Court of Appeal (Vic)|2010-06-11|Before: ASHLEY and MANDIE JJA and BEACH AJA

Watkins v The State of Victoria & Ors [2010] VSCA 138 (11 June 2010)

Watkins v State of Victoria & Ors (Unreported, County Court of Victoria, Judge Robertson, 17 October 2008)

1 This appeal arises out of events which took place at the St Kilda Road police station on the evening of 14 May 2005. The appellant, Grant Watkins, brought a claim in which he alleged that he had been assaulted by three police officers that evening. He sought damages from the three men and from the State of Victoria -the last-mentioned, by relying on s 123(2) Police Regulation Act 1958 (Vic). His claim was tried by a County Court judge between late September and early October 2008. On 17 October 2008 the judge dismissed all aspects of the claim. Later, his Honour made costs orders in favour of the defendants. The appellant now appeals against the various orders. If he succeeds, he requests this Court to assess his damages. That request is agreed in by the respondents.

2 On the evening of 14 May 2005 the appellant, a man then aged 24 who had no previous criminal history, attended the St Kilda Road police station. He was looking for his girlfriend, whom he had been told had gone to the station following an altercation between the two of them earlier that day. His girlfriend, it is convenient to note, was legally blind. This seems to have been a matter which impressed itself upon the police defendants, in the context of an alleged assault upon her by the appellant.[1] The appellant had consumed alcohol that day, but it seems not to have been suggested that he was much affected. He was suffering from some bruising and soreness as the result of being involved in a motor vehicle accident the previous day.

3 Not long after his arrival the appellant was arrested, cautioned and searched. The arrest was made by the fourth defendant/respondent, Sergeant Andrew Falconer. It was he who told the appellant that he would be charged with assault and theft. The search was conducted in Falconer's presence.

4 Then, between 9.33pm and 9.56pm, the appellant was interviewed by a Constable Angus. He was told that he would be charged with assault and intentionally causing injury. He was requested to provide his fingerprints. He was told that if he refused to provide them voluntarily then a member of the police force might use reasonable force to obtain them. He was told that his fingerprints were required for the purpose of identification and that they may be used as evidence in court. He refused to provide his fingerprints voluntarily, saying that he had no reason to do so.

5 At about 10.00pm the appellant was taken by Falconer to a small room - about 3 metres by 2.5 metres in size - where the fingerprint counter for taking 'ink style' fingerprints was situated.[2] The counter - sometimes called a 'ledge' in the evidence - was close by the entry doorway, fixed to the side wall on the right.

6 Falconer attempted to persuade the appellant to provide his fingerprints. He still refused. Falconer decided to use force to obtain the fingerprints. We pause to note that he was by then aware that the appellant had been involved in a road traffic accident the previous day. Another policeman, Richard Lewis (the third defendant/respondent), lent assistance. The two men took the appellant, one by each arm, and tried to pull him from the rear of the room towards the counter. He resisted. These were the circumstances of the first assault alleged by the appellant.

7 A third policeman, Nathan Kaeser (the second defendant/respondent) came to the entrance of the room. He told the appellant to cooperate. There was a verbal exchange between them. It concerned the appellant's girlfriend. According to the appellant, Kaeser said: 'You think you are fucking tough bashing up a blind girl'. But Kaeser gave evidence that he said: '... there is a pregnant woman out there who says you have assaulted her'. In any event, the certain fact is that Kaeser struck the appellant in the face with as much force as he could. That was the second assault alleged by the appellant. Kaeser, it is convenient to add, is 6' 3" in height, and by his own account is a strong man who regularly worked out in a gymnasium. The appellant, a qualified chef, was described in the evidence as short and 'stubby'.

8 It was not in dispute at trial that the blow was struck. According to Kaeser, in evidence disputed by the appellant, he struck the appellant - by a so-called 'clearance strike' - because the latter lunged and spat at him. A 'clearance strike', it is convenient to note, is a blow struck with the butt of the palm. It has the advantage of not risking damage to the striker's knuckles.

9 It was not in dispute that the appellant was still being held by Falconer and Lewis when he was struck by Kaeser. Whether, on their accounts, they were then in 'full control' of him is a matter to which we will return.

10 The blow caused the appellant to bleed in the area of his mouth. There was debate at trial as to the extent of the bleeding. It also caused damage to at least one tooth,[3] a matter about which the appellant became almost immediately aware.

11 On the appellant's account, despite the fact that he was being held by the other two policemen, the force of the blow caused him to partly collapse. The police defendants denied that the blow had such an effect. According to Kaeser, it had the effect of stopping the appellant in his tracks.

12 The policemen did not desist from what they continued to assert at trial was a persisting attempt to take the appellant's fingerprints.

13 The first event subsequent to the blow struck by Kaeser was that the appellant was taken face first to the floor of the room. The gist of the police evidence was that this was done because, after he had been struck, the appellant began to resist. Kaeser agreed that this was done 'forcefully', and Lewis agreed that the appellant 'landed hard face first'. The appellant was taken to the floor at Falconer's direction, and the result was achieved in part by the appellant's legs being kicked out from under him, and in part by force applied by all three police defendants. All of them then held the appellant down. The actions of Kaeser, Falconer and Lewis constituted the third alleged assault, although the statement of claim in fact raised no allegation against Kaeser.

14 Then the appellant was got up, and Falconer began to take his fingerprints. According to evidence given by the policemen, the truth of which the appellant denied, the appellant then 'sprayed' blood from his mouth onto Lewis and Falconer. He did so after he had been told not to shout because in doing so he was spitting blood. Kaeser then grabbed the appellant by the head, and with the others forced him face first against the rear wall of the room. Falconer agreed that the appellant 'hit the wall hard'. Lewis stated that the appellant hit the wall 'fairly solidly'. On the police account, the appellant was forced face first against the rear wall to prevent a repetition of the blood spraying incident. This was the fourth assault alleged by the appellant.

15 Further according to the appellant's pleaded case in its finally amended form, at some stage during the assaults one of the police defendants applied pressure to his neck sufficient to cause petechial haemorrhages on both sides as well as scratches on the left side. That there were such haemorrhages and scratches after the incident is beyond dispute. There was an issue which policeman had caused the injury, and just when it was inflicted. This was the fifth alleged assault.

16 In the end, the appellant's fingerprints were taken. He was then asked to sign a form acknowledging that the procedure had been carried out. But he began to write something else on the paper - very likely, judging by what he did manage to write - an allegation that he had been bashed. Falconer took the pen from him.

17 The appellant was released from the police station shortly after 11.00pm. Before his release, he had used a mobile phone to make a call to emergency services in which he claimed to have been bashed, and in which he sought assistance. Kaeser knew about the phone call, if not about its exact content, by the time that notes of the incident were first compiled.

18 Before the appellant left the police station, he was photographed. The photographs show that his right eye was nearly closed and that his mouth was disfigured and bloody. He declined to tell a police officer who enquired as to his welfare how he had come to be injured.

19 The appellant attended Cabrini Hospital. From there, he was transferred by ambulance to the Alfred Hospital in a cervical collar. At the latter hospital, he was noted to have a number of facial injuries.

20 The next day, the appellant attended a general practitioner, Dr Jane Shanahan. As summarised by the judge, she noted the following injuries:

(1) bruised right upper forehead;

(2) haematoma right temple;

(3) subconjunctival haematoma;

(4) swelling over TMJ jt (temporomandibular joint) but intact palpable;

(5) nose intact;

(6) minor bruising over left upper brow;

(7) extensive swelling and bruising both upper eyelids. PERL (pupils equal and reactive to light);

(8) chipped front molar;

(9) loose right upper incisor;

(10) extensive petechial haemorrhage upper neck under both ears;

(11) scratching of inner pinna, bruising outer surface right ear;

(12) scratch marks left upper neck area;

(13) petechial bruising left scapula edge;

(14) scratch marks right arm and bruising right upper arm. Scratch marks left upper chest;

(15) graze left shin area;

(16) minor bruising right flank;

(17) tender left mid chest at nipple line but no visible bruising and abrasions; and

(18) tender with paravertebral muscle spasm left T12-L2 area.

21 Photographs taken on 16 May confirm the accuracy of the doctor's observations of the appellant's visible injuries.

22 All the circumstances which we have thus far recounted were in evidence at trial, and, except where we have indicated disagreement, were uncontroversial. There were other circumstances to which we must later refer. A number of them also were uncontroversial, whilst others were in dispute at trial.

23 That the appellant was assaulted is not in doubt. The real question at trial was whether one or more defences were available to the three policemen (conveniently 'the police defendants'); and whether, if one or more of the police defendants were held liable, the State of Victoria was rendered liable under s 123(2) of the Police Regulation Act.

24 The defences ultimately raised by the police defendants were not identical. Dealing with the matters raised in the broad for the moment, it was ultimately contended that (1) any assaults were the application of reasonable force in the taking of the appellant's fingerprints, and so were lawful by operation of s 464K of the Crimes Act 1958 (Vic);[4] (2) particular assaults were done in self defence, and involved the use of reasonable and proportionate force; (3) particular assaults were done in defence of others, and involved the use of reasonable and proportionate force. Kaeser also pleaded that in the event that any assaults were not otherwise defensible, the appellant was precluded from recovering damages for non-economic loss by operation of s 28LE of the Wrongs Act 1958 (Vic).

25 We have referred to the defences 'ultimately' raised. We have done so because, after the evidence was ended, the appellant amended his statement of claim by leave; and the respondents amended their defences.

26 By his amendments, the appellant pleaded the five assaults separately. Hitherto, he had pleaded a single assault, it involving a series of events.

27 Further, the final version of the appellant's statement of claim picked up matters about which he did claim to have a recollection - the first and second assaults. But otherwise it relied upon the sequence of events of which the police defendants gave evidence - although the appellant did not agree with aspects of that evidence.

28 For their part, the police defendants not only pleaded to the now-discrete allegations of assault; they appear to have enlarged their defences. Thus, both Lewis and Falconer specifically pleaded defence of others where previously they had not done so.

(1) The provisions of s 464K of the Crimes Act 1958 (Vic) were complied with by all relevant members of the Victoria Police at the St Kilda Police Station on 14 May 2005 in the matters concerning the plaintiff.

(2) The appellant was neither a 'convincing or a reliable witness'.

... this court on balance prefers and accepts the evidence of the second, third and fourth defendants, notwithstanding the obvious deficiencies seen in each such defendant in respect of their note taking, statement taking and report writing abilities. The standard of the police paperwork leaves very much to be desired, but notwithstanding that factor, the court accepts the sworn version of events given to this court by the second, third and fourth defendants. It regards each such defendant to be a reliable witness.

Sergeant Lewis and Sergeant Falconer, at all times relevant, were each police members using reasonable force to take the plaintiff's fingerprints pursuant to and in compliance with the provisions of section 464K.

... to the extent that Sergeant Kaeser was at all times acting in self-defence. The court accepts that Sergeant Kaeser believed on reasonable grounds that it was necessary in self-defence to do what he did.

and

This court is satisfied on balance that the force so used in self-defence by Sergeant Kaeser was not excessive in all the circumstances then existing in the fingerprint room; as the court stated earlier, an explosive situation. This court is satisfied on balance that the blow delivered by Sergeant Kaeser to the plaintiff's face was proportionate to the threat that then faced Sergeant Kaeser, given all the circumstances as they existed

and

The court is satisfied on balance that after yelling an obscenity at Sergeant Kaeser the plaintiff then spat at Sergeant Kaeser and moved forward or lunged towards Sergeant Kaeser in a threatening manner.

... Sergeant Falconer and Sergeant Lewis acted at all times lawfully, using reasonable force in all the circumstances then to restrain the plaintiff when he displayed violent and aggressive behaviour towards the second, third and fourth defendants.

The court is satisfied on balance that the third and fourth defendants at all times during the alleged third assault were acting in self-defence and in then the defence of others with each reasonably believing at all relevant times that it was necessary in self-defence and in the defence of others to do what each of the third and fourth defendant, respectively, did to restrain the then out of control plaintiff.

The court accepts that unintentionally by his yelling the plaintiff caused blood to fall on the face and person of the fourth defendant, Sergeant Falconer, and that he was told to stop yelling and spraying blood.

On balance this court is satisfied that the plaintiff did intentionally spit or spray blood on to the third defendant's person and that he, the plaintiff, had again behaved aggressively towards the second, third and fourth defendants, so requiring them to restrain the plaintiff from further spraying or spitting blood or otherwise assaulting the second, third and fourth defendants.

The court is satisfied that the second defendant acted reasonably in all the circumstances then existing and that the force used by him was reasonable and proportionate to the very real risk he then faced. This court is mindful of the significant potential health risks faced by all emergency workers exposed to blood from other persons.

This court is satisfied on balance that each of the third and fourth defendants used reasonable force in all the circumstances to restrain the plaintiff from further assaults on them. In such circumstances, the court is satisfied further that each of them acted in self-defence and in the defence of others. Again, the court is well satisfied that the force used by each of the third and fourth defendants was proportionate to the very real risk that faced each of them.

On balance, this court is of the view that it is most likely and most probable that such injuries to the plaintiff's neck were caused at some stage during the fourth assault when Sergeant Kaeser had firm hold of the plaintiff's head in the manner as demonstrated by him to the court, that is to say, with Sergeant Kaeser firmly holding the plaintiff's cheeks with some of his fingers of each hand extending down on to the plaintiff's neck area.

Again, this court is satisfied that such a situation was not a static situation and that the plaintiff was then continuing to struggle violently until such time as he was finally once again subdued.

This court is again satisfied that Sergeant Kaeser was using no more force than was reasonable in the circumstances then existing in his attempts as a police officer to restrain the then violent plaintiff and in particular to prevent the plaintiff from further spitting or spraying blood at any of the officers.

30 His Honour was 'in no way satisfied' that the police defendants had acted in concert to unlawfully assault the appellant, or that they had aided and/or abetted one another to do so.

31 It is not altogether clear whether his Honour concluded that s 464K applied to the entirety of the incident. He referred to the section in connection with the first alleged assault, but not in relation to any of the other assaults. But having completed his explanation why those other assaults were lawful, he added this:

For the sake of completeness it perhaps should be stated by this court that it is satisfied that in the circumstances that then existed on 14 May 2005 in the fingerprints room at the St Kilda Police station that no more than reasonable force was used by members of the police force in the taking of the plaintiff's fingerprints. This court is well satisfied that at all times when the plaintiff was having his fingerprints taken he was standing and was not kneeling, as the plaintiff himself claims, with his arms fully extended.

It seems clear on the evidence that during the process of fingerprinting the plaintiff there were two quite separate intervening acts caused solely by the actions of the plaintiff himself. Firstly, when the plaintiff spat and moved threateningly towards Sergeant Kaeser causing Sergeant Kaeser to take appropriate action in self-defence and then in the struggle that ensued where the three officers were attempting to restrain the plaintiff; and secondly, when the plaintiff spat or sprayed blood at Sergeant Lewis and again was required to be restrained by the three police officers.

Probably, we consider, this passage should be read as a conclusion that the police defendants were engaging in an attempt to obtain the appellant's fingerprints throughout the period embraced by the five alleged assaults.

32 Because the judge found for the police defendants, he did not address the question of damages, or the possible relevance of the Wrongs Act provision. Neither again did he deal, on a contingent basis, with the way in which s 123(2) of the Police Regulations Act would have applied.

1. The trial judge erred in holding that -

(a) in holding that the Fourth Respondent/Defendant, and/or the Second and Third Respondents/Defendants:

(i) had complied with the provisions of s. 464K of the Crimes Act 1958;

(ii) were entitled to use reasonable force to take the Appellant/Plaintiff's fingerprints;

(iii) had used reasonable force to obtain the Appellant/Plaintiff's fingerprints;

(b) in failing to hold that the provisions of s. 464K of the Crimes Act 1958 had not been complied with by the Fourth Respondent/Defendant, and/or the Second and Third Respondents/Defendants;

(c) in failing to hold that the attempt to take, and the taking, of the Appellant/Plaintiff's fingerprints by the Fourth Respondent/Defendant, and/or the Second and Third Respondents/Defendants, constituted an unlawful assault upon him;

(d) in failing to hold that the Appellant/Plaintiff was entitled to resist the attempt to take, and the taking, of his fingerprints by the Fourth Respondent/Defendant, and/or the Second and Third Respondents/Defendants.

2. The trial judge erred in failing to hold that -

(a) the first assault;

(b) the second assault;

(c) the third assault;

(d) the fourth assault; and

(e) the fifth assault;

upon the Appellant/Plaintiff was not established against the Second, Third or Fourth Respondents/Defendants; and in particular, in finding that at all relevant times the Second, Third or Fourth Respondents/Defendants -

(i) used no more than reasonable force;

(ii) did not use excessive force;

(iii) acted in self defence or the defence of others;

(iv) used no more than proportionate force;

(v) did not use disproportionate force;

(vi) were lawfully entitled to assault the Appellant/Plaintiff.

The findings of the trial judge that the Second, Third or Fourth Respondents/Defendants did not unlawfully assault the Appellant/Plaintiff are against the evidence and the weight of the evidence.
The trial judge erred in failing to hold the First Respondent/Defendant liable for the unlawful assaults by the Second, Third or Fourth Respondents/Defendants, or one or other of them, pursuant to s. 123 of the Police Regulation Act 1958.

34 We would allow the appeal. We would, as all parties requested the Court to do in the event that the appeal succeeded, assess the appellant's damages. We would award him a total of $98,000, on the basis which we later outline.

35 So far as the appeal concerns the meaning of s 464K of the Crimes Act, there is first a question of statutory interpretation. Then the facts must be considered in the statutory context thus established. The latter aspect, as will be seen, is not free of credit issues.

36 This was a hard-swearing case; and the advantages of the trial judge must be recognised in substance and not simply as a matter of form. The judge, as we have said, reached conclusions about the credit of the appellant and of the police witnesses. But in many respects his Honour's assessment of the credit of the witnesses was not decisive in the fact-finding exercise. Further, to the extent that his Honour's findings were credit-based, the High Court has been very clear about the obligation of appellate judges not to be constrained by such findings where the evidence demands findings to the contrary.[5] In the present case, we are bound to say, the judge made a number of findings about the conduct of the appellant and the police defendants which cannot be sustained. No matter how great was the credit differential between the appellant and the police defendants, it could not deny the evidence.

37 In a number of instances, as will be seen, the evidence of the police witnesses meant that the appellant must have succeeded upon aspects of his claim. That was particularly so with respect to the third, fourth and fifth alleged assaults. The appellant's evidence showed clearly that he did not have a full recollection of the incident, most particularly - and we should say, understandably - that part of it which occurred after he was struck by Kaeser. Although the statement of claim in its final form, as we have said, followed the sequence of which the police defendants gave evidence, the appellant's evidence would not have made out the third and fourth pleaded assaults. The evidence of the police defendants, however, both in examination in chief and more particularly in cross-examination, in our view did make out that case; and the judge erred in concluding to the contrary.

38 There is another, interrelated, aspect of the judge's conclusions which we should mention at the outset. His Honour made findings that the police defendants used 'reasonable' or 'reasonable and proportionate' force; and that force used 'was not excessive in all the circumstances'. It can be said that those findings involved matters of fact and degree. In considering this appeal, we have treated them, favourably to the respondents, as discretionary findings, to which the principles in House v The King[6] ought be applied. Applying those principles, we have concluded, as will be seen, that a number of the findings could not be sustained.

39 Each of the police defendants sought to defend his conduct, with respect to each of the alleged assaults, by reliance on s 464K of the Crimes Act. That section relevantly reads:

(1) A member of the police force may take, or cause to be taken by an authorised person, the fingerprints of a person of or above the age of 15 years who -

(a) is believed on reasonable grounds to have committed; or

an indictable offence or a summary offence referred to in Schedule 7.

(2) A member of the police force intending to fingerprint a person under this section must inform the person in language likely to be understood by him or her -

(a) of the purpose for which the fingerprints are required; and

(b) of the offence which the person is believed to have committed or with which the person has been charged or for which the person has been summonsed to answer to a charge; and

(d) that if the person refuses to give his or her fingerprints voluntarily, a member of the police force may use reasonable force to obtain them; and

(3) Subject to subsection (4), the member of the police force who informs a person of the matters in subsection (2) must -

(a) record (whether by audio recording or audiovisual recording);

the giving of that information and the person's responses, if any.

(7) A member of the police force may use reasonable force to take the fingerprints of a person referred to in subsection (1) who refuses to give them voluntarily if the use of reasonable force is authorised by a member in charge of a police station at the time of the request or a member of or above the rank of sergeant.

40 We should also set out parts of s 464N and s 464Q. They were referred to in argument. Section 464N relevantly reads:

(2) If -

...

(b) reasonable force is to be used to take fingerprints -

a person of the same sex as the person to be fingerprinted must, if practicable, take the fingerprints and a member of the police force involved in investigating the offence for which the fingerprints are required must not, if practicable, take the fingerprints.

41 Section 464Q is relevantly as follows:

(1) Evidence in respect of fingerprints taken from a person is inadmissible as part of the prosecution case in proceedings against that person for an offence if -

(a) the requirements of sections 464K to 464N have not been complied with;

...

(2) A court may admit evidence in respect of fingerprints otherwise

inadmissible by reason of subsection (1)(a) if -

(a) the prosecution satisfies the court on the balance of probabilities that the circumstances are exceptional and justify the reception of the evidence; or

(b) the accused consents to the reception of the evidence.

(3) For the purposes of subsection (2)(a), the probative value of the

fingerprints is not to be regarded as an exceptional circumstance.

42 The pertinent facts are as follows: (1) The only person who informed the appellant of all the matters set out in s 464K(2) was Constable Angus. To make the matter quite clear, Falconer did not do so. (2) The purpose assigned by Angus why the appellant's fingerprints were required - vide sub-s (2)(a) - was for 'identification'. But Angus also said - 'Because you've been interviewed, we need to take your fingerprints, okay?' (3) The appellant did refuse to give his fingerprints voluntarily. (4) The information conveyed by Angus was recorded in a manner authorised by sub-s (3); and whatever Falconer said in the fingerprint room with respect to the taking of fingerprints (it was not suggested that it was enough to comply with sub-s(2)), was not recorded. (5) Angus did not give evidence. There was thus no direct assertion that he intended to fingerprint the appellant. (6) Falconer was, at the critical time, the officer in charge of the station. On his account, he authorised the use of reasonable force to take the appellant's fingerprints: vide sub-s (7). (7) More than that, he authorised himself to use reasonable force. (8) Falconer completed an 'authorisation to use reasonable force to take fingerprints' form. This document interrelated with a procedure prescribed by the Victoria Police Manual. The document was purportedly signed at 9.45pm on 14 May 2005. It was false in that it was not prepared until 15 May. Moreover, at 9.45pm on 14 May the appellant was still being interviewed by Angus. Yet the form stated that 'the person refused to consent to the taking of their fingerprints'. (9) Beyond that, Falconer was asked this question, and gave this answer:

Do we take it that you must have authorised yourself in some fashion to use force? ---Yes. I suppose that's right.

(10) Lewis was not asked by Falconer to come into the fingerprint room to assist in fingerprinting the appellant. He agreed that he took it upon himself to assist. Falconer did not assert that he asked Lewis for 'a hand'. Asked who authorised Lewis, he replied -

What about Mr Lewis; who authorised him?---He is also a sergeant so I would think it would be the same for him, that he would have the authority to do it as well. But then, as a person in charge I suppose it really - also in charge of the station, it fell on me.

(11) Kaeser said that he 'decided to go down there to see if [he] could assist'. Falconer, so far as the evidence revealed the situation, did not ask Kaeser to assist him. Kaeser gave no evidence of engaging in the mental exercise of authorising himself to use reasonable force to take the appellant's fingerprints.

43 The judge held that - (1) The effect of subs (1) is that any member of the police force may take or cause to be taken the fingerprints of a person if the circumstances set out in that subsection exist. (2) The 'member of the police force intending to fingerprint', for the purposes of subs (2) was Angus. (3) Angus had complied with the requirements of sub-ss (2), (3) and (4). (4) Falconer was empowered by sub-s (7) to authorise the use of reasonable force. Any authorisation 'written, oral or otherwise' would suffice. (5) Nothing prevented Falconer, having authorised the use of reasonable force, himself using such force. (6) Section 464K does not require the person mentioned in sub-s (2) to be the same person 'who physically intends to take the person's fingerprints and then actually does so'. (7) Falconer was not, for the purposes of s 464N(2), 'a person involved in investigating the offence'.

44 In our opinion, s 464K should be construed, and its application in the present case should be determined, as follows.

45 First, sub-s(1) is permissive. In the event that one of the circumstances described in paragraphs (a), (b) and (c) is satisfied, and that the person is 15 years of age or older, a member of the police force may take the person's fingerprints or may cause the fingerprints to be taken by an authorised person. The Court was informed that the responsible Minister appointed police reservist, protective services officers, and public service officers and employees for the time being attached to the Victoria Police Fingerprint Bureau to be authorised persons by notice published in the Government Gazette on 20 December 1989. The Court was not informed that any other authorisation was in force at the relevant time.

46 Second, the fact that a person's fingerprints may be requested, and must be provided either voluntarily or else compelled by the use of reasonable force, involves a significant potential intrusion upon a person's right against self incrimination. The person may be compelled to do something which may provide evidence that an offence has been committed by that person. Moreover, fingerprinting whether voluntary or by use of reasonable force involves rendering lawful what would otherwise be an assault by the police officer(s) upon the person being fingerprinted. In these circumstances, there is every reason why the procedures laid down by s 464K should be rigorously adhered to, and why in a particular case a court should be astute to see that there has been such adherence.[7]

47 Third, sub-ss(2)-(6) prescribe a procedure which must be followed in every case in which the fingerprints of a person who satisfies sufficient criteria in sub-s(1) is requested to provide his or her fingerprints. The first requirement of sub-s(2) is that the member of the police force intending to fingerprint the person is obliged to give the information set out in that subsection. In the present case, the judge concluded that Angus met that description. As we have earlier said, Angus did not give evidence. In the event, there was no direct evidence that he had any such intent. In this Court, counsel for the appellant submitted that there was a gap in the proofs relied upon by the respondents. If Angus had not met the relevant description, then the information which he had given the appellant was beside the point. No other police officer had given the required information. It followed that a pre condition for the use of reasonable force to obtain the appellant's fingerprints did not exist. In our opinion, that argument should be rejected. Angus conducted an interview with the appellant, and concluded that the appellant may have committed relevant offences, and that he should be fingerprinted. It appears to us to be a fair inference that Angus did have the intent described in the subsection.

48 Third, as we said a moment ago sub-ss(2)-(6) prescribe the procedure which must be followed before fingerprints are taken. Subsection (2) states what information must be provided to the person involved. For the reasons which we explained at [46], there must be rigorous compliance with the requirements of that subsection, not merely lip service. In the present case, Angus stated that the purpose for which the appellant's fingerprints were required was 'identification'. He also stated that there was a need to take the appellant's fingerprints 'because you've been interviewed'. The second of those statements, if it was to be understood as a statement of purpose, and in any event a statement of justification, was simply wrong. As to the first, we were initially attracted to the view that it was insubstantial and lacked bona fides. But on reflection, we are persuaded that it was a legitimate purpose because the presence of the appellant's fingerprints on certain items, which it was alleged he had touched in the course of the reported assault on his girlfriend, could have been relevant to proof of the offence. True it was that the appellant had agreed in his interview with Angus that he had touched at least one of the items. But it did not follow that he would adhere to the admission if the matter went to court.

49 Fourth, a question arises whether the police officer 'intending to fingerprint' for the purposes of sub-s(2) means only the person who intends to carry out the physical act. If that was the true position, then the information provided by Angus was an irrelevance, even accepting that Angus did have such an intention.

50 In our opinion, sub-s(2) should not be so understood. There are several indications why this is so. In the first place, sub-s(2)(d) appears to permit differentiation between the person having the intent and the person who may use reasonable force to obtain fingerprints from an unwilling person. This does not mean that the person having the intent and the person taking the fingerprints must be different, but only that they may be different. In the second place, sub-s(2) requires that a member of the police force must have the relevant intention. But under sub-s(1), a member may cause the fingerprints to be taken by a person other than a police officer. There is another consideration also. Section 464N(2) suggests that in cases to which s 464K(7) applies there may be reason why the person having the relevant intent is not the person who undertakes the fingerprinting.

51 Fifth, if 'intending to fingerprint' is a description not confined to the police officer who proposes to perform the physical act then, assuming the officer who provides the information and the officer who proposes to perform the physical act are not one and the same, and assuming that the latter also has such an intention, must that person replicate what - as in this case - has already been done? What if more than one police officer is involved in the physical act of fingerprinting, and has such an intention?

52 In our opinion, once it is understood that the person having the intent and providing the information will not necessarily be the person who undertakes the fingerprinting, it cannot be to the point that the person who proposes to undertake the fingerprinting has a relevant intent provided that the necessary information has been provided earlier by another police officer having that intent. There is no sensible reason why the same information should be provided twice over; or, if the fingerprinting is to be undertaken by more than one police officer, that it should be provided more than twice over.

53 Sixth, sub-s(7) authorises the use of reasonable force by a member of the police force in obtaining fingerprints from a person who refuses to voluntarily give his or her fingerprints provided that the use of such force is authorised by a member in charge of the police station at the time when the request for fingerprints is made, or a member of or above the rank of sergeant. The statute does not require that the authorisation be in writing, or, indeed, in any other form. It is correct to say that the procedure laid down by the Police Manuel does not have the force of statute. But in our opinion, it is critically important that authorisation be real and not a matter of indifference. The authorisation of reasonable force has the effect of permitting not merely a technical assault but an assault which may be substantial.

54 A designated person may authorise another police officer, or officers, to act in accordance with sub-s(7). We accept also that a designated person may authorise himself or herself to act in accordance with that subsection. As to the latter, the subsection would otherwise be at least extremely difficult of application in the case of a police officer operating a one-man station.

55 In the present case, we consider, the evidence was incapable of sustaining a conclusion that Falconer authorised himself, and the other officers, to act under sub-s(7). Further, he did not say anything to Lewis or Kaeser authorising them to act in such a way. Further again, a conclusion is unavailable that either Lewis or Kaeser individually authorised themselves to use such force.

56 The only purported authorisation for what was done was the false document prepared by Falconer on 15 May. Other than that, the viva voce evidence given by the police defendants did not assist them.

57 Falconer was asked this question and gave this answer

Do we take it that you must have authorised yourself in some fashion to use force?---Yes. I suppose that's right.

58 Asked who had authorised Lewis, Falconer replied

He is also a sergeant so I would think it would be the same for him, that he would have the authority to do it as well. But then, as a person in charge I suppose it really - also in charge of the station, it fell on me.

The witness accepted that 'a decision has to be made'.

59 Lewis gave evidence that Falconer had not asked for assistance. He had simply taken it upon himself to assist. He gave no evidence of having considered the question of authorisation, including self authorisation.

60 Kaeser gave evidence that he was just walking past the fingerprint room when he looked in and saw Falconer and Lewis with the appellant. When he heard loud voices he decided to return 'to see if I could assist'. He gave no evidence of being asked by Falconer to assist, or evidence that he had considered the question of authorisation at all - in which description we include self authorisation.

61 Seventh, in the event, the three police defendants were not authorised to use reasonable force in taking the appellant's fingerprints on the evening of 14 May 2005. The question which then arises is the consequence of that conclusion in the context of the appellant's claim for damages for assault.[8]

62 It was submitted for the respondents that the consequence was to be determined in the light of the approach described in Project Blue Sky and Others v Australian Broadcasting Authority,[9] where McHugh, Gummow, Kirby and Hayne JJ said this:

An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.[10]

and

... a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to 'the language of the relevant provision and the scope and object of the whole statute'.[11]

63 Then counsel focused upon s 464Q, set out at [41] above, submitting that parliament had there stated the consequences of a contravention of s 464K. It followed, the argument ran, that an act done by a police officer in contravention of s 464K nonetheless left the section available for use by that officer in defence of a civil proceeding.

64 We do not accept that submission. Section 464K is concerned with a potential criminal prosecution. In that context, it abridges the right against self-incrimination. The result may be the unwilling provision of damaging evidence, admissible in a criminal proceeding. Further, what would otherwise be the criminal offence of assault is not to have that character.

65 In our opinion, it is in that context, consistently with Project Blue Sky, that s 464Q is to be understood. To provide that an act done in contravention of, inter alia, s 464K does not render fingerprint evidence necessarily inadmissible in a subsequent criminal proceeding no doubt specifies the consequence of contravention for an ensuing criminal prosecution. The contravening act is not necessarily invalid, in the sense that material obtained as a result of the contravention may in some circumstances be admissible in a subsequent criminal proceeding. But it is another thing altogether whether, in answer to a civil claim in assault, a contravening police officer may claim the protection of s 464K(7) - the question not then being whether the contravening act was void. We see no reason why s 464Q, which says nothing about the consequence of breach in a civil context, should be read - in effect, because of what it does not say - as having the effect that a contravening act, for the purposes of a defence to a civil proceeding, is to be treated no differently than an act done consonantly with the statute.

66 It was submitted that there might be, in a particular case, only a minor contravention of s 464K. This was said to show that a construction which deprived a police officer of a defence to a civil proceeding was not tenable. We do not agree. In any civil case, the officer will be seeking to show that he or she acted in a way protected by s 464K. The evidence in the particular case will determine whether the tribunal of fact is satisfied that circumstances enabling reliance upon the section have been established.

67 We should finally say that we have considered a number of authorities which emphasise the need, and the policy justification for, rigorous adherence to legislative requirements in the case of search warrants.[12] We consider that the issues which arose in those cases mean that they lack direct relevance, although they underline, by analogy, the need for rigorous adherence to statutory requirements where abridgement of established liberties is authorised.

68 Thus far, we have referred to the assaults pleaded by the further amended statement of claim as 'alleged assaults'. Because of the view that we have taken about the application of s 464K in the circumstances established by the evidence, it is no longer appropriate to characterise the assaults as 'alleged'.

The practical significance of the s 464K conclusion

69 In considering the defences raised in answer to the assaults, we should say at the outset that only the first assault is affected in a practical way by the conclusion which we have reached about the applicability of s 464K. That is because, as will be seen, we have concluded that the section could not possibly apply in the case of the second assault - that is, the blow struck by Kaeser; and because we have concluded that even if the conduct constituting the third, fourth and fifth assaults could possibly be characterised as having been in aid of taking the appellant's fingerprints, on no view could it be characterised as the use of reasonable force.

70 In Zecevic v DPP,[13] self defence was described this way by Wilson, Dawson and Toohey JJ:

The question to be asked is in the end quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did.

71 There are two elements to this test. In the context of a civil proceeding, the defendant must have believed at the time when he committed the relevant act that what he was doing was necessary; and that belief must have been based on reasonable grounds. The second element does not involve a test about what a hypothetical reasonable person might have believed in the circumstances, but rather whether the defendant had reasonable grounds for his belief, in the circumstances as he perceived them to be.

72 In determining whether the defendant believed that the force used was necessary, consideration should be given to the fact that a person who has reacted instantly to imminent danger cannot be expected to weigh precisely the exact measure of self defensive action which is required.

73 The proportionality of a defendant's response to the harm threatened is just one factor to take into account in determining whether the defendant believed that his actions were necessary.

74 In a civil trial - by contrast with the situation in a criminal proceeding - it is for a defendant who pleads the defence to establish it. Insofar as proportionality of response is relevant to a conclusion whether the defendant believed on reasonable grounds for him or her to do what he did, the burden of establishing proportionality rests on the defendant.[14]

75 The test stated in Zecevic, appropriately adopted, has been held to apply to cases in which a defendant acts in defence of another: R v Portelli.[15] The question becomes whether the defendant believed, on reasonable grounds, that it was necessary to do what he or she did in defence of another person.

76 Falconer and Lewis assaulted the appellant by laying hands on him, restraining him, and attempting to move him to the fingerprinting counter. There is no evidence that what they did caused the appellant physical injury. Nonetheless, what they did was an assault, and in our opinion it should sound in modest damages.

77 Contrary to the conclusion which, as we understand it, was reached by the judge below, no defence under s 464K was available to Kaeser.

78 The section apart, the judge found that Kaeser had acted in self defence and that the force which Kaeser used was reasonably proportionate to his perception of the threat faced.

79 The judge's conclusion that Kaeser acted in self defence depended upon his finding that the appellant 'moved forward or lunged at Kaeser'. In that connection the judge found that the appellant had given inconsistent accounts as to whether he was resisting being fingerprinted by Falconer and Lewis - by pulling away from them - immediately before he was struck by Kaeser. The judge referred to statements made by the appellant to police officers in pursuit of a complaint against the conduct of police defendants, to the appellant's answer to an interrogatory, and to his viva voce evidence.

80 The judge was entitled to conclude that the appellant had given inconsistent accounts about that matter. Strictly, some of the inconsistencies could only have gone to his credit. Be that as may, his Honour was also quite entitled to conclude that the appellant was attempting to resist being taken to the fingerprinting counter very soon before he was struck by Kaeser. That is one thing; it is another thing altogether whether, as the judge found, the appellant moved forward or lunged towards Kaeser immediately before he was struck.

81 The accounts given by the police defendants in evidence were as follows:

• Kaeser said that the appellant was pulling back from Falconer and Lewis, but that after the verbal exchange the appellant

... came towards me. I would say - whatever term. Lunged, moved forward. He had forward momentum straight at me. Whilst he came at me he spat. I felt the spray of saliva in my face.

• Falconer said that the appellant was resisting being pulled to the fingerprint counter. Then, in response to what Kaeser said about a pregnant woman alleging that she had been assaulted -

He stopped pulling away from the counter and he spat at Sergeant Kaeser.

What happened to Mr Watkins, to you and Sergeant Lewis?---We moved forward at that time. As I said, he stopped pulling backwards so as we were pulling in that direction we all moved forward.

What then occurred?---As he went forward I had lost full control of his arm, just in that - because he had been posting (sic) and pulling backwards, when he went forward it surprised me. My hands were still around his arm and Sergeant Kaeser struck Mr Watkins to the face.

...

What then occurred?---As soon as Mr Watkins had gone forward, once I realised he was going forward I pulled backwards on him, on his upper arm, and that was at or slightly after he was struck by ... Sergeant Kaeser.

... immediately after Sergeant Kaeser said to him words to the effect of, 'well, there is a pregnant girl out there', Watkins stopped struggling and he said 'get fucked' and went forward and spat. Now, that changed his body momentum. We were trying to force him to a fingerprint desk. He was leaning back and struggling and bridging with his feet and when he stopped and changed momentum we all went forward in a swift motion.

What then occurred?---With that I saw Sergeant Kaeser strike out with an open hand and struck the defendant (sic) to the face area.

Lewis said that he 'lost balance during all of that' and went reeling backwards. Thereafter, as he put it, he 'rejoined the fray', feeling that 'we didn't have proper control of the plaintiff'.

82 Each of Falconer and Lewis referred to not having full control over the appellant at one stage during the incident. We have already referred to one observation made by Lewis in that connection. Falconer said, when asked whether he had full control of the appellant

No, I did not. After he was struck he changed from just resisting us to actively trying to break free.

Lewis, having earlier stated that he felt that they did not have proper control over the appellant at the time when he rejoined the fray, later improved upon that evidence. In cross-examination by counsel for Kaeser, he said

Well, even though it was difficult I thought I had effective control of him early, but once he stopped resisting us and then said, 'get fucked' and then went forward ... because I was trying to go forward anyway, but I didn't have effective control of him, no.

83 We should refer to one other aspect of Kaeser's evidence at this stage. The witness gave evidence that the appellant's change of direction caused him to fear that he would be 'headbutted or hit or something'. He had been headbutted in the past and he was apprehensive that it should not happen again. It was thus, on Kaeser's evidence, the appellant's forward movement and his own apprehension which led him to strike the appellant in the face as hard as he could. To be even clearer, the blow was not struck as part of an attempt to take the appellant's fingerprints and it was not struck because the appellant, as Kaeser alleged, either swore or spat at him.

84 The judge held, as we noted at [29](3) above, that despite 'obvious deficiencies ... in respect of their note taking, statement taking and report writing abilities' the police defendants were reliable witnesses. His Honour's approach reduced statements by the police defendants, some of which constituted admissions against interest, and all of which were apt to impair their credit, to a simple problem of note taking. This was, with respect, an entirely wrong approach.

85 As will be seen, the police defendants made a series of statements in the period between 14 May and 21 June 2005. The statements made on 14 and 15 May were made in the certain knowledge that the appellant had been struck, manhandled, and had suffered injury at their hands at the police station on the evening of 14 May. Further, at least Kaeser also knew that the appellant had rung the emergency services hotline whilst still at the police station, although it was not shown that he knew what complaint the appellant had made. In all, from the very beginning the police defendants had every reason to give a full account of the critical events.

86 Kaeser made the following notes in his day book:

Taking prints by force → spat in my face - threatened myself & LEWIS 'I will shoot you cunt'. Force used to ensure compliance. → Spat blood on Sgt LEWIS & Sgt FALCONER → F/P taken by Sgt FALCONER - photo of blood on fall. Sgt F offered → Some in vehicle collision. 13/5/05

Notably, this account made no reference either to the appellant having lunged towards Kaeser, or to Kaeser having struck him.

87 Kaeser completed an occupational health and safety incident notification on 15 May, in which he noted by an injury to his arm arising out of the incident. In that document, he said this

Assisting sergeants FALCONER and LEWIS with non compliant suspect refusing to provide finger-prints which occurred in the fingerprint room at Stkilda [sic] Police station. Progressed to grapple after being spat on and then fell to the floor before suspect complieing [sic] with instructions.

There, no reference was made to a spit, a lunge, or a blow.

88 The incident came to be investigated by the Ethical Standards Department of Victoria Police. Kaeser made a statement dated 21 June. He stated in evidence that he had four or five days in which to compile this statement. This is what he said

WATKINS then spat at me. I then struck him to the head area to prevent further assaults, then took hold of his upper body to subdue him. WATKINS then tried to break free and was subdued and decentralised with the assistance of LEWIS and FALCONER. I held his head to stop him from spitting again. He was yelling abuse at us and I continually verbalised commands to comply with our instructions. He soon tired and stopped resisting.

89 That statement made no reference to a lunge. It explained the blow which had been struck as having been 'to prevent further spitting'. It is convenient to note that in his viva voce evidence Kaeser agreed, 'definitely', that somebody merely spitting at him would not give him any justification for hitting the person as hard as he could in the face.

90 Kaeser conceded in cross-examination that it was a 'remarkable omission' that he had not referred in his statement to the explanation which he gave at trial for having struck the appellant.

91 The three policemen had a discussion in the late evening of 14 May. It was agreed that Falconer write the definitive account of the incident in a 'use of force' report.

92 Falconer wrote up an account of events in his day book, partly on 14 May, the balance on 15 May. He wrote this:

LEWIS and I took an arm each and pulled him toward the FP counter but he kept pulling away. Sgt KAESER came in K/S 'What's wrong mate just do what you're told and comply. H/S I haven't done anything wrong. K/S Well there's a pregnant woman here who says you assaulted her. H/S Get fucked. Spat at Kaeser who struck him to face/head area. WATKINS tried to pull free and was grappled and pulled to the gnd and held until he stopped resisting.

In that account there was no mention of a lunge, of loss of control of the appellant, or of the statement attributed by Falconer to Kaeser at the trial.

93 On 15 May Falconer also prepared the 'use of force' form. Relevantly, it said this:

WATKINS was in custody in relation to a domestic assault and had been co-operative until his fingerprints were requested. He refused to give them voluntarily twice on tape and again to FALCONER who explained that force would be used if he did not comply. FALCONER and LEWIS then used physical force to start taking fingerprints. KAESER heard the wrestling and on entering the room WATKINS spat at him. KAESER struck him to the face to prevent further spitting.

Again, there was no reference to a lunge. There was however reference to Kaeser having struck the appellant 'to prevent further spitting'.

94 Falconer made a statement on 20 June. Parts of it were read into the transcript:

Then: 'Kaesar said, "What's wrong, mate? Just do what you are told and comply".' You said that?---Yes.

That was accurate?---Yes, it was.

Then: 'Watkins said I haven't done anything wrong.' Did you say that and was it accurate?---Yes, that's what I wrote and yes, it was accurate.

'Kaesar said "Well, there's a pregnant woman here who says you assaulted her".' Did you say that?---Yes, I wrote that.

Was that accurate?---Yes, it was.

'Watkins said "Get fucked".' Did you write that?---Yes, I did.

Was it accurate?---Yes, it was.

'He then spat at Kaesar who immediately struck Watkins to the head.' Did you say that?---Yes, I did.

'Watkins then tried to break free and after a short struggle we forced Watkins to the ground.' Did you say that?---Yes, I did.

In a later interview with an officer of the Ethical Standards Department, however, Falconer admitted that he had not seen the appellant spit at Kaeser.

95 Falconer, it is convenient to note, was the only one of the three police defendants to take part in a record of interview. The three of them having made statements, Kaeser and Lewis made 'no comment' records of interview. The reason why that should have been done, if it was not a matter of accident, is not difficult to discern.

96 Lewis stated in evidence that he read Falconer's initial account of the event, and that he agreed with it. After the Ethical Standards Department became involved, he made a statement on 19 June. Relevant parts of the statement were put to him, and he accepted their accuracy, in the course of his evidence. Thus,

'As we struggled with Watkins Sergeant Kaesar walked into the fingerprint room and told Watkins to behave himself and not to struggle with the police.' Did you say that?---In the statement I did, sir, yes.

Was that the truth?---That was the gist of what was happening, yes.

HIS HONOUR: You weren't asked that. You were asked if it was the truth?---It's the truth, sir, yes.

MR PRIEST: 'As he was saying that Watkins looked in his direction and spat at Kaesar, then Kaesar immediately used an open hand and slapped Watkins to the head forcing his head away from himself.' Did you say that?---I said that, sir, yes.

Do you say that's the truth?---Yes, sir.

97 In that statement, again, no reference was made to the appellant having lunged forward before he was struck by Kaeser. Indeed, Lewis gave evidence that the first occasion on which he had said anything about a lunge was at a Magistrates' Court hearing which we were told took place in October 2006.

98 Counsel for the appellant submitted that the evidence given by the police defendants at trial about a lunge, or forward movement, was 'a wicked lie'. It is unnecessary for us to go so far. It is enough to conclude, as we do, that the evidence was overwhelmingly opposed to the appellant having lunged at Kaesar.

99 Stripped of the only justification which Kaeser offered for the blow, the defence of self defence must fail. His alleged belief was anchored to a factual circumstance the existence of which we reject. Further, even if the circumstance had existed, we would reject the suggestion that he had reasonable grounds for believing that what he did was necessary. Upon an assumption that the appellant did lunge, or move forward, towards Kaeser, whilst allowing that events moved very quickly and that there was little time for mature reflection as to what should be done, we cannot accept that Kaeser had reasonable grounds for a belief that using all his force to strike the face of a smaller man who was under restraint could possibly be a permissible response to an apprehension of risk of injury of the kind identified by Kaeser - an apprehended risk which, as described by Kaeser,[16] itself lacked credibility.

100 What the appellant pleaded as the third assault occurred very soon after he had been struck in the face by Kaeser. As pleaded, the assault was perpetrated by Falconer and Lewis, each of whom pleaded by his defence that he had used reasonable force to restrain the appellant assaulting all three police defendants, and that what he had done was use reasonable force in self-defence and defence of others. Kaeser did not plead to the statement of claim, because no allegation was raised against him. But the evidence was unequivocal that in fact he took part in the conduct constituting the assault.

101 The precursor to the assault was the blow struck by Kaeser, not in self-defence which caused the appellant to bleed from the mouth.

102 The appellant was ultimately unable to describe the process by which he was taken to the ground. Indeed, as we said earlier, he did not give evidence which could have made out the third pleaded assault.

103 The circumstances in which and process by which the appellant was taken to the ground was described by the police defendants.

104 Kaeser said that Falconer gave an instruction that the appellant's legs be kicked out from under him. This was done. At that stage the appellant was still being held by the other police defendants 'in some form'. Kaeser said that he assisted in taking the appellant forcefully to the ground by holding his upper torso, 'around the shoulders'; and that he then held the appellant's head to the floor.

105 Falconer gave evidence that, following the blow struck by Kaeser, the appellant 'changed from just resisting us to actively trying to break free'; he was 'trying to break free with his arms'. He attempted to pull the appellant's right arm up behind his back. Being unsuccessful, he decided that the police officers should take the appellant to the ground. He, Falconer, tried to kick the appellant's legs out from under him, by kicking him on the shin. The appellant's legs gave way, he fell heavily to the floor, and Falconer fell on top of him. Then Falconer, on his account, grabbed the appellant's right arm with his arms and forced it up his back. He had his left knee in the appellant's lower back. Lewis forced the appellant's left arm up behind his back. The appellant struggled for a while, but then started to tire. Then, when Falconer 'was happy [the appellant] was going to comply' he and Lewis 'picked him up'.

106 According to Falconer's evidence, his actions after Kaeser struck the appellant (not confined to the circumstances constituting the third assault) were not done in self-defence but at different times were in defence of Kaeser and Lewis. As we understand it, Falconer claimed to have taken part in the third assault because he believed that the appellant was trying to attack Kaeser.

107 Lewis gave evidence that he decided to take the appellant to the ground because he and Falconer did not have 'proper control' over the appellant. He said that the appellant was taken forcibly to the ground, face first.

108 Each of Kaeser and Falconer compiled statements in the period between mid-May and late June 2005 concerning the incident. Lewis, as we have already said, made a statement to the Ethical Standards Department in June.

109 Kaeser said nothing about the third assault in his day book. In his statement made 21 June he said that

Watkins then tried to break free and was subdued and decentralised with the assistance of Lewis and Falconer. I held his head to stop him from spitting again.

Watkins tried to pull free and we grappled and pulled to the ground and held until he stopped resisting.

111 The OHS incident notification made by Kaeser on 15 May stated:

Progressed to grapple after being spat on and then fell to the floor before suspect complieing [sic] with instructions.

112 The use of force form prepared by Falconer stated:

Watkins was taken to the ground after a short struggle and was restrained until he stopped resisting.

113 In all, the evidence of the police defendants amounted to this: that the appellant tried to break free after he had been struck in the face by Kaeser. That attempt was met by the three police officers forcing him heavily to the ground, face first, and holding him there until he tired of any attempt to resist.

114 The starting point of this assault was the entirely unjustifiable blow struck by Kaeser. It is not to be wondered that the appellant made some attempt to break free from those who had been holding him whilst he was struck. The conduct of the police defendants in forcing him to the ground built upon the tortious act committed by Kaeser. It was done, it seems, without any proper regard for the question what injury had been inflicted upon the appellant by Kaeser's blow. The evidence of the police defendants as to what consideration they gave to the appellant's condition before taking him to the floor and, indeed, after he had been 'picked up', could not withstand scrutiny.

115 Even if there had been compliance with the requirements of s 464K of the Crimes Act, in our opinion a conclusion was unavailable that what was done on the occasion of the third assault was in aid of taking the appellant's fingerprints. Moreover, even if the conduct had been of that character, a conclusion that the force used was reasonable was, in our opinion, plainly unavailable.

116 Further, there was scant, if any, evidence that any of the police defendants acted on this occasion in self-defence. Likewise, there was little, if any, evidence which would support a defence of defence of another. Even if any of the police defendants held a belief that it was necessary to do what was done either in self-defence or in defence of another, we could not accept that any of the defendants discharged the burden of showing that such a belief was held on reasonable grounds. In that connection, the extent of the assault inflicted upon a man who had just been struck a heavy blow, who had suffered some injury, and who was under at least a degree of continuing restraint, tells strongly against there being reasonable grounds for a relevant belief. The judge's findings about this incident, to which we refer at [29](6), cannot be upheld. It is but one aspect of that conclusion that his Honour found that Falconer was acting in self-defence when Falconer expressly disclaimed that he had done so.

117 According to the statement of claim in its final form, the fourth assault involved the appellant, without lawful justification or excuse, being forcibly pushed or thrown against the wall of the fingerprint room and held there. As we have said, it was not in issue at trial that such an event occurred.

118 As with the third assault, the appellant did not give evidence which could support the fourth pleaded assault. Pertinent evidence was given by the police defendants. The gist of what they said was that, after the appellant had been 'picked up' from the floor, and after he had been given a very short while to rest, the decision was made to resume the attempt to fingerprint him.

119 According to the police defendants, there was no apparent reason why the attempt to fingerprint the appellant should not continue. Falconer gave evidence that he did not consider the appellant's injuries to be 'anything of concern at the time'.

120 Continuing with the police account of events, Falconer and Lewis took the appellant by the arms and led him to the fingerprint counter. Falconer began to take his prints. The appellant got upset again, and began to repeat what he had earlier said - that he had done nothing wrong. He raised his voice. Lewis then said to him 'stop yelling. You are spitting blood.' The appellant's response was to say 'It's your fucking fault' and then to blow towards Lewis what was described as a 'wet raspberry' of spittle and blood. It was this which caused the three police defendants to propel the appellant to the back of the room and push him hard against the back wall, face first - Falconer and Lewis holding him by the arms, and Kaeser holding him by the head. They acted this way to remove the risk of the appellant further spitting blood in their direction.

121 Photographs of Lewis' shirt were put in evidence. They showed five spots of blood. Lewis also stated that some blood-containing spittle got onto his face. Falconer stated that blood got onto his shirt. No photograph showing such a thing was put in evidence. No explanation was given how, with one policeman standing on one side of the appellant and one policeman on the other side, blood-containing spittle could have been ejected onto the shirts of the two men by the one act.

122 The appellant denied that he deliberately spat at any of the policemen at any time. The judge accepted that he had unintentionally spat blood when at the fingerprint counter, but had intentionally done so when Lewis told him to stop yelling because he was spitting blood.

123 At the time when the appellant was taken back to the fingerprint counter, he had been struck hard in the face by Kaeser, had had his legs kicked out from under him, and had been held on the ground by three policemen - two of whom had forced his arms up behind his back, one of whom had placed a knee in his lower back, and one of whom had held his upper body. The appellant had blood in the vicinity of his mouth and had also suffered damage to at least one tooth by that stage. He had said that he thought Kaeser had broken one of his teeth.[17]

124 Any suggestion that what Falconer and Lewis did in attempting to take the appellant's fingerprints at this time could be characterised as the use of reasonable force could not be accepted. Reasonable force had long since ended.

125 Although the appellant denied intentionally spitting deliberately at Lewis, we consider that the judge was entitled to so conclude. We would ourselves so conclude. As we perceive it, the appellant probably responded in that way to the repeated assaults upon him, compounded by the lack of consideration for his injuries which was epitomised by Lewis telling him not to yell because he was spitting blood.

126 It is one thing to say that, even provoked, upset, and injured as he was, the appellant should not have deliberately spat at Lewis - and perhaps Falconer. It is another thing altogether to conclude that the police defendants established that their response met the criteria which we have described so as to make out a defence of self-defence or defence of others. Acknowledging again that events must have moved very fast, and acknowledging that the police defendants were entitled to take some action to prevent a repetition of what the appellant had done, we do not accept, even if the police defendants believed it was necessary to do what they did in response to a perceived threat, that there were reasonable grounds for that belief. The amount of force applied by the three police officers to various parts of the appellant's body was in our view unarguably excessive in all the circumstances. The police defendants might have believed on reasonable grounds that it was necessary to turn the appellant's face so that it did not point in their direction. But they could not have believed on reasonable grounds that it was necessary to avert the appellant's face by forcibly pushing the appellant face first into a wall.

127 It was unarguably the case that after the events which occurred in the fingerprinting room the appellant had petechial haemorrhages on both sides of his neck and scratch marks on the left side of his neck. The haemorrhages bespoke the application of considerable force to the appellant's neck. The statement of claim in its final form did not attempt to say exactly when this injury had been done, or by which of the police defendants.

128 It seems likely that these injuries were inflicted by Kaeser, and that he inflicted them when he grasped the appellant's head in the course of the assault by the three officers which constituted the fourth assault. He was the only police defendant who admitted to holding the appellant in the region of his head - albeit that he first did so quite a long time after 14 May 2005, and notwithstanding that he had said nothing about having done so in his day book or the statement which he made to the Ethical Standards Department.

129 The fifth assault was closely related to the fourth assault. Nonetheless, both the act constituting this assault and the injury which it caused were discrete. The act could no more be justified than the acts constituting the fourth assault.

130 As we have already said, the parties agreed that in the event the appeal was to be allowed, they wished this Court to assess damages. We turn now to consider that issue.

131 The first assault consisted of Falconer and Lewis taking the appellant, one by each arm, and trying to pull him towards the fingerprint counter. The appellant did not sustain any physical injury in that assault. In assessing the damages, regard must be had to the natural feelings of affront suffered by a person who is forcibly manhandled. In our view, an appropriate assessment of the appellant's damages for the first assault is $3,000.

132 Assessing damages in respect of the second, third, fourth and fifth assaults is more difficult. Ordinarily, one would seek to identify the specific injuries caused by each assault, and then assess the damages discretely. But the case below was conducted on the basis that damages for the second to fifth assaults (if not for the first to fifth assaults) could be assessed compendiously.[18] This approach may well be explained by the fact that, until the statement of claim was put into its final form - after the evidence was completed - the appellant pleaded only a single assault, made up of a number of incidents. The final version, on the other hand, pleaded the five assaults in consecutive paragraphs, before pleading[19] 'by reason of the first, second, third, fourth and fifth assaults (or one or other or all of them), the plaintiff has suffered injury, loss and damage'. Particulars of injury were then given which were relevantly unchanged, and thus made no attempt to differentiate between the consequences of the assaults.

133 Regardless whether the explanation which we have proffered does explain what happened, it is the fact that at no time - whether during the trial, or after the statement of claim was put into its final form, or in this Court - did any of the respondents take issue with the way in which the appellant conducted his claim on the issue of damages. Indeed, at trial, there was little contest by the respondents on the issue of damages - and a like approach was taken on the hearing of this appeal. But by reason, however, of concessions which Victoria made on the appeal - specifically concerning the operation of s 123(2) of the Police Regulation Act - and because of a conclusion we have reached about the operation of that provision with respect to the second assault, it is necessary to do the best we can to assess the damages separately with respect to each assault.

134 It is convenient to describe immediately the concessions made by Victoria. It conceded[20] that any liability which Lewis and/or Falconer had in respect of the first, third, fourth and fifth assaults should be transferred to it under s 123(2) of the Police Regulation Act. So far as Kaeser was concerned, it was prepared to concede that any liability he had in respect of the fourth and fifth assaults should also be transferred. But it did not accept that there should be any transfer of liability from Kaeser to it in respect of the second assault, or in respect of the third assault. His involvement in the latter assault was characterised (depending upon conclusions reached by this Court as to the second assault) as being 'a continuing unlawful act of brutality which was not reasonably or necessarily done in good faith in the execution of his duty'.

135 Now we should express our conclusion about transfer of liability in respect of the second and third assaults. In our opinion, there should be no such transfer. As to the second assault, we agree with the submission for Victoria that -

The assault must be characterised as a physical assault on a person in custody who is being held by two other officers in circumstances which must be considered an act of brutality. ... such conduct cannot be reasonably and necessarily done in the execution of duty in good faith within the meaning of s123.

136 Kaeser's liability in respect of the third assault cannot be transferred because it was a direct consequence of the unnecessary and unreasonable blow which constituted the second assault. His conduct merited the characterisation given it by Victoria - that is, a continuing unlawful act of brutality

Part VBA, Wrongs Act 1958

137 Before turning to the assessment of damages, it is convenient to address a defence which only Kaeser raised. By his further amended defence, he pleaded that

Watkins v The State of Victoria & Ors [2010] VSCA 138

At a glance

Court

Decision date

Before

Source

Judgment (267 paragraphs)

Watkins v The State of Victoria & Ors [2010] VSCA 138 (11 June 2010)

Parties

Legislation Cited (1)

Cases Cited (8)