Cosenza v State of South Australia

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
COSENZA v STATE OF SOUTH AUSTRALIA
[2024] SASC 97
Judgment of the Honourable Justice McDonald
TORTS - INTERFERENCE WITH THE PERSON - TRESPASS TO THE PERSON
TORTS - ABUSE OF LEGAL PROCESS - MALICIOUS PROSECUTION - GENERALLY
TORTS - MISCELLANEOUS TORTS - MISFEASANCE IN PUBLIC OFFICE
TORTS - INTERFERENCE WITH THE PERSON - FALSE IMPRISONMENT - LAWFUL JUSTIFICATION - ARREST AND DETENTION AND IMPRISONMENT IN CRIMINAL PROCEEDINGS
TORTS - INTERFERENCE WITH PROPERTY - TRESPASS TO LAND - GENERALLY
TORTS - INTERFERENCE WITH PROPERTY - TRESPASS TO LAND - REMEDIES - DAMAGES
On 3 April 2015 (Good Friday), the applicant was the subject of a roadside arrest by Brevet Sergeant Alan Graham, a member of South Australia Police (‘SAPOL’), after refusing to provide a breath sample. This incident, and the events which followed, now give rise to a wide-reaching claim in tort which can be broadly categorised into three distinct “episodes”:
1.The roadside arrest itself, for which the applicant brings claims of false imprisonment, assault, battery, and alleges an unlawful arrest (‘the roadside arrest’);
2.The applicant’s subsequent arrest under warrant in August 2015, which the applicant alleges occasions an unlawful arrest, malicious prosecution, false imprisonment and a misfeasance in public office (‘the arrest under warrant’); and
3.The four attempts by SAPOL to serve the applicant with a court summons at his home address following the roadside arrest, each of which the applicant alleges to constitute an individual trespass (‘the four trespasses’).

The claim, now in its fifth revision, is brought against the respondent as vicariously liable for the conduct of officers of SAPOL. The respondent denies any liability arising from the three episodes.
As to the roadside arrest, the applicant alleged that not only was this arrest conducted unlawfully, but the apparent force used by Brevet Sergeant Graham was unprovoked, unexpected, and exacerbated existing injuries to the applicant’s spine. In contrast, Brevet Sergeant Graham alleges that the applicant was the aggressor during this interaction, which necessitated his arrest and subsequent conveyance to hospital upon suffering a panic attack. Both participants were cross-examined at length regarding their respective versions of events.
The applicant introduced a significant volume of expert medical evidence which, in his submission, tended to suggest that the degeneration to his spinal vertebrae was more than likely caused by a traumatic event as opposed to natural degeneration overtime. In turn, expert medical evidence was led to counter this assertion by the respondent and, on 4 April 2023, both parties were granted leave to re-open their cases after the applicant underwent further spinal surgery in October 2022.
As to the arrest under warrant, the applicant alleges that the prosecutorial process leading to this action was so occasioned by animosity toward the applicant on the part of SAPOL prosecutors as to render the respondent liable for malicious prosecution or misfeasance in public office. Further, the applicant alleges that the warrant authorising his arrest was invalidly issued by the sitting Magistrate, rendering the respondent liable in false imprisonment for the arrest and detention of the applicant upon executing that warrant. Several members of SAPOL involved in the prosecution gave evidence as to its conduct, and documentary evidence was tendered illustrating the procedural decisions which led to the withdrawal of the prosecution.
As to the four trespasses, the applicant submits that, by virtue of his erecting signs on the outer boundary of his residence revoking the implied license to enter, each attempt by SAPOL to serve him personally with a court summons following the roadside arrest leaves the respondent liable in trespass. To this end, evidence was led regarding the applicant’s proprietary interest in the relevant property, and the state of knowledge of the police officers who attended upon the property to effect service.
Held:
1.The applicant’s arrest was lawfully conducted, and the torts said to arise from the roadside arrest are not made out. The relevant medical evidence does not establish a causative link between a traumatic event during the roadside arrest and the subsequent injury to the applicant’s C4/5 disk. On balance, any injury to this region was a product of degenerative change over time.
2.The torts of malicious prosecution and misfeasance in public office are not made out on the evidence. Further, the applicant has not established the invalidity of the warrant, and the subsequent claims of unlawful arrest and false imprisonment fail as a result.
3.The applicant had revoked the implied licence to enter his property and had made SAPOL aware of this fact. The four trespasses are made out, and the applicant is awarded $10,000 in damages for each trespass.

Road Traffic Act 1961 (SA) s 47E(4)(ab); Summary Offences Act 1953 (SA) s 75; Police Act 1998 (SA) s 11; Criminal Procedure Act 1921 (SA) ss 20, 58 and 59; Bail Act 1985 (SA) s 5(2); Independent Commission Against Corruption Act 1988 (NSW), referred to.
A v State of New South Wales & Anor (2007) 230 CLR 500; Allen v Flood [1898] AC 1; Amin v Bannerjee [1947] AC 322; Cannon v Tahche (2002) 5 VR 317; Commercial Union Assurance Co of NZ Ltd v Lamont [1989] 3 NZLR 187; Cosenza v Magistrates Court of South Australia [2016] SASC 181; Danby v Beardsley (1880) 43 LT 603; Director of Public Prosecutions v Wille (1999) 47 NSWLR 255; Ea v Diaconu (2020) 102 NSWLR 351; Fanzelow v Kerr (1896) 14 NZLR 660; Galea v Camilleri [2023] NSWC 206; Gaskin v Police (2009) 267 LSJS 12; Georgeski v Owners Corporation SP49833 (2004) 62 NSWLR 534; Ghazal v Government Insurance Office of New South Wales (1992) 29 NSWLR 336; Gray v Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1; Hadkinson v Hadkinson [1952] 2 All ER 567; Halliday v Neville [1984] HCA 80; (1984) 155 CLR 1; Hamilton v The State of New South Wales [2020] NSWSC 700; Hicks v Faulkner (1987) 8 QBD 167; Hill v Higgins [2013] NSWSC 270; Hughes v Police (2009) 103 SASR 337; Jones v Dunkel (1959) 101 CLR 298; Lamb v Cotogno (1987) 164 CLR 1; Leerdam v Noori (2009) 227 FLR 210; MacIntosh v Lobel (1993) 30 NSWLR 441; Maynes v Casey [2011] NSWCA 156; Mitchell v John Heine & Son Ltd (1938) 38 SR (NSW) 466; New South Wales v Abed [2014] NSWCA 419; New South Wales v Ibbet (2006) 229 CLR 638; Northern Territory of Australia v Mengel (1995) 185 CLR 307; Nyoni v Shire of Kellerberrin (2017) 248 FCR 311; Obeid v Ipp [2016] NSWSC 1376; Obeid v Lockley (2018) 98 NSWLR 258; Plenty v Dillon (1991) 171 CLR 635; Plenty v Dillon (1998) 50 SASR 407; Police v Bleeze (2012) 112 SASR 568; Police v Henwood (2005) 92 SASR 15; Police v Hodder [2016] SASC 70; Police v Spitzer (2003) 85 SASR 431; R v Nguyen (2013) 117 SASR 432; Roberston v The Queen (1992) 92 A Crim R 115; Roy v O'Neil [2020] HCA 45; (2020) 272 CLR 291; Ruddock v Taylor (2005) 222 CLR 612; Savile v Roberts (1869) 1 Ld Raym 374; 91 ER 1147; Shannon v State of New South Wales [2015] NSWDC 69; South Australia v Crossley [2020] SASCFC 128; Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020; Tampion v Anderson (No 2) [1973] VR 321; Tulloh v Chief Executive Officer of the Department for Correctional Services [2018] WASC 105; Uren v John Fairfax & Sons Pty Ltd (1996) 117 CLR 118; Williams v Milotin (1957) 97 CLR 465; Williams v The Queen (1986) 161 CLR 278; Wilson v State of New South Wales [2010] NSWCA 333; Zaravinos v New South Wales (2004) 62 NSWLR 58, considered.

COSENZA v STATE OF SOUTH AUSTRALIA
[2024] SASC 97
Civil
McDONALD J.
The trial
Reopening the case
A potential further delay
The roadside arrest
Background
The applicant
Brevet Sergeant Graham

The events of Good Friday 2015
The applicant’s version of events
Brevet Sergeant Graham’s version of events
Issues in dispute between the applicant and Brevet Sergeant Graham
1. The applicant’s driving prior to the events on Chief Street
2. The initial exchange between the applicant and Brevet Sergeant Graham
3. The circumstances in which the applicant came to get out of his car
4. The arrest
5. The arrival of Senior Constable Westbrook and Brevet Sergeant Lee
6. Events at the hospital
Evidence of Senior Constable Bradley Westbrook and Brevet Sergeant Melissa Lee
SA Ambulance Service Patient Report Form
Evidence of applicant’s interactions with police on other occasions
8 June 2010
13 December 2019
9 October 2020
The Central Market car park incident

Medical and psychiatric evidence
Psychiatric evidence
Dr Ivan Siklich
Professor Alexander McFarlane
Dr Ian Jennings
Dr David Kelly
Conclusion – Psychiatric Evidence
Medical evidence
The applicant’s evidence about his injuries
Evidence of the physical interaction between the applicant and Brevet Sergeant Graham
The Radiologists - Associate Professor Roger Davies and Dr Christopher Pozza
Dr Michael Selby (Spinal and Orthopaedic Surgeon)
Dr Simon Sandler (Neurosurgeon and Spinal Surgeon)
Reopening of the applicant’s and respondent’s cases
Dr Michael Selby (subsequent evidence)
Dr David Hall (Spinal Surgeon)
Conclusion – medical evidence

Consideration of the evidence of the applicant and Brevet Sergeant Graham
Findings in relation to the applicant’s evidence
Reason for imprisonment
2015 and 2018 admission applications
Findings in relation to the evidence of Brevet Sergeant Graham
Criticisms of Brevet Sergeant Graham’s evidence
Clenched fists
The circumstances in which the applicant got out of his car
The prescribed oral advice (the good cause defence)
The combined effect of the criticisms of Brevet Sergeant Graham’s evidence

Findings of facts in relation to the roadside arrest
1. The applicant’s driving prior to the events on Chief Street
2. The initial exchange between the applicant and Brevet Sergeant Graham
3. The circumstances in which the applicant came to get out of the car
4. The arrest
5. The arrival of Senior Constable Westbrook and Brevet Sergeant Lee

Determination of the issues arising out of the roadside arrest
A lawful arrest?
1. Failure to advise the applicant that he was under arrest and the reasons for the arrest
2. The decision to arrest the applicant and the use of handcuffs
3. Brevet Sergeant Graham did not reasonably suspect that the applicant had committed an offence under s 47E(2) of the Road Traffic Act 1961 (SA)
4. Brevet Sergeant Graham did not provide a “reasonable direction” as required by s 47E(3)
5. The failure of Brevet Sergeant Graham to fill out a PD207
6. A breach of police General Orders by arresting and unarresting the applicant

The roadside arrest – conclusion
False imprisonment

The arrest under warrant
The circumstances surrounding the applicant’s arrest
The role of Brevet Sergeant Graham
The role of Sergeant Michelle Hollis
Police Prosecutions
The Special Prosecutions Unit

Wrongful arrest
No underlying offence
The arrest was not necessary
Defects in the process

Unlawful imprisonment
Malicious prosecution
The elements of malicious prosecution
Reasonable and probable cause
Malice
Who was the prosecutor?
Was there a malicious prosecution?

Misfeasance in public office
Was Senior Constable De Bono a public officer who was exercising a power in the course of her duties?

The four trespasses
The evidence
The applicant’s evidence
The police evidence
The applicant’s prior dealings with police
Signs revoking the implied licence to enter
Correspondence with SAPOL

The applicant’s proprietary interest in the Woodville South address
Previous litigation
What was the nature of the applicant’s proprietary interest?

Issues arising for consideration in relation to the four trespasses
Did the applicant have a sufficient proprietary interest in the Woodville South property to revoke the implied licence to enter?
Had the applicant revoked the implied licence?
The application of the principles
What is the significance of Mr Kluzek and Senior Constable Mitchell being unaware of the revocation of the implied licence?

Damages
Conclusion

At about 10.00pm on 3 April 2015 (Good Friday), Brevet Sergeant Alan Graham was on duty patrolling the back streets of Brompton when he observed a dark sedan “take-off” at speed. He took pursuit of this vehicle, losing sight of it momentarily on two occasions before arriving at Chief Street. It was there that he came across the applicant seated in the front driver’s seat of his vehicle. Neither of the men were known to each other prior to this. However, that chance encounter and what was to follow in the next 38 minutes,[1] between Brevet Sergeant Graham and the applicant, would become the foundation of numerous complaints by the applicant against the police and litigation that has continued for over nine years since the initial event.
[1] Estimate of time based on Exhibit R61 – a map of the Brompton area overlaid with auto vehicle log data points and times and Exhibit A1, the departure time recorded in the SA Ambulance Service Patient Report Form.
On 22 March 2016, the applicant filed his first Statement of Claim in this Court.
Since that time, there have been a number of revisions of that Statement of Claim, with the applicant ultimately relying on Claim Revision 5, filed on 4 January 2022. In that document, the applicant pleads a number of causes of action arising out of his various dealings with the police that commenced with the events of Good Friday. Throughout these proceedings, those interactions have, for the sake of convenience, been categorised into three parts or episodes. These have been described as “the roadside arrest”, “the arrest under warrant”, and “the four trespasses”, each of which is said to give rise to separate causes of action. In relation to the roadside arrest, it is claimed that the respondent is liable for false imprisonment, unlawful arrest, assault, and battery. In relation to the arrest under warrant, the applicant alleges that there was an unlawful arrest, and that there has been a malicious prosecution, a false imprisonment, and misfeasance in public office. For each of the four trespasses, a separate trespass is alleged.
The respondent denies any liability arising out of the three episodes. It was the respondent’s position at trial that, if the applicant did in fact suffer any damage as a consequence of his interactions with police, it was as a result of his own conduct.
The trial
The trial commenced on Monday, 31 January 2022, and continued until Friday, 11 February 2022. At that time the matter was adjourned to enable time for written submissions to be filed. The trial resumed for a further day on 24 February 2022, in order for oral submissions to be made.
It was only in relation to the roadside arrest that there was any major factual contest between the applicant and the respondent. In relation to the arrest under warrant and the four trespasses, the issues that arose were generally questions of law and inferences that are available on the mostly uncontested evidence.
Reopening the case
On 25 October 2022, the applicant filed an interlocutory application for leave to reopen his case and to recall Dr Michael Selby, a spinal surgeon, to give supplementary evidence. Dr Selby had already given evidence at the trial. The basis of the application was that, on 18 October 2022, Dr Selby had carried out further spinal surgery on the applicant that was said to be relevant to the determination of the issues in the trial. An order was also sought deferring the delivery of the final judgment until the evidence of Dr Selby was heard.
On 19 December 2022, the matter came back before the Court for a directions hearing. By that time, a report had been obtained from Dr Selby.
Having received that report, the respondent made an application for an adjournment to enable it to obtain a report from their own expert, Dr David Hall. I adjourned the determination of the interlocutory application until March 2023 to enable the respondent to obtain their own expert report.
When the matter next came before the Court on 1 March 2023, I was advised that the respondent had obtained two expert reports from Dr Hall. Those reports had only recently been served on the applicant. Given the technical nature of the reports, counsel for the applicant requested time to seek advice from Dr Selby. That request was granted and the matter was listed for a further directions hearing on 4 April 2023.
On 30 March 2023, the respondent filed an interlocutory application for leave to re-open its case in order to call Dr Selby to give evidence.
On 4 April 2023, I made orders that “the applicant be given leave to re-open to recall Dr Michael Selby to give further evidence on the spinal surgery performed by Dr Selby on the applicant on 18 October 2022” and “the respondent be given leave to re-open so as to call evidence from Dr David Hall in response to Dr Selby’s evidence on the spinal surgery”.
Dr Selby gave evidence on 1 June, and Dr Hall gave evidence on 2 June 2023. Written submissions were filed by the respondent on 14 July 2023 and by the applicant on 7 August 2023.
This brief chronology demonstrates the reason for the delay between the commencement of the trial and the delivery of the judgment in this matter.
A potential further delay
In April 2024, I became aware of a decision of a single judge of the Federal Court in Stradford (a pseudonym) v Judge Vasta.[2]At the time an appeal was pending in the High Court (the matter having been removed from the Full Federal Court). It was listed for hearing in August 2024.
[2] [2023] FCA 1020.
It appeared that aspects of the judgment were potentially relevant to the parties pleaded cases in relation to some of the issues that arose in “the arrest under warrant”. I provided the parties with an opportunity to make further submissions as to what impact, if any, Stradford had on the applicant’s claim.
The applicant declined the opportunity. By his Senior Counsel, he disavowed any reliance on Stradford and requested that this Court not delay its judgment.
The respondent, however, took up the opportunity and provided a further written submission. The effect of that submission was that there was no reason for this Court to delay the delivery of its judgment pending the High Court’s decision in Stradford.
I acceded to that submission.
The roadside arrest
Background
The two main witnesses who gave evidence about the roadside arrest were the applicant and Brevet Sergeant Graham. Their evidence was significantly at odds and, consequently, it is necessary for me to make, insofar as I can, findings of credibility and reliability. Those findings are fundamental to a determination of the issues surrounding the roadside arrest.
A convenient starting point is to consider the background to the events of Good Friday. The roadside arrest did not occur in a vacuum. The background and history of the two main protagonists is, in my view, of some assistance in making an assessment of the two very different accounts of what occurred that evening.
The applicant
I start with the applicant. He gave detailed evidence about various events in his life preceding that evening. It would be fair to say that his life appears to have been one of extreme highs and lows, ranging from a career as a talented and promising soccer player to imprisonment for serious criminal offences.
The applicant was born in Adelaide in 1966. He attended school at St Michael’s College, Henley Beach, graduating at the end of year 12. At school, the applicant had been a keen sportsman and, upon completing high school, attempted to pursue a career in soccer. He played for Adelaide City Soccer Club and, at one stage, represented South Australia. The applicant’s soccer career came to an end as a consequence of a combination of the effects of a traffic accident when he was about 18, and the interference of his former wife, who did not want him to continue playing.

The applicant married in 1990 and had two children as a product of that marriage. The applicant and his former wife separated in 1998 and were divorced in 2000. It was an acrimonious breakup.
When the applicant first left school, he took up a position at a travel agency and continued to work in that industry for approximately four years. After that, the applicant completed a diploma course in real estate and worked as a real estate agent for four or five years. During that time, the applicant undertook a further year of study and obtained his real estate licence.
In 1993, the applicant, together with family members, purchased a business – a gelato and coffee bar known as ‘Flash Gelati’. The applicant worked in that business whilst continuing to sell real estate for about a year. At the end of that year, the applicant commenced operating a larger business, a restaurant and gelato bar called ‘Café Flash’. The applicant continued to work in that business for about four years until 2000, at which time he was forced to sell it as part of the property settlement that came about as a result of divorce proceedings. It was apparent from his evidence that, to this day, the applicant carries significant bitterness in relation to the impact that the divorce had on his business and other aspects of his life.
In 2001, the applicant was imprisoned for five years with a non-parole period of 18 months for three counts of inciting the commission of the offence of causing grievous bodily harm with intent to do harm.[3] It would appear that these charges came about when, on three occasions, the applicant attempted to solicit the services of third parties to break the legs of his ex-wife’s new partner. The first and second individuals approached by the applicant said no. The third was an undercover police officer. After the applicant made a down payment of $1,000, he was arrested and charged with these offences.
[3] Exhibit R44.
At about the same time, the applicant started to meet significant financial difficulties as a consequence of Family Court proceedings. This resulted in two bankruptcies, the first from about 2003 to 2007 and the second in 2012.[4]
[4] The 2012 bankruptcy was subsequently annulled.
In 2011, the applicant was convicted of the Commonwealth offence of managing a corporation whilst bankrupt. The conduct that was the subject of the charge occurred during the applicant’s first period of bankruptcy and was a consequence of his involvement in a managerial role in a soccer business.
A further consequence of the applicant’s marital breakdown and his imprisonment was that he started to experience psychological problems. Over time he suffered from anxiety, depression and post-traumatic stress disorder.[5] The anxiety resulted in the applicant suffering from panic attacks for which he was prescribed medication[6] and, in 2009, he commenced seeing a psychiatrist, Dr Ivan Siklich.
[5] Transcript of Proceedings, Cosenza v State of South Australia, SCCIV-16-358, Trial of 31 January 2022 – 24 February 2022 (‘T’) at 87.
[6] T88.
The next significant development in the applicant’s life was in 2008, when he commenced a law degree. Prior to that, subsequent to completing his prison sentence, the applicant had undertaken a double degree in economics and international finance. The applicant graduated from law school in 2011. It was whilst undertaking the law degree that the applicant first became aware of the High Court’s decision in Plenty v Dillon.[7] He described that moment as something of a revelation:[8]
I was sitting in my torts law class and Professor Julia Davis walked in, and she walked in with a little sign which said, ‘No trespassing, Plenty v Dillon’, and she put it on the top of her desk and she sort of made a little bit of a joke about it as to how the law can be expressed in this type of signage, and she just wanted to express that to the students, and we also had a bit of a laugh, and then Professor Davis and I built a very good relationship and we both had a similar interest in this area of the law and ultimately it was like knowing that law, I found it as being a - I don’t know how to explain it - a light bulb that just came up in my mind, and I went, ‘Wow, this can change my life with respect to being able to be left alone in your own home.’
[7] (1991) 171 CLR 635.
[8] T90.
The applicant gave evidence that the reason that this was of such interest to him was that, as a consequence of his dealings with police around the time of his arrest and incarceration, he had developed a deep distrust of police officers. On his release, the applicant had moved into his mother’s house at Woodville South. He described the police turning up at that address and behaving in such a manner that it caused his mother to panic, in the belief that the applicant was about to be taken away again.
Such was the applicant’s interest in his ability to protect his property from trespassers and, in particular, the police, that the applicant created a business with the registered business name “Law in Action”. He also created a website for that business on which he promoted a “Law in Action Trespass Kit” that contained a handbook and “2 weather resistant trespass signs designed to fit your letterbox or gate”. At some stage, he attached signage to a low wall at the front of his house indicating that entry to his premises was forbidden, other than by express invitation. I will return to the topic of the signs and the evidence about when they were put up when I come to deal with the four trespasses.
It was evident from the applicant’s evidence that, over the years, and at least since the time of his arrest, he has developed a strong antipathy towards police. That was apparent from not only his account but also his demeanour during the course of his evidence. At times, he appeared to become agitated in describing quite innocuous conduct by various police officers.
By 23 July 2008, the applicant had written to the Police Commissioner complaining about police having attended at his home address. In that letter he claimed “attendance by SAPOL twice in two days has rendered my mother now bedridden and sedated. She could have had a severe heart attack”.[9] The letter made it plain that the applicant did not want the police to attend at his property regardless of the circumstances. He said, “should any further breach of this not be adhered to [sic], we will be making an application for trespass to land as well as a potential negligence claim for breach of duty of care, should my mother be placed under any further duress on a full indemnity basis”.[10]
[9] Exhibit A22.
[10] Ibid.
Although when asked about his attitude towards police the applicant was at pains to present as though he held no animus against them, this evidence came across as disingenuous and contrived. When asked whether he had any respect for the police and the work that they do in the community, the applicant responded:[11]
I do, absolutely, yeah. I’ve met a lot of lovely police, wonderful police officers, absolutely. I had some police officer friends over the years, absolutely, lovely people.
[11] T332.
This answer stands in stark contrast with the manner in which the applicant has behaved towards the police over many years and the tone in which he generally spoke about them during his evidence. It was apparent throughout the course of his evidence that the applicant was well aware of areas where his evidence might be attacked; he quickly appreciated lines of cross-examination and was alive to protecting his interests. The applicant’s evidence on this topic is a good example of that approach.
A further development in the applicant’s life occurred in 2012, when he started to experience some lower back pain which radiated down into his lower left leg. He was treated by injection for that pain and subsequently it subsided. In late 2013, the applicant also developed an unrelated neck problem. He experienced chronic pain in his neck, arm, and shoulder. The applicant was referred to Dr Michael Selby, who was at that time the head of the Queen Elizabeth Spinal Unit and who diagnosed the applicant with collapsed discs. In May 2014, the applicant underwent surgery for the fusion of two discs at C5/6 and C6/7. That surgery was successful in that the applicant experienced almost immediate relief from the extreme pain that he had previously been suffering.[12]
Brevet Sergeant Graham
[12] T86.
For understandable reasons, there is considerably less evidence about the background of Brevet Sergeant Graham. At the time of giving evidence, he was a Detective Brevet Sergeant, having received his designation as a detective in early 2021.
In 2015, Brevet Sergeant Graham was a uniformed police officer working at the Neighbourhood Policing Team within the Western Adelaide Local Service Area. He worked there between 2012 and 2016. Brevet Sergeant Graham provided an overview of the role of that team:[13]
… in short we used to describe it as we were country police I guess in a metropolitan setting. So we get to know our neighbourhoods. We were given different areas to look at, high volume crime type areas and my responsibilities were Bowden, Brompton and Ovingham at the time.
[13] T695.
Brevet Sergeant Graham went on to explain his duties in that team:[14]
… General duty policing, fly the flag if you like. So the presence, get to know all of your locals, keep an eye on the crime overnight, follow up what needed to get followed up. Might be given obviously crime reports to follow up if there were any. We would deal with people with breaches of bail, warrant, arresting people to have them appear before the courts within those areas. Getting to know your local community really being an option for them and also obviously getting to know your local persons of interest for police in relation to crime. So effectively it was a high visibility type approach. It didn’t necessarily always work but it was certainly - it was a good time to work there and I got to know a lot of people in the area.
[14] T696.
Brevet Sergeant Graham gave evidence that he worked an afternoon shift on Good Friday 2015. That involved commencing at 3.00pm and finishing at 11.30pm. During that shift, Brevet Sergeant Graham was on solo patrol in a marked police fleet car in the Bowden-Brompton area. Brevet Sergeant Graham told the Court that, given it was Good Friday and licenced premises were closed, his target that day was the commission of traffic offences and drink driving. There is no suggestion that there was anything untoward or unusual that occurred on that shift prior to Brevet Sergeant Graham crossing paths with the applicant.
The events of Good Friday 2015
The applicant’s version of events
The applicant gave evidence that on Good Friday 2015, he had dinner in the city with his then-partner, Susan Watson. They had dinner at a restaurant on Gouger Street. The applicant had his two dogs with him. It was the applicant’s evidence that he and Ms Watson left the city shortly before 10.00pm. He estimated it was between about 9.40pm and 9.45pm. From there, the applicant drove directly to Ms Watson’s house at Trembath Street, Bowden. It would have taken between five to eight minutes to drive to Ms Watson’s house from the city. It was the applicant’s evidence that once there, he dropped Ms Watson off and immediately left, planning to drive straight home.
The applicant told the Court that en-route he stopped at Chief Street, because he became aware that one of his dogs needed to urinate. As a consequence, he pulled over just before the intersection of Second Street and Chief Street. The applicant got out of the car with his dogs to give them the opportunity to do what they needed to do. He took his car keys with him for safety reasons.
After the dogs had urinated, the applicant got back into the car. Once in the car, he turned on the interior light and grabbed his phone. The applicant’s evidence was that he cannot recall why he looked at his phone. However, at one point in cross-examination, he appeared to agree with the suggestion that he was checking emails. It was during this process that the applicant became aware of a police car. He said, “I could see down the road quite a distance some brake lights and then those brake lights turned into headlights and then those headlights turned into flashing lights”.[15] The applicant said that, when he first became aware of the police car, it was about 100 or so metres away.
[15] T106.
It was the applicant’s evidence that the marked police car drove towards him and pulled up in front of his car in a manner that meant that he was blocked in and unable to drive away. The applicant described what then occurred:[16]
Q.Did he get out of the police car.
A.He jumped – he alighted from the car in a hurry and he rushed toward me. He looked really angry and he came to me and the window was down and I –
Q.Meaning the window next to you in the car.
A.From my driver’s side, yes, and I said to him, ‘May I help you, sir?’ and he said ‘You were trying to get away from me, weren’t you?’ and I said ‘No, sir, I’m sorry, you’ve made a mistake because I’m just sitting here, minding my business’. He said ‘No, no, no, you were trying to get away from me’ and in a louder tone, he was getting more angry, and I said ‘No, sir, you’ve made a mistake. I’m sitting here minding my business’, and he then put his hand on the front bonnet of the car.
Q.Of your car.
A.Yes, and then I said ‘Sir, I’m going to have to record this conversation now’ and then he lunged in –
[16] T107-108.
The applicant described the police officer then lunging into the car and pulling the phone out of his hand. He said that, in that motion his right elbow hit the driver’s side door, connecting with his funny bone causing him pain. The applicant described feeling very frightened of the behaviour of the police officer because he appeared to be angry and the applicant was concerned that he was going to be hurt. He said that his thoughts immediately went to his recent neck surgery. These concerns caused him to have a panic attack. It was the applicant’s evidence that, at about that point, Brevet Sergeant Graham told him that he was going to require him to undertake an alcotest, although he had no alcotest in his hands. The applicant said that he responded by telling Brevet Sergeant Graham that he had a medical condition and that he wanted a blood test. It was the applicant’s evidence that this response appeared to make Brevet Sergeant Graham even more angry, which resulted in the applicant attempting to lock the door. He said that as he tried to lock the door, Brevet Sergeant Graham opened it causing the applicant to yell out, “Sir, please don’t hurt me. I’ve had spinal surgery, I have bolts in my neck, I can’t breathe, I have a medical condition”.[17] The applicant described Brevet Sergeant Graham then grabbing him by his jumper and pulling him out of the car. The applicant said that he went with him in that motion and did not resist because he was concerned that he was going to be hurt.
[17] T110.
The applicant described Brevet Sergeant Graham then turning him around and in one movement grabbing his right arm, pushing it up behind his back, and simultaneously slamming the applicant’s head on the top of the roof of the car. The applicant described Brevet Sergeant Graham twisting his right arm up behind him towards his left shoulder, with such force that he believed his arm had been broken. He described experiencing excruciating pain, such that he was screaming, yelling, and crying. It was the applicant’s evidence that it was at this point that Brevet Sergeant Graham applied handcuffs to his hands, causing him further pain with tension along his spine. He said that, at that point, Brevet Sergeant Graham told him that he was under arrest for “failing to comply with an alcotest”. The applicant described continuing to scream and cry out in pain.
The applicant said that, at about this time, Brevet Sergeant Graham released both hands from the handcuffs. It was the applicant’s evidence that the next words spoken to him by Brevet Sergeant Graham were “There’s an ambulance coming, you can now get your blood test”.[18] The applicant described Brevet Sergeant Graham as laughing as he said those words.
[18] T117.
The applicant said that two other police officers arrived at the scene shortly after the handcuffs had been released. One was male and the other female. The applicant said that they escorted him to the footpath and forced him to sit down. The applicant recalled the two police officers attempting to ask him questions, but he did not answer because he was having difficulty breathing. He said that, at one stage, he attempted to get up, but one of the police officers pushed him back down to the kerb. The applicant described that, at some point during this exchange, he told the police that he had some medication in his glove box. He explained that he kept Inderal in his glove box in case he suffered an episode of anxiety. The applicant said that he asked the police to get his medication. He saw the police go to his car, but they did not return with the medication. Rather, they made reference to some marijuana that had been found in the middle console of the car. It was the applicant’s evidence that he remained on the kerb for about 10 to 15 minutes before the ambulance arrived.
The applicant told the Court that, once the paramedics arrived, he was placed in the back of the ambulance. The paramedics asked him questions about whether he had been drinking or taking drugs “which [he] found to be quite strange and self-incriminating”.[19] The applicant said that, throughout his dealings with the paramedics, Brevet Sergeant Graham was seated in the front of the ambulance, laughing. During this time the applicant believed that he was still under arrest.
[19] T122.
The applicant was conveyed from the scene by ambulance to the Royal Adelaide Hospital. The applicant said that, when they arrived there, he was taken through the Emergency Department to a closed room where he was left inside to wait for the attendance of a doctor. During that time, Brevet Sergeant Graham sat in front of the door so he could not leave. It was the applicant’s evidence that, at some point, he left the room and approached a doctor to see how much longer it was going to take. As he approached the doctor, he saw that the doctor was filling out the relevant prescribed form. He heard Brevet Sergeant Graham ask the doctor “Do you know which box to tick”, at which point the applicant said that Brevet Sergeant Graham commented, “Dean, you got away with this last time, I’m going to make sure that you don’t get away with it this time”.[20]
[20] T124.
It was the applicant’s evidence that his blood was taken and he left the hospital. Upon leaving, he realised that he had left his jumper behind so he went back inside. The applicant said that as he went back into the hospital Brevet Sergeant Graham approached him and handed him his jumper and a licence disqualification notice. As he was handed the notice, Brevet Sergeant Graham said, “It looks like your shoulder has improved all of a sudden”.[21] The applicant said that he did not respond and left.
Brevet Sergeant Graham’s version of events
[21] T124.
On 3 April 2015, Brevet Sergeant Graham was working an afternoon shift alone in a marked police car. It was Brevet Sergeant Graham’s evidence that, given this was a Good Friday the streets were unusually quiet. During this shift his attention was first drawn to a “dark sedan” in the vicinity of Trembath Street in an area almost adjacent to, or parallel with, Park Terrace. Brevet Sergeant Graham observed the vehicle take off very quickly. As a consequence, he took pursuit. Brevet Sergeant Graham followed the car to Chief Street, albeit on at least two occasions he momentarily lost sight of the car as it turned a corner. During that pursuit, Brevet Sergeant Graham observed the dark sedan commit a number of traffic offences, including failing to stop at a stop sign. When Brevet Sergeant Graham pulled into Chief Street, he observed the applicant seated in his black Audi facing in a northerly direction. There were no other vehicles on Chief Street at that time.

Whilst it was put to me by Senior Counsel for the applicant that it was unnecessary for me to resolve whether or not the driver of the black sedan was, in fact, the applicant in his Audi, I am of the view that Brevet Sergeant Graham’s description of his pursuit of the dark sedan is a factor that is of some assistance to me in resolving the issues in relation to the competing accounts. It is significant that Brevet Sergeant Graham describes the pursuit starting on Trembath Street which was, in fact, the street on which Ms Watson lived at that time. As mentioned previously, on the applicant’s account, he had just dropped Ms Watson home immediately preceding these events.
It was Brevet Sergeant Graham’s evidence that once he was on Chief Street, he executed a U-turn and pulled up on the wrong side of the road, two to three metres away from the front of the applicant’s vehicle. He then got out of the police vehicle leaving the car engine on, with lights flashing. Brevet Sergeant Graham approached the applicant’s vehicle. He described his first interaction with the applicant:[22]
[22] T711-712.
Q.How was it that you and the driver of this car first came to interact with each other.
A.I approached the driver’s window and spoke to him.
Q.You say you approached the window, was the window up or down.
A.I believe it was down.
Q.What was the first interaction.
A.Word for word I don’t know but it would have been -
Q.As best as you can recollect.
A.As best as I can remember it, I would have said, ‘trying to get away, are you?’, you know, ‘some ordinary driving there’, I don’t know but it would have been something to do with - in relation to the manner of the driving at the time. Then, I had the alco with me to do my bit and hopefully 20 seconds be away if it was negative but that wasn’t to be the case.
When Brevet Sergeant Graham was asked what the first thing was that the applicant said to him, he said that he didn’t know but that he knew the “guts of most of it”. He said that the applicant repeated on multiple occasions “I wasn’t driving. I refuse to blow, I refuse to blow, I wasn’t driving, I wasn’t driving, I refuse to blow”. Brevet Sergeant Graham said that he responded by advising the applicant that he was required by law to submit a sample of his breath. He described the progression of the conversation:[23]
[23] T717.
Q.I want to go through this step-by-step.
A.Yes.
Q.He said, ‘I refuse to blow.’ Is that in response to something that you’ve said.
A.Yes, so the driver of a motor vehicle you’re required now by law to submit a sample of your breath.
Q.I’m sorry, you will have to slow a little bit.
A.But that’s the pace I say it at or said it at, I should say but it’s a quick thing of ‘how are you going, you’re driving, you’re required to supply a sample of your breath. Take one deep breath and blow steadily through this mouthpiece until I tell you to stop.’ And that’s the direction, if you like, for me to be able to give to a member of the public that I believe was driving a car, random breath testing.
Q.And so, you gave that direction.
A.Yes, I did.
Q.And what was the response to that direction.
A.From memory, ‘I wasn’t driving and I refuse to blow.’
Q.And what was your response to being met with that refusal.
A.That it’s a criminal offence not to blow that you may lose your licence for 12 months or more and/or be fined. Obviously, they’re entitled to what’s called the good cause defence,[24] which is I think what I’m going through now, used to roll off my tongue back then but not so much these days, how did it go?
[24] The “good cause defence” was the shorthand expression used by Brevet Sergeant Graham to refer to the prescribed oral advice required under s 47E(4)(ab) of the Road Traffic Act 1961 (SA):
47E – Police may require alcotest or breath analysis
(4) It is a defence to a prosecution under subsection (3) or (3a) that –
(ab)the person was not allowed the opportunity to comply with the requirement or direction after having been given the prescribed oral advice in relation to –
(i) the consequences of refusing or failing to comply with the requirement or direction; and
(ii) the person’s right to request the taking of a blood sample under section (4a);
…
Brevet Sergeant Graham went on to elaborate about what he meant by the “good cause defence”:[25]
So, everyone is required to undergo that direction to blow, my understanding of the instruments are they are designed for even people with the greatest of breathing difficulties but unfortunately, I’m not a doctor and neither are others but people do – it still is an offence to refuse or fail to comply with that direction but the good cause defence is something that can be raised later by an accused person if they’ve claimed to have got a medical issue that prevents them from blowing and I believe only if they ask for a blood sample to be taken.
[25] T718.
The effect of Brevet Sergeant Graham’s evidence was that, at the time of the relevant events, he was administering breath analysis tests very regularly and, as a consequence, knew the directions that he was required to give. Brevet Sergeant Graham described the applicant’s attitude as being belligerent and argumentative throughout this exchange. He said that as the conversation progressed the applicant got out of his car in an aggressive manner, holding his phone. He described the applicant as “shaping up” to him. He explained that by using that term he meant that the applicant had his chest puffed out, his fists clenched, and that he was speaking in an angry and argumentative manner. He said:[26]
Commonly when someone shapes up to you, they puff their chest out, clench their fists, maybe grit their teeth, look angry, looking for a fight.
[26] T736.
Brevet Sergeant Graham’s evidence was that, based on his 15 years of experience working in the Elizabeth Local Service Area, he was concerned that the situation was quickly escalating and that the applicant was a bigger man than him. He said that, on that basis, he determined at that point to arrest the applicant. When asked what words he said whilst effecting the arrest, Brevet Sergeant Graham said, “You’re under arrest, you’re under arrest for failing to blow’. I don’t remember the exact words, but he would have been told that he was under arrest”.
When asked whether he had a specific memory of saying this, or if it was his usual practice, he responded:[27]
Usual practice. Usual practice, especially if I’ve gone hands on with somebody, they’re getting told, because I think that word – I’m not going to guess for other people, but that word certainly makes people understand they’re being arrested.
He further explained that, back in 2015, those words would roll off his tongue in circumstances where he was placing someone under arrest.
[27] T723.
Brevet Sergeant Graham explained that in order to secure the applicant he held him up against the car, put his phone on the bonnet, and then secured the applicant’s right hand behind his back in a handcuff. It was his evidence that during the process of securing the applicant’s left hand, his demeanour completely changed. He said that, whereas the applicant had previously been tense, he suddenly became loose. He described the applicant starting to hyperventilate and behave in an erratic manner, not making much sense. When asked how long the process of handcuffing took, Brevet Sergeant Graham said:[28]
… it wasn’t long because his whole demeanour changed the minute I grabbed a hold of him. I remember taking I think the left one off. I’ve never seen someone behave the way he behaved. It was really strange. He was hyperventilating, he was carrying on, he wasn’t making much sense. I didn’t know if he was on any drugs.
Brevet Sergeant Graham went on to further elaborate:[29]
He started making no sense. He said he - I can’t remember his exact words. He started mumbling, some really weird breathing. It was like nothing I haven’t seen [sic] so I called an ambulance.
[28] T724.
[29] T728.
As a consequence of this, Brevet Sergeant Graham released the applicant’s left hand and it was placed on top of the roof of the vehicle.[30] He told the applicant to leave his hand there and advised him that he was getting an ambulance and arranging for another police car to attend. Brevet Sergeant Graham told the applicant that he would take the handcuffs off when the other police car arrived. It was at about this point in time that Brevet Sergeant Graham called for assistance.
[30] It is unclear on the evidence as to whether the applicant put his hand on the vehicle or Brevet Sergeant Graham put the hand there; as at T728, it appears that Brevet Sergeant Graham placed the applicant’s hand on top of the car to calm him down.
A USB was tendered containing the SAPOL radio communications that occurred as a result of Brevet Sergeant Graham requesting backup.[31] The series of communications commenced at 10.07pm. I have had the benefit of hearing all of these recordings. One thing that stands out from listening to the recordings, is that Brevet Sergeant Graham appears to sound relatively calm and measured. This stands in stark contrast to the applicant, who can be heard to be loudly moaning throughout a number of the recordings. That moaning is an unusual sound, and is consistent with the applicant having some sort of anxious episode.
[31] Exhibit R119.
It was Brevet Sergeant Graham’s evidence that Senior Constable Bradley Westbrook and Brevet Sergeant Melissa Lee arrived shortly after his request for assistance. Brevet Sergeant Lee can first be heard on the recordings at 10.07.28pm. The following exchange occurred at that time:[32]
[32] Exhibit R119; a transcript of this recording was marked for identification but not tendered.

Male officer
(Graham):

Well, the […?] not working mate. I’m at Chief Street. Brompton, I just got one under arrest

Female officer
(Lee):

With 20, making our way.

By 10.13pm, Brevet Sergeant Lee must have been at the scene because she is heard to say “Since I’ve been here…um, we’re not sure about what is going on with this male, some sort of panic attack. He’s saying he has a medical condition, but he’s not giving us much info. Can you just see how far ambos are?”.
Brevet Sergeant Graham was unable to say who called the ambulance or when that occurred. However, from the recordings, it is apparent that it must have occurred sometime prior to 10.13pm.
Brevet Sergeant Graham said that, once the other police officers arrived, they walked the applicant to the footpath, whereupon he removed the handcuff from the applicant’s right wrist and the applicant sat down on the ground whilst they waited for the ambulance. During that time, Brevet Sergeant Graham noticed that the applicant was moving in a way that made it appear he was taking turns in leaning back on each of his elbows.
Although the timing is unclear, Brevet Sergeant Graham gave evidence that during his dealings with the applicant, at some stage the applicant claimed that Brevet Sergeant Graham had aggravated an old injury in his right shoulder and that had only recently underwent surgery. When asked at what stage during the arrest process this occurred, Brevet Sergeant Graham explained:[33]
I think part of it was when he said that initially, because I know he repeated it multiple times, so I think the first time he made it clear it was either just prior to the ventilating or during, the hyperventilating, where he was moaning, because he chopped and changed a bit with the way he behaved, so I remember, for example, when he was on the footpath speaking with the ambulance officers, and then the ambulance officers came back to us to talk about - it was about the medication, and I don’t remember the exact words they used, but they said that he is claiming a, b, c, whatever he was claiming, and I got the impression he overheard what was said and he went from stopping his moaning to butting in and shouting out a comment about ‘No, that’s not right’, or - he was disagreeing with what was being said, I don’t remember exactly what was being said at the time.
[33] T745.
Once the ambulance arrived Brevet Sergeant Graham briefed the paramedics and he observed them having a conversation with the applicant.
Neither of the paramedics was called to give evidence. However, the records of their attendance were tendered. I will come to deal with these records in due course.[34]
[34] At [115]-[116].
Brevet Sergeant Graham gave evidence that, whilst the paramedics were in attendance, they told him that the applicant had asked about some medication that he needed for his anxiety and had asked that someone go to the car and look for it. As a consequence of this, Brevet Sergeant Graham went to the car and retrieved a small white pill bottle which contained some cannabis and tablets. Brevet Sergeant Graham was unable to locate any other medication.
Brevet Sergeant Graham travelled in the front of the ambulance to the hospital with the applicant and paramedics. It was his evidence that his only interest in attending at the hospital was to obtain a sample of the applicant’s blood to determine if he had any drugs or alcohol in his system.
Once at the hospital, Brevet Sergeant Graham went inside with the applicant. He said that they arranged for a doctor to attend “pretty quickly”, who took the blood sample and provided it to him. When asked whether the exchange that the applicant gave evidence about had occurred, Brevet Sergeant Graham said that he would have asked the doctor if he knew which box to tick, because he had known emergency department doctors to tick the wrong box. He however denied the second part of the conversation, and said that he did not know of the applicant before that night.
Brevet Sergeant Graham said that when he went to leave, he realised that he had not served the paperwork for the loss of his licence on the applicant, so he returned to the hospital. He described an exchange that occurred when he went back in:[35]
So, I’d not served him with an instant loss of licence at that stage, or I had not given him some paperwork, I had to give him something, I remember that, and at that time he was leaving the hospital, which I found very strange, and he was pulling a jumper on and raising his arms above his head and putting his jumper on and I thought ‘Well, this is really weird considering I’ve aggravated and caused some serious injuries’, and I gave him something, it was some document and then I said ‘You will be getting a fine in the post for your dope’, and he says ‘What dope?’ I said ‘The one in the centre console where there had been the medication packet’, and he said ‘Whatever, fuckhead’, and I [got] in my car and left.
[35] T749.
Between that time and attending at court to give evidence, Brevet Sergeant Graham had not seen the applicant again.
Issues in dispute between the applicant and Brevet Sergeant Graham
As is clear from the recitation of the accounts of these two main witnesses, there were significant differences in their versions of events. It is useful to identify what those differences were.
1. The applicant’s driving prior to the events on Chief Street
On the applicant’s account, there was nothing untoward or illegal about the manner in which he was driving after he left his partner’s address at Trembath Street. It was his evidence that he could not have been the driver of the car that Brevet Sergeant Graham saw “take off” from that street (if there had in fact been such a car) given, on his version, sufficient time had passed between his arrival on Chief Street and Brevet Sergeant Graham’s arrival, for him to take his dogs to urinate.
It was Brevet Sergeant Graham’s evidence that his attention had been drawn to the dark vehicle because of the manner in which it was driving. Although Brevet Sergeant Graham conceded that on two occasions, he had momentarily lost sight of the vehicle he was pursuing, the only logical inference from his evidence is that it was the applicant that Brevet Sergeant Graham had observed driving in an erratic manner. That is particularly so, given the absence of any other vehicles in the vicinity at that time.
2. The initial exchange between the applicant and Brevet Sergeant Graham
It was the applicant’s evidence that it was Brevet Sergeant Graham who was the aggressor in their interaction, that he was calmly sitting there minding his own business when Brevet Sergeant Graham alighted from the police car and rushed toward him in an angry manner. In the exchange that followed, it was the applicant who remained rational and unflustered, whilst Brevet Sergeant Graham became increasingly angry.
Brevet Sergeant Graham’s evidence was completely at odds with this. From his perspective, this was a routine traffic stop. So much so that when he got out of his vehicle, he already had the alcotest in his hand. Whilst Brevet Sergeant Graham could not recall the precise terms of what he had said to the applicant, it was in the nature of the typical sort of comment that a police officer would make in a traffic stop such as this. He said the applicant kept repeating words to the effect of “I wasn’t driving” and “I refuse to blow”. It was at this point that Brevet Sergeant Graham provided the applicant with the “good cause defence” as set out previously.[36]
[36] At [57].
The applicant denies that Brevet Sergeant Graham provided him with the good cause defence.
3. The circumstances in which the applicant came to get out of his car
Again, the accounts of the applicant and Brevet Sergeant Graham are diametrically opposed on the topic of how the applicant came to get out of his car. It was the applicant’s evidence that, in response to him saying that he was going to record the conversation, Brevet Sergeant Graham lunged into his car and effectively dragged him out. Although the applicant agrees that Brevet Sergeant Graham said that he wanted to conduct an alcotest, he denied that he had one in his hand at the time. He said that Brevet Sergeant Graham grabbed him by the jumper and pulled him out of the car, causing him to scream out, “Sir, please don’t hurt me. I’ve had spinal surgery, I have bolts in my neck, I can’t breathe, I have a medical condition”.[37] Once out of the car, the applicant said that Brevet Sergeant Graham grabbed him by the right arm, turned him around, pushed him toward the car and slammed his head into the top of the roof of the car.
[37] T110.
Consistent with his account about the earlier events, it was Brevet Sergeant Graham’s evidence that the applicant remained the aggressor throughout their interaction. He said that the applicant voluntarily got out of the car, that the applicant pushed the door open and shaped up to him, appearing angry with his fists clenched. It was at that point that Brevet Sergeant Graham determined that he would not allow the situation to escalate any further and made the decision to arrest the applicant. Brevet Sergeant Graham admitted that, in doing so, he used a degree of force in that he pulled the applicant’s right arm up against his back and manoeuvred the applicant toward the car to effect the arrest. He however, denies pushing the applicant’s head into the roof of the car.
4. The arrest
From the point of the arrest, the differences in the versions of events provided by Brevet Sergeant Graham and the applicant are less stark.
It was the applicant’s evidence that, as Brevet Sergeant Graham was applying the handcuffs, he told him that he was under arrest for failing to comply with an alcotest. The applicant said that he was unhandcuffed almost immediately after he had been handcuffed. It was “almost instantaneously”.[38] He described Brevet Sergeant Graham walking away once he was released from the handcuffs and then returning to say “The ambulance is on its way. You can get your blood test now”.[39] Throughout all of this the applicant described himself as crying and screaming out in pain.
[38] T378.
[39] Ibid.

Brevet Sergeant Graham also described a change in the demeanour of the applicant once he had applied the handcuffs, although what he described was something more in the nature of a panic attack rather than someone crying out and screaming in pain. Brevet Sergeant Graham’s evidence was, however, consistent with that of the applicant in that as he was putting the handcuffs on, he believes that he said words to the effect of “You’re under arrest for failing to blow”.[40] Brevet Sergeant Graham’s account as to how long passed before the right handcuff was removed is also consistent with the applicant in that it was a very short period of time. Brevet Sergeant Graham estimated that it was about 20 seconds.[41]
5. The arrival of Senior Constable Westbrook and Brevet Sergeant Lee
[40] T723.
[41] T729.
The applicant gave evidence that Senior Constable Westbrook and Brevet Sergeant Lee arrived at a point in time after both of the handcuffs were released. He described them as escorting him to the footpath and forcing him to sit down. The applicant describes one of the police officers, most likely the male, at one stage pushing him backwards when he attempted to stand. He said that it was about this time that he requested them to obtain medication from his car, and, although he saw them move towards his car, they did not return with any medication. It was the applicant’s evidence that about 10 to 15 minutes after that the ambulance and paramedics arrived.
Brevet Sergeant Graham’s evidence was that he believed that the applicant still had one handcuff on his right wrist when Senior Constable Westbrook and Brevet Sergeant Lee arrived. He said that, once they had arrived, they walked the applicant over to the footpath and removed the handcuff. The applicant sat on the ground whilst they waited for the ambulance to arrive. Brevet Sergeant Graham thought about five to 10 minutes passed between the arrival of the two other police officers and the ambulance. Brevet Sergeant Graham said that, once the paramedics arrived, he stood back to enable them to undertake an assessment of the applicant. It was his evidence that, at some stage, one of the paramedics approached him and asked him to go and look for the applicant’s medication for anxiety in his car. Brevet Sergeant Graham described retrieving a small pill bottle containing cannabis and some other medication from the centre console of the car.
There is no dispute that Brevet Sergeant Graham travelled in the front seat of the ambulance that transported the applicant to the hospital.
6. Events at the hospital
The applicant described waiting a long time for the doctor to arrive and take a blood sample. During that time, he was in a room, with Brevet Sergeant Graham seated at the door.
The applicant said that, whilst the doctor was present, there was a conversation in which Brevet Sergeant Graham asked the doctor if he knew which box to tick and told the applicant that “he wouldn’t get away with it again”.
It was the applicant’s evidence that, on his return to the hospital to collect his forgotten jumper, Brevet Sergeant Graham approached him with the jumper and the licence disqualification paperwork. Brevet Sergeant Graham made a comment about the applicant’s shoulder appearing to be better.
The applicant denied swearing at Brevet Sergeant Graham and putting his jumper back on in Brevet Sergeant Graham’s presence.
Brevet Sergeant Graham agreed that the applicant was left waiting in a separate room to have his blood taken and that he had stood at the door. He said that they did not have to wait long for the doctor to arrive to take the blood, and although he admitted that he is likely to have asked the question about ticking the box, he believes that he is unlikely to have said anything about the applicant not getting away with it again. Brevet Sergeant Graham pointed to the fact that he did not know the applicant prior to these events.
It was Brevet Sergeant Graham’s evidence that it was he who left the hospital and returned in the realisation that he had forgotten to give the applicant the licence disqualification paperwork. He said that, right before he gave him the paperwork, he watched the applicant put the jumper on by putting his arms above his head without any apparent pain or restriction. This manoeuvre was at odds with the pain that the applicant had been complaining of. Brevet Sergeant Graham told the Court that it was as they went their separate ways that the applicant swore at him.
There are significant differences in the accounts of the applicant and Brevet Sergeant Graham. Before I make a determination as to what I find has been proved, I turn to consider the other evidence that may assist in shedding some light on the events of Good Friday 2015. This includes evidence from other police officers who were present during parts of the events, SA ambulance records, evidence about interactions between Mr Cosenza and the police on other occasions, evidence about an incident that occurred in the Central Market carpark and the medical and psychiatric evidence.
Evidence of Senior Constable Bradley Westbrook and Brevet Sergeant Melissa Lee
Senior Constable Westbrook and Brevet Sergeant Lee were both called to give evidence about the events of Good Friday. Before I turn to the details of their respective accounts, I want to make some general observations about their evidence.
I have no doubt that these witnesses were doing their best to tell the truth, however, their ability to provide a reliable account was hampered by a number of matters. The first was the length of time that has passed since these events occurred. Whilst it is not uncommon for witnesses to be required to give evidence after a lengthy delay, commonly, they will have been required to give statements or affidavits at a point much closer in time to the relevant events. The benefit of that is twofold. First, it generates a more contemporaneous document from which a witness can refresh their memory at a later point in time. The second benefit is that it enables a witness to bed down a memory at a time when that memory is still relatively fresh. The witness also knows from the point in time that they are required to produce a written account, that the relevant events have taken on some significance and, as such, the memory is more inclined to retain those details.
There is limited evidence about when Senior Constable Westbrook and Brevet Sergeant Lee were required to first produce statements or affidavits and, even more importantly, when they first became aware that their dealings with the applicant had any particular importance. Although there is evidence that Senior Constable Westbrook swore an affidavit on 30 November 2015, over seven months later, there is no context as to how that came about or the purpose for which it was required. As much emerged in his re-examination.[42] That affidavit was tendered.[43] It is so brief that I set out the contents in full:
[42] T874.
[43] Exhibit A133.
1.I am a Constable of Police, ID74724 stationed at Kadina Police Station. I compiled this statement at about 10.00am on Monday the 30^th of November 2015.
2.At about 10.00pm on Friday the 3^rd of April 2015 I was working in company with Constable Melissa LEE when we were tasked to attend Chief Street BROMPTON to assist Senior Constable Alan GRAHAM with an arrest.
3.On arrival to the location I observed GRAHAM standing and holding a male at the driver side of the vehicle. The male is now known to me as Dean COSENZA.
4.COSENZA was walked from the road over to the footpath where he sat on the curb.
5.I can’t recall when COSENZA was handcuffed but I heard him complain that he had a sore shoulder so we removed the handcuffs from his back and moved his arms to the front before applying the handcuffs again. At times he would roll around on the hard gravel and bitumen footpath. He was held as to prevent any injury occurring.
6.COSENZA was yelling but I can’t recall what he was saying. I can’t recall if I had any conversation with him in relation to the alleged incident. At some points during the incident he appeared to breathe short shallow breaths. I did not observe any injury.
7.Police requested an ambulance to attend. COSENZA was conveyed to the Royal Adelaide Hospital. I followed the ambulance to the hospital.
8.When I was present with GRAHAM at the hospital I heard COSENZA yelling. I can’t recall what he was yelling.
9.At about 11.00pm I left the hospital and resumed normal patrol duties.
There was no evidence about when Brevet Sergeant Lee first provided an affidavit or first turned her mind to these events,[44] however in cross-examination, Brevet Sergeant Graham was taken to a statement purportedly made by Brevet Sergeant Lee on 30 November 2015.[45]
[44] Although an affidavit provided by Brevet Sergeant Lee was marked for identification, it was never tendered.
[45] T813.
From their perspectives Senior Constable Westbrook and Brevet Sergeant Lee were two uniformed police officers who were on standard patrol duties. The most extreme of the applicant’s conduct had passed by the time of their arrival and, once there, they were given the relatively routine task of assisting Brevet Sergeant Graham by waiting with the applicant for an ambulance to arrive. From that point, their only remaining role was to drive Brevet Sergeant Graham’s car to the hospital to enable him to travel with the applicant in the ambulance.
As far as they were aware no serious offence had occurred that night and there is no suggestion that they were required to provide statements for a criminal prosecution. It could not possibly have been in their contemplation that they would be required to give evidence in a civil trial in the Supreme Court some seven years after the event about their brief interaction with the applicant that Good Friday evening. It would also be a safe assumption that, since that time, both officers would have had hundreds, if not thousands, of further interactions with members of the public.
Senior Constable Westbrook gave evidence that, at the time of these events, he was stationed at the Parks Police Station as a general duties patrol member. At the time of trial, he was undertaking similar duties at the Kadina Police Station. Senior Constable Westbrook’s recollection as to how he came to be involved in these events was, at best, vague. He gave evidence that he and Brevet Sergeant Lee were together in a police car when they received a call over the police radio to provide some assistance at Chief Street, Brompton. He was unable to say where they were when they received the call or provide any further detail of the information that they were given.
Senior Constable Westbrook could not say how long it took them to get to Chief Street, or from which end of the street they entered. His only memory of what occurred at the scene was that, at some point, he could recall the applicant standing at his car and he could also recall the applicant sitting on the kerb. He could not say which position the applicant was in when he first arrived. Senior Constable Westbrook described seeing Brevet Sergeant Graham standing close to the applicant but could not recall what Brevet Sergeant Graham was doing at that time.
When asked whether he was involved in assisting with the handcuffing of the applicant, Senior Constable Westbrook was unable to say whether or not he was. He could not recall whether he had deployed his own handcuffs. He said he could remember that at one point the applicant was sitting on the kerb whilst handcuffed. However, he could not say whether he had been handcuffed before they arrived, when he was standing at the car or when he was sitting on the kerb. His recollection was that the applicant was handcuffed to the rear. Senior Constable Westbrook gave evidence that he recalled, at one point, the applicant was pushing himself backwards and rolling on both shoulders whilst handcuffed to the rear. He said:[46]
One thing I can recall is that when he was handcuffed to the rear whilst sitting on the kerb making complaints about pain in his shoulders he was also laying backwards almost pushing himself backwards and rolling on his - on both shoulders side-to-side while handcuffed to the rear. Just against I guess the advice that was given to try and sit still and they would get his pain assessed but other than that I can’t recall any further behaviour.
[46] T867-868.
Senior Constable Westbrook also had a recollection that, at some stage, the handcuffs were moved to the front. He said he believed that happened whilst the applicant was sitting at the kerb but he was not sure about that. He said that at some point, the handcuffs were removed but he cannot say who was involved in that process.
Senior Constable Westbrook had no recollection of an ambulance arriving. However, he did appear to have a vague memory of being at the hospital, although he cannot recall how he got there.
Since that time, Senior Constable Westbrook has had no further contact with the applicant.
Whilst Senior Constable Westbrook was clearly doing his best to assist the Court, I formed the clear impression that he had very little memory of these events. It seemed, at times, he was attempting to pull together a vague recollection or impression. In those circumstances, there is limited weight that I can place on his evidence.
At the time of trial, Brevet Sergeant Lee was working at the Investigation Support Desk as an intelligence officer. In 2015, Brevet Sergeant Lee was a Senior Constable working at the Parks Police Station in uniformed patrols.
Brevet Sergeant Lee appeared to have a more detailed memory of the events of Good Friday than Senior Constable Westbrook. Her account, however, was also at odds with that of the applicant and Brevet Sergeant Graham as well as Senior Constable Westbrook. She recalls being on general patrols with Senior Constable Westbrook when they received a radio communication requesting assistance on Chief Street, Brompton. It was her memory that the purpose of their attendance was a traffic stop with a difficult person. It sounded to her like the patrol member in attendance needed some assistance. She said that, at that time, they were in the Brompton area already so they did not have far to travel. She believes that it took them about five to ten minutes to get to Chief Street.
Brevet Sergeant Lee said that, when they arrived at Chief Street, they pulled up behind the applicant’s vehicle. She said that as they pulled up, she saw that the driver’s door of the applicant’s car was open and that Brevet Sergeant Graham was standing with a male near the driver’s door. She explained that they were positioned in the cavity left by the open door. Brevet Sergeant Lee said that, as they approached, Brevet Sergeant Graham was standing behind the applicant and it looked like he was trying to put handcuffs on him. She said, however, that she saw no handcuffs. When asked why she drew the conclusion that Brevet Sergeant Graham was attempting to use handcuffs, she said because of the position in which he and the applicant were standing. She said that initially there did not appear to be any physical contact between them but, as she came closer, it looked like Brevet Sergeant Graham was trying to handcuff the applicant, and she recalled that Senior Constable Westbrook went to his assistance. At that time, the closest that she got to the three men was about a metre away whilst standing at the back of the applicant’s car. When asked when she first saw the handcuffs, Brevet Sergeant Lee said, “when they were on him already, so they’d already got his hands behind his back”.[47] Brevet Sergeant Lee gave evidence that either Senior Constable Westbrook or Brevet Sergeant Graham asked the male to come off of the road and onto the footpath. Brevet Sergeant Lee said that, although at some point the applicant was released from the handcuffs, she was unable to say at which stage in the sequence of events that occurred.
[47] T878.
When asked to describe the applicant’s demeanour during this time Brevet Sergeant Lee said “He was very heightened. Like he was just shouting and almost crying. Very emotional”.[48] She recalled that he was complaining and saying that he had some medication in his car that he wanted. As a consequence, Brevet Sergeant Lee went to the applicant’s car and attempted to locate medication. She was unable to find any. Brevet Sergeant Lee gave evidence that she then went back to tell the applicant that she was unable to locate the medication and attempted to clarify with him the nature of his medical issues. She said that she was however unable to get an answer from him that she could understand. It was the evidence of Brevet Sergeant Lee that, about five minutes after this, the ambulance arrived. She said that, once the paramedics were there, they endeavoured to ask the applicant some questions about any medical issues that he had. However, he remained heightened and continued shouting. She observed that the paramedics were not able to get much information from him. Brevet Sergeant Lee’s account gains some support from the SA Ambulance Service records.
SA Ambulance Service Patient Report Form
[48] T879.
As indicated previously, neither of the paramedics who attended at the scene was called to give evidence. Their record of this attendance, an SA Ambulance Service Patient Report Form (‘SA Ambulance Report’), was tendered as a business record.[49] That record establishes that the ambulance arrived at the scene at 22.19 and left the scene at 22.40. The presenting complaint was recorded as anxiety. Under history, it is noted that:
-    49 year old [male] pulled over by SAPOL, has refused to give alcohol reading claiming anxiety as a medical defence.
-    also [complaining of] [right] shoulder pain, alleging SAPOL assault.
-    non-compliant with SAAS or SAPOL requests. [Transfer] to RAH.
[49] Exhibit A1.
There are three other notes in the SA Ambulance Report recording that the applicant was non-compliant, a further note stating that he was argumentative, and a note that indicates that, at one point, the paramedics appeared to be considering whether his behaviour was a product of intoxication.
Evidence of applicant’s interactions with police on other occasions
The next category of evidence capable of assisting in the resolution of the factual dispute surrounding the events of Good Friday 2015, is evidence that was adduced by the respondent about the applicant’s attitude and behaviour towards police on other occasions.
During the course of the applicant’s evidence, the respondent tendered three recordings of the applicant’s previous interactions with police. The first was footage taken on 8 June 2010 that was subsequently uploaded onto YouTube by the applicant on 13 August 2014.[50] The remaining two pieces of footage related to attendances by police at the applicant’s property on 13 December 2019 and 9 October 2020.[51] Each of the recordings showed the applicant becoming highly agitated with police during relatively innocuous dealings with them. Although I take the point made by Senior Counsel for the applicant, that these recordings are not temporally connected with the events of 3 April 2015, they do relate to events on dates both before and after that occasion. In combination, they provide me with a window of insight into the applicant’s attitude towards police and the manner in which he has engaged with them in the past.
[50] Exhibit R53, with the transcript of this video marked for identification as Exhibit MFI R54. The fact that the applicant published the recording on YouTube tends to demonstrate a degree of self-satisfaction in the manner in which he conducted himself towards the police officer.
[51] Exhibit R55, Exhibit MFI R56, Exhibit R57 and Exhibit MFI R58.

On the facts of that case Hodgson JA found that the communications from Mr Wilson were such as to convey to the officers, or to a reasonable person in their position, that he did not have the authority to revoke their implied licence and accordingly the licence was not revoked.[524]
[524] Ibid at [52] per Hodgson JA.
In Maynes v Casey, the Shire Council of Cowra sought to serve Mr and Mrs Maynes with papers to commence proceedings in the Local Court for the recovery of unpaid rates. The Council through their solicitor engaged a process server to effect service of the paperwork. This process server was the son of a solicitor who was a partner in the firm used by the Council. The process server attended upon the property of Mr and Mrs Maynes to serve the papers. It is this conduct that became the basis of an action for trespass. The respondents to that action were the solicitor and the process server.
One of the issues that fell for determination by the Court of Appeal was whether, and if so, when the implied licence to enter the property of Mr and Mrs Maynes had been revoked. There were three courses of conduct undertaken by Mr and Mrs Maynes that were relied upon as amounting to a communication of a revocation. These were the publication of a letter in a local newspaper in 2006, correspondence between Mr and Mrs Maynes and the Council and the positioning of a sign at a point where a public roadway commenced to cross the property.
The letter written by Mr and Mrs Maynes was published in a local newspaper in June 2006, predating the relevant events by more than two years. The Court of Appeal also proceeded on the basis that the respondents had not read the letter and it did not suggest that Mr and Mrs Maynes were attempting to give notice that they were withdrawing an implied right of entry onto their property from any Council officer or other person.
The second matter upon which reliance was placed was more closely contemporaneous with the relevant events. In August 2008 Mr and Mrs Maynes wrote to the Council, setting out their views as to the legal entitlement of Council officers to enter their property without permission. The respondents were not aware of the correspondence, even though one of them was a partner in a firm who acted for the Council.
The third and primary basis relied upon Mr and Mrs Maynes as amounting to a withdrawal of implied consent, was the erection of a sign near a cattle grid where the road crossed the southern boundary of their property. The trial Judge found that the sign was positioned too far from the cattle grid to be visible at a time when the process server was negotiating the grid in the dark, the sign not being illuminated and, even if visible, its contents other than the word “STOP” were not legible. The trial Judge therefore concluded that the sign was ineffective to communicate to the process server that implied consent to enter the property had been withdrawn.
The findings of fact were inconsistent with any awareness on the part of the respondents that the authority or licence implied by law, permitting the first respondent to drive up to the applicant’s home, had been withdrawn.
It was argued on appeal that the liability for trespass arose if the owners of a property had taken reasonable steps to notify potential visitors that they had no implied permission to come onto the property. On that argument if followed that the lack of subjective awareness on the part of the visitor is irrelevant.
In support of that proposition the appellants purported to rely on Halliday v Nevill[525] and Plenty v Dillon.[526] In considering that submission and those authorities Basten JA (with whom Allsop P concurred) made the observation that:[527]
while the passages relied upon all support the principle that an implied permission can be withdrawn by notice, none stated that the mere publication of a notice, unbeknownst to the visitor was sufficient to render the person a trespasser.
[525] [1984] HCA 80; 155 CLR 1 at 7.
[526] [1991] HCA 5; 171 CLR 635.
[527] Maynes v Casey [2011] NSWCA 156 at [28] per Basten JA.
Basten JA identified that the only authority to deal with the particular issue was Wilson which was squarely on point against the appellants, requiring that a licensee must have notice that the licence is revoked.
On that basis, in Maynes v Casey, the Court held on the facts of that case that the implied licence for the process server to enter the premises had not been revoked prior to him stepping onto the property.[528]
[528] Ibid at [28]-[29] per Basten JA.
The final authority that may be worth mentioning on this topic is Plenty v Dillon. Although the High Court proceeded on the basis that there had been a revocation of the implied licence, it is worth considering the basis upon which that decision was arrived at by reference to the decision of the court below.
In Plenty v Dillon[529] the relevant trespass took place on 5 December 1978 when two police officers, Constables Dillon and Will, attended at Mr Plenty’s property to serve a summons. Prior to this there had been earlier efforts to serve the summons. On 6 October 1978 two different police officers, Constables Fisher and Vort-Ronald, had attended Mr Plenty’s property to serve the summons. On that occasion Mr Plenty was uncooperative and ordered the police officers off his land.
[529] (1988) 50 SASR 407.
Subsequent to this but before 31 October 1978, Mr Plenty had written to Chief Inspector Jennings,[530] enclosing a copy of a letter to the Premier. The gist of the letter was that Mr Plenty wanted any summons to be served by mail.
[530] There is no information contained in the judgment about the police stations at which these officers were based on their respective roles.
On 31 October 1978, Chief Inspector Jennings and Constable Will attended at Mr Plenty’s property in a further unsuccessful attempt to effect service of the summons. There was another acrimonious exchange between Mr Plenty and the police during which it was made plain that Mr Plenty would not accept personal service of the summons.
On appeal to the Full Court, it was Mr Plenty’s main argument that Constable Dillon was a trespasser on his land because he knew that his implied or tacit leave or licence to come onto the land had been expressly revoked.[531]
Whatever his motives, Mr Plenty adopted a strong stand that he wished the summons to be served by post. He made it plain to the police (this was conceded by the Crown) that he did not wish the police to set foot on his property. In so far as it was with in his power, he withdrew the common law tacit or implied leave or licence for members of the public (including the police) to enter upon his property. He did this in October 1978 when the third defendant (Jennings) attempted unsuccessfully to serve the daughter’s summons non-personally upon him. Mr Plenty ordered Jennings off the premises. He also wrote to the Premier and sent a copy of that letter to Jennings. In that letter he ‘required’ service of process by post.
[531] Plenty v Dillon (1998) 50 SASR 407 at 408 per White J.
Although in dissent on the determinative issue of the appeal, Cox J also expressed the view that on the evidence Mr Plenty had revoked the implied licence. His Honour said:[532]
In my opinion, the appellant had plainly withdrawn any implied licence to the police to enter his land for the purpose of serving a summons or notice on an occupant, and it has not been shown that there was any common law right which provided the police with an effective substitute for that licence.
The application of the principles
[532] Ibid at 415 per Cox J.
It is clear from Wilson and Maynes v Casey, and to a lesser extent the Full Court decision in Plenty v Dillon, that in order for a person to revoke an implied licence to enter a residential premise there must be effective communication of that decision. A mere intent is insufficient, as is an intent accompanied by some nominal act that was unlikely to put the relevant member of the public on notice. Whether the relevant communication is sufficient will depend on the particular facts of a case, the category of the individuals to be excluded, the means of the communication and to whom the communication was made.
Maynes v Casey highlights that point. The first form of communication was temporally disconnected, remote in time and was not a clear expression of an intent to revoke the implied licence. The second form of communication was not directed to the respondents, nor were they provided with access to it. The final attempt to communicate took the form of signage at the property which was inadequate in terms of the size and positioning of the signs and consequently did not amount to an effective communication.
In this matter, the applicant’s communications took the form of written correspondence with SAPOL and a sign on a pillar adjacent to the driveway.
As to the written communications, on 23 July 2008 in a letter already referred to at [577], the applicant wrote to the Commissioner of police complaining about police attendances at his home.[533] The letter included this further passage:
We do not wish for any SAPOL member to attend my mother’s home under any circumstances; should any further breach of this not be adhered to (sic), we will be making an application for trespass to land as well as a potential negligence claim for breach of duty of care, should my mother be placed under any further duress on a full indemnity basis.
[533] Exhibit A22. In the letter, the applicant makes a reference to a request made in “January last year” in a manner that tends to suggest that there had been some form of earlier communication. However, no evidence of that communication (if it occurred) was produced.
Chronologically, the next relevant correspondence before me is a letter from Anthony Wainwright, Acting Police Complaints Authority to the Commissioner dated 9 September 2009.[534] That letter refers to an earlier letter and enclosures sent by the Commissioner on 4 August 2009. The earlier letter and enclosures were not produced or tendered.
[534] Exhibit A23.
In his letter Mr Wainwright appears to be responding to a complaint made by the applicant. Mr Wainwright sets out the details of the complaint in his letter as follows:[535]
[535] Ibid.
The complaint
The complainant alleged that, on 26 June 2009, Senior Constable Abbott had unlawfully trespassed at his residence. He said that he had previously revoked the implied licence of police officers to enter his place of residence. He claims that this was a trespass which had no consideration for the rights of himself and his mother who, he says, was distressed by it and required medication.
In the letter Mr Wainwright acknowledges an Ancillary Report on the PIMS system raised on 23 July 2008 which makes reference to the applicant having withdrawn consent for police to enter onto his property.
In concluding the letter, Mr Wainwright advised that there would be no disciplinary action because the police officer who attended at the applicant’s house genuinely believed that she had authority to be there. Further, Mr Wainwright stated that it would appear that the applicant was instituting civil proceedings and that was the appropriate forum in which to have the issue determined.
On 5 December 2011, there was a further letter from Sarah Bolt, Police Complaints Authority to the Commissioner.[536] I have already referred to this in passing. This is the letter that raises a complaint by the applicant about police attending at his house on 27 May, 7, 8 and 22 June 2010. In the letter Ms Bolt sets out in some detail the applicant’s history of dealings with SAPOL. She makes specific reference a further incident in June 2009 and that when the applicant was advised of the outcome in relation to the incident, he expressed concerns that such further trespasses would occur in the future. Ms Bolt notes “the PCA advised him that the relevant warning and ancillary report remained on SAPOL’s computer system”.
[536] Exhibit A117.
In the letter Ms Bolt set out the law in relation to the revocation of an implied licence to enter a property. In that context she makes some observations about the applicant’s circumstances.[537]
It is not in dispute that he has advised SAPOL of the fact he has revoked police officers’ implied licence to enter his property and this has been recorded on SAPOL computer systems. When a PIMS (Police Incident Management System) search is conducted on Mr Cosenza’s name the following message appears on the screen:
“Do not Approach Home Address, Ancil 09/L69651”, Ancil 09/L69651 is a reference to an ancillary report which indicates Mr Cosenza has withdrawn his consent for police to enter his property, that police should contact him by phone, and that he would complain if they came onto his property.”
[537] Exhibit A117.
Towards the end of the letter Ms Bolt summarised the situation:
It is not in dispute that Mr Cosenza had revoked the implied licence police would otherwise have to enter his property. He has communicated this revocation of licence to individual officers and to SAPOL more generally. His revocation is specifically noted with his personal details on SAPOLs PIMS data base. He has repeatedly advised both SAPOL and the PCA of his concerns regarding police trespassing on his property, and he has sought advice on what more he can do to prevent such trespasses occurring.
On 6 March 2012 Ms Bolt wrote to the applicant advising him of the progress of his complaints.[538] In that letter she advised that SAPOL should strengthen the message on the police data base with a view to reducing the risk of police committing trespasses in the future. She told him:[539]
[538] Exhibit A118.
[539] Ibid.
Now when officers check your details a warning comes up advising them the implied licence to enter your premises has been revoked. It refers officers to an ancillary report that states the following:
Dean Cosenza of […][540] Woodville South has revoked the implied licence for SAPOL members to attend his address. In the absence of a lawful authority to do so, members who go on to his property may commit a civil trespass and be subject to civil and Police Disciplinary Proceedings.
The circumstances where officers will have lawful authority to go on to the property notwithstanding the revocation of the licence include:
a) To affect an arrest, warrant pursuant to section 75 of the Summary Offences Act.
b)    Executing a warrant of apprehension.
c)    In the case of an emergency
d)    With the express permission of Dean Cosenza or other occupant of the premises.
Attendance for the purpose of serving a summons or other general enquiries will not amount to a lawful authority.
Guidance should be sought from the member’s supervisor before attending the premises.
[540] Address removed.
In my view the applicant through his communications with SAPOL and the police complaints authority had clearly and unequivocally revoked the implied licence to enter his premises.
What is the significance of Mr Kluzek and Senior Constable Mitchell being unaware of the revocation of the implied licence?
The next issue that arises for consideration is the significance of Mr Kluzek and Senior Constable Mitchell being unaware of the applicant’s revocation of the implied licence. There was no dispute that neither were aware of the applicant’s history with SAPOL and his revocation of the implied licence to enter his property. They had no previous dealings with him and did not know of the entry on the PIMS system. It was only after the relevant events that they became aware of this information. Also, as I have previously mentioned, neither Mr Kluzek nor Senior Constable Mitchell were asked about whether they saw the sign at the front of the applicant’s property. In the circumstances I am prepared to infer that they did not. Given the importance of the issue, had they seen the sign it would have been something that was raised in their evidence. Also, given the size and position of the sign, it would hardly be surprising for them to have not seen it or registered its importance or meaning. I will come back to the size and position of the sign when I come to deal with the question of damages.
The question that arises is that in circumstances in which SAPOL were clearly on notice about the revocation of the implied licence, does it detract from their liability that the two officers in question were ignorant of the situation? Ithink not. This is a very different situation to that in Maynes v Casey for two reasons. Firstly, although one of the respondents in that case was a partner in a law firm which acted for the Council, neither of the respondents worked for the Council, nor would it be expected that they would be privy to the Council’s day to day affairs. Also, whilst in Maynes v Casey the applicants wrote to the Council setting out their views about the legal entitlement of Council officers to enter the property without permission, this was no way near the extent of the communications that passed between the applicant and SAPOL. By May 2015 not only had significant correspondence passed between the parties but the applicant had already instituted an action against SAPOL for trespass. The applicant could not have been any clearer about his desires for police to not attend at his property. It was incumbent upon SAPOL to ensure that information was passed on to its officers.
I find that the four trespasses have been made out.
Damages
The tort of trespass is actionable per se. It is the interference with basic interests that is the gist of the cause of action, rather than actual harm.[541] This permits an applicant to bring a claim to vindicate their interests, regardless of whether the conduct leaves them any worse off.[542] Compensatory damages are not only available to compensate for any negative physical, psychological, emotional or economic effects actually suffered by an applicant as a result of the wrong, but damages may also be given for the interference with basic interests in and of itself, irrespective of whether actual loss was suffered. Such awards, serve to vindicate the importance of those basic interests which are the very objective of the law’s protection.[543] This reflects that the principal concern of the law as it relates to trespassory torts is in maintaining basic interests inviolate, notwithstanding whether an interference results in actual harm.[544]
[541] Director of Public Prosecutions v Wille (1999) 47 NSWLR 255 at 258 [19] per Kirby J.
[542] Hill v Higgins [2013] NSWSC 270 at [36] per Harrison J, citing Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635 at 654-5 per Gaudron and McHugh JJ.
[543] David Rolph, Jason N E Varuhas, Penelope Crossley and Michael Douglas, Balkin and Davis; Law of Torts (LexisNexis, 6^th ed, 2021) 42 [2.73].
[544] Williams v Milotin (1957) 97 CLR 465 at 474 per Dixon CJ, McTiernan, Williams, Webb and Kitto JJ.
It follows that a wide range of damages are available in order to afford protection to those interests protected by the trespassory torts. By way of summary, nominal damages are available for transitory interferences; even a minor interference with basic interests shall be met with a remedy to mark the wrong. Exemplary damages have long played a significant role in trespassory actions, and an egregious interference must be met with a strong remedial response to reinforce that such interests ought to be respected.
There is no dispute that each trespass is a separate tort and damages should be awarded for each.
It is the applicant’s position that he is entitled to receive damages for each of the four trespasses and that he is also entitled to aggravated and exemplary damages.
The applicant submitted that the cases have established a “kind of tariff for trespasses of this kind – sometimes $20,000 and sometimes $25,000”.[545] On that basis it was suggested that the applicant should be awarded $100,000 for the four trespasses.[546]
[545] Written Submissions of the Applicant dated 16 February 2022 (FDN 260) at [133].
[546] Ibid.

The respondent contended that this claim was excessive and that an award in the order of $8000-$12,000 for each trespass is more appropriate.[547] In support of that submission reliance was placed on the decision of New South Wales v Ibbet,[548] ($10,00 in general damages) and Shannon v State of New South Wales,[549] ($3,000 for general damages).
[547] Written Submissions of the Respondent dated 21 February 2022 (FDN 269) at Annexure D, 2.
[548] (2006) 229 CLR 638.
[549] [2015] NSWDC 69.
The applicant also sought aggravated damages on the basis that the “anger, shock and humiliation felt by Mr Cosenza were a natural and probable consequence of the police intrusions; moreover, the likelihood of such a reaction was well known to SAPOL”.[550] The applicant also relied upon the longstanding history between SAPOL and the applicant, that was such that SAPOL was aware that this was the very kind of conduct which could cause or exacerbate the applicant’s already vulnerable state.[551]
[550] Written Submissions of the Applicant dated 16 February 2022 (FDN 260) at [135].
[551] Ibid at [136].
Finally, it was submitted that the situation was compounded by the fact that each breach occurred separately and amounted to a separate incursion into the applicant’s proprietary rights. It was submitted that “each time Mr Cosenza announced that he opposed police presence on his property and reacted in a loud way, he was sending a message that it should not happened again – yet it happened again”.[552]
[552] Ibid at [135].
The difficulty with that submission is that it is at odds with Mr Kluzek’s evidence that he did not see or hear the applicant on the occasions that he attended at his house.[553]
[553] T900.
The applicant submitted an appropriate tariff for aggravated damages in these circumstances was $10,000 for each trespass.[554] The respondent submitted that this figure was excessive and if I arrived at the view that it was appropriate to award aggravated damages a more appropriate amount was a collective figure of $8,000 - $15,000.[555] Again reliance was placed on Ibett where there was an award of $20,000 for aggravated damages.
[554] Written Submissions of the Applicant dated 16 February 2022 (FDN 260) at [138].
[555] Written Submissions of the Respondent dated 21 February 2022 (FDN 269) at Annexure D, 2.
Finally, the applicant submitted that there should also be an award of exemplary damages. The basis of that claim was expressed in the following terms:[556]
One might have thought since the High Court delivered its judgement in Plenty v Dillon that SAPOL would have acted with the same considerable care before trespassing onto the property of South Australians – but apparently, not so. The rights which Mr Cosenza was asserting are rights owned by each of us; he was entitled to assert them. Mr Cosenza did the right thing by negotiating a wording to be placed upon the SAPOL database in accordance with a proposal made by the police Ex A118. How that came to be ignored reflects a defect in SAPOL’s systems as well as the training and discipline of police officers. Each of Mr Kluzek and Constable Mitchell were able swiftly to get to the database after they had trespassed on the property. Police officers should be trained to check on these matters before they enter a property.
(Emphasis in original)
[556] Written Submissions of the Applicant dated 16 February 2022 (FDN 260) at [140].
It was submitted that the applicant should be awarded $25,000 for exemplary damages.[557]
[557] Ibid at [141].
It was the respondent’s submission that $25,000 was excessive and that in the event that I arrived at the view that exemplary damages should be awarded, a sum in the order of $10,000 - $20,000 was more appropriate.[558] The respondent again relied upon Ibbett ($20,000 for exemplary damages) and Shannon v State of New South Wales ($5,000 for exemplary damages).
[558] Written Submissions of the Respondent dated 21 February 2022 (FDN 269) at Annexure D, 2.
There is some force in the matters that were raised by the applicant in support of the application for aggravated and exemplary damages. The applicant had made significant efforts to convey to SAPOL that he had withdrawn the implied licence and he had received a response that would have given him some comfort in that members of SAPOL had been put on notice of his attitude towards their entry onto his property.
There are however factors that weigh against the award of aggravated and exemplary damages. First of all, there are the circumstances in which the two police officers came to attend at the applicant’s premises. On each occasion there was a legitimate purpose for being there. They were unaware of the notification on PIMS. Mr Kluzek gave evidence that he believed that he had tacit consent to enter the property. He explained:[559]
I mean that I believed that it was like a common law thing. I was entitled to go to the door and at least knock on the door and if someone requested me to leave no worries I had to leave, but until that occurred, I was entitled to enter the property and at least, go to the door and attempt to make enquiries as to who was there.
[559] T902.
There was also nothing untoward or inappropriate about the conduct of either police officer whilst they were there. They each only remained at the property for a very short time and never moved beyond the front doorstep. Mr Kluzek did not hear or see the applicant on each of his three attendances suggesting that either the applicant was deliberately ignoring Mr Kluzek or was in fact not at home. Whilst Senior Constable Mitchell had some success in managing to speak with the applicant that conversation was very short. There is nothing in the evidence to suggest that she in any way delayed her departure once the applicant made his wishes known.
The second matter that I take into account that weighs against awarding aggravated or exemplary damages are the limited efforts that the applicant made to put those who attended at his property on notice that he had revoked his implied licence to enter. To my mind, an extraordinary feature of this case is that despite the applicant’s vehement protestations about any member of the public entering his property, he did remarkably little to convey that message. There was one relatively small sign attached to the pillar to the left of the driveway. It was positioned in such a way that only people entering the property from a particular direction and angle would necessarily see it. Its appearance was such that it was not inconsistent with common signage to the effect of “no junk mail”. Even more significantly, the applicant did not take the easy and obvious step of closing the driveway gates or securing any of the gates leading onto the property to ensure that his intentions were known.
Whilst there is no obligation on the applicant to do anything more than convey his revocation of the implied licence, his relatively feeble attempts to communicate that intent to any member of the public calls into question how genuine his motives were.
It is clear from the evidence before me that many unsuspecting members of the public and police have failed to see or appreciate the notice, have entered the property and, as a consequence, have ended up as the respondent in litigation instituted by the applicant. Although in his evidence the applicant claimed it was not about the money, and that he was happy with an apology,[560] relying on just those matters that I have been made aware of, the applicant has received in excess of $35,000 as a result of various settlements. In circumstances in which all that was necessary to keep people off his property was secure his gates.
[560] T179.
I award the applicant $10,000 for each trespass.
I turn to the question of whether I should award aggravated damages. Aggravated damages are ordinarily given to compensate an applicant when harm is caused to him by an unlawful act or conduct that was aggravated by the manner in which the act was done.[561] As they are compensatory in nature they are awarded for injury to an applicant’s feeling “caused by insult, humiliation and the like”.[562]
[561] Gray v Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1 at 4 [6]; citing Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 149 per Windeyer J.
[562] Lamb v Cotogno (1987) 164 CLR 1 at 8.
It involves consideration of the conduct of the two police officers and SAPOL more generally and the impact that the four trespasses have had on the applicant.
As I have said these were four brief attendances at the applicant’s house, for three of which it is unclear as to whether the applicant was even home. In my view there is no appropriate basis upon which to award aggravated damages.
The applicant also seeks exemplary damages. Exemplary damages are rarely awarded. They recognise and punish fault although not every finding of fault warrants their award. Mayne and MacGregor on Damages provides a commonly cited description of exemplary damages:[563]
Such damages are variously called punitive damages, vindictive damages, exemplary damages and even retributory damages. They can apply only where the conduct of the defendant merits punishment, which is only to be considered to be where his conduct is wanton, as where it discloses fraud, malice, violence, cruelty, insolence or the like, or, as it is sometimes put, where he acts with contumelious disregard of the plaintiff’s rights.
[563] H. MacGregor, Mayne and MacGregor on Damages (Sweet & Maxwell, 12^th ed 1961) 196.
In my view the respondent’s conduct does not fall into this category. At worst it demonstrates inadequate systems and a need for further training. I also find that the applicant’s limited efforts to convey to those in attendance at his property that he revoked his implied licence contributed to the four trespasses. I decline to award exemplary damages.
Conclusion
It follows that I award the applicant $40,000.
I will hear the parties on the costs consequences following these reasons.

[2024] SASC 97

7 August 2024