Biddle v State of Victoria

THE SUPREME COURT OF VICTORIA

Not Restricted

AT SHEPPARTON

COMMON LAW DIVISION

S CI 2013 04073

BRYAN LESLIE BIDDLE	Plaintiff
v
STATE OF VICTORIA MICHELLE WENDY DOWELL JOEL HUGHES JOHN TREBILCOCK	Defendants

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JUDGE:	KAYE JA
WHERE HELD:	Shepparton
DATE OF HEARING:	25–29 May, 1–5, 9, 10 June 2015
DATE OF JUDGMENT:	17 June 2015
CASE MAY BE CITED AS:	Biddle v State of Victoria & Ors
MEDIUM NEUTRAL CITATION:	[2015] VSC 275

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TORTS – Assault – False imprisonment – Plaintiff arrested without warrant by police for breach of intervention order – Whether police had reasonable grounds to believe plaintiff had breached order – Whether police used unnecessary or disproportionate force to effect arrest – Whether police informed plaintiff of arrest and reason for arrest – Whether plaintiff brought before bail justice within reasonable time of arrest.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Monti QC with Mr R Morrow	Nevin Lenne & Gross
For the First Defendant	Mr R Gipp	Victorian Government Solicitors Office
For the Second, Third and Fourth Defendants	Mr P Lawrie	Moray & Agnew Lawyers

HIS HONOUR:

The second, third and fourth named defendants (collectively referred to as ‘the police defendants’) are members of Victoria Police. At the time of the events with which this case is concerned, they were stationed at Euroa police station. The plaintiff brings this proceeding against the police defendants, and against the State of Victoria (as the first defendant) claiming damages arising out of the arrest of him by the police defendants on 19 April 2011 at the Honeysuckle Caravan Park, Violet Town. The plaintiff claims that as a result of the circumstances in which he was arrested, and subsequently detained, he has suffered injury, and in particular psychological injuries. The plaintiff’s claim for damages is based on causes of action in assault and false imprisonment.

It is common ground that at about 10:30pm on 19 April 2011, the police defendants attended at the home of the plaintiff, and his wife, Dorothy Biddle (“Dorothy”), which was located in the caravan park, in order to arrest him on the grounds that he had breached an intervention order taken out against him by Antoinette Gerada (‘Gerada’). In the course of the arrest, a struggle ensued. During the removal of the plaintiff from the house, one or more of the police defendants activated capsicum spray in his direction. After the plaintiff was removed from the house, he was conveyed, first, to Shepparton police station, and, early on the next day to the Benalla police station, and then to Wangaratta police station. He was granted bail by the Wangaratta court late in the afternoon of 20 April 2011.

The plaintiff and his wife, Dorothy, and the three police defendants, each gave evidence as to the circumstances in which the plaintiff was apprehended at the caravan park and taken into police custody. The evidence given by the plaintiff and his wife conflicts, in a number of important respects, with the evidence given by the three police defendants, as to the circumstances in which he was apprehended and removed from the house.

The arrest was effected by the three police defendants without a warrant. They purported to arrest him under s 124 of the Family Violence Protection Act 2008 (the ‘Act’), which provides that if a police officer believes, on reasonable grounds, that a person has committed an offence by contravening a family violence order, the officer may, without warrant, arrest and detain that person.

The principal issues in the case include the following:

(1)Whether the police defendants believed on reasonable grounds that the plaintiff had committed an offence against s 123 of the Act, by contravening the interim intervention order obtained against him by Gerada.
(2)Whether the police defendants executed the arrest of the plaintiff in a lawful manner. In particular, there is an issue as to whether the police defendants, when apprehending the plaintiff, advised him that he was under arrest and of the reason for his arrest.
(3)Whether the police defendants used unnecessary and disproportionate force in effecting the arrest of the plaintiff.
(4)In particular, whether the police defendants used excessive force by discharging the capsicum spray at the plaintiff, and by placing handcuffs on him after he had been subdued by the capsicum spray.
(5)Whether the plaintiff was brought before a bail justice within a reasonable time of having been taken into custody by the police defendants.

The plaintiff joined the first defendant, the State of Victoria, claiming that the first defendant is liable in respect of the torts alleged to have been committed by the police defendants pursuant to s 123 of the Police Regulation Act 1958. In the course of the proceeding, the first defendant accepted that, pursuant to that provision, it would be liable to the plaintiff, in the event that the police defendants were found to have committed any of the torts alleged by the plaintiff.

Background

Quite detailed evidence was given as to the plaintiff’s background and as to the circumstances leading to the events of 19 April 2011. That evidence was relevant to provide a context to the events that occurred on the night in question.

The plaintiff is 63 years of age. He married Dorothy in 1971. There are three adult children of the marriage. The plaintiff and Dorothy lived initially in Benalla, and then in Euroa. During that time, the plaintiff worked as a house relocator and renovator. It appears that he established a successful business in that capacity. Dorothy was a trained nurse. For almost one decade she worked with people who suffered from acquired brain injury.

In 2003, the plaintiff commenced a large contract with Bunnings in Frankston, that involved the demolition of four blocks of housing. At that time, he commenced drinking quite heavily, so much so that it adversely affected his ability to carry out his work and complete the contract. Ultimately, it was necessary for Dorothy to engage other contractors to ensure that the contract was completed.

In 2005, Dorothy purchased and commenced to operate the caravan park at Violet Town. In the subsequent year, 2006, Bryan fell off a roof while working in Frankston and injured his shoulder. He underwent surgery in January 2007, and he has not worked since. In the meantime, his alcohol consumption escalated, and he was intoxicated for most of every day. He persistently resisted the repeated efforts by Dorothy to wean him off alcohol.

In April 2007, Dorothy employed Gerada to work in the caravan park as a cleaner. In due course, Gerada became a regular drinking companion with Bryan. Their relationship evolved, and Bryan commenced to have an affair with her. Dorothy terminated Gerada’s employment at the caravan park, but Gerada continued to come to the caravan park to drink and associate with the plaintiff. Ultimately, in July 2008, Dorothy excluded the plaintiff from their home at the caravan park, and he went to live in the house then owned by himself and Dorothy in Euroa.

In the meantime, the plaintiff had been prescribed anti-depressant medication by his general practitioner. Dorothy stated she had noted signs of the onset of a depressive disorder in the plaintiff as far back as 2003, at the time that he gained the contract in Frankston. His mental state was not helped by his continued abuse of alcohol. The plaintiff continued to drink excessive quantities of alcohol, notwithstanding the advice of his doctor that he should not do so while taking anti-depressant medication.

In 2010, Dorothy had to sell the Euroa house because of financial difficulties. As a result, the plaintiff returned to live at the caravan park in March 2010. From then on, he and Dorothy have lived in the same house in the caravan park, but they have no longer lived together as husband and wife.

After his return to the caravan park, the plaintiff continued to associate with Gerada, and he continued to drink large quantities of alcohol each day. Dorothy visited Gerada in October 2010 to ask her to cease giving him alcohol. In response, Gerada violently assaulted Dorothy.

In early 2011, the relationship between the plaintiff and Gerada ultimately broke down. An incident occurred on 16 March, outside Gerada’s home in Euroa. There was little evidence relating to the details of that incident, but it would appear that, in one way or another, the plaintiff either spilled, or threw, a bottle of beer, or its contents, into the house, or onto the property, in which Gerada was then living.

On 5 April 2011, Gerada obtained an interim intervention order against the plaintiff. On the next day, 6 April, Gerada, who was then residing at premises at White Street, Euroa, made a complaint that the plaintiff had breached the intervention order. On 7 April, the plaintiff was arrested by the third defendant, Sergeant Hughes (then Leading Senior Constable Hughes) (‘Hughes’) and Leading Senior Constable Storer. He was interviewed, and bailed, in respect of charges arising from the events of 6 April and the events of 16 March.

On 10 April, the second defendant, Senior Constable Dowell (‘Dowell’)[1] received a complaint that the plaintiff had been contacting, and abusing, members of Gerada’s family. She attended at the caravan park and spoke to the plaintiff. There is a conflict in the evidence, as to the circumstances of that attendance by Dowell at the caravan park. Both Dorothy and the plaintiff stated that on that morning Dowell came into the office, thumped her fist on the counter, pointed aggressively at the plaintiff who was sitting in the office, and in a stern loud voice directed him not to ring Gerada’s former father in law anymore. As a result, the plaintiff ran out of the office and touched the bonnet of Dowell’s vehicle, as she was departing, and told her she should not drive so quickly. On the other hand, in her evidence, Dowell stated that when she attended the caravan park on the morning of 10 April, she did not speak to the plaintiff in an aggressive tone. She was working on her own and she did not want to provoke a confrontation with the plaintiff. She denied that she thumped the counter. Rather, she simply told the plaintiff that he should stop contacting Gerada’s father in law. When she left, the plaintiff ran out after her and yelled something at her about Gerada’s son and about the speed at which she had driven.
[1]Since these events, Senior Constable Dowell has married, and her surname now is Mason. However, for the purpose of these reasons, I shall use the surname that she had at the time of the events.

The plaintiff was disturbed by the exchange which he had had with Dowell on that occasion. At 1:40pm, he telephoned the psychiatric nurse at Goulburn Valley Area Mental Health Service. In the course of that telephone call, he was agitated and not speaking coherently. There is a conflict in the evidence as to precisely what he said. It is common ground that, in one way or another, he made mention of the fact that he might shoot the police or, at least, he could shoot some person. As a result of that telephone call, the three police defendants, together with other police members, including Senior Constable Brendan Lynch, attended at the caravan park on the same afternoon. Senior Constable Lynch, who is now deceased, had had previous contact with the plaintiff, and he had a good rapport with him. He spoke with the plaintiff for some time, and managed to calm him down. As a result, the police left the premises.

In his evidence, Hughes stated that the plaintiff visited him at Euroa police station on 14 April to discuss the charges that had been laid against him arising from the events of 16 March and 6 April. Hughes stated that the plaintiff became aggressive and angry during the conversation, and that Hughes required him to leave the police station. In his evidence, the plaintiff denied that the conversation occurred. For reasons that I shall detail later, I am satisfied, on the evidence of Hughes, that that conversation did occur.

Those are the circumstances that form the background to the events of 19 April. As I stated, there is a significant conflict in the evidence as to the circumstances in which the plaintiff was arrested. It is not in dispute that, on that day, the plaintiff commenced drinking alcohol heavily in the afternoon. Later in the day, at about 5:00pm or 6:00pm, he went to the Ellen Frances Hotel in Violet Town, accompanied by two other residents of the caravan park, Bradley Quinn and Ashley Haroba. They continued to drink at the hotel for between two hours and three hours and then the plaintiff made his way home. After the plaintiff arrived home, Dorothy ensured that he went to bed at about 9:30pm. According to Dorothy, approximately one hour later, at 10:30pm, the three police defendants attended at the home to effect his arrest.

The plaintiff’s home

In order to understand the evidence given about the arrest of the plaintiff, it was necessary to conduct a view of the premises. The parties also tendered a sketch of the front office.

The front of the house opens onto a porch. There are two doors that open onto the porch, namely, a door to the office (on the left) and a door to the lounge area (on the right). If the premises are entered through the door to the office, there is a desk on the right hand side. One side of the desk abuts the front wall of the premises. Accordingly, in order to enter the living the quarters via the office, it is necessary to traverse the desk in a clockwise manner. From there, a second door to the office opens onto a corridor on the left. At the end of that corridor is the plaintiff’s bedroom. Opposite the office door is the kitchen and lounge room. There is a rear sliding door at the back of the lounge room. To the right of the house is a carport. If one exits through the rear sliding door, and turns right through the carport, one can return to the front of the premises. The house itself is quite small, and, in particular, the front office, the lounge, and the plaintiff’s bedroom are all quite confined in space.

The events of 19 and 20 April 2011: the evidence

The evidence of the plaintiff and Dorothy, on the one hand, and the evidence of the police defendants on the other, differ in a significant number of respects concerning the circumstances in which the plaintiff was arrested in, and removed from, his home at the caravan park. Consequently, it is necessary to summarise the evidence of the principal witnesses in some detail.

The plaintiff and Dorothy each gave evidence. Although Dorothy gave evidence before the plaintiff, it is appropriate to summarise the plaintiff’s evidence first.

The plaintiff stated that on 19 April he travelled to Shepparton with his brother, and returned in the early afternoon. He then drank beer in the barbecue area of the caravan park. At that stage, he drank about six stubbies of beer. He was joined by Bradley Quinn, another resident of the caravan park, and they continued to drink together until 5:00pm or 6:00pm. By that stage, they had run out of beer, and therefore they went to the hotel. They were accompanied by Ashley Haroba.

At the hotel, the plaintiff, Quinn, and Haroba each drank four stubbies of beer. Quinn asked the plaintiff whether he had finished his relationship with Gerada. When the plaintiff confirmed that that was so, Quinn took possession of the plaintiff’s telephone, which contained the telephone number of Gerada. Quinn entered that number into his own telephone and dialled it. Quinn, Haroba and the plaintiff then left the hotel to return to the caravan park. They set off down the main street of Violet Town towards High Street. Quinn asked the plaintiff if he knew where Gerada lived. In response, the plaintiff said that he did not know where she lived, but he indicated a house where he thought she lived. They then walked to the caravan park. The plaintiff waited in the carport area, because he knew that Dorothy would be angry with him. Quinn disappeared for a short time, and returned, and told the plaintiff that Dorothy wanted him in the house.

The plaintiff then entered the house. Dorothy gave him a cup of tea, and sent him to bed. The plaintiff removed his outer clothing, got into bed, and fell asleep. He next recollected lying on his left hand side with the doona over his face. Someone had hold of his right foot and was shaking it and yelling, “Hey tough man, give us a look at you”. The plaintiff woke up and saw the three police defendants there, who, in his evidence, he described as “shadows”. He said, “What the fuck’s going on?”. The police told him to get out of bed. The plaintiff swung around and sat on the side of the bed in a bent position. All of a sudden one policeman (who he identified as Sergeant Trebilcock) grabbed him by the right arm and threw him off the bed, because he was moving too slowly. The smaller member (Dowell) disappeared up the passageway. The third policeman (Hughes) was standing towards the window. The plaintiff sat on the side of the bed and said “Just fuck off”. Sergeant Trebilcock (“Trebilcock”) did not respond. He pushed the plaintiff through the bedroom door and into the passageway.

As the plaintiff went into the passageway, he was shoved onto the floor. Trebilcock walked or crawled over the top of him to the front. Trebilcock then grabbed one arm and dragged the plaintiff in a headlock with his other arm underneath him. The plaintiff kept saying, “Just let me go I’ll walk, I can walk, I’ve got two legs.” The plaintiff said that he was then dragged, while prone, to the door of the office. He was then dragged around the corner. One of his legs became hooked in the front counter. He said that that is where “they” dropped him. Trebilcock was lying over the top of him at one end, and Hughes was lying over the back side of him on one knee. He heard Dowell yelling out, “Will I spray him, will I spray him?”. He then heard the spray canister being deployed. He felt the spray run down his leg, and it suddenly started to burn his leg. It ran down his leg and went into his anus. His penis was burning and he said “I’m on fire”. He said that the first contact with the spray was on the inside of his right thigh in the groin area.

The plaintiff said that the canister continued to spray. It came over the top of him and burnt his neck, ears and head. He then felt a smack in the teeth, the spray was deployed directly into his mouth and it burnt his throat and lungs. He heard the two police run out of the house, coughing and yelling at Dowell to “stop spraying, you’re killing us”. The plaintiff went to crawl through the front door to access some fresh air. One of the policemen came back through the front door, grabbed him by one arm and dragged him across the concrete. As the surface of the concrete is uneven and rough, he suffered some abrasions to the arm.

The plaintiff stated that when he got outside, Trebilcock jumped on his back again, knocking the wind out of him. He grabbed the plaintiff’s right arm and handcuffed it. The plaintiff warned him to be careful of his left arm, because it had been broken. Trebilcock then pulled the plaintiff’s left arm behind him, and handcuffed him. He was then led to the back of the divisional van and left there.

In the meantime, the police went to the hose which was nearby and washed their faces and eyes. They came back drenched. The plaintiff told Dorothy, “I have to have a shit”. He then soiled his trousers and said, “Too late, I’ve shit myself.” Two male police then walked him over to the hose. Dowell stuck the hose down the rear of his underpants, and washed faeces over the back of his legs and through his toes. He was then marched to the divisional van. The handcuffs were removed. He slid inside the divisional van. Dorothy came with a bowl and a flannel to clean his face.

The plaintiff stated that at no time did the police treat him for the effects of the capsicum spray. He said that when he was in the bedroom he had asked the police “What the hell is going on”, and they said “You’ll find out”. It was only when he was in the back of the divisional van that he was told that he was being arrested because he had breached an intervention order. While he was in the van, Dorothy handed him some clean clothes, but he was not given the opportunity to put them on.

The divisional van departed the scene. The plaintiff wished to urinate. He said at that stage his throat, stomach and anus were on fire and his penis was burning. The police stopped the van at his request so he could urinate but he was unable to do so. He was then conveyed to the cells of the Shepparton Police Station. He was permitted to shower, but he did so with difficulty, because he had to keep one finger on the button of the shower. He was unable to completely wash the faeces out of his feet. At that stage, he was given some clothing, consisting of tracksuit pants, and what he described as a “girl’s” high school top. He was not given any underwear, or footwear. The plaintiff was then placed in a cell. He was not offered, or given, any treatment in relation to the effects of the capsicum spray.

The plaintiff stated that he was taken to a bail justice during the early hours of the morning and refused bail. Later that morning, still clothed in the tracksuit pants and the top provided by the police, he was conveyed to another police station, where he was detained. At about 10:00am, he was driven to Wangaratta in the back of the divisional van and placed in the Wangaratta lockup. Subsequently, he was driven to the court house. There, he was provided with an old pair of boots without shoes. Later in the afternoon, when his case came on for hearing, the magistrate granted him bail on his release into the custody of his wife.

In cross-examination, the plaintiff denied that, while he was in the bedroom, Trebilcock had told him he was under arrest for breach of an intervention order and that Trebilcock was going to apply for a Family Violence Safety Notice. He also denied that he had lunged at Trebilcock with a clenched fist and challenged Trebilcock to a fight. He denied that he walked out of the bedroom under his own steam, and reiterated that Trebilcock had pushed him through the door. He denied that he got hold of the architrave of the door between the hall and the office area. He denied that Trebilcock had put him in a bear hug.

The plaintiff agreed that he had had ‘a fair bit’ to drink that night. When the police came, he was in a deep sleep and only woke gradually. When the police took hold of him, he was still affected by alcohol, but he could remember what happened. He said that when Dowell “smashed” the capsicum canister in his teeth, it removed a chip from the front of his middle tooth. However, he did not consult a dentist concerning it. He said that when he saw Dr Buckley about nine days after the event, he did not tell him that he had suffered an aggravation of the injury to his shoulder, when he was handcuffed.

The plaintiff said that as a consequence of being dragged across the porch he had sustained abrasions to his right arm and there was blood dripping from his arm, but Dorothy did not take a photograph of that injury. The plaintiff stated that the only time the hose was used to clean him was after he had soiled his underpants. He denied that he was interviewed by Dowell at Shepparton Police Station concerning the alleged breach of the intervention order. He also denied that at Shepparton Police Station he was offered and refused breakfast and a shower in the morning. He agreed that, on the advice of his solicitor, he ultimately pleaded guilty, at Benalla court on 8 November 2011, to one charge of resisting police in the execution of their duty and one charge of breaching an intervention order.

Dorothy Biddle, in her evidence, stated that she first saw the plaintiff on 19 April in the morning, when he left with his brother to go to Shepparton. She next saw him at 9:00pm. He was drunk, and was brought home by Quinn and Haroba. Before they arrived home, Quinn had telephoned her between 8.00pm and 8.30pm, to tell her that the plaintiff was drunk and out of control, and that he had rung the police. As a result, Dorothy telephoned the police and spoke to Trebilcock. She told him that she did not need police assistance, and that she was capable of looking after the plaintiff. She said that Trebilcock appeared to be concerned for her safety, but she reassured him that she would be all right. She denied that she was shaking or panicking during that telephone conversation.

Dorothy stated that Quinn then came to their house at about 8:35pm. While he was speaking with her, he received a telephone call on his mobile phone. Dorothy recognised Gerada’s voice, saying “I’ve received a missed call from this number, who are you?”. Quinn responded that he lived in Violet Town, but he did not make the call. At the conclusion of that telephone conversation, Dorothy asked Quinn how he got the telephone number, and he said he had taken it out of the plaintiff’s telephone.

Quinn and Haroba then brought the plaintiff home at about 9:00pm. Dorothy gave him a cup of tea, and told him to go to bed. The plaintiff went to his bedroom at 9.20pm. Shortly afterwards she heard him snoring. She lay down on the couch to watch television, but fell asleep.

Dorothy then heard the doorbell ringing. She went through the office and opened the office door. Three police officers were there. They walked in and asked her where the plaintiff was. She said, “In bed, why?”. Dowell responded, “Violation of an intervention order.” Dorothy offered to fetch the plaintiff. The police said “No, we’ll get him.” Dorothy indicated the plaintiff’s bedroom. The police told her to stay back, and they proceeded to the plaintiff’s room. She heard a male voice say, “Hey tough man, hey tough man.” She then heard the plaintiff calling “Dot help me, Dot help me.”

Dorothy walked to the bedroom door and looked inside. The plaintiff was sitting in his boxer shorts and singlet on the side of the bed. Dowell was beside the door. One policeman was towards the window side of the bed, and the other was at the right hand corner of the bed. The police told her to go back. Dorothy obeyed, and she stood in the doorway of the hallway and the lounge room. Dowell followed her down the hallway, and asked her if the plaintiff could have got out that night. Dorothy said that he could have, but he would have had to be very quiet, or she would have heard him.

Dorothy then heard a commotion at the plaintiff’s bedroom door. She saw the police bringing the plaintiff through the door. He was yelling out “Fuck off you…fuck off …get out of my room”. She saw two police officers, one on either side of him, and each holding one of his arms. They dragged the plaintiff on his knees down the hallway. The plaintiff continued to shout expletives, “Fuck off, fuck off.” One policeman was slightly in front of the plaintiff pulling him, and the other was behind him, pushing him.

Dorothy said that the plaintiff was then dragged into the office by the two male police. Dorothy said that she stood at the doorway adjacent to the doorway of the office. Dowell followed the plaintiff and the other two police into the office. The plaintiff was dragged around the desk. One of the policemen had him in a headlock, and the other was behind him. He was dragged around the counter. Dowell stood behind the counter. She said, “Will I spray him, will I spray him?”. The plaintiff was on the floor being held by his arms and legs. Dowell then walked around the front of the counter. Dorothy stepped up against the counter. Dowell crouched down. Dorothy heard the spray, and she immediately felt her face burning. The plaintiff then said, “My arse is on fire.” The three police then took him out the front door, and Dorothy exited through the back door and around through the carport. There she saw the two police officers, each on either side of the plaintiff, escorting him to the divisional van. She said that, at no stage until then, had she heard the plaintiff being told he was under arrest or why he was being apprehended. The plaintiff was asking, “What do you want, what do you want?”.

The plaintiff was taken to the divisional van. He had been handcuffed. He kept saying, “My arse is on fire and my dick’s on fire.” He told Dorothy that he needed to go to the toilet. He took two steps and said, “Too late, I shit myself”. Dorothy asked the police if she could take the plaintiff inside, so that he could have a shower. They refused. Instead, Dowell put the hose down the back of the plaintiff’s underpants and tried to wash him.

The plaintiff continued to say, “My arse in on fire.” He was put into the divisional van. Dorothy put a bowl of water and a flannel and a towel in the back of the divisional van. She also got some fresh clothing for the plaintiff which she gave to Dowell. The divisional van, containing the plaintiff, then left.

At about 2:00am, Trebilcock telephoned Dorothy to say that the plaintiff was being kept in the Shepparton gaol overnight. He said that the plaintiff was calm, but crying. Dorothy told Trebilcock that the plaintiff was on medication, and Trebilcock said that that would be taken care of.

Subsequently, at about 8:00am, Trebilcock telephoned Dorothy again. They had a lengthy and pleasant conversation in which they discussed people with depression and alcohol problems. Trebilcock told Dorothy that the plaintiff would be taken to Wangaratta Court that morning.

When Dorothy arrived at Wangaratta Court that morning, a police officer gave her a piece of paper to sign. It was an application by the police, on her behalf, for a Family Violence Safety Notice. Dorothy said that she refused to sign it. She handed some fresh clothes to the police to give to the plaintiff, but they refused to take them, because the shoes she gave them had laces in them.

The plaintiff was brought into court at about 5:00pm. Dowell made an application for an intervention order on Dorothy’s behalf. Dowell gave evidence and then Dorothy gave evidence. Dorothy told the Magistrate that she was never under threat from the plaintiff, and she was not scared of him. She said she needed help to deal with the plaintiff’s medical and mental health issues. She denied that she had previously said to Trebilcock that she had been subjected to numerous assaults and injuries at the hands of the plaintiff. The police also opposed the plaintiff being granted bail that day. The Magistrate, however, granted the plaintiff bail on the condition that he reside with and remain under the care and protection of Dorothy. He was also placed on a curfew, and was required to attend medical appointments with her.

Dorothy stated that, on 20 April, she telephoned Quinn to find out what had happened on the previous day. In the course of the conversation, Quinn said that he had been to Gerada’s house earlier in the day, he had poured something out of a stubby down the vents of her car, and he had left the stubby sitting near a tree by her front gate. Dorothy drove to Gerada’s house and had a look. She saw the stubby near a shrub on the nature strip in front of her house.

Dorothy also stated that subsequently on 1 May she telephoned Seymour police to complain to Ethical Standards about the intervention order that was taken out on her behalf. She was advised that it was permissible for the police to take out an intervention order on behalf of someone they thought was in danger.

In cross-examination, Dorothy was asked questions about the telephone conversation that she had with Trebilcock, after Quinn had told her that he had telephoned the police. Dorothy denied that, in that conversation, she told Trebilcock that she had been subjected to emotional and physical abuse from the plaintiff when he was affected by alcohol. She denied that she said that she had seen doctors or been to emergency departments in relation to injuries she sustained as a result of that abuse. She agreed that in that telephone conversation Trebilcock sounded concerned for her safety, and he kept asking her if she was sure that she did not want the police to attend.

Dorothy stated that the back door to their house is less noisy now than it used to be, because the plaintiff had replaced the roller on it. She said that previously, it would make a lot of noise, unless it was opened very carefully. In re-examination, she said that Bryan was incapable of opening the door carefully or slowly in the condition that he was in that night.

In cross-examination, Dorothy denied that, when the police arrived at the house on 19 April, they immediately asked her whether the plaintiff could have left the house that evening. She reiterated that Dowell asked her that question later in the lounge room, while the other two police were with the plaintiff in the bedroom. She reiterated that when the plaintiff was forcibly pulled from the bedroom, he was on his knees with a policeman either side of him. She denied that Dowell was the first police officer into the office area. Rather, Trebilcock and Hughes entered the office before Dowell. She denied that Hughes deployed the capsicum spray at all. She also denied that later, when they were outside the house, the police supplied any after care to the plaintiff.

Dorothy stated that when she gave evidence at the Wangaratta Court, she was unprepared to give evidence, and that she was then concentrating on disputing Dowell’s application for a Family Violence Safety Notice. A recording of the evidence, given by Dorothy at the Wangaratta Court, was played to her in cross-examination. I shall refer in greater detail to that recording later. In her evidence to the Magistrates’ Court, Dorothy described the events that occurred on 19 April after the police arrived at the house. She described how she could hear what was going on after the plaintiff had been brought into the office by the police. It was pointed out to Dorothy, that that testimony at the Magistrates’ Court was inconsistent with the evidence that she gave before me, namely, that she was in the office when Bryan was sprayed. Further, in her evidence before the Magistrates’ Court, Dorothy described how the police used the hose to wash Bryan down because he was in agony, and she said, “All the time the police were trying to disperse the capsicum spray off him.” It was pointed out that that evidence was also inconsistent with her evidence in this case. Dorothy stated that in the Magistrates’ Court she was extremely nervous, that she gave a jumbled and rambling version of the events, and that, before she gave evidence, Dowell had given evidence. Dorothy said, “That’s where I took my recollection of it from.” She said that only later, when she reflected on the events of the evening, could she recall accurately what had happened.

Dorothy again reiterated in cross-examination that the police did not use the hose to wash the plaintiff’s face. She said that Trebilcock and Hughes only used it to wash their own faces, notwithstanding that the plaintiff was in distress and saying his “arse was on fire.” She stated that her memory of the events had changed since she gave evidence at the Wangaratta Court. She now has a clear recollection of the events. She said that after the plaintiff had soiled himself, Dowell, not Trebilcock used the hose to wash the back of his underwear. She thought that it was inappropriate for a policewoman to do that, but she did not say anything in protest.

Dorothy agreed that the next morning at 8:00am she had a lengthy and friendly conversation with Trebilcock concerning depression and alcohol abuse. Trebilcock was very understanding of Bryan’s problems, and he told Dorothy that she could call him at any time if she wanted to have a “chat”. Trebilcock’s tone was one of concern and empathy. When she drove the plaintiff home that night after court, she said to the plaintiff that Trebilcock “is a lovely person, he said you could ring him at any time.” She also agreed that when she telephoned the member of the Ethical Standards Department at Seymour Police, she did not complain about the treatment by the police of the plaintiff on the evening of 19 April. Rather, she complained about the fact that Dowell had tried to make an application for an intervention order on her behalf, without her consent.

Each of the three police defendants gave evidence. Before 19 April, Hughes and Dowell had been stationed at the Euroa Police Station for some time. Trebilcock was a Sergeant at Shepparton Police Station. He first worked at the Euroa Police Station on the evening of 19 April, when he was posted there for temporary duties.

Sergeant Hughes gave evidence as to the previous contact that he had had with the plaintiff on 7 April, 10 April, and 14 April. He said that on 19 April, Dowell, Trebilcock and he commenced duty at 4:00pm together. At 8:30pm, Trebilcock told him that he had received a phone call from Bradley Quinn. Quinn had told Trebilcock that the plaintiff was at the caravan park in an intoxicated state, and he was causing problems. As a result of that information, Dowell and Hughes each briefed Trebilcock in relation to their recent dealings with the plaintiff.

About 30 minutes later, Trebilcock received a telephone call from Dorothy. Trebilcock told Hughes and Dowell that Dorothy had requested that the police not attend, that the plaintiff was intoxicated and she would put him to bed. The three police spoke together and decided not to attend, unless there were any further incidents.

At 10:00pm, they received a telephone call from Wangaratta Communications stating that Gerada had telephoned triple 0 reporting that the plaintiff had been outside her address at 258 High Street, Violet Town, and that by doing so he had breached the intervention order. As a result of that call, Trebilcock, Dowell and Hughes had a discussion. Trebilcock said that as a result of his earlier conversation with Dorothy, he had concerns for her welfare, so the police would not only need to arrest the plaintiff, but would also need to apply for a family violence safety notice on behalf of Dorothy. Hughes stated that he shared Trebilcock’s concerns relating to Dorothy’s welfare. Trebilcock had told Hughes that Dorothy had said to him that the plaintiff had been violent to her in the past.

Dowell and Hughes then drove to Gerada’s house, where they arrived at 10:20pm. Trebilcock followed shortly thereafter in a police car. Gerada told Dowell and Hughes that Biddle had been out the front of her address yelling at her. She was positive it was the plaintiff from his voice. Also, although it was dark, she could tell it was him when she went to have a look. As a result of that information, Trebilcock stated that the police defendants would attend at the caravan park to arrest the plaintiff for breach of an intervention order and breach of bail, and that they would also have to apply for a family violence safety notice on behalf of Dorothy.

The police then drove to the caravan park in separate vehicles. It was decided that Dowell would speak to Dorothy and advise her of what was going on. Trebilcock knocked on the front door of the residence. The door was opened by Dorothy. The police apologised for waking her up. Dowell asked her where the plaintiff was. She replied that he was in bed. Dowell asked whether it was possible he could have gone out. Dorothy said she did not hear him go out, but that it was possible. Dowell explained to Dorothy that they were going to arrest the plaintiff in relation to breach of the intervention order against Gerada. The police asked Dorothy where the plaintiff’s bedroom was, and Dorothy pointed in the direction of the hallway.

Hughes said that the three police then walked down the hallway to the bedroom. Trebilcock entered first, and turned on the light switch. Hughes stood closest to the window, and Dowell was at the doorway. Trebilcock was in the middle at the foot of the bed. The plaintiff was in bed, and his doona was pulled up to his face. Trebilcock told him to get up, because they needed to speak to him. The plaintiff said, “Who do you think you are coming into my room, get out of my room, get out of my house”. The plaintiff was yelling. He pushed the doona back, and sat up on the right hand side of the bed, yelling at the police to get out of the house. Trebilcock repeatedly tried to tell Biddle why they were there. He said “You are under arrest for breaching an intervention order, and we also need to apply for a family violence safety notice”. Trebilcock said that a number of times to the plaintiff, who was repeatedly yelling at the police to get out of his room and out of the house.

Hughes said that the plaintiff then stood up, and asked Dowell and him to leave the room. The plaintiff said, “I’ll fight this big bloke”. He walked towards Trebilcock and did a phantom punch with his left fist in an upper cut, while slapping his left bicep with his right arm. His fist ended close to Trebilcock’s face. Trebilcock stepped backwards a bit, but did not physically respond. The plaintiff challenged Trebilcock to fight him. He then calmed down and said he would leave the room. He said “Come on then”, and went to walk to the doorway.

Hughes said that Dowell walked out of the door first, followed by the plaintiff, and then himself, with Trebilcock last. After Hughes had proceeded through the doorway, Biddle turned around, reached past him, and tried to pull the door shut. However, Trebilcock was able to put his foot in the door to prevent it closing. A struggle then ensued. Hughes tried to hold Biddle’s right arm. Trebilcock got in front of him, and held his left arm. Hughes was wearing latex gloves, and he also was holding a can of capsicum spray in his left hand. The plaintiff was thrashing about. Trebilcock had hold of his left arm, and began pulling him down the hallway. Hughes was holding his right arm and was trying to push him. Trebilcock then went into the office, holding the plaintiff’s left arm. The plaintiff managed to get his right hand free, and to hold onto the architrave. Hughes then pried his arm loose.

Trebilcock then dragged the plaintiff by his left arm through the office. Trebilcock got the plaintiff into a bear hug. They lost balance, and fell onto an ice cream freezer on the customer side of the counter near the door. They both went to ground, and fell side by side. Hughes attempted to hold the plaintiff’s legs to restrain him. He was thrashing about. Hughes was concerned that the plaintiff would kick him. Hughes transferred the capsicum spray to his right hand, and deployed a short burst at the plaintiff’s head. It struck the back of his head, and did not appear to have any effect.

Hughes said that within a few seconds Dowell sprayed the plaintiff’s face and neck area. He said that the spray did not contact the inside of the plaintiff’s right thigh. Hughes was holding the plaintiff’s legs, and he immediately would have been sprayed if that had occurred.

As a result of the effects of the spray, Trebilcock started to cough and splutter. He let go of the plaintiff’s arm, and went to the doorway to get some air. Dowell and Hughes assisted the plaintiff outside the doorway of the porch. He was seated on the porch area. He told them that he had an injury to his shoulder. Accordingly, Hughes and Dowell used two sets of handcuffs, linked to each other, to handcuff his arms behind his back.

Hughes said that Dowell and he then walked the plaintiff to the hose. Trebilcock used the hose to wash the plaintiff’s head and face. He instructed the plaintiff to lean forward, so that the water with the capsicum spray would not run down his body. After a few minutes, the plaintiff said in an aggressive manner, “While you’re cleaning my face, you now can wipe my arse”, and he defecated in his underpants. Trebilcock told him that he had been silly, and told him that they would have to clean him up. Trebilcock instructed Dowell to step away, and he then put the hose down the rear of the plaintiff’s underpants to clean them.

Hughes said that after the plaintiff was cleaned, Dowell and he removed the handcuffs from him. The plaintiff was placed in the rear of the divisional van. He had towels and water in the divisional van with him that had been provided by Dorothy. Hughes left separately in the police car, while Trebilcock and Dowell went in the divisional van. Hughes arrived at the Shepparton Police Station at about midnight. The plaintiff was already in the cells. Subsequently, Hughes was present when Dowell interviewed the plaintiff at the charge counter. The interview was not recorded, and Dowell took notes. Between 2:00am and 3:00am, Hughes was present at the remand hearing before the bail justice, at which bail was refused. Hughes did not attend the Wangaratta Court on the next day.

In cross-examination, Sergeant Hughes confirmed that, after Quinn had spoken to Trebilcock on the evening of 19 April, Dorothy had telephoned and spoken to Trebilcock. He understood that Dorothy told Trebilcock that the plaintiff was intoxicated, and that she would put him to bed. Hughes said it did not strike him as being strange, when Gerada telephoned at 10:00pm to say that Biddle was intoxicated outside her house. Hughes said that when they then spoke to Gerada, she told them that she recognised the plaintiff by his voice. He was concerned about Dorothy’s safety at that stage, because the plaintiff had been allegedly in front of Gerada’s house, whereas earlier Dorothy had said she was putting him to bed. Trebilcock had told Hughes that Dorothy had said that the plaintiff had been violent to her in the past. The fact that the plaintiff was out the front of Gerada’s house meant that Dorothy did not have control of the plaintiff, and he was not asleep. Accordingly, Hughes considered that it was necessary to take action to protect Dorothy as well as Gerada.

Hughes confirmed, in cross-examination, that the telephone call from Gerada was received at 10:00pm. When they attended at the caravan park at 10:27pm, the plaintiff was in bed. Hughes did not then consider how the plaintiff could have got back from Gerada’s premises at 258 High Street in the intervening period. When the police attended at the plaintiff’s bedroom and saw him in bed, Hughes did not raise the possibility in his mind that Gerada might have been wrong in identifying the plaintiff as a person out the front of her address. Hughes agreed that he knew that the plaintiff had been with Quinn earlier in the evening. However the police did not speak to Quinn to ascertain whether he might have driven the plaintiff to Gerada’s house. Hughes agreed that, in hindsight, the police probably should have attempted to speak to Quinn before arresting the plaintiff. Hughes also agreed that before they entered the plaintiff’s bedroom, none of the police asked Dorothy whether she had heard the plaintiff come inside before they arrived. Nor did the police check the doors to the premises to see whether they were locked.

Hughes stated that when they attended at Gerada’s house, she said something about the plaintiff interfering with her gate. However, he did not inspect the lock on the gate. He agreed that he should have checked the lock on the gate, to see if it was consistent with what Gerada had said. However, he was not the primary investigator in relation to that incident. He knew that it was alleged that the plaintiff had made two telephone calls to Gerada in breach of the intervention order. However, Hughes did not inspect Gerada’s telephone to see whether the calls were made. Hughes agreed that when they arrested the plaintiff, they had not made any other investigation apart from speaking to Gerada. He agreed that, in hindsight, the police should have spoken to Quinn, particularly when they learnt that the calls were made to Gerada‘s phone from Quinn’s telephone.

Hughes reiterated that, when they were in the plaintiff’s bedroom, Trebilcock told the plaintiff that he was under arrest for breaching the intervention order, and that the police also would need to apply for a family violence safety notice. He agreed that there was no reference to obtaining a family violence safety notice in his witness statement. He stated that at no time did the police discuss with Dorothy their intention to apply for such an order, and they did not give her any opportunity to comment on that.

Hughes reiterated that after Dowell, the plaintiff and he had gone out of the bedroom into the hallway, the plaintiff reached behind him and grabbed the door handle to pull it shut. He was unable to say where Trebilcock was at that time, or how the plaintiff was able to close the door to the point where Trebilcock got his foot in the door to prevent it shutting.

Hughes stated that he had removed the can of capsicum spray from the scabbard on his belt before entering the house. He disagreed that he could have left it in his pocket, because it could have fallen out. He tried to restrain the plaintiff by holding him with his right arm, and also with his left hand, which was also holding the can of capsicum spray.

Hughes said that he had placed the can of capsicum spray in his pocket when he exited the divisional van. He said that he had been trained in operational skills training that it may be useful to have a capsicum spray canister in his hand in any situation in which violence might occur.

Hughes stated that when Trebilcock led the plaintiff into the office, he himself did not know that they were going to head out of the house in that direction, rather than through the lounge room. He did not ask Trebilcock why they were headed in that direction. He did not know whether the office door was locked or unlocked, or whether it could be opened from the inside without a key. Trebilcock had his arms around the plaintiff in a bear hug, and they lost balance and bumped into the ice cream freezer beside the wall. He agreed that in his statement he did not mention anything about bumping into the ice cream freezer.

Hughes agreed that when the police found the plaintiff in bed, they should have considered whether that meant that Gerada’s identification of him might be flawed. He agreed that no-one tried to ask the plaintiff how long he had been in bed, but he said that the plaintiff was yelling and verbally abusive and very difficult to speak to.

Hughes stated that he pressed the button on the capsicum spray canister, because he was worried about being kicked by the plaintiff. He agreed that he had not said in his statement that he was worried about being kicked by the plaintiff. He agreed that the plaintiff was then in bare feet.

Hughes denied that the plaintiff was dragged across the porch. He and Dowell assisted the plaintiff to his feet, and to walk outside. At that stage, the plaintiff was completely cooperative.

Sergeant Hughes agreed that when the police arrived at the plaintiff’s house, they did not discuss with Dorothy their concerns about her safety. He said that the decision to take the plaintiff into custody was made by Trebilcock, on the basis of the information that he had received when he spoke to Dorothy on the telephone. The plaintiff was taken into custody, because of the incident at Gerada’s that night. After Trebilcock had spoken to Dorothy, he expressed concern about her safety. He made the decision not to attend, but they considered that there was a risk that something might happen. After the report of the plaintiff’s conduct was made by Gerada, Trebilcock made the decision as to the course of action that was to be taken.

Hughes was cross-examined about the statement that he took from Quinn. He agreed that there are a number of contradictions in it, and that that statement should have led to a number of inquiries concerning Quinn’s conduct. He said that he took the statement on behalf of Dowell, who was the informant, and it was for Dowell to make any follow up investigations.

The second witness for the defendants was the second defendant, Leading Senior Constable Michelle Dowell. In her evidence she stated that between 2008 and 2011 she had been stationed at Euroa. For almost one half of that period, she had performed temporary duties, at various times, with the Seymour Sexual Offences and Child Abuse Investigation Team (SOCAIT). That unit investigates the more serious offences of child abuse, and sexual offences relating to children and adults.

Dowell’s first contact with the plaintiff was on 9 April. On that day, Gerada told her that the plaintiff had been telephoning her ex-father in law and ex-husband and they did not want to receive any further calls from him. As a result, Dowell had a short telephone conversation with the plaintiff. On the next day, 10 April, Dowell received a further telephone call from Gerada’s ex-husband, stating that the plaintiff had contacted him. As a result, she attended the caravan park, and then told him that he must not contact Gerada’s father in law again. When she left, the plaintiff ran out after her and called out to her.

In the afternoon of 10 April, the Euroa Police Station received a telephone call from the psychiatric nurse at the Goulburn Valley Area Mental Health Service. She was concerned about the plaintiff’s welfare, as he had made threats against Dowell and Hughes. Dowell then described how she attended the caravan park in company with Hughes, and Leading Senior Constables Lynch and Kucia.

During that attendance, Dowell spoke with Dorothy. She said that during that time the plaintiff was verbally abusive to Dorothy and yelling at her. While she was talking to Dorothy, the plaintiff yelled at her, “Dorothy get over here”, and immediately Dorothy went to him. On another occasion, he yelled at her to make him a cup of tea. Dowell stated that each time the plaintiff yelled at her, Dorothy appeared to be on edge. She formed the view that Dorothy was a victim of controlling behaviour by the plaintiff. Dorothy told her that she had been dealing with the plaintiff’s mental health issues over an extended period of time. Dowell suggested that she apply for an intervention order, but Dorothy responded that there would be no point in it, and that her life would not be worth living if she adopted that option.

Dowell’s next dealings with the plaintiff were on 19 April. At 8:30pm that day, Quinn telephoned and spoke to Trebilcock. At the conclusion of the conversation, Trebilcock stated that Quinn had said that the plaintiff was drunk and causing trouble at the caravan park, and Quinn had requested the police to attend. As a result, Hughes and Dowell spoke with Trebilcock in some depth about the plaintiff’s aggressive and unpredictable behaviour. Dowell expressed the view that he could become violent. The police intended to attend the caravan park. However, Dorothy then telephoned, and Trebilcock spoke to her. At the conclusion of that conversation, Trebilcock stated that Dorothy did not want the police to attend, she felt she could manage the plaintiff, and put him to bed. Trebilcock was worried, because Dorothy sounded frightened on the telephone. Trebilcock was concerned about her well-being. The three police defendants discussed the situation, and decided it would be better to let Dorothy try to put the plaintiff to bed. However, Dowell stated that they were uneasy about that decision. They agreed that if there were any more telephone calls relating to the plaintiff that they would attend.

At 10:00pm on 19 April, Euroa Police Station received a call from D 24 to attend Gerada’s premises in Violet Town in relation to a breach of an intervention order. As a result of that call, Dowell concluded that the plaintiff had not gone to bed. Accordingly, she considered that Gerada, and Dorothy, were each at risk.

The three police defendants then attended Gerada’s premises. Gerada told Dowell that the plaintiff had been at the gate of her property, and he had tried to open the chain on the gate. When she called out “Who’s there”, the response was “It’s Geoff”. Gerada said that she recognised the plaintiff’s voice. She also said that she saw the plaintiff and recognised him by sight. She said there had been a couple of unanswered telephone calls from a number that she did not recognise. Dowell looked from the balcony where Gerada had been standing towards the gateway. It was a moonlit night and Dowell could see the gateway. Gerada appeared to be afraid and shaking. Dowell considered that she was telling the truth.

As a result of speaking to Gerada, it became clear to Dowell that Dorothy had not managed to put the plaintiff to bed. She said that therefore the three police defendants considered that both Gerada and Dorothy were at risk. As the plaintiff’s behaviour had deteriorated over the previous month, they were concerned for Dorothy’s welfare.

Dowell stated that they then attended the caravan park. Trebilcock knocked on the lounge room door. When Dorothy opened the door, Dowell asked her where the plaintiff was. Dorothy responded that he was in bed. Dowell asked Dorothy if the plaintiff could have gone out, and Dorothy said, “He could have, he could have gone out the back door, he could have gone out the front door, I’ve been dozing”. Dowell asked her if the plaintiff had been drinking, and she said he had had a couple of beers at the pub.

Trebilcock then asked Dorothy where the plaintiff’s bedroom was, and she indicated down the hallway. Dowell asked Dorothy to stay in the lounge, because she did not want her to become involved in the arrest. Dowell said that the three police defendants had decided to arrest the plaintiff while they were at Gerada’s house, and also to issue a family violence safety notice in respect of him.

Dowell stated that after the three police entered the room, Trebilcock said “Bryan get up we need to speak with you”. None of the police at that stage had any physical contact with the plaintiff. As a result of Trebilcock speaking, the plaintiff threw the doona back and swung his legs to the side of the bed. He directed a tirade of abuse at Trebilcock, stating, “Who do you think you are, get out of my room, I ought to smash you”. He then lunged at Trebilcock, stating, “I ought to smash you, who do you think you are you big (expletive) … “. He continued to use expletives. Trebilcock endeavoured to explain to the plaintiff that he was under arrest for breaching an intervention order. Dowell said that Trebilcock remained very composed, notwithstanding the plaintiff’s conduct. The plaintiff then lunged at Trebilcock with his raised right fist, and with his left hand he slapped his right bicep. Trebilcock put up his hands and tried to explain why they were there. The plaintiff again stated, “I ought to smash you you big (expletive) …, who do you think you are coming into my room?” The plaintiff told Hughes and Dowell to leave the room, and he lunged for a second time at Trebilcock. Dowell and Hughes remained in the room. During that time, the plaintiff was also yelling out, “Dorothy get here”.

After a few moments, the plaintiff said that he would come with the police. He appeared calmer. Accordingly, Dowell left the bedroom, followed by the plaintiff and then Hughes. After the three of them had exited the bedroom, the plaintiff leant past Hughes, and tried to pull the bedroom door closed. Trebilcock pushed the door open, and grabbed hold of the plaintiff. Hughes also took hold of the plaintiff. Trebilcock ended up in front of the plaintiff holding one arm. Dowell got out of the way, so that the other two policemen could bring the plaintiff out.

Dowell then went into the office. She moved a chair that was in the way. She went around the desk, and opened the front door. When she turned around, she saw that the plaintiff had hold of the architrave between the hallway and the office with his right arm, and that he was swinging his left arm towards Trebilcock. Trebilcock managed to put his arms around the plaintiff, and during the ensuing struggle they both fell to the ground near the end of the desk. Almost immediately, Hughes deployed his capsicum spray. It hit the plaintiff on the side of the back of the head, and had no apparent effect on him. The plaintiff continued to resist, and was trying to swing his arms to strike Trebilcock. Dowell then deployed her spray. The plaintiff was on the ground, but his head was off the ground. She managed to spray him in the face from a distance of 70 to 80 centimetres. The spray had an immediate effect on the plaintiff. He began screaming, and saying that he was burning. He ceased any further physical resistance, but continued to be verbally aggressive. Dowell said that she activated the capsicum spray because there was a physical altercation between Trebilcock and the plaintiff, with Hughes also involved. They were in a very confined space, and she considered that someone would be injured as a result.

Trebilcock also received a dose of the spray, because he was immediately behind the plaintiff’s face. He was gasping for breath and went out the front door. Hughes and Dowell grabbed each of the plaintiff’s arms, helped him to his feet, and led him onto the front porch. The plaintiff sat down on the porch, and Hughes and Dowell handcuffed him. They each put one set of handcuffs on each of his hands, and joined the links behind his back. Trebilcock asked Dorothy where the hose was, and he walked over to it. Hughes and Dowell walked the plaintiff to the hose. He leant forward, and Trebilcock washed his face with the hose. The plaintiff continued to yell, “You have no right to do this, I ought to smash you for what you have done”.

While Trebilcock was washing his face, the plaintiff looked at him, and in an angry voice, said “I’m going to shit myself, are you going to clean that up as well?” He then leant forward, and defecated in his underwear. Dowell walked away, dry retching from the odour. Trebilcock put the hose inside the plaintiff’s underpants, and washed him out. At that stage, Dorothy was near the front of the house. After the plaintiff was washed, the handcuffs were removed, and he sat in the doorway of the divisional van.

Dowell and Trebilcock then drove the plaintiff in the divisional van to Shepparton Police Station. En route, the plaintiff requested to go to urinate. He was taken out of the divisional van so that he could do so.

After they arrived at the Shepparton Police Station, the plaintiff was placed into the control of the custody staff at that station. Dowell attended to some paperwork. At 3:00am, she conducted an interview with him at the charge counter. Hughes and another police member, Sergeant Vasilarou, were present. She made notes of the interview, which were tendered in evidence. The plaintiff was then brought before a bail justice, and remanded in custody to the following day.

The plaintiff was charged with three charges of breach of intervention order, and three charges of resisting arrest, arising from the events of 19 April. On the next day, Dowell attended at Wangaratta Court. She handed a copy of the family violence safety notice to Dorothy. She told Dorothy she believed that Dorothy was a victim of family violence, and that she needed protection from the plaintiff. Dorothy responded that she had been dealing with the issue for so long it was part of her life. Later in the day, the plaintiff was granted bail with particular conditions. On the application of Dowell, an interim intervention order was also granted against the plaintiff in respect of Dorothy.

The case involving the charges arising from the events of 19 April, in which Dowell was the informant, came on for a contest hearing at the Benalla Court in November 2011. On that date, the three charges of breach of intervention order were rolled into one charge, the three charges of resisting arrest were rolled into one charge, and the plaintiff pleaded guilty to both of them.

In cross-examination, Dowell stated that, when she attended the caravan park in the afternoon of 10 April, after receiving the telephone call from the psychiatric unit in Shepparton, she noted that the plaintiff was aggressive towards Dorothy. Dorothy told Dowell that the plaintiff had been on medication for some time, and that she had been dealing with his alcohol use and his being on medication. Dowell said that when the plaintiff ordered Dorothy to come to him, she seemed to be quite frightened and nervous, and she immediately responded to his command. Dowell asked Dorothy about their history, and Dorothy responded that the plaintiff had been like that for the whole of their married life. When Dowell raised with her the possibility of obtaining an intervention order, Dorothy stated, “My life wouldn’t be worth living, nothing is going to change”.

Dowell stated that as at 19 April, she considered that the plaintiff had a potential to be violent. He had been charged with an assault relating to Gerada, and he had also broken her window. When Dowell had attended the caravan park on the morning of 10 April, the plaintiff had run after her when she got into the divisional van. Accordingly, on 19 April she told Trebilcock that the plaintiff was unpredictable and had the potential to be violent.

She said that she did not believe that Dorothy could manage the plaintiff. Accordingly, when she learnt at 10:00pm that night that the plaintiff was not in bed, but had visited Gerada, she considered that Dorothy had not been able to manage him.

Dowell was then cross-examined concerning the inquiries that she had made of Gerada relating to the alleged breach of intervention order by the plaintiff. She said that Gerada had recognised the plaintiff’s voice, and had visually identified him in the gateway. She disagreed that it was a dark night. Gerada told her that the plaintiff was wearing dark clothing, but she did not ask Gerada for any further description of that clothing. Dowell said that she considered that Gerada would be able to make an adequate observation and identification of the plaintiff at the front gate, while Gerada was on the balcony at the front of the house. Apart from speaking to Gerada, Dowell did not undertake any other investigation as to the identity of the person who had attended at Gerada’s premises that evening.

Dowell further stated that when Dorothy told the police that the plaintiff was in bed after the police attended at the caravan park at about 10:27pm, Dowell considered that he could easily have returned home in the intervening half hour. She said that she requested Dorothy to remain in the lounge room while they arrested him, because she did not want Dorothy to be present in the event that the arrest became “physical”.

Dowell repeated that the plaintiff was arrested in relation to the breach of the intervention order and for breach of his bail conditions. The police defendants had decided to arrest him in order to protect both Gerada and Dorothy. Trebilcock had told Dowell that Dorothy was afraid of the plaintiff. He told Dowell that when he spoke to Dorothy on the telephone shortly before 9:00pm, Dorothy sounded shaky and nervous.

Dowell stated that when they went to the plaintiff’s bedroom he was told he was under arrest. There was no opportunity to caution him, because the situation became dynamic, with the plaintiff being very aggressive. Dowell did not consider that the plaintiff was intoxicated at that time. Dowell repeated that when she, Hughes and the plaintiff exited the bedroom, the plaintiff tried to pull the door shut. It was put to her that in her answers to interrogatories she had said that the plaintiff had slammed the door in Hughes’ face. She maintained that the plaintiff did not slam the door shut, rather he had forcibly pushed the door into Hughes.

Dowell stated that she was absolutely certain that when they had arrived at the premises, the three police defendants entered the house through the front lounge door. She was then cross-examined about a part of her witness statement, in which she stated that Trebilcock had pulled the plaintiff “towards the foyer area where we had come through earlier”. In cross-examination Dowell said that that part of her statement was incorrectly phrased, and that it should have stated that she, (but not Trebilcock and Hughes) had come through the foyer path earlier to clear a path for the plaintiff to exit the house.

Dowell denied saying that, before she deployed her capsicum spray, she said, “Will I spray him?”. She said she felt it was necessary to deploy the capsicum spray, because the plaintiff was swinging his arms around and attempting to assault Trebilcock. She felt that someone might get hurt in the confined space. She said that after the plaintiff was sprayed, he complained that it was burning. However, he did not say, “my arse and dick are on fire”. Dowell strongly denied that Dorothy at any time came into the office during the struggle there, although the plaintiff was yelling and screaming throughout the incident. Dowell denied that the plaintiff was dragged out of the office by his arms.

Dowell agreed that when the plaintiff was placed into the divisional van, Dorothy handed her a clean set of clothing for the plaintiff. They were placed in the divisional van. However, they were not provided to the plaintiff. Dowell believed that she forgot about the clothing when they arrived at Shepparton. She agreed that at Wangaratta Court, Dorothy gave her another set of fresh clothes for the plaintiff. The shoes were inappropriate because they had laces. However, Dowell did not make arrangements for the remainder of the fresh clothes to be given to the plaintiff at that time. Dowell stated that when she spoke to Dorothy at the Wangaratta Court on 20 April, Dorothy confirmed her view that if she got the interim intervention order, life would be more difficult for her.

In his evidence, Sergeant Trebilcock stated that he had been a member of Victoria Police since 1988. He was posted to Echuca Police Station on 4 July 2010. On 19 April 2011, he was posted for temporary duties for two weeks to the Euroa Police Station. He had not worked with Dowell or Hughes previously. At that time, Shepparton Police Station had a 24 hour custody facility, with a custody supervisor and watch house keeper. Those facilities did not exist at the Euroa or Violet Town police stations.

On 19 April, Trebilcock commenced his shift at 4:00pm. Hughes and Dowell briefed him about persons of interest in Euroa and Violet Town. In that briefing they mentioned the plaintiff. They told Trebilcock that the plaintiff had recently “gone off the rails”, and that he would have to be careful in dealing with the plaintiff.

Trebilcock stated that at 8:30pm that evening he received a telephone call, which had been made to Euroa Police Station by Bradley Quinn. Quinn told Trebilcock that he was then at the caravan park with the plaintiff, that he was concerned about the plaintiff, who was “going off” and yelling obscenities towards him, that he had been drinking beer with the plaintiff, and that he was concerned that the plaintiff would harm someone or his wife Dorothy. While speaking to Quinn, Trebilcock was able to note down his telephone number. Trebilcock then discussed the contents of that telephone conversation with Dowell and Hughes. They told him that the plaintiff had recently attempted suicide, that he had been assessed at the Shepparton Hospital pursuant to s 10 of the Mental Health Act, and that he had threatened to shoot them.

Trebilcock then received a telephone call from Dorothy. She told Trebilcock that there was no need for the police to attend, that she had the plaintiff under control, she could handle the plaintiff, and would put him to bed. She also said that she had in the past been assaulted by the plaintiff, and that she had been injured by him. However, she considered that she could handle the plaintiff in this instance while he was affected by alcohol.

At the conclusion of that conversation, Trebilcock spoke again to Hughes and Dowell. He was concerned about the welfare of Dorothy. Ultimately, the three police made a decision that it might be better to permit Dorothy to put the plaintiff to bed, rather than confronting the plaintiff at that time.

Subsequently, at 10:00pm, Euroa Police Station received a D 24 call that they were required to attend an address in Violet Town in relation to a complaint by Gerada that the plaintiff had attended her address, and had thus breached an intervention order. Based on that information, on the information that the police defendants had received from Quinn, and on the information that Trebilcock had received from Dowell and Hughes about the plaintiff’s previous behaviour, the defendants decided to take a different course of action. Trebilcock stated that it was obvious that Dorothy had not put the plaintiff to bed and that he was out breaching an intervention order. Accordingly, the defendants drove to Gerada’s address to confirm the information that had been received from D 24. Dowell and Hughes left in the divisional van, and Trebilcock followed a short time later in the sedan.

When Trebilcock arrived at Gerada’s premises, Dowell and Hughes were already speaking to Gerada. Trebilcock did not hear any of that conversation. Dowell showed Trebilcock a mobile telephone handed to her by Gerada with a telephone number in it. Hughes recognised the number as that of Quinn. Dowell told Trebilock that she had been told by Gerada that the plaintiff had attended at her residence, and that he had leant over the front gate and called out to her. Gerada had visually identified the plaintiff. She had called out to him, and he had replied with a name “Geoff”. Gerada recognised the plaintiff’s voice. She was out the front of her house where she could see the plaintiff at the gate. Trebilcock said that he had no reason to doubt the reliability of what Gerada had said to Dowell. He had earlier been told by Dowell and Hughes that the plaintiff was currently on bail for breaching the intervention order. As a result of the information that he was again acting in breach of that order, Trebilcock was concerned for the welfare of both Gerada and Dorothy.

Accordingly, it was decided that the police would proceed to the plaintiff’s house. Dowell was to speak to Dorothy, because Dowell had previously had a good rapport with her. The police defendants planned to interview the plaintiff for breach of the intervention order and for breach of bail, and to take out a family violence safety notice in respect of Dorothy.

Trebilcock stated that when they reached the house in the caravan park, they approached the door to the lounge room. He knocked on the door, and Dorothy answered. Dowell asked Dorothy where the plaintiff was. She responded that he was in bed, and that the plaintiff had been in bed since 9:00pm. Dowell asked her if it was possible that the plaintiff could have been out. Dorothy responded, “He could have, I don’t know, I’ve been asleep on the couch”.

Trebilcock asked Dorothy where the plaintiff’s bedroom was, and she pointed down the hallway. The police defendants then walked into the bedroom. Trebilcock stood at the foot of the bed, Hughes was to his left by the window, and Dowell was by the door. Trebilcock had turned the light switch on. He said to the plaintiff, “Bryan can you get up, I want to talk to you”. Immediately, the doona was flung back and the plaintiff sat up. He said, “What are you doing here, get out of here” in a very loud voice. Trebilcock repeated that he needed to speak to the plaintiff and asked him to get up. The plaintiff responded, “Just fucking get out of my house, what are you doing in here, what are you doing fucking dragging me out of bed, I ought to punch you”. Trebilcock told the plaintiff that he was under arrest for breaching an intervention order, and that he was also going to apply for a family violence safety notice. The plaintiff flung back the doona, and sat on the side of the bed. He said to Trebilcock, “I ought to punch your fucking head in”. The plaintiff then lunged at Trebilcock with his left fist up towards Trebilcock’s head, and slapped his left arm with his right arm. He was standing with his face very close to Trebilcock’s face. He again told Trebilcock in aggressive terms to get out of his house. Trebilcock repeated that the plaintiff was under arrest, and was required to leave with the police.

Trebilcock stated that the plaintiff then raised two fists towards his face in a boxing type stance. They were very close together. Trebilcock deliberately kept calm, and tried to adopt a non-confrontational approach. He told the plaintiff to settle down and repeated that he was under arrest. The plaintiff continued with his threats to punch Trebilcock. He then quietened down, and agreed to walk out, and walked to the door. Dowell exited first, followed by Biddle and then Hughes. Trebilcock started to walk out of the room. As he did so, the plaintiff attempted to slam the door shut while Trebilcock was still in the bedroom, but the door hit Trebilcock’s boot. In the hallway, Dowell and Hughes each tried to take hold of the plaintiff. Trebilcock grabbed his arms and shoulders. He noted that the plaintiff was very strong and solid. He yelled out a couple of times, “Bryan you’re under arrest”. The plaintiff continued to yell at him and shout expletives.

The police defendants managed to pull the plaintiff to a door opening on the right hand side of the wall. While they were struggling there, the plaintiff latched onto the door pillar. Trebilcock tried to pull him off it. Trebilcock ended up holding the plaintiff in a bear hug to secure him. In the course of the ensuing struggle, they both fell to the floor, at the end of the counter. Trebilcock fell on top of the plaintiff, then rolled off him. They continued to wrestle, and the plaintiff kept repeating “I’m going to fucking get you, I’m not done with you yet”. Trebilcock tried to grab his arms to secure them. The plaintiff was then lying on his stomach. Hughes was behind them. Trebilcock saw Hughes spray the back of the plaintiff’s head from a distance of about 90 centimetres. It was a short burst, and did not have any effect on the plaintiff. Dowell then sprayed the plaintiff to the side of his face. Trebilcock was in the line of the spray, and as a result he was also sprayed. He said that capsicum spray does not agree with him, and he could not breathe. He immediately stopped struggling with Biddle, and ran out the front door to get some air.

After a short time, Trebilcock saw Dowell and Hughes standing with the plaintiff on the porch. They were handcuffing the plaintiff, using two sets of handcuffs interlinked to each other. After he was handcuffed, the plaintiff was seated on the porch. Trebilcock asked Dorothy for the hose, and Dorothy indicated it to him. The plaintiff was still making threats to Trebilcock and coughing. He was walked over to the hose. Trebilcock turned the hose on, and started pouring water over the top of the plaintiff’s head. The plaintiff was slightly bent over at the time. Trebilcock tried to reassure the plaintiff, and told him what the side effects of the spray would be. Trebilcock hosed the plaintiff’s face for between two and four minutes. While he was doing that, the plaintiff turned to him and said “Well, while you are cleaning that, I’m going to shit myself and you can wipe my arse”. The plaintiff then crouched and defecated in his underpants. Trebilcock stated, “Bryan why did you do that, you’re a silly man, we are here to help you”. Trebilcock put the hose down the back of the plaintiff’s underpants and washed him out. Hughes and he then walked the plaintiff to the divisional van. There were wet towels and a bowl of water there. He was seated on the edge of the divisional van, facing out to get some air. The handcuffs were removed. The plaintiff remained on the back of the van for 10 to 15 minutes.

Dorothy also stated in her evidence that she did not hear the police defendants tell the plaintiff that he was under arrest, or the reason for that arrest. Notwithstanding that evidence, however, I am satisfied that Trebilcock did say that to the plaintiff. There was no reason why he would not do so. It was relevant and important for Trebilcock to explain to the plaintiff that he was under arrest. It would have made no sense for the police to attempt to remove the plaintiff from his bedroom, without explaining to him that he was under arrest, and telling him the reason for the arrest. Accordingly, I am satisfied, on the balance of probabilities, that Trebilcock did tell the plaintiff that he was under arrest for breach of an intervention order.

It is clear on all the evidence that the plaintiff reacted angrily and belligerently to the presence of the three police defendants in his bedroom. Almost immediately he commenced shouting at them. I am satisfied that he challenged Trebilcock to fight, and, in doing so, he twice raised his fist in the direction of Trebilcock. In cross-examination, the plaintiff boasted of his prowess as a boxer. When it was put to him that he invited Trebilcock to fight, he responded, “He wouldn’t be able to fight his way out of a paper bag if he come up against me … If I’m sober, don’t stand up to me”. He proceeded to tell me that he was a boxer, and discussed with me the two different stances (orthodox and southpaw) that can be used by boxers. The response of the plaintiff, described by the defendants, is in keeping with his unpredictable and belligerent nature, aspects of which I observed while he was in cross-examination.

As I stated, I am satisfied that the plaintiff has significantly overstated the degree of force that was used by the three police defendants to remove him from the bedroom, and from the house. The plaintiff was then in his early 60’s, and he had a pre-existing injury to his shoulder. It is most unlikely, to say the least, that he would have emerged from the incident virtually physically unscathed, if he had been treated by the three police defendants in the manner that he described. As I have already stated, in his evidence, he did not complain of any physical injury, apart from some pain and discomfort to his genitals. In particular, neither he nor Dorothy described any complaint by the plaintiff of soreness, bruising or abrasions on any part of his body. Dorothy took the trouble to take a photograph of his genitals, to demonstrate that his penis was swollen. She did not photograph any other part of his anatomy to depict any physical injury on it. When the plaintiff attended at the Carrier Street Medical Clinic on 28 April, he did not describe to Dr Buckley any physical injury at all.

One aspect of the evidence, that was the subject of a substantial amount of cross-examination, was the evidence of the defendants that the plaintiff tried to close the bedroom door on Trebilcock after the plaintiff had exited the bedroom. It is, perhaps, somewhat surprising that the plaintiff managed to get past Hughes, to perform that manoeuvre. However, it must be recalled that, at that stage, the plaintiff had adopted a quiescent approach, and it is quite possible that he caught Hughes off-guard. I am satisfied, on the balance of probabilities, that after Dowell, Hughes and the plaintiff exited the bedroom, the plaintiff did try to close the door on Trebilcock.

It is clear on the evidence that almost immediately after he did so, a struggle occurred in the hallway between the three police defendants on the one hand, and the plaintiff. In her evidence, Dorothy stated that, after she had attended at the bedroom, she went to the lounge room. She then heard a commotion at the plaintiff’s bedroom door.

There is a difference in the evidence, between Dorothy on the one hand, and the police defendants on the other hand, as to whether the plaintiff was on his feet, or on his knees, when he was brought down the hallway by Hughes and Trebilcock. The plaintiff stated that he was prone, and that at one stage Trebilcock knelt or walked on top of him. I have already rejected that evidence as being one of the aspects in which the plaintiff grossly exaggerated his account of the events of that night. Having listened carefully to the evidence, I am satisfied, on the balance of probabilities, that the plaintiff was on his feet, and not on his knees, when he was brought down the hallway. In her evidence in the Magistrates’ Court, Dorothy stated that when she went to the lounge room, the next thing she saw was the police and the plaintiff coming down the hallway. She said: “There was probably an altercation but I’m not 100 percent certain what was happening because I stayed right away. … Next minute they’re in the office … “. Thus, in her recollection on 20 April, Dorothy did not remember seeing the plaintiff being brought down the hallway. Further and in any event, it is common ground that while he was being escorted down the hallway, the plaintiff was struggling. It is quite possible that Dorothy, if she saw the incident, misperceived how the plaintiff was standing, given that the circumstances were quite dynamic.

I am also satisfied that when the plaintiff was brought into the office, he did grab hold of the architrave with one hand as stated by Hughes. The plaintiff was a strong and well-built man. I am satisfied that both Trebilcock and Hughes needed to exert some degree of force to remove the plaintiff’s hand from the architrave, and to continue to convey him through the office. I am satisfied that, in doing so, Trebilcock did not place the plaintiff in a headlock. The claim by the plaintiff that he did so was, again, another aspect in which the plaintiff’s evidence was exaggerated. I am satisfied that Trebilcock did manage to get the plaintiff to a bear hug, and while they were struggling, they fell to the ground.

I am also satisfied that neither Hughes nor Dowell activated the capsicum spray until the plaintiff was prone on the floor. Dowell’s credit was attacked on the basis that, in her witness statement, she did not state that the plaintiff had gone to the ground before she activated the capsicum spray. However, it was common ground between the three police defendants and the plaintiff that the capsicum spray was not deployed until he was on the ground.

I am also satisfied that Hughes discharged his capsicum spray first. Subsequently, the plaintiff complained of some burning to the back of his head, which could be explained by the fact that it was Hughes who sprayed him there. I am further satisfied that when Dowell deployed the capsicum spray, she directed it at the face of the plaintiff from a distance of about 70 or 80 centimetres. I reject the evidence of the plaintiff that Dowell pushed the canister against his teeth, and sprayed the capsicum spray down his throat and mouth. In his evidence, the plaintiff stated that subsequently, when he was outside, his throat and lungs were burning. However, neither he nor Dorothy described any such burning after the plaintiff had returned home on the following day. If Dowell had deployed the capsicum spray directly into the plaintiff’s mouth, it might be expected that the plaintiff would have suffered severe discomfort in the airways and the lungs for some days, and that he would have consulted a doctor in relation to such a complaint. Once again, the description by the plaintiff, of Dowell’s actions in that regard, struck me as being given in an elaborate and exaggerated manner.

I also do not accept the evidence of the plaintiff and Dorothy that, before deploying the spray, Dowell stated, “Will I spray him, will I spray him?”. When Dowell deployed her spray, Trebilcock, who was opposite her, received a sizeable dose of it. He exclaimed to her, “Why didn’t you f…ing warn me”. I would expect that if Dowell had given a warning that she was going to deploy her spray, Trebilcock, being experienced in such matters, would have ensured that he was out of the “firing line”.

I am also satisfied that Dowell did not spray the plaintiff in, or near, his anus or genital area. There was no logical reason for Dowell to have directed her spray toward that part of the plaintiff’s anatomy. It is common ground that Hughes, at that stage, was behind the plaintiff, holding his legs. If Dowell had activated the capsicum spray in that area, Hughes would have received a significant dose of the spray himself.

The plaintiff and Dorothy both described how the plaintiff did suffer some pain and swelling to his penis for a period of two or three days after the incident. A photograph was tendered in order to demonstrate that swelling. However, the discomfort, suffered by the plaintiff, was not sufficient to cause him to seek any medical treatment for it in the meantime. When he consulted Dr Buckley on 28 April, he did not raise with him any concerns as to whether a spray, in that area, might have any long-term adverse effects on him. The fact that the plaintiff might have suffered some discomfort in that area is readily explicable by the processes explained by Sergeant Trebilcock, namely, that when he washed the plaintiff’s face, the diluted spray may have run down the plaintiff’s body. In addition, the plaintiff had a shower at Shepparton Police Station, and he may well have washed some of the diluted spray onto the lower parts of his body then.

I do not accept that Dorothy was in the office, and visually observed the events that occurred there. The evidence that she gave, in that regard, is inconsistent with the testimony that she gave at the Wangaratta Court. Further, her evidence, in relation to the events in the office, sounded somewhat contrived, and was unconvincing.

After the capsicum spray was deployed, the plaintiff ceased to struggle physically, although he continued to verbally abuse the three police defendants. I am satisfied that he was not pulled from the office, and across the porch, while he was prone. The plaintiff claimed that he suffered abrasions to his arm as a result of that manoeuvre, which bled onto the porch. However, Dorothy did not give any evidence of observing any such abrasions, nor did she photograph them. The plaintiff did not seek any medical attention in relation to them, and he did not seek any treatment from Dr Buckley in relation to them.

As I have already stated, I am also satisfied that Trebilcock did not jump onto the plaintiff while he was on the porch. Once again, that allegation, by the plaintiff, bore all the hallmarks of the exaggerated manner in which he gave his evidence concerning his arrest. There was no logical reason for Trebilcock to carry out such an irresponsible act, and I am satisfied he did not do so. I am also satisfied that when Hughes and Dowell handcuffed the plaintiff, they used two sets of cuffs, in order to minimise any discomfort to the plaintiff, who had told them that he had a longstanding shoulder injury.

There is a direct dispute between the plaintiff and Dorothy, on the one hand, and the police defendants on the other hand, as to whether any aftercare was afforded to the plaintiff following his removal from the house. I am satisfied on the evidence that the police defendants did wash the plaintiff’s face in the manner described by them in their evidence. The evidence of the three police defendants, in that regard, is consistent and credible. Trebilcock presented as an experienced, conscientious and sensible policeman. At 2:00am on the following morning, and again at 7:00am, he took the trouble to telephone Dorothy, and to discuss with her, in the latter call, at some length, the plaintiff’s mental health issues. When Trebilcock attended at the caravan park on the evening of 19 April, he, and Hughes and Dowell, were each aware that they were dealing, not with a malicious miscreant, but, rather, with a person who had genuine mental health issues. I am satisfied that the police did not treat the plaintiff in the callous manner described by the plaintiff and Dorothy in their evidence. The evidence of the defendants in that regard is supported by the unequivocal evidence given by Dorothy at the Wangaratta Court, that the police obtained a hose in order to wash the plaintiff, and that “all the time” they were trying to disperse the capsicum spray off him.

In addition, as I have already noted, at no time did Dorothy make a complaint to any of the police defendants, or subsequently to Trebilcock, that they had not provided the plaintiff with adequate or proper after care. She was aware that the plaintiff had been sprayed with capsicum spray, and he was suffering the effects of it. Dorothy is a trained nurse, and, as I stated, she is very protective of the plaintiff. It is most unlikely that she would not have voiced her disapproval, if the police defendants had acted in the uncaring and callous manner, that the plaintiff and she both described.

I am also satisfied that when the plaintiff soiled himself, it was Trebilcock, and not Dowell, who used the hose to wash the plaintiff’s underpants. It was logical that Trebilcock, who was already using the hose to wash the plaintiff, would also use it to wash the plaintiff’s underpants. Further, it is most unlikely that he would permit a female police member to wash that part of the plaintiff’s anatomy. If he had done so, I would expect that Dorothy would have protested as to the lack of concern by the police defendants for her husband’s dignity. She did not do so. I am satisfied that before the plaintiff defecated, he announced that he would do so. It is not necessary for me to determine whether he deliberately soiled himself, or whether that occurred as an accident.

Some criticism was made of the actions of the police, in failing to permit the plaintiff to have a shower at the caravan park before being removed. I accept the explanation given by the police defendants, for not doing so, namely, that the plaintiff had demonstrated that he was in a volatile frame of mind, and they considered that it would have been difficult to ensure that he was showered in a secure manner.

I am, however, concerned that, before the plaintiff departed from the premises, he was not provided, at the least, with a fresh set of underclothing. I am equally concerned that, when the plaintiff was conveyed to Shepparton Police Station, he was not given the set of clothing, that Dorothy had handed to Dowell for that purpose. I accept that the omission of Dowell to do so was by way of oversight, and it was not deliberate. It was unfortunate that the plaintiff was not, in that regard, treated in a better manner. However, I do not accept the proposition that the police deliberately withheld the fresh set of clothing from the plaintiff, for some sinister motive, such as callousness or vindictiveness. Rather, as I stated, it was a regrettable oversight that should not have occurred.

Whether the arrest and imprisonment of the plaintiff was lawful

In light of those factual conclusions, I can now state my conclusions relating to the issue whether the arrest of the plaintiff, and his imprisonment, at the caravan park, were lawful.

As I have already stated, I am satisfied, on the balance of probabilities, that Trebilcock, more than once, told the plaintiff that he was under arrest for breach of an intervention order. Ordinarily, the police, on arrest, must provide to the person arrested a sufficient description of the offence that is alleged, in order that that person knows the reason why his or her freedom is being restrained.[21] However, the amount of information, that is required to be conveyed to the person arrested, very much depends on the circumstances in which the arrest is made. In the present case, each time Trebilcock tried to explain to the plaintiff the fact and reason for his arrest, the plaintiff reacted angrily, swore at and abused Trebilcock, and ordered him from the house. In the circumstances, I am satisfied that Trebilcock, and the other defendants, did not have the opportunity to give to the plaintiff any further explanation or description of the offence, for which he was then being arrested. I am, therefore, satisfied that, on arresting the plaintiff, the defendants complied sufficiently with the requirement that the plaintiff be informed of the fact of the arrest, and of the offence for which he was being arrested.
[21]Slaveski v State of Victoria [2010] VSC 441, [11]–[114]; Christie v Leachinsky [1947] 1 AC 573, 573, 587, 591, 593, 598.

Based on the findings that I have already made, I am also satisfied that the police defendants did not use excessive force in removing the plaintiff from the bedroom, in conveying him down the hallway, or physically restraining him in the office. Almost immediately the plaintiff left the bedroom, he commenced to struggle quite violently with the police defendants. I am satisfied that the amount of force used by the police defendants was reasonable, bearing in mind the need to restrain him, and to effect the arrest.

Mr Monti particularly raised the issue whether the use by Hughes and Dowell, of the capsicum spray in the office, constituted the use of excessive force by them in restraining the plaintiff. He submitted that the plaintiff, at that stage, was on the ground, and was capable of being restrained without the deployment of the spray.

In considering this issue, it is important to bear in mind that the plaintiff had engaged in a physical struggle with the police defendants from the moment that he left the bedroom. During that struggle, he offered strenuous resistance to them. That resistance continued into the office. Trebilcock did not deliberately force him to the ground in order to restrain him. Rather, as a result of the struggle, both Trebilcock and the plaintiff fell to the ground. The plaintiff continued to struggle physically after he had fallen to the ground. The office is a quite confined space. The plaintiff is well-built and quite strong. The circumstances in which the spray was deployed were quite dynamic. In those circumstances, I accept the evidence of Hughes and Dowell that they each apprehended that there was a genuine risk of injury either to themselves, to the other police defendants, or to the plaintiff, if the struggle continued.

It is, of course, easy to apply the wisdom of hindsight, in the calm detachment of a court room, in determining whether it was necessary or reasonable for Hughes and Dowell to have deployed the capsicum spray at the plaintiff. However, in the circumstances that then applied, I am satisfied that the apprehension by Dowell and Hughes, of such a risk of injury, was reasonable, and I am satisfied that they both acted reasonably in deploying the capsicum spray at the plaintiff. Based on the factual findings I have already made, I am also satisfied that the manner in which they deployed the capsicum spray was reasonable in the circumstances. Thus, I am satisfied that Hughes and Dowell did not use excessive or disproportionate force in deploying their capsicum sprays to the plaintiff.

Further, based on the factual findings that I have made, I am satisfied that the police did not use excessive or disproportionate force in escorting the plaintiff through the office door, or to the porch. Mr Monti submitted that it was not necessary for the police defendants to apply the handcuffs to the plaintiff at that time, since he had ceased to resist in a physical manner. However, from the moment that the police had spoken to the plaintiff in his bedroom, he had proven to be quite unpredictable and volatile in his behaviour. Dowell and Hughes, from their previous knowledge of the plaintiff, knew that he was a person who tended to act in an unstable and erratic manner. In my view, they were justified in applying handcuffs to the plaintiff upon his removal from the house. The fact that they used two sets of cuffs, interlinked with each other, demonstrates that they were concerned to act reasonably in securing the plaintiff in that manner. Further, the handcuffs were removed once the plaintiff was secure in the divisional van. It is clear, then, that the police defendants were not acting in an arbitrary or vindictive manner in applying the handcuffs to the plaintiff. Rather, I am satisfied that they did so, in order to ensure that he was properly secured, having already engaged in a forceful struggle with them. I am satisfied that the use of handcuffs, in that way, did not involve the application of excessive or disproportionate force for the purposes of the arrest of the plaintiff.

Thus, I am satisfied, on the balance of probabilities, that the arrest and imprisonment of the plaintiff by the police defendants at his home at the caravan park was lawful.

Whether the plaintiff was brought before a bail justice within a reasonable time

The final question is whether, after the plaintiff was arrested, he was brought before a bail justice within a reasonable time. Mr Monti, in his final submissions, contended that the period between the plaintiff’s arrest, and his appearance before a bail justice, was unreasonable, and that accordingly his detention, during that period, was unlawful. However, Mr Monti did not advance any further arguments in support of that submission. Nor did he address the matter in cross-examination, except to put in issue the question whether Dowell had in fact interviewed the plaintiff at Shepparton Police Station.

The evidence, on this aspect of the case, is relatively uncontentious. The plaintiff was arrested at approximately 10:30pm. At 11:05pm, he was conveyed, in the divisional van, to Shepparton Police Station, where he arrived at 11:40pm. There he was placed into the custody of the staff of the Shepparton Police Station. He was processed at the charge counter, where he was checked for injury by the custody supervisor. He was then given a shower at 12:05am. At 12:19am, he was placed in the holding cells, where he remained until 3:35am. I am satisfied that, at that time, he was then interviewed by Dowell, in the presence of Hughes, at the charge counter. On the completion of the interview at 3:48am, he was then taken before the bail justice, who remanded him in custody.

I am satisfied that the decision to transport the plaintiff to Shepparton Police Station was appropriate. The unchallenged evidence of Sergeant Trebilcock is that there were no overnight custody facilities available at Violet Town Police Station or Euroa Police Station. I am also satisfied that the period of delay between the arrest of the plaintiff, and his departure for Shepparton, was appropriate. Part of that time was spent applying aftercare to the plaintiff. In addition, Sergeant Trebilcock needed to make some telephone calls to arrange for the plaintiff to be received at Shepparton Police Station.

There does not seem to have been any untoward delay in processing the plaintiff at Shepparton Police Station, nor in permitting him to have a shower. Thus, I do not consider that there was any unnecessary delay between the plaintiff’s arrest and his placement in the cells at Shepparton Police Station at 12:20am.

There was then a further delay of three hours before the plaintiff was interviewed by Dowell, and then brought before the bail justice. In her evidence, Dowell stated that, during that period, she compiled the remand application and the family violence safety notice, and she carried out the relevant checks in relation to the plaintiff to ensure that she had all the information that she needed for the remand application. Dowell’s evidence, in that respect, was not challenged in cross-examination. I am concerned about the period of three hours, which elapsed, before the plaintiff was brought before the bail justice. However, I accept that Dowell needed to use at least a substantial part of that period in order to conduct the inquiries that she spoke about. In addition, in the meantime, Trebilcock had spoken to Dorothy, to ascertain his medical needs, and in particular details of his medication. Based on that evidence, I am satisfied, on the balance of probabilities, that the plaintiff was brought before the bail justice within a reasonable time.

Accordingly, for the reasons that I stated, I am satisfied that the police defendants each acted lawfully in arresting and detaining the plaintiff from 10:30pm on 19 April 2012 until he was brought before the bail justice at 3:48am on 20 April. It follows that the plaintiff’s claim for damages for assault and false imprisonment must fail.

The plaintiff’s injuries

As a result of the conclusions I have reached on the issue of liability, it is not necessary for me to determine the damages which would be awarded to the plaintiff, if he had succeeded. Ordinarily, where a plaintiff fails on the issue of liability, a judge, at trial, ought to assess the plaintiff’s damages, in the event that the case proceeds further. However, I am unable to make a number of findings in relation to the plaintiff’s injuries, since the nature and extent of those injuries are very much dependent on the acceptance of the plaintiff’s version of the circumstances in which he was arrested and detained, which I have rejected.

The plaintiff and Dorothy each gave evidence, to which I have referred, as to the pain and swelling in the plaintiff’s genitals for a period of three to four days after his arrest. However, he did not suffer any adverse consequences as a result of the deployment of the capsicum spray at him. Nor, as I stated, did he describe, or give evidence of, any other physical injury sustained by him as a result of, or in the course of, his arrest.

The plaintiff and Dorothy both gave evidence as to the plaintiff’s psychological condition since 19 April 2011. Evidence was also given by Professor Dennerstein, who, as I stated, has twice examined the plaintiff in respect of his claim for psychiatric injury.

As I have noted, the magistrate at Wangaratta Court, on 20 April, made it a condition of the plaintiff’s bail that Dorothy attend all medical appointments with him. As a result of that condition, Dorothy was able to properly inform the plaintiff’s doctor of the nature and extent of his alcoholic problem. As a consequence, the plaintiff has been afforded appropriate and successful treatment. With unstinting assistance from Dorothy, and appropriate professional help, the plaintiff has now become successfully cured of his alcoholism. He still takes the medication Naltrexone to inhibit the craving for alcohol that he previously had. However, apart from a number of early blemishes in the first 12 to 18 months after 19 April, he has not drunk any alcohol at least for two years. The fact that he has become cured of that addiction is a most commendable achievement by him, and by his wife Dorothy.

It would also appear that since 19 April, the plaintiff has been placed on different anti-depressant medication, Lexapro. That medication has assisted, and his pre-existing depression has significantly settled. The main psychological issues described by both Dorothy and the plaintiff in their evidence is that he suffers from recurrent nightmares of the events of 19 April, that he suffers sleep disturbance, and that he has been fixated about the circumstances in which he was arrested.

As I have noted, when the plaintiff saw Professor Dennerstein on 22 July 2014, he told Professor Dennerstein that he did not have any pre-existing psychological issues, and that he was engaged in gainful employment in his own business until 19 April. Based on that information, and on her assessment of the plaintiff clinically, Professor Dennerstein concluded that the plaintiff suffered post-traumatic stress disorder (PTSD), and that he also had developed a major depressive disorder that was in partial remission. In her second report dated 26 March 2015, Professor Dennerstein expressed similar conclusions, save that she noted that there seemed to have been some improvement in the level of depression. When she gave evidence, Professor Dennerstein was told, for the first time, of the plaintiff’s lack of interest in his work, and of his other psychological problems, before 19 April 2011. Based on that new information, she considered that the plaintiff would have had a fairly longstanding significant depressive disorder before the events of 19 April. She said that by the time she saw the plaintiff in March 2015, most of his symptoms related to PTSD, and not to the major depressive disorder. She was of the view that the PTSD was permanent, although there may be some improvement in the future.

Professor Dennerstein’s conclusion, that the plaintiff suffered from PTSD, is dependent on the plaintiff’s version of the events of 19 April, and also on the description of the symptoms given by him to Professor Dennerstein. I have already rejected the plaintiff’s version of the events. In addition, it is clear that he did not tell Professor Dennerstein the truth when he related his previous history to her. Those matters make it most difficult, if not impossible, for me to express any useful view concerning the conclusions formed by Professor Dennerstein. It is for those reasons that I do not express any conclusion, or make any further findings, concerning the injuries alleged by the plaintiff.

Summary of conclusions

For the reasons that I stated above, I am satisfied that the three police defendants each acted lawfully in arresting and detaining the plaintiff from 10:30pm on 19 April 2011 until he was brought before a bail justice at 3:48pm on 20 April. In particular, I have reached the following conclusions:

(1)I am satisfied that the police defendants believed, on reasonable grounds, that the plaintiff had breached the interim intervention order obtained against him by Antoinette Gerada, and therefore the police defendants were entitled to arrest the plaintiff, without warrant, pursuant to s 124 of the Family Violence Protection Act 2008.
(2)I am satisfied that when the police defendants arrested the plaintiff at his home at 154 High Street, Violet Town, Sergeant Trebilcock told him sufficiently of the fact of his arrest, and of the reason for his arrest.
(3)I am satisfied that each of the three police defendants did not use unnecessary and disproportionate force in effecting the arrest of the plaintiff.
(4)I am satisfied that the plaintiff was brought before a bail justice within a reasonable time of having been taken into custody by the police defendants.

Based on those conclusions, the plaintiff’s claim for damages for assault and false imprisonment must fail. Accordingly, the proceeding should be dismissed.

[2015] VSC 275

17 June 2015