Charles Henry Thomlinson v The State of New South Wales

[2016] NSWDC 369

District Court

New South Wales

Medium Neutral Citation:

Charles Henry Thomlinson v The State of New South Wales [2016] NSWDC 369

Hearing dates:

11- 15, 18- 21 and 26 April 2016

Date of orders:

16 December 2016

Decision date:

16 December 2016

Jurisdiction:

Civil

Before:

Hatzistergos DCJ

Decision:

(1) Verdict and Judgment for the Plaintiff in the sum of $147,796 (rounded down); and

 (2) I will hear from the parties as to interests and costs

Catchwords:

TORTS – ASSAULT – BATTERY – implied licence to remain on premises – breach of the peace – non-voluntary exclusion of persons from licenced premises – whether intoxicated, violent, quarrelsome or disorderly

 

UNLAWFUL ARREST – reasonable grounds to suspect an offence had been committed

 

TORTS – FALSE IMPRISONMENT – detention after unlawful arrest

 

TORTS – MALICIOUS PROSECUTION – whether prosecutor had reasonable and probable cause – whether prosecutor actuated by malice

  DAMAGES – compensatory damages – aggravated damages – exemplary damages

Legislation Cited:

Civil Liability Act 2002 (NSW) ss 3B, 5, 11, 26A, 27, 51, 52, 53, 54
Crimes Act 1900 (NSW) s 58
Evidence Act 1995 (NSW) ss 136, 140
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ss 5(1), 23(1), 24, 99(2), 99(3), 201, Sch 1
Law Reform (Vicarious Liability) Act 1983 (NSW) s 9B(2)
Liquor Act 2007 (NSW) ss 5(1), 5(3), 77(4), 77(5)
Migration Act 1958 (Cth) s 189(1)
Police Act 1990 (NSW) s 6(3)
Uniform Civil Procedure Rules 2005 (NSW) r 15.8

Cases Cited:

A v New South Wales (2007) 230 CLR 500; [2007] HCA 10
Alderson v Booth [1969] 2 QB 216
Brierley v Ellis [2014] NSWCA 230
Cleland v The Queen (1982) 151 CLR 1
Cowell v Rosehill Racecourse Company Limited (1937) 56 CLR 605
Coyle v State of New South Wales [2006] NSWCA 95
Croucher v Cachia [2016] NSWCA 132
Director of Public Prosecutions v Gribble (2004) 151 A Crim R 256; [2004] NSWSC 926
Fernando v Commonwealth and Anor (2014) 315 ALR 547; [2014] FCAFC 181
Fontin v Katapodis (1962) 108 CLR 177; [1962] HCA 63
Glinski v McIver [1962] AC 726
HD v State of New South Wales [2016] NSWCA 85
Manly Council v Byrne and Anor [2002] NSWCA 123
Mason v Demasi & Anor [2009] NSWCA 227
Naylor v Canterbury Park Racecourse Company Limited (1935) 35 SR (NSW) 281
New South Wales v Delly (2007) Aust Torts Reports 81 – 920; [2007] NSWCA 303
New South Wales v Williamson (2012) 248 CLR 417; [2012] HCA 57
Payne v Parker (1976) 1 NSWLR 191
Poidevin v Semaan [2013] NSWCA 334
Pupo v Pupo; Pupo v Pupo [2015] NSWSC 1633
R v Howell (Errol) [1982] QB 416
R v Inwood [1973] 2 All ER 645
R v Roxburgh (1871) 12 Cox C.C. 8
Sahade v Bischoff [2015] NSWCA 418
Sangha v Baxter (2009) 52 MVR 492
SAS Realty Developments Pty Ltd v Kerr [2013] NSWCA 56
State of New South Wales v Beck [2013] NSWCA 437
State of New South Wales v Hunt [2014] NSWCA
State of New South Wales v Ibbett (2005) 65 NSWLR 168; [2005] NSWCA 445
State of New South Wales v Landini [2010] NSWCA 157
State of New South Wales v Riley (2003) 57 NSWLR 496; [2003] NSWCA 208
State of New South Wales v Tyszyk [2008] NSWCA 107
State of New South Wales v Zreika [2012] NSWCA 37
Thomas v State of New South Wales (2008) 74 NSWLR 34; [2008] NSWCA 316
Trobridge v Hardy (1955) 94 CLR 147; [1955] HCA 68
Whitbread & Anor v Rail Corporation NSW & Ors [2011] NSWCA 130
Young v State of New South Wales & Ors; Young v Young (No 2) [2013] NSWSC 330

Category:

Principal judgment

Parties:

Charles Henry Thomlinson (Plaintiff)
The State of New South Wales – NSW Police (Defendant)

Representation:

Counsel:
Mr I Temby QC with Mr P English (Plaintiff)
Mr M Spartalis (Defendant)

File Number(s):

2014/94638

Publication restriction:

N/A

Judgment

TABLE OF CONTENTS

INTRODUCTION	[1] – [4]
WITNESSES	[5] – [13]
EVIDENCE
Background events	[14] – [29]
Approach by security	[30] – [45]
Intervention by police	[46] – [63]
Plaintiff removed after first alleged assault	[64] – [104]
Plaintiff escorted out of the Shore Club	[105] – [117]
Search	[118] – [121]
Arrival of Constables Grime and Doring, and transporting the Plaintiff away from the Shore Club	[122] – [141]
Arrival at home	[142]
Mona Vale Hospital	[143] – [145]
Refusal of service	[146] – [152]
Visit to the Shore Club to view CCTV footage	[153] – [160]
CLAIMS IN TRESPASS	[161]
What were the circumstances in which security approached the Plaintiff?	[162] – [169]
Arrest and first assault	[170] – [172]
Revocation of implied licence to remain on premises	[173] – [177]
s 77(5) of the Liquor Act 2007 (NSW)	[178] – [228]
Breach of the peace	[229] – [245]
Reasonable grounds to suspect an offence had been committed	[246] – [254]
Second assault	[255] – [296]
Third assault	[297] – [302]
Fourth assault	[303] – [308]
Conclusion on trespass	[309] – [313]
MALICIOUS PROSECUTION CLAIM
Facts	[314] – [341]
Ingredients	[342]
Who was the prosecutor?	[343] – [351]
Setting for determining absence of reasonable and probable cause	[352]
Principles for determining absence of reasonable and probable cause	[353] – [358]
The Plaintiff’s concession as to prima facie case	[359] – [362]
What does the Plaintiff say?	[363] – [384]
Malice	[385] – [397]
Conclusion as to malicious prosecution	[398]
DAMAGES
Plaintiff’s evidence	[399] – [419]
Medical evidence	[420] – [460]
Psychological evidence	[461] – [465]
Civil Liability Act 2002 (NSW)	[466] – [476]
Compensatory damages	[477] – [499]
ORDERS	[500]

INTRODUCTION

1. On 2 December 2011, the Plaintiff, Mr Charles Henry Thomlinson and his friends visited the licenced premises known as the “Shore Club” located at South Steyne, Manly in the State of New South Wales. At around 12:12am on 3 December 2011, the Plaintiff was forcibly ejected by police from the said club in circumstances which give rise to the proceedings in this case.

2. Mr Thomlinson’s proceedings were brought against the State of New South Wales on the basis of it being vicariously liable for the actions of five police officers, being Leading Senior Constable Iain Church, [1] Constable Amy O’Donnell, Senior Constable Ritson Renshaw, [2] Constable Christopher Grime, and Constable Regan Doring.

   1. Hereinafter referred to as “LSC Church”

   2. Hereinafter referred to as “SC Renshaw”

3. By its Defence, the Defendant has admitted to be vicariously liable for the tortious conduct of the named police officers pursuant to s 9B(2) of the Law Reform (Vicarious Liability) Act 1983 (NSW). [3]

   3. Defence to Further Amended Statement of Claim filed 5 April 2016 at [1](a)

4. The proceedings brought by the Plaintiff allege assault and battery, unlawful arrest and false imprisonment, as well as malicious prosecution.

WITNESSES

5. The Plaintiff gave evidence in his own case and was the subject of extensive cross-examination. The Defendant submitted that he should not be accepted as a witness of truth. As these reasons will demonstrate, I have carefully considered the Plaintiff’s evidence and in some respects have not accepted it. However I do not consider that it is appropriate to make any global finding as to his credit. To do so would fail to exercise the caution expressed in Sangha v Baxter, where Basten JA stated:-

“There are risks in making global findings about credibility of any particular witness. Because a witness has not told the truth with respect to a particular matter does not mean that other parts of his or her evidence are untruthful. Where possible, an assessment should be made of the reasons for the untruthfulness in order to see if other aspects of the evidence are likely to be infected by the same concern. Further, evidence may be rejected because it is apparently unreliable, possibly mistaken or deliberately untruthful or capable of being categorised in a variety of ways which are unlikely to be capable of clear delineation in some cases.

Further, findings of credibility are not usually findings with respect to factual issues in the case, but are rather subsidiary findings on the way to determination of issues. Like many aspects of the evidence in a trial, the evidence of a witness who is believed to have lied in a particular respect, will nevertheless be able to bear some weight and should be placed into a balance, with other material evidence, before a conclusion is reached in relation to a critical fact. The rejection of a witness in total, absent corroboration is likely to mean that, even where corroborated, little attention will be paid to the evidence of the witness and less to the possible consequences which might flow from the fact that particular evidence is shown to be truthful: see generally, King v Collins [2007] NSWCA 122 at [44] (emphasis supplied).”[4]

4. (2009) 52 MVR 492, 526 (Basten JA with Handley AJA agreeing); see also: SAS Realty Developments Pty Ltd v Kerr [2013] NSWCA 56 at [115] (Ward JA with Macfarlan JA and Sackar J agreeing)

6. The Defendant drew extensive attention to the history provided by the Plaintiff to Mona Vale Hospital and various medical practitioners. [5] The clinical notes from the hospital were not tendered. Nor was evidence tendered from Ms Joanna Callaghan, psychologist, Dr Kathryn Zeleny, Dr Charles Brooker or Dr James Bodel to which the Defendant also makes reference. [6] In relation to the various histories which are in evidence, I have borne in mind that in Mason v Demasi & Anor, Basten JA stated:-

   5. Defendant’s Written Submissions, dated 26 April 2016 at [10]

   6. Defendant’s Written Submissions, dated 26 April 2016 at [10]

“[2] … [T]he trial judge was invited to discount the appellant’s oral testimony on the basis of accounts given to various health professionals, which appeared inconsistent either with each other, or with her oral testimony, or both. The difficulties attending this kind of exercise should be well-understood; as explained in the Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8], such apparent inconsistencies may, and often should, be approached with caution for the following reasons, amongst others:

(a) the health professional who took the history has not been cross-examined about:

(i) the circumstances of the consultation;

(ii) the manner in which the history was obtained;

(iii) the period of time devoted to that exercise, and

(iv) the accuracy of the recording;   

(b) the fact that the history was probably taken in furtherance of a purpose which differed from the forensic exercise in the course of which it was being deployed in the proceedings;

(c) the record did not identify any questions which may have elucidated replies;

(d) the record is likely to be a summary prepared by the health professional, rather than a verbatim recording, and

(e) a range of factors, including fluency in English, the professional’s knowledge of the background circumstances of the incident and the patient’s understanding of the purpose of the questioning, which will each affect the content of the history.”[7]

7. [2009] NSWCA 227 at [2] (Basten JA)

7. The Plaintiff called two further witnesses as to the events of 2 – 3 December 2011 being Ms Hayley McKirgan and Ms Honora Campbell. Both these witnesses were employees working at the Club on the occasion in question. Neither were previously known to the Plaintiff. Both were approached by the Plaintiff to provide statements to him, prior to them providing police statements. I have no reason to believe they did not seek to truthfully assist the Court, although again, I have carefully scrutinised their evidence.

8. A number of witnesses were not called, however their statements were tendered in the Plaintiff’s case as Exhibit F being a brief of materials supplied in answer to a subpoena in the related criminal proceedings in the Local Court.

9. Although an objection to the tender of the documents in Exhibit F was advanced by the Defendant, I admitted the documents, reserving to the Defendant the right to seek a limitation under s 136 of the Evidence Act 1995 (NSW). No such limitation was ultimately made. [8]

   8. See Judgment of 14 April 2016

10. The Plaintiff submitted:-

“[53] Where a witness is not called in a civil case, two results follow. The first is that the tribunal of fact may infer that the evidence of the absent witness, if called, would not have assisted the party who failed to call that witness. The second is that the tribunal of fact may draw with greater confidence any inference unfavourable to the party who failed to call the witness, if that witness seems to be in a position to cast light on whether that inference should have been properly drawn (Manly Council v Byrne & Anor [2002] NSWCA 123 at [51] per Campbell JA).

[54] The Plaintiff submits that both of these inferences are available in respect of each of officers Church, Renshaw, O’Donnell, Grime and Doring, whom the Defendant would have been expected, but failed, to call. Save for the reliance placed on their written statements, the absence of these witnesses, whose evidence is critical to the legal and factual narrative of this case, is unexplained (Payne v Parker [176] (sic) 1 NSWLR 191 per Glass JA at 201 – 202).” [9]

9. Plaintiff’s Written Submissions, dated 21 April 2016 at [53] – [54]

11. In Brierley v Ellis, Meagher JA (with Basten and Gleeson JJA agreeing) stated:-

“[24] The fact that evidence is unable to be tested by cross-examination may provide a reason to discount the weight that should be given to it. As Mahoney JA observed in Clyne v Law Society of New South Wales (Court of Appeal (NSW), 4 September 1987, unrep):

‘The fact that a witness has not been cross-examined has conventionally been seen, and properly seen, as a reason why the witness' evidence should be taken with reserve. In Braithwaite v Kerns 34 Beav 202, Romilly MR, in giving leave for the use of an affidavit by a person who, by reason of paralysis, was unable and incapable to attend and be cross-examined, said: 'I must allow it to be read, and must judge of it. But I pay little attention to the affidavit of a person who has not, when required, submitted to a cross-examination.'

Each case must, of course, be weighed on its merits and in its context. But experience has shown that it is proper to treat with considerable reserve evidence, or the inferences from evidence, which has not been subjected to cross-examination.’"[10]

10. [2014] NSWCA 230 at [24] (Meagher JA with Basten and Gleeson JJA agreeing)

12. Even so, the correct approach to the assessment of the evidence in Exhibit F is that stated in State of New South Wales v Beck, by Ward JA:-

“[66] Relevantly, a Jones v Dunkel inference would permit his Honour, where there were competing inferences available on the evidence, more comfortably to accept Mr Beck's version of events but it would not permit a positive finding that had the police officers been tested in cross-examination that evidence would have been damaging to the defence case (HML v R (2008) 235 CLR 334; Cross on Evidence, JD Heydon, 8th edn [1215]). Therefore I have difficulty with the proposition that the fact that the police officers were not called carried with it the inevitable consequence that the divergence between the evidence called in Mr Beck's case and the police statements warranted an inference that one or more of the police officers had knowingly falsified his or their evidence. In any event, what was necessary was for his Honour to have had regard to all the evidence, including the untested police statements for what weight his Honour considered they were worth, (and to apply the Briginshaw standard before making findings of criminal conduct against the police officers) in determining the question of liability once the no case application had failed. It appears from the manner in which his Honour proceeded immediately to find for Mr Beck as a consequence of failure of the no case application that his Honour did not at that point do so.”[11]

11. [2013] NSWCA 437 at [66] (Ward JA with Beazley P and Barrett JA agreeing)

13. In the fact finding process generally, I have followed the principles usefully summarised by Hallen J in Pupo v Pupo; Pupo v Pupo. [12]

EVIDENCE

12. [2015] NSWSC 1633 at [98] – [116] (Hallen J)

Background events

14. On 2 December 2011, the Plaintiff went out to lunch with clients at a location known as “The Balcony” on Erskine Street in Sydney. There he consumed a three-course meal, together with two 375 mL bottles of Peroni beer and one glass of cabernet sauvignon wine. [13]

    13. Exhibit J

15. The Plaintiff continued to discuss business matters with clients at the venue until around 6:00pm. At that time the Plaintiff met his friend, Mr Andrew Latham, and the two men caught a taxi to Manly. Around 7:00pm, the Plaintiff and Mr Latham arrived at Manly and entered the “14 ft Skiff and Sailing Club.” [14] The taxi receipt records their arrival in Manly at around 6:54pm [15] . Between 7:00 – 8:00pm, the Plaintiff was completing some work tasks. He stated that had a schooner of full strength beer which he consumed on the balcony at the Skiff and Sailing Club. [16] He then proceeded to consume a meal and a further schooner of full strength beer. [17] Overall whilst at the Skiff and Sailing Club, the Plaintiff stated that he had two schooner sized beers. [18]

    14. Exhibit J

    15. Exhibit L

    16. Exhibit F, Statement of Mr Charlie Thomlinson, dated 16 December 2011, p 41 at [6]; Exhibit F, Statement of Mr Charlie Thomlinson, dated 16 December 2011 and 4 January 2012, p 56 at [6]

    17. Exhibit F, Statement of Mr Charlie Thomlinson, dated 16 December 2011, p 41 at [6]; Exhibit F, Statement of Mr Charlie Thomlinson, dated 16 December 2011 and 4 January 2012, p 56 at [6]

    18. T 22.43

16. Also in attendance were four other males who were friends of Mr Latham. The time of their departure was said by the Plaintiff to be between 9:00 and 9:30 pm, [19] although in a police statement the Plaintiff stated 8:15pm. [20] The Plaintiff stated that he and his friends went to a pie shop in the Corso [21] and thereafter they went to the Shore Club at around 9.30pm. [22] The Plaintiff stated that in reference to this visit to the pie shop, he did not purchase anything at that point. [23] This evidence was supported by Mr Latham. [24]

    19. Exhibit J

    20. Exhibit F, Statement of Mr Charlie Thomlinson, dated 16 December 2011 and 4 January 2012, p 56 at [6]

    21. Exhibit F, Statement of Mr Charlie Thomlinson, dated 16 December 2011 and 4 January 2012, p 56 at [6]

    22. Exhibit F, Statement of Mr Charlie Thomlinson, dated 16 December 2011 and 4 January 2012, p 57 at [8] and T 459.5 – .7

    23. Exhibit F, Statement of Mr Charlie Thomlinson, dated 16 December 2011, p 41 at [6] and Exhibit F, Statement of Mr Charlie Thomlinson, dated 16 December 2011 and 4 January 2012, p 56 at [6]

    24. Exhibit F, Statement of Ms Andrew Latham, dated 7 January 2012, p 114 at [7]

17. The Plaintiff told police:-

“The security guards did not check our identification at this time and but appeared to look us over as we walked through the entry.” [25]

25. Exhibit F, Statement of Mr Charlie Thomlinson, dated 16 December 2011 and 4 January 2012, p 57 at [8]

18. At one point the Plaintiff conceded that he was scanned on entry but stated that he did not add that into his statement as he was not specifically asked. [26] When it was put to him that he made the statement to give the impression that “you know, we’re not drunk, they let us straight in,” the Plaintiff replied: “Well, it’s … what happened but yes.” [27] It was then put to him that this was incorrect as he was scanned he stated “I believe so yes” [28] and “I don’t remember it specifically.” [29]

    26. T 459.9 – .17

    27. T 459.24 – .26

    28. T 459.39 – .40

    29. T 459.42 – .44

19. The Plaintiff’s evidence was that he entered the Shore Club at 9.30pm and proceeded direct to Level 2. This was repeated in his police statements in some detail. [30] It was also supported in the police statements of two of the Plaintiff’s companions being Mr Andrew Latham [31] and Mr Casey Aimer. [32] The Defendant submits that the three documented accounts are inconsistent with the incontrovertible evidence shown in the CCTV footage [33] tendered before the Court. [34]

    30. Exhibit F, Statement of Mr Charlie Thomlinson, dated 16 December 2011, p 42 at [8] – [9] and Exhibit F, Statement of Mr Charlie Thomlinson, dated 16 December 2011 and 4 January 2012, p 57 [8] and [9]

    31. Exhibit F, Statement of Ms Andrew Latham, dated 7 January 2012, p 114 at [7] (Mr Latham stated that they arrived “After 9pm”)

    32. Exhibit F, Statement of Mr Casey Aimer, dated 23 January 2012, p 122 at [6]

    33. Exhibit H (comprising H1 – Plaintiff’s compilation disc; H2 – Shore Club discs and H3 – the police compilation disc)

    34. Defendant’s Written Submissions, dated 26 April 2016 at [14] – [15]

18. During cross-examination, the Plaintiff acknowledged that his assertion may have been wrong as he might have bought a beer first on Level 1. [35]

    35. T 459.50 – 460.1

19. The Plaintiff was then cross examined extensively regarding this anomaly. [36] The Defendant submits that the most likely explanation is that the Plaintiff had contacted his friends and they had created an untrue account that they entered the Shore Club and immediately went to the top floor (being Level 2). [37] There is evidence that the Plaintiff contacted Mr Aimer on 18 January 2012 [38] and also Andrew Latham eight or nine days after the incident about making a statement to police. [39] The Plaintiff conceded that he had some discussion with them as to what took place however neither saw what happened and so they “couldn’t really help [him] out” and he “left it to the police to speak to them.” [40] He stated that he did not believe that he showed either person a copy of his statement and thought that he was advised not to by police but could not remember. [41]

    36. T 459.50 – 467.30

    37. Defendant’s Written Submissions, dated 26 April 2016 at [17] and [46]

    38. Exhibit F, Statement of Mr Casey Aimer, dated 23 January 2012, p 122 at [8]

    39. Exhibit F, Statement of Ms Andrew Latham, dated 7 January 2012, p 114 at [10]

    40. T 468.47 – 469.2

    41. T 468.24 – .30

20. The Plaintiff rejected a suggestion that he colluded with his friend or acquaintances and told them what to write. [42] Neither Mr Latham or Mr Casey were asked to provide a statement to the Plaintiff in the context of his own investigation of the event. Whatever occurred on Level 1 prior to the Plaintiff going to Level 2 of the Shore Club, there is no evidence to suggest that this was anything other than of short duration or significance. Although the Defendant has asserted that this aspect was subject to collusion, its relevance to the questions of fact to be determined was not identified. I also note that it was the Plaintiff who had in fact, volunteered this information. [43] Overall the issue does not have any significance to the determination of the issues in dispute except as to the Plaintiff’s ability to recall the events in question.

    42. T 470.33 – .35

    43. T 460.44 – .45

21. Next, the Plaintiff bought a round of drinks using a credit card. The credit card imprint shows that a sum of $33 was expended at 9.44pm. [44] The Plaintiff’s evidence was that he bought four drinks being one for himself, one for Andrew Latham and one each for Andrew’s two friends who he had met that evening. [45]

    44. Exhibit N

    45. T 21.31 – .36 and Exhibit N

22. There was evidence of the Plaintiff and his friends leaving the Shore Club temporarily at some point to get a pie. [46] The Plaintiff’s evidence-in-chief was that he might have had a pie later that evening. [47] More specifically he stated in in cross-examination:-

“So we had a beer at the Shore Club. We nipped out to get a pie and then we came back and this, when we came back we went up to the top floor and we sat on the chairs that you, I mentioned in paragraph 10.” [48]

46. T 464.13 – .16 and Exhibit J

47. T 33.17 - .19

48. T 464.33 – .36

25. This visit (which would amount to a second visit to a pie shop) was not disclosed in the Plaintiff’s police statements [49] which only referred to the earlier visit before first entering the Shore Club. [50] Neither Mr Latham nor Mr Casey referred to leaving the Shore Club at this time. Notwithstanding this, it was not suggested in cross-examination that leaving and re-entering the Shore Club did not occur and Exhibit H confirms that it did.

    49. Exhibit F, Statement of Mr Charlie Thomlinson, dated 16 December 2011, p 42 at [10] and Exhibit F, Statement of Mr Charlie Thomlinson, dated 16 December 2011 and 4 January 2012, p 57 at [10]

    50. Exhibit J

26. The Plaintiff’s evidence was that around 10:25pm, he and his companions re-entered the Shore Club and proceeded to Level 2 of the building, [51] where they were socialising on cushion chairs surrounding a circular table in the middle of Level 2. The Plaintiff then walked down to Level 1 to buy a round of drinks using his credit card and gave these to two people from the group who joined him on the floor. The imprint shows that it was approved at 11:27pm, for a sum of $26 [52] although there had been an earlier instance where the transaction had been declined. The Plaintiff responded to the suggestion that he had unsuccessfully attempted to enter his personal identification number a number of times stating that he thought he typed the number for another card the first time but the second occasion he used the right number. [53] The Plaintiff’s evidence was that this beer was for himself, Andrew Latham, and one of Andrew’s friends. [54] He marked the spot at the bar where he made the purchase on Exhibit T with the number 4. [55] The Plaintiff’s evidence was that whilst at the Shore Club, he also consumed a beer which had been purchased for him. [56] After making his purchase, the Plaintiff’s evidence was that at around 11:50pm, he placed half a glass of beer on the bar and walked to the dance floor.

    51. Exhibit J

    52. Exhibit K

    53. T 170.1 – .13

    54. T 21.48 – .49 and Exhibit K

    55. T168.45 – .48

    56. T 22.25 – .30

27. The Plaintiff denies that at this time, he was intoxicated. His evidence was that he was “completely coherent.” [57] He stated that he certainly was not “swaying from side to side” and was dancing on the floor in a “coordinated fashion” and having “conversations with people.” [58]

    57. T 27.42 – .46

    58. T 27.42 – .46

28. The Plaintiff was asked whether he was approached by a “glassy” whilst he was on the dance floor. He stated that he did not think so, but knew that a “glassy” was a person who went around collecting glasses. [59] He denied being approached by a security guard whilst he was on the dance floor. [60]

    59. T 120.45 – 121.22

    60. T 121.24 – .26

29. Mr Latham recalled the Plaintiff buying a round of drinks for Mr Aimer and himself but said he “lost sight of him.” [61] Mr Aimer stated that he left the Shore Club at about 10.30pm by himself and remembered the Plaintiff as not being there at the end of the evening “and assumed that he had gone home.” [62]

    61. Exhibit F, Statement of Ms Andrew Latham, dated 7 January 2012, p 114 at [8]

    62. Exhibit F, Statement of Mr Casey Aimer, dated 23 January 2012, p 122 at [7]

Approach by security

30. At a point approaching midnight, the Plaintiff stated that he was leaving the Shore Club and was exiting the dance floor. However, he stated that he did not proceed immediately down the stairs [63] because:-

“ … there were lots of people coming up. It was particularly busy. I just decided to stop in, in the thoroughfare, let people come up. While I was stopped I checked my phone. I got side tracked with my phone for a couple of minutes” [64]

63. T 26.40 – .45

64. T 26.47 – 27.1

31. The Plaintiff stated that he stood by the grille checking his mobile phone when he had his first encounter with a security guard that night. [65] The Plaintiff was asked to mark on Exhibit T with a red pen, the number 1, being the location in which he was standing when he was first approached by the first security guard. [66] He stated that he was asked, whilst checking his mobile phone, to move away from the stairs as it was a very busy thoroughfare. [67] He stated that the conversation he had with the first security guard was to receive the following instructions: “Could you move back sir? You are in the way.” To which the Plaintiff is said to have stated: “Yeah, no worries.” [68] He stated that the security guard had a “clicker” that was counting people coming in and out. [69] During cross-examination he marked on the same Exhibit T with the number 2 the position he was in after he was asked to move by that security guard. [70]

    65. T 121.28 – .33

    66. T 124.28 – .43

    67. T 121.36 – .37

    68. T 28.47; see also at T 121.40 – .43

    69. T 121.38 – .39

    70. T 157.36 – .39

32. In evidence-in-chief, the Plaintiff stated that another security guard then grabbed him and asked him to wait. [71] He asked the security guard: “Why? What’s going on, I’ve done nothing wrong.” [72] The security guard told him to “just wait” and he complied. [73]

    71. T 29.1 – .2

    72. T 29.4 – .7

    73. T 29.14 – .17

33. In his chronology, the Plaintiff stated that whilst standing in this position, he was grabbed from behind by another security guard and was ushered to a location about two metres from where he was standing to the stairwell area immediately below a light which had been positioned to illuminate the stairs. When he reached that position, the Plaintiff was told to “wait here.” [74]

    74. Exhibit J

34. In cross-examination, the Plaintiff stated that he could not recall the security guard who had asked him to wait. [75] He stated that he was in front of the grille, people were coming up and he was asked to move out of the way and he may have, but was not sure. He was then told: “Just wait.” [76] He later said that the second security guard approached him and he did not say anything initially, and then grabbed him fairly gently and ushered him to a couple of feet away from where he had stood at the top of the stairs. [77] The Plaintiff said that when grabbed by the second security guard he turned around and said: “Hey, what’s going on?” [78] He conceded that the security guard with the clicker was not the one who had asked him to wait there. [79]

    75. T 122.50 – 123.15

    76. T 123.17 – .27

    77. T 123.43 – .45

    78. T 121.43

    79. T 122.23 – .25

35. The Plaintiff stated that before the police got involved, he asked if he could speak to the manager. [80] He directed that question to the security guard, but no conversation ensued. [81] He stated that he still had his mobile phone in his hand and was checking it whilst he was being asked to “wait”. [82] He marked the location on Exhibit T with the number 3 where he was asked to wait. [83]

    80. T 29.41 – .42

    81. T 30.3 – .4

    82. T 30.10 – .12

    83. T 158.9

36. The Plaintiff was asked to confirm that the CCTV footage [84] would show the Plaintiff’s locations and he accepted that it would. [85]

    84. Exhibit H

    85. T 157.48 – 159.30

37. The Plaintiff maintained that he was about to leave and did not want to stay on the premises. He stated that if he was asked to leave he would have left but instead was asked to wait. [86] He denied that he was arguing with the second security guard. [87]

    86. T 161.32 – 34

    87. T 161.36 – .38

38. In his report of serious police misconduct [88] and his statement to police dated 16 December 2011 [89] the Plaintiff also asserted that he was asked by the security guards to “wait here” before being approached by police and taken forcibly down the stairs. [90]

    88. Exhibit Q, “Sworn Statement of Charles Henry Thomlinson – Report of Serious Police Misconduct”, dated 13 December 2011

    89. Exhibit F, Statement of Mr Charlie Thomlinson, dated 16 December 2011, pp 43 – 45 at [14] – [16]

    90. Exhibit F, Statement of Mr Charlie Thomlinson, dated 16 December 2011, pp 43 – 45 at [14] – [16]; and Exhibit F, Statement of Mr Charlie Thomlinson, dated 16 December 2011 and 4 January 2012, p 59 at [15] – [16]

39. Youssef Cheikho was employed as a security officer by Group Services Australia Pty Ltd and was working at the Shore Club on the evening in question.

40. In his statement to police dated 18 December 2011 he stated that on the evening of 2 December 2011, a member of the bar staff whose name he does not know, came up to him and said to him: “There is a guy who appears to be drunk.” [91] Mr Cheikho claims that the staff member pointed out the Plaintiff who was standing around the left hand side of the entrance to Level 1 of the Club. Thereafter Mr Cheikho walked up to the Plaintiff and what transpired was described as follows:-

“[12] I walked straight up this male and said ‘Can you come outside here to talk to me?’ The male followed the instructions and came out. I said, ‘The bar staff have seen that you appear to be intoxicated.’ The male looked shocked and stunned. He said, ‘Are you serious?, I’ve only drunk one. What makes you think that? You wouldn’t know if I was drunk. How long have you been working for?’ I said, ‘That’s my job. Your not drunk don’t worry’. I called for Mahmoud on the radio because he could then take over my counting while I spoke to the male. The male said, ‘Your fucken joking?’ I said, ‘There is no need for that kind of language’. He said, ‘I want to speak to your supervisor’. I said, ‘Your going to go back in, don’t worry about it’. He said, ‘That’s a fucken joke’. I said, ‘Ah your going’.

[13] At this time the police officers were looking at us and this seemed to panic him. The male said, ‘The bar staff is a fucken idiot. He can’t tell me I’m drunk. Look at this I haven’t even finished it’. The male held a beer glass up that was partially full. I said, ‘Calm down’. At this time he seemed to become blatantly rude and shocked that he was being thrown out.

[14] Mahmoud walked over to me and said, ‘What is going on?’ I said, ‘Take him out and I’ll come and write down the report’. Mahmoud said, ‘Why am I kicking him out?’ I said, ‘Because he is being rude. You check if he is showing signs for RSA’. Mahmoud turned around to speak with the male and the male was swearing at Mahmoud. I can’t remember the exact words but knew the male was being rude to Mahmoud.

[15] It is my opinion that the male was actually not intoxicated and for that reason I was trying to explain to him that he could go back inside the venue. He did not seem to hear or understand me however appeared to be listening and I was shouting to enable him to hear. He kept responding to me by saying, ‘Yeah, yeah’. I think he understood me however was angry at even being approached or having been pointed out as being intoxicated when he wasn’t.

[16] When Mahmoud was trying to escort the male down the stairs the male reached between Mahmoud and I and said, ‘I want to talk to the supervisor’ as he pointed to the police. I approached the police and spoke to the bigger police officer. I said, ‘He’s got to go as he is being blatantly rude. We have people coming up and down with only one access. We can’t block the stairs’. …” [92]

91. Exhibit F, Statement of Mr Youssef Cheikho, dated 18 December 2011, p 72 at [11]

92. Exhibit F, Statement of Mr Youssef Cheikho, dated 18 December 2011, pp 73 – 74 at [12] – [16]

41. The account of conversation given by Mr Cheikho was put to the Plaintiff and rejected by him. [93] It appears that the Plaintiff accepted that he was in position number 2 for approximately two minutes. [94]

    93. T 199.1 – .27

    94. T 201.11 – .15

42. The reference in Mr Cheikho’s statement to “Mahmoud” was to Mr Mahmoud Almir another security guard working on the occasion in question. Whilst Mr Cheikho’s evidence was that he did not consider the Plaintiff to be intoxicated he stated that he asked Mr Almir to “check for if he is showing signs for RSA.” However in subsequent discussions with a supervisor Mr Eliki Sagoa (from Group Services Australia Pty Ltd), he claimed that he told him that “no [the Plaintiff] wasn’t drunk he got kicked out for being rude.” [95] Similarly Mr Cheikho said he told Mr Chaz Tanner, the owner of his employer Group Services Australia Pty Ltd that the Plaintiff was not drunk. Mr Cheikho’s statement recorded:-

“[20] I just finished my shift that night at 2 am. Chaz called me a couple of days later and I explained to Chaz what happened. I said to Chaz, ‘The guy was not drunk. The male was pointed out by male bar staff for being drunk. I assessed him and I am positive that he wasn’t. He didn’t smell of alcohol. The male swore, swore and swore even after I told him not to swear. I asked Mahmoud to take him out. Mahmoud took over but didn’t go downstairs with the man. The police stepped in after I spoke to them and asked them to remove him.’ Chaz said, ‘Did you see anything that happened downstairs?’ I said, ‘Mahmoud and I stayed upstairs’”. [96]

95. Exhibit F, Statement of Mr Youssef Cheikho, dated 18 December 2011, p 74 at [19]

96. Exhibit F, Statement of Mr Youssef Cheikho, dated 18 December 2011, p 74 at [20]

43. Mr Almir provided a statement to police dated 23 December 2011. He records that he received a phone call from Mr Cheikho to come over. [97] The reason he gives for this was because Mr Cheikho wanted him to take over the counting of patrons while he spoke to the Plaintiff. [98] Subsequent to the further conversations with the Plaintiff, Mr Cheikho asked Mr Almir to take the Plaintiff out for being rude and to check if he is showing “signs of RSA.” [99] Mr Almir stated:-

“[10] I said that Youssef was trying to communicate to a man. By this I mean the guy was not responding to Youssef. Youssef said to me, ‘One of the bar staff said this man was intoxicated and needs to be escorted out. I can’t leave my position as I am counting. Can you escort him out?’ I acknowledged that request and at this stage the man was being stubborn by not responding. I walked up to the man and said, ‘You need to leave’. The man said, ‘I’m not drunk’. I said, ‘Just walk with me and talk in a quieter place so we can make a decision’. The man said, ‘No I’m not drunk, I’m not leaving, I’m not leaving’. The man was very stubborn and direct in how he said this. At this stage the man was blocking the stairs which was interrupting the flow of people up and down. I saw this as a problem and to be an OH & S issue as well at the time. I can’t recall the exact timing however do remember the male saying, ‘Fuck off’ to me. The males tone was rude and arrogant. The male did not consider my opinion to matter. I could not smell intoxicating liquor on this mans breath. This males eyes were a bit red.

…

[14] In my opinion I did not have time to assess his intoxication levels and for me it was the fact that the male was failing to communicate or follow simple directions and for that reason had to be removed. The whole issue with this man was that he was not responsive at all which problematic. There were too many people on the stairs for us to stay there and chat. I was just trying to move him to an area away from the stairs where we could talk and sought the issue out. The man did not want to listen to me or obey my directions. As a security guard I control the crowd and monitor their behaviour. This male rude and ignorant and would not do as I asked.

[15] I did not see anything after the police took the man a couple of steps downstairs. Shortly after this I was asked by my supervisor Eliki, ‘What happened?’ I said ‘The man did not want to respond and the police took over.’ Eliki said, ‘Was the man intoxicated?’ I said ‘I didn’t have the chance to assess him because he was very rude and unresponsive.’ I continued my duties.” [100]

97. Exhibit F, Statement of Mr Mahmoud Almir, dated 18 December 2011, p 69 at [9]

98. Exhibit F, Statement of Mr Youssef Cheikho, dated 18 December 2011, p 73 at [12]

99. Exhibit F, Statement of Mr Youssef Cheikho, dated 18 December 2011, p 73 at [14]

100. Exhibit F, Statement of Mr Mahmoud Almir, dated 18 December 2011, pp 69 – 70 at [10] – [14]

44. The account of conversation given by Mr Almir was also put to the Plaintiff in cross-examination and was rejected. [101] The Plaintiff rejected the proposition that at 12:52:49 of Exhibit H 2.1 he was arguing with security. [102] He identified 12:13:03:04 on Exhibit H 2.1 as the point in the recording indicating when he was told to wait. [103] The Plaintiff specifically denied giving the security officer a “gob full” and swearing. [104]

    101. T 207.9 – .19

    102. T 203.45 – .46

    103. T 209.34 – .35

    104. T 206.46 and T 207.18 – .19

45. On a number of occasions the Plaintiff was shown Exhibit H2.1 at times between 00:12:48:04 and 00:13:10:89. He denied that the footage showed that he was being motioned by security to leave and maintained his account that he was being prevented from leaving. [105]

    105. T 207.45 – 212.10

Intervention by police

46. In oral evidence, the Plaintiff stated that after being asked to wait near the stairs he was approached by police officers being firstly a lady police officer and then a male. He stated that he asked the officers what was going on, and they said “Wait” and nobody answered his questions. [106]

    106. T 29.24 – .25

47. The Plaintiff’s evidence was that the third police officer came over the top of the two officers that were trying to talk to him and grabbed him from around the neck and he was twisted around by that officer, and the second male police officer put his arms behind his back and marched him down the stairs. It is not in issue that the two officers were LSC Church and SC Renshaw. [107] The Plaintiff was then marched down the stairs to the ground level of the Shore Club by LSC Church and SC Renshaw. As he was being forcibly taken down the stairs, the Plaintiff asserts that he said words to the effect of: “Why are you doing this to me? I have done nothing wrong.” [108] He stated that one officer had his right arm, and another officer has his left arm, and they were either side of him. [109]

    107. T 30.15 – .18

    108. Exhibit J

    109. T 30.31 – .32

48. The Plaintiff stated that as he was going down the stairs first, and no incident occurred as he was being escorted down the stairs. [110]

    110. T 30,42 – .44

49. In cross-examination the Plaintiff stated that he was grabbed by the throat or the top of his chest. [111] Later he stated that he was not pointing to his neck but was pointing in the general area around the throat. [112] He was taken to Exhibit H 2.1 and stated that it showed that SC Renshaw grabbed him by the “top of my shoulder or my neck”. [113] He denied resisting police as he came down the stairs and stated that he definitely did not hear SC Renshaw state “Stop resisting [114] and the Plaintiff did not believe that it was said because he was not resisting. [115]

    111. T 163.25 – .42

    112. T 177.34 – .37

    113. T 230.9 – .10

    114. T 236.31 – .33

    115. T 237.1 – .5

50. A broadly similar account was given in the Plaintiff’s report of serious police misconduct [116] and the Plaintiff’s statement to police. [117]

    116. Exhibit Q, “Sworn Statement of Charles Henry Thomlinson – Report of Serious Police Misconduct”, dated 13 December 2011 at [6]

    117. Exhibit F, Statement of Mr Charlie Thomlinson, dated 16 December 2011, pp 44 – 45 at [15] – [16]

51. The evidence of Mr Cheikho at this point was:-

“[16] … I could see the police watching me talk to this man the whole time. The three police went straight to Mahmoud. The male was still standing on the top of the stairs at this stage and was peaking with his anger. The male looked really angry and kept saying ‘I’m not drunk’. He was boiling up and kept asking ‘Why am I getting accused’. He seemed very frustrated with us.

[17] The police walked up and said, ‘You’re going’. The male said, ‘Can I tell you what happened?’ The police escorted him downstairs to clear the access way. I didn’t see physically how the police took the man downstairs.” [118]

118. Exhibit F, Statement of Mr Youssef Cheikho, dated 18 December 2011, pp 73 – 74 at [16] – [17]

52. The evidence of Mr Almir at this point was:-

“[11] The man did not want to respond to my request and it is my opinion this was observed by the police. That is why I think they came to assist. Two male police officers were standing on level 1 near us. I think they could see that the man was not responding to my request. It was then the two male officers intervened by taking over from me.

[12] I heard one of the officers say, ‘Come on mate lets go’. The man said, ‘No I don’t want to’. The police took the man by his arms and the man said, ‘Don’t touch me’ and was trying to push the police away from him. The two male police held one arm each and escorted the male down the stairs. I only saw the male be moved down about one or two steps before I turned and walked back to my position.” [119]

119. Exhibit F, Statement of Mr Mahmoud Almir, dated 18 December 2011, pp 69 – 70 at [11] – [12]

53. Constable O’Donnell stated that for a year prior to her statement she had been a licensing officer having completed the licensing education programme and had attended and completed both a Breath Analysis Operator course and safe custody course. She stated that the entirety of her service of two and half years had been at Manly which has approximately 200 licensed premises. [120] She further stated that in the course of her time with police and in her personal life she has observed thousands of persons affected by alcohol in various stages of intoxication and is able to accurately classify a person from being sober to severely affected. [121]

    120. Exhibit F, Statement of Constable Amy O’Donnell, dated 22 February 2012, p 157 at [4]

    121. Exhibit F, Statement of Constable Amy O’Donnell, dated 22 February 2012, p 158 at [5]

54. On 6 December 2011 at 12:34pm, Constable O’Donnell made an entry on the COPS referrable to the attendance by the police at the Shore Club on 2 – 3 December 2011. In reference to the Plaintiff, the entry merely recorded:-

“While at location, Police dealt with a fail to quit from the first level E … relates”

55. Constable O’Donnell’s notebook entry of 28 December 2011 referred to observation of the Plaintiff swaying as he was standing and appeared to be arguing. She states that she approached and security said:-

“… something along the lines of ‘he has been asked to leave, he is intoxicated’. The male then said to me ‘what have I done?’ I said you are intoxicated and you have been asked to leave. It’s time for you to leave.’ He then said ‘but why?’ L/S/C Church walked up and said ‘Mate you are intoxicated and have been asked to leave the premise by security due to your intoxication. At this time I’m asking you to leave the premise. The male said ‘but why do I have to leave’. S/C Church then said I have already stated to you why you have to leave. If you do not leave you will be committing an offence. You have to leave now. The male then said ‘No.’” [122]

122. Exhibit F, NSW Police Force Notebook issued to Constable Amy O’Donnell, pp 166 – 167

56. The statement from Constable O’Donnell of 22 February 2012 reads:-

“[12] Senior Constable Church and I walked back to the entry of the level where I continued to make observations of the level. At this stage I was standing opposite the stairs that lead to the second level. I looked behind me and observed a male speaking with security. This male appeared to be intoxicated as he was swaying whilst standing on the spot. I would describe this male as medium build, bald head, wearing jeans and a black leather jacket.

[13] I have looked away towards Church who then said to me “he’s intoxicated” while pointing behind me, I turned around to see who Church was pointing at and he was pointing at the same unknown male I had observed. At this point, I continued to observe the male and security that appeared to be arguing as the moved towards the top of the stairs. The unknown male continually pointed at police while saying something which I could not hear. It appeared that the security were trying to direct him down the stairs.

[14] I walked over the security and the male in an attempt to find out what was happening. The security officer said something along the lines of “he has been asked to leave, he is intoxicated’. The male then said “What have I done ?” where I said “You are intoxicated and have been asked to leave. It’s time for you to leave”. The male then said “But Why?’ After speaking with the male, it confirmed my view that he was intoxicated as he was slurring his words and smelt of intoxicating liquor (emphasis in original).” [123]

123. Exhibit F, Statement of Constable Amy O’Donnell, dated 22 February 2012, p 159 at [12] – [14]

57. In a second COPS entry inserted on 19 December 2011, LSC Church stated:-

“… LSC CHURCH and CST O’ DONNELL approached the bar area and watched a number of patrons being served and their interactions with staff. No glass was sighted nor were any shots sold while police were at the location.

At this time police witnessed a member of staff having a conversation with the accused. The accused is described as (??????????). Police could not hear the conversation however watched as the staff member ended the conversation and walked directly to the security guard who was monitoring from the entrance. Police observed that the accused was swaying slightly from side to side.

Shortly after, the staff member turned and pointed out the acvcused to the security guard. At this time the security guard has approached the accused and asked him to accompany him out into the stair well.

Police watched the conversation between the accused and security guard however were unable to understand what was being said. The security guard then called a second security guard over to speak to the accused. At this time Police had a short conversation about what was occurring and approached security and the accused.” [124]

124. Exhibit F, NSW Police Force COPS entries, pp 76 – 77

58. In his statement of 22 February 2012 LSC Church refers to observing the Plaintiff’s interaction with a member of staff who he refers to as Mahmoud Mahmoud. The statement reads:-

“[7] CST O’DONNELL and I approached the bar area and watched a number of patrons being served and their interactions with staff. Due to current licence stipulations placed on the Shore Club, I was paying careful attention to what drinks were being served, what the drinks were being served in and the intoxication levels of the patrons purchasing the alcohol.

[8] At this time Police witnessed a member of staff, who I now know to be Mahmoud MAHMOUD, having a conversation with a male, who I now know to be the accused, Charles THOMLINSON. I could not hear the conversation however watched as MAHMOUD ended the conversation and walked directly to the security guard who was monitoring from the entrance. Police observed that THOMLINSON was still standing in the same position and swaying slightly from side to side.

[9] A short time later, MAHMOUD turned and pointed out THOMLINSON to the security guard. At this time the security guard has approached THOMLINSON and appeared to ask THOMLINSON to accompany him out into the stair well.

[10] I watched the conversation between THOMLINSON and security guard however I was unable to understand what was being said. The security guard then motioned for a second security guard to move towards him and THOMLINSON. At this time I had a short conversation with Constable O’DONNELL and Senior Constable RENSHAW about what was occurring. Constable O’DONNELL, Senior Constable RENSHAW and I then approached security and THOMLINSON, who were standing in the stair well at the top of the first flight of stairs.” [125]

125. Exhibit F, Statement of Senior Constable Iain Church, dated 22 February 2012, p 149 at [7] – [10]

59. LSC Church’s COPS entry of 19 December 2011 and statement of 22 February 2012 asserted that there was a conversation in which he asked security: “Is everything OK?” before obtaining a response: “This male has been asked to leave because he is intoxicated but he won’t leave.” [126] Constable O’Donnell and SC Renshaw give similar accounts. [127]

    126. Exhibit F, Statement of Senior Constable Iain Church, dated 22 February 2012, p 149 at [11]; and also see: Exhibit F, NSW Police Force COPS entries, pp 76 - 77

    127. Exhibit F, Statement of Constable Amy O’Donnell, dated 22 February 2012, p 159 at [14] and Exhibit F, Statement of Senior Constable Ritson Renshaw, dated 10 May 2012, p 179 at [8]

60. A conversation with LSC Church is then recorded to have taken place in which the Plaintiff was said to be have been told that if he did not leave he would be committing an offence. [128]

    128. Exhibit F, NSW Police Force COPS entries, p 77 and Exhibit F, Statement of Senior Constable Iain Church, dated 22 February 2012, p 150 at [12]

61. SC Renshaw’s notebook entry of 3 December 2011 does not describe detailed observations of the Plaintiff but stated:-

“POI was asked repeatedly to leave premises by security, bar staff and police due to his intoxication.” [129]

129. Exhibit F, NSW Police Force Notebook issued to Senior Constable Ritson Renshaw, p 184

62. Nevertheless in his statement of 10 May 2012, SC Renshaw recorded:-

“[5] Leading Senior Constable CHURCH, Constable O’DONNELL and I have entered the premises and observed the intoxication levels of patrons on the ground floor of this premises. After a few minutes Leading Senior Constable CHURCH, Constable O’DONNELL and I have walked upstairs to the first floor level of the premises. I have stood just inside the entrance to this level and monitored patron numbers and intoxication levels. Leading Senior Constable CHURCH and Constable O’DONNELL have then approached the bar located on this level. After a couple of minutes I have seen the Accused Charles THOMLINSON standing at the southern end of the bar, he was being spoken to by bar staff. I have maintained observations of the Accused who was unsteady on his feet whilst standing at the bar as he was swaying from side to side. The bar staff has then gestured towards security by waving his hands at security that were standing near the entrance of this level. Security has then approached the Accused and had a conversation with the Accused before he has then escorted the Accused towards the stairs. The Accused has stopped at the top of the stairs on level one and was seen having a conversation with security for a couple of minutes.

[6] I Said – ‘I think we should go over, as I think security need some help.’

[7] Leading Senior Constable CHURCH, Constable O’DONNELL and I have then walked to the top of the stairs to where the Accused and two security guards were standing.

[8] Leading Senior Constable CHURCH has then spoken to security ‘Is everything OK’. Security replied ‘This guy has been asked to leave as he is too intoxicated, and he won’t leave.’

[9] Constable O’DONNELL Said – ‘Mate, you are too intoxicated and been asked to leave, it’s time for you to leave.’

[10] The Accused Said –‘But why?’

[11] Leading Senior Constable Church said – ‘I am Senior Constable CHURCH from Manly Police. You have been asked to leave this premises by security as you are too intoxicated. I am asking you to leave the premises’.

[12] The Accused Said – ‘But why’.

[13] Leading Senior Constable CHURCH Said – ‘As I have just told you, you have been asked to leave due to your intoxication levels.’

[14] The Accused Said – ‘But why’.

[15] Leading Senior Constable CHURCH said – ‘Staff at every licensed premises have the power to ask persons to leave their premises. You are committing an offence if you stay. So you must go now.’ [130]

130. Exhibit F, Statement of Senior Constable Ritson Renshaw, dated 10 May 2012, pp 178 –9 at [5] – [15]

63. SC Renshaw states that in response the Plaintiff replied “Fuck you I am not going.” [131] Constable O’Donnell said the Plaintiff said merely “No,” [132] as does LSC Church. [133]

    131. Exhibit F, Statement of Senior Constable Ritson Renshaw, dated 10 May 2012, p 180 at [16]

    132. Exhibit F, Statement of Constable Amy O’Donnell, dated 22 February 2012, p 159 at 15]

    133. Exhibit F, Statement of Senior Constable Iain Church, dated 22 February 2012, p 150 at [12]

Plaintiff removed after first alleged assault

64. The Plaintiff stated that when he reached the ground level, he was in front of the two police officers and they still had him, respectively, on the left and right arms behind his back. [134] He stated that after he reached the ground floor at the foot of the stairs, the officers escorted him directly towards the exit of the Club, and that at the entrance he was forcibly thrown down onto the floor without any warning. [135] He stated that there was no conversation with the police officers who had grabbed him at the top of the stairs. [136]

    134. T 30.48 – .49

    135. T 31.3 – .5

    136. T 31.11 – .13

65. Immediately thereafter, the Plaintiff described what happened as follows:-

“ As I lay face down on the floor I felt the weight of a - somebody jump on my back with his knees either side of my spine. I then felt my hands being pulled behind my back quite forcibly into a position to have handcuffs put - put on my hands and I then felt the person on my back lift his - lift his leg and with great force hit me with his knee right in the base of my spine.” [137]

137. T 33.27 – .31

66. He described the officer who did this as being approximately “6 foot 4, over 100 kilos” and was wearing a blue “baseball cap style” hat and black gloves. [138] He said that he asked the officer to get off his back as he was hurting him, but was given no response. He stated that he asked: “Why are you doing this to me? I’ve done nothing wrong.” [139] He stated that he received no response. [140] Thereafter he remained on the floor for a few minutes and was lifted by the police officers and escorted with his hands cuffed behind his back, off the premises and across the road. [141]

    138. T 33.38 – .39 and T 33.42

    139. T 33.46 – .47

    140. T 33.50

    141. T 34.27 – .28

67. On reaching the landing at the foot of the stairs, the Plaintiff asserted that he was forcibly thrown onto the floor near the entrance of the Shore Club by LSC Church and SC Renshaw. The Plaintiff’s evidence was that as he went down the stairs, he did not struggle [142] and did not hit any police officer either deliberately or accidentally. [143]

    142. T 67.28 – .30

    143. T 67.32 – .34

68. In cross-examination, the Plaintiff stated that at the bottom of the stairs, he turned to his right to see who was twisting his arm and saw a police officer wearing a hat. He described the officer as “large and strong … well-built, about 6 foot 4 in height, wearing black gloves and a blue police cap.” He stated that he asked: “Why are you doing this to me? I have done nothing wrong.” He stated that he was given no verbal reply, was forcibly thrown to the floor face-down and landed on his chest. He said that he was pushed to the floor about five metres from the stairs. [144]

    144. T 67.36 – .38

69. In his report of serious police misconduct the Plaintiff complained that he was thrown roughly on the floor and was hurt when he landed. He said a police officer then jumped on his back and put handcuffs on him. [145]

    145. Exhibit Q, “Sworn Statement of Charles Henry Thomlinson – Report of Serious Police Misconduct”, dated 13 December 2011, p 11 at [6]

70. In his police statement said after he hit the floor, he felt the weight of someone jumping on his back on either side. He said he turned around and saw the person on his back was the male officer in the blue cap. [146] He said that he remembered his arms being pulled behind his back and handcuffs being put on his wrists which he believed was an action by the female police officer as the males were holding his arms. [147] He further stated that he could not see other persons at the time other than the police officers on top of him, however he was aware of people to the left to him and could remember hearing their reactions, including one person saying: “There was no need to do that.” [148]

    146. Exhibit F, Statement of Mr Charlie Thomlinson, dated 16 December 2011 and 4 January 2012, p 60 at [17]

    147. Exhibit F, Statement of Mr Charlie Thomlinson, dated 16 December 2011 and 4 January 2012, p 60 at [17]

    148. Exhibit F, Statement of Mr Charlie Thomlinson, dated 16 December 2011 and 4 January 2012, p 60 at [18]

71. He stated that he did not struggle on the floor. [149]

    149. T 67.40 – .41

72. The Plaintiff’s evidence was that he experienced pain in his lower spine and ribs [150] as a consequence. As he was escorted by the officers, he looked at the officer who he asserts hit him in the back and shouted: “some pretty strong words to him and I said ‘I think you’ve broken my back.’” [151] He stated that as he was escorted across the road, he looked over his shoulder and called “the guy that did this to [him] … a fucking asshole,” [152] and asked: “Why did you do that?” or words to that effect. [153]

    150. T 35.21 – .22

    151. T 35.28 – .30

    152. T 36.22, T 36. 25

    153. T 36.25

66. In cross-examination, the Plaintiff viewed Exhibit H1 on Camera 17 at 12:19. When put to him that the footage did not show jumping on his back he replied “I think I alleged that I felt some jump on my back.” [154]

    154. T 238.25

67. Two other witnesses gave evidence regarding what happened at this time.

68. The first was Ms Hayley McKirgan who worked at the Shore Club, having first commenced in June/July 2011. Although she had obtained a certificate in Responsible Service of Alcohol, on the occasion in question she worked as the night key attendant responsible for scanning patrons’ fingerprints and also their identification in order to create a profile. [155] She stated that at the relevant time she was working with Ms Honora Campbell. She stated that she was working “just inside” the doors of the Shore Club. [156] Her evidence was that she first heard the words “get down, stay down” uttered by a male voice. [157] She stated that they would have been loud because there was music. [158] She heard this from behind her, to the right [159] and then turned around. [160] At that point she claims she saw a man on the floor, face down being arrested, with two police officers. [161] She stated that there was also a woman on the left of the Plaintiff [162] closest to her. [163] She stated that the larger male policeman was on top of the Plaintiff and the other man stood next to him on the right hand side. [164] She said that the larger man was on the Plaintiff with his knee. [165] She claimed that she saw police trying to put the handcuffs on him and the officer on his back [166] She recalled the woman police officer saying: “Do you want these?” [167] referring to the handcuffs. [168] She stated that the handcuffs were applied to the man and then he was marched to the wall opposite to the Club and sat down on the wall. [169] Thereafter she claims she resumed her night key duties. [170] She stated that the man disappeared and the van drove off as she resumed her duties. [171] She said that she was not in a position to make an assessment as to whether the man was intoxicated [172] but did not see any violence from him. [173]

    155. T 315.17 – .22

    156. T 316.1 – .2 and being marked on Exhibit T

    157. T 316.28 – .34

    158. T 316.37

    159. T 316.40

    160. T 316.44

    161. T 316.48

    162. T 317.8

    163. T 317.13

    164. T 317.21 – .22

    165. T 317.27 – .31

    166. T 317.36 – .37

    167. T 317.45 – .48

    168. T 318.1

    169. T 318.13 – .18

    170. T 318.34 – .35

    171. T 318.42

    172. T 319.4 – .6

    173. T 319.8 – .9

69. In her evidence-in-chief, she accepted that she made two prior statements relevant to the matter. The first was made at the request of the Plaintiff. [174] In the statement made by Ms McKirgan, she was “pretty certain it was before, but not 100%” she gave a statement to the police. Her evidence was that she made that statement on stationery provided by the Plaintiff, who had asked her to complete a statement and showed her some CCTV footage on his laptop, an x-ray and discussed “a little bit about what happened.” [175] Ms McKirgan’s recollection of the CCTV footage appeared to extend beyond the events she saw at the base of the stairs. [176] When asked what the Plaintiff had told her at the time, Ms McKirgan responded:-

“Q. He was telling you, was he, that he wasn’t drunk and things like that?

A.I don't remember exactly what he told me. I just remember him telling me that he’d hurt his back and he was taking it further and that he’d been taken off out to, I think it was Curl Curl, but I can’t be sure and they wouldn’t - the police wouldn’t take him to hospital and he had to get a taxi to a hospital and he said that he was innocent.

Q. He told you he had to get a taxi to the hospital?

A. Yes.” [177]

Ms McKirgan was not otherwise cross-examined in relation to this statement.

174. Exhibit F, Handwritten statement of Ms Hayley McKirgan, undated, p 102

175. T 321.46 – .50

176. T 322.8 – .20

177. T 323.9 – .17

77. In her statement provided to the Plaintiff, she noted:-

“I was scanning a customer’s finger & suddenly became aware of police shouting ‘get down’. I turned to look back & 2 male police officers were detaining a bald man in a black coat. There was a woman on the side & she said to the man something like ‘you want these’ she was reaching for handcuffs & couldn’t get them out, this whole time the 2 men were both on the mans back, they pulled his arms back quite forcefully & then the woman put the handcuffs on. The man was face down the whole time, he was not resisting arrest, he looked subdued. The bigger man was the one mainly on his back, but the other man was too. They then lifted him up & lead him across the street, they sat him on the wall. He looked upset & desperate to talk to someone. I do remember a police man listening & nodding his head with his hands in his vest. The policeman was not aggressive. The arrested man was not aggressive & I remember being surprised by this because the way they brought him down it was like he had done something really bad. I even said this to my colleague on the door. I didn’t seem them load him into the van, but I saw the van drive off, there was another vehicle present too and about 4 or 5 police officers.” [178]

178. Exhibit F, Handwritten statement of Ms Hayley McKirgan, undated, p 102

78. Ms McKirgan was also taken to her statement given to police on 24 December 2011. [179] She stated that there was nothing in her statement, as far as she knew, that needed to be corrected. [180] In the police statement, Ms McKirgan stated:-

    179. Exhibit F, Statement of Ms Hayley McKirgan, dated 24 December 2011, pp 99 – 101

    180. T 319.48 – .49

“[7] I would say about three weeks ago during one of my evening shifts I remember an incident occurring involving police and a male customer. I can’t recall what night it was however I can estimate it was about 12.30am. I remember I was working with Sanae and Honroa who were also at the front door with me. I don’t know either of their surnames.

[8] On this night I was standing at the front entrance to Shore Club scanning someone’s finger when I heard a male voice say, ‘Get down, stay down.’ The music is loud however you can still hear people talking if you are close to them. I turned around as when I heard the comment my back was facing the inside of the club.

[9] I turned around and saw a man faced down on the ground in the foyer area of Shore Club. I saw three police officers. The lady officer was standing to the left of the man on the ground. One male officer was kind of holding the male down near his shoulders, helping the other male officer. This officer was low, near the man. The other male officer was kneeling on the back of the man to keep him down. I just remember one knee was on the man’s back, I don’t remember two knees particularly being on the man’s back. Part of the officer’s weight was clearly on the man’s back. I say this because that is how the officer was holding him down on the ground. The man on the ground was blocking the lower half of the officer’s body, I can only say I saw one knee on the man’s back and can’t say where the other leg or foot of the officer was positioned.

[10] I can say the officers knee was somewhere on the lower back of the man, but can’t be more specific.

[11] The man was completely faced down on the ground. The officers pulled the man’s hands back to behind his back and the lady officer handcuffed him. I could see the man’s face was screwing up, I thought it was because the officers were pulling back his arms quite forcefully.

[12] I did not see or hear the man on the ground say anything to police and he was not struggling in any way. It did not appear to be easy for the police to pull his arms back to handcuff but I think that was more positional rather than because of the man struggling.

[13] The man did not say anything after that, I was about two metres away so I might not have been able to hear any conversation if it did take place.

[14] The police lady put the handcuffs on the man and the two male police officers kind of hoisted the man up by his arms to his feet. The policeman marched him across the road and sat him on the wall facing Shore Club. I continued watching the incident and saw the man appeared to be pleading with police. I say this as the man’s facial expressions made me think that.

[15] I saw about two more police already across the road when the three police who arrested the man walked him across.

[16] The man was looking up and speaking to a policeman. I can say that it was definitely not the large policeman mentioned above or the lady. I can not describe this policeman any further as he had a cap on and his head was down. The policeman was standing next to the man in a casual way. I saw the policeman nod his head up and down. He appeared to be listening to the man speak. The man who got arrested seemed to be doing all of the talking.

[17] At this stage I was about ten metres away from where the man was sitting on the wall opposite Shore Club and I had a direct view. There was nothing in between me and them.” [181]

181. Exhibit F, Statement of Ms Hayley McKirgan, dated 24 December 2011, pp 100 – 101 at [7] – [17]

79. In cross-examination, Ms McKirgan stated that she only saw one knee in the Plaintiff’s back. [182] It was also put to Ms McKirgan that the Plaintiff would not have surrendered his arms at the time that she saw him. She rejected this, and stated:-

“I don't think that it was that he wouldn’t surrender his arms. It was just the position because the officer obviously had his knee on his back and trying to get his arms around and then the woman had messed up getting the handcuffs out. I remember it being a bit awkward and them taking a long time to put the handcuffs on. So they kept pulling his arms back, but he wasn’t resisting. It was just the position he was in. It was very awkward.” [183]

182. T 323.40 – 324.17 and T 324.33 – .37

183. T 324.21 – .26

80. Ms McKirgan was also challenged in relation to her statement given to the Plaintiff that she was surprised by the way they had brought him down “like he had done something really bad.” She stated that she could not state for certain now, but she definitely saw him face down. [184] She marked with an X on Exhibit T, the location she was at, at the time of her observations. It was then put to her that she did not see the Plaintiff come down the stairs with the police and she responded that she may not have seen him coming down the stairs, but she definitely saw him face down on the ground. [185] She had earlier confirmed that she did not see anyone “jump” on the Plaintiff’s back. [186]

    184. T 325.22 – .24

    185. T 326.18 – .24

    186. T 324.36 – .37

81. The Plaintiff also called Ms Honora Campbell to give evidence. She was also working at the Shore Club on the night in question with Ms McKirgan. [187] She also had qualifications in RSA. [188] Her evidence was that on 2 December 2011, she saw the Plaintiff being escorted down the stairs with three police officers. [189] She stated that as she observed the incident, she did not at any stage observe any stumble or fall, either on the part of the Plaintiff or the three police officers. [190] Her evidence was that she was working inside the swing doors, identified in Exhibit T on the left hand side. She stated that from that position, her view was not obstructed. [191] She described her observations in the following exchange:-

    187. T 511.8 – .10

    188. T 510.8 – .9

    189. T 511.41 – .46

    190. T 512.1 – .4

    191. T 512.30 – .31

“Q. Having reached the foot of the stairs you saw that happen, do you say?

A. I saw police escorting Mr Thomlinson away from the staircase from about the bottom of the staircase and down through what you have labelled here as the ramp, or we would have called the hallway.

Q. In the hallway what did you observe happen?

A. I saw Mr Thomlinson be, for lack of a better word, put to the ground. His hands were behind his back and I saw him be held on the ground with his hands behind his back. Out of the three police officers, there was a larger one and he, in my view, looked like he had one leg to the side, over the top. So if you would imagine that someone was sitting on someone's back, there was one knee to one side and I believe one knee on the other side. So that would've been the police officer's right hand - right knee.

Q. So you saw Mr Thomlinson brought to the ground.

A. Yes.

Q. Or put to the ground did you say?

A. Yes.

Q. And you have said something about the larger of the police officers?

A. Yes, I believe he was the one that was again, for lack of a better word, on top of him.

Q. Did you see any particular part of that police officer's body do anything relative to Mr Thomlinson?

A. Yes, as I said, I believe his knee - his - what would've been the police officer's right knee on top of Mr Thomlinson's back, pinning him there.

Q. Could you make any judgment as to how forceful or gentle that was?

A. Yes, the whole incident from the moment we - I first turned around and looked, it would've - was over my right hand shoulder up towards the - to look at the stairs, the whole incident seemed quite forceful. It looked like he wasn’t struggling, he was just turning around asking what was going on and why it was happening and the whole motion of him being from upright to the ground seemed very harsh to me, in my opinion.” [192]

192. T 513.22 – 514.7

82. Ms Campbell agreed that about two weeks after the incident, the Plaintiff came to the Club, explained his perspective as to what had happened, and asked if she had seen anything. Ms Campbell agreed to make a statement. In that statement, Ms Campbell stated:-

“I, Honora Campbell, witnessed on Friday, December 2nd 20[…] he a man who I know to be Charlie Thomlinson detained on the ground next to the entrance by three police officers. This man did not appear to be resisting, be argumentative, or drunk. From what I saw the police were very heavy handed in restraining the man. His ‘offence’ was unknown to us, so all we had to go off was the ‘arrest’/detainment. I hereby give this statement for the purpose of fact statement as to the date, time + procedure the police used, which in my opinion was heavy handed.’ [193]

193. Exhibit F, Handwritten statement of Ms Honora Campbell, dated 15 December 2012, p 110

83. Subsequently, on 6 January 2012, Ms Campbell made a statement to police where she stated:-

“[5] On Friday, 2 December 2011, I commenced my shift at The Shore Club Hotel at 9pm and took up my position at the entry to the club with the Night Key machine. I was working with another female named Hailee who was operating the other machine. I am not sure of her surname.

[6] I can remember that this particular night was extremely busy and there had been a fairly constant stream of persons entering the club. I did not move from my location more than twice throughout the evening, only leaving to go to the bathroom for a short period.

[7] After about two hours into my shift, I was standing at the entry next to the Night key machine. I remember there was a break in persons coming through the door, it was quite loud where we were and I was looking around up the hallway which leads to the stairway. I saw a male who I would describe as fairly skinny build, average height, pale skin, shaved head, blue eyes wearing a jacket, jeans and trainers. This male was being escorted by two male Police Officers and one female Police Officer walking next to them. I cannot recall what these Police Officers looked like however can recall one of the officers was quite big with brown blonde hair.

[8] I saw from about halfway up the stairway that the officers were holding each arm on either side of the male. I did not see anything that happened on any higher level of the staircase. At this time they were walking down the stairs towards the exit. When they reached the bottom of the stairs, they continued to walk closer towards us. At a point about halfway between the base of the staircase and the entry where we were standing I saw the male be put to the ground face first. I had visual contact with all four persons from the moment they entered my vision.

[9] The Police Officers put the male to the ground quite harshly, I figured that they had to use force to put someone to the ground. It appeared heavy handed to me but I was conscious of the fact that I did not know what the male had done and therefore could not make a judgement upon whether the force they used was warranted. The male was face down on the ground close to where we were standing. Hailee and I moved to the side in order to create room.

[10] One Police officer was holding the male to the ground. I would describe him as the largest one of them all. The Police Officer has his arms behind his back and had pinned to the ground face down. The Police Officer was positioned on top of him and seemed to have one leg next to him and one leg either on the other side or on top of him. The other male Police Officer was next to the larger police Officer and the female officer was next to them but a little in front. From where I was I could see that his hands were bound the whole time so I can’t remember seeing the handcuffs being put on the male. I would have been about 5 metres away from where the male was positioned.

[11] The male was saying, ‘I haven’t done anything wrong, I don’t understand’. He did not appear to be resisting or struggling at this time and in my opinion did not appear drunk.

[12] The male was picked up by the two Police Officers and walked outside across the road from The Shore Club Hotel. After the male was taken across the road by the Police I went back to work and did not watch what was happening.” [194]

194. Exhibit F, Statement of Ms Honora Campbell, dated 6 January 2012, pp 108 – 109 at [5] – [12]

84. Ms Campbell’s evidence was that she did not believe that the Plaintiff was intoxicated [195] and that the Plaintiff kept saying: “I don’t understand. I don’t know why this is happening.” [196] Further, Ms Campbell’s evidence was that she saw police take him across the road, towards a police car parked on the opposite side of the street on a paved area in front of the beach. [197] So far as she could recall, his hands were behind his back. [198] In cross-examination, Ms Campbell could not recall police saying anything to Mr Thomlinson. [199] She was asked to describe how the Plaintiff was put to the ground. Her evidence was as follows:-

    195. T 515.26 – .27

    196. T 515.29 – .33

    197. T 516.1 – .4

    198. T 516.6 – .7

    199. T 519.39 – .40

“Q. How was he taken to the ground?

A. I don’t really know how to describe it. There was a movement that I observed. I can't really say how he was taken to the ground.

Q. So he's moving along and the next thing--

A. I observed a motion that I saw from them being upright to then him being put on the ground.

Q. But you don't, you can't remember the mechanics of how he went to the ground, is that right?

A. Well, not necessarily. I mean, how does one walk? I mean, you put one leg in front of the other; it's just, I don’t know, you - he was being moved.

Q. You can't assist your Honour any further with the description of how he was taken to the ground, can you?

A. He was pushed forward, like, moved forward, there was a motion from them standing to them being on the ground. As - I can't really offer them any more mechanics besides that.

Q. This happened all very quickly, didn't it?

A. Not so quickly; I mean, a couple of minutes or so. It wasn't in 30 seconds that I remember.

Q. Do I take that to mean from the moment you first heard a noise or any noise that caught your attention to the point in time that Mr Thomlinson was taken to the ground it was a couple of minutes?

A. I would say so, yes.

Q. It took quite a bit of time, did it, for them to move him from where you first saw him to the location at which he was on the ground?

A. Well, yeah, a couple of minutes.

Q. It must've been the words from Mr Thomlinson, "I haven't done anything wrong" that you first heard, is that right?

Psychological evidence

461. The Plaintiff consulted the practice of Think Clinical Psychologists and saw Joanna Callaghan on 19 December 2011. He re-presented on 7 May 2012 when he saw Dr Sarah Hughes. Following an initial assessment by Dr Hughes the Plaintiff had cognitive behavioural therapy for six sessions. The Plaintiff was cross examined extensively about the history he had provided to her. [668] The Defendant ultimately submitted that the Court should reject Dr Hughes’ opinion as it was inconsistent with the Plaintiff’s own version of events described in his testimony, Exhibit F and Q. Specifically it was submitted that:-

“[318] The plaintiff told Joanna Callaghan on the 19 December 2011 that he had 6 independent statements, that he had fractured his spine and that he had internal bruising.

[319] He said at the top of the stairs he was grabbed by the throat, and at the bottom of the stairs thrown down on to the floor on face at foot of stairs a concrete floor [sic]. He said he was slammed down on the floor, that an officer jumped down on his back, that he felt something crack.

[320] He said that he was not arrested, he didn’t know what was going on and he didn’t know what was happening.

[321] His psychological impairment as stated by Dr Hughes is not born [sic] out by the evidence. Indeed the Plaintiff’s recreational activities as identified in Ex1, Ex 2 and his sworn testimony demonstrate against a finding that the diagnostic criteria for PTSD have been made out.

[322] It is respectfully submitted that the Court, should be satisfied the factual basis for her report has not been established, and the Court should reject her report.” [669]

668. T 488.37 – 494.30

669. Defendant’s Written Submissions, dated 26 April 2016 at [318] – [322]

462. The thrust of the history from the Plaintiff relate to his grievance of over his treatment at the hands of police on the occasion in question. It is treatment which has to a significant extent been borne out in the findings in this matter.

463. The clinical records used to cross-examine the Plaintiff were not tendered in evidence. The Defendant also did not require Dr Hughes for cross-examination. [670] There is no evidence that the Plaintiff’s activities contraindicate the diagnostic criteria for post-traumatic stress disorder. In any event, the Plaintiff was last seen on 29 August 2013 at which point Dr Hughes opined that he no longer met the criteria for post-traumatic stress disorder.

     670. T 382.32 – .33

464. Nor has the Defendant produced any psychological evidence of its own.

465. Dr Hughes’s evidence, which I accept, expressed her diagnosis as follows:-

“[VI] The key feature of Post-Traumatic Stress Disorder is the onset of symptoms following exposure to a traumatic stressor involving direct experience of or bearing witness to an event involving actual or threatened death or serious injury. Mr. Thomlinson has reported to me that he was assaulted by police officers on the evening of Friday the 2nd of December, 2011. Based on what has been reported to me by Mr. Thomlinson I understand that this assault resulted in significant injury (Criteria A).

[VII] Also consistent with a Post-Traumatic Stress Disorder diagnosis, Mr. Thomlinson has reported to me that he experienced recurrent, involuntary, and intrusive memories of the event, despite his attempts to avoid such thoughts (Criteria B, C). Further, Mr. Thomlinson reports experiencing intense and prolonged distress following exposure to reminders of the events of Friday the 2nd of December (e.g seeing a police car, hearing stories about the police on the news) (Criteria B). It is notable that Mr. Thomlinson’s ongoing pain (which I understand from Mr. Thomlinson is a result of the injuries he sustained on Friday the 2nd of December, 2011) also serves as a reminder of the event and re-triggers his distress.

[VIII] Mr. Thomlinson has reported to me that after the events of Friday the 2nd of December, 2011, he developed negative beliefs about his safety and the safety of his family. Mr. Thomlinson reports that he became fearful that he would be targeted by the police for speaking out against them. Mr. Thomlinson has also reported to me that he experienced persistent feelings of fear, shock, disbelief and outrage after the events of Friday the 2nd of December, 2011 (Criteria D).

[IX] Based on information reported to me by Mr. Thomlinson I understand that after the events of Friday the 2nd of December, 2011 he became hypervigilant for signs of danger; was easily startled and felt constantly stressed, anxious, and on edge; experienced physical symptoms of hyper-arousal (including nausea, heart palpitations); found it difficult to concentrate; and had difficulty getting to and staying asleep (Criteria E), in large part due to intrusive memories of the event.” [671]

671. Exhibit R, Report of Dr Sarah Hughes, dated 5 September 2013, pp 17 – 18 at [VI] – [IX]

Civil Liability Act 2002 (NSW)

466. Although reliance on ss 51, 52, 53 and 54 the Civil Liability Act 2002 (NSW) were in the Defence. [672] The Defendant drew attention to no evidence and made no submission engaging ss 52 and 53 of the Civil Liability Act. In closing submissions reliance was confined to s 54 which it was argued in its interaction with ss 3B(1)(a)(ii) and 51 applied to personal injury damages arising from the intentional tort of assault and battery. The Defendant asserts that the Plaintiff committed the serious offences of:-

1. Resist a police officer in execution of duty contrary to Crimes Act 1900 (NSW) s 58;

2. Assault police officer in execution of duty contrary to Crimes Act 1900 (NSW) s 58;

   672. Defendant’s Defence to Further Amended Statement of Claim, filed 5 April 2016 at [45] – [51]

467. For reasons earlier given I have rejected the allegation of the Plaintiff assaulting or resisting Police in the execution of duty. It follows that this defence cannot apply.

468. Bearing in mind the findings I have made, the Plaintiff’s claim is confined to compensatory damages for the assaults, battery and false imprisonment together with interest and out of pocket expenses. Although a claim was made for economic loss this was not pursued in the Amended Schedule of Damages.

469. Section 3B of the 2002 Act excludes the provisions of the Act applying inter alia where “the civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death.” The term injury is not defined in Part 1 of the 2002 Act although it is defined as “personal injury” in s 5 (for the purposes of Part 1A) and well as in s 11 (for the purpose of Part 2), s 26A (for the purpose of Part 2A) and as personal injury in s 27 (for the purposes of Part 3).

470. In State of New South Wales v Ibbett, Spigelman CJ stated:-

“[21] The concept of ‘personal injury’ is reasonably well established in Australian legal practice. It has rarely, if ever, been used to refer to harm to reputation, deprivation of liberty, or to injured feelings such as outrage, humiliation, indignity and insult or to mental suffering, such as grief, anxiety and distress, not involving a recognised psychological condition. (See e.g. Baltic Shipping Co v Dillon (1993) 176 CLR 344 at 359-363.) An award for the emotional harm involved in apprehension of personal violence would not generally be regarded as an award for ‘personal injury damages.’”[673]

673. State of New South Wales v Ibbett (2005) 65 NSWLR 168; [2005] NSWCA 445, 172 [21] (Spigelman CJ with Basten JA agreeing)

471. In New South Wales v Williamson, French CJ and Hayne J stated:-

“[33] Often but not always, a battery will cause personal injury to the victim. False imprisonment is often accompanied by an assault and battery and the accompanying battery may (but need not) cause personal injury. There may be cases where an act of false imprisonment itself causes psychiatric, even physical injury.

[34] Even assuming, however, that the respondent did allege that the act of wrongful imprisonment (as distinct from the batteries he alleged he had suffered) had caused him some personal injury, the claim for false imprisonment was necessarily a claim for damages on account of the deprivation of liberty with any accompanying loss of dignity and harm to reputation. The deprivation of liberty (loss of dignity and harm to reputation) is not an ‘impairment of a person's physical or mental condition’ or otherwise a form of ‘injury’ within s 11 of the Liability Act. The claim for false imprisonment, at least to the extent to which it sought damages for deprivation of liberty, is not a ‘claim for personal injury damages.’" [674]

674. (2012) 248 CLR 417; [2012] HCA 57, 428 – 429 [33] – [34] (French CJ and Hayne J, with Kiefel J agreeing)

472. The Plaintiff asserted that each of the four incidents of assault, battery and false imprisonment were performed with the intention of causing injury.

473. In its submissions as to damages the Defendant submitted that the provisions of the Civil Liability Act applied on the basis of ss 51 and 54. In particular no issue as to the matter not being excluded from the Civil Liability Act by operation of s 3B was raised in either the Defence or its submissions.

474. The Defendant did submit however that the Court should find “applying the Briginshaw standard” that the alleged injury occurred unintentionally either when the Plaintiff came to the ground or when he was resisting whilst on the ground. [675] In the circumstances as I have found them, that submission must be rejected.

     675. Defendant’s Written Submissions, dated 26 April 2016 at [218]

475. The Defendant next sought to rely on the judgment of Besanko and Robertson JJ in Fernando v Commonwealth of Australia [676] to submit:-

“… even if there is no evidence that a defendant in fact formed a state of mind relevant to justify an action- a plaintiff is still only entitled to nominal damages if in the circumstances a person could and would have formed the relevant state of mind (and reasonable suspicion) and probably would have acted on their state of mind in the circumstances of the case (and so the Police officers did act, so it is a necessary inference that they would have so acted). So if the court is satisfied that the circumstances of this case could have given rise to any Police officers forming a reasonable suspicion that the plaintiff had committed an offence (particularly failure to quit) then the plaintiff could and would have been lawfully arrested to prevent him from continuing to remain at those licensed premises. It matters not whether police knew or turned their mind to the facts. Accordingly, only nominal damages should be awarded if the court finds that the plaintiff was falsely imprisoned as a matter of liability.” [677]

676. (2014) 315 ALR 547; [2014] FCAFC 181

677. Defendant’s Written Submissions, dated 26 April 2016 at [351]

476. The decision in Fernando was clearly based on the construction of s 189(1) of the Migration Act1958 (Cth) which the required an officer who knew or reasonably suspected that a person is an unlawful non-citizen to detain the person. [678] By contrast s 77 (2) of the 2007 Act reposes a discretion to turn a person out. It follows that in the absence of any evidence that the discretion was or would have been engaged, the Defendant’s argument must fail

     678. See (2014) 315 ALR 547; [2014] FCAFC 181, 268 – 269 [87] – [88] (Besanko and Robertson JJ)

Compensatory damages

477. The claim for compensatory damages is specified to include a component of aggravated and exemplary damages.

478. The Plaintiff’s claim is an amount of between $120,000 and for the assaults, $160,000 unlawful arrest and negligence. The Defendant has asserted a range up to $75,000 for assault and battery and $5,000 for the false imprisonment.

479. In the circumstances of the injury as I have found it, I would award damages of $90,000 for the four pleaded assaults.

480. In relation to his false imprisonment the Plaintiff’s liberty was curtailed for just under an hour and he has suffered associated hurt feelings. In Coyle v New South Wales, the sum of $10,000 was awarded for the causes of wrongful arrest and false imprisonment with Tobias JA stating:-

“[99] It is difficult to imagine, for a person who is otherwise generally a law abiding citizen, a more humiliating experience or a greater shock to one’s equilibrium than being forcefully deprived of one’s liberty for even a relatively short period of time in circumstances which are entirely unjustified. This is all the more so where that curtailment of liberty is accompanied, as in the present case, by 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. Not surprisingly, the whole experience must have been both humiliating and highly embarrassing.” [679]

679. [2006] NSWCA 95 at [99] (Tobias JA with Mason P and Handley JA agreeing)

481. In this case, a shorter period of time was involved and the Plaintiff was not detained in cell. Nevertheless the circumstances were such that I consider the sum of $7,000 as being appropriate for the false imprisonment.

482. The Plaintiff’s out of pocket expenses are claimed at $8,796.23 which were agreed arithmetically. [680] The Defendant disputed the cost of the Plaintiff’s attendance on the ADAPT programme. The evidence was that $2,683.33 is still owed by the Plaintiff for the programme, although $250 for a medical assessment has been paid. [681] The Plaintiff’s unchallenged evidence was that he would pay the sum. [682] The Defendant submitted that this cost should not be recompensed. The Defendant contended that there was no expert evidence warranting that expenditure and the amount that should be allowed is less than $5000 and limited to a period of six weeks. [683] The amount was included in a revised Schedule of Damages submitted by the Defendant. [684]

     680. T 606.43

     681. T 95.41 – 96.49

     682. T 100.30 – .31

     683. Defendant’s Schedule of Damages; and Defendant’s Schedule of Issues and T 668.27 – .30

     684. Defendant’s Written Submissions, dated 26 April 2016 at “Table A – Range of damages”

483. The Plaintiff’s evidence was that he was on medication every day until he commenced that ADAPT programme. [685] The Plaintiff’s evidence was that he told Dr Carr a he could not continue to live his life taking strong medication every day and in those circumstances he was referred to the chronic pain management clinic. [686] Contrary to the Defendant’s submission, the Plaintiff’s attendance at the ADAPT programme was supported by Dr Carr. Dr Carr’s opinion was not challenged in this respect. Nor was the Plaintiff’s evidence that he derived benefit from the course insofar as that he now only takes medication when he has a flare up (which is about once a month). [687] In my view, the whole of the out of pocket expenses claimed should be allowed.

     685. T 371.16 and T 393.45 – .47

     686. T 494.19 – .23

     687. T 98.45 – .49

484. The Plaintiff submitted an amount of $10,000 should be allowed for future medical and pharmaceutical expenses on the basis that the Plaintiff had incurred close to $9000 in the past four and a half years. The Plaintiff is aged 41 and will require medication and medical attention from time to time. [688] The Defendant made no allowance, on the basis that any back pain arose from a pre-existing degenerative back condition. This contention does not accord with the findings I have made. The Plaintiff’s evidence was that he spent between $10 and $20 per month on medication. I would allow $7000 by way of buffer for future medicals.

     688. T 606.42 – .46

485. In respect of aggravated damages particularisation of facts and circumstances as required by UCPR r 15.8 was not separately provided for in the Further Amended Statement of Claim. Following this being raised during submissions the relevant facts were referenced to those in set out in [69](i), (ii), (iiA), and (iii) [689] which read as follows:-

(i)   Loss of liberty - the plaintiff was unlawfully arrested, handcuffed whilst injured and detained while in the police transport vehicle.

(ii)   The plaintiff faced the fear and anxiety of a groundless prosecution against him until the matter was withdrawn and dismissed on 15 June 2012.

(iiA)   The plaintiff’s civil rights were abused as a consequence of his malicious prosecution.

(iii)   As a result of the bringing of the charges, the plaintiff was required to attend the Local Court at Manly and at the Downing Centre, causing him embarrassment, humiliation, outrage, insult, insult, damage to his reputation, loss of self esteem and apprehension. [690]

689. T 612.26 – .31

690. The Plaintiff submitted this included the unwarranted assault: T 612 .41 – .45

486. Particulars (ii), (iiA) and (iii) relate to malicious prosecution in respect of which I have found for the Defendant. Particular (i) is the only one in respect of which any claim can be sustained.

487. The Plaintiff’s evidence was that he had always respected police and thought of police respectfully. [691] However he felt, after the assault, not only had they used unnecessary force, [692] but he also felt “betrayed.” [693]

     691. T 41.48 – .49

     692. T 41.49 – .50

     693. T 41.45 and T 42.24 – .27

488. The relevant principles governing the award of aggravated and exemplary damages are conveniently summarised in State of New South Wales v Zreika by Sackville AJA:-

“[60] … Aggravated damages are given by way of compensation for injury to the plaintiff which, although frequently intangible, results from the circumstances and manner of the defendant's wrongdoing, while exemplary damages are awarded to punish and deter the wrongdoer: Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; 117 CLR 118, at 129-130, per Taylor J, cited with approval in New South Wales v Ibbett [2006] HCA 57; 229 CLR 638, at 646-647 [31],[33]. Aggravated damages are assessed from the point of view of the plaintiff, but an award of exemplary damages is based on the conduct of the defendant: NSW v Ibbett, at [34]; Gray v Motor Accidents Commission [1998] HCA 70; 196 CLR 1, at 7 [15], per Gleeson CJ, McHugh, Gummow and Hayne JJ. However, the same set of circumstances may justify an award of either aggravated or exemplary damages, or both: NSW v Ibbett, at 647 [33]. [34].

[61] Exemplary damages go beyond compensation and are awarded as a punishment to the guilty, to deter similar conduct in the future and to reflect " detestation " for the action: Lamb v Cotogno [1987] HCA 47; 164 CLR 1, at 8. Exemplary damages are awarded rarely and not every finding of fault warrants an award: Lamb v Cotogno. at 6 [12]. Nonetheless, such damages can be awarded in a wide variety of circumstances. Generally speaking, what is required for an award is "conscious wrongdoing in contumelious disregard of another's rights ": Gray v MAC, at 7 [14].

[62] Exemplary damages may be awarded against the State in respect of the conduct of police officers for whose torts the State is responsible: NSW v Ibbett; NSW v Landini , at [114]. The assessment of exemplary damages in a case of conscious and contumelious disregard of the plaintiff's rights by the police:

"should indicate ... that the conduct of the [police] was reprehensible, [and] mark the court's disapproval of it. The amount should also be such as to bring home to those officials of the State who are responsible for the overseeing of the police force that police officers must be trained and disciplined so that abuses ... do not happen."

Ibbett, at 653 [51], citing Adams v Kennedy (2000) 49 NSWLR 78, at 87, per Priestley JA.

[63] In a frequently cited passage, Brennan J in XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd [1985] HCA 12; 155 CLR 448, at 471, observed that the considerations that enter into the assessment of compensatory damages are quite different from those that govern the assessment of exemplary damages and that there is no necessary proportionality between the assessment of the two categories. Nonetheless, in NSW v Ibbett, at 647 [34], the plurality endorsed the proposition that it is necessary to determine both heads of compensatory damages before deciding whether or not a further award is necessary to serve the objectives of punishment, deterrence or condemnation. Their Honours also said (at [35]) that where the same circumstances increase the hurt to the plaintiff and also make it desirable for the Court to mark its disapprobation of the conduct, a single sum may be awarded. Such an award would represent both heads of damage and ensure that no element is compensated more than once.”[694]

694. State of New South Wales v Zreika [2012] NSWCA 37 at [60] – [63] (Sackville AJA with Macfarlan and Whealy JJA agreeing)

489. In State of New South Wales v Riley, Hodgson JA stated:-

“[130]   If, in addition to ordinary compensatory damages for injury to feelings, aggravated damages are to be awarded, then plainly it is important to avoid double counting; and the question arises, what can the additional aggravated damages be compensation for when injury to feelings have already been included in ordinary compensatory damages?

[131] In my opinion, the only principled explanation must be along the following lines. It is extremely difficult to quantify damages for hurt feelings. In cases of hurt feelings caused by ordinary wrong-doing, of a kind consistent with ordinary human fallibility, the court must assess damages for hurt damages neutrally, and aim towards the centre of the wide range of damages that might conceivably be justified. However, in cases of hurt to feelings caused by wrong-doing that goes beyond ordinary human fallibility, serious misconduct by the defendant has given rise to a situation where it is difficult to quantify appropriate damages and thus where the court should be astute to avoid the risk of under-compensating the plaintiff, so the court is justified in aiming towards the upper limit of the wide range of damages which might conceivably be justified.

[132] That approach is consistent with what Lord Reid said in Cassell & Co. Ltd. v. Broome [1972] UKHL 3; [1972] AC 1027 at 1085:

Damages for any tort are or ought to be fixed at a sum which will compensate the plaintiff, so far as money can do it, for all the injury which he has suffered. Where the injury is material and has been ascertained it is generally possible to assess damages with some precision. But that is not so where he has been caused mental distress or when his reputation has been attacked - where, to use the traditional phrase, he has been held up to hatred, ridicule or contempt. Not only is it impossible to ascertain how far other people's minds have been affected, it is almost impossible to equate the damage to a sum of money. Any one person trying to fix a sum as compensation will probably find in his mind a wide bracket within which any sum could be regarded by him as not unreasonable - and different people will come to different conclusions. So in the end there will probably be a wide gap between the sum which on an objective view could be regarded as the least and the sum which could be regarded as the most to which the plaintiff is entitled as compensation.

It has long been recognised that in determining what sum within that bracket should be awarded, a jury, or other tribunal, is entitled to have regard to the conduct of the defendant. He may have behaved in a high-handed, malicious, insulting or oppressive manner in committing the tort or he or his counsel may at the trial have aggravated the injury by what they there said. That would justify going to the top of the bracket and awarding as damages the largest sum that could fairly be regarded as compensation.

[133] This means that, if a court has awarded damages for hurt feelings as part of ordinary compensatory damages, the award of aggravated damages must only be for the difference justified by this approach, that is, an award of so much as is necessary to bring the damages up to the upper end of the available range. The approach also means, I think, that aggravated damages can be a matter of degree: the worse the defendant's conduct, the further from the centre of the range and towards the upper limit of the range the court may be justified in going.” [695]

695. (2003) 57 NSWLR 496; [2003] NSWCA 208; 504 – 505 [130] – [133] This was cited by Tobias JA in New South Wales v Delly (2007) Aust Torts Reports 81 – 920; [2007] NSWCA 303 at [80], [88] – [93] and [113]

490. The Defendant contended that the Plaintiff’s actions were provocative and in line with the decision in Whitbread v Rail Corporation New South Wales [696] which followed Fontin v Katapodis [697] aggravated and exemplary damages should not be awarded.

     696. [2011] NSWCA 13 at [33] and [68] (McColl JA) and [257] (Whealy JA)

     697. (1962) 108 CLR 17; [1962] HCA 63, 184 [4] (McTiernan J) and 187 [3] (Owen J)

491. The Defendant argued that Exhibit H incontrovertibly showed the Plaintiff’s attitude to police and security guards. It asserted that the Plaintiff was defiant and had the Plaintiff left the Shore Club when asked by security, he would not be in the situation in which he finds himself. In oral submissions, it was added:-

“If your Honour finds that the plaintiff was assaulted in assault terms, your Honour may award exemplaries but that would be the lower end of the scale. But your Honour, the High Court has made clear this - provocation will disentitled the plaintiff to an award for aggravated and exemplary damages, and we rely on Fontin v Katapodis for that proposition in the High Court. We have detailed - commencing at paras 361 all the way through to 381. I am not going to read from the cases. It is clear that in these circumstances, particularly when your Honour has got the benefit of exhibit H which demonstrates his conduct, the evidence of Church and Renshaw as to his conduct on the lower staircase, their evidence including Grime’s evidence as to the communications between him and his conduct, your Honour would find he provoked the conduct of the police which disentitles him, we say, to aggravated and exemplary damages.” [698]

698. T 667.50 – 668.12

492. The Plaintiff made no submission on this question.

493. In this instance I am satisfied that the Plaintiff was not lawfully arrested or detained. At the point where police asked the Plaintiff to leave the premises at the top of the stairs, I am satisfied that no explanation was given as to why the officers had forced the Plaintiff’s arms behind his back.

494. Both officers had an obligation to act in a measured way. I am not satisfied that the Plaintiff was in breach of the peace as the police had alleged. The actions of the officers at the entrance of the Shore Club involving the Plaintiff being forced to the ground, face first and then kneeing him in the back causing injuries, as well as forcing both his arms behind his back to facilitate his handcuffing, and ignoring his pleas that he had been hurt by their actions are noted. I am not satisfied that police informed the Plaintiff at that point that he was being detained for breach of the peace or for failing to leave the premises. Even if they did, there was no lawful basis for such a detention.

495. I accept that the Plaintiff was handled aggressively, handcuffed and his pleas for medical treatment were ignored. I am satisfied that the false imprisonment continued at that point, forcing the Plaintiff into the back of the vehicle whilst his hands were handcuffed so he could not control his fall and his movement in the vehicle as a consequence of not being secured whilst being driven around, added to his injury. Finally, when the Plaintiff was removed from the vehicle forcibly, he was taken to a location unfamiliar to him and was told to make his own way home. He was not taken to hospital as he had requested.

496. I accept that this police conduct was such that the Court should mark disapproval of it. The amount should bring home that those officials for the State that are responsible for overseeing the NSW Police Force, that police officers act in a way to ensure that these incidents do not occur. I accept that the Plaintiff’s actions at the commencement of his interaction with police were provocative and I have taken that into account. Cooperation on his part with the security officers could have avoided the situation that emerged. However, that in my view, does not justify the conduct to which he was subjected such as to disentitle him to aggravated and exemplary damages.

497. In the circumstances, I would award aggravated damages of $15,000 and exemplary damages of $20,000.

498. The Plaintiff is entitled to interest on past compensatory damages. The Plaintiff’s Schedule of Damages claims that in accordance with Practice Note 15.

499. Whilst the Defendant concedes an entitlement to interest in relation to compensatory damages, it was not clear from submissions that it had agreed to the rate proposed by the Plaintiff. In the circumstances, I will hear further argument in light of these reasons.

Heads of damage	Award
General damages for the four assaults	$90,000.00
General damages for the false imprisonment	$7,000.00
Out-of-pockets for past expenses	$8,796.23
Out-of-pockets for future expenses by way of buffer	$7,000.00
Aggravated damages	$15,000.00
Exemplary damages	$20,000.00
TOTAL	$147,796.23

ORDERS

500. The orders of the Court are:-

1. Verdict and Judgment for the Plaintiff in the sum of $147,796 (rounded down); and

2. I will hear from the parties as to interests and costs.

Endnotes

Decision last updated: 17 January 2017