81 The plaintiff's submissions were as follows (paragraphs 4.1-4.6):
"4.1 His Honour gave a number of reasons as to why he found the Appellant a person 'in whom the court could place no credence whatsoever': Red AB 35-37. The first of these was based on the opinion of Dr Lee that 'at the relevant time' the Appellant was a 'diagnosed psychopath with paranoid features focused [sic] towards Police in general': Red AB 36. Dr Lee had last seen the Appellant in March 1990, a year and nine months before the 'relevant time': Black AB 338.48. He did not know, could not know, did not purport to know, what the position was in December 1991: Black AB 358.34-59. In any event, at no stage in his evidence did Dr Lee describe the Appellant as a 'diagnosed psychopath with paranoid features' focussed on the Police or anyone else: see e.g. Black AB 348.30-40.
4.2 It is true that Dr Knox (the other psychiatrist who saw the Appellant prior to the incident of 18 December 1991) made a diagnosis of 'intermittent explosive disorder' (a diagnosis not made by Dr Lee, who thought the Appellant had a depressive disorder): Blue AB 84. However, Dr Knox had also not seen the Appellant since September 1990, or 15 months before the 'relevant time', and conceded there may have been a change: Black AB 245.7-13, 250.4-254.1. Dr Knox was not entirely comfortable about using the word 'paranoid' except in lay terms: Black AB 242.5. He was prepared to agree with counsel for the Respondents that the Appellant had a 'psychopathic personality' in the sense that he suffered from an antisocial personality disorder, but the context of his evidence shows he was not using the adjective 'psychopathic' in the pejorative manner his Honour used the noun 'psychopath': Black AB 242.43-535. Both Dr Lee and Dr Knox agreed that the Appellant was a man not comfortable with being angry and violent and wanted help with his fears that he might lose control: Black AB 246.12-33, 347.53-348.13. Neither doctor had ever observed the Appellant lose control in his presence.
4.3 To the extent that His Honour relied on a mistaken view of Dr Lee's evidence in assessing the credibility of the Appellant, his Honour erred. In any event, the evidence of Dr Lee and Dr Knox, whatever it meant, was [it] is ultimately not relevant to the issue of liability because nothing in the Police evidence supported a conclusion that the Appellant had had a 'rage attack' or exhibited any manifestation of an 'explosive disorder' on 18 December 1991, or that the Police knew anything about this past history that might have led them reasonably to fear him and react pre-emptively. To the extent that his Honour allowed the psychiatric evidence to influence his conclusions on credibility and liability, his Honour erred in two ways. First, he impliedly concluded that Dr Lee and Dr Knox were expressing views about the mental state of the Appellant 'at the relevant time', when they were clearly not in a position to do so, and second, he relied on an attribution of a diagnosis to Dr Lee that was not only wrong, but had no relevance to the sequence of events that took place by the road at Taree.
4.4 His Honour's conclusion that the insistence of the Appellant on seeing his own speed on the radar display was 'entirely inconsistent' with his own version of events is also simply not correct: Red AB 36. The point was that the Police alleged they had recorded him travelling at 96 kph in a 60 kph zone. At that moment, there were two possibilities consistent with the Appellant's own version of the facts. Either the Police had not recorded that reading at all, or they had recorded the reading in the 100 kph zone. It is hardly surprising that the Appellant (as someone not inclined to accept Police as habitually truthful) would want to see solid evidence of the reading itself. "Show me the evidence' would be the first reaction of many people who feel unjustly accused of speeding.
4.5 His Honour's reference to the Appellant's use of the word 'accident' as a 'Freudian slip' also suggests that his Honour has drawn a conclusion that such usage was evidence that the Appellant secretly believed that the injury was an accident, and somehow the use of that word that meant the Police were not at fault in any way: Red AB 37. It is submitted that this usage (accidental or otherwise) has no probative value whatsoever, but even if it did, it can hardly be any basis for a credibility finding against the Appellant. It was never the Appellant's case that the Police deliberately broke his arm, but that the arm was broken as a result of the unjustifiable application of unauthorised and excessive force. In that case, the injury was correctly described as an 'accident', and no adverse conclusion could be drawn from its use.
4.6 His Honour referred globally to the other lay witnesses in the Appellant's case: Red AB 37. There is no analysis or discussion of any of the evidence of Ms Meyburn or Mr Smith, or what is was about what they said or their demeanour that caused His Honour to reject them, as he clearly must have done. That is an error of the kind referred to in Earthline : see also Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247. Similarly, his Honour's brief reference to the evidence of Susan Bryce, the Appellant's de facto spouse, does not provide any basis for the Appellant to understand exactly what it was in her evidence that his Honour thought supported the conclusion that she was 'happily there to support his claim in the most obviously biased fashion despite the fact that she more than anyone is aware of the [Appellant's] violent and irrational nature': Red AB 37."
82 The defendants' written submissions were as follows (paras 8-13):
"8. There was a mountain of evidence to suggest that the appellant suffered from a serious psychiatric condition, not merely at the time of incident, but for a period of some years before, and right up till the date of trial. See paragraphs 12 to 14 of prior submissions of respondents as to this evidence. Dr Lee recorded a history given to him by the appellant and his de facto wife on 20 November, 1989 (Black book P 342 line 10 to P 344, and Blue Book P 143- 150). Whilst Dr Lee did not make the actual diagnosis of the appellant being a psychopath with paranoid features (and the trial judge does not say that he did) there is clear evidence supportive of such a diagnosis being given by other psychiatrists (Dr Petroff: Blue book P 114, Dr Knox: Blue book P 82 and P 92, Dr Berenson: Black book P 844 at line 8) to suggest that the appellant was not suffering from a severe psychiatric disorder, a psychopathic personality, paranoia or otherwise is to fly in the face of the evidence presented. The appellant himself conceded in his evidence that he was pursuing a disability pension throughout 1991 to early 1992, with such application being based upon his uncontrollable violent temper, becoming aggressive when provoked, unable to take orders from a superior in an employment situation without being subject to rage attacks, and in the course of 1991 was afraid that he would lose control if irritated by anyone (Black book P 604 - P 630). Such anxiety based symptoms existed throughout the entire period of 1988 to 1992 per Dr Berenson - Black book P 847 lines 15 - 30).
9. The relevance of his psychiatric condition is as follows:
(a) His suffering from such a condition at the time may explain firstly, the likelihood of the appellant acting in the irrational and violent manner which he did, and the reasons why such conduct was undertaken.
(b) The fact that the appellant was less than forthcoming in revealing this psychiatric condition prior to the commencement of his cross-examination affects his credibility generally.
(c) The fact that the appellant was evasive in his answers when confronted with the seriousness of his pre-existing psychiatric condition also is capable of affecting his overall credibility.
10. Para 4.4: The appellant maintained at trial that the police had recorded his speed whilst he was outside the 60 mph zone, and in the 100 zone. He was told by the police at the time, on his version that he was doing about 85 kilometres per hour in a 60 zone. (Black book, P 557 - line 40 to P 558). If the appellant were to have been travelling at 60 kilometres per hour by the police, one would expect an immediate denial from the appellant, rather than his merely disbelieving the police as to his stated speed, with his wanting to check for himself as to what speed was shown on the police recording unit. (Black book P 555 line 5-15, and P 557 line 45 to P 558). The actions of the appellant, in this sense, are entirely inconsistent as the trial judge noted. Whilst the appellant may wish to argue that there are other possible explanations for the appellant's conduct, it is clear which view the trial judge accepted as being the most acceptable one. This is in a background of the appellant not being able to tell, on his own estimate, whether or not his radar detector went off when he was travelling at 65 or 95 km per hour, and relies upon his alleged reading of 83 km per hour, as recorded on the police unit, as his estimate of speed. (Black Book, 723 Line 19 - line 55). Of course, the police evidence was that a recorded speed of 96 km per hour was the reading in the police car (Exhibit 14).
11. Para 4.5: It was the appellant's case that the police did deliberately break his arm. Indeed, in the factual contest, the respondents had to rebut the suggestion that not merely did the police use excessive force, but that a torch was used to hit him at the time when the arm was broken. See the Further Amended Statement of Claim (and paragraph 6(d) (Red Book at P 3 pt 7) and particulars provided, which clearly alleged that the appellant was struck with a torch or similar object. (Blue book P 49 at pt 2). See also the appellant's evidence in chief at Black book P 562 line 35 to P 20. Dr Berenson gave supportive evidence as to the proposition that a torch may have been used (Blue book P 1 point 4 - point 6) and this was consistent with the history given to him by the appellant (Black book, P 799 lines 30 - 40). The appellant also maintained in his evidence that he had been 'brutalised' by the police. In the context of these clearly serious allegations, one would hardly expect an appellant to refer to such an incident as an 'accident'. The appellant was cross-examined on this aspect at Black book, Page 41 line 25 to P 43. Given the pleadings, and the allegations made by the appellant, one could not conceivably mis-describe the police actions as an 'accident'. The only possible interpretation of an 'accident' from the appellant's point of view is that his own actions in resisting were not intended to lead to his breaking his own arm.
12. Para 4.6: There was much cross-examination of the appellant and his witnesses. Time after time, inconsistencies in the evidence were put to them, their evidence was contrasted with the objective evidence of the doctors, the inconsistencies in the evidence between each of the witnesses was highlighted in the cross-examination, and the fragile credibility of the witnesses became obvious to anyone following the evidence. Taken in conjunction with the trial judge's assessment of the demeanour of each of the witnesses, the trial judge's findings are unassailable. Indeed, the appellant does not point to any independent, corroborative or objective evidence which is capable of resurrecting the credibility of the appellant or his witnesses. The objective evidence is all one way. Neither the appellant or his witnesses are capable of belief.
13. Further, it is [to] be remembered that there were no lay witnesses to the relevant incident itself, only the appellant and the two police officer respondents. Hence, this ground of appeal in reality relates to the damages claim, though it is recognised, is capable of affecting the plaintiff's overall credibility, though to a much lesser extent."
83 So far as Dr Lee and Dr Knox are concerned, any error made by the trial judge in attributing a wrong diagnosis to Dr Lee or assuming that diagnoses they made of the plaintiff at times other than December 1991 were applicable in December 1991 appears to have been an immaterial error. The evidence does support the view that the plaintiff had strong tendencies towards uncontrollable rages. And any error does not affect the overall soundness of the trial judge's conclusions on the plaintiff's credibility in relation to his narration of the events of 18 December 1991. The police officers had made contemporary notes. For the most part their evidence was internally coherent and consistent. On the other hand, there were numerous obstacles to accepting the plaintiff's evidence. To read it is to share the trial judge's scepticism about it. It gives a strong impression of imprecision, unreliability and evasiveness. There were specific problems relating to his credibility. The plaintiff lied twice to the police on the question of whether he had a radar detector. He lied once to the court on whether he knew that radar detectors were unlawful in New South Wales (he was charged with having committed that offence on 29 June 1991 and was about to attend court to answer that charge on 6 February 1992: Black 1/33-38). A dispute between the plaintiff (who said that the police vehicle was a white vehicle marked "Police" with attachments on the roof) and the police officers (who said it was unmarked) caused the plaintiff to allege a police conspiracy to fabricate their story, to destroy or conceal police vehicle use diaries which might have damaged it, and to persuade Sergeant Scotcha to give different evidence in the second trial from the evidence which he gave to the magistrate that the car was unmarked. Once Sergeant Scotcha's explanation was accepted - and no reason has been advanced by the plaintiff for doubting the trial judge's acceptance of it - the conspiracy theory became suspect on that ground and on other grounds as well, and so did the plaintiff's evidence supporting it.
84 Further, the plaintiff shifted ground even within his own story. In his answer on 14 September 1994 to the defendants' request for particulars dated 7 September 1993, he unequivocally asserted that "one of the [defendants] … struck the plaintiff in the area of the right humerus with a torch or similar object. The plaintiff's right arm was then broken" (Blue 49). The defendants submitted that he did not positively testify that he had been hit, but the fact that he solemnly propounded the allegation that he had in particulars was adverse both to his reliability and his credibility.
85 So far as the arguments based on the plaintiff's insistence on seeing his own speed are concerned, there was an arguable inconsistency in the plaintiff's position, and the trial judge was entitled to treat it as significant. The same is true of the plaintiff's use of the word "accident", especially since his stand as taken in the particulars was to contend that the bone was broken by a deliberate blow with a torch.
86 That leaves the plaintiff's submission about Ms Mayburn, Mr Smith and Ms Bryce. Again, whether or not the trial judge was correct in not accepting these witnesses as credible, they were witnesses on damages issues, and what matters in this appeal is what happened between the plaintiff and the two police officers. The trial judge had ample grounds for preferring the evidence of the police officers to that of the plaintiff.
87 The defendants have gone to considerable lengths to support the aspects of the trial judge's findings which are attacked in relation to grounds 4 and 5. In the circumstances it is not necessary to evaluate these submissions.