Barram v State of New South Wales

[2017] NSWDC 255

District Court

New South Wales

Medium Neutral Citation:	Barram v State of New South Wales [2017] NSWDC 255
Hearing dates:	2, 5 – 9 June 2017
Date of orders:	09 June 2017
Decision date:	09 June 2017
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	Verdict and judgment for the defendant against the plaintiff  Plaintiff to pay the defendant’s costs on the ordinary basis until 24 May 2017 and on the indemnity basis from 25 May 2017
Catchwords:	CIVIL – police torts claim – trespass to land, assault and false imprisonment – whether police entry to P’s dwelling was lawful – whether arrest was lawful – LEPRA ss 99 and 202
Legislation Cited:	Evidence Act 1995 Law Enforcement (Powers and Responsibilities) Act 2002 Law Reform (Vicarious Liability) Act 1983
Cases Cited:	Christie v Leachinsky [1947] AC 573 Johnstone v State of New South Wales [2010] NSWCA 70; 2002 A Crim R 422 R v Le [2005] NSWCCA 40; 151 A Crim R 564 R v Rondo [2001] NSWCCA 540; 126 A Crim R 562 State of New South Wales v Randall [2017] NSWCA 88 Tilse v State of New South Wales [2013] NSWDC 265
Category:	Principal judgment
Parties:	Gregory Barram (Plaintiff) State of New South Wales (Defendant)
Representation:	Counsel: Mr R Maher (Plaintiff) Mr M Gollan (Defendant)   Solicitors: MPB Lawyers (Plaintiff) McCabes Lawyers (Defendant)
File Number(s):	2016/226288
Publication restriction:	Nil

Judgment

1. HIS HONOUR: The plaintiff Mr Gregory Charles Barram, who currently lives at Rainbow Beach in the State of Queensland, brings an action for damages for what can be shortly described as "police tort claims" using language contained in the Law Reform (Vicarious Liability) Act1983. The causes of action alleged by the plaintiff are trespass to land, assault and false imprisonment. Pleaded as if it were a cause of action is a "claim for wrongful arrest," but as a thousand years of the common law and recent decisions of the Court of Appeal have pointed out, there is no such tort, although a wrongful arrest usually grounds a claim for the tort of false imprisonment.

2. The events in question occurred on the evening of Thursday 4 February 2016 and in the early hours of the following morning. The interaction of members of the NSW Police and the plaintiff followed upon an interaction between the plaintiff and Ms Vera Savic.

The plaintiff and Ms Vera Savic

3. The plaintiff was born on 7 July 1949. At the time of the events now in question he was 66 years old. Vera Savic's date of birth is given in exhibit 7. At the time she was 61 years old. The plaintiff and Ms Savic had been in a relationship for a number of years. The plaintiff thought the relationship commenced in about 2013 and had persisted for some four years. When challenged about that, as to whether it had persisted for seven years, the plaintiff agreed it may have persisted for seven years but thought it was a mere bagatelle as to whether his relationship with Ms Savic had persisted for four years or seven years, a position which I found quite unusual and unacceptable. The plaintiff was living, at material times, at 16 Captains Way, Banora Point in the State of New South Wales. Mrs Savic was then living and appears to have been living at all material times and up until the current time at an apartment in Lord Street, Coolangatta in the State of Queensland.

4. Coolangatta in Queensland and Tweed Heads in New South Wales are known as the "twin towns." They lie on each side of an imaginary line which constitutes the border between the State of Queensland and the State of New South Wales. They can be seen effectively as one conurbation, if it be permissible to call the joining of two towns a conurbation, which literally means the joining together of two cities. Immediately south of Tweed Heads is another town called South Tweed Heads which could be described as a suburb of Tweed Heads. Immediately south of South Tweed Heads is Banora Point which could be described as another suburb of Tweed Heads. Banora Point takes its name from the fact that there is a large hill overlooking the Tweed River and it is at Banora Point that the Pacific Highway crosses the Tweed River, from Chinderah on the south side of the river to Banora Point on the north side. Prior to the building of the motorway which bypasses both Tweed Heads and Coolangatta, the highway ran through Banora Point, South Tweed Heads, Tweed Heads and across the border into Queensland over the line that theoretically divides Tweed Heads from Coolangatta. The distance between Vera Savic's residence in Coolangatta and the plaintiff's then residence at Banora Point is not particularly large being, in terms of a Sydneysider, a few suburbs away and really part of the same large conurbation around the border of the two States.

5. The relationship between the plaintiff and Ms Savic appears to have been an intimate one. Sometimes the plaintiff stayed at her residence and sometimes Ms Savic stayed at the plaintiff's residence. The plaintiff in his evidence described Ms Savic as his girlfriend and in her complaint made to the police, which is not evidence of any fact in the proceedings, Ms Savic described the plaintiff as her "ex-fiancé" which at least is capable of being interpreted together with the sworn evidence of the plaintiff as meaning that she would accept that she could be described as the plaintiff's girlfriend. It appears that each had a key to the other's residence, that some of her clothing was kept at his place and some of his clothing was kept at her place and that household goods of the one could be found in the household of the other. Like most relationships, that between the plaintiff and Ms Savic had its ups and downs. There were times when the parties were estranged and other times when they enjoyed intimacy together.

The interaction of the plaintiff and Ms Savic on 4 February 2016

6. On 4 February 2016 I do know from the plaintiff's evidence that he had lunch at Ms Savic's home in Coolangatta. He told me that he had two or three drinks at her home whilst lunch was being consumed. However, he could not remember whether he drank beer or wine or whisky. He then went home and had a "snooze" or siesta. He resumed drinking when he turned on his television that evening. The plaintiff's usual practice was to commence watching television at around 6.30 and that was when he would have his first evening drink. He appears to have accepted that that is probably what he did on the evening of 4 February 2016. The plaintiff's preferred drink was whisky. When being questioned by Mr Gollan the plaintiff said that he had about 1 centimetre of whisky in a glass diluted by about 5 or 6 centimetres of water. When I asked him some questions about the same topic at p 35 of the transcript the plaintiff indicated again about 1 centimetre of whisky together with about ten parts of water, meaning a much greater dilution of the amount of alcohol in each drink. The plaintiff went on to tell me about having a "stiff" drink and by that he meant that the amount of whisky in his glass was doubled. Whether that was with six parts of water or ten parts of water remains unclear.

7. Ms Savic attended the plaintiff's house on the evening of 4 February 2016. Why is unclear but it appears to have been a situation of "breakup." It may have resulted from the interaction at lunchtime. This was not explored. The plaintiff gave evidence about what happened on this evening in the Local Court at Tweed Heads at a hearing on 13 April 2016. The evidence that the plaintiff gave in the Local Court was read to the plaintiff by Mr Gollan in cross-examination and was in effect admitted to be what the plaintiff said that he had said in the Local Court. What the plaintiff said in the Local Court has been transcribed on pp 25 and 26 of the transcript of the current proceedings. Reading the two passages together it is this:

"She came in and put the coffee machine on the...kitchen table. She then went into the bedroom and took some of my clothes and I think she picked up some of her clothes. Then she came out and asked me for her keys for her house so we exchanged keys. Vera then just walked over to the frog stool, we call it anyway the frog stool, which was beside the single lounge chair. She picked it up. I think she gave it a bit of a hug and then she picked it up and threw it on the floor.

She then walked over to the coffee table and tipped all, you know, tipped it on its side. All the contents went on the floor. She then moved over to the TV and just pulled it off the TV stand. The TV fell...off the stand and it hit the floor but it didn't fall right down because of the cable. The TV cables were still holding it in position. The TV was still going and Vera had seen this and then she...was bending down to pick up the frog stool again and after that she...was going to do the job on the TV, finish it off.

I couldn't stop her pulling the TV off [the stand] but I was there ready, you know, and when - when I seen her bending down to pick it up, I grabbed it...to stop her doing any more damage. This is the hard part but when I did grab her with my left hand across her mouth.

...we were both off balance, you know, and we fell on the floor and I was...still hanging on to her across her mouth and then I said to her, 'Don't.  Don't do this, sweetie,' and then she settled down and she just went, you know, she...was okay. I let go of her and she walked out. I watched her get in the car through the screen door. She drove off.

She reversed out and drove up the road a couple of...houses, stopped the car there and because...when she drove off I walked out the front of the garage and then I seen her going over to the neighbours so then I don't know, I couldn't do nothing, so I closed the roller door, went inside, arranged the furniture, cleaned all the mess up and had a few stiff drinks and went to bed."

8. What the plaintiff admitted was grabbing hold of Vera in an attempt to prevent her doing any damage to his television set and, the two of them being off balance, falling to the ground but nothing further. However, the plaintiff did admit that Vera had returned a coffee machine, she had returned some of his clothes and picked her clothes up and that there had been an exchange of house keys. The plaintiff told me his evidence that the frog stool belonged to Vera and hence one can understand her picking it up and kissing it before appearing to throw it away perhaps in an attempt to damage it.

9. Vera did not give evidence in these proceedings. Each party asked me to draw a giant Jones v Dunkel inference against the other. The plaintiff and Ms Savic have been reconciled. In December 2016 the plaintiff sold his house at 16 Captains Way, Banora Point, and moved to Rainbow Beach in Queensland. When he did so, the property was purchased in the names of both the plaintiff and Vera Savic as tenants in common. The hearing of this case commenced on Friday 2 June 2017, albeit that the transcript is headed "Day 2", but that was the first day on which any evidence was given. On the conclusion of that day, I stood the matter over to the following Monday, but on that day I was required to give judgment in a childcare appeal and unfortunately I did not reach this matter on that Monday but it continued for the rest of the present week. Over the weekend, and I infer at other material times, the plaintiff stayed with Vera at her apartment at Coolangatta. It is clear that the two are reconciled and that their relationship of perhaps seven years prior to 2016 now persists and what happened on the evening of 4 February 2016 could be seen as a "hiccough" in the relationship or a very low point in the relationship, and most relationships have both high points and low points.

10. In the circumstances, one can understand that the defendant did not call Vera to give evidence, as one would expect her to be partial to the plaintiff. Equally the plaintiff would have found it difficult to call Vera given the nature of the current proceedings. I draw no adverse inference against either party’s case because of the absence of Vera.

11. What the plaintiff said Vera did after she left his residence is confirmed to a large extent by evidence given by one of the plaintiff's neighbours, Mr Rory Curtis. Mr Curtis and his family were living at the time at 15 Captains Way, Banora Point. Number 15 is in the opposite side of the street to number 16 and the fence line on the right‑hand side of Mr Curtis' property was in a theoretical continuous line with the fence line on the left‑hand side of the plaintiff's property as one was looking at the road from each property. In other words, they were one house removed from the other but on different sides of the street. Like the plaintiff, Mr Curtis has subsequently moved from Captains Way, Banora Point. Both the plaintiff and Vera Savic were known to Mr Curtis. He knew that they had a relationship and he knew that Vera visited the plaintiff frequently and sometimes stayed there overnight. He gave evidence that one would see her car at the plaintiff's residence "regularly".

Ms Savic seeks assistance from a neighbour

12. On the evening of 4 February 2016, Mr Curtis was on his way home from work. He gave this evidence:

"I was driving down the street and as I approached my property on the left‑hand side, I saw a car on the right‑hand side, it had its headlights on and what was sort of like concerning to me is, that it was parked on a 45 degree angle. So, I approached it slowly and as I approached it slowly, I saw Vera walk out of the car... Our property has two driveways so I turned into the left‑hand driveway and as I looked into my rear view mirror, I could see that Vera was walking very quickly towards me, waving her arms... I parked the car, closed the car door, walked over to Vera and I said, 'Are you okay?' She said, 'No, I'm not'... She looked extremely dishevelled and she was quite emotional. She was...very tearful and she certainly wasn't her usual cheerful self and she looked like she was in distress."

He also saw the plaintiff standing in front of his garage on his driveway. He said that the plaintiff stood there looking blankly towards him and Ms Savic and showed no emotion whatever.

13. Mr Curtis invited Ms Savic inside his house. As she was entering his house, he noticed blood running down the side of her head, behind her left ear. His wife was present in the house and one of his children was in the upper storey of the house. Mr Curtis' wife's panacea for those in distress was an icepack. He said this, "My wife would have got that out of the freezer, that's her main form of medication for people that seem to have ailments." Mr Curtis, himself, provided to Vera a towel to mop up her blood as well as Mrs Curtis’ supplying Vera with the icepack. Mr Curtis also provided Vera with a glass of water. He asked her what had happened and he told me in short form, that he was advised by Vera that an assault had occurred. He rang the police. I know from exhibit 7, the COPS event, that a call was made to the police at 8.13pm that evening. The informant is said to be Vera "Sovick", but it is clear that from Mr Curtis' evidence that he himself made the call on her behalf. That is indeed corroborated by exhibit 7, because one would not expect the lady to misspell her surname, but one might expect Mr Curtis to misspell her surname. What is said about the telephone call is this, according to exhibit 7:

"Informant has sought refuge at above address after domestic assault. Has minor arm and face injuries. Declined ambulance. Person of interest still at 16 Captains Way. She does not have phone with her."

The "address" was 15 Captains Way, Mr Curtis' address. That, in my view, helps corroborate Mr Curtis' evidence that it was he who made the call. Furthermore, the fact that the "informant" Vera is mentioned in the third person in the final line of what I have quoted, in my mind, also confirms that it was not Vera, but Mr Curtis who made the phone call to the police.

14. Mr Curtis went on to tell me that the police took about an hour to respond. That evidence is accurate, as exhibit 7 tells me that a car from Tweed Heads, TH 15, responded to this broadcast over the police radio at 9.17pm, one hour and four minutes later. The occupants of TH 15, were Senior Constable Steven Joseph Twindley and Senior Constable Anthony Attard. Those two gentlemen are referred to in the statement of claim. The statement of claim also at one time made allegations about Senior Constable Colin Jones and Superintendent Wayne Starling, but no allegation is currently maintained against either of those police officers. The State is essentially sued as being vicariously liable for the actions of Senior Constable Twindley and Senior Constable Attard on the evening of 4 February 2016.

15. During the hour that it took the police to arrive at Mr Curtis' home, he stood out the front of his property. He said this:

"I was really quite concerned for the wellbeing of the two women that were inside - just excuse me. I was quite concerned about the welfare of the two women inside, to be honest. I've been involved in issues before when there's been attacks and I was very mindful of - of what people can do…I was concerned about Mr Barram across the road, taking matters into his own hands, which you've all seen in media and heard and I've - as I said - I've experienced previously."

In answer to a later question, Mr Curtis said that he was very seriously concerned about what had happened and for the safety of his wife and Ms Savic. He also said that his concern was such that he had a very clear recollection of what occurred. In the passage of his evidence, which I have just quoted, one will note that the witness asked to be excused, that was because he had become emotional. He clearly, when recalling the events now in question, relived some distress that he felt at the time.

The police arrive

16. When the two senior constables arrived at Captains Way, Banora Point the appear to have been flagged down by Mr Curtis and they then accompanied him into his house and commenced to speak to Ms Savic. The officer in charge of the investigation now in question, was the junior of the two senior constables, Senior Constable Twindley. He explained, that although Senior Constable Attard was senior to him, that they took it in turns to be the officer in charge and on this occasion, it was his turn to be the officer in charge. That is confirmed by the evidence of Senior Constable Attard. Senior Constable Twindley decided that Ms Savic ought be interviewed. He asked Senior Constable Attard to obtain a video camera and Senior Constable Twindley then interviewed Ms Savic, in the loungeroom of Mr Curtis' home and that interview was electronically recorded by Senior Constable Attard. This process is now known as a DVEC.

17. At the commencement of the interview it was pointed out to Ms Savic that she was required to tell the truth and that if she misled the police officers she might be guilty of a criminal offence. The DVEC eventually was admitted into evidence as exhibit 8. It is not evidence of any fact in these proceedings other than evidence of the complaint that was made by Ms Savic to the two police officers. The DVEC was shown to the plaintiff in cross-examination and to Senior Constable Twindley in chief before it was admitted into evidence. I accordingly have seen it twice. Unfortunately no transcript of the DVEC was made. That ought to have been done to make life easier for all those involved in the current litigation. Furthermore, the making of such a transcript ought not be beyond the capacity of the State of New South Wales.

18. In the DVEC, Ms Savic deposed to a much more serious interaction between herself and the plaintiff than the plaintiff admitted. She said, if my recollection serve me correctly, that the plaintiff went to hug her but she rebuffed his advance and that he retorted that, if she could not be his, she was not going to be anybody's. There was then an assault upon her. She said that she was punched at least twice in the head on the left side of her face, that she was taken to the floor, that she was kicked on a number of occasions, that she injured her face, her mouth, her left arm, her left breast and her low back on the right side. Whilst the interview was being recorded, Senior Constable Twindley produced a handheld torch which he used to throw greater illumination on parts of Ms Savic's body so that it was easier for Senior Constable Attard to video record various parts of her body. She complained to the police that she had lost her dentures and that they were still at the plaintiff's residence and that the gold chain that she wore around her neck with a small cross attached to it had been torn from her neck. It is common ground that Ms Savic did lose her dentures when she was at the plaintiff's residence because on the morning of 5 February 2016 the plaintiff handed in those dentures at the Tweed Heads Police Station. Senior Constable Twindley said that when he was present in the plaintiff's residence he found on the floor a torn gold necklace and he took possession of that necklace which appeared to him to be the necklace described to him by Ms Savic and it appears that he took it with him to the Tweed Heads Police Station.

16. On the video one can see blood behind Vera's left ear, a bruise and swelling on the left side of her chest above her left breast, blood and scratching on the anterior side of her left forearm immediately below the left elbow and one can see her applying the ice pack to her face and she also pointed to the right side of her low back as being a site of pain.

17. In evidence is an "expert certificate" made pursuant to s 177 of the Evidence Act 1995 by Dr Megan Wilson, who appears to have been an intern at the Tweed Heads Hospital on the night of 4 and 5 February 2016. The expert certificate bears date 1 April 2016. It confirms that Dr Wilson examined Vera Savic at 24 minutes after midnight on what is said to be 5 June 2016 but clearly refers to 5 February 2016. The certificate deposes to Dr Wilson’s having found the following injuries:

"Swelling over the right mandible. Beneath that bruising over the internal surface of the oral cavity, at the right buccal region. Bruising over the right anterior chest wall. Tenderness to palpation over the mid-thoracic spine."

Dr Wilson thought the injuries were consistent with "blunt trauma" but were only soft tissue injuries which could be treated with "simple analgesia." As in many medical reports I have read, Dr Wilson appears to have confused the right with the left. There is no actual dispute between the parties before me that the injuries identified on Vera's body were on her left side. Generally, when one knows that a person has been injured on the left side and a medical practitioner reports the injuries as being on the right side, there could be a claim for medical negligence available. This is not such a case but the mistake is a common one amongst medical practitioners. One can understand that a young doctor seeing a lady in distress after midnight could easily confuse her right with the patient's right and her left with the patient's left.

21. The injuries except the internal injury to the mouth were identified to Senior Constable Twindley and Senior Constable Attard at the interview on the evening of 4 February 2016. Senior Constable Twindley and his colleague were cross-examined as to whether Ms Savic appeared to be affected by alcohol or some other drug but neither of them formed that view. They were also cross-examined as to whether Ms Savic appeared to be behaving irrationally or appeared to have some mental illness but neither of the senior constables detected any such problem. The only problem identified was by Senior Constable Attard who admitted that Ms Savic was "emotional" but that is understandable and, for my part, when I watched the interview, I drew no adverse inference, that is, I did not believe that Ms Savic was in any way feigning her symptoms. It is clear to me and I believe it was clear to both Senior Constable Twindley and Senior Constable Attard that the 61-year-old lady was affected emotionally and psychologically by the event which she says was the cause of the injuries which she had sustained.

The decision to arrest the plaintiff

22. It is clear that prior to knocking on the front door of the plaintiff's residence the officer in charge, Senior Constable Twindley, had decided that a criminal offence had been committed, an offence of assault and he had decided that he ought arrest the plaintiff. This evidence was given in chief by Senior Constable Twindley:

"Q. Why did you choose to arrest him?

A. I chose to arrest him due to the victim still being in the vicinity and for her protection and to prevent any reoccurrences or any repetition of that offence.

Q. Was there any other reasons that occupied your mind?

A. The seriousness of it sort of played a part."

The senior constable maintained that position in cross‑examination. We do know that the phone call to the police station made by Mr Curtis occurred at 8.13. We do know that over an hour later, at 9.17, Senior Constable Twindley and Senior Constable Attard arrived at Mr Curtis' home. The interview with Ms Savic commenced at 9.35pm and concluded at 9.49pm.

23. A decision was made to call for an ambulance. It is clear that that decision was made by the police. Whether it was Senior Constable Twindley who made that decision or Senior Constable Attard or the two of them combined, the evidence is unclear, but I do know that Senior Constable Attard made the call for the ambulance on the police radio and that the ambulance attended promptly. The prompt attendance of the ambulance was deposed to by Mr Curtis whose evidence I have no hesitation whatever in accepting. Senior Constable Twindley thought that the ambulance had already been called by Mr Curtis but he did know that a call was made to the ambulance by Senior Constable Attard but he thought that was only to ascertain its estimated time of arrival. However, the evidence of Senior Constable Attard is quite clear and I have no hesitation in accepting this part of his evidence that he phoned for the ambulance on the police radio. It would appear that the ambulance turned up at roughly the same time as the two police officers were leaving Mr Curtis' house in order to cross the road to attend the house of the plaintiff.

24. It is also clear that prior to knocking on the front door, as I have earlier said, that Senior Constable Twindley had made the decision to arrest and detain the plaintiff for the reasons which he gave. It occurred to me, after hearing Senior Constable Twindley's evidence which followed that of Mr Curtis, that Senior Constable Twindley could have raised, as another reason for arresting the plaintiff, the fact that he held fears for the safety of Mr Curtis and his family as potential witnesses and as persons whom the plaintiff might have an animus to hurt because of their assistance to the plaintiff and their calling the police to what was essentially a "domestic" incident. However, Senior Constable Twindley did not advance that in his evidence or advert to it. However, when Senior Constable Attard gave his evidence, he adverted to it and he thought it was a valid reason for arresting and detaining the plaintiff. At the relevant time, Senior Constable Twindley had about six years' experience in the police force but Senior Constable Attard had at least twice that amount of experience. However, the fact that Senior Constable Twindley did not put forward the protection of the Curtis family as a reason for the arrest and that it was adverted to by Senior Constable Attard led me to the conclusion that there had been no collusion between Senior Constable Twindley and Senior Constable Attard, nor was any collusion alleged. Furthermore, no part of the evidence of one appeared to have been influenced by the evidence of the other and I am quite satisfied that the evidence of Senior Constable Twindley was quite independent of evidence adduced from Senior Constable Attard.

25. In the evidence from the senior constable that I have just recently quoted, I refer to his relying upon, as one of his reasons for arresting the plaintiff, the "seriousness" of the offence. He alluded to that earlier in his evidence in this fashion:

"Q. Have you been to other domestic violence events before this?

A. Yes, many.

Q. How would you put this in a category of, run‑of‑the‑mill, something serious?

A. It's higher than run‑of‑the‑mill. I'd probably say more in the serious category.

Q. Why do you come to that conclusion?

A. Based on her injuries, her age, what she was alleging had happened to her.

Q. What kind of things are you having regard to when you say...

A. In regards to her being punched in the head. What she told me had happened. Being kicked. The lump on her chest."

The witness was not saying that the injuries themselves were serious but the nature of the assault was a serious one. A person who is punched in the head can fall backwards and depending on what the person hits as the person is falling, a person could sustain serious injuries, even fatal injuries. Likewise, the kicking of the body, in particular, the torso of the body especially if the abdomen is struck, can cause serious internal injuries. This was not a fit, young person but a 61 year old lady. I accept that the officer was entitled to accept that the nature of the assault and the injuries sustained indicated that this was an assault more serious than many others, albeit that grievous bodily harm was not inflicted.

The police enter the plaintiff’s house

26. This is what then happened according to the evidence in chief of Senior Constable Twindley. He and Constable Attard went to number 16 Captains Way. He knocked at the door. An unidentified male answered the door. The senior constable asked that man if his name was Gregory and that man said, "No." Senior Constable Twindley then asked the unidentified male if Gregory was at home and received an affirmative response. He then asked the unidentified male, "Where is he?" and the male replied that Gregory was in his bedroom. He also asked the unidentified male whether he lived there and he said yes, and then he asked the permission of the unidentified male to enter and he was given that permission. He went on to say this:

"While we went in, I think it was right at the start. I was at the door when we first got in, I asked him if he'd been home to - had anything happened here and he told me that he'd only just got home but then led us over to the bedroom door where Gregory was."

According to Senior Constable Twindley, the lights were on in the lounge room and he and his partner went to the plaintiff's bedroom. The plaintiff was lying down on the bed and he then woke up. Senior Constable Twindley used these words "woke him up" in answer to a question of what he did. That indicates that as far as the Senior Constable was concerned, he and/or his colleague, woke the plaintiff up. This question and answer were then given:

"Q. How did you wake him up?

A. Just sort of said his name. Woke up and yeah, I can't remember if we had to sort of give him a shake or anything, I think he sort of woke up by our - by our sounds, by our voices."

He then formally announced his name, his station, identified his partner by name and advised the plaintiff that he was "Under arrest for domestic assault". He then provided to the plaintiff a formal caution. He then said that he said to the plaintiff, "Get some clothes on, we're going down to the station", by which anyone would infer he meant the police station and not a non‑existent railway station, or the fire station.

27. After the plaintiff dressed, he said that they walked him out through the loungeroom and out of the house and up to the police car, which was a caged truck. It was when he was going back through the loungeroom on this journey, that he asked the plaintiff about Vera's dentures and the plaintiff said that he did not know if they were there and that he, the senior constable, should ask Vera about that. It is then that Senior Constable Twindley saw the necklace that Vera had described to him and he picked it up.

28. The plaintiff, after having been walked up to the road, was placed in the caged truck and then, according to Senior Constable Twindley, he and his partner went over to the ambulance officers, who were still treating Vera and who were unsure whether she was going to be taken to the hospital or not. The two policemen then returned to their vehicle and drove to the police station.

29. The evidence of Senior Constable Twindley is entirely corroborated, in my view, by the evidence of Senior Constable Attard. Senior Constable Attard agreed that he took hold of the plaintiff's elbow and guided him, or escorted him, from his home up to the caged police vehicle and assisted the plaintiff to get into it. That is the evidence of both the plaintiff and Senior Constable Attard. There was no evidence given by the plaintiff that the holding of his elbow by Senior Constable Attard hurt him, or caused him any discomfort, let alone any injury.

30. The "assault" which is what is pleaded in the statement of claim, was a purely technical one, in the sense that there was the touching of the plaintiff's person by Senior Constable Attard. Paragraph 15 of the statement of claim says this: "The plaintiff was assaulted by Senior Constable Steven Twindley and/or Senior Constable Anthony Attard as set out in para 5 above." Paragraph 5 of the statement of claim is this:

"Senior Constable Steven Twindley, or Senior Constable Anthony Attard then took hold of the plaintiff and led him from his home and placed him in the rear of a caged police vehicle and conveyed him to Tweed Heads Police Station."

That is the only assault pleaded against the State of New South Wales in these proceedings.

At the police station

31. When they arrived at the police station, the plaintiff was introduced to the custody manager and it appears likely that he was confined in a dock for some period of time. His photograph was taken. It became exhibit 9. It shows the plaintiff wearing a white t-shirt. He was taken for fingerprinting and the fingerprinting was done by Senior Constable Attard. Much was made of this process by the plaintiff. This evidence was given:

"Q. What happened inside the police station?

A. Well, they fingerprinted me…I was a good boy, I didn’t want them to do nothing to me, you know, but while he was taking, the little one again [Senior Constable Attard] while he was taking the fingerprints he kept swearing on you know, awful bad words, you know, "put your finger right there" and all this, you know, "what are you, you useless thing", and all this and belittling me, yeah."

A little later, the plaintiff added this:

"I thought the little fellow was trying to goad me into blooming doing something wrong, you know, while he was fingerprinting me, the way he was talking to me, but I kept - kept my cool."

At p 19, the plaintiff was enjoined by me to tell me the actual words, the "awful things" that were being said to him by Senior Constable Attard. The plaintiff said this:

" A. “Get your fucking finger on the bloody thing so I can get the fucking print you silly old cunt”, you know, all this type stuff, you know. You don't hear that bloody--

Q. So he called you a "silly old cunt", did he call you any other abusive words?

A. Well he just kept going on, you know, until--

Q. A lot of people use "bloody" as an adjective for everything, we interrupt words with bloody like "Parra-bloody-matta", it happens all the time. I can understand that he's using "fuck" as an adjective or "fucking" as an adjective to describe everything but besides using the f-word, besides using "fuck" and "bloody" or words to that effect did he call you any other things other than "a silly old cunt"?

A. Oh that's all I remember, you know, well he went on and on and on, it just goes past you after a while, you know.

Q. That's all you can remember?

A. Yeah.”

32. Senior Constable Attard denied using the word "cunt" and told me a number of times on oath, that that was not a word he used. He admitted that he may have sworn, otherwise at the plaintiff, that is, that he may have sworn using other language, but maintained his denial of the use of the word "cunt". After admitting that he may have sworn, he was not further questioned about that point. He was not questioned to suggest that he was trying to goad the plaintiff to commit some offence, or to do something stupid. Nor did he admit to harassing the plaintiff in any way, during the fingerprinting process. In fact, it was not put to him that he harassed the plaintiff in any way, during the fingerprinting process. The Senior Constable explained that modern fingerprinting is done using electronic means and that sometimes a number of attempts need to be made, before the computer tells the operator that a correct impression has been obtained by the electronic device. There may have been some difficulty in obtaining the plaintiff's fingerprints, but I do not accept that he was abused or harassed, or goaded into trying to do something wrong by Senior Constable Attard. That was not the man as I assessed him, as Senior Constable Attard was giving his evidence.

33. The plaintiff was charged at the Tweed Heads Police Station and released at 12.50am on the morning of 5 February 2016. He did not take to the police station, as is clear from the property docket, his wallet or any valuables and it is clear that he did not take his spectacles because he refused to sign documents. The Caution and Summary of Part 9 of LEPRA form does not contain the plaintiff's signature and the custody manager, Senior Constable Dean Broadhurst, has written on it this, "I can't sign that. I can't see what you read to me." In similar fashion the plaintiff refused to sign each other document except the bail acknowledgment. The plaintiff pointed out that the officer in charge at the Tweed Heads Police Station, Senior Constable Colin Jones, who was an acting sergeant, told the plaintiff that he could not be released from custody unless he signed the bail acknowledgment form. The bail acknowledgment form has been signed by the plaintiff and dated 5 February 2016 and bears a time of 12.50am.

Complaints

34. The plaintiff complained that when he was arrested he was told to dress. He reached into a drawer and took out a pair of shorts which he put on and he was then told to remove the drawstring of his shorts. One can understand that the police direct everyone who is being arrested to remove things such as drawstrings as they are a choking hazard which could be used either as weapons against the police or used in an attempt to self-harm. The plaintiff said that these shorts, once the drawstring had been removed, would not stay up and he needed to hold them up with his left hand but was not given an opportunity to don some other pair of shorts or, for example, a pair of jeans. He was merely told to hurry up and threatened with being handcuffed if he did not hurry up. He also protested that he had no opportunity of getting his spectacles or his wallet or footwear.

35. All of these matters were the subject of cross‑examination of the police. According to Senior Constable Twindley, the plaintiff was given an opportunity to change the shorts if he needed to, or would have been given such an opportunity in the normal course. That evidence can be found at transcript p 123 at line 20. He also said that the plaintiff would have had an opportunity to put on footwear; transcript p 123 line 35. He was also given an opportunity to gather his wallet; transcript p 123 line 46. He was also able, if he wished, to get his spectacles; transcript p 126 line 46 and transcript p 128 line 05. The general proposition put in evidence by Senior Constable Twindley was this:

"Q. He was given every opportunity to get dressed properly, put shoes on, get his wallet and go with you. Is that correct?

A. Everyone is."

That question was put by Mr Maher, the plaintiff's solicitor's clerk, who was given leave to adduce evidence on behalf of the plaintiff.

36. Much of what Senior Constable Twindley said on this issue and what Senior Constable Attard said on the same issue is plain common sense. It is in the interests of police that a person take his or her wallet to the police station as having some form of identification with him or her assists the police in their record-making, record-keeping and, for example, making checks. It is of great utility to them for a person arrested to have a driver's licence, for example. It is also of great assistance to the police for those who need spectacles to read to take them with them to the police station because there are a number of documents to be read and a number of documents to be signed when a person is arrested.

37. Many of the plaintiff's complaints appear to me to be unfounded. If he decided not to don footwear, if he decided not to take his wallet, if he decided not to ask for his spectacles then he is the person who suffers the consequences. However, neither of the police officers was cross-examined to suggest that they insisted that the plaintiff hurry up getting dressed or that they threatened to apply handcuffs to him if he failed to expedite the process.

36. The plaintiff told me that after he was released from custody he was told by the police, presumably by Senior Constable Jones, that he would be given a lift home "if I waited." According to the plaintiff's evidence, "I waited and waited and waited and waited and waited and waited and waited so in the end I just said, 'I'm going walking.'" He told me that he then walked home holding up his pants with his left hand and that he reached home at 3 o'clock. One will note that he was released from custody at ten minutes to 1 and got home at 3 o'clock. In cross‑examination he told me that it took him two hours to get home and again, that he did not get home until 3 o'clock in the morning. There were two hours and ten minutes between his release from custody and his arriving at home. If it took him two hours to walk home then the long wait was a wait of ten minutes. However, the walk home may have been only an hour in which case he could have waited for an hour and ten minutes. Again, the evidence is unclear but I was struck by the plaintiff's hyperbole about the length of his wait and he did not, for example, tell me of making any inquiries as to how much longer he would need to wait before he could be given a lift home.

The flatmate

39. I turn to what became a significant issue in the proceedings, the presence or absence of this unidentified male who told the police that he lived at the plaintiff's home.

40. The plaintiff told me that he had no prior criminal record. There is no evidence that he had any prior interaction with the New South Wales constabulary. I say that knowing that in the custody management form, exhibit 3, one question asked was "Is this the first time you have been arrested and placed in police custody?" and has been answered "No" by Senior Constable Dean Broadhurst, but that could be merely a mis-entry in the record. For example, on the same page of the custody management record, one of the questions is "Medication?" to which the answer "No" is recorded, but beneath that is the comment "Tablets for blood pressure" so the question ought to have been answered "Yes". Furthermore, the plaintiff needed to be photographed and fingerprinted at the Tweed Heads Police Station so there was no record of either earlier photographing or earlier fingerprinting. I accept this was the first time that the plaintiff had been arrested and taken into custody.

41. The arresting police, Senior Constable Twindley and his partner Senior Constable Attard, had no prior dealings with the plaintiff and would have known nothing about his private circumstances other than his relationship with Vera Savic at the time they decided to arrest him and at the time he was arrested. Neither Senior Constable Twindley or Senior Constable Attard could have known about the presence or absence of a boarder. However, they gave the evidence they did about this unidentified male.

42. The simple fact is the plaintiff did have a boarder from time to time. The police did not know that at the time they arrested the plaintiff or at the time they went to his front door at just before 10 pm on 4 February 2016. The plaintiff admitted in cross‑examination that from time to time he had a boarder and he in fact had several boarders over the years. He said that he did not have a boarder on the night of 4 February 2016. He said that he had no boarder in February 2016. When asked when did he last have a boarder prior to February 2016, the plaintiff could not give any "date". He admitted that he had four or five boarders for short periods of time. He then gave this evidence:

"Q. When was the last time you had a boarder before 4 February 2016?

A. I had a boarder that used to come every - every now and again."

He agreed that he had boarders who, when they had nowhere else to go, would go to his house. He was then pressed about whether he had any arrangement in place with any boarder who could come and go during January 2016. The answer given by the plaintiff was that he did not know when the boarder "finished up" and was unable to remember. He was then asked whether he had an arrangement for a casual boarder in February 2016 and said that he did not remember. He agreed that the relationship with this boarder or boarders was a casual one, they need not ring up and tell him they were coming, they could just come and use their own key to his residence to enter and to go to their room to sleep if they wished to.

43. The plaintiff, when pressed about the boarder on this evening, said that he who could not be identified, would not come to his house at 10 o'clock at night. However, that misses the point. The interaction between the plaintiff and Vera was over by 8.13 when the phone call was made by Mr Curtis from his home to police. What the plaintiff admitted doing might have been completed by 8.30 and he could have gone to bed at 8.30, 8.40, 8.45, 8.50 or 9 o'clock. His boarder could have turned up at any time between 8.30 and 10.00 pm.

44. The presence of a boarder was confirmed by Mr Curtis. This evidence was given by him:

"Q. During January and February 2016, was anyone else, to your knowledge, residing at Mr Barram's house?

A. Yeah, there was a gentleman that would come and go, infrequently and was no real pattern, I don't know the gentleman at all."

A little later he said that he would see that gentleman's car at the plaintiff's house from time to time, and when asked where he usually parked his vehicle, he said this:

"It was a variety of places, depending on where Vera parked her car, so it'd be either on the driveway or in...the street."

The inference to be drawn is that sometimes Vera and the flat mate might be at the plaintiff's house, that Vera probably generally parked in the driveway, and if she were parked in the driveway, the flat mate would park on the street.

45. It was put to Senior Constable Twindley that this "flat mate" was an invention by the police. I reject that utterly. The simple fact is that on the evening in question, records were made by Senior Constable Twindley whilst the fingerprinting process was being undertaken by Senior Constable Attard. Senior Constable Twindley commenced typing the narrative in the COPS event at 23 minutes past 11pm. Part of that narrative is this:

"Police arrived [at Mr Curtis' house] and saw the victim sitting on the lounge holding an icepack to her face. The victim provided a video recorded statement. As a result of this, police attended 16 Captains Way, Banora Point, and was invited inside by a male who stated he was the accused's flat mate and showed police to the accused's room."

In the Facts Sheet made by Senior Constable Twindley as part of the charging process, which Facts Sheet is dated 4 February 2016, that is it was created prior to the midnight between 4 and 5 February 2016, contains this material:

"The victim provided a video recorded statement. As a result of this, police attended 16 Captains Way, Banora Point, and was invited inside by a male who stated he was the accused's flat mate and showed police to the accused's room."

If this were a recent invention, it had to be invented some time between the police arresting the plaintiff at approximately 10pm and the following midnight, an invention made within a period of two hours when there was no issue arising as to whether there had been trespass to the land.

46. Furthermore, the matter is legally a red herring. Section 10 of the Law Enforcement (Powers and Responsibilities) Act 2002, which I have earlier referred to as LEPRA, provides that a police officer may enter and stay for a reasonable time on premises to arrest a person, or detain a person under an Act, or arrest a person named in a warrant. Subsection (2) provides that a police officer may enter a dwelling to arrest or detain a person only if the police officer believes on reasonable grounds that the person to be arrested or detained is in the dwelling. Subsection (3) provides that a police officer who enters premises under s 10 may search the premises for the person who is being sought. Subsection (4) is irrelevant in the current matter.

47. If the police had a valid reason to arrest the plaintiff, then their entry into the premises was lawful. There is no suggestion that the police broke into the plaintiff's residence. There is no evidence of any damage whatever, to the property, no damage to or a breaking of any door or window, or for example, of any door being kicked in. If there was no person who admitted them to the house, then they must have entered through an open or unlocked door. The plaintiff, in his evidence, said that he usually locked his front door when he went to bed. If there were no flat mate and the plaintiff left his front door unlocked, that might explain how the police entered the plaintiff's property without there being any damage to any door, or any lock. However, if the plaintiff's usual practice was to lock his front door when he went to bed, it would appear improbable that on this occasion, the plaintiff left his front door unlocked and furthermore, one must remember that he had had a disagreement that had resulted in some disharmony between himself and Vera that evening and in those circumstances, one would expect him to be more careful than usual, in making sure that his front door was locked.

48. In any event, I have no hesitation in accepting the evidence of Senior Constable Twindley and Senior Constable Attard, that this flat mate existed and admitted them into the plaintiff's home. The plaintiff said that when he got home at 3 am there was no one present in his home, but I am completely in the plaintiff's hands in that regard. Furthermore, even if that be correct, and I use the subjunctive mood advisedly, the flat mate may have left, believing that he ought not stay at the house, when the owner of it had been arrested and taken by police to the police station. Perhaps, he himself, did not think it prudent for him to remain at a house, which might be soon again visited by the police with, for example, a search warrant. One can speculate the flat mate may have gone to the house at say, 8.30 with a need to sleep for a short number of hours before resuming work in the early hours of the morning. One does just no know. However, I accept the evidence of Senior Constable Twindley and Senior Constable Attard that there was such a flat mate on this evening, who admitted them into the plaintiff's house. The police had no reason to concoct a flat mate and if they did "concoct a flat mate", then it is remarkable that they made a concoction of something which was a reality, that the plaintiff did have a flat mate and according to Mr Curtis, that flat mate was still around in February 2016.

Was the arrest justified?

49. The real question here is whether the arrest of the plaintiff was justified, pursuant to s 99 of LEPRA. It has to be remembered that s 99 of LEPRA has been recently recast and the amendments took effect on 16 December 2013. Section 99 commences thus:

"(1) A police officer may, without a warrant, arrest a person if:

(a) the police officer suspects on reasonable grounds that the person is committing or has committed an offence, and

(b) the police officer is satisfied that the arrest is reasonably necessary for any one or more of the following reasons:…"

There follow nine subparagraphs, only four of which are relevant to the current proceedings. The four relevant subparagraphs are these:

1. "to stop the person committing or repeating the offence or committing another offence,

2. to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence,

3. to protect the safety or welfare of any person (including the person arrested),

4. because of the nature and seriousness of the offence."

50. The first question here is whether Senior Constable Twindley, suspected on reasonable grounds, that the plaintiff had committed an offence. That is what must be established, under s 99(1)(a). A suspicion is a state of conviction, less than a belief. There may be a possibility that something has occurred. One may have a suspicion that something has occurred. One may believe that something has occurred, or one may be sure that something has occurred, or one may be certain that something has occurred. Senior Constable Twindley not only suspected that the plaintiff had committed a criminal offence, he believed that the plaintiff had committed a criminal offence. That belief is sufficient to satisfy a suspicion.

51. The next question is whether he had reasonable grounds to base his belief or suspicion. He based his belief on his accepting what Ms Vera Savic told him, what was recorded in the DVEC that she made on the evening of 4 February 2016. He also took into account the injuries which could be seen at that time, the blood on her person, the bloodstains on her shirt and her emotional state. Quite frankly, the DVEC could be described as showing that Ms Savic was distraught. She was clearly very upset, or, to use the terminology of Senior Constable Attard, she was emotional. As a tribunal of fact, I would have no hesitation whatever in accepting what Ms Savic said in that interview. In my view, there were reasonable grounds for the Senior Constable to form a suspicion and also a belief, that Ms Savic had been assaulted by the plaintiff.

52. This was vehemently opposed by the plaintiff's solicitor. It was submitted to me that in circumstances where one person was making an allegation against another person and the person making the allegation was a scorned ex-partner, that the police were required to undertake a full investigation, before being satisfied that an offence had been committed. Mr Boys, for the plaintiff, submitted that the DVEC, the complaint made by Vera Savic to Senior Constable Twindley, was unsubstantiated and uncorroborated and insufficient to form a reasonable ground for suspecting or believing that the plaintiff had committed an offence. I reject that utterly. The submission largely was that, where there was an allegation by one person against another, which one ought to approach cautiously, the police needed to carry out an investigation, which included obtaining the other person's version of events.

53. Here, the allegations being made by Vera of being punched and kicked and otherwise assaulted were corroborated by the injuries, by the blood that could still be seen on her person and on her clothing and by her distraught and emotional state and by an allegation that was made very promptly after the assault by Ms Savic to Mr Curtis and his wife.

54. A mere reading of the authorities makes it clear that the person to be arrested does not need to be interviewed before an arrest can take place or that any full investigation should be undertaken before an arrest is made. A leading authority in this regard is R v Rondo [2001] NSWCCA 540; 126 A Crim R 562. The facts are set out at [32]. They are these:

“According to the constables, about 7pm on 19 February 1999 Cons Barnes was driving a police vehicle east along Epping Road Lane Cove with Cons Gautier in the passenger seat., They noticed a navy blue Toyota Supra coupe (a sports car) with panel damage to the driver's side travelling east in lane 1 of Epping Road. The vehicle had a smart appearance and appeared capable of travelling at fast speeds. Cons Barnes noticed the vehicle enter Epping Road from another busy road, Centennial Avenue. Cons Barnes drove the police vehicle alongside the Toyota Supra coupe. Cons Gautier said to the appellant, the driver, "Is this your car?" He replied, "No". Cons Barnes moved the police vehicle behind the Supra coupe and engaged the police beacons and siren. The coupe was pulled over into Parklands Avenue about 30 metres north of Epping Road. The police vehicle stopped behind the Supra.”

Commencing at [51], Smart AJ, with whom Spigelman CJ and Simpson J (as her Honour then was) said this:

"[51] The evidence that the police had to support stopping the vehicle was that a young fresh faced man was driving a smart fast open coupe with some panel damage along Epping Road and when asked if the car was his, he replied "No". He was not asked to whom it belonged. The mere fact that the appellant was driving a car which he did not own or lease or hire is not sufficient to give rise to a reasonable suspicion. Many late teenagers and young adults drive cars belonging to a parent or a sibling. Alternatively, the car may be that of an employer or a friend. At the time of stopping the appellant and the Supra Cons Barnes did not have any material on which he could form any of the reasonable suspicions referred to in s.357E. Nor did Cons Gautier

[52] In Streat v Bauer; Streat v Blanco (16 March 1998, CLD, unreported) I reviewed the authorities from other fields which help to elucidate s.357E and the words "suspects" and the clause "any person whom he [the member of the police force] reasonably suspects", namely Queensland Bacon Pty Ltd v Rees (1996) 115 CLR 266 at 303 per Kitto J, George v Rocket (1990) 170 CLR 104 at 115-116, R v Armstrong (1989) 53 SASR 25 at 27; O'Hara v Chief Constable of the Royal Ulster Constabulary [1997] 2 WLR 1 at 5 and 11 and Anderson v Judges of the District Court (1992) 27 NSWLR 701.

[53] These propositions emerge:

(a) A reasonable suspicion involves less than a reasonable belief but more than a possibility.. There must be something which would create in the mind of a reasonable person an apprehension or fear of one of the state of affairs covered by s.357E. A reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence.

(b) Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be shown. A suspicion may be based on hearsay material or materials which may be inadmissible in evidence. The materials must have some probative value.

(c) What is important is the information in the mind of the police officer stopping the person or the vehicle or making the arrest at the time he did so. Having ascertained that information the question is whether that information afforded reasonable grounds for the suspicion which the police officer formed. In answering that question regard must be had to the source of the information and its content, seen in the light of the whole of the surrounding circumstances.

[54] On the information which Cons Barnes had he did not have reasonable grounds to form any of the suspicions mentioned in s.357E. It was not open to him to "reasonably suspect" any of the matters referred to in s.357E. Hence the stopping of the appellant and his vehicle was unlawful."

55. Smart AJ clearly was of the view that there were insufficient grounds for the police to have required the vehicle being driven by the appellant to stop. However, the question then arose as to the drugs found in the vehicle. His Honour said this at [58]:

" As appears from the passage quoted from his reasons, the judge took the view that the appellant's alleged actions, after the Supra had stopped and the police had stopped behind it, in reaching across to the passenger's side of the Supra and appearing to place something in its glovebox might reasonably raise a suspicion within s 357E to enter the mind of the police officer and that he honestly did so. The judge recognized that this was a borderline case. Placing an item in a glovebox at any stage is a very routine matter. Mostly it would be an innocent everyday act not calling for comment. A glovebox is also a place in which stolen or illicit items can be put as numerous cases in the courts have revealed. The Crown relied on the time at which the item appeared to be placed in the glovebox, that is just after the vehicles had stopped and Cons Barnes was leaving the police vehicle to go to the appellant in the Supra. My mind has fluctuated as to whether the appellant's alleged actions were sufficient to ground the reasonable suspicion alleged. Not without doubt I have concluded that it was open to the judge to find that they were. Both the amount of money found, namely, $860 and the quantity of cannabis leaf found, namely 9.4 grams were small.”

In other words, the police officers formed a suspicion that a criminal offence had been committed and that they were entitled to search the car. It was not suggested that before reaching that reasonable suspicion the police needed to ask any questions of the appellant, Mr Rondo, the driver of the car. However, Smart AJ then referred to s 138 of the Evidence Act 1995 and pointed out that in the exercise of his discretion under s 138 the trial judge did not take into account the fact that the Supra was unlawfully stopped and that all that followed thereafter flowed from that initial illegal stopping. His Honour went on to hold that the failure to take such an important matter into account vitiated the judge's exercise of his discretion under s 138.

56. The next case which should be considered is R v Le [2005] NSWCCA 40; 151 A Crim R 564. That was a decision of Barr J with whom Bryson JA and Hoeben J (as his Honour then was) agreed. After quoting what fell from Smart AJ in R v Rondo at [53] his Honour went on to say this:

"[14] One may therefore infer that his Honour proceeded to judgment upon the understanding that Constable Gewargis knew the following when he arrested the appellant -

1. There were two expensive cars, each containing four young occupants, parked close together at 9:55pm, well after dark, on the edge of a reserve;

2. Dealers in illegal drugs often did their business there;

3. The driver of the blue car, in which the appellant was a passenger, behaved suspiciously by driving it off at high speed while the officer was speaking to the driver of the other car; and

4. The two drivers gave the officer inconsistent answers: the first told him that the occupants of the two cars were together but the driver of the appellant’s car told him that he did not know who was in the first car.

[15] His Honour concluded that Constable Gewargis had and was entitled to have the reasonable suspicion required for the exercise of the search and detention rights under s357E. His Honour referred to R v Rondo.

[16] It seems to me that his Honour was entitled, applying what this Court said in R v Rondo to the facts that I have summarised, to find that Constable Gewargis reasonably suspected the appellant of having or conveying any thing unlawfully obtained or used or intended to be used in the commission of an indictable offence. Dealing in any prohibited drug would have been an indictable offence.

[17] His Honour did not deal with the submission about the unlawfulness of the arrest, as it depended upon the power in s352, as opposed to the unlawfulness of the detention and search, dependant on the power arising from s357. It was submitted on appeal that his Honour was bound to find in all the circumstances that the arrest of the appellant was unlawful and that that unlawfulness tainted the search that followed.

[18] I do not accept that submission. First, the evidence of what Constable Gewargis knew was in my view sufficient to ground a suspicion with reasonable cause either that the appellant had committed an offence of the kind contemplated by s352 or that he was loitering in a highway during the night about to commit a serious indictable offence. The dealing in any prohibited drug would have been a serious indictable offence."

It is clear that no opportunity was afforded to the person arrested, the passenger in the blue car, to explain his conduct. No opportunity was given to him to exculpate himself and his appeal to the Court of Criminal Appeal was dismissed. I know of no authority which supports the submissions put to me on behalf of the plaintiff that he was somehow entitled to have his position considered by the police before they arrested him.

57. Indeed, Constable Twindley formed the opinion after hearing the complainant's evidence and considering her position that he ought arrest the plaintiff. If he had tried to interview the plaintiff after forming the view that he had committed a criminal offence he would have been derelict in his duty because the requirements under LEPRA would not have been satisfied. If he wished to interview the plaintiff he ought to have been taken to the police station and an ERISP interview conducted with all the protections which it affords to the person who is suspected of having committed a criminal offence.

58. The fact that somebody may be intoxicated is not a licence for police to escape their obligations under the law, nor is it a reason why police should desist from effecting an arrest, if they think it necessary to do so on proper grounds. I accept entirely that Senior Constable Twindley acted on reasonable grounds in forming his suspicion that the plaintiff had committed an offence of assault. I accept that the complaint made to the police by Vera Savic in her DVEC and the injuries which she sustained and her entire circumstances at the time were reasonable grounds for the suspicion and belief formed by Senior Constable Twindley that the plaintiff had committed an assault.

59. The remaining issue is whether Senior Constable Twindley was satisfied that the arrest was "reasonably necessary" for one of the purposes described in the subparagraphs which I have quoted. He relied upon the need to prevent the plaintiff from committing another offence; the need to protect the safety and welfare of the complainant, Ms Vera Savic, and he relied upon the nature and seriousness of the offence. In its prior form s 99 required a police officer to be satisfied that it was "necessary" to arrest the person in question, not that it was "reasonably necessary" for the police to arrest a person.

60. I considered the difference between "necessary" and "reasonably necessary" in Tilse v State of New South Wales [2013] NSWDC 265; (2013) 17 DCLR (NSW) 177, commencing at [123]. In that paragraph, I said this:

"The first thing to note is the use of the word 'necessary'. A submission has been put to me as to how it ought be construed. 'Necessary' is one of those words which in our language is an absolute: something is necessary or it is not; something is fundamental or it is not; something is basic or it is not; something is essential or it is not; something is unique or it is not. However the words 'reasonably necessary' are sometimes used in statutes, and it is clear that when the adjective is modified by the adverb 'reasonably', that the adverb modifies the absoluteness, or strictness of the necessity."

I maintain that view. It is not necessary for the defence to prove that it was necessary to arrest the plaintiff by satisfying one of the requirements of the subparagraphs to s 99(1)(b) but that it was only "reasonably necessary".

61. It is clear from what fell from members of the Court of Appeal in State of New South Wales v Randall [2017] NSWCA 88 that the question is not whether I am satisfied that the arrest was reasonably necessary, but the question is whether the police officer was satisfied that it was reasonably necessary to effect the arrest for one of the purposes described in the subparagraphs of s99(1)(b).

62. I am persuaded that Senior Constable Twindley was satisfied that the arrest was reasonably necessary in order to prevent a further assault upon Ms Savic by the plaintiff, in essence to protect her safety and, although he did not use the words, included in the protection of her safety was the protection of her from being harassed or interfered with as a person who may be called upon to give evidence in the prosecution of the plaintiff by the police on her complaint.

63. The senior constable also took into account the final subparagraph, the nature and seriousness of the offence, and in that regard, I do not believe his discretion miscarried because as far as assaults occasioning actual bodily harm were concerned, if one believes Vera Savic, as the senior constable did, this was a serious assault involving punching to the head and kicking to the torso, amongst other things.

64. As was pointed out by Basten JA in State of New South Wales v Randall (supra) at [13], a challenge to the existence of a suspicion or state of satisfaction is only available where it can be shown that the suspicion or state of satisfaction was "manifestly unreasonable, or 'arbitrary, capricious, irrational, or not bona fide'". I could not characterise the suspicion and satisfaction of the senior constable as being either unreasonable, arbitrary, capricious, irrational and certainly not "bona fide". I accept that the senior constable acted "bona fide".

65. As is pointed out by Basten JA in the same provision, there must be "reasonable grounds for the suspicion". The import of the word "reasonable" is an import of some objective criterion. Here, the police knew nothing of the antecedents of the plaintiff. They did not know whether he was a person who, when inebriated and then having retired to bed, would not be active again for eight or 12 hours. They knew nothing of why he behaved in the way that Vera said he behaved on this evening. All that was known was that the plaintiff had been drinking "all day", according to Vera. The plaintiff himself admitted to police at the time of his arrest that he consumed half a bottle of whiskey, and they formed a view that he was moderately to well intoxicated and that he ought not be interviewed because of his state of inebriety. Intoxicated persons can do irrational things, things that are completely out of character and things that they later regret doing.

66. It is foreseeable that a person in the position of the plaintiff might seek further to punish Ms Savic for what might be thought to be an act of rejection by her of the plaintiff, or might seek to punish Mr Curtis and/or his family for the succour that they had given to Ms Savic. In particular, as is very common in cases of "domestic violence", the police could validly suspect that the plaintiff might approach Vera and interfere with her, try to dissuade her from pressing her complaint to the police, try to induce her to desist in with her complaint, try to persuade her to desist from assisting the police with their inquiries, try to desist in her prosecuting the criminal proceedings that were anticipated because of his assault upon her, by getting her to withdraw her complaint or change her story.

67. However, the only grounds relied upon by Senior Constable Twindley were the grounds that I had previously quoted, to prevent any repetition of the offence, that is the assault upon Vera, and because of the seriousness of the offence and for "her protection" which of course could be envisaged in s 99(1)(b)(vii).

68. I am therefore persuaded on the balance of probabilities that Senior Constable Twindley was satisfied that the arrest was reasonably necessary on grounds set out in s 99(1)(b)(i), (vii), (viii) and (ix). The State of New South Wales, the defendant in these proceedings, has persuaded me that the arrest was lawful.

Disposition

69. Therefore, the two officers of police were entitled under s 10 to enter the defendant's premises and arrest him. In any event, they had been invited into those premises by the plaintiff's flat mate who had ostensible authority to do what he did. The claim in trespass to land must fail.

70. The claim in respect of false imprisonment must likewise fail as the arrest was lawful. There was no formal complaint about how the plaintiff was dealt with at the police station in the statement of claim, although certain complaints were made in evidence, but I am not persuaded that those complaints are valid.

71. Likewise, the claim of assault must fail because the police were entitled to take hold of the plaintiff by his left elbow, without injuring him, in order to escort him from his home to the police vehicle, to ensure that he did not seek to escape custody, and in order to keep him steady as he walked to the police vehicle because, according to the police evidence, he was somewhat unsteady on his feet because of his state of intoxication.

LEPRA s202

72. In finding that the arrest was lawful, I take into account the requirements of s 202 of LEPRA. Section 202(1) is in these terms:

"A police officer who exercises a power to which this Part applies must provide the following to the person the subject of the exercise of the power:

(a) evidence that the police officer is a police officer (unless the police officer is in uniform),

(b) the name of the police officer and his or her place of duty,

(c) the reason for the exercise of the power."

Both Senior Constable Twindley and Senior Constable Attard were in uniform. I accept the evidence of Senior Constable Twindley that he announced his office and his name and identified the office and name of his partner, Senior Constable Attard and that he advised the plaintiff that he was from the Tweed Heads Police. The relevant evidence is contained at p 89, commencing at line 4 of the transcript.

73. I accept that Senior Constable Twindley told the plaintiff that he was under arrest for "domestic assault". Indeed, in the statement of claim, it is alleged in par 4, that the plaintiff was told that "He was under arrest for domestic violence". I accept that the plaintiff was not told by Senior Constable Twindley that he was under arrest for assault of Vera Savic. However, the plaintiff well knew why he was being arrested.

74. The plaintiff was cross-examined about this issue commencing on p 60 line 16 of the transcript. He maintained initially, that he heard the words that he was "under arrest". His attention was then drawn to the pleading to which I have just referred and then this evidence was given:

"That's what's alleged in these proceedings. For your lawyers to plead that, pleaded means state in that document, you must've told him that you are under arrest for domestic violence, do you agree with that?

A. Yes."

He well knew that the issue for which the police had approached him, was because of his interaction with Vera Savic.

75. The evidence does not disclose any relationship that the plaintiff had with any other person that could be described as a "domestic relationship". When he was told that he was under arrest for "domestic assault", the only person to whom that could be referring was Vera Savic and the plaintiff well knew that. He knew at all material times, that the police had come because of what had happened earlier that evening, between him and Vera Savic.

76. The topic now in issue had been discussed by the Court of Appeal in Johnstone v State of New South Wales [2010] NSWCA 70; 2002 A Crim R 422. The issue was considered at some length by Beazley JA (as her Honour then was). Section 202 reflects the common law and is generally known as the rule in Christie v Leachinsky [1947] AC 573. Her Honour concluded this:

"[56] In my opinion, Basten JA’s comment that the common law requirement as to arrest does not involve drawing a distinction between two different categories of information is correct. What must be determined is whether what a person was told was sufficient, so as to be informed of the true reason for the arrest. What is required will depend on the particular circumstances and will range from not needing to be told anything to being told both the facts which have given the police officer cause for suspicion that an offence has been committed, as well as what that suspected offence is.

[57] The question whether what the person was told was sufficient “has to be assessed objectively having regard to the information which is reasonably available to the officer”: Abbassy and another v Commissioner of Police of the Metropolis [1990] 1 All ER 193 per Woolf LJ at 197. His Lordship referred to Taylor v Chief Constable of Thames Valley Police at 3164. In Taylor, Clarke LJ considered that the “best statement” of these principles was to be found in Fox v UK (1991) 13 EHRR 157, where the European Court of Human Rights stated:

“… any person arrested must be told in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness … Whether the content … of the information conveyed [is] sufficient is be assessed in each case according to its [own] special features.”

A similar approach had been taken by Manse LJ in Wilson v Chief Constable of the Lancashire Constabulary [2000] All ER (D) 1949.

[58] The reference in Fox v UK to the need to state the “legal grounds” for arrest undoubtedly derived from the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, art 5(2), which provides that a person must be told the reason for the arrest and any charge against him. The common law principle does not require a statement of the charge. Nonetheless, there may be circumstances in which the crime has to be indicated. Thus, in State of New South Wales v Delly, each of their Honours considered that the respondent needed to be told that she was being arrested in relation to the murder and why that was so."

As her Honour said, the important question is, whether what the person was told is sufficient to be informed of the true reason of the arrest. The plaintiff well knew that his arrest was for assault and the only person that he was alleged to have assaulted was Vera Savic. I therefore am satisfied that the police in the current matter, complied with the rule in Christie v Leachinsky, that they complied with the requirements of s 202 of LEPRA.

Alternatives to arrest

77. Senior Constable Twindley was cross-examined at some length about the alternatives that may have been available to him, as the arresting police officer. The relevant part of the cross-examination of Senior Constable Twindley can be found between pp 101 and 105 of the transcript. I shall not quote it, because of a lack of time. However, I am satisfied that the senior constable, honestly and on good grounds, believed that it was necessary to arrest the plaintiff for the reasons which he gave, consistent with his obligations under s 99 of LEPRA.

Credibility

78. Lest the matter go further I should say this. I have no hesitation in accepting the evidence of the two police officers, Senior Constable Twindley and Senior Constable Attard. There are some minor inconsistencies between the two, but that is explicable by the passage of time and the fact that arresting offenders is something that police must unfortunately do, regularly, probably every shift, that they complete in their working lives. There is no inconsistency of any moment in their evidence.

79. I did not form a favourable view of the plaintiff. His approach to giving evidence was as if he were telling his "mates" at the pub what had happened to him. He called everyone “mate”, including me. That is not unusual in our society but it shows certainly an absence of a sense of formality and an absence of a sense of solemnity when giving evidence. It is clear that there are a number of inconsistencies in his evidence internally and inconsistencies between his evidence and that of the police and I clearly prefer the evidence of the police officers. Furthermore, his evidence in my view was marked by hyperbole and I do not believe he had the fear that he referred to on a large number of occasions.

80. Any further reasons for judgment required, gentlemen?

GOLLAN: No.

HIS HONOUR: I have inquired of the solicitor for the plaintiff and counsel for the defendant whether any further reasons for judgment are required and none is required. For those reasons I give verdict in judgment for the defendant against the plaintiff.

(SUBMISSIONS CONCERNING COSTS)

81. HIS HONOUR: I order the plaintiff to pay the defendant's costs on the ordinary basis until 24 May 2017 and I order the plaintiff pay the defendant's costs on the indemnity basis from 25 May 2017.

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Decision last updated: 15 September 2017