Chen v State of New South Wales - [2012] NSWDC 126

District Court

New South Wales

Medium Neutral Citation: Chen v State of New South Wales [2012] NSWDC 126
Hearing dates: 16, 17, 18, 19, 20, 23, 24, 26, 27 April and 18 June 2012
Decision date: 17 August 2012
Jurisdiction: Civil
Before: Judge Peter Johnstone
Decision:
Judgment for the defendant

Catchwords: POLICE - allegations of wrongful arrest, false imprisonment, assault, battery, and malicious prosecution
Legislation Cited: Crimes Act 1900
Civil Liability Act 2002
Civil Procedure Act 2005
Inclosed Lands Protection Act 1901
Law Reform (Vicarious Liability) Act 1983
Law Enforcement (Powers and Responsibilities) Act 2002
Cases Cited: A v State of New South Wales [2007] HCA 10
Darcy v State of New South Wales [2011] NSWCA 413
Leachinsky v Christie (House of Lords (1946) 1KB 124
State of New South Wales v Williamson [2011] NSWCA 183.
Category: Principal judgment
Parties: Irene Rui Chen (1st Plaintiff)
Gong Xiang Xuan (2nd Plaintiff)
State of New South Wales (Defendant)
Representation: Mr C Evatt with Ms L Evans (Plaintiffs)
Mr M Spartalis (Defendant)
Friend & Co Lawyers (Plaintiffs)
(Mr Friend)
Makinson & d'Apice Lawyers (Defendant)
(Mr N Regener)

File Number(s): 2011/54439
Publication restriction: None

REASONS FOR Judgment

The plaintiffs' case

The plaintiffs in these proceedings are Ms Irene Chen and her mother, Ms Gong Xuan. They have brought these proceedings alleging wrongful arrest, false imprisonment, assault and malicious prosecution by two police officers, Joanna Jacques and Daryl Cleofe, in respect of events that occurred at Newtown on Thursday 21 February 2008.

It is alleged that Ms Chen was sitting in the office of the Laing & Simmons real estate agency on the corner of King and Dickson Streets, Newtown when some time after 1.00 pm the two police officers entered the premises, picked her up, took her outside, dragged her into a small side street and assaulted her. Ms Chen says she was punched in the back and knocked to the ground, then kneed in the back and handcuffed by Officer Cleofe. When Ms Chen's mother, Ms Xuan, came to her assistance, she was grabbed by Officer Jacques, pushed up against a fence and assaulted. Ms Xuan says she was choked by the throat and then pushed to the ground and handcuffed. After some six or seven further police officers arrived on the scene, Ms Chen says she was thrown into the cage of a police van by three or four of them.

After they were taken to the police station at Newtown, Ms Chen alleges she was further assaulted when she was thrown into a cell, then dragged out of the cell, striking her head on the doorframe, shaken, and dragged back into the cell where she was kicked in the legs.

It is further alleged by Ms Chen and Ms Xuan that they were wrongfully imprisoned and mistreated in the police station, detained for an excessive period of time, then falsely and wrongfully charged by the police with various offences for which they were later prosecuted, maliciously.

The police case

The police case is diametrically different.

The police version of events is that at about 1.00 pm on Thursday 21 February 2008 Ms Chen went to the office of the Laing & Simmons real estate agency in connection with a lease dispute, where she was asked to leave the premises by the property manager but refused to do so. The police were called. Officers Jacques and Cleofe responded to the call and went to the premises where they spoke to the property manager. The officers then directed Ms Chen to leave the premises, but when she continued to refuse to leave they escorted her outside onto the street.

Once outside, Ms Chen attempted to force her way back inside past the officers. In the course of doing so she struck one of them on the arm. She was then arrested for assault.

After her arrest, the officers attempted to walk Ms Chen to their police wagon, but she resisted, struggling and kicking, and screaming, "I will shoot you". The officers placed Ms Chen on the ground, on her stomach, and attempted to apply handcuffs to her wrists. When Ms Chen struggled and resisted the application of handcuffs, Constable Cleofe placed his knee in the small of her back to hold her down, while Senior Constable Jacques placed herself on her legs to stop her kicking. At this point, Ms Chen's mother, Ms Xuan, and her friend, Mr Forwood, came running up. Mr Forwood pushed Officer Cleofe off balance, and Ms Xuan pushed Officer Jacques off Ms Chen onto the ground.

Officer Jacques got up and attempted to restrain Ms Xuan and pull her away, but Ms Xuan broke free and went back to her daughter, who was writhing around on the ground, kicking her legs, screaming out, "I will shoot you", and pushed Officer Cleofe, who was kneeling down attempting to restrain Ms Chen.

Officer Jacques then managed to get hold of Ms Xuan, pull her away, and hold her up against a fence. Officer Cleofe held Ms Chen on the ground and told Mr Forwood to keep back, threatening him with his OC spray. Ms Chen called out to Mr Forwood to get a camera out of her handbag that was lying on the ground, and to take photos. Mr Forwood then took 5 photos with Ms Chen's camera (see Exhibit B). Meanwhile Officer Cleofe radioed for assistance.

Within a short time, four additional police officers arrived. Ms Xuan and Mr Forwood were also arrested and then taken to the Newtown Police Station.

Ms Chen was walked to the police van by officers Jacques and Cleofe and placed inside. In the course of doing so Ms Chen continued to struggle, kick and scream out, "I will shoot you". At one point she struck Officer Jacques in the arm with the point of the heel of one of her shoes.

Ms Chen was conveyed to the Newtown Police Station. Upon arrival shortly before 2.30 pm she lay on the floor of the van and refused to get out. Police officers removed her from the van, carried her inside the police station and placed her on the floor of the dock. One of the male officers moved her legs with the side his foot, out of the way of the door, and closed it. Shortly afterwards, an officer attempted to remove the remaining handcuff from her wrist, but she resisted and had to be taken out of the dock, where the handcuff was removed. She was then placed back in the dock, on the floor (see Exhibit N, in particular disc C98).

In the meantime, Ms Xuan was brought in and placed in the adjacent dock. After a few minutes Ms Xuan was allowed to join her daughter in her dock, then Mr Forwood was placed in the adjacent dock. Ms Chen continued to lie on the floor of the dock, complaining of pain in the abdominal area. Ambulance officers were called and arrived some 10 minutes later at about 2.45 pm, and attended Ms Chen, but found nothing wrong with her. They offered to take her to hospital but she declined.

At about 3.50pm a Mandarin interpreter arrived to assist Ms Xuan. Thereafter the plaintiffs and Mr Forwood were charged with various offences, and were later allowed to leave the police station.

In due course the charges against the plaintiffs came before the Local Court. Certain charges were withdrawn, then on 5 December 2008 the remaining charges were dismissed and the plaintiffs were acquitted.

The issues for determination

The plaintiffs' causes of action as finally pleaded and particularised, that the defendant was asked to meet, were set out in Exhibit T, as follows:

(1) Wrongful arrest of the first plaintiff by Officers Cleofe and/or Jacques by physically removing her from the real estate office of Laing & Simmons in King Street, Newtown; alternatively, by physically restraining her in Dickson Street, Newtown: ASC [2].

(2) Wrongful arrest of the second plaintiff by Officers Cleofe and/or Jacques by physically restraining her in Dickson Street, Newtown: ASC [2].

(3) False imprisonment of both plaintiffs by Officers Cleofe and/or Jacques commencing in Dickson Street, continuing through their transfer to Newtown Police Station, and during the time they were in the Newtown Police Station: ASC [2] - [2A].

(4) Assault and/or battery of the first plaintiff by Officers Cleofe and/or Jacques in Dickson Street, Newtown by punching her in the back, throwing her down on the ground, attacking her by kneeing her in the small of her back, and throwing her into the police van "like a ball": ASC [3].

(5) Assault and/or battery of the second plaintiff by Officer Jacques in Dickson Street by pushing her up against a fence, tearing her handbag from her, choking her by the throat, and throwing her to the ground: ASC [4].

(6) Assault and battery of the first plaintiff by Officers Cleofe and/or Jacques in the Newtown Police Station by throwing her into a cell "like rubbish", grabbing her, including in the chest area and dragging her out again, shaking her, then dragging her back inside the cell, in the course of which her head hit the doorframe, and she was kicked in the legs: [4A] - [4B].

(7) Malicious prosecution of both plaintiffs by Officers Cleofe and/or Jacques: ASC [7] - [8].

The defendant denies that Officer Jacques or Officer Cleofe wrongfully arrested or falsely imprisoned either plaintiff. It says that the plaintiffs were lawfully arrested, and that their arrest and detention was necessary to prevent a continuation or repetition of their offences and to ensure their appearance before court. The defendant denies that the officers assaulted either plaintiff, and did not use any more force than was reasonably necessary to execute their duties and prevent the escape of the plaintiffs after their arrest. The defendant denies that the plaintiffs were falsely charged or that they were prosecuted maliciously.

The defendant pleads alternative defences, including self-defence in the face of unlawful conduct (s 52 and s 53 of the Civil Liability Act 2002), and that the injury or damage alleged by the plaintiffs was caused by their own serious criminal conduct (s 54 of the Civil Liability Act 2002).

The question of credit is relevant to the determination of these issues having regard to the different versions of the events, which occurred over 4 years ago. It is, therefore, necessary to consider those various versions.

Ms Chen's version of events

Ms Chen told the court that she went to the office of Laing & Simmons on Wednesday 20 February 2008, the day before her arrest, where she discussed her lease with the manager, Mr Carl Mirabella. She said that an agreement was reached as to rent and she signed a piece of paper. Mr Mirabella told her to return the following day for the formal agreement.

Ms Chen said that about 12.00 noon the next day, Thursday 21 February 2008, she received a telephone call from Ms Joanne Farah from Laing & Simmons, who told her the landlord had changed his mind and the lease would not be continued, and she had to leave the premises within two days.

Ms Chen then went to Laing and Simmons at about 1.00 pm, where she asked for Carl. The receptionist said, "Carl is busy at the moment." Ms Chen said, "Okay, I'll wait for him because I need to get this thing cleared today". She was told, "Okay, you can sit there and wait." Ms Chen sat down in the waiting area.

She said that after sitting there quietly for about 10 minutes two police officers, a male and a female, came in, grabbed her from two sides and picked her up. She tried to tell them she wanted to see the manager, as she would not have a place to live because the real estate agency changed its word about the lease. She was trying to show the police the piece of paper from the previous day, which she had in her hand, but didn't get a chance to do so, because "they grabbed me out of the office".

Ms Chen said she asked the police officers not to touch her, but they took her outside and then dragged her all the way to a small side street, where she felt "like a huge power from my back, like... somebody, like, punched me from my back", and she was knocked to the ground by a trip or a knock "like you can't stand properly, like you just fall".

While Ms Chen was on the ground, her wrists were handcuffed. She was still holding the piece of paper in her hand, but one of the police officers took it and she never saw it again. Her handbag fell to the ground. She was crying, and said to the police something like, "It's not right, it's illegal. You cannot do this to me. I will sue you", a couple of times. She denied that she in fact said, "I will shoot you", and said she did not have a gun.

The next thing to occur was that she saw her mother and her friend, Mr Chris Forwood, running toward her. But the police pushed her mother towards a fence. Her mother called out "Help" in Chinese. Ms Chen asked Mr Forwood to take the camera out of her bag and take photographs, and he did (see Exhibit B).

Then six, or seven, or eight other police officers arrived. Ms Chen said she saw police officers push Mr Forwood, and she saw her mother pushed to the ground, with her underwear exposed as she sat on the ground.

Three or four police officers then took Ms Chen and threw her into the cage on the police vehicle, "I mean they just like, like I was like a ball, just threw me into the cage". They did so by holding her bottom, her back and her left and right arms, and probably her legs. She lay on the floor of the cage, because her stomach was really painful and she couldn't get up. She was left in the cage for 15 to 20 minutes then driven to the police station.

Ms Chen said that upon arrival at the police station she was dragged out of the cage and thrown into a cell "like rubbish", where she lay on the floor. After a couple of seconds, they dragged her out again, grabbing her by the clothes, close to her chest, and her head was bumped on the glass or something, of the wall or door. The police then shook her and dragged her back into the cell.

She was later charged, but was kept at the police station until about 8.15pm.

Cross-examination of Ms Chen

It was only in cross-examination that Ms Chen conceded that she had gone to Laing and Simmons on the previous day, Wednesday 20 February 2008, with her mother. (In fact, Mr Forwood was also with them.) Ms Chen did not speak to Carl Mirabella. She in fact spoke to Ms Farah. Ms Chen demanded to speak to Mr Mirabella, but he was not available. Ms Farah asked her to leave and she did. She denied, however, that she only left when Ms Farah threatened to call the police.

Ms Chen went back to Laing & Simmons the next day. She asked to speak to Mr Mirabella but was told, "Carl is busy and he does not have time to see you". She denied that Ms Farah again asked her to leave and denied that she in fact sat in the reception area of Laing & Simmons for about 40 minutes before the police arrived. Only in cross-examination did she concede that when the police arrived they did not come straight up to her, but first had a conversation with Ms Farah. She denied that the police officers then spoke to her for several minutes, during which they asked her to leave the premises on a number of occasions. She maintained that they gave her no opportunity to speak:

"I don't recall we had that much saying because I remember clearly I had, I didn't have much time to response or have like rights to talk because they were physically approach me, like very quickly. Because I was wishing to have some, like talk with the policeman, at least explain the situation but I didn't have any opportunity to do so."

It was put to Ms Chen that the officers took her by the arms and assisted her to her feet, when she began to struggle. She denied struggling, and said:

"I think I was restrained firmly and I didn't have, I can't do anything at that time. I couldn't do anything."

Ms Chen insisted that not only was she unable to struggle, or wiggle, she was lifted off the ground:

"I was off the ground but I was restrained, so it's not like gently or something."

It was next put to Ms Chen that once outside the front door she was released by the two officers, and then immediately turned round and tried to regain access into the premises, screaming loudly. Ms Chen said no, she was just talking to the police, and was unable to move:

"I never turned around; I couldn't, in fact. I couldn't do anything."

She denied attempting to go back inside, or swinging her arms around, pushing at the police and saying, "I will shoot you":

"Q. It was at that time that you hit Constable Cleofe's forearm with your right open hand?

A. No

Q. You then said to the police, "You can't do this to me. I will shoot you. I will shoot you."

A. No.

Q. You said that phrase a number of times, didn't you?

A. I said, "I will sue you" and before that I said, "What you did is not right and that's illegal and criminal."

It appears that Ms Chen also denied she was arrested at that point:

"Q. At the same time Constable Jacques said, "You're under arrest for assault. You're coming back with us."

A. No.

Q. So you deny, that any of the police said to you, "You are under arrest"?

A. I don't think they said that."

Ms Chen denied any aggression on her part, or that she ever said, "I will shoot you" to the police.

She insisted that she was punched in the back by the male officer while standing up:

"A. I was very clear. One person punched me from back, another person kick me in the leg. So that's how I am knocked down."

She denied continuing to struggle and resisting the officers once she was on the ground:

"Q. Whilst you were on the ground you were still wiggling your body around?

A No I couldn't."

She also said she was struck whilst on the ground:

"Q. What, are you suggesting that you were hit when you were on the ground as well, are you?

A. Yeah.

Q. Can I suggest to you that no police officer, male or female, struck you while you were on the ground?

A. It happened, I know so."

She denied lashing out with her legs:

"Q. All right. And whilst you were on the ground you were kicking your legs up towards the police?

A. No, no point I mean.

Q. That's when you kicked Constable Jacques in the arms with your pointed blue heels?

A. No, not possible."

She asserted that she was thrown into the police van by a few police:

"Q. And it was at that stage that Constable Jacques and Cleofe assisted you to your feet?

A. Assist?

Q. They helped you get off the ground, they lifted you from the ground, they took you to your feet, do you understand what I mean?

A. I've, no, I don't think they assisted me to my feet or something.

Q. Did you get up by yourself did you?

A. No, they, there was a few police came into me and grab me from, I don't know, maybe four parts of my body and then threw me."

Ms Chen went on to say that after arrival at the Newtown police station, her head was banged as she was taken out of the dock, then placed inside a second time.

"Q. Is that when you were being put back in the cell the second time, was it, that you banged your head?

A. I was banged it when I came out and I was also banged it when I go in, so

Q. The second time or the first time?

A. When I go in was the second time again.

Q. The second time?

A. Again."

It was only after viewing the CCTV footage from the police station that the allegation was made that Ms Chen was kicked by one of the police officers after she had been placed back on the floor of the dock following removal of the handcuff.

Even then, Ms Chen did not seem sure:

"Q. You make an allegation, that the police kicked you, when you were on the ground. Do you remember that allegation? Yes or no?

A. Maybe yes.

Q. Can I put it to you, that the police officer used his leg to move your leg in, gently?

A. I don't think so, I don't think he did that gently.

Q. Can I suggest to you, so we're clear, that he did not kick you, as you allege?

A. I don't want to argue with you on that."

She resiled from the suggestion that she was touched around her breast area:

"Q. Can I suggest this to you. You told his Honour that the police officers, when they picked you up off the ground, picked you up by the front of your clothing, and you indicated around your breast area?

A. I remember they pulled on my clothes, and stuff.

Q. Can I suggest to you, that when you were taken out of the cell, and when you were put back in the cell, no officer touched you in your upper chest region?

A. I don't remember which particular body part. I don't remember now."

Ms Chen gave no evidence-in-chief about racial slurs or personal slurs. These allegations only emerged in cross-examination:

"Q. Can I suggest to you that no police officer called you a "bitch"?

A. Yes. They also said, "They are only Chinese".

Q. Yes, can I suggest to you that no police officer said to you that phrase, made that statement that "They are only Chinese"?

A I remember that very clearly because I felt very hurt, I felt very sad about that."

Ms Xuan's version of events

Ms Xuan told the court that she went to the Laing and Simmons office on Wednesday 20 February 2008 with her daughter and Mr Forwood on two separate occasions. The first visit was at 10.00am. According to her version there had been earlier discussions regarding a rent increase, and they had therefore attempted to find alternative premises, unsuccessfully.

"The manager said that they want to put up the rent by $150 a week before they will let us continue to with the lease... So we went to look for a place to live. My friend looked for us for three weeks and still we were not successful in finding a place to live. And then I, at that time there were a lot of overseas students coming to Australia to study, it was a peak period and it was the beginning of an academic year and we were finding it very difficult to find place and so we went back to the real estate agent on the 20th at 10.00am."

Agreement was reached:

"The manager took...a piece of white paper and ask Irene to put down I agree to have the rent increased by $150 a week and ask her to put a signature on it."

Q. Did Irene do that?

A. Yes, she did.

Q. Then what happened then?

A. I told Irene, I told Irene get the manager to also sign his name on it because sometimes in the past he has agreed to something and then he change his mind... So I said get him to sign as well so then he won't change his mind again.

Q. Then what happened next?

A. They said, "The contract is not ready yet, can you come back at 4pm and then you can sign the contract then".

But when they returned at 4.00pm the manager said the landlord didn't want to rent to them and told them to move out on the 23rd. The manager then left the room. Ms Xuan said she was upset:

"I said to my daughter, 'How can the manager do things like that? In the morning he has agreed and now he has changed his mind'."

A female member of staff then came in:

"My daughter said what I said to her. And then she said, she said we have to lock up now from work and wait for us. Wait for a call from us at 12 tomorrow. 12 o'clock. She said, 'I will talk to the landlord and give you a reply tomorrow'."

The woman rang the next day:

"She said the landlord refused to rent to you and you must move out by 23rd. And then my daughter asked her for what reason? And then she hung up."

Mr Forwood then drove Ms Chen and Ms Xuan to Newtown:

"Irene went in but the two of us did not go in, only Irene went in because I said there's a language barrier between me and them. I can't speak English."

Ms Xuan and Mr Forwood waited in the car:

"After approximately 15 minutes I heard a very sad scream from my daughter, it's a very sad scream... I wanted to tell Chris that was my Irene's voice, but he also heard it anyhow, so he ran out of the car and I follow him and we didn't I didn't I left my handbag and everything in the car and just followed the direction of the voice."

When Ms Xuan arrived Ms Chen was already lying on the ground. Her arms were held behind her by a police officer who had a leg over her back, and her face was next to the ground. They were attempting to handcuff Ms Chen:

"Q. You were surprised. Did you run over to help?

A. I was thinking what kind of crime my daughter has committed for people to put the handcuffs on her so I asked my daughter what kind of crime have you committed...

Q. I want to say what I want you to say what you did. Did you go over and help your daughter or try and help your daughter? Just answer that yes or no? What is she saying?

A. I didn't have a chance."

Ms Xuan's version was that before she could do anything she was grabbed by Officer Jacques and restrained:

"The female police officer jumped up and grabbed my right hand and my left hand and then pushed me to where the fence was... I wasn't prepared for that so my two shoes came off. They were dragging and pulling and pushed me into there... This female police officer was very fierce. Not just that she grabbed hold my jewelleries like this, she also pushed against my chest here, the throat, so that I could hardly breathe, and you could see I could hardly even open my eyes. All of the strength of her hands were onto my chest. I was nearly feeled I could nearly be suffocated..."

She said she was then pushed to the ground:

"The police officer pushed me to the ground. That's why my kneecaps were injured.

Q. Did the police take you to the police station?

A. Yes. I was handcuffed with my hands behind my back..."

She complained that her underwear was exposed:

"Q. Could you see anything about your clothing while you were sitting on the ground?

A. Not that I was sitting on the ground...but the police officers were pressing on me and my underwear was exposed and I felt very ashamed."

Ms Xuan was also taken to the Newtown police station, where she was placed in the dock. Later she was allowed to join her daughter.

She made a number of complaints about her treatment at the police station, for example:

"Q. When you were in the police station were you taken to a toilet area?

A. Yes, I went there. I was pushed into the toilet area. The toilet actually was very dirty."

"I ask them to call the Chinese Embassy in Australia but they refuse to make that phone call for me."

"No food was provided to the plaintiffs during their long imprisonment at Newtown Police Station": ASC [9(b)].

Cross-examination of Ms Xuan

Ms Xuan was cross-examined. In relation to the events in Dickson Street, Newtown outside the Laing & Simmons office on 21 February 2008, Ms Xuan denied trying to push past Officer Jacques to get to her daughter, and denied pushing Officer Cleofe. The effect of her evidence was that she was grabbed by Officer Jacques and pushed up against the fence, as depicted in Exhibit B4, before she could do anything.

Her evidence was:

"Q. Ms Xuan, let me put this to you, you ran up and pushed the female police officer, Constable Jacques, and tried to push past her to get to your daughter.

A. You can see the photo. The female police was on the on the the direction that I couldn't even make the push.

Q. Do you deny touching the female police officer?

A. Not I deny; that is a fact.

Q. I put to you that you did push the female police officer and you pushed past her.

A. No. If no, I didn't. If you say, "Yes", you have to prove provide some evidence.

Q. You then went and pushed the male police officer, who was trying to handcuff your daughter Irene.

A. No. I was constrained. Both of my hands has been constrained against the wall. How could I do that?

Q. Then, after you had pushed the male police officer, the female police officer, Constable Jacques, took hold of your hands and walked you towards the metal fence.

A. That was not the fact. That is all that the police made up to try to avoid their wrongdoings. So, if police said that's what happened, they can provide evidence. The law is based on evidence."

Ms Xuan insisted that Officer Jacques was choking her:

"Because - because she - she's using both of her hands against the both of my hands, together, against my throat and I couldn't breathe... I couldn't even breathe. I couldn't even breathe. I felt like I almost being, you know, choked. You can try that way and you can feel whether your eyes are closed, and you can see the photos. From the photos and I was I was on bare feet and I couldn't resist. How could I say that? The photo can tell everything."

Ms Xuan was cross-examined about the allegation that Constable Jacques had torn her handbag from her (ASC [4]). It will be recalled that Ms Xuan in fact left her handbag in the car when she rushed off after hearing her daughter screaming. In cross-examination, Ms Xuan said:

"That was a bag that belonged to my daughter and, when my daughter was on the ground, the bag was on the ground and I picked it up. There was nothing wrong with that. Why they should tear the handbag..."

Ms Xuan also resiled from the allegation that she was thrown to the ground by Constable Jacques: (ASC [4]):

"Q. Can I suggest to you, madam, that you were not thrown to the ground by Constable Jacques?

A. I was it was not a female police. It was the male police. I was handcuffed and pushed on the ground.

HIS HONOUR

Q. Which male policeman?

A. INTERPRETER: I don't know which male police. I was pushed from behind."

Ms Xuan denied that once she was taken to the Newtown Police Station she continued to behave loudly and aggressively, and was uncooperative. The reality was that Ms Xuan was still refusing to tell the police her name at 6.00pm, some 2 hours after the interpreter had arrived:

"Q. I put to you that... you would not give the police your name?

A. Yes, how can I tell them?

Q. Through your daughter.

A. No, my daughter really couldn't help me because-

Q. Don't worry about what your daughter could do. You could have told, your daughter knows your name doesn't she?

A. Of course."

Officer Cleofe's version of events

Officer Daryl Cleofe gave oral evidence at the trial and was cross-examined about the events on 21 February 2008. He was a probationary police constable at the time. His written statement, as contained in the prosecution brief, was tendered (see Exhibit 27). His version of events differed in significant respects from those of Ms Chen and Ms Xuan.

He was on duty that day, on patrol with Officer Jacques in a police vehicle. They heard a police radio broadcast that a female was refusing to leave the Laing & Simmons Real Estate office at King Street, Newtown. They proceeded to the premises and went inside.

Officer Jacques spoke to the property manager, Ms Joanne Farah, who said that Ms Chen had been asked to leave the premises but was refusing to do so. The officers approached Ms Chen, who was sitting quietly on a couch, and introduced themselves. Officer Jacques informed Ms Chen that she had to leave the premises. Ms Chen did not respond, and continued to sit there.

Both officers asked Ms Chen to leave several times, but she still remained seated. The two officers then placed their hands on her arms, on either side, and assisted her to stand up. At this point Ms Chen started to cry and said, "You can't do this to me, you can't make me live on the street." Officer Jacques said, "Irene, you have been asked to leave. I empathise with your situation but you have to leave." Officer Cleofe also told her, again, that she would have to leave.

When Ms Chen still refused to leave, the officers took hold of her arms and began to move her towards the door. Ms Chen, however, began to struggle and scream loudly. The officers then walked Ms Chen to the door and outside into the street. Once they reached the street, they let go of Ms Chen's arms.

But Ms Chen then attempted to push past the police officers to get back inside, so they again took hold of her arms. She became highly aggressive, and swung her arms around, yelling and screaming. She struck Officer Cleofe in the arm with her hand. He then placed her under arrest for assault. The officers then proceeded to move her towards their police vehicle, which was parked further down Dickson Street. But Ms Chen continued to struggle, and started to kick out with her feet. She was yelling and screaming, and shouted out, "I will shoot you. I will shoot you. You can't do this. I will shoot you".

One of the officers then used an approved leg sweep to Ms Chen and brought her to the ground, and placed her on her stomach. Officer Cleofe then attempted to place handcuffs on her wrists, but she resisted and struggled, kicking her legs and rotating her body, screaming out, "I will shoot you." He told her to stop resisting, but she continued and he placed his right knee on her back to hold her. He then managed to apply the handcuffs onto her wrists, but was unable to turn the knob to fully secure them.

At this point Ms Xuan and Mr Forwood came running up. Officer Cleofe saw Officer Jacques attempt to restrain Ms Xuan, but she broke free and pushed Officer Cleofe in the shoulder before Officer Jacques was able to get hold of her again and move her away.

After Officer Cleofe regained his balance, he again held Ms Chen, who continued to scream and yell, and struggle. Officer Cleofe was kneeling down next to Ms Chen when Mr Forwood came up to him and yelled something like, "She's only little. You're being excessive." The officer told Mr Forwood to "Get back", but he ran forward and pushed the officer in the chest, causing him to fall over onto the ground. He stood up and took out his capsicum spray, and Mr Forwood backed away. The officer then radioed for assistance. He turned and saw Officer Jacques struggling with Ms Xuan.

Officer Cleofe turned back to Ms Chen, who was still struggling, kicking and screaming. He knelt down to hold Ms Chen when Mr Forwood came up again. Mr Forwood knelt down and spoke to Ms Chen. She told him to take the camera from her handbag, which was lying nearby on the ground. She said, "Get camera. Take photo for evidence". Mr Forwood then took Ms Chen's camera out of her handbag and took 5 photos (Exhibit B).

Back-up police officers arrived shortly afterwards. They took charge of Ms Xuan and Mr Forwood. Officer Cleofe then secured the handcuffs on Ms Chen and with the assistance of Officer Jacques walked Ms Chen towards their caged police vehicle. She continued to struggle and scream, and lash out with her legs. At one point she struck Officer Jacques with the pointed high heel of her shoe. Ms Chen was placed in the rear of the police vehicle, on her stomach.

Ms Chen was conveyed to the Newtown Police station, where she refused to get out of the police vehicle. Officer Cleofe and two other officers then carried her inside and placed her in the dock: (see Exhibit N).

Cross-examination of Officer Cleofe

Officer Cleofe was cross-examined. He acknowledged that he and Officer Jacques removed Ms Chen from the Laing & Simmons Office against her will. The officer did not recall that Ms Chen was holding a piece of paper in her hand, and denied taking it from Ms Chen: (see Exhibit N Photo1). He knew, however, that she was there in relation to a tenancy dispute, and agreed that when the police arrived she was sitting quietly on a couch.

He denied that he and Officer Jacques lifted Ms Chen off the couch, off her feet, rather they took her arms and assisted her to her feet. They did not formally arrest her, but walked her to the door.

The cross-examination was curious, in that it seemed to be accepted that Ms Chen had been asked to leave:

"Q. Throughout Ms Chen's presence in the estate agency, up until the time you and Constable Jacques lifted her up, she was sitting quietly on the lounge, is that right?

A. Yes.

Q. You asked her to leave?

A. Yes.

Q. And she continued to sit on the lounge, is that right?

A. Yes.

Q. Didn't move, correct?

A. No, that's correct.

Q. So you took one arm, upper arm, and Constable Jacques the other and stood her up, is that right?

A. Yes.

Q. That was against her will, is that correct? She didn't appear to consent to this did she?

A. No.

It was, however, put to Officer Cleofe that Ms Chen was not aggressive, did not swing her arms about, and she did not hit his right forearm with her right open hand, or otherwise assaulted him in any way. He disagreed.

It was further put to Officer Cleofe that Ms Chen never shouted, "I will shoot you", but that she was saying, I will sue you." The officer was very firm that she was saying, "I will shoot you".

"Q. You know perfectly well she was saying "sue you". Right?

A. I know perfectly well she was saying "shoot".

Q. She didn't say any other words to you that could be regarded as threatening, did she?

A. I thought the words "I will shoot you" were threatening enough."

It was put to the officer that Ms Chen was writhing on the ground on her stomach. He agreed, but did not notice whether she obtained scratches on her abdomen area.

It was next put to Officer Cleofe that when Ms Xuan came up, she did not touch him, or otherwise cause him to lose his balance. He disagreed. He also denied hurting Ms Chen or using excessive force to restrain her. He also disagreed with the proposition that Officer Jacques used excessive force to restrain Ms Xuan. He also denied throwing Ms Chen into the police van, or "bundling" her in, but agreed she was struggling at the time.

He was asked about the photos taken by Mr Forwood:

"Q. Would you agree that the photographs show you in a bad light?

A. No.

Q. The photographs of you?

A. No."

Officer Cleofe was also cross-examined about events in the Newtown police station. He acknowledged that he and other officers placed Ms Chen in the dock, but denied throwing her onto the floor, or putting her forcibly onto the floor.

Officer Jacques' version of events

Officer Joanna Jacques gave oral evidence at the trial and was cross-examined about the events on 21 February 2008. She was a police constable at the time. Her written statement, as contained in the prosecution brief, was also subsequently tendered (see Exhibit 27). She was the senior officer at the time, senior to Officer Cleofe. Her version of events also differed in significant respects from those of Ms Chen and Ms Xuan.

After responding to the radio broadcast, she and Officer Cleofe went to the Laing & Simmons Real Estate office at King Street, Newtown and went inside.

After speaking to the receptionist, Officer Jacques spoke to Ms Farah who told her that the young woman seated on a couch in the reception area was refusing to leave the premises. Her name was Irene. The Officer made some notes in her notebook to the effect that Ms Chen had been in the office the previous day with two other persons in relation to a tenancy problem: the lease had expired and Ms Chen wanted to increase the number of occupants from 3 to 5, but the owner had refused, and the negotiations had fallen through. Ms Chen had been asked to leave four or five times but had refused.

The officers then approached Ms Chen and introduced themselves, and asked her to leave. Ms Chen did not move, or say anything, but looked at the floor, clutching a big black handbag. Officer Jacques then said, "Irene, you have been asked to leave." Ms Chen responded, saying, "You can't do this to me. I am going to be homeless!" Her voice was raised and tears were coming from her eyes. Officer Cleofe then said, "You are going to have to leave as these people don't want you her". Officer Jacques said, "Irene, I empathise with your situation but you have to leave".

Officer Jacques said she then gave Ms Chen a long moment to understand that she was no longer welcome on the premises. When she still refused to move, the officers took hold of her arms and picked her up so that she was standing on her feet. Her body was very stiff, and she began to struggle as they moved her towards the door, some 5 metres away.

Once outside the premises, in the street, Ms Chen was released, but she pushed forwards towards the door, waving her arms violently and aggressively. An officer said, "You are not to go back in there".

But Ms Chen continued to struggle and shout, "I will shoot you" and to wave her arms around, in the course of which she pushed Officer Cleofe aggressively in the shoulder with her palm. She was placed under arrest, and Officer Jacques attempted to bring her to the ground with a leg sweep:

"HIS HONOUR:

"Q. Officer, I don't know what a leg sweep is. Can you explain it for me please?

A. It's a New South Wales Police technique that we use to control a violent, threatening person and we use it by getting one of our legs behind one of their legs in a quite quick manner and with an arm that we bring over towards their chest to try and place them on the floor."

Officer Jacques' attempted leg sweep was unsuccessful, and eventually Officer Cleofe was the one who brought Ms Chen to the ground and placed his knee on the small of her back. Officer Cleofe took out his handcuffs and started to place one handcuff on one of her hands. Ms Chen struggled, and kicked out with her legs. She was wearing shoes with pointy heels. Officer Jacques placed herself on Ms Chen's legs to stop her kicking.

At this point Mr Forwood and Ms Xuan came running up. She saw Mr Forwood push Officer Cleofe with both hands to his chest and knock him off Ms Chen. Ms Xuan came towards Officer Jacques and pushed her in the right upper shoulder, so that she lost her balance. She got up and grabbed Ms Xuan's hand and tried to hold her back, but Ms Xuan was able to break free and went up to Officer Cleofe and pushed him in the chest. Meanwhile Ms Chen was struggling and calling out, "I will shoot you, I will shoot you."

Officer Jacques then managed to get Ms Xuan under control and moved her a few metres away, pushing her up against a fence line.

In the meantime she saw Mr Forwood take a camera from Ms Chen's handbag and take some photos. She also radioed for assistance.

After the other police arrived, Officer Jacques went back into the Laing & Simmons office where she again spoke to Ms Farah, who told her that on the previous day Ms Chen had been accompanied by two other persons, and the police had been called when they all refused to leave. But they left before the police could arrive.

Officer Jacques then went back outside where she assisted Officer Cleofe place Ms Chen in their police vehicle. Ms Chen continued to struggle and kick, and scream out, "I will shoot you." In the course of being put in the van, Ms Chen kicked Officer Jacques in the arm with one of her pointy heels.

Cross-examination of Officer Jacques

Initially, Officer Jacques was cross-examined along the lines that Ms Chen had only started to shout and act aggressively once outside the Laing & Simmons office, in the street, although she had started crying inside. She agreed that Ms Chen was removed against her will. It was put to Officer Jacques that Ms Chen was not given a chance to get up of her own accord. The officer disagreed.

"Q. You didn't even give her a chance to get up herself did you?

A. That's incorrect."

Curiously, as with Officer Cleofe, it was not put to Officer Jacques that Ms Chen had not been asked to leave the premises, indeed it was implicit from the form of the questions that she had been asked to leave.

The officer did not recall that Ms Chen had a piece of paper in her hand.

Officer Jacques was also cross-examined at length about what Ms Chen was screaming out. The officer maintained that Ms Chen was shouting, "I will shoot you":

"Q. You knew perfectly well she was saying, 'You can't do this. I will sue you. I will sue you'?

A. That's incorrect."

Turning to events in Dickson Street, Officer Jacques was cross-examined about her handling of Ms Xuan. She denied, however, using excessive or inappropriate force:

"Q. Did you attempt to choke Ms Xuan?

A. No, never.

Q. Did you hold her forcibly against the fence?

A. With reasonable force I held her against the fence, yes.

Q. With excessive force?

A. Never.

Q. Did you try and choke her?

A. Never.

Q. Did you try and throw her down to the ground?

A. No, I never.

Q. Did you try and trip her up?

A. No, I didn't."

She also denied using unreasonable force on Ms Chen as she was placed in the police van, but confirmed that she had been kicked:

"Q. When Ms Chen was being put in the police van, she didn't kick anyone with her legs or feet. Do you agree with that?

A. No. She did."

It was put to Officer Jacques that Ms Chen had not assaulted Officer Cleofe, rather it was the officer who used excessive force against Ms Chen:

"Q. You did not see Ms Chen assaulting or hitting Constable Cleofe?

A. Yes, I did.

Q. Constable Cleofe, in your observation, assaulted Ms Chen?

A. He never assaulted Ms Chen."

Finally, it was suggested to Officer Jacques that Ms Xuan had not assaulted her, or hindered her in the execution of her duty, and that she had acted unreasonably and maliciously in prosecuting Ms Xuan, and Ms Chen, because the allegations against them were false. The officer disagreed.

"Q. Will you agree that you acted unreasonably and maliciously in your prosecution of Ms Chen and Ms Xuan?

A. No, I never.

Q. And in your conduct towards them at the, in the lane and in the police station?

A. Never."

Ms Farah's version of events

Ms Farah was the Property Manager at Laing & Simmons at the time of the relevant events. She gave evidence about the events on Wednesday 20 and Thursday 21 February 2008.

Ms Farah told the court that Ms Chen and her mother had come into the office at about 4.30pm on 20 February 2008 in connection with the renewal of a lease. An issue arose as to the number of people to reside at the premises. Ms Chen wanted an additional 2 persons.

Ms Farah told Ms Chen she would have to speak to the owner. She asked Ms Chen to ring the next day so she could give her the answer.

This was apparently unacceptable to Ms Chen and her mother, who started yelling at her, and refused to leave when asked to do so:

"Q. You said, "they were insisting", that's Ms Chen?

A. Yep.

Q. And her mother, Ms Xuan, XUAN?

A. That's right.

Q. And how were they insisting?

A. They were just yelling at me saying "We want to add another person to the lease" and you know, because, I don't remember exactly but I remember a lot of yelling and screaming.

Q. Would they leave?

A. No, they refused to leave and we threatened to contact the police as well on that night.

Q. Did you say that to them?

A. Yes.

Q. You said before they were screaming and shouting?

A. Mm hm.

Q. Were they loud?

A. Yes."

They left, however, before the police arrived.

The next day, Thursday 21 February 2008, Ms Chen came into the office at about 1.00pm, without an appointment, and asked to see the principal, Mr Carl Mirabella. Ms Farah told her that Mr Mirabella was not available. Ms Chen said she would wait for him and sat down on the lounge in the reception area. Ms Farah rang Mr Mirabella, who told her he was not coming into the office and to ask Ms Chen to make an appointment. Ms Farah went over and told Ms Chen she should make an appointment.

Ms Chen insisted she would stay and wait. Ms Farah, "You can't wait till he arrives because we don't know what time he's coming." Ms Chen insisted she stay, so Ms Farah said to her, "Well, I'll have to contact the police if you don't leave."

Ms Chen started to cry, but did not leave. Ms Farah then called the police.

After some ten minutes or longer, two police officers arrived and spoke to the receptionist. Ms Farah then spoke to the police and explained the situation to them:

"Q. What did you say to the police?

A. Well, I explained to them that she refuses to leave our office and she came in the night before, created disruption, and we were just concerned that there was going to be further disruption in our office, as she wasn't planning on leaving."

The police then went up to Ms Chen and spoke to her calmly. She then she started yelling and screaming:

"Q. Did you hear anything that the police said to her?

A. No. I went and sat back at my desk as they left as they were taking her out of the office."

Cross-examination of Ms Farah

Ms Farah was cross-examined. Firstly she was asked about the nature of the tenancy dispute. She disagreed the dispute concerned an increase in rent. She denied that she told Ms Chen to come back the next day. She said she was going to follow it up the next day with the landlord and the principal, because she wasn't handling the matter. She was just asked to sign a lease with Ms Chen, but that had fallen through over the numbers.

Ms Farah was then asked about how the police treated Ms Chen. She denied that they were forcible:

"Q. The police they picked her up, they grabbed her one on either side of her body, one arm and the other arm. Is that right?

A. That's right.

Q. Pulled her up?

A. No, I don't recall seeing that.

Q. What do you recall seeing?

A. I recall them opening the door and they - she was they were walking out the door with Irene.

Q. Yes, frog marched her out?

A. I don't know what you mean by that.

Q. Forcibly walked her out the door?

A. I don't think it was forcibly, no. They were both walking her out of the office.

Q. But each one had part of her arms?

A. Yeah, but there was no force on it."

Mr Forwood's version of events

Before examining the evidence of Mr Forwood as to the relevant events, it is appropriate to note that he was a reluctant witness, who only gave evidence under compulsion, pursuant to a subpoena issued at the request of the plaintiffs, and served on Mr Forwood during the currency of the trial.

Prior to service of the subpoena, Mr Forwood had spurned various requests by Ms Chen to attend voluntarily at court to give evidence. Not withstanding his apparent hostility towards Ms Chen, no application was made to cross examine him, although it emerged that he had made a statement a few days after the incident that contradicted certain of his oral evidence:

"HIS HONOUR: Mr Evatt, I'm not going to allow you to crossexamine the witness.

EVATT: No, I don't want to.

HIS HONOUR: You can make an application.

EVATT: Can I just avoid it and see what happens. See how far I'm going."

Mr Forwood confirmed that he had been present on the first visit to Laing & Simmons on Wednesday 20 February 2008, and that he drove Ms Chen and her mother to the office the next day, Thursday 21 February 2008.

His evidence-in-chief was limited to the events on the second day. After waiting with Ms Xuan in the car, some distance away from the Laing & Simmons office, for 20 to 30 minutes, he heard screaming and yelling. He recognised it as Ms Chen's voice. He immediately got out of the car and raced up the laneway where he saw the male police officer trying to wrestle with Ms Chen. She was facedown on the cement and the police officer had his knee on her back and was trying to handcuff her. He knelt down on the same level as the police officer and said, "What do you think you're doing? I think you're being extremely excessive." The officer responded, something like, "This is police business. Step away, step away."

"And then I think I pushed him off her and then he threatened me with the weapon that he had. I initially thought it was a gun but it was just a pepper spray. But he warned me and then I stepped back and then Irene said, 'Get the camera out of the bag', so I looked for the bag and got the camera out of the bag. And then I wasn't too sure how to use the camera actually... And then I turned the camera on and I just faced it towards Irene and the police - the male police officer and I took a couple of photos"

He in fact took the three photographs of the male officer and thereafter took two photographs of the female police officer and the mother.

Cross-examination of Mr Forwood

Mr Forwood was cross-examined. Firstly, he was asked about the visit to Laing & Simmons the previous day, with Ms Chen and Ms Xuan, her mother. He described the tenancy dispute as follows:

"I can't remember the actual words but the topic was that, something along the lines that she was willing to pay more money to stay on the premises and she was arguing that they only wanted to kick her out of the premises so that they could raise the rent. So that they could occupy the premises, the landlord of that premises could own, to reoccupy it and do what he wants with it."

Mr Forwood agreed they were asked to leave, and that they had been threatened with the police if they didn't leave.

He was then cross-examined about events that occurred the next day in the street outside the Laing & Simmons office. He was not sure if he saw the male officer with one knee or two knees on Ms Chen's back. But he did not see him strike Ms Chen. She was struggling and kicking her legs as the officer was trying to place the handcuffs on her. Mr Forwood pushed the male officer off Ms Chen.

"Q. Was it hard? A hard push?

A. It was a good, a good push, yes."

He saw the female police officer try to block Ms Xuan's path and then they started to wrestle. But Ms Xuan pushed past the female police officer and went up to the male officer:

"Q. And she gave him a push as well, didn't she?

A. I'm not clear on that one, to be honest."

Mr Forwood was cross-examined about what it was Ms Chen had screamed at the police. He was adamant she screamed, "I will shoot you":

"Q. Talking of shooting and things like that, did you hear Ms Chen call anything out?

A. Yes, I did.

Q. What did she call out?

A. She said, "I will shoot you. I will shoot you." She said it twice.

HIS HONOUR

Q. Spell that please?

A. SHOOT.

SPARTALIS

Q. You're a hundred per cent sure that's what you heard?

A. Clear as a bell.

Q. Did you ever give a written account that you've signed anywhere else saying that Ms Chen said, "I will sue you?"?

A. Irene asked me to write a statement and I wrote a handwritten statement regarding the events of that day and because she was pursuing legal action I I said in my statement that she would sue just to comply with what Irene wanted.

HIS HONOUR

Q. When did you write this statement?

A. It would have been probably one or two days or even three days after the actual arrest."

Mr Forwood did not see Ms Xuan on the ground. He did see her sitting on the side of the kerb at one stage, but did not see her underwear exposed.

Nor did he hear the police make any racial or other derogatory remarks about Ms Chen.

The submissions made on behalf of the plaintiffs

Counsel for the plaintiffs provided an Outline of Submissions dated 8 May 2012, that were supplemented by oral submissions on 18 June 2012. What follows is a summary of some key submissions.

The basic thrust of the plaintiffs' submission was that the police case was a fabrication on the part of Officers Jacques and Cleofe (T 1008):

"We submit that these two police officers have put their heads together and really made up a story, destroyed, or what they think they did, tried to destroy material evidence which would go against them. The conduct is really despicable and there should be good exemplary damages and good aggravated damages.

HIS HONOUR: You just stated the essence of your whole case, didn't you? What you say is that these two police officers put their heads together, made up a story and destroyed evidence, tried to destroy evidence to the contrary in effect. That's your whole case really, isn't it?

EVATT: Yes, your Honour, of course it is and I am comforted by the fact that they could have easily called other police witnesses to back them up which they didn't do. Had they done that, that sort of submission may not have been open to me but how do they explain not calling these other police officers. It's just absurd, they had to call them."

Thus, heavy reliance was placed upon the principle in Jones v Dunkel by reason of the defendant's failure to call witnesses that it was asserted were material and who could have given crucial evidence. These potential witnesses included Sergeant Matt Guthrie, Constable Robert Camer, Constable David McKenzie, Senior Constable Justine Wilson, Constable Jayden Borg, "and other police whose identity is not known to the Plaintiffs".

It was submitted that Officers Jacques and Cleofe "were not supported by other police who were at the scene and at the police station and who saw what happened and heard what was said", but no explanation was provided as to why such "essential" witnesses were not called:

"If the Plaintiffs were not telling the truth it is extraordinary that the Defendant did not call what could have been corroborative evidence by other police officers to back up Constables Jacques and Cleofe. However, they have been left hanging out to dry."

The plaintiffs rely heavily upon the assertion that one or other of Officers Jacques and Cleofe deleted the photographs taken on Ms Chen's camera by Mr Forwood in the street after Ms Chen was removed from the Laing & Simmons premises (Exhibit B). The assertion is that they deleted the photos from her camera at the Newtown Police Station. It was submitted that this was done deliberately, with a view to destroying inculpatory evidence, because the police officers both knew the photographs showed them manhandling the plaintiffs, objective evidence that the plaintiffs were assaulted:

"Now, whatever we can say about these photographs, they're material evidence. The camera and the photographs would be material, important evidence in this case yet at the police station Constable Jacques takes the bag, takes the camera out of the bag; instead of handing it Sergeant Vlachos and saying, look here, these photographs contain important evidence, they're photographs that were taken of us during the arrest; she takes it into another room. Constable Cleofe follows her and it's obvious that she's deleted the photographs; they couldn't have gone into thin air. I'll just come back to this in a moment but what they should have done was to hand that camera containing the photographs to Sergeant Vlachos and to say, this is material evidence, this will be important evidence in any prosecution and should remain in the custody of the police and looked at by a relevant police officer or expert." (T 987)

Another plank relied upon by the plaintiffs to discredit the police version is the submission that there was insufficient time for the events they described to have occurred:

"If as probable the police officers were in Laing & Simmons for 5 minutes then this only allows 4 minutes (until 13.51) for the police reinforcements to arrive. That may have taken them 2 minutes. This leaves 2 minutes for the events in the laneway being just time for Constable Cleofe to throw Ms Chen to the ground and Constable Jacques to push Mrs Xuan against the fence. There was no time for the long and protracted alleged misconduct by the two as described in detail in JS 15-31 and CS 11-25."

A further plank in the plaintiffs' attack on the police officers credibility is the suggestion that Ms Chen was dragged into a side street, some 30 metres away from the door to the Laing & Simmons premises, but without any explanation as to how they got to a position so far away. It was submitted for the plaintiffs:

"So they take her outside the premises. What they don't explain and what's inexplicable as to why these events of the assault occurred 30 metres away from the door. I could understand if it happened just outside the door but there's no issue; the photographs are in and the measurements are agreed to. This electrical box and the alleged assaults or fracas occurred on the other side of the box away from Laing and Simmons 30 metres. How did the plaintiff, how did Ms Chen get there? What happened? We don't know. Certainly I have allowed four minutes or approximately four minutes, even five for what happened in Laing and Simmons; could hardly be less. Now, the actual assault; first of all the photographs. Ms Chen is taken by the two police officers to a position about 30 metres from the Laing and Simmons door, front door where she's observed by her mother, Ms Xuan and Mr Forwood. They both get out of the car, the mother first to go to Ms Chen's rescue. They certainly didn't go there to join in any assault on the police." (T986)

The next submission made on the plaintiffs' behalf concerns the evidence about what Ms Chen was shouting at them in Dickson Street. The police case is that she shouted, repeatedly, "I will shoot you." The plaintiffs' case is that Ms Chen was in fact shouting, "I will sue you". Whilst it does not appear to be disputed that Ms Chen was shouting and screaming at the police, what is suggested is that the two police officers deliberately conflated the phrase "I will sue you" into "I will shoot you" to further justify their actions. And this was compounded by the failure to call the other officers who came onto the scene who might have been expected to corroborate the "I will shoot you" assertion. The problem with this submission is that Mr Forwood was very clear about what Ms Chen was shouting: "I will shoot you". For reasons to which I will come later, Mr Forwood's version of events is to be accepted as reliable.

The next submission made on the plaintiffs' behalf concerns the injuries as depicted in the photographs subsequently taken of Ms Chen's body (Exhibit G). It was contended that these photographs, together with the evidence from the hospital and ambulance records, corroborated Ms Chen's account of events. In my view, however, these photographs were more corroborative of someone struggling and writhing around on the ground, as the police recounted, than someone lying passive and unresisting on the ground.

The final cluster of submissions made on behalf of the plaintiffs as a basis for rejecting the evidence of the two police officers involved references to discrepancies in their evidence, between their respective versions, and between their evidence and some of the written evidence from other witnesses. These included references to the point of time at which Ms Chen is alleged to have kicked out with her feet, when she was or was not struggling, whether she was still screaming or shouting when she was brought into the police station, or had calmed down by then, and so on. In the context of the totality of the evidence and having regard to the frailty of human memory, these matters were not indicative of fabricated evidence.

The submissions made on behalf of the defendant

Counsel for the defendant also provided an Outline of Submissions, in two Parts. These were similarly supplemented by oral submissions on 18 June 2012. What follows is a summary of some key submissions made on the defendant's behalf.

For its part, the defendant's central theme was that the evidence of Ms Chen and Ms Xuan was unreliable and should not be accepted in preference to the police evidence.

In the case of Ms Chen, it was submitted that she should not be accepted by the court as a witness of truth on her oath.

It was submitted, firstly, that Ms Chen was an evasive witness, indeed that she was on occasions "deliberately obstructive" in her answers to questions, and was prone to "assess the evidence already given to prepare in her mind the least damaging answer rather than simply telling the truth" and when caught out, would attempt to dissimulate:

"Chen repeatedly gave answers such as "possibly", "maybe" or "I don't remember."

"It is submitted that Chen's evasive answers were deliberately obstructive. An example of a particular kind of non-responsive/evasive answer was Chen's choice of the words "should be", which she used regularly when she could no longer escape the contents of a document put to her, which she would prefer to deny knowledge of, but seemingly understood that an outright denial would be an obvious lie."

"Chen also attempted to delay answering questions (or deny knowledge of documents that she had received, reviewed and agreed to) by providing irrelevant commentary on the documents."

A number of examples are set out in the written submissions of this type of conduct in the witness box.

It was submitted, secondly, that Ms Chen's evidence was attended by a lack of candour. For example, she failed to disclose, even to her own legal representatives, that she was being treated by Ms Jeanne Abelson. She was also selective and dissimulated in relation to the histories given to various medical practitioners. The striking example was her failure to disclose the episodes the subject of these proceedings to the psychiatrist examining her for the purpose of a motor accident claim, and failed to disclose that motor accident to the psychiatrist examining her for the purposes of this claim. The complaints of sequelae from each incident, however, were virtually identical, including depression and anxiety.

It was submitted, thirdly, that Ms Chen exaggerated and tailored her evidence to suit her case, in the light of available documentary or other evidence:

"For instance, Chen complained of hitting her head in the dock at Newtown Police station. The medical evidence does not support the new complaint made 4 years after the event despite numerous opportunities to raise the allegation. For instance, there is no record made by the ambulance officers of any head injury, there is no record made by Vlachos of any complaint, and the RPAH records reproduced above, expressly deny head trauma. The falsity of her claims is therefore supported by the documentary evidence. It is submitted that Chen fabricated the allegation of hitting her head after having watched the CCTV footage in order to bolster her claim. Such fabrication is consistent with her pattern of dishonestly in her evidence."

It was submitted, similarly, that Ms Chen exaggerated the extent of her injuries, and that consistent with the ambulance and hospital records, her injuries were in fact superficial and minor.

Another example of her tendency to dramatise and embellish was her use of language:

"Exaggerated allegations are consistent with the language that Chen employs. For instance she considers the world to be an evil place. There is no relevant cultural explanation for use of the word. The use of such language is an obvious attempt to garner sympathy and to paint the police conduct as wilfully malicious in the absence of independent evidence to that effect."

Then there were the extravagant phrases used by her, such as the police throwing her into the police van "like a ball", and throwing her into a cell "like rubbish", and her allegations of racist and derogatory remarks.

It was submitted that Ms Chen obfuscated in connection with the large amounts of money in bank accounts in her name and was selective production of financial records.

"Chen said she did not remember how much money she had in her bank account... However, Chen had at least $100,000.00 in her bank account as early as 2006. When shown Exhibit 1 her immediate response was that she could not remember the money... she later admitted that she had approximately $300,000.00 in unidentified bank accounts in or around September 2008."

It was also submitted that Ms Chen lied about not being able to afford to re-pay her solicitor, Robert Mulley, following his successful defence of her prosecution by the police:

"Despite having an abundance of funds, Chen failed to pay her solicitor, Robert Mulley...an inference may be drawn that she had and has no intention...to pay Mr Mulley from the fact that she had (and continues to have) the money..."

In the case of Ms Xuan, it was submitted that she also was a witness who could not be relied upon as a person who had attempted to assist the court:

"Xuan was a non responsive witness who gave long winded answers or answers of no relevance that were often inconsistent with her pleaded case."

It was submitted that she also exaggerated, was obstructive, was inconsistent, and tailored her evidence to suit her case and that of her daughter:

"That Xuan was passionate about her daughter was obvious from her in court behaviour, including standing and talking during Chen's evidence and also taking documents into the witness box without leave and then refusing to hand them over to the court officer or her own legal representatives."

Particularly telling was her exaggeration in relation to the episode when Officer Jacques was holding her up against a fence, suggesting that the officer had tried to strangle her, when on any objective assessment of the photographs in Exhibit B, that was not what happened.

Ms Xuan also gave factitious evidence about the bank accounts, her handbag (which she in fact left in the car), her employment and loss of income, and her reasons for being in Australia. She was also obstructive and uncooperative in the police station, failing to provide her name, and then unsuccessfully attempting to explain away her failure to do so by reference to the timing of the arrival of the interpreters.

Finally, it was submitted that the evidence of the plaintiffs was directly contradicted by other witnesses, including Mr Forwood, and Ms Farah, who on any assessment must be regarded as independent.

Findings and conclusion on credit

The direct conflicts between the evidence of the plaintiffs and the other witnesses on most of the key matters concerning the events on 21 February 2008 render it necessary to consider the credibility of the respective protagonists.

When assessing credibility it cannot be ignored that during the course of the trial Ms Chen, in particular, was inexcusably evasive. She regularly procrastinated or was specious in the way she responded to questions, sometimes even to simple, straightforward questions.

In this regard I agree with the general thrust of the defendant's submissions concerning Ms Chen's evidence, in particular:

"Although behaviour, tone of voice and demeanour cannot be readily ascertained by reference to the transcript, Chen's fury and anger in the witness box was at times palpable and would have been observed by the court."

The manner in which Ms Chen gave her evidence was largely the reason her cross-examination took so long and the trial became so drawn-out and protracted, and at times digressive.

She was particularly evasive and tendentious in her evidence about the inconsistent histories she gave to the psychiatrists, and about the large sums of money in her bank account.

I do not, however, rely solely on her demeanour, appearance and conduct in court as the determinant of her unreliability as a witness. Rather, I have sought to rely predominantly on contemporary materials, objectively established facts, independent support from other witnesses, and the apparent logic of events.

Nor do I rely on the allegations that Ms Chen repeatedly screamed and shouted, "I will shoot you" at the two police officers. It is true that Mr Forwood gave evidence that this was what she said. He was adamant that she used the words, "I will shoot you. I will shoot you." I pressed Mr Forwood about his recollection on this:

HIS HONOUR

"Q. Spell that please?

A. SHOOT."

I have no reason to doubt Mr Forwood's sincerity as to his recollection, but at the end of the day I could not comfortably satisfy myself that the police officers and Mr Forwood were not genuinely mistaken about the words Ms Chen used. In the same sense, I was similarly unable to comfortably satisfy myself that the two police officers deliberately deleted the photos from Ms Chen's camera. So neither of these allegations played a part in my assessment of credit.

In one sense it is irrelevant whether Ms Chen was actually screaming, "I will sue you", because what is more important is the fact that she was yelling and screaming at them, a fact that is more consistent with the police version than hers, and that they believed in the heat of the moment, that she was threatening to shoot them. For all they knew, given the violence she employed, she may well have had a gun. These matters are not to be assessed with the luxury of calm retrospective analysis, in the light of subsequently acquired knowledge.

Similarly, I have not taken account the allegation that Ms Chen attempted to bribe Mr Forwood to give favourable evidence on her behalf. It is true that she offered him money to come to court willingly, but the cross-examination was insufficient for me to conclude that the offer extended beyond reimbursement of expenses incurred or the loss of any wages as a result of going to court.

Nor do I rely on the photographs of Ms Chen's injuries to make any assessment of credit, either hers or that of the police officers. As I have already said, the photographs were consistent with Ms Chen struggling and writhing around on the ground, as the police recounted, not of someone lying passive and unresisting on the ground. The bruise on her back is consistent with Officer Cleofe placing his knee on her back to restrain her while attempting to apply handcuffs.

Other than the conflict as to whether Ms Chen was screaming "I will shoot you" or "I will sue you", it seems to me that Mr Forwood's evidence was equivocal in terms of corroboration, given that he arrived after the arrest of Ms Chen. What he saw was largely in accordance with the photographs he took (Exhibit B). It is true that he complained to the police officers about their treatment of Ms Chen, saying things like, "You're being excessive. She's only little. Let her go". But he wasn't there to witness her behaviour before she was subdued, brought to the ground and handcuffed.

Similarly, what was it that the other police officers could or should have given evidence about, other than the "I will shoot you" assertion? For my part, the Jones v Dunkel submission was specious, and speaks more about the weakness of the plaintiffs' case than any deficits in the evidence called on behalf of the police.

As submitted on behalf of the police, Ms Chen's evidence was exaggerated and totally lacking in candour. It is inconceivable, for example, that a woman with her high level of intelligence could have misunderstood the nature of the inconsistent histories given to the psychiatrists. Her conduct in this regard demonstrated to me that here was a person capable of misrepresenting the truth for the purposes of personal gain. Likewise, the failure to pay the solicitor's fees, when there was plenty of money to do so, indicated a capacity for deceit.

The only independent witness was Ms Farah, and her evidence totally contradicted that of Ms Chen, most particularly the fact that Ms Chen was asked to leave the premises, and that the police officers did not go straight up to Ms Chen on arrival. Rather they first spoke to Ms Farah, then went to speak to Ms Chen.

One of the more curious aspects of Ms Chen's case is that it seems to be accepted, at least by those representing her, that she was asked to leave the premises, not just by Ms Farah but also by the police. For example, in the written submissions, the following propositions are put:

"Constables Jacques and Cleofe arrived at Laing & Simmons at 1.42pm...

Ms Chen was sitting quietly and according to the police officers, was not acting in an offensive manner... Constable Cleofe said to the First Plaintiff "You are going to have to leave as these people don't want you here" Constable Jacques said, "Irene, I empathise with your situation but you have to leave"...Ms Chen was not warned that she could be arrested for trespass or for being on inclosed lands and if she did not leave she would be liable to have a penalty notice issued against her (section 10, Inclosed Lands Protection Act) or be arrested...

At its highest Ms Chen may have known that she was unwelcome at Laing & Simmons and should leave. She would not have known she may have been in breach of the Inclosed Lands Act. She would not have known that she was arrested for a breach of that Act and probably believed the police were agents of Laing & Simmons who were entitled to remove clients on request. Had Ms Chen been informed by Constables Jacques and Cleofe she was in breach of the Inclosed Lands Act she might have gone more willingly and the ensuing altercations and subsequent second arrest may not have taken place."

These submissions concede that Ms Chen was not only asked to leave the premises, but was asked in a polite and sympathetic manner.

Once the totality of events within the Laing & Simmons office and outside are examined in their entirety, the falsity of Ms Chen's account is exposed. The improbability that the police would have escorted Ms Chen from Laing & Simmons without first asking her to leave is conceded. The suggestion that she was "frog-marched" to the door is the product of hyperbolic advocacy. It is improbable that Ms Chen was then dragged down the street. The suggestion that she was dragged into a side street was a further example of the exaggerated portrayal of the events by and on behalf of Ms Chen and her mother. More probably, Ms Chen was escorted outside and let go. There was no reason for a gratuitous assault on the plaintiff, and it was entirely inconsistent with the polite and sympathetic approach taken by the officers inside the premises. It was only a result of Ms Chen's desperate attempts to re-enter the premises that the unfortunate subsequent train of events ensued. The scenes depicted in the photographs taken by Mr Forwood on Ms Chen's camera, and why things deteriorated to the extent they did, is very clearly explained by the course of those events. It is also improbable that Ms Chen was punched in the back. What is more probable is that she was forcibly brought to the ground by police officers employing standard police techniques to subdue and control a person resisting and acting in a dangerous and violent manner, and a knee placed in the small of her back as described by Officer Cleofe. The bruise on her back I have already discussed. It was not the result of a punch.

The submission that there was insufficient time for events as described by the police to have occurred was another example of the factitious nature of the plaintiffs' presentation. The facts demonstrate that the events described by the police officers fit neatly into the established time frame. Clearly, the call for back-up police was necessitated by the conduct of the plaintiff, compounded by the arrival and interference of Ms Xuan and Mr Forwood. It is improbable that until that stage Officers Cleofe and Jacques required assistance, or that the additional police arrived other than in response to that call, or within the time frame suggested by the plaintiffs.

I was also unimpressed with the belated allegations by Ms Chen of racist and other derogatory remarks made by the two police officers, including calling her a prostitute. These were further examples of the hyperbole and extravagance employed by Ms Chen, in addition to other phrases used by her, such as the police throwing her into the van "like a ball", and throwing her into a cell "like rubbish".

Overall, therefore, I am comfortably satisfied that Ms Chen was an unreliable witness.

I was similarly unable to accept Ms Xuan as a reliable witness. She too was evasive and obstructive when giving her evidence. She also exaggerated her case, and tailored her evidence to suit her position and that of her daughter.

The conduct of Ms Xuan in the police station was unacceptable. There was no appropriate basis for refusing to cooperate with the police and not give her name. I do not believe, however, that she threatened the police, and I accept that when she called out something like "U Doka", it was in fact a plea for a doctor to assist her daughter. Nevertheless, her conduct within the police station was otherwise aggressive and uncooperative. Although Ms Xuan also misbehaved in Court, and at one stage I had to insist that she remain outside the courtroom given her unacceptable interference during the cross-examination of Ms Chen, I did not take that into account in assessing her credibility as a witness.

However, many aspects of Ms Xuan's evidence were unsatisfactory. I have already referred to her evidence about the bank accounts and her handbag (which she in fact left in the car). In addition, the evidence Ms Xuan gave about her employment and loss of income, and her reasons for being in Australia, were exaggerated and misleading. But it was her account of the events on 20 February 2008 and 21 February 2008 that ultimately persuaded me that her evidence was not to be preferred to that of the two police officers.

Ms Xuan obfuscated, exaggerated and prevaricated about the episode in the street outside Laing & Simmons. I was particularly unimpressed by her insistence that Officer Jacques had grabbed her by the throat in an attempt to strangle her, referring to the photographs to support the assertion, when on any objective assessment of the photographs in Exhibit B, that was not what happened.

By comparison, the two police officers gave uncomplicated, straightforward evidence. Their accounts of events were unembellished and consistent. Such discrepancies as may have emerged were minor and in my view understandable. Their evidence was unshaken on key matters, including the assaults on them by Ms Chen, Mr Forwood and Ms Xuan. Their accounts of the conduct of Ms Chen, and their interactions with her, both inside and outside Laing & Simmons were logical and coherent. Their evidence was corroborated by Ms Farah, and by Mr Forwood. There was no necessity for the other officers who arrived later, to be called. Those other officers did not arrive by coincidence or by accident. They can only have been there as a result of a call for back-up. The reason back-up was required was because Ms Chen was resisting and struggling, and on their arrival Ms Xuan and Mr Forwood both set upon the two police officers.

The plaintiffs placed great store on their allegation that the police officers deleted the photographs from Ms Chen's camera. But all that was established was that it was possible for one of the officers to have done so. But it was equally possible that someone else did so. It was also conceivable that the photos, assuming they were deleted, were deleted accidentally, by the plaintiffs, by Mr Forwood, or by one of the visitors who attended at the police station to assist the plaintiffs. Nor as a matter of logic was it to the advantage of the police officers to delete the photos. The pictures were not inconsistent with the police account. As I have already said, I was unable to comfortably satisfy myself that the two police officers deliberately deleted the photos from Ms Chen's camera. Thus, the allegations that they did so played no part in my assessment of credit.

For these reasons I have concluded that much of the plaintiffs' evidence was unreliable. The result is that I am not prepared to accept their evidence where it has not otherwise been independently established by other reliable or objective material. I prefer, therefore, the police version of events and conversations where they were at odds with the evidence of the plaintiffs.

Was Ms Chen arrested and detained inside the Laing & Simmons office?

A late amendment to the plaintiffs' pleadings gave rise to the allegation that the conduct of Officers Jacques and Cleofe in removing Ms Chen from the premises of Laing & Simmons on Thursday 21 February 2008 amounted to a wrongful arrest.

The allegation is misconceived, in the sense that unlawful arrest is not of itself a tort. A lawful arrest may provide the legal justification for what might otherwise be a false imprisonment: State of New South Wales v Williamson [2011] NSWCA 183.

The substance of the complaint is that Ms Chen was forcibly restrained and removed, which conduct was unjustified and unlawful and constituted a wrongful arrest because she was not warned she was trespassing, and that if she did not leave she was committing an offence under the Inclosed Lands Protection Act 1901. Not only did the two police officers fail to inform Ms Chen she was under arrest, they did not provide her with the reasons for her arrest other than to tell her she had to leave: Leachinsky v Christie (House of Lords (1946) 1KB 124.

Because the arrest of Ms Chen was unlawful, it did not provide legal justification for her subsequent removal from the premises, which constituted a total physical restraint, amounting to the tort of false imprisonment.

The plaintiffs' written submissions proceed as follows:

"Ms Chen was not warned that she could be arrested for trespass or for being on inclosed lands and if she did not leave she would be liable to have a penalty notice issued against her (section 10, Inclosed Lands Protection Act) or be arrested.

Instead of warning the First Plaintiff or issuing a penalty notice, Constable Cleofe "grabbed Ms Chen by the right arm" and Constable Jacques took hold of her left arm. Neither of the two police officers informed Ms Chen she was under arrest and neither provided her with the reasons for her arrest other than to tell her she had to leave. They picked her up so she was standing on her feet and physically moved her outside the front door.

Constable Cleofe agreed in evidence he arrested the First Plaintiff. He said he did not inform her she was under arrest even though he admitted it was his duty to so inform her.

Had Ms Chen been informed by Constables Jacques and Cleofe she was in breach of the Inclosed Lands Act she might have gone more willingly and the ensuing altercations and subsequent second arrest may not have taken place."

For the reasons already given, I am satisfied that Ms Chen was asked to leave the premises of Laing & Simmons several times, both by Ms Farah, and subsequently by Officers Jacques and Cleofe.

It was only after Ms Chen continued to refuse to leave that the police officers escorted her outside onto the street. I am satisfied, further, that her removal was as described by the police, and she was not forcibly lifted or "frog marched" to the door as her senior counsel so colourfully attempted to portray.

The reality is that Ms Chen was neither arrested nor detained inside the premises of Laing & Simmons. What happened, quite simply, was that having been asked to leave the premises several times Ms Chen became an unlawful trespasser, and as such the police were justified in removing her. Ms Chen cannot have been under any misapprehension that her continued refusal to leave was unlawful. It was not for the police to explain the niceties of the requirements of the Inclosed Lands Protection Act 1901. It was sufficient for them to tell her she had been asked to leave and should do so. The conduct of the police officers in removing Ms Chen from the premises was entirely justified, and the force, to the extent that any force was actually applied, was minimal, entirely appropriate and reasonable.

The elements of the modern tort of false imprisonment require proof by the plaintiff of a restraint imposed by the defendant which amounts to imprisonment. Upon the proof of such imprisonment, the defendant, to escape liability, needs to establish legal justification: Darcy v State of New South Wales [2011] NSWCA 413 at [143].

I am not satisfied that Ms Chen was restrained or detained, in the sense that there was a complete deprivation of, or a restraint upon her liberty. She was at all times free to leave the premises of her own accord. What she was not free to do was remain on the premises.

I find that there was no arrest of Ms Chen, let alone any wrongful arrest, nor was she falsely imprisoned as a result of the events that occurred inside the Laing & Simmons office on Thursday 21 February 2008.

Was Ms Chen wrongfully arrested and falsely imprisoned in Dickson St?

In the alternative, it was alleged that the conduct of Officers Jacques and Cleofe in physically restraining Ms Chen outside the premises of Laing & Simmons in Dickson Street on Thursday 21 February 2008 amounted to a wrongful arrest.

It is not disputed that Ms Chen was arrested in Dickson Street by Officers Jacques and Cleofe. The substance of the complaint is that her arrest was wrongful because it was unjustified, such that the physical restraint of her by the police officers that ensued amounted to false imprisonment, assault and battery.

For the reasons already given, I prefer the police version of the events that unfolded in Dickson Street to that of Ms Chen.

I am satisfied that after Ms Chen was escorted outside the Laing & Simmons premises into the street, the police released Ms Chen. But Ms Chen attempted to force her way back inside past the officers. In the course of doing so she struck one of them on the arm. She was then arrested for assault.

I find, therefore, that the arrest of Ms Chen was justified, and the fact that she was subsequently restrained, and deprived of her liberty, was similarly justified, legally. Accordingly, the allegation that she was falsely imprisoned fails.

Reasonable and proportionate force in effecting a lawful arrest provides the legal justification for what might otherwise constitute the tort of assault or battery. Ms Chen complains that the force used by the police to restrain her was unreasonable and excessive. Because I prefer their version of what occurred to hers, I am satisfied that the force used to subdue, arrest and subsequently detain her was reasonably necessary and proportionate.

Was Ms Chen assaulted in Dickson Street?

Ms Chen alleged that she was assaulted or battered in Dickson Street, in that she was punched in the back, thrown down onto the ground, kneed in the small of her back, and thrown into the police van "like a ball" by Officers Cleofe and Jacques.

It is true that Ms Chen was placed on the ground, and a knee was placed in the small of her back, as part of the legitimate and reasonable force employed to subdue and restrain her given her violent response to their attempt to prevent her from re-entering the Laing & Simmons premises, and in the course of her arrest. She was later placed in the police van. But, as I have already found, she was not punched in the back, thrown down onto the ground, kneed in the back, or thrown into the police van "like a ball". Nor am I satisfied that the police verbally abused Ms Chen by making derogatory or racist remarks to or about her.

The force used by the police officers in Dickson Street in respect of Ms Chen was appropriate and reasonably necessary and proportionate.

I find, therefore, that Ms Chen was not assaulted or battered by the police in Dickson Street.

Was Ms Xuan wrongfully arrested and falsely imprisoned in Dickson St?

It was alleged that the conduct of Officers Jacques and Cleofe in physically restraining Ms Xuan in Dickson Street on Thursday 21 February 2008 amounted to a wrongful arrest. The substance of the complaint is that her arrest was wrongful because it was unjustified, such that the physical restraint of her by the police officers that ensued amounted to false imprisonment, assault and battery.

For the reasons already given, I prefer the police version of the events that unfolded in Dickson Street to that of Ms Xuan and I am satisfied that Ms Xuan pushed Officer Jacques off Ms Chen onto the ground and pushed Officer Cleofe when he was kneeling down. I am further satisfied that Officer Jacques took hold of Ms Xuan, pulled her away, and held her up against a fence.

I find, therefore, that the arrest of Ms Xuan was justified, and the fact that she was subsequently restrained, and deprived of her liberty, was similarly justified, legally. Accordingly, the allegation that she was falsely imprisoned fails.

Reasonable force in effecting a lawful arrest provides the legal justification for what might otherwise constitute the tort of assault or battery. Ms Xuan complains that the force used by the police to restrain her was unreasonable and excessive. Because I prefer their version of what occurred to hers, I am satisfied that the force used to subdue, arrest and subsequently detain Ms Xuan was reasonably necessary and proportionate.

Was Ms Xuan assaulted in Dickson Street?

Ms Xuan alleged that she was assaulted or battered in Dickson Street, in that she was pushed up against a fence, her handbag was torn from her, she was choked by the throat, and thrown to the ground by Officers Cleofe and Jacques.

It is true that Ms Xuan was held up against a fence, and subsequently placed on the ground, as part of the legitimate and reasonable force employed to subdue and restrain her given her violent conduct, and in the course of her arrest. But, as I have already found, she was not choked by the neck, or thrown to the ground.

Her handbag, which she left in the car, was not torn from her. Nor am I satisfied that the police deliberately mistreated or attempted to humiliate Ms Xuan by exposing her underwear.

The force used by the police officers in Dickson Street in respect of Ms Xuan was appropriate and reasonably necessary.

I find, therefore, that Ms Xuan was not assaulted or battered by the police in Dickson Street.

Was Ms Chen assaulted in the Newtown Police Station?

Ms Chen alleged she was assaulted or battered by Officers Cleofe and Jacques in the Newtown Police Station, in that she was thrown into a cell "like rubbish" then grabbed, including in the chest area, and dragged out again, shaken, and then dragged back inside the cell, in the course of which her head hit the doorframe, and she was kicked in the legs.

Most of these allegations only emerged at the trial, and had not previously been asserted. Be that as it may, they need to be addressed.

It is true that Ms Chen was physically transported to and placed in the dock. She had to be physically carried by several police officers from the police van, inside the police station, and placed on the floor of the dock, because of her inert body. She was totally uncooperative. I am not persuaded that she was injured or otherwise incapable of walking into the police station under her own steam. She simply did not want to. So much was evident from her remarkable recovery subsequently, when she can be seen on the CCTV footage to move around quite freely, and speak.

Ms Chen she was not thrown into a cell "like rubbish". She was not dragged out again. She was not shaken. And she was not dragged back inside the dock.

Ms Chen was also subsequently physically taken out of the dock. This was clearly made necessary by her lack of cooperation when an officer unsuccessfully attempted to remove her handcuffs. Once outside the confined space of the dock, her handcuffs were successfully removed, following which Ms Chen was physically lifted back into the dock and placed on the floor. Again, her physical transportation was made necessary because of her lack of cooperation.

Ms Chen was not grabbed and dragged out of the dock, and then dragged back inside the dock. She was not shaken. Nor was she touched in the area of her chest or breasts, as the implication seemed to be.

I looked carefully at the CCCTV footage of this episode, but I was unable to see Ms Chen's head coming into contact with the doorframe. Turning to the allegation that Ms Chen was kicked in the legs after she was placed back in the dock, it is true that the police officer used a foot to push her legs back from the alignment of the dock door, in order to close it. But the officer did not kick her legs.

To the extent that Ms Chen was physically transported from the police van, placed in the dock, taken out, and then put back in again, I am satisfied that the force used by the police was reasonably necessary and proportionate.

I find, therefore, that Ms Chen was not assaulted or battered by the police in the Newtown Police Station.

Were the plaintiffs falsely imprisoned at the Newtown Police Station?

The plaintiffs allege that they were falsely imprisoned following their arrest in Dickson Street, continuing through their transfer to Newtown Police Station, and during the time they were in the Newtown Police Station.

Given the findings I have made these assertions cannot stand, and all that is left to consider is whether the plaintiffs were detained at the Newtown Police Station for an excessive period of time.

The written submissions complain that:

"Ms Chen arrived at Newtown police station at 14:30 and was released at 20:46. She was detained for 6 hours and 16 minutes (pages 81-82 of Exhibit 27). Mrs Xuan arrived at the police station at the same time and was released at 22:15 (pages 142-143 of Exhibit 27). Mrs Xuan was in the police station for 7 hours and 45 minutes. It could not be said the Plaintiffs were treated with the upmost courtesy, respect and civility while at the police station."

The reality is however, that the reason the plaintiffs were kept at the Newtown Police Station for as long as they were was due to their own conduct and failure to cooperate with police.

The legal representatives of the defendant prepared a detailed minute by minute analysis of the time the plaintiffs were at the Newtown Police Station: see Part Two of the written submissions. Nothing was put in contradiction. It was submitted for the defendant, and I agree, that:

"Whilst on its face, the time in custody appears excessive, the above transcription reveals that many hours were expended communicating with support people, interpreters, church elders and solicitors. Further Ms Chen received medical treatment from the paramedics. The interpreter did not arrive until 3.51pm. The charging process for Chen and Xuan commenced at 4.58pm...With all the time outs permitted by the Acts, the plaintiffs, would not have exceeded the four hour investigation permitted pursuant to s115 of the Act (LEPRA)."

I am satisfied that the police acted as expeditiously as appropriate and possible in attending to and completing all the necessary tasks required to process and charge the plaintiffs, having regard to the exigencies and the conduct of the plaintiffs.

I find, therefore, that the detention of the plaintiffs at the Newtown Police Station was reasonable and commensurate having regard to the circumstances, in particular their failure to cooperate with the police in the standard processes required, and their detention was, therefore justified. Accordingly, the allegation that the plaintiffs were falsely imprisoned at any stage during their time at the Newtown Police fails.

Were the plaintiffs maliciously prosecuted?

Finally, the plaintiffs allege that they were maliciously prosecuted by Officers Cleofe and/or Jacques. The allegation is limited to the institution of proceedings.

It was submitted for the plaintiffs:

"It is submitted the two police officers knew the charges were false and it was they and not the Plaintiffs who were guilty of assault... If the evidence of the Plaintiffs is accepted there was no reasonable and probable cause for the prosecution. Malice maybe inferred if there is no reasonable cause (Clinski v McIver (House of Lords) (1962) 1 AER 696).

It follows that if the versions of Constables Jacques and Cleofe are rejected by the Court then they knew that the charges brought against the Plaintiffs were false. Malice in instituting the prosecutions is thus established."

The findings that I have made, however, are to the contrary.

It is, therefore, clear that the two officers acted with reasonable and probable cause in the institution of the prosecutions. I am also satisfied that they acted professionally, on objective grounds, without any malice: A v State of New South Wales [2007] HCA 10.

The plaintiffs' claims for malicious prosecution therefore fail.

Disposition

The plaintiffs have failed in each of the causes of action as finally pleaded and particularised, that the defendant was asked to meet.

There will therefore, be verdicts for the defendant on each cause of action, and judgment for the defendant against each plaintiff.

The parties did not address the question of costs but I will entertain any application for a differential order for costs. Otherwise, costs should follow the event, in accordance with UCPR r 42.1.

I direct the entry of judgment in favour of the defendant and order the plaintiffs to pay the defendant's costs.

Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.

Decision last updated: 29 August 2012

Medium Neutral Citation:	Chen v State of New South Wales [2012] NSWDC 126
Hearing dates:	16, 17, 18, 19, 20, 23, 24, 26, 27 April and 18 June 2012
Decision date:	17 August 2012
Jurisdiction:	Civil
Before:	Judge Peter Johnstone
Decision:	Judgment for the defendant
Catchwords:	POLICE - allegations of wrongful arrest, false imprisonment, assault, battery, and malicious prosecution
Legislation Cited:	Crimes Act 1900 Civil Liability Act 2002 Civil Procedure Act 2005 Inclosed Lands Protection Act 1901 Law Reform (Vicarious Liability) Act 1983 Law Enforcement (Powers and Responsibilities) Act 2002
Cases Cited:	A v State of New South Wales [2007] HCA 10 Darcy v State of New South Wales [2011] NSWCA 413 Leachinsky v Christie (House of Lords (1946) 1KB 124 State of New South Wales v Williamson [2011] NSWCA 183.
Category:	Principal judgment
Parties:	Irene Rui Chen (1st Plaintiff) Gong Xiang Xuan (2nd Plaintiff) State of New South Wales (Defendant)
Representation:	Mr C Evatt with Ms L Evans (Plaintiffs) Mr M Spartalis (Defendant) Friend & Co Lawyers (Plaintiffs) (Mr Friend) Makinson & d'Apice Lawyers (Defendant) (Mr N Regener)
File Number(s):	2011/54439
Publication restriction:	None