Drew Cuthbertson v State of New South Wales; Daniel Fletcher v State of New South Wales

[2017] NSWDC 367

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Drew Cuthbertson v State of New South Wales; Daniel Fletcher v State of New South Wales [2017] NSWDC 367
Hearing dates:	24, 26, 27 and 28 April 2017 and 1, 2, 3, 5, 8 and 9 May 2017 and 8 and 9 June 2017
Date of orders:	15 December 2017
Decision date:	15 December 2017
Jurisdiction:	Civil
Before:	Montgomery DCJ
Decision:	In Fletcher v State of New South Wales 15/00135825: (1)   Judgment for the plaintiff against the defendant in the sum of $12,848. (2)   Defendant to pay 70% of the plaintiff’s cost of the proceedings  In Cuthbertson v State of New South Wales 15/0010880: (1)   Judgment for the plaintiff against the defendant in the sum of $84,712 (2)   Defendant to pay the plaintiff’s costs of the proceedings
Catchwords:	police powers; arrest; self-defence; assist police officer; breach of the peace; wrongful imprisonment; “suspicion”; “belief”; reasonable force; use of CCTV evidence; damages – costs of defence of criminal proceedings
Legislation Cited:	Passenger Transport Regulation 2007 (NSW) cl 55(5) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ss 99, 230, 231 Police Act 1990 (NSW) s 6 Crimes Act 1900 (NSW) s 58 Civil Liability Act 2002 (NSW) s3B, 52 Crimes (Appeal and Review) Act 2001 (NSW) s70(1) Legal Profession Act 2004 (NSW) ss 317, 319, 327
Cases Cited:	Blacktown City Council v Hocking [2008] NSWCA 144 Beaton v McDivitt (1985) 13 NSWLR 134 Kassem v Crossley & Anor; Kassem v Kraym & Anor [2000] NSWCA 276 Macintosh v Webster (1980) 43 FLR 112 Woodley v Boyd [2001] NSWCA 35 Carter v Walker (2010) 32 VR 1 NSW v Randall [2017] NSWCA 88 Prior v Mole [2017] HCA 10 George v Rockett (1990) 170 CLR 104; [1990] HCA 26 State of New South Wales v Hunt (2014) 85 NSWLR 226; [2014] NSWCA 47 Hyder v The Commonwealth (2012) 217 A Crim R 571; [2012] NSWCA 336 Director of Public Prosecutions (NSW) v Mathews-Hunter [2014] NSWCA 843 Zavarinos v State of New South Wales [2004] NSWCA 320 State of New South Wales v McMaster [2015] NSWCA 228 Zecevic v Director of Public Prosecutions (Vic.) (1987) 162 CLR 645; [1987] HCA 26 R v Howell [1982] QB 416 State of New South Wales v Bouffler [2017] NSWCA 185 DPP v Carr (2002) 127 A Crim R 151; [2002] NSWSC 194 State of New South Wales v Reilly (2003) 57 NSWLR 496; [2003] NSWCA 208 R v Hoare and Heavey [1965] NSWR 1167; (1965) 84 WN (Pt1) (NSW) 248 Croucher v Cachia [2016] NSWCA 132 Hamilton v State of NSW [2016] NSWSC 1311 Doubleday v Kelly [2005] NSWCA 151 Motorcycling Event Group Australia Pty Ltd v Kelly (2013) 86 NSWLR 55; [2013] NSWCA 361 Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5 New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57 Penrith City Council v Parks [2004] NSWCA 201 Coyle v State of New South Wales [2006] NSWCA 95 New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133 Vo v Tran [2016] NSWSC 1043 New South Wales v Smith [2017] NSWCA 194 Re Tetbury Pty Ltd [2017] NSWSC 37 Wentworth v Rogers (2006) 66 NSWLR 474; [2006] NSWCA 145 Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221; [1987] HCA 5 Lumbers v W Cook Builders Pty Ltd (in liq) (2008) 232 CLR 635; [2008] HCA 27 Adeels Palace Pty Ltd v Moubarek (2009) 239 CLR 420 Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 [2014] HCA 36; (2014) 254 CLR 185 Griffiths v Kerkemeyer (1977) 139 CLR 161; [1977] HCA 45 Amaca Pty Ltd v Booth (2011) 246 CLR 36; [2011] HCA 53 Hamod v State of New South Wales [2011] NSWCA 375 Van Gervan v Fenton (1992) 175 CLR 327; [1992] HCA 54 State of New South Wales v Koumdjiev (2005) 63 NSWLR 353; [2005] NSWCA 247 MBP (SA) Pty Ltd (1991) 171 CLR 657; [1991] HCA 3
Category:	Principal judgment
Parties:	Drew Cuthbertson (Plaintiff) Daniel Fletcher (Plaintiff) The State of New South Wales (Defendant)
Representation:	Counsel: Mr D. Toomey SC with Mr D. Morgan (Plaintiffs) Ms K. Williams SC with Mr A. Williams (Defendant)   Solicitors: Mr Matthew Garling (Plaintiffs) Ms Nouhad Khoury (Defendant)
File Number(s):	2015/00108800 and 2015/00135825
Publication restriction:	None

Judgment

Preliminaries

1. After midnight on 8 September 2013, two young adult males Drew Cuthbertson and Daniel Fletcher were travelling in a train with friends between Central Railway Station and their homes on the Central Coast following a birthday celebration at Kings Cross. Senior Constables Walker and McArthur, in the course of Transport Police duties, observed Mr Fletcher consuming alcohol and swearing in the lower compartment of a carriage, in consequence of which actions they directed him to leave the train and accompanied him to the vestibule to wait for the train to arrive at Eastwood Station. Mr Cuthbertson accompanied Mr Fletcher to the vestibule. Senior Constable McArthur says that he was assaulted by Mr Cuthbertson whilst in the vestibule. In the vestibule of the train and subsequently on Eastwood Station platform SC McArthur voiced arrest of Mr Cuthbertson. Mr Cuthbertson was charged with the offences of assault and of resist an officer while in the execution of his duty pursuant to section 58 Crimes Act 1900, NSW. Mr Cuthbertson was ultimately found not guilty.

2. In the vestibule of the train and on the Eastwood railway station platform Messrs Cuthbertson and Fletcher and Senior Constables McArthur and Walker engaged in a transaction of confrontation both oral and physical. In these proceedings Messrs Cuthbertson and Fletcher proceed civilly against the State of New South Wales claiming damages for trespass to a person, assault and battery, wrongful imprisonment, and, in the case of Mr Fletcher only, personal injury damages. Mr Cuthbertson claims damages compensating him for the legal costs of his successful defence of the “resist” charge.

3. The State of New South Wales concedes that it is vicariously liable for any tortious action by the Senior Constables but defends the actions saying that the Senior Constables were acting within their powers and functions as police officers.

4. The hearing occupied 12 days including oral submissions. The parties submitted in excess of 220 pages of written submissions.

The Contest

5. The hearing proceeded on the basis of Mr Cuthbertson’s and Mr Fletcher’s proceedings being heard together, the evidence in each being evidence in the other.

6. By his Statement of Claim filed 7 May 2015, Mr Fletcher sues for assault and trespass to person (“assault” allegations) occurring when he was removed from the train. He alleges being grabbed by SC Walker on the arm and in the region of his left chest and shoved off the train and onto the platform (at [6]).

7. Mr Fletcher (at [7]) describes continuing assault allegations occurring on Eastwood platform by SC Walker in the form of grabbing, pulling, holding, pulling Mr Fletcher’s hand up behind his back, throwing and flinging Mr Fletcher to the ground, and by SC Walker forcibly placing his body weight on Mr Fletcher whilst Mr Fletcher was on the ground.

8. Mr Fletcher claims personal injury damages compensating him for a fracture to his right distal ulna (right forearm fracture) suffered during his struggle with SC Walker on the platform.

9. Mr Fletcher pleads that if SC Walker’s touching of him was lawful; then, because the force was excessive and unnecessary, it was nevertheless assault.

10. Mr Fletcher claims that he was wrongfully imprisoned whilst upon the platform of Eastwood Station (mis-described in [11] as “Eastwood Police Station”) being detained against his will and deprived of his liberty. Whereas in his Statement of Claim the period of imprisonment is stated at 15 minutes, in plaintiff closing submissions it was refined to 8 minutes.

11. Particulars to [13] of his Statement of Claim describe the imprisonment as when he was grabbed, held and assaulted by SC Walker “and/or” for the period during which he remained seated on the platform as he was directed to do by SC Walker.

12. In addition to pleading denial of trespass, assault and wrongful imprisonment, the defendant, in answer to the whole of Mr Fletcher’s Statement of Claim, pleads that SC Walker performed according to his statutory powers and duties as follows:

1. by using reasonable force pursuant to s 230 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) employed to prevent a breach of the peace (at [13]);

2. in direction of Mr Fletcher to leave the train pursuant to cl 55 (1) of the Passenger Transport Regulation 2007 (at [13A]);

3. in removal of Mr Fletcher from the train pursuant to cl 55 (5) of the Passenger Transport Regulation 2007; and

4. in accordance with acting in good faith pursuant to s 6 of the Police Act 1990.

13. Passenger Transport Regulation 2007, clause 55 (5) relevantly provided at the time of the incident as follows:

“(1)   A driver of a public passenger vehicle or train or an authorised officer may direct a person to leave, or not to enter, a public passenger vehicle or train if the driver or authorised officer is of the opinion that:

(a)   …

(b)   the person is otherwise causing, or is likely to cause, inconvenience to other passengers or to the driver of the public passenger vehicle or train (whether because the person is under the influence of alcohol or another drug, or for any other reason), or

(c)   the person is committing an offence under this Regulation in or on the public passenger vehicle or train, or

(d)   …

(2)   …

(3)   …

(4)   …

(5)   A person who refuses or fails to comply with a direction given under this clause may be removed from the relevant public passenger vehicle, train, premises or monorail works by an authorised officer.”

14. The parties agreed that Senior Constables Walker and McArthur were at all relevant times “authorised officers” for the purposes of cl 55 (5).

15. Late in the case the plaintiff abandoned opposition to the lawfulness of SC Walker’s direction for Mr Fletcher to leave the train. Senior Counsel (at Transcript Day 1, page 23) for the defendant at the end of the plaintiff opening which included the viewing of CCTV within Exhibit A, identified the events to which Passenger Transport Regulation 2007 55 (5) (cl 55 (5)) applied to Mr Fletcher as:

1. Mr Fletcher not himself alighting when the doors opened, he having been directed by police to do so: Video 055B5981-7 at 1:47 to 1:52; and

2. Mr Fletcher putting himself partly back inside the train when he lifted Erin into the train: Video C052 at 0:40 to 0:48.

16. To the latter incident, Senior Counsel for the plaintiff responded that when Mr Fletcher put his girlfriend Erin back on the train, he moved to the platform and it was several steps in events after his lifting Erin onto the train that SC Walker yanked Mr Fletcher away.

17. Mr Fletcher seeks ordinary damages to compensate him for the alleged assault and trespass upon his person and consequent fear and distress, as well as for humiliation and damage to his reputation, and damages for wrongful imprisonment.

18. In addition, he seeks aggravated damages and exemplary damages.

19. By Amended Statement of Claim filed 24 October 2016, Mr Cuthbertson pleads two allegations of unlawful arrest by SC McArthur. The arrests are identified at [6] and [10] by place and time of occurrence. The first arrest is alleged to have occurred when Mr Cuthbertson was physically restrained depriving him of his liberty and detained against his will when standing in the vestibule area of the carriage as the train neared Eastwood Station. The second arrest is alleged to have occurred when Mr Cuthbertson was on the platform at Eastwood Station. Mr Cuthbertson alleges that each arrest contravened or was performed in absence of the lawful power of arrest conferred upon SC McArthur as a police officer.

20. In opening, Senior Counsel for Mr Cuthbertson put the unlawful arrest allegation in the description of separate incidents but also in the description, of a continuum. At Day 1, Transcript page 6, line 30 to line 38, Senior Counsel for Mr Cuthbertson said:

“It is the plaintiff's case that that arrest was unlawful for the reasons I have already adumbrated.  Whether or not that arrest was a continuing transaction or whether there was a distinct further arrest is really of no moment if your Honour finds that the justification for Constable McArthur's actions were poisoned at the root.  But even if your Honour were to find that the first arrest had been lawful, we will ultimately submit there would have been no basis for the second arrest in the circumstances as we apprehend would be described by Constable McArthur and indeed by the plaintiffs themselves.”

21. Mr Cuthbertson puts his case for wrongful imprisonment in the alternative, that if his arrest was lawful; then he was falsely imprisoned when SC McArthur and/or SC Walker detained him for an unnecessary and unlawful period of time (at [8 (b)] and [12 (b)]).

22. Whereas Mr Cuthbertson’s Statement of Claim pleads that he was wrongfully imprisoned for around 30 minutes (at [13]) whilst he was detained against his will and deprived of his liberty, in final written submissions the period was reduced to 12 minutes.

23. By Defence to Amended Statement of Claim filed on 24 October 2016, the defendant admits the first arrest (at [4 (a)]) and says that the arrest was lawful, being for assault on SC McArthur by Mr Cuthbertson. The defendant admits that when arrested Mr Cuthbertson was detained against his will, but otherwise denies the allegations (at [5]). The defendant admits the second arrest by SC McArthur on the platform shortly after Mr Cuthbertson was removed from the train, but denies at [11] and [12] that the arrest was unlawful.

24. The defendant at [7] pleads that the arrests were pursuant to s 99 (2) LEPRA identifying the bases as SC McArthur having reasonable grounds to suspect that Mr Cuthbertson had committed the offences of:

1. assault officer in execution of duty pursuant to s 58 Crimes Act 1900; and

2. resist officer in execution of duty pursuant to s 58 Crimes Act 1900.

25. Further, the defendant pleaded that pursuant to s 99 (3) LEPRA, SC McArthur was not restrained from making the arrests because he had reasonable grounds to suspect that it was necessary to arrest Mr Cuthbertson in order to:

1. ensure his attendance at Court; and to

2. prevent a repetition or continuation of the offence or the commission of another offence.

26. At Defence [13] and [14], Mr Cuthbertson’s allegation of wrongful imprisonment is denied by the defendant, and Mr Cuthbertson’s allegations of its duration, before “release” from detention against liberty (Amended Statement of Claim at [13] and [14]) are put in issue.

27. Mr Cuthbertson’s first allegation of assault and trespass to his person (“assault” allegations) (Amended Statement of Claim at [15] and [16]) is pleaded as having occurred in the vestibule of the carriage. It is particularised as follows:

“(a)   McArthur grabbed the plaintiff by the shirt/body and pushed/flung him about the vestibule area;

(b)   Walker grabbed the plaintiff by the arm and pulled the plaintiff towards the rear of the carriage; and

(c)   McArthur, while still holding the plaintiff, forcefully pushed the plaintiff off the train onto the platform without consent;”

28. The Defendant wholly denies those vestibule allegations. In addition, the defence (at [15 (b)]) response is that SC McArthur and SC Walker in the vestibule and on removing Mr Cuthbertson to the platform employed reasonable force pursuant to ss 230 and 231 LEPRA.

29. Mr Cuthbertson, at Amended Statement of Claim at [17] and [18], pleads a second assault and allegation by SC McArthur and SC Walker. In relation to this assault, Mr Cuthbertson pleads the following particulars:

“(a)   The plaintiff was:

(i)   pushed;

(ii)   forced backwards;

(iii)   grabbed;

(iv)   pulled;

(v)   shoved;

(vi)   manhandled;

by either or both Police Officers; and

(vii)   threatened with OC Capsicum Spray; and

(viii)   patted down by McArthur without his consent.”

30. In relation to both assault allegations, the plaintiff pleads at Amended Statement of Claim [19]:

“If for whatever reason it is found that McArthur lawfully touched the plaintiff, it is pleaded that he assaulted the plaintiff by using excessive and/or unnecessary force on the plaintiff.”

31. The Defence to Amended Statement of Claim at [19A] denies the use of excessive or unnecessary force, and pleads that such force as was used was reasonable pursuant to the provisions of ss 230 and 231 LEPRA.

32. In further expression of response to the allegation of wrongful imprisonment, at [20B] the Defence to Amended Statement of Claim pleads that the restraint and detention by police was exercised upon reasonable grounds, believing that Mr Cuthbertson was or was about to breach the peace.

33. The Defence to Amended Statement of Claim at [20A] expands the defence response of reasonable force as follows:

“(a)   McArthur was acting in self-defence in response of the plaintiff striking McArthur.

(b)   McArthur feared for his own safety and feared a further assault from the plaintiff.

(c)   McArthur’s response to being struck by the plaintiff was reasonable in the circumstances as perceived by him.”

34. Mr Cuthbertson seeks ordinary damages, aggravated damages and exemplary damages. The Defence to Amended Statement of Claim denies those claims.

Approach - Law

35. That the plaintiff plead that SC McArthur and SC Walker used excessive and unnecessary force and that the defendant pleads that SC McArthur and SC Walker exercised reasonable force, whilst acting in good faith pursuant to police statutory powers and functions; requires that the evidence of the transaction of events between the plaintiffs and the police including the physical engagement in that course be analysed with inclusion of consideration of the perspective states of mind possessed and reasonably available to SC McArthur and SC Walker in the taking of such action as it is ultimately found they did do: State of New South Wales v Randall [2017] NSWCA 88; State of New South Wales v Bouffler [2017] NSWCA 185.

36. There is not, nor could there properly be, dispute between the parties that physical touching and restraint from liberty by SC Walker and SC McArthur would be tortious unless permitted within their common law and statutory powers or in self-defence. The burden of establishing the elements of the defence falls upon the State: State of New South Wales v Randall [2017] NSWCA 88, per Basten JA at [15].

37. The defendant was not permitted to go beyond the particulars of its defence given in its letter of further and better particulars 28 March 2011 (Exhibit B), and therefore was not permitted in relation to Mr Fletcher’s case against SC Walker to assert that his action was to quell a criminal assault upon Ms Erin Spence by Mr Fletcher. This does not exclude the defence of taking action to avoid a breach of the peace: s230 LEPRA.

38. The defendant letter of further and better particulars dated 28 March 2011 (Exhibit B) made plain that the defence to Mr Fletcher’s case was that police responded reasonably in the scenario of belligerent conduct shown in the CCTV footage. At an early point in the hearing I indicated that I understood the use of “belligerent” in the defendant’s letter of particulars to mean behaviour in the style of aggression, violence and conflict-like.

CCTV Footage

39. When opening its case, the plaintiff played the whole of the 8 passages of CCTV footage within Exhibit A. The case was conducted by both parties on the basis that the CCTV footage was the most complete and most accurate evidence of events. The CCTV footage included the whole transaction between the Senior Constables and the plaintiffs recorded by cameras showing activity on the lower deck of the carriage, in the vestibule to the carriage and on the Eastwood Station platform. Not surprisingly, after the passage of 3.5 years since the subject events occurred, all witnesses had refreshed their memory from pre-hearing viewing of the CCTV footage. During the hearing, all witnesses were referred to the CCTV footage when giving oral evidence. My observation was that all witnesses, when giving oral evidence, relied on the CCTV footage as the most accurate record of what occurred. The CCTV footage is silent and therefore evidence of what was said, was contained only in the oral evidence.

39. It is open to the Court to arrive at observations of movement and action of each of the Senior Constables and of Messrs Fletcher and Cuthbertson from the CCTV footage (Exhibit A). That CCTV evidence shows events without the subjective assessment and exercise of judgement and thought of the participants of the events, at the time depicted: Blacktown City Council v Hocking [2008] NSWCA 144 per Spiegelman CJ at [4]. This is particularly so in this case because of the following factors:

1. the perceptions of each of Messrs Cuthbertson and Fletcher must have been somewhat affected by their being under the influence of alcohol;

2. the weakening of individual recollections of witnesses over the 3.5 years between the incident and the trial (acknowledging that there was an intervening criminal proceedings in 2014);

3. each witness gave evidence strongly influenced by refreshment of memory by reviewing the CCTV footage in preparation for and during the trial; and

4. the hearing proceeded on the agreed basis that the whole of the CCTV footage be shown to the Court, and admitted into evidence without objection, and was referred to by the defendant in its letter of 28 March 2017 by way of provision of further and better particulars.

41. In Blacktown City Council v Hocking at [7], Spiegelman CJ said “It is not entirely clear in what circumstances photographs can be used as direct evidence, as distinct from explicating evidence otherwise given”; and at [13], the Chief Justice preferred the statement of Young J in Beaton v McDivitt (1985) 13 NSWLR 134 at 142-143, that it is available to the Court to treat “photographs as evidence and not merely as material to understand the evidence”.    

42. This approach, which I adopt, is not like that criticised by Tobias JA in Blacktown City Council v Hocking where his Honour considered the trial Judge to have made findings based upon her interpretation of photographs of a Telstra pit in the absence of expert evidence as to what the photographs depicted and what conclusions could be drawn from them (at [86]-[88], [145]-[172] and particularly at [170]).

43. During the hearing it was acknowledge by Senior Counsel for the parties and myself that each of us would consider the CCTV footage in Exhibit A when away from the Courtroom. In that process there was nothing to be viewed which was not evidence in the open forum and the forensic contest. In my view, for all these reasons, the CCTV footage contains evidence which the Court is free to consider in determination of the factual contest: see Kassem v Crossley & Anor; Kassem v Kraym & Anor [2000] NSWCA 276.

44. Whilst bearing in mind that the CCTV record omits what was said by Mr Cuthbertson, Mr Fletcher, SC Walker, and SC McArthur, the CCTV footage is valuable and objective evidence depicting the context in which those actions of the police officers complained of occurred and in which the police officers formed their states of mind at the times of taking action in claimed exercise of their authority.

45. In my opinion, it would be unreal to assess the exercise of discretion to use force by the Senior Constables and to detain each of the plaintiffs by focusing only on the filmed evidence of the transaction. To do so would rob from consideration the required appreciation of the police officers’ perceptions of suspicion and belief drawn from the course of the transaction up to the time upon which the officers determined to take each action complained of.

46. In oral evidence, the officers described the conduct of Messrs Fletcher and Cuthbertson with terms such as “erratic” and “aggressive”.

47. The CCTV footage is of particular value in three ways:

1. firstly, the film permits close examination of important moments of physical confrontation, much like replay, including at slow motion, of a sporting event;

2. secondly, the film provides a visual record of behaviour of the participants and therefore visual evidence of events known to SC McArthur and SC Walker at the times of their respective exercises of power including of arrest, detention and use of force; and

3. the visual record displays the physical environment to be taken into account when determining between conflicting accounts of what was said.

48. The CCTV footage is silent and therefore what was said between participants must be determined on the oral evidence. In this regard, the credibility and reliability of witnesses is important in the Court’s preference for evidence of one witness over another where the evidence of what was said was not consistent. This determination is assisted by observation of physical movement available on CCTV footage. For example, the hunching of shoulders and projection of chest and forceful pointing of arm, as well as the expression of face and movement of face, neck and mouth can be observed to indicate physical effort employed when things were said, and the body language of aggression or pacificity and other physically observable mannerisms in between.  

49. I agree with the submission at [14] of the defendant’s Written Submissions dated 18 May 2017 which reads:

“However, it is important not to lose sight of the fact that the whole of the relevant events occurred during a period of approximately 2 minutes in the vestibule of the train, and approximately 13 minutes and 30 seconds on the platform of Eastwood Railway Station, and the physical interaction between the officers and the plaintiffs was limited to approximately 17 seconds in the vestibule of the train, and periods of 43 seconds, 38 seconds and 49 seconds on the platform of Eastwood Railway Station.”

50. At the outset, my general observation is that the CCTV footage causes me to observe that the physical confrontation between the police officers and the plaintiffs occurred first at the time when the train was coming to a complete stop at Eastwood Railway Station and the doors were opening. At that point SC McArthur grabbed Mr Cuthbertson by the arm when Mr Cuthbertson raised his right arm and attempted to move toward the open door and the outside.

51. From that moment, the body language of the transaction is generally heated between both plaintiffs and both police officers. Mr Fletcher’s then girlfriend, Ms Spence, who I will refer to by her first name “Erin”, as did the witnesses (the young woman wearing a white skirt) inserted herself into the transaction between the four principal players, and in particular engaged physically with Mr Fletcher.

52. I accept, as was the evidence, that the Senior Constables perceived a risk of injury to police and to others in the environment of two adult males, both under the influence of alcohol, when there were only two police officers present. The CCTV footage visualises that physical equation.

Lawful Action by Police

53. The plaintiffs’ allegations must be considered in context. Review in the Courtroom is conducted in a leisurely atmosphere with time for contemplation of action which was not available to the Senior Constables on 8 September 2013. Any fair review must be free of unreal, retrospective criticisms of what an arresting constable might or might not have done or believed in the circumstances: Macintosh v Webster (1980) 43 FLR 112 at 123; Woodley v Boyd [2001] NSWCA 35 at [37] per Heydon JA, Davies and Foster AJJA agreeing.

54. In Carter v Walker (2010) 32 VR 1 the Victorian Court of Appeal observed at [142] (citations omitted):

“Police officers are bound to prevent breaches of the peace that they reasonably apprehend. In order to prevent a breach of the peace, police officers are entitled to exercise reasonable force. In evaluating the reasonableness of police conduct, ‘the matter must be judged by reference to the pressure of events and the agony of the moment, not by reference to hindsight’. Further, a police officer may use such force, not disproportionate to the object, as he believes on reasonable grounds to be necessary to effect, or assist in effecting, the lawful arrest of a person committing, or suspected of committing, an offence.”

55. Police may not act arbitrarily, capriciously, or manifestly unreasonably in the agony of the moment. The point is, however, that it is the policemen’s perception in the environment in which action is taken which is the subject of inquiry. It is not for the Court, with a sophisticated opportunity assisted by representations of counsel and complaints given in oral evidence by witnesses, all having over extensive time formed opinions of events; to apply an unreal measure of what was reasonable on the basis of the suspicions and belief of the policemen in the moments of the events: NSW v Randall [2017] NSWCA 68 at [22], [28], [39] to [40], [64] and [101].

56. Only events up to the time of each subject police officer’s action are relevant to the inquiry concerning that action.

57. In order for arrest of a person without a warrant to be lawful pursuant to s 99 (2) LEPRA, the arresting police officer must hold a suspicion based on reasonable grounds that the person has committed an offence.

58. Pursuant to s 99 (3) LEPRA, a police officer must not arrest without a warrant unless the police officer holds a suspicion, based on reasonable grounds, that it is necessary to arrest the person (in this case) to ensure the appearance of the person before a Court in respect to the offence (s 99 (3) (a) LEPRA), or to prevent a repetition or continuation of the offence or the commission of another offence (s 99 (3) (b)): State of New South Wales v Hunt (2014) 85 NSWLR 226; [2014] NSWCA 47 at [26]; Hyder v The Commonwealth (2012) 217 A Crim R 571; [2012] NSWCA 336 at [15] to [18] and [90]; Director of Public Prosecutions (NSW) v Mathews-Hunter [2014] NSWCA 843 at [54].

59. Civil liberty being preciously protected in our society, the necessity required by s 99 (3) LEPRA is met if the arresting police officer suspects on reasonable grounds that arrest needed to be actioned or could not be dispensed with in order to ensure achievement of one or more of the purposes listed in that sub-section.

60. The arresting officer’s exercise of his discretion to arrest must be within these parameters, otherwise the arrest will be unlawful: Zavarinos v State of New South Wales [2004] NSWCA 320 at [24].

The Defendant’s Onus

61. The parties agreed that the defendant bore the onus of proof that the arrest, touching, and detention of each of Messrs Fletcher and Cuthbertson was lawful: Zavarinos v State of New South Wales [2004] NSWCA 320 at [12].

62. The relevant statutory provisions upon which the defendant relies, as at the date of the events, provided as follows:

Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA)

99    Power of police officers to arrest without warrant

(1)    A police officer may, without a warrant, arrest a person if:

(a)    the person is in the act of committing an offence under any Act or statutory instrument, or

(b)    the person has just committed any such offence, or

(c)    the person has committed a serious indictable offence for which the person has not been tried.

(2)    A police officer may, without a warrant, arrest a person if the police officer suspects on reasonable grounds that the person has committed an offence under any Act or statutory instrument.

(3)    A police officer must not arrest a person for the purpose of taking proceedings for an offence against the person unless the police officer suspects on reasonable grounds that it is necessary to arrest the person to achieve one or more of the following purposes:

(a)    to ensure the appearance of the person before a court in respect of the offence,

(b)    to prevent a repetition or continuation of the offence or the commission of another offence,

(c)    …,

(d)    …,

(e)    …,

(f)    …

(4)    A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person, and any property found on the person, before an authorised officer to be dealt with according to law

230    Use of force generally by police officers

It is lawful for a police officer exercising a function under this Act or any other Act or law in relation to an individual or a thing, and anyone helping the police officer, to use such force as is reasonably necessary to exercise the function

231    Use of force in making an arrest

A police officer or other person who exercises a power to arrest another person may use such force as is reasonably necessary to make the arrest or to prevent the escape of the person after arrest.

Police Act 1990

6    Mission and functions of NSW Police Force

(1)    The mission of the NSW Police Force is to work with the community to reduce violence, crime and fear.

(2)    The NSW Police Force has the following functions:

(a)    to provide police services for New South Wales,

(b)    to exercise any other function conferred on it by or under this or any other Act,

(c)    to do anything necessary for, or incidental to, the exercise of its functions.

(3)    In this section "police services" includes:

(a)    services by way of prevention and detection of crime, and

(b)    the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way, and

(c)    the provision of essential services in emergencies, and

(d)    any other service prescribed by the regulations.

(4)    A reference in this section to the functions of the NSW Police Force includes a reference to the functions of members of the NSW Police Force.

(5)    … 

(6) Nothing in this section confers on the NSW Police Force a power to provide a police service in a way that is inconsistent with any provisions applicable to police officers under the LEPRA.

Passenger Transport Regulation 2007

(provided in Preliminaries)

Civil Liability Act 2002 – Self-Defence at Common Law

52    (1)   A person does not incur a liability to which this Part applies arising from any conduct of the person carried out in self-defence, but only if the conduct to which the person was responding:

(a)   was unlawful, or

(b)   …

(2)   A person carries out conduct in self-defence if and only if the person believes the conduct is necessary:

(a)   to defend himself or herself or another person, or

(b)   to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or

(c)   …, or

(d)   …,

and the conduct is a reasonable response in the circumstances as or she perceives them.

(3)   …

63. Section 53 CLA provides that where the defendant is successful in the subjective “belief” limb but not in regard to the objective test, “reasonable response” limb of s 52, limited damages may be available where the Court is satisfied that the circumstances of the case are exceptional, and in those circumstances, a failure to award damages would be harsh and unjust.

64. In Prior v Mole [2017] HCA 10, the High Court considered the conferral of power under s128 (1) Police Administration Act (NT) on a member of the Police Force of the Northern Territory to apprehend without warrant a person who the police officer has reasonable grounds for believing is intoxicated. The power was further conditioned on the police officer having reasonable grounds for believing that because of the person’s intoxication, the person was unable to care for themself.

65. In that case, in the mid-afternoon of New Year’s Eve 2013, Mr Prior was apprehended under s128 (1) by a police officer because the officer believed that Mr Prior was intoxicated in a public place, and because of his intoxication, that Mr Prior might intimidate, alarm or cause substantial annoyance to people and that it was likely he would commit the offence of drinking in a regulated place or disorderly behaviour.

66. In the present case the defence must satisfy the Court that SC McArthur when effecting arrest, held the suspicion that Mr Cuthbertson had committed an offence (s 99(2) LEPRA). SC McArthur could not proceed to arrest without warrant unless at that time he also held the suspicion that it was necessary to do so for the stated purposes in s 99 (3) (a) or (b). The facts and circumstances known to the police officer must, in order for the defence to succeed, have constituted objectively reasonable grounds for those suspicions.

67. In Prior v Mole (supra), the High Court applied the description of the state of mind of “belief” elucidated in George v Rockett (1990) 170 CLR 104; [1990] HCA 26. It is not irrational or unreasonable for a police officer in arriving at his belief when predicting what a person may do or continue to do, to take into account his experience of observing patterns of human behaviour: Prior v Mole (supra) per Keifel and Bell JJ at [18] and [20]. The same rationale must apply to the police officer arriving at his “suspicion”.

68. “Belief” is more than “suspicion”. They are different states of mind: George v Rockett [1990] HCA 26 at [13].

69. “Suspicion” is a state of mind of conjecture or surmise where proof is lacking. Facts which would reasonably ground a suspicion may be quite insufficient to reasonably ground a belief. Yet a suspicion that something exists or that something occurred is more than a mere idle wondering whether or not it exists or occurred, it is a positive feeling of actual apprehension or fear that something exists or occurred: George v Rockett (1990) 170 CLR 104; [1990] HCA 26 at [14];

70. In Prior v Mole, Gageler J at [24] explained that the objective circumstances sufficient to show a reason to believe something need to point to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists. He said that the assent of belief is given on more slender evidence than proof. “Belief” is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of mind may, depending on the circumstances, leave something to surmise or conjecture. His Honour included in the relevant circumstances, information provided to the police officer by someone else.

71. In the first instance, the Court looks to the mind of the member of the police force who purported to exercise the power and answers the questions:

1. what was his suspicion or belief?; and

2. what were the objective circumstances by reference to which he formed that suspicion or belief?; and

3. did those objective circumstances provide a sufficient foundation for a reasonable person to form the requisite state of mind, being suspicion or belief, respectively?

applying to this case the approach of Gageler J in Prior v Mole (supra) at [25] to [27].

72. In order for the defendant to succeed in the defences of self-defence, pursuant to s 52 CLA and at common law, conduct of the plaintiffs to which the Senior Constables responded must have been unlawful, and if it was; then, the test is whether police believed, on reasonable grounds, that it was necessary in self-defence to do what they did. The above definition of “belief” found in George v Rockett (supra) is the standard of the subjective state of mind required for by the defence. The proportionality of the police officer’s response to the harm threatened is a factor to be taken into account in the application of that test, but it is not inherently determinative.

73. The question, whether or not the force used was both necessary and proportionate to the threat faced, must be determined in context of the environment in which the exercise of power occurred. State of New South Wales v McMaster (supra) involved consideration of the police officer’s perception when reacting in a critical incident scenario. Applying George v Rockett (supra) the Court of Appeal observed that in order to make out the defence, “it is not necessary that the objective circumstances establish that the subject matter, … the threat or likelihood of harm to [the police officer or other person being protected by the police officer], in fact existed. The relevant belief may be based on surmise or conjecture”: State of New South Wales v McMaster (supra) at [183].

72. In Zecevic v Director of Public Prosecutions (Vic.) (1987) 162 CLR 645; [1987] HCA 26, the High Court when commenting upon the Judge’s direction to a jury in a criminal proceeding; observed the danger of excessively intense focus in an abstract manner of what might be considered an overly microscopic identification of evidence of actions in the subject matter of the struggle out of which the self-defence plea arises.

73. Throughout this hearing, I regularly referred the parties to my concern that the “flood” of information available by the CCTV footage could, when applied with too precise an analysis, distract from a real interpretation of the events shown.

74. Without meaning to trivialize the importance of these issues, illustration of the point is found in post incident replay of review of referee decisions during sports broadcasting. It is plain from the above authorities that the Senior Constables’ states of mind are to be reviewed on the basis of their perceptions in the agony of the moment. Like the on-field sports referee, they did not have the benefit of slow motion replay on CCTV footage.

75. At [18], the High Court in Zecevic v Director of Public Prosecutions (Vic.) (supra) said:

“When upon the evidence the question of self-defence arises, the trial Judge should in his charge to the jury place the question in its factual setting, identifying those considerations which may assist the jury to reach its conclusion. In attempting to identify those considerations in any abstract manner here, there is a danger of appearing to elevate matters of evidence to rules of law. For example, it will in many cases be appropriate for a jury to be told that, in determining whether the accused believed that his actions were necessary in order to defend himself and whether he held that belief on reasonable grounds, it should consider whether the force used by the accused was proportionate to the threat offered.

However, the whole of the circumstances should be considered, of which the degree of force used may be only part. There is no rule which dictates the use which the jury must make of the evidence and the ultimate question is for it alone. The trial Judge should also offer such assistance by way of comment as is called for in the particular case. No doubt, it will often also be desirable to remind the jury that in the context of self-defence, it should approach its task in a practical manner and without undue nicety, giving proper weight to the predicament of the accused which may have afforded little, if any, opportunity for calm deliberation or detached reflection.”

78. In the Court of Appeal in State of New South Wales v McMaster (supra), Beazley P at [166] held that the formulation by the High Court in Zecevic v Director of Public Prosecutions (Vic.) (supra) was equally applicable in civil cases, and was in apparent favour of the desirability of approaching a decision about self-defence in that practical manner. The President adopted the State’s submission (at [156]) of a two-stage test in determination of a self-defence argument, the first stage involving subjective requirements and the second stage involving objective requirements, as follows:

“(1)   Did the person believe subjectively that it was necessary to do what he did in self-defence?

(2)   If the person did so believe, did he do so on reasonable grounds?”

79. As to the second limb, with reference to Zecevic v Director of Public Prosecutions (Vic.) (supra), the President said that the test required that the defendant’s belief be reasonably held according to the definition of belief set out above from George v Rockett; and Prior v Mole (supra).

80. Following the President’s adoption of the principles for determination of the question of self-defence to be applied in civil cases; relevant for the present case is the further passage of the High Court judgment extracted from [19]:

“Where an accused person raising a plea of self-defence was the original aggressor and induced or provoked the assault against which he claims the right to defend himself, it will be for the jury to consider whether the original aggression had ceased so as to have enabled the accused to form a belief, upon reasonable grounds, that his actions were necessary in self-defence. For this purpose, it will be relevant to consider the extent to which the accused declined further conflict and quit the use of force or retreated from it, these being matters which may bear upon the nature of the occasion and the use which the accused made of it. Indeed, even in circumstances in which the accused was not the original aggressor, retreat in the face of a threat of violence before resort to force may be relevant to the belief of the accused or the reasonableness of the grounds upon which the accused based his belief. There is, however, no longer any rule that the accused must have retreated as far as possible before attempting to defend himself. It is a circumstance to be considered with all the others in determining whether the accused believed upon reasonable grounds that what he did was necessary in self-defence [authority omitted].”

Reliability of Witnesses

81. The testimony of the witnesses in Court provided competing interpretations of the played CCTV evidence, Exhibit A. The case was conducted on this basis in that both parties required the whole of the CCTV footage to be shown at the start of the hearing. Each of the witnesses had refreshed their memory from viewing the CCTV footage before giving their oral evidence in circumstances where the events preceded the hearing by 3.5 years, albeit there had been criminal proceedings in 2014. Not infrequently when required to comment on events shown in the CCTV footage, witnesses had to be asked whether they were merely interpreting the film or giving evidence of an actual recollection following refreshment of memory from the film. At no time did a witness give evidence that the CCTV footage was not accurate or did not accurately show an event about which they gave evidence. Of course, the CCTV footage was silent and therefore provided no record of evidence of speech.

Mr Fletcher as a Witness

82. Mr Fletcher’s poor memory was a striking feature of his presentation as a witness. The extent of his inability to recall events was not restricted to the events of the subject incident, 3.5 years in the past. He was unable to recall with reliable accuracy much more recent events. He knew that he had consulted orthopaedic specialist, Dr Ellis, on referral by his solicitor, on one occasion. He was unsure as to whether that occasion was in 2015 or in 2017: Transcript Day 2, page 107, lines 26 to 42. In fact, he consulted Dr Ellis in 2015. He could not recall what was said during the consultation. Dr Ellis was the only medico-legal doctor he attended for the purposes of the case, and plainly the consultation post-dated the subject events by 2 years. Mr Fletcher’s inability to recall whether he had consulted Dr Ellis only a few months or 1.5 years before the hearing was striking, but not out of keeping with his general inability of recall.

83. Mr Fletcher could not recall being treated at the Emergency Department of Gosford Hospital for a fracture of his 5th metacarpal resulting from him having punched a wall in March 2009. When referred to the clinical notes of that treatment, he accepted that he had punched the wall, but still had no recall of those events. Despite the obvious importance to him of the CCTV footage for his refreshment of memory, he was unable to recall whether or not he had viewed the CCTV footage prior to the listing for hearing of the matter in October 2016 (which hearing was vacated because the video could not be shown in the courtroom), only six months before this subject hearing: Transcript Day 3, page 140, line 1 to page 141, line 17.

84. Whilst Mr Fletcher’s claim for damages is in great part for his claimed on-going impairment of use of his right wrist consequent of it being fractured in his struglle with SC Walker, he described the mechanism of injury in October 2015 to Dr Ellis as:

“… was in the process of being arrested, both hands and wrists were behind his back and behind his neck, and he experienced pain in both, particularly the right side.” (bold added);

whereas the CCTV footage plainly shows that Mr Fletcher’s wrists were never held behind his neck. His recollection of perhaps the most central facts of his case was inaccurate when speaking to Dr Ellis only 2 years after the events.

85. In his case on damages relating to impairment for work, whereas in evidence in chief he said that he did not recall returning to work before removal of the plaster from his right wrist on 14 October 2013 (Transcript Day 1, page 42, lines 15 to 42); on being shown records of his employer during cross-examination, he agreed that he returned to work on 16 September 2013, only one week after the injury. When giving evidence in chief concerning a back injury suffered on 21 February 2017, only 2 months before the hearing, Mr Fletcher was unable to give a precise answer as to how long he had off work. The best that he could do was “about 3 or 4 weeks after” the injury he returned to “just a lot of light duties”: Transcript Day 1, page 53, line 30 to page 54, line 7.

86. As briefly referred to above, in chief Mr Fletcher gave evidence that SC McArthur had said to him “That’s it mate, you’re off the fucking train”. In cross-examination, Mr Fletcher first conceded that he could not recall the words spoken by SC McArthur, and subsequently conceded that by giving evidence that SC McArthur used that expletive, without any recollection of him having done so, he had lied: Transcript Day 1, page 34, lines 20 to 3; Transcript Day 3, page 127, line 5 to page 129, line 41.

87. Mr Fletcher in fact conceded that he was unable to recall most of what was said in the conversations that night at Transcript Day 2, pages 126 to 127, line 11. At Transcript Day 2, page 126, line 16, he said “I don’t recall many words said that night, honestly”.

88. On the whole, I cannot accept his evidence as reliable as to the spoken part of the transaction between the plaintiffs and the police.

89. I formed the view that Mr Fletcher possessed little actual recollection of events, independent of providing an interpretation of that which he saw on the CCTV footage. In particular, his recollection of what was said was so unreliable that it cannot be accepted whenever there is contrary evidence. I did not consider him to be deliberately untruthful. In my view, his answers showed him to be in a confusion of mind resulting from lack of ability to recall. Indeed, I formed the view that he was not within himself confident as to what facts he did recall, and what facts he was reconstructing following reference to the CCTV footage.

Mr Cuthbertson as a Witness

90. Mr Cuthbertson candidly conceded that he had difficulty recalling the events both because of the passage of time and because he was under the influence of alcohol at the time of the subject events: Transcript Day 6, page 310, lines 5 to 37.

91. Mr Cuthbertson gave evidence of his recollection of conversation in the following terms: [Transcript Day 5, page 280, lines 11 to 26]

Q.   Is it fair to say that you don't have a very good recollection now of words spoken in the carriage of the train on the evening of 8 September 2013?

A.   I do recall some significant words that were said.  But not all.

Q.   You don't have a recollection, do you, of the precise words used by Senior Constable Walker when Mr Fletcher was given the fine for drinking on the train?

A.   No, I don't recall.

Q.   Do you recall that Mr Fletcher provided some identification to Senior Constable Walker, while he was still seated in the carriage on the train?

A.    I don't recall him doing so.  But I imagine he would have.

Q.   And Senior Constable Walker told Mr Fletcher, didn't he, that he'd be getting an infringement notice in the mail, or words to that effect?

A.   Yes, I can imagine that, yep.

92. Mr Cuthbertson’s use of “significant” in regard to his belief in his recall is to be weighed in the affectation of accuracy of human recollection over the passage of time before giving evidence (allowing for the intervening criminal proceedings in 2014), the effect of the influence of alcohol under which he was functioning at the time of the events, and his tendency in evidence, as I closely observed him, to be reconstructing from a diminished memory. I was concerned that he gave evidence with a commitment to a narrative, as he over 3.5 years has consciously or subconsciously constructed it. Mr Cuthbertson was shown to exaggerate in his description of force used by SC McArthur against him. I will accord caution to acceptance of his evidence where it is inconsistent with other evidence.

93. The following passage shows weakness of recollection, answering that he did not recall matters which would be against the interests of his and Mr Fletcher’s cases and, again, a concession of agreement with use of “imagine” when the question fitted his narrative. I set out the transcript at Day 5, page 281, lines 1 to 49:

Q.   How can you say, sitting here today, that Mr Fletcher didn't say the word "fuck" when speaking to Senior Constable Walker, just after Senior Constable Walker had told him he'd be getting an infringement notice?

A.   Because I recall that me and Daniel were in the conversation, not Daniel and Mr McArthur.

Q.   I put to you that in addition to Mr Fletcher swearing in his conversation with you, he was also swearing and saying the word "fuck" in his conversation with Senior Constable Walker?

A.   No, I don't recall that at all.

Q.   I suggest to you that when Mr Fletcher was saying the word "fuck", he was doing so in a loud voice?

A.   No.  Having a conversation, like I said, me and him were in general conversation, and they were there giving him the ticket.

Q.   What's a general conversation, Mr Cuthbertson?

A.   Something that you have with your friend.  Talking about something, an event.  General conversation.

Q.   What was your general conversation with Mr Fletcher about, just after Senior Constable Walker had told him that he'd be getting a fine for drinking?

A.   I don't remember the conversation, what it was about.

Q.   You don't really remember, do you, that you were having a general conversation, as you call it, at all?

A.   I do remember having a conversation with him, yes.

Q.   You said in your evidence‑in‑chief that Mr Fletcher was asked by the officers to stop swearing, several times, do you recall giving evidence to that effect?

A.   Yes.

Q.   It was Senior Constable Walker who asked him several times to stop swearing, wasn't it?

A.   I don't recall who it was.

Q.   In addition to that, Senior Constable McArthur said to Mr Fletcher, words to the effect of, "Mate, keep the language down", didn't he?

A.   I'm not too sure.

Q.    Senior Constable Walker told Mr Fletcher that he could also get a fine for swearing, didn't he?

A.   I don't remember that.

Q.   I suggest to you that after Senior Constable Walker told Mr Fletcher that, Mr Fletcher continued to swear, and use the word "fuck"?

A.   I imagine he did, because he did get escorted off the train for swearing.

94. Mr Cuthbertson gave unreliable evidence describing events in the vestibule including his struggle with SC McArthur in the vestibule. This was a significant event. It was the time of action related to the first arrest for which he sues. It was the first physical engagement between the Senior Constables and the plaintiffs. He sued for assault in the struggle.

95. The CCTV footage, plainly shows that the energy involved in Mr Cuthbertson being swung when restrained by SC McArthur in the vestibule, following the first arrest, came from his pulling away. Senior Counsel for the plaintiffs, in final submissions, agreed that when SC McArthur grabbed hold of Mr Cuthbertson’s hand, Mr Cuthbertson was side on to the officer and the door, stepping off his right leg, and with his hip and weight toward the opening door, with his left leg raised in the stride to get out. Senior Counsel for the plaintiff agreed that the informal but proper term was that Mr Cuthbertson was attempting to “scarper” out the door.

96. Anchored by SC McArthur’s grip, Mr Cuthbertson’s momentum swung him back into the vestibule. It is apparent when the CCTV footage is paused at about the moment of his rearward collision with SC Walker. It can be seen that his body weight is leaning back against the restraint of SC McArthur. After that, SC McArthur follows him and together they walk further into the vestibule before he is, with restraint and pushing, removed from the train by SC McArthur.

97. During cross-examination on Day 5, between Transcript pages 286 and 289, Mr Cuthbertson gave answers immediately after his having been shown that CCTV footage. His answers are inconsistent with that footage, as follows:

• At Transcript page 286, line 8, he says that he was not upset with Mr Fletcher being removed from the train yet, in the vestibule and within a few seconds of the first arrest, it can be seen that he raised his right arm to push away SC McArthur’s hand which happened to be in front of him only because SC McArthur was gesturing during conversation with Mr Fletcher (that it was only a gesture, Mr Cuthbertson conceded at Transcript page 285, line 45). Only a few questions before, Mr Cuthbertson had denied brushing away SC McArthur’s hand saying “That did not happen, no”: Transcript page 285, lines 21 to 27. The brushing away of SC McArthur’s hand appears offensive in the CCTV footage, at least in the sense of discourteous or rude, and perhaps belligerent. Immediately afterward, Mr Cuthbertson placed his right hand on his hip so that his elbow is pointed at SC McArthur. The vision is inconsistent with his claim that he was not upset. Indeed, in my opinion, his body language displays an oppositional attitude which was visible to the Senior Constables.

• At Transcript page 286, lines 9 to 14, Mr Cuthbertson denied that he was even thinking about the inconvenience of getting off the train at Eastwood Railway Station to accompany Mr Fletcher. Plainly at that early hour of the morning, it would be normal for someone to regret and to be thinking about the inconvenience of having to get off at the station and wait for the next train to the Central Coast.

• Having immediately before being shown the CCTV footage of the first arrest and ensuing struggle in the vestibule, and being directed to answer questions about what he actually remembered, not about what he had just seen (Transcript page 288, line 45), Mr Cuthbertson repeatedly denied that he pulled away from SC McArthur. Giving that narrative, against what plainly the CCTV footage shows to have occurred; he maintained in his answers expressions which indicated to me that he was answering in his narrative as opposed to either his recollection or that which he from the CCTV footage knew to be correct. He answered:

• at Transcript page 288, line 49:

“I wouldn’t have pulled away, no. I didn’t pull away.”

at Transcript page 289, line 4:

“Yeah. I was under arrest, I wasn’t pulling away.”

and he gave the following answer at Day 5, Transcript page 289, lines 6 to 9:

Q.   I suggest to you that you did pull away, and you pulled in the direction of the opening carriage doors?

A.   That didn't happen.

• In this way, Mr Cuthbertson attempted to exaggerate the force applied by SC McArthur by refusing to acknowledge his own pulling.

98. A most central component of Mr Cuthbertson’s complaints against the police concerned his being lifted from a sitting position on the platform. This event in the course of the transaction occurred after he had joined Mr Fletcher who was sitting on the platform. Previously the Senior Constables had separated Mr Fletcher and Mr Cuthbertson. SC Walker was dealing with Mr Fletcher and SC McArthur was dealing with Mr Cuthbertson.

99. On being asked by SC Walker to stand up and move away from Mr Fletcher, Mr Cuthbertson put his arm around Mr Fletcher.

98. The CCTV footage plainly shows that SC McArthur reached down with his right arm and held Mr Cuthbertson by his left upper arm (see Exhibits A5 and A6). Mr Cuthbertson struggled against SC McArthur’s effort to remove him from his seated position to place him, away from Fletcher, on a seat at the base of the stanchion, from which he had moved when under SC McArthur’s control beforehand.

99. Mr Cuthbertson gave evidence that SC McArthur had lifted him under each armpit and had pinched his flesh such as to leave the marks shown in the photographs contained in Exhibit T. Mr Cuthbertson’s evidence in chief was as follows (Transcript Day 5, page 270, line 9 to line 30):

Q.   Before that happened, did Senior Constable McArthur say anything to you?

A.   Not that I can recall, no.

Q.   You said, by grabbing you by the arm, am I correct about that?

A.   Yep.

Q.   In what fashion?

A.   Well, he grabbed me, under both of my arms, by my skin, through my shirt.

Q.   "By your skin"?

A.   Yeah.

Q.   You're indicating with your hands, is that how it happened?

A.   Yeah, he had me like that, but it was on my skin, not around my arm, if that makes sense.

Q.   As you've given that evidence, you've indicated closing your fists?

A.   Yes.   That's how he would have had me, like that and lifting me straight up, by my skin.

Q.   How did that feel?

A.   No, that hurt a lot.  I was bruised and scarred from that

.

and during cross-examination at Transcript Day 5, page 302, line 10 to page 303, line 7:

Q.   You gave some evidence earlier today about Senior Constable McArthur lifting you up whilst you were sitting on the ground next to Mr Fletcher, do you recall giving evidence about that?

A.   Yes.

Q.   I suggest to you that Senior Constable McArthur put one of his hands under your left arm in order to lift you up?

A.   Yes, and he put his other hand under my right arm as well.

Q.   I suggest to you that Senior Constable McArthur used only one hand under your left arm to lift you up?

A.   That is not what happened, no.

Q.   I put to you that Senior Constable McArthur did not lift you or grab you by the skin?

A.   He lifted me up by the skin.

Q.   I am putting to you that he simply slid his hand under your left armpit and lifted you without grabbing your skin?

A.   That is not what happened.

Q.   Once you were standing up, you started thrashing your arms around, didn't you?

A.   No.

HIS HONOUR

Q.   What was that, a yes or no?

A.   No.

WILLIAMS

Q.   You started moving your arms around, didn't you, Mr Cuthbertson?

A.   Yes, they were moving.

Q.   Moving them in a vigorous manner?

A.   I was getting thrown around again, yes, so they were being moved around quite vigorously.

Q.   Mr Cuthbertson, I suggest you were not getting thrown around at this point in time, you had simply been lifted from a seated position to a standing position?

A.   I was lifted by my skin, under my arm.

Q.   As I put to you earlier, you were not lifted by your skin, you were lifted by the use of one hand by Senior Constable McArthur pressing under your left armpit?

A.   That is incorrect.

102. Exhibit T photographs show bruising only of the right upper arm and armpit. The CCTV footage shows SC McArthur only taking hold of the left arm. There is no contact between SC McArthur and Mr Cuthbertson’s right arm. The CCTV footage in Exhibits A5 and A6 does not show a gripped holding-on of Mr Cuthbertson’s left upper arm by SC McArthur.

103. On the whole, having carefully observed Mr Cuthbertson give his evidence, I found his testimony to be so unreliable as to be not accepted unless corroborated by other evidence. Mr Cuthbertson gave exaggerated evidence of forceful action by SC McArthur upon him.

Senior Constable McArthur as a Witness

104. SC McArthur gave evidence with control and care displaying his experience with giving evidence in Court. I observed him carefully in order to differentiate between technique learned through experience on the one hand and veracity on the other. I also observed him carefully during cross-examination for display of demeanour such as anger or loss of control. During an appropriately robust cross-examination, I observed SC McArthur to maintain his composure.

105. SC McArthur properly conceded that he was an experienced Court witness. He openly gave evidence of having viewed the CCTV footage repeatedly, as opportunity to do so was available to him during his police work, in preparation for the hearing.

106. SC McArthur was willing to make the appropriate concession that although he voiced arrest for assault upon him to Mr Cuthbertson in the vestibule of the train; subsequently when Messrs Fletcher and Cuthbertson were on the platform, he pointed and told Mr Cuthbertson to leave. Later, when on the platform with SC Walker, SC McArthur voiced arrest to Mr Cuthbertson a second time, for the assault in the vestibule. The common ground was; therefore, that between the first and second arrest, SC McArthur told Mr Cuthbertson that he was free to leave.

107. The CCTV being silent, it would have been available to him not to give that evidence of oral direction interrupting the two occasions of arrest. As an experienced police officer, it is likely that he was aware of the prohibition against arrest without a warrant unless necessary under s 99(3) LEPRA.

108. SC McArthur’s evidence was that he did not obtain Mr Cuthbertson’s identification details until a later time upon the platform than that invitation to leave occurring between the two events of arrest. Accordingly, SC McArthur’s evidence conceded that his direction that Mr McArthur was free to leave, was given at a time when he did not have details upon which to issue a Court Attendance Notice. Had Mr Cuthbertson departed at that time, he would have been free of prosecution.

109. It was therefore a substantial concession, in my opinion. The relevant evidence during cross-examination appears in a passage as follows: (Transcript Day 9, page 507 to 508 line 28)

Q.   When you got off the train for the second time, you have said that you told Mr Cuthbertson he was under arrest for assault, didn't you?

A.   Assault police, yes.

Q.   It was your intention, at that time, to get this man's details, so you could forward him a Court attendance notice, that's right, isn't it?

A.   Yes, I don't know which way it was going to go at that stage, but that was going to be the most likely course.

Q.   What do you mean you didn't know which way?

A.   Well, I didn't know if I was going to.

Q.   Please, just let me finish the question. What do you mean by you didn't know which way it was going to go at that stage?

A.   Well, I didn't know if I would need to take him back to the police station. Or I didn't know what, if I was going to deal with him by way of future Court attendance notice.

Q.   If the man had provided his name and address to you, you were then in a position to check that, weren't you?

A.   Yes.

Q.   That in fact happened, on this night?

A.   Yes.

Q.   If you'd done that, there couldn't have been any possible reason to take him back to the police station?

A.   No.

Q.   Could there?

A.   Only if his violent behaviour continued.

Q.   Your principal objective, when you got back off the train, was to get his name and address from him, so that you could send him a Court attendance notice, wasn't it?

A.   Yes.

Q.   How as Mr Fletcher obstructing you from doing that, or impeding you in achieving that purpose?

A.   Just, well, as I said, I don't know if you like this word, but general hindrance, impeding, obstructing. Making things difficult.

Q.   From what, speaking to him?

A.   Yes.

Q.   If Mr Fletcher was doing anything, it only had the effect of moving Mr Cuthbertson away from the train, didn't it?

A.   No, he was making it, the process, very difficult.

Q.   If Mr Fletcher was impeding you, as you suggest he was, it was only because what you did, as soon as you got off the train, was to attempt to physically seize Mr Cuthbertson?

A.   No, I approached him. To arrest him.

Q.   Do you say that when you approached him, to arrest him?

A.   Yes.

Q.   You did not initially have any intention of placing your hands on the man?

A.   Not at that stage, no.

Q.   When you got off the train, your evidence to this Court, is that you did not have an intention to place your hands on the man?

A.   No. Not until, no.

Q.   That is an absolute lie, isn't it?

A.   No.

Q.   I want to suggest to you that in the face of what is depicted on that video, you are denying the undeniable?

A.   No.

Q.   The reason you're denying it, is because you realise that to get off the train, and immediately to physically seize this man, without making any attempt to get from him his name and address, what unjustifiable?

A.   I don't know, but that wasn't my intentions. My intention was to rearrest Mr Cuthbertson, and as you've said, get his name and address. However, I was obstructed, or hindered, by Mr Fletcher.

110. In closing submissions, I took counsel for the parties to the CCTV footage of SC McArthur stepping off the train with SC Walker and engaging with Mr Cuthbertson and Mr Fletcher on the platform, that being the events in relation to which the above evidence was given. In particular, I drew counsel’s attention to Mr Fletcher stepping between SC McArthur and Mr Cuthbertson as SC McArthur stepped off the train in the direction of Mr Cuthbertson, and that at that time SC McArthur’s arm is not reached out to Mr Cuthbertson, but is bent at the elbow such as to be simply across his own chest. I received no opposition from counsel to that description of the CCTV footage. The CCTV footage is therefore consistent with SC McArthur stepping off the train to approach Mr Cuthbertson to ask for his identification, and inconsistent with an immediate intention to place hands upon Mr Cuthbertson to physically seize him. The footage is Exhibit A5 at 0:50.

111. However, as will be seen later in these reasons, I reject SC McArthur’s evidence of that he was assaulted by Mr Cuthbertson in the vestibule. I do not accept SC McArthur’s evidence that Mr Cuthbertson backhanded him to the chest causing a slight sting. The CCTV evidence is to the contrary. This conclusion means that the first and second arrests were unlawful.

112. As will be seen later in these reasons, I also do not accept SC McArthur’s evidence that Mr Cuthbertson threw a closed fist punch at him. SC McArthur deployed his O.C. spray canister and pointed it at Mr Cuthbertson. His claimed justification for pointing the O.C. spray was his claim of the punch. The CCTV of precisely what Mr Cuthbertson’s waiving arms were doing is not clear. Mr Cuthbertson denied punching and I find the evidence does not support more probably than not, that Mr Cuthbertson closed his fist and punched.

113. I am concerned that SC McArthur was willing to exaggerate description of events, in order to justify his two very serious actions of what was “man-handling” Mr Cuthbertson in the vestibule and of deploying his O.C. spray canister.

Senior Constable Walker as a Witness

114. I observed SC Walker carefully as he gave his evidence, taking a cautious view of his presentation because of his obvious experience in giving evidence. I formed the view that his evidence was generally reliable. In particular, he was unrattled by a robust cross examination and most importantly; his evidence was consistent with the vision of the transaction available in Exhibit A CCTV. In relation to this latter observation, SC Walker impressed as a witness who was giving evidence according to belief of his actual recollection, refreshed as it would have been by viewing the CCTV footage.

Ticket Checking

115. Following a substantial period of video showing the approximately nine ex-party attendees on their homeward journey to the Central Coast following their attendance at their friend Gabbi’s birthday party at Kings Cross, they are seated with a few other passengers in the lower level of a double decker carriage. The group of which the plaintiffs were members are seen behaving with young adult exuberance, but not with visible recklessness or offensively. Indeed, at least a couple of other passengers joined the carriage from an earlier station without apparently taking offence to any behaviour.

116. SC Walker is first seen walking through the carriage. He asked for tickets to be produced. During this engagement, there is no apparent discord visible on the silent videos between him and the plaintiffs. Mr Fletcher’s evidence in chief was that he was politely asked for his ticket. He was wrong in his recollection that both Senior Constables were present. Thinking that his friend from junior high school, Mr Cuthbertson, had his ticket, he asked Mr Cuthbertson for it. Upon Mr Cuthbertson informing him that he did not have it, Mr Fletcher found his ticket and presented it. SC Walker then moved up the stairs and disappeared from view leaving the carriage.

117. Mr Cuthbertson appears to be animated, pointing, gesticulating and talking. This was his performance in the carriage when the police were absent and when the police were present.

Second Police Attendance – Mr Fletcher Drinking Alcohol

118. Mr Fletcher’s evidence in chief is that when he saw the police re-entering the carriage, he put down the can of alcohol he was holding. In fact, only SC Walker re-visited the carriage. SC McArthur stood on the stairs between the lower compartment of the carriage and the vestibule. He was behind SC Walker. He could hear what was said. Both plaintiffs had been drinking alcohol on the train. Police only saw Mr Fletcher drinking alcohol.

119. SC Walker informed Mr Fletcher that he would be breached for drinking alcohol on the train. It is apparent from Mr Fletcher’s evidence that he produced some form of identification from which SC Walker took down his details.

120. During SC Walker taking down his details, Mr Fletcher says that he and Mr Cuthbertson were engaged in general conversation, and as was his habit in general conversation, he was swearing. He was politely asked by SC Walker to stop swearing which he said he did and apologised. Mr Fletcher was repeatedly asked to stop saying “fuck”. As SC Walker continued to take down his particulars of identification, Mr Fletcher says that he accidentally again swore. In evidence in chief, he said that at that point SC Walker said to him “That’s it mate, you’re off the fucking train”. As discussed in more detail below, in cross-examination Mr Fletcher conceded that he could not recall what words SC Walker used, and that whilst he retained an impression of “fuck”, his evidence in chief was not truthfully accurate. The common ground is that Mr Fletcher was lawfully directed to leave the train.

121. He then got up, walked up the stairs and entered the vestibule with SC Walker and SC McArthur. Mr Cuthbertson joined him in the vestibule.

122. Police evidence was that each of Messrs Fletcher and Cuthbertson smelled of alcohol and that their speech was slightly slurred. The plaintiffs gave evidence of consuming about 4 drinks during the evening at Gabbi’s birthday party at Kings Cross, before commencing the journey home by train from Kings Cross to Central Railway Station and then joining the subject train. The can of Woodstock Bourbon & Cola which Mr Fletcher had been holding had been drunk from by each of the plaintiffs on the train.

Vestibule Events – Close Analysis of Evidence

Exhibit A4 – Vestibule – Facing South – Clear Camera – 055B5981-07

123. The escalation of confrontation and physical engagement commenced in the vestibule of the train carriage as it arrived at Eastwood Station platform.

124. CCTV shows events in the vestibule. The Senior Constables stand in what SC McArthur described as the “blade” position. This means that in accordance with their officer safety protocol, they stand able to see the person under control and each other, angling their bodies and position to do so. Mr Fletcher was the person under control. He was complying with SC Walker’s direction, under cl 55 (5), to exit the train when it arrived at Eastwood Station. The Senior Constables were observing Mr Fletcher’s compliance. Mr Fletcher had been issued with an Infringement Notice for his consuming alcohol and swearing on the train. Each matter was a minor offence, carrying punishment of a fine.

125. In more detail, the CCTV shows:

• SC McArthur comes up the stairs from the lower carriage into the vestibule first and alone. He positions himself near the base of the stairs from the upper carriage and facing north (toward the camera).

• Mr Fletcher comes up the stairs from the lower carriage, and walks across to near the doors. He stands side-on to the doors facing south (back to the camera).

• Mr Cuthbertson follows behind Mr Fletcher from the lower carriage and stands face-to-face with Mr Fletcher, shoulder to the door. He faces north.

• At 0:24, SC Walker enters the vestibule, being the last to come up the stairs. As did SC McArthur before him, SC Walker holds a rail for stability.

• At 0:29, SC McArthur and SC Walker have adopted the “blade” position, whilst Mr Fletcher and Mr Cuthbertson are still face-to-face and close, apparently talking. Neither SC McArthur nor SC Walker would be within a metre of either of the plaintiffs.

• At 0:36, Mr Fletcher has remained in his position, and Mr Cuthbertson moved back against the south wall whilst facing north to Mr Fletcher. SC McArthur, who had been standing approximately where Mr Cuthbertson moved to, moved to the side to the base of the stairs.

• At 0:41, Mr Fletcher, stands with left hand out toward SC Walker as if Mr Fletcher and SC Walker are talking. SC McArthur is beside and just behind the elbow of Mr Cuthbertson, but looking at Mr Fletcher.

• From about 0.40, young women (who in the evidence are identified by first names “Gabbi” and “Erin”) are in the vestibule on the western side (opposite the side where the Senior Constables and plaintiffs are). Gabbi was the person whose birthday the plaintiffs had attended in Kings Cross. Erin was Mr Fletcher’s girlfriend.

• Between about 0:45 and1:00, there appears to be rocking of the carriage and SC Walker takes a step to his right to place his feet wider apart than they were previously. The plaintiff describes this as moving closer to Mr Fletcher. SC Walker appears to be looking downward, with his hands in front. His back is to the camera. It is not apparent from the video that he deliberately moves to be closer to Mr Fletcher. He may have moved just to establish balance.

• Mr Fletcher’s face is turned as if talking to SC McArthur, which would be consistent with SC McArthur’s evidence.

• Between 0:43 and 0:50, Mr Cuthbertson moves his hands, and in particular his right hand, and is seen to be speaking to the Senior Constables to his right. SC Walker’s back is to the camera, and SC McArthur cannot be seen much at all beyond SC Walker. It is not discernible who was speaking to whom.

• At about 1:00, other passengers in the carriage move out of the vestibule.

• At about 1:15, Mr Fletcher is moving about with more apparent energy.

• At 1:21, Mr Fletcher’s left hand is pointed directly out and SC Walker has stepped back, perhaps another metre, to beyond the mid-way across the vestibule.

• At 1:20 to 1:24, the plaintiff identifies as when “McArthur puts left hand up to the chest area of Cuthbertson”. In opening, Senior Counsel for the plaintiffs described this movement as provocative. It was put in opening and in cross-examination to SC McArthur that he was standing over Mr Cuthbertson and put his hand across Mr Cuthbertson’s chest. Mr Cuthbertson’s evidence was that SC McArthur made him feel uncomfortable by standing so close as to be in his personal space. Mr Cuthbertson said that SC McArthur’s hand did not touch his chest. In closing the plaintiff conceded that SC McArthur did not restrain Mr Cuthbertson at this point.

• At 1:21, the CCTV footage plainly shows that SC McArthur is not even looking in Mr Cuthbertson’s direction when his left hand momentarily is in front of and close to Mr Cuthbertson’s right shoulder and distal pectoral region. The hand is not accurately described as the plaintiff puts it: across Mr Cuthbertson’s chest. Mr Cuthbertson is looking out the window of the train door. It would appear that neither SC McArthur nor Mr Cuthbertson is even focused on the other, let alone on SC McArthur’s hand. SC McArthur is half an arm’s length away from Mr Cuthbertson. He is not standing over him. He is not standing against him. SC McArthur is facing Mr Fletcher. This is entirely consistent with SC McArthur’s description of what was occurring.

296. Obviously in the present case, Mr Fletcher was not handcuffed, incarcerated, carried in a paddy wagon, and processed as a criminal. Nevertheless, he was treated discourteously and physically restrained in the manner which I have described, in view of other friends onlooking from the train.

297. Approaching damages mindful of the principles above stated, I allow:

1. Ordinary damages for the first and second assaults and wrongful imprisonment $4,000

2. For aggravated and exemplary damages $7,000

Total $11,000.

Fletcher – Assessment of Damages for the Struggle with SC Walker Related to Erin and the Second Wrongful Imprisonment

311. As I am obliged to do, I assess aggravated and exemplary damages for:

• the struggle with SC Walker in relation to Erin; and

• the second claimed wrongful imprisonment of Mr Fletcher

as if I had found in favour of those components of his claim.

312. Applying the above stated principles: if the force employed by SC Walker had been wrongful, then aggravated damages and exemplary damages would be required to compensate Mr Fletcher for the intangible harm he suffered in consequence of that degree of force wrongfully inflicted upon him by a police officer, as well as exemplary damages as a punishment and deterrent from wrongful use of that degree of force by a police officer. I assess aggravated and exemplary damages, in addition to personal injury damages. I assess aggravated and exemplary damages in the single sum of $15,000.

313. The second period of wrongful imprisonment would be the period of six minutes or so that Mr Fletcher sat on the Western side of the platform. He was not approached, stood over or forcefully directed during that period. On the plaintiff case Mr Fletcher remained on the Western side of the platform in compliance with an oral direction by SC Walker that he go and sit there. I would assess ordinary, aggravated and exemplary damages in the single sum of $2,000.

Mr Cuthbertson – Assessment of Damages

314. Mr Cuthbertson was man-handled in the vestibule of the train by SC McArthur. There was no violence in the form of heavy pushing, punching or infliction of pain. Indeed, the violence was, in reality, the strong restraint against Mr Cuthbertson’s own force of pulling away. Then SC McArthur pushed him from the carriage holding his arm. That Mr Cuthbertson’s behaviour was disrespectful rising to a degree of provocation and satisfying the term used by Senior Counsel for the plaintiffs “smart arse” does not lessen his entitlement to compensation for ordinary damages of the assault; but is a discounting factor for consideration of aggravated and exemplary damages of the assault in the vestibule.

315. Mr Cuthbertson was assaulted again by SC McArthur when proceeding unlawfully with the second arrest, he grabbed Mr Cuthbertson by the arms and using force placed him upon the stanchion seat. There had been the period which I identified when the Senior Constables were within the vestibule of the train and the plaintiffs were upon the platform for SC McArthur to have considered his action. The effect of the “smart arse” conduct of Mr Cuthbertson in the vestibule had expired by the commencement of that second assault in the process of the wrongful second arrest. Mr Cuthbertson’s protests of innocence were well-founded from the voicing of the second arrest through the balance of the transaction between himself and the Senior Constables. His shouting that SC McArthur was acting as a “tough guy” was not unreasonable resistance to unlawful police action including the man-handling of him in the train vestibule and on the platform.

316. The pointing of the O.C. canister at Mr Cuthbertson was employment of unnecessary force. Mr Cuthbertson conceded that he did not have an immediate fear that SC McArthur would deploy the spray because SC McArthur did not voice an immediate threat but rather a warning that he could deploy the spray if Mr Cuthbertson was physically oppositional. In that way, on the facts of this case, the O.C. spray was not, in my view, of equal threat to imminent use of a weapon. Nevertheless, as recognised by Nielson DCJ in Randall v State of New South Wales [2013] NSWDC 277 at [88], the O.C. canister was a weapon with potential for use in assault. Pointing of it at Mr Cuthbertson’s face from one metre away, particularly in the circumstances that he was seated with his back against the metal pylon of the stanchion in a physically calm deportment with his feet out in from of him and not in any way in a body position “loaded” for physical opposition; was clearly an interference with his personal dignity and caused him a sense of unsafety. This was in a public place albeit there were no persons other than his friend Mr Fletcher to witness it.

317. The pat down of Mr Cuthbertson was a battery and again physical action which clearly interfered with his personal dignity and his right to feel physical personal security.

318. Employing the principles set out above, I allow ordinary damages for assault and trespass in the sum of $12,000.

319. Employing the principles set out in the case law referred to above, in my opinion the actions of assault by SC McArthur, particularly in circumstances where at no point did Mr Cuthbertson direct physical aggression in opposition at him and where Mr Cuthbertson, at the earliest opportunity to do so, provided him with his personal identification details; involved a manner of wrongdoing deserving of compensation to Mr Cuthbertson in the form of aggravated damages. In my opinion, after allowing for the “smart arse” behaviour of Mr Cuthbertson prior to the assault inflicted upon him by SC McArthur in the carriage vestibule and particularly having regard for the opportunity of the police officers to gather their thoughts when within the vestibule of the train before stepping out onto the platform in order to proceed with the second arrest; the unlawful conduct by SC McArthur is deserving of the disapprobation of the Court in the form of exemplary damages.

320. I have found wrongful imprisonment of Mr Cuthbertson of a period of up to 12 minutes. Damages for wrongful imprisonment are not to be assessed on an arithmetic calculation of time but rather compensation is to focus on vindication of liberty and reparation to the victim. A substantial portion of the ultimate award of damages to be in compensation for the initial shock.

321. The wrongful imprisonment involved the assaults for which Mr Cuthbertson is separately compensated for ordinary damages. I assess normal damages for wrongful imprisonment in the sum of $7,000.

322. I allow a single figure sum for aggravated and exemplary damages compensation for assault, trespass and wrongful imprisonment in the sum of $15,000.

Cuthbertson’s Claim for Recovery of Legal Costs

323. Mr Cuthbertson defended the charges of assault an officer and resist an officer while in the execution of his duty contrary to section 58 Crimes Act 1900 (NSW). At first instance, in the Local Court, he was convicted but he was successful in his appeal against conviction in the District Court. Mr Cuthbertson concedes that he would not be entitled to recover his costs in defending the criminal proceedings, had he been charged with assault, alone, and not also with the offence of resisting a police officer in the execution of his duty.

324. The amount of the legal costs claimed by Mr Cuthbertson is $91,367.75 being the total of costs and disbursements set out in two invoices issued to him by his solicitors in the criminal proceedings, Messrs Foott Law and Co (the “law practice”) on 16 December 2014 in relation to the Local Court and District Court criminal proceedings: Exhibits L and R. Those invoices do not distinguish between the costs relating to the assault and the resist charges. There is no evidence whether or not the bill was fair and reasonable, other than the unchallenged inference arising from a normal experience that licensed practicing solicitors, Senior Counsel and junior counsel would bill appropriately.

325. The parties agree the following points:

1. The provisions of the Legal Professions Act 2004 NSW (LPA) apply;

2. Mr Cuthbertson and the law practice did not enter into a Costs Agreement which complied with the mandatory provisions of the LPA for a Costs Agreement to be enforceable by the law practice; and

3. The law practice did not provide Mr Cuthbertson with costs disclosure as required by Part 3.2, Division 3 of the LPA.

326. The defendant submitted that Mr Cuthbertson’s claim for costs as special damages should be dismissed for three reasons:

1. First, Mr Cuthbertson did not prove on the balance of probabilities that he suffered loss in respect of the legal costs of the criminal proceedings because:

1. The legal costs have not been paid by Mr Cuthbertson;

2. Further, Mr Cuthbertson did not prove that he incurred liability in respect of those costs because:

a.   The evidence did not establish that Mr Cuthbertson entered into costs agreements with the law practice on the terms set out in the unsigned documents of the law practice dated 3 December 2013 and 26 May 2014 (Exhibits H and P) – the purported Costs Agreements, or on any other terms;

b.   Alternatively, any costs agreement entered into between the law practice and Mr Cuthbertson included a term that he was not required to pay legal costs of the Local Court and District Court criminal proceedings unless and until those legal costs were recovered as damages in a civil claim against the State of New South Wales arising out of the arrest on 8 September 2013. On this basis, it follows that:

i.   Those agreements are void by reason of sections 323 and 327 of the LPA;

ii.   Alternatively, if the agreements were valid (which the defendant denied), Mr Cuthbertson’s liability to pay legal costs under those agreements was conditional or contingent on this Court awarding damages in respect of those costs in these proceedings, and that conditional contingency has not been fulfilled;

3. Further and alternatively, Mr Cuthbertson did not prove that he was liable to make restitution for legal services provided by the law practice on a quantum meruit basis because his receipt of those services without payment did not constitute unjust enrichment in circumstances where he was told that the law practice would not require payment until the costs were recovered as damages in civil proceedings, and that has not occurred;

4. Further and alternatively, even if Mr Cuthbertson has incurred liability in respect of the legal costs, he is not required to pay those legal costs because:

a. The law practice failed to make the disclosures required by sections 309 to 311 and 316 LPA, with the result that Mr Cuthbertson is not required to pay the legal costs, and the law practice cannot maintain proceedings against him to recover those costs, unless they have been assessed: section 317 LPA,

5. The legal costs have not been assessed.

2. Secondly, even if it is found that Mr Cuthbertson has suffered a loss in respect of the legal costs in the criminal proceedings (which the defendant disputed), any such loss was not recoverable as damages in this civil proceeding in any event because it was not the natural and probable consequence of the alleged assault and false imprisonment.

3. Thirdly, even if the Court found that Mr Cuthbertson has suffered a loss in respect of the legal costs of the criminal proceedings (which the defendant disputed) and that such loss was recoverable in this civil proceeding (which the defendant also disputed), Mr Cuthbertson adduced no evidence of the quantum of that loss

See defendant written submissions 5 June 2017 at [7].

Consideration of Claim for Costs of the Criminal Proceedings

327. Mr Fahey was a principal solicitor at the law practice and was responsible for the conduct of the criminal proceedings in the Local Court and, on appeal, in the District Court. He gave evidence of receiving instructions, forwarding of “Costs Agreements” of the law practice, receipt of counsels’ fee disclosures, billings and evidence of his conversations with Mr Cuthbertson regarding payment of legal costs in the criminal proceedings.

328. By written submissions dated 8 June 2017 Mr Cuthbertson conceded that the law practice costs disclosure was deficient in relation to disclosing matters required by section 310 LPA and that the “Costs Agreements” were deficient and thus void by virtue of the “Costs Agreements” lacking a signature of a responsible solicitor of the law practice pursuant to section 327(1) LPA.

329. The plaintiff submitted that neither the failure to disclose as required by the LPA, nor that the “Costs Agreement” was “void” pursuant to the provision of the LPA extinguished a liability for those costs. The plaintiff submits that in respect of the “void” “Costs Agreements”, the costs were recoverable pursuant to section 319(1)(c) LPA. The plaintiff submitted that “nowhere in the scheme of the LPA does the liability for costs cease to exist by virtue of deficiencies in the costs disclosure or costs agreement requirements”.

330. At a date not identified in the evidence but prior to the 20th of November 2013 Mr Cuthbertson provided initial instructions to Mr Fahey at the law practice in regard to the Court Attendance Notices which he received in relation to the offences. Mr Fahey said he discussed the charges with Mr Cuthbertson, Mr Cuthbertson paid $1000 at some early stage on account of costs. On 20 November 2013 Mr Cuthbertson entered his plea of not guilty at Ryde Local Court. At some time around 3 December 2013 the law practice forwarded its “Costs Agreement” dated 3 December 2013 (Exhibit H) to Mr Cuthbertson. At about that time but in any event in the early part of the engagement of the law practice, Mr Cuthbertson informed Mr Fahey that he did not have money to pay the costs. Mr Cuthbertson continued to provide and the law practice continued to accept instructions and provide services. The “Costs Agreement” required the client (Mr Cuthbertson) to sign and return it. A signed Costs Agreement was never received from Mr Cuthbertson by the law practice.

331. In January 2014 the law practice received the fee disclosure of Woodbury of Junior Counsel (Exhibit F) and in February 2014 the law practice received the fee disclosure of Steirn SC (Exhibit G). Neither fee disclosure by counsel was forwarded by the law practice to Mr Cuthbertson.

332. On the 25th of February 2014 trial of the criminal proceedings commenced at Burwood Local Court and the hearing went over part heard to 7 May 2014. On 4 March 2014 the law practice wrote to Mr Cuthbertson advising of its increased estimate of costs to completion of the trial in excess of $60,000. The trial completed on the 7th of May 2014 with verdicts of guilty. On 19 May 2014 Mr Cuthbertson appeared at the sentencing hearing at Burwood Local Court.

333. On or soon after 26 May 2014 the law practice forwarded its “Costs Agreement” for the costs of an appeal to the District Court (Exhibit P). On 17 September 2014 Woodbury of Junior Counsel forwarded his fee disclosure for the appeal proceedings (Exhibit O).

334. On 22 October 2014 Finnane QC DCJ granted the appeal and overturned the verdict. Woodbury did not seek an order for costs. The defendant has not pleaded mitigation and does not rely on the failure to apply for costs as a failure to mitigate loss but says that it goes to causation of loss.

335. At about the end of October 2014 the law practice received bills of counsel for the trial in the Local Court and for the appeal in the District Court (Exhibits J and Q). On 16 December 2014 the law practice billed Mr Cuthbertson for legal services provided in the trial and in the appeal (Exhibits L and S). Counsel’s bills accompanied the law practice’s bills.

336. Mr Fahey agreed that costs of the law practice in the criminal proceedings have not been assessed. He said that he acted for Mr Cuthbertson in these civil proceedings between April 2015 and March 2017.

337. In cross examination Mr Fahey was interrogated in regard to his discussion with Mr Cuthbertson as to arrangements, if any, for the payment of legal services provided by the law practice.

338. Mr Fahey described his conversations with Mr Cuthbertson when initially instructed and again a couple of months after that time in the following evidence at transcript day 4, page 249, line 28 to line 32:

“Q: did you tell Mr Cuthbertson that he would not have to pay the legal costs relating to the Local Court criminal proceedings and the District Court appeal unless and until he succeeded in a civil claim for damages against the State for alleged assault and alleged false imprisonment?

A: I may have told him I’m prepared to wait until it’s all finished.”

339. Mr Fahey’s evidence was that at some time before mid-May 2014 he would have said to Mr Cuthbertson:

“something along the lines of, you’ve probably got a bit of money. And there’s a fair bit going on. You may or may not get money at the end. But we’re going to send you a bill for it.” Transcript Day 5, page 251, lines 27 to 29. He gave the following evidence:

“Q: What, if anything, did you say to Mr Cuthbertson at that time of that conversation, about what steps might be taken for him to get some money at the end?

A: I would have told him, that the costs can be recovered … recovered in civil proceedings, and not to worry too much” Transcript day 5, page 252, lines 21 to 29.

340. Mr Fahey described his expectation in relation to payment when the Costs Agreement (Exhibit P) was forwarded to Mr Cuthbertson on or about 26 May 2014 as:

“he would have to wait. He wouldn’t be able to pay until he came into funds” Transcript Day 4, page 249, line 15.

341. In cross examination Mr Cuthbertson agreed that at or very soon after his initial attendance upon Mr Fahey with the Court Attendance Notices, Mr Fahey discussed with him the legal costs of defending the criminal proceedings but Mr Cuthbertson was unable to recall what was said. He did not recall being told that he would “get some money at the end” or “the legal costs of the criminal proceedings could be recovered in the civil proceedings”. He recalled that at that stage of the commencement of receipt of legal services, or very soon after, Mr Fahey said, in effect, “he wasn’t going to chase me for it” Transcript day 6, page 352, lines 9 to 38.

342. The law practice “Costs Agreement” dated 3 December 2013 informed Mr Cuthbertson of the rate of charge of $450 per hour. It provided an early estimate of fees of the criminal defence in the Local Court of $10,000, which estimate, (as above) in March 2014 was increased to exceed $60,000 including the fees of senior and junior counsel (Exhibit I). At that stage the law practice had engaged senior and junior counsel.

343. The question was not asked and Mr Fahey did not, in his evidence of discussions, describe an arrangement that it was recovery of costs of the criminal proceedings as a head of damages in the civil proceedings for which payment could wait. As can be seen from the passages of his evidence quoted above, it was put to him that the arrangement was that payment of the costs billed by the law practice in the criminal proceedings was contingent upon success in these proceedings for damages for assault and false imprisonment.

344. The evidence amounted to Mr Fahey and Mr Cuthbertson orally arranging that in circumstances where the law practice was aware that Mr Cuthbertson was not in funds to pay, the law practice would wait until he came into funds and an event in which he may come into funds would be judgment in these civil proceedings including an order for damages for assault and wrongful imprisonment.

345. That Mr Fahey commenced to act in these civil proceedings in April 2015, approximately 6 months after conclusion of the criminal proceedings is consistent with there not being an agreement between the law practice and Mr Cuthbertson at the time of delivery of the legal services by the law practice in the criminal proceedings, that the recovery would be conditional upon success in the civil proceedings. Consistent with this is also the evidence of Mr Fahey that between conclusion of the Local Court trial in May 2014 and the conclusion of the appeal in the District Court of the 22nd of October 2014, Mr Fahey asked Mr Cuthbertson if he could borrow money to pay costs and Mr Cuthbertson answered: “I have got nothing. I can’t get anything” Day 5 Transcript page 253 lines 10 to 24.

341. In my opinion, it is not available on the evidence for the defendant to submit, as it does, that the law practice and Mr Cuthbertson entered into a conditional costs agreement because nothing in the evidence supports the submission that costs were only to be paid in the event of success in the criminal proceedings. Nor should it be found, as the defendant submits, that recovery in these civil proceedings is “related” for the purposes of a conditional costs agreement. There is no evidence of agreement of payment contingent upon recovery of those costs as a specie or head of damage in these proceedings.

342. On the whole of the evidence, the arrangement between Mr Fahey and Mr Cuthbertson was not more than that Mr Cuthbertson would pay the costs of the criminal proceedings as he was able to do, when he came into funds.

343. On the whole of the evidence I agree with the plaintiff’s written submission dated 8 June 2017, “nothing Mr Fahey wrote or said indicated other than because Mr Cuthbertson was impecunious he was prepared to send an invoice but was willing to wait and defer payment [Transcript page 249 lines 11-16, 249 lines 28-32]. It was never suggested to Mr Fahey in cross examination that the costs invoice to Mr Cuthbertson would be completely abandoned if they could not be recovered in the civil proceedings.”

344. The defendant submits that pursuant to section 317 LPA, because of the non-disclosure by his solicitors, Mr Cuthbertson “need not pay” the legal costs unless they have been assessed under Division 11 of the LPA. The defendant says that Mr Cuthbertson has therefore not suffered a loss.

345. The defendant concedes that section 317 does not have the effect of destroying the right of the law practice’s entitlement to costs. The defendant submits that the law practice cannot proceed to recover those costs: The defendant points to Wentworth v Rogers (2006) 66 NSWLR 474; [2006] NSWCA 145 at [55-56] per Santow JA, [148] to [160] per Basten JA; In the matter of Re Tetbury Pty Ltd [2017] NSWSC 37 at [29] to [30].

346. The defendant concedes that pursuant to section 319, (1)(c) the law practice is entitled to the fair and reasonable value of the legal services it provided – a quantum meruit basis.

347. The defendant submits that “the law practice cannot maintain proceedings to recover costs [pursuant to section 319], unless and until those costs have been assessed: section 317: written submissions 5 June 2017 at [66].

348. The limit of the opportunity for assessment is not a finite one as put on the defendant argument. At written submission [121] the defendant conceded that whereas its argument under the LPA is based partly upon the time for commencement of an assessment application having passed; pursuant to section 350 LPA, an application for assessment of costs could still be made, on determination of the Supreme Court, that it is just and fair for an application to be dealt with out of time.

349. The essence of the defendant’s argument against the law practice costs of the criminal proceedings being recoverable by Mr Cuthbertson as damages in these proceedings takes the perspective of the right to recovery of its costs by suit or otherwise compelling Mr Cuthbertson to pay. At [102] of its written submission the defendant put it:

“however, as at the date upon which it falls to this Court to determine this civil proceeding, any quantum meruit claim by the law practice against Mr Cuthbertson would fail because Mr Cuthbertson could not be said to have been unjustly enriched by receiving legal services in the criminal proceedings without paying for those services, in circumstances where he was told that he need not pay unless the legal costs were recovered as damages in a civil proceedings and that has not occurred: references made to Pavey and Matthews Pty Ltd v Paul (1987) 162 CLR and Lumbers v William Cook Builders Pty Ltd (in liq) (208) 232 CLR 635.”

355. Contrary to the factual essence of the defendant’s submission (particularly at [102]) I have found that the oral arrangement between Mr Fahey and Mr Cuthbertson was not that payment of costs was conditional upon recovery of damages in these civil proceedings. Mr Fahey denied that proposition when it was put to him. The proposition was not put to Mr Cuthbertson in cross examination.

356. The defendant then submits “further and alternatively” at [103] that even if Mr Cuthbertson has a liability, he is not required to pay those costs and Foott Law and Co cannot maintain proceedings against him to recover those costs unless and until those costs are assessed

357. The question which arises from the defendant’s submissions on the application of the LPA must be viewed from the perspective of the question for determination in this case, which is: whether or not the fact that time for assessment of the law practice costs in the criminal proceedings under the LPA has expired (subject to approval for assessment to proceed out of time being granted by the Supreme Court) the law practice cannot sue Mr Cuthbertson for recovery of its costs; means that there is no loss recoverable as damages. In my opinion, this question should be answered in the negative.

358. Three points to be made immediately are:

1. There is no evidence nor any submission concerning the prospects of success of the obtaining of approval of the Supreme Court for the assessment of costs. In the absence of any dispute between Mr Cuthbertson and the law practice and there being no evidence of an unwillingness or refusal to pay those costs by Mr Cuthbertson; the submissions do not dissuade from an assumption that such approval would be forthcoming if sought;

2. As I earlier found, I do not accept that the evidence supports the statement in the above quoted passage from defendant written submission [102] that Mr Cuthbertson was told that he need not pay unless the costs were recovered as damages in a civil proceeding; and

3. There is no evidence that Mr Cuthbertson is unwilling to pay the costs billed.

359. The common law will not conflict with social and commercial policy provided for in statute: Adeels Palace Pty Ltd v Moubarek (2009) 239 CLR 420; Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 [2014] HCA 36; (2014) 254 CLR 185. However, nothing contained in the LPA, and specifically in the sections relied upon by the defendant, extinguishes the entitlement of the law practice to its costs. The provisions only affect the law practice’s right to proceed to recovery: Wentworth v Rogers (2006) 66 NSWLR 747 at [148] to [160] per Basten JA; and section 319 LPA.

360. As plaintiff written submissions properly put it, nothing in section 317(1) LPA denudes Mr Cuthbertson of his choice to pay his solicitors’ costs without a costs assessment. I would add that plainly the vast majority of solicitor/client costs are satisfied without assessment.

361. Relying upon the principle stated in State of New South Wales v Koumdjiev (2005) 63 NSWLR 353; [2005] NSWCA 247 at [46] and [68] per Hodgson JA (Beasley and Hislop JJA agreeing); State of New South Wales v Randall [2017] NSWCA 88 at [45]-[46] per Basten JA and at [135]-[136] per McDougall J; the plaintiff claims recompense for loss being the costs incurred defending the offence of resist a police officer in the execution of his duty. The assault charges were dismissed and the arrest was unlawful. Police were not acting in the course of duty when effecting the unlawful arrest. In this way the costs of defending the “resist” charge are different to the costs of defending the “assault” charge in that the “resist” occurred after and in consequence of the wrongful arrest. The “assault” occurred before the arrest.

362. Having rejected the defendant factual submission that Mr Cuthbertson was told he did not need to pay legal costs unless they were recovered as damages in a civil proceedings; I would understand the defendant to concede that the principles of Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221; [1987] HCA 5 and Lumbers v W Cook Builders Pty Ltd (in liq) (2008) 232 CLR 635; [2008] HCA 27 apply to the facts as I have found them.

363. In the present case Mr Cuthbertson and the law practice, by its principal solicitor Mr Fahey, from the outset of instructions proceeded on a mutual understanding that the services were being provided at the solicitor’s hourly rate of $450 per hour and subsequently that fees for senior and junior counsel were being incurred by Mr Cuthbertson. Whilst Mr Cuthbertson did not sign the “Costs Agreement” documents, the evidence of Mr Fahey is that those documents and the correspondence of March 2014 were forwarded.

364. Mr Cuthbertson chose on those terms to continue to instruct the law practice to provide services and accepted services having been informed that he would be billed for the work. In December 2014 he was billed for that work. There can be no doubt that Mr Cuthbertson received the benefit of the legal services provided by the law practice. Opposite the facts in Lumbers case, the facts here fit neatly within the long established principles of restitution for a benefit described at the expense of the law practice justifying remedy against unjust enrichment: see Lumbers v W Cook Builders Pty Ltd (in liq) (2008) 232 CLR 635; [2008] HCA 27 at [84]-[89]. The LPA does not extinguish the entitlement of the law practice to be paid. The obligation to pay is not denied by Mr Cuthbertson.

365. In further answer to the defendant’s submission: as already noted, and as effectively conceded in the defendant written submissions, it is still available to the law practice to proceed for assessment, with leave of the Supreme Court and there is no evidence that Mr Cuthbertson would oppose that leave being granted. There is no basis for finding that the right of the law practice to proceed for recovery of its costs has expired. It has an entitlement to be paid and it is entitled to be paid for the fair and reasonable value of the legal services provided.

366. In my opinion the correct approach is to determine Mr Cuthbertson’s entitlement to damages rather than the right of the law practice to proceed against him for payment. Even if the defendant submission is correct and the law practice cannot force Mr Cuthbertson to pay for the legal services which it provided; nevertheless, in my opinion he has suffered a loss of the fair and reasonable value of those legal services. The proposition that a plaintiff is not entitled to recover from the defendant the value of the services provided to him, by a third party, unless he can show that he is under a legal liability to pay for them, has not been acceptable since the decision of the High Court of Australia in Griffiths v Kerkemeyer (1977) 139 CLR 161; [1977] HCA 45.

367. As to quantum: The “assault” charge and the “resist” charge were serviced simultaneously and proceeded simultaneously, according to the evidence. The consideration of causation of those services does not engage a field outside the realm of common knowledge and experience. Assessment of the reasonable value of legal services claimed here, is not like in cases where the loss is of medical or scientific description and, upon the evidence, it appears that the present state of knowledge does not admit of an affirmative answer and that competent and trustworthy expert opinion regards an affirmative answer as lacking justification, either as a probable inference or as an accepted hypothesis.

368. In this case, as already observed, but for the wrongful arrest, the charge of “resist” could not have arisen and the assaults and wrongful imprisonment would not have occurred. Assume, for illustration, it were available to identify a conference or advice which concerned only the charge of assault. Given the itemization in the bills showing the attendances; and in consideration of the intimate relationship between the events of the “assault” and the “resist” charges; it is likely that the vast majority of the legal services are a total harm, precise dissection of costs for services between the charges being unavailable.

369. In my opinion, the plaintiff submission (written 8 June 2017 paragraph 1) that the loss be equal to a 50:50 apportionment between the costs of defending the “assault” and “resist” charges is readily acceptable as reasonable: principles of damages at common law: Amaca Pty Ltd v Booth (2011) 246 CLR 36; [2011] HCA 53 at [69] to [71]; Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5 at [21] to [28].

370. The defendant in written submissions 5 June 2017 at [149] refers to the statement of principles for application by the Court in assessing lump sum provision of costs pursuant to section 98 CPA in Hamod v State of New South Wales [2011] NSWCA 375. Unlike this case where the sum of the costs is relatively modest against the cost of an assessment process; in that case the costs disputed were well in excess of $1,000,000. Unlike that case where the assessment was for costs inter partes, in this case the assessment is of damages compensating for loss consequent of tortious action.

371. In my opinion, the Hamod Case is against the defendant’s submission that the evidence in this case is insufficient to prove the fair and reasonable quantum of damages compensating for the harm of incurring a liability for costs incurred of defending the “resist” charge. Any concern otherwise is, as I have said, is relieved by the obvious fairness of the plaintiff’s submission by which it concedes a 50:50 split between the “assault” and “resist” charges.

372. Hamod’s Case at [777] and [821] is instructive of the desirability of the ready assessment of costs where the touchstone is one of confidence that the approach taken to estimate costs is logical, fair and reasonable. This is particularly so in this case where the plaintiff’s claim of only 50% of the amount billed must be seen in the circumstances to which I have referred, to be conservative.

373. There is no fundamental right in the defendant to have the costs assessed in a formal assessment process in order for quantum to be found. The real loss for which damages are awarded is the loss which gave rise to the need for legal services defending the “resist” charge and that can be assessed by reference to the objective value of those services.

374. The criterion is reasonableness in proportion to the magnitude of the loss suffered. It is within the experience of the court that Mr Fahey’s hourly rate of $450 an hour was not beyond market value. That the trial was sufficiently complex to justify the services of senior and junior counsel is made out by the fact that Mr Cuthbertson was at first instance convicted and only on appeal acquitted. The rates of charge of the law practice and of counsel are not plainly beyond the market value of those services: Van Gervan v Fenton (1992) 175 CLR 327; [1992] HCA 54. Again, the allowance of 50% sought by the plaintiff is plainly reasonable.

375. In defendant written submission’s 5 June 2017 at [134] the defendant accepts that this court is bound by State of New South Wales v Koumdjiev (2005) 63 NSWLR 353; [2005] NSWCA 247. The defendant otherwise submits that Koumdjiev was wrongly decided.

376. At [135] to [138] the defendant submits that this case is distinguishable from Koumdjiev because no costs order was sought on behalf of Mr Cuthbertson on his success in the District Court appeal by Woodbury. Reference is made to section 70(1) of the Crimes (Appeal and Review) Act 2001 (NSW). As already noted, the defendant did not plead mitigation and makes the point only in the context of causation.

377. The grounds for achieving an award of costs pursuant to section 70(1) require special circumstances including bad faith in the prosecution of the offence, which circumstances go beyond the natural and probable consequences of the realm of common law damages sought by the plaintiff. As Hodgson JA in Koumdjiev said at [67] “costs are rarely awarded in criminal cases.”

378. In any event, in my opinion, the plaintiff properly submits that the defendant failed in its obligation to plead its reliance on section 70(1) of the Crimes (Appeal and Review) Act 2001 (NSW). Had it done so, the plaintiff would have been properly alerted to the field of evidence required in order for it to prove its case including, but not restricted to, the calling of Woodbury of counsel to give evidence. The defendant should not be permitted the benefit of raising a statutory defence after the close of evidence.

379. I allow Mr Cuthbertson damages compensating him for loss in the form of his need for receipt of legal services equal to one half of legal costs billed to him by Messrs Foott Law and Co ($91,367.75) in the rounded sum of $45,500.

380. I allow Mr Cuthbertson total damages of: $79,500.

COSTS

381. In Mr Fletcher’s claim, the defendant has had substantial success on the issues of the struggle related to Erin and the second period of wrongful imprisonment. The defendant should pay 70% of the costs of Mr Fletcher’s proceedings accordingly. Mr Cuthbertson has been largely successful in his claim and costs should follow the event.

Interest on Damages

382. The plaintiffs claim interest on their respective awards of damages. The damages crystallized on 8 September 2013. This requires that interest be awarded at the full rate of 4% over 4.2 years on common law damages: MBP (SA) Pty Ltd (1991) 171 CLR 657; [1991] HCA 3. Had damages awarded been assessed pursuant to the provisions of the CLA, section 18 CLA limits on interest would apply.

383. Damages in Mr Fletcher’s case:

$11,000 x 4% per annum x 4.2 years = $1,848.

Mr Cuthbertson’s case:

$34,000 x 4% per annum x 4.2 years = $5,212.

ORDERS

384. In Fletcher v State of New South Wales 15/00135825:

1. Judgment for the plaintiff against the defendant in the sum of $12,848.

2. Defendant to pay 70% of the plaintiff’s cost of the proceedings

385. In Cuthbertson v State of New South Wales 15/0010880:

1. Judgment for the plaintiff against the defendant in the sum of $84,712.

2. Defendant to pay the plaintiff’s costs of the proceedings.

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Amendments

21 December 2017 - Paragraph [310](1): changed “For the first and second assaults $4,000” to “Ordinary damages for the first and second assaults and wrongful imprisonment $4,000”.

Paragraph [383]: Pursuant to UCPR 36.17 “slip rule”, amended interest on damages in Mr Cuthbertson’s case to $3,4000 x 4% per annum x 4.2 years = $5,212. Accordingly, arithmetically the total judgment for Mr Cuthbertson in [385](1) calculates to $85,212.

22 December 2017 - Paragraph [385]: changed "$85,212" to "84,712".

Decision last updated: 22 December 2017