and Mohamed Zahidul Haque v State of Victoria
[2015] VSCA 83
•4 May 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCI 2014 0150 | |
| MOHAMED ZAHIDUL HAQUE | Applicant |
| v | |
| STATE OF VICTORIA | Respondent |
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JUDGES: | OSBORN and BEACH JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 4 May 2015 | |
DATE OF JUDGMENT: | 4 May 2015 | |
MEDIUM NEUTRAL CITATION: | [2015] VSCA 83 | |
JUDGMENT APPEALED FROM: | [2014] VCC 2035 | |
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TORT – False imprisonment – Assault – Battery – Validity of arrest warrant – Reasons for arrest – Whether reason for arrest communicated to applicant – Whether arrest lawful – Whether application of handcuffs reasonable in all the circumstances – No error in trial judge's analysis or conclusions – Application for leave to appeal refused.
TORT – Defamation – Publication – Imputations – Whether conduct complained of conveyed an imputation defamatory of the applicant – Whether conduct complained of capable of imputing guilt of a criminal offence – Mirror Newspapers v Harrison (1982) 149 CLR 293 referred to – Justification – No actionable defamation established – Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In person | |
| For the Respondent | Mr R I Gipp | Victorian Government Solicitor |
OSBORN JA
BEACH JA:
Introduction
On 9 August 2009, the applicant was involved in a series of events in the CBD which did not have a happy outcome for him. Ultimately, they led to the applicant being arrested, handcuffed and taken to the Melbourne West police station in a divisional van. As a result of these events, the applicant sued the State of Victoria alleging causes of action in assault, battery, false imprisonment and defamation.
On 11 November 2014, the applicant’s proceeding came on for trial in the County Court. This was the second trial of the proceeding, the dismissal of the applicant’s proceeding in an earlier trial having been set aside by this Court in November 2013.[1]
[1]For a more detailed description of the procedural history of this matter, see this Court’s decisions in Haque v Victoria Police [2010] VSCA 219; Haque v State of Victoria [2013] VSCA 316; Haque v State of Victoria [2013] VSCA 332.
Following a nine day trial, on 5 December 2014, a judge of the County Court dismissed the applicant’s proceeding and entered judgment for the respondent.
The applicant seeks leave to appeal against the dismissal of his proceeding.[2] The application for leave to appeal identifies four proposed grounds of appeal. The proposed grounds, as written by the applicant, are as follows:
(i)Wrongful arrest & False imprisonment: On 5/12/2014 HIS HON re-trail judge DYER wrongly dismissed the plaintiff’s claim in relation to wrongful arrest & false imprisonment on 9 August 2009 by disregarding of section 461(1) of the Crime Act 1958 and some established common law [State of NSW v Kable (2013 HCA 26; 298 ALR 144; Love v Attorney-General NSW (1990) 169 CLR 307 [1990] HCA 4; Slaveski v State of Victoria & Ors (2010) VSC 441]; which manifestly miscarriage of justice and the plaintiff deprived from real justice.
(ii)Battery: HIS HON re-trail judge wrongly dismissed the plaintiff’s claim in relation to battery on 9 August 2009. HIS HON primary judge Smith inferred that, the uses of handcuffs constitute a battery and all of the circumstances must be examined to determine whether there were reasonable grounds for use them [Haque Vs State of Victoria & Ors (2013) VCC 1035; at 97, 98]. On 25/9/2013 the appellant appeals to the Court of Appeal in relation to the same matter. HIS HON’S learned Judges Osborn JA and Beach JJA in the Court of Appeals found that, ‘Dr Haque’s Battery was wrongly dismissed’ [Haque Vs State of Victoria & Ors (2013) VSCA 316 (1 November 2013) at 26]. HIS HON re-trail Judge ignored the judgment of the higher court.
(iii)Defamation: HIS HON re-trail judge wrongly dismissed the plaintiff’s claim in relation to defamation on 9 August 2009. HIS HON’S learned Judges in the Court of Appeal concluded that, ‘I think the applicant has sufficient prospects of success in relation to the battery and defamation causes of action so as to permit him to appeal (absent any other relevant matter that might mitigate a favourable excise of discretion)’ [Haque Vs State of Victoria & Ors (2013) VSCA 332 (22 November 2013) at 13]. THEIR HONR’S Judges in the Court of Appeal also concluded that, ‘If Dr Haque’s claim for battery was wrongly dismissed, then it may be that his claim for defamation needs to be looked at again’ [Haque v State of Victoria & Ors [2013] VSCA 316 (01 Nov 2013) at 26].
(iv)Tort of Assault: HIS HON re-trial judge wrongly dismissed the plaintiff’s claim in relation to relation to tort of assault on 9 August 2009. Because the police officers conduct on 9/8/2009 fulfil all the elements of ‘tort of assault’, pursuant to pargraph-223 of the establish common law ‘Slaveski v State of Victoria & Ors’ [(2010) VSC 441 at 223].
[2]Leave is required pursuant to s 14A of the Supreme Court Act 1986.
This is the hearing of the applicant’s application for leave to appeal and, if leave is granted, the hearing of the appeal.[3]
[3]The President of the Court of Appeal has determined that this Court, constituted by two Judges of Appeal, may exercise all the jurisdiction and powers of the Court of Appeal: see s 11(1A) of the Supreme Court Act 1986.
Background facts
The applicant was born in Bangladesh in 1960. He completed his basic university degree in engineering and electronics in 1983. He obtained first class honours and became a lecturer at Bangladesh University. He completed a Masters in Science and Electrical Engineering and was appointed an assistant professor.
In 1989, the applicant left Bangladesh for India on a scholarship program. He came to Australia in June 1991 under a skilled migration program. At the time, he was married and had a 12 month old daughter.
In 1992, the applicant enrolled at Victoria University. He obtained an Australian post graduate scholarship, and completed his PhD in 1997. After completing that degree, he obtained work in academic positions at the University of Ballarat, the University of South Pacific in Fiji and further work at Bangladesh University. This work continued up until about 2003, when the applicant returned to Australia.
When the applicant first travelled to Fiji, and later to Bangladesh, his family remained in Australia. In 2004, the applicant separated from his wife. They were divorced in 2005.
Evidence was led at trial from the applicant’s treating psychiatrist (Dr Stella Kwong) that the applicant has a history of schizophrenia and depression, which had been diagnosed many years ago. This evidence disclosed that there have been times over the years when the applicant has suffered from auditory hallucinations and paranoid ideations. This evidence was important in the judge’s assessment of the evidence of the applicant, particularly where the applicant’s evidence was at odds with other evidence tendered or called at trial.[4]
[4]Haque v State of Victoria [2014] VCC 2035 (‘Reasons’) [11], [17] and [25]-[28].
In August 2008, the applicant was charged with the theft of two mobile telephones. A charge and summons was issued directing the applicant to attend at the Sunshine Magistrates’ Court on 16 October 2008. However, on 16 October 2008, the applicant did not appear at the Sunshine Magistrates’ Court and an order was made for an arrest warrant to be issued. The hearing of the charges was adjourned to a date to be fixed. The laying and proceeding with these criminal charges formed the basis for an action in malicious prosecution, which action was subsequently dismissed in August 2013.[5]
[5]See Haque v State of Victoria [2013] VCC 1035 (being the first trial of the present proceeding, which was heard and determined at the same time as the proceeding containing the applicant’s claim for malicious prosecution), and note that an application for an extension of time in which to appeal the dismissal of the malicious prosecution claim was refused by this Court in Haque v State of Victoria [2013] VSCA 332.
The events of 9 August 2009 which led to the present proceeding were summarised by the trial judge as follows:
On 9 August 2009, Dr Haque was driving a taxi in Swanston Street, Melbourne. It was a Sunday, around lunchtime, when a man and woman attempted to hail the taxi. According to Dr Haque, who was the only witness to give direct evidence on this matter, the woman boarded the taxi on the passenger side rear and the male passenger walked around the back of the taxi and claimed that Dr Haque had driven the taxi forward over his foot as he was attempting to board it. A short verbal altercation developed, the woman got out of the taxi and apparently the male passenger approached police officers who were nearby. Dr Haque continued to drive the taxi north in Swanston Street.
Leading Senior Constable Azzopardi was on duty in Swanston Street on that day as a member of the Critical Incident Response Team (then known as the Force Response Unit “FRU”). There were three other police members with him, Sergeant Windhager, Senior Constable Ince and Leading Senior Constable D’Andrea. The police officers were in a dark blue van specifically equipped to deal with particular events such as sieges. Although there was some dispute between the parties as to the precise type of vehicle, it was agreed that the police were not patrolling in a divisional van. In any event, the police vehicle was being driven by Mr Azzopardi on that day.
The male passenger who had been involved in the verbal altercation with Dr Haque approached the police vehicle and described a taxi running over his foot. According to Mr Azzopardi, the taxi driven by Dr Haque was still visible in Swanston Street and the police vehicle set off in pursuit. After some indication was given from the police vehicle, Dr Haque turned left into La Trobe Street and stopped his taxi. The police vehicle stopped just behind him.
Mr Azzopardi approached the taxi and spoke to Dr Haque who was still seated in the vehicle. His licence was requested and was taken back to the police vehicle by another police officer so that its details could be verified on the computer terminal available to the police. Mr Azzopardi informed Dr Haque of the report that had been made and shortly afterwards Dr Haque stepped out of the taxi. A short time later, Mr Azzopardi advised Dr Haque that he was under arrest. In a relatively short period of time, he was handcuffed and required to sit on the gutter whilst the police at the scene arranged for other police to attend with the divisional van to convey Dr Haque to the Melbourne West Police Station in Flinders Street.[6]
[6]Reasons [1]–[4].
The Trial
At trial, the applicant gave evidence. In addition he called evidence from his treating psychiatrist, Dr Kwong. The respondent called evidence from Leading Senior Constable Azzopardi, the three other police members who were with him at the relevant time, and the two police officers who attended in the divisional van and conveyed the applicant to the City West police station, from where he was bailed later on the afternoon of 9 August.
At trial, a number of exhibits were also tendered. These exhibits included medical reports, court documents, letters, statements and certified extracts of various Magistrates’ Courts proceedings. The exhibits were identified and described by the judge in his reasons for judgment.[7]
[7]Reasons [30].
The judge’s reasons
In his reasons for judgment, the judge set out the competing evidence given by the applicant and the police officers to whom we have referred. The judge noted that there were many areas of common ground between the parties. The judge identified these areas as follows:
·Dr Haque, whilst driving his taxi in Swanston Street, Melbourne, had experienced a verbal altercation with an intending male passenger with the male claiming Dr Haque had run over his foot.
·The male person had complained to nearby police who were then in a Critical Incident Response van, also in Swanston Street.
·After receiving some indication from the police van, Dr Haque stopped his taxi in La Trobe Street just west of the Swanston Street intersection. The police van stopped two to three metres behind it.
·Dr Haque was compliant with the requests made by Leading Senior Constable Azzopardi, at least in the early stages of discussions with him at the scene.
·Dr Haque, once arrested and handcuffed, offered no resistance to police either at the scene or after being taken by divisional van to the City West Police Station.
·Whilst waiting at the scene seated on the kerb after being handcuffed, Dr Haque again offered no resistance and was compliant with police directions given to him.
·Immediately prior to being arrested, Dr Haque was not informed of the genesis of a warrant for his apprehension but merely that such a warrant was valid and needed to be acted upon.
·The charges which had led to the warrant for apprehension being issued were later withdrawn against Dr Haque.[8]
[8]Reasons [10].
The matters principally in dispute at trial concerned the way in which the applicant was behaving once he came into contact with the police, and whether the applicant was advised of the reason for his arrest. Put shortly, the applicant’s evidence was, in substance, that at all relevant times he was behaving reasonably. He contended that there was no basis upon which he could or should have been arrested. The applicant’s evidence and case was that the application of handcuffs was unjustified. Further, there was said to be no basis for the police detaining him (either in handcuffs or by taking him back to the police station). As to his arrest, the applicant said that he was not told by the police why he was being arrested.
On the other hand, the evidence of police witnesses was that, shortly after the police intercepted the applicant, he appeared to become agitated to a point where he became unpredictable. An investigation by the police who were present revealed the existence of an outstanding warrant for the applicant’s arrest. The applicant was told this at the time of his arrest. The handcuffs were said to be necessary and reasonable because of the way in which the applicant was behaving.
The judge, in careful and detailed reasons, preferred the evidence of the police witnesses. For example, with respect to Leading Senior Constable Azzopardi, the judge said:
I accept the evidence of Leading Senior Constable Azzopardi in preference to that of Dr Haque as to the state of agitation of Dr Haque after being informed that a complaint had been made against him by an intending passenger. The evidence from Mr Azzopardi was that Dr Haque had become agitated and “unpredictable” in his behaviour after being informed of the complaint made by the passenger. This agitation and unpredictability occurred prior to Dr Haque being informed that he was arrested, and continued after that time, until he was handcuffed. There is no dispute that the incident occurred in La Trobe Street within the Melbourne CBD on a Sunday at around lunchtime, and that there were many pedestrians and cars in the vicinity. There are also tramlines in La Trobe Street, and these events were occurring within that vicinity. Mr Azzopardi’s statement made in September 2009 records as follows:
‘Haque provided me with his details and his Victorian driver’s licence. As soon as I asked Haque about what had occurred on Swanston Street, he became agitated and rude. He then seemed to struggle to comprehend what I was asking but had no problems with answering prior questions ...’
Reference is then made to Azzopardi being informed of a LEAP check showing an outstanding warrant. The statement continues:
‘I informed Haque of the warrant and that he was under arrest, he was then given time to collect this belongings from the taxi as he was only the driver and not the owner. Haque was still agitated and kept walking from the boot to the driver door and kept looking in the glove box. I then made the decision to handcuff Haque for our safety and his. Haque was then asked to take a seat on the curb behind the taxi while we waited for a divisional van. Haque seemed to instantly calm down once handcuffed.’[9]
[9]Reasons [41].
The judge rejected each of the applicant’s causes of action. He found that the arrest of the applicant was lawful and that the application of the handcuffs was, in the circumstances, reasonable. As a result of his findings, the causes of action of false imprisonment, assault and battery were not made out.[10]
[10]As to false imprisonment, see Reasons [56]–[67]; as to assault, see Reasons [68]–[70]; and as to battery, see Reasons [71]–[74].
The judge then went on to deal with the applicant’s defamation claim. The judge said that notwithstanding any negative imputation that might arise from the way in which the applicant was dealt with, the defamation claim was not established because any such imputation was substantially true.[11]
[11]Cf s 25 of the Defamation Act 2005.
Wrongful arrest and false imprisonment: ground 1
There was debate at trial as to whether the applicant was arrested for assault (being an assault in relation to the allegation that the applicant drove his taxi over the foot of the male passenger in Swanston St), or whether he was arrested pursuant to an outstanding arrest warrant.
The judge found that the applicant was arrested pursuant to the outstanding arrest warrant. The applicant contends that this finding was wrong, and that he was arrested for assault. The applicant then says that his arrest was wrongful and unlawful because he was not told that he was being arrested for the assault.[12]
[12]See Christie v Leachinsky [1947] AC 573; and Slaveski v State of Victoria [2010] VSC 441 (Kyrou J, as his Honour then was) [111]-[118].
Next, the applicant submits that even if he was arrested pursuant to an arrest warrant, the arrest was wrongful and unlawful for the following reasons. First, he says that the police did not tell him that he was being arrested pursuant to an arrest warrant. Secondly, he contends that even if he was told that he was being arrested pursuant to an arrest warrant, the police were obliged to tell him the reasons for, or basis upon, which the arrest warrant was issued. This they did not do. Thirdly, the applicant asserts that the arrest warrant was invalid. Fourthly, he contends that any arrest pursuant to the arrest warrant was unlawful because the charges which underlay the issuing of the arrest warrant (the applicant having failed to attend a court hearing in respect of those charges) were later withdrawn.
There is no substance in any of these contentions. Having approached the evidence given at trial with considerable care, the judge concluded that the evidence of the police witnesses was to be accepted on the issue of the reason for the applicant’s arrest. We see no error in the judge’s acceptance of Leading Senior Constable Azzopardi’s evidence that he told the applicant that he was being arrested pursuant to an outstanding warrant.
The police who arrested the applicant did not have details of the charges which led to the issuing of the outstanding arrest warrant. Further, there is no evidence that the applicant asked the police for the details of the charges. Additionally, on one view of the evidence the applicant must have been aware of the charges that underlay the arrest warrant. In the circumstances, the proposition that the police were required to make further investigations so as to be able to inform the applicant of the charges that underlay the outstanding arrest warrant is without merit.
Similarly, the fact that the charges that underlay the arrest warrant were subsequently withdrawn cannot make what was otherwise a lawful arrest unlawful. We see no error in the judge’s conclusions that the arrest warrant was valid and outstanding on 9 August 2009, and that the arrest made pursuant to it was neither wrongful nor unlawful.
As part of his argument under ground 1, the applicant asserts that as a result of the withdrawal of the theft charges which underlay the arrest warrant, ss 461(1) and (2) of the Crimes Act 1958 operated to make his arrest on 9 August 2009 ‘unlawful’. However, as this Court has pointed out previously[13] this submission involves a patent misreading of s 461 of the Crimes Act. Section 461 relevantly provides:
[13]Haque v State of Victoria [2013] VSCA 332, [22]–[24].
461 Arrest on reasonable grounds not to be taken to be unlawful
(1)Where an apprehension is made under a belief on reasonable grounds in accordance with the provisions of section 458 or section 459 the apprehension shall not cease to be lawful or be taken to be unlawful where it subsequently appears or is found that the person apprehended did not commit the offence alleged.
(2)A police officer shall not be bound to take into custody or to take before a bail justice or the Magistrates' Court any person found committing an offence if the police officer believes on reasonable grounds that proceedings can effectively be brought against that person by way of summons or notice to appear.
In short, s 461(1) of the Crimes Act in fact says the opposite of what the applicant contends. Further, s 461(2) has no relevance in the present proceeding.
Ground 1 must be rejected.
Battery: ground 2
In ground 2, complaint appears to be made that the trial judge ignored what this Court said when it adjourned the applicant’s application for an extension of time within which to serve a notice of appeal in relation to the first trial of this proceeding.[14] The applicant asserts that, in granting an adjournment, this Court concluded that ‘Dr Haque’s battery was wrongly dismissed’. In fact, the Court said:
If Dr Haque was wrongly held to have an onus in respect of the reasonableness issue in relation to the handcuffs, then it remains possible that his claim for battery was wrongly dismissed. If Dr Haque’s claim for battery was wrongly dismissed, then it may be that his claim for defamation needs to be looked at again. One thing that can be said about the cause of action in defamation is that the meaning of any allegedly defamatory publication is rarely a matter so free from doubt as to make an appeal in relation to meaning unarguable (or at least so unarguable as to deny a party a hearing).[15]
[14]Haque v State of Victoria [2013] VSCA 316 (‘the extension of time judgment’) [26].
[15]Ibid [26].
The issue in relation to the first trial of the applicant’s proceeding so far as this Court was concerned was whether the first trial judge had wrongly imposed an onus on the applicant in relation to the question of the reasonableness of placing the applicant in handcuffs. Ultimately, the applicant obtained a retrial because this Court accepted that the first trial judge had not dealt correctly with this issue. However, nothing said by this Court required the judge hearing the retrial to find that the tort of battery had been committed. The question of reasonableness was one that fell to be evaluated by the trial judge on all of the evidence led before him.
Having examined the evidence for ourselves, we see no error in the judge’s analysis, nor in his conclusion that, in the circumstances, it was reasonable for the police to place the applicant in handcuffs.
Ground 2 must be rejected.
Defamation: ground 3
The judge dismissed the defamation claim on the basis that whatever negative imputation might have been conveyed by placing the applicant in handcuffs in full view of pedestrians on a busy street, such imputation was substantially true.[16]
[16]Cf s 25 of the Defamation Act 2005.
At trial, the defendant denied that any defamatory imputation was published by any relevant police officer on 9 August 2009. Additionally, the defendant relied upon defences of qualified privilege and justification. Having regard to his conclusions on the issue of justification, the judge did not address the defendant’s qualified privilege defence.
The judge’s analysis of the applicant’s defamation cause of action was, with respect, spare. That said, once the judge had concluded that the arrest was lawful and the application of handcuffs reasonable pending the applicant being taken to the police station, the defamation claim was bound to fail. Whether it failed by reference to the defence of justification, or by reference to coherence problems of the kind discussed in Sullivan v Moody,[17] is not of great moment in the analysis of this case. Plainly, once the judge concluded that the actions of the relevant police officers were lawful and reasonable and that the applicant was arrested pursuant to a valid warrant, no question of actionable defamation could arise. Additionally, the fact that no evidence was given at trial of any person recognising or identifying the applicant, at the time he was in handcuffs, was a further impediment to the applicant establishing any cause of action in defamation.
[17](2001) 207 CLR 562, 581–2 [55]–[62].
While, as we have said, the judge’s reasons for rejecting the applicant’s defamation claim were spare, that is not to be critical of the judge. The judge plainly went to great lengths to assist the applicant at trial and to tease out as best he could the full extent of the applicant’s causes of action. However, the applicant’s pleading of his defamation claim was, on any view, manifestly defective. The lack of appropriate precision in this pleading made it very difficult for the judge to properly determine what imputation (if any) was conveyed by the particular conduct of which the applicant made complaint.
At best for the applicant, and assuming the applicant could establish that he was identified by a passer-by when he was in handcuffs, we think that the placing of the applicant in handcuffs, and his detention in public view, could only have conveyed an imputation that the applicant was suspected by the police of having engaged in a criminal offence, or behaviour of a kind that justified his arrest, detention and handcuffing. Consistently with the judge’s analysis of the evidence (which, as we have said, was free from error), we agree with his Honour’s ultimate conclusion that the defendant established the truth of this imputation in any event. While the applicant’s written material appears to assert that, by the conduct of the relevant police officers, the police ‘impl[ied] that he was a criminal’, we think, adopting the reasoning set out in Mirror Newspapers Ltd v Harrison,[18] such an imputation was not conveyed.
[18](1982) 149 CLR 293.
Ground 3 must be rejected.
Assault: ground 4
In ground 4, the applicant complains that he was threatened by Leading Senior Constable Azzopardi with the loss of his driver’s licence, a $1,000 fine and arrest if the applicant ‘did not tell the truth about what had occurred with the passenger in Swanston Street’. This threat was said to constitute the tort of assault.
There is no substance in ground 4. This ground suffers from being premised on the evidence of the applicant, which evidence was not accepted by the judge. While the applicant refers to paragraph [22] of the judge’s reasons to assert that the judge accepted his evidence that he ‘was repeatedly accused and threatened by the police officer of probable cancellation of [his] driving licence and [a] fine of up to $1,000 if [he did] not disclose the truth and possible arrest (sic)”, a proper reading of this part of the judgment discloses that the judge was merely setting out the applicant’s evidence. Later in the judgment,[19] the judge rejected the applicant’s evidence on this issue.
[19]Reasons [69].
As we have already said, we see no error in the judge’s fact-finding analysis. Specifically, the finding of the judge, that we have already referred to, that he was not satisfied that the words complained of by the applicant, and upon which the cause of action in assault were premised, were actually said by any police officer, cannot be impeached.
Ground 4 must be rejected.
Conclusion
The applicant’s proposed grounds of appeal are without merit. We are not satisfied that the applicant’s proposed appeal has a real prospect of success. Accordingly, the application for leave to appeal must be refused.[20]
[20]See s 14C of the Supreme Court Act 1986 and Kennedy v Shire of Campaspe [2015] VSCA 47.
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