Carter v Walker

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCI 2009 3824
GRAEME CARTER and STATE OF VICTORIA	Appellants (Second named and Thirteenth named Defendants)
v
DONALD S WALKER AND DR MARCUS T WALKER	Respondents (First named and Second named Plaintiffs)
AND
S APCI 2009 3825
GRAEME CARTER and STATE OF VICTORIA	Appellants (First named and Second named Defendants)
v
DONALD S WALKER AND DR MARCUS T WALKER (as Executors of the Will of Marcia Walker, deceased)	Respondents (First named and Second named Plaintiffs)

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JUDGES:	BUCHANAN, ASHLEY and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16, 17, 18 and 19 August 2010
DATE OF JUDGMENT:	14 December 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 340
JUDGMENT APPEALED FROM:	[2008] VSC 596 (Smith J) [2009] VSC 290 (Smith J)

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ASSAULT AND BATTERY – whether respondents pleaded and proved that police officers acted in concert – whether plea of issue estoppel pursued at trial – abuse of process – ambit of supposed estoppel – whether error in finding no actual or apprehended breach of the peace at time of assaults by police officers - self defence – defence of another – excessive force – credibility of witnesses – significance of unsustainable findings

BATTERY – assault upon others not witnessed by respondent – nervous shock in consequence of seeing and learning of injury to others – no direct interference to person of respondent – whether reasonable foreseeability of injury to class of persons of whom respondent was one, relevant – Battista v Cooper (1976) 14 SASR 225 not followed.

NERVOUS SHOCK – Wilkinson v Downton [1897] 2 QB 57- whether applicable in case of acts – whether person affected must be present - nature of relevant intention

DAMAGES – aggravated damages – exemplary damages – whether matters relied upon were established by the evidence – whether other matters relied upon were relevant – appeal against award of damages in favour of one respondent allowed in part and quantum of aggravated and exemplary damages reduced.

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr N J Young QC with Mr R S Wotherspoon	Victorian Government Solicitor
For the Respondents	Mr R K J Meldrum QC with Mr P A Clarke	Allan McMonnies

BUCHANAN JA
ASHLEY JA
WEINBERG JA:

1. Introduction

Shortly after midnight on Saturday 14 August 1993, police constables Graeme Carter and Mark Sesin went to a residential unit in Surrey Hills occupied by Donald Walker. They were responding to a telephone call about a domestic dispute between Donald Walker and his girlfriend, Ruth Hamm. A physical altercation ensued, involving the policemen, Donald Walker and his mother, Marcia Walker, who lived in an adjoining unit. As a result of the altercation, Donald Walker and his mother were injured. As a consequence of attending the scene, seeing his mother with a dislocated shoulder, and learning what had happened to his brother, Donald, Marcus Walker suffered shock.

Donald Walker and his mother’s estate[1] sued in the Supreme Court and recovered damages for the injuries to Donald and Marcia Walker. Marcus Walker recovered damages in respect of the psychological effects upon him of the injuries sustained by his brother and mother.
[1]She having died from unrelated causes subsequent to the commencement of her civil claim in 1999.

This appeal is concerned with certain of the factual and legal issues that arose from that trial.

2. Background
2.1 The criminal proceedings

Within days of the incident, Donald Walker was charged with criminal offences against Hamm, Carter and Sesin. Criminal proceedings were later brought against Marcia Walker.

The proceedings against both Donald and Marcia Walker came on for hearing on 7 October 1996. Carter and Hamm gave evidence for the prosecution and were cross-examined, although in neither case was their evidence concluded.

On 10 October 1996, the charges against Marcia Walker were withdrawn. Later on the same day, Donald Walker pleaded guilty to an amended charge of hindering Carter in the execution of his duty, contrary to s 52(1) of the Summary Offences Act 1966. A number of charges which had been brought against him were struck out.

2.2 The civil proceedings

In 1999, the Walker brothers and their mother brought separate proceedings. The actions by the brothers were consolidated. The consolidated statement of claim pleaded assault and battery on behalf of Donald Walker, and a nervous shock claim[2] on behalf of Marcus Walker. The defendants to the proceeding were Hamm, Carter, Sesin, the State of Victoria, and a number of other policemen who attended at the scene, or who were persons involved in investigating the events the subject matter of the proceedings.
[2]The juridical basis of which we later examine.

The statement of claim also pleaded an unlawful conspiracy between Hamm and the police defendants whereby Hamm would attend Donald Walker’s home and police would attend in response to Hamm’s false complaint. The police would then assault, beat, falsely imprison and falsely charge Donald Walker with criminal offences.

In separate proceedings, Marcia Walker sued the same defendants. She claimed damages for assault and battery by Carter and Sesin, and alleged that some of the other defendants wilfully failed to properly investigate the assault upon her. Marcia Walker died and, in 2002, the statement of claim was amended by substituting as plaintiffs the Walker brothers as representatives of their mother’s estate and removing the defendants other than Carter and the State of Victoria.

2.3 The trial

On 9 May 2007, both proceedings came on for trial in the Supreme Court before Smith J. On the first day of the trial, the brothers were given leave to amend their statement of claim to delete the conspiracy pleaded against Hamm and the police officers. The only proceedings which then went forward were the claims against Carter and the State of Victoria.

Although the disputed events occurred in a matter of minutes, and involved only four principal protagonists, the trial occupied some 74 sitting days. The trial judge identified a large number of legal, factual, credibility and damages issues, which he analysed and resolved in reasons extending over some 535 pages, including appendices. It appears that his Honour’s labours were required so as to comprehensively deal with oral and written submissions which dissected the evidence in what the trial judge described as ‘enormous detail’.

2.4 The protagonists

At the date of the events the subject matter of the proceedings, Donald Walker was a 42 year old insurance salesman. He had been involved in a volatile relationship with Hamm for about two years. Marcus Walker was some two years younger than Donald Walker. He had gained a doctorate in anatomy and was engaged as a research fellow at Monash Medical Centre. Marcia Walker was a 67 year old widow, who suffered from polymyositis, a degenerative muscle disease.

Carter was 25 years old. Sesin was slightly younger than Carter, but was the senior officer. Carter was still a serving police officer when the proceedings were tried. Sesin had left the police force about a year after the events the subject matter of the trial.

3. Trial judge’s findings
3.1 Credibility

The trial judge said that he was satisfied that Donald Walker’s evidence was honest. Nonetheless, he said that that evidence was to be treated cautiously because of the lapse of time since the events occurred. In addition, Donald Walker’s depression, post-traumatic stress disorder and medication, had led to mistakes in perception, and difficulty in conveying his thoughts clearly.

The trial judge formed an adverse view of the credibility of Carter and Sesin. He stigmatised their evidence as dishonest and unreliable in that they constructed false accounts and deliberately exaggerated the behaviour of Donald Walker and his mother Marcia.

3.2 The ‘preliminary events’

In his reasons for judgment which dealt with questions of liability and bare compensatory damages,[3] the trial judge distinguished between what he characterised as the ‘preliminary events’ and the ‘central events’. The former consisted of events which culminated in the arrival of the police at the unit, the forcible breaking in, and what occurred inside the unit up until the time at which Carter shone a torch light onto Marcia Walker’s face. The latter were the events which took place ‘from the shining of the torch light onto the face of Mrs Walker’.[4] In these reasons, we give those two terms the same meanings.
[3]Walker v Hamm [2008] VSC 596.
[4]Ibid [251].

The trial judge found that Carter and Sesin had received a call from D24 to attend a domestic dispute in the unit. Contrary to their evidence, his Honour found that they were not informed that a woman was being held against her will. Shortly after their arrival, Donald Walker heard a thump on the door and someone shout ‘Police’. He moved from the kitchen towards the front door. When he was within a few feet of the front door, Carter kicked it in, causing a picture to fall from the wall. Again contrary to the evidence of Carter and Sesin, his Honour found that Hamm had not screamed prior to the door being kicked in. Sounds of movement, though not violent, were heard by the police immediately before they broke down the door. When Carter entered, Hamm was in the lounge room. Despite Carter’s evidence to the contrary, his Honour found that she was not being restrained by Donald Walker.

The trial judge also found that, when Carter and Sesin entered the unit, Donald Walker reacted by holding his arms out at shoulder level with his palms out. He attempted to speak to Carter and Sesin, but his attempt was ignored. Carter grabbed him and pushed him against the wall. Donald Walker did not resist. Hamm and Sesin then went into the kitchen while Donald Walker remained with Carter.

Donald Walker was requested to obtain a bag belonging to Hamm, which he had earlier placed in his study. Carter accompanied Donald Walker into the study and Donald Walker returned with the bag, which was handed to Hamm.

At that point, so the trial judge found, the situation appeared to be reasonably calm. Donald Walker, although angry, was not threatening Hamm or the police.

At that moment, Marcia Walker entered the unit. She identified herself as Donald Walker’s mother, and told them that the unit was his home. She told them about her medical condition.

The police asked Hamm to wait outside, and she did so. As Hamm left the unit, her bag accidentally bumped into Marcia Walker, who appeared in danger of losing her balance. Her son tried to go to her assistance, but Sesin grabbed his shirt and tore it before he could do so. At some stage thereafter, Donald Walker removed his shirt.

Donald Walker returned to a position near Sesin and was between Sesin on one side, and Carter and Marcia Walker on the other.

3.3 The ‘central events’

The trial judge found that, at that moment, Carter deliberately shone his torch in Marcia Walker’s face. Donald Walker called out to the police, ‘don’t shine your torch in my mother’s face’. Marcia Walker called to her son, who moved forward to assist his mother. As he did so, Sesin, who was standing between Donald Walker and Carter, stepped into his path and placed Donald Walker in a headlock. The trial judge rejected Carter’s evidence, which was not supported by Sesin, that, before he was placed in a headlock, Donald Walker punched Sesin to the side of his face. His Honour also found that the fact that it was clear that Donald Walker was trying to reach his mother meant that Sesin had no reasonable cause to feel threatened.

Donald Walker saw his mother fall over the couch in the lounge room and onto the floor. When the headlock was placed upon him, he resisted. He scratched Sesin’s face and the inside of Sesin’s mouth. He also caused Sesin’s nose to bleed as a result of his left arm flailing about in an effort to get out of the headlock. Sesin struck Donald Walker a number of blows to the legs with his baton to try and force him to the ground.

Carter then intervened in the struggle between Sesin and Donald Walker by deliberately striking Donald Walker at least twice with his baton to the left side of his upper body. The blows were struck with as much force as Carter could muster. They caused bruising and a fractured rib. While Donald Walker was held in the headlock, Carter struck him on the head. Sesin was also struck, unintentionally, on both arms with Carter’s baton.

The blow by Carter which fractured Donald Walker’s rib also winded him, and he collapsed to the ground. While he was on the ground, more blows were struck to his body, causing severe bruising. The trial judge found that, at one point, Carter dropped onto Donald Walker’s back with his knee, causing another rib to fracture. He concluded that Donald Walker offered very little resistance to the police.

While Donald Walker was being struck with Sesin and Carter’s batons, Marcia Walker attempted to intervene by grabbing Carter’s arm and hitting him on the head with her walking stick. She did so to stop him striking Donald Walker. Carter responded by grabbing the walking stick and smashing it with his baton. He also pushed Marcia Walker to the ground, which, so his Honour found, caused her shoulder to become dislocated.

Carter turned to Donald Walker and, with Sesin, pinned him to the ground, where he was handcuffed. At that time, other police arrived. The trial judge found that, at some point, Carter deliberately stomped on Donald Walker’s right elbow, causing still more bruising.

Marcus Walker was telephoned by his mother. When he arrived at the unit, he saw her being put into an ambulance in the driveway. He also saw his brother later that morning.

4. The trial judge’s conclusions

The trial judge held that the causes of action pleaded by the plaintiffs had been established. His Honour rejected the defences advanced by the appellants. He found that there was no actual or apprehended breach of the peace by Donald Walker, and that the police had no proper basis upon which to exercise any power to arrest him. He found that Carter did not act in self-defence, or in defence of Sesin. He concluded that, in any event, Carter and Sesin had used excessive force against Donald Walker. He found that Marcia Walker had acted as she had in an attempt to defend her son from the unjustified beating that he was receiving. Finally, his Honour concluded that Carter’s conduct towards Marcia Walker could not be justified on the basis of any apprehended breach of the peace, or any right to self-defence.

5. Damages awards

The trial judge awarded Donald Walker $300,000 as general damages, $883,413 as damages for lost earning capacity, comprising $360,000 for past losses and $523,413 for lost future earning capacity, $200,000 as aggravated damages and $400,000 by way of exemplary damages. The damages assessments for Donald Walker totalled $1,783,413.

The trial judge awarded Marcus Walker $200,000 as general damages, $643,610 as damages for lost earning capacity, comprising $187,101 for lost income and $446,509 for lost future earning capacity and $75,000 as aggravated damages. The damages assessments for Marcus Walker totalled $918,610.

His Honour awarded the estate of Marcia Walker $100,000 as general damages, and aggravated damages of $100,000. Therefore, the damages assessments for the estate of Marcia Walker totalled $200,000.

6. Grounds of appeal

The grounds outlined below are those set out in the notice of appeal in the matter of Donald and Marcus Walker (file number 6503 of 1999). There is substantial overlap between these grounds, and those outlined in the matter of the estate of Marcia Walker (file number 6504 of 1999). We will indicate throughout the judgment both where there is overlap, and where the grounds differ.

6.1 Concert

It is convenient to deal first with grounds of appeal 2(a) and (b). The reason for this is that ground 2(a) involves a pleading point, rather than a question arising out of the conduct of the trial. These grounds are in the following terms:

2. The Learned Trial Judge erred:
a)in holding that the first and second respondents had pleaded, in their Further Amended Statement of Claim, that Carter and Mark Sesin were acting in concert when making contact with the body of Donald Walker; and
b)in finding that Carter and Sesin were acting in concert when making contact with Donald Walker’s body.

In their amended statement of claim, Donald and Marcus Walker alleged that Carter and Sesin ‘assaulted and beat’ Donald Walker and his mother, Marcia Walker, ‘thereby injuring them’.[5] The trial judge treated that pleading as one alleging that the policemen had acted in concert. That finding was important because it enabled Sesin’s actions to be sheeted home to Carter, Sesin no longer being a defendant to this proceeding.
[5]Marcia Walker, on the other hand, alleged that Carter alone assaulted and beat her.

The first issue raised in this appeal is whether the respondents pleaded, and established, that Carter and Sesin acted in concert in assaulting Donald Walker.

His Honour rejected a submission by counsel for Carter that acting in concert had not been pleaded, saying:

The pleading is sufficient for the purpose of alleging that Carter and Sesin were joint tortfeasors in that it alleges that each was present and assisted in the commission of the alleged tort. I am not persuaded that any more elaborate pleading along the lines of the various categories identified in the criminal law, assuming them to be recognised in the law of torts, would have assisted. Further particulars might have been sought but they were not. No prejudice has been demonstrated.

Senior counsel for the appellants in this Court (who did not appear at the trial),[6] submitted that the Walkers’ statement of claim failed to allege any understanding, arrangement or agreement between Carter and Sesin that might arguably have formed the basis of the claim of concerted action. He submitted that the use of the word ‘and’ in the statement of claim was consistent with parallel, rather than concerted, activity on the part of Carter and Sesin. Further, he submitted that, irrespective of the challenge to the adequacy of the pleading, there was no evidence whatever to found a conclusion of concerted action, and nothing to indicate that either Carter or Sesin had an understanding, agreement or arrangement to engage in a common design. He submitted that the appellants had conducted their defence throughout on the assumption that the plaintiffs’ abandonment, at the commencement of the trial, of their earlier allegation of an overarching conspiracy had meant that concert was no longer pressed. For that reason, the issue of concert had never been explored at trial, and no evidence elicited from either Carter or Sesin to address that matter.
[6]Hereafter, for convenience, we shall refer to him simply as ‘counsel’.

In addition, counsel contended that the trial judge’s finding that it was Carter who had initiated the physical violence, and that Sesin had ‘no control over him’, could only be taken to be a finding that, with regard to the actual assaults alleged, the two police officers had not been acting in concert.[7]
[7]Walker v Hamm [2008] VSC 596, [204].

In dealing with the pleading limb of his argument, counsel relied upon three cases; TheKoursk,[8] Thompson v Australian Capital Television Pty Ltd,[9] and Smith v Amaca Pty Ltd.[10] He submitted that they all supported his contention that any reliance upon concert, in relation to the commission of a joint tort, must be specifically pleaded.
[8][1924] P 140.
[9](1996) 186 CLR 574, 580.
[10][2009] VSC 318, [33].

In our opinion, the question turns upon the manner in which the parties conducted their cases, rather than upon the niceties of the pleadings. As Isaacs and Rich JJ said, in Gould v Mount Oxide Mines Ltd:[11]

pleadings are only a means to an end, and if the parties in fighting their legal battles choose to restrict them, or to enlarge them, or to disregard them and meet each other on issues fairly fought out, it is impossible for either of them to hark back to the pleadings and treat them as governing the area of contest.

[11](1916) 22 CLR 490, 517.

It was evident that the plaintiffs saw Carter and Sesin as joint tortfeasors acting together to achieve a common end. They were questioned by counsel for the plaintiffs with a view to establishing that they acted in precisely that way. Sesin, who was no longer a party to the proceedings, was cross-examined at length. That cross-examination was not directed solely to his credit, but went also to the issue of the lawfulness of his conduct. The cross-examination sought to establish Sesin’s involvement in, and responsibility for, the injuries sustained by Donald and Marcia Walker. Plainly, it was directed towards providing a basis upon which Carter could be held liable for Sesin’s actions.

On the other hand, neither Carter, nor the State of Victoria, sought to elicit any evidence that Carter and Sesin were not acting as a team to achieve a common end, but were instead acting coincidentally in parallel.

In our opinion, the stance now taken by the appellants, that, at trial, they believed the plaintiffs’ case to be one of parallel assaults leading to several, not joint, liability, appears to be almost disingenuous.

As regards the alternative basis upon which the concert ground was argued, there was ample evidence, in our view, to support the trial judge’s finding that Carter and Sesin were acting jointly, and with a common purpose, when they attended at the premises, broke down the door, entered and assisted each other in subduing Donald Walker. They were still acting jointly and with a common purpose when they sought to prevent Marcia Walker from interfering in their subjugation of her son. From the moment they entered the unit, Carter and Sesin acted as a team, each supporting the other. It goes without saying that evidence of an express agreement was unnecessary. His Honour was entitled to make the findings which he did.

We would reject grounds 2(a) and (b).

6.2 Estoppel

We turn next to ground 1, which is in the following terms:

1.The Trial Judge should have found that the first respondent (“Donald Walker”), having pleaded guilty to a charge of hindering the First Appellant (“Carter”) in the execution of his duty in the Magistrates’ Court of Victoria on 10 October 1996, was estopped from asserting that:
a)the sounds coming from inside the premises did not warrant investigation or the forcible entry into the premises by Carter and (then) Constable Mark Sesin (“Sesin”);
b)Donald Walker was not restraining or restricting Ruth Hamm when Carter and Sesin entered the premises;
c)there was no breach of the peace taking place inside the premises following entry.

As previously stated, Donald Walker pleaded guilty on 10 October 1996, at the Melbourne Magistrates’ Court, to one charge of hindering Carter in the execution of his duty. The plea of guilty was obviously the result of a plea bargain, given that a number of charges of a more serious nature were withdrawn. Although the magistrate did not proceed to a conviction, he found the charge proved.

Counsel for the appellants submitted that it was not open to the trial judge to find, as he did, that neither Carter nor Sesin had any lawful justification for having broken down the door to Donald Walker’s unit, and entered his premises, on the night in question.

Although the lawfulness, or otherwise, of Carter and Sesin’s entry into Donald Walker’s unit was not itself a core issue in the trial, counsel submitted that his Honour’s findings regarding the entry were of considerable significance. He submitted that the trial judge had used the finding that the police had entered the unit as trespassers as support for his conclusion that the various assaults pleaded had been committed.

More particularly, counsel submitted that the trial judge used the finding of trespassory entry to support a series of factual conclusions that were central to Donald Walker’s case. These were that:

· Carter was not justified in putting his hand on Marcia Walker’s shoulder, and shining a torch in her face;

· Sesin was not entitled to apply a headlock to Donald Walker;

· Carter was not entitled to strike Donald Walker with his baton; and

· Carter was not justified in pushing Marcia Walker.

Counsel submitted that the trial judge then used his findings in relation to the ‘preliminary events’ in two, quite separate, ways. First, his Honour used those findings to support his conclusion that, when he came to consider the central issues in the trial, neither Carter nor Sesin had given truthful evidence. Secondly, his Honour used those findings as one factor, among many, in his decision to reject Carter’s defence.

It is clear that both Carter, and the State of Victoria, pleaded, and relied upon issue estoppel in their defence to the plaintiffs’ statement of claim. Indeed, they asserted in their pleading that issue estoppel constituted a complete bar to all allegations brought against them. Counsel submitted that the trial judge ought to have accepted that contention.

In the alternative, counsel submitted that it was not open to the trial judge, in the light of Donald Walker’s plea of guilty in the Magistrates’ Court, to find that the police had acted unlawfully when they entered the unit. He further submitted that his Honour was not entitled to reject any of the facts accepted by the magistrate, at the time the plea was entered, which were indispensable to his finding that the charge of having hindered the police was proved. He submitted that these facts included Carter’s claim that, immediately before he broke down the door, he heard Hamm and Donald Walker arguing about whether to let the police in, and that he heard Hamm scream. He submitted that they also included Carter’s claim that Donald Walker was physically restraining Hamm when the police entered the unit.

In support of that submission, counsel relied upon the statement of principle set out by Dixon J in Blair v Curran.[12] He submitted that the ‘legally indispensable issue’ resolved in the Magistrates’ Court was that both Carter and Sesin were acting in the course of their duty when they forced their way into Donald Walker’s unit. It was a necessary part of that conclusion that those two officers reasonably believed that they needed to do so in order to prevent a breach of the peace.
[12](1939) 62 CLR 464, 532.

Indeed, counsel went further. He pointed to the agreed summary of facts read to the magistrate by the prosecutor at the time the plea was entered.[13] He submitted that the magistrate’s finding that the charge of hindering was proved necessarily incorporated that summary of facts. The prosecutor told the magistrate, without objection from Donald Walker’s counsel, that the plea of guilty was based upon the agreed summary of facts, and ‘the entry by the police into the premises on the night in the terms that you have already heard’.[14]
[13]Subject only to a minor gloss placed upon that agreed summary by counsel who then represented Donald Walker.
[14]Emphasis added.

Counsel submitted that the prosecutor’s reference on the plea to the ‘terms’ that the Magistrate had ‘already heard’ was obviously meant to encompass, and to incorporate in the evidence upon which the plea was based, the testimony which had already, by that stage, been led. That included the evidence of both Carter and Hamm, each of whom had, by then, been cross-examined, though, as we have said, their evidence had not been concluded.

Counsel submitted that, by his plea of guilty, Donald Walker should be taken to have admitted that Carter’s evidence as to the circumstances surrounding his and Sesin’s entry into the unit was both truthful and accurate. He submitted that the same should be said of Hamm’s evidence before the magistrate, which was, broadly speaking, consistent with that given by Carter.

It should be noted that Donald Walker’s evidence in these proceedings as to what took place just before, and at the time, the police broke down the door and entered his unit was diametrically opposed to the evidence given by both Carter and Sesin. It was also fundamentally at odds with the evidence given by Hamm in the Magistrates’ Court.

The differences between Carter and Sesin on the one hand, and Donald Walker on the other, were really quite fundamental. Donald Walker categorically denied having had any discussion, still less any argument, with Hamm as to whether the police should be permitted to enter. He emphatically denied that Hamm had screamed. He insisted that he had not, at any stage, physically restrained Hamm. He maintained that neither Carter nor Sesin had said anything to him about letting her go.

Counsel for the appellants noted that senior counsel for Donald Walker (who had appeared at the trial as well as before this Court)[15] had frankly acknowledged below that it would be difficult for his client to persuade the Court that the police entry into the premises had been unlawful. The issue had been raised during the course of closing submissions. The trial judge had asked counsel whether his client’s claim for aggravated and exemplary damages necessitated a finding that the police had entered the unit as trespassers.
[15]Again, for convenience, we will simply refer to him as ‘counsel’ hereafter.

The transcript was said to be instructive. It reads as follows:

[COUNSEL]: Trespass and trespass to the person. They rolled in under the …
HIS HONOUR: You haven’t sought to argue here there was any trespass to property.
[COUNSEL]: No.
HIS HONOUR: In other words, you concede there was a basis for them entering the property?
[COUNSEL]: There may have been a basis and we can’t show that there was not.
HIS HONOUR: I see.
[COUNSEL]: To put it positively is not the way – we don’t have to go that far because not much damage occurred as a consequences of the trespass to the property. We really start with the assault.[16]

[16]Emphasis added.

Counsel for the appellants submitted that it was extraordinary, to say the least, that the trial judge, despite having heard Donald Walker’s counsel concede that he could not establish that the entry into the unit had been unlawful, nonetheless concluded that there was a trespass to property. He submitted that his Honour was not entitled to come to that conclusion, both because it was in stark conflict with the earlier plea in the Magistrates’ Court by Donald Walker, and because there was, in any event, no evidential basis for such a finding.

Counsel submitted that it was particularly noteworthy that, although issue estoppel had been specifically pleaded in the appellants’ defence, and also addressed in both oral and written argument, the trial judge had not said a single word about it throughout his copious and lengthy reasons for judgment. His Honour had simply made a series of factual findings regarding the entry into the unit, every one of them favourable to Donald Walker, and every one of them unfavourable to the police.

As we have said, it is clear that the appellants pleaded and relied upon issue estoppel in answer to the claim brought against them. In their further amended defence, issue estoppel was pleaded in the following terms:

2.In answer to paragraph 2 thereof, the police defendants:
…
(f)say further that the firstnamed plaintiff’s claim in paragraph 2 of the amended statement of claim is barred by an issue estoppel in that, in relation to the acts the subject of paragraph 2 thereof, the firstnamed plaintiff pleaded guilty to the offence of hindering the secondnamed defendant in the execution of his duty, contrary to section 52(1) of the Summary Offences Act 1966 (Vic).

This pleading could have been better expressed. It did not state, with precision, the exact ambit of the issue estoppel upon which the defendants relied. This lack of precision was further illustrated by the contention, sometimes advanced for the appellants during the course of the trial, that the plaintiffs’ entire case was barred by reason of Donald Walker’s having pleaded guilty to having hindered the police.

The submission, in that form, was not sustainable. The charge of hindering, as it was presented to the magistrate, clearly related to the events that took place immediately after the police entered the unit.[17] It had nothing to do with the altercation that took place subsequently. That was the subject of separate charges that were withdrawn as part of the general plea bargain.
[17]In effect, it concerned aspects of the so-called ‘preliminary events’, namely, the entry by the police into the unit, and the physical restraint that Donald Walker imposed upon Hamm.

The plea of guilty could therefore, at most, have given rise to an issue estoppel confined to the factual and legal conclusions reached in relation to the charge of hindering. It could not, on any view, have barred the plaintiffs’ claims in their entirety.

In his reasons for judgment, the trial judge made only one brief reference to the relevance of Donald Walker’s plea of guilty in the Magistrates’ Court. He said:

I note that defence counsel sought to rely on the fact that Donald Walker pleaded guilty to a charge of obstructing the police after the charges against him were withdrawn. I accept the submission of his counsel, however, that in the circumstances in which the plea was made and announced, no relevant admission was involved.[18]

[18]Walker v Hamm [2008] VSC 596, [1170].

Self-evidently, his Honour said nothing in that passage as to the appellants’ reliance upon issue estoppel. His remarks were directed, instead, towards a different point, namely, whether the plea of guilty should be viewed as an admission against interest. He concluded that the plea of guilty should not be so regarded. That was because he considered it, from an evidentiary point of view, to have little or no weight. In his Honour’s opinion, it reflected nothing more than an exercise in expediency.

However valid his Honour’s assessment of the plea might be from an evidentiary point of view, that would not provide an answer to its operation as the basis for an issue estoppel. Such a claim is not evidentiary in nature, but is based instead upon considerations of public policy.

In Mills v Cooper,[19] Diplock LJ said:

Whatever may be said of other rules of law to which the label of ‘estoppel’ is attached ‘issue estoppel’ is not a rule of evidence … it has the effect of preventing the party ‘estopped’ from calling evidence to show that the assertion which is the subject of the issue estoppel is incorrect … because … there being no issue … to which such evidence would be relevant. Issue estoppel is a particular application of the general rule of public policy that there should be finality in litigation.

[19](1967) 2 QB 459, 469.

That passage was cited with approval by the High Court in Rogers v The Queen,[20] and by the House of Lords in DPP v Humphrys.[21]
[20](1994) 181 CLR 251, 274.
[21][1977] AC 1, 19-21 (Viscount Dilhorne) and 39-40 (Lord Hailsham) (‘Humphrys’).

The rationale of issue estoppel lies in the importance, in all legal systems, of finality. There must be limits placed upon the right of individuals to reopen disputes. As Lord Wilberforce said in The Ampthill Peerage Case:[22]

Any determination of disputable fact may, the law recognizes, be imperfect: the law aims at providing the best and safest solution compatible with human fallibility and having reached that solution it closes the book.

[22][1977] AC 547, 569.

Handley JA, in Spencer Bower and Handley the Doctrine of Res Judicata,[23] summarised the matter clearly:

Two policies support the doctrine of res judicata estoppel: the interest of the community in the termination of disputes and the finality and conclusiveness of judicial decisions; and the interest of an individual in being protected from repeated suits and prosecutions for the same cause.[24]

[23]G Spencer Bower, Spencer Bower and Handley the Doctrine of Res Judicata (4^th ed, 2009).

[24]Ibid [1.10]. It should be noted that Spencer Bower and Handley treat issue estoppel as one of two forms of res judicata estoppel, the other being what they term cause of action estoppel. Their nomenclature is distinctive, and would not find universal approval. See also Hamersley Iron Pty Ltd v National Competition Council (2008) 247 ALR 385, 394-5 for a discussion of res judicata.

That said, there are, of course, some limitations upon the use which can be made of issue estoppel. In England, the House of Lords has held that the doctrine has no place in the criminal law.[25] By that, it seems, is meant that the doctrine cannot be invoked in a criminal trial. As will be seen, that view seems now to be largely accepted in this country. However, whether in the final analysis anything substantive turns upon that conclusion is perhaps a matter for debate.
[25]Humphrys [1977] AC 1.

The principles governing the operation of the doctrine are, by now, reasonably well settled. The first is that an issue estoppel may be found to arise out of either a determination of fact, or of law.[26] The next is that an issue estoppel can result from an inferred judicial determination. That includes a conviction in a criminal proceeding. However, such an estoppel can only apply if an issue in the second proceeding is the same as one decided in or covered by the first.[27] The determination must be integral to the actual decision reached, and not merely incidental or collateral. Issue estoppel, of course, applies only to issues. There is no estoppel as to mere evidentiary facts found in the course of determining those issues.[28] An issue estoppel can arise out of a consent judgment, but it only applies to fundamental issues clearly determined by that judgment.[29]
[26]Murphy v Abi-Saab (1995) 37 NSWLR 280.
[27]Kuligowski v Metrobus (2004) 200 CLR 363.
[28]Egri v DRG Australia Ltd (1988) 19 NSWLR 600.
[29]Commissioner of Taxation v Day (2007) 164 FCR 250.

In England, there is still some measure of controversy surrounding the use that can be made of findings in criminal proceedings when it comes to subsequent civil proceedings. In Hunter v Chief Constable of the West Midlands Police,[30] six men who had been convicted of terrorist acts on the basis of confessional evidence sued the police officers who had detained them for assault arising out of the events leading up to the making of those confessional statements. The trial judge had ruled, during the course of the criminal trial, that the confessions were voluntary. The plaintiffs sought to challenge that finding during the subsequent civil proceeding.
[30][1982] AC 529.

The House of Lords held that it would be contrary to public policy to permit a civil action to be used to initiate a collateral attack upon a final decision made by a criminal court of competent jurisdiction. Lord Diplock, with whom the other members of the House of Lords agreed, observed that it would be best, in order to avoid confusion, if the use of the description ‘issue estoppel’ were restricted to ‘that species of estoppel per rem judicatam that may arise in civil actions between the same parties or their privies’. His Lordship endorsed the view, previously expressed in Humphrys,[31] that ‘issue estoppel’ had no place in English criminal law. He considered that substantially the same result could be achieved by approaching the matter on the basis of the doctrine of abuse of process, rather than issue estoppel.
[31][1977] AC 1.

The position in this country is essentially the same as that espoused in England. The High Court has made it plain that issue estoppel, as that doctrine has developed in civil proceedings, has no application to criminal proceedings.[32]
[32]R v Storey (1978) 140 CLR 364.

In Rogers v The Queen,[33] the accused was tried in 1989 on four counts of armed robbery. The prosecution sought to rely on various admissions which he was said to have made. The trial judge rejected the tender of various records of interview on the basis that they were not voluntary. In 1992, the accused was indicted on a further eight counts of armed robbery. At that trial, the prosecution proposed to rely on one of the records of interview previously held to be inadmissible. The High Court, by majority, held that the tender of that record of interview would constitute a direct challenge to the 1989 determination and, in the circumstances, would be an abuse of process.
[33](1994) 181 CLR 251 (‘Rogers’).

Mason CJ, with whom Deane and Gaudron JJ relevantly agreed, stated:

The availability of res judicata, the defences of autrefois acquit and autrefois convict and the rule against double jeopardy and the doctrine of abuse of process make it unnecessary to introduce the doctrine of issue estoppel into

the criminal law. Moreover, the introduction of issue estoppel and all its complexities would serve only to make the criminal law more convoluted.[34]

[34]Ibid 255.

Of course, Rogers[35] concerned the use in subsequent criminal proceedings of evidence previously ruled inadmissible in an earlier criminal trial. That is not the situation that confronted the trial judge in the present case. His Honour was concerned only with whether a finding in an earlier criminal proceeding could constitute an issue estoppel in a subsequent civil proceeding.
[35](1994) 181 CLR 251.

Despite that difference, the question whether his Honour’s conclusion that the police had no justification for entering Donald Walker’s unit might be seen as impugning the magistrate’s finding that the offence of hindering had been proved should, in our view, have been considered. It may be that it was overlooked because Donald Walker’s counsel had not pressed the issue and, in those circumstances, it did not fit happily into the prism of abuse of process through which allied claims are now addressed in this country.

Another explanation for the trial judge’s failure to deal with the issue is perhaps the last-minute change to the parties to the proceeding. The prosecution in the Magistrates’ Court had been instituted by Sergeant Graham Rodgers, who was the informant against Donald Walker, and not by Carter. Rodgers was originally the ninth defendant in this proceeding. However, it was made clear, at the commencement of the trial, that the case against Rodgers (and all other defendants apart from Carter and the State of Victoria) would be discontinued.

For reasons that are not entirely apparent, no notice of discontinuance was ever actually filed. Accordingly, Rodgers remained a party to this proceeding, albeit in a technical sense only. Formally, therefore, the requirement of identity of parties was met. As a matter of substance, however, there might have been difficulties in establishing this requirement.

Another possible explanation for the trial judge’s failure to refer to issue estoppel in his reasons for judgment may be the manner in which that issue was dealt with at trial. In their written submissions at trial, the appellants referred briefly to the doctrine, noting:

An issue estoppel arises … in that Donald Walker pleaded guilty to hindering police. He admitted this plea in evidence at TS 2302/9, having earlier asserted at TS 2301/22 that he knew he wasn’t guilty at that stage of anything. The prosecution summary on the plea is admitted in paragraph 9 of the Plaintiffs’ Reply in this proceeding dated 27 April 2007. It is also in evidence in exhibit C55. Cameron v James [1945] VLR 113 … is authority that the finding that a charge is proven in a criminal proceeding can raise an estoppel in respect of the subject matter of that charge, in a subsequent civil proceeding. The relevant passages are on page 116 of the judgment of Gavan Duffy J and Herring CJ. A necessary element of the plea of guilty by Donald Walker is that Carter was acting in the execution of his duty immediately after entering the premises. Donald Walker is estopped from making any contrary assertion in this proceeding.

When it came to oral submissions, however, senior counsel for Carter took a somewhat different approach to the significance of this doctrine. He began by submitting that there was no issue in this case as to the lawfulness, or otherwise, of his client’s entry into the unit. He noted, correctly, that counsel for Donald Walker had advanced no argument to the contrary. The trial judge appeared to accept that submission, and described the approach taken by Donald Walker’s counsel as having entailed a ‘wise concession’.

Counsel for Carter then commenced to argue that the plea of guilty in the Magistrates’ Court had given rise to an estoppel. At that point, however, he was interrupted by the trial judge who said:

I think I gave a decision in a case not so long ago involving a certain Mr Brereton, where the Crown sought to argue that there was an estoppel raised by a criminal prosecution, or course adopted, and that can be relied upon in civil proceedings and I think I gave that short shrift from memory. I challenged counsel to produce some authority which he wasn’t able to do.

Counsel for Carter then reminded his Honour of Cameron v James,[36] to which reference had earlier been made in the written submissions in support of his contention that issue estoppel did apply. It seems that his Honour was not persuaded. The transcript of what then took place reads as follows:

HIS HONOUR: In terms of evidence, that’s another matter.
[COUNSEL]: It is indeed.
HIS HONOUR: That’s probably sufficient for your purpose anyway, isn’t it?
[COUNSEL]: Yes, I will move on.

[36][1945] VLR 113.

Therefore, it appears that, notwithstanding Carter’s reliance upon issue estoppel in both his defence as pleaded, and in the written submissions filed on his behalf, counsel who appeared for him at trial was content, in the end, to have Donald Walker’s plea of guilty dealt with as an evidentiary issue, rather than as a matter of public policy.

From that point on, that was precisely how the plea of guilty was approached. Thereafter, the issue of whether Carter and Sesin were justified in having entered the unit was dealt with purely on an evidentiary basis. It was not submitted, at any stage after that, that any finding of trespassory entry was foreclosed.

Not unnaturally, Donald Walker’s counsel was perfectly content to deal with the matter at trial on this basis. He approached the issue of what took place when the police entered the premises by urging his Honour to accept his client’s evidence in preference to the evidence given by Carter and Sesin. In his written submissions filed at trial, he dealt with issue estoppel in a single sentence. He merely submitted that the plea of guilty was ‘in any event … merely an admission rather than a res judicata or a matter of issue estoppel’.

That one line treatment was, of course, nothing more than argument by assertion. It was hardly an adequate response to a matter that had, after all, been pleaded, and also canvassed in written submissions filed on behalf of the defendants. It may be that counsel was wise, forensically, to approach the matter in that way. Nonetheless, it provides an additional explanation as to why issue estoppel all but disappeared from the trial from that point onwards.

That is illustrated by the oral submissions made regarding the effect that should be given to Donald Walker’s plea of guilty. When counsel for Carter addressed the events that he described as having taken place ‘outside the door’, he merely submitted that, as a factual matter, the trial judge ‘ought accept the constables’ account of what occurred there’.

Counsel continued:

Your Honour, it is not suggested by the plaintiffs, as we understand it, that the kicking of the door in was unjustified and it ought not be because there were three very good reasons. One was the woman saying ‘Let them in’, then there was a scuffle, banging and crashing and finally of course, the scream. It is submitted that failure to kick the door in – this is a distinct proposition to it being lawful – failure to enter immediately in that circumstance by forcing the door would have been in dereliction of their duty, it is submitted and in fact those words appear in paragraph 86.

In other words, Carter’s case as regards entry into the unit was presented to his Honour on an entirely factual footing. Counsel said not a word, at this pivotal point, about issue estoppel, any reliance on that doctrine having been put to one side.

It may be that counsel conducted his case in that manner because he believed, on the basis of what Donald Walker’s counsel had previously said, and also on the basis of the trial judge’s earlier intimation, that there was no real issue in this proceeding about the lawfulness of Carter’s entry into the unit. That view finds support in his Honour’s remarks, immediately after the passage set out above:

I don’t understand counsel for the plaintiffs suggesting that even on their version of events there is a criticism to be levelled at the manner of entry, the knocking down of the door.

If the trial judge’s observation explains why Carter’s counsel did not rely in terms upon issue estoppel as a complete answer to any suggestion that the police had entered the unit without lawful justification, that was a forensic decision which he chose to take. His Honour, despite having said what he did, nonetheless concluded that the police had no justification for having broken down the door and entered the unit. Having carefully considered the evidence of Carter and Sesin regarding that matter, and having treated the plea of guilty as nothing more than an evidentiary issue, his Honour preferred the account given by Donald Walker. The question is, did he fall into appealable error by failing to uphold the plea of issue estoppel?

In answering that question, it must be remembered that Carter’s counsel did not object to Donald Walker’s evidence regarding the events leading up to the altercation in the unit, despite the fact that his account could not be reconciled with his earlier plea of guilty in the Magistrates’ Court. Donald Walker was permitted to give evidence that stood in stark contrast with the testimony of both Carter and Hamm at the Magistrates’ Court. If there was to be reliance upon issue estoppel, it was surely counsel’s duty to have taken objection to Donald Walker’s evidence at the time it was given.

Had counsel taken such objection, the chances are that the trial judge would have had his attention more forcefully drawn to the decision of the Full Court in Cameron v James,[37] a case directly in point. There, it was held that the plaintiff, in an action claiming damages for false imprisonment and malicious prosecution, was estopped from challenging the earlier finding of a Court of Petty Sessions to the effect that a charge had been proved.
[37][1945] VLR 113.

Gavan Duffy J, who delivered the judgment of Herring CJ and himself, said:

It is immaterial for the purposes of estoppel whether the decision relied on was in civil or criminal proceedings … in the present case the parties to the information and to the action in the County Court were the same.
…
The plaintiff in this case therefore was estopped from denying that she had used insulting words in a public place at the relevant time and place, and since there was no dispute that the words, whatever they were, were spoken to the constable, he had a right … to arrest the plaintiff and the judgment appealed against cannot stand.[38]

[38]Ibid 116-7.

The net effect of all this is as follows. Although issue estoppel was pleaded, and indeed discussed briefly in written submissions, in a practical sense it was all but abandoned in favour of a submission that the plea of guilty should be regarded as an admission against interest, and nothing more.

That is not, however, the end of the matter. Even if issue estoppel should be viewed as having been waived, which we consider is the proper analysis, there remains a question as to whether the trial judge’s findings with respect to certain aspects of the ‘preliminary events’ are sustainable. That issue is directly raised by ground 3, to which we next turn.

6.3 Findings of fact regarding ‘preliminary events’

Ground 3[39] is in the following terms:
[39]Paragraphs (a) to (h) are replicated by ground 1 of the notice of appeal in the matter involving the estate of Marcia Walker.

Given the learned Trial Judge’s findings of fact concerning the circumstances following the forcible entry into the Surrey Hills premises, including findings that:
a)Carter and Sesin were scared and highly anxious about dealing with a domestic violence situation;
b)upon entry Carter restrained Donald Walker and pushed him against a passageway wall;
c)Donald Walker was angry at the police and Ruth Hamm, and would not have attempted to hide his anger;
d)Marcia Walker, who was significantly disabled, entered the premises. Marcia Walker was asked by Carter to leave but she did not do so;
e)as Ruth Hamm left the premises, she bumped Marcia Walker with a bag and Marcia Walker appeared to be in danger of losing her balance;
f)Donald Walker tried to go to the aid of Marcia Walker;
g)Sesin grabbed Donald Walker’s shirt in an attempt to restrain him and his shirt was torn. Donald Walker withdrew and removed his shirt;
h)Carter radioed for police assistance;
i)Carter approached Marcia Walker, put his hand on her shoulder and shone his torch in her face in an attempt to move her out of the premises;
j)Donald Walker said to Carter to get the torch out of his mother’s eyes and moved quickly towards Marcia Walker and Carter;
k)Marcia Walker fell over the couch to the floor in the lounge room –

the learned Trial Judge should have concluded that there was a breach of the peace, alternatively that Sesin and Carter reasonably apprehended a threatened breach of the peace when Donald Walker moved towards Marcia Walker and Carter.[40]

[40]In ground 1 of the notice of appeal in the matter involving the estate of Marcia Walker, the final lines read:

‘the learned Trial Judge ought to have concluded that there was a breach of the peace, alternatively that Carter reasonably apprehended a threatened breach of the peace which justified Carter’s actions at the front door of the premises against Marcia Walker.’

In oral argument, counsel for the appellants focussed predominantly upon a number of findings made by the trial judge as to the ‘preliminary events’. He sought to demonstrate that the findings were erroneous, and that the conclusions reached by his Honour concerning those matters impacted upon, and influenced, his conclusion – despite the findings of fact set out in ground 3 - that there was no breach of the peace, actual or apprehended, prior to the moment that Carter shone his torch in Marcia Walker’s face.

It must be said at the outset that the trial judge had the advantage of seeing and hearing Donald Walker, as well as Carter and Sesin, give evidence-in-chief, and be cross-examined. In those circumstances, this Court would not lightly set aside findings of fact based to any significant degree upon matters of impression, so far as credibility of witnesses might be concerned.

Despite having made the findings set out at paragraphs (a) to (k) of ground 3 above, the trial judge remained unpersuaded that there was any breach of the peace, or that Carter and Sesin reasonably apprehended any such breach of the peace, at or about the time Donald Walker moved towards his mother. His Honour arrived at that conclusion after carefully considering what weight should be attached to the evidence of each of the key players. While it may be true, as counsel for the appellants submitted, that, to some degree, his Honour’s conclusion regarding ‘breach of the peace’ was influenced by some of the findings made with respect to the ‘preliminary events’, it by no means follows that a successful challenge to those findings must lead to ground 3 succeeding. Indeed, we should say immediately that we are not persuaded, having regard not only to the findings referred to in ground 3,[41] but to all the evidence, that this ground should succeed.
[41]All of them, probably including (a), were themselves part of the ‘preliminary events’.

That said, the trial judge did make particular findings with respect to the ‘preliminary events’ that seem to us difficult to support. For example, his Honour rejected the evidence of Carter and Sesin that, prior to their arrival at the unit, they had been told that there was a woman being held ‘against her will’.[42] That finding directly conflicted with a contemporaneous D24 record made independently of both Carter and Sesin. It also conflicted with the unchallenged evidence given at trial by another police officer, Darryl Chamberlain, that this was what he was told when he was contacted by Ms Gough (an acquaintance of Hamm who telephoned the police), and also what he conveyed to the dispatcher.
[42]Walker v Hamm (No 2) [2009] VSC 290, [250].

Moreover, the finding is difficult to reconcile with the unchallenged evidence of the dispatcher, Sheridan Rodgers, that it was her belief that she would have conveyed to Carter and Sesin precisely what she herself had been told, because that was her normal practice.

The only reason given by the trial judge for rejecting this evidence was that neither Carter nor Sesin had made any mention of a woman being held ‘against her will’ in the police running sheet that they prepared on the night in question. In our view, however, putting aside altogether the evidence of Carter and Sesin, there was a body of evidence deriving from a variety of independent sources that was plainly cogent and in no way improbable. That evidence ought not to have been rejected on so fragile a basis.

A second example may be considered. The trial judge accepted, in its entirety, Donald Walker’s account of the circumstances that led up to the police breaking into his unit. Yet that account seems to us to have been inherently improbable. Donald Walker claimed that the police simply broke down his door, without any prior warning, and with no justification. He claimed that neither he, nor Hamm, had mentioned anything about whether the police should be denied or permitted entry.

Donald Walker’s case on this point seems far-fetched. His counsel submitted, at trial, that the trial judge should find that Carter and Sesin had been told nothing more, before their arrival at the unit, than that there was a ‘domestic’ taking place. That scenario may have made sense while the overarching conspiracy case was still on foot. It made no sense at all, however, once that case was abandoned. We consider it to be highly unlikely that Carter would have kicked the door down if that was all the police had been told. There had to be something more either said to them, or overheard, to make that somewhat extreme action explicable.

In our view, the trial judge had no reason, despite his justifiable rejection of the evidence of Carter and Sesin about other matters, to disbelieve their evidence that they overheard Donald Walker and Hamm arguing about whether they should be admitted to the unit. Importantly, their evidence on this point accords precisely with the account they gave to Sergeant Kim Pluim on the night in question. It is significant that Pluim tape recorded what Carter and Sesin had said, and that they were unaware of the fact that they were being surreptitiously recorded.

In addition, it must be remembered that Donald Walker had been drinking heavily on the night in question. That must cast some doubt upon the accuracy of his recollection, particularly with respect to what were, in substance, events peripheral to the circumstances of the assault.

The next example relates to the scream that Carter and Sesin say they heard before entering the unit. As we have previously noted, the trial judge rejected their evidence on this point. We consider, however, that there was no proper basis for that rejection. His Honour’s dissatisfaction with the credibility of Carter and Sesin, for reasons which he explained in detail, could only be stretched so far. Here, objective circumstances told against rejection of the particular evidence. Both Carter and Sesin told Pluim that, immediately before breaking down the door, they heard a scream from inside the unit. Hamm gave evidence at the Magistrates’ Court that she had screamed. It is true that, at a later stage, she appears to have resiled from that claim, and that was perhaps one reason why she was not called to give evidence at the trial. Nonetheless, these matters were openly discussed before the trial judge, and he was well aware of Hamm’s initial position.

In addition, the evidence given by Gough, who was, after all, an independent witness, that Hamm had been in a distressed state earlier that evening, provides some support for the account given by Carter and Sesin in this regard. The trial judge rejected Gough’s evidence for reasons that we find difficult to fully understand. His Honour concluded that she was not a credible witness, essentially because her evidence did not accord with the account of what had taken place on the evening in question given by Jack Kalife, an acquaintance of hers, some six months after the altercation took place. Kalife did not give evidence. There may have been any number of explanations as to why his statement to the police differed in some respects from that prepared by Gough. To conclude that she was an unreliable witness merely because some of the matters she described were not replicated in Kalife’s subsequent statement seems unsound.

The trial judge made some other findings as to collateral matters that we regard as unsustainable. For example, we ourselves are satisfied that a so-called ‘Code 9’ call was made, as both Carter and Sesin claimed in evidence which his Honour rejected. The fact that such a call was made was noted contemporaneously by several police officers, none of whom would have the slightest reason to lie. The fact that Carter and Sesin did not themselves refer to a Code 9, but rather ‘a call for back-up’, appears to have assumed some significance in his Honour’s reasoning. In our view, the use of such language was of no particular significance. We cannot accept, with respect, his Honour’s finding that those police officers who said that

they had recorded a Code 9, and whose evidence was unchallenged with regard to that matter, had lied about it.

In summary, a number of the trial judge’s findings regarding the ‘preliminary events’ were, in our view, against the weight of the evidence, and therefore unsustainable. That would be so irrespective of whether those findings should have been barred in any event by reason of issue estoppel.

Ground 3, however, as we have said, does not challenge the trial judge’s findings set out in paragraphs (a) - (k) of that ground. Rather it argues that, having reached them, his Honour ought to have come to a different conclusion on the breach of the peace issue. According to the appellants’ submissions, his Honour’s failure to so conclude was attributable to the noxious effect of unjustified findings which he made about other matters.

That broader contention raises altogether different considerations from a simple attack upon critical findings of fact. A number of the trial judge’s findings as to the ‘preliminary events’ were unsustainable. Nevertheless, it does not follow that his Honour’s conclusion that there was no breach of the peace actually occurring, or reasonably imminent, at the moment Donald Walker moved towards his mother was thereby vitiated. Neither the findings identified by ground 3, nor the evidence more generally (the latter being addressed by ground 4), have led us to conclude that his Honour’s conclusion on the breach of the peace issue was erroneous.

We should add the erroneous findings as to the ‘preliminary events’ would not, of themselves, establish that the key findings made by the trial judge, namely those relating to the ‘central events’, were tainted and ought to be set aside. That is an entirely separate question, and one which requires careful consideration to be given to grounds 5 to 8. Those grounds, taken together, challenge the trial judge’s findings as to the ‘central events’, which, as we have said, commenced at the time that Carter shone the torch into Marcia Walker’s face.

Ground 3, for the reasons which we have stated, is not made out.

6.3Other submissions as to breach of the peace and apprehended breach of the peace

Ground 4 reads as follows:

4.The learned Trial Judge erred in concluding that there was no potential breach of the peace involved in Donald Walker’s move towards Marcia Walker and Carter.

Although this ground addresses the situation immediately after Carter shone a torch on Marcia Walker’s face, and thus falls within the time period embraced by the ‘central events’, it raises a discrete issue: whether there was a breach of the peace, actual or apprehended, which Sesin was responding to when he first made physical contact with Donald Walker. It is convenient to deal with this issue before addressing the circumstances of the contact.

The contention put forward by the appellants, that there was either an actual or a threatened breach of the peace when Donald Walker moved towards his mother, was advanced – other than in reliance on ground 3 – on two bases. The first of them focussed on the conduct of Donald Walker in moving towards his mother.

Counsel for the appellants submitted, in support of ground 4, that the trial judge ought to have found that Carter reasonably apprehended that a breach of the peace was imminent and likely to occur, although Carter himself had given no such evidence. He submitted that his Honour erred in finding that ‘there was no breach of the peace by Donald Walker’ given that a ‘breach of the peace’ is a state of affairs not necessarily confined to the actions of one person.

In our opinion, the only potential breach of the peace that could conceivably have been apprehended as imminent was an assault upon the police by Donald Walker. His Honour’s finding that Donald Walker posed no such threat, and his conclusion that he was concerned only to protect his elderly, disabled mother was reasonably open on the evidence. That finding was, as we have said, based essentially upon his Honour’s assessment of the credibility of the respective parties, and should not be set aside by this Court.

The second basis upon which counsel for the appellants contended that the police apprehended a breach of the peace turned on the conduct of Marcia Walker. Counsel contended before us that, in the exercise of a power to prevent a breach of the peace, Carter was entitled to attempt to make Marcia Walker leave the unit by acting as he did – that is, shining a torch on her face, and placing his hand on her shoulder. The threatened breach of the peace which counsel identified was that Marcia Walker had spoken aggressively to Hamm when she entered the unit, thereby causing an escalation in tension. It was submitted that his Honour erred in rejecting Carter’s evidence that Marcia Walker spoke aggressively to Hamm, saying, according to Carter, ‘[h]aven’t you caused enough trouble already?’.

Two points should immediately be noted.

First, counsel did not challenge a number of the trial judge’s findings as to the parties’ actions up to this point. The unchallenged findings were as follows:

· as Hamm left the unit, she bumped Marcia Walker with her bag, causing Marcia Walker to appear to be in danger of losing her balance;

· Donald Walker tried to go to the aid of his mother;

· Sesin grabbed Donald Walker’s shirt in an attempt to restrain him and the shirt was torn;

· Donald Walker withdrew and, at some point shortly thereafter, removed his shirt;

· Donald Walker remained bare chested;

· Donald Walker moved to a position near Sesin;

· Carter radioed for police assistance; and

· Carter approached Marcia Walker and attempted to make her leave the unit.

Secondly, none of grounds 3, 4 or 5 – which collectively raise the breach of the peace issue – propose that the trial judge erred by not finding that Marcia Walker’s conduct threatened a breach of the peace. In those circumstances, we doubt that the issue sought to be agitated was opened up by this appeal. Nonetheless, we will deal with it, both for completeness, and because the issue may be sufficiently raised by grounds 3 and 4(a) of the appeal against judgment in favour of the estate of Marcia Walker.

Counsel for the appellants relied upon what Marcia Walker said to Pluim when he spoke to her at the unit after the incident. In relation to Hamm, she was recorded as saying:

[Y]ou know what she is – she’s pretty – she’s I think she’s – I don’t think she’s right in the head.
…
I tried to calm the situation down and I know what that woman, the effect she has. She’s standing there and I know the effect she has …
…
She’s done it before. She’s – she’s screamed and carried on.
…
Well, take her away as far as you can take her, please.
…
She is a nightmare.

Counsel also relied upon various accounts of the events in question given contemporaneously by Carter, which were said to be consistent with his subsequent evidence at trial.

In common with counsel’s attacks upon other central findings made by the trial judge, it was not contended, in finding that Marcia Walker did not say what Carter attributed to her, that his Honour acted upon evidence which was inconsistent with facts incontrovertibly established by the evidence. In our view, his Honour’s finding was well open. Marcia Walker’s evident dislike of Hamm, even if clearly established, did not require a conclusion that she spoke to Hamm in the manner that Carter described. Nor did it require a conclusion, if she did so, that a breach of the peace was thereby threatened.

6.4 Findings of fact as the ‘central events’

Grounds 5 to 8 (inclusive) are in the following terms:

5.Given the learned Trial Judge’s finding of fact in Ground 3(a) – (k) above, the learned Trial Judge ought to have found that the breach of the peace, or the apprehended breach, provided Sesin with a lawful justification for interrupting the path of Donald Walker’s movement to his mother and Carter, restraining Donald Walker in a headlock, and providing Sesin and Carter with a lawful justification for commanding Donald Walker to get down on the ground and for Carter and Sesin striking Donald Walker with their batons when he refused.
6.Given the learned Trial Judge’s findings of fact in Ground 3(a) – (k) above, and his further findings of fact that Donald Walker placed the fingers of his left hand inside Sesin’s mouth and that Donald Walker’s left hand struck Sesin on the face, the learned Trial Judge should have found that:
a)Carter and Sesin were entitled to use, and did use, reasonable force against Donald Walker to suppress a breach of the peace;
b)Carter and Sesin were entitled to use, and did use, reasonable force against Donald Walker to defend Sesin; and
c)Carter and Sesin were entitled to use, and did use, reasonable force against Donald Walker in furtherance of a statutory power to arrest Donald Walker.

7.The learned Trial Judge erred in concluding that Carter and Sesin used excessive force against Donald Walker following the torch incident described in Ground 3(i) above.
8.The learned Trial Judge erred in concluding that a comparison of injuries sustained by Donald Walker with those received by Carter and Sesin was consistent with Donald Walker’s account of the incident, given that Carter and Sesin were required to maintain the peace and detect and suppress crime, and were supplied with batons and other restraint equipment to achieve those purposes.

Counsel for the appellants submitted that the factual errors which he identified as having been made in relation to the ‘preliminary events’ called into question the correctness of the trial judge’s findings regarding the ‘central events’. One issue to be determined is whether the key findings as to what took place when Donald Walker received his injuries can properly stand alone, or whether those

findings are so inextricably linked to findings which have been successfully impugned as to as to render them, as well, unsustainable.

It must be remembered that the ‘central events’ took place shortly after Carter and Sesin entered the unit. Those events began, as the trial judge found, after a torch was shone into the face of Marcia Walker. There was then a violent struggle, in the course of which Donald Walker and his mother sustained injuries.

The critical issue that had to be resolved in considering whether a cause of action in assault and battery had been made out was whether the two constables acted reasonably in all the circumstances, as viewed from their perspective. Counsel for the appellants claimed at trial that the police acted as they did in lawful self-defence, as well as pursuant to their powers, as constables, to prevent a breach of the peace and to effect an arrest.

Before force can be applied in self-defence, there must be an honest and reasonable belief that an attack is being made, or that it is imminent. The force applied in self-defence must be reasonably necessary, that is, the response of the person attacked, or fearing attack, must not go beyond what that person believes to be necessary to defend himself. In addition, there must be reasonable grounds for a belief by him that the response was necessary in defending himself.[43]
[43]Zecevic v DPP (Vic) (1987) 162 CLR 645.

Police officers are bound to prevent breaches of the peace that they reasonably apprehend.[44] In order to prevent a breach of the peace, police officers are entitled to exercise reasonable force. In evaluating the reasonableness of police conduct, ‘the matter must be judged by reference to the pressure of events and the agony of the moment, not by reference to hindsight’.[45] Further, a police officer may use such force, not disproportionate to the object, as he believes on reasonable grounds to be

necessary to effect, or assist in effecting, the lawful arrest of a person committing, or suspected of committing, any offence.[46]

[44]Duncan v Jones [1936] 1 KB 218; and Rice v Connolly [1966] 2 QB 414.

[45]Woodley v Boyd [2001] NSWCA 35, [38] (Heydon JA).

[46]Section 462A of the Crimes Act 1958.

On the agreed facts, the event that immediately triggered the violence was Carter placing his hand on Marcia Walker’s shoulder and shining a torch on her face. The trial judge found that Carter:

put his hand on her right shoulder and, for reasons best known to him, shone his torch in her face. This was an assault and created a danger for her physical safety because of her lack of stability.[47]

[47]Walker v Hamm [2008] VSC 596, [307].

We have already concluded that the trial judge did not err in concluding that there was no breach of the peace, actual or apprehended, when Carter acted in that way. It followed that his Honour’s characterisation of Carter’s action as an assault was correct.

Counsel for the appellants submitted that a number of the trial judge’s findings as to how the struggle came about, and what course it took, were glaringly improbable. We accept that there was some support, in the evidence, for counsel’s challenge. It would be surprising, in a very long trial in which much evidence was given, if it was otherwise. It does not follow, however, that appealable error has been demonstrated. His Honour’s findings were, as we have said, based largely upon his assessment of the key players, Carter and Sesin on the one hand, and Donald Walker on the other.

In our opinion, counsel’s contention has not been made out. Whereas a number of the trial judge’s findings regarding the ‘preliminary events’ were, we think, erroneous, the reason why we have come to that conclusion is because there was highly cogent and independent evidence supporting Carter and Sesin’s account of those events. There was no such evidence to support their account of what took place when the altercation began. That matter was purely one of oath against oath.

In the end, counsel’s attack upon the trial judge’s findings regarding the ‘central events’ amounted to little more than a contention that another view of the evidence was reasonably open. Even if that were so, it would fall well short of establishing error of a kind which would justify the intervention of this Court.

Counsel for the appellants acknowledged that it was possible that Donald Walker had initially been motivated by a genuine concern for his mother’s welfare, and may, for that reason, have moved towards her, resulting in his shirt being torn. He submitted, however, that any such initial concern on Donald Walker’s part could not justify his subsequent resistance for a prolonged period while he struggled with police.

In some respects, that analysis does not sit well with the sequence of events that was common ground at trial. Assume, as appeared to be the case, that Donald Walker’s initial concern, when he moved towards his mother, was her welfare. He was then intercepted and placed in a headlock. It was not until that point that he resisted the police. He was, from that point onwards, subjected to a series of heavy blows from a baton wielded by Carter. He continually struggled to free himself.

On that scenario, the question to be determined was whether Carter and Sesin were lawfully justified in acting as they did. Of course, the appellants bore the onus of proof in that regard. The trial judge was not persuaded that they had discharged that onus. His Honour concluded that the police had not responded to an actual or apprehended breach of the peace. They had not acted in defence of Sesin. In any event, they had used excessive force against Donald Walker. No right to self-defence had justified Carter’s actions against Marcia Walker.

Counsel’s attack upon the trial judge’s findings as to the ‘central events’ was partly direct, and partly oblique. The direct attack involved the bald assertion that his Honour should have preferred the evidence of Carter and Sesin to that of Donald Walker. That submission was always going to be fraught with difficulty.

The trial judge’s findings were extraordinarily detailed and comprehensive. His Honour had regard to what Carter had said, not just at trial, but also in each of his contemporaneous statements, as well as the evidence he gave at the Magistrates’ Court. In so doing, he had regard to a number of inconsistencies in the various accounts that Carter had given.

The trial judge also had regard to some significant differences between Carter’s evidence, and that of Sesin. Some of those differences were, in our view, significant. For example, Carter claimed in one of his contemporaneous statements that, just before Sesin placed Donald Walker in a headlock, Donald Walker had punched the left side of Sesin’s face with a clenched fist. He repeated that account in the evidence he gave at trial. It seems extraordinary that Sesin never, at any time, claimed to have been struck by Donald Walker in that way.

We acknowledge, unreservedly, the great care which the trial judge applied to his analysis of the facts. We acknowledge also that, in this case, his Honour had a real advantage in seeing and hearing the principal witnesses. Again, it is the fact that we have regarded that advantage as being of importance in deciding that challenge by the appellants to particular findings should be rejected. Even so, without descending into detail, and with great respect to the trial judge, we would not ourselves have characterised the generality of Carter’s evidence, or that of Sesin, as having been ‘deliberately false’, or ‘dishonestly given’.

The events in question went back many years. Recollections fade over time. More importantly, perhaps, it is likely that the trial judge’s findings regarding dishonesty were influenced, to some degree, by his conclusions as to the ‘preliminary events’, a number of which we have specifically rejected. If one views the police evidence through a somewhat different prism, namely that their account of the ‘preliminary events’ was both truthful and accurate, one is much less likely to stigmatise their evidence regarding the ‘central events’ as perjury. In the event, though it does not affect his Honour’s key findings of fact, we consider that the evidence of Carter and Sesin should not be stigmatised in that way.

6.8 Injury to Carter

Ground 9 in the matter relating to the estate of Marcia Walker remains to be considered. It is in the following terms:

9.There was no sufficient basis for the finding that Carter’s claim of dizziness, after being struck on the head by Marcia Walker’s walking stick, was not an injury of any significance.

This ground, perhaps not unnaturally, was barely pressed in oral argument. It is of no consequence. A conclusion that there was no sufficient basis for this finding would not, in any event, affect the outcome of this appeal. Nothing more need be said about it.

6.9 Damages

The damages awarded by the trial judge are set out at [32] to [34] above.

The appellants challenge the awards of aggravated and exemplary damages. In relation to Donald Walker, grounds 18 to 23 are in the following terms:

18. The learned Trial Judge erred in awarding exemplary damages against Carter in respect of the acts of Sesin.
19. The learned Trial Judge erred [in] awarding exemplary damages against Carter in respect of the conduct of other police officers following the arrest of Donald Walker.
20. There was no evidence to support the finding that Carter encouraged Sesin to join in giving a false account of the incident and the learned Trial Judge erred in acting on an irrelevant consideration when assessing exemplary damages.
21. The learned Trial Judge erred in awarding Donald Walker exemplary damages in circumstances where elements of that award sustained an entitlement to substantial aggravated damages.
22. The learned Trial Judge erred in concluding, for the purposes of assessing Donald Walker’s entitlement to exemplary damages, that Carter was at considerable risk of repeating violent, unlawful and dishonest behaviour in the course of his duties in circumstances where there had been no repetition of any such conduct by Carter in his 16 years of police service following the incident.
23. The awards of general, aggravated and exemplary damages were manifestly excessive in the circumstances.

In relation to the estate of Marcia Walker, there is but one ground of appeal which is in the following terms:

10. The awards of general and aggravated damages were manifestly excessive in the circumstances.

Despite the fact that the grounds of appeal contended that the general damages awarded in each case were excessive, the appellants did not advance any argument before this Court to that effect. The only challenge to the quantum of damages assessed by the trial judge related to the awards of aggravated compensatory damages, and exemplary damages.

As we understood the appellants’ submissions, it was not suggested that the trial judge misstated the principles that govern the award of aggravated or exemplary damages. It was rather that his Honour had failed to apply those principles correctly.

Aggravated damages may be awarded where the defendant has acted, either in committing a tort or thereafter, with ‘contumelious disregard’ of the plaintiff’s rights,[235] in an insulting or high-handed way, or with malice. It is a key requirement that such conduct increased the plaintiff’s suffering.[236] The theory is that aggravated damages are compensatory.[237]
[235]The meaning of ‘contumelious’, as taken from the Shorter Oxford English Dictionary, is ‘[e]xhibiting contumely (ie, insolence, reproach or abuse, insulting or contemptuous language or treatment such as tends to dishonour or humiliate), despiteful, superciliously insolent, reproachful, disgraceful.’ See generally Harold Luntz, Assessment of Damages for Personal Injury and Death: General Principles (4^th ed, 2002).
[236]McFadzean v Construction, Forestry, Mining & Energy Union [2004] VSC 289 (Ashley J).
[237]Ibid [105]. See also De Reus v Gray (2003) 9 VR 432, 452.

Exemplary damages are damages over and above those necessary to compensate the plaintiff. They are awarded to punish the defendant. They are intended to act as a deterrent to the defendant, and to others minded to behave in a like manner.[238] They are also intended to demonstrate the Court’s disapprobation and denunciation of such conduct.[239] Such damages may be awarded in respect of any tort that is committed in circumstances involving a deliberate, intentional, or reckless disregard of the plaintiff’s rights. Often, they are sought in cases involving allegations against the police of assault and battery.[240]
[238]Adams v Kennedy & Ors (2000) 49 NSWLR 78, 87, (Priestley JA): ‘The amount should also be such as to bring home to those officials of the State who are responsible for the overseeing of the police force that police officers must be trained and disciplined so that abuses of the kind that occurred in the present case do not happen.’ This passage was cited with approval by the High Court in State of New South Wales v Ibett (2006) 229 CLR 638, 653. See also Kuddus v Chief Constable of Leicestershire [2002] 2 AC 122, 147-149 (Lord Hutton); and Gray v Motor Accident Commission (1998) 196 CLR 1, 7.
[239]Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118, 149; XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd (1985) 155 CLR 448, 471; Lamb v Cotogno (1987) 164 CLR 1, 9-10; and Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44.
[240]Adams v Kennedy (2000) 49 NSWLR 78; Zaravinos v State of New South Wales (2004) 214 ALR 234; and State of Victoria v Horvath (2002) 6 VR 326.

The law allows for both aggravated and exemplary damages to be awarded in respect of the same tort. It is necessary, however, in such cases, to be wary of overcompensation. There is a risk in awarding both compensatory and punitive damages, arising out of exactly the same wrongdoing, that the plaintiff will receive an unwarranted windfall. That risk is accentuated by the recognition that, in reality, there can be a punitive element in aggravated damages.[241]
[241]Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; and De Reus v Gray (2003) 9 VR 432, 452.

In De Reus v Gray,[242] Winneke P said:

In contrast to exemplary damages, aggravated damages are compensatory in nature, and are ‘awarded for injury to the plaintiff’s feelings caused by insult, humiliation and the like’. Because they are compensatory in nature attention is therefore focused on the harm to the plaintiff caused by the manner in which the harm has been inflicted. However, because such damages, albeit awarded to compensate the plaintiff, are to be measured by the manner in which the wrong was done - and indeed by the defendant’s attitude down to the time of trial - the distinction between aggravated and exemplary damages has often been characterized by looseness of expression to the point where it is, perhaps, more easily conceptualized than described. Indeed, it is because aggravated damages are awarded for the increased hurt to the plaintiff caused by the manner in which the defendant has committed the wrong that Windeyer J was constrained to acknowledge in Uren v. John Fairfax & Sons Pty Ltd that there is an element of the punitive in aggravated damages.[243]

[242]De Reus v Gray (2003) 9 VR 432.

[243]Ibid 452 (citations omitted).

The trial judge based his decision to award Donald Walker aggravated damages upon a series of factors. These included:

· the fact that the police entered Donald Walker’s home unlawfully;

· the fact that Donald Walker was beaten ‘unlawfully, viciously and in a cowardly fashion by Carter (in concert with Sesin) in his home in the presence of his mother’;

· the fact that Donald Walker witnessed his mother being injured in his home, and in his presence, directly as the result of Carter’s assault upon her;

· the conduct of Carter and Sesin, and other police officers, immediately after the incident involving the assault in callously ignoring Donald Walker’s injuries, as well as falsely arresting him and conveying him to Camberwell Police Station. Moreover, the police allowed Donald Walker to continue to be naked from the waist up on a cold night, and effectively forced him to urinate in humiliating circumstances;

· the conduct of the police in ignoring various formal complaints made by Donald Walker regarding his treatment, and the falsification of evidence against him. This was said to have ‘fuelled his anger understandably’;

· the fact that Donald Walker was falsely charged with serious offences, and forced to defend himself in what turned out to be a lengthy proceeding;

· the fact that the defence had conducted the trial before his Honour in a manner that put Donald Walker’s credibility in issue, and sought to portray him as a liar; and

· the fact that both Carter and Sesin gave false evidence during the course of the trial, thereby greatly prolonging its length and so extending Donald Walker’s humiliation and affront.[244]

[244]Walker v Hamm (No 2) [2009] VSC 290, [39] – [52].

The appellants submitted that some, at least, of these factors should not have been taken into account in determining whether to award aggravated damages, and in assessing the amount at $200,000. They said, for example, that Carter should not have been required to pay aggravated damages in respect of the conduct of other police officers following Donald Walker’s arrest. The trial judge included that conduct among the factors that justified such damages on the basis that Carter could have avoided all that had occurred, after the incident involving the infliction of injury by the baton, by simply by telling the more senior police officers, who had by then arrived, the truth.

In our view, the appellants’ complaint regarding that matter is justified. Carter was a junior officer. He was told by a sergeant to go at once to Box Hill Hospital to be treated for his own injuries. Not surprisingly, he obeyed that instruction. There were ambulance officers in attendance at the unit. The question of Donald Walker’s treatment as regards his injuries, the fact that he was taken into custody, and the manner in which he was detained thereafter, was entirely the responsibility of those more senior police who attended. It should not be forgotten that Donald Walker was arrested, charged and pleaded guilty to having hindered Carter in the execution of his duty. In those circumstances, it is difficult to see how it can be said that the police acted improperly or unlawfully when they took Donald Walker into custody, and interviewed him regarding the events that occurred earlier in the evening. Carter should not have been held liable to pay aggravated damages for whatever misconduct there might have been on the part of others after he had ceased to be involved.

In addition, the trial judge erred, for the reasons that we have earlier set out, in concluding that neither Carter nor Sesin had any lawful justification for entering Donald Walker’s unit. Whether because of abuse of process (the ‘estoppel’ point), or by reason of findings of fact that were simply unsustainable, it was not reasonably open to his Honour to arrive at that conclusion. Accordingly, that finding should not have played any role in determining the measure of aggravated damages.

In our view, it would be appropriate in all the circumstances to reduce the amount of aggravated damages awarded to Donald Walker from $200,000 to $100,000.

The trial judge dealt separately with the award to Donald Walker of exemplary damages. His Honour noted that, in support of that claim, the plaintiff relied upon essentially the same matters as those relied upon in support of the claim for aggravated damages. The one difference was that Donald Walker did not rely on the assault on Marcia Walker in relation to his claim for exemplary damages.

In addition to the matters common to both forms of damages, Donald Walker relied upon the following matters in support of exemplary damages:

· Carter initiated the physical contact with Donald Walker, and his conduct was extremely violent. He acted unreasonably, and used excessive force, when there were alternative courses of conduct available;

· when Pluim appreciated that Marcia Walker’s account of the events of the evening meant that there was a risk of an Ethical Standards inquiry, he ‘bullied’ Marcia Walker, and sought to have her withdraw her allegations against both Carter and Sesin. He also colluded with Carter and Sesin in an elaborate attempt to conceal their wrongdoing;

· the police treatment of Donald Walker at Camberwell police station pointed to a strong antipathy towards him, and an arrogant rejection of any concern for his well-being;

· Rogers, who had been the informant in the Magistrates’ Court prosecution, withheld contemporaneous notes of his conversation with Carter. Moreover, he did not discover those notes until April 2007, some three weeks before the trial commenced;

· a number of key witnesses called by the defendants, including in particular police witnesses, had lied during the course of the trial;

· Carter had exhibited no remorse, and the police had proffered no apology to Donald Walker. Indeed, Carter maintained that, if once again faced with the same situation, he would respond exactly as he had done on the night in question; and

· Carter and Sesin had relied upon a ‘police culture’ in concluding that their colleagues would willingly assist them, even to the point of tolerating the giving of false evidence. While his Honour was not persuaded that there was sufficient evidence of such a ‘culture’ across the board, he was satisfied that this attitude existed amongst the group of officers involved in this case, all of whom had joined ranks in support of Carter and Sesin. He identified Pluim as a prime example of such an officer.

It was submitted on behalf of Carter before this Court that the trial judge had erred in a number of different ways in arriving at his decision to award Donald Walker exemplary damages. It was submitted, for example, that Carter ought not to have been punished for Sesin’s misconduct, even though his Honour had found that the two police officers had acted in concert. It was submitted that Sesin’s own actions would have given rise to an award of exemplary damages against him, had he been pursued as a defendant. Alternatively, Sesin’s actions would have given rise to an award of exemplary damages against the State of Victoria in such circumstances. It followed, so it was said, that Carter ought not to have been held liable for such damages.

It was further submitted that, to the extent that the quantum of exemplary damages had been assessed on the basis that the entry by Carter and Sesin into Donald Walker’s unit had displayed a ‘conscious and contumelious disregard’ for his rights, that conclusion had been unwarranted. There was no unlawful entry. Accordingly, there was no need for the trial judge to have considered either condemnation, or deterrence, arising out of that entry.

When the trial judge came to consider what was required in order to manifest the Court’s condemnation of what had occurred, he observed that it was ‘necessary to look beyond Carter to the police generally’. He recognised that a number of the matters to be taken into account in assessing exemplary damages were essentially the same as those that had already been considered in assessing aggravated damages. These included the manner in which the various assaults had taken place, the contempt shown for Donald Walker’s rights, the overbearing conduct of the police at the scene immediately afterwards and while Donald Walker was in custody, and the giving of false accounts to which the police adhered over the years (including on oath).

The trial judge noted that Donald Walker had sought exemplary damages of between $300,000 and $500,000. He considered the top end of that range to be excessive, particularly having regard to the overlap between the matters relied upon in the assessment of aggravated damages, and those relied upon in support of exemplary damages. Having regard to what his Honour described as ‘the need for moderation’, there was still a need for a substantial award of exemplary damages by way of punishment to address deterrence and to encourage police action to avoid such events in the future.

In the trial judge’s view, Carter’s statement, while still a serving police officer, that he would conduct himself in exactly the same way if faced with the same circumstances was a matter of ‘serious concern’. So too, in his Honour’s view, was the behaviour of the other police officers on the night in question.

It was on the basis of all of these factors combined that the trial judge awarded Donald Walker $400,000 as exemplary damages. His Honour reiterated that he regarded that sum as moderate in the circumstances.

With great respect, we do not agree. A number of the factors that influenced his Honour in arriving at that figure were, in our view, impermissibly taken into account.

As we said in relation to aggravated damages, there was no justification for including, as a component of the $400,000 awarded as exemplary damages, any sum to punish Carter for having unlawfully entered Donald Walker’s unit. Carter and Sesin were entitled to enter the unit as they did. The evidence clearly established that, at the moment of entry, they had reasonable grounds for apprehending that a

breach of the peace was taking place. Accordingly, they should not be condemned for having acted as they did, at least in that regard.

In addition, for the reasons we have earlier given, Carter should not have been made liable to pay punitive damages arising out of the conduct of other, more senior, police following the arrest of Donald Walker. That arrest was lawful, as was attested to by Donald Walker’s having pleaded guilty, in the Magistrates’ Court, to having hindered Carter and Sesin in the execution of their duty.

If those other, more senior police mistreated Donald Walker after he was taken to the Camberwell Police Station, that was not to be sheeted home to Carter. Donald Walker plainly had his own remedies available against those police. The fact that he chose not to invoke them does not justify imposing upon Carter an additional component of damages arising out of Carter’s own actions, which were relevantly confined to the assaults upon Donald Walker and his mother.

The trial judge ought not to have required Carter to pay exemplary damages because of any failure on Rogers’ part to disclose his notes to the defence prior to the Magistrates’ Court hearing, or to meet his discovery obligations in relation to the present proceeding in a timely manner.

We are unable accept the appellants’ contention that it was not open to his Honour to award exemplary damages against Carter in respect of the acts of Sesin. The finding that Carter and Sesin acted in concert was, as we have said, reasonably open on the pleadings, and on the evidence. There is no reason why Carter, as a joint tortfeasor, could not be held to account, punitively, for the involvement by Sesin in doing exactly what he and Carter had agreed ‘in concert’ to do.

It was not open to the trial judge, as we have said, to find that Carter lied throughout the course of his evidence, particularly in relation to the circumstances that led to his and Sesin’s decision that it was necessary to break down the door and

enter the unit. Of course, if the finding that lies were told were to stand, that would be a matter that would justify the award of exemplary damages.[245]

[245]Lee v Kennedy [2000] NSWCA 153, [14].

On any view, it was also not open to the trial judge to find that Carter had encouraged Sesin to join him in giving a false account of the incident in question.[246] Even if one were to assume that Sesin lied about how both Donald Walker and his mother came to be injured, there was still no basis upon which his Honour could have concluded that Sesin gave such evidence at Carter’s instigation. It must be remembered that Sesin’s evidence differed in a number of key respects from Carter’s evidence. Indeed, that was one of the main reasons why his Honour preferred the evidence of Donald Walker to that of either Carter or Sesin.
[246]Walker v Hamm (No 2) [2009] VSC 290, [73].

We reject the appellants’ contention that the trial judge was bound to award either aggravated damages, or exemplary damages, but not both.

It is true that, in New South Wales v Ibbett,[247] the High Court had this to say:

In cases where the same circumstances increase the hurt to the plaintiff and also make it desirable for a court to mark its disapprobation of that conduct, the court may choose to award one sum which represents both heads of [aggravated and exemplary] damages and no element more than once.

[247](2006) 229 CLR 638, 648.

However, there is nothing in what the High Court said that suggests that a judge cannot award separate sums for aggravated and exemplary damages merely because the same circumstances give rise to both the hurt to the plaintiff, and the need to punish the defendant. The language of the High Court is permissive. It is not mandatory. A judge ‘may’, but not ‘must’, choose to award a single sum in such circumstances.

At the same time, it is necessary to ensure, so far as practicable, that there is no overcompensation, or double punishment, when both forms of damages are awarded.[248] The trial judge was conscious of that need. His Honour said, on more than one occasion, that he would moderate the award of damages in order to give effect to it. There is nothing in either his Honour’s reasons for judgment, or the amounts awarded, to suggest that he did not do precisely that which he said he would do.
[248]Ibid.

There is perhaps more substance in the appellants’ contention that the trial judge erred in concluding that Carter was at considerable risk of repeating the unlawful and violent behaviour that characterised the assaults on the night in question, unless deterred by an award of exemplary damages.

In the first place, there was evidence before the trial judge that Carter had been an exemplary police officer in the 16 years of police service that followed this incident.[249] Secondly, Carter’s statement that he would do exactly the same thing if faced with the same circumstances should not have been viewed as an indication of intransigence, or as an intimation of intended future wrongdoing. Viewed in context, it was simply an understandable response to a question directed towards him at a time when he steadfastly maintained that he had acted lawfully, in self-defence, when he struck Donald Walker. To treat Carter’s answer to that single question as evidence of a tendency towards recidivism, and therefore as requiring specific deterrence, was, in our view, unwarranted. Finally, there is a question whether an award of exemplary damages against Carter, which would almost certainly be paid by the State of Victoria, would be likely to have any deterrent effect upon him.
[249]Carter had been admonished once in 2002 for having inappropriately accessed Victoria Police LEAP data. Apart from that, his record was unblemished.

In all the circumstances, we consider that, although a measure of exemplary damages was warranted, the amount of $400,000 was excessive. We would reduce that amount to $100,000.

In relation to the estate of Marcia Walker, the trial judge awarded aggravated damages of $100,000 on the basis that:

· Carter and Sesin were both young, fit men, sworn to uphold the law. Marcia Walker was aged 67, walked with the assistance of a walking stick, and had limited mobility;

· the entry into Donald Walker’s unit was unlawful;

· police at the scene deliberately and falsely set out to paint Marcia Walker as a trouble-maker. She was falsely described by police as a liar, and as having gone ‘crazy’. Carter referred to her as a ‘lunatic’. Pluim applied heavy-handed pressure to her to change her truthful account of what had happened;

· Marcia Walker was falsely charged with assaulting police. The charges were withdrawn, but not until the third day of the hearing in the Magistrates’ Court; and

· Marcia Walker was distressed not only by her own injuries, but also by the impact of the consequential injuries, physical and psychological, upon her sons.

The trial judge concluded that Marcia Walker had endured the sight of her son, Donald, being assaulted by police without any justification, and had been treated with contempt by Carter. He found that she had been bullied by Pluim, and endured humiliating treatment thereafter, essentially as a result of Carter’s lies.

Although there are components of the award of $100,000 aggravated damages to Marcia Walker that, on close analysis, may not withstand scrutiny, we are not disposed to interfere with that figure. First, to do so would be to tinker with an award on the basis of errors that, in her case, can properly be described as marginal. It should be noted, in that regard, that those errors were nowhere near as significant in relation to her case as they were in relation to that of her son. Secondly, the amount of $100,000 itself strikes us as moderate in all the circumstances, having regard to the trial judge’s findings. Thirdly, in neither their written nor oral submissions, did the appellants challenge with any vigour, the award of $100,000 as aggravated damages to the estate of Marcia Walker.

For these reasons, we would reduce the amounts awarded to Donald Walker as aggravated and exemplary damages. We would not interfere with the amount of damages awarded to the estate of Marcia Walker.

7. Conclusion

For the foregoing reasons we would allow the appeal against the judgment in favour of Marcus Walker and dismiss his claim. We would also allow the appeal against the judgment in favour of Donald Walker and reduce the quantum of the aggravated and exemplary damages awarded to him.

We will hear the parties as to the form of orders this Court should make.

- - -

[2010] VSCA 340

14 December 2010