Crossley v State of South Australia
[2020] SADC 14
•25 February 2020
District Court of South Australia
(Civil)
CROSSLEY v STATE OF SOUTH AUSTRALIA
[2020] SADC 14
Judgment of His Honour Judge Tilmouth
25 February 2020
TORTS - TRESPASS - TRESPASS TO THE PERSON - ACTION FOR DAMAGES
The plaintiff claims damages arising from his arrest in the early hours of a Sunday morning, following a melee in Hindley Street. The police either assuming or considering he was at the centre of it, resolved to ‘defuse’ the situation by removing him from the scene, which they succeeded in achieving by encouraging him around the corner onto the Western side of Bank Street. As he began leaving the area, two police officers followed him. He continued verbal protests as to his version of the Hindley Street events, insisting the police were not listening to him. The police formed the view that he was not leaving, sprayed him twice with capsicum spray and arrested him, during which he was restrained and handcuffed using a 'Figure Four Leg Lock'.
Held:
1. The two acts of spraying were unjustified as there was no immediate danger or peril to anyone, both amounting to battery.
2. The plaintiff was not told in clear terms the reasons for his arrest, rendering the arrest unlawful.
3. The action of employing the leg lock in order to apply handcuffs was unnecessary and excessive, as the plaintiff was already wholly restrained and entitled to resist an unlawful arrest. This constituted a third unjustified act of battery.
4. Action adjourned for an assessment of damages.
Crown Proceedings Act 1992 (SA) s 5; Police Act 1998 (SA) s 65; Civil Liability Act 2003 (SA) Part 8, s 51; State of New South Wales v Williamson (2012) 248 CLR 417; Murn v Beesley [2017] SADC 46; Johnson v The State of South Australia [2019] SADC 35; Galea v Galea (1990) 19 NSWLR 263; Cuthbertson v New South Wales [2017] NSWDC 367; Carr v The Queen (1988) 165 CLR 314; McKinney v The Queen (1991) 171 CLR 468; R v Towner (1991) 56 A Crim R 221; Giner v Public Trustee (1991) 105 FLR 410; Bethune v Qconn Pty Ltd [2002] FCA 1485; Reed v Peridis (2005) 239 LSJS 205; Kent v Gunns Ltd (2009) 18 Tas R 454; Corkery v Kingfisher Bay Resort Village Pty Ltd [2010] QSC 161; Finn v Roman Catholic Trust Corporation of the Diocese of Townsville [1997] 1 Qd R 29; Tranquility Pools & Spas Pty Ltd v Huntsman Chemical Co Australia Pty Ltd [2011] NSWSC 75; Maynard v Rover Mowers Ltd [2000] QCA 26; Slater v Attorney-General (No 1) [2006] NZAR 664; Middleweek v Chief Constable of Merseyside [1992] 1 AC 179; Cole v Turner (1704) 6 Mod Rep 149; Stingel v Clark (2006) 226 CLR 442; Battiato v Lagana [1992] 2 Qd R 234; Carter v Walker (2010) 32 VR1; Pursell v Horn (1838) 8 Ad & El 602; McHale v Watson (1964) 111 CLR 384; Darby v DPP (2004) 61 NSWLR 558; Wilson v Pringle [1987] QB 237; Weaver v Ward (1617) Hob 134; Stanley v Powell [1891] 1 QB 86; Knapp v Salsbury (1810) 2 Camp 500; National Coal Board v J E Evans & Company (Cardiff) Ltd & Maberley Parker Ltd [1951] 2 KB 861; Croucher v Cachia (2016) 95 NSWLR 117; Cope v Sharpe (No 2) [1912] 1 KB 496; Dehn v Attorney-General [1988] 2 NSLR 564; Proudman v Allen [1954] SAsR 336; Kuru v New South Wales (2008) 236 CLR 1; Pearce v Hallett [1969] SASR 423; Bennett v Dopke [2015] QCA 187; Bulsey v Queensland [2015] QCA 187; Underhill v Sherwell [1997] NSWCA 325; Elwin v Robinson [2014] WASCA 46; Watkins v State of Victoria (2010) 27 VR 543; Button & Swain v DPP (1965) 50 Cr App R 36; Taylor v DPP [1973] AC 964, referred to.
Fox v Percy (2003) 214 CLR 118; Chicco v Corporation of the City of Woodville (1989) 150 LSJS 89, applied.
EVIDENCE - DOCUMENTARY EVIDENCE - STATUTORY PROVISIONS RELATING TO BUSINESS RECORDS - IN GENERAL
The defendant sought to tender a Royal Adelaide Hospital note as a ‘business record’, indicating the plaintiff's blood alcohol concentration was 0.083 at 6.15 am on the morning of his arrest. Expert evidence before the court suggested that at 4.45 am, being the time of his arrest, the plaintiff’s blood alcohol level was between 0.098 per cent and 0.113 per cent, with a best estimate of 0.106 per cent, likely to be the result of consuming 13.5 standard schooners of beer. Police records comprising a ‘Record of Prisoner Inspection, Contact and Risk Assessment Review’ completed at the hospital at 6.30 am, recorded a blood alcohol reading of 0.038. Tender of the Royal Adelaide Hospital notes was pressed as evidence of the fact that the blood alcohol level was 0.083.
Held: Admission of the subject material as evidence of the facts stated in the records refused, because there could in the circumstances be no confidence in the accuracy of the Hospital note. There was a failure to identify any safeguards ‘taken to ensure … accuracy ...’ as required by s 53(3) of the Evidence Act. The potential prejudicial effect clearly outweighed probative value, rendering it contrary to the interests of justice to admit the reading contained in the nursing notes, under s 53(2)(b) and (c) of the Evidence Act for probative purposes.
District Court (Civil) Rules 2006 (SA) r 169(1); Evidence Act 1929 (SA) s 53, s 53(1), s 53(2), s 53(4); Cooper v Bech (No 1) (1975) 12 SASR 147; R v Keogh (No 3) (2014) 121 SASR 410; Spicer v Coppins (1991) 56 SASR 175; O'Donnell & Ellston v Dakin [1966] Tas SR 87; Sianis v Barlow (1987) 48 SASR 469, referred to.
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - ARREST AND DETENTION - EFFECTING ARREST - INFORMING PERSON ARRESTED OF FACT AND REASON
Held: The state of the evidence is inconclusive as to what the plaintiff was told were the reasons for his arrest, rendering the arrest unlawful.
McIntosh v Webster (1980) 43 FLR 112; Summary Offences Act 1958 (SA) s 74A; Police (SA) v Moukachar (2010) 107 SASR 450; R v Armistead [2019] SASCFC 85; Brazil v Chief Constable of Surrey [1983] 1 WLR 1155; Lindley v Rutter [1981] QB 128; Kenlin v Gardiner [1967] 2 QB 510; Randolf v Flemming [2019] SCC 45; R v Turner [1962] VR 30; Pringle v Everingham [2006] NSWCA 195; Leigh v Cole (1853) 6 Cox CC 329; Kumar v Minister for Immigration, Local Government & Ethnic Affairs (1991) 28 FCR 128; Slaveski v State of Victoria [2010] VSC 441; Holder v State of South Australia [2018] SADC 83; Perkins v County Court of Victoria (2000) 2 VR 246; Fraser v Soy (1918) 44 DLR 437; Mcallister v Johnson (1910) 40 NBR 73; Nicholl v Darley (1828) 2 Y & J 399; Greenwood v Ryan (1846) 1 Legge 275, referred to.
R v Stafford (1976) 13 SASR 392; Christie v Leachinsky [1947] AC 573; R v Tipping (2019) 133 SASR 58; Wright v Court (1825) 107 ER 1182, applied.
CROSSLEY v STATE OF SOUTH AUSTRALIA
[2020] SADC 14Contents
Overview of the proceedings
Factual context
An incident in Hindley Street
Police arrive on the scene
Events on the East side of Bank Street
Capsicum spray is used by the Police
The arrest of Mr Crossley
A ‘figure four leg lock’ is applied
Primary observations as to witnesses
The evidence of Mr Crossley
Mental state
Alcohol consumption
Psychiatric condition
Analysis – primary fact finding
An incident in Hindley Street
Police arrive on the scene
Events on the Eastern side of Bank Street
Capsicum spray is used by the Police
The arrest of Mr Crossley
A ‘Figure Four Leg Lock’ is applied
Summary and Conclusion
Appendix A – Comminuted fracture of the left femoral shaft
Appendix B – Figure Four Leg Lock
Overview of the proceedings
Mr Crossley brings these proceedings against the State of South Australia, claiming damages for personal injury sustained on 10 March 2013. The alleged injuries comprise both physical and psychological harm. His causes of action are principally framed in the torts of assault and battery committed by police officers of the South Australia Police Force,[1] during the course of his arrest on the above date.
[1] Hereafter SAPOL.
The question of whether the State of South Australia is vicariously liable for any wrong committed by members of the police under s 5 of the Crown Proceedings Act 1992 (SA) and s 65 of the Police Act 1998 (SA), is not in dispute. There is no suggestion the measure of damages are constrained by Part 8 of the Civil Liability Act 2003 (SA), since s 51 thereof excludes claims in respect of intentional torts: State of New South Wales v Williamson,[2] Murn v Beesley,[3] Johnson v The State of South Australia.[4] No question of contribution arises either.[5] Broadly speaking, the pleaded injuries consist of a fractured left femur, the exacerbation of major depression and post-traumatic stress disorders, in addition to economic loss.
[2] (2012) 248 CLR 417, [8].
[3] [2017] SADC 46, [15].
[4] [2019] SADC 35, [127].
[5] T347.38-348.1, T699.35-.37.
Liability is denied on several bases. The defence maintain Mr Crossley’s misbehaviour left the police with no option other than to arrest him on the night in question, that he was told the reason for his arrest and that no more than reasonable force was used in effecting a lawful arrest. As will become apparent, ascertaining the facts is a difficult and complex exercise.
Factual context
An incident in Hindley Street
Mr Crossley was out with friends in the Adelaide CBD, in the vicinity of the Hindley Street nightclub scene, celebrating the birthday of a friend. Two other friends remained with him at relevant times, Mr Reine and Mr Kelly. He was driven to the city by his grandfather and dropped near the Casino on North Terrace, between 8.00 pm and 10.00 pm on Saturday evening, 9 March 2013. Soon after 4.00 am the following morning, the three men began walking along Hindley Street towards Rundle Mall in an Easterly direction, with the intention of catching a pre-arranged ride home.
Both Mr Crossley and Mr Reine spoke of encountering a ‘big brawl’ or a ‘massive commotion’ involving 20 to 30 Sudanese or African youths, fighting and throwing chairs at each other, at a point not far to the West of the intersection of Hindley and Bank Streets.[6] Bank Street intersects Hindley Street to the North.[7] They watched the melee for a short time before walking off.[8] Mr Reine questioned some of the participants by inquiring ‘(w)hat was that all about’ in order to understand what caused the commotion, only to be insulted.[9] Soon after departing the scene, they heard the sound of feet, causing them to look back, to observe they were followed by ‘three or four people’ thought to be the African youths, who proceeded to ‘jump’ them.[10] They described the African youths having ‘stormed through’ pushing them out of the way with their elbows, resulting in a verbal argument.[11]
[6] T28.19-.22, T103.16-.20, T126.19-.23 (Crossley), T353.7-.14 (Reine).
[7] Mr Kelly was not called in the plaintiff’s case, however no adverse inference is sought to be drawn from that fact by defence counsel, T672.11-.21.
[8] T353.13-.21.
[9] T353.22-354.26, T390.8-.38.
[10] T28.36-29.7, T354.38-355.17.
[11] T28.28-.34, T353.20-354.35, T390.8-392.7.
Mr Crossley claims to have told them to ‘back off, piss off’ before one tried to punch Mr Kelly, leading Mr Crossley to step in and ‘chest bump’ this person.[12] Mr Reine’s evidence was that one of the youths ‘took a strong disliking’ to Mr Crossley, even though he was ‘trying to reason with them’ and who ‘basically just stood there quietly and stared at the guy’.[13] He substantially confirmed the evidence of Mr Crossley about the ‘chest bump’ at this time.[14]
[12] T29.8-.18, T32.23-.27, T72.32-73.11, T137.3-.9, T395.25-397.8.
[13] T355.22-.31.
[14] T395.22-396.4, T401.22-.28.
Police arrive on the scene
It was then that Mr Crossley claims he was grabbed.[15] Assuming it was one of the youths, he knocked the person’s hands away, but upon looking up noticed it was a police officer, so he immediately apologised, ‘[I]t was a mistake’, whilst at the same time putting his hands in the air in a motion of surrender.[16]
[15] T29.14-.21.
[16] T29.23-29.27, T33.35-34.6, 72.32-73.3.
The first police officers to attend were undoubtedly Senior Constable Carter and Probationary Constable Grimshaw, both wearing ‘high visibility’ vests.[17] Neither referred to Mr Crossley knocking the hands of either at this point.[18] SC Carter described that as he approached, his attention was drawn immediately to Mr Crossley who was ‘held back by a couple of other males from a group of around 15-20’ people.[19] Likewise PC Grimshaw said during his evidence, ‘my attention was straight for that male …’.[20] SC Carter considered Mr Crossley was ‘agitated and aggressive aiming that … towards a person within the larger group’, which ‘appeared as though he was trying to get to someone within the group and was shouting and swearing …’.[21] He described leading Mr Crossley towards the Western side of Bank Street, in the hope of ‘defusing’ the situation and to ‘calm him down and try and establish what was going on’.[22]
[17] All the police officers involved are described by the rank held in SAPOL at the time of these events.
[18] T436.24-.31 (Carter), T565.2-.9 (Grimshaw).
[19] T417.11-.20.
[20] T565.32-.33.
[21] T418.3-.13.
[22] T418.17-24, T423.26-.30, T426.26-.30
On SC Carter’s account, Mr Crossley instead redirected his aggression towards the police by shouting at them ‘Fuck off. Fucking leave us alone’, and by ‘flailing his arms around … with clenched fists’.[23] Because of this stance, SC Carter held a hand to Mr Crossley’s chest ‘to keep a distance from him’, as he was concerned for his own safety, whilst at the same time advised him to calm down and warned him about swearing.[24] His warning was to the effect ‘you’re acting disorderly, you need to calm down or you will be arrested’, to which in response Mr Crossley shouted, ‘[F]uck you. [D]on’t fucking touch me’.[25]
[23] T419.1-.7, T423.31-424.2.
[24] T424.3-7.
[25] T424.8-.11, T447.26-28, T448.5-.16, T449-32-35.
SC Carter’s account of the events proceeds to assert that Mr Crossley then pushed his arms ‘downwards’ away from his chest, before raising a right elbow and motioning to hit a window, which he stopped short of doing.[26] According to SC Carter, it was then that they were joined by Messrs Reine and Kelly, who shouted at the police, ‘You are not fucking arresting him’, before moving across to the Eastern side of Bank Street.[27]
[26] T424.14-23, T425.19-.20.
[27] T424.27-28; T462.12-23.
Events on the East side of Bank Street
Video footage of the events thereafter was tendered by Mr Crossley’s counsel.[28] A series of annotated stills taken from this footage were submitted as an aide-memoire by consent.[29] It was around this point in time that the events come into the line of vision of a CCTV camera mounted above a McDonalds restaurant situated at the South-Eastern corner of the junction of Bank and Hindley Streets, at 4:45:25:61.[30] This vision was shown a number of times during the trial.
[28] Exhibit P1, R v Tropeano (2015) 122 SASR 298, [57]-[58].
[29] MFID9.
[30] T667.18-.33. All times in this format taken from the time counter on the CCTV footage occur in the AM of Sunday morning.
There was a ‘Zambreros’ Mexican restaurant on the opposite South-West corner, the entrance to which is clearly seen in the very early stages of CCTV footage. SC Carter spoke of following Mr Crossley and his two friends across Bank Street to the Eastern footpath.[31] At all events, fearing for his own safety due to Mr Crossley pushing his arm down and because of his aggression, SC Carter removed his capsicum spray from its holster, and held it to his right side.[32] He claimed to have ‘realised from the behaviour of Mr Crossley … that there is a possibility it was going to end up with him being arrested …’.[33] It was more or less at the same time that he radioed for additional police assistance due to the ‘behaviour of Mr Crossley and the two people that were with him … and the size of them as well, I felt that myself and Grimshaw needed more help to deal with it’.[34]
[31] T424.29-.35.
[32] T424.37-38, T425.1-24.
[33] T425.4-.7.
[34] T425.3-9, T446.11-22.
Upon reaching the Eastern kerb of Bank Street, PC Grimshaw claims to have asked Mr Crossley for identification and informed him he was suspected for an assault. He was not challenged on this aspect of his evidence, but on the other hand it was not put by defence counsel to Mr Crossley either.[35] According to PC Grimshaw, rather than comply Mr Crossley continued to shout and swear at the police.[36]
[35] Defence counsel relied on this aspect of PC Grimshaw’s evidence during his final submissions as ‘alerting Mr Crossley to possible arrest for assault’. T686.21-.24.
[36] T557.16-558.7, T569.13-.20. Exhibit P1, stills 7, 8 and 9.
SC Carter’s version of what next occurred was this:[37]
[37] T425.29-426.10.
A.I again approached Mr Crossley. I wanted to find out what was going on, get his details and I also wanted to warn him about his behaviour. I've approached him; again warned him about his behaviour and needing to calm down and ultimately that he could be arrested and sprayed with capsicum spray.
Q.And did he respond to that.
A.He has stepped towards me. Again just a general barrage of abuse from what I can remember.
Q.Did you notice anything about either of his arms.
A.I can't recall about his arms. I would have to refer to my notebook.
Q.When he advanced towards you, what was your state of mind at that stage.
A.At that stage I put my hand up towards his chest because I was concerned that he may be coming towards me to attack me.
Q.And what then happened.
A.Again, he's pushed my arm down and taken another step towards me.
The police version of the events is quite different from that on the plaintiff’s side. Mr Crossley stated that he was told by the police to go in ‘separate directions’ to the youths, if not he and his companions would be charged. As he began to leave he heard, ‘one of them yell out to me and I turned around and stopped and then I was confronted by the two officers’.[38] He understood ‘I was free to go and that was the end of the night’.[39] This was at the corner on the Western side of Bank Street.[40] Mr Crossley said he told the police ‘… it was like a bit unfair that they let the other guys go’.[41] His evidence proceeded to the effect that Mr Reine was:[42]
… pretty much agreeing with me saying that it wasn't just - we were getting hassled when we were just doing - trying to do the right thing and go home and avoid fighting with them and these guys came back to try and get us again.
[38] T29.28-.36.
[39] T33.16-.19.
[40] T32.35-33.7.
[41] T31.9-.10, T33.9-.15.
[42] T34.11-.16.
Mr Crossley told the court he continued talking to PC Grimshaw, and gestured by placing his hands over his ears, pleading with the police to listen as ‘maybe [because the police] weren’t listening to [him]’ whilst trying to explain his role in the earlier altercation, and by pleading they were ‘victims in the situation’.[43] He can be seen with his hands over his ears in still 10 of MFID9, at 4:45:58.73.
[43] T31.4-.10, T33.24-.28, T142.35-.36.
Mr Reine’s evidence is largely consistent with this account.[44] He told the court he was ‘pleading with them to listen and to calm down’, only to be told to leave and threatened ‘or I too will be arrested’, whilst at the same time Mr Crossley was probably ‘pleading with them “Can you just listen to me? Can you hear me out? Can I explain the situation?”, all of which fall on deaf ears’.[45]
[44] T357.11-.28, T360.27-.38.
[45] T361.11–.33.
Capsicum spray is used by the Police
As mentioned earlier, it was the evidence of SC Carter that Mr Crossley was warned he may be sprayed or arrested if he did not calm down.[46] Sergeant Mann overheard SC Carter warning ‘Calm down. Stop or I’ll spray you’, as did PC Grimshaw.[47] It was shortly afterwards that SC Carter held an outstretched arm to Mr Crossley’s chest, out of a perception he ‘may be coming towards me to attack me’.[48] Mr Crossley then pushed SC Carter’s arm away from around his chest before taking a step towards him, shouting and raising his arms, leading SC Carter to feel he was about to be attacked.[49] It was this action that led him to apply a short burst of capsicum to the head and left side of the face, in order to protect himself.[50] Mr Crossley’s response ‘Don’t fucking spray me again. I love fucking pepper spray’, or ‘I put spicier sauce on my steak’, prompted SC Carter to spray him again, thinking the first was ineffective and that the threat remained.[51]
[46] T425.31-34.
[47] T488.5-.12, T559.6-.12.
[48] T426.5-.7.
[49] T426.3-.10.
[50] T426.11-.16, T444.11-.17, Exhibit P1, still 19.
[51] T426.21-32.
Mr Crossley volunteered under cross-examination that he verbally ‘laughed it off’ when sprayed. During his evidence-in-chief he described the capsicum spray as akin to ‘lava on my face … pretty painful … burning all over’, leaving him unable to see, leading him to ‘back away’.[52] Each of the two capsicum sprays are alleged to constitute unwarranted, unlawful batterys.
[52] T35.23-.29.
The arrest of Mr Crossley
As seen, SC Carter claims to have warned Mr Crossley twice that his behaviour was disorderly and could lead to arrest. The second warning was near the Eastern side of Bank Street.[53] After capsicum spraying him twice, police followed as he slowly moved Northwards up Bank Street. The prosecution case is that as he took hold of a street pole, he was informed he was under arrest for disorderly behaviour.[54] SC Carter claimed to have told him he was under arrest for disorderly behaviour, as Mr Crossley continued to maintain hold of the pole, contrary to a direction not to.[55] Both Officers then prised his fingers from the pole, preparatory to handcuffing.[56] They then turned him over onto his stomach and drew him face down to the pavement facing East, before attempting to apply handcuffs, because of his ‘temper and conduct’, for the safety of the police officers involved and to prevent his escape.[57]
[53] T425.25-.34, T447.13-.28.
[54] T427.3-.10.
[55] T145.1-.14, T169.21-.36, T427.3-428.7, T454.11-.15, T500.30-.35 (Mann).
[56] T145.6-.11, T303.2-.5, T427.8-.10, T428.6-.7, T451.28-.34, T454.14-.15.
[57] T428.9-.17, T494.2-.9, T572.1-.5.
SC Carter took hold of Mr Crossley’s right arm and Sergeant Mann his left, for the purpose of handcuffing behind his back.[58] Defence Counsel accepts that PC Grimshaw was mistaken in his evidence,[59] that he ‘had Mr Crossley’s right arm … and I was having quite a hard time trying to get his arm behind his back …’.[60] The evidence of the police was that Mr Crossley struggled, by ‘moving his arms and struggling back and forth’, thus preventing them from applying handcuffs.[61] It was at this time that SC Lovell first appeared and began dealing with crowd control before participating in the arrest soon after.
[58] T428.5-.15, T559.36-560.14, T571.35-.37.
[59] Closing Written Submissions, footnote 117.
[60] T560.16-.20.
[61] T428.25-.31, T454.16-.18 (Carter), T490.17-.35 (Mann), T560.35-.561.4 (Grimshaw).
There is no doubt Mr Crossley stopped near the street sign on Bank Street, was down on his knees and held on to the street sign. He said he did so because he was told he was under arrest and to get down, so he followed ‘everything they said’ not wanting to make the situation any worse, especially as he was unable to see.[62] His evidence continued that once prone on the ground, he was ‘pinned down by both arms’, with police holding his head, with their knees into him.[63]
[62] T141.16-.17, T145.6-.20.
[63] T40.10-.24.
A ‘Figure Four Leg Lock’ is applied
According to the police, Mr Crossley continued to struggle and kick his legs, thus preventing the application of handcuffs, and causing them to fear he may kick them.[64] At this time, PC Lovell came to the assistance of SC Garter, PC Grimshaw and Sergeant Mann, believing the situation presented a risk to their safety and in the belief that Mr Crossley was impeding attempts to apply handcuffs.[65] In fact PC Lovell considered the situation was such that in order to successfully restrain Mr Crossley, he was forced to apply what police are trained to understand is a ‘Figure Four Leg Lock‘.[66] This restraint measure gathers its name from the positions the legs are placed in, which resemble a figure 4.[67] He told the court his understanding of the purpose of such a measure is to restrain the legs of a person who is ‘thrashing and kicking their legs and posing a danger … to police and potentially to themselves’, which he considered Mr Crossley was doing.[68] It is illustrated in detail in the Exhibit 8A, 'South Australia Police Defensive Tactics Manual’ and in SAPOL ‘Instruction Notes and Session Plan’.[69] This document describes the ‘Basic Formula’ or mechanism for applying the lock in this way:[70]
Basic formula
.While the subject is in the prone position place the ankle of the primary leg behind the knee of the secondary leg.
.The secondary leg is bent towards the subject’s buttocks over the entrapped ankle of the primary leg.
.Apply controlled pressure to the secondary leg to hold the lock in place.
[64] T428.32-.37, T461.33-.35 (Carter), T490.17-491.6 (Mann), T561.20-.31 (Grimshaw), T587.10-.26, T594.12-.24 (Lovell).
[65] T588.5-.15, T605.17-.23.
[66] T605.17-.23.
[67] T597.33-.36.
[68] T582.27-.35.
[69] Exhibit 8C. That illustration is taken from the latter and appears as Appendix ‘A’ to these reasons.
[70] Ibid p 2, T595.22-596.1.
The manual referred to an alternative and simpler restraint mechanism of a ‘leg entanglement’. PC Lovell accepted it was potentially a simpler procedure, but said he did not revert to it because Mr Crossley was ‘kicking and thrashing around … when he started to try and resist’.[71] At all events it was undoubtedly the application of the Four-Figure Leg Lock that led to a ‘comminuted fracture of the left femoral shaft’.[72] The evidence of PC Lovell was that during the course of applying the leg lock, he heard a ‘loud pop’, immediately before handcuffing.[73] Whatever the precise course of events, it is clear Mr Crossley was eventually successfully handcuffed by Sergeant Mann.[74]
[71] T596.25-597.17, T597.24-.26, T601.32-602.1, T604.6-.12, T605.17-.23.
[72] Exhibit P4, p 3. Dr Guirguis.
[73] T602.9-603.12.
[74] T430.3 (Carter), T492.15-.16 (Mann), T561.12-.13 (Grimshaw), T603.8-.9.
As to the question of arrest, Mr Crossley was initially unsure in-chief whether he was told the reason for his arrest, but later understood it was for ‘affray’.[75] He hesitated about whether he was arrested for disorderly behaviour or that he was told simply he was ‘under arrest’, without specifying the charge, thinking it was for ‘grabbing the guy before or knocking the dude’s hands away’.[76] This was no doubt a reference to pushing away the hand and arm of SC Carter on the first occasion, on the Western side of Bank Street.
[75] T36.22-.36, T304.19-.25.
[76] T36.22-.36.
The SA Ambulance Service Patient Report Form completed by the paramedic attending the scene, Ms George, discloses that a call was received and an Ambulance dispatched at 5.06 am that morning, arriving at the scene in Bank Street and attending to Mr Crossley by 5.11 am.[77] It departed the scene at 6.00 am and arrived at the Royal Adelaide Hospital (RAH) at 6.16 am.[78] It was proven however that the SA Ambulance Service first received a call from police at 4:50:45, even though it is not known which officer made the call.[79] This Form demonstrates Mr Crossley complained that he was initially unable to open his eyes and of pain to the left femur and that a considerable number of pain killers were administered, including pentamine, morphine and ketamine.[80]
[77] Exhibit D5, T614.31.
[78] Ibid.
[79] Exhibit D6, Event Chronology.
[80] Ibid, T618.32-.36.
Having sketched a condensed narrative account of the evidence on both sides, it is now possible to examine the issues in contention in greater detail. Before doing so, it is first opportune to make a few preliminary observations about the witnesses and the process of fact finding.
Primary observations as to witnesses
It is obvious from the above survey of the evidence that there is little common ground as to the core facts. The court must remain conscious of too readily made credibility mistakes, based on the impression of witnesses in the artificial environment of the courtroom: Galea v Galea.[81] Trial Judges were reminded by Gleeson CJ, Gummow and Kirby JJ in Fox v Percy,[82] that empirical research casts doubt on the ability of judges to tell truth from falsehood accurately on the basis of the appearance of a witness. The joint judgment proceeds to encourage judges:[83]
… both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events.
[81] (1990) 19 NSWLR 263, 266.
[82] (2003) 214 CLR 118, [31].
[83] Ibid. See also State Rail Authority (NSW) v Earthline Constructions Pty Ltd (in Liq) (1999) 73 ALJR 306, [88].
At face value, all the police witnesses appeared to do their best to honestly recall the events. However as will appear, closer scrutiny becomes necessary when their evidence does not align with contemporary records, and particularly with what can and what cannot be seen, in the CCTV evidence. These materials in particular provide the court with a considerable ‘objective’ advantage in determining the facts: Cuthbertson v New South Wales.[84] The following analysis of the evidence proceeds in accordance with these principles. No particularly valid criticism was made of the evidence of Mr Reine, except only that ‘he was imprecise when … challenged’, without identifying much in the transcript supporting that conclusion.[85]
[84] [2017] NSWDC 367, [39]-[52]; reversed on other grounds (2018) 99 NSWLR 120.
[85] T672.7-.10.
It pays equally to direct attention to the fact that police witnesses are often practised and the inherent difficulty in making, with confidence, a subjective judgment about whether practised witnesses are telling the truth or not: Carr v The Queen,[86] McKinney v The Queen.[87] Nor is it a question of making a choice between opposing versions of the facts. The task is to determine if the case for the plaintiff is made out on the balance of probabilities, reverse onus issues aside: R v Towner.[88]
The evidence of Mr Crossley
[86] (1988) 165 CLR 314, 335–336.
[87] (1991) 171 CLR 468, 476.
[88] (1991) 56 A Crim R 221, 228-229.
Mental state
As a good deal of criticism was directed by the defence to the evidence of Mr Crossley, it is necessary to say something more about it. Mr Apps submitted that he was already agitated before police attended the scene, evidenced by the fact that he told the group of youths to ‘piss off’ and actually ‘chest bumped’ one of their number. He argued this attitude was confirmed by the evidence of Mr Reine, however that was expressed on the understanding that one of the youths first challenged Mr Crossley by threatening to punch Mr Kelly.[89] There is nothing in the objective facts or in the inherent probabilities to cast doubt on the defence evidence as to the events before police came on the scene, although the situation was such that it was obviously likely to put Mr Crossley on edge.
[89] T392.10-393.1, T395.22-396.17, T399.7-.21.
Alcohol consumption
Defence counsel next criticised his evidence on account of the quantity of alcohol he claimed to have consumed on this night. He pointed to divergent accounts as to the consumption of just four drinks or beers over the course of the entire night, on one account between 10.00 pm and 4.00 am, and on another between 8.00 pm and midnight.[90] Apart from these rather minor variations as to periods of time during which alcohol was imbibed, whatever else may be said about it, Mr Crossley was consistent as to quantity. For his part, Mr Reine paid little attention to what Mr Crossley was drinking and therefore did not contribute any evidence of substance on the topic.[91]
[90] T26.13-.17, T85.22-86.10, T140.14-.18, T156.22-157.23, T309.21-.23.
[91] T386.27-.38.
A particularly trenchant criticism was mounted on the basis of a note in the RAH notes, indicating a blood alcohol concentration of 0.083 at 6.15 am on 10 March 2013. Based on the assumed accuracy of this note, the pharmacologist Professor White calculated the blood alcohol concentration at approximately 4.45 am, was between 0.098 per cent and 0.113 per cent, with a best estimate of 0.106 per cent.[92] Professor White considered that level of consumption leads to impaired thinking, impaired concentration and decision making, difficulty in following conversations, misinterpreting events, together with loss of inhibition, acting impulsively, risky or reckless behaviour, more extreme changes in mood and impaired memory.[93]
[92] Exhibit P4, p 88. The significance of 4.45 am lies in the fact that it was around the time of Mr Crossley’s arrest. This was within a minute or two later according to the CCTV time clock.
[93] Exhibit P4, Item 3 pp 2-3, T627.3-T629.30.
More significantly, Professor White estimated on the basis of the 6.15 am blood alcohol reading, that 13.5 standard schooners of beer were likely consumed in order to produce that blood alcohol level.[94] Quite obviously, this evidence has the capacity to undermine the reliability of Mr Crossley’s evidence on the topic of the quantity of alcohol consumed, and as Mr Apps argued, more generally.[95]
[94] Exhibit P4, p 92, Supplementary Report 3 June 2019. T627.15-.36, T631.27-.31.
[95] Defendant’s written closing submissions, paras 14-28.
Counsel for the plaintiff Mr Guthrie, challenged the reliability of the RAH records on which Professor White’s opinions were predicated. An affidavit filed by the defence on 20 August 2019 fails to prove the provenance of the blood alcohol test, attesting only to the fact that it was taken by an unknown person using a portable handheld device, which displays a reading which is then handwritten into the nursing notes.[96]
[96] Exhibit D7, paras 7 and 15.
In another affidavit filed with the consent of the plaintiff, a nurse on duty from 7.00 am on the morning in question, deposes to making observations of Mr Crossley and of completing a Nursing Observation Chart at 7.12 am, although she retains no independent memory of doing so.[97] In this affidavit, the nurse further deposes to the standard procedures for taking breath alcohol levels (‘BAL’) using a handheld device, consistent with that deposed to in Exhibit D7.[98] This nurse is unable to say who performed the test, except that it would not be done by police. Further enquiries failed to establish who administered the BAL or made the entry ‘BAL 0.083’ at 6.15 am on the morning of 10 March 2013.
[97] FDN 44, paras 5-9, 23/8/19.
[98] Ibid, paras 10-12.
Police records comprising a ‘Record of Prisoner Inspection, Contact and Risk Assessment Review’ completed by Senior Constable Corfield, who was at the hospital at 6.30 am keeping guard over Mr Crossley, noted a blood alcohol reading of 0.038, but was however otherwise unable to recall the circumstances leading up to making that entry.[99] This material was submitted post-trial with the consent of the plaintiff together with the court’s permission under r 169(1) of the District Court (Civil) Rules 2006 (SA).
[99] Affidavit 29 August 2019, paras 14-17.
The defence seeks the tender of this further material as evidence of the facts stated in the Nursing Observation Chart and the Risk Assessment Report, by invoking s 53 of the Evidence Act 1929 (SA). Sections 53(1) and (2) thereof provide:
53—Admission of business records in evidence
(1) An apparently genuine document purporting to be a business record—
(a) is admissible in evidence without further proof; and
(b) is evidence of a fact stated in the record, or any fact that may be inferred from the record (whether the inference arises wholly from the matter contained in the record, or from that matter in conjunction with other evidence).
(2)A document must not be admitted in evidence under subsection (1) if the court is of the opinion –
(a) that the person by whom, or at whose direction, the document was prepared can and should be called by the party tendering the document to give evidence of the matters contained in the document; or
(b) that the evidentiary weight of the document is slight and is outweighed by the prejudice that might result to any of the parties from the admission of the document in evidence; or
(c) that it would be otherwise contrary to the interests of justice to admit the document in evidence.
The two documents under consideration undoubtedly fall within the definition of ‘business records’, as ‘documents prepared or used in the ordinary course of a business for the purpose of recording any matters relative to the business’ of the RAH: s 53(4) of the Evidence Act, Cooper v Bech (No 1),[100] R v Keogh (No 3),[101] Spicer v Coppins,[102] O’Donnell & Ellston v Dakin.[103]
[100] (1975) 12 SASR 147, 149.
[101] (2014) 121 SASR 410, [25]-[26].
[102] (1991) 56 SASR 175, 177-178.
[103] [1966] Tas SR, 87, 88-89.
Tender for the purposes of proof of the facts stated therein is opposed by counsel for Mr Crossley, who submits the threshold conditions for admission provided for in s 53(3) of the Evidence Act are not met. This provides:
(3)For the purpose of determining the evidentiary weight (if any) of a document admitted in evidence under subsection (1), consideration must be given to the source from which the document is produced, the safeguards (if any) that have been taken to ensure its accuracy, and any other relevant matters.
Admission of the subject material as evidence of the facts stated in the records, is refused for the following reasons. Even though there is no direct evidence as to the extent of the inquiries made by the defence as to authorship of the ‘BAL’ entry in the Nursing Observation Chart, it is implicit in the material it did file, that reasonable inquiries were made. Mr Guthrie mounted no submission to the contrary. Accordingly, it is duly established that the person making the record cannot be called: s 53(2)(a). The evidentiary weight properly attached to the Observation Chart is another matter altogether.
SC Corfield attended the RAH with Mr Crossley in his custody under his ‘constant observation’.[104] As to his note in the Police Charge and Custody Management Record (PD 465) he deposes:[105]
16.I cannot now recall the circumstances by which I recorded the reading of 0.038 at 6.30 am.
17.It may have been that I overheard the alcohol reading that was obtained by the nursing staff being called out by them when they were recording the reading in the hospital notes and then I also attempted to write it down.
18.I would not have made a direct inquiry about Crossley’s breath analysis of the nurses themselves because it is not the practice of police to make such inquiry or distract medical staff from attending to the care of patients.
19.As I have said whilst I cannot now recall recording the reading on the PD 465 it may have been the case that I transposed the numerals at the time that I recorded that reading on the PD 465.
[104] Affidavit 5 September 2019, paras 5, 8 and 13.
[105] Ibid.
It is tolerably clear that the BAL reading was taken by hospital staff and conveyed by word of mouth to SC Corfield. Two inferences are equally open as to this process. The first is that the correct reading was conveyed to Corfield, but incorrectly entered in the Observation Chart. The second is the reverse, namely that the correct reading was conveyed to Corfield who correctly entered it in the Prisoner Assessment Review Record. Neither inference can be dismissed as more inherently unlikely than the other.
It is not difficult to understand how such a ‘transmission’ error might occur, given the coincidental digit similarity in the readings involved: 0.083 and 0.038 respectively. Accordingly, the Observation Chart is of slight evidentiary weight because at the end of the day, one cannot be confident of the accuracy of it: Sianis v Barlow.[106] More than that, the proven circumstances fail to identify any safeguards ‘taken to ensure … accuracy ...’, as required by s 53(3) of the Evidence Act.
[106] (1987) 48 SASR 469, 475.
This conclusion is independently supported by a further consideration. Putting aside the evidence of Mr Crossley and Mr Reine as to the level of alcohol consumed by Mr Crossley for this purpose, none of the police officers involved in the confrontation, pursuit and arrest of Mr Crossley, refer to any obvious signs of intoxication, or more significantly the odour of alcohol, something they are presumably trained to look for. Of course the dynamic nature of the events could readily explain this, despite the fact that two or three officers were at arms-length to him for most of the time.
SC Corfield who attended the scene earlier performing crowd control and who accompanied Mr Crossley in an ambulance on the way to the RAH during which he was ‘under constant observation’, made no such observations either.[107] His ‘Record of Prisoner Inspection, Contact and Risk Assessment Review’ prepared for the express purpose of recording ‘observations of a prisoner’, notes:[108]
0830 – I ASSESSED CROSSLEY @ THE RAH 0730 0.0.38 I DISCUSSED THE ARREST/BAIL PROCEDURE. HE SPOKE CLEARLY AND GAVE EVERY INDICATION HE WAS SUITABLE FOR CHARGING AND BAIL
NIL F/PRINTS DUE TO BEING CONVEYED STRAIGHT TO RAH AND BAILED FROM THERE.
[107] Affidavit paras 4, 5 and 13.
[108] Ibid, paras 10 and 11, Exhibit ‘TWC1’ p 2.
Furthermore, the Patient Report Form prepared by the Ambulance crew taking Mr Crossley to the RAH, makes no reference to alcohol or perceived intoxication and in fact records him as ‘compliant’.[109] The same is the case when it comes to the observations of nursing staff at the hospital, so far as one can glean from the Nursing Observation Chart.
[109] Exhibit D5.
True enough, the affidavit of 20 August speaks of taking a BAL when a patient ‘appears to be intoxicated or is reported that they had been drinking alcohol’.[110] The affidavit of 23 August 2019 deposes to making an assessment at the time of taking the BAL, including taking a history of the events leading to admission, as well as making observations with the express purpose of assessing:[111]
… whether they are intoxicated to the point that it may be effecting their ability to answer questions, impacting their conscious state, or impairing their ability to make decisions.
[110] Exhibit D7, para 14
[111] Exhibit D7, para 10.
Despite such alcohol focussed assessments, far from recording signs of intoxication or the smell of alcohol, the Nursing Observation Chart records that Mr Crossley opened his eyes ‘spontaneously’, was ‘oriented’ and that he ‘obeys commands’ at 6.15 am, which is at the same time as the BAL was taken.[112]
[112] Exhibit KW 1.
The cumulative weight of all this material confirms the probabilities already arrived at, that Mr Crossley was not obviously inebriated, bearing in mind at the same time Professor White’s opinion that the ‘(D)isinhibition usually becomes evident at blood alcohol concentrations of 0.089 and above’ and ‘outward signs of alcohol intoxication … generally become evident at blood alcohol concentrations in the range of 0.10-0.20%’.[113] This suggests the more probable alcohol reading was at the 0.038 per cent level. That being the case, the supposed level of 0.083 per cent is even less probative. Because of the potentially drastic effect the higher level is claimed to have on Mr Crossley’s credibility, and because the cognitive effects that level might have on his reliability as a witness, the prejudicial effect clearly outweighs probative value. This therefore renders it contrary to the interests of justice to admit the BAL reading contained in the nursing notes for probative purposes, under s 53(2)(b) and (c) of the Evidence Act.
[113] Exhibit P4, p 89.
It necessarily follows that no adverse consequence to the credibility or reliability of Mr Crossley as a witness arises from the issue of his level of alcohol intake. The above conclusions serve to render the higher blood alcohol reading inadmissible by virtue of the chapeau to s 53(2) of the Evidence Act, ‘must not be admitted in evidence …’.
Psychiatric condition
Next, Mr Apps was critical of Mr Crossley’s reliability as a witness on account of his psychiatric condition, which it was submitted most likely contributed towards his misbehaviour. To begin with, it was pointed out that he had anger management problems commencing from the age of 19, when he asked his GP Dr Phan for referral to a psychiatrist in July 2004. Further, in September 2010 he again reported having ‘an anger problem essentially at work’ and that he found it ‘hard to control anger’.[114]
[114] T642.19-.37.
The psychiatrist Dr Hapuarachchi considered Mr Crossley to be ‘anxious, agitated and depressed, describing ‘his mood as being angry’ in January 2013, that is about two months before the subject events.[115] There was some evidence of displaying ‘frustration’ in the home, once putting a hole in the wall in the context of domestic disputation.[116] It is accordingly, necessary to bear in mind these personal characteristics so far as they go, when assessing his likely actions and reactions on the night in question. The evidence does not however reveal an entrenched history or pattern of anger in the public arena.
[115] T527.18-.28.
[116] T248.1-.38.
Mr Crossley volunteered under cross-examination to involvement in a ‘couple of fights’, one around ten years earlier on a bus-pub tour of the City ‘helping block my mate … pulling people off my mates’ and another possibly around August 2011, when ‘someone attacked’ him and ‘tried to pick a fight with us’.[117]
[117] T102.21-105.13.
More to the point perhaps, is that he acknowledged under cross-examination involvement in two incidents with Police. The first was when he was searched and ‘manhandled’ at about the age of 16, as to which there is no evidence of a resultant charge for the commission of any offence.[118] The second incident resulted in a plea of guilty to a charge of assaulting a police officer when he was 17 in 2003, following an inconclusive ‘struggle’ or ‘scuffle’ with the police at the Adelaide Railway Station, alleging that police ‘tackled and slammed him to the floor.[119] These admissions require further consideration when it comes to weighing Mr Crossley’s perceptions and attitude to the police on the night in question, as it might impinge on his evidence about it.
[118] T114.12-115.26.
[119] T115.21-119.4.
On the other hand, there are some attributes of Mr Crossley’s evidence shows a degree of frankness on his part. For instance, he freely acknowledged involvement in an altercation with the African youths, to the point of giving one a ‘chest bump’ as a defensive measure.[120] The evidence of inadvertently pushing the arm of a police officer before reaching Bank Street is however not so convincing.[121] None of the police said this is what occurred, whereas it would almost certainly be mentioned by them if it did. This aspect of his evidence more likely than not, corresponds with the incident described by SC Carter occurring towards the Western side of Bank Street close to Hindley Street, just before they come into the range of the CCTV camera. That evidence was as follows:[122]
[120] T28.35-29.14.
[121] T302.3-.10.
[122] T424.12-.23.
Q.At that stage had you been actually touching him.
A.When I had my hand up towards his chest.
Q.Did he then do something.
A.They then pushed my arms downwards.
Q.Away from his chest.
A.That's correct.
Q.At about that stage did he then do something else with his arm.
A.Yes, he did. Again, trying to calm him down, warn him about his behaviour, he has raised his right elbow up and motioned to hit a window on his right-hand side but he stopped short of actually hitting the window.
PC Grimshaw described Mr Crossley pushing SC Carter ‘with an open hand … and he’s hit him like that (indicates) [before] Mr Crossley has then walked across Bank Street to the opposite side’.[123] SC Carter equally deposed to this incident taking place in Bank Street rather than in Hindley Street.[124] There is on the other hand no occasion to be seen in the CCTV on the Western side of Bank Street showing Mr Crossley motioning to hit a window as SC Carter accepted when shown.[125] It was this incident in particular which immediately led SC Carter to radio for assistance and then withdraw the capsicum spray.[126]
[123] T556.32-557.33.
[124] T423.20-.23.
[125] T439.34-440.3.
[126] T425.19-.20.
The conclusion that the incident deposed to by Mr Crossley as having occurred in Hindley Street, but in fact took place on the Eastern side of Bank Street, is strengthened by the observation seen in the CCTV vision when Mr Crossley is shepherded or pushed slightly backwards at the right shoulder, most likely by PC Grimshaw between 4:45:29.17 and 4:45:31.01, and when Mr Crossley is grabbed by the shirt just before the group moves to the left and momentarily all but out of screen.
Analysis – primary fact finding
An incident in Hindley Street
No doubt there were animated verbal exchanges between Mr Crossley and a boisterous group of African youths in Hindley Street. Mr Crossley frankly acknowledged involvement in an altercation of some kind to the point that he ‘chest bumped’ one of them. Soon after ‘a couple that were involved in the fight stormed through’ as he and his companions walked ‘side by side’ towards the point they were expecting to obtain a lift home.[127] Mr Reine gave an account more or less consistent with this version of the events.[128] There is nothing inherently unlikely in this account of the preceding events.
[127] T28.27-.29.15, T72.32-.34.
[128] T395.32-397.4, T399.7-.16, T400.12-.19.
Police arrive on the scene
It is clear enough that the police came upon the scene when the encounter with the African youths was all but over. No doubt their attention was drawn to Mr Crossley because of his size and because of a somewhat animated verbal exchange with a number of those youths.[129] SC Carter said as much during the course of his evidence in that ‘he stood out as the one person that seemed agitated and aggressive’.[130] Whatever the precise situation, it is apparent that the police either assumed Mr Crossley was the focal point of the imbroglio, or more likely, instinctively considered the best way to ‘defuse’ the situation was to remove him from the scene. This conclusion stems from the very nature of the insitu circumstances at that time and place, bearing in mind the difficulties of policing the Hindley Street area, deposed to by the police witnesses.
[129] T417.14-.17. Mr Crossley is 6’2”-6’3” tall and weighed 90 kg at the time, T121.29-.35.
[130] T418.7-.9.
The police witnesses involved that night spoke in various ways of the torrid policing conditions prevailing in the Hindley Street area over the weekends. SC Carter commonly dealt with people ‘behaving in a disorderly manner, fighting’ during weekends around the Hindley Street area and of arresting people for ‘street-type offences’ on ‘many occasions’.[131] He described the busiest period for policing purposes was from 10.00 pm on Fridays and Saturdays, through to the ‘early hours’ of the following morning.[132] The evidence of Sergeant Durkin was to a similar effect, adding that incidents such as those involving Mr Crossley were in his experience ‘very common’.[133] The evidence of PC Grimshaw was equally consistent about this.[134] Because of the critical situation in the area, SC Carter spoke of dealing with such situations before taking more affirmative action, in this way:[135]
QDo you have a policy that you adopt, wherever possible, when dealing with people such as that.
A.Myself, obviously each individual circumstance we have to deal with how we see it but I try to calm the situation down. From the UK we were always taught, it was kind of like instilled to us, to calm people down rather than have to use any form of force.
and
Q.On occasions when you've not effected arrests, have you managed to diffuse situations.
A.Yes.
[131] T414.19-.23.
[132] T415.1-.4.
[133] T468.19-469.11.
[134] T555.17-.22.
[135] T414.9-.32, T418.17-.24, T423.26-.30.
This is precisely what occurred when the police first confronted the melee in Hindley Street. Having failed to quell Mr Crossley and his companions’ attempts to explain the circumstances, SC Carter determined in an instant that the most effective course in order to ‘defuse’ the situation was to remove him from the scene. This intention clearly emerges from the evidence of both SC Carter just quoted and that of PC Grimshaw:[136]
… so we could move Mr Crossley away from that area, have a conversation with him, defuse the situation and hopefully all parties could go their separate ways.
[136] T556.29-.31.
It flows from the above findings, that the probabilities are as follows so far as the events involving police in Hindley Street and the Western side of Bank Street are concerned:
.SD Carter and PC Grimshaw confronted a scene which they considered might quickly grow out of hand and potentially result in fighting or even violence;
.They considered or assumed without much time for reflection, that Mr Crossley was at the centre of the action because he physically stood out and because he was verbally animated;
.They considered the most effective solution to defuse the situation was to remove him immediately from the scene;
.Mr Crossley (and Mr Reine) mistakenly took this action as a prelude to arrest and began protesting about it;
. Police took this as uncooperative behaviour and resistance on their part.
It is accepted that the police were at these points in time faced with a difficult and potentially challenging situation, which had the potential to quickly erupt beyond their control. It was therefore understandable that rather than attempt to resolve the differing accounts of the fracas, they would attempt to quell the situation. Situations such as this, and the following events for that matter, are not to be judged in hindsight ‘in the comparative calm and leisurely atmosphere of the courtroom …’: McIntosh v Webster.[137]
[137] (1980) 43 FLR 112, 123.
Thinking the removal of Mr Crossley was the course most likely to achieve those ends, SC Carter and PC Grimshaw instinctively resolved to do just that. Perceiving some injustice, Mr Crossley not unnaturally reacted in protest, which the police took to be uncooperativeness. All the same, there was nothing illegal or unreasonable in the way the police handled the situation up to the point in time the CCTV vision commences on the Western side of Bank Street near its junction with Hindley Street, at precisely 4:45:25:61.[138]
[138] MFID9, still 1.
Whatever else might be said about the circumstances, it is undoubtedly the case that the police succeeded in separating Mr Crossley and his friends from the African youths and thus successfully ‘defusing’ the situation. All the evidence points to the fact that no African youths followed or were to be seen in the subsequent events taking place in Bank Street.
Events on the Eastern side of Bank Street
Mr Crossley first appears in the CCTV vision near the left-hand side of the entrance to the Mexican restaurant ‘Zambrero’ on the Western side of Bank Street, with his left arm down to his left knee. By 4:45:28.51 he has moved very slightly to the right, more or less in the same posture.[139] However at 4:45:29.00, he is pushed or shepherded backwards by the police. He told the court he was then entreating the police ‘… it was like a bit unfair that they let the other guys go’.[140] The next frame shows Mr Crossley once again more or less in the same position facing SC Carter, with Mr Reine having his right arm fully and his left arm partly between them.[141] Immediately afterwards Mr Crossley departs from the group and begins walking across Bank Street, several paces to the North of the two police officers.[142] SC Carter then radios for police assistance as he commences to follow across Bank Street, whilst Reine and Kelly remain where they were.[143] He stated the reason for pursuing was because of the:[144]
… behaviour of Mr Crossley and the two people that were with him that there is a possibility it was going to end up with him being arrested … and the size of them as well … I felt that Grimshaw and I needed more help to deal with it.
[139] MFID9, still 2.
[140] T32.35-33.15.
[141] MFID9, still 3, 4:45:31:01.
[142] MFID9, still 4, Exhibit P1, 4:45:39.85.
[143] Ibid.
[144] T425.4-.9.
Very shortly thereafter SC Carter removes his capsicum spray from a holder kept on his person, placing it in his right hand by his right leg, in a position unlikely to be seen by Mr Crossley.[145] SC Carter expressed his reasons for doing so as:[146]
… the previous actions of Mr Crossley pushing my arm down and his aggression towards ourselves, the fact that he had two other males … who seemed to want to make a point about him being arrested, I was concerned for my safety.
[145] MFID9, still 8.
[146] T425.19-.24.
The next frame depicts Mr Crossley turning around and stopping – exactly as he said he did in his evidence, and then standing at the gutter’s edge of the Eastern side footpath facing PC Grimshaw, who also followed him, with both arms raised outwardly to head height in what ordinarily appears to be a motion of surrender. Mr Reine and Mr Kelly begin to cross Bank Street, although they are not close to PC Grimshaw and Mr Crossley at this stage. PC Grimshaw maintains that he asked Mr Crossley for identification, which he did not provide.[147] He did so on the pretext that ‘he was a suspect in relation to assault’ based on the earlier pushing of SC Carter’s hand or arm.[148] Police are of course entitled to ask questions like this, but there is no power to compel the production of identification in these circumstances, absent reasonable cause to suspect the commission of an offence: s 74A, Summary Offences Act 1958 (SA), Police (SA) v Moukachar,[149] R v Armistead.[150] It appears that he did not press the request for identification.
[147] T557.27-.31.
[148] T569.13-.20.
[149] (2010) 107 SASR 450, [13].
[150] [2019] SASCFC 85, [89].
SC Carter is next seen walking towards both men. It is clear that they intended to corner Mr Crossley to prevent him from leaving the area, as PC Grimshaw went to the North and SC Carter went to the South. His high visibility vest is just visible behind traffic lights to the centre left of this frame.[151] He can be distinguished from PC Grimshaw because Grimshaw’s vest was pulled down on his right side during the brief encounter near the Zambrero entrance.[152] The following frame depicts SC Carter a few paces closer, again with the capsicum spray held out of view, with Mr Crossley in the same position with his hands lowered to the waist.[153] PC Grimshaw has an open palm facing downwards, ostensibly trying to press some point on Mr Crossley.[154] No sign of aggression by Mr Crossley is so far evident in the CCTV footage. In none of the footage before or afterwards is he seen with a clenched fist or fists.
[151] MFID9, still 5.
[152] MFID9, still 4. This was done by Mr Reine at 4:45:36.81.
[153] MFID9, still 6.
[154] MFID9, still 6.
By 4:45:54:37 SC Carter is right next to Mr Crossley, still holding the capsicum spray to his rear, as PC Grimshaw turns his attention to Mr Reine.[155] At 4:45:56:01, SC Durkin approaches from the direction of Hindley Street.[156] Mr Kelly is seen behind PC Grimshaw simply looking on. PC Grimshaw maintains that Mr Crossley proceeded to be ‘abusive towards Carter, swearing and shouting at him’.[157] At 4:45:56:33 SC Durkin reaches the group and by 4:45:58:01, it becomes apparent that a few by-standers begin to gather in Bank Street.[158] PC Grimshaw continues to converse with Reine at the same time as Mr Crossley has his right arm extended upwards at 450, pointing in the direction of Hindley Street.[159] Whilst this gesture might be seen as a sign of agitation, it is equally and if not more consistent with Mr Crossley continuing to press his point of view about the earlier events in Hindley Street.
[155] MFID9, still 7.
[156] MFID9, still 8.
[157] T558.1-.7.
[158] MFID9, still 9.
[159] MFID9, still 9.
This preliminary conclusion is strengthened by the next frame showing Mr Crossley still motioning towards the direction of Hindley Street. His evidence was that he protested, ‘we are just trying to go home, we didn’t really do anything wrong’ as Mr Reine pleaded with them to listen.[160] As Mr Crossley does so he is seen with his hands over his ears.[161] This is perfectly consistent with his evidence that he considered the police were not listening to him:[162]
[160] T33.38-34.1, T361.13-.14.
[161] MFID9, still 10, 4:45:58.73.
[162] T34.11-.30.
Q.Do you remember what Mr Reine was saying at that stage.
A.He was just pretty much agreeing with me saying that it wasn't just - we were getting hassled when we were just doing - trying to do the right thing and go home and avoid fighting with them and these guys came back to try and get us again.
Q.What were the police saying to him.
A.I don't know. I was focusing on what the officer was saying to me.
Q.In that still your other friend Mr Kelly is there in the centre of screen to the left of the police officer.
A.Yes. I don't think he had a lot to say. I don't remember him having a lot to say. Yeah, he just - he was probably just agreeing with us, if anything.
VIDEO SHOWN
Q.We have just seen you put your hands up to your ears. Why did you do that. This is at 4.46:01.
A.Maybe they weren't listening to me. That's the only - maybe I was just wiping my head or something, I don't know (DEMONSTRATES).
Likewise, Mr Crossley’s motion towards Hindley Street in the next frame supports the most likely inference that he continued to maintain his stance about the earlier events rather than be abusive to the police in the manner they describe.[163]
[163] MFID9, still 11, 4:46:04:89.
By now, SC Carter is seen pointing towards the abdomen of Mr Crossley as if to make a point. By 4:45:06:21 he clearly places his open left palm to the chest of Mr Crossley, whose left arm is lowered and whose right arm is held at right angles near his neck, in a motion that conveys a desire to explain something.[164] This may or may not be taken as a sign of agitation, but it does continue to suggest if anything, the desire to persist with his point of view.
[164] MFID9, still 11 4:456:04:89.
Mr Crossley and SC Carter next engage in a verbal exchange, as SC Carter appears to move a step to the right, keeping his palm as it was at the abdomen of Mr Crossley.[165] Nothing in these frames is inconsistent with the defence version as to the course of events so far. No sign of overt aggression is apparent from the CCTV footage up to this point either. Standing up to the police and continuing to complain about the earlier events, rather than retreating for a second time, appears grounded in Mr Crossley’s previous unsatisfactory encounters with the police.
[165] MFID9, stills 11, 12 and 13, 4:45:06.21, 4:46:07:69.
However from here, the events take a somewhat different course. Mr Crossley unwisely pushes SC Carter’s left palm and arm away from his abdomen and then raises a right arm with pointed fingers to head height, rather suggesting he is no longer prepared to back away.[166] By this point in time he might have better dealt with the situation by adopting a more submissive response. He admitted pushing the hand down for the second time because ‘(H)e was being a bit rough with me’.[167] By 4:46:09:65, SC Carter remains essentially in the same position with the capsicum spray, as Mr Crossley’s right arm rises to head height, with the left kept horizontal to the body.[168] This movement is once again more consistent with a pleading stance than it is with a threatening one. PC Grimshaw equally accepted that was the case under cross-examination:[169]
[166] MFID9, stills 14, 15 and 16, 4:45:08.33, 4:46:08:49 and 4:46:09:37 respectively.
[167] T34.36-35.3, T136.15-.16, T301.6-.9, T302.19-.34.
[168] MFID9, still 17.
[169] T569.24-570.12.
Q.So you've watched this footage.
A.Yes.
Q.Do you accept that up until this point that you can see on the screen now, Mr Crossley, to the extent you've seen him in this footage, hasn't been acting aggressively.
A.No.
Q.When do you say he was acting aggressively in the footage that you have just watched.
A.He was acting aggressively the entire time we were with him.
Q.So you say that he has been acting aggressively while you have been watching this footage.
A.Yes.
Q.Do you want to watch it again and point to any specific incident.
A.It was more the words he was using.
Q.So it wasn't his physical demeanour.
A.No.
Capsicum spray is used by the Police
Moments later, SC Carter draws the capsicum spray from behind his back and points it to just below the nose of Mr Crossley very close to his skin, as Mr Crossley’s arms and hands remain more or less in the same position.[170] His hand and arm movements were no more threatening then, than they were immediately beforehand. In moments thereafter, SC Carter deploys the capsicum spray which causes Mr Crossley’s head to rebound.[171] He then stumbles several paces to the North before turning to look at SC Carter.[172] Mr Crossley barely has time to utter a word before he is sprayed again.[173] The parties are at one in counting the time between the two sprays at 2.68 seconds.[174] At this latter time, Mr Reine is quite close to Mr Crossley, whilst PC Grimshaw and Mr Kelly were both caught by secondary sprays of capsicum from the first spray.[175]
[170] MFID9, still 18, 4:46:10.09.
[171] MFI P1, still 19, 4:46:10:29.
[172] MFI P1, still 20, 4:46:12.61.
[173] MFI P1, still 21, 4:46:12.97.
[174] T5.5 31 January 2020.
[175] MFI P1, stills 22, 23, 24 and 25, 4:46:13.89 – 4.46:16.25.
It is the case for the State of South Australia that the use of capsicum spray was in the circumstances, a reasonable and honest use in self-defence, because SC Carter and PC Grimshaw were in fear of immediate violence. The case for Mr Crossley is that the two applications of capsicum spray each constituted batterys.
There is a body of evidence before the court relating to the circumstances under which the deployment of capsicum spray is governed by a SAPOL ‘General Order Operational Safety, Operation Equipment’. SC Carter acknowledged the existence of this Order, whilst conceding he did not read it.[176] It contains a section headed ‘defensive sprays’, which provides:[177]
The purpose to use a defensive spray is a use of force and a member-protected security officer or community constable should consider it as only one of the tactical options available for resolving a violent situation … applying the operational safety philosophy and principles.
[176] T432.28-433.3.
[177] T433.8-.15.
Despite not reading it, SC Carter understood that it was ‘to be used in violent situations’.[178] He was equally aware that the General Order provided ‘that you are not to use the defensive spray closer than 90 cm from the suspect’s face’,[179] and that it further required a warning before use.[180] The first spray was administered prematurely, almost touching the face, and in any case certainly much closer than 90 cm. The CCTV footage showing the second spray is inconclusive as to distance, but so far as one can tell from still 21 of MFID9, it appears roughly to be about that distance. These reasons proceed on the assumption that the second spray complied with the Order in this respect.
[178] T433.13-.19.
[179] T433.20-.22.
[180] T433-.34.
All the same, as concluded earlier, no requisite situation of apprehended violence arose. To repeat, SC Carter accepted Mr Crossley was not ‘physically violent … apart from his gesture motion forward at the very start of it’,[181] having just seen the CCTV footage for 30 seconds immediately before 4:45:59. Likewise, PC Grimshaw admitted ‘[I]t was more the words he was using … it wasn’t his physical demeanour …’.[182]
[181] T442.21-.36.
[182] T570.1-.12.
It follows from this analysis that there was no occasion of self-defence and there was no violent situation to resolve, so the use of the capsicum spray twice was therefore unlawful. Before putting this primary conclusion into a legal context, it is necessary to deal with the relevance of the General Order Operational Safety, Operation Equipment. Defence counsel submitted those Orders are not to be taken as ‘legislative pronouncements and have no particular authority for the purpose of the law of tort’.[183] The situation is akin to the use of Standards in tortious claims. King CJ wrote about this subject in Chicco v Corporation of the City of Woodville:[184]
Publications containing safety standards approved by the Standards Association of Australia were admitted by consent. These standards do not have legal force, except, of course, to the extent that they may be given such force by a particular statute. They had no legal force in the circumstances of the present case. It is permissible for an expert on safety to have recourse to such published standards, if he sees fit, as one of the sources from which he informs himself as to matters relating to the subject on which he is expert. But the standards, of themselves, have no legal or evidentiary force.
Millhouse J made similar comments, whereas Cox J found it unnecessary to ‘pursue the question’.[185] This view of the law is however accepted elsewhere: Giner v Public Trustee,[186] Bethune v Qconn Pty Ltd,[187] Reed v Peridis,[188] Kent v Gunns Ltd,[189] Corkery v Kingfisher Bay Resort Village Pty Ltd,[190] Finn v Roman Catholic Trust Corporation of the Diocese of Townsville,[191] Tranquility Pools & Spas Pty Ltd v Huntsman Chemical Co Australia Pty Ltd,[192] Maynard v Rover Mowers Ltd,[193] compare Slater v Attorney-General (No 1).[194]In Middleweek v Chief Constable of Merseyside,[195] the UK Court of Appeal specifically rejected the proposition that a search cannot be justified if police standing instructions or procedures are not followed.
[183] Written Closing Submissions, para 68.
[184] (1989) 150 LSJS 89, 89.
[185] Ibid, 93 and 90 respectively.
[186] (1991) 105 FLR 410, 415-416.
[187] [2002] FCA 1485, [102].
[188] (2005) 239 LSJS 205, [39].
[189] (2009) 18 Tas R 454, [48].
[190] [2010] QSC 161, [43]-[45].
[191] [1997] 1 Qd R 29, 36.
[192] [2011] NSWSC 75, [351]-[352].
[193] [2000] QCA 26, [17].
[194] [2006] NZAR 664, [32]-[41].
[195] [1992] 1 AC 179, 188-189.
There can be no doubt that both capsicum sprays otherwise amount to battery, a species of trespass to the person. The common law has recognised over the centuries that the least intentional touching of another amounts to battery: Cole v Turner,[196] Stingel v Clark,[197] and Battiato v Lagana,[198] Carter v Walker.[199] The common law equally recognises that battery is constituted by striking another with a missile or instrument: Pursell v Horn,[200] McHale v Watson,[201] Darby v DPP.[202] Battery is fully constituted without requiring proof of damage: Wilson v Pringle.[203]
[196] (1704) 6 Mod Rep 149; 87 ER 907.
[197] (2006) 226 CLR 442, [97], and the authorities referred to in footnote 111.
[198] [1992] 2 Qd R 234, 236.
[199] (2010) 32 VR1, [15].
[200] (1838) 8 Ad & El 602, 604 112 ER 966, 968.
[201] (1964) 111 CLR 384, 388.
[202] (2004) 61 NSWLR 558, [73].
[203] [1987] QB 237, 252.
On the other hand, an action will not lie in trespass to the person where injury is caused by pure accident and the defendant is ‘utterly without fault’: Weaver v Ward,[204] Stanley v Powell,[205] Knapp v Salsbury,[206] National Coal Board v J E Evans & Company (Cardiff) Ltd & Maberley Parker Ltd,[207] Croucher v Cachia.[208] More to the point for the purposes of this action, lawful justification provides a defence to an action in battery, on the ground that it was committed in the defence of the person or others reasonably believed to face real and imminent (or immediate) peril or danger, providing no more force was used than reasonably necessary: Cope v Sharpe (No 2),[209] Dehn v Attorney-General,[210] Proudman v Allen,[211] Kuru v New South Wales.[212] Here the onus is on a defendant to show an occasion for which protection was required arose and that the degree of force actually used was reasonable in the circumstances and objectively assessed, was not out of proportion to the danger sought to be avoided: Pearce v Hallett,[213] Bennett v Dopke,[214] Bulsey v Queensland,[215] and Underhill v Sherwell,[216] Elwin v Robinson.[217] It is not a question of what a hypothetical reasonable person might believe in the circumstances, ‘but rather whether the defendant had reasonable grounds for his belief in the circumstances as he perceived them to be’: Watkins v State of Victoria.[218]
[204] (1617) Hob 134; (1617) 80 ER 284.
[205] [1891] 1 QB 86, 89-90.
[206] (1810) 2 Camp 500, 501; 170 ER 1231.
[207] [1951] 2 KB 861, 873-874, 881.
[208] (2016) 95 NSWLR 117, [21].
[209] [1912] 1 KB 496, 502, 504-505, 506-510.
[210] [1988] 2 NZLR 564, 577, 579.
[211] [1954] SASR 336, 340-341.
[212] (2008) 236 CLR 1, [40].
[213] [1969] SASR 423, 428.
[214] [1973] VR 239, 240-241.
[215] [2015] QCA 187 [4] and [46].
[216] [1997] NSWCA 325, [5]–[6].
[217] [2014] WASWCA 46, [63].
[218] (2010) 27 VR 543; (2010) 203 A Crim R 20, [71].
The unavoidable fact of the matter is as SC Carter had to concede, that in the 30 seconds immediately prior to the first application of capsicum spray at 4:46:10.29, Mr Crossley cannot be seen in the CCTV footage displaying any physical violence ‘apart from his gesture motion forward at the very start of it’.[219] PC Grimshaw likewise conceded that after watching the CCTV footage in court, that it was not Mr Crossley’s physical demeanour but rather ‘[I]t was more the words he was using’.[220]
[219] T442.21-.36.
[220] T570.1-.12.
And as observed earlier, essentially the defensive body language gleaned from the entire CCTV vision, placing his hands over his ears, together with gesticulations towards the Hindley Street area and a largely defensive posture, combine to bring the probabilities to the point that it is more likely than not that he was protesting in the manner deposed to by him and Mr Reine.[221] On the other hand, by the time Mr Crossley began to stand his ground, rather than retreat as was the case until then, there is a suggested measure of frustration, even agitation on his part. Even so the CCTV footage does not support the conclusion that the police were subjected to the kind of ‘barrage of shouting’ as claimed by them.[222]
[221] T33.12-.34, T361.26.31.
[222] T424.9.
It is accepted by Mr Crossley’s counsel that immediately before he was first sprayed, Mr Crossley pushed SC Carter’s arm away from his own chest and raised his right arm, but this was still nevertheless in protest rather than aggression.[223] Viewed objectively, the situation was not one of an immediate threat of violence or of imminent danger to the police. It was one of impasse. The police had already achieved their objective of removing Mr Crossley from the problem area, they were not dealing with his protestations and they continued to pursue him having achieved their purpose of defusing the situation, even though he walked away from it to the Eastern side of Bank Street.
[223] Exhibit P1, stills 16-19. Written Closing Submissions para 64, T302.3-.9.
The evidence that an acute situation arose requiring immediate defensive action for their own safety, is grounded in large part in the claim that in raising his arms and clenching his fists, Mr Crossley presented an imminent threat of physical harm and therefore an immediate danger to the police at the East side of Bank Street. The source of that claim begins with the evidence of SC Carter that Mr Crossley ‘stepped toward me in an aggressive manner with his fist clenched, believing I was to be assaulted’.[224] He accepted under cross-examination, when the CCTV footage was shown to him that at this point ‘Mr Crossley is pointing as opposed to having a fist … seems to be just gesturing’.[225] Sergeant Mann likewise claimed that Mr Crossley ‘was in a defensive stance … (F)ists clenched down by his side.[226] In re-examination he added that he ‘was in an aggressive sort of pose, I would say, with his fists clenched’.[227] The CCTV footage supports the evidence that Mr Crossley stepped forward a little with a raised hand, but does not support the evidence that he did so with a clenched fist at all.[228] It might be noted at this point in the analysis that Mr Crossley denied clenching his fists in the exchange with SC Carter.[229]
[224] T449.8-.22.
[225] T461.8-.10.
[226] T487.36-488.4.
[227] T505.2-.5.
[228] MFI D9, stills 10-17.
[229] T135.32-.36, T301.37-302.34.
The cumulative weight of all this evidence, including the CCTV footage and the inferences fairly arising therefrom, leads to the conclusion that no occasion for employing capsicum spray on the basis of apprehended violence was on foot. It was unreasonable in the circumstances to think otherwise. The evidence that Mr Crossley held a clenched fist at this time is rejected as it is against the combined weight of the evidence.
The same considerations apply equally to the second spray. Even assuming Mr Crossley uttered words to the effect ‘I put spicier sauce on my steak’ or ‘I love fucking pepper spray’, those words provided no reasonable basis for thinking the first spray was ineffective. Too little time elapsed between the two to make that assessment and in any event, the first spray appears to have obviously affected SC Durkin and Mr Kelly, so there was no objective basis to assume it did not affect Mr Crossley. Upon careful review of the CCTV footage between the first and second sprays at 4:46:10.29 and 4:46:12.97, that is in the time-span of just over two and a half seconds, apart from leaving no time to say as much, it is not possible to detect Mr Crossley saying anything at all between the two sprays. To the contrary, he turned to face SC Carter and was immediately sprayed a second time. Furthermore, the same vision suggests SC Carter was determined to spray for a second time irrespective of the circumstances, as he is seen in this time span at the ready to fire again, the only thing holding him back was the proximity of other police officers who might be too close to the firing line.[230]
[230] Exhibit P1, 4:45:10.29 – 4:46:12.97.
The evidence discloses instant disabling consequences of capsicum spray, such as inhibited vision, shortness of breath and pain as ‘very debilitating … and may induce … a sense of panic’.[231] SC Carter himself explained his understanding of the effects:[232]
Q.Dealing with capsicum spray, are you aware of what the effects of capsicum spray.
A.It is - to a certain degree, yes, we have experienced it ourselves.
Q.Can you describe those effects.
A.Yes, it makes your eyes stream, a little bit difficult to see. In some people it can affect their breathing slightly as well.
Q.Is it painful.
A.It is, yes. Some people it is more painful for than others. Some people aren't affected by it sometimes.
This evidence further suggests SC Carter’s excuse for the second spray is contrary to the objective facts and does not therefore ring true as a matter of common sense.
[231] T499.3-.10.
[232] T446.24-.34.
The fact of the matter remains that no situation of imminent danger emerged on an objective appraisal of the facts. Irrespective of exactly what Mr Crossley said to the police, his physical posture was by and large a defensive one. SC Carter determined early on to prepare for the use of capsicum spray by removing it from its holster and secreting it behind his back at a time when Mr Crossley was retreating across Bank Street. There was plenty of time available to reflect on his decision making to employ in between time before spraying the first time. Whilst the time between the two sprays was relatively short, it was quite insufficient to allow him to rationally form the view that it was ineffective the first time around. The known debilitating effects in any event count against that view. The fact that SC Carter only resorted to the use of capsicum spray four times in 18 years of police service, testifies to just how sparingly it ought be used.[233] It is for all these reasons that the conclusion was reached that two batterys are proven on the Briginshaw onus.[234]
[233] T413.11-.27.
[234] Briginshaw v Briginshaw (1938) 60 CLR 336.
As Donaldson LJ wrote in Lindley:[235]
It is the duty of the courts to be ever zealous to protect the personal freedom, privacy and dignity of all who live in these islands. Any claim to be entitled to take action which infringes these rights is to be examined with very great care. But such rights are not absolute. They have to be weighed against the rights and duties of police officers, acting on behalf of society as a whole. It is the duty of any constable who lawfully has a prisoner in his charge to take all reasonable measures to ensure that the prisoner does not escape or assist others to do so, does not injure himself or others, does not destroy or dispose of evidence and does not commit further crime such as, for example, malicious damage to property. This list is not exhaustive, but it is sufficient for present purposes. What measures are reasonable in the discharge of this duty will depend upon the likelihood that the particular prisoner will do any of these things unless prevented. That in turn will involve the constable in considering the known or apparent disposition and sobriety of the prisoner. What can never be justified is the adoption of any particular measures without regard to all the circumstances of the particular case.
[235] [1981] QB 128, 134.
It is Mr Crossley’s case that the application of the Figure Four Leg Lock was the cause of his left femur fracture. According to the SAPOL ‘Defensive Tactics Instruction Notes’, applying controlled pressure to avoid injury involves:[295]
[295] T595.23-.37, T595.35-596.6.
Q.… 'First, while the subject is in the prone position place the ankle of the primary leg behind the knee if the secondary leg'. So you understood that aspect of the procedure.
A.Yes.
Q.At the time you performed this procedure.
A.Yes.
Q.Then it says 'The secondary leg is bent towards the subject's buttocks over the entrapped ankle of the primary leg'. Did you understand that aspect of the procedure.
A.Yes.
Q.Then it says thirdly, the third dot point 'Apply controlled pressure to the secondary leg to hold the lock in place' …
The ‘Instruction Notes’ with respect to the ‘Figure Four Leg Lock’ advise to ‘place yourself alongside the offender’s legs’ and that ‘only reasonable force be used’.[296]
[296] Exhibit 8C pp 4 and 5.
During this particular application of the Leg Lock, SC Lovell applied pressure by placing his knee to the back of Mr Crossley’s left leg.[297] He then put his left foot across the back of Mr Crossley’s right knee without resistance, but then according to SC Lovell, ‘he began to try and kick his left leg out of the hold that I had it in’.[298] He then claims to have held the left leg ‘at the knee and the ankle … with his left foot being across the back of his right knee and the ankle’, achieving ‘half the leg lock procedure’ without completing it.[299] His evidence was that he achieved as much whilst he was on his ‘knees behind and lower down than Mr Crossley’, that is he was not on the body before hearing the ‘loud pop’.[300]
[297] T601.1-.18.
[298] T601.19-.25.
[299] T602.17-.30.
[300] T602.9-.13.
Counsel for the plaintiff criticised the evidence of SC Lovell in as much as he ‘was adamant that he did not apply his whole-body weight to the legs, or lie on top of the legs’, intending only to take hold of the left foot, place it behind the right knee and then move his own body around to the base of Mr Crossley in order to keep the lock in place.[301] Mr Crossley’s case is that he was unlawfully arrested, was not told why he was arrested and the circumstances producing the fractured left femur amounted to a third actionable trespass.
[301] Written Closing Submissions para 98, by reference to T588.24-.37, T602.33-.603.3.
SC Carter’s evidence was that he did not apply his full body weight to the leg, only that he applied ‘pressure down through my hands’, whilst lying on top of Mr Crossley’s legs’.[302] It appears it was immediately afterwards that the handcuffs were successfully secured.[303] Whilst at first denying that SC Lovell placed his body weight over Mr Crossley’s legs, PC Grimshaw in contrast conceded the accuracy and truth of an affidavit sworn by him not that long after the events in question, ‘I then observed Constable Chris Lovell try to prevent Crossley from kicking his legs around by placing his body over his legs’.[304]
[302] T600.31-603.3.
[303] T589.21-.27.
[304] T575.1-.27.
Mr Crossley was examined by the Orthopaedic Surgeon Dr Nagi Guirguis on 24 March 2014, at the request of his solicitor. In a report of the same date, Dr Guirguis diagnosed ‘a comminuted fracture of the left femoral shaft …’.[305] Subsequently, before preparing a second report of 9 February 2019 he watched the CCTV footage contained in Exhibit P1. This report was prepared in response to a request from Mr Crossley’s solicitor to ‘provide a description of the fracture sustained by our client to his left leg during the course of the arrest on 10 March 2013’.[306]
[305] Exhibit P4, p 3.
[306] T186.12-.15.
Because of its significance to the case, this report is reproduced in full:[307]
[307] Exhibit P4, pp 52-55.
1.According to the Plain X-ray films images dated 10 March 2013 there is a long spiral fracture of the left femur with a laterally located butterfly fragment. The fracture had sharp edges and was displaced and angulated.
2.
2.1The spiral nature of the fracture is indicative of a significant torsional (twisting) force applied to a two opposite directions to the proximal and distal end of the femur.
2.2The force has to be sufficiently severe to induce a fracture of one of the strongest bones in the body (the femur) particularly in a young physically active male.
2.2.1Having had access to the CCTV video clip and the three policemen affidavits. I found it difficult to collaborate the video clip with the three policemen statements, due to obstructions by the public gathering. But mostly depending on the three statements, two of which indicated that the officer performing the figure 4 maneuver [sic], applied his body weight across the back of Mr Crossley’s legs. So in my opinion, it is highly likely that the police officer, performed the figure of 4 maneuver [sic] by applying his body weight on the back of both legs above the knees while bending and twisting the left leg at the knee, therefore not allowing free compensatory movements of the corresponding hip and side of the body to allow for such an abnormal position of the bent and twisted knee. Therefore there were two forces applied at two opposing directions at the two ends of the femur, creating a tortional torque and resulting in the femur fracturing because of the two opposing forces.
2.2.2In my opinion, Mr crossley’s [sic] body was significantly restrained by two officers restraining his upper body and a third officer applying the full weight of his own body on Mr Crossleys’ leg therefore would not allow him to generate enough twisting force to produce the fracture. I noted from the limited view of the CCTV, that the injury occurred soon after applying the maneuver [sic] and that negates the notion that he was able to generate enough force by twisting his body to induce the fracture.
3. I believe the proper application of the figure of 4-lock procedure according to the SAPOL manual, would have prevented the occurrence of such an injury. The instructions set out certain method of handling the one leg used for the lock, which does not include placing the whole body weight on the body, which would be considered as applying excessive force and, as I stated previously, would not allow for free movement at the hip, to compensate for the abnormal twisting movement of the leg at the knee.
The acute and stark nature of the comminuted fracture above described, is seen in the x-ray image, Attachment B to these reasons.[308]
[308] The original plain x-ray film became Exhibit 8B, submitted during the evidence-in-chief of Dr Guirguis, T186.12-187.15.
Dr Guirguis elaborated on these observations and opinions during the course of his evidence-in-chief:[309]
[309] T186.29-188.6, T189.27-192.3.
Q.Just returning to your answer: you say 'According to the plain X-ray film images dated 10 March 2013 there is a long spiral fracture of the left femur with a laterally located butterfly fragment. The fragment had sharp edges and was displace and angulated'. So if you hold that up so his Honour can see: can you point to what you were describing.
A.Right, the spiral nature of the fracture is obvious from here, is that it's not a straight cut or straight fracture. It is going in a round spiral fashion on the tube. If you imagine this being like a tube. (INDICATES) so that's why this is oblique like that, this is oblique and that should actually fit - I'm not sure if I'm describing it how it should be. So that's why it's described as being spiral.
…
Q.Then the next question that is asked in the letter of 7 February 2019 is 'How do you consider the fracture was sustained during the course of the arrest'. And then this was asked: 'We ask that you provide this opinion by reference to the following; the nature of the fracture sustained'. Then your response to that at p.52.2.1 'The spiral nature of the fracture is indicative of a significant torsional (twisting force) applied at two opposite directions to the proximal and distal end of the femur'. So can you just explain for our reference which is the proximal and which is the distal end of the femur.
A.Proximal is the end close to the body. Distal is the end close to the knee. That means that there has been two opposite forces applied (DEMONSTRATES) above the fracture and below the fracture. And by twisting one end against the other produces that kind of fracture. This is what is called torsional force, or torsional load, applied to the bone and it causes that type of fracture.
Q.Then you were asked at 2.2 of the letter of 7 February 2019 to 'have regard to any forces that you consider were applied during the arrest and by whom and how'. You first response to that at 2.2 of your report on p.52 is 'The force has been sufficiently severe to induce a fracture of one of the strongest bones in the body (the femur) particularly in a young physically active male'. Are you able to say in your experience what sort of circumstances people typically might break their femur, patients might.
A.Yes. It has to be quite a significant force. Usually it's a motor vehicle accident or fall from a height. So there has to be a considerable force applied to the bone to fracture it one way or the other. This is very unusual to fracture femur with that type of trauma.
Q.I ask you to remind yourself of your opinion in the second part of that 2.2.1 paragraph. If you think you need to if you just basically explain - where you say 'In my opinion it is highly likely that the police officer' - I think there should be a pronoun 'who' - 'performed the figure of four manoeuvre by applying his body weight on the back of both legs above the knees while bending and twisting the left leg of the knee, therefore not allowing free compensatory movements of the corresponding hip and the side of the body to allow for such an abnormal position of the bent and twisted knee'. Then you go on to say 'Therefore there were two forces applied at opposing directions at the two ends of the femur result in the femur creating a torsional torque and resulting in the femur fracturing because of the two opposing forces'. Are you able to explain in a bit more detail in your opinion about what you think has actually happened.
A.When you look at the manual at that photo again and you can see that the knee has been - is not restrained anymore, the right knee is not restrained. There is a little bit of movement, allow that bit of move to compensate - because this is a very abnormal position to have the leg at. So you need that knee to move a little bit freely to allow the movement. If you placed a lot of pressure on the leg, above the fracture site, at the top of the leg, that's not supposed to happen and the manoeuvre says that's not supposed to happen. The picture of the manoeuvre it's not supposed to happen. To allow the movement - the manoeuvre to be applied without excessive force. But in that case, again with that assumption, is there has been a lot of force applied at one end and the other force with leverage of the leg across and that ended by fracturing the femur. So I'm not sure if I explained it right, but I thought that if you apply force at the body, maybe you don't need to do the manoeuvre any more.
Q.Just to be clear, so when you think this force has been applied, this is probably a difficult thing to sort of demonstrate, but if you can demonstrate, how do you think the legs were positioned at that time when the force was applied.
A.Well, initially the leg was stretched, and then if you imagine this is the knee, then it became like that and then when you move that leg across, this knee has to move a little bit that way. If you put a lot of pressure there, that doesn't allow that free movement, that has to raise a bit, because this is - I mean, the arm is different than the leg, it's even more abnormal for you to do that in the leg - and hence that's an abnormal force has been applied - one force is this and the other force is putting the leg down, not allowing that movement in the leg and it just - the forces have nowhere to go except to break the femur (INDICATES). Something had to give with this.
Q.In the letter of 7 February 2019, if you look at questions 2.2.2 and 2.2.3, you're asked 'Whether our client was able to exert sufficient or any force by twisting or moving during the arrest once lying prone on the ground to cause the fracture' and then you were asked, as a corollary to that question, 'Whether or not if you do not consider that our client was able to exert sufficient force by twisting or moving during the arrest to cause a fracture, please explain the basis of this opinion'. And then you answer, as I understand it, halfway down p.52, at 2.2, 1.2.3 - I take it it's meant to be a reference to 2.2.3 in response to that question - and you say 'Mr Crossley's body was significantly restrained by two police officers, two officers restraining his upper body and a third officer applying the full weight of his own body on Mr Crossley's leg, therefore not allow him to generate enough twisting to produce the fracture'. So do you still hold that view.
A.Yes.
He also affirmed the opinion expressed in paragraph 3 of the second report:[310]
Q.Then just finally I'll ask you to read question 3 in the letter of 7 February 2019. Then I'll ask you to read your answer at the bottom of p.52, para.3.
A.Right.
Q.Do you still hold that view.
A.Yes, as is clear from the instructions and the photo of the manoeuvre.
[310] T192.4-.10.
Dr Guirguis was cross-examined about these opinions as follows:[311]
[311] T202.11-208.27.
Q.The first question there was 'Comment on the likelihood of the following: that a rotational force caused the fracture of the femur'. And your answer in your letter dated 21 April 2018 was 'No'.
A.Yes.
Q.On what basis did you say that it was unlikely that a rotational force could have caused the fracture.
A.Well, because you know, as I said all along, it's the most unusual way in a person of his build to actually fracture his femur simply by twisting it and looking at the reports from the Royal Adelaide and the report of Dr Marshall, really it wasn't sufficient information to tell me that this was something has been caused by that torsion movement. So still my answers would have been really subject to viewing the X-ray because it's most important to see the X-ray for yourself and make a decision.
…
Q.Did you think that he, having given such an opinion, it would be a good idea for you to see the same material that he had access to.
A.Absolutely. Yes. And I said that in the report, that I'm building all this opinions without that several times, that the X-rays had not been viewed and also it was confusing because in one sense comminuted fracture, other sense a spiral fracture, so really at the end of the day if you don't see the X-rays, you just try to make the best to you, because it just - it's a very unusual way of - I would say that it's more - if you say that which is more likely, without seeing anything, is the hard kick would a fracture, would a twist, I would say the hard kick all the time rather than the twisting.
Q.Because a hard kick might apply greater force.
A.Greater force absolutely, yes. I could not believe that twisting could produce a fracture in the femur without being major incident, you know, like I said, a major force.
Q.A mere twist.
A.A mere twist is just very hard to comprehend.
Q.And then in that same exchange you were asked whether the fracture was caused by someone simply applying pressure with their knee. And you said 'Yes, if applying body weight with enough force on the leg'.
A.Yes, and again, I would assume that this is done in a situation where, as I said before, the leg is not supported, so you just put a lot of pressure. But again really all this are just really - to be honest, the whole scenario to break a femur even with direct trauma and was - it's just the whole thing is very unusual. So I suppose you need to be qualified when you say 'Yes', really again it has to be excessive force, excessive weight as well as the area not being supported and therefore it would give to that weight.
Q.But in that case did not the possibility of a fracture caused by a mere twisting seem more likely.
A.Well, when you see all the circumstance, like later on, when you had the description of exactly what happened, what has been applied, what sort of twisting was applied, because this twisting motion actually was applied with a bent knee and that makes a big difference because you have got a leverage to apply the force and also seeing the X-ray, then this is a full picture and when you get the full picture then you form a sound opinion.
Q.Can you say, to assist his Honour and the court, how long the spiral fracture was.
A.As in measurement?
Q.In measurement.
A.Well -
Q.Is that too difficult. I don't want to be unreasonable.
A.It would be, it would be hard. I can say that is - I would describe that as being long, long spiral.
Q.With such a fracture can you say where it started and finished or you say it could have been from either end.
A.When it starts?
Q.Let's suppose you've got a fracture.
A.Yes.
Q.And there's a twist.
A.Yes.
Q.Can you say the twist came from the direction of the torso or the direction of the foot.
A.Right. I guess that needs a mechanical mind to actually be absolutely sure to answer a question like that.
Q.No, I'm not suggesting that you should have to, I'm just wondering whether you could.
A.No, it would be difficult.
Q.Are you able to say from the information you were given where the force was applied which caused the fracture.
A.All I can say, it's the force must have been applied both above and below the fracture to produce that time.
Q.May then it have been caused by a police officer attempting to move the leg, the lower leg over to the right leg and the upper body going the opposite direction so you've got opposite turning forces if you like.
A.What, you mean the body as the body weight or the body movement?
Q.Well, the body movement, say the body is basically flat out.
A.Right.
Q.And the body is moving one way, twisting, say, a person was twisting for whatever reason -
A.Right.
Q.- in one direction and the leg was being moved in the other so you've got two forces against each other.
A.Well, I expect that to happen if the opposite force is the body weight and that means, for example, like somebody could actually fracture the leg if they fell in a pot hole and their leg is fixed, then the body twisted and with the body weight that created an opposite force, then that's feasible, but actually for the, put simply, the movement, without that body weight behind them to actually cause that opposite forces, enough force to fracture, I don't believe so. If he was standing and the leg was fixed and if he was twist somehow and his body fell in the opposite direction while the leg was fixed, as in not moving, then that is feasible.
Q.Let's suppose that you have a strong person and they are moving around as the police officer attempts to perform the figure four, so that the left leg is being bent and the attempt is made to move the left leg over behind the right leg and whilst this is happening, the person upon whom that is being attempted is moving their body as hard as they can against the police officers attempting to apprehend them, you couldn't rule that out then, could you, there'd been a force one way and then a force another way and the combination causing the sufficient combined force to break the femur.
A.I mean you can't fully rule it out but I cannot imagine that somebody can generate enough force while they are on the ground to create that, enough force to break the leg because again, as I said, if that leg was not restrained, all that would happen simply is that the body will just go in the opposite direction, to actually try to create enough force by his body muscles, by the muscular force of his body against the other is just - I don't believe it would be sufficient.
Q.But if, say, the torso is rocking, say, if he's lying face down and the body rocks, the upper body rocks towards the left as the left leg is being brought over towards the right, could not the combined force created by those two movements be sufficient to fracture the femur in a mere twist.
A.I really can't - to be honest I can't see it because the ground is there, there's not enough - when you compare that with the picture of somebody standing, one leg in a hole fixed, and the body weight twisting freely in air, and falling, that's what you need, that's the force you need. You cannot generate that force by somebody on the ground and wiggling about, it's just not enough.
Q.May not it depend on how big the wiggle and how strong the wiggle was.
A.Well, there is not enough space to - there's no space to create that force.
Q.How many times have you encountered a spiral fracture such as this being caused in, say, circumstances vaguely like this.
A.Like this, I don't believe I came across that before, exactly like that, no.
Q.So with all respect you can't rule out what I've just put to you. You can't completely rule it out.
A.Yeah, you can't, I'm just talking about the balance of probabilities, which is more probable.
…
Q.And insofar as a force is being created by the movement of the lower left leg across to behind the right leg, is it the fulcrum or the turning point is the knee, correct.
A.Correct.
Q.So the longer the leg, if physics tells me right -
A.Yes.
Q.- the less force would have to be used to move it, all other things being equal.
A.Absolutely, yes.
Q.So if it's a short leg you might need more force, the longer the leg, less force.
A.Yes.
Q.Then is one of the scenarios that you contemplated that force may still have been applied by presumably a police officer's body to the back of the left thigh simultaneously with the leg being moved over, the attempt to move the lower leg over behind the right leg, is that correct.
A.Yes.
Q.And so then it would be the case, wouldn't it, that if there was no force, as you postulate at least in part of your evidence, if there was no force applied to the back of the left thigh, then the lower left leg would have gone straight over.
A.Yes.
Q.Behind the right leg.
A.Yes.
Q.So then, given that there is force, as you think, may have been applied behind the left femur or the left leg, left thigh, it may well have been the same degree of force would have been used, whether or not something is being held. In other words, it was the fact that the thigh could not move, could not give that was the problem, wasn't it.
A.Could not - yes, compensate, yes for the -
Q.So the police officer could have used the same force whether or not it was held, it's just the fact that when he used the same force, because it was held for some reason perhaps in that way, that the fracture occurred.
A.Because it was held down, yes.
Still later he answered a question from the bench:[312]
Q.I just want to understand that. The way I was reading your evidence was that the twisting at the proximal end was in an opposed direction to the twisting at the distal end.
A.Well, the proximal force is the restraining force. The distal force is the torsional force. So, if we imagine a stick or a pole and if you are holding it like that and you are twisting it you are applying force here because you're restraining it, so you're not twisting it but you are fixing. The same thing, as I said, somebody fell in a hole, legs fixed, body is twisted, so these are two opposes - because this is still a force.
[312] T209.26-.37.
The various opinions expressed by Dr Guirguis in his report and supplemented by his evidence, might be condensed as follows:
·There was an unusually long spiral fracture with sharp edges of the left femur with a lateral butterfly fragment.
·Two forces were applied in opposing directions at the two ends of the femur resulting in a femur fracture.
·The above conclusions as to the facts render it difficult to reconcile, or difficult to ‘collaborate’, the CCTV footage with SC Lovell’s account of the mechanism causing the fracture.
·The probabilities are that full body weight and excessive force was applied across the back of Mr Crossley’s legs, which prevented free compensatory movements, so the force applied will only break the femur.
·Twisting by Mr Crossley contributing to the injury is ‘difficult to comprehend’, because there was not enough space on the ground for him to create the required force.
The overwhelming inference to be drawn from the very nature of the compound fracture itself and the mechanisms producing it, is that SC Lovell must have applied his ‘whole body weight’ to the legs of Mr Crossley. No other mechanism satisfactorily explains why such a complex injury could otherwise occur. The spiral fracture was of such an unusual nature that it was something Dr Giurguis did not believe he had seen before in well over 30 years in orthopaedic and musculoskeletal medicine. That injury is not at all consistent with SC Lovell remaining on his knees along-side Mr Crossley; to the contrary, it is more consistent with full body weight force. The very nature of the fracture is equally inconsistent with Mr Crossley’s own body movements bringing about that injury.
Seizing on the latter portions of the quoted cross-examination, defence counsel submitted it ‘indicates … the torsional force alone was not significant or extreme’.[313] With due respect to the able submissions of counsel, that contention takes the evidence of Dr Guirguis out of context. The gravamen of his evidence was squarely that significant opposing torsional or twisting forces were applied in opposite directions at the proximal and distal ends of the femur, which was highly likely caused by the whole body weight on the back of both legs above the knee, thus compromising compensatory movements. Any concession to the contrary was met with ‘I don’t believe so’ and ‘I don’t believe it would be sufficient’. His opinion was expressed as ‘more probable’ than the scenario proposed by defence counsel. Significantly the defence adduced no expert evidence refuting or calling into question the opinions expressed by Dr Guirguis.
[313] Defendant’s written closing submissions, para 95, T695.29-696.24.
The defence accordingly fails to establish on balance that SC Lovell acted as he did ‘utterly without fault’, or that it was reasonably necessary, or that the degree of force used was not excessive. The undeniable situation was that Mr Crossley was wholly restrained by the police officers lying prone face downwards, without presenting any further risk to anyone and without attempting to flee, before SC Lovell began to execute the leg lock. The only mechanism rationally explaining the acute nature of the injury was the application of excessive full body weight.
Nor is it to the point that the ‘restraining force’ to the left hip area (or proximal end) was applied by another police officer.[314] The fact is that a battery occurred at the hands of the police officers involved at the time, as joint tort feasors. This conclusion is reached without reference to the SAPOL ‘Defensive Tactics Instruction Notes’, which are treated in the same way as the General Order covering the use of capsicum spray, for precisely the same reasons. Here again, these may become relevant, when questions of damage arise.
[314] Defence closing written submissions, para 99.
Summary and Conclusion
To sum up in brief. When the police came across what can be described as a melee in Hindley Street during the early hours of the morning in question, they either assumed, or in an on the spot assessment of the situation, considered Mr Crossley was at the centre of it. This assessment was made substantially because of his large size and the sound of his voice. Rather than attempt to sort out the causes, they resolved the best way to ‘defuse’ the situation was by removing him from the scene without arresting him. This they succeeded in achieving by encouraging him around the corner onto the Western side of Bank Street. This was a sensible and pragmatic course of action for which they cannot be criticised.
Mr Crossley began leaving the area by crossing Bank Street. The two police officers needlessly followed him. Mr Crossley stopped and resumed his verbal protestations as to his version of the Hindley Street events, but the police were not listening to him. As SC Carter crossed the road he readied his capsicum spray for use. As Mr Crossley continued the tirade of protest on the Eastern side of Bank Street, SC Carter formed the view that he was not leaving, and that unless he did he would be sprayed and arrested. The two acts of spraying were unjustified as there was no immediate danger or peril to anyone. Mr Crossley was not told in clear terms the reasons for his arrest, and the action of executing the leg lock in order to apply handcuffs was unnecessary and excessive, as he was already under restraint and in any case entitled to resist an unlawful arrest. This constituted a third unjustified act of battery. Since all three proven batterys were intentional, it is unnecessary to consider the alternative cause of action in negligence: Williams v Milotin,[315] and Croucher v Cachia.[316]
[315] (1957) 97 CLR 465, 474
[316] (2016) 95 NSWLR 117, [22].
The case should now proceed to an assessment of damages based on these primary findings of fact, with the parties at liberty to make further written submissions with respect thereto, in light of these conclusions.
Appendix A – Comminuted fracture of the left femoral shaft
Appendix B – Figure Four Leg Lock
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