Costello v State of NSW

[2017] NSWDC 152

District Court

New South Wales

Medium Neutral Citation:

Costello v State of NSW [2017] NSWDC 152

Hearing dates:

23, 24, 26, 27, 31 May; 1, 2, 3, 6, 7 June & 2 September 2016 [Close of submissions on 15 December 2016]

Date of orders:

23 June 2017

Decision date:

23 June 2017

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

1. Verdict and judgment for the plaintiff, including general compensatory damages, aggravated damages, and exemplary damages, and interest on past damages, in the total sum of $70,549;

 

2. The defendant is to pay the plaintiff's costs of the proceedings on the ordinary basis unless otherwise ordered;

 

3. I will hear the parties on what amount, if any, should be added to the verdict and judgment on account of future funds management charges;

 

4. The exhibits may be returned;

 5. Liberty to apply on 3 days' notice if further or other orders are required.

Catchwords:

TORT – intentional torts – actions of police officers – alleged wrongful arrest, assault, battery, false imprisonment following police attendance at a reported domestic violence incident – allegation that arresting officer “massaged” the facts – adequacy of police investigation; DAMAGES – assessment of general compensatory damages, including aggravated damages, exemplary damages and interest

Legislation Cited:

Civil Procedure Act 2005, s 100
Crimes Act 1900, s 61, s 117, s 195
Crimes (Domestic and Personal Violence) Act 2007, s 27, s 89
Criminal Code Act 1995 (Cth), s 474.17
Crown Proceedings Act 1988, s 5
Essential Services Act 1988
Evidence Act 1995, s 126
Law Enforcement (Powers and Responsibility) Act 2002, s 99(2), s 99(3), s 201, s 231
Law Reform (Vicarious Liability) Act 1983, s 8
Police Act 1990, s 6
State Emergency and Rescue Management Act 1989
Uniform Civil Procedure Rules 2005, r 6.12(8)

Cases Cited:

Adams v Kennedy [2000] NSWCA 152; (2000) 49 NSWLR 78
Azar v DPP [2014] NSWSC 132
Benn v State of New South Wales [2016] NSWCA 314
Blacktown City Council v Hocking [2008] NSWCA 144
Briginshaw v Briginshaw [11938] HCA 34; (1938) 60 CLR 336
Carr v Finance Corporation of Australia Ltd [No 1] [1981] HCA 20; (1981) 147 CLR 246
Castorina v The Chief Constable of Surrey [1988] EWCA Civ J0610-1 (1988 WL 622865)
Christie v Leachinsky [1947] AC 547
Cubillo v Commonwealth [2000] FCA 1084
DPP v Mathews-Hunter [2014] NSWSC 843; (2014) 242 A Crim R 319
Darcy v State of NSW [2011] NSWCA 413
Dicianni v R; Pintabora v R [2015] NSWCCA 201
Fox v Percy [2003] HCA 22; 214 CLR 118
Gray v Motor Accidents Commission [1998] HCA 70; (1998) 196 CLR 1
Hage-Ali v State of NSW [2009] NSWDC 266
Hussein v Chong Kook Kam [1970] AC 942
Hyder v Commonwealth [2012] NSWCA 336; (2012) 217 A Crim R 571
JB v The Queen [2012] NSWCCA 12; (2012) 83 NSWLR 153
Johnstone v State of New South Wales [2010] NSWCA 70
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Lyons v Chief Constable of West Yorkshire [1997] EWCA Civ J0424-7
MBP (SA) Pty Ltd v Gogic [1991] HCA 3; (1991) 171 CLR 657
Mason v Demasi [2009] NSWCA 227
Minister for Immigration and Multicultural Affairs v Eshutu [1999] HCA 21; (1999) 197 CLR 611
NSW v Ibbett [2006] HCA 57; (2006) 229 CLR 638
NSW v Landini [2010] NSWCA 157
NSW v Radford [2010] NSWCA 276
Nguyen v R [2008] NSWCCA 322
O’Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286
R v Rondo [2001] NSWCCA 540
Radford v State of NSW [2010] NSWCA 276
Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612
Spautz v Butterworths & Anor [1996] NSWSC 614
State of NSW v Abed [2014] NSWCA 419State of New south Wales v Beck; Commissioner of Police v Beck [2013] NSWCA 437
State of New South Wales v Delly [2007] NSWCA 303
State of NSW v Quirk [2012] NSWCA 216
State of New South Wales v Randall [2017] NSWCA 88
State of NSW v Riley [2003] NSWCA 208; (2008) 57 NSWLR 496
State of New South Wales v Robinson [2016] NSWCA 334
State of NSW v Zreika [2012] NSWCA 37
Treking v Cornell; Ex Parte Helton Bellbird Collieries Pty Ltd (1944) 69 CLR 407
Vaccaro v MLC Limited [2016] NSWDC 85
Williams v The Queen [1986] HCA 88; (1988) 161 CLR 278
Zaravinos v State of New South Wales [2004] NSWCA 320

Texts Cited:

Furzer Crestani, Assessment Handbook, October 2016, pp 14 - 15

Category:

Principal judgment

Parties:

Rhani Jude Costello bht the NSW Trustee and Guardian (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
Ms C Smith (Plaintiff)
Mr P Saidi and Ms C Goodhand (Defendant)

  Solicitors:
Somerville Laundry Lomax (Plaintiff)
Sparke Helmore (Defendant)

File Number(s):

2014/260263

Publication restriction:

None

Judgment

Table of Contents

Nature of case	[1] – [6]
Facts not in dispute	[7] – [47]
Factual matters in dispute	[48]
Procedural matters	[49] – [54]
Evidence overview	[55] – [59]
Issues	[60] – [63]
Credibility and reliability of testimony	[64] – [268]
Absence of oral evidence from Mr Staff	[65] – [78]
Absence of oral evidence from Mr Shearman	[79] – [80]
Mr Iuso	[81] – [152]
The plaintiff	[153] – [207]
Police witnesses generally	[208] – [211]
Sergeant Ahrens	[212] – [241]
Senior Constable Cook	[242] – [267]
Issue 1 – Recognition of plaintiff as a vulnerable person	[269] – [330]
Police Code regarding vulnerable persons	[270] – [283]
Medical assessment of the plaintiff	[284] – [297]
Disability disclosure by plaintiff	[298] – [300]
Police awareness of plaintiff’s disability	[301] – [330]
Issue 2 – Pre-arrest signs of injury on the plaintiff	[331] – [343]
Issue 3 – Evidence available to suggest plaintiff was assaulted	[344] – [353]
Issue 4 – Adequacy of the police investigation	[354] – [393]
Issue 5 – Whether wrongful arrest, false imprisonment, assault	[394] – [568]
Preliminary considerations	[396] – [405]
Applicable common law principles	[406] – [412]
Exceptions to Christie v Leachinsky not applicable	[413] – [417]
Evolution of the charges laid against the plaintiff	[418] – [439]
Circumstances leading to arrest of plaintiff	[440] – [464]
Testing and frustrating circumstances for the police officers	[465]
Legislation	[466] – [498]
Requirements for proof of justification for arrest	[499] – [503]
Section 99(2) of LEPRA – Suspicion of offences	[504] – [514]
Propriety of an arrest	[515] – [521]
Whether arrest is “necessary”	[522] – [527]
Section 99(3)(f) of LEPRA – Preservation of safety or welfare	[528] – [530]
Section 99(3)(b) of LEPRA – Prevention of offences	[531]
Whether possible repetition of an offence	[532] – [542]
Whether continuation of an offence	[543] – [554]
Whether possible commission of another offence	[555] – [567]
Conclusion	[568]
Issue 6 – Transportation of plaintiff to Lismore Police Station	[569] – [585]
Issue 7 – Whether plaintiff was injured during journey	[586] – [590]
Issue 8 – Assessment of damages	[591] – [636]
Approach to assessment	[592] – [600]
Damages – assault and battery	[601] – [602]
Damages – wrongful arrest and imprisonment	[603] – [616]
Exemplary damages	[617] – [631]
Interest	[632] – [635]
Summary of damages and interest	[636]
Disposition	[637]
Costs	[638]
Orders	[639]

Nature of case

1. The plaintiff, Ms Rhani Costello, by her tutor, the NSW Public Trustee and Guardian, brings these proceedings claiming damages against the defendant, the State of NSW, pursuant to s 5 of the Crown Proceedings Act 1988.

2. The plaintiff seeks findings that the defendant be held vicariously liable for alleged misfeasance by two experienced police officers at Lismore, Sergeant Craig Ahrens and Senior Constable Megan Cook, who arrested her at her home in Goonellabah, in northern NSW, at about 6.30pm on Thursday 17 November 2011, in circumstances involving domestic violence, where the actions of those officers have caused her to feel aggrieved: s 8 of the Law Reform (Vicarious Liability) Act 1983.

3. The plaintiff claims that she was arrested as a consequence of the alleged wrongful use of lawful authority by police officers in circumstances where, if they had suspected on reasonable grounds that she had committed relevant offences, which she denied, the issuing of court attendance notices would have been the appropriate next step for them to take, rather than proceeding to arrest her.

4. The plaintiff therefore claims that she is the victim of the intentional torts of false imprisonment due to unlawful or wrongful arrest, and a consequentially related assault. She therefore claims damages, aggravated damages and exemplary damages.

5. The defendant disputed the factual basis of the plaintiff’s claim, and has pleaded and maintained the position that the arresting officers had reasonable grounds and lawful justification for arresting, detaining and charging the plaintiff, both at common law, and pursuant to s 99(2) and s 99(3) of the Law Enforcement (Powers and Responsibility) Act 2002 (“LEPRA”). Consequently, the defendant denies the validity of the plaintiff’s claim.

6. The proceedings stand to be determined by the resolution of relevant matters of fact in dispute, the assessments made concerning the credibility and reliability of the testimonies of the respective witnesses, and the assessment of the documentary material that was tendered.

Facts not in dispute

7. Unless otherwise stated or qualified, the factual matters not in dispute, are set out as follows.

8. The police officers did not at any stage take any form of written statement from the plaintiff as to her version of the events, or her complaints. Similarly, they made no notes of any conversations they had with her.

9. In his rendition of the factual narrative of the underlying events, Sergeant Ahrens stated, in Exhibit “8”, at p 4, that the plaintiff “requested not to be interviewed by investigating police and was subsequently charged …”. Neither of the police officers had made a note in their notebooks to the effect the plaintiff had declined to be interviewed. In contrast, the plaintiff claimed the police officers did not attempt to obtain her version of events. Sergeant Ahrens’ rendition of aspects of the facts set out in Exhibit “8”, was under challenge in these proceedings.

10. The suggestion that the plaintiff requested not to be interviewed whilst at her home was not put to her in cross-examination. The oral evidence of Sergeant Ahrens on that point makes it clear that his account of the cited conversation to that effect had only occurred when the plaintiff was already at the police station, and after she had been presented to the Custody Manager, which means it was after 18:59 hours on the day in question, and not whilst at her home before she was arrested: T322.40 – T323.5; Exhibit “3”, p 1.

11. The factual evidence given by the police officers in these proceedings some four and-a-half years after the events in question, was based on statements they had obtained from persons other than the plaintiff, and from their own recollections, which were shown to be inaccurate on some material matters.

12. No disrespect is intended to the plaintiff in identifying the personal matters that follow. These matters are relevant to the consideration of the circumstances in which the attending police officers interacted with her in the events leading to her arrest, and subsequently.

13. The plaintiff is an adult presently aged 32 years. She must proceed by way of a tutor in these proceedings because of pre-existing disabilities. She was aged 27 years at the time of the events.

14. The plaintiff has longstanding physical disabilities that are visibly manifested in obvious ways, including in her appearance, her posture, in her movements and in her manner of speech. Those disabilities are due to an acquired brain injury with related cerebral palsy. This has resulted from a head injury she sustained in an accidental fall that she suffered in her infancy.

15. The plaintiff is of slight appearance, weighing about 39kgs. She is approximately 150cms in height. There is no reason to assume these descriptions did not apply to the plaintiff at the time of the events in question. These matters have been the subject of a medical opinion that will be referred to in due course in relation to the unlikelihood of some factual matters alleged against her.

16. In addition to the plaintiff’s physical disabilities, she also has a related cognitive disability. This affects the way in which she processes information (T11.23 – T11.26; T122.16 – T126.23), particularly verbal information: T124.3 – T124.6. She finds it difficult to focus on more than one thing at a time: T11.24.

17. Those matters relating to the plaintiff are relevant to the issue of whether, at the time of the attendance of the police officers, and subsequently, it ought to have been recognised by those police officers, that the plaintiff was, according to applicable police protocols, a vulnerable person on account of her disabilities, and therefore she should have been treated accordingly, and in a manner different to what had actually transpired.

18. Whilst the plaintiff was at her home during the afternoon of Thursday 17 November 2011, she had a number of disagreeable telephone conversations with her former de-facto partner, Mr Ronald Staff.

19. Initially, the plaintiff had requested that Mr Staff attend her premises to fix some electronic equipment and to pay her some money she said he owed her. She wanted these matters attended to before he was due to leave the area for his anticipated induction into Army service. In those telephone discussions, which on the plaintiff’s description, involved some acrimony, he refused to attend to her requests: T11.46 – T12.4.

20. Later that afternoon, notwithstanding his earlier refusals, Mr Staff then made an unexpected and unwelcomed visit to her premises whereupon, according to the plaintiff, he verbally abused her. As a result, she asked him to leave. Some verbal altercations then ensued, following which Mr Staff started to leave: T12.49 – T13.38.

21. The plaintiff described how, whilst her back was turned, and when she was returning into her house, Mr Staff turned and started to walk towards her, and was swearing at her. The plaintiff stated that a physical altercation then occurred between them. In that altercation, the plaintiff stated that Mr Staff had pulled her backwards, by her T-shirt, grabbed her by the waist, picked her up, threw her to the ground, and then pinned her down in that position. She said that following those events, she told him not to touch her, and that she would call the police: T14.1 – T14.10. At that point, she said that Mr Staff then released his hold on her, and he then ran inside her house and took possession of both her portable house telephone and her mobile telephone: T15.1 – T15.15.

22. In those events, the plaintiff said she followed him, asking him to give her back her telephones. She said that at some point Mr Staff sat down. She then slapped him on the face. At that time she was focussed on getting her telephones back and she said this was her purpose in slapping him: T15.35 – T15.49.

23. It appears that in those events Mr Staff had made a pre-emptive call to the police, initially by using his own mobile telephone until it ran out of battery power. He then used the plaintiff’s mobile telephone which he had earlier taken into his possession without her consent. In that call, he claimed that he had been verbally threatened by the plaintiff. The resultant police radio message referred to him having reported an alleged verbal threat.

24. The plaintiff said that after Mr Staff had called the police, he re-entered her house, threw her telephones onto a table, and then walked away. He then walked outside. At that point, having retrieved her telephones, the plaintiff locked herself inside her house: T16.1 – T16.9.

25. In the commotion of those events, a concerned neighbour made a call to police to report that he had heard female screams emanating from the plaintiff’s premises: Exhibit “E”.

26. At about 4.20pm on that day, when the responding police officers, Sergeant Ahrens and Senior Constable Cook, arrived at the plaintiff’s house, Mr Staff met them outside the plaintiff’s premises. Mr Staff told them he had been assaulted by the plaintiff, and that she had kicked his car which was parked on the street outside of the plaintiff’s premises, and that she had taken and hidden his car keys, which he claimed, was preventing him from leaving the vicinity of the plaintiff’s home. Whilst the police were speaking to Mr Staff, the plaintiff continued to remain inside her home, where she had secured herself.

27. At 4.30pm Sergeant Ahrens made a brief note in his notebook identifying Mr Staff as the “victim”. He also noted the plaintiff’s name, date of birth and address. Sergeant Ahrens made an initial brief note as follows: “About 3pm phone call (1st). Recd about a dozen. Attended re set up stereo and old DVD player.”: Exhibit “B”, p 37. There are no corresponding notebook entries indicating that the attending police officers had taken down any version from the plaintiff during their investigation of the domestic violence incident they had attended.

28. When the police officers eventually walked up to the plaintiff’s front door and spoke to her, she denied to them that she had any knowledge of the whereabouts of Mr Staff’s car keys. She repeatedly made those denials throughout the time the police were there asking her questions concerning the whereabouts of those car keys: T17.50 – T18.5; T69.5; T188.36; T189.19; T189.46; T189.50; T192.20; T192.47. She also claimed that in those circumstances, she felt she had been bullied by the police in their discussions with her about those keys: T189.33. In contrast, the police officers denied any mistreatment of the plaintiff.

29. Notwithstanding the plaintiff’s persistent denials concerning the whereabouts of Mr Staff’s keys, Sergeant Ahrens, the senior officer who took the lead role in the police investigation, stated repeatedly, and at times bluntly, that he did not believe the plaintiff’s denials, and he maintained his opinion, quite strongly, and was in no doubt, that the plaintiff was not telling the truth, and had been lying in relation to her stated lack of knowledge of the whereabouts of Mr Staff’s car keys: T291.49 – T291.50; T293.12 – T293.13; T318.50; T345.35; T437.31; T437.48.

30. In his oral evidence, Sergeant Ahrens stated that his belief that the plaintiff was lying was based on sufficient circumstantial evidence to specifically charge the plaintiff with regard to the missing car keys: T437.47. There was an apparent difficulty with his evidence in that regard. This was because the Field Arrest Form that was completed after the arrest of the plaintiff made no reference to any charge along those lines. The only reasons for the arrest of the plaintiff, as stated on that form, related to the alleged offences of assault and malicious damage, matters to which I will later return.

31. In their evidence, the police officers agreed that, other than in relation to the plaintiff’s repeated denials of any knowledge of the whereabouts of Mr Staff’s missing car keys, the plaintiff had not been argumentative with them. The plaintiff said that she had been very co-operative with them: T68.43; T69.1. The police officers did not suggest any attitude of resistance or uncooperativeness on the plaintiff’s part, except for her non-acceptance of any part in Mr Staff’s keys having gone missing: T383.5; T383.13; T451.14 – T451.16. She was not threatening or obstructive: T482.22 – T482.25. She offered no resistance to the arrest when it was eventually made: T486.5.

32. At about 6.30pm on the day in question, after the police had been on site for almost two and-a-half hours, the plaintiff was arrested by Sergeant Ahrens, assisted by Senior Constable Cook. This occurred after a continuing impasse over the whereabouts of Mr Staff’s missing car keys, and after a search of the plaintiff’s premises by both police officers, and remarkably, by Mr Staff, who during the events, had gone in and out of the plaintiff’s house a number of times, and who had also participated in a search of the plaintiff’s home: T292.10. After other unsuccessful searches were made of the grounds of surrounding properties to try and locate the car keys, the plaintiff was then arrested.

7. The plaintiff claims the arrest was unnecessary in the circumstances, and that if the police officers suspected on reasonable grounds that she had committed offences, they could have simply arranged for her to have been issued with court attendance notices if they properly considered that it was reasonable that she be charged, a matter which she disputed.

8. In his oral evidence Sergeant Ahrens stated he told the plaintiff the reason for her arrest was that she had allegedly stolen Mr Staff’s car keys. There was no contemporaneous note to support his evidence in that regard. Subsequently, whilst already under arrest, as the police officers were taking her down her driveway and towards the police wagon to be transported to Lismore Police Station, Sergeant Ahrens also informed her that she was to be charged with kicking Mr Staff’s car, thereby causing it to be damaged.

9. As identified at paragraph [30] above, there was a discrepancy between the stated reasons for the arrest of the plaintiff as appears in the police Field Arrest Form, and the reasons for her arrest as stated in the oral evidence of Sergeant Ahrens. In the Field Arrest Form, the only two reasons were identified as being limited to an assault (of Mr Staff) and malicious damage (to Mr Staff’s vehicle).

10. In evidence, there were differing descriptions of the alleged malicious damage to Mr Staff’s vehicle. Ultimately, the alleged damage turned out to be some scuff marks, a matter to which I shall later return when considering whether this could have been caused by the plaintiff, and whether the pursuit of the option of an arrest of the plaintiff was justified in the circumstances.

11. On account of her physical disabilities, the plaintiff complained of the manner and the circumstances in which she was placed in the police wagon, the uncomfortable, unrestrained, and the uncomfortable bruising ride she experienced during the journey to the police station, the manner in which she was taken out of the police wagon, and the manner in which she had been spoken to and dealt with by the arresting police officers.

12. Later, during the evening of 17 November 2011, whilst the plaintiff was still being detained at Lismore Police Station, Mr Staff made telephone contact with police there, and in that conversation, he advised that a further search of a neighbouring property had resulted in him finding his missing car keys.

13. The plaintiff was later issued with 5 court attendance notices for an expanded range of charges that went beyond the initial two reasons recorded on the Field Arrest Form at the time she was arrested. She was then released on bail, and she was issued with an apprehended violence order (“AVO”) with conditions to be observed. Subsequently, Mr Staff requested that the charges that had been laid against the plaintiff be withdrawn, because if the charges were to proceed, this may cause him some delay and difficulties with his induction into Army service. As a consequence, the charges were withdrawn, and this was notified to the plaintiff at a scheduled court appearance.

14. The plaintiff disputed all of the allegations of wrongdoing that had been levelled against her. She stated that at the outset of her conversation with the attending police officers, she had told them that she had a disability, that she had been assaulted by Mr Staff, and that she had wanted him to be removed from her property: T17.11. The police officers denied she made that request: T347.15; T478.15 – T478.24.

15. The plaintiff also claims that the attending police officers had failed to heed her disclosure and her pleas in that regard, and that they had failed to appropriately follow-up on those matters. In their evidence, the police officers disputed aspects of the plaintiff’s claims in that regard.

16. The essence of the plaintiff’s case is her claim that the attending police officers had inadequately investigated the circumstances of the reported domestic violence incident which they had been called upon to attend. She claims that as a result, having regard to her obviously observable physical and expressive disabilities, and having regard to applicable police policy guidelines concerning matters of disability, which plainly indicated the plaintiff was to be regarded by police as a vulnerable person, she was unjustifiably arrested, unnecessarily restrained, and deprived of her right to liberty.

17. The plaintiff also claims that this occurred in circumstances where, even if the arresting police officers did have reasonable grounds to suspect she had relevantly committed offences, which she nevertheless denied, at the time the police officers arrested her, recognising that the action of arrest was to be undertaken as a last resort, they had available to them a reasonable alternative course to an arrest, namely to issue her with court attendance notices, which ultimately occurred after her arrest.

18. Sergeant Ahrens candidly acknowledged that, as the arresting officer in charge of the investigation and the related decision-making tasks at the time, were it not for Mr Staff’s missing car keys, he would not have proceeded to arrest the plaintiff: T316.3 – T316.9; T318.15 – T318.18; T333.19 – T333.21; T339.33 – T339.38; T346.34 – T346.36. His concern at the time was that Mr Staff’s car could not be moved without the keys, and he wanted to ensure there were no repeat or other offences committed by the plaintiff: s 99(3)(b) of LEPRA.

19. In that regard, Sergeant Ahrens said that were it not for the missing car keys, it would have been appropriate to instead issue the plaintiff with a court attendance notice in respect of the charges that had been laid against her, and in those circumstances the plaintiff could then have stayed at her premises without being transported by police wagon to Lismore. Had that occurred, these proceedings would not have arisen.

20. The circumstances described in the preceding paragraphs gave rise to numerous disputed matters of fact as between the evidence of the plaintiff and the evidence of the two police officers.

21. The resolution of those disputed factual matters that are relevant to the issues to be determined, must proceed after identifying the conclusions reached on matters concerning the credibility and the reliability of the respective testimonies, and the identification of the specific issues calling for decision. Given the subject matter and the polarisation of the factual issues, the analysis of the credibility and the reliability of testimony cannot, in fairness, be briefly stated.

Factual matters in dispute

48. On a comparison of the respective testimonies, the range of factual matters about which there was dispute, concerned the stage at which the attending police officers ought to have recognised the plaintiff as being affected by disability, the manner in which they spoke and dealt with her, whether this involved treating her in a disrespectful and derogatory way, whether the police investigation into the circumstances was adequate, whether there was an attempted use of handcuffs on her, and whether she was handled and transported in a reasonable manner, given her disabilities.

Procedural matters

49. At a pre-hearing call-over on circuit before the Registrar at Lismore, it was indicated that this case was likely to occupy an estimated hearing time of between a day, to a day and-a-half: T355.28; Registrar’s printed list. Instead, the hearing proceeded over the course of 11 days, 8 of them in Lismore, on May 23, 24, 26, 27, 31, June 1, 2, 3, followed by 2 further hearing days in Sydney, on June 6 and 7, 2016, resulting in just short of 600 pages of transcript.

50. During the hearing, the first two days involved dealing with contested motions, by which the plaintiff sought to enforce, and the defendant sought to resist and to have set aside, a subpoena seeking the production of certain documents held by the Commissioner of Police. After much argument on those motions, the terms of the subpoena were narrowed, following which, agreed categories of documents were produced in satisfaction of that subpoena.

51. Following the close of written submissions in July 2016, after a period of intervening leave, oral addresses were delivered on 2 September 2016, at which time judgment was then reserved. Thereafter, further written submissions were received from the parties.

52. In light of the way written submissions proceeded, it is necessary to identify them, and to identify a submission that was not read, and the reasons why that was so. The initial course of written submissions that have been read, were as follows:

1. Defendant’s written submissions were dated 1 July 2016. These were re-submitted in readable form on 4 July 2016: MFI “18”;

2. Plaintiff’s written submissions were dated 1 July 2016: MFI “19”;

3. Defendant’s written submissions in reply were dated 14 July 2016: MFI “20”;

4. Plaintiff’s written submissions in reply were dated 15 July 2016: MFI “21”.

53. On 30 November 2016, the defendant, without obtaining leave to do so, and absent special circumstances being shown, forwarded some further and unsolicited written submissions. Those submissions have not been read or considered as they were unsolicited. They have been placed in a sealed envelope and marked MFI “22”. The parties were advised of this course on 7 December 2016: Nguyen v R [2008] NSWCCA 322, at [27] – [31], following Carr v Finance Corporation of Australia Ltd [No 1] [1981] HCA 20, at [29]; (1981) 147 CLR 246, at p 258.

54. On 7 December 2016, further authorities of possible relevance were brought to notice: Benn v State of New South Wales [2016] NSWCA 314 and Stateof New South Wales v Robinson [2016] NSWCA 334. The parties were invited to make short submissions on those authorities. The defendant’s submissions in response, dated 8 December 2016, have been marked MFI “23”. The plaintiff’s submissions in response, dated 15 December 2016, have been marked MFI “24”.

Evidence overview

55. All witnesses were the subject of strong challenges made to the credibility and the reliability of their respective testimonies.

56. The plaintiff was the only witness called to give evidence in her case. In the defendant’s case, the only oral evidence of significance was called from Sergeant Ahrens, a police officer of 25 years standing, Senior Constable Cook, a police officer of 19 years standing, and Mr Anthony Iuso, who, on the date in question, had been a disability support worker who had been called upon to attend at Lismore Police Station for the purposes of providing the plaintiff with disability support services whilst she was in police custody.

57. Mr Iuso provided those support services to the plaintiff through an organisation called New Horizons, an accredited agency contracted to provide community support and assistance services to persons with disability, including services in relation to police liaison for disabled persons.

58. The main body of documentary evidence tendered comprised Exhibit “B”, pp 1 – 308, which consisted of the documents assembled on behalf of the plaintiff. During the hearing, the tender of pages 303, 304, 305 and 306 of Exhibit “B”, comprising copies of some contemporaneous photographs, was ultimately withdrawn. This was because formal proof of the photographs appearing on those pages was required by the defendant, and that evidence was no longer available to the plaintiff: T370.27 – T370.35.

59. The parties also tendered a number of other documents which will be referred to in the course of these reasons where it becomes relevant to do so. Included in those documents were some statements obtained by police officers whilst they were at the plaintiff’s home. Those statements, which will shortly be set out in these reasons, were from the plaintiff’s former de facto partner, Mr Ronald Staff, and from Mr Nick Shearman, a friend of the plaintiff who had been present at the plaintiff’s home during the course of the subject events. Neither of those persons were called to give oral evidence in the proceedings.

Issues

60. The oral evidence gave rise to numerous items of factual dispute between the plaintiff and the defendant. These matters touched upon the detail and the adequacy of the police investigation of the events, and the appropriateness or otherwise of the way in which police handled those events. The significant matters of dispute amongst those items stand to be resolved by an evaluation of the credibility and the reliability of relevant aspects of the testimony of the respective witnesses, and the evaluation of the content of some of the contemporaneous records.

61. The resolution of some of those matters will assist in determining the issues of whether, when arresting the plaintiff, as was claimed by the defendant, the police officers had complied with, or, as claimed by the plaintiff, the police officers had failed to comply with, the requirements of s 99(3) of LEPRA, and the relevant requirements of the applicable Code comprising official police policies and regulations directed at applying and implementing that legislation.

62. A review of the pleadings, the evidence and the submissions, identifies the issues arising for determination, in the following convenient order:

Issue 1 -   Whether the arresting police officers should have at the outset identified the plaintiff as being a vulnerable person to whom certain police policies applied concerning vulnerable persons, and consequently, whether she should have been provided with appropriate support, and treated in a different manner to that which in fact occurred. My consideration of that issue, and the related findings, appears between paragraphs [269] to [330] of my reasons;

Issue 2 -   Whether, before the plaintiff was arrested, visible signs of injury on her person were apparent, and whether those signs were available to be observed and investigated as to their origins, including such as to require an investigation of whether or not she had been assaulted by Mr Staff, as she had claimed. My consideration of that issue, and the related findings, appears between paragraphs [331] to [343] of my reasons;

Issue 3 -   Whether, on the basis of information made available to the attending police officers, their investigation of the circumstances should have proceeded upon the basis that, prima facie, it was arguable that the plaintiff had been assaulted by Mr Staff, and if so, was it likely that if due recognition had been given to that matter, the events in question would have taken a different course. My consideration of that issue, and the related findings, appears between paragraphs [344] to [353] of my reasons;

Issue 4 -   Whether the police investigation of the underlying events was adequate in the circumstances of the reported domestic violence incident involving the plaintiff at her home. My consideration of that issue, and the related findings, appears between paragraphs [354] to [393] of my reasons;

Issue 5 -   Whether the plaintiff was unjustifiably arrested, then falsely imprisoned by the arresting police officers, and whether she was thereby assaulted in those events. My consideration of that issue, and the related findings, appears between paragraphs [394] to [568] of my reasons;

Issue 6 -   Whether, following the decision to arrest the plaintiff, having regard to her disabilities, the attending police officers ought to have arranged to safely transport her to Lismore Police Station by means of a suitable alternative vehicle, in which she could have been safely restrained by a seatbelt for that journey, so that she could have been transported in a manner other than by placing her, unrestrained, in the back of a police wagon. My consideration of that issue, and the related findings, appears between paragraphs [569] to [585] of my reasons;

Issue 7 -   Whether, following the arrest of the plaintiff, and during the journey from the plaintiff’s home to Lismore Police Station, she sustained bruising injuries from being thrown around in the back of the police wagon due to the unavailability of suitable seating, and also due to the unavailability of a seatbelt restraint in the module or pod at the back of that police wagon. My consideration of that issue, and the related findings, appears between paragraphs [586] to [590] of my reasons;

Issue 8 -   The assessment of the plaintiff’s entitlement to damages, including her claims for the award of aggravated and exemplary damages. My consideration of that issue, and the related findings, appears between paragraphs [591] to [636] of my reasons.

63. Before addressing those issues, including the relevant factual matters connected with those issues, in the paragraphs that follow, in the course of dealing with matters of credibility and reliability of testimony, it is necessary to identify in full the statements obtained by police from Mr Staff and from Mr Shearman, and to identify the conclusions I have reached on matters of the credibility and the reliability of the oral testimony adduced in these proceedings.

Credibility and reliability of testimony

64. Before analysing matters arising from the oral evidence, it is necessary to say something about some aspects of the documentary evidence tendered in relation to the persons from whom the police officers took statements, and who were not called to give evidence.

Absence of oral evidence from Mr Staff

65. No oral evidence was called from the plaintiff’s former de facto partner Mr Staff, who was without doubt, a central actor in the circumstances leading to the arrest of the plaintiff. His assertions, in a contemporaneous statement to the effect that the plaintiff had hidden his car keys, had kicked his car and had assaulted him, and Sergeant Ahrens’ assumed correctness of those assertions, without first obtaining a statement setting out the plaintiff’s version on those matters, in the context of a call for police to attend a domestic violence incident, were relied upon by the defendant as being the justifying foundations for the plaintiff’s arrest.

66. In these proceedings, although the plaintiff contested the content of Mr Staff’s statement obtained by the police, that statement must necessarily be taken at face value since Mr Staff was not called by the defendant as a witness. The factual matters described within the statement, formed the basis of Sergeant Ahrens’ suspicion or belief upon which he relied to justify the arrest of the plaintiff.

67. Whilst Mr Staff was not called as a witness in these proceedings, the overall content of his statement nevertheless still stands to be evaluated in light of the other evidence that was called, and in order to assess the adequacy or otherwise of the police investigation into the events, and the reasonableness of their decisions which followed their investigation.

68. Sergeant Ahrens took a signed statement from Mr Staff, which he recorded in his notebook as follows:

“About 3pm, Thursday 17th November, 2011 I received a phone call from my ex-girlfriend Rhani COSTELLO. I answered the call & she said, ‘Hey when are you going to come & fix the stereo.’ I said, ‘I’ve got time to do it today but I don’t have enough fuel to get home.

She said, ‘That’s not my problem. You promised in front of your girlfriend. I said, ‘I’ve got time but I don’t have the fuel. She started yelling abuse at me & I hung up. She immediately called me back & she started saying ‘I’ll call the Army & tell them stuff to stop them letting you in’.

I said, ‘Go for it. I’ll give you the number & sue you for defamation of character.

She said, ‘I’ll I’ve already got the number’.

I said, ‘Go for it.

She said, I already have. Alrig it.

I said, ‘Alright see you later’. I then hung up.

Over the next five minutes I received about another eight or nine calls from Rhani lasting about 5 – 10 seconds. She would abuse me & I would hang up. By the last phone call I had decided I had enough & was going to go to Rhani’s & fix the stereo. As I walked out the door Rhani rang me again stating she was going to call the army again & make my life hell. I would say what do you mean, explain it.

She would say ‘You will see’ & I hung up the phone. By that time I was on my way there. Upon arriving at Rhani’s place at 42 Greenwood Drive, Goonellabah I went to the front door. Rhani answered it & I said, ‘Don’t make threats at me where’s this stupid DVD player.’

She replied. ‘Don’t talk to me like that.’

I said, ‘You’ve got no right to threaten me.’

I continued to say ‘I’d rather not be able to get home than put up with you for one more day’.

I said, Rhani you don’t have the cords where are they?’

She said, ‘It’s not my problem just do it’.

The conversation continued regarding setting up the stereo before Rhani walked out the back of the house. I walked out after her & said ‘Rhani can you come & show me how you want this stereo done’.

She said, ‘No I’m having a cigarette.’

I walked into the dining room area & noticed the black leather wallet & keys. I went to the back door & saw a male, I now know as ‘Nic’. I said to Rhani, ‘Come & show me or I’m leaving.’ I repeated it & started to walk out, saying ‘See ya’.

I walked out my front door & started it got in I walked out the front door to my car & started it. Rhani ran down her driveway & kicked the rear driver’s side door with her right foot. I had my driver’s side door open & jumped out of the car to start pushing Rhani back inside her house & up the driveway. I returned to my car as she was up her driveway & Rhani ran down the driveway & again kicked my drivers side passenger door. Both of these kicks marked the door. I left the car running & again got out & started to push Rhani back inside up the driveway. I went inside the house to the rear & spoke to the male that had been sitting out the back (Nic).

I introduced myself to him. He told me his name was Nick. I asked him could he get her to stop kicking my car as I would call the police. I went back out through the front door. I passed Rhani on the path leading to her front door. I walked down the driveway & as my car came into view I noticed the drivers door was closed & the engine was switched off. There was no one else in the street at that time nor any vehicles. I turned & walked through her garage into the rear yard. Rhani, at that time was saying, ‘Nick come inside’.

I said, ‘Rhani where are my keys?’

She said, ‘I don’t have them’ & closed the rear door.

I sat down at the table & started talking to Nick. I picked up her mobile phone which was on the table. Rhani opened the door & came out saying, ‘Give me my phone’

I said, ‘All I want is my keys’.

She said, ‘I don’t have them.’

Rhani then elbowed me to the left side of my face near the cheek.

Rhani jumped back & I said, ‘Rhani give me back my keys.’

Rhani went inside & closed the door. I got up & again asked for my keys, before going & sitting back down. Rhani then came back outside & said, ‘Give me back my phone.’ She then punched me with her right fist to the right left side of my face. Again Rhani jumped back & headed back inside. I got up & grabbed my phone & I went to walk out. About half way between the patio & garage door she grabbed my shirt. I tried to break her hold. I continued to walk through into the garage & closed the sliding doo door with her on the other side. I continued down the driveway & Rhani chased after me punching me in the rear of the head. When I got to the car I grabbed my phone & called ‘000’ Rhani continued to yell & scream at me. After making the call to ‘000’ my phone ran out of battery. I started to walk back into the garage & rear yard. Rhani kept asking for her phone back. I walked inside & got the landline & called ‘000’. The telephonist said police had the job & would be attending soon. I walked out the back & had a conversation with Nick about the police coming. I handed Rhani her phone back & went out the front until the police arrived.”

[Emphasis added]

[Exhibit “B”, pp 37 – 44]

69. The two bold emphasised portions of Mr Staff’s statement cited above suggested that his described actions were consistent with him having twice committed an assault and battery on the plaintiff, not to mention taking and using her mobile telephone without her consent. Notwithstanding that suggested content, the question of whether the plaintiff had been assaulted by Mr Staff was not taken up by the police officers in their dealings with the plaintiff.

70. In that regard, in order to reach a conclusion to that effect, the attending police officers did not need a statement from the plaintiff in order to form a reasonable suspicion, let alone establish, that Mr Staff had physically pushed the plaintiff, not once, but twice, in the course of their altercation.

71. In the notebook maintained by Sergeant Ahrens, immediately following the above cited entry comprising Mr Staff’s statement, as recorded in the above terms, Sergeant Ahrens also noted the details of an AVO application number, which was then followed by some redacted text: Exhibit “B”, p 44.

72. In the factual analysis required in this case, the content of Mr Staff’s statement, as taken down by Sergeant Ahrens, requires close analysis for two principal reasons that have an impact upon the determination of the issues calling for decision.

73. The first such reason concerns an evaluation of the adequacy of the police investigation of the domestic violence incident for which the police were called to the plaintiff’s home in the first place. That matter has a significant bearing on the soundness of the claimed justification proffered by the defendant for the arrest of the plaintiff.

74. The second such reason is to assess the legitimacy or otherwise of the credit attack made to the evidence of Sergeant Ahrens. In that attack, it was put to Sergeant Ahrens that when processing of the products of his investigation of the events, he had selectively “massaged” the facts when making entries in the COPS database (T422.20 – T422.24) in preparing his AVO narrative against the plaintiff, and in that process, it was suggested to him that he had downplayed the significance of Mr Staff’s admitted actions in which he had made physical contact with the plaintiff without her consent.

75. In that regard, it was suggested that Sergeant Ahrens had downplayed the effect and the significance of Mr Staff’s admitted physical actions towards the plaintiff, which, if properly considered in context by Sergeant Ahrens, as argued by the plaintiff, those matters would have supported a charge of assault being laid against Mr Staff.

76. The described conduct of Mr Staff, as contained in his statement cited at paragraph [68] above, is plainly capable of supporting the plaintiff’s claim made to the police, that, in the described events as they had unfolded, she had in a sufficiently material way, been assaulted by Mr Staff.

77. This raised a question as to why Mr Staff had not been charged by police over his self-described actions, especially as those events occurred in the context of an alleged domestic violence incident. That, and the plaintiff’s claim that the attending police had ignored her complaint that she had been assaulted by Mr Staff, were matters that left her feeling greatly aggrieved.

78. These matters will be taken up again in my reasons for assessing the credibility and the reliability of the evidence of Sergeant Ahrens, and in outlining my findings which seek to reconcile the relevant factual matters in dispute.

Absence of oral evidence from Mr Shearman

79. Mr Shearman was a friend of the plaintiff who was present at her home at the time when Mr Staff had arrived, and when the altercations between Mr Staff and the plaintiff had taken place. His contemporaneous statement was given to police whilst he was at the plaintiff’s home. That statement was tendered in evidence. No adverse comment arises from the fact that he was not called to give oral evidence. Consequently, the content of his statement stands to be evaluated on its face.

80. Whilst Sergeant Ahrens was attending to the task of taking down Mr Staff’s statement, Senior Constable Cook recorded a witness statement from Mr Shearman in her notebook. Mr Shearman remained at the plaintiff’s home whilst the police officers had carried out their investigations. Mr Shearman’s signed statement, as taken down in Senior Constable Cook’s notebook, was in the following terms:

“On Thursday 17th of November I was at my friend Rhani COSTELLO house at 42 Greenwood Pl Goonellabah.

At 4.15pm Rhani’s a mate came over while I was in the kitchen. The first thing he said was, ‘who the fuck do you think you are.’

They got into an argument about him fixing her stereo & her making repeated calls to his mobile.

I moved out onto the back patio. The arguement (sic) continued inside. I had the door shut so I wasn’t paying attention to what was being said.

They both went outside through the front door.

After a while the male, Ron, came back in and asked me if I would go outside & ask Rhani to stop kicking his car.

I came out the front with Ron, & saw Rhani standing at the bottom of her driveway a few metres away from his car.

Once she saw me she came back up the driveway & we both went out the back. Ron came around the side of the house & at the back where we were sitting.

He said, ‘That’s thieft (sic) you idiot. Give me back my keys.”

At this stage she went inside & locked the door.

He picked up her phone which was on the outside table.

She came outside and said, ‘Give me my phone’. He said give me my keys’.

He went to walk back out the front through the garage.

She grabbed his shirt which is when he first dialled the police on his own phone. While he was on the phone to police she was following him around saying, ‘Give me back my phone.’

His phone ran out of batteries and he picked up the home phone and called the police back. During that call Rhani continued th to say give me my phone back.

During that phone call she hit me Ron in his face with the palm of her open right hand. It was like a backhand. This hit, hit him in the nose.

He got up and said ‘the police are on their way Rhani & he went to walk outside.

I said to Ron ‘If the police are on their way you might as well leave the phone here, and he handed her back the phone.

Ron went outside & Rhani & I were out on the back patio.

Not long after the police arrived.”

[Exhibit “B”, pp 45 – 48]

Mr Iuso

81. Before identifying my assessments of the evidence and of the credibility and the reliability of the plaintiff and the police witnesses, it is convenient to first identify my assessment of the credibility and the reliability of the evidence of Mr Iuso. The evaluation of his evidence necessarily requires some attention to detail because of the context and the content of his evidence.

82. This is because the defendant called Mr Iuso to seek to impugn the credibility and reliability of the evidence of the plaintiff on a strongly disputed central factual issue, namely the underlying question of whether she had taken and had thrown away Mr Staff’s car keys.

83. The defendant sought to make good that attack by means of an alleged verbal admission attributed to the plaintiff as related in evidence by Mr Iuso, whereby he claimed that the plaintiff had made a relevant admission to him whilst he was with her in police custody, in a cell at Lismore Police Station, after being called in to provide her with disability support services after she had been arrested.

84. The defendant argued that the critical matter it relied upon from the evidence of Mr Iuso, although denied by the plaintiff, was to the general effect that the plaintiff had allegedly admitted to him that, in the events before her arrest, she had thrown away Mr Staff’s car keys: T190.17; T192.6; T274.34 – T274.38.

85. The defendant argued that Mr Iuso was a critical witness in the proceedings who, ordinarily, would have been expected to have been called by the plaintiff: Defendant’s written submissions (“DWS”), par [66]. In my view, the basis of that submission is flawed as to its foundation, and it should not be accepted. This is because, contrary to the defendant’s submission stating that “a great deal of the alleged police impropriety and offence towards the plaintiff occurred in [Mr Iuso’s] presence”, in fact those events did not occur in the presence of Mr Iuso. The defendant’s submission to that effect must therefore be rejected.

86. In that regard, Mr Iuso had not been at the plaintiff’s home at the time when the police attended to the investigation of the events and then proceeded to arrest her. He had not arrived at the Police Station to provide support services to the plaintiff until after the Pt 9 LEPRA caution had been read to the plaintiff, and when he did eventually arrive at the Police Station, at 8.15pm, the plaintiff was already located in a police cell having had her jewellery removed. When he arrived at the plaintiff’s cell, and was placed in the cell with her, the plaintiff was, according to his observation, upset, and on his understanding and description, she was in an hysterical state: T272.2. His understanding was that, at that time, the plaintiff was very distressed, distraught, and was crying whilst she was in her cell: T279.10 – T279.22. This was also described as “heartfelt crying”: T284.35.

87. Mr Iuso confirmed that at that time, the plaintiff was fixated on the fact that it was she, rather than Mr Staff, who had been arrested. His stated recollection was that the plaintiff was talking about a police conspiracy aimed at preventing her from getting her children back after they had been taken into care at an earlier point in time: T284.32 – T284.46. That evidence was obviously targeted by the defendant at seeking to undermine, if not to damage, the plaintiff’s credit as a witness. I shall later return to that evidence in the consideration of the issues.

88. In assessing Mr Iuso’s evidence given in these proceedings, for numerous reasons, I have concluded that Mr Iuso should be seen to be an unsatisfactory and unreliable witness on the critical matters in dispute to which his evidence was addressed.

89. Before identifying those reasons, I wish to make clear that I have disregarded the fact that without the compulsion of a subpoena, or without the aid of referring to a contemporaneous statement, Mr Iuso saw no apparent difficulty in voluntarily disclosing to the defendant, and in his evidence to the court, the claimed content of confidential conversations he had with the plaintiff whilst he was also located in her cell, as her support person. It was not made clear as to how Mr Iuso brought these matters to the attention of the defendant. Those conversations took place as an incident of his former employment, by which he was required by his former employer, a contracted agency called New Horizons, to provide disability support services to the plaintiff whilst she was in police custody.

90. Whatever may be thought of those circumstances, and the ethical position of Mr Iuso, I disregard them as a factor to be weighed against his credit. This is because the applicable legal construction must be that the claimed conversations in question were not cloaked with the kind of protection that would otherwise flow from the existence of a privileged relationship, such as legal professional privilege.

91. If Mr Iuso was giving evidence in criminal proceedings, it might be thought that his evidence of an admission allegedly made by the plaintiff concerning an underlying fact relevant to a consideration of a question of guilt or innocence, may have been admissible and relevant. Admissions of that kind allegedly made to a support person have in some cases been admitted into evidence on the question of guilt or innocence, in recognition of the fact that unguarded incriminating statements made to support persons by vulnerable persons in custody, may be admissible as not constituting protected confidences within the meaning of s 126B of the Evidence Act 1995: JB v The Queen [2012] NSWCCA 12; (2012) 83 NSWLR 153, at [13]; [29] – [31]; [36]; [40] – [41].

92. In the context of these proceedings, which are different to the proceedings cited in the preceding paragraph, the relevance of Mr Iuso’s evidence of the plaintiff’s alleged admission is limited, principally to the plaintiff’s credit. The position may have been different in criminal proceedings which involved determining the plaintiff’s guilt or innocence on the question of whether she had taken and inappropriately dealt with Mr Staff’s car keys: JB v The Queen [2012] NSWCCA 12; (2012) 83 NSWLR 153, at [36]. However, I am not required to determine a question along those lines in these proceedings.

93. My consideration of Mr Iuso’s evidence as to the claimed context of a conversation he had with the plaintiff whilst in custody is concerned with the assessment of the credibility and reliability of not only the plaintiff’s testimony, but also that of Mr Iuso’s own testimony.

94. My reasons for rejecting the evidence of Mr Iuso on critical matters in dispute, including the claimed admission by the plaintiff, are not based on any suggested breach of confidentiality, but instead, relate to other, and unsatisfactory aspects of his evidence, to which I shall shortly refer.

95. In my opinion, those reasons, which now follow, unfortunately at some length because of the necessary detail, indicate that Mr Iuso should be regarded as an unsatisfactory factual witness in this case.

Absence of a statement for refreshment of memory

96. First, Mr Iuso gave his evidence without having refreshed his memory from a contemporaneously made statement. In that context, he agreed that he had conferred with the defendant’s legal representatives before he gave his evidence: T277.9. It is a significantly noteworthy matter that Mr Iuso gave his evidence without having earlier made a statement about the subject matter of his evidence. The reliability of his evidence must be examined because, in the period of four and-a-half years between when the events in question occurred, and when he gave his evidence, wrongly described in the transcript as a period of three years, he appeared to have no reason to beforehand maintain a recollection of the events of which he gave evidence in these proceedings: T282.1 – T282.10.

Probative value of claimed admission attributed to plaintiff

97. Secondly, the notion that a claimed admission made by the plaintiff could have probative value when it emanated from her whilst she was, on Mr Iuso’s account, in an hysterical state, is inherently problematic, especially where there is evidence that the plaintiff has cognitive difficulties, including in finding words to express herself, and has difficulty focussing on more than one concept at a time.

98. Those circumstances indicate a need to be satisfied the plaintiff was being responsive to the question that was said to have been asked of her by Mr Iuso. When that matter was raised with Mr Iuso, his answer indicated his evidence was in a conflated summary form, characterised by expressions such as “… more like, you know …” interspersed with other statements of “you know”, which suggested doubtful accuracy and imprecision as to detail on a matter of some importance: T287.4 – T287.15.

99. In those circumstances, I consider that Mr Iuso’s evidence should therefore be treated with considerable caution on the question of the alleged admission, especially without a sufficiently more detailed exposition of the surrounding content of the alleged conversation. Satisfactorily detailed evidence with that kind of content was absent in this case.

Dismissive attitude towards plaintiff

100. Thirdly, in an unguarded moment in his evidence, Mr Iuso exhibited a concerning, unfortunately dismissive, and disrespectful attitude towards the plaintiff.

101. This was in circumstances where Mr Iuso had not been in contact with the plaintiff for a considerable period of time before he gave his evidence. Aspects of his evidence about the plaintiff were expressed in dismissive and off-hand terms which was a surprising circumstance, given his role had been as her disability and support advocate since about 2010: T265 – T266.

100. This aspect was evident when Mr Iuso referred to the plaintiff, somewhat insensitively, as an “idiot”, a matter for which he admittedly quickly apologised: T280.34 – T280.39. He did so in the context of summarising, in a conflated way, an alleged conversation he had with the plaintiff. In final submissions, wrongly in my view, the defendant pointed to Mr Iuso’s apology as evidence of his sympathetic attitude to the plaintiff and therefore had no motive for seeking to discredit her: DWS, par [66].

101. Contrary to that submission made on behalf of the defendant, I formed a very different impression of the circumstances. In my view, when Mr Iuso had suddenly realised that in an unguarded moment he had referred to the plaintiff as an idiot, he then became embarrassed at having used that term, and his apology was then delivered in an atmosphere of personal embarrassment.

102. I formed the impression that the reason for Mr Iuso’s proffered apology was the force of circumstances which had caused him embarrassment, and not an asserted sympathetic attitude to the plaintiff, as was submitted by counsel for the defendant. Nevertheless, the off-hand nature of the comment for which the apology was made was a matter of concern as to whether his evidence could be considered to be reliable. My impression of Mr Iuso’s evidence was that it was in parts ill-considered, and it was expressed in off-hand and conflated terms. Those matters caused me to doubt the reliability of his evidence. The question of his motive in that regard does not necessarily arise as it was not explored.

103. Ordinarily, in litigation, the modern view is that the demeanour of a witness should not form the sole basis of an assessment of credibility. However, in this instance, the content of the cited evidence of Mr Iuso was inextricably mixed with the manner of its delivery as cited, and this was one of the reasons that caused me to doubt the accuracy and the reliability of Mr Iuso’s evidence, and the sincerity of his apology.

Absence of contemporaneous notes to support alleged verbal admission

106. Fourthly, in circumstances where the reliability of Mr Iuso’s recollection of the events was under critical scrutiny, and in the face of doubts about the reliability of his evidence on the matter of the alleged and contentious verbal admission said to have been made to him by the plaintiff, I consider that the objective contemporaneous records, particularly those made by the police officer responsible for keeping the plaintiff in custody, and the records kept by the New Horizons organisation, take on some considerable significance in the assessment of the reliability of the evidence of Mr Iuso: Fox v Percy [2003] HCA 22; 214 CLR 118, at [31].

107. This requires a consideration of two sets of contemporaneous records relevant to the assessment of the reliability of Mr Iuso’s evidence, first, the records of the New Horizons organisation (Exhibit “C”), and secondly, the police custody management records that were independently maintained at Lismore Police Station by Senior Constable Devine, and which formed part of Exhibit “B” and Exhibit “2”.

New Horizon records

108. The file maintained by the New Horizons organisation in relation to the plaintiff, and in relation to the support services that organisation provided to her, contained a contemporaneous file note, described as a progress note, purportedly made by Mr Iuso. On its face, that note was a business record stated to have been made shortly after the plaintiff’s arrest. On its face, the record is stated to have been written by Mr Iuso, in person.

109. Notwithstanding the appearance and the content of the note, in his evidence, Mr Iuso speculatively suggested that it had possibly been written by someone else in the organisation in his name, based on information he had provided. It bears the creation time and date 12:18:01 pm on 18 November 2011, which was on the day following the plaintiff’s arrest and it bears the note date 12:03:05 pm on 17 November 2011: Annexure “A” to Exhibit “C”. The timing calibrations were unexplained.

110. It becomes necessary to determine whether it was Mr Iuso or another New Horizons staff member who wrote that progress note, which was stated to have been made about 18 hours after the plaintiff’s arrest. Having considered Mr Iuso’s evidence as a whole, there are a number of elements that have aggregated to serve as indicators of the unreliability of his oral testimony on this point.

111. The progress or file note attributed to Mr Iuso was in the following terms:

“At 6:35pm I received a message from CSW Richard Clarke informing me that Rhani had been taken to the Lismore police station. I contacted the Lismore police and was informed that it would be good if I could come to the station to support Rhani. When I arrived I found Rhani sitting on the floor of a cell crying, I spoke to Rhani and she was upset that she had been charged and that her ex got away with everything, I asked Rhani to explain, she said that her ex had pushed her to the ground and had taken her home phone she had informed the police and they did nothing.

Rhani was charged and has to appear in court on the 29th November at the lismore court house 9.30am.

Rhani was released on bail at 11pm. I drove Rhani home and she asked if I could come inside with her as she was scared that her ex maybe there, I entered the home and found no-one there Rhani informed me that some one had been in her home as the back window was open and her dog was inside and that the dog was left outside and the window was secured before she left. I informed Rhani to contact the police and inform them that some one had entered the house when she was not there.”

[Exhibit “C”, Annexure “A”]

112. In light of the evidence considered as a whole, there are two significantly striking features about that note. First, it is written in a form that includes repeated references to Mr Iuso in the first person, referring to his actions in respect of the events described within the document, as if he would have written it himself. A factually correct business record written by someone on Mr Iuso’s behalf would be more likely to have been identified as being written by the author in terms reporting what Mr Iuso had said. Secondly there was no reference at all in the note cited above to Mr Staff’s missing keys, let alone the suggestion that the fact that the keys were missing was the basis of the plaintiff’s arrest by police.

113. The details within Mr Iuso’s oral evidence about Mr Staff’s missing keys, and the alleged role of the plaintiff in that regard, differed materially from the content of that contemporaneous note. In my view, this raised doubts about the reliability of the evidence that Mr Iuso gave on factual matters at a time that was so long after the events occurred, without ever having refreshed his memory from any contemporaneous materials, and where it appears that he had no particular reason for retaining a vivid or accurate memory, or a memory of any kind, about those events.

114. In those circumstances, caution dictates that the content of the contemporaneous record kept by New Horizons should be preferred to Mr Iuso’s current recollections as related in his evidence, especially where those recollections can be shown to have been inaccurate in a number of respects: Fox v Percy [2003] HCA 22; 214 CLR 118, at [31].

115. The New Horizons Customer Note or Progress Note was on its face stated to have been written by Mr Iuso for the purpose of it being placed in the plaintiff’s file maintained by New Horizons. The note is plainly written in the first person, and it refers to the author of that note as having himself received and made telephone calls, and of him having taken the described active steps.

116. In those circumstances, I am compelled to the conclusion that the record in question was in fact written by Mr Iuso himself, in his capacity as co-ordinator for the organisation. In coming to that view, I have not overlooked Mr Iuso’s speculative explanation in which he sought to disavow the content of the note comprising Annexure “A” to Exhibit “C” where he said that : “There’s a few people that knew my password. My boss knew my password because my role was, I had to travel throughout New South Wales and I don’t have access to computers. A lot of the times I’d ring in and get somebody to write a note”: T301.5 – T301.6; T301.24 – T301.33.

117. Even if that cited explanation was applicable in this instance, which I do not accept, the information contained within that note would most likely have been provided by Mr Iuso as a contemporaneous business record made during his work for New Horizons. Given the content of Annexure “A” to Exhibit “C”, I consider it to be very unlikely that note was written by anyone other than the stated author, Mr Iuso, and I consider it to be most improbable that the note in question was written by someone else on his behalf, as he has speculatively suggested in his oral evidence.

118. In my view, without explanatory evidence of the system of record making and keeping at New Horizons from someone other than Mr Iuso, I do not accept Mr Iuso’s evidence by which he sought to distance himself from the authorship of that note. This is because it is written in the first person, identifying himself as the participant in the multiple activities described in that note, and which was recorded for the specific purpose of maintaining a progress chronicle of relevant events that had affected the plaintiff, the contents of the note being events that New Horizons needed to note and record.

119. In that regard, I consider that if there had been a discussion between the plaintiff and Mr Iuso about Mr Staff’s car keys, and if an admission had been made by the plaintiff to the effect that she had thrown Mr Staff’s car keys away, as was asserted and recounted by Mr Iuso, such a conversation would have been a relevant and noteworthy matter that was relevant to be included in the plaintiff’s file as a behavioural issue relating to the plaintiff which required the assistance of the agency.

120. I consider that if the events were correctly recounted by Mr Iuso in his oral evidence, given that a note was made, then the alleged foundation event concerning Mr Staff’s missing car keys would most probably have been recorded in that note as a record of the basis for the significant action taken against the plaintiff by the police at the time, especially given the police evidence to the effect that the plaintiff would not have been arrested if the keys were not missing, as cited at paragraph [44] above.

121. I consider that Mr Iuso’s attempt at seeking to cast doubt on his authorship of the file note in question, without a sound basis for doing so, gives rise to an impression that his oral testimony, which included a significant expansion if not a departure from that file note, was not reasonably supported by its content. This left me with the impression that his evidence was unreliable on an important matter of disputed detail.

122. Mr Iuso gave his evidence without having read or having refreshed his memory from the New Horizons Customer File Note: T282.4 – T282.10. In evaluating Mr Iuso’s evidence, I consider that the contemporaneous nature and purpose of the note he prepared gives rise to an inference that it was recorded for maintaining the continuity of the factual record of relevant events where the community support worker’s attendances upon the plaintiff was required, including the need for an attendance to support her in difficult circumstances in which she found herself at the police station on 17 November 2011.

123. Although the preamble portion of the Customer File Note is timed as “17/11/2011 12:03:05 PM”, absent more detailed explanatory evidence as to how the system operated, including as to calibration of timing, I consider that nothing of significance turns on the apparent stated error of timing.

Police Custody Management Records

124. Fifthly, and by reference to a comparison between the content of the New Horizons progress note, Mr Iuso’s oral evidence, and the timed contents of the police Custody Management Record (part of Exhibit “B” and Exhibit “2”), a number of discrepancies emerge between Mr Iuso’s evidence and those records, which lead me to entertain further doubts about the accuracy and the reliability of the evidence of Mr Iuso. These matters of doubt are identified in the following paragraphs.

125. Whereas Mr Iuso stated in his oral evidence that he received a call from the police, which he guessed to have occurred at about 6:00pm on the day in question (T271.18 – T271.28), his own note instead refers to having received a message at about 6:35pm, not from the police, but from one of the plaintiff’s community support workers, Mr Richard Clarke, informing him that the plaintiff had been taken to Lismore Police Station. In contrast, or perhaps in addition, it seems from the Custody Management Record, that Senior Constable Devine rang Mr Iuso at some time between 7:07pm and 7:13pm: See Appendix, Item 6.

126. Whereas in Mr Iuso’s oral evidence he said he thought that the plaintiff was released from police custody at about 2.00am the following morning (T274.9), the Custody Management Record shows that she was in fact released on bail at 10.12pm on 17 November 2011: Exhibit “B”, p 83; Exhibit “2”, p 7. Mr Iuso’s file note as cited at paragraph [111] above, states this occurred at about 11.00pm that evening. I consider that the file note, and his oral evidence should therefore also be seen to be an unreliable indication of that time. I consider that the police Custody Management Record is more likely to be correct in this respect.

127. Although there are some timing issues concerning the accuracy of the Custody Management Record regarding the plaintiff’s location in a cell at the Police Station, which will be considered in relation to the plaintiff’s evidence, in my view, the times stated in the Custody Management Records are more likely to be correct when compared to Mr Iuso’s recollection. This is because those records represent an independent and accountable police record of the plaintiff’s time in custody. That record was maintained by an officer unconnected with the events of the plaintiff’s arrest. As such, that record is more likely to be correct, or at least more reliable, than Mr Iuso’s unaided recollection, either when committed to writing on 18 November 2011, or as recounted in his oral evidence.

128. This raises a question which was not explored in the evidence, namely as to why it took Mr Iuso so long to arrive at the Police Station after being called to attend and to support the plaintiff. As that matter was not explored in the evidence, nothing of a credit significance turns on that timing. I accept that he arrived at the Police Station at 8:15pm on the night of 17 November 2011.

129. Significant portions of Mr Iuso’s evidence were stated to have been based on what he thought “would have” been the case, for example, at T271.36; T271.42; T272.17. When his mode of expression in that regard was queried for clarification purposes, Mr Iuso’s subsequent mechanically reiterated description of the events, which omitted the qualification “would have” (which connotes uncertainty and surmise) was unconvincing. My impression was that Mr Iuso simply made adjustments to the form of his answers when that matter was drawn to his attention and when clarification was sought. However, the content of his evidence nevertheless remained an impressionistic summary of what he thought would have been the case, rather than an accurate factual recall or account on important factual matters.

Alleged verbal admission over the keys

130. In Mr Iuso’s oral evidence, unaided by any notes on the matter, he recounted a verbal rendition of an alleged significant conversation which he claimed to have had with the plaintiff whilst he was with her in the police cell. In that evidence, he claimed that the following conversational exchange occurred between himself and the plaintiff:

“Q. Let me come back to the discussion in the cell and was there any discussion about - or rather I want to know what discussions occurred in relation to the lead up of her being arrested by the police, that is what she told you?

A. Well I think, and I think that roles into going - taking her home, was one of the things that she discussed was that she was angry that she was in the cell and her boyfriend was out and that she had been accused of dinting his car, she’d kicked it, kicked it, and she wants to know “How can I kick it because I’ll lock you in the car” and then I said to Rhani, “What is it, what else, there’s got to be something else” and I said “What else was done” and she said “The only thing I did was threw his keys in the garden across the road” and I said “Well you want to get rid of this goose. What does throwing his keys across the road achieve, now he can’t drive his car out of your driveway” and that was to roll on why I think of me going back to her house to see if the car was still in there, and whether he would still be there.”

[T274.24 – T274.38]

[Emphasis added]

131. It is not clear as to the basis upon which Mr Iuso had assumed that Mr Staff’s vehicle was located in the plaintiff’s driveway. The undisputed evidence was that it was parked on the street, or on the grass outside the plaintiff’s house, but not in her driveway: T290.5; T468.40; Exhibit “7”, p 2.

132. I consider the part of the evidence of the alleged conversation between Mr Iuso and the plaintiff, which has been emphasised in paragraph [130] above, as relating to the alleged key throwing incident, which the defendant characterised as an alleged admission by the plaintiff of having thrown Mr Staff’s keys into the garden across the road, a matter that was disputed by the plaintiff (T190.2; T190.18 – T190.22), and which was recounted in Mr Iuso’s evidence four and-a-half years after the event, purportedly as a direct quote in the midst of a summary of other matters discussed, as emphasised in the cited transcript extract within the preceding paragraph, and where no contemporaneous or other form of statement had either been prepared by or obtained from Mr Iuso, dealing with that subject matter, indicates to me that evidence was unlikely to be either true or reliably accurate, as recounted by him.

133. If the plaintiff had truly made an admission to Mr Iuso in the terms stated by him, I consider this would have been a matter of importance that would have been the subject of a written entry to that effect in his file note of his attendance on the plaintiff on 17 November 2011, as already explained, and given the nature of the other entries made.

134. As evidence to support the reliability of Mr Iuso’s evidence, the defendant points to the fact that he had not refreshed his memory from any document: DWS, par [73].

135. In my view, given the effluxion of time and the absence of contact with the plaintiff in the interim, the opposite conclusion to that advanced by the defendant applies. Given the lapse of time since the events in question, and given the generalities within his evidence, and the purported actual quotes from the plaintiff’s conversations as having the semblance of accuracy, as cited at DWS, paragraphs [71.16] – [71.19], and at T283.33, I considered that Mr Iuso’s account, whilst having the appearance and the form of quotations, was in fact an unreliable account of what he thought had occurred insofar as the reference to car keys and an alleged kicking of the car was concerned.

136. Given the plaintiff’s account of her undoubted information processing difficulties, and her state of upset on the night in question, particularly whilst she was in the cell at the Police Station, both before and after the arrival there of Mr Iuso, without a contemporaneous record to support his evidence, and in view of other demonstrated inaccuracies in his evidence, I do not accept the submitted accuracy and reliability of Mr Iuso’s purported detailed account of the conversation he said he had with the plaintiff about Mr Staff’s keys having been thrown by the plaintiff into the garden across the road from her home, and the kicking allegation concerning Mr Staff’s car.

Issue 7 – Whether plaintiff was injured on journey to Police Station

586. I accept the evidence of the plaintiff that on the journey between her home and Lismore Police Station, she was bounced around in the back of the police wagon.

587. I accept the plaintiff’s evidence that she felt sore and was bruised as a result of that journey. I accept that such feelings of soreness and bruising would most likely have occurred in that journey, taking into account her disabilities that prevented her from steadying herself by obtaining a secure handhold whilst in the police wagon. I also find that if she had been placed into a suitable police vehicle with a proper seat and seatbelt restraint, the soreness and bruising which she experienced from that journey would not have occurred.

588. That said, the plaintiff’s evidence fairly acknowledged that there is a difficulty in achieving a more precise understanding of what injuries, soreness or bruising, were due to the assault that she attributed to Mr Staff’s physical actions towards her, as described at paragraphs [21] and [342] above, and those injuries which would have been associated with having been bounced around during the journey to the police station when she was located in the back of the police wagon, where, in that process, she was thrown around and sustained bruising to her spine: T28.1 – T28.4; T129.6 – T130.20.

589. Nevertheless, I accept that the described journey would have been a very uncomfortable, undignified, and unsettling experience for the plaintiff. In this context it, does not matter that such injuries and bruises cannot be precisely defined. Apart from the element of emotional distress, the physical effects appear to have been of a soft tissue nature, without lasting effects.

590. In those circumstances, the indignity suffered by the plaintiff in the course of that journey cannot be measured as an additional or separate monetary amount in an assessment of her entitlement to damages.

Issue 8 – Assessment of damages

591. My assessment of the plaintiff’s claim for damages is as follows.

Approach to assessment

592. The law places a high value on the right to personal liberty and this cannot be taken away without lawful authority: Williams v The Queen [1986] HCA 88; (1988) 161 CLR 278, at pp 292 – 296. When that right is unlawfully infringed, this gives rise to a remedy in damages.

593. The Field Arrest Form and the Custody Management Record shows that the plaintiff was arrested and detained for a period of three and three-quarter hours. That period of detention was not a quiet or a calm experience for the plaintiff. At the time of the arrest she became concerned at the possible use of handcuffs in light of her upper limb disabilities. She also became concerned because of the choice of police vehicle to transport her to the Police Station. She was concerned about the way in which she was handled and placed into the rear of the police wagon, in an undignified manner, and over the way in which she was removed from the police wagon at the Police Station. The process by which she was fingerprinted was distressing to her because of her hand disability. Her time in the police cell was more uncomfortable than might ordinarily have been the case because of her disabilities which militated against her achieving a comfortable position in that situation. The whole period of her detention was a very distressing experience for the plaintiff.

594. The effect of my findings on the issues calling for decision is that the plaintiff has established an entitlement to an assessment of damages for wrongful arrest, false imprisonment and the consequential assault and battery, which later occurred when she was unnecessarily physically handled by the police.

595. That process of physical handling was deemed to be necessary by the police officers because a suitable vehicle had not been obtained for the purpose of transporting her to the Police Station in a manner commensurate with her disabilities, which I have found were at the time, well known to both Sergeant Ahrens and Senior Constable Cook. A suitable vehicle could have readily been summoned: T394.5 – T394.12. If this had been done, there would have been no need to physically handle the plaintiff in a way that constituted trespass to the person, comprising an assault and battery. The plaintiff had not been resisting the arrest.

596. The fact of arrest and deprivation of liberty gives rise to a right to compensatory damages. The circumstances were aggravated by the plaintiff’s disabilities, and the needlessly distressing effect those circumstances had upon the plaintiff. This gives rise to a right to aggravated damages.

597. In a case where exemplary damages are claimed in addition to general compensatory damages and compensatory aggravated damages. The components comprising compensatory damages must be assessed first, before determining whether damages reflecting disapprobation of the conduct of the arresting police should also be marked by an award of exemplary damages, and if such damages are found to be called for, then care should be taken to ensure that no element should be compensated more than once: NSW v Radford [2010] NSWCA 276, at [97]; State of NSW v Zreika [2012] NSWCA 37, at [63] – [64].

598. That approach is necessary in order to appropriately maintain the distinction between, on the one hand, the compensatory nature of general and aggravated damages, and on the other hand, the separate element of exemplary damages, which are of a punitive and deterrent nature: State of NSW v Abed [2014] NSWCA 419, at [230].

599. Particular reference to the amounts awarded in other decided cases is of limited guidance to the assessment of damages in this case, where the facts are intrinsic and relatively unique in the sense of their impact upon the plaintiff.

600. My assessment of the plaintiff’s entitlement to damages, and allowable interest on components of such damages, now follows.

General compensatory damages – assault and battery

601. The plaintiff made no specific monetary submission for the assessment of damages for trespass comprising the assault and battery. Such damages are directed at compensating the plaintiff for her removal from her home, which also involved the use of some force to get her in and out of the police wagon. The defendant has conceded that in the event that the arrest of the plaintiff is found to have been unlawful, such damages should follow.

602. The defendant has drawn attention to a comparable award of $10,000 for damages for trespass to the person: State of NSW v Abed [2014] NSWCA 419. In the circumstances where the plaintiff was physically handled, and placed into the caged area of the police vehicle, and then removed from that vehicle, I consider that an award of $10,000 for this component, whilst reasonable should nevertheless be moderated to reflect the fact that other components will be the subject of compensation, and overlap should be avoided. I therefore assess the plaintiff’s claim for general compensatory damages for assault and battery in the amount of $7500.

Damages for wrongful arrest and false imprisonment

603. In Zaravinos v State of New South Wales [2004] NSWCA 320, at [52], it was observed that damages for wrongful arrest and false imprisonment are not necessarily proportionately related to the length of time spent in detention. The substantial portion of the award of such damages should be allocated to the initial shock of being arrested: Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612.

604. On behalf of the plaintiff, it was submitted that general compensatory damages, including a component of aggravated damages, for wrongful arrest and imprisonment should be awarded in the sum of $30,000. On behalf of the defendant, reference was made to comparable awards of damages in the range $7000 to $10,000: Hage-Ali v State of NSW [2009] NSWDC 266; State of NSW v Abed [2014] NSWCA 419.

605. In my view that submission made by the defendant should be rejected, as those cases were not comparable to the present case, particularly having regard to the element of the plaintiff’s disabilities. The defendant’s suggested range does not represent adequate compensation for the humiliation, embarrassment expressed by the plaintiff, as well as the emotional and physical discomfort she suffered as a consequence of being arrested.

606. The plaintiff was arrested in clear view of anyone who may have been present in the neighbourhood. The arrest was particularly humiliating to her and it left her feeling degraded, belittled and scared: T109.11 – T109.17. Instead of feeling comforted by the fact that the police were meant to protect persons like herself (T27.19 – T27.21), the plaintiff has been left feeling afraid of, and anxious about the police: T27.12 – T 27.15.

607. This was in circumstances where, at the relevant time, her own father was employed as a Communications Officer in the NSW Police Force at Parramatta: T27.4 – T27.10. The plaintiff now experiences anxiety and flashbacks about the events, and does not sleep very much: T48.13 – T48.29.

608. The plaintiff’s claim for general compensatory damages relates to the humiliation, embarrassment and emotional distress of the events of her arrest, and the physical bruising, and the pain and discomfort she experienced in being bounced around in the back of the police wagon on the journey to the police station. This was in circumstances where, due to her physical limitations, she was unable to brace herself inside the caged portion of the police wagon when she was jostled around as the vehicle negotiated the bends, corners and roundabouts en route.

609. The aggravating features of the plaintiff’s false imprisonment, which call for an award of aggravated damages include: having her home searched without her consent, including the police officers permitting Mr Staff to participate in that search; having to submit to a pat-down search; having to have her jewellery removed; being fingerprinted and photographed; the recording of an inaccurate history in the police records of the plaintiff attempting to take her own life, a matter that now remains within an official police record: Exhibit B, p 78.

610. In light of my findings at paragraph [206] above, where I have recorded that due to her disabilities, the plaintiff has conflated her perceptions of being treated by the police officers with dismissive rudeness or disrespect, I do not include any component for those matters in my assessment of damages.

611. I consider that aggravated damages are called for in this instance because of the fact that the wrongful arrest of the plaintiff and her false imprisonment, involved the plaintiff experiencing a prolonged period of distress and discomfort whilst she endured the unrestrained, uncomfortable and bruising journey to the police station, where she was locked in a cell that was not accommodating of her disabilities, and which caused her further discomfort. This was in circumstances where, she should have been recognised as being a person who was vulnerable, as I have found, at paragraphs [269] to [330] above. This was in circumstances where the police officers took no notes of their interactions with the plaintiff, they undertook an imbalanced investigation of a domestic violence incident, in which they did not record her version of events, where in such a setting such incidents required a serious and high level of investigation. A proper and balanced investigation would have indicated that if an arrest was being contemplated, court attendance notices would have been preferably indicated, such that an arrest was not necessary. Despite this, her disability-related needs were nevertheless effectively ignored. In my view, those matters, and the failure by the police officers to give effect to the CRIME Code comprising Exhibit “D”, at page 15, and the related regulations, calls for the inclusion of an award of aggravated compensatory damages.

612. In light of the significant period of time the plaintiff had been detained, namely three and three-quarter hours, most of which the plaintiff spent unhappily and in discomfort in a police cell, I consider that this deprivation of her liberty, justifies an award of general compensatory damages for wrongful arrest and false imprisonment in the sum submitted by the plaintiff, which I consider to be reasonable, and not at the upper end of the range. I therefore assess such damages in the amount of $30,000.

613. In arriving at that conclusion I recognise that the potential for overlapping of damages should be avoided. To ensure that principle is observed and applied, the amounts awarded for general compensatory damages for assault, battery, and wrongful imprisonment, should ordinarily be assessed more towards the lower end of the range for such damages: Radford v State of NSW [2010] NSWCA 276, at [97]; State of NSW v Zreika [2012] NSWCA 37, at [63] – [64].

614. However, in this case, and counter-balancing those considerations, the conduct of the defence has, in my assessment, added to and increased the plaintiff’s feelings of hurt and distress. Those matters should be reflected in the assessment of damages: Spautz v Butterworths & Anor [1996] NSWSC 614. In that regard, the plaintiff’s submissions argued, correctly in my view, that the manner in which the defendant’s case was conducted was offensive to the plaintiff.

615. The defendant’s conduct at the trial in that regard was to suggest, without a reasonable factual or evidentiary foundation, that the plaintiff told “barefaced lies” to the court about her time in police custody: T197.28. Another of the defendant’s approaches to the case that added to the plaintiff’s hurt was to suggest, without medical evidence, that the plaintiff had a history of mental health and self-harm issues. This was most distressing for the plaintiff in the context of the defendant’s attempts to discredit her evidence. Additionally, the defendant raised the speculative suggestion, not supported by Mr Staff’s witness statement, that the plaintiff had kicked Mr Staff’s vehicle whilst she had been laying on her back on the ground. That unfounded attack also added to the plaintiff’s feelings of hurt and indignity: T194.15 – T194.25. None of those suggestions were justifiable on the evidence: Spautz v Butterworths & Anor [1996] NSWSC 614.

616. Also relevant were the adamant and repeated assertions by Sergeant Ahrens, in which he expressed his opinions to the effect that the plaintiff had been lying about Mr Staff’s missing car keys. This occurred in the context of his inadequate investigation of the circumstances, where he never recorded a version of events from the plaintiff when investigating the domestic violence report he was called upon to attend.

Exemplary damages

617. On behalf of the plaintiff, it was submitted that exemplary damages should be assessed in the sum of $25,000. On behalf of the defendant, it was submitted that there should be no award of exemplary damages.

618. To establish an entitlement to exemplary damages, the plaintiff must show that her arrest and detention was not only wrongful, but also, that the circumstances involved or amounted to conscious wrongdoing on the part of the police, in contumelious disregard of her rights, such that the conduct should be seen as being reprehensible, and requiring an expression of disapproval to bring home to those officials of the State responsible for overseeing the workings of the police force, that police officers must be appropriately trained so that unlawful and contumelious infringement of personal liberty does not continue to occur in other instances: State of NSW v Zreika [2012] NSWCA 37, at [61] – [62], following Gray v Motor Accidents Commission [1998] HCA 70; (1998) 196 CLR 1, at p 7, [15]; NSW v Ibbett [2006] HCA 57; (2006) 229 CLR 638, at pp 646 – 647; [31], [33]; NSW v Landini [2010] NSWCA 157, at [14]; Adams v Kennedy [2000] NSWCA 152; (2000) 49 NSWLR 78, at 36.

619. Conduct that is high-handed, outrageous, and which shows contempt for the rights of others, not being malicious, or not involving conscious wrongdoing, may still properly form the basis for an award of exemplary damages where an award of compensatory damages alone does not sufficiently express the court’s disapproval of the conduct in question: State of NSW v Abed [2014] NSWCA 419, at [233]; State of NSW v Riley [2003] NSWCA 208; (2008) 57 NSWLR 496, at [138]; State of NSW v Quirk [2012] NSWCA 216, at [163].

620. In my view, there are a number of factors in this case, which, alone and in aggregate, call for an award of exemplary damages in this case.

621. In my opinion, the high-handedness of the police arrest of the plaintiff, without having ever first recorded or noted her version of events in the context of investigating a complaint of domestic violence, and without having investigated her complaint of having been assaulted by Mr Staff, where that version might well have been exculpatory of the plaintiff, and the police use of force to get her into the police wagon without securing her on account of her disability in light of her protests, and therefore resulting in her having to endure an unsecured, uncomfortable and bruising ride to the Police Station, requires censure in the form of an award of exemplary damages.

622. In addition, in my view, the failure of the police officers to comply with the requirements of the CRIME Code comprising Exhibit “D”, page 15, and the related regulations was egregious in this case because of the plaintiff’s obvious disabilities. On behalf of the plaintiff it was submitted that if Sergeant Ahrens had complied with that Code, and if he had written down in his notebook the reasons for the plaintiff’s arrest at the time, he would have been compelled to explicitly identify the grounds for her arrest, and this ought to have required him to look at the prevailing circumstances more critically than he did: MFI “19”, par 134. I accept that submission.

623. Furthermore, the deliberate actions of Sergeant Ahrens, where he “massaged” the facts, as outlined in my findings at paragraphs [215] – [218] and [230] – [235] above, also calls for an expression of censure in the form of exemplary damages.

624. Police conduct which has the effect of inaccurately describing the effect of an investigation in a factual summary ultimately intended for use in a court, is a matter of great concern.

625. The representations that Sergeant Ahrens made in his “terminology” adjustments to the factual circumstances that were contained and set out in Mr Staff’s statement undermined the public interest of ensuring the proper administration of justice. It is fundamental that the parties who are affected by a criminal investigation, and the courts, should be entitled to rely on the accuracy of factual renditions of events as prepared by police officers for use in court proceedings. The “massaged” facts prepared by Sergeant Ahrens did not have that descriptive quality.

626. In this case, on behalf of the plaintiff, it was put to Sergeant Ahrens that his actions in the morphing of Mr Staff’s admissions in his statement of having twice pushed the plaintiff, changing that description into the description of having “shepherded” her, was done deliberately to conceal his inadequate investigation of the domestic violence incident he was called upon to attend: T422.20 T422.24. Notwithstanding Sergeant Ahrens’ denial of that proposition, I have not accepted his denial. I accept the plaintiff’s submissions to the contrary. He should have followed-up rather than ignored the plaintiff’s complaints of having been assaulted by Mr Staff. Mr Staff’s own statement was confirmatory of what the plaintiff had said regarding such an assault. This requires censure.

627. It follows that the plaintiff has established her entitlement to an award of exemplary damages on that account.

628. In assessing exemplary damages, I have had due regard to the need to recognise that care must be taken when identifying the disapproved conduct that attracts such an award, to ensure that no element of the compensation is awarded more than once: State of NSW v Quirk [2012] NSWCA 216, at [154], citing NSW v Ibbett [2006] HCA 57; (2006) 229 CLR 638, at [35].

617. In my opinion, the disregard by the police officers of the provisions of the Code and related regulations designed to meet the needs of persons with disability requires censure. The notebooks of the attending police officers do not reflect that they had due regard to the requirements of that Code. Before the decision was made to arrest the plaintiff, the police officers knew they had before them a person with significant physical disabilities, if not cognitive disabilities. The post-arrest journey to the Police Station was undertaken in a vehicle that was inappropriate to the plaintiff’s condition. The “massaged” rendition of the facts, and Sergeant Ahrens’ glib defence of that course, was not justifiable.

618. Those decisions made by Sergeant Ahrens indicate the need for censure, and require an expression of censure by an award of exemplary damages “to bring home to those officials of the State who are responsible for the overseeing of the police force that police officers must be trained” so that such problems do not recur: Adams v Kennedy [2000] NSWCA 152, at [36].

619. In my view, the circumstances as found, indicate there should be an award of exemplary damages that signifies the court’s disdain and disapproval for what I find has amounted to a contumelious disregard of the plaintiff’s rights. I therefore accept the plaintiff’s submission that the assessment of exemplary damages should be in the sum of $25,000.

Interest

632. The damages awardable for assault, battery, wrongful arrest and false imprisonment are assessed as at the commencement of the date of judgment, namely on 23 June 2017, for an infringement of the plaintiff’s rights that occurred on 17 November 2011, a period of 5.59 years.

633. An award of interest on damages involves the exercise of discretion. Interest is not awardable on exemplary damages. Given that some of the elements giving rise to the plaintiff’s award of compensatory damages still continue to affect her, for the purpose of assessing interest, I broadly apportion 80 per cent of the award for compensatory damages to the past, namely $36,000.

634. In MBP (SA) Pty Ltd v Gogic [1991] HCA 3; (1991) 171 CLR 657, the selected interest rate on general damages was 4 per cent. In comparison, over the relevant period the average Reserve Bank of Australia cash rate between 17 November 2011 and 23 June 2017 is 2.97 per cent, and the average rate for the same period as provided by s 100 of the Civil Procedure Act 2005 and UCPR 6.12(8) is 6.97 per cent: Furzer Crestani, Assessment Handbook, October 2016, pp 14 - 15. In light of those comparisons, I consider that the appropriate rate for the calculation of interest on general compensatory damages in this case is 4 per cent: MBP (SA) Pty Ltd v Gogic [1991] HCA 3; (1991) 171 CLR 657.

635. Accordingly, I assess interest on the sum of $36,000, at 4 per cent over 5.59 years, namely $8049.

Summary of damages and interest

636. My assessment of the plaintiff’s damages is summarised as follows:

Head of damage

Award

(1) Assault/battery

$7,500

(2) Wrongful arrest/false imprisonment

(including aggravated damages)

$30,000

(3) Exemplary damages

$25,000

(4) Interest

$8,049

Total

$70,549

Disposition

637. The consequence of the foregoing findings is that there must be a verdict and judgment for the plaintiff in these proceedings, in the aggregated sum of $70,549. In light of the fact that the plaintiff is a disabled person and is represented by her Tutor, the NSW Public Trustee and Guardian, the question of whether there should be an amount added to that judgment sum on account of further funds management charges needs to be addressed. This must await the future submissions of the parties.

Costs

638. It follows that the defendant must pay the plaintiff’s costs of the proceedings on the ordinary basis unless a party can show an entitlement to some other costs order.

Orders

639. I make the following orders:

1. Verdict and judgment for the plaintiff, including general compensatory damages, aggravated damages, and exemplary damages, and interest on past damages, in the total sum of $70,549;

2. The defendant is to pay the plaintiff’s costs of the proceedings on the ordinary basis unless otherwise ordered;

3. I will hear the parties on what amount, if any, should be added to the verdict and judgment on account of future funds management charges;

4. The exhibits may be returned;

5. Liberty to apply on 3 days’ notice if further or other orders are required.

**********

Appendix

Custody Management Record relating to plaintiff - 17 November 2011

Item	Time	Event	Source Reference in Ex “B” & Ex “C”
1.	18:50	Arrival of plaintiff at Lismore Police Station	Ex “B” p 77; Ex “3” p 1
2.	18:50	Plaintiff located in Cell 1	Ex “B” p 83; Ex “3” p 7
3.	18:59	Plaintiff’s detained persons details entered	Ex “B” p 77; Ex “3” p 6
4.	19:00	Plaintiff received by Custody Manager. Original grounds for detention were stated to be domestic violence, assault and malicious damage	Ex “B” p 82; Ex “3” p 6
5.	19:03 -to- 19:15	Caution and Summary of Pt 9 of LEPRA read to plaintiff. Plaintiff is assessed by Snr Const Devine. Plaintiff noted as having impaired intellectual functioning which may impair investigations	Ex “B” p 82; Ex “3” p 6
6.	19:07 -to- 19:13	Telephone call made by custody manager to Tony (Iuso) New Horizons Support: “Support person informed”	Ex “B” p 80; Ex “3” p 4
7.	19:13 -to- 20:13	Arrival of visitor: “awaiting arrival of support person for costello”	Ex “B” p 83; Ex “3” p 7
8.	19:17	Property Docket completed by Snr Const Devine	Ex “B” p 86; Ex “3” p 1
9.	19:18	Visual assessment of plaintiff completed: “Nil apparent issues”	Ex “B” p 78; Ex “3” p 2 - 3
10.	19:18	Inspection frequency set at 30 min intervals	Ex “B” p 79; Ex “3” p 3
11.	19:33	Plaintiff placed in cell 1. Observed to be kneeling: “Nil apparent issues.”	Ex “B” p 79; Ex “3” p 3
12.	19:48 -to- 19:51	Telephone call made to Richard New Horizons Support: “Support person informed”	Ex “B” p 80; Ex “3” p 4
13.	19:53	Plaintiff observed in cell 1: “Nil issues apparent.”	Ex “B” p 79; Ex “3” p 3
14.	19:53	“Second call to New Horizons to find out how much longer for support person to attend”	Ex “B” p 81; Ex “3” p 5
15.	19:53 -to- 19:55	Telephone call made to Matt New Horizons Support: “Support person informed”	Ex “B” p 80; Ex “3” p 4
16.	19:56 -to- 19:58	Plaintiff “taken to toilet”	Ex “B” p 80; Ex “3” p 4
17.	20:15	Plaintiff observed in cell 1: “Nil apparent issues.”	Ex “B” p 79; Ex “3” p 3
18.	20:15 -to- 20:35	Tony Iuso of New Horozons (sic) present as support person: “consulting with support person tony iuso – new horizons”	Ex “B” p 80; Ex “3” p 4
19.	20:36 -to- 22:00	Charging process	Ex “B” p 83; Ex “3” p 7
20.	20:43	Plaintiff observed in cell 1: “Nil apparent issues.”	Ex “B” p 79; Ex “3” p 3
21.	20:58	Plaintiff observed: “in cell 1 with support person. Nil apparent issues”	Ex “B” p 79; Ex “3” p 3
22.	22:12	Plaintiff released on bail	Ex “B” p 83; Ex “3” p 7
23.	22:15	Completion of custody record	Ex “3” p 9

Decision last updated: 23 June 2017