TORTS – ABUSE OF LEGAL PROCESS – MALICIOUS PROSECUTION –
GENERALLY – where the plaintiff alleged that he was
the subject of
malicious prosecution by the State of Queensland– where the plaintiff was
Source
Original judgment source is linked above.
Catchwords
TORTS – ABUSE OF LEGAL PROCESS – MALICIOUS PROSECUTION –GENERALLY – where the plaintiff alleged that he wasthe subject ofmalicious prosecution by the State of Queensland– where the plaintiff wascharged with wilful damage for ‘keying’a car – where thecharge was withdrawn by the prosecutor for a lack of evidence – where theplaintiff alleged the maliciousprosecution was part of a conspiracy against him– where the State of Queensland argued it had reasonable and probablecause– where the State of Queensland argued no malice was involved– whether the State of Queensland maliciously prosecutedtheplaintiffCRIMINAL LAW – PROCEDURE – WARRANTS, ARREST, SEARCH, SEIZUREAND INCIDENTAL POWERS – ARREST AND DETENTION –EFFECTING ARREST– REASONABLE CAUSE – where the plaintiff alleged he was unlawfullyarrested by the defendant –
where the plaintiff alleged the arrest was
unlawful because the arresting officer did not have a warrant or a reasonable
basis for
suspicion – where the defendant argued the plaintiff was
arrested lawfully pursuant to section 365 of the Police Powers and
Responsibilities Act 2000 (Qld) – whether the plaintiff was unlawfully
arrested
TORTS – INTERFERENCE WITH THE PERSON – TRESPASS TO THE PERSON
– GENERALLY – where the plaintiff alleged the
defendant is
liable to assault– where a police officer transitioned the plaintiff to
the ground – where the plaintiff
says the police officer was unreasonably
violent – whether the police officer’s actions constitute assault
TORTS – INTERFERENCE WITH THE PERSON – TRESPASS TO THE PERSON
– GENERALLY – where the plaintiff alleged the
defendant is
liable to battery – where the plaintiff was required to establish that the
police officer was in direct physical
contact with him without justification or
excuse – whether the police offer’s physical contact with the
plaintiff was
justified and appropriate
TORTS – INTERFERENCE WITH THE PERSON – FALSE IMPRISONMENT
– GENERALLY – where plaintiff alleges he was falsely
imprisoned by
the defendant – where the alleged false imprisonment spanned one hour and
35 minutes – where the plaintiff
was required to prove his liberty was
restrained without lawful justification – whether Mr Wood was restrained
with lawful
justification
CRIMINAL LAW – PROCEDURE – WARRANTS, ARREST, SEARCH, SEIZURE
AND INCIDENTAL POWERS – ARREST AND DETENTION –
Arrest and detention
for questioning and investigation – where the plaintiff alleged the
defendant breached his ‘human
right to be questioned’ and his
‘human right to call a lawyer’ – whether the plaintiff’s
rights were
breached.
Police Powers and Responsibilities Act 2000 (Qld), s 365, s 419
A v New South Wales [2007] HCA 10
(2007) 230 CLR 500, followed
Queensland Bacon Pty Ltd v Rees [1966] HCA 21
(1966) 115 CLR 266, followed
Ruddock v Taylor (2005) 222 CLR 612, cited
Judgment (84 paragraphs)
[1]
TORTS - ABUSE OF LEGAL PROCESS - MALICIOUS PROSECUTION - GENERALLY - where the plaintiff alleged that he was the subject of malicious prosecution by the State of Queensland- where the plaintiff was charged with wilful damage for 'keying' a car - where the charge was withdrawn by the prosecutor for a lack of evidence - where the plaintiff alleged the malicious prosecution was part of a conspiracy against him - where the State of Queensland argued it had reasonable and probable cause - where the State of Queensland argued no malice was involved - whether the State of Queensland maliciously prosecuted the plaintiff
[2]
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - ARREST AND DETENTION - EFFECTING ARREST - REASONABLE CAUSE - where the plaintiff alleged he was unlawfully arrested by the defendant - where the plaintiff alleged the arrest was unlawful because the arresting officer did not have a warrant or a reasonable basis for suspicion - where the defendant argued the plaintiff was arrested lawfully pursuant to section 365 of the Police Powers and Responsibilities Act 2000 (Qld) - whether the plaintiff was unlawfully arrested
[3]
TORTS - INTERFERENCE WITH THE PERSON - TRESPASS TO THE PERSON - GENERALLY - where the plaintiff alleged the defendant is liable to assault- where a police officer transitioned the plaintiff to the ground - where the plaintiff says the police officer was unreasonably violent - whether the police officer's actions constitute assault
[4]
TORTS - INTERFERENCE WITH THE PERSON - TRESPASS TO THE PERSON - GENERALLY - where the plaintiff alleged the defendant is liable to battery - where the plaintiff was required to establish that the police officer was in direct physical contact with him without justification or excuse - whether the police offer's physical contact with the plaintiff was justified and appropriate
[5]
TORTS - INTERFERENCE WITH THE PERSON - FALSE IMPRISONMENT - GENERALLY - where plaintiff alleges he was falsely imprisoned by the defendant - where the alleged false imprisonment spanned one hour and 35 minutes - where the plaintiff was required to prove his liberty was restrained without lawful justification - whether Mr Wood was restrained with lawful justification
[6]
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - ARREST AND DETENTION - Arrest and detention for questioning and investigation - where the plaintiff alleged the defendant breached his 'human right to be questioned' and his 'human right to call a lawyer' - whether the plaintiff's rights were breached.
[1] The plaintiff, Mr Wood, sues the defendant, the State of Queensland, for:
[12]
(a) malicious prosecution;
(b) assault;
(c) battery;
(d) false imprisonment;
(e) wrongful arrest; and
(f) breach of human rights.
[13]
[2] Early on 28 September 2018, Ms Annaliese Dowdle, a fitness instructor, drove her Hyundai from where she lived with her parents to her workplace at Snap Fitness at Bellbowrie Shopping Plaza. She recalls that she had two clients and so finished work at about 8am. When she returned to her car, she found that it had been damaged. A sharp object had been scraped down the driver's side of the Hyundai.
[3] She drove home. On the way home Ms Dowdle saw Mr Wood, who waved and laughed. There had been a long-standing animosity between Mr Wood and the Dowdles. Ms Dowdle suspected it was Mr Wood who had damaged her car. She contacted police to file a complaint.
[4] Officer Egan from the Bellbowrie Neighbourhood Police Beat (administratively attached to the Indooroopilly Police Station) then attended the Dowdle's residence. There was an initial conversation between Officer Egan, Ms Dowdle and her mother at which point Ms Dowdle told the officer that Mr Wood was nearby. The officer then drove to a nearby street and had a short, unproductive conversation with Mr Wood.
[5] Officer Egan then returned to the Dowdle residence. There was then a rather lengthy conversation mainly involving Ms Dowdle's mother and Officer Egan. During the course of that conversation, Mr Wood walked past the Dowdle residence and there was a perfunctory remark made by Officer Egan. All of that is recorded by Officer Egan's body-worn camera footage.
[6] Officer Egan then went to the centre management for Bellbowrie Shopping Plaza. There he spoke to a secretary or receptionist who provided him with access to the centre's various CCTV camera footage.
[7] Footage from one of the cameras showed a person walk along a walkway, and then closely past Ms Dowdle's car with their right arm trailing with a seemingly closed fist which appeared to maintain contact with the length of the car (on the driver's side). At the end, the person made a motion flicking their wrist away from the car. Officer Egan asked that the centre management representative 'zoom in' on the incident where the person walked beside the Hyundai.
[8] Officer Egan asked the secretary/receptionist to retain a copy of the CCTV footage.
[9] As a result of viewing the Bellbowrie CCTV footage, Officer Egan formed the opinion that the person in the Bellbowrie CCTV footage was Mr Wood, and that the footage showed that he had damaged Ms Dowdle's Hyundai. He decided to arrest Mr Wood and charge him with wilful damage.
[14]
(a) the Bellbowrie CCTV footage - which Mr Lee considered was good evidence showing Mr Wood damaging the car - was not supported or verified by the evidence of a witness or a statement under s 95 of the Evidence Act 1977;
(b) the evidence of Ms Dowdle which included a statement by her that she saw Mr Wood's car and trailer in the shopping centre carpark on the morning her car was damaged - but the problem was that evidence was contradicted by Mr Wood and his mechanic who both maintained that the car was in the mechanic's workshop on that day.
[15]
[16] The centre management was uncooperative or at least were unwilling to communicate about the Bellbowrie CCTV footage. Ultimately on 6 June 2019, some 4 days before the trial was to commence, Mr Lee received a s 95 certificate from Mr Sher, one of the owners of the centre. The certificate included the following qualification:
[16]
"During the period from 11/10/2018 to 12/10/2018 I was responsible ONLY for the ownership of the CCTV system. I have not been trained and have no idea of the downloading procedure of recorded footage from the CCTV system. My receptionist is responsible for the operation of the CCTV system. Furthermore, when the police executed their search warrant in my office, I was told that I was to be under detention and ordered not to move and sit at the conference table. Not even allowed to go to the toilet. Therefore. I have no knowledge of what recording was copied from the reception's computer. Before leaving my office, the police advised me that because he had the search warrant, he does not have to issue a receipt or justify what he had copied. Therefore, I have NO knowledge or what he had copied."
[17]
[17] Mr Lee's view was that those qualifications made the certificate virtually useless. With the consent of his supervisor, and after consulting Officer Egan, the police offered no evidence on the charge and the charges were dismissed.
[18]
Mr Wood's claims against the State of Queensland
[19]
[18] Mr Wood's primary claim is of malicious prosecution against the State of Queensland.[2]
[19] The facts of the malicious prosecution claim derive from the series of events on 28 September 2018 and 15 October 2018 where Mr Wood was arrested and charged with wilful damage and obstruction of police. As explained, that charge was initially pursued by Queensland Police and then subsequently 'NETO'd' in June 2019.[3]
[20] Mr Wood contends the State of Queensland maliciously prosecuted him as part of a conspiracy against him. He alleges that a number of people, including a police officer, a police prosecutor, a complainant and multiple government agencies, assisted the State of Queensland in conspiring against him.[4]
[21] Mr Wood alleges that there is a conspiracy, and that that conspiracy can be gleaned from a series of events where Mr Wood tried unsuccessfully to obtain video footage from the Indooroopilly Police Station. The footage Mr Wood sought related to his arrest on 15 October 2018 at the Indooroopilly Police Station. Mr Wood requested a copy of that footage in and around June 2019. Mr Wood points to three pieces of information which, he says, 'do not align', as the basis for the alleged conspiracy.
[22] The first piece of information is that, by a Right to Information request made to the Officer in Charge at Indooroopilly Station, Mr Wood was informed video footage at police stations is only retained for approximately 50 days.[5] This was then confirmed by a letter from the Director of Public Prosecutions to Mr Wood.[6]
[23] The second piece of information is that the Office of the Information Commissioner advised Mr Wood that QPS CCTV footage from the police watch-house is retained for six months and then destroyed in line with the QPS Retention and Disposal Schedule.[7]
[24] The third piece of information Mr Wood points to is the Queensland Government records governance policy, which states that government agencies should have a plan to migrate and archive their digital records.[8]
[25] Ultimately, Mr Wood's allegation is that the QPS intentionally deleted the Indooroopilly CCTV footage from the date of his arrest as part of a conspiracy against him. He bases this claim on the fact that Indooroopilly Police Station could not provide him with the footage beyond 50 days after his arrest. He says that failure to supply the CCTV footage conflicts with other information and policies suggesting police stations should retain their records for longer and have a more robust record-keeping system.
[20]
(a) "the arresting officer had no basis on which to press the charge in the first place";[9]
(b) "the police witnesses and the civilian witnesses have tendered false evidence in support of this case in an attempt to bring a fraudulent accusation";[10]
(c) "the prosecutor started prosecution without reasonable cause";[11]
(d) the government "flouted the law as part of a vendetta to have [Mr Wood] accused of crimes and found guilty of crimes they had no reason to believe he was guilty of."[12]
[21]
[27] Mr Wood believes the State of Queensland's primary reason for conspiring against him is to 'punish him' for "giving evidence against the police and for standing up against what was a blatantly corrupt prosecution" in an earlier separate and unrelated prosecution for an assault charge against Mr Wood. [13]
[28] It is necessary to consider each of Mr Wood's claims.
[22]
[29] Mr Wood's primary contention is that he was the subject of malicious prosecution by the State of Queensland. At trial, Mr Wood needed to satisfy the court that:
[23]
(a) the State of Queensland was 'actively instrumental' in instating the proceedings against Mr Wood;
(b) the proceeding was terminated in favour of Mr Wood;
(c) the State of Queensland brought the proceeding against Mr Wood without reasonable and probable cause;
(d) the State of Queensland was motivated by malice; and
(e) Mr Wood suffered damage as a result of the above.
[24]
[30] Only elements (c) and (d) were contested.[14]
[25]
[31] In his action for malicious prosecution, Mr Wood must establish that there is an absence of reasonable and probable cause.
[32] The question of reasonable and probable cause is typically defined by reference to whether the defendant has a genuine belief that the proceedings were justified.[15]
[33] In A v New South Wales the High Court observed that assessing a genuine belief must have reference to both a subjective test and an objective test:
[26]
"... the material available to the prosecutor must be assessed in two ways. What did the prosecutor make of it? What should the prosecutor have made of it? To ask only whether there wasmaterial available to the prosecutor which, assessed objectively, would have warranted commencement or maintenance of the prosecution would deny relief to the person acquitted of a crime prosecuted by a person who not only acted maliciously, but who is shown to have acted without forming the view that the material warranted prosecution of the offences. Conversely, to ask only what the prosecutor made of the material that he or she had available when deciding to commence or maintain the prosecution would favour the incompetent or careless prosecutor over the competent and careful."[16]
[27]
[34] Mr Wood submitted there was no reasonable cause to prosecute him for wilful damage for two (or perhaps three) reasons. The first reason is that Mr Wood submits that the Bellbowrie CCTV footage did not adequately identify him.[17] The second reason is that, according to Mr Wood, the CCTV footage did not show evidence of any damage being done.[18]
[35] There was perhaps a third reason. Mr Wood submitted that he had an alibi because his vehicle was being serviced at the time that Ms Dowdle says she saw his vehicle in the Bellbowrie Shopping Plaza car park on 28 September 2018.[19] The effect of the evidence of Mr Paul Artis, a workshop manager, was that Mr Wood's Ford Ranger was in Mr Artis' workshop from the evening of 27 September 2018 to about 2.30pm on 28 September 2018. I accept that evidence. That means that Ms Dowdle could not have seen Mr Wood's vehicle in the Bellbowrie Shopping Plaza car park early in the morning on 28 September 2018.
[36] However, to use Mr Wood's language, that is an 'alibi' for Mr Wood's vehicle. It is not an alibi for Mr Wood personally. Ms Dowdle may have been mistaken about seeing the vehicle in the car park on that day. Mr Wood submits that there was something more sinister at play and that Ms Dowdle has deliberately lied at the instigation of the QPS.
[37] Conversely, the State submitted that there was reasonable cause to both arrest and maintain the prosecution of Mr Wood until it was abandoned. The State argued that this is because Officer Egan had reasonable suspicion that Mr Wood had committed an offence based on the CCTV footage, his interactions with Mr Wood of the same day, his interview with Ms Dowdle and her mother, and his interaction with Mr Wood on the day he arrested Mr Wood.
[38] As cited by the State, a reasonable ground for forming suspicion must be judged against what is known or reasonably capable of being known at the relevant time.[20] And, in another context a suspicion is described in this way:
[28]
"A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to "a slight opinion, but without sufficient evidence", as Chambers's Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. The notion which "reason to suspect" expresses in sub-s. (4) is, I think, of something which in all the circumstances would create in the mind of a reasonable person in the position of the payee an actual apprehension or fear that the situation of the payer is in actual fact that which the sub-section describes - a mistrust of the payer's ability to pay his debts as they become due and of the effect which acceptance of the payment would have as between the payee and the other creditors."[21] [emphasis added]
[29]
[39] The central question here is whether the prosecution had reasonable cause to both arrest and maintain the prosecution against Mr Wood until the prosecution was abandoned.
[40] Ms Dowdle, Officer Egan and Mr Wood gave evidence. In respect of the events on the morning of 28 September 2018, Mr Wood claimed self-incrimination privilege during cross-examination, as he was entitled to do. Mr Wood explained, and I accept, that I cannot infer anything either as to evidence or credibility from the fact that Mr Wood made a claim for privilege.[22]
[41] Ms Dowdle appeared to me to give her evidence honestly and to the best of her recollection. She was almost certainly mistaken about the presence of Mr Wood's vehicle (and trailer) in the car park on 28 September 2018, but I do not consider that to impact adversely on the balance of her evidence. She was clear that on 28 September 2018 she found her car in a damaged state with a scratch down one side. On her drive home she recalls seeing Mr Wood on the street. He was pointing and laughing.
[42] Mr Wood cross-examined Ms Dowdle about the fact that the prosecution intended to claim for all of the repairs to her vehicle when some of those repairs were completely unrelated to the September 2018 incident. However, understandably after all of this time, Ms Dowdle did not recall instructing the repairer,[23] or even providing the records of the repair to the police.
[43] I also accept Officer Egan's evidence. He said that when he looked at the Bellbowrie CCTV footage, he concluded that the person shown in the video was Mr Wood. The footage in the video is rather distant but there is, at the least, a reasonable case that it is Mr Wood in the video, or at least a person who was dressed similarly and had a similar appearance.
[44] I reject Mr Wood's argument that the CCTV footage did not show evidence of any damage being done. The relevant question was whether all of the material available to the police and the prosecutor, assessed objectively and subjectively, warranted the commencement and maintenance of the prosecution. Officer Egan assessed the CCTV footage, and took the reasonable view that it was Mr Wood in the footage, and that the footage showed damage being done to Ms Dowdle's car.
[45] It is true that the footage is taken from some distance and so one cannot actually see the impacts or the actual scraping of the car. But the surrounding circumstances are that a person, with the appearance of Mr Wood, dragged their hand along the side of the car and that a short time later the car was found to have damage along its side. And then there were the 'on street' interactions between Ms Dowdle and Mr Wood. Thus, the difficulty in Mr Wood's approach is that it looks at the CCTV footage in isolation. The correct approach is to look at all of the evidence and to assess whether, objectively and subjectively, that body of evidence warranted the commencement and maintenance of the prosecution. In my view it did. And, Officer Egan genuinely and reasonably believed that the evidence warranted the prosecution.
[30]
[48] Malice in this context requires that the dominant purpose of the prosecutor must be some improper or illegitimate purpose other than the proper invocation of criminal law.[24]
[49] Mr Wood's submission was that the improper or illegitimate purpose resulting in malice was an alleged conspiracy to punish him for his actions on a previous assault charge.[25] Mr Wood led no real evidence to ground this claim beyond the mismatch in information relating to the retention of digital records by QPS.
[50] The State submitted there was no conspiracy against Mr Wood and that the prosecution was pursued for a proper purpose, based on a reasonable suspicion that Mr Wood committed an offence. The State also contended that, contrary to Mr Wood's allegation, the complainant (Ms Dowdle), the police officer (Officer Egan), the prosecutor (Mr Lee) and various related government agencies, were merely people engaged in the normal process of reporting and investigating an alleged crime.[26]
[51] There is little or no evidence supporting Mr Wood's submission of a conspiracy to punish him. Ms Dowdle gave evidence that she had no contact with Officer Egan, or any other officers connected with Indooroopilly Police Station, after September 2018. I accept that evidence. Ms Dowdle could not have been involved in any conspiracy because she had no contact with any relevant officers. And there is no evidence of any relevant communications between the officers or involving the prosecutor, Mr Lee, or any other government agency.
[52] Mr Wood is right that there is an unsatisfactory aspect to his request for the Indooroopilly Police Station CCTV footage. The evidence is that:
[31]
(a) on 2 May 2019, a letter sent from the Principal Right to Information Officer to the Officer in Charge at the Indooroopilly Police Station states CCTV footage at Indooroopilly Police Station is only retained for a period of 50 days;[27]
(b) on 14 June 2019, a letter from the Director of Public Prosecutions to Mr Wood states CCTV footage at Police Stations is only retained for approximately 50 days;[28]
(c) on 8 July 2019, a letter from the Office of the Information Commissioner to Mr Wood states that QPS has advised that CCTV footage from police watch houses is retained for 6 months only, and is then destroyed in accordance with the QPS Retention and Disposal Scheme;[29]
(d) on 5 September 2019, a letter from QPS to Mr Wood states the CCTV footage request was received after the expiry date of the QPS Retention and Disposal policy timeframe;[30]
(e) on 14 October 2019, a letter from the Office of the Information Commissioner ('OIC') to Mr Wood states QPS has explained that the Indooroopilly Police Station has the capacity to retain CCTV footage for a period of 50 days;[31]
(f) on 18 December 2019, in response to Mr Wood's request for an external review, the Office of the Information Commissioner affirmed the QPS's decision and refused access to any further information. In the OIC's letter to Mr Wood, the OIC stated that the Indooroopilly Station has the capacity to retain CCTV footage for a period of 50 days and the requested CCTV footage had already been deleted or taped over when Mr Wood's lawyers had requested a copy of the footage;[32]
(g) the Queensland Government 'Records Governance Policy' states that government agencies must dispose of records in a planned and authorised way;[33]
(h) a Queensland Government webpage titled 'Surveillancerecords' states, as a guide, surveillance footage and images which provide evidence of an incident, crime, investigation, and have been handed over to law enforcement, should be retained for one year after the recording is sent to the relevant law enforcement agency;[34]
[32]
[53] In this case, Mr Wood was at the Indooroopilly Police Station on the morning of 28 September 2018. On 13 February 2019, his solicitors requested that the footage of his processing at that police station be retained. By that time, it was too late. The 50 days had expired, and it is likely that the footage had been overwritten. That is obviously consistent with the practice at Indooroopilly Police Station, but it seems inconsistent with the QPS Retention and Disposal policy timeframe and perhaps also inconsistent with other government document retention policies.
[54] But it is one thing to say that the police officers, or government bodies, have failed to comply with their own regulations or policies concerning the retention of records. It is quite another to suggest that this court should infer, merely from those non-compliances, that there is a conspiracy or malice at play and that the conspiracy or malice was directed at Mr Wood.
[55] Mr Wood need only comply with the civil standard of proof, that is, on the balance of probabilities. He is entitled to rely on inferences drawn from the facts and circumstances of the case. But, here, there is largely a vacuum. Yes, there was inconsistent evidence concerning the retention of records. But even the senior officer in charge at Indooroopilly Police Station, Senior Sergeant Shane Hancock, had no involvement in the installation or maintenance of the CCTV system installed in the Indooroopilly Police Station. That system, presumably in common with other police stations, automatically records CCTV footage within the police station, and enables senior officers, such as Senior Sergeant Hancock, to access and download footage if there is a reason to do so. But that footage over-writes itself every 50 days.
[56] Even assuming that that system breaches the relevant regulations, an inference could be drawn that the system was set up by officers or IT specialists who were ignorant of the relevant document retention regulations. But there is no proper basis for inferring that the operation of the system at Indooroopilly Police Station was targeted at Mr Wood, or that officers used that system to deny Mr Wood access to relevant CCTV footage, or that there was some conspiracy designed to punish Mr Wood for his actions on a previous assault charge.
[57] In the circumstances, there is no basis for the claim of malice. It follows that the claim of malicious prosecution must fail.
[33]
Mr Wood's claims for assault, battery, false imprisonment and false arrest
[34]
[58] The State submitted, and Mr Wood accepted, that the four remaining causes of action, assault, battery, false imprisonment and false arrest, all depend on whether the arrest was unlawful.[37]
[35]
[59] Mr Wood submits that the unlawfulness arises because he was arrested without a warrant, and because there was no reasonable basis for Officer Egan's suspicion that Mr Wood was guilty of this crime.[38]
[60] The State contends that Officer Egan arrested Mr Wood lawfully pursuant to s 365 of the Police Powers and Responsibilities Act 2000 (Qld)[39] because he operated on a reasonable suspicion that Mr Wood had committed an offence. The State further submitted that the use of handcuffs was reasonable as Officer Egan formed the view that using handcuffs would be the safest way to prevent Mr Wood from running away and to take him into custody, which is not an unusual course in any event. The State also argued that any force used to 'transition' Mr Wood to the ground was reasonable and lawful pursuant to s 615 of the Police Powers and Responsibilities Act 2000 given Mr Wood was agitated, not walking in the direction he was asked to and started calling out for someone named 'Tamara' rather erratically.[40]
[61] An arrest is unlawful at common law if it is not for the purpose of bringing a person before a justice to be dealt with according to law.[41]
[62] First, it was not necessary for Officer Egan to obtain a warrant. Under s 365(1) of the Police Powers and Responsibilities Act 2000 (Qld) it is lawful for a police officer, without warrant, to arrest an adult that the police officer reasonably suspects has committed an offence if it is reasonably necessary for one or more of a number of reasons. One of those reasons is to ensure the person's appearance before a court. Here, it was perfectly legitimate for Officer Egan to arrest Mr Wood so as to issue him with a notice to appear to ensure his subsequent appearance before a court on the charge of wilful damage. Under of the same Act, it is lawful for a police officer, without warrant, to arrest a person that the police officer reasonably suspects has committed an indictable offence, for questioning the person about the offence, or for the purposes of investigating the offence. Here, again, it was lawful for Officer Egan to arrest Mr Wood for questioning, even though it quickly became apparent that Mr Wood required a lawyer and may not willingly answer questions.
[36]
[66] For Mr Wood's assault claim against the State of Queensland, he points to the following:
[37]
"Officer Egan threw the Plaintiff violently to the ground and knelt on him with his knee in the Plaintiff's back 'George Floyd' style. This violent behaviour was unwarranted and unnecessary and it is alleged [to have] constituted an unlawful and dangerous assault."[44]
[38]
[67] It is likely that Mr Wood's reference to 'George Floyd' style is a reference to a choking type of hold. But there is no suggestion that anything done by Officer Egan choked Mr Wood or prevented him from breathing.
[68] It may be true to say that Officer Egan is shown in the video to take a cautious approach to the arrest.[45] However, the context was that he was a lone officer and Mr Wood was certainly not 'going quietly'. Consequently, I do not accept that Officer Egan threw Mr Wood violently to the ground or otherwise inflicted unnecessary or unreasonable violence on Mr Wood.
[39]
[69] To establish battery, Mr Wood needed to satisfy the court that Officer Egan was in direct physical contact with him without justification or excuse.
[70] This part of Mr Wood's claim also relates to the encounter between Mr Wood and Officer Egan where Officer Egan 'transitioned' Mr Wood to the ground.[46]
[71] However, in my view, Officer Egan's physical contact with Mr Wood, including the 'transition', was justified and appropriate.
[40]
[72] Mr Wood claims that the State of Queensland falsely imprisoned him when he was placed in a holding cell on 15 October 2018. Mr Wood claims he was falsely arrested from the moment Officer Egan told him he was under arrest until the time he was released.[47] Mr Wood seeks damages of $1,000,000,000 for false imprisonment that spanned approximately one hour and 35 minutes.[48]
[73] For this cause of action, Mr Wood was required to satisfy the court that his liberty was restrained without lawful justification. For the reasons previously stated, Mr Wood's liberty was restrained with lawful justification.
[41]
Mr Wood's claim for conspiring to defeat justice
[42]
[74] In the context of a strike out application by the defendant in this proceeding, Cooper J ordered Mr Wood's claim for conspiring to defeat justice be struck out because it was not a claim for which Mr Wood has a private right of action.[49]
[75] Mr Wood did not comply with the orders of Cooper J and included this cause of action in his latest claim and statement of claim which he relied on at the trial.[50]
[76] In any event, Mr Wood did not appear to prosecute that claim in his submissions and he cannot prosecute the claim because it has been struck out. The re-appearance of the claim is a mistake and of no effect on the substantive case.
[43]
[77] Mr Wood alleges the State of Queensland breached two supposed human rights. Firstly, the 'right to be questioned' and secondly, 'the right to call a lawyer'.[51]
[78] The 'right to be questioned' and 'the right to call a lawyer' are not established human rights and are not identified as human rights in the Human Rights Act 2019 (Qld).[52] The right Mr Wood seems to refer to, correctly stated, is that anyone being interviewed about an indictable offence is entitled to have a lawyer present during police questioning.[53] That right has not been breached in circumstances where the police did not interview Mr Wood.
[44]
[79] For the reasons stated, Mr Wood's claims fail.
[45]
[1] The likelihood is that it was about 1 hour and 35 minutes: Transcript Day 1 at page 91.
[46]
[2] Transcript of Proceedings, Day 1, at page 3, [20]-[30].
[47]
[3] Exhibit 53; a charge is NETO'd (no evidence to offer) where the prosecution decides to not proceed with the case because they believe there is insufficient evidence.
[48]
[4] Transcript of Proceedings, Day 1, at page 2, lines 41-47.
[49]
[5] Transcript of Proceedings, Day 1, at page 34, lines 41-47.
[50]
[7] Transcript of Proceedings, Day 1, at page 40, lines 32 - 40; Exhibits 24 and25.
[13] Transcript, Day 1 at page 3, at lines 9-14. Mr Wood refers here to a previous and separate charge of assault against him.
[56]
[14] Transcript Day 4, page 57 at lines 15-25; The State submitted that it is not in dispute that Mr Wood incurred damages if the court finds that it was a malicious prosecution.
[19] Day 1 Transcript, pages 9 - 10. Ms Dowdle's evidence was in a witness statement (ex 37) and also Day 2 Transcript, page 8. Her evidence was that she definitely saw it: Day 2 Transcript at page 33 line 19 (and see also page 36).
[39]Police Powers and Responsibilities Act2000 (Qld), s 365 states it is lawful for a police officer to arrent an adult the police officer reasonably suspects has committed an offence for a broad range of reasons.
[72]
[40] Day 4 Transcript, page 79 at line 29 to page 80 at line 21; Day 2 Transcript, page 84 at lines 9 to page 85 at line 10
[42] Officer Egan explicitly gave evidence that this was his reason for arresting Mr Wood: "So the reason I placed Mr Woods under arrest for wilful damage was because - um - I wanted to ensure that - uh - his appearance before a court." Day 2 Transcript at page 83, line 30.
[75]
[43] But see the subsequent discussion about police questioning.
[76]
[44] Plaintiff's Better and Further Particulars at [5].
[77]
[45] Officer Egan explained that he was concerned things may go "pear-shaped": Day 2 Transcript page 85 line 3.
[10] Two weeks later, on 10 October 2018, Officer Egan obtained a search warrant in order to obtain the Bellbowrie CCTV footage he had viewed. He executed the search warrant and obtained the footage.
[11] At about 6.30am on 15 October 2018, Mr Wood was located by Officer Egan at the Bellbowrie Shopping Plaza. Officer Egan arrested Mr Wood. What happened in the course of that arrest was recorded by Officer Egan's body worn camera.
[12] The arrest did not go smoothly. Mr Wood was handcuffed and Officer Egan 'marched' Mr Wood through the shopping centre. There was some yelling by Mr Wood. At some point in the footage, it appears that Mr Wood moved sideways and then Officer Egan 'transitioned' Mr Wood to the ground and called in a 'Code 2' which resulted in two other officers attending.
[13] Mr Wood was then transported to Indooroopilly Police Station and given a notice to appear in court on a charge of wilful damage. He was released. In all, Mr Wood was in custody for less than 2 hours.[1]
[14] With one exception, what happened in the Indooroopilly Police Station is not recorded by video or CCTV. This absence of the footage of what happened within the Indooroopilly Police Station is the subject of some controversy which I will come to. The one exception is that Officer Egan recorded, with his body worn camera, the brief interaction when he issued Mr Wood with a notice to appear in court.
[15] Several months later, in May or early June 2019, the brief of evidence was considered by the prosecutor, Mr Michael Lee. He observed that there were two critical pieces of evidence for the prosecution of Mr Wood on the charge of wilful damage:
[26] Mr Wood alleges that, as part of this conspiracy:
[46] The threshold here is not particularly demanding. As explained, Officer Egan need only have entertained a genuine and reasonable belief that the proceedings were justified. Even if he later discovered that he was mistaken about what was shown in the Bellbowrie CCTV footage, that does not detract from the fact that, based on all of the evidence at the time, he held a reasonable suspicion that Mr Wood had committed the offence of wilful damage. That remained the situation until Mr Lee incurred the difficulties with the evidence shortly before the hearing.
[47] For those reasons, Mr Wood has not made out this element of his claim. That makes it strictly unnecessary to consider the next element, malice. However, given that it was argued, that issue should be decided as well.
(i) a Queensland Government webpage titled 'Preserve Records' suggests options such as migration to ensure preservation of digital records for government agencies;[35]
(j) a Queensland Government webpage titled 'How to Destroy Records' outlines steps for government agencies to undertake before destroying records.[36]
[63] Second, there was a reasonable basis for Officer Egan's suspicion that Mr Wood was guilty of this crime. As explained above, Officer Egan watched the Bellbowrie CCTV footage and concluded that the person shown in the video was Mr Wood. There was, at the least, a reasonable case that it is Mr Wood in the video, and that the video shows damage being done, or at least that damage by Mr Wood can be inferred from all of the circumstances.
[64] Third, the court had the advantage of seeing the body-worn camera footage of the arrest of Mr Wood. Nothing in that footage suggests the use of unreasonable force or inappropriate police conduct.
[65] For those reasons, the claims for assault, battery, false imprisonment and false arrest cannot succeed. Some further findings can be made in relation to those causes of action.