Wayne Quirk v The State of New South Wales

Judgment 1HIS HONOUR: On 1 and 7 March 2006 the plaintiff was arrested by police after encounters in Kingswood and in Sydney City respectively. Different Constables were involved on each occasion. Arising out of both events and following occurrences the plaintiff alleges that he was the victim of tortious conduct by them. Claims of that nature against police are required by statute to be brought against the State of New South Wales. 2A short sketch of some of the background and circumstances will identify from whence the various claims are sourced. This sketch is not intended to canvas all of the issues of contest between the parties. 3The plaintiff is the father of two children born to a relationship which he had with Tracey Knight. That relationship ceased. On 15 March 2005 she obtained an apprehended violence order (AVO) against him, current for 2 years from that date, which inter alia included an order in these terms: "13. Other Orders: THE DEFENDANT MUST NOT APPROACH, CONTACT OR TELEPHONE THE PROTECTED PERSON(S) EXCEPT FOR THE PURPOSE OF ARRANGING OR EXERCISING ACCESS TO CHILDREN ON ALTERNATE MONDAYS AT PASSADERA DAY CARE CENTRE AT 8AM OR NOT TO CONTACT EXCEPT FOR CHILDREN RELATED ISSUES BY USING TEXT SMS MESSAGING." 4On 31 January 2006 Tracey Knight was at St Marys Police Station complaining of a breach of this AVO by the plaintiff. She was being interviewed by Constable Arapa. It appears that there had been earlier contact during the day between the plaintiff and Ms Knight and she had asked him to call her later in the evening. At the time when this further contact might be expected she was at the police station with her mobile phone. There is dispute about exactly what happened or was said but Constable Arapa described an incoming call on Ms Knight's phone and it was placed on a speaker so that from that point he could hear the conversation. He said that, in conversing with Ms Knight, the plaintiff did not mention the children and he intervened and asked the plaintiff to attend the police station to discuss the apparent breach of the AVO. 5I shall later turn to some detail of what did or did not happen in the interim, but contact by telephone between the plaintiff and Constable Arapa took place on 1 March 2006. Soon thereafter Constable Arapa, accompanied by Constable Donney, went to Kingswood Autoport, a business which was then conducted by the plaintiff. At the time two other police officers, Constables Wade and Barnes were on foot patrol at Kingswood Railway Station which is opposite the Autoport. The Great Western Highway runs between it and the station. 6The plaintiff was in the driver's seat of his Holden Crewman Utility when, within the Autoport premises, he stopped as a result of a signal by a police officer. There is dispute as to what was said at the time but ultimately by the combined efforts of Constables Arapa, Wade and Barnes the plaintiff was physically removed from the vehicle and handcuffed. His appearance was such that an attendance by ambulance was arranged but after examination by the ambulance officers he was conveyed in a police vehicle to Penrith Police Station where he was taken into custody. Items of property were taken from him including a gold necklace which he had been wearing. 7He was charged with a number of offences and issued with court attendance notices (CANs). He was released to bail. The plaintiff claims that when his property was returned to him on release, the gold necklace was not included. 8Four charges were presented against the plaintiff being, in short description, contravening an AVO, resisting a police officer, failing to undergo a breach test and refusing to produce a driving licence. 9The return of the CANs was listed before the court on 23 March 2006 and the matters adjourned to 4 May 2006. The plaintiff did not appear. On a further adjourned date (18 May 2006) he did not appear and he was convicted of the four offences in his absence and a warrant issued for his arrest. Pursuant to that warrant the plaintiff was arrested on 22 May 2006 and when taken before the court on that day was released to bail. 10The plaintiff sought to have the convictions annulled on the ground that he had not been notified of the adjourned hearing dates. On 8 June 2006 a Local Court Magistrate annulled the convictions. 11Following the annulment the matters were again listed for hearing on 17 October 2006. There was an obligation to have filed the CANs in the Local Court within a specific limited time. This was an obligation of the prosecution. The CANs were not filed in time and in accordance with binding authority, when the matters were listed, the presiding Magistrate held that he lacked jurisdiction to hear and determine the charges and orders for dismissal were made. 12Based upon these events the statement of claim by the plaintiff seeks, first, damages for false imprisonment, specifying a period of restraint commencing from when he was removed from his vehicle at the Autoport until he was released on bail from Penrith Police Station about 7 hours later. 13Second, the plaintiff seeks damages for assault based upon the conduct of Constables Arapa, Wade, Barnes and Donney at the time of the removal of him from his car. Constable Donney was partnered with Constable Arapa on that day and is asserted to be liable for standing ready to assist the others and preventing persons from intervening (to aid the plaintiff). The other three officers are alleged to have physically beaten the plaintiff in a variety of ways. 14Third, the plaintiff pleads that Constables Arapa, Wade, Barnes and Donney procured the issue of the four CANs and he seeks damages for malicious prosecution in respect thereof. 15Fourth, pleaded as "further and in the alternative" damages are sought for abuse of legal process in effecting the issue of the said 4 CANs. 16Fifth, a claim is made for the value of the gold necklace abovementioned. It is not asserted that the taking of it into possession by police after arrest was unlawful but that demands for its return have not been fulfilled. The pleading included the title "claim for loss of property" and would seem to be an assertion based upon detinue or conversion. 17Referring to events of 1 March 2006, Senior Counsel for the plaintiff in opening said "what happened to the plaintiff put him in dreadful fear of police". He added that, given a pre-existing anxiety disorder, "it significantly unbalanced him". Thus, on 7 March 2006 he proceeded from Kingswood to the city on a motorcycle, apparently harbouring a belief that his motor vehicle would be identified and likely to attract unwanted police attention. The purpose of the visit to the City was to consult Dr Robert Hampshire, a psychiatrist who had been treating the plaintiff over an extended period prior to March 2006. 18Again, I will sketch without detail a broad outline of events on 7 March 2006 out of which further claims for damages are pleaded. 19The manner of riding of the motorcycle amidst traffic led to a report and consequent police effort to intercept it. A police car on patrol in the City sighted the cycle in the northerly area of George Street. The plaintiff rode his cycle through that end of the City, not always upon vehicle carriageways, until he entered the grounds of Government House where he abandoned the cycle and proceeded on foot to an area near the Conservatorium of Music. 20Police arrived and the plaintiff's presence was indicated to them by a teacher who was shepherding some students into the Conservatorium. At about this time the plaintiff had made telephone contact with Dr Hampshire whose consulting rooms were nearby in Macquarie Street. Dr Hampshire came into the general botanical garden area seeking the plaintiff. 21In the meantime, police had located and begun to speak to the plaintiff and thereafter they sought to arrest him. This involved some physical contact. By this time Dr Hampshire had arrived at the scene and offered to intervene but police did not require his intervention. 22The plaintiff was conveyed to the Rocks Police Station. Whilst there, observations of him provoked a call for an ambulance. The ambulance officers examined him but they did not remain. The plaintiff was charged with a number of offences and bailed. He left the police station in the company of Dr Hampshire and stayed for some time in his rooms where, somewhat surprisingly, he was treated by being given 10 mgs of valium, some food and "a couple of glasses of wine", this combination apparently being intended to induce sleep. 23The plaintiff later left Dr Hampshire's rooms and went to the offices in Market Street of Mr Amirreaggi, his solicitor. From there he was later collected by his parents and taken home. 24These events led to claims, first, for assault alleged to have been perpetrated by police officers involved in the arrest at the botanical gardens. They are nominated in paragraph 34 of the statement of claim as "Sergeant Simon Joice and/or Constable Rebecca Armstrong and/or Constable Ryan Spong and/or Constable Winter and/or Constable Steve de Jong and/or Constable George Wee and/or other unidentified police officers". 25Second, the plaintiff pleaded that "Sergeant Simon Joice and/or the other officers named in paragraph 12 herein" procured the issue of 4 CANs each charging resisting an officer in the execution of duty. Paragraph 12 has no nomination of officers and it is assumed that the reference should be to paragraph 34. It is alleged that the institution of these four proceedings constituted a malicious prosecution of the plaintiff. It can be mentioned that, in addition, CANs were issued charging the plaintiff with riding (the motorcycle) in a manner dangerous to the public and riding without a licence. 26Third, it is claimed that "further and/or in the alternative" the conduct in procuring those four charges of resisting an officer in the execution of duty was an abuse of process. 27The context of the contest between the plaintiff and the defendant is described in the foregoing. The credit of the plaintiff 28Before turning to some specific matters, I record a finding in relation to the plaintiff's evidence. I did not find the plaintiff to be a creditworthy witness. In coming to that finding, I made allowance for the anxiety condition which he is diagnosed to suffer but he appeared more than capable of fencing with questioners and to promote answers to his own advantage. Otherwise, there was an alarming frequency of the response "I'm unsure" when confronted with facts, the denial of which he appeared to perceive as forensically dangerous. I am conscious of the limitations upon judicial assessment of demeanour and the restraint against acting upon such, however there was an abundance of instances when the plaintiff impressed as lacking in candour and, more significantly, instances where the plaintiff's evidence was demonstrably unacceptable. 29It might be inferred that adverse conclusions concerning the plaintiff's credit were anticipated as submissions on his behalf focused upon assertions where the plaintiff's evidence was supported by others and in a broad sense, corroborated. 30The plaintiff's evidence about his financial dealings was cloaked in obscurities and mired in contradictions. 31In incidents in 2003 which occurred in close proximity to each other, the plaintiff was assaulted by a disgruntled customer and then struck in the face with some force by a motor vehicle spring which detached from a vehicle on which he was working. From about 2003 to 2009 he was in receipt of workers compensation payments, I gather on the basis he was regarded as unfit, for psychiatric reasons, for occupation as a mechanic. He said that he could do other things which he categorised as "director's duties". 32The evidence shows that he was at times in paid employment when he made declarations denying that fact to the workers compensation insurer. When questioned about this, he constantly referred to his entitlement to reimbursement for medical and pharmaceutical expenses. The evidence of the accountants who produced a joint report, reveals plainly that he was receiving concurrent payments declared as income. He eventually acknowledged that he would not declare reimbursements for expenses as income. 33As part of his case on damages the plaintiff claimed that, despite a setback when the RTA suspended or restricted him or his business from issuing inspection certificates, he had prospered in the business. He had some success from an appeal process in relation to the suspension, although like the bulk of his evidence, it lacked precision, but he asserted that he overcame the handicap of suspension by altering the focus of his business to installing LPG tanks. His business was so successful he said that he could, from the profits, fund land development projects in which he was engaged. 34There is no detailed evidence of the extent of the plaintiff's landholdings although there is a passing remark in the evidence of Dr Hampshire that the Doctor understood that the plaintiff and his father had significant holdings. The evidence does reveal that over a span of time between, prior to the events of 2006, and the present the plaintiff developed one block of land by moving a house from the front to the rear and building two further residences on the block and, on another holding, built 12 town houses in one of which he presently resides. 35The plaintiff testified that, in addition to bank finance, he was providing money from the profits from the Autoport to the development projects. He said the provision of this money was by way of loan. There is no need for present purposes to recite the corporate structures, but in short, the relevant balance sheets of the Autoport record no such loans. 36Further, the records made available to the accountants for the purpose of assessing the plaintiff's claims show that the Autoport was incurring operating losses. There is nothing in the material which would support the plaintiff's assertions that the losses were manipulated (legitimately) for taxation purposes. To the contrary they demonstrate that the business was not flourishing. 37That observation is consistent with the plaintiff's own assertion elsewhere. He was engaged in litigation with Ms Knight consequent upon the break up of their defacto relationship and for that purpose the plaintiff swore an affidavit in which he declared, with express detail, his parlous financial circumstances. This affidavit, sworn 27 April 2006, asserts that, owing to the present financial position of the business conducted at the Autoport, the shares had only nominal value. He added that the trading activities of the business "have only deteriorated since the 2003 to 2004 financial year" and his personal income was largely dependant upon income receipts from this business and, more recently, workers compensation benefits. He said that over the previous twelve months he had borrowed funds totalling $80,000 in order to meet his weekly living expenses. 38There has been a considerable transfer of the plaintiff's assets into a family trust. His evidence that the beneficiaries were his children is contradicted by his own statement asserting that he was the beneficiary when he was "marketing" his skills to a potential employer. The plaintiff's attempts to distinguish himself from the corporations through which he traded and the trust, merely offered confirmation of his willingness, when it suited him, to dissemble. 39It is also not without significance that the affidavit abovementioned asserted that until recently the plaintiff had resided in premises Number 6 Roger Street, Kingswood but owing to the poor state of his financial affairs he had moved in with his parents at Number 4 in the same street. When arrested on warrant on 16 May 2006 he gave his address as Number 6 aforesaid. Nevertheless, when seeking to have the convictions entered ex parte annulled, these movements of residence did not coordinate with his reasons for non-receipt of the notification about adjourned dates. The 7 March Incident 40A commencing point for the plaintiff's version in his evidence in chief can be made when he said that one of his staff (Michelle Pateman) had observed him to be distraught and hiding underneath the service station and "she asked a good friend of mine to come and have a talk to me and we organised to go and see Dr Hampshire the next day". 41It transpired that the plaintiff had gone to Queensland on 4 March and returned only on morning of 7 March. Dr Hampshire said that he had spoken to the plaintiff on that morning and, concerned about his condition, told him to come in to see him intending to "squeeze him in between other appointments". The plaintiff had been in Queensland in connection with a proposed purchase of a camshaft grinding business. 42The plaintiff said that on the morning of 7 March as he drove past a post office a police vehicle followed him and he drove into the Autoport where he sustained a panic attack as a result of which he sat in his locked car for about half an hour or a little longer. When he emerged he saw police on foot and their car parked nearby and this provoked another panic attack. As he was intending to go to see Dr Hampshire he determined to ride his motorcycle, fearing that his motor vehicle would be identified by police. He had no licence to ride a motorcycle. Nevertheless he mounted the cycle and proceeded near Bringelly Road where he said a police vehicle came behind him and activated its siren. He stopped the cycle but recognised Constable Arapa (the arresting officer on 1 March) as a result of which he panicked and "shot through". Although he was pursued by the police vehicle for a time, he evaded them and headed for the City on the M4 Motorway. 43I interpolate that the evidence shows that Constable Arapa was not on duty on 7 March 2006. 44When the plaintiff reached the City, he missed an intended turn and circled under the southern approaches of the Harbour Bridge coming into George Street North. There, patrolling police sighted him and in their vehicle made a u-turn to position it behind the plaintiff. The police vehicle activated its siren and lights. The plaintiff responded by trying to "get away". The plaintiff said that he did realise that the police vehicle was local to the Rocks but he thought that St Marys police must have radioed ahead a report that he had "shot through". 45The plaintiff intended to proceed to Macquarie Street to see Dr Hampshire. He accepted that he rode along a footpath but, eventually observing that the traffic gates were locked, he rode into the Government House gardens through a pedestrian way, passing the sentry box, and he then removed his jacket and helmet and dumped the motorcycle into some shrubbery. 46In order to exit the Government House area, he climbed over a fence, gashing his leg in the process. He claimed that he noticed a police "chopper" in the air above him. I interpolate that Dr Hampshire also noticed a helicopter in the air which he presumed, as a result of assertion by the plaintiff, was a police aircraft. There is no evidence that any police helicopter was surveying the plaintiff or that any helicopter in the air at about this time was part of the police air wing or had anything to do with the plaintiff. 47As already mentioned, the plaintiff was in telephone communication with Dr Hampshire. He noticed that there were "police everywhere" but he said that they did not approach him until he was in the presence of Dr Hampshire. He heard Dr Hampshire identify himself to police and the plaintiff said that a police officer took his arm and he claimed that he responded that he would go with them. However, the plaintiff said that he was wrestled to the ground and said he felt knees and blows to his back. He said he was having a seizure at the time but was handcuffed and dragged and thrown into the back of a paddy wagon. He was taken to the Rocks Police Station. 48There, after being seen by ambulance officers, he was charged and released to bail in the company of Dr Hampshire to whose rooms he went, then to his solicitor's office and later home. 49Dr Hampshire was called. He said he had spoken on the phone to the plaintiff in the week prior to the 7 March but on that day he thought that the plaintiff seemed increasingly anxious and he asked him to come to his rooms without appointment. This contrasts with the plaintiff's evidence about the appointment being made as a result of Ms Pateman's urgings the previous day. 50Dr Hampshire said that when he arrived the plaintiff had "police officers around him". He asked police what was going on after telling them who he and the plaintiff were. He said police were "very quiet, quite still". He said he put his arm around the plaintiff and told police that he was not dangerous and he offered to help even to the extent of offering to put handcuffs on the plaintiff. What Dr Hampshire did not know was that police were responding to reports of a motorcyclist (the plaintiff) riding erratically into the City from the Anzac Bridge area and that the motorcycle had, inter alia, been ridden among pedestrians on a footpath. In the circumstances it would be surprising if police unreservedly accepted the dependability of what this stranger (to them) said about a suspected offender who had fled from a police vehicle of which the sirens and lights had been activated. 51In a statement to an investigator on 21 March 2006 Dr Hampshire expressed his view that (police behaviour) was "excessive". But the apparent context of this assessment was that Dr Hampshire believed that the plaintiff "didn't need it" because Dr Hampshire had a belief that his patient was "not violent". 52However Dr Hampshire's description of the plaintiff at the time was that he was a large man and looked very wild. He said his eyes were wide open and red and he looked very agitated. He gave an analogy that the plaintiff appeared "like a boxer before round one". If that description be accepted, then that is the appearance of a person by whom the police were being confronted. Ordinary prudence would dictate that such a person would be likely to require restraint upon arrest. Dr Hampshire candidly stated that he had never on any other occasion witnessed an arrest. He described himself as emotionally distressed and alarmed, so he left. 53As far as physicality was concerned, Dr Hampshire said in examination in chief "one of the officers quietly went up to try to grab him, get hold of his hand, he flung his hand away, flung the officer's hand away, in quite a violent sort of emotion (sic - motion). That was I think the trigger more or less for everyone to subdue him". He said he saw the officer's "jumping" on him but this seemed to be a description of them using "mainly their weight" with their bodies and knees trying to get the plaintiff still. 54Dr Hampshire had observed six police officer's (four in uniform, two in plain clothes) and none were, he estimated, over 5 foot 10 inches or would weigh over 75 kilograms. He said two of the officer's were "girls" and three others were very small people. In evidence he described the female officers as "little". In contrast he described the plaintiff as "a six foot two, six foot three bloke 'big fellow'". Mr Ingram was the teacher who ushered the pupils into the school building. He had seen the motorcycle enter Government House grounds and the plaintiff emerge and sit in an area which he described as the amphitheatre. When police arrived he drew their attention to then plaintiff whom he thought looked agitated. He recalled seeing only two police officers on the occasion. His description of events was as follows: "The police went over to him and then I noticed that he seemed to resist. His movements indicated he seemed to resist something because there was an agitated movement. Then the constable who was - well, the police officer had his knee holding the man down as if the knee was bent and he was sort of kneeling holding him down and then that seemed to subdue the man, and at that moment I turned away to usher students in." 55Mr Ingram saw no punches or kicks being delivered. Although he ushered the students inside he "kept the man under view". 56Although nominated in the pleading it is common ground that Sergeant Joice, who was in the police car that commenced the pursuit in George Street North, was not one of the officers who physically arrested the plaintiff. Sergeant Joice was the prosecutor who initiated the issue of six CANs given to the plaintiff at the police station. There were, as previously mentioned, four charges of resisting police in the execution of duty and charges of riding in a manner dangerous and riding a motorcycle without being licensed. 57The officer's present at the time of arrest were Constables Murray, Wee, Spong, Armstrong, Winter and de Jong. 58It might be observed that, contrary to Dr Hampshire's memory, the police officers at the scene were five male and one female rather than four male and two female. 59Constable Murray with Constable Wee were the first police to approach the plaintiff. They had come in response to a radio message and been directed to the plaintiff by Mr Ingram. Constable Murray recalled a person, obviously Dr Hampshire, approaching him as he spoke to the plaintiff. This person said that he was the plaintiff's psychiatrist. Constable Murray placed his arm on the plaintiff who pulled away and the Constable told him that he was under arrest. When he took hold of his arm again, a scuffle took place. He was assisted in the arrest by other police who had come to the scene. 60Cross-examination was directed to the possibility that, accepting Dr Hampshire's assertions of his offer of assistance and the possibility (which he did not recall) that the plaintiff offered to go with police, a physical arrest could have been avoided. Whilst Constable Murray acknowledged this hypothesis, in the actual circumstances particularly the plaintiff's reaction (corroborated by Dr Hampshire) I find that proceeding to arrest was reasonable. There is no basis for concluding that any force applied by Constable Murray was excessive. 61Constable Wee was on duty as Constable Murray's partner. He could not remember the conversation between Constable Murray and the plaintiff in detail but when he himself asked the plaintiff to wait, he was ignored and that is when Constable Murray stepped in. Constable Wee recalled the plaintiff saying something about "his psych being across the road" and that "he had to go". He thought the plaintiff was "agitated and fired up". The plaintiff was then told that he was under arrest and taken by the arm. Constable Wee said "he (the plaintiff) pulled away a couple of times. Constable Murray stepped in and the other two officer's who came in the car came and the next thing I know, yeah, they were on the ground arresting Mr Quirk". 62Constable Wee was not cross-examined to suggest that he observed any excessive force being applied to the plaintiff in the course of that arrest. 63Constable Spong was accompanied by Constable Rebecca Armstrong. They were in plain clothes but wearing the usual police appointments. Upon hearing a radio message they proceeded to the area of the Conservatorium of Music in an unmarked police car. Constable Spong saw the plaintiff, whom he described as breathing heavily, sweating and eyes dilated. He added that the eyes were "wide". At the time of his arrival he deduced that the plaintiff was under arrest. He noticed the plaintiff was "thrashing his body around" and Constable Spong took hold of him and, against resistance, applied handcuffs. He later assisted in walking the plaintiff over and into a caged police vehicle. 64Taken to a statement made by him in 2006, the Constable agreed that although he did not presently recollect it, a man had introduced himself as the plaintiff's psychiatrist. He agreed that he recorded that he had made a knee strike to the plaintiff "as we took him to the ground". He said that that strike was to the upper thigh and not to the back. That assertion is consistent with the strike being made as the plaintiff was being brought to the ground as distinct from striking him after he was on the ground. 65A statement, admitted by consent, by Constable Armstrong deposed that she has no recollection of the incident and has been informed that, although a computer record notes a statement by her for the purpose of a preparation of a brief of evidence, it cannot be located. 66Constable Winter came to Government House in response to a radio message where he located the abandoned motorcycle. He then went to the Conservatorium area where the plaintiff was seen by him to be on the ground and handcuffed. When the plaintiff was later conveyed to the Rocks Police Station in the back of the police vehicle, Constable Winter positioned himself so as to be able to view the plaintiff during the journey. After being assisted to the rear of the cage on arrival the plaintiff alighted from the vehicle unassisted. Constable Winter noticed that the plaintiff was shaking violently and breathing heavily while he was in the vehicle. As already noted, an ambulance was brought to the police station and the plaintiff was examined. 67Constable de Jong accompanied Constable Winter. He saw the plaintiff on the ground with handcuffs applied. He thought the plaintiff looked distressed and agitated. He recalled the plaintiff saying he was having a panic attack. Constable de Jong was not cross-examined. 68It is convenient, although out of chronological sequence, to deal with the causes of action advanced in respect of the events of 7 March. 69As previously stated tort claims were formulated asserting assault and malicious prosecution and, apparently in the alternative to the latter, abuse of process. 70In respect of the claim for assault I am considerably assisted by what I would asses to be the realistic view of the evidence taken by counsel for the plaintiff and the candour of final submission, which relevantly was: "The only submission that I put in relation to 7 March 2006 is that the use of force on that occasion was excessive, therefore, the plaintiff was assaulted. I can't put it any higher than that but I with respect acknowledge what my learned friend says, that the police were in a situation where they were confronted with a man who to them looked barking mad, agitated, wide open eyes and the like, and it is a case where it would be open to your Honour to take the view that in the circumstances that the behaviour on that occasion was not as such excessive." 71I do take that view and accordingly conclude that this claim for damages for assault should fail. 72Although it is unnecessary for decision, I add that I would not agree with the submission that the situation " could undoubtedly have been handled better", by police availing themselves of assistance of Dr Hampshire. It was necessary for police to respond to the exigencies of the moment, taking into custody a person previously seen erratically riding a motorcycle, including scattering pedestrians, who had abandoned the motorcycle as above described and whose appearance was, to borrow counsel's phrase "barking mad". It would not have been reasonable for police to suspend what they were doing to investigate the identity or bona fides of Dr Hampshire. In any event, in the absence of threat to the safety of police officers or others, I would seriously doubt the prudence of police taking upon themselves to enlist civilian aid in the execution of their duty. 73I turn to the action for malicious prosecution. To succeed upon such a cause of action the plaintiff must prove the institution of criminal proceedings by the defendant, the termination in favour of the plaintiff, the absence of reasonable and probable cause for the institution of proceedings and malice by the prosecutor in the sense of having a purpose other than that of carrying the law into effect. The distinction relevant to the pleaded alternative (abuse of process) lies in the misuse of legal process, even if properly obtained, for some improper purpose. I mention that no such improper purpose was sought to be identified nor was it evidenced. 74As already recorded, the plaintiff was charged with four offences of resisting an officer in the execution of duty as well as charges of riding in a manner dangerous to the public and riding without a licence. The claim for malicious prosecution is limited to the four charges of resisting an officer. Somewhat imprecisely, the pleading asserts the institution of proceedings (by procuring the issue of CANs) by Sergeant Joice and/or other officers. Sergeant Joice is nominated as prosecutor on each CAN. The officers said to have been resisted are specified as Constables Murray, Wee, Spong and Armstrong respectively. As the State is, by Statute, vicariously liable in respect of all these police officers, an analysis seeking to individualise the institution of proceedings would be surplus to requirements. 75All six charges were dismissed pursuant to s 32 of the Mental Health (Forensic Provisions) Act 1990 by the Presiding Magistrate at Downing Centre Local Court on 2 November 2006. A transcript of the proceedings on that occasion was admitted as part of an exhibit. From that source it can be seen that the plaintiff pleaded guilty to the offences other than those of resisting the police officers. It does not appear that the plaintiff was asked to enter a plea to the last mentioned charges. Section 32(1) empowers the Court to act pursuant to its provisions at the commencement or at any time during the course of hearing. It may be a moot point whether proceedings have been commenced before a plea is sought by the Local Court equivalent of arraignment. It is not necessary to explore this. 76The police officer appearing to prosecute at the hearing (not Sergeant Joice) stated that he had seen a report from Dr Hampshire and, as a consequence of reading its contents, he would be asking that the charges be dealt with under s 32. That report of Dr Hampshire is not in evidence but the transcript notes that, according to it, the plaintiff has been treated for post traumatic distress disorder since at least 2002. Following some discussion, not only the charges of resisting police but the two charges to which the plaintiff had pleaded guilty were dismissed pursuant to s 32. This course was not opposed by the prosecutor. 77It should be noted that s 32(4) provides: "a decision under this section to dismiss charges against a defendant does not constitute a finding that the charges against the defendant are proven or otherwise". 78As the transcript exhibited does not contain formal orders, the conditions attached to the dismissal of the charges can only be paraphrased. The conditions appear to require the plaintiff to undergo treatment and take medication as described by Dr Hampshire or "other relevant doctors suitable". 79The statutory provisions are structured so that in the absence of breach of condition within 6 months of imposition (ss 3A and 3D) the dismissal of the charges becomes final. 80The defendant has submitted that the plaintiff has not pleaded (nor proven) favourable termination of the relevant charges. It is admitted on the pleadings that the charges were dismissed as above recounted on 2 November 2007 (sic 2 November 2006). At the risk of repeating comments made during the hearing about the quality of pleading, I am content to approach the issue on the basis that it was intended by the expression of dismissal to assert a relevant termination in the plaintiff's favour. 81In support of its contention, the defendant drew attention to the remarks of Isaacs ACJ and Starke J in Davis v Gell (1924) 35 CLR 275 concerning proof of innocence where a prosecution had been brought to an end by the entry of a nolle prosequi. The observations in that case must be understood in the light of the later authority of Commonwealth Life Assurance Society v Smith (1938) 59 CLR 527 where it was noted (at page 540) that, before Davis v Gell , no one appears to have supposed that, where the prosecution broke down before a magistrate a plaintiff was in a less favourable position than a plaintiff who had been acquitted after trial. The joint judgment (Rich, Dixon, Evatt and McTiernan JJ) proclaims that, except in the case of a nolle prosequi, the guilt or innocence of a plaintiff is not an issue going to the cause of action in malicious prosecution (at page 543). 82Given the structure of the mental health provisions above noted, the plaintiff is not in jeopardy of further prosecution and, to the extent that it might be sought to argue its relevance, the plaintiff possesses a presumption of innocence in respect of the charges. I am satisfied therefore that the plaintiff has established the element of the tort that the proceedings terminated in his favour. 83However, the plaintiff must also prove the absence of reasonable and probable cause and malice. On both these issues, the plaintiff fails. Irrespective of which police officers the plaintiff intended to identify as "prosecutor", that prosecutor would have had the observed conduct of the plaintiff reported including his riding of the motorcycle which clearly justified a decision to arrest. For reasons already given no excessive force was applied to affect the arrest and the evidence that the plaintiff resisted was scarcely challenged. I accept it would be reasonable to regard the plaintiff as liable to prosecution for resisting the officers. 84As counsel for the defendant pointed out, the plaintiff did not seek to address the particulars of malice which are set out in the pleading. There is no basis for inferring that the police officers did not have an honest view that there was a proper case to be brought against the plaintiff for resisting arrest. There is not a skerrick of evidence that any police officer involved in the events of 7 March was motivated by spite or ill will against the plaintiff or intended to injure him. 85Neither is there any basis for conclusion that any legal process was misused so as to provide a foundation for an action for abuse of process. All of the tort claims by the plaintiff said to arise from the events of 7 March will be dismissed. 86Anticipating the possibility of such an outcome, the plaintiff submitted that (on the assumption that the plaintiff succeeded in proving tort induced damage arising from the events of 1 March) that damage flowing from the events of 7 March remained compensable along principles which have been conveniently summarised by Malcolm CJ in State Government Insurance Commission v Oakley (1990) Aust Torts Reports 81-003 and cited by Kirby J in Covington-Thomas v Commonwealth of Australia [2007] NSWSC 779 namely: " "In my opinion, where the negligence of a defendant causes an injury and the plaintiff subsequently suffers a further injury the position is as follows: (1) where the further injury results from a subsequent accident, which would not have occurred had the plaintiff not been in the physical condition caused by the defendant's negligence, the added damage should be treated as caused by that negligence; (2) where the further injury results from a subsequent accident, which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of aggravation of the earlier injury, the additional damage resulting from the aggravated injury should be treated as caused by the defendant's negligence; and (3) where the further injury results from a subsequent accident which would have occurred had the plaintiff been in normal health and the damage sustained include no element of aggravation of the earlier injury, the subsequent accident and further injury should be regarded as causally independent of the first."" 87As is obvious, any such possibility would appropriately be dealt with in due course in the context of any assessment of damages. The gold chain or necklace 88Although a necklace was part of the plaintiff's property taken into custody after being brought to the police station at Penrith following the events at Kingswood on 1 March 2006, the claim in respect of this item can be dealt with discretely from the other tortious conduct alleged to have occurred on that day. 89Upon arrival at the police station, the arresting police gave the plaintiff into the custody of others who were performing management duties at the station. The plaintiff's property was taken from him as he was processed into custody. It was not suggested that anything unlawful or improper occurred in relation to this process. A "property docket" was prepared, listing what had been taken. This docket acts as a receipt and was signed by the plaintiff and Constable Jennifer Thomas. The docket which she prepared was timed at 12.54 (pm) and showed cash of $325.00, some medications and documents, some, like a driver's licence, no doubt in the form of cards. 90During the plaintiff's custody it was later discovered that he had some further cash and a necklace. A new property document was prepared, timed at 15.41 (3.41pm), and it showed an increase in the cash taken (from $325.00 to $340.00) and repeated the eight items which had been on the earlier docket and added "one x gold coloured neckless (sic)". 91The plaintiff was released on bail and his signature on the bail undertaking is timed at 5.40 pm and the plaintiff dated it (in the American style) 3.1.06 but it is clear from Constable Warner's endorsed certificate on the document that the relevant date was 1 March. Upon release the plaintiff was entitled to the return of his property. The form of property document makes provision for a second signature by the detainee in order to acknowledge receipt of the property. 92At some point after being released to bail, the plaintiff apparently became aware that he did not have his necklace. On the following day (2 March) he went to the police station and complained to the officer in charge that his necklace had not been returned. It would appear that his now claimed pathological fear of police had not by then developed or he was able to suppress it in order to seek to recover the necklace. 93Ultimately, police undertook a formal investigation but the necklace was not located. Relevant police asserted that it had in fact been returned to the plaintiff on his release and it was accordingly not in police custody. The investigation reportedly criticised the adherence to procedures at Penrith Police Station and, I gather, an important foundation for the criticism was the absence of a signed receipt in the documentation maintained as the police file. 94But it is now apparent that there does exist a signed receipt and it is plain that the procedural break down at the police station involved handing the plaintiff the original signed property document rather than a copy. I am able to reach this conclusion as the signed document was retrieved from material produced by the plaintiff's solicitor whose possession of it must have emanated from the plaintiff himself. 95When confronted by this document, the plaintiff denied that the receipt signature was his. There are numerous examples of the plaintiff's signature among the exhibits. Signature, of course, is a personal matter but the undisputed examples are not legible and consist of several overwritten left leaning ellipses and these are encircled by the flourish of a loop which passes through them. To my untrained eye there may be detectable differences between the signatures appearing on the property document but I would assess them as minor and they do not persuade me that forgery is a realistic possibility. As a fact finder, I regard it as a matter of notoriety, that not every signature by a particular person produces an exact trace. I reject the plaintiff's denial of the signature. 96That conclusion is fortified by other evidence. Nine items (apart from the cash) are scheduled on the property docket. These items consist of drivers' and boat licences, two blank cheques, something described as "advantage plus", two open packets of medications, two loose tablets, a brown belt and the gold necklace. 97The activity in the custody management area was recorded on CCTV. The relevant product was viewed during the trial. The evidence of Constable Thomas who was, of course, not involved in the events at Kingswood is important. She personally took the plaintiff's property into custody. She gave evidence that her procedure was to take items such as jewellery and fold them in paper and seal the package with tape. She is able to be seen doing this in the vision from the CCTV. Apart from being asked to spell "necklace" the only question in cross-examination directed to her obtained her agreement that what was shown on the video to "be folding" (sic - being folded) was a black or very dark coloured object. The actual wrapping paper was obviously white. At one point it was suggested by counsel that the video might be interpreted as showing the wrapping of shoe laces. No such items were taken from the plaintiff. I am not in a position to analyse the colour reproduction qualities of the CCTV but the only item of the plaintiff's property that would be treated by Constable Thomas in the way that she described was the necklace. The plaintiff's property is exhaustively listed and there was no other item of intrinsic value. 98The surveillance of the custody management area was operative as the plaintiff was being released to bail and receiving his property. He is seen to be handed papers and apparently signing them but I am unable to say that he is shown to be specifically signing the property docket. Inter alia, he was required to sign an acknowledgment of bail conditions. However the plaintiff is seen to be placing a white object of similar appearance to the package created by Constable Thomas into the back pocket of his trousers. I reject counsel's invitation to conclude that this was a packet of medication. It was said that the plaintiff could be seen adjusting the package into his pocket but this is hardly persuasive to a conclusion that the white object was a medication packet rather than package as prepared by Constable Thomas. 99A written submission contended that the gold chain "was stolen from the custody of police" and that the State is vicariously liable for any tort by a police officer including conversion, detinue or negligence as a bailee. It remains not entirely clear which tort is alleged but that is of no moment as, without needing to depend on onus, I am affirmatively satisfied that the plaintiff did receive back the gold chain at the time of his release on bail. Accepting his assertion that he no longer has it, it was lost, mislaid or stolen out of his possession and not out of the possession of police. The events leading to 1 March 2006 100The events of this day had their origin in the AVO taken out by Tracey Knight against the plaintiff. Her visit to St Marys Police Station on 31 January was said to be in relation to complaints of breach of conditions by him. Although Ms Knight was scheduled as a possible witness for the plaintiff in the course of case management directions, she was not called. In all the circumstances (the plaintiff has had relationships with three other women since that which he had with Ms Knight) I do not draw any inference from her absence but it remains the case that there is no evidence verifying any breach by the plaintiff until the call overheard by Constable Arapa on the speaker phone when it is claimed that there was no mention of any arrangements concerning the children. 101The evidence did, however, include a print from police computer records concerning Ms Knight's visit to the police station shortly before 7.30 pm when the call from the plaintiff was received. I do not think that this visit was coincidental and was consistent with a requested arrangement for a call being made at about that time by Ms Knight when she had met the plaintiff earlier in the day. The computer entry records that "it was deemed at the time that the allegations being made could not be substantiated". 102The print is informative as to the level of apprehension which might be derived from alleged breach of the AVO by the plaintiff. There is apparently a pro forma built into the system which notes "domestic violence related details" and some twenty-nine circumstances can be logged with a Y for yes or an N for no. The entry is in a negative for "domestic involved violence to person"; "domestic involved stalking/intimidation"; "domestic involved threat of violence" and "domestic involved argument (no threat)". Also in the negative were various references to firearms possession, the presence of children "at domestic" and alcohol or drug abuse. 103It is clear that, assuming the validity of the complaints of breach taken at the highest, violence of neither actuality nor potentiality was involved. Those circumstances should have provided a key indicator as to the appropriate conduct in enforcing the AVO. 104As mentioned, it appears that Tracey Knight was complaining of contact before 31 January. There is evidence that the telephone call overheard by Constable Arapa was made pursuant to an arrangement. Whether Ms Knight intended to "set up" the plaintiff is not an issue in this litigation but I can comfortably deduce that if the plaintiff had subjected her to threat or the like, it would have been at least mentioned and recorded. Certainly Constable Arapa was not informed that Ms Knight was in fear of actual violence by the plaintiff. This is confirmed by the computer entries. 105The absence of urgency can be detected in Constable Arapa's election only to seek contact with the plaintiff by telephone as an entire month went by. There is dispute about what passed between them in telephone conversations but, so far as the evidence demonstrates, Constable Arapa was seeking to enforce an alleged breach of AVO consisting of a telephone call in which arrangements for the children were not mentioned. What was in fact discussed in the call before the speaker was attached was not the subject of testimony and I infer that nothing said by the plaintiff would have inculpated him. 106One of the faculties available to Constable Arapa was the issue of what was categorised as a "future CAN". Similar to the superseded Justices Act provisions whereby information could be laid and a summons issued and served, upon complaint, a CAN could issue requiring the plaintiff to attend court to answer the allegation on a specified date. Given the non-violent nature of the alleged breach, it is difficult to see why this method was not adopted. A CAN of this sort may be served by post or personally. When questioned about the use of this alternative to arrest, Constable Arapa spoke at length about practical difficulties when service by mail is attempted. That was not the point and I found his testimony about this intentionally obfuscatory. 107The essence of contradiction between the plaintiff and Constable Arapa concerning the telephone exchanges was whether the plaintiff declined to agree to attend the police station, and in effect, challenge the Constable to find him or whether he agreed to come to the station on condition that he was accompanied by his solicitor. I prefer the plaintiff's version. It is indirectly supported by the evidence, which I accept, of the solicitor Mr Amirreaggi that he rang St Marys Police Station and spoke to an officer asking that whoever was dealing with the matter concerning the plaintiff be informed that he and the plaintiff would be available to attend the police station within the hour. Constable Arapa denied that he received any message to that effect. Given the extensive and sophisticated communication equipment available to police, I find the claimed lapse difficult to countenance. The events of 1 March 2006 108Given the relatively leisurely activity in relation to the matter as the month of February passed, the swiftness of police action on 1 March provided a marked contrast. In his cross-examination Constable Arapa said that he had asked the plaintiff "can you come down to the police station today so we can sort this matter out". This is slightly different from his COPS entry which recorded "police (that is Constable Arapa himself) offered the accused the opportunity to attend the police station either that day or at a later date". It was Constable Arapa's version that the plaintiff refused and challenged him to find him. 109Constable Arapa left the police station and headed to Kingswood virtually straight away. He claimed he formed the intention to arrest the plaintiff after he had spoken to him at the Autoport. To a question asserting that from the outset he had not the slightest intention of doing anything other than arresting the plaintiff, Constable Arapa said "that's not true". 110He had been accompanied from St Mary's Police Station by Constable Cathy Donney. They were working together in the station when Constable Arapa told her that "he needed to do the arrest". She confirmed in cross-examination that he (Constable Arapa) was always going to arrest him (the plaintiff) about which she had no doubt. I prefer the evidence of Constable Donney which, in any event, is more consistent with what later happened at the Autoport. 111Somewhat differently from Constable Arapa's version above quoted, I observe that in cross-examination of the plaintiff it was put by counsel for the defendant that Constable Arapa had said on 31 January in response to the plaintiff's statement that he would not be found "well if you're going to be like that, I will have to come to your work to arrest you". 112Upon arrival at the Autoport the officers made inquiries and searched for the plaintiff without success. It is apparent that his motor vehicle was there in plain sight. The constables made their way across the road to Kingswood Railway Station where a man was arrested for an offence in the category of offensive language. As they were escorting this man to the police vehicle which was at the Autoport, Constable Arapa sighted the plaintiff in his vehicle which was turning within the precinct of the Autoport. Leaving the person arrested with Constable Donney, Constable Arapa ran across the Great Western Highway to the plaintiff's vehicle. 113What next happened was tinged with high drama and emotion and I doubt that anybody's recollection as transmitted into testimony would have been exact but significant facts can be determined. 114Although the plaintiff's vehicle was moving he stopped it reasonably promptly in response to a police hand signal. At about this time Constable Arapa was joined by Constables Wade and Barnes who had been of foot patrol in the vicinity of the railway station. Constable Arapa's evidence in chief was that, without response from the plaintiff he said "I am Constable Arapa. I am a police officer from St Marys police. Can you produce your driver's licence for me please?". And "you're the driver of a motor vehicle. I require you to produce your licence for me. If you fail to do so you may be committing an offence". And "you know, I believe that you are Wayne Quirk, a person wanted by police for breach of an AVO. I am placing you under arrest for breaching that AVO and I require you to get out of the car". 115This evidence is substantially in harmony with the content of statements which the Constable made on 29 June 2006 and 25 March 2011. There is a significant difference in what he recorded in his notebook at 12.15 on 1 March 2006 when he had returned to Penrith Police Station. He recorded: "I have stopped you for the purpose of a random breath test, do you have your drivers licence?" 116I shall later record some observations about the request for breath test, recognising there is a dispute about when and the circumstances in which it occurred. 117Constable Arapa had just run across a major road, leaving Constable Donney with a prisoner whom he (not she) had arrested. It stretched credibility that he approached the plaintiff and spoke in the terms of the dispassionate ritual incantations to which he testified. 118Two aspects upon which there appear to be agreement are, first, that the plaintiff was pressing buttons on a mobile phone and saying that he was attempting to call his solicitor and, second, that the plaintiff did not willingly get out of his vehicle. The latter was achieved by the joint efforts of Constables Arapa, Wade and Barnes. To the extent that he resisted, the preponderance of evidence was that he did so by stiffening his body and planting his feet on the firewall at the floor of the car. I do not accept the plaintiff's contention that he was doing so in order to keep the clutch engaged for fear of the car moving forward and striking one of the officers. He did not offer any explanation as to why he did not himself simply turn off the motor. Nevertheless, it was not suggested that the plaintiff struck any blow upon or toward the police. He simply held his body rigid. The physical aspects of what followed were applications of force by the police upon the plaintiff. 119Irrespective of the accuracy of testimony as to the use of words, Constable Arapa commenced to try to lever the plaintiff bodily out of his car and Constable's Wade and Barnes joined in the action. 120It is not surprising that the descriptions of events by those present, including those by police officers, vary as to detail. However, assuming without deciding, that the arrest might be justified by an allegation of breach of the AVO, an issue arises as to whether excessive force was employed by those involved in making the arrest. My conclusion on the whole of the evidence is that excessive force was applied and the plaintiff was the victim of assault. 121Only Constable Arapa (and to a limited extent Constable Donney who did not participate in the physical arrest) were aware of the non-violent nature of the alleged offence for which the plaintiff was being sought. Constables Wade and Barnes who did participate physically were neither given, nor did they seek, information as to what Constable Arapa was about. 122Constable Barnes drew and extended his baton. He claimed that he did not use it. His assertion that his purpose was to defend against the possibility of being struck by the vehicle was not credible. 123The witness Bannister said that he saw two officers with drawn batons. Whilst this is possible, the evidence does not persuade me that anyone other than Constable Barnes produced such an implement. I am satisfied that Constable Barnes used his baton to strike the plaintiff. One of the visible marks on the plaintiff's body which can be seen in photographs taken very soon after the incident is strikingly consistent with a blow by a straight rod-like instrument and it is inexplicable by anything else described as occurring at the relevant time. The evidence of the witness Potter about this was convincing. As I understood him, he did not claim to see actual blows in the sense of seeing the baton striking the plaintiff but his description of seeing the motion of an arm moving up and down was a realistic picture of a scene in which the person in the car was being struck by the baton. 124Constable Arapa's own version of events included the plaintiff showing him his phone and informing him that, "It's my lawyer". On Constable Arapa's own version he ignored this and commenced to attempt to remove the plaintiff from the car by the use of force. This included using his knee to strike the plaintiff's upper thigh "a number of times". It appears from Constable Barnes' evidence that, contemporaneously, Constable Wade had made a fist and was punching down in the same area of the plaintiff's thigh. Constable Wade limited these punches to two but in the circumstances I do not accept that his contribution to seeking to remove the plaintiff from the car was so limited. Contables Arapa and Wade were at the open door on the driver's side and Constable Barnes was wielding his baton through the passenger's open door. 125The violence being manifested was, I am satisfied, a significant factor in the assembly of a crowd of people. Estimates of how many assembled vary widely from the absence of any observation of such a gathering to a few to thirty or more. It was not demonstrated that any citizen attempted to interfere physically with what the police were doing but one woman who expressed criticism was herself arrested. 126It is to be recalled that Constable Arapa rejected the inferential invitation to speak to the plaintiff's solicitor. This was not the only opportunity offered which might have tended towards a calm resolution of the situation. In these respects and generally I found the evidence of Michelle Pateman both credible and reliable. 127Ms Pateman was obviously a trusted employee of the plaintiff but it was not suggested that, for that or any other reason, she was biased in his favour. She had left his employ some months after the incident on 1 March and had not seen him again until she was required to attend the hearing as a witness. 128After the initial visit by Constables Arapa and Donney to the Autoport when they failed to located the plaintiff and had gone over to the railway, the plaintiff came to where Ms Pateman was working and she informed him of the visit and gave him some documentation and the banking. She inferred that he was going to his car in order to proceed to the bank. 129Next, she noticed three police coming over the Great Western Highway "in a hurry". When they approached the plaintiff, who was by then in his car, she recalled hearing one of them say "Put your telephone down". She then saw what she called pushing and pulling to get the plaintiff out of the car. She described pulling the legs "quite viciously" and then saw that they had managed to get the plaintiff out of the car "and they've turned him around mid-air and plopped him down on his face and stomach". She defined "plopped" as a throwing down which was quite forceful and she heard a "large thud" when he hit the ground. 130Following this she saw that a police officer "has pulled his arms around the back of him to put the handcuffs on and then he's come down on him with his knee in the middle of his back". The sequence is significant. She added that "his back crunched when the policeman went down on his back with his knee". This is obviously quite a different use of the knee from the "knee strikes" described by officers. 131At this point Ms Pateman noticed the plaintiff shaking violently. She asked one of the police (who must have been either Constable Arapa, Barnes or Wade) if she could give the plaintiff a bottle of water because she thought the plaintiff was having a seizure. She had seen this type of thing happen before. She said she was told by the police officer to "Fuck off" as it was none of her business. 132In cross-examination she conceded that her memory of this was not clear but I am satisfied that she was rebuffed and indeed the same vulgarity was directed to her on another occasion. 133This arose out of her response to being repulsed by the police. She decided to telephone the plaintiff's solicitor Mr Amirreaggi. When she contacted him he asked her to put him in touch with the police, so she approached the constable who appeared to be in charge and told him that she had the plaintiff's solicitor on the telephone who would like to speak. The officer's reply was "Fuck off" and he added that "he didn't have to answer that". 134By this time, which could only have been minutes after the commencement of physical encounter between the plaintiff and police, a legion of police arrived in vehicles. None of the defendant's witnesses explained how this came about although one witness made mention of a radio message. I infer that there was some form of communication to bring all of these police to the scene and that the communication system was more efficiently engaged than appears to have been the case in communicating the simple message of willingness to attend St Marys Police Station with his client which had been left at St Mary's Police Station by Mr Amirreaggi. 135Ms Pateman said in chief that she thought there were six to eight police cars assembled. In cross-examination she acknowledged that in a statement to an investigator she had given an estimate of five to six vehicles. On either estimate, it was an extraordinary response to the intended arrest of a person suspected of a non-violent breach of an AVO said to have been committed more than a month previously. Ms Pateman observed the vehicles arrive with their sirens sounding. 136Given this turn of events and the rebuffs by police, she gave the mechanics who were employed at the Autoport some post-it notes and asked them to write down the numbers of the vehicles. Whilst not directly germane to the plaintiff's pleaded causes of action, what occurred shortly thereafter gave a significant indication of the lack of restraint in the exercise of purported power which was manifested during this affair. 137The task of noting the numbers was undertaken by the employed mechanics, Mr Bannister and Mr Blair. Mr Blair gave this description which was not challenged in cross-examination: "Once Craig and myself had finished writing down the licence plates and all the vehicle numbers we went back into the office and a detective or undercover police officer came and asked to have a look. I then handed him the piece of paper and he tore the page out and walked out and I asked why he took it and he (sic-I) said like why can't we have a copy, and he said, "You'll get the name of the officer in charge."" 138No police officer called by the defendant testified to being the officer who took this document but what I took to be an attempt to justify this seizure was the calling of a Sergeant Heery, now a police prosecutor. He claimed that he had no recollection of why he came to the Autoport, as he did, but he remembered several other police vehicles both marked and unmarked being there. He said he remembered a member of the staff writing down the registrations of "unmarked police vehicles" but it was not the request by Ms Pateman to the mechanics to write down unmarked, as distinct from all, police vehicles. The witness conceded that he could not recall what the mechanic was writing and hence could not support his statement that unmarked vehicles were being noted. He recalled a member of the St Marys Proactive Crime Team, who was not in uniform, speaking to one of the staff. 139I am satisfied that the mechanics were simply doing as Ms Pateman asked and taking down the numbers of a large assembly of police vehicles and they were not engaged, as Sergeant Heery was by inference suggesting, in specifically noting down the numbers of unmarked police cars. 140As I have said, no police officer identified himself as the person who seized the document, neither was any officer said to have been a member of the "Crime Team" called. The paper seized by police was not produced. 141There is another aspect to the occurrence which again offers insight into the willingness of the police officers at the scene to reject any opportunity to appropriately assess the situation. When the police refused to speak to Mr Amirreaggi, whose practice is in the City, he contacted an agent in the Western Suburbs area and asked him to go to the scene. 142Accordingly Mr Ghobrial, a solicitor, attended. When he arrived the plaintiff was being conveyed or was already in the police wagon. Mr Ghobrial introduced himself by presenting his business card but was told that he could not speak to the plaintiff although it was indicated that he might do so later at Penrith Police Station. 143A further, and in my view, important indication of the absence of bona fides, in the conduct of Constable Arapa in particular, is to be found in the request and subsequent charge of refusing to undergo a breath test, a matter to which I said I would return. 144I have already referred to Constable Arapa's examination-in-chief when he claimed that his opening words to the plaintiff consisted of a request for production of a driving licence. As the constable had been at the Autoport specifically in relation to the plaintiff and knew his vehicle, his assertion that he was asking for the licence to confirm identity stretched credulity particularly in the light of his proceeding in any event to physical arrest without obtaining confirmation by licence production. Be that as it may, Constable Arapa's version in relation to the breath test refusal has some demonstrable problems. 145The appearance of the plaintiff, variously referred to as a seizure, fit or panic attack, had caused an ambulance to be called to the scene. Constable Arapa said that after the ambulance officers had attended to the plaintiff he made a formal request of the plaintiff in these terms: "Because you are the driver of a motor vehicle on a road related area, in accordance with the Road Transport Safety and Traffic Management Act I require you to undergo a roadside breath test. What I require you to do is place your lips over the end of the tube and blow into the device in one long continuous breath and keep going until I say stop". 146He then described the actions of the plaintiff, his failure to provide a sufficient sample and further requests by him of the plaintiff so to do. 147This description of events to which he testified is perceptibly inconsistent in a number of respects with what Constable Arapa had written in his notebook later on 1 March. The notations and some testimony about this casts some light upon the constable's state of mind and motives in executing the arrest. Cross-examination included the following: "Q. And your claim is that the arrest of Mr Quirk was lawful because you had arrested him for a breach of the AVO and you had told him at the time of his arrest that that is what he was being arrested for? A. Yes. Q. That's what you say, is it not? A. Yes. Q. I want you to have a look at page 65 and 66 of the original of your official police notebook F389005. Read those two pages to yourself. BARRY: I will undertake to tender the document. Can I hand your Honour a photocopy of it. Q. That is in your handwriting? A. Yes. Q. Can you please read the words that appear on pages 65 and 66 of that handwritten document? A. On page 65 the first line says "Crewman ute", then it says "parked at bowser nearest Great Western Highway facing west. As I walked across Great Western Highway and stood on traffic island I saw Wayne open the driver's door. He looked at me and I looked at him. I ran towards him. Wayne quickly got in car and did a U-turn. I ran after him. Wayne completed U-turn and I stopped him facing east beside bowser nearest shop front. I approached driver's door and opened it. Wayne was wearing--" HIS HONOUR Q. "Denim jeans"? A. "Denim jeans". It's my terrible handwriting. BARRY Q. "And a brown shirt"? A. "And a brown shirt". Q. I will stop you there. Is everything you have recorded there accurate? A. Yes. Q. And your recollection then of course was based upon the events that occurred virtually within a short period of time before you made this entry? A. Yes. Q. Could you just read on. A. "I said, 'I have stopped you for the purpose of a random breath test. Do you have your driver's licence?'" Q. Can I stop you there. Is what's recorded in quotes in your police notebook at page 66, "I have stopped you for the purpose of a random breath test", is that what you did? A. Sorry, what was that question? Q. Did you stop Mr Quirk for the purposes of a random breath test? A. Well, I've written that there, so... Q. Well, may we take it that it is true? A. Yes. Q. So the real reason that you stopped him was so you could administer a random breath test? A. Yes. Q. Nothing to do with the AVO, according to this document, was it? A. According to that, no". 148I conclude that the arrest of the plaintiff was not justified. It follows that his detention was unlawful. Further I am satisfied that Constables Arapa, Barnes and Wade used excessive and unreasonable force in carrying out the arrest and that their conduct constituted an assault of the plaintiff. 149In relation to the last mentioned I have, without recounting all of the detail, referred to the evidence of employees at the Autoport, in particular Ms Pateman and Mr Bannister. Mr Potter was also employed as a mechanic. He was working nearby on the upper level and would have had a good view of what was happening. He did not impress as a person given to elaboration but there was credibility conveyed in his brief statement "they [the police] knocked on his door [of the vehicle] and opened the doors up and grabbed his phone and just belted him and one on each side". Mr Potter noticed a police officer take the phone from the plaintiff and throw it on the ground. Whilst other witnesses either did not see or did not recollect this, I consider it probably happened and I note that a phone was not among the plaintiff possessions which were taken into custody at Penrith Police Station when he was taken there. 150Mr Wadebrook was passing with one of his children and witnessed the events. As elicited in cross-examination he had some personal experience of arrest. He therefore had a yardstick against which to measure whether the arrest of the plaintiff was excessively forceful. The gravamen of his testimony was that it was so excessive. I reject the attack on his credit. In respect of a particular matter he proved to be an astute observer. As the police were restraining the plaintiff he heard a woman calling on them to desist to which he heard an officer respond "You'd want to stop or else we'll lock you up too". As the evidence unfolded it appears that the police did in fact arrest a woman at the scene and Mr Wadebrook's evidence about that circumstance is confirmed. Tort liability 151As stated, I find the plaintiff has established an entitlement for damages arising out of events of 1 March for false imprisonment and assault. The remaining tort issue is the claim for malicious prosecution. The defendant is vicariously liable for the institution of the proceedings by any police officer. I have above recounted the circumstances in which the proceedings terminated in favour of the plaintiff. It is of interest to note that (the law being as in force prior to the amendments by Act No. 107 of 2006) the failure to file the CANs within seven days as required by the then applicable s 177(4) of the Criminal Procedure Act 1986 has potential remedy in s 177(5) which provided that leave may be granted (to file the CAN with endorsement of service) after the expiry of the seven day period. No doubt the grant of leave would require cause to be shown but it was not suggested that the prosecution even contemplated seeking to proceed with the CANs after they, in effect, lapsed for want of filing. 152This inaction which might be categorised as "letting sleeping dogs lie" is suggestive, at the very least, of an absence of genuine belief that the plaintiff should be brought to answer for breach of the criminal law. 153The next issue is whether the plaintiff has proved absence of reasonable and probable cause for instituting the proceedings. I have already referred to the evidence of Constable Arapa's ambiguity about whether he was seeking to enforce the law in the sense of proceeding against the plaintiff for breach of AVO or whether he had altered his focus to the breath test and licence production "offences". 154Despite Constable Arapa's claims, he did not find it necessary to view the plaintiff's driving licence in order to identify him, as his actions in proceeding to arrest demonstrated. The constable asserted that he was administering a "random" breath test. He did not claim that the plaintiff smelled of the prior ingestion of intoxicating liquor nor did the constable enquire whether the plaintiff had consumed any. His somewhat tentative evidence that the conduct of the plaintiff in not submitting to arrest caused him to think that the plaintiff may have been affected by liquor (or drugs), I reject. 155Somewhat surprisingly, in s 13 of the Road Transport (Safety and Traffic Management) Act 1999 which replaced provisions in the Traffic Act , it appears that any police officer has a statutory authority to require any person driving or occupying the driving seat of a vehicle on a road or in a road related area, to undergo a breath test. No cause is required. That section appears in Division 3 of the Act which is headed "Random Breath Testing and Breath Analysis". 156Although the provision does not in fact incorporate any notion of randomness, in the present case there was nothing random about the selection of the plaintiff by Constable Arapa and I am satisfied that the request was made by the constable seeking to draw upon authority to enable him to dominate the plaintiff and, in so far as any alleged suspicion that the plaintiff might be thought to be affected by the prior ingestion of substance or substances, it was a charade. 157I hold that the plaintiff has proved the absence of reasonable and probable cause for the institution of the proceedings. 158Further I am satisfied that the plaintiff has discharged the onus of proving malice in the sense that the institution of proceedings was for an improper purpose, that is to say, not for the purpose of pursuing the proper application of the law. I do not purport to determine what was the motive of Constable Arapa in particular. His overall conduct in seeking to enforce an alleged non-violent breach of an AVO was however inconsistent with untainted law enforcement function. 159I interpolate that I am aware that the plaintiff told Mr Field, a psychologist, that Tracey Knight had "become involved" with a police officer and that she was "playing with their minds" about him and that counsel, no doubt on the plaintiff's instructions, put to Constable Warner that she kept company with a named colleague of his. There is no support for these propositions and I expressly reject them as motives for bringing the proceedings against the plaintiff. In fairness to counsel, I should record that no submission to that effect was made. 160In summary, the plaintiff is entitled to damages to be assessed upon his claims for false imprisonment, assault and malicious prosecution in respect of the events of 1 March. Damages 161Although the plaintiff was an unimpressive witness, and markedly unreliable on economic matters, he possesses his rights as a citizen. Whether his reactions to the treatment meted out to him were affected by extant psychological condition or not, he was entitled not to be the victim of tortious conduct directed upon him. 162The bodily injury sustained by the plaintiff consisted of a number of bruises and abrasions. The sequale were not such as to inhibit the plaintiff from travelling to Queensland shortly after 1 March to pursue his interest in the cam grinding business. Whilst I would not describe the injuries as trivial, on any scale they would have to be classified as minor. The bodily injuries are directly related to the assault and these comments are limited to that sense and I am not referring to the affront which was involved in the commission of it. 163The principal thrust of the plaintiff's claim for compensatory damages was directed to an allegation of psychiatric or psychological injury. In assessing this, the credibility of the plaintiff is integral. The plaintiff was not a reliable historian. It is impossible to derive from his evidence a coherent statement of his work and profit directed activities, and in particular to relate any claimed disability or handicap as preventing or restricting him from carrying out whatever he chose to undertake. 164A starting point can be taken at 1 July 2003 when an angry customer at the Autoport business punched the plaintiff and fractured his nose. A few days later he was back at work when a suspension coil sprang from a vehicle upon which he was working and injured his face. In February this year he told Mr Raue, a psychologist, that he received "multiple bony fractures" in the first incident and "further fractures" in the second. These descriptions were extravagant exaggerations. 165I accept that the plaintiff was then and he remains vulnerable to psychological injury. Shortly after the incidents in 2003 the plaintiff came under the care of Dr Robert Hampshire. He remained under his care for many years and also the care of Dr Kneebone, another psychiatrist, who I gather was, at least initially, called in as the prescription of a restricted drug of an amphetamine type could not be filled except by certification of at least two such practitioners. 166The plaintiff at that and subsequent times complained of palpitations, shortness of breath and feeling hot, tremulous and nauseated. Dr Hampshire diagnosed these initially as panic attacks. By 2005 Dr Hampshire was made aware that, in addition to the facial insults in 2003, the plaintiff was distressed by the breakdown of his then relationship and some actions by the Road Traffic Authority in relation to the licensing of himself and the Autoport. Dr Hampshire understood that the plaintiff's business declined as a result. The source of that understanding must have been the plaintiff. 167However, as I mentioned previously, in evidence the plaintiff claimed that he overcame the commercial handicap of the intervention by the RTA by refocussing his activity on LPG conversions for vehicles. Neither any documentation nor the analysis by the accountants supports this claim. To the contrary, as Dr Hampshire was given to understand, the business was on the verge of failure. This preceded the events which are the subjects of this action. 168Nevertheless, as the plaintiff was an employee of the corporate entity through which the Autoport was operated, he successfully claimed workers compensation and became the recipient of weekly payments as well as the recoupment of medical and pharmaceutical expenditure. He apparently ceased active mechanical work but attended the business where he performed what he repeatedly described as "director's duties". I could not determine what was said to be the parameters of such duties from the plaintiff's vague descriptions. The workers compensation entitlement was based upon psychological condition related to the 2003 incidents and not upon physical handicap, 169The plaintiff continued to receive weekly payments of compensation before and after the incidents with police in March 2006. Eventually he obtained employment at Burwood Council and then moved to his present position with Veolia, a large waste disposal company. When questioned about the receipt of workers compensation weekly payments the plaintiff continually referred to the indemnity for expenses and I found him deliberately evasive when asked about the matter. His own evidence did not coordinate with such records as were produced concerning the continuance of payments. 170As at 2005 the plaintiff was, to the knowledge of Dr Hampshire, involved in developing some real estate. The doctor noted that he understood that the plaintiff's father had a lot of property assets and the plaintiff himself had some. It was difficult to pin down the plaintiff to some accurate timing of when he involved himself in these activities or indeed what exactly he did. It did emerge that over a period, which bridged the events of March 2006, he had on one block moved an existing structure and erected two more and on a second block had built twelve townhouses, in one of which he now resides. He has also apparently pursued an interest in some sort of unit trust concerning a property in which his solicitor is involved. 171It appeared to me that the claim for conventionally assessed economic loss was only faintly pressed but both sides of the litigation seemed to accept the opinion of the joint medical, that is psychiatric, experts that a period of three months post incident would represent a time within which aggravation resultant upon the 1 and 7 March events would be operative. Despite the unity of submission on this aspect, I am not satisfied that that was the case. The retained experts were necessarily dependent upon the history provided by the plaintiff who was, as I have said, an unreliable historian and, I would add, on matters of an economic type, a deceptive witness. 172Dr Hampshire was in my view best positioned to assess any psychological consequences to the plaintiff of his encounters with the police. In 2006, Dr Hampshire had seen the plaintiff twice in January, four times in February and four times in each of March and April. He agreed that the pattern remained similar as the year progressed. He agreed that there was no increase or decrease to the pattern consequent upon the incidents in March. 173I recognise that Dr Hampshire's notes and records were apparently incomplete but I am persuaded that the probability, indeed the strong probability, is that the plaintiff's condition as indicated by the treatment pattern would have been the same whether or not the incidents of March 2006 occurred. 174I am not satisfied that the plaintiff aggravated his psychological condition as a result of the events of 1 March and it follows that from that conclusion that the incidents of 7 March did not exacerbate or otherwise deleteriously effect some relevant consequence of the tortious conduct on 1 March. 175It was submitted that I should award the plaintiff a lump sum to "cushion" him from any economic effects of tort induced condition. In an appropriate case, that is a permissible approach. This is not such a case. If the plaintiff has any physical disability preventing him from resuming his occupation as a mechanic or similar, that disability is not sourced in the events of 1 March 2006. To the extent that the plaintiff has any diagnosable psychological handicap, even assuming for the purposes of looking at the claim for economic loss that it is in any way causally related to the torts, the evidence does not show that the plaintiff's income or pursuit of profit seeking ventures has in any way been inhibited. 176There is one aspect of the plaintiff's claimed condition which should be specifically investigated and that is the assertion that he has developed what I understand to be suggested to be a pathological fear of police. The plaintiff's beliefs which he asserted about Ms Knight playing with the minds of police officers must necessarily have been engendered before the events of March 2006. Subsequent to them, he displayed no reticence in contacting police to pursue his demand for the return of the missing gold chain. He did not attend court in relation to the CANs but said this was due to non-awareness of date, not from any fear of encounter with police. The claim about this condition is entirely dependent upon the credit of the plaintiff and I do not accept him. Assessment 177Damages for the assault will include a modest amount for the minor physical injuries which the plaintiff sustained. I am not satisfied that there was any tort induced economic loss to the plaintiff nor any aggravation of a psychological condition whether it be labelled post traumatic stress disorder, anxiety state, liability to panic attack or otherwise. To the extent that the evidence includes opinions of experts to the contrary of the last mentioned, I reiterate my conclusion that such opinions are obviously critically dependent upon the assertions of the plaintiff whom I find to be unreliable. 178Each of the torts (assault, false imprisonment and malicious prosecution) demonstrated to have been suffered by the plaintiff has potential to entitle him to compensatory, aggravated and exemplary damages. It is established that aggravated damages are a form of general damages to reflect injury, which may be intangible, resulting from the circumstances and manner of the wrongdoing. Exemplary damages are designed to restrain oppressive and arbitrary conduct by servants of the State and to vindicate and uphold the rule of law. They are also said to have purposes of punishing and deterring the wrongdoer from repetition of the conduct and to dissuade the plaintiff from any urge to seek revenge. 179I should record that in relation to damages, counsel for the plaintiff sought that I use for guidance figures awarded in Hathaway v New South Wales [2009] NSWSC 116 in which, it was said that after appeal ([2010] NSWCA 184) the case was remitted for retrial on liability only. That was accurate in respect of a count for assault but the appellate Court entered judgment for the defendant on the count for malicious prosecution. The sequale of assault affecting the plaintiff in that action was markedly different from the injuries sustained by the current plaintiff. Assault 180As stated, the physical injuries sustained in the assault were of a minor category. Any aggravation of the plaintiff's psychological condition was transient and, at the extreme, after three months the plaintiff was in no different psychological condition from that in which he was prior to 1 March 2006. 181For strictly compensatory damages I would assess $5,000. 182The assault was committed in an area which was comprehended within the plaintiff's place of business. The humiliation of being beaten was observed by employees and, being a "road related area" as asserted by Constable Arapa when seeking to administer the breath test, was open to the public, a gathering of which also would have viewed the humiliation of the plaintiff. 183I would assess that there should be included a further $20,000 to reflect elements of aggravation. 184Thirdly, there should be awarded a sum representing exemplary damages. These have been referred to at times as being at large but that does not mean that they should be awarded without restraint. I would assess a sum of $25,000 as being appropriate to the circumstances of this case. False imprisonment 185As stated, the detention extended over a period of approximately seven hours. Again, damages are described as being at large. Interference with the right of a citizen to liberty has historically been regarded as inherently serious and the award of damages, the means of enforcement of such rights, should reflect a jealous guarding of it. 186The substantial part of any assessment is necessarily exemplary or punitive damages and I would include $50,000 to assuage the plaintiff for sustaining this tortious conduct. Malicious prosecution 187Before proceeding to assessment, some observations should be made. 188It might be contemplated, although it was not advanced as an argument, that the prosecution for breach of the AVO might be distinguished from the other three offences. I repeat that there was no detailed evidence as to what was said between the plaintiff and Ms Knight in the telephone call on 31 January before Constable Arapa was able to hear and participate through the speaker attachment. The plaintiff's evidence was that, earlier in the day, he had met Ms Knight at the Paceway Cafe in Penrith to discuss arrangements about the children in the light of his termination of a relationship with a Mrs Carwt with whom he had become associated after breaking up with Ms Knight. It was said that a friend of Ms Knight, a prison officer named Gail, was at the meeting. No one so identified was called as a witness nor, of course, was Ms Knight. 189As I have said, I did not find the plaintiff a reliable witness however his version was that he wanted to discuss arrangements for the children as raised earlier in the day when he telephoned Ms Knight but she raised "numerous points that weren't anything to do with the children" after which Constable Arapa came on the line. 190Constable Arapa seems not to have been informed by Ms Knight about the earlier meeting but neither did he seek to learn anything about the content of the conversation before he was in a position to overhear it. 191My conclusion is that after the events in the service station, Constable Arapa instituted proceedings for all of the offences which he thought could be brought against the plaintiff. In common parlance (borrowed, I suspect, from jurisdictions on the other side of the Pacific Ocean) he "threw the book" at the plaintiff. 192I see no reason to distinguish the proceedings for breach of the AVO from the other charged offences. 193The plaintiff did not attend on the listed hearing day for the CANs. As a result, the presiding magistrate issued a bench warrant pursuant to which the plaintiff was again taken into custody but released when brought before a court. Subsequent to this he brought the successful annulment proceedings. Any adverse feelings engendered in the plaintiff by this arrest were sourced in his own failure to attend when required. I am aware of his claim that he did not receive notification but that fact, even if true, was brought about by his own ambiguities concerning his correct address. 194The malicious use of legal process strikes at a critical element in the conduct of an ordered society. The community needs to be confident that the administration of justice is true to its ideals. In the present case that process was abused. The condemnation of such abuse needs to be marked by a significant element of exemplary damages and I would assess $75,000 as appropriate damages for this tort. 195In total therefore the damages are $175,000 and I direct entry of judgment for the plaintiff accordingly. 196Liberty to apply for costs orders.