Bannerman v State of Victoria
[2009] VSC 438
•1 October 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
No. 1318 of 2006
| JASON ROBERT BANNERMAN | Plaintiff |
| v | |
| STATE OF VICTORIA | First Defendant |
| and | |
| MICHAEL LOGAN | Second Defendant |
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JUDGE: | WILLIAMS J | |
WHERE HELD: | Wangaratta | |
DATES OF HEARING: | 28-30 April, 1-11 May 2009 | |
DATE OF JUDGMENT: | 1 October 2009 | |
CASE MAY BE CITED AS: | Bannerman v State of Victoria and Anor | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 438 | |
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TORTS – Damages – Assault – Plaintiff sprayed with capsicum spray outside hotel– Self defence – Whether reasonable grounds for belief that necessary to use spray in self defence - Liability of State – False Imprisonment – Malicious prosecution – Police Regulation Act 1958 s 123 – Summary Offences Act 1966 s 13, s 52.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T. Monti SC with | Nevin Lenne & Gross |
| For the State of Victoria | Mr C. Winneke | Victorian Government Solicitor |
| For the Second Defendant | Mr R. Gipp | Russell Kennedy |
HER HONOUR:
The plaintiff (‘Mr Bannerman’) sues the first defendant (‘the State’) and the second defendant (‘Mr Logan’) for damages for assault, false imprisonment and malicious prosecution. Mr Bannerman withdrew a claim for misfeasance in public office during final submissions at trial.
Mr Bannerman seeks compensatory, aggravated and exemplary damages in relation to incidents which occurred in the early hours of 26 November 2005 when Mr Logan sprayed him in the face with ‘OC’ or oleo resin capsicum spray, arrested him, caused him to be detained in police custody for some hours and subsequently charged him with a number of offences.
Mr Logan admits that his action in spraying Mr Bannerman constituted an assault, but argues that he acted justifiably in self‑defence. He contends that his lawful arrest of Mr Bannerman provides a defence to the allegation of false imprisonment. He further contends that the charges were properly brought in all the circumstances and denies that he committed the tort of malicious prosecution.
Mr Bannerman argues that the State is liable for any torts committed by Mr Logan vicariously, as his employer, and under s 123 of the Police Regulation Act 1958. The State relies upon the principles in Enever v The King and denies vicarious liability arguing that Mr Logan was exercising an independent discretion and not acting as an employee.[1] It denies liability under s 123 of the Police Regulation Act 1958 on the basis that Mr Logan did not act necessarily or reasonably in good faith in the course of his duty.
[1](1906) 3 CLR 969, 982-3 (Barton J).
Issues
Assault
It is common ground that:
· Mr Logan sprayed Mr Bannerman with OC spray on 25 November 2006 and that, unless he acted in self defence, his actions constituted an assault in the circumstances.
· Whilst the onus of proving the assault is on Mr Bannerman, the onus of proving self defence falls on Mr Logan in this civil proceeding.[2]
[2]Lewandowski v Medrzycki (2003) VSC 227, 28 (Ashley J).
· To prove that he acted justifiably in self defence, Mr Logan must establish that he believed on reasonable grounds that it was necessary to do what he did in self defence.[3]
[3]Zecevic v DPP (1987) 162 CLR 645, 661 (Wilson, Dawson and Toohey JJ).
· Whether Mr Logan had reasonable grounds for his belief is to be assessed objectively ‘by what [he] might reasonably have believed in the circumstances’[4] and not by reference to what a reasonable person in his position might have believed.[5]
· Mr Logan’s belief would not be based on reasonable grounds if his actions would have been regarded by a reasonable person as out of all proportion to the danger he believed he faced.[6]
· The applicable standard of proof in the circumstances is that in Briginshaw v Briginshaw.[7]
[4]Lewandowski v Medrzycki [2003] VSC 227 (Unreported, Ashley J, 26 June 2003), 24.
[5]Ibid.
[6]R v Portelli [2004] VSCA 178 (Unreported, Ormiston JA, 1 October 2004) 25, 28.
[7](1938) 60 CLR 336.
There are issues as to:
· whether Mr Logan believed it was necessary to do what he did in self defence;
· whether he had reasonable grounds for his belief in all the circumstances and
· in particular, whether a reasonable person would have regarded his response as out of all proportion to the threat he believed he faced.
False imprisonment
The following propositions seem to be common ground:
· Mr Logan would have committed the tort of false imprisonment if he had restrained Mr Bannerman without lawful excuse or justification;
·
Mr Logan did restrain Mr Bannerman in the requisite sense after arresting him on
26 November 2006;[8]
[8]R v Bournewood Community and Mental Health NTS Trust (1999) AC 458, 495 (Steyn LJ).
· Mr Logan bears the onus of proving justification for restraining Mr Bannerman;[9]
[9]Myer Store Ltd v Soo [1991] 2 VR 597, 611 (O’Bryan J).
· lawful arrest is a lawful justification for restraint and provides a defence to an allegation of false imprisonment;
· on 26 November 2005, s 13 of the Summary Offences Act 1966 gave Mr Logan, as a member of the police force, the power to arrest a person found drunk in a public place and to lodge that person in safe custody;
· ‘drunk’ under s 13 of the Summary Offences Act 1966 meant what an ordinary person would consider as such[10] and was a question of degree depending on the facts;[11] and
· the applicable standard of proof in the circumstances is that in Briginshaw v Briginshaw.[12]
[10]See Normandie v Rankine (1972) 4 SASR 205, 212 (Walters J).
[11]See R v Ormsby [1945] NZLR 109, 109 (Fair J).
[12](1938) 60 CLR 336.
There are issues as to:
· whether Mr Logan lawfully arrested Mr Bannerman on 26 November 2006, with the result that the tort of false imprisonment is not established;
· whether, even if the arrest were lawful, there was a period of false imprisonment after Mr Bannerman and Mr Logan arrived at the Shepparton Police Station.
Malicious prosecution
It does not appear to be in dispute that:
· to establish that Mr Logan committed the tort of malicious prosecution, Mr Bannerman has to prove that :
o Mr Logan instituted criminal proceedings against him;
o the proceedings terminated in his favour;
o Mr Logan had no reasonable and probable cause for instituting the proceedings, which in turn required him to prove that :
§ Mr Logan did not honestly believe the case that was instituted or maintained or
§ Mr Logan had no sufficient basis for such honest belief[13]; and
o Mr Logan acted maliciously or for a motive other than that of carrying the law into effect;[14]
· Mr Logan would have had reasonable and probable cause for instituting the proceedings if he had “an honest belief in the guilt of [Mr Bannerman] based on a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that [Mr Bannerman] was probably guilty of the crime imputed”.[15]
[13]A v New South Wales (2007) 230 CLR 500 at 327 [77] per Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ.
[14]See Trowbridge v Hardy (1955) 94 CLR 147, 155 (Fullagar J).
[15]Hicks v Faulkner (1878) 8 QBD 167, 171 (Hawkins J).
The parties are in dispute as to:
· whether Mr Logan acted maliciously or for a motive other than carrying the law into effect when he caused any criminal proceedings to be instituted against Mr Bannerman after arresting him on 26 November 2006;
· whether Mr Bannerman could establish that Mr Logan had no reasonable and probable cause to institute any of the proceedings.
Liability of the State
It is in issue as to:
· whether the State, as an employer, is vicariously liable for Mr Logan’s torts;
· whether the State is liable for Mr Logan’s torts under s 123 of the Police Regulation Act 1958.
Summary of conclusions
I have concluded that Mr Logan assaulted Mr Bannerman.
I am satisfied that Mr Logan believed that it was necessary to spray Mr Bannerman in self defence.
I am not, however, persuaded that Mr Logan acted justifiably in self defence in all the circumstances. There were not reasonable grounds for him to spray Mr Bannerman, given the other options that were open to him and that his act would have been regarded by a reasonable person as out of all proportion to the threat he believed he faced.
The effect of s 123(1) of the Police Regulation Act 1958 is, nevertheless, that Mr Logan is not personally liable for the assault because I consider that his acts were done honestly and in good faith and ‘necessarily or reasonably done … in the course of his … duty as a member of the force’.
The State is not vicariously liable for Mr Logan’s action in committing the assault because he is not its employee.[16]
[16]See Enever v The King (1906) 3 CLR 969, 982-3 (Barton J).
The State is however liable for his actions under s 123(2) of the Police Regulation Act 1958 and damages should be awarded in favour of Mr Bannerman against it.
I am not persuaded that Mr Logan committed the alleged torts of false imprisonment or malicious prosecution.
The Facts
I now turn to my findings of fact. I note that I have taken into account all of the submissions as to the credibility and reliability of witnesses, including those relating to the influence of the alcohol consumed on their recollection of events.
On the weekend of 25 and 26 November 2005, Shepparton was the site of the annual ‘Spring Nationals’ events which involved ‘hotted up’ cars and activities at nightclubs and hotels. The local population increased by about 30,000 that weekend. The Spring Nationals had often been associated with drunkenness and violence and local police were instructed to adopt a ‘zero tolerance’ approach in relation to contravention of by‑laws.
Mr Logan was an acting sergeant attached to the Shepparton Regional Response Unit at the time. He had been a police officer since 16 August 1996 and had been attached to a number of different stations as a uniformed officer and a detective.
As Mr Logan had moved up through the ranks, he had undertaken training which included ‘OST’ or Operational Safety Tactics training courses about twice each year. On 19 May 2005 as part of OST training, he had completed the ‘defensive tactics’ course in which he was instructed about tactical options available for handling of people armed with weapons or physically attacking police. The course involved practical exercises and information about the to use of handcuffs, batons, firearms and, relevantly, OC spray. At the time of the incident on 26 November 2005, Mr Logan was qualified to use OC spray as a result of that recent OST training.
A 1998 police training manual relating to the use of OC spray was tendered in evidence. It contains the type of information and material about which Mr Logan was instructed during his training. The manual notes that OC spray ‘is an organically based, less than lethal option which ha[d] been introduced to assist members in resolving critical incidents in line with the Force philosophy that “the success of an operation will be primarily judged by the extent to which the use of force is avoided or minimised”.’ It describes the ‘rapid and debilitating’ effects of the spray, noting that, immediately, the eyes would involuntarily shut and breathing would become difficult temporarily. Any exposed skin would become inflamed and a burning sensation would be felt. Mucous membranes would secrete freely and there might be reduced muscle co-ordination. The manual states the consequential requirement that ‘the subject … be constantly reassured as to their well being in order to avoid panic’.
The manual relevantly lists as the main situations in which the spray may be used:
In situations of violent and serious physical confrontation.
Where a person is involved in violent or other physical conduct likely to seriously injure themselves or result in suicide.
Where it is appropriate to deter attacking animals.
It goes on to state:
The deployment of OC is considered serious physical control and as such, its use can only be justified when there is a need to prevent serious injury. The member must establish that the subject has demonstrated the intent to inflict serious physical injury to either the member another person or themselves. The intent may be deliberate action or telegraphed through body language (demeanour) and/or verbalisation.
Police are reminded that the tactical decision to use the spray must be made ‘commensurate with the appropriate level of force required to deal with the situation.’ Police are told to maintain communication with the subject and to give directions such as :
‘Police, don’t move’
‘Drop the Knife/ weapon/ firearm’,
‘Put your hands where I can see them’,
‘Get down’ etc.
Under a heading ‘Warning Prior To Use’ it is said that ‘continuous, thorough and well balanced risk assessment’ is required for the safe resolution of incidents. There is a highlighted policy statement that ‘[a] verbal warning must be given prior to discharging the spray … unless the gravity of the situation makes it impracticable to do so.’
This warning is said to be for the dual purposes of deterrence, by indicating the impending use of spray, and as a signal to other police to take evasive action or implement an arrest plan or use other tactics where the officer is not alone. The risk assessment involves taking into account the potential for harm to the subject.
Police are warned that the spray’s effects can last from 10 to 45 minutes and are instructed that :
Observation
A sprayed person must be accompanied and kept under constant and direct observation for at least 45 minutes or until the symptoms or effects are no longer apparent (whichever is longer).
Transportation
A sprayed person must not be transported in a divisional or brawler van until that person has been kept under constant and direct observation for at least 45 minutes or until the symptoms or effects are no longer.
Specified ‘After-Care’ includes the requirements that the subject to be asked whether they suffer from asthma, that the subject be reassured and told not to rub the eyes and to be placed in a place where breezes (preferably cool) can provide relief and that the subject’s hands, face or any other skin areas be flushed with cool water. Medical treatment should be sought if there are any continuing effects being experienced after 45 minutes or ‘there is any doubt about the subject’s well being’.
25 November 2005
On the night of Saturday, 25 November 2005, Mr Logan who was an Acting Sergeant was supervising Senior Constables Kennedy, Lomas and Long on ‘crowd control’ duties which involved patrolling Shepparton streets and walking through licensed premises to identify underage drinkers and drunks.
By the time of the trial, Senior Constable Kennedy had been promoted to the rank of Sergeant of police. She and Mr Logan had also commenced a relationship in about January 2006. At the time of the trial they lived and owned a house together.
Mr Long had retired before the trial, after 20 years’ service in the police force. He was employed as an operation manager for a restoration and cleaning business.
The officers were all in plain clothes. Each wore a lanyard around the neck, to which a police identification card was attached, and each was wearing around the waist an equipment belt containing a firearm, handcuffs, batons and OC spray. I accept Mr Logan’s evidence that the practice was that officers walking through licensed premises did not display their lanyards or their equipment belts.
Mr Bannerman’s history
Mr Bannerman had lived in Shepparton and had worked as a tattooist for nearly ten years. He was 36 years old. He was an Australian title holder within the Professional Tattooing Association of Australia. He was married with two daughters, one of whom turned 13 on Saturday, 25 November 2005.
Mr Bannerman’s main recreational and social interest was basketball. From the time his eldest daughter had been in grade three at primary school, he had coached girls under 10, 12, 14, 16 and 18 teams at a domestic level and representative squads, as well as senior women’s teams. He also coached an under-18 boys domestic side. He coached for nearly 12 months a year and received no remuneration. He coached six days each week and also played both A and B grade basketball on different nights each week. The family’s social life revolved around basketball and they went away together to tournaments at weekends. By November 2005, he had been coaching basketball for approximately ten years.
Mr Bannerman did not have any convictions and considered himself to be respected in Shepparton amongst people involved with basketball. He felt he had a reputation to live up to in that community. Mr Long, who had known Mr Bannerman through their daughters’ involvement in the sport, said that Mr Bannerman was a man of integrity and good character, well thought of in the community. I accept that such was Mr Bannerman’s reputation amongst those who knew him.
Mr Bannerman’s brother was a sergeant of police in nearby Wangaratta and Mr Bannerman thought that he had an obligation to uphold the family name; he felt that he had a reputation to live up to in the community. He would have been unable to coach children under Basketball Victoria regulations if he had faced criminal charges or had been convicted of hindering or assaulting police. Any such outcome would have been devastating for him and his family.
On 25 November 2005, Mr Bannerman arrived home from work at around 7.15pm and shared some pizza and ‘nibbles’ with approximately 12 of his daughter’s friends who were staying the night at his house to celebrate the birthday.
Two of Mr Bannerman’s local friends, Mr Brendan Milne and Mr Robbie Riordan, were dropped off at his house. They had all planned to go out for ‘a few drinks for Christmas’ with Mr Troy Dunn who had travelled from Sydney to be tattooed by Mr Bannerman during a scheduled four hour session on the following day. Mr Dunn was to have a ‘full sleeve’ tattoo, covering his whole arm. He described Mr Bannerman as his tattooist and had previously travelled from Sydney to Shepparton on six occasions to receive tattoos from Mr Bannerman.
Of the men, only Mr Riordan had had anything to drink before they went out. At one point, he had drunk a ‘stubby’ of beer. He was a truck driver and had known Mr Bannerman for approximately 15 to 17 years as a very good friend. He had been dropped off at the Bannerman house by his partner.
Mr Milne who described himself as ‘a house husband’ had smoked some cannabis a couple of hours before arriving at the Bannerman house, in order to relax. He had been using cannabis since the age of 15. He said that the drug relaxed him and made him funnier. It did not affect his co‑ordination, speech or capacity to think unless he had a large amount. Mr Milne had known Mr Bannerman for approximately three years at the time and had been dropped off that evening by his wife.
Mr Bannerman himself did not intend to have what he referred to as ‘too much’ to drink that night because he needed to be fit for work on the following day. Mr Bannerman was wearing a pair of boots, black jeans and a short sleeved causal brown shirt with a dragon emblem. He wore the shirt as he usually did, with the top two buttons undone.
Mrs Bannerman left her daughter’s party to drive the men into town. I am not satisfied as to whether Mr Dunn came to the house or whether Mrs Bannerman collected him from his motel on the way. Mrs Bannerman drove because the influx of people into the town for the Spring Nationals meant that it would be difficult to get a taxi and to park. Mr Bannerman had not had any alcohol to drink before he left home that night.
Mrs Bannerman dropped the three men off at about 9.00pm at the Yahoo Bar in Shepparton. There, the men had some drinks over a period of approximately two hours. They did not stay together the whole time, but were in a group for most of it. Mr Riordan drank beer throughout the night. Each of the men bought his own drinks.
There were differing accounts as to what Mr Bannerman drank. Ultimately, I accept that he had at least the seven and a half drinks he claimed to have consumed. At the Yahoo Bar, he had two bourbon and Cokes, two ‘Chernobyl Meltdowns’ and two ‘Bubble O’Bills’. The Chernobyl Meltdowns were drunk out of shot glasses and the Bubble O’Bills were milk drinks containing spirits drunk out of pot sized glasses. Mr Bannerman did not dispute the descriptions of either drink put to him under cross‑examination by counsel for Mr Logan. There was no expert or other evidence about the contents of drinks of the type consumed. Whilst I accept that a Chernobyl Meltdown contained a mixture made up in the proportions constituted by 15 mls of gin, 15 mls of white rum, 15 mls of melon liqueur, 15 mls of sweet and sour mix and 75 mls of lemon, lime and soda, I am not satisfied as to the size of the “shot glass” in which the drink was apparently served. A Bubble O’Bill comprised 15 mls of vodka, Midori, Crème de Banana, sour mix and Grenadine with orange juice.
The group moved on to the Australia Hotel at about 11.00pm or 11.30pm. There, Mr Bannerman ordered two more bourbon and Cokes and drank one and a half. The group left the Australia Hotel and returned to the Yahoo Bar between about midnight and about 12.30am. Mr Bannerman ordered another bourbon and Coke, but only sucked the ice from the drink. He said that the night was a very warm one. Mr Bannerman also said that he stopped drinking that night because he had to work the following morning and could not risk being sick or having the shakes. The men stayed at the Yahoo Bar for about half an hour.
Eventually, they decided to return home and went to the Victoria Hotel at the corner of Fryers and Wyndham Streets where they knew there was a taxi rank in Fryers Street, just west of the Fryers Street entrance to the hotel. There were no taxis present and the men then walked into the front bar through the front door. Mr Bannerman went up to the bar to see who was there. The other men walked around, mingling for approximately 15 or 20 minutes. They then left through the same entrance and walked in a westerly direction down Fryers Street towards the taxi rank. They left in a group although they did not walk out side by side. At some point, Mr Bannerman was ahead of Mr Milne and Mr Dunn and Mr Riordan.
Mr Bannerman stopped near the Fryers Street entrance to the Victoria Hotel and maintains that he leant on a parking meter to ease his aching back. (He had injured his back in a fall at work in 1999, having eight months off afterwards. Ever since, he had suffered regular aches and pains in his back.) I am satisfied that he was stationary in a standing position near the edge of the footpath in Fryers Street in the vicinity of a parked car, when Mr Logan first saw him. I am not persuaded by Mr Logan’s account that Mr Bannerman was leaning awkwardly on one elbow on the bonnet of a parked car, bearing in mind Sergeant Kennedy’s evidence that he was leaning on the boot of a parked car. I do accept that he appeared to Mr Logan to be leaning up against a car, given Mr Long’s evidence that he was leaning with his back to a vehicle when he saw him just before he moved towards Mr Logan.
There were a number of people around the Fryers Street entrance to the hotel and the taxi rank at the time. Mr Logan estimates that there were approximately 30 people milling around on the footpath. The street was noisy. People had been consuming alcohol.
Mr Milne was wearing a Mexican hat, lime green in colour with a pink centre, when he came out of the hotel into Fryers Street that night. I am satisfied that he was drunk. He was standing somewhere to Mr Bannerman’s right. He was laughing and Mr Bannerman began laughing as well after hearing him. Mr Bannerman described Mr Milne’s laugh as contagious.
By that stage, a Mr Luke Gatto had been arrested by police. Mr Logan and his team had just checked the Victoria Hotel during a walk through which had taken some 20 minutes. Mr Long roughly estimated that there were approximately 150 patrons inside.
There were varying accounts as to whether the arrest took place inside or outside the hotel. Mr Logan said that he was arrested on the footpath outside the hotel and he thought that Senior Constable Lomas had effected the arrest. Sergeant Kennedy couldn’t remember who arrested Mr Gatto or where he was arrested. Mr Lomas said that Mr Gatto was arrested inside the hotel in the foyer near the Fryers Street entrance and brought to where he was standing outside to be looked after whilst other members attended to another incident there. Mr Lomas moved Mr Gatto about 10 metres away from the entrance towards the Wyndham Street intersection. He turned his attention to Mr Gatto and pulled his lanyard out, to identify himself whilst the prisoner was in his care. Mr Bannerman himself noticed a group of people to his left as he waited for his friends; he noticed one man sitting on the ground.
Mr Long had moved up towards the Wyndham Street intersection to deal with what he described as a ‘kerfuffle’ some 50 to 60 feet away from the Fryers Street entrance. I accept his account of people ‘yelling, screaming out of character, out of the ordinary and basically making a nuisance of themselves’. Mr Long controlled the situation by identifying himself and telling them to move on. Mr Long said that he didn’t need to show his police identification because he was well known in the community through television appearances. He also said that he identified himself by his lanyard when dealing with the kerfuffle and that police exposed their lanyards when walking through the hotel. He said he couldn’t comment on Mr Logan’s evidence that the lanyard was not made obvious when police were walking through the hotel.
Mr Riordan, who had come out of the hotel behind Mr Bannerman, noticed Mr Long whom he knew and assumed that he was having a night out himself, because he was in ‘plain clothes’ and Mr Riordan had only known Mr Long to be a uniformed officer.
It was when Mr Gatto was sitting on the ground, some ten metres to the east of the Fryers Street entrance to the hotel, under Mr Lomas’ care, that Mr Milne who was about ten metres away from Mr Gatto said something to police in relation to him.
Mr Logan’s evidence was that Mr Milne said, ‘that’s fucked, he’s just out having a good time.’ Mr Logan said that he approached Mr Milne and advised him to go home, telling him that, otherwise he would be locked up for four hours for being drunk. He concluded that Mr Milne was drunk because he was slurring his words and he smelled of alcohol.
Mr Milne denied saying what Mr Logan said he did. His account was that he had noticed a female with a gun on her hip and, assuming she was a security officer, had remarked, ‘yes, security is tight around here tonight boys’, provoking laughter. He maintained that he then thought that he had sung the line ‘bikini girls and machine guns’. At this point, a man approached him and was aggressive to the extent that Mr Milne stepped back away from him. Mr Milne could not remember what the man said to him, but he stepped back again. The man came up to him again and, according to Mr Milne, Mr Bannerman stepped in and told the man to ‘leave the lad alone … we’re on our way home, we’re just having a good time, if you want to have a fight go over there and have a fight with someone else.’ Then the man screamed at Mr Bannerman, ‘show me your fucking licence’ and Mr Bannerman laughed and responded, ‘show me yours’. The man then sprayed Mr Bannerman whose hands were in his pockets. Mr Milne thought that the man who sprayed Mr Bannerman was ‘security’; he didn’t realise he was a police officer until the van arrived. I note that I did not find Mr Milne’s account of events persuasive to the extent that it differed from that given by other witnesses, given his admitted lack of sobriety at relevant times. I accept Mr Logan’s account of the exchange between the men.
Mr Bannerman was about five metres away from Mr Milne. He did not hear what he said but he saw Mr Logan about two metres away, wearing what appeared to Mr Bannerman to be a white shirt and jeans, pointing his finger two or three times at Mr Milne. Mr Bannerman thought that Mr Logan’s body language indicated that he was trying to provoke Mr Milne. Mr Bannerman did not know Mr Logan. He agreed, under cross-examination, that the area was well lit. Mr Bannerman was shown a police lanyard and said that he would have seen it if Mr Logan had been wearing one outside his clothing, but that he had not worn one visible to him. I accept that he did not see Mr Logan wearing either his police lanyard or his police equipment belt over his clothes.
I am satisfied that Mr Bannerman was not aware that Mr Logan was a police officer until he was subsequently sprayed by him with the OC spray. I am also satisfied that he did not see Senior Constables Kennedy, Long or Lomas outside the Victoria Hotel wearing equipment belts over their clothes before he was sprayed.
I conclude that Mr Bannerman did not realise that Mr Logan was a policeman, taking into account the evidence of Mr Milne, Mr Riordan and Mr Dunn, each of whom professed not to have realised that fact before Mr Logan administered the spray. Mr Riordan had assumed Mr Long was out himself. Mr Milne had thought Ms Kennedy and Mr Logan were security personnel. I also note in this regard Mr Logan and Ms Kennedy’s evidence about lanyards being kept under clothing during hotel walk-throughs and Ms Kennedy’s inability to recall pulling hers out after Mr Gatto’s arrest.
Additionally, I accept Mr Bannerman’s evidence that he would not have behaved as he did towards Mr Logan if he had been aware that he was a member of the police force, bearing in mind the unchallenged evidence as to his previous good character and reputation in the community and the threat represented by a criminal charge or conviction to his ability to coach junior basketball. There was no challenge to the evidence that basketball coaching and participation in the sport was central to Mr Bannerman’s social life. Nor was his account of his feeling of obligation to uphold the reputation of his family, given the role of his brother as a police officer, contested.
Mr Long’s account of the incident was that, after dealing with the commotion further up Fryers Street, he looked back to see Mr Bannerman, whom he knew through the involvement of both their daughters in a basketball team. Mr Long thought that Mr Bannerman was leaning against a car and involved in what appeared to him to be a heated discussion with Mr Logan. He said that Mr Bannerman just looked like himself and that there was nothing unusual about his appearance. Mr Long thought that Mr Bannerman’s ‘loud florally’ shirt was buttoned up appropriately but said he could not really recall. Mr Long said he couldn’t recall Mr Bannerman leaning on a meter and wouldn’t concede that he might have been leaning on one. He began moving back and said he heard Mr Bannerman say, ‘what the fuck are you going to do about it?’ Mr Long heard Mr Bannerman’s words when he was some 30 or 40 feet away. Mr Long conceded that there could have been other words spoken by the men which he did not hear. Mr Bannerman then approached Mr Logan and Mr Long saw him being sprayed. He described the men as being ‘chest to chest’ when he saw the spraying. Mr Bannerman then put his hands to his face and bent forward. Mr Long said he ‘cowered’, leaning forward. I accept this account.
Mr Lomas heard raised voices, but not what was said. He was concentrating on Mr Gatto, as people were coming up wanting to talk to him. Ms Kennedy said that she and Mr Lomas had Mr Gatto between them as they awaited the police van.
Mr Bannerman said that he called out words to the effect of, ‘hey dickhead leave him alone. Go back to your own crew and cause trouble, we’re on our way home.’ He felt that he should intervene to protect Mr Milne. Mr Bannerman said that Mr Logan then turned his attention to him and walked towards him, asking if he was a ‘big shot’ and if he wanted to ‘step up to the line’. Mr Bannerman said that he was still standing by the parking meter with his hands in his pockets. He could not hear much of what Mr Logan was saying and began to walk towards him. I note that I did not find convincing Mr Bannerman’s explanation that he walked towards Mr Logan because he regarded it as well mannered to look someone in the eye when speaking to them.
Mr Bannerman said that he asked Mr Logan why he wanted him to ‘step up to the line’ and Mr Logan responded by asking him to show him his licence. Mr Bannerman said that he answered by asking what Mr Logan wanted to see his licence for and asked him to do the same. He said under cross-examination that he used the word ‘fuck’ to Mr Logan, but Mr Logan did not swear at him.
Mr Bannerman and Mr Logan were facing each other and, when Mr Logan was about an arm’s length away from Mr Bannerman, he held the OC spray can about 20cms from Mr Bannerman’s face and sprayed him in the face without warning. The spray was directed at his left eye. Mr Logan had said nothing to Mr Bannerman about him being a police officer or to warn him about the spray.
Mr Bannerman agreed under cross-examination that he might then have sworn at Mr Logan, as well as saying, ‘I can’t believe you have sprayed me’.
Mr Logan’s account of the conversation between the two men was somewhat different. He said that Mr Bannerman had initially yelled, ‘why don't you cunts just fuck off, he is not drunk.’ I accept Mr Logan’s evidence that he thought Mr Bannerman was slightly slurring whatever words he used. Ms Kennedy said that she was still with Mr Gatto at this point when she heard Mr Bannerman say ‘why don't you cunts just fuck off, he is not drunk.’ Mr Bannerman denied using those words.
Ms Kennedy moved to within two or three metres of Mr Bannerman and Mr Logan after hearing what she says were those words and deciding to back up Mr Logan. Mr Bannerman appeared drunk to her and she heard him slurring his words. She, too, said that Mr Bannerman was leaning against a car when he said the words. She said that he was leaning unsteadily and that his shirt buttons were undone so that she could see a lot of his chest. She heard some conversation between the men subsequently, but not the words used.
I am not persuaded that Mr Bannerman’s shirt was unbuttoned to the extent Ms Kennedy and Mr Logan allege. Ms Kennedy failed to refer to the noticeable chest tattoos (displayed to the Court) which are likely to have been visible in a well lit area if his shirt were unbuttoned. I prefer Mr Long’s account of Mr Bannerman’s appearance as being essentially normal, as far as his dress was concerned. Mr Long had known Mr Bannerman socially for a number of years and, whilst he did say that his behaviour that night seemed out of character, he described him as looking himself (and both Mr Bannerman and Mrs Bannerman gave evidence that he normally had only his top button undone when wearing the noticeable shirt he had on that night).
According to Mr Logan, he answered Mr Bannerman to the effect that he would decide whether Mr Milne was drunk or not, without Mr Bannerman’s assistance. Mr Logan had Mr Bannerman then saying, ‘you are a fucking poofter, mate, fuck off.’ Mr Bannerman denied this and said that the word ‘poofter’ was not one he used.
Ms Kennedy stated that, after she moved over to back up Mr Logan, she too heard Mr Bannerman say those words. She said that Mr Bannerman then clenched both his fists and said, ‘you’re going to lock him up, I’d like to see you try’. He then started approaching Mr Logan with his fists clenched and she pulled out her OC spray from her exposed equipment belt and held it behind her back, so as to avoid inflaming the situation.
Mr Logan, however, said that he then asked Mr Bannerman if he had any ‘ID’ with him. Mr Bannerman agrees that he did ask him to show his licence.
I am satisfied that Mr Logan gained the impression that Mr Bannerman was leaning against a vehicle, rather than a parking meter, given that Mr Long gave evidence to similar effect, as did Sergeant Kennedy and Mr Riordan described his friend as being in the vicinity of the meter shown in photographs of the Fryers Street entrance to the hotel, but did not say he was leaning on the meter. I am not, however, satisfied that Mr Bannerman may not have leant on the parking meter at some point.
Mr Logan said that Mr Bannerman was about six to eight metres from the doorway into the hotel when he started walking towards Mr Logan with his fists slightly clenched and his arms slightly raised from his sides.
Mr Logan said that it was as Mr Bannerman approached him that he said, ‘You’re going to lock him up are you? I’d like to see you try.’ It is apparent from my finding that Mr Bannerman did not realise Mr Logan was a police officer that I do not accept Mr Logan’s evidence that he said those words.
Mr Logan maintained that he went up to Mr Bannerman after he had been disabled by the spray and that Mr Bannerman said words to the effect of, ‘my brother’s a copper, you are going to fucking pay for this.’ Mr Bannerman said that Mr Logan’s account of the exchange between them was incorrect.
I am not satisfied by the evidence as to exactly what was said and heard by each man in all the circumstances. There was a lot happening, the area was noisy and Mr Bannerman acknowledged that he couldn’t hear what Mr Logan was saying before he approached him. I am satisfied that Mr Bannerman approached Mr Logan speaking in a belligerent manner, given that he was intervening to protect Mr Milne from someone who, I accept, he did not know was a police officer.
I am not satisfied that Mr Bannerman had both hands in his pockets all the time as he approached Mr Logan. I agree with the submissions of counsel for the State that that would be highly unlikely, because he was intervening to protect Mr Milne, his friend, from Mr Logan. Further, Mr Logan and Ms Kennedy would have been unlikely to have perceived him as a threat if he had approached in that way.
As far as the evidence about the matter was concerned, Mr Riordan said that he was some 15 to 20 metres behind Mr Bannerman as they came out of the hotel and some eight metres away when he perceived him talking to Mr Logan. He could not hear what was being said. Mr Riordan, however, said that Mr Bannerman’s hands were in his pockets at the time he was sprayed, but also frankly conceded that he had consumed a considerable amount of beer that night and would have been affected by alcohol (although not to the extent of being drunk which, in his opinion, meant being unable to walk or talk). Mr Riordan went on to say that, although he may not have seen both Mr Bannerman’s hands, he saw his right hand in his pocket. I agree with counsel for the state that Mr Riordan’s evidence in this regard is not persuasive, given his admitted consumption of alcohol and the fact that it is more likely that his attention would have been focussed on Mr Bannerman’s face, which was being sprayed, than on his hands.
Mr Milne maintained that he did see Mr Bannerman with both hands in his jeans’ front pockets when he was sprayed. He also said that the incident had been discussed between the men for about three months after the event until they tired of it. In those circumstances, his recollection might have been influenced by the accounts of all involved in discussion and Mr Bannerman had early on told Dr Sanders on 21 December 2005 of his own recollection of having his hands in his pockets. I note further that Mr Milne admits being drunk at the time.
I am persuaded that Mr Bannerman probably had at least one hand in his pocket at the commencement of his verbal exchange with Mr Logan. I am satisfied that his hands had probably come out of his pockets and were slightly raised by his sides when he was approaching and visible to Mr Logan and Ms Kennedy.
I am satisfied that, in all the circumstances, Mr Logan honestly believed that he was under threat of assault from the approaching Mr Bannerman. Mr Bannerman later described himself to Dr Sanders on 21 December 2005 as having been verbally, but not physically, abusive. He admitted using inappropriate language to Mr Logan in their exchange. Mr Bannerman also admits approaching Mr Logan and he appears to be taller than Mr Logan and a solidly built, physically imposing man. There were about 30 people milling around. It was very early in the morning. One man had been arrested for drunkenness and Mr Bannerman appeared to Mr Logan to be protesting about his treatment of Mr Milne who admits his own drunkenness. Mr Logan also noticed a strong smell of alcohol and thought that Mr Bannerman was drunk. I note that I conclude that Mr Logan did form the impression that Mr Bannerman was drunk (even though I agree with counsel for Mr Bannerman’s submission that I should not be satisfied by Mr Logan’s evidence that he noticed from a distance that Mr Bannerman’s eyes were bloodshot. In all the circumstances, I find it improbable that he could see well enough to make that observation before spraying Mr Bannerman).
Mr Logan did not identify himself verbally as a police officer, order Mr Bannerman to stop or give any verbal warning, in accordance with the approach set out in the OC training materials. He did not alert the other police officers in the vicinity to Mr Bannerman or call for assistance from any of them, notwithstanding that Mr Lomas may have had to remain with Mr Gatto who was seated on the ground. There is no suggestion that Mr Logan was threatened by anyone else at the time, although there were other people milling about.
I nevertheless am satisfied that Mr Logan assessed the risk of imminent harm as sufficiently grave to warrant use of the spray and considered that it was necessary for him to employ it. I am not persuaded that he sprayed Mr Bannerman out of spite or in retribution or for any improper reason.
Mr Bannerman fell backwards against a car after being sprayed in the eye. He said, words to the effect of ‘I can’t believe that you just sprayed me’. Mr Long heard him say ‘you’ve sprayed me, you’ve sprayed me’, clearly and specifically.
Mr Bannerman fell back. He experienced the sensation of his left eye being on fire and felt as though he had been kicked there. He also felt as though his face and neck and ears were burning. He began drooling uncontrollably as he struggled to get his breath through his open mouth and his nose ran and his eyes watered. He could not see. Mr Bannerman called out to his friends to ring ‘Buddha’ (as his police officer brother was known).
It was then about 1.55am and Mr Logan arrested Mr Bannerman for being drunk in a public place. Mr Bannerman was under Mr Logan’s observation but no-one attended to him or reassured him or asked whether he suffered from asthma (which he had as a child). Mr Riordan was prevented from trying to help Mr Bannerman by providing a cloth. Given the recommendations relating to ‘after-care’ in the OC training manual, I am satisfied that the rejection of the offer was appropriate in all the circumstances.
A police ‘brawler van’ arrived within four or five minutes. Police officers were told that Mr Bannerman had been sprayed with capsicum spray. He was helped into the van in which he, Mr Milne (who had also been arrested) and Mr Gatto were transported to the Shepparton Police Station, several blocks away. No police officer accompanied the men in the van to observe Mr Bannerman’s condition. Mr Long remembered that the mini brawler van used had an observation window which permitted surveillance of those in the rear. I accept his evidence in that regard.
The brawler van arrived at the station at 2.10am. Mr Logan and the other members of the team also returned separately to the Shepparton Police station which was a couple of blocks away. Back at the station, Mr Long informed Mr Logan that he knew Mr Bannerman. He could not recall telling Mr Logan that Mr Bannerman’s brother was a police officer, but said that that fact would have been known by Shepparton police at the station. and I accept that this information would have been conveyed to Mr Logan at some point.
Mr Bannerman was then given a cold water hose outside at the police station and was told to wash himself. He stayed outside using the hose for almost half an hour. He let the water run over his face and, according to him, it penetrated his clothing and he began to experience a burning sensation in his stomach, groin and legs. His vision remained blurred.
Mr Bannerman was taken to the reception area where he took his shoes, under direction, and signed a document relating to the personal property taken from him before being placed in a cell with a number of other men for the night. He had never been in a cell before and was embarrassed.
No enquiries were made of Mr Bannerman about his condition during the night. It did not occur to him that he would be able to seek medical attention and none was offered. In the cell, his discomfort continued and he continued to suffer from a burning sensation in his left eye which he struggled to open.
Meanwhile Mr Riordan and Mr Dunn had gone to Mr Bannerman’s house and told Mrs Bannerman about her husband. Mr Riordan and she went to the police station, arriving at about 4 am. There, Mrs Bannerman asked to see her husband telling the police that she was concerned about him having heard (from his friends) that he was in a lot of pain. She was told that she could not see him, that police had already spoken to her brother in law and that her husband would be out at 6.00 or 6.30am. She returned home to wait for him.
Before the end of his shift on 26 November 2005, Mr Logan noted in his diary an account of the incident outside the hotel in Fryers Street, setting out his version of the verbal exchanges between himself and Mr Milne and Mr Bannerman whom he described as the second and third ‘drunks’ respectively. His notes were signed by Ms Kennedy as corroborator. He also filled out a ‘Use of Force’ form at 4.00am that day in which he described Mr Bannerman as challenging him to try and arrest Mr Milne and walking towards him in an aggressive manner with clenched fists. He noted his belief that he faced an ‘imminent assault’. He noted that Mr Bannerman was to receive a summons for ‘Hinder Police in Execution of Duty’.
At 6.10am the following day, 26 November 2005, Mr Bannerman and Mr Milne were released. Mr Bannerman was granted bail in relation to the charge of being drunk. Sergeant Kennedy prepared a charge and bail sheet relating to Mr Bannerman’s alleged offence of being drunk in a public place and Mr Logan signed it. Mr Bannerman was bailed to appear on the mention day of 6 December 2005 at the Shepparton Magistrates’ Court.
Mr Milne’s father took the two men straight to the Goulburn Valley Hospital. Mr Bannerman still could not see out of his left eye and his right eye vision was blurred. The Emergency Department Clinical record states that he had a large corneal abrasion ulcer and corneal stippling in the left eye. He was treated with drops and his left eye was patched. When he arrived home, he was angry and very upset about the incident. His eyes were red and swollen and one was shut and messy according to Mrs Bannerman. He was in pain. He wore a patch for about a week.
Also on 26 November 2005, Mr Logan issued an infringement notice under local by-laws against Mr Bannerman. Sergeant Kennedy filled out the form which alleged that Mr Bannerman had used inappropriate language clearly directed at a police member the night before. The notice imposed a fine of $205 in relation to the offence. I am not satisfied that the notice was hand-delivered to Mr Bannerman, even though he stated in evidence that the envelope appeared to bear no watermark or stamp. I accept Mr Logan’s evidence to the effect that the usual practice is for such notices to be delivered by post.
I accept Mr Logan’s evidence that he contemplated that day charging Mr Bannerman with the offence of hindering police in the execution of their duties and that a brief of evidence was required to be authorised in relation to such a proceeding.
Mr Bannerman had been instructed to return to the hospital in three days, but his daughter had a basketball commitment in Albury and he attended the Albury Hospital where his eye was examined by a doctor he thought was an ophthalmologist. Mr Bannerman had been well enough to drive his daughter to Albury on the following day, Sunday 27 November 2005.
On the Wednesday, 30 November 2005, Mr Bannerman received a postal notification that he had been charged with swearing at police in breach of a local by-law.
About a week after the incident, Mr Bannerman began to suffer from headaches which he was able to control with Nurofen Plus medication, although it made him feel nauseated and forced him to lie down. He had the headaches for two days at a time and, at their worst, he had them two or three times a week.
The mention date relating to the charge of being drunk in a public place was set for 6 December 2005. Mr Bannerman intended to contest the drunkenness charge and wrote to the court on 2 December 2005, requesting that the mention date be adjourned. On 6 December 2005, the mention was adjourned to 3 March 2006.
It was to take three to four weeks before Mr Bannerman regained the sight in his left eye. He went home in a lot of discomfort, still suffering from burning sensations in his eyes and on his body and generally ‘feeling terrible’.
On 21 December 2005, on the first occasion after the incident when he attended his general practitioner, Dr Margaretha Sanders, Mr Bannerman complained of ongoing blurriness of vision, a sore left eye and headaches. He told Dr Sanders that he had returned to the Goulburn Valley General Hospital a couple of times for management of his condition. The doctor’s clinical notes record Mr Bannerman’s description of the incident as including the assertion that he had his hands in his pockets at the time he was sprayed and that he had been verbally, but not physically abusive.
Dr Sanders referred Mr Bannerman to Dr Simon Permezel, an eye specialist and surgeon, specialising in neuro-ophthalmology, for further evaluation.
Mr Bannerman was unable to work for five weeks because of the condition of his eyes. He took those five weeks off work, two of which were pre-planned holidays. He was only able to do limited work for a time and his eyes returned to normal after a couple of months.
Mr Bannerman’s holiday was to Surfers Paradise over the Christmas period. There, Mr Bannerman was able to visit attractions such as Sea World with his children and take rides with them but he complained of sore eyes and headaches to Mrs Bannerman. I accept the accuracy of Mrs Bannerman’s evidence that family had an enjoyable holiday.
Mr Logan prepared a brief of evidence in relation to the possible charges against Mr Bannerman and he requested the other members involved to prepare statements. I accept his evidence that he conducted some research and discovered that the offence of assault could be constituted by causing someone to anticipate assault or be put in fear of the use of force.
On about 19 January 2006, Mr Glennan, an official of the basketball association, informed Mr Bannerman that he was being investigated for assaulting and hindering police. Mr Bannerman was very upset by the call and discussed with Mrs Bannerman his worry that he would be unable to coach in the future.
On 23 January 2006, Mr Bannerman saw Dr Sanders again in relation to an unrelated condition and the clinical notes do not record any complaint about his eye or headache.
Mr Logan prepared his own statement late in January 2006. He received a statement from Sergeant Kennedy dated 3 February 2006. On 8 February 2006 the brief went to the officer in charge of the Cobram CIU for checking.
On 10 February 2006, Mr Bannerman saw Dr Permezel who reported to Dr Sanders that he saw no sign of conjunctival or corneal abrasion resulting from the capsicum spray. The ophthalmologist described Mr Bannerman’s left anterior chamber as quiet and stated that ‘the only anomaly was just a few punctuate erosions on the cornea, which could easily be coming from some rubbing’. Dr Permezel said that there could often be hyper sensitivity after such an injury or even after a nasty bout of conjunctivitis. He was prescribed steroid drops to quieten down any inflammation and lubricating drops for regular use to see how he went. Mr Bannerman did not return to the specialist.
The charge sheet relating to charges of assault and hindering police and the police brief was served on Mr Bannerman’s solicitor on about 20 February 2006. Mr Bannerman only, however, first became aware that he faced charges of assault and hindering police at the mention hearing on 3 March 2006. On that day, a contested hearing date of 26 June 2006 was fixed in relation to all three charges.
On 5 May 2006, Mr Bannerman again returned to Dr Sanders for an unrelated prescription. Again the clinical notes make no reference to his eye or headaches.
Before the 26 June 2006 hearing date, Mr Bannerman’s solicitor advised the allocated police prosecutor, Senior Constable Lazlo Oroszvary, that Mr Bannerman would be unable to coach junior basketball if a conviction was recorded against him in relation to the assault and hindering police.
In accordance with protocol, Mr Oroszvary consulted both Mr Logan, the informant, and Detective Sergeant Boyd, the senior officer who had authorised the charges. Mr Logan advised Mr Oroszvary that he thought the charges should proceed and that he was concerned that Mr Bannerman might institute civil proceedings if they were withdrawn. He left the decision to Mr Oroszvary, as a senior prosecutor. At some point Mr Oroszvary and Mr Logan had discussed proceeding with the charges. The prosecutor informed Mr Logan that he was happy to proceed, having formed the view that there was a prima facie case on the evidence in the brief in relation to each of the charges. Mr Oroszvary consulted Mr Logan and Mr Boyd about withdrawing the charges on compassionate grounds relating to Mr Bannerman’s good record and his involvement in junior sport and the consequences of the matter proceeding.
Mr Boyd indicated that he would be happy for the matter to be resolved, provided, according to Mr Oroszvary, that Mr Bannerman ‘had no fall back or come back on the informant, that the matter was sorted, there was no claim for costs.’
Mr Oroszvary informed Mr Dunn that provided an undertaking such as they had discussed was provided, the prosecution would be prepared to adopt ‘a certain course’ in relation to the charges. On about 16 June 2006, Mr Oroszvary wrote by facsimile transmission to Mr Dunn as follows:
Following on from our discussion yesterday, I have spoken to the informant at length and confirmed a number of matters with him.
Firstly there is no [Ethical Standards Department] complaint regarding this matter.
Secondly, he has indicated that he would give consideration to proceeding on the drunk charge only and to withdrawing the other two matters. However this is conditional upon the defendant giving a written undertaking not to pursue any civil litigation at some later time.
On that basis he would give consideration to resolving the matter. I believe your client spent a period of time in custody regarding the drunk and it is arguable that this is sufficient penalty in itself.
Please give this your earliest consideration.
Mr Dunn responded by facsimile transmission on about 18 June 2006:
Further to your fax, a written undertaking will be provided, and we note your advice that the prosecutions view is unrelated to that.
Our client would like to meet the informant and handshake on putting there (sic) differences behind them.
Our client coaches junior sport and is most anxious not to prejudice his record, what’s your view on leading no evidence on the drunk, with no plea entered.
Please advise.
Mr Oroszvary and Mr Dunn had previously discussed the matter of a handshake when they had come across each other, as they often did, at the Shepparton Court. Mr Oroszvary remembered telling Mr Logan at some stage that Mr Bannerman wanted ‘to handshake on it’. Mr Oroszvary did not recall any mention of an apology.
On about 23 June 2006, Mr Bannerman signed a document stating that he undertook not to bring any claim, suit or action against Mr Logan with respect to their ‘interaction’ on 26 November 2006. He explained that he had told Mr Dunn that if the charges were dropped, he would appreciate a handshake and an apology from Mr Logan and that ‘nothing else would come of it’. When he typed and signed the written undertaking on 23 June 2006, he intended not to continue the matter. There was, however, no handshake between the men, nor did Mr Logan apologise.
On 26 June 2006, Mr Oroszvary only appeared in the matter, as it had been resolved between himself and Mr Dunn previously. The charges of assault and hinder police were withdrawn and no evidence was led in relation to the charge of drunkenness and it was dismissed.
Mr Logan had been overseas for between about 10 to 14 days before the hearing date and arrived home on about 26 June 2006, to be informed then or subsequently of the outcome.
Mr Bannerman returned to Dr Sanders for an unrelated prescription on 10 August 2006. Once again there is no mention of his eye or headaches in the clinical notes.
On 15 August 2006, he was seen by a medical student at the general practice. He requested his usual unrelated prescription. The clinical notes this time record his intermittent use of the steroid eye drops prescribed by Dr Permezel after ‘his chemical injury’. The notes go on to state: ‘He finds these intermittently helpful, but aside from the occasional headache, which is relieved by Nurofen, and some blurriness of vision at time (sic), his symptoms appear to have largely resolved.’ Mr Bannerman agreed under cross-examination that the notes were accurate. He also agreed that he never subsequently returned to the general practitioner for treatment relating to eye problems.
On 13 August 2008, Mr Bannerman was examined by Dr Ron Brooder, a consultant neurologist at the request of his solicitors. Dr Brooder took a history of the incident including a report that Mr Bannerman spent 45 minutes in the back of a divisional van. He was told that Mr Bannerman was suffering headaches two or three times a week. The more severe headaches were associated with nausea. Mr Bannerman also reported intermittent left eye irritation, usually occurring when he was overtired.
On examination, Dr Brooder found no apparent functional disability. Mr Bannerman’s corneal surfaces were found to be normal bilaterally. There were no sensory abnormalities nor any local abnormality or tenderness to palpation in the area of his left eye and orbit. There was no abnormality in his cervical spine, its movements or neck posturing.
Dr Brooder summarised Mr Bannerman’s condition as one of ‘residual left orbital neuralgic pain associated with a secondary vascular headache’. He had also developed secondary stress and anxiety ‘directly related to the incident and his persistent symptoms’. Dr Brooder considered that the headaches were related to the incident, noting that Mr Bannerman had not been subject to similar recurrent headaches before it. He also concluded that the eye irritation was related to his persistent conjunctival hypersensitivity after the initial chemical conjunctivitis following the incident.
Dr Brooder considered Mr Bannerman’s prognosis remained ‘somewhat guarded’ referring to his history of almost three years of persistent symptoms which had improved but had failed to fully resolve. He concluded that Mr Bannerman’s symptoms would persist indefinitely to some degree. He thought that the injuries did not require any further investigation.
On 19 August 2008, an ophthalmologist, Dr J.E.K. Galbraith, examined Mr Bannerman at the request of the second defendant’s solicitors. Dr Galbraith took a history of Mr Bannerman suffering discomfort in his left eye after a long day, the occasional need to use artificial teardrops and the occasional ache in the left orbit for which he took Nurofen Plus. Dr Galbraith concluded that the corneal changes reported had been produced by the capsicum spray. He had fully recovered from the corneal abrasion and Dr Galbraith found both eyes healthy and normal.
On 9 September 2008, a consultant neurologist, Associate Professor John Balla reported to the second defendant’s solicitors in relation to his examination of Mr Bannerman. Mr Bannerman gave a history of eye blurring clearing up after five weeks but of pain in the left eye area persisting ever since. He also reported headaches as his only significant ongoing symptom. He claimed to suffer from headaches approximately twice a week. Mr Bannerman told Dr Balla that if he did not take Nurofen tablets when his headache started, it would spread to the left temple region and the dull pain would become very sharp and there might be associated nausea if the pain went on long enough. He might need up to six Nurofen tablets to settle it within a couple of hours. If he did not take the tablets on time, it would persist until he went to sleep. The headaches did not interfere with his work.
Associate Professor Balla found Mr Bannerman to be normal on neurological examination. He reported that it was difficult to give the headache a specific label, but he thought them likely to be related to the eye injury because Mr Bannerman described them as coming on after it. He considered that the headaches would settle over the next year or two and that the prognosis was reasonably good. Dr Balla described the impairment as minimal as Mr Bannerman was able to carry on his work as a tattooist and the headaches had no other reported significant impact on his life.
Mr Bannerman was still occasionally suffering from headaches at the time of the trial. He also continued to suffer occasional pain in the eye and his left eye continued on occasions to feel as though it has sandpaper in it. He treated his eye irritation with drops and his headaches with Nurofen Plus. Mr Bannerman’s eyesight in his left eye had returned to normal. He produced no more up to date material in relation to his condition. None of the treaters or the medico-legal witnesses gave oral evidence.
At the time of the trial, Mr Bannerman was continuing to coach or play basketball up to six days a week. His coaching took place over the whole year with only a two week break between the winter and summer seasons and was at a state as well as a local level. He played A and B grade basketball each week.
Submissions and conclusions
Findings of fact
Counsel for each of the parties made numerous submissions as to the findings of fact they urged the Court to make. They also made submissions about the credibility of witnesses and the reliability of their evidence. It will be apparent from my findings of fact which of those submissions I found persuasive.
Assault
In relation to the issue as to whether Mr Logan acted justifiably in self‑defence, counsel for Mr Bannerman submits that no reasonable person could conclude from his evidence that he was involved in a violent and serious confrontation with Mr Bannerman. He disputes Mr Logan’s characterisation of the incident as ’critical’, reminding the Court of Mr Logan’s own example of a ‘critical incident’ as an overwhelming one, such as a multi‑vehicle collision where bodies are strewn all over the road, a terrorist act or something of that character.
Counsel for Mr Bannerman points out that the OC spray training materials indicate that the subject should be instructed not to move or to do other things police require, such as lie down before recourse is had to the spray. He disputes Mr Logan’s submission that it was impracticable in the circumstances for him to warn Mr Bannerman to stop, by indicating that police were present and referring to spray and the need to stand back. He contends that Mr Logan failed to explain why he did not try to take the measures suggested in the course of his training in the use of capsicum spray before using it on Mr Bannerman. Counsel argues that Mr Logan had every opportunity to give that warning which would only take a fraction of a second and might comprise the words, ‘Police here’ or ‘Police, stand back’. He also contends that there were three supporting members of the police force in the immediate area from whom Mr Logan should have sought assistance before resorting to spraying Mr Bannerman.
In terms of the general circumstances, counsel for Mr Bannerman refers to Mr Logan’s evidence that police had been briefed to the effect that there was to be ‘zero tolerance’ of offensive behaviour and penalty notices were to be issued without delay.
Counsel for Mr Logan argues that the Court should be satisfied that Mr Bannerman had his fists clenched and his arms slightly raised to about waist level and that this was an important consideration for Mr Logan in deciding to use the OC spray in his self‑defence. (It will be apparent already that I have not been persuaded that Mr Logan saw Mr Bannerman’s fists clenched. I am nevertheless satisfied that Mr Logan honestly believed that he was under threat of assault from Mr Bannerman in all the circumstances, notwithstanding my finding about his fists.)
Counsel for Mr Logan argues that the use of OC spray in the circumstances was justified. He refers to Mr Bannerman’s aggressive and threatening manner, his movement towards Mr Logan and generally to him inducing fear in Mr Logan that he was about to be assaulted. Counsel refers to Sergeant Kennedy having had her OC spray at the ready.
Counsel for Mr Logan argues that there was a violent and serious confrontation and that it would have been impracticable for Mr Logan in the circumstances to give any warning to Mr Bannerman. He submits that the use of the spray was not disproportionate to the danger faced by Mr Logan, if his evidence about Mr Bannerman’s words and conduct is accepted. He urges the Court to remember that these four men were ‘out on the town’ and that a considerable amount of alcohol had been drunk, making it more probable than not that Mr Bannerman was drunk, (even on his own account).
Counsel for the State submits that Mr Logan was acting in lawful self‑defence and that he honestly believed it was necessary to do what he did and objectively the circumstances were such that it was appropriate for him to do so.
Conclusion – assault
I am satisfied that Mr Logan honestly believed that he was under threat of assault from Mr Bannerman and that it was necessary to do what he did in self‑defence. I am, however, not satisfied that his belief was based on reasonable grounds, given the number of other options reasonably open to him, and the fact that, in my opinion, a reasonable person would regard his action in resorting to the use of the spray, in all the circumstances, as out of all proportion to the danger that he believed he faced.
I agree with counsel for Mr Bannerman that there were a number of things Mr Logan ought reasonably have done in self defence before using the spray to defend himself against Mr Bannerman. They included identifying himself as a police officer, warning Mr Bannerman about the spray, directing him to stop in accordance with his OC spray training and calling upon his colleagues for assistance. In the circumstances, Mr Logan could have brandished the canister and had it at the ready at the same time. I am satisfied that he had the opportunity to take these steps, even in the heat of the moment. This was not a situation of such gravity that it would have been impracticable to take them.
I am satisfied that Mr Logan’s actions constituted an assault, applying the Briginshaw standard of proof, having regard to the fact that the allegation amounts to one of the commission of a crime.[17]
[17]See McLelland v Symons [1951] VR 157, 168-9 (Sholl J).
I am also satisfied that the assault was a cause of the damage to Mr Bannerman’s eye and the other physical consequences of pain and discomfort referred to in my findings of fact. Mr Bannerman presently suffers from occasional headaches and eye irritation, but his eye is essentially normal.
Liability for assault- s 123 of the Police Regulation Act 1958
Mr Logan argues that if the Court finds the allegation of assault proven, then s 123(1) of the Police Regulation Act 1958 operates to relieve him from liability.
Mr Bannerman brings his case against the State in the alternative, asserting that it is vicariously liable for Mr Logan’s actions as his employer and that it is liable under
s 123.
Section 123 relevantly provided:
123. Immunity of members
(1)A member of the force … is not personally liable for anything necessarily or reasonably done or omitted to be done in good faith in the course of his or her duty as a member of the force … .
(2)Any liability resulting from an act or omission that, but for sub-section (1), would attach to a member of the force … , attaches instead to the State.
The issue is as to whether s 123(1) will protect Mr Logan from liability when the Court has concluded that there were not reasonable grounds for his belief that it was necessary to spray Mr Bannerman to defend himself from the threat he believed Mr Bannerman posed in all the circumstances. The question is as to whether Mr Logan acted in good faith and ‘necessarily or reasonably’ in the course of his duties.
The State acknowledges that it would be open to the Court to conclude that Mr Logan did act reasonably within the sense of s 123(1), notwithstanding its objective assessment of the reasonableness of his response to the threat he believed he faced.
The parties all refer in this regard to the Court of Appeal’s consideration of the provision in Victoria v Horvath.[18] There, Winneke P, Chernov and Vincent JJA said:
48. Bearing in mind that the provision contemplates situations in which tortious liability may arise, the words “necessarily” and “reasonably” cannot be interpreted in too narrow a fashion if the protection conferred is not to be rendered illusory. The notion of necessity could not sensibly be perceived as covering only those acts or omissions in which there is, objectively viewed, a strict obligation to act or omit to do so if the member concerned was to perform properly his or her duty. If it were to be so treated, the mere making of a mistake by the member as to the content of the obligations, however well intentioned, and whatever the circumstances in which the mistake was made, would remove the statutory protection from the member. Clearly, this was not intended by Parliament. Moreover, for a generally similar reason, the word “reasonably” cannot be construed as importing a totally objective test of the “reasonable person” variety.
49. As we have earlier pointed out, on more than one occasion in the course of parliamentary debate on the section, reference was made to “responsible” police members, who nevertheless made possibly wrong choices concerning the course to be adopted in relation to a situation with which they were confronted. There can be no doubt that Parliament intended that such persons would be afforded immunity from civil suit. Whether approached by reference to the terms of the statutory provision itself, interpreted literally or by reference to this underlying policy, there is no sensible reason for construing the provision in a narrow or restrictive fashion.
50. It follows that the perspective from which the conduct of a member in a given situation is to be viewed is that of the member concerned. In situations in which the necessity for, or reasonability of, the adoption of a particular course that has given rise to civil liability is to be assessed, the proper test to be applied is whether, having regard to all of the circumstances existing at the time and, viewed from the perspective of the member, reasonable grounds existed for the adoption of the chosen course. In all save a few cases, it would be anticipated that police members acting honestly or in good faith in the course of their duties would be regarded as satisfying this test and therefore as acting necessarily or reasonably within the meaning of the section.
51. Broadly speaking, the concept of reasonability of conduct in this context may be seen to resemble that considered by the High Court when dealing with the notion of the presence of reasonable grounds for self-defensive action. Obviously this comparison cannot be taken too far, but it is useful in a situation where what is being considered are decisions as to action or inaction by persons subject to a degree of pressure, in one case by the fact or possibility of some form of attack where an assessment of its likelihood or significance may have to be made with little or no opportunity for mature deliberation, in the other by the nature of the duty imposed upon the police member concerned and the circumstances under which it is to be performed.
52. Thus, in order to determine whether a police defendant is absolved from personal liability in respect of the complained conduct by reason only of the operation of s 123, it is necessary to determine whether that conduct was necessarily or reasonably done or omitted to be done by the defendant in good faith and in the performance of the duty. The question whether the conduct was relevantly necessary or reasonable is to be determined, as we have said, from the perspective of the police defendant and having regard to all the circumstances.[19]
[18](2002) 6 VR 326.
[19](2002) 6 VR 326, 345-6.
Conclusion – liability for assault - s 123 of the Police Regulation Act 1958
Bearing in mind the need to give some content to the statutory protection afforded by s 123, in light of my conclusion that Mr Logan acted in good faith believing that it was necessary to spray Mr Bannerman to protect himself in all the circumstances, I am persuaded that he is absolved from liability for the assault by s 123(1) and that liability for his actions attaches to the State under s 123(2).
This was a situation in which I am satisfied Mr Logan was under pressure. Police had been instructed to take a ‘zero tolerance’ approach to street offences. Events were taking place in the early hours of the morning in a relatively crowded street outside a hotel where there were numerous people who had been drinking. Mr Logan and his team had already effected one arrest and Mr Long had been involved in quietening a situation nearby. Mr Bannerman appeared drunk to Mr Logan and was approaching him, apparently protesting Mr Logan’s treatment of his intoxicated friend, Mr Milne. Mr Logan had to make a quick decision, without the opportunity of reflection, as police in such situations frequently must do.
The matter must be considered from Mr Logan’s perspective. Even though I am satisfied that his response would be considered by a reasonable person to be out of all proportion to the threat he believed he faced and that there were other options reasonably open to him, so that he did not have reasonable grounds for the purposes of the test for self defence, I can and do still conclude that he acted ‘necessarily or reasonably in the course of his duty’ within the meaning of s 123. I note my view that this is not a case of ‘conscious wrongdoing in contumelious disregard of the rights of those affected’ such as that held in Horvath to be the antithesis of that covered by the protection offered by that provision.[20]
[20]See Victoria v Horvath (2002) 6 VR 326, 350.
Liability of State as an employer
Counsel for Mr Bannerman makes the alternative submission that the State can be vicariously liable for the assault as Mr Logan’s employer, in the circumstances. I am not persuaded by that submission.
In 1906, the High Court in Enever v The King[21] held that a police officer exercised his statutory or common law powers on his own responsibility by virtue of his office. That proposition remains the law in this state.[22] Mr Logan was exercising his independent duty as a member of the police force to keep the peace when he assaulted Mr Bannerman. The State could not be vicariously liable for the assault as his employer.
[21](1906) 3 CLR 969.
[22]Jarratt v Commissioner of Police(NSW) (2005) 224 CLR 44, 70 (McHugh, Gummow and Hayne JJ), 119 (Callinan J); Victoria v Horvath (2002) 6 VR 326, 350 (Winneke P, Chernov and Vincent JJA); Kirkland- Veenstra v Stuart (2008) 177 IR 328, 2 (Warren CJ), 30 (Nettle JA).
False imprisonment
Counsel for Mr Bannerman submits that Mr Logan unlawfully arrested Mr Bannerman on 26 November 2006. He contends that the arrest could not be justified under s 13 of the Summary Offences Act 1966 as Mr Bannerman was not drunk and that Mr Logan could not have believed that he was. Even if he did believe that Mr Bannerman was drunk, he ought to have concluded that he was not by the time he arrived at the police station. He relies upon the video taped surveillance footage of the police station to argue that there were no grounds upon which Mr Bannerman could reasonably be considered drunk in light of his observed behaviour and demeanour.
I am not persuaded by these submissions. I am satisfied that Mr Logan did believe Mr Bannerman to be drunk and had formed that belief on reasonable grounds. I refer in this regard to my findings as to the amount of alcohol Mr Bannerman conceded he had drunk that night, the tenor of what he was saying to Mr Logan (even though I am not satisfied as to the actual words used in the exchange), his conduct and his apparent association with Mr Milne, who appeared intoxicated, and the time and place at which the encounter between Mr Logan and Mr Bannerman occurred and all the surrounding circumstances.
Further, I am not persuaded that there were not continuing reasonable grounds for considering Mr Bannerman drunk after viewing the footage of the surveillance tape at the police station.
Having decided that Mr Logan lawfully arrested and restrained Mr Bannerman until his release the following morning, I conclude that Mr Bannerman has not established that he committed the alleged tort of false imprisonment.
Malicious prosecution- submissions and conclusions
Counsel for Mr Bannerman contends that Mr Logan instituted criminal proceedings against Mr Bannerman maliciously and without reasonable or probable cause.
It is implicit in my findings that I consider Mr Logan to have been justified in arresting Mr Bannerman for drunkenness in a public place. I have found that he acted honestly believing Mr Bannerman to be drunk and that there were reasonable grounds for that belief. It follows that the tort of malicious prosecution is not made out in relation to that charge.
Counsel for Mr Bannerman next contends that Mr Logan committed the tort of malicious prosecution in relation to the charge of hindering police.
Section 52(1) of the Summary Offences Act 1996 provided:
52. Assaulting or resisting constables etc.
(1)Any person who assaults resists obstructs hinders or delays or incites or encourages any other person to assault resist obstruct hinder or delay any member of the police force in the execution of his duty under this Act or otherwise, or any person lawfully assisting any such member in the execution of his duty under this Act, or any member of the staff of the local authority in the execution of his duty under this Act shall be guilty of an offence.
25 penalty units or imprisonment for six months.
Mr Logan believed that Mr Bannerman was about to assault him. I am satisfied that in the circumstances, he believed that Mr Bannerman was substantially hindering him in the execution of his duties in relation to controlling Mr Milne and keeping the peace that night, in the requisite sense of making the execution of his duties substantially more difficult.[23] Given the tenor of Mr Bannerman’s admitted comments to Mr Logan in relation to Mr Milne, and all the circumstances, I consider that there were reasonable grounds for Mr Logan to have formed that belief. I note that I am not dissuaded from that view by my failure to find precisely what was said by each man in their conversation before Mr Logan sprayed Mr Bannerman.
[23]See Leonard v Morris (1975) 10 SASR 528, 530-2 (Bray CJ).
Nor is my conclusion affected by the finding that Mr Bannerman did not realise that Mr Logan was a police officer at the time. The High Court held in R v Reynhoudt[24] that intent to assault a person who was a police officer was not an element of the offence of assaulting a member of the police force under s 40 of the Crimes Act 1958 (Vic) under which it was a misdemeanour to do so.
[24](1962) 107 CLR 381.
In any event, on all the facts as I have found them, it was open to Mr Logan to conclude that Mr Bannerman would have been aware that he was a member of the police force, given factors including Mr Gatto’s very recent arrest, Mr Logan’s wearing of a police lanyard and equipment belt, his demand to see a form of identification of Mr Bannerman and the presence of his fellow officers in the immediate vicinity.
As far as the assault charge is concerned, I am not persuaded either that it was maliciously instituted or that it was instituted without reasonable and probable cause. I have found that Mr Logan believed on reasonable grounds that he was about to be assaulted by Mr Bannerman. There was arguably the factual basis for the charge in those circumstances. The fact that Mr Logan only considered the assault charge later, after conducting research with regard to the elements of the tort, does not indicate malice or the lack of a reasonable or probable cause for the prosecution. I reject Mr Bannerman’s submission that it is inconceivable that Mr Logan, an experienced trained detective, would have been alerted to the appropriateness of an assault charge only after doing some research.
I am not satisfied that I should infer that the charges were instituted in retaliation for Mr Bannerman’s indication that he would pursue the matter of being sprayed or for reasons associated with his relationship to his police officer brother or for any other motive than that of carrying the law into effect.
I note, in relation to the chronology of events, that Mr Logan indicated his intention to have Mr Bannerman charged with the offence of hindering police on the ‘Use of Force’ form filled out on 26 November 2005 before the end of his shift.
I agree with the submission of counsel for Mr Logan that no adverse inference should be drawn from the withdrawal of the charges of assault and hindering police in the circumstances. Here, the approach came from Mr Dunn, Mr Bannerman’s solicitor, pointing out his previous good character and the ramifications of any ongoing prosecution in terms of his basketball coaching activities. Mr Dunn also urged upon Mr Oroszvary that Mr Bannerman had been sufficiently punished by his four hours of imprisonment for drunkenness on 26 November 2005.
Mr Logan did leave the matter to the discretion of the experienced police prosecutor, Mr Oroszvary. Throughout, however, he maintained that the charges were justified. Mr Oroszvary also took the view that there was a prima facie case for each on the materials in the brief. I am not persuaded that Mr Logan did not believe on reasonable grounds that there was evidence to support the prosecutions.
Damages
Mr Bannerman seeks general damages for assault of $50,000, exemplary damages of $7,500 and aggravated damages of $5,000, as well as special damages which are agreed at $2,635.20.
Exemplary damages
I have found that Mr Logan is absolved from liability under s 123(1) of the Police Regulation Act1958. I would have been precluded from reaching such a conclusion had I been persuaded that Mr Logan’s conduct was properly characterised as being of the type warranting an award of exemplary damages. As the Court observed in Horvath, such conduct must necessarily be the antithesis of conduct for which the provision provides immunity.[25] There should be no award of exemplary damages.
[25]Victoria v Horvath [2002] 6 VR 326, 350.
Aggravated damages
To the extent that aggravated damages are awarded as compensation for outrage to a plaintiff’s feelings, consequential upon insulting and reprehensible conduct on the part of the defendant,[26] I see no basis for an award of aggravated damages in this case. In my view, Mr Logan acted in good faith, believing that it was necessary to do what he did in spraying Mr Bannerman. There was what might be characterised as provocative behaviour on Mr Bannerman’s part. He had been approaching Mr Logan aggressively in circumstances where Mr Logan reasonably believed he was drunk and feared being assaulted.
[26]See Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118, 151 (Windeyer J).
Further, I am not persuaded that Mr Bannerman should be compensated for insult or loss of dignity by an award of aggravated damages as general damages for pain and suffering and loss of enjoyment of life will provide adequate and appropriate compensation in all the circumstances.
General damages
Counsel for Mr Logan argues that Mr Bannerman has exaggerated the severity of the effects of the spraying, referring to the fact that within five weeks he had resumed his work which required close attention and concentration and good eyesight. He had what counsel submits was the ‘odd’ headache and eye irritation afterwards, but his eye essentially healed. The State adopts Mr Logan’s submissions and refers to Mr Bannerman’s ability to drive to Albury so soon after the incident and then to enjoy a holiday with his family.
I consider that general damages in the sum of $40,000 should be awarded to Mr Bannerman by way of fair and reasonable compensation in relation to the injury he sustained when sprayed by Mr Logan. I am not persuaded that Mr Bannerman was exaggerating the effects of the injury. He suffered a corneal abrasion ulcer and stippling which the ophthalmologist, Dr Permezel, concluded had healed by 10 February 2006. At that time, there were still some punctuate marks which might cause irritation which could be relieved with drops. I take it into account that Mr Bannerman did not return to Dr Permezel and did not seek subsequent specialist treatment. By 15 August 2006, his symptoms had largely resolved. This was some nine months after he was sprayed.
He continues to have occasional headaches attributable to the incident, according to the unchallenged evidence of specialist medical practitioners who examined him at Mr Logan’s request. He experienced considerable pain and suffering at the time and subsequently. This pain and suffering has caused him some reduced enjoyment of life, but has not prevented him from continuing to work as a tattooist or from enjoying his six day a week involvement in basketball, coaching and playing. Although I also note Mr Milne’s evidence that he and Mr Bannerman laughed about the incident for a couple of months afterwards, I do not attach much significance to that comment, given Mr Bannerman’s subsequent pursuit of the matter in the Court.
I will award the sum of $40,000 to Mr Bannerman by way of general damages and the agreed amount of $2,635.20 for special damages.
I will hear the parties in relation to the form of orders and costs.
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