Carvana v State of New South Wales

[2024] NSWSC 254

Supreme Court

New South Wales

Medium Neutral Citation:

Carvana v State of New South Wales [2024] NSWSC 254

Hearing dates:

20 – 22 February, 10 – 13 July, 8 November 2023

Date of orders:

15 March 2024

Decision date:

15 March 2024

Jurisdiction:

Common Law

Before:

Wright J

Decision:

(1)   Judgment for the defendant.

(2)   The defendant is to file and serve any written submissions and evidence relating to the costs order to be made in these proceedings on or before 29 March 2024.

(3)   The plaintiff is to file and serve any written submissions and evidence relating to the costs order to be made in these proceedings on or before 12 April 2024.

(4)   The question of costs is to be dealt with on the papers, unless a party in its written submissions notifies the Court and the other party that it seeks to have an oral hearing on costs.

(5)   If an oral hearing on costs is sought, the parties have liberty to contact Wright J’s Associate to obtain a suitable date for such a hearing.

Catchwords:

TORTS – false imprisonment – arrest and detention prior to bail being granted – whether arrest unlawful – onus on defendant to establish that arrest was lawful – requirements for lawful arrest under Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – whether requirements met

TORTS – malicious prosecution – elements – whether proceedings terminated in favour of the plaintiff if finding of guilt but no conviction or withdrawal of charges – whether prosecutor acted with malice – whether prosecution commenced or maintained without reasonable and probable cause

TORTS – trespass to goods – whether seizure of mobile phone containing video of alleged offence voluntarily handed to police was lawful under s 21(1)(b) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – whether seizure of mobile phone was lawful under common law principles in Ghani v Jones [1970] 1 QB 693

TORTS – general principles – damages – availability of damages for consequential loss and damage from harm suffered as a result of intentional torts – whether harm caused by the tort – whether harm intended by tortfeasor – whether harm the natural and probable consequence of the tort

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 3B(1)(a), 43A

Controlled Substances Act 1994 (SA)

Corporations Act 2001 (Cth), s 601AD

Crimes Act 1900 (NSW), ss 58, 61, 195(1)(a)

Crimes Act 1914 (Cth), s 3W

Crimes (Sentencing Procedure) Act 1999 (NSW), s 10(1)(a)

Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)

Crown Proceeding Act 1988 (NSW), s 5

Evidence Act 1995 (NSW), s 140

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 4(1), 4(1)(a), 20, 20(a), 21, 21(1), 21(1)(b), 21(2)(b), 22, 29, 30, 32, 32(2), 32(3), 81 – 87, 99, 99(1)(a), 99(1)(b)(i), 99(3), 201(1)(a), 202(1), 202(2)

Law Reform (Vicarious Liability) Act 1983 (NSW), ss 4, 9B(2)

Summary Offences Act 1953 (SA), s 68

Uniform Civil Procedure Rules 2005 (NSW), rr 15.4, 15.7, 15.8

Cases Cited:

A v New South Wales (2007) 230 CLR 500; [2007] HCA 10

Bailey v Director-General, Department of Natural Resources NSW [2015] NSWCA 318

Beckett v New South Wales (2013) 248 CLR 432; [2013] HCA 17

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Bunnings Group Ltd v CHEP Australia Ltd (2011) 82 NSWLR 420; [2011] NSWCA 342

Cameron v James [1945] VLR 113

Challenge Plastics Pty Ltd v Collector of Customs for the State of Victoria (1993) 42 FCR 397; [1993] FCA 340

Chapel Road v Australian Securities and Investments Commission [2007] NSWSC 975

Coyle v State of New South Wales [2006] NSWCA 95

Director of Public Prosecutions v Tamcelik [2012] NSWSC 1008; 224 A Crim R 350

G H Photography Pty Ltd v McGarrigle [1974] 2 NSWLR 635

Ghani v Jones [1970] 1 QB 693

Goldie v Commonwealth of Australia (No 2) [2004] FCA 156; (2004) 81 ALD 422

Greer v Commissioner of NSW Police [2002] NSWSC 356; 128 A Crim R 586

Hrdavec v State of New South Wales [2022] NSWCA 52

Hyder v Commonwealth of Australia [2012] NSWCA 336; 217 A Crim R 571

Lamb v Cotogno (1987) 164 CLR 1

Le v Plummer [2023] WASCA 178

Levine v O’Keefe [1930] VLR 70

Lewis v Australian Capital Territory (2020) 271 CLR 192; [2020] HCA 26

McElroy v The Queen (2018) 55 VR 450

Middlin-Hannah v The Queen [2020] SASCFC 112

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21

Murphy v The State of New South Wales [2023] NSWSC 407

New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57

New South Wales v Robinson (2019) 266 CLR 619; [2019] HCA 46

Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69

Pargiter v Alexander (1995) 5 Tas R 158; [1995] TASSC 62; (1995) Aust Torts Reports 81-349

PPK Willoughby Pty Ltd v Baird [2021] NSWCA 312

R v Elomar and Ors(No 11) [2009] NSWSC 385

R v Lushington, ex parte Otto [1894] 1 QB 420

R v Rondo [2001] NSWCCA 540; (2001) 126 A Crim R 562

Rock v Henderson [2021] NSWCA 155

Siddique v Martin (2016) 51 VR 564

Smethurst v Commissioner of the Australian Federal Police (2020) 272 CLR 177; [2020] HCA 14; 94 ALJR 502; 376 ALR 575; 280 A Crim R 356

South Western Sydney Local Health District v Gould (2018) 97 NSWLR 513; [2018] NSWCA 69

State of New South Wales v Abed [2014] NSWCA 419; 246 A Crim R 549

State of New South Wales v Cuthbertson (2018) 99 NSWLR 120; [2018] NSWCA 320

State of New South Wales v Randall [2017] NSWCA 88

State of New South Wales v Smith (2017) 95 NSWLR 662; [2017] NSWCA 194

State of New South Wales v Spedding [2023] NSWCA 180

TAL Life Ltd v Shuetrim (2016) 91 NSWLR 439; [2016] NSWCA 68

TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333; [2002] NSWCA 82

Tye v Commissioner of Police (1995) 84 A Crim R 147

Williams v The Pell River Land and Mineral Company Limited (1886) 55 LT 689

Zaravinos v State of New South Wales (2004) 62 NSWLR 58; [2004] NSWCA 320

Texts Cited:

The Laws of Australia, vol 33, Torts, at par 33.8.920.

Carolyn Sappideen, Prue Vines (eds.), Fleming’s The Law of Torts (11th ed, 2024, Thompson Reuters) at par 4.40

Sir John William Salmond, The Law of Torts (6th ed, 1924, London: Sweet & Maxwell) at 595

Category:

Principal judgment

Parties:

David Romano Carvana (Plaintiff)
State of New South Wales (Defendant)

Representation:

Plaintiff in person

Counsel:
Ms J Jaffray (Defendant)

Solicitors:
Wotton + Kearney (Defendant)

File Number(s):

2021/00023783

Judgment

Introduction

1. By his fourth amended statement of claim filed on 25 August 2022, the plaintiff, Mr David Carvana, has claimed damages for false imprisonment, malicious prosecution and trespass to goods against the defendant, the State of New South Wales. Mr Carvana was not legally represented.

2. It was not in dispute that, by virtue of s 9B(2) the Law Reform (Vicarious Liability) Act 1983 (NSW) and s 5 of the Crown Proceeding Act 1988 (NSW), the State was the appropriate defendant since it accepted that it would be vicariously liable in respect of relevant torts, if any, committed by the relevant officers and former officer of the New South Wales Police Force named in the pleading: Senior Constable Rae; Senior Constable Simpson; and, Mr (formerly Sergeant) Minns.

3. The facts and circumstances on which Mr Carvana’s claims are based arise out of a complaint by Ms Fawcett concerning Mr Carvana’s conduct towards her which led to SC Rae and SC Simpson attending Mr Carvana’s business premises on 18 October 2017 and his subsequently being arrested, charged, bailed, and then dealt with in the Wollongong Local Court. First, I shall consider the witnesses and the factual findings as to what relevantly occurred on 18 October 2017 and thereafter. Next, I shall address the causes of action relied on by Mr Carvana and then, to the extent necessary, I shall consider questions of loss and damage.

The lay witnesses

4. In addition to himself as the principal witness in his case, the plaintiff, Mr Carvana, also called the following lay witnesses:

1. Mr Domenico Carvana, the plaintiff’s father; and

2. Ms Ebony Fuller, the receptionist at Mr Carvana’s office.

5. The defendant’s lay witnesses who gave oral evidence were:

1. Mr Robert Minns; and

2. SC Cameron Rae.

6. The evidence also included affidavits or statements from the following witnesses (prepared for the purposes of these proceedings or for the purposes of the proceedings in Wollongong Local Court), without the maker of the affidavit or statement being called to give evidence:

1. SC Paige Simpson – her police statement of 18 October 2017, [1] and her police statement of 4 April 2018; [2]

2. Alyssa Jones – her affidavit of 7 July 2023, [3] her affidavit of 16 February 2023, [4] and her affidavit of 21 February 2023; [5] and

3. Susan Fawcett – her police statement of 18 October 2017. [6]

   1. Ex O, and also part of Ex AC.

   2. Ex 26.

   3. Ex AB.

   4. Ex 25.

   5. Ex 25.

   6. Part of Ex AC.

7. In assessing the evidence as a whole, I have taken into account that these witnesses who did not give oral evidence were not cross examined and I was not able to observe them give evidence. Accordingly, I approached their evidence with a degree of caution, as appropriate. Nonetheless, since Ms Fawcett’s statement was made on the day of the incident in question, I accepted that the information in that statement was likely to have been fresh in her memory at that time and, therefore, likely to be more reliable than if the statement had been given some considerable time later. Furthermore, the statements of Ms Fawcett and SC Simpson were not made for the purposes of the present proceedings and thus were unlikely to have been influenced, subconsciously or otherwise, by the issues raised in these proceedings. None of their evidence was inherently incredible and it was largely consistent with other evidence. On these bases, it appeared to me that their evidence should generally be accepted, except if it was inconsistent with contemporaneous notes or recordings or other credible evidence.

8. Dealing with the lay witness called by the plaintiff who gave oral evidence (other than Mr Carvana) my observations and assessment were as follows.

9. Mr Domenico Carvana (the plaintiff’s father whom I shall call Mr Carvana Senior), and Ms Fuller both gave evidence by audio-visual link. In making my assessment of their evidence, I did not give it more or less weight because it was given in this way. Mr Carvana Senior provided a written statement which had “October 2017” written on it, [7] and Ms Fuller provided an undated written statement. [8] It was somewhat unclear when and how their written statements had been prepared, although the evidence suggested that they had been prepared for the criminal proceedings in Wollongong Local Court, heard on 16 May 2018. I was not satisfied on the evidence that they were contemporaneous records of what those witnesses saw and heard on 18 October 2017, in the sense of being made on that date or within the next few days. In addition, Mr Carvana Senior expressly accepted that it was a possibility that he had “not remembered those events very well”. [9] Ms Fuller said that she could not “give complete and full details but I do agree with what I’ve written in my statement and that’s how I remember it still today”. [10] From their preparedness to make appropriate concessions and my observation of the way in which they both gave evidence and the content of that evidence, I formed the view that both Mr Carvana Senior and Ms Fuller were each honestly attempting to tell the truth as they recalled it, assisted by their statements. I generally accepted their evidence except where it was inconsistent with evidence from contemporaneous notes or recordings or other credible evidence. I shall deal with any specific conflicts in the evidence when making findings as to what relevantly occurred.

   7. Ex B

   8. Ex C.

   9. Tcpt, 11 July 2023, p 428(1) – (3).

   10. Tcpt, 11 July 2023, p 436(10) – (11).

10. As to the lay witnesses called to give oral evidence by the defendant, Mr Robert Minns, a retired sergeant of police, gave evidence by audio visual link and provided a written statement dated 30 January 2023. [11] Once again, I have not given this evidence more or less weight because of the manner in which it was given. Mr Minns’s statement was said to be based on his refreshing his memory from:

1. the COPS event record relating, inter alia, to what relevantly occurred on 18 October 2017 at Mr Carvana’s office and carpark and subsequently (the 18 October 2017 COPS Event); and

2. the Custody Management Report (CMR) concerning Mr Carvana’s time at Wollongong Police Station on 18 October 2017.

   11. It was explained that it was probably prepared on 23 January and corrected on 30 January 2023 and this accounted for the two different dates on the document: tcpt, 11 July 2023, p 443(26) – (34).

11. It did not appear that Mr Minns, who was the custody manager at Wollongong Police Station in the early evening of 18 October 2017, made any other contemporaneous notes of his interactions with Mr Carvana on that day. Mr Minns was prepared to make appropriate concessions as to what he could recall or not and what may have happened. [12] I found nothing in his evidence that was inherently incredible or unlikely. Observing him give evidence and taking into account the content of the evidence he gave and all relevant circumstances, I formed the view that Mr Minns was an honest witness genuinely trying to recall what occurred on the relevant occasion and I generally accepted his evidence. If, however, there was any conflict between Mr Minns’s evidence and contemporaneous records, I would accept what was in the records. As to specific conflicts in the evidence between Mr Carvana and Mr Minns, I shall deal with such matters when making my findings as to what occurred.

    12. See for example tcpt, 11 July 2023, p 453(13) – (29), p 464(48) – (50).

12. The other lay witness who was called by the defendant to give oral evidence was SC Rae. He provided a written statement dated 23 December 2022 which included as annexures his police statement dated 18 October 2017, the 18 October 2017 COPS Event and a USB containing the video recordings from Mr Carvana’s telephone and recordings of the two 000 calls. [13] Like other witnesses, SC Rae made appropriate concessions and gave suitably qualified answers. [14] SC Rae was cross examined with some force by Mr Carvana. [15] Nonetheless, SC Rae’s responses to these or other questions did not cause me to form the view that he was dishonest or that his evidence was generally unreliable. In my view, SC Rae conscientiously attempted to answer the questions he was asked in cross examination, some of which were not particularly clear, and I had no reason to believe that he was not being honest and frank. Once again, I generally accepted SC Rae’s evidence except if there were contemporaneous notes or recordings which were inconsistent with that evidence. Specific matters about which he gave evidence and which were the subject of dispute are addressed when I make my factual findings.

    13. Ex 23.

    14. See for example tcpt, 13 July 2023, p 557(3) – (33), p 589(14) – p 590(9).

    15. See for example tcpt 13 July 2023, p 557(26) – (33), p 561(4) – (14), p 567(46) – (49), p 584(46) – p 585(9).

13. Turning now to the principal witness in the plaintiff’s case, Mr Carvana himself, he gave oral evidence and his statement (described as an affidavit) dated 26 August 2022 was admitted into evidence. [16] In addition, accounts of the relevant facts given by Mr Carvana as recorded in other documents were also in evidence. [17]

    16. Ex A.

    17. These included, for example, Ex 7 the statement of claim dated 9 October 2020, Ex 8 the amended statement of claim dated 28 June 2021, Ex 9 the second further amended statement of claim dated 16 July 2021 (although it appears to be misdated 2001), Ex 10 the third further amended statement of claim dated 14 June 2022, and Ex 13 a document headed “B” which Mr Carvana in effect accepted was probably prepared based on what he told someone – tcpt,11 July 2023, p 380(28) – (42).

14. I formed the view, based on my observation of Mr Carvana and the evidence as a whole, that he was an intelligent and articulate man, who was an experienced and successful accountant who has also been involved in managing other businesses. My assessment was that Mr Carvana found it stressful to prepare and conduct his own case as an unrepresented litigant as well as finding it difficult to maintain objectivity in relation to his evidence, especially when it might adversely affect his case. I did not, however, form the view that Mr Carvana was generally deliberately dishonest.

15. In addition, I formed a number of other impressions concerning his evidence as a result of observing him in the witness box and in light of his evidence. First, Mr Carvana had a tendency to give unrestrained or somewhat exaggerated responses which were not always responsive to the question asked and aspects of which were not entirely credible. [18] One particular illustration of this is the following question and answer during Mr Carvana’s cross examination: [19]

“Q. So after you left custody on 18 October 2017, did you take any notes as to what happened during that day or, for example, did you take any notes of what you recalled happening on say 19 October?

A. Okay. I’ll tell you what I did after I was released from custody. I met up with quite a few people and had a coffee with them in a place in Wollongong at a coffee shop. These were knowledgeable people, friends, who tried to calm me down. From there I went home and didn’t sleep. Sat in my chair, in my lounge chair with my little puppy dog that I just bought my daughter, and cried. I didn’t write anything. The mind kept going on visualising for that night and months ahead till today what I went through, and I can repeat it perfectly.”

18. See for example tcpt, 20 February 2023, p 65(8) – (48); tcpt, 10 July 2023, p 301(7) – (44), p 304(6) – (28), p 305(4) – (11) and (23) – (26), p 335(43) – p 337(26).

19. Tcpt, 20 February 2023, p 27(19) – (28).

16. Secondly, Mr Carvana appeared on occasions to be avoiding answering a question; sometimes anticipating where a line of questioning was going and trying to give his answers accordingly, rather than answering the question actually asked. [20] On other occasions, he appeared to be attempting to avoid answering questions and then contradicting himself in a subsequent answer. [21]

    20. See for example tcpt, 21 February 2023, p 138(1) – (37), p 139(5) – 141(9), p 206(45) – p 208(43); tcpt, 10 July 2023, p 302(34).

    21. Tcpt, 20 February 2023, p 56(19) – (50).

17. Thirdly, Mr Carvana on one occasion gave answers in cross examination which were inconsistent with earlier answers and evidence but appeared unwilling to acknowledge the full extent of any inconsistency. [22] Mr Carvana was also not prepared to concede that his memory of events was more likely to be accurate the closer in time to his arrest than later. [23] I did not gain the impression that Mr Carvana would make appropriate concessions contrary to his interests unless effectively left with no potentially arguable alternative.

    22. See for example tcpt, 11 July 2023, p 381(6) – (32) compared to tcpt, 10 July 2023, p 303(23) – p 305(7), p 307(12) – (14).

    23. See for example tcpt, 10 July 2023, p 337(13) – (21).

18. Fourthly, at times during his evidence, Mr Carvana said he was “getting worked up” or similar descriptions. [24] This appeared to me to be correct and, when he was worked up, this interfered with his ability to answer questions reliably. This was also consistent with the fact that, when being psychologically assessed previously, Mr Carvana described himself as often “over-reacting” to situations. [25] My observation of him in court indicated that there was a degree of overreaction from time to time on his part, which may have been a response to being cross examined and a litigant in person but it detracted from the credibility and reliability of his answers.

    24. See for example tcpt, 20 February 2023, p 75(31).

    25. Ex Q pp 462, 503 and 505.

16. Fifthly, Mr Carvana would often not wait for the end of a question and interrupted the cross examiner, including on occasion by claiming that the cross examiner was confused or was trying to upset him or some similar contention. [26]

    26. See for example tcpt, 20 February 2023, p 72(3) – (24) and (41) – (48), p 73(44) – p 75(4), p 87(48) – p 88(7); tcpt, 10 July 2023, p 303(24) – (33) and (46).

17. The evidence which I accepted also established that Mr Carvana has had long standing anxiety and depression conditions, and these contributed to his becoming dependent on Alprazolam (a benzodiazepine supplied under the name Xanax or Kalma) from well before 2017. The evidence did not suggest that his mental health conditions had resolved by the time Mr Carvana gave evidence before me. I accepted the unchallenged expert evidence that long term benzodiazepine use, such as has occurred in Mr Carvana’s case, can adversely impact an individual's capacity for memory. [27]

    27. Tcpt, 10 July 2023, p 257(23) – (26).

18. In light of my observations of Mr Carvana giving evidence, how the evidence unfolded in court and its content, his circumstances, including those outlined above, and ordinary human experience, I was of the view that in Mr Carvana’s case the processes of memory in relation to the events on 18 October 2017 were probably overlaid subconsciously by perceptions of self-interest as well as conscious consideration of what could have been said or done, so as to provide an illustration of what McLelland CJ in Eq said in Watson v Foxman (1995) 49 NSWLR 315 at 319:[28]

“All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed.”

28. Cited by Sackar J in Campbell v Campbell [2015] NSWSC 784 at [73].

22. For these reasons and in the circumstances, I have accepted Mr Carvana’s evidence where it is consistent with contemporaneous records or with the evidence of others. Where, however, there were no relevant contemporaneous records or his evidence conflicted with that of other witness, I approached his evidence with considerable caution. I shall deal with specific conflicts between his evidence and other evidence, when making relevant findings.

Findings concerning the events of 18 October 2017

23. There was no substantial dispute as to the background to the events of 18 October 2017 or as to many aspects of what occurred in the car park and later on that day.

Background to relevant events on 18 October 2017

24. In 2017, the plaintiff’s accountancy practice, David Carvana & Associates, and a company with which Mr Carvana was associated called Emplus Solutions Pty Ltd occupied premises behind the post office at Fairy Meadow in New South Wales. Along the side of the premises was a driveway leading from the street to a car parking area behind. At the end of the driveway nearer the street there was a gate. At the entrance to the driveway, along the driveway and elsewhere in the car parking area were signs stating, variously, that: it was private property and unauthorised parking was not permitted; parking was only available for “employees or visitors” of David Carvana & Associates and Emplus Solutions Pty Ltd; or, parking was “Restricted / Customer parking only”. It was not in dispute that Mr Carvana or some persons or entities associated with Mr Carvana owned the land which included the driveway and parking area.

25. Prior to 18 October 2017, Mr Carvana had been annoyed by unauthorised parking in that parking area. Ms Fawcett had parked her black SUV in the parking area previously when she went to the post office at Fairy Meadow and Mr Carvana had photographed or videoed her vehicle in the parking area and told her not to park there. Mr Carvana had also posted on social media concerning a black SUV parking in the parking area without his authorisation.

26. On 18 October 2017, Ms Fawcett again parked in the parking area. Mr Carvana saw her and asked her, in effect, not to park there but indicated that she could do it this one time. Subsequently, Mr Carvana realised that Ms Fawcett’s black SUV was the vehicle he had videoed or photographed on previous occasions and he became annoyed that she was continuing to park in the parking area despite his warnings to her not to do so. As a result of becoming annoyed, Mr Carvana decided to let the air out of the tyres of Ms Fawcett’s SUV.

The incident between Ms Fawcett and Mr Carvana on 18 October 2017

27. The evidence of what occurred in the car park involving Mr Carvana and Ms Fawcett on 18 October 2017 included:

1. the three video recordings which Mr Carvana recorded using his telephone;

2. the 000 calls made by Ms Fawcett;

3. Ms Fawcett’s statement to police made on 18 October 2017, before police attended the parking area to speak to Mr Carvana and before the video had been viewed or seized by police; and

4. the statement of Mr Carvana Senior made some time later for the purposes of the criminal proceedings in the Wollongong Local Court against Mr Carvana.

28. Just before about 11:40 am on 18 October 2017, Mr Carvana began to let the air out of the passenger’s side rear tyre of Ms Fawcett’s vehicle and videoed himself doing so. The video showed Mr Carvana’s thumb on the release valve of the tyre and a hissing sound from the air being released could be heard on the recording. After about 10 or 15 seconds, Ms Fawcett can be seen walking up the driveway towards Mr Carvana. As she approached her car, she said “Please don’t do that. Don’t touch my car”. She arrived at the vehicle and asked Mr Carvana politely to stop. Ms Fawcett said “Please give me back my thing” and reached out to retrieve the tyre valve cap which Mr Carvana had removed but this was resisted by Mr Carvana who attempted to keep hold of it.

29. At this point the video swung around in various directions and Mr Carvana could be seen kicking or stomping on the running board of the vehicle one or two times. Ms Fawcett said in her statement that she observed no damage as a result of this. Ms Fawcett became upset and yelled out “For God’s sake, what are you doing?” and Mr Carvana then said “I just realised who you were”. Ms Fawcett loudly accused him of trying to damage her car and called out “Help, help, help, this man is abusing me.” It was at this point that Mr Carvana said “I have not touched you” and also said that she had done it four or five times before and he had her on video. He continued saying “Fuck off my property” and told her never to come back. Ms Fawcett yelled out that Mr Carvana was “insane” then said she was leaving and called him an “insane lunatic”.

30. Ms Fawcett said in her statement, after describing Mr Carvana stomping on the “step plate” of her car, that Mr Carvana used both hands to push her shoulders and chest while continuing to hold his telephone in one hand. She said that he gave her “a good shove and [she] took a big step back, about a metre and a half”. In the first 000 call, Ms Fawcett repeated that Mr Carvana pushed her. As noted above, Mr Carvana expressly stated during the video recordings that he did not touch Ms Fawcett. On my review of the video recording of the incident, I was not satisfied that Mr Carvana made physical contact with Ms Fawcett so as to push her away, as recounted in her statement, although there was some earlier physical contact when Ms Fawcett attempted to recover the valve cap.

31. In both her first 000 call and in her statement, Ms Fawcett also said that she felt threatened by what Mr Carvana had done. I accept that she felt physically threatened in the car parking area, especially as a result of Mr Carvana’s stomping on the running board of her car and speaking aggressively, and that this was a genuine and reasonable reaction on her part to what occurred.

32. By this time, Mr Carvana Senior was outside in the parking area and could observe what occurred. In his statement, he said that “[a]fter shouting a barrage of offensive, abusive words, the woman got in a black SUV, did a u-turn and lowered the window to scream for help”. This was not consistent with what was shown on the video recording. It was not Ms Fawcett who used offensive, abusive words and she called for help while standing next to her vehicle not from inside the vehicle.

33. In response to Ms Fawcett’s calls for help, a male passer-by walked up the driveway. Mr Carvana told the passer-by to get out of his property and to call the police, if he wanted to. Mr Carvana walked down the driveway and shut the gate at the end of the driveway, which prevented Ms Fawcett from leaving. He told passers-by who had stopped to look that he owned the property, pointed to the signs and said that she had done it 16 times. He also said “I didn’t touch her. I wouldn’t touch a lady.”

34. In the meantime, Ms Fawcett had returned to her vehicle, turned it around and driven down towards the gate. As recorded on the video, Mr Carvana explained, either to persons who were standing nearly or for the purposes of the recording, “Guys this is the one that does it all the time so I was flattening her tyre … Here it is on video guys, the fucking bitch again. I blocked her in. I got her good this time.”

35. At about this time, Ms Fawcett made her first 000 call.

36. On the second video taken by Mr Carvana on his telephone, Ms Fawcett’s car is shown behind the shut gate with Mr Carvana outside the gate. He is recorded as saying various things including: “I finally got her and locked her in now. It’s illegal. Let the cops come and have some fucking fun. … She’s not getting out of here. She can fuckin’ stay in tonight … I’ve fuckin’ had enough”. Ms Fawcett continued making her first call to 000 during this time.

37. A third video depicts the gate open and Ms Fawcett driving out and across the footpath where she stopped, left her car and took photographs of Mr Carvana on her telephone and then gave a description of him as part of her first 000 call.

Police response to the 000 calls

38. At about 11:40 am, an urgent call was broadcast over the police radio to which two uniformed officers in a police vehicle, SC Simpson and SC Rae, responded. The information given to them was that: a male was verbally abusing the informant, punching her car and blocking her in but no person was injured; the person of interest had pushed the informant; there was a dispute over the informant parking on the person of interest’s land; the informant had stopped responding to the telephone operator and was arguing; and, the situation was escalating.

39. After Ms Fawcett finished her first 000 call, she drove to a service station to refill her tyre with air and then returned to her place of work.

40. As a result of being assigned to deal with the incident, the police officers drove to the post office at Fairy Meadow, which was the location given to them, but were unable to locate Ms Fawcett.

41. From her workplace, Ms Fawcett called 000 again in order to let police know that she had returned to work so that she would feel safe and it was not an emergency anymore.

42. After being informed of the second 000 call at about 11:55 am, SC Simpson and SC Rae attended Ms Fawcett’s place of work and spoke to her. Ms Fawcett then attended Corrimal Police Station where, at about 12:20 pm, she made her statement, which was in evidence in these proceedings. That statement was largely consistent with the video recordings made by Mr Carvana, except for some differences in the actual words used and Ms Fawcett’s recollection that she had been physically pushed by Mr Carvana after he had stomped on the running board of her SUV.

43. Having obtained this statement from Ms Fawcett, SC Simpson and SC Rae went to the Fairy Meadow post office and then drove into the car parking area behind the post office where the incident involving Mr Carvana and Ms Fawcett had taken place. The police officers parked there at about 1:45 pm.

Police attendance at the carparking area

44. SC Rae parked the police vehicle behind Mr Carvana Senior’s car. Mr Carvana was in the carparking area smoking a cigarette. SC Rae and SC Simpson left their vehicle and Mr Carvana became argumentative as to why they had parked as they did in the carpark. SC Simpson introduced herself to Mr Carvana and told him that she worked at Wollongong police station. SC Simpson said they wanted to speak to Mr David Carvana and he introduced himself but wanted them to go into his office. SC Simpson said that they could remain outside so as not to cause any parking issues and indicated that they only needed to talk to him briefly to advise him of the investigation and offer him the opportunity to be interviewed. Mr Carvana still insisted on their going into his office.

Events in Mr Carvana’s office

45. The police officers and Mr Carvana went into his office and the door was left open. SC Simpson informed Mr Carvana that they were investigating allegations of assault against a female who had parked in the car parking area that morning and damage to her car. Mr Carvana was cautioned by SC Simpson.

46. When SC Simpson asked him what had happened in the car parking area that morning, Mr Carvana looked on his mobile telephone and told the police officers that the woman had done this countless times and he had photographs of her. While Mr Carvana was looking on his telephone he also called out to his receptionist and asked her the dates of the previous incidents. He showed the officers a photograph of a female similar to Ms Fawcett. When asked what had happened that morning, he spent a short time looking on his telephone for video footage of what occurred. Mr Carvana was again offered an opportunity to participate in an electronically recorded interview at Wollongong police station but he indicated that he did not want to do so.

47. Mr Carvana eventually located the video footage. Before Mr Carvana showed the video to SC Simpson, she could hear a hissing sound. There was a potential dispute as to whether, at this point, SC Simpson snatched the telephone out of Mr Carvana’s hand, as Mr Carvana at one point contended, or Mr Carvana handed the telephone to her to look at the video which was playing, as SC Simpson and SC Rae stated. During cross examination on 10 July 2023, Mr Carvana said that SC Simpson “snatched the phone and put it in her pocket. 100%. Vivid memory”. [29] In cross examination the next day, Mr Carvana said “I never ever in memory in this room used the word that she snatched the phone from me, snatched. So don’t change my words, please”. [30] Mr Carvana also gave evidence on the second day, however, that he passed the telephone to SC Simpson and that he had never held anything back from police. [31] That latter evidence was consistent with the evidence of SC Simpson and SC Rae and, based on the evidence as a whole and the other circumstances referred to above, I am satisfied that Mr Carvana voluntarily handed his telephone to SC Simpson so that the police officers could view video footage of the incident in the car parking area on the telephone.

    29. Tcpt, 10 July 2023, p 307(13) – (14).

    30. Tcpt, 11 July 2023, p 381(18) – (19).

    31. Tcpt, 11 July 2023, p 381(6) – (15).

48. While SC Simpson was holding the telephone and the video was playing, she saw what appeared to her to be Ms Fawcett approaching and having a conversation with Mr Carvana, his stomping on the side of the car, a physical confrontation between Mr Carvana and Ms Fawcett, and her calling out for help. SC Rae could also see the video footage. At about this time, SC Simpson accidently touched the screen of the telephone and the video restated from the beginning and she saw, for the first time, Mr Carvana’s hand releasing air from the valve on Ms Fawcett’s vehicle. SC Simpson’s evidence, which I accept, was then as follows:

“[Mr Carvana] became visibly uncomfortable that the video had restarted and that I could see him releasing the air. At this time I formed the opinion that it was necessary to preserve the evidence on the phone. I believed [Mr Carvana] had already intentionally handed me the phone after the images depicting the tyre had finished, so as to prevent me from viewing that evidence.

[SC Simpson] said – Mr Carvana I will have to seize this phone as I have reason to believe it contains evidence of offences I am investigating. I will have to take it back to the police station, but I will get it back to you as soon as possible.

[Mr Carvana] said – No, no you are not. It is my property.

[SC Simpson] said – I understand that it is your phone, however due to the evidence contained in it I will have to obtain a police copy and get it back to you.

[Mr Carvana] said – Give me my phone. It is my phone. I am calling my solicitor.

[SC Simpson] said – I have no issue with you calling your solicitor, however I am still seizing the phone and will get it back to you as soon as I can. Due to the evidence on the phone I have to take it with me. I would be in trouble for not investigating this evidence. I will get it back to you.”

49. Mr Carvana continued to seek the return of his telephone and became upset when SC Simpson refused. Mr Carvana offered to have the relevant videos downloaded onto a USB stick by the secretary in the office so they could be taken to the police station, but SC Simpson did not accept that this should be done.

50. Mr Carvana then shut the door of his office and stood so as to prevent the two police officers from leaving if they did not return his telephone. During this time, Mr Carvana said that he wanted his telephone back so he could speak to his solicitor, including in relation to whether the police had a right to seize his telephone, and because he had other businesses to run. He was yelling and becoming more and more irate. SC Simpson warned Mr Carvana that he was potentially committing an offence by not allowing the police officers to leave. Mr Carvana’s evidence was that he “recalled … perfectly” what occurred and that she did not say that. [32] Both SC Simpson and SC Rae gave evidence of words to that effect being said and their evidence was inherently credible. In my view in the circumstances, it was more probable that Mr Carvana, being upset and irate at the time, did not remember what was said to him and it is quite improbable that he recalled the situation perfectly when he was giving evidence. In light of the evidence as a whole and my observations of the witnesses, I do not accept Mr Carvana’s evidence and accept that of SC Simpson and SC Rae in this regard.

    32. Tcpt, 10 July 2023, p 311(18) – p 312(20).

51. In his statement, Mr Carvana said that, at this point, the police officers drew “their lasers [sic, tasers] on me in my office” and, in his oral evidence, he maintained that their tasers were drawn in his office. The statement of Mr Carvana Senior, however, included that, at about this time, “the officer hinted that they might use the TASER gun”. According to Mr Carvana, however, Mr Carvana Senior was not in the office at the time when the tasers might have been drawn and Mr Carvana did not recall his father being present when Mr Carvana was being spoken to by police. [33] Similarly, in cross examination, Mr Carvana Senior agreed that it was correct that he did not get involved or see anything until the police left and his son walked out of the front door of his office. [34] If that is correct, it is difficult to understand how Mr Carvana Senior could have formed the view that the police officers “hinted” that they might use their tasers in Mr Carvana’s office at the relevant time.

    33. Tcpt, 11 July 2023, p 384(38) – p 385(7).

    34. Tcpt,11 July 2023, p 431(7) – (12).

52. Senior Constable Rae expressly denied in par 17 of his statement deploying tasers stating:

“At no time during our interaction with [Mr Carvana] did we deploy the use of our tasers. Whilst [Mr Carvana’s] behaviour was argumentative and non-compliant there was never any physical confrontation with [him] that required any use of force by myself or SC Simpson. I have read the plaintiff’s Affidavit of 26 August 2022 at [13] and deny that ‘lasers’ were drawn on him in his office, or at any stage.”

53. He was not challenged on this evidence in cross examination that the tasers were not deployed or drawn.

54. In Mr Carvana Senior’s cross examination, he also gave an account different from that of his son. Mr Carvana Senior said: [35]

“When my son or I refused to do what they wanted, they just – when, with I think the right hand, like if they were pulling something out of maybe the holster or maybe pocket or maybe the telephone that they seized, that they took off my son.”

35. Tcpt, 11 July 2023, p 426 (5) – (8).

55. When pressed, Mr Carvana Senior accepted that he could have been seeing the officers pull out the telephone but maintained that he “had the impression that they were pulling instead this taser gun”. [36]

    36. Tcpt, 11 July 2023, p 426 (25) – (26).

56. It was not suggested that any taser was actually deployed against Mr Carvana.

57. To the extent that it is necessary to resolve the factual issue, I note that the officers only said that they did not draw or deploy their tasers. In my view, on the balance of probabilities, given that Mr Carvana was visibly and verbally agitated at not having his telephone returned and shut the door of his office preventing the officers from leaving, the officers probably felt physically threatened and may have moved their hands to their tasers in case they needed to be deployed. This may have caused Mr Carvana to fear that the tasers might actually be drawn and deployed but, as it happened, this did not occur. Mr Carvana Senior was probably told about it subsequently and believed he had a memory of it. I am not satisfied that there was any inappropriate conduct on the part of SC Simpson and SC Rae in this regard.

58. After some time and probably after he was informed that he might be committing an offence, Mr Carvana moved away from the door so that SC Simpson and SC Rae could leave his office and they went into the reception area where the receptionist was and where clients were waiting. Mr Carvana appeared to SC Simpson to be very angry, saying that he had to speak to his solicitor and the officers could not leave with his telephone. SC Simpson explained why she was refusing to return his telephone and indicated that he was free to call his solicitor. I accept SC Simpson’s evidence that she remained calm and did not respond inappropriately to Mr Carvana’s anger and verbal aggression.

59. Mr Carvana offered to have the material on his telephone downloaded onto a USB for the officers to take with them provided that they left his telephone with him. [37] SC Simpson did not take up this offer nor did she give Mr Carvana back his telephone.

    37. Tcpt, 13 July 2023, p 583(42) – (47).

60. SC Simpson and SC Rae returned to their police vehicle.

Events in the driveway and the arrest of Mr Carvana

61. SC Rae turned the police vehicle around in order to drive out of the driveway from the car parking area and onto the street. By this time, however, Mr Carvana was lying down on the driveway between the police vehicle and the exit onto the street preventing the officers from driving out. SC Rae drove slowly down the driveway towards Mr Carvana, stopped a few metres from where he was lying, wound down his window and told him to move out of the way. After a while, Mr Carvana stood up but remained in the middle of the driveway still preventing the officers from driving out. He was asked three or four times to move and SC Rae warned him that if he failed to move out of the way he was obstructing police and could be arrested. Mr Carvana continued to refuse to move out of the way until he had spoken to his solicitor on the telephone.

62. After waiting for several minutes with their conversation with Mr Carvana going around in circles, SC Simpson and SC Rae got out of their vehicle. Mr Carvana was still standing in front of the police car and did not move out of the way.

63. I find that Mr Carvana, in the driveway, appeared to be overreacting to the circumstances by lying on the ground and then standing in front of the police car and his speech and actions did not appear calm or rational.

64. There was then a dispute as to whether Mr Carvana was arrested by SC Rae or SC Simpson. Mr Carvana maintained he was arrested by SC Simpson. SC Rae’s evidence was that he arrested Mr Carvana and SC Simpson’s evidence was to the same effect. The Court Attendance Notice issued on 18 October 2017 in respect of the alleged offending recorded that SC Rae was the officer who “apprehended” Mr Carvana and SC Rae was listed first under the heading “Arresting Officer” but SC Simpson was also listed under that heading but after SC Rae. There did not appear to me to be any reason why SC Rae and SC Simpson would not have given truthful evidence, including in their statements made on or shortly after the day in question. Given his heightened emotional and physical state at the time of the events in question, it is more likely that Mr Carvana’s recollection was faulty. In all the circumstances and based on the evidence as a whole, I find that SC Rae decided to arrest Mr Carvana and did so.

65. Senior Constable Rae gave evidence in par 21 of his statement to the effect that he suspected that Mr Carvana had committed “the offence of obstructing police … in circumstances where he was preventing us from leaving the car park, initially by laying on the ground in front of the vehicle and later by standing in front of the vehicle, blocking our exit”. SC Rae also gave evidence that he was satisfied that it was reasonably necessary to arrest Mr Carvana in order to stop him from continuing to commit or repeating that offence. This satisfaction was said to be based on the senior constable’s belief that if Mr Carvana was not arrested, he would continue to prevent the police officers from exiting the car park by standing in front of the vehicle or otherwise obstructing the driveway. In this regard, SC Rae relied not only on Mr Carvana’s lying and standing in front of the police vehicle and conduct towards the police officers up to that point in the driveway but also on Mr Carvana’s attempt to prevent the officers leaving his office and the officer’s awareness that Mr Carvana had locked Ms Fawcett in the car park earlier that day, from the information provided over the police radio and in the video recordings depicting what occurred.

66. At about 2 pm, SC Rae spoke to Mr Carvana, stating his rank, name and station and saying to Mr Carvana that he was under arrest for obstructing police. He was cautioned and advised of his rights.

67. Mr Carvana did not respond to this but remained in the middle of the driveway. He was not handcuffed but SC Simpson called for a caged police vehicle to attend the car parking area. Mr Carvana was still saying that he wanted to speak to his solicitor. The caged vehicle and a motor-cycle officer arrived after a short time and Mr Carvana was taken to Wollongong Police Station.

68. During some of the time while Mr Carvana was blocking the driveway, Mr Carvana Senior was at the scene and Mr Carvana had animated conversations with his father about telephoning his solicitor. There was a dispute on the evidence as to whether at some time during the events in the driveway Mr Carvana Senior’s telephone was taken by police so that Mr Carvana he could not speak to his solicitor.

69. Mr Carvana Senior’s evidence in his statement was:

“When the officer approached the car park exit, [Mr Carvana] asked again for the phone to ring his legal representatives but to no avail. I offered him the use of my phone but the police officer was quick to grab it off my hand while I was handing it over to [Mr Carvana] and then after our protest it was given back to me saying he could not make any calls to anybody. It was then that David decided to lay across the width of his own driveway and property. I pleaded with the male officer to return the cellular phone to his proprietor and end the useless saga.”

70. A slightly different version was given by Mr Carvana Senior in Ex 19. This version was similar to Mr Carvana’s account in his statement concerning this aspect of what occurred. Mr Carvana said:

“my elderly father … came over, whilst I was on the floor in the driveway … he simply had my solicitor on his phone for me to talk with. [SC] Simpson was so wrong to grab his phone and also put that in her pocket”.

71. SC Simpson’s evidence in her statement, prepared for the purposes of the criminal proceedings against Mr Carvana and not the present proceedings, did not mention her taking Mr Carvana Senior’s telephone. SC Rae’s evidence at par 23 of his statement was that at no time did he seize Mr Carvana Senior’s telephone, nor did he see SC Simpson do so and he did not believe it was seized. SC Rae’s evidence in this regard was not challenged in cross examination. Furthermore, it was his evidence that he did not know whether Mr Carvana Senior had his telephone with him, but he did say to his son that he could not call the solicitor because Mr Carvana Senior did not know his number. [38]

    38. Tcpt, 13 July 2023, p 586(40) – (42).

72. On the Carvanas’ accounts, Mr Carvana Senior’s phone was grabbed before Mr Carvana lay down on the driveway or while he was lying there. According to the police, they remained in the car during this period and only left their vehicle after Mr Carvana stood up.

73. Having regard to all of the matters relating to the relevant witnesses referred to above and the evidence as a whole, I find that Mr Carvana Senior’s telephone was not seized by police, in the sense of being taken and retained by the officers in the exercise of their relevant powers. I was not satisfied on the balance of probabilities that either officer grabbed Mr Carvana Senior’s telephone. In any event, if one or other of the officers did take hold of Mr Carvana Senior’s telephone at some time while the officers and Mr Carvana were in the driveway, it was returned to Mr Carvana almost immediately. In addition, I was not satisfied on the balance of probabilities that either of the officers said that Mr Carvana Senior could not make calls to anybody on his telephone as was contended by him.

74. While waiting for the caged vehicle and during Mr Carvana’s animated conversations with his father, SC Simpson noticed that he was motioning towards his chest. She asked him whether he was experiencing pain or discomfort and he said he was not, but he indicated that he had previously had a heart attack and that stress was bad for him. SC Simpson offered to call an ambulance but Mr Carvana declined the offer. To SC Simpson’s observation, Mr Carvana did not appear physically incapacitated at that time. An ambulance was not called at this time. I accept that there was some discussion of Mr Carvana’s need for medication, but I was not satisfied on the balance of probabilities that there was a specific request for Mr Carvana to be allowed to take his medication with him that was refused by the police officers.

Events at Wollongong Police Station

75. At 2:30 pm, Mr Carvana arrived at Wollongong Police Station. In his statement, he said that he was “confused, upset, lost and obviously worried and anxious”. According to him, he was told, when he arrived at the station: “you know where to go”, and he responded: “are you guys on drugs, are you sure you have the right person, because I have never been here before, so where do I go?” and this elicited a stern response. If Mr Carvana did respond in this way, it could well have provided a basis for police officers forming the view that Mr Carvana was reacting aggressively and unreasonably, especially if the words “you know where to go” were actually spoken as a question. This was, in my view, the probable explanation of why Mr Carvana was instructed sternly where to go.

76. Mr Carvana’s details were entered into the police custodial system and a Custody Management Record or CMR was created. Acting Sergeant Victoria Elliott was the Custody Manager at that time and read Mr Carvana a summary of Pt 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPR Act). Mr Carvana signed the Form 31 Summary of Pt 9, adding and initialling a notation: “(Read by Custody Officer to me very well! [word indecipherable] all sounds Good!)”. This would, in my view, have provided a reason for the officer to think that Mr Carvana was being flippant and antagonistic.

77. During Mr Carvana’s assessment on being taken into custody, it was recorded in the CMR that he suffered from illness, namely a prior heart attack and anxiety, and his behaviour was aggressive. This last observation was also consistent with Mr Carvana’s evidence that he found the questions asked of him by the officers completing the documentation “silly” and he said that “any silly question would be replied with a silly answer”. Once again, this probably gave the appearance of Mr Carvana being flippant and antagonistic.

78. On a visual assessment, it was noted in the CMR that he was in pain and complained of tightness of his chest and stress. Mr Carvana provided details of his medication and identified that he had heart problems. An ambulance was called and attended from 2:40 to 2:55 pm. The CMR recorded:

“Ambulance attended and completed an assessment of the customers heart ect. Nil issues identified No need to convey. Customer to be monitored in custody in case of further issue.”

79. Mr Carvana’s solicitor, Mr Sinadinovic (incorrectly recorded on the CMR as Mr Sinadovic) attended Wollongong Police Station and spoke to Mr Carvana in private from 3:12 to 3:39 pm. Following that conversation, SC Simpson again offered Mr Carvana the opportunity to participate in a recorded interview, which he refused.

80. A/Sgt Elliott noted in her record of her inspection at 3:45 pm that Mr Carvana:

“returned after speaking to solicitor appears fine and well although choosing to lay on the floor instead of the seat”.

81. At 4:13 pm, Mr Carvana declined the offer of tea or coffee from A/Sgt Elliott.

82. At about 5:30 pm, Mr Minns (who was then a Sergeant of Police) arrived to commence his shift as custody manager, taking over from A/Sgt Elliott at 6:00 pm.

83. At 5:31 pm, SC Simpson checked Mr Carvana’s mobile telephone into the exhibits management system, known as EFIMS. In this regard, it is convenient to note here that on 26 October 2017 the Cellebrite downloading had been completed by 2:52 pm and the telephone was collected by Mr Carvana’s solicitor, Mr Sinadinovic, at 3:20 pm on 26 October 2017.

84. When Sgt Minns entered the charge room, he saw that Mr Carvana (with whom he had had no previous contact) was in the dock and the door was open. Sgt Minns noticed that Mr Carvana was lying on the floor instead of sitting on the seat, was crying and appeared to be very emotional.

85. In his statement, Mr Carvana described the situation at this point in the following terms:

“[a]fter a couple of hours of being humiliated to the nth degree, I was on the floor of the cell, clothes all messed up and crying and in came ‘King Kong’! Yes, Robert Minns, with all this stripes, puts his head in my cell, almost touching my face and says quite softly ‘are you ok?’ I honestly thought this was my saviour and concerned for my wellbeing … Well, wasn’t I wrong – I recall saying to him with tears streaming down my face ‘no, not at all’, very politely! Next thing I knew, he slammed the door of my cell, locked it and said to the other two [officers] ‘that’s how you treat a criminal’!!!

In disbelief of his actions, I asked him nicely ‘do I know you…. Have I done something to you?’ Once he scream replying ‘did I give you permission to speak’ I then realized I would be lucky to survive from there – alive today, but I keep asking myself ‘was I lucky to survive that ordeal?’ At what cost?”

86. On my assessment, while I accept most of the underlying actions set out in this version, Mr Carvana’s descriptions of his emotional responses to the actions were, in my view, a demonstration of his tendency to overreact to situations. This tendency, which pre-dated and post-dated the subject incident, was acknowledged by Mr Carvana when he completed Depression, Anxiety and Stress scale forms in 2010, 2019 and 2020. In those forms he answered that the statement “I tended to over-react in situations” applied to him during the preceding week either “to a considerable degree, or a good part of time” or “very much, or most of the time – ALMOST ALWAYS”. [39] In my view, Mr Carvana allowed his evidence to be coloured by his overreactions in this instance, as well as in others.

    39. Ex Q pp 462, 503 and 505.

87. Mr Minns’s evidence was largely consistent with the underlying actions referred to by Mr Carvana but he denied putting his head in the cell and saying “that’s how you treat a criminal” and I would not find on the balance of probabilities that that occurred.

88. I find that, in accordance with his usual practice, Sgt Minns went to close the door of the dock where Mr Carvana was until he had been briefed about each person in the charge room. Without entering the dock, Sgt Minns told Mr Carvana that this was what he was going to do and that he would come back and talk to him after that. In pars 11 and 12 of this statement, Sgt Minns then described what occurred as follows:

“I placed my foot against the door (I do this so if the door is kick or pushed back at me I am not hit in the head) and used my hands to shut the dock door. As I began to push the door closed, [Mr Carvana] kicked his leg out at the door and stopped me from being able to close it.

I said words to [Mr Carvana] to the effect of ‘do not do that’. I then forcefully closed the door by pushing it shut and locking it.”

89. I accept what is set out in those paragraphs but note that it is probable that Mr Minns’s “words … to the effect of ‘do not do that’” were more colourful than is recorded in his statement but were said in response to a perceived attempt by Mr Carvana to prevent him closing the door. I was not satisfied, on the balance of probabilities, that Sgt Minn’s reaction was unreasonable in all the circumstances.

90. Sgt Minns was briefed by the outgoing custody manager who informed him, inter alia, that Mr Carvana had been seen by the ambulance and was fine. The sergeant was also briefed by SC Simpson and SC Rae about what had led to Mr Carvana being in custody. Sgt Minns then instructed SC Simpson and SC Rae to proceed with finishing the charge process and preparing the Court Attendance Notice (CAN).

91. Sgt Minns spoke to Mr Carvana and told him what was going to occur.

92. At 6:17 pm, SC Simpson completed the charge process and CAN H65336205 was served on Mr Carvana. By that CAN, Mr Carvana was charged with the following offences:

1. Seq 1 – Common assault of Ms Fawcett contrary to s 61 of the Crimes Act 1900 (NSW);

2. Seq 2 – Resisting or obstructing an officer while in the execution of his or her duty contrary to s 58 of the Crimes Act;

3. Seq 3 – Intimidation of Ms Fawcett with the intention of causing her to fear physical or mental harm contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW); and

4. Seq 4 – Intentionally or recklessly damaging Ms Fawcett’s tyre contrary to s 195(1)(a) of the Crimes Act.

93. The CAN contained, inter alia, the following:

1. it was specified under the heading “Prosecutor (NSW Police) Details” that:

1. SC Simpson was the officer in charge and “Prosecutor” in relation to these charges; and

2. Mr Carvana was “Apprehended by” SC Rae; [40]

2. under the heading “Arresting Officer”, SC Rae was listed first and SC Simpson was listed second; and

3. it was stated that the matter was before Wollongong Local Court on 16 January 2018.

   40. In the CAN it is specified that Mr Carvana was apprehended at 1:40 pm but this appears to be slightly inaccurate as the charge of obstructing an officer, sequence 2, is alleged to have occurred between 1:45 pm and 2 pm and Mr Carvana was arrested after he obstructed the officers by lying down on and standing in the middle of the driveway.

94. At 6:20 pm on 18 October 2017, Mr Carvana signed the bail acknowledgement and three minutes later was released on conditional bail by Sgt Minns, with the appropriate paperwork.

95. In light of the evidence as a whole, I was not satisfied that it was established on the balance of probabilities that there was anything that occurred at the police station which involved any significantly demeaning or disrespectful conduct on the part of any relevant police officers towards Mr Carvana. Indeed, Mr Carvana’s conduct from time to time was such that it was likely to have been seen as flippant and antagonistic and this probably accounted for any sternness or harshness in the officers’ conduct that he perceived.

96. During the hearing, Mr Carvana, in effect, submitted that it was significant that the CCTV footage from the police station which showed the circumstances he experienced while in custody was no longer available. This was touched upon during the cross examination of SC Rae who explained that, if the CCTV footage was not recorded, or burned, on a disk or USB stick, it was deleted after six months. It was not established in evidence that what occurred at the police station as recorded on the CCTV footage was relevant to the Local Court proceedings nor was it established that the relevant footage had been put on a disk or USB stick within six months. I was not satisfied, on the evidence as a whole, that any relevant inference or conclusion could be drawn from the fact that the CCTV footage of what occurred at Wollongong police station was no longer available when subsequently sought by Mr Carvana.

The Local Court proceedings

97. The charges the subject of the CAN were eventually listed to be heard on 16 May 2018 before Wollongong Local Court. On that occasion, Mr Carvana was represented by Mr C Nicholls and a solicitor.

98. The transcript of those proceedings [41] relevantly included the following:

    41. Ex 18.

“PROSECUTOR: There are four sequences before the Court and I can indicate that I am seeking a plea to sequence 3 being the intimidation and upon that being entered I am withdrawing all other sequences that being sequence 1, common assault, sequence 2, hinder police and sequence 4, destroy damage property.

NICHOLLS: I can indicate that the plea is entered.

PROSECUTOR: Upon that those withdrawals are made and I can tender agreed facts and antecedents to confirm there’s nothing known. I also believe there’s some photographs.

…

After addresses on penalty, the magistrate continued:] Stand up please sir. Sir I don’t know if you’ve been listening to other matters I deal with, you can see I am dealing with relatively serious matters. I am not going to trivialise this because there is a victim who in some regards did feel intimidated by your behaviour. You are a bloke, she is a woman, she looks fairly small, you look fairly fit. Do you understand all that, do you understand that dynamic?

ACCUSED: Yes.

HIS HONOUR: In relation to this you took matters into your own hands, it was unlawful, do not let it happen against or the Court will quickly record a conviction. I would accept that you have become frustrated in relation to parking and various things that have obviously gone on in an area that is your responsibility. In relation to this particular matter given your age your lack of criminal record, the circumstances of the offending behaviour and the fact that my view is that this is a one off out of character and will not happen again. There is remorse, contrition and insight. THE COURT WILL DISMISS YOU UNDER S 10(1)(a). Do not come back sir. Thank you I do not think I need to say anything further.”

Relevant causes of action

99. Mr Carvana relies on three causes of action:

1. false imprisonment;

2. malicious prosecution; and

3. trespass to goods.

100. I shall deal with each cause of action in turn.

False imprisonment

101. In the present case, there was in effect no dispute that:

1. Mr Carvana was arrested without a warrant on 18 October 2017 at about 2 pm and was detained in police custody until he was released on bail at 6:23 pm; and

2. whether Mr Carvana was falsely imprisoned during that period depended on whether Mr Carvana’s arrest was lawful.

102. The State contended that his arrest was lawful, since it was authorised by s 99(1)(a) and (b)(i) of the LEPR Act. If the arrest was so authorised, this constitutes a defence to the tort of false imprisonment. The burden of establishing the elements of the defence fall upon the State: Zaravinos v State of New South Wales (2004) 62 NSWLR 58; [2004] NSWCA 320 at [12], [37], [38]) (Bryson JA, Santow JA and Adams J agreeing).

103. Section 99 of the LEPR Act relevantly provided at the time of Mr Carvana’s arrest:

“99 Power of police officers to arrest without warrant

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

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

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

(i) to stop the person committing or repeating the offence or committing another offence,

…

…

(3) A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person before an authorised officer to be dealt with according to law.

…”.

104. In addition, under s 202(1) and (2) of the LEPR Act as in force on 18 October 2017, which applied by virtue of s 201(1)(a) of that Act, a police officer who exercised the power of arrest under s 99 was required to provide, as soon as reasonably practicable, the following to the person subject to the exercise of the power:

1. evidence that the police officer is a police officer (unless the police officer was in uniform);

2. the name of the police officer and his or her place of duty; and

3. the reason for the exercise of the power.

105. Finally, it should be noted that s 4(1)(a) of the LEPR Act stated, at the relevant time, that unless the Act otherwise provided, the LEPR Act did not limit “the functions, obligations and liabilities that a police officer has as a constable at common law”. One relevant aspect of the functions or obligations of an arresting officer at common law, which was also reflected in s 99(3) of the LEPR Act, was that an officer may only exercise the power of arrest without a warrant for the purpose of taking the person before a magistrate or authorised officer to be dealt with according to law to answer a charge for the offence for which he is arrested.

106. In New South Wales v Robinson (2019) 266 CLR 619; [2019] HCA 46 at [109] (and see also [93]), the majority (Bell, Gageler, Gordon and Edelman JJ) explained the situation, in respect of provisions which are not materially different from those which are applicable in the present case, in the following terms:

“Section 99(1) stipulates conditions for arrest without a warrant, namely that ‘the police officer suspects on reasonable grounds that the person is committing or has committed an offence’ and that ‘the police officer is satisfied that the arrest is reasonably necessary for any one or more’ of specified reasons. And a police officer who arrests a person under s 99 must, as soon as is reasonably practicable, take the person before an authorised officer to be dealt with according to law. That is a requirement that takes effect immediately upon arrest. To comply with the requirement in s 99(3) immediately upon arrest, a police officer must at the time of arrest have an intention to take the person, as soon as is reasonably practicable, before an authorised officer to be dealt with according to law to answer a charge for that offence. If there is no intention to comply with the requirement in s 99(3), the arrest is unlawful. And a requirement for the police officer to have an intention to bring a person before an authorised officer means, as a matter of substance, a requirement to have an intention to charge that person.” (Footnotes omitted)

107. Consequently, in the circumstances of the present case SC Rae’s arrest of Mr Carvana would be lawful if:

1. SC Rae suspected on reasonable grounds that Mr Carvana had committed an offence;

2. SC Rae was satisfied that the arrest was reasonably necessary to stop Mr Carvana committing or repeating the offence;

3. as soon as reasonably practicable, SC Rae informed Mr Carvana of his name, his place of duty and the reason for his arrest; and

4. at the time of arresting Mr Carvana, SC Rae’s intention was to take him, as soon as reasonably practicable, before an authorised officer to be dealt with according to law to answer a charge for the offence for which he was arrested.

Did SC Rae suspect on reasonable grounds that Mr Carvana had committed an offence?

108. The factual findings as to the circumstances preceding Mr Carvana’s arrest have been set out above. It was not suggested in the present case that SC Rae did not suspect Mr Carvana had committed an offence when he arrested Mr Carvana. In that regard, SC Rae’s evidence was credible and well supported by the surrounding circumstances. Having regard to all the evidence as a whole, I accept that he did actually suspect, at the relevant time, that Mr Carvana had obstructed police and committed an offence under s 58 of the Crimes Act, which at the time, relevantly provided:

“Whosoever:

…

… wilfully obstructs any officer while in the execution of his or her duty, such officer being a constable …

shall be liable to imprisonment for 5 years.”

109. As to whether there were reasonable grounds for SC Rae’s suspicion, a number of propositions have been established in the authorities which have dealt with s 99(1)(a) of the LEPR Act or substantially similar provisions in other Acts. Many of these authorities were reviewed by McColl JA (Hoeben JA agreeing) in Hyder v Commonwealth of Australia [2012] NSWCA 336; 217 A Crim R 571 (Hyder) when considering s 3W of the Crimes Act 1914 (Cth) which relevantly corresponds in large measure with s 99 of the LEPR Act. In addition, the Court of Appeal has also recently considered the operation of this section in Hrdavec v State of New South Wales [2022] NSWCA 52 (Hrdavec). The propositions derived from these authorities relevantly include:

1. The test which has to be applied in order to determine whether, in a case of arrest without warrant, the requirement that there be reasonable grounds for the suspicion said to justify the arrest is satisfied serves to protect individuals but there is also a public interest in the detection of crime and bringing those who commit it to justice: Hyder at [13] and [14] and the cases there cited.

2. In determining whether the arresting officer had the relevant state of mind, namely suspicion, the court is considering a preliminary stage of the investigation, rather than one requiring evidence amounting to prima facie proof: Hyder at [14] and the cases there cited.

3. For an arresting officer to “suspect on reasonable grounds", the suspicion must actually be held by the officer, and there must also be facts which are sufficient to induce that state of mind in a reasonable person: Hrdavec at [16] (Bell CJ, Basten and While JJA); Hyder at [15(1) and (2)] and the cases there cited.

4. A reasonable suspicion involves less than a reasonable belief but more than a possibility and there must be something which would create in the mind of a reasonable person an apprehension or fear that the relevant state of affairs existed: Hrdavec at [16]; R v Rondo [2001] NSWCCA 540; (2001) 126 A Crim R 562 at [53(a)] (Smart AJ, Spigelman CJ and Simpson J agreeing).

5. What constitutes reasonable grounds for suspecting must be judged against what was known or reasonably capable of being known at the relevant time and whether the relevant person had reasonable grounds for forming a suspicion is to be determined not according to the subjective beliefs of the officer at the time but according to an objective criterion: Hyder at [15(7)] and the cases there cited.

6. The information acted on by the arresting officer need not be based on direct observations; he or she is entitled to form a belief based on what they have been told. The reasonable belief may be based on information which turns out to be wrong. The question whether information considered by the arresting officer provided reasonable grounds for the belief depends on the source of the information and its context, seen in the light of the whole of the surrounding circumstances and, having regard to the source of that information, drawing inferences as to what a reasonable person in the position of the independent observer would make of it: Hyder at [15(8)] and the cases there cited.

110. I have already accepted that SC Rae did actually suspect that Mr Carvana had committed an offence. Applying the principles referred to above, I am also comfortably satisfied that a reasonable person in the position of an independent observer, as a result of seeing Mr Carvana’s lying and standing in front of the police officers’ vehicle in the driveway effectively preventing them leaving the premises and doing what was required of the officers as part of their investigation, would have had, at least, a proper basis for suspecting, and indeed would in this case have suspected, that Mr Carvana was obstructing police in the performance of their duties, and thereby committing an offence.

111. Thus, in my view, both the subjective and objective requirements in s 99(1)(a) of the LEPR Act were satisfied in the present case.

Was SC Rae satisfied that the arrest was reasonably necessary to stop Mr Carvana committing or repeating the offence?

112. Section 99(1)(b)(i) depends on the state of satisfaction of the arresting officer, relevantly for this case, that SC Rae was “satisfied that the arrest is reasonably necessary … to stop the person committing or repeating the offence …”. Accordingly, unlike the requirement for reasonable grounds under s 99(1)(a), “a challenge to the existence of a suspicion or state of satisfaction will only be available where it can be shown that the state of satisfaction was manifestly unreasonable, or ‘arbitrary, capricious, irrational, or not bona fide’, as explained by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu [(1999) 197 CLR 611; [1999] HCA 21 at [131]-[137]].” (footnotes omitted): State of New South Wales v Randall [2017] NSWCA 88 at [13] (Basten JA, McDougall J agreeing on the question of liability at [142]).

113. As noted above, SC Rae’s evidence was that he was satisfied that it was reasonably necessary to arrest Mr Carvana in order to stop him from continuing to commit or repeating the offence of obstructing police. This satisfaction was said to be based on his belief that if Mr Carvana was not arrested he would continue to prevent the police officers from exiting the car park by standing in front of the vehicle or otherwise obstructing the driveway. SC Rae did not rely, however, only on Mr Carvana’s conduct in the driveway but also on his earlier attempt to prevent the officers leaving his office and SC Rae’s awareness that Mr Carvana had locked Ms Fawcett in the car park earlier that day, which was derived from the information provided over the police radio and the video recordings depicting what occurred and Ms Fawcett’s statement.

114. Given my assessment of SC Rae as a witness and taking into account all the evidence as a whole and my findings, I accept that the senior constable was satisfied that it was reasonably necessary to arrest Mr Carvana in order to stop him continuing to commit or repeating the offence.

115. Accordingly, the requirement in s 99(1)(b)(i) has been satisfied.

Did SC Rae, as soon as reasonably practicable, inform Mr Carvana of his name, his place of duty and the reason for Mr Carvana’s arrest?

116. In light of my findings above that SC Rae was in uniform and that he told Mr Carvana his rank, name and station and that he was under arrest for obstructing police, I am satisfied that SC Rae complied with s 202 of the LEPR Act, when arresting Mr Carvana.

Did SC Rae intend to take Mr Carvana as soon as reasonably practicable, before an authorised officer to be dealt with according to law to answer a charge for the offence for which he was arrested?

117. It was not submitted in the present case that at the time SC Rae arrested Mr Carvana he did not intend to take him before an authorised officer to be dealt with in relation to the offence for which he was arrested. No such suggestion was put to the senior constable in cross examination. Furthermore, after Mr Carvana was arrested and taken to Wollongong police station, SC Rae and SC Simpson attended and Mr Carvana was charged with the offence for which he was arrested, as well as other offences. As specified in the court attendance notice, Mr Carvana was required to appear before a magistrate in the Local Court to answer those charges but, in the meantime, was released on conditional bail. SC Rae’s intention at the relevant time can be inferred from his relevant conduct.

118. In all the circumstances, I am satisfied that at the time of arresting Mr Carvana SC Rae intended to take him before an authorised officer to be dealt with in relation to the offence for which he was arrested and, thus, s 99(3) of the LEPR Act was complied with.

Conclusion on false imprisonment

119. As each of the relevant requirements has been met, in my view, Mr Carvana’s arrest on 18 October 2017 was lawful. It follows that, in this case, Mr Carvana was not falsely imprisoned on that day and his claim for false imprisonment must fail.

120. In light of that conclusion, it is not necessary to consider at this point the operation of s 43A of the Civil Liability Act 2002 (NSW), upon which the State relied in the alternative. It can be noted, however, that in State of New South Wales v Madden [2024] NSWCA 40, the Court of Appeal recently held that s 43A did not apply in a case involving false imprisonment, because s 3B(1)(a) of the Civil Liability Act was engaged by virtue of the fact that intent to deprive a person of their liberty involved an “intent to cause injury” within the meaning of that paragraph.

Malicious prosecution

121. In order to be successful in his claim of malicious prosecution, Mr Carvana must prove on the balance of probabilities each of the elements of that tort.

122. The elements of the tort of malicious prosecution were identified in A v New South Wales (2007) 230 CLR 500; [2007] HCA 10 (A v NSW) as follows at [1]:

“(1) that proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff by the defendant;

(2) that the proceedings terminated in favour of the plaintiff;

(3) that the defendant, in initiating or maintaining the proceedings acted maliciously; and

(4) that the defendant acted without reasonable and probable cause.” (Footnote omitted)

123. Once again, I shall deal with each element in turn.

Were relevant proceedings initiated by a defendant?

124. It was not in dispute that the criminal proceedings against Mr Carvana instituted by CAN H65336205 were proceedings of the type to which the tort of malicious prosecution applies and I accept that this is so.

125. From the fourth amended statement of claim, it appeared that Mr Carvana’s case was that SC Simpson, SC Rae and Sgt Minns or one or more of them was “the prosecutor”, that is the person who initiated and, if relevant, maintained the proceedings.

126. It was evident from the CAN itself that SC Simpson was nominated as the “prosecutor” in respect of the four charges, sequences 1, 2, 3 and 4 listed in the CAN, which have been set out above. In addition, the State has accepted that it will be vicariously liable in respect of any tortious liability of SC Simpson as a result of her involvement in the relevant events on 18 October 2017. Based on my findings as to what occurred on that day and the description of SC Simpson as “prosecutor”, I am satisfied that SC Simpson was the prosecutor who initiated the proceedings. As to SC Rae, while he was listed as the apprehending officer and the first of the arresting officers on CAN H65336205, his involvement appears to have been more indirect or peripheral in issuing and serving the CAN. In those circumstances, I was not satisfied that he was relevantly the prosecutor who initiated the proceedings or, in so far as it may be relevant, maintained them. As to Sgt Minns, his only role in relation to Mr Carvana was as custody manager after taking over from A/Sgt Elliott and, in my view, he should not be held to be the prosecutor in respect of the charges in the CAN.

…

HIS HONOUR

Q. No, the question is did you include any of your partnership tax returns?

A. No, what’s there is there. That’s it.

JAFFRAY

Q. You haven’t included in any of your evidence in this proceeding any tax returns filed for [Emplus] Solutions; is that correct?

A. That is correct.

Q. I proceeded on assumption there. The assumption is the [Emplus] Solutions up until 2019 did, at some point in time, file and prepare tax returns; is that correct?

A. Correct.

Q. You haven’t put into evidence in this matter, have you Mr Carvana, any of the financials for [Emplus] Solutions?

A. No, I showed the dividends of my personal returns.

Q. Sorry, can you answer my question? You haven’t put into evidence the financials prepared for [Emplus] Solutions; that’s correct isn’t it, Mr Carvana?

A. I cannot – I cannot do it for you.”

236. As this evidence indicated, Mr Carvana did not provide documentation which could have assisted to establish whether any injury he may have suffered had any relevant adverse impact on the labour hire business of Emplus Solutions Pty Ltd or on his accounting practice. The documentation relating to Mr Carvana’s employment and professional and business activities, before and after the subject incident, which Mr Carvana chose to put into evidence, was far from comprehensive.

237. In addition, there was other evidence which tended to suggest that Mr Carvana’s dealings with his accounting practice and the liquidation of Emplus Solutions Pty Ltd were not caused by injury suffered in the subject incident. For example, on 13 February 2018, after the incident and before the Local Court hearing, Mr Carvana’s general practitioner, Dr Wilkinson noted that during a consultation with Mr Carvana he informed him that “he has elected to sell his business and wants a lifestyle change”. In cross examination, Mr Carvana denied that the reason he wanted to sell his business at that time was that he wanted a lifestyle change. [62] It appeared to me that Mr Carvana perceived that this evidence did not assist his case and accordingly denied, in effect, what the doctor recorded. I did not accept that, on the balance of probabilities, this denial should be treated as accurate. Overall, I was left in some considerable doubt as to whether Mr Carvana’s subsequent dealings with his accountancy practice were relevantly related to any injury suffered as a result of the incident rather than a desire for a change of lifestyle or some other business approach. The medical and psychological records, however, provided a clearer picture and established, in my view, that the subject incident did not cause any inability to work, even in the fortnight after the incident, [63] or any diminution in earning capacity.

Lack of evidence as to Mr Carvana’s interests

62. Tcpt, 21 February 2023, p 163(1) – (11).

63. See Ms Valeski’s report to Dr Hernandez dated 31 October 2017, Ex Q p 494.

238. In addition to the absence of medical evidence supporting his claimed loss and the lack of documentation concerning Mr Carvana’s employment and professional and business activities and the unsatisfactory evidence that he did give, there was also no evidence sufficient, in my view, to establish on the balance of probabilities the quantum of his claimed losses in relation to the labour hire business operated by Emplus Solutions Pty Ltd, his accounting practice David Carvana & Associates and the properties at 37 Princess Highway and 17 Cambridge Avenue, Fairy Meadow, said to have been suffered because of any inability to work as a result of the subject incident (if contrary to my conclusion, such an inability had been established on little evidence).

239. As to Emplus Solutions Pty Ltd, the company went into liquidation on 24 May 2019 and was deregistered on 14 June 2021. The evidence adduced by the State and put to Mr Carvana in cross examination established that Mr Carvana beneficially owned 100 ordinary shares and 1 founder’s share in Emplus Solutions Pty Ltd, one other person beneficially owned 100 shares and a third person owned 50 shares other than beneficially in that company. There was no significant evidence that the company was put into liquidation because of Mr Carvana’s inability to work, nor was there evidence as to what happened in relation to the liquidation. Moreover, from Mr Carvana’s evidence in cross examination, I was also satisfied that Bizvis Pty Ltd, which also operated a labour hire business, was incorporated at about the time Emplus Solutions Pty Ltd went into liquidation in 2019 and was owned by Mr Carvana’s sister and brother-in-law, who have also been directors, and had its registered office at David Carvana & Associates and operated out of 37 Princess Highway, Fairy Meadow, for some time. [64] I infer that a labour hire business of the type previously carried on by Emplus Solutions Pty Ltd could have been, and probably was, carried on subsequently by Bizvis Pty Ltd. Mr Carvana worked in that business. In my view, Mr Carvana did not establish on the balance of probabilities that the liquidation of Emplus Solutions Pty Ltd was relevantly caused by any inability on his part to work because of any psychological injury suffered as a result of the subject incident.

     64. Tcpt, 20 Feb 23, p 58 et seq.

240. As to his accounting partnership before or after the subject incident, not only were there no tax returns or other documents in evidence giving financial details relating to that practice, there were also no documents evidencing any transactions involving David Carvana & Associates, such as a merger or Mr Carvana leaving or being “thrown out” of the practice, as claimed by Mr Carvana. His evidence in cross examination included: [65]

” Q. So, is your evidence that it was only a merger of two accounting practices, and not an element involving a sale?

A. No, it was a merger, and it also involved the purchaser paying the current people a monetary amount.

Q. So when you say “current people”, you mean people at the time of the merger in 2020?

A. Okay. So there were three partners; correct? There’s Troy Burns, who owns Lifestyle Accounting - came to merge with us, gave us some money, and we were shareholders. Within a year, or whatever it was, I walked out the door. I was thrown out the door.”

65. Tcpt, 20 February 2023, p 71(36) – (46).

241. Given this type of evidence, I was not satisfied on the balance of probabilities that transactions involving the accounting practice involved Mr Carvana suffering any proven loss, or that any loss was caused by any inability on Mr Carvana’s part to work because of any psychological injury suffered as a result of the subject incident.

242. As to Mr Carvana’s interests in real estate, there was no evidence as to any actual transactions in relation to those properties at 37 Princess Highway and 17 Cambridge Avenue, Fairy Meadow said to have led to any losses and whether those transactions were related to the subject incident.

243. Furthermore, there was little or no reliable documentary evidence:

1. as to the nature and extent of Mr Carvana’s role in the labour hire business operated by Emplus Solutions Pty Ltd, or of his specific legal interest in the accounting practice David Carvana & Associates or in 37 Princess Highway and 17 Cambridge Avenue, Fairy Meadow, whether as partner, shareholder, registered proprietor or otherwise, although there was oral evidence in cross examination that Mr Carvana’s interest in 37 Princes Highway was 22%; [66] or

2. as to the values of Mr Carvana’s legal interests (whatever they might be) in the labour hire business, his accounting practice or the properties at Fairy Meadow claimed to have been lost or adversely affected by Mr Carvana’s condition after the subject incident.

   66. Tcpt, 11 July 2023, p 396(26) – (28).

244. The absence of such evidence in these regards was made more significant because of Mr Carvana’s other evidence in cross examination was unclear in the extreme. [67] This included, by way of just one example, the following question and answer: [68]

“Q. You accept that you haven’t put into evidence any documents or details about the sale price that you received in respect of the merger [of the accounting practice]?

A. Not to make your matter worse, this one here and this company was worthless. Even though I made money out of it, I didn’t mention that.”

67. For examples in relation to the accounting practice see generally tcpt, 20 February 2023, p 75 – p 80 and in relation to Emplus Solutions Pty Ltd; see tcpt, 20 February 2023, p 80(45) – p 81(33).

68. Tcpt, 20 February 2023, p 75(12) – (15).

245. I found this type of evidence and the absence of documentary or forensic accounting evidence which clearly set out what how Mr Carvana’s economic loss claims were to be made out made out difficult to understand in light of his qualifications and experience as an accountant.

246. While Mr Carvana did provide some personal tax returns for the years 2015/16, 2016/17, 2017/18, 2020/21 and 2021/22, and there was a marked diminution in income disclosed between the 2016/17 tax return and the 2017/18 tax return, I was not prepared to conclude on the balance of probabilities that this diminution was caused by any psychological injury suffered as a result of the subject incident, in light of Dr Samuell’s opinions and the information in the medical and psychological records, and the general lack of clarity concerning not only Mr Carvana’s involvement in his business, professional and property interests but also his reasons for engaging in various transactions relating to those interests during the relevant period.

247. In summary, in all the circumstances I formed the view that I could not be satisfied on the balance of probabilities that Mr Carvana had suffered any of the losses claimed in relation to his business, practice or property interests, whether as the result of a psychological injury caused by the subject incident or otherwise.

Conclusion on consequential loss

248. For all of these reasons, in my view, Mr Carvana was not entitled to recover damages for consequential loss as claimed, even if it were assumed that he had successfully established that the State was liable in respect of the torts upon which Mr Carvana relied. The only recoverable damages for consequential loss were limited, in my view, to $10,750 for the temporary increase in his symptoms of anxiety and the treatment required for that increase, as explained above and in the confidential appendix to this judgment.

Aggravated and exemplary damages

249. As noted above, there were no particulars, identified as such, given in the fourth amended statement of claim or in the statement of particulars of any facts and circumstances said to provide a foundation for a claim of aggravated or exemplary damages, as required by rr 15.7 and 15.8 of the Uniform Civil Procedure Rules 2005 (NSW).

250. In any event, in my view, neither aggravated nor exemplary damages would have been justified or appropriate in the present case. [69]

     69. The restriction on the availability of aggravated and exemplary damages found in s 21 of the Civil Liability Act was not applicable in the present case, because the cause of action relied upon was not negligence, and because s 21 did not, in any event, apply for example in relation to false imprisonment by virtue of s 3B(1)(a) since the “civil liability” in such a case was that of a person “in respect of an intentional act that is done by the person with intent to cause injury” namely deprivation of liberty: see State of New South Wales v Madden [2024] NSWCA 40 at [146] (Bell CJ, Leeming and Stern JJA agreeing).

251. Aggravated damages are a form of general damages, given by way of compensation for injury to the plaintiff, which may be intangible, resulting from the circumstances and manner of the wrongdoing: New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57 (NSW v Ibbett) at [31] (Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJ). Relevant injury to the plaintiff for these purposes includes injury to the plaintiff’s feelings caused by insult, humiliation and the like: Lamb v Cotogno (1987) 164 CLR 1 at 8 (Mason CJ, Brennan, Deane, Dawson and Gaudron JJ); [1987] HCA 47.

252. While aggravated damages are compensatory in nature and focus on the injury suffered by the plaintiff, exemplary damages are not compensatory and are awarded to mark the court’s disapprobation of the conduct and to punish the wrong-doer and to deter and, thus, they are punitive in nature and focus on the conduct of the person causing the harm: State of New South Wales v Cuthbertson (2018) 99 NSWLR 120; [2018] NSWCA 320; at [87]-[88] (Beazley P); NSW v Ibbett at [35].

253. In light of my findings, which have been set out above, I was not satisfied that there was any relevant conduct on the part of the police officers on 18 October 2017 which caused injury to Mr Carvana’s feeling as a result of humiliation or insult beyond that which is ordinarily involved in torts of the type relied upon by Mr Carvana and which would be encompassed in an award of compensatory damages for such torts. [70] Mr Carvana’s response to the relevant events appears to have involved overreaction on his part to various situations, including perceived sternness or harshness of the police officers. In my view, any sternness or harshness perceived by Mr Carvana was caused either by his surprising and unreasonable conduct, such as blocking the officers’ exit by lying down on the driveway, or by his flippancy and antagonistic attitude, while at the police station. Thus, any additional feelings of humiliation or insult perceived by Mr Carvana were not caused by the officers’ actions but by his exaggerated reactions which, in the circumstances, were not justified, especially in light of his conduct which precipitated the officers’ actions.

     70. State of New South Wales v Smith (2017) 95 NSWLR 662; [2017] NSWCA 194 (Smith) at [154] (McColl JA, Leeming JA and Sackville AJA generally agreeing) citing French J in Goldie v Commonwealth of Australia (No 2) [2004] FCA 156; (2004) 81 ALD 422 at [14].

254. For similar reasons, I was not satisfied that there was conduct on the officers’ part which should attract the Court’s disapprobation or would justify punishment in order to deter.

255. Thus, there should be no award of aggravated or exemplary damages in the present case, even if it were assumed that Mr Carvana had succeeded in one or more of his tortious claims.

256. With those conclusions in mind, I now turn to consider the assessment of damages in respect of each false imprisonment, malicious prosecution and trespass to goods, on the assumption that my conclusions on liability are wrong.

Injury by way of interference with personal liberty and property and with his dignity and reputation

257. Since Mr Carvana was a litigant in person, the State in its submissions implicitly assumed, and I accept, that he intended to claim, in addition to the consequential loss and damage pleaded and particularised, damages for interference with his personal liberty, his dignity and reputation, feelings of distress or humiliation or his right to possession and use of his property as a result of the torts on which he relied.

258. I shall deal with the assessment of damages in those regards, on the assumption that liability had been established, separately in respect of each cause of action.

Damages for false imprisonment

259. In relation to damages that may be awarded for false imprisonment, it is to be recognised that this tort is a form of trespass to the person, it is actionable per se, regardless of whether the victim suffers any harm, and it protects and vindicates a person’s right to freedom from interference with personal liberty as a fundamental legal right: Lewis v Australian Capital Territory (2020) 271 CLR 192; [2020] HCA 26 at [45] (Gordon J); State of New South Wales v Smith (2017) 95 NSWLR 662; [2017] NSWCA 194 (Smith) at [153] (McColl JA, Leeming JA and Sackville AJA generally agreeing). Furthermore, compensatory damages for false imprisonment reflect not only the interference with personal liberty but also the adverse impact upon the person’s dignity and reputation and may be assessed by reference to, inter alia, the duration of the deprivation of liberty and the hurt or injury to the person’s feelings including mental suffering, disgrace or humiliation: Smith at [154] citing French J in Goldie v Commonwealth of Australia (No 2) [2004] FCA 156; (2004) 81 ALD 422 at [14].

260. Compensatory damages for false imprisonment cannot, however, be computed on the basis that there is some kind of applicable daily rate since a substantial proportion of the ultimate award must be given for what has been described as “the initial shock of being arrested”: Smith at [155].

261. If it is assumed that Mr Carvana was falsely imprisoned because his arrest was not lawful, he would be entitled to compensatory damages for interference with his personal liberty, the adverse impact upon his dignity and reputation and hurt or injury to his feelings as a result of his being detained for the period of approximately four and a half hours between his arrest and his release on bail. As I have explained above, there was, in my view, no excessively demeaning or humiliating conduct on the part of the officers involved such as to attract aggravated or exemplary damages.

262. Examples of compensatory damages awarded in other cases of false imprisonment with some similarity to the present case include:

1. $10,000 upheld by the Court of Appeal for false imprisonment of about three hours being the time taken to convey the person to the police station, process her through the custody desk, and arrange the assistance of an interpreter to interview and involving police seizing the her arms and forcing her to the ground to handcuff her in order to effectuate the imprisonment: State of New South Wales v Abed [2014] NSWCA 419; 246 A Crim R 549 at [224]-[226] (Gleeson JA, Bathurst CJ and Macfarlan JA agreeing);

2. $10,000 for false imprisonment of about two and a half hours which involved “the detained person being handcuffed and marched through a crowd of onlookers and then incarcerated in a police paddy wagon, locked in a cell at the police station and fingerprinted and photographed as a criminal” described by the Court of Appeal as “a most terrifying and unforgettable experience”: Coyle v State of New South Wales [2006] NSWCA 95 at [99]-[100] (Tobias JA, Mason P and Handley JA agreeing);

3. $10,000 for false imprisonment for two and a half hours because of an arrest contrary to the provisions of s 99(1)(a) of the LEPR Act, without circumstances justifying an award of exemplary or aggravated damages: Murphy v The State of New South Wales [2023] NSWSC 407 at [190] (Davies J); and

4. $8,000 for false imprisonment for” well short of one day” in which the person was not mistreated and he was not shocked to be arrested: Hrdavec v State of New South Wales [2021] NSWSC 560 at [477]-[478] (Walton J).

263. In all the circumstances of the present case and if it is assumed that Mr Carvana were found to have been falsely imprisoned, I am of the view that compensatory, general damages for that false imprisonment should be assessed at $8,000.

264. I have already found that Mr Carvana would not be entitled to any damages for consequential loss as a result of psychological injury or consequent loss and damage to his business, professional, property, personal or family interests, except for the $10,750 for the general damages and out-of-pocket expenses attributable to the temporary increase in his anxiety symptoms in the period immediately after the subject incident.

265. For these reasons, in my view, if Mr Carvana had been successful in his claim for false imprisonment, his damages should be assessed at $18,750.

Damages for malicious prosecution,

266. In relation to malicious prosecution, it is necessary to note that, since this tort is an action on the case, in addition to the elements of the tort of malicious prosecution identified above, proof of actual damage is required: Rock v Henderson [2021] NSWCA 155 (Rock) at [109] (Wright J, Bell P and Brereton JA agreeing). In Rock, the Court of Appeal reiterated, at [14] (Brereton JA, Bell P agreeing) and [109], that the types of damages that might be recovered in malicious prosecution proceedings are:

1. damage occasioned by injury to reputation;

2. damage to the person in the sense of injury to life, limb or liberty; and

3. damage to property of the person both by being put to the expense of defending the proceedings as well as consequential economic and property loss that is not too remote.

267. In addition, as held in Rock at [14], once damage under any of those three heads is proved:

1. the award of damages is at large, subject to the limitation that they must not be unreasonably disproportionate to the injury sustained;

2. damages are available for mental distress, for example where it is occasioned by a serious criminal charge; and

3. aggravated and exemplary damages may be awarded.

268. I have already found that Mr Carvana did not establish on the balance of probabilities that he suffered, except for a temporary increase in his anxiety symptoms, any psychological or other injury to life or limb as a result of what occurred on 18 October 2017 or his prosecution in the Local Court or that he suffered any loss to his business, professional, property, personal or family interests as a result of such an injury. Thus, no damages should be awarded under those heads, even if Mr Carvana had been successful in his claim for malicious prosecution, except for the amount of $10,750 explained above. Similarly, I have already explained that aggravated and exemplary damages should not be awarded.

269. As to other heads of damage, for the mental distress and injury to reputation inherent in facing criminal charges of the types in sequences 1, 2 and 4 in the CAN and any resulting injury to liberty prior to Mr Carvana being released on bail, I would assess the damages at $10,000 in the circumstances of the present case, on the assumption that Mr Carvana was successful in his claim of malicious prosecution.

270. Finally, in relation to Mr Carvana’s costs of defending the proceedings, he has particularised his claim as “LOSS $30,000 (guessing but could have been more)”. While there was no specific evidence on this topic, the evidence established that Mr Carvana was represented by counsel and solicitor in relation to the Local Court proceedings. Even in the absence of specific evidence about the costs actually incurred, I am prepared to allow damages by way of out-of-pocket expenses of $15,000 for the costs of defending the Local Court proceedings.

271. Accordingly, in my assessment, damages for malicious prosecution should be assessed in the sum of $25,000, on the assumption that Mr Carvana had been successful in that claim. If such damages had not already been the subject of an award of damages in respect of another tort, the damages awarded should also include $10,750, for the temporary increase in his anxiety symptoms and the treatment required.

Damages for trespass to goods

272. On the assumption that the seizure of his telephone was unlawful and the State is liable to Mr Carvana for trespass to goods, which is a wrong to possession, the damages recoverable should reflect the fact that, unlike many cases of trespass to goods, the goods were not said to have been damaged or destroyed. In those latter types of cases, the measure of damages has been explained in Fleming’s The Law of Torts (11th edition, Thompson Reuters, 2024) at par 4.40 as follows:

“A plaintiff who has been actually deprived of goods in his or her possession is prima face entitled to recover their full value as in an action for conversion: the judgement, in effect, forces a compulsory purchase upon the wrongdoer. But in case of mere damage, falling short of complete destruction, the proper measure of damages is the actual loss suffered in consequence of the trespass, like any diminution in value of the chattel.³⁶ [Footnote 36 was “But unlike detinue, not for deprivation of possession: Pargitter v Alexander (1995) ATR ¶81-349”]” (Other footnotes omitted)

273. As I have already noted, Mr Carvana’s claim in respect of his telephone may have been framed as a claim in detinue, rather than trespass to goods in that, although Mr Carvana voluntarily gave possession of the telephone to SC Simpson, she refused to return it on demand, assuming for these purposes that her retention of the telephone was unlawful.

274. This may have some significance because the categories of damages recoverable for trespass to goods have been held to be different from the heads of damage available for detinue: Pargiter v Alexander (1995) 5 Tas R 158; [1995] TASSC 62; (1995) Aust Torts Reports 81-349 (Pargiter) (Zeeman J), which has been cited with approval in Bunnings Group Ltd v CHEP Australia Ltd (2011) 82 NSWLR 420; [2011] NSWCA 342 at [173] (Allsop P). In Pargiter, it was explained as follows:

“Trespass to chattels is a wrong to possession … committed by an act of the defendant and as a direct consequence thereof. … The essence of the tort of detinue is the wrongful detention of a chattel to which the plaintiff has the right to immediate possession which requires that there be a demand and a wrongful refusal to comply with that demand. On one set of facts both torts may be established although there may be a trespass without detinue or detinue without a trespass.

The different elements of the two Torts assist in defining the nature of the damage which may flow from each. Damages in trespass are by way of compensation for the injury done to the chattel by reason of the wilful interference with it, although nominal damages may be awarded where no actual damage occurs ….

In a case in detinue, where the plaintiff hires out the chattel to users as part of his business, the normal measure of damages for the detention of the chattel is the market rate at which it could have been hired, and that principle may extend to other chattels as well….Reasonable costs incurred by way of hiring a replacement chattel during the period of wrongful detention would appear to be recoverable on the same basis. … In such a case [of a plaintiff being deprived of possession for a time] damages are not to be assessed on the basis of the depreciation in value but on the basis of the loss suffered by the plaintiff by reason of not having been able to dispose of the [property] when he would have done had it not been for the defendant keeping him out of possession. …”.

275. In Williams v The Pell River Land and Mineral Company Limited (1886) 55 LT 689 (which was quoted in Pargiter). it was held in relation to damages for detinue as follows:

“The true view is, that the law lays down limits, beyond which you cannot wander either in the direction of recouping yourself for imaginary profits which you might have made, the limit is in one direction being that, and the limits in the other direction being that, if you have suffered nothing except a mere bare denial of a right which has been sufficiently vindicated by your triumph on the issue, then nominal damages will be enough. Within those limits, if you want to know what the wrong-doer has to pay, you first must ask yourself what the person who is in the right has suffered.”

276. For the purposes of assessing damages on the assumption that Mr Carvana was successful in establishing trespass to good, I have proceeded on the basis Mr Carvana’s damages in this regard should be assessed as if it were a claim in detinue. This was because his claim could, without any prejudice to the State, have been formulated as a claim in detinue and damages assessed for detinue would be more favourable, or at least not less favourable, to Mr Carvana than damages for trespass to goods.

277. Furthermore, I note that the proceedings were apparently conducted on the basis that the telephone was owned by Mr Carvana and not by Emplus Solutions Pty Ltd or some other entity and I am prepared to proceed on that basis for the purposes of assessing Mr Carvana’s damages for trespass to goods or detinue.

278. I would assess damages for detinue, including not only the infringement of his right to possession but also for the cost of hiring a replacement telephone for a potentially indefinite period from 18 October 2017, because Mr Carvana did not know when it would be returned, in the sum of $1,000.

279. In so far as damages for other harm claimed by Mr Carvana as a result of being deprived of the use of his mobile telephone for approximately eight days were claimed (and it was not clear if they were), there are difficulties. Mr Carvana asserted that he needed his mobile telephone to call his solicitor and to conduct the labour hire business operated by Emplus Solutions Pty Ltd.

280. As to the first matter, it was not proved, on the balance of probabilities, that Mr Carvana suffered any loss as a result of not being able to use his telephone to call his solicitor, who in any event attended the police station within three quarters of an hour of Mr Carvana arriving there.

281. As to the effect on Emplus Solutions Pty Ltd of Mr Carvana being deprived of his telephone, if some business was lost to the company as a result of Mr Carvana not having his mobile telephone between 18 and 26 October 2017, that loss was suffered by the company and not by Mr Carvana himself. The company was not a party to the proceedings, having been deregistered, and nor was the Australian Securities and Investments Commission,[71] and that loss could not be recovered by Mr Carvana directly in these proceedings.

     71. On deregistration all the company’s assets not held on trust vest in the Australian Securities and Investments Commission: Corporations Act 2001 (Cth), s 601AD.

282. In addition, the particulars of loss relevant to this company which were given were to the effect that it “was formed in April 2004 and purchased a Labour Hire business for $200,000. Traded extremely well and employed up to almost 100 casuals per year. Voluntary liquidation without much debt in April 2019 – could have been sold easily for $500,000”. It was not suggested that this alleged loss was actually caused by the fact that Mr Carvana’s telephone was unavailable for eight days as opposed to Mr Carvana’s inability to perform his duties because of his alleged psychological injury, which I have already found was not established on the balance of probabilities.

283. Further and in any event, there was no evidence that any particular business was actually lost to the company as a result of Mr Carvana not having access to his mobile telephone for those eight days. In that regard, it can also be noted that, on the photograph of the signage relating to Emplus Solutions Pty Ltd at the premises, [72] a landline number, and not Mr Carvana’s mobile number, was given as the telephone contact number for that company.

     72. Ex 1 photograph numbered 222.

284. In these circumstances, Mr Carvana’s damages for trespass to goods or detinue, on the assumption that SC Simpson’s refusal to return the telephone was unlawful, should be assessed at $1,000.00.

Orders

285. For all of these reasons, the orders of the Court are:

1. Judgment for the defendant.

2. The defendant is to file and serve any written submissions and evidence relating to the costs order to be made in these proceedings on or before 29 March 2024.

3. The plaintiff is to file and serve any written submissions and evidence relating to the costs order to be made in these proceedings on or before 12 April 2024.

4. The question of costs is to be dealt with on the papers, unless a party in its written submissions notifies the Court and the other party that it seeks to have an oral hearing on costs.

5. If an oral hearing on costs is sought, the parties have liberty to contact Wright J’s Associate to obtain a suitable date for such a hearing.

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Endnotes

accessed 19 February 2024.

Decision last updated: 27 September 2024