date and facilitating the release of the plaintiff.
During the time that Senior Constable Leahy was taking to complete his investigation and inquiries to "sort out" what was going on, to prepare the described documentation, Senior Constable Gergie was plainly aware that there was a need to take the plaintiff before the Court. In fact he was pursuing Senior Constable Leahy for that purpose every 15 to 30 minutes because of that concern: T530.23.
During that delay, between 13:20 hours and 13:32 hours, with the aid of a telephone interpreter, Senior Constable Gergie took some 12 minutes to read the plaintiff a Pt 9 Caution. That too was a superfluous exercise because at that time there were no charges for the plaintiff to answer which might otherwise have required such a caution. This was ultimately recognised by Senior Constable Gergie: T535.7 - T535.11. That said, the time taken up with the reading of the Pt 9 Caution overlapped with the time being taken by Senior Constable Leahy to complete the superfluous tasks that he had apparently set for himself.
By 13:58 hours, in the timeline of custody, both Senior Constable Leahy, and Senior Constable Gergie as the Custody Manager, knew that all which was required of them was to arrange for the plaintiff to be taken before the Court at Parramatta, either in person, or via an AVL connection from Surry Hills.
It would be reasonable to infer from the evidence of Sergeant Tighe that police officers who are responsible for holding persons in custody knew that there was a telephone number available for making administrative contact with the Court to obtain an indication as to which of the above two options should be followed, including in any particular time frame.
It is a given that when courts consider and deal with persons held in custody, such matters are dealt with on the basis of priority. Absent evidence on the point, that at about 3.00pm on Friday 2 August 2013, the next available court appearance that was allocated to the plaintiff was set for Saturday 3 August 2013.
The allocation of the 3 August 2013 timing for the plaintiff's court appearance only occurred after Sergeant Tighe had refused the plaintiff bail at 3.03pm. I infer from Sergeant Tighe's evidence (at T545.17; T546.29; T549.13), that he had obtained that fixture after making contact with Senior Constable Gergie, who had at some unstated time beforehand, made contact with the Court.
What the defendant has not explained in this case is the time at which that enquiry was made of the Court, which would doubtless have been influential on the allocation of the Court date and time given.
Whilst I accept it was more likely than not, that absent the availability of an AVL connection from Ryde Police Station, it was necessary to take the plaintiff to Surry Hills for such a connection, absent evidence from the administrative staff of the Local Court as to the time Senior Constable Gergie made the call, I am far from satisfied that a time for the plaintiff's court appearance via AVL could not have been attempted at some time on the same day after 3.03pm on 2 August 2013.
That said, I accept that it was more likely than not, the existence of significant road traffic on the Friday afternoon would have influenced the timing of the plaintiff's arrival at Surry Hills that afternoon. In those circumstances, it would seem to be an unfair counsel of perfection to find that, after 3.03pm when bail was refused, after the plaintiff's journey to Surry Hills, which commenced at 15:13 hours that the police officers ought to have brought the plaintiff before the Court via AVL before 4.00pm on that day. This is so, especially in light of the evidence that the plaintiff was accepted to Corrective Services custody at 4.30pm on that day, after having left Ryde Police Station at 3.13pm on that day.
Instead, the analysis of the time by which the plaintiff could and should have been placed before a court on that date must commence at a much earlier point in time than from when bail was refused at 3.03pm.
This is because the 3.03pm determination refusing the plaintiff bail, in the circumstances of his arrest pursuant to a warrant, was a futile exercise that caused needless delay in bringing him before the Court. The futility of bail for the plaintiff before his court appearance is plain from the terms of the command of the warrant for his arrest. In my view, only an order of the Court could have secured the plaintiff's release at that time. Waiting for the attendance of the Bail Sergeant was a futile exercise. Senior Constable Gergie as Custody Manager could have achieved this at a much earlier point in time.
It is difficult to imagine that, absent evidence of special circumstances regarding the existence of, or the effect of traffic congestion, that a journey from Ryde Police Station to the Parramatta Local Court, or from Ryde Police Station to the Surry Hills Police Centre, including making allowance for the surrounding administrative arrangements, would have taken any more than an hour. In that assessment I have allowed for time for a preliminary call to be made to the Court Registry in advance of the planned arrival of the plaintiff,
On reviewing the custody record timeline, and assuming Senior Constable Leahy and Senior Constable Wild had no reason to delay the plaintiff's departure form Ryde Police Station after say 1.30pm, I consider that the plaintiff should have been presented before the Court some time shortly after 2.30pm on Friday 2 August 2013. Had that occurred, his release from custody would have been treated as a matter of priority that would have involved only several minutes of court time, at which time he would have been served with the AVO notices and then released on condition of a return to Court on a date then fixed.
To achieve that objective, all that was required of either Senior Constable Gergie, Senior Constable Leahy, or Sergeant Tighe, was for someone to make administrative contact with the Local Court Support Staff at Parramatta Local Court to ascertain the scope and timing for a presentation of the plaintiff to a Registrar or a Magistrate in person, or whether this needed to be achieved by AVL connection from the Correctional Facility at the Surry Hills Police Centre. Unfortunately, there was no evidence of the timing of that call which resulted in the allocation of a court date for 3 August 2013: Exhibit "12", p 61.
In that analysis, two relevant matters must be recognised and taken into account. The first is that there are no bright lines that appear in the timeline, and secondly, the plaintiff's detention in custody was a matter which courts routinely treat as a priority in the absence of charges or a conviction, as was the position of the plaintiff at the time.
As to the absence of bright lines in the timeline of events whilst the plaintiff was in custody, it is recognised that some time would most probably have been taken up with the administrative enquiry of the Court as to the time the plaintiff could be presented there. It must also be recognised that on a Friday afternoon, there may have been traffic issues which might have caused delay in achieving the plaintiff's attendance at Parramatta Local Court either in person, or via an AVL connection from Surry Hills. On the evidence in this case, those matters cannot be determined with pin-point accuracy.
Therefore, the analysis of the evidence called by the defendant as justification for the plaintiff's detention must proceed according to what seems reasonable in the known circumstances, as outlined above.
On that analysis, I find that the plaintiff was not brought before the Court in a timely manner in accordance with the command of the warrant that this should take place after his arrest as soon as was reasonably practicable in the circumstances which prevailed.

[43]

Issue 4 - Wrongful imprisonment

It follows from the analysis at paragraphs [243] to [290] above that the delay from about 2.30pm on Friday 2 August 2013 and until 3 August 2013 in bringing the plaintiff before the Court pursuant to the arrest warrant was unjustified. I find that the defendant has failed to discharge its burden of proof for justification in that regard. This means that the plaintiff's detention in custody after that time amounted to the plaintiff being wrongfully imprisoned.
It now becomes relevant to consider the events occurring during the plaintiff's custody from the time that the police officers handed the custody of the plaintiff over to Corrective Services officers at 4.30pm on 2 August 2013 and until the plaintiff's discharge from custody, on bail, at 6.15pm on 3 August 2013.
The defendant argued that any wrongful imprisonment of the plaintiff had ceased at 4.30pm on 2 August 2013 when the plaintiff's custody was transferred to Corrective Services Officers at Surry Hills. I reject that submission as that transfer occurred as a natural consequence and continuum of the plaintiff's earlier detention that was without compliance with the mandatory requirement that the plaintiff be brought before the Court. At the time, the Corrective Services officers who received the plaintiff into their custody had no reason to doubt the legality of the plaintiff's detention.
At the Surry Hills Correctional Facility, after the fact of the plaintiff's custody was recorded and processed by Corrective Services officers, he was allocated to a cell. This was then marked a period of considerable distress for the plaintiff. By this time, the initial shock of his arrest had most likely receded, and he was by then experiencing great anxiety over his continued enforced deprivation of liberty.
In that time, the plaintiff's feelings in that regard were operating to aggravate and exacerbate his hypertension condition in circumstances where he did not have access to his anti-hypertensive medication. That process was allowed to continue unabated. The plaintiff had beforehand been deprived of access to his anti-hypertensive medication, initially whilst in the custody of the arresting police officers, and this then continued whilst he was in the custody of Corrective Services officers.
The plaintiff's experience of indignity and distress in the course of those events was further exacerbated by his unheeded pleas for his medication and by the intimidation he experienced whilst having to co-share his cell, initially with one inmate, and then later with another inmate who had aggressive behavioural problems, as earlier described. That intimidation included the plaintiff having his blankets and some of his food taken from him. Those events operated on the plaintiff adversely, and increased his anxiety in circumstances where he did not have access to his anti-hypertensive medication.
In those events, the plaintiff was experiencing significant headache symptoms, which I infer was due to his prolonged inability to take his prescribed anti-hypertensive medication. In those circumstances he felt nihilistic, and he felt compelled to repeatedly bang his head against the cell wall and door on numerous occasions, as he described, out of frustration.
I consider that those matters operated as aggravating factors to the plaintiff's wrongful imprisonment.
Before turning to the assessment of the plaintiff's entitlement to damages, including the assessment of his claim for aggravated and exemplary damages, it is relevant to review and make findings on the evidence concerning the plaintiff's health issues that have been impacted by the events that followed his arrest.

[44]

Issue 5 - Cause of plaintiff's adverse health events

On considering the evidence of the plaintiff and the medical evidence reviewed at paragraphs [164] to [213] above, I accept that the plaintiff has become anxious and depressed as a consequence of his period of wrongful imprisonment.
In reaching that finding I have also found that the initial arrest of the plaintiff has not served to sustain or maintain his psychological symptoms as the initial shock, humiliation and shame of those circumstances was relatively short-lived. In considering the cause of the plaintiff's psychological symptoms I accept the stressful effects of the plaintiff's evidence that his pre-arrest marital separation and his attempts at concealing those circumstances from his children, were of a far lesser and more benign character than the significant anxiety, depression and other psychological symptoms that have emanated from his wrongful imprisonment, including the effect on his hypertension, as was aggravated and exacerbated in the manner explained by Associate Professor Richards.
I find that but for the plaintiff's prolonged and stressful period of wrongful imprisonment, those psychological problems, and the aggravation and exacerbation of his hypertension problems would not have occurred. The plaintiff has therefore established that those matters were relevantly caused by the period of wrongful imprisonment that he was obliged to endure.
The further question of the course of the plaintiff's mid-trial adverse health event is a matter that must be considered in terms of whether this was due to the manner in which the defendant conducted its case.
Consistent with the above causation analysis, I find that the mid-trial adverse health event was also a natural and probable consequence of the plaintiff's wrongful imprisonment because of his aggravated hypertension, which would not have occurred but for that wrongful imprisonment. Those matters therefore have relevance to the assessment of aggravated damages.

[47]

Wrongful imprisonment, including aggravated damages

I have accepted that in this case the plaintiff has suffered a prolonged period of wrongful imprisonment, the substantial part of which must be seen as being avoidable according to the analysis at paragraphs [300] to [304] above. This occurred because, contrary to the command of the warrant that required his arrest, he had not been brought before the Court pursuant to the command of that warrant as soon as was reasonably practicable following his arrest and detention in police custody.
The plaintiff was undoubtedly initially shocked and distressed by his arrest. That much is evident from the evidence of Senior Constable Wild who described the plaintiff's initial reluctance to be taken into custody. The plaintiff's initial attitude and response of "Why? Why? Why?" also tends to confirm that initially resistant stance on his part. However, I accept the evidence of Senior Constable Leahy to the effect that, relatively quickly the plaintiff became compliant, which indicates his initially resistant attitude to the arrest was relatively short-lived, and resolved itself into an attitude of acceptance by the time he had been placed into custody at Ryde Police Station.
The assessment of damages for the wrongful imprisonment of the plaintiff is not a simple matter in this case. This is because the exercise is complicated by two principal factors.
The first such factor is the need to exclude from the assessment any component that was undoubtedly and inevitably associated with the initial shock, affront, humiliation and embarrassment experienced by the plaintiff at the time of his lawful arrest. That component cannot sound in damages in this case. The second of those factors is that the assessment of the plaintiff's damages for the effect on him of his wrongful imprisonment should take into account the medical evidence that identifies him as having ongoing effects from his imprisonment to an extent that is well beyond the limits of the initial period of shock when he was deprived of his liberty, and from a time when that deprivation of his liberty became unlawful.
The first of those factors is not readily definable. This creates a potential difficulty for a damages analysis because the medical opinions which evaluate the plaintiff's psychological reaction to the events he experienced are based on an amalgam of factors that commence with the arrest itself, which is a discrete matter that cannot be reflected in damages in this case. It is plain from the tendered medical reports that the plaintiff's feelings of distress commenced from the time of his arrest notwithstanding that Senior Constable Leahy and Senior Constable Wild formed the reasonable view that the plaintiff was compliant with that arrest.
Nevertheless, a disentangling analysis of the factors at play must be attempted. In my view, once the plaintiff had been settled into police custody, whilst no doubt still in a state of relative upset over the shock of his arrest, I consider that those feelings were diminishing and became eclipsed, and were progressively overtaken by an overwhelming sense of grievance at the ensuing period of detention, which I have found to have been a wrongful imprisonment.
In that latter regard the elements requiring an assessment of ordinary compensatory damages comprise first, consistent with my findings on the medical issues, the prolonged deprivation of the plaintiff's liberty in the period between, from about 2.30pm on 2 August 2013, and 6.15pm on 3 August 2013, secondly the ongoing consequential effects of the exacerbation of the plaintiff's underlying hypertensive condition whilst he was without his anti-hypertensive medication, and thirdly, whether or not an element of damages should be included on account of aggravated damages.
In undertaking those assessments, I exclude any component involving what must have been the initially shocking effect on the plaintiff of his unexpected but nevertheless lawful arrest.
In my view, it is possible to isolate and exclude that factor in this case because I have accepted the evidence of Senior Constable Leahy to the effect that, at an early stage, the plaintiff became compliant to the fact of his arrest: T393.39; T422.35; T424.8; T425.28.
In contrast to the plaintiff's relatively short-lived initial shock following his arrest, the effect on him of a more prolonged period of deprivation of liberty has to be considered alongside his concern over the unavailability of his anti-hypertension medication for so many hours. That matter also has to be considered in light of Associate Professor Richards' opinion concerning the ongoing aggravating and exacerbating effect of anxiety and non-medical control on the plaintiff's underlying hypertensive condition, and the concomitant adverse health risk that has consequently emerged for the plaintiff concerning cardiovascular, renal and life-span complications.
In my view, from the perspective of assessing compensatory damages, those circumstances take this case well beyond the category of cases involving a short-term and uncomplicated deprivation of liberty. I accept the plaintiff's submission that this is an entirely exceptional case most unlike other cases of alleged wrongful imprisonment because the plaintiff has consequentially suffered a major depressive episode, post-traumatic stress disorder, with an aggravation of his pre-existing hypertension. This leads me to conclude that he has suffered damage quite unlike that seen in most other cases of wrongful imprisonment. I also consider that the matters referred to in this and the preceding paragraph justify an award of an element of aggravated damages according to conventional and well-settled common law principles.
Also, in that latter regard, on the fourth day of the hearing, the plaintiff's hypertension was not under adequate control. His detention-related anxiety was most probably also being influenced by the stress and uncertainties associated with this litigation. These matters were still materially contributing factors to his condition at the hearing. The continued state of the plaintiff's anxiety and his associated psychological upset, were of an entirely different character to that of an initial shock reaction to the fact of an arrest.
In assessing the appropriate sum for damages I have taken into account Dr Brown's opinion stating that, with the vindication that the plaintiff will now obtain from the result of these proceedings, and with mitigatory treatment for which he will now receive damages, the ongoing psychological effects of the plaintiff's wrongful imprisonment are likely to abate within the relevantly short term of a year or so, as stated by Dr Brown. The plaintiff's entitlement to compensatory damages must be assessed on that basis.
Taking into account those matters, and the medical evidence as analysed at paragraphs [164] to [213] above, I consider that the plaintiff's compensatory damages should be assessed in a sum that approaches the upper range for such damages. This leads to the consideration of an element for aggravated damages.
The initial reason for the delay in bringing the plaintiff before the Court was that Senior Constable Leahy did not appreciate the substantive import of the command of the warrant that the plaintiff be brought before the Court as soon as was reasonably practicable. That delay was then compounded when time was taken up needlessly whilst Senior Constable Leahy pursued investigations and inquiries. During that time Senior Constable Gergie was unable to move those events along by prompting Senior Constable Leahy every 15 to 30 minutes, notwithstanding his understanding of the mandatory need to bring the plaintiff before the Court as soon as was practicable.
Those circumstances were then compounded by the occurrence of a further delay that was incurred whilst waiting for Sergeant Tighe, the Bail Sergeant, to arrive and to inevitably refuse the plaintiff bail. By that time, on the evidence, it was less likely, and doubtful but not impossible, for the plaintiff to be brought before the Court that afternoon. The result of those needless delays for the plaintiff was an ensuing period of indignity, anxiety, uncontrolled hypertension and distress in the cells at Surry Hills. The adverse psychological consequences of those matters still continue to affect the plaintiff. The combined effect of those events has operated as an egregious and contumelious imposition on the plaintiff's rights, which has continued to have an adverse impact on him right up to and during the trial. I consider this calls for the inclusion of an element of aggravated damages.
In assessing the element for aggravated damages, I recognise the need to avoid double or overlapping compensation with an award of general compensatory damages.
As was observed in Coyle v State of New South Wales [2006] NSWCA 95, at [99], matters of embarrassment and humiliation relating to even a short period of wrongful deprivation of liberty, are not insignificant matters.
Taking the above matters into account, I therefore assess the plaintiff's general compensatory damages for wrongful imprisonment, including aggravated damages, in the sum of $40,000.

Wang v State of NSW

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